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Short Circuit

Institute for Justice

The Supreme Court decides a few dozen cases every year; federal appellate courts decide thousands. So if you love constitutional law, the circuit courts are where it’s at. Join us as we break down some of the week’s most intriguing appellate decisions with a unique brand of insight, wit, and passion for judicial engagement and the rule of law. http://ij.org/short-circuit

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Friday · 51 min
Short Circuit 446 | SWAT Teams at the Supreme Court
Say a gaggle of police with military-grade toys fire a boatload of tear gas into a home and then run in and break a bunch of stuff, all the while looking for a fugitive with no connection to the family that lives there. Do the police have to pay for the damage? That’s an issue that’s at the Supreme Court’s doorstep in a couple of IJ cert petitions. And along with those IJ has just issued a report about how many claims are actually made against the police for the destruction of property, how many are paid, and how much the claims are. We hope you enjoy a report on the report from IJ’s Jeff Redfern, who has litigated many of IJ’s SWAT cases. (And you can download the report itself at the link below.) Then it’s on to a Sixth Circuit case out of Nashville where the city waited on a request to build an apartment building even though the zoning was fine. Nick DeBenedetto of IJ tells us this story, with a happy (intermediate) ending on bringing a takings claim. Then we finish off with more from Jeff, this time concerning a D.C. Circuit decision about a Project Veritas scheme involving fake names, hidden cameras, a claim for fraudulent misrepresentation, the First Amendment, and a reminder to get that intern to actually sign a non-disclosure agreement. RSVP for Short Circuit Live in Cambridge, Mass. on October 19! The SWAT Report: Public Benefit, Private Burden SW Nashville EB Owner v. Nashville Democracy Partners v. O’Keefe
September 11 · 53 min
Short Circuit 445 | Crazytown
Time for The Big One. So many have so many takes on the Ninth Circuit that, as part of our #12Months12Circuits series, we at IJ had to add our own. It’s the mega-circuit that encompasses all of the West Coast, much of the Mountain West, Alaska, Hawaii, and even Guam and the Northern Mariana Islands. IJ’s Paul Avelar, who lives in the circuit, and Ben Field, who clerked there, share some details and war stories about the circuit that’s just too darn big. After that they analyze a couple recent, very-Ninth-Circuit-y cases. Paul shares a sovereign immunity matter where a host of plaintiffs who like their gas stoves sued a group of Washington State officials. Unfortunately, the court said they sued the wrong folks. There’s much talk about picking the right defendants and how you sue the government and how you can’t. Then Ben brings us to California where the state requires gun shops—including a gun shop inside someone’s home—to record video and audio 24/7 and must turn it over to the government if asked. The majority of the panel thought this was all just fine from both a First Amendment and Fourth Amendment perspective. Ben and the dissent disagree. Rivera v. Sami Richards v. Newsom The U.S. Court for China
September 4 · 50 min
Short Circuit 444 | Recording the Police with Facebook Immunity
Another circuit recognizes a there’s a First Amendment right to record the police. In this case, a “First Amendment auditor” stood on a public sidewalk and recorded the outside of a police station for six-and-a-half minutes. That’s protected, says the Second Circuit. So far, so good. But, explains IJ’s Jared McClain, the fact the right exists wasn’t exactly clear to the officers who asked the “auditor” for his ID. So it was OK for them to interrogated him and arrest him when he refused to produce the ID. There’s a Fourth Amendment ruling on that as well that also doesn’t seem to make sense. Then it’s Section 230 time! Bobbi Taylor of IJ reports on an appeal Facebook took from a preliminary loss on whether it had immunity from suit. (Note: Facebook settled this case after we recorded the episode. The rest of the case against other defendants seems to still be going forward.) The Ninth Circuit rejected the appeal, ruling that Facebook and other tech company defendants may have immunity from liability but not immunity from being sued. That doesn’t allow an appeal before a final judgment in the trial court. Is that right? Some commentators disagree, as Bobbi tells us. We contrast that ruling with the fact that government officers can appeal denials of qualified immunity, unlike Meta. Also, fun fact you’ll learn from the episode: Jared and Bobbi performed the exact act from the Second Circuit case, recording the outside of a police building at dusk (for an IJ video). Luckily, no one asked for their IDs. RSVP for Short Circuit Live in Cambridge, Mass. on October 19! Massimino v. Benoit California v. Meta Techdirt piece on the Meta ruling Episode on Section 230 with Mike Masnick IJ video including a Broward County Sherif building
August 28 · 52 min
Short Circuit 443 | Irreparable Speech Harms
In our #12Months12Circuits series a nation turns its lonely eyes to the heartland. The true middle of America. The Eighth Circuit. We’re joined by true Eighth Circuit expert Aaron Van Oort, who has argued twenty-five times before that court and been a part of many other appeals. Aaron, who is based in Minneapolis, offers his advice about what makes the circuit stand out and where it’s going. He’s joined in that endeavor by IJ’s Sam Gedge, who clerked on the Eighth. Then, after some fun Eighth Circuit Facts we turn to a couple of the court’s recent rulings. Aaron discusses a recent matter he argued about noncompete contracts and financial advisors. The ruling came down to what “irreparable harm” means. As he explains, it’s important to understand that “irreparable” does not necessarily mean “irrevocable.” He also briefly shifts focus to the Seventh Circuit and shares a bit about how his old boss Judge Posner used to write opinions. Then, Sam brings us back to the Eighth and a free speech lawsuit challenging an Iowa law barring residential contractors from talking to insurance companies. What is “speech,” what is “conduct,” and what scrutiny should a court apply in a case like this are all strictly on the table. Choreo v. Lors Shamrock Hills v. Iowa NIFLA v. Becerra
August 21 · 44 min
Short Circuit 442 | Free Speech Died Here, Ask Me How
Tragedy and comedy, from the Fifth Circuit and then from the Tenth. First, Patrick Jaicomo of IJ describes how the police in Laredo, Texas mistakenly shot an innocent man. The plaintiff, who was hit in the abdomen but lived, was escaping a house where the real suspect was terrorizing his family. He grabbed the suspect’s gun, ran out of the house, held the weapon above his head and screamed “I’m not the shooter!” However, a cop claimed he didn’t hear the man and shot anyway. Patrick explains the court’s analysis and why it concluded this was not a Fourth Amendment violation—and why he sees a lot wanting in that conclusion. Then comes the comedy. IJ’s Sophia Henderson details how a library in Lawrence, Kansas instituted a policy of no signs inside the building. A patron objected and did so by holding signs—a few signs, some mere pieces of paper but one being a flag. The library repeatedly called the police and the patron make a federal case out of it. The Tenth Circuit concluded that there was no First Amendment violation. Sophia tells us that perhaps that’s the right outcome but she and the others nevertheless have questions. Sophia also provides to our YouTube viewers pictures of the actual signs from the opinion. Finally, for fans of fonts and typesetting there’s a closing discussion on why Times New Roman is terrible. Martinez v. Hinojosa Spiehs v. Morgan
August 14 · 46 min
Short Circuit 441 | Rights for Listeners
We often hear of the right to speak. But what about the right to listen? The Ninth Circuit just reaffirmed that listeners have First Amendment rights too and that, like speakers, they can challenge censorship in court. Justin Pearson of IJ reports on a case he himself is litigating on behalf of both a listener and a speaker against the federal government. The feds ban truthful information about healthy foods via its labeling laws. Justin’s clients either want to learn information about healthy foods or produce healthy foods and communicate information about them to their customers. They are challenging the ban but hit a standing roadblock along the way. Now that the Ninth Circuit said the case can go forward, however, they can finally proceed to the merits. Yet, things were a bit different in the Fifth Circuit for a pair of challenges to short-term rental bans. IJ’s Ari Bargil returns to update us on litigation that’s been running for a long time and he first discussed on this podcast four years ago. Unlike before when the results were mixed, in these recent rulings the court completely ruled for the government, allowing cities, including New Orleans, to regulate short-term rentals in highly restrictive ways, giving short shrift to property rights, property owners, and facts. Przybocki v. USDA Marfil v. New Braunfels Bodin v. New Orleans Short Circuit 235 Short Circuit 401 Bound By Oath on Penn Central Article on Penn Central’s drafting
August 7 · 49 min
Short Circuit 440 | The Mystery of Academic Freedom
Florida, man. Always fun when we touch base with the latest culture war issues in the Sunshine State. Which usually means we’re talking about the Eleventh Circuit. Which is what IJ’s Keith Neely does concerning the “Stope Woke Act,” the state’s attempt to prohibit the endorsement of certain “woke” views in, as applied in this case, its public universities. The court ruled the law was unconstitutional viewpoint discrimination when it comes to higher education. To get there, though, it had to weave its way through a confusing and somewhat contradictory set of cases about government speech, government employee speech, and academic freedom. After that we move to the Fourth Circuit where some Georgetown law students scored a victory for a Jamaican immigrant who tried to appeal an administrative decision but couldn’t because the court’s online docket system wouldn’t work and the clerk at the filing window wouldn’t take his papers. Ben Marsh of IJ, himself a Georgetown grad, details how the court ruled that such behavior isn’t on the due process up-and-up. And for fans of “where are they now,” we end with some updates on cases from Short Circuit’s past. Burey v. Blanche Pernell v. Comm. of the Fl. Bd. Ed. Jouppi v. Alaska
July 31 · 43 min
Short Circuit 439 | Adams, Jefferson, and The Declaration
Tim Sandefur joins us to discuss his latest (and tenth!) book “Proclaiming Liberty,” all about the Declaration of Independence, John Adams and Thomas Jefferson, and a whole lot more that is hard to fit into a subtitle. We discuss the “pre-history” of the Revolution from English constitutionalism and the Glorious Revolution of a century before, the role each man played in creating American constitutionalism, why the Declaration was written the way it was, and why it is “law.” Among many other issues. Proclaiming Liberty: John Adams, Thomas Jefferson, and the Declaration of Independence Tyrants and Rogues Nature’s God
July 24 · 47 min
Short Circuit 438 | The Strike Zone for Ultra Vires
If you like stories of co-workers showing up at your door at night and threatening you and your family then we have the episode for you. This happened to a federal employee in Virginia. Shaken by the experience, he and his family then sued. The thing is, because his co-workers were also federal employees, and the threats seemed to be work related, he had to use the Federal Tort Claims Act. As IJ’s John Korevec explains, that meant he had a lot of roadblocks. And while some of those roadblocks knocked out some of the claims in the lawsuit, according to the D.C. Circuit some of them survived. It’s another piece in the puzzle about how the FTCA does not allow for a lot of justice—but does let some through at times. Then Prashanta Augustine of IJ takes us out to the Tenth Circuit for a ruling on Presidential powers. Recent administrations have gone back and forth on expanding and retracting areas of federal land to be “national monuments” under the Antiquities Act. Can those decisions be challenged in court? The feds claimed sovereign immunity. But the Tenth Circuit, in a case involving the Grand Staircase and Bear’s Ears national monuments, found an exception for “ultra vires” acts. That raised all kinds of tricky (and interesting!) problems involving equitable relief, jurisdiction, and the Presidency. NOTE: After we recorded this episode the Trump Administration once again retracted the size of these monuments, mooting the Tenth Circuit matter as it currently exists but allowing for all kinds of exciting new litigation where the sides are flipped. He v. Rubio Garfield County v. Trump Update on the national monuments since we recorded
July 17 · 48 min
Short Circuit 437 | Privately Racing the Nondelegation Doctrine
An old friend rejoins the show, the Horseracing Integrity and Safety Act of 2020. It’s been trotting around the federal courts of appeals for a few years now, truing to outrun the private nondelegation doctrine. The latest showing was at the Fifth Circuit a few weeks ago. Rebecca Furdek of the Wisconsin Institute of Law and Liberty joins us to survey the field and provide the odds on what may end up being a photo finish at the Supreme Court. Then we shift from horses to zombies with IJ’s Marco Vasquez. He takes us to the Fourth Circuit where the Seventh Amendment’s jury trial right ran up against an old and increasingly disfavored Supreme Court precedent. But not disfavored enough to not control the outcome of the case. Is it “zombie precedent”? And will it remain undead for long? We address these questions before turning to the latest in our #12Months12Circuits series with another old friend of the show, the Seventh Circuit. Click here for transcript. The Horsemen v. Black Sligo Creek Ctr v. DHHS 1st HISA episode Seventh Circuit Judicial Conference episode
July 10 · 43 min
Short Circuit 436 | Retaliatory Justice
If you like the drama of local politics you’ll love this story, told by IJ’s Christian Lansinger, from the Sixth Circuit. A colorful and controversial elected official was accused of not living in the city she represented, leading to an effort to remove her. In response she did prove she “lived” there—although “barely”—and then separately sued for First Amendment retaliation. Part of her claim related back to some comments she made about going together “like cocaine and waffles” before a Confederate flag. She loses her retaliation lawsuit (quite unsurprisingly) but how the court got there could affect other, more sympathetic, retaliation cases in the future. Plus, Christian updates us on the latest on the plaintiff’s situation. Then An Altik of IJ tells us of another Sixth Circuit ruling, this one involving Ohio’s requirement that kids have permission from their parents to use social media. The three judges on the panel can’t agree on much of anything but in the end the law is upheld. The various opinions discuss standing, overbreadth doctrine, content-based restrictions on speech, and vagueness. Plus the (limited?) evidence about social media and its harms to minors. Click here for transcript. Amacher v. Tullahoma NetChoice v. Yost
July 3 · 47 min
Short Circuit 435 | 1776 and Judicial Review
Happy America’s 250th! To celebrate, we’re doing things the IJ Way, tying in the events of 1776 to something that emerged a few years later and that we at IJ work with every day today: judicial review. Therefore, although we’re jumping on the bandwagon and doing an “America at 250” episode like everyone else, this one focuses on something most people aren’t talking about for the anniversary—and certainly weren’t discussing in 1776. But one thing Americans were discussing that year, in addition to how best to fight the British and declare independence, was writing constitutions. That was a new thing at the time, a new way of forming a government. It also lay the seeds for judges declaring laws “unconstitutional,” something that didn’t happen in the Old Country. IJ just held a conference on this subject and as part of that held a mock argument/moot court on a constitutional challenge under Pennsylvania’s constitution from 1776. The question was, is this new thing called “judicial review” actually a thing? Sam Gedge of IJ was part of that “case” and joins us to reflect on what he learned digging into the first principles of judicial review and what Americans in the years just after 1776 may have been thinking as they tried to figure out their new constitutional reality. Then your host shares the outline of a draft article on how American courts have used the shadow of the British parliamentary system when justifying judicial review. They did it a lot for the first century or so of the country’s history but since then not so much. Why is this? And does it have something to do with America becoming “Top Nation” as the sun slowly set on the British Empire? Fans of the ’85 Bears may enjoy an analogy. As might Dan Moreno. Click here for transcript. Video of the Mock Argument on Pennsylvania’s 1776 Constitution Other video from the same conference Vanhorne’s Lessee v. Dorrance Draft article “Parliament’s American Shadow” 1066 and all that The Super Bowl Shuffle, aka The British Empire
June 26 · 45 min
Short Circuit 434 | The Police Are the Emergency
If someone sues you for money you get to defend yourself in court. Right? Not really if you sign a confession of judgment, a contract where you waive defenses to a later collection action. A county in Iowa had a policy of making prisoners sign confessions of judgment when they were released if they owed money to the jail. That seems like it might have due process problems. Does it? Well, we don’t know yet but the Eighth Circuit recently ruled that the released prisoners have standing to move forward in their case. Michael Soyfer of IJ takes us through this dispute where IJ and a number of other groups filed an amicus brief. Then, McCarley Maddock of IJ reports on a bizarre set of facts in Madison, Wisconsin where a man may—or may not—have fired shots after an argument with his wife. The police then come to his house, with a Bearcat, and begin a standoff where he, it seems, was fast asleep inside. Things go bad for the man after that, resulting in an arrest and later a federal lawsuit. That then fails because of qualified immunity, according to the Seventh Circuit. Click here for transcript. Roberts v. Thompson Jackson v. Madison Bound By Oath
June 19 · 47 min
Short Circuit 433 | Bond Hearing Without Lawyer
After an arrest, is the decision on whether a defendant can get out on bond while their prosecution proceeds a “critical stage’? In the Eighth Circuit it’s hard to know because the court threw out a case asking that question due to a lack of standing. IJ’s Jimmy Odell, a former public defender, details this challenge to an Arkansas court’s practice of not appointing public defenders until after the bond decision has been made. It raises highly important Sixth Amendment questions but also illustrates how constitutional issues sometimes are hard to squarely put before a judge. Then your host discusses a recent Fourth Circuit case where the right to a jury trial under the Seventh Amendment intersected with a West Virginia “public nuisance” lawsuit on the opioid crisis. You wouldn’t expect a lawsuit against a massive pharmaceutical-distribution company to rely on almost a thousand years of history yet the ancient distinction between the common law and equity is at the heart of the matter. Plus, it’s time for the Sixth Circuit in our #12Months12Circuits series. Farella v. Benton County Dist. Ct. In re Express Scripts Bound By Oath podcast Episode on the Sixth Circuit
June 12 · 44 min
Short Circuit 432 | Moth-Eaten Precedent
A wild, and tragic, story from the Fifth Circuit with a bit of good (yet confusing) news at the end. IJ’s Diana Simpson tells us of a woman who feared her ex-boyfriend was going to harm her, so she called his probation officer. The officer assured the woman that they’d arrest him but then didn’t bother to do so. That resulted in a brutal assault. Does she have a claim against the federal government under those facts? Turns out she does, which we learn after bobbing and weaving around the various exceptions to the Federal Tort Claims Act. Then, Tate Cooper of IJ brings us a sighting of “zombie precedent”—or is it “moth-eaten precedent”?—from the Fourth Circuit where a college student who wanted to study to be a preacher couldn’t get a scholarship. The court looks at three recent big religious liberty cases at the Supreme Court, including two IJ cases, and concludes that despite them an older precedent still controls. Click here for transcript. Morris v. U.S. Hall v. Fleming Bound By Oath episode on the FTCA Locke v. Davey
June 5 · 52 min
Short Circuit 431 | Hard but not Impossible
We welcome back a treasured many-times guest, the first time since he’s left IJ. Brian Morris served in our merry band of libertarian litigators for many years before recently moving to Chicago. He rejoins us to detail a recent Fourth Circuit decision that his now-colleagues litigated about making right a pair of wrongful convictions where two brothers spent almost 20 years behind bars. The case involves hearsay and how the testimony of a long-dead witness can be used in a later civil rights lawsuit. But before all that Brian does what he’s done on Short Circuit many times before: Pick the winners at the racetrack. And that’s not all the drama for one show. IJ’s Anya Bidwell tells us the latest bad news about suing federal officials, where someone who claimed the IRS unconstitutionally audited them was left out in the cold by the D.C. Circuit. Boris Pasternak readers may feel a connection. McPherson v. Patton Ray v. Priver Link for Chicago FTCA conference
May 29 · 47 min
Short Circuit 430 | Stateless in Seattle
In the wild days of June 2020 you may remember how a group of protestors took over a few city blocks in Seattle, and how the police simply abandoned the area for a few weeks. That meant some businesses in that area suffered property damage and a massive loss of revenue. Now, years later, the businesses’ claims for damages were just ruled on at the Ninth Circuit. How did they do? Not well. As IJ’s Robert Fellner explains, there is no duty for the police to protect you from the crimes of others. We explore whether that really describes what happened in the CHOP zone. And before that, Daniel Nelson of IJ details a Fourth Circuit ruling about a Native American tribe’s attempt to recover the remains of two boys who died over a century ago. The boys were forcibly taken from their families and put in a “reeducation” school in Pennsylvania that then led to their deaths. Today, their remains are on U.S. Army property. What responsibility does the federal government have to the tribe to return the remains under the Native American Graves Protection and Repatriation Act? The majority says in this case the tribe wins but the larger issue remains quite complicated. Click here for transcript. Winnebago Tribe of Nebraska v. US Army 3PAK, LLC v. Seattle DeShaney v. Winnebago Cnty.
May 22 · 59 min
Short Circuit 429 | A Fifth of Circuit
In our #12Months12Circuits series it’s time to drink an entire Fifth. Now, regular listeners will be very familiar with the Fifth Circuit’s waters and may hesitate from such an undertaking. But true fans of the federal courts of appeals should be pleased, as we take an even closer look than we have before at the ins-and-outs of the federal circuit for Louisiana, Mississippi, and Texas. To help us we welcome on Jessica Underwood, a former Fifth Circuit clerk and now an attorney in Austin, Texas. She reports on a recent Fifth Circuit case on the False Claims Act, explains what the FCA does, and how it accounts for billions of dollars in litigation. In addition to discussing the court’s analysis of what makes for a proper FCA claim, Jessica digs into a concurrence that argues the FCA might be unconstitutional. Then, IJ’s Christie Hebert tells us of another recent Fifth Circuit opinion, this one about a guy who made a living transmitting public data about criminal defendants to potential defense attorneys. That worked well until the court started making some of the information private. Did he have a claim? No, it turns out. But the discussion gets into how the First Amendment might apply—sometimes—to information in the hands of the government. Click here for transcript. Montcrief v. Peripheral Vascular Assocs. Martin v. Burgess IJ’s Private Enforcement case in Colorado Episode with Tom Metzloff on the split of the Fifth
May 15 · 50 min
Short Circuit 428 | Shopping With Roy Moore
You may remember Roy Moore’s 2017 campaign in Alabama for the U.S. Senate in which a controversy arose as to his behavior at the Gadsden Mall several decades before. And, further, that there were allegations that he was banned from the mall because of his friendliness with teenage girls. Include one who at one point was “Santa’s little helper.” After losing that race, Moore brought a defamation suit against the purveyors of a political ad that mentioned these mall/teenage girl allegations in a certain, perhaps misleading, order. And he won. Except, the Eleventh Circuit has now reviewed the matter and ruled that under the First Amendment’s protective standard for speech concerning public figures, Moore actually lost. Suranjan Sen of IJ details the wacky story and the mysteries of “actual malice” and defamation by implication. Then, IJ’s Prashanta Augustine details an en banc denial in the Fifth Circuit where the judges decided not to take up a challenge to the federal ban on machine guns. Even though the full court dodges the issue some judges indicate they think there would be meritorious Second Amendment challenges to the law in the future. And one even suggests there could be a Commerce Clause challenge as well. Click here for transcript. Moore v. Cecil U.S. v. Wilson (en banc denial) U.S. v. Wilson (3 judge panel) 2003 Ninth Circuit machine guns opinion
May 8 · 54 min
Short Circuit 427 | Michigander Administrations
Live from the University of Michigan we bring you the latest in administrative law with some of the top scholars and practitioners in the field. It’s Short Circuit’s first time at the home of the Wolverines and the first time we focus the law of administration—and all the constitutional angles that go along with it. We hear from Professors Nicholas Bagley and Christopher Walker of Michigan Law and from Zachary Larsen, a Michigan attorney who specializes in administrative law. The cases include rulings from the Second, Sixth, and D.C. Circuits over immigration, occupational licensing, and labor relations. Plus, we actually answer the question “what is administrative law, anyway?” Mullin v. Doe Paul v. FAA Brown-Forman v. NLRB Chenery II

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