Short Circuit

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

On a special Short Circuit we look at the Constitution, and the constitutional history, of the Golden State. With two state constitutions and conventions in its history, and a multitude of ballot measures amending the state’s highest law, the story of the California Constitution is a turbulent, dynamic, and fascinating look at how constitutions get made in this country. Joining us are two experts who run the California Constitution Center at the University of California at Berkeley, Dr. David Carrillo and Stephen Duvernay. We also discuss how to research a state constitution, what resources are available online to both litigators and scholars, and how useful those materials might turn out to be. Transcript: https://ij.org/wp-content/uploads/2021/08/Short-Circuit-184_otter-FINAL.pdf IJ’s Conference on the Will of the People, https://ij.org/event/does-the-will-of-the-people-actually-exist/ California Constitution, https://law.justia.com/constitution/california/ California Constitution Center, https://www.law.be

The Supreme Court has said a “search” occurs when the police invade your “reasonable expectation of privacy.” So what is a “reasonable expectation” to be free from video surveillance in a world where everyone has a camera, everywhere? Rob Frommer tells us the Seventh Circuit says there basically is no such thing as long as what you’re doing can be seen from a public place (or in this case, three cameras mounted on a utility pole for 18 months). But the court isn’t happy with the result and utters a cry for help. Also, have you ever had to fill out forms that don’t make any sense? Ben Field joins the podcast to tell the tale of what forms you need to lose your U.S. Citizenship, and how it’s difficult to sign them from federal prison. Transcript: https://ij.org/wp-content/uploads/2021/07/Short-Circuit-183_otter.ai-FINAL.pdf United States v. Tuggle, http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D07-14/C:20-2352:J:Flaum:aut:T:fnOp:N:2733467:S:0 Farrell v. Blinken, https://www.cadc.usc

Today we think of the Equal Protection Clause as requiring equal treatment of the laws. But in addition to anything else it covers, at its core it’s supposed to protect, well, equal protection. Yet if you bring a claim that you’re not being protected equally the courts generally have little to offer. However, civil rights attorney Laura Schauer Ives just won an appeal at the Tenth Circuit in a tragic case where the court did take “protection” seriously, denying qualified immunity to police officers who failed to protect a woman from her stalking ex-partner. She joins us to discuss the victory and its wider impact. Also, what’s a “closely-regulated industry?” That term is often used to deny businesses some of their Fourth Amendment protections, and the Ninth Circuit recently ruled that massage parlors qualify. IJ’s Josh Windham joins us to analyze whether this is becoming an exception that swallows the rule, i.e. the rule that the government come back with a warrant. Click here for transcript.

It’s not often that we get three different appellate opinions on the same issue in one week. But recently the Fifth Circuit (twice) and the Tenth handed down their thoughts on mandatory bar associations and the First Amendment. Those are groups that lawyers in some states must join—and pay for—in order to work as licensed attorneys. The Supreme Court has said a lot of things over the years on whether these kinds of requirements are constitutional, overruling itself but also not overruling itself at the same time. What do you do with that confusing precedent if you’re a lower court federal judge? IJ attorney Rob Johnson joins us to walk through who now does—or does not?—have to join their state bar association, and how all of this may (quickly?) make its way back to the Supreme Court. Transcript: https://ij.org/wp-content/uploads/2021/07/Short-Circuit-181.pdf Schell v. The Chief Justice, https://www.ca10.uscourts.gov/opinions/20/20-6044.pdf McDonald v. Longley, https://www.ca5.uscourts.gov/opinions/pub/20/20-5

The Fifth Circuit is not boring. In just one week they served up enough qualified immunity cases to fill an entire episode, and then some. Nicolas Riley of Georgetown’s Institute for Constitutional Advocacy and Protection joins us to discuss a case he litigated where the circuit failed to apply the Fourth Amendment to some rather un-Fourth Amendment friendly behavior by school officials. IJ’s Anya Bidwell then sends us in the other direction where the circuit denied qualified immunity to a pair of paramedics who refused to help a prisoner, and we discuss whether the Supreme Court’s recent tea leaves pushed it in that direction. Finally, we take apart an en banc denial where a majority of the circuit most definitely is not reading those tea leaves—although Judge Willet may be in the form of a telegraph message. Transcript: https://ij.org/wp-content/uploads/2021/07/short-circuit-180.pdf J.W. v. Paley, http://www.ca5.uscourts.gov/opinions/unpub/19/19-20429.0.pdf Kelson v. Clark, http://www.ca5.uscourts.gov/opini

Something that is not the bee’s knees is when the county mosquito sprayers forget to tell you to cover up your bees so they don’t get murdered. When the bee farmers sue, is that killing a taking under the Fifth Amendment? Jeff Redfern comes on to explain how the Fourth Circuit said no, but along the way made it easier for property owners to bring takings claims in other cases. And can federal employees go to court so they can feel free to Tweet #Resistance? Not any more, and perhaps not ever, as Adam Shelton tells us of another Fourth Circuit opinion. Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-179_otter.ai-FINAL.pdf AFGE v. Office of Special Counsel, https://www.ca4.uscourts.gov/opinions/201976.P.pdf Yawn v. Dorchester County, https://www.ca4.uscourts.gov/opinions/201584.P.pdf Cert petition in Lech (tank case), https://ij.org/wp-content/uploads/2019/11/Lech-rehearing-petition-filed.pdf Jeff Redfern, https://ij.org/staff/jeffrey-redfern/ Adam Shelton, https://ij.org/staff/adam-shelton/

If I express myself through designing a new house, is that expression protected by the First Amendment? Last week the Eleventh Circuit avoided that question through a couple dodges for which Paul Sherman takes it to task. And why do defendants enter into plea deals? We often don’t know, but Justin Pearson tells us about an Eighth Circuit case where a man may have had little choice to take one after (perhaps unwittingly) funding terrorist groups in Syria. Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-178_otter-FINAL.pdf Burns v. Town of Palm Beach, https://media.ca11.uscourts.gov/opinions/pub/files/201814515.pdf United States v. Harcevic, https://ecf.ca8.uscourts.gov/opndir/21/06/192755P.pdf Justin Pearson, https://ij.org/staff/justin-pearson/ Paul Sherman, https://ij.org/staff/psherman/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stit

How many pop culture references can a judge make in an opinion before we start to cringe? “Dean” of #AppellateTwitter Raffi Melkonian joins us to give his thoughts on a recent Ninth Circuit case that perhaps broke the all-time record for “coolness,” perhaps to such an extent that it got in the way of its own underlying legal argument. Plus, Diana Simpson looks at another case from the Left Coast, trying to thread the needle on whether “Your right to remain silent” is a “constitutional right” or merely a “constitutional rule.” What’s the difference? We’re not really sure. Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-177_otter.ai-FINAL.pdf Tekoh v. County of Los Angeles (en banc), https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/03/18-56414.pdf Tekoh v. County of Los Angeles (panel opinion), https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/15/18-56414.pdf Briseno v. Henderson, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/01/19-56297.pdf McCaughtry v. City of Red

There’s this mysterious word in English that courts love to talk about, the Notorious A-N-D. Does it, in fact, mean “and?” Or does it mean “or?” The correction interpretation of the First Step Act—and a lot of years in prison for a lot of people—ride on the answer. Wesley Hottot explains how the Ninth Circuit and the Eleventh Circuit recently disagreed on this fundamental question. And can you sue over an unsolicited text message? Alexa Gervasi tells us what the Fifth Circuit said about this question, including how it relates to a public nuisance. Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-176_otter-FINAL.pdf United States v. Garcon, https://media.ca11.uscourts.gov/opinions/pub/files/201914650.pdf United States v. Lopez, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/21/19-50305.pdf Cranor v. 5 Star Nutrition, LLC, https://www.ca5.uscourts.gov/opinions/pub/19/19-51173-CV0.pdf Justice Paul Thissen, When Rules Get in the Way of Reason: One judge’s view of legislative interpret

Can the county foreclose on your house because you haven’t paid your taxes, and then just keep the rest of your equity? In Ohio, yeah, they can. That kind of sounds like a taking without just compensation, which is why Ohio attorney Emily White joined us to talk about her recent case at the Sixth Circuit. Then Kirby Thomas West of IJ takes us “up north” where a band of Native Americans argued their land is a reservation under some often-neglected, and often-dishonored, agreements with the federal government. It’s an all Sixth Circuit, all Big Ten, property rights edition of Short Circuit. Transcript: https://ij.org/wp-content/uploads/2021/06/short-circuit-175_otter.ai-FINAL.pdf Harrison v. Montgomery County, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0103p-06.pdf Oral argument in Harrison v. Montgomery County, https://www.opn.ca6.uscourts.gov/internet/court_audio/aud2.php?link=audio/04-29-2021%20-%20Thursday/20-4051%20Alana%20Harrison%20v%20Montgomery%20County%20OH.mp3&name=20-4051%20Alana%20Harrison%20