Short Circuit

A pair of qualified-immunity-infused opinions that will light a fire and inspire parenting solidarity. First, IJ’s Tori Clark brings us to the Ninth Circuit where a suspect to an arson exercised his right to remain silent. But it wasn’t that right to remain silent. So does this other one, that the First Amendment protects, actually exist? The court has qualified doubts. Then Katrin Marquez transports us to the Eleventh Circuit where a mom is doing her best by letting her 17-year-old son pick his school and spend time at a park. And then she insults a school resource officer. Who has the mom arrested. Free range parenting rage ensues, plus a denial of qualified immunity. Moore v. Garnand Butler v. Smith Gonzalez v. Trevino case page Cert petition for JTH v. Spring Cook

It’s our Halloween special! Spooky stories from the federal courts of appeals that will keep you up at night. Erica “Specter” Smith Ewing and Bert “The Ghoul” Gall, both IJ attorneys, tell a couple recent terrifying tales from the Tenth and Seventh Circuits. First, Erica lays out how a small Colorado town repeatedly stymied a property owner with new land use regulations when the owner dared to compete with a business connected to members of the city government. The opinion features ghosts of IJ’s past and the biggest monster of them all, the rational basis test. Then, Bert outlines a lawsuit involving cable companies and cities losing out on cable fees. But the case takes an unexpected—and haunting—twist at oral argument. The worst nightmare of many of a Seventh Circuit practitioner makes an appearance: Judge Easterbrook asking jurisdictional questions outside of what was briefed. Listener discretion (at least for appellate advocates) is advised! Van Sant & Co. v. Calhan East St. Louis v. Netflix Ora

Short Circuit listeners may be familiar with occupational liberty cases brought by the Institute for Justice. But perhaps not with the kind of “through the looking glass” case we’re talking about this week, regarding a Chicago public school principal. Madison, Wisconsin attorney Joe Diedrich joins us to break apart the Seventh Circuit ruling. Then, IJ attorney Paul Sherman joins us to share his campaign finance expertise in a case that we don’t see much of anymore: a campaign finance case. It’s a Tenth Circuit opinion that updates the law a bit on campaign finance matters and also features a radio ad that Paul does his best to emulate. Biggs v. Chicago Board of Ed. Wyoming Gun Owners v. Gray Short Circuit episode on Devillier v. Texas

It’s a Short Circuit Special this week, all about that part of the Constitution that is supposed to keep away unreasonable searches and seizures—the Fourth Amendment. We’re joined by Professor Dan Epps of Washington University in St. Louis. Dan is the co-author, along with his Wash U colleague Danielle D’Onfro, of The Fourth Amendment and General Law, an article that the Yale Law Journal recently published. They make the argument there that when courts are trying to determine what’s a search or a seizure they should look to whether government officials have broken the law that the rest of us have to follow. And to figure out what that “law” is, courts should look to the general law of the United States, not the particular law of a particular state or city. And what is the "general law"? Well, listen to find out. Their piece is one of the latest arguments in an ongoing debate both at the Supreme Court and elsewhere about how the Court’s “reasonable expectation of privacy” test doesn’t work and how it should be

A special Short Circuit Live in southern California with a special guest. We welcome Ken White, a/k/a Popehat to the show, along with IJ attorneys Patrick Jaicomo and Paul Avelar. Ken digs into Missouri v. Biden, the all-over-the-place litigation from the Fifth Circuit about pressure from the Biden Administration to have social media companies remove certain kinds of speech. Ken thinks the Fifth Circuit did a good job correcting some of the excesses of the district court ruling but ultimately agrees there seems to be something unconstitutional here. He also previews where this area of law might be going. We then turn to the Sixth Circuit where Patrick tells a tale of a judge who receives immunity for doing something that judges really aren’t supposed to do—jail someone without cause after they merely sat in his courtroom. And then Paul explains how you can’t copyright “the law,” and how that came up in a D.C. Circuit case involving private publishers of industry standards. Can a lawmaker co-opt J.K. Rowling’s

We visit some friends of the Institute for Justice at the Supreme Court Litigation Clinic at Stanford Law School. The clinic allows law students to work, full time, alongside experienced Supreme Court litigators on a range of interesting cases. IJ’s Anya Bidwell recently traveled to Stanford and sat down with two clinic professors, Jeffrey Fisher and Easha Anand. They discuss the clinic and its model, cases pending at the Court this term, and arguments the clinic had at the Court last term. And, interspliced with the conversation, you’ll hear a few cuts from the actual arguments. Enjoy a fascinating look at how cases get to the Court, how they’re argued, and how the dynamics of the current Court are shaping those arguments. Dubin v. United States Glacier Northwest v. Teamsters O’Connor-Ratcliff v. Garnier Chiaverini v. City of Napoleon

For the 7th year in a row Short Circuit travels to the University of North Carolina School of Law to preview the upcoming Supreme Court term, hosted by our friends at the school’s Federalist Society chapter. IJ’s Justin Pearson serves as your host, and joining him once again, as he has for many years now, is UNC professor Andrew Hessick. They’re also joined by IJ attorney, and UNC alum, Josh Windham. First they educate us with a little trivia about cases that we’ll see this term and then dig in with a deeper preview of a couple matters the justices will soon hear argument on, plus two cert petitions that the Court may take up. You’ll learn about Second Amendment mechanics, Fourth Amendment fun, and standing quandaries. U.S. v. Rahimi Acheson Hotels v. Laufer Verdun v. City of San Diego Jackson v. Ohio

We celebrate, and dig into, two victories for property rights this week—both in IJ cases! First, IJ’s Wesley Hottot discusses the Sixth Circuit’s opinion in his clients’ challenge to Detroit’s vehicle seizure program. Wayne County, Michigan will seize cars on flimsy grounds and then wait months until the owner can even try and get the car back—unless you fork over some ransom money, in which case it doesn’t matter what the evidence is. The court found this a clear constitutional violation and ruled that owners should be able to contest these seizures within two weeks. Then, in a tale that will shock our bibliophile listeners, IJ’s Bob McNamara tells us of what the D.C. Circuit thought of the Library of Congress’s program of forcibly taking books as part of its copyright program, even when the taking of the books had nothing to do with copyright. For years small publishers have been threatened with fines if they don’t turn over books, without any compensation, and even though the books are copyrighted anyway.

Two old favorites this week: The nondelegation doctrine and the phrase “come back with a warrant.” And both from the culturally varied Sixth Circuit. First, Justin Pearson of IJ explains the wide delegation of power that Congress gave OSHA and how the courts have hand-waived away any constitutional problems with that. That’s no different in the recent Sixth Circuit case, although there is an interesting dissent. Then, Brian Morris takes us down the Ohio River to a couple Kentucky cops who won’t take no—or "get a warrant"—for an answer. It’s a defeat for qualified immunity and a lesson on what the police will do even when the body cameras are on. Allstates Refractory Contractors v. Su Reed v. Campbell County Navarette v. California Map from “American Nations”

The members of the Nashville City Council are apparently big fans of sidewalks to nowhere. In order for property owners to get a permit they have to commit to building a sidewalk along their lot line, even if there’s no sidewalk anywhere else on the street. Or, they can just hand over a chunk of cash. The Sixth Circuit said earlier this year that there’s a big constitutional problem with that. Minnesota attorney Ryan Wilson stops in to tell us about that story. But first we hear from another Minnesota attorney (sense a theme here?) David Asp about everyone’s favorite topic: ERISA preemption. No, seriously, it’s a big deal that has a big impact on our health care system. Dave walks us through a recent opinion from the Tenth Circuit that marks a split and could be on its way to the Supreme Court. Also, you’ll learn a bit about how law students clean up after themselves (not well it turns out). Pharmaceutical Care Management Assoc v. Mulready Knight v. Nashville Where the Sidewalk Ends Apply to be a

We wade into a hotly contested subject this week: standing law under Article III of the U.S. Constitution. The cases by which we address that subject are about more mundane issues—abortion drugs and transgender transitioning in public schools—so we mostly ignore them. First, IJ’s Andrew Ward takes us to the rough-and-tumble Fifth Circuit where a group of doctors are challenging the FDA’s approval of a drug, resulting in a somewhat eyebrow-raising opinion (in more ways than one, but we focus on standing) where the bounds of a cognizable injury seem more expanded than normal. Then IJ’s Kirby Thomas West brings us to the Fourth Circuit where a group of parents challenge a school district’s gender transition policy. That leads to a result civil rights lawyers are more used to—a court excusing itself on standing grounds. What does this portent for the future of standing law? We have no idea, but we speculate about original meaning. Alliance for Hippocratic Medicine v. FDA John and Jane Parents v. Montgomery

A whole lot of searching going on this week. First, Scott Regan of IJ reports on a Ninth Circuit opinion involving, among other things, an iCloud account. How does the Fourth Amendment apply to the gazillions of pieces of data stored on our phones? It depends on what the officers are searching for, and their searches. Then, in a very different search, a DC police officer asks a guy to show his waistband. Twice. And then the guy runs and throws a gun in the bushes. Were the officer’s requests seizures? Searches? Unreasonable? The evidence is suppressed but the judges disagree on a few things. Your host reports on this case from the DC Circuit. U.S. v. Pelayo U.S. v. Gamble Edgar Allan Poe’s “Eldorado”

Ari Bargil of IJ visits the Short Circuit virtual studio to take a bet. Or, rather, to tell us why some of us can keep taking bets—for now. The Fifth Circuit recently granted a preliminary injunction to participants in PredictIt, a New Zealand-based research experiment where people can bet real money about the outcomes of elections. The CFTC, however, doesn’t want to put up with this business anymore and is trying to shut it down. Nevertheless, because of the Fifth Circuit you can place your bets, but only for now. Then, your host takes us on another internationally oriented adventure regarding the difference between the “government” and the “state” of Venezuela. It’s mighty important to a group of investors in the Third Circuit. Turns out rulers can change but “sovereignty survives.” Clarke v. CFTC OI European Group B.V. v. Venezuela

If someone sends you an unsolicited text message are you “injured”? In a constitutional sense, that is. Bob Belden swoops back to the podcast to explain the latest en banc business from the Eleventh Circuit on texting, common law causes of action, Article III of the Constitution, and Office Space. Your host then gives him a quick summary of The Case of the Thorns. After that we cross the continent to the Ninth Circuit where first-time guest Christian Lansinger tells us of a dissent from a denial of en banc (dissental?) on the state-created danger doctrine. The facts are disturbing, but the issue is one that might be going to the Supreme Court soon. Drazen v. Godaddy.com Murguia v. Langdon The Case of the Thorns Professor Andrew Hessick’s standing article Fractions of a Penny

We swing from one legal extreme to another this week. From the First Amendment protecting street entertainers in Vegas on the one hand to deference to the comments of the United States Sentencing Commission on the other. First, John Wrench walks us down the Vegas Strip with a couple “sexy cops” who bumped into some undercover real cops and then ran into some real trouble. The Ninth Circuit ruled in the case in 2017 and then after a petition for rehearing was filed did . . . nothing. Until this month when it filed an amended opinion. We try and figure out what happened with that and where the case stands now. Then it’s off to the Tenth Circuit where Jared McClain explains a developing circuit split over what deference courts owe to the Sentencing Commission’s interpretation of its own rules. Despite the split, though, Jared explains how it might be a while until this area gets sorted out. Santopietro v. Howell U.S. v. Maloid Law review article on Santopietro case (by Stephen Touchton)

We talk with a couple remarkable women who achieved something pretty remarkable for some other remarkable women in Georgia: Had the state supreme court strike down an occupational licensing law that would have put hundreds of women out of work. The law mandated a license for “lactation consultants,” women who help new moms breastfeed their babies. The license required vast amounts of training, far more than necessary and far more than most existing consultants had. IJ attorneys Jaimie Cavanaugh and Renée Flaherty join us to detail how they fought a five-year legal battle to the Georgia Supreme Court—twice—and how the Georgia Constitution and other state constitutions protect economic liberty. The case provides a lot of hope for the future, and not just to those who work with babies and breasts. Jackson v. Raffensberger (1st appeal) Jackson v. Raffensberger (2d appeal) Patel v. Texas Dept. of Licensing & Regulation Ladd v. Real Estate Comm. Anthony’s old article on states and economic liberty

Scott Michelman of the ACLU-DC joins us to discuss the ins-and-outs of a recent fascinating (yet disappointing) ruling of the D.C. Circuit. Remember when President Trump had a square cleared of protesters—with tear gas—so he could take a photo op? Scott represents some of the plaintiffs in that case, whose claims against federal officials were thrown out because the court said it wasn’t enough like three cases from over forty years ago. Yet, it seems like some of the judges were reluctant about that conclusion and even offered a theory about how a different lawsuit might work in a future. Then Anya Bidwell discusses a very different result from the Seventh Circuit where a claim against federal narcotics agents could go forward because the relevant precedent, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics was against, well, federal narcotics agents. Buchanan v. Barr Snowden v. Henning Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics

It’s hard to sue the police. But it’s even harder to sue a judge. Rob Johnson returns to tell us about an Eighth Circuit case where a suit against a judge can actually go forward . . . partly. Why one way and why the other? It seems it might be all because of the robe. It didn’t help the judge that he physically put two kids in jail himself. Then we swing through the Sixth Circuit for a cop who opens a car door and hilarity (and the community care doctrine) ensues. Sound a bit like a Mickey Spillane story? You can judge for yourself. Rockett v. Eighmy U.S. v. Morgan Pennsylvania v. Dunlap (Roberts dissent)

Who knew that is was so easy to defeat qualified immunity when you sue an elevator inspector? Wesley Hottot of IJ joins us this week to spread the good news of a much more reasonable qualified immunity opinion in the Sixth Circuit than we are used to. But what about all those terrible opinions we’ve talked about in previous episodes? To figure that out maybe you’re going to have to take the stairs. Anna Goodman of IJ then brings us to the Fifth Circuit where an attorney is sick and tired of having his phone searched every time he enters the country—and also wants to get some confidential data back. Except, it turns out he’s fine so there’s nothing to worry about. Well, that’s what the court said when it sent him packing. Sterling Hotels v. McKay Anibowei v. Morgan

Short Circuit is delighted to welcome one of the “Founding Fathers” of #AppellateTwitter to our virtual studio, Sean Marotta. Sean tells the story of how it all began at a Washington, D.C. BBQ joint (leading to The Tweet from The Dean, Raffi Melkonian) and then switches to a story of discovery abuse in the Eleventh Circuit. The court tells us that the rules of civil procedure apply to the federal government. Who knew? Apparently not the Consumer Finance and Protection Bureau. Then IJ’s Diana Simpson takes aim at an emerging circuit split regarding the Second Amendment and felons. Could Jean Valjean win a case to get his gun rights back? In the Third Circuit signs point to oui, but in the Eighth Circuit he’d have to say au revoir. And in one of the Eighth Circuit cases there was an immensely short—but just as interesting—dissent. Does it have connections to biblical apocrypha, specifically the Book of Esdras? As you’ll hear, there likely is "[m]ore to come." CFPB v. Brown U.S. v. Jackson U.S. v. Cunni