Short Circuit

Sometimes when the government does bad things to you it violates the Constitution. And sometimes it just violates the contract. Jeff Rowes explains the difference, and how things went down with a development scheme in the Fifth Circuit. Also, Will Aronin brings his expertise he learned as a trial lawyer to examine some junk science that has now been put on trial. Plus he details why it would be nice for a criminal defendant to know if a witness testifying against him is known to "stretch the truth." Preston Hollow Capital, LLC v. Cottonwood Development Corp., https://www.ca5.uscourts.gov/opinions/pub/21/21-50389-CV0.pdf O'Donnell v. Yezzo, https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0026n-06.pdf Judge Jon Newman article on "En Banc," https://static.reuters.com/resources/media/editorial/20200714/IN%20BANC%20PRACTICE%20IN%20THE%20SECOND%20CIRCUIT%20THE%20VIRTUES%20OF%20RESTRAINT.pdf Jeff Rowes, https://ij.org/staff/jrowes/ Will Aronin, https://ij.org/staff/will-aronin/ Anthony Sanders, https://ij.org

Is it "on bonk" or "n bank"? IJ lawyers disagree on how to pronounce a full court of appeals considering a case. But whatever your Latin/Old French skills, the en banc Fifth Circuit said some things about the Dallas County jail that even your crack team of experts can't understand. But Sam Gedge does his best to explain what might be going on, and how the court needlessly addressed his favorite topic, Younger abstention. But before that Bob Belden tells a story of a renegade sheriff sticking unauthorized anti-Halloween signs in rehabilitated sex offenders' yards. RSVP for our live event on the Georgia Constitution on February 4, 2022, https://ij.org/event/center-for-judicial-engagement-forum-on-the-georgia-constitution/ McClendon v. Long, https://media.ca11.uscourts.gov/opinions/pub/files/202110092.pdf Daves v. Dallas County, https://www.ca5.uscourts.gov/opinions/pub/18/18-11368-CV2.pdf Rival "How to Pronounce 'En Banc'" Videos: https://www.youtube.com/watch?v=vQexSbL8iDQ, https://www.youtube.com/watch?v=

Ever wondered when the police can pull you over and what they can do once you stop? Then this episode brings news you can use through a couple recent traffic stop cases. Wesley Hottot reports on the Eighth Circuit's blessing of a stop supposedly brought on by some pretty smelly weed (although not everyone is convinced of the story). Then, your host Anthony Sanders tells us of a new development in Oregon where its high court has rejected the "automobile exception" to the requirement to get a warrant before a search. Also, please keep your nominations for the most beautiful federal circuit courtroom rolling in. Our listeners have demonstrated there's some architecturally fierce, yet lovely, competition out there. United States v. Shumaker, https://ecf.ca8.uscourts.gov/opndir/21/12/203467P.pdf Oregon v. McCarthy, https://cdm17027.contentdm.oclc.org/digital/collection/p17027coll3/id/9463/rec/2 Post on Oregon v. McCarthy, https://ij.org/cje-post/state-con-law-case-of-the-week-oregon-stops/ IJ's Project on the Four

It's a new year but little is new with qualified immunity in the Fifth Circuit. Or is it? Easha Anand of the MacArthur Justice Center joins us to discuss a recent denial of qualified immunity in a police brutality case. IJ's Anya Bidwell joins in and reports on a couple other developments that demonstrate perhaps there's some "split second" thinking going on among those judges. Further, we ask our listeners to send in your nominations for the "most beautiful" U.S. Court of Appeals courtrooms. Got a favorite? Let us know! Either send us an email or find us on Twitter. Also, apply to be an IJ summer fellow! The deadline is January 14, 2022, https://ij.org/opportunities/students/ Timpa v. Dillard, https://cases.justia.com/federal/appellate-courts/ca5/20-10876/20-10876-2021-12-15.pdf?ts=1639614617 Villarreal v. City of Laredo, https://www.ca5.uscourts.gov/opinions/pub/20/20-40359-CV0.pdf Harmon v. City of Arlington, http://www.ca5.uscourts.gov/opinions/pub/20/20-10830-CV0.pdf IJ's Gonzalez v. City of Castle Hill

It's our 200th episode! We're taking this second century as an excuse to explore where Short Circuit came from and what it's done, both the podcast and the newsletter. We start things off at the very beginning with Short Circuit's editor and the podcast's original host John Ross. Then it's a blast-from-the-past with Clark Neily and Evan Bernick. We close things off with guest host Paul Sherman and Short Circuit Live host Anya Bidwell. You've heard how Spiderman and Batman came to be, but do you know what traumatic event led to Short Circuit? Ok, there's no radiation or mugging, but you will learn how reading way too many qualified immunity opinions can radicalize your worldview. Enjoy! Also, a quick update to the episode. None of us really remembered where the idea for the podcast actually came from, but further deep (and actual) research has revealed it was our sound engineer and producer Mark. Thank you! https://ij.org/staff/jross/ https://www.cato.org/people/clark-neily https://www.niu.edu/law/about/direct

In what may be the most obvious of examples of obvious constitutional violations, we discuss the right to not have the police put you in prison. Alexa Gervasi of IJ explains how this was too much even for qualified immunity to defeat, at least in the Third Circuit. And IJ's Ryan Wilson explains why a case involving a Greek boat accident can go forward in Boston. No, the captain's name was not Odysseus. Dave Kennedy Fellowship, https://www.ij.org/opportunities/students Litigation Fellowship, https://www.ij.org/opportunities/employment-opportunities/ Dennis v. City of Philadelphia, https://www2.ca3.uscourts.gov/opinarch/192390p.pdf Curtis v. Galakatos, http://media.ca1.uscourts.gov/pdf.opinions/20-1846P-01A.pdf For 25 Years, Jimmy Dennis Was on Death Row. Then One Day, He Wasn’t., https://www.phillymag.com/news/2021/02/06/jimmy-dennis-musician-death-row/ Alexa Gervasi, https://ij.org/staff/alexa-gervasi/ Ryan Wilson, https://ij.org/staff/ryan-wilson/ Anthony Sanders, https://ij.org/staff/asanders/

Where do you go to challenge an illegal tax? Well, if that tax is a tariff your destination is the United States Court of International Trade. Learn all about this corner of the Article III judiciary, and how tariffs for once took a beating before it, from Eric Boehm, a reporter at Reason. Also, we return to a frequent subject on Short Circuit, the Pennsylvania Supreme Court, with IJ's Josh Windham. That court just made it a little easier to challenge restrictions on gun rights, although it really shouldn't have been that hard in the first place. Solar Energy Industries Assoc. v. U.S., https://www.cit.uscourts.gov/sites/cit/files/21-154.pdf Firearm Owners Against Crime v. City of Harrisburg, https://casetext.com/case/firearm-owners-against-crime-v-city-of-harrisburg-1 A Judge Just Did What Biden Wouldn't: Dump Some Trump Tariffs, https://reason.com/2021/11/17/a-judge-just-did-what-biden-wouldnt-kill-some-trump-tariffs/ Eric Boehm, https://reason.com/people/eric-boehm/ Josh Windham, https://ij.org/staff/joshua

Fans of the Hart-Fuller debate are gonna love this one. As will normal people who have no idea what that means. Legal philosopher HLA Hart asked whether a rule saying “no vehicles in the park” included bicycles, toy cars and airplanes. But now the D.C. Circuit has been asked, what about trailers? D.C. Circuit guru and IJ attorney Jeff Redfern explains what’s a vehicle and what isn’t according to that court’s recent opinion on fuel efficiency standards. Meanwhile out West, it’s hard to get on the ballot in Big Sky Country. IJ election expert Paul Sherman walks us through how the Ninth Circuit found Montana’s rather bizarre system of ballot access partly constitutional, but partly not. Our apologies, but there’s some math. Truck Trailer Manufacturers Assoc. v. EPA, https://www.cadc.uscourts.gov/internet/opinions.nsf/233083B9809082A28525878B0053FE5B/$file/16-1430-1922005.pdf Montana Green Party v. Jacobsen, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/08/20-35340.pdf HLA Hart, Positivism and the Separ

In addition to some other civil rights anniversaries, 2021 marks 50 years since the Supreme Court decided Younger v. Harris. There, the Court made it extremely hard for federal courts to stop an unconstitutional state prosecution. This “Younger abstention” doctrine has been with us ever since. Professor Fred Smith of Emory Law joins us to discuss what Younger’s impact has been and how it has especially made it difficult to fight state court systems that have become de facto debtors’ prisons. Additionally, we hear from Sam Gedge of IJ who gives us some of the background on the case and perspective on litigating civil rights cases with it looming in the background. We close with an investigation on where the heck the term “Our Federalism” (which Younger relies upon without citation) came from. Hint: Its first name is Felix. Younger v. Harris, https://supreme.justia.com/cases/federal/us/401/37/ Fred Smith Jr., Abstention in the Time of Ferguson, https://harvardlawreview.org/wp-content/uploads/2018/06/2283-2358_O

What’s too hot a novel for a prisoner? Apparently “Pride and Prejudice: The Wild and Wanton Edition” meets that standard. The Eighth Circuit dug into this prurient issue and essentially said it violates the First Amendment to ban modern and Renaissance art in prison, but not to ban fan fiction. Rob Johnson takes us through a wild and lustful tale of free speech law, including the court’s bizarre discussion of when overbreadth claims are moot. Then your host Anthony Sanders spins a yarn about a wild night out, implied consent laws, and Section 1983 not being very useful if you’ve already got your license back. Parents, make your own choice, but this might be a good episode not to have younger children listen to. Sisney v. Kaemingk, https://ecf.ca8.uscourts.gov/opndir/21/10/202460P.pdf Miranda v. City of Casa Grande, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/19/20-16905.pdf Rob Johnson, https://ij.org/staff/rjohnson/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.c

How can the government encourage us to keep our trees? In all kinds of ways, but not through mandating the replanting of trees regardless of the landowner’s mitigation efforts. At least that’s what Wesley Hottot reports the Sixth Circuit said last week. There’s also a little excessive fines talk, which is worth your time as Wesley is kind of “the excessive fines guy.” He’s also a birdwatcher, which comes in handy in this tree case. Meanwhile, there’s some trouble on the sidewalks of New York, especially as it relates to a federal statute protecting “places of worship.” Dan Rankin of IJ tells us the Second Circuit thinks that might be many locations, but not a sidewalk. There’s also some Commerce Clause talk and what’s a “substantial effect” on commerce these days. F.P. Development, LLC v. Charter Township of Canton, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0240p-06.pdf Jingrong v. Chinese Anti-Cult World Alliance, Inc., https://www.ca2.uscourts.gov/decisions/isysquery/e636d947-d9e2-44a4-9967-bbad7fe70

What did Alexander Hamilton tell the Marquis de Lafayette on July 21, 1780? Probably not that his letter would be the subject of a civil forfeiture case. Yet that came to pass in the First Circuit, and IJ attorney Bob Belden explains why it turns out the family that owned the letter were throwing away their shot. Meanwhile in the Second Circuit a fire on a movie set turns into a First Amendment retaliation claim. Kirby Thomas West joins us not to warn of the dangers of shouting fire, but what a fire chief who is your boss might do to you if you speak up on other topics. Specht v. City of New York, https://www.ca2.uscourts.gov/decisions/isysquery/69832f88-a75b-4fd5-b4ef-89041b7ff601/1/doc/20-4211_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/69832f88-a75b-4fd5-b4ef-89041b7ff601/1/hilite/ United States v. Letter from Alexander Hamilton to the Marquis de Lafayette Dated July 21, 1780, http://media.ca1.uscourts.gov/pdf.opinions/20-2061P-01A.pdf Kirby Thomas West, https://ij.org/staff/kirby-thomas-

It’s taken five years, but the clients of IJ senior attorney Paul Avelar can now finally get their day in court thanks to a ruling in the Ninth Circuit. Paul joins us to explain why it takes so long to just try and vindicate your rights, and how Arizona’s (thankfully former) civil forfeiture system allowed prosecutors to keep people’s property over and over again, including, at first, his client’s car. Meanwhile things got SALT-y in the Second Circuit where whatever you think about the state-and-local-income-tax deduction the court says it’s not constitutionally guaranteed. Former New Yorker and IJ attorney Will Aronin uses some family-friendly yet SALT-y language to describe the state’s high taxes and it and a few other states’ successful efforts to have standing, but unsuccessful attempts at anything else. Click here for transcript.

Frustrated with the deeply complicated issue of homelessness on Los Angeles’s skid row, a district court took the law into its own hands and ordered a lot of stuff to happen. One problem (of many) with that was the plaintiffs didn’t ask for the stuff. So it wasn’t too hard for the Ninth Circuit to reverse, as Jeff Rowes explains. He and his colleague Diana Simpson also discuss their own work on homelessness issues at the Institute for Justice and how the law often prevents small solutions to a very large problem. Diana also explains why you’re unlikely to have an insurance policy that covers the pandemic, as a colorful Sixth Circuit opinion tells us about a usually colorless subject. Finally, your host learns that asteroids actually have killed some people. IJ’s Fall 2021 Legal Intensive in Chicago, https://ij.org/opportunities/students/legalintensive-fall2021/ LA Alliance for Human Rights v. Los Angeles, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/23/21-55395.pdf Santo’s Italian Café, LLC v. Acui

Mike Chase, author of “How to Become a Federal Criminal” and the man behind the @CrimeADay Twitter account, joins us to lay out the Eighth Circuit’s take on Congressman Devin Nunes suing people he doesn’t agree with. IJ attorney Diana Simpson then explains how an especially talented prisoner has won two cases at the Ninth Circuit over the cold turkey tactics of his jailers. Mike also relates to us some of his experiences representing prisoners and how they often have very meritorious claims. Nunes v. Lizza, https://ecf.ca8.uscourts.gov/opndir/21/09/202710P.pdf Coston v. Nangalama, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/15/19-16450.pdf 8th Circuit’s Bizarre Ruling in Devin Nunes’ SLAPP Suit Against Reporter Ryan Lizza, https://www.techdirt.com/articles/20210915/12225347567/8th-circuits-bizarre-ruling-devin-nunes-slapp-suit-against-reporter-ryan-lizza.shtml Mike Chase, How to Become a Federal Criminal, https://www.amazon.com/How-Become-Federal-Criminal-Illustrated/dp/1982112514 Diana Simpson, h

For the fifth year in a row the Center for Judicial Engagement travels to the University of North Carolina School of Law to preview the upcoming Supreme Court term. Once again there’s trivia, deep dives on a couple cases about to be argued, and a couple cert petitions. Professor Andy Hessick battles IJ attorney Justin Pearson for top SCOTUS trivia dog and your host Anthony Sanders enjoys the first LIVE Short Circuit since the world shut down. Cummings v. Premier Rehab Keller, PLLC, https://www.scotusblog.com/case-files/cases/cummings-v-premier-rehab-keller-p-l-l-c/ City of Austin v. Reagan National Advertising of Texas, Inc., https://www.scotusblog.com/case-files/cases/city-of-austin-texas-v-reagan-national-advertising-of-texas-inc/ Mohamud v. Weyker , https://ij.org/case/federal-police-immunity-cert-petitions/ Torres v. Texas Department of Public Safety, https://www.scotusblog.com/case-files/cases/torres-v-texas-department-of-public-safety/ Andy Hessick, https://law.unc.edu/people/andrew-hessick/ Justin Pear

Ever rolled your tires to try and cover up the meter maid’s chalk mark? No, me neither . . . But even if you haven’t, you might not have to worry about tire chalk marks much longer. Josh Windham explains how the Sixth Circuit has said that’s an unreasonable search. And out West it turns out there’s so much law in Yellowstone National Park (the Wyoming bit, at least) that a camper gets out of an assault charge because of a law called the ACA (just not the one you’re thinking of). The camper didn’t commit the Perfect Crime, but Dan Alban talks about it while he’s in the district. IJ’s Will of the People Conference, https://ij.org/event/does-the-will-of-the-people-actually-exist/ Taylor v. City of Saginaw, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0194p-06.pdf United States v. Harris, https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110565817.pdf Brian Kalt, The Perfect Crime, https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110565817.pdfthe p C.J. Box, Free Fire, https://www.cjbox.net

The Third Circuit allowed a Second Amendment case challenging Robinson Township’s new zoning ordinance to proceed. Did they town change their zoning laws just to prevent a gun club from fulling opening? Possibly, we’ll have to wait and see. But in the meantime, Andrew Ward walks us through this decision exploring just which level of scrutiny applies to Second Amendment challenges. And there was a very colorful dissent in the Ninth Circuit from Judge VanDyke. Patrick Jaicomo explains this dissent and its problems with the Ninth Circuit’s binding dicta rule. Drummond v. Robinson Township: https://www2.ca3.uscourts.gov/opinarch/201722p.pdf Ford v. Peery: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-15498.pdf IJ’s Conference on the Will of the People: https://ij.org/event/does-the-will-of-the-people-actually-exist/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.c

Usually a “chill” on your freedom of speech is the easiest constitutional injury to prove. But in the Tenth Circuit it seems if you speak too much you’re not “chilled,” and therefore not “injured,” even if you’re breaking an unconstitutional law. Adam Shelton walks us through this chilling brain teaser. Meanwhile, when is competition “unfair”? Alexa Gervasi explains that in Massachusetts it was not unfair for Uber to compete against taxicabs when its own right to operate was, shall we say, a grey area. Plus, some nostalgia for the halcyon days of 2013 when getting in a ridesharing car was something you didn’t tell your mother. Click here for the transcript.

More on two of America’s favorite subjects this week. Josh House rejoins us as we analyze six separate opinions about one football coach. Josh last came on in the spring when the Ninth Circuit said the coach didn’t have a prayer. Although that ruling stands for now, a number of judges recently exercised their freedom to speak differently. And maybe it’s because of the name, but there’s a lot of Second Amendment law firing out of the Second Circuit. Adam Griffin explains how the court was on target in a case about individual versus collective rights. Transcript: https://ij.org/wp-content/uploads/2021/08/Short-Circuit-185_otter.ai-002-FINAL.pdf Kennedy v. Bremerton School District, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/19/20-35222.pdf (en banc) Kennedy v. Bremerton School District, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/18/20-35222.pdf (panel decision) Henry v. County of Nassau, https://www.ca2.uscourts.gov/decisions/isysquery/bd83884e-0f7c-40bf-8012-74caac7b31d8/9/doc/20-1027