Short Circuit

Is a “fine” a “fine”? No, not at all, and therefore it can’t be “excessive.” At least that’s the IRS’s position. Thankfully that argument was rejected in a recent Eleventh Circuit case about a taxpayer who failed to file some forms and was subsequently fined—yes, fined—millions of dollars. IJ’s Sam Gedge explains this story and what fines the court thought were excessive and were not. We also look at the Ninth Circuit and an odd rule (that only exists there) which turns dicta into law. Jacob Harcar of IJ provides the holding and some well-reasoned portions of his opinion as well. Further, as a special treat, Jacob tells us of some work he’s done on legislative immunity and Reconstruction. Plus, do you know the difference between an acronym and an initialism? Whatever it is, we hope you won’t say the two flirted excessively. U.S. v. Schwarzbaum Stein v. Kaiser Foundation Health Plan Gorsuch dissent in Toth v. U.S. denial Timbs v. Indiana Short Circuit episode on dicta in 9th Cir. Jacob’s Sect

With less than two weeks before America’s general election it’s time for our biennial dive into election law! A whirlwind tour of election decisions from the federal courts of appeals with a wide-ranging look at the legal disputes that arise before (and while) Americans cast their ballots. To guide us through the process we called upon Minnesota (and North Dakota) election law practitioner David Asp. He tells us what it’s like practicing in this “seasonal” specialty and what opportunities there are for attorneys to jump in and get courtroom and appellate experience. Then we dig into a Sixth Circuit case about foreigners and campaign contributions, a Ninth Circuit opinion about voter rolls, a Fifth Circuit decision on ballot collection, back to the Sixth Circuit for a flurry of opinions about RFJ Jr.’s quest to not be on a ballot, and finally to the Minnesota Supreme Court for what the heck “learned in the law” means. But we begin with the question of whether all that much has changed in politics in the last 1

When it comes to the law, it’s the responsibility of the government. After all, that’s why we have a government, right? Well, it seems the government is responsible for enforcing the law . . . until it would rather not. This week we have a pair of cases where different governments have wriggled out of their enforcement responsibilities in an effort to avoid a lawsuit. And in each case it worked. First, Erica Smith Ewing of IJ tells us of a rarity in the federal courts of appeals: A Contracts Clause lawsuit that was successful—at least, it was successful in stating a Contracts Clause claim. Later on, however, the city of New York “remembered” that it didn’t actually enforce the law in question—a pandemic-era rent-collection abatement—which lead to the plaintiff landlords losing their standing. There’s a silver lining for them—but it’s very much a lining. Then we’re off to the Tenth Circuit where IJ’s Paul Sherman explains Utah’s online age verification law and how the state designed it to only be enforced by p

For the 8th year in a row Short Circuit travels to the University of North Carolina to preview the Supreme Court’s new 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 joined by IJ attorney Ben Field. 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 and a couple cert petitions that the Court has been considering. You’ll learn about the First Amendment’s history with the Internet, applications of the First Step Act, where things stand with speaking occupations, and the twilight status of the Bivens doctrine. Free Speech Coalition v. Paxton Hewitt v. U.S. 360 Virtual Drone Services v. Ritter Henning v. Snoden

“Twelve” isn’t just another word for a dozen or the original number of Apostles. It’s how many jurors sit on a criminal jury. Well, except in some cases. And one of those cases, from the Second Circuit, IJ’s Bob McNamara details to us this week. A New York man was prosecuted for making death threats to various broadcasters and politicians. Along the way the jury whittled down to 11 members. Which then found the defendant guilty. The Second Circuit said it’s all fine because it seemed clear the guy did it. But, as Bob explains, “juries do stuff.” Then it’s off to the Fifth Circuit for some different views of video. Anya Bidwell of IJ relates that one particular video demonstrates—or does it?—that a police officer may have been out of line and violated the Fourth Amendment with excessive force. All three judges on the panel write a take about a roadside encounter between police and a driver’s boyfriend that was imperfectly—or was it?—captured by a video camera. Two judges think this means the whole question sho

“Effects” isn’t a word that most people associate with “my stuff” these days. But that’s what it means in the Fourth Amendment. Our “effects” are protected from unreasonable searches and seizures just as much as “person, houses” and “papers.” Unfortunately, the D.C. police don’t agree and have been seizing people’s phones and other items and not giving them back even when they have no intention of prosecuting the property owners. Well, that may be changing because the D.C. Circuit recently issued a major decision recognizing that a “seizure” is ongoing as long as the police have your stuff in their possession. Michael Perloff of the ACLU argued and won the case and he joins us to discuss its ramifications. Several other circuits have gone the other way on the question, making it a prime issue for another court in Washington D.C. Also, Rob Frommer of IJ’s Fourth Amendment Project treats us to a qualified immunity/Fourth Amendment opinion from the Ninth Circuit about someone who was severely injured by foam bat

Economic liberty is in poll position. Or at least it won an early round victory in North Carolina. IJ attorney, and North Carolinian, Josh Windham reports on a recent ruling of the North Carolina Supreme Court about a racing track and the right to earn a living. Josh brings his knowledge of state constitutions and litigation tactics to tell this tale that began in the dark days of the COVID-19 pandemic. It also has a sovereign immunity angle that fans of IJ’s Project on Immunity and Accountability may enjoy. Then we have a special treat for fans of pizza—and, of course, that’s essentially everyone. What doesn’t include everyone, though, are those who enjoy having foreign websites track everything we do on our computers. Will Aronin of IJ tells us of a Third Circuit case that examines how various companies track users’ online activity while on the companies’ websites—including users ordering pizza. Is that tracking enough to mean you can sue the company in Pennsylvania? Well, we don’t know because the court di

A special edition of Short Circuit Live where the Institute for Justice teamed up with the Texas Observer for a conversation about how local governments increasingly are retaliating against those who call them to account. The event took place in Austin, Texas on September 4, 2024, and was subtitled “Picking the man and then searching the lawbooks: How local governments turn to their criminal codes to silence critics.” It brought together the Observer’s Gus Bova, IJ’s Anya Bidwell, Texas journalist Jason Buch, and Texas attorney David Gonzalez. The discussion mentions several high-profile examples of local-government retaliation from the last few years, including IJ’s Gonzalez v. Trevino and a case that the Supreme Court may soon also hear, Villarreal v. City of Laredo. The confluence of journalists, a civil rights lawyer, and an attorney who has worked as a Texas special prosecutor make for a wide-ranging exploration that we hope you enjoy. Gonzalez v. Trevino case page Villarreal v. City of Laredo en b

An extremely sad case, especially for man’s best friend (dog-lover discretion is advised!), and a happy case for property rights. First, the Center for Judicial Engagement’s new Assistant Director, John Wrench, brings us the latest in wild Fifth Circuit qualified-immunity stories with a domestic disturbance check gone bad—so bad that an officer is alleged to have shot two non-threatening dogs. A silver lining is that the grant of qualified immunity was reversed on appeal. Then Betsy Sanz hops aboard to ride the rails. She tells us of the Pennsylvania Supreme Court’s recent decision that the word “railroad’ doesn’t magically turn everything it touches into a public use. It’s a big Fifth Amendment takings case that prevented the use of eminent domain to build a railroad that would only service one party. It also brings to light another railroad-takings case that IJ is litigating in Georgia. Ramirez v. Killian Wolfe v. Reading Blue Mountain Bound By Oath episode on Pennsylvania and coal IJ’s Georgia

Part of the job description of a journalist is talk to public officials, gather information, and report on it. Unfortunately, that seems to be a crime in Texas. An unconstitutional crime, to be sure, but enough of a crime that the Fifth Circuit said there was qualified immunity for officers who arrested a citizen journalist for asking question of a source within a police department and reporting what she heard. JT Morris of the Foundation for Individual Rights and Expression (FIRE) joins us to discuss this loooooong running case and a pending cert petition at the Supreme Court. It involves the First Amendment, freedom of the press, the Fourth Amendment, arrest warrants, retaliation, and all kinds of Fifth Circuit drama. Then we move to the Eleventh Circuit where our own Anya Bidwell reports on an extremely strict version of qualified immunity that protected a forcible strip search made of a visitor to a prison without any probable cause. There are also concurrences disagreeing with the circuit’s own caselaw,

One reason we have a Fourth Amendment is to be free from general warrants, permission slips for the government to search, well, everything. Is that what newfangled “geofence warrants” are? The Fifth Circuit thinks so, which is why it found one to be unconstitutional. Your host brings you the tale of a postal heist where the bandits were only found through a search of Google accounts—592 million of them. But was it a “search” in the first place? We hack into this high-tech matter. But first IJ’s Kirby Thomas West provides an example of special rules for government attorneys. The lawyers for some defendants in a civil rights case didn’t want to use qualified immunity, at least not before trial. But then the trial judge ordered them to. And then, by golly, they won. Was that, um, fair? Seems the Eighth Circuit thought it was hunky dory. Kirby, who has experienced much-less-forgiving judicial treatment while litigating on the other side, begs to differ. Webb v. Lakey U.S. v. Smith U.S. v. Chatrie

Anyone who has ever grown enraged after seeing their comment deleted from a Facebook page will find solace in this week’s episode. We examine a free speech tussle between the National Institutes of Health and the animal rights folks at PETA. IJ’s Michael Soyfer brings us this First Amendment case from the D.C. Circuit which said that blocking certain hashtags isn’t necessarily right even when the posters say mean things. But before that we look at interstate commerce and truckers. The Fifth Circuit isn’t happy about its interstate commerce caselaw, but it’s not the Wickard v. Filburn variety concerning the Constitution. No, it’s an overtime showdown between the Motor Vehicle Carrier Act and the Fair Labor Standards Act. Time travel with us to the days of Schechter Poultry v. United States with your guide, fresh off his pandemic hobby escapades, IJ’s Suranjan Sen. Escobedo v. Ace Gathering PETA v. Tabak Story of the Schechter butchers

A most unusual Fourth Amendment case this week: One cop claims there was a seizure while another says there was not. They disagree because one cop is suing the other. Guess which cop wins? It’s the one with the dog—named Thor—that got a little too eager in a cemetery while in hot pursuit. But apparently didn’t “seize” the other by mistakenly tearing into his leg. Dylan Moore of IJ brings us this canine caper from the Eighth Circuit. Then your host takes you to the en banc Fifth Circuit and tells a twisted tale of Jim Crow, felon disenfranchisement, the Eighth Amendment, and “evolving standards.” Historians of the 1890 Mississippi constitutional convention may want to take notice. Irish v. McNamara Hopkins v. Watson Short Circuit on Section 2 of 14th Amendment Puppy and I

Emphasizing the justice in our name, IJ recently launched a new project to fight back against zoning laws, Zoning Justice. We’ve been challenging overreaching zoning for years, but there’s now a new emphasis on how it inhibits people from providing housing and pursuing the American Dream. Joining us to talk about this new venture are the project’s leader Ari Bargil and IJ attorney Joe Gay. Joe tells us about some recent zoning reforms in Montana and an amicus brief he filed in the state’s supreme court supporting them. It recounts the history—and harms—of zoning and how allowing everyone to do more with their property doesn’t violate anyone’s constitutional rights. Then Ari tells us of an all-too-typical zoning dispute in Philadelphia where the neighborhood opposition to an attempt to rehab some apartments was anything but brotherly. Zoning Justice Project Amicus brief in MAID v. Montana In Re: 3401 Sky Properties, LLC Village of Belle Terre v. Boraas Bound By Oath episode on zoning (1 of 3)

It’s time for Short Circuit to head for the hills. Two cases from the mountainous Tenth Circuit, one on the Fourth Amendment and another on the Bivens doctrine. First, Bob Belden of IJ saddles up for a 911 call that may have led to the wrongful arrest of a Super Bowl reveler. What is enough evidence from an anonymous tip to stop a supposedly shady suspect? Not as much as was in a parking lot full of Broncos fans. Then your host gives an update on a terrorist who has been in prison for quite some time. He seems to have a good claim against his prison guards. But does the method for bringing that claim even still exist? And whether or not it exists can the government immediately appeal when a court says it does? It’s a quantum-mechanical question. U.S. v. Daniels Mohamed v. Jones In Search of Schrödinger’s Cat Free Fire by C.J. Box The Perfect Crime

We join forces with the law firm of Hogan Lovells to bring you some “legal mumbo jumbo”—an episode recorded at their offices in Washington, D.C. before a gaggle of law students. Joining your guest host, IJ’s Ben Field, are IJ attorney Kirby Thomas West plus two of Hogan’s finest, appellate attorneys Sean Marotta and Danielle Desaulniers Stempel. Danielle begins things with a Fifth Circuit opinion about silencers and standing. Apparently the plaintiffs were a little silent about any harms that have befallen them. Then it’s on to Sean for a lesson about what makes the world go round. Funnily enough, it’s not money but shipping containers. That is, as the D.C. Circuit recounts, until a federal agency starts tacking into shipping contracts. Finally, Kirby brings us up to the First Circuit for a story of TikTok, retaliation, and judicial opinions that maybe aren’t as funny as their authors think they are. Paxton v. Dettelbach Evergreen Shipping Agency v. FMC Macrae v. Mattos Short Circuit episode on st

This episode is a First Amendment 2-4-1. We begin with James Dickey of the Upper Midwest Law Center (and former golf pro). James tells us about a recent case he argued at the Eighth Circuit concerning the “government speech” doctrine. If a public school lets some people—but not others with a different viewpoint—come in and hang posters is that just fine because it’s the “government” speaking? In keeping with some recent Supreme Court rulings, the court said no, letting the case go forward. Then IJ’s campaign finance guru Paul Sherman steps forward to tease out a confusing opinion of the Second Circuit about a New York law that allows big contributions to big political parties but much smaller contributions to much smaller groups. It seems the reasoning is that major parties are above suspicion. Can that be right? Paul doesn’t think so. Cajune v. Ind. Sch. Dist. 194 Upstate Jobs Party v. Kosinski Huizenga v. Ind. Sch. Dist. 11

The Fourth of July holds a central place in American history. The day patriots threw off the shackles of King George. Which is why it’s a little ironic that this year it’s the day the British are holding a general election to democratically chose their government. To cash in on this coincidence, this episode highlights some recent cases that reflect the heritage of 1776 and also Anglo-American relations of the present day. And, breaking our usual mold, we start with a case from the Supreme Court, SEC v. Jarkesy. Rob Johnson of IJ joins us to explain why this case is such a big deal for the right to a jury trial, and how the preservation of that right was one of the causes of the Revolution itself. Then, Andrew Ward of IJ tells a much more modern story of a burglary of a British diplomat’s Texas home. The burglar was caught and plead guilty. But he wasn’t pleased with a limitation on his right to “drink excessively.” Andrew tells the whole Fifth Circuit story, and also provides education on what exactly a “con

Everybody knows that the government can’t take property from you just because it doesn’t like you. But what if the government says it actually wants to turn the property into a park even though everybody knows it’s because it doesn’t like you? Recently the Second Circuit said that was A-OK. We had on IJ’s Jeff Redfern, an attorney in the case, to talk about this example of eminent domain abuse and how it’s now potentially heading to the Supreme Court. It involves a family that wanted to build a hardware store and a town that did everything it could to stop them. After that we hear from Jason LaFond, a Texas litigator with some Texas-sized stories. Especially one from the Supreme Court of Texas, which recently ruled on whether it violated the Texas Constitution for the state legislature to get rid of some claims related to pandemic shutdowns and lost tuition. The case gets into originalism in state constitutions, how different constitutions in the same state relate to each other, and the continuing fallout of

Is “perceived speech” protected by the First Amendment? That straightforward question goes in a very complicated direction when a truck driver is fired from his government job. Christie Hebert of IJ joins us to explain this highly confusing tale from the Tenth Circuit. Then it’s pass-the-popcorn time with some Fifth Circuit drama, served up by IJ’s Rob Johnson. We heard in a recent episode about the objection to a transfer of venue in a challenge to a new rule about credit cards. Well, that same matter is already back at the Fifth Circuit concerning another attempt to transfer venue, replete with more intra-circuit squabbling. We also discuss forum shopping when it comes to nationwide injunctions. Avant v. Doke In re Chamber of Commerce (June 18, 2024) Short Circuit 319 Much Ado, Act III, Scene 1