Short Circuit

A couple cases this week where federal courts, at least in part, paid attention to the right things. Joined by the leaders of IJ’s Project on Immunity and Accountability, Anya Bidwell and Patrick Jaicomo, we dig into a couple recent denials of qualified immunity. Patrick discusses a case from the Fifth Circuit where a sheriff’s deputy committed some extremely heinous acts while on a “welfare check.” There’s Fourth Amendment and due process claims, and they’re addressed in a rather unusual way. Then Anya flies us out to Honolulu for a building inspector who was very hard to please. It’s a racial discrimination appeal under a civil rights law that goes back to before the Fourteenth Amendment. But first Patrick tells us of his musical exploits on a home synthesizer. Click here for transcript. Tyson v. County of Sabine Toshikawa v. Seguirant Register for Short Circuit Live in NYC on October 26! Cert petition in Minnesota CSI (IJ case) Anya & Patrick’s article on Recalibrating Qualified Immunity

Georgia criminal defense attorney Andrew Fleischman joins us to talk about a unicorn. Yes, the Eleventh Circuit recently found a state prosecutor was not absolutely immune from a civil rights lawsuit, where a witness was arrested for not testifying . . . after he actually showed up to testify. This kind of case is extremely rare, and Andrew discusses how rare, and what its effect might be in a place like the Fulton County prosecutor’s office. Then it’s off to the Fifth Circuit where Alexa Gervasi of IJ discusses an absolutely tragic case where a prisoner dies and the guards are notgranted qualified immunity. Not quite a unicorn, but also a rare beast. Also, speaking of Fulton County, STICK AROUND TO THE END. Andrew educates us on why if the Fulton County District Attorney prosecutes former President Trump the case could be removed to federal court. And, he gives a prediction about whether that will happen. Click here for transcript. Kassa v. Fulton County Moore v. LaSalle Management Co. Bound B

The First Amendment protects your right to record the police. Yes, we already knew that, said the Tenth Circuit. Um, you did? Dan Alban presents a case where an officer blatantly tried to stop a vblogger from recording him by threatening to run him over, and where the court did a few interesting gymnastics in order to say what always should have been obvious. Quality immunity hijinks ensue, but with a happy ending. Then Jeff Rowes takes us to prison in the Fifth Circuit. Was a lawsuit there moot? Not this time, but concurring judge Jim Ho explains that courts say the M-word all too often. Irizarry v. Yehia Tucker v. Gaddis Alexa Gervasi & Anya Bidwell oped Sledge Hammer! intro

A town made it illegal to hold a sign. Anywhere. Really, just holding a sign is illegal. Sound like a First Amendment violation? That’s what we thought. And that’s what David Markese of the American Liberties Institute thought too. David joins us to discuss a recent Eleventh Circuit ruling in favor of his client after they took the town of Fort Myers Beach to court. Then it’s off to Texas to settle the great question, how the heck do you pronounce amicus curiae? After settling that once and for all IJ’s Dan Rankin explains that Tyson Foods can’t move a COVID-19 case to federal court just because it might have feared it was under arrest. Click here for transcript. Glenn v. Tyson Foods, Inc. LaCroix v. Town of Fort Myers Beach Background on Universal/Nationwide Injunctions David Markese Dan Rankin Anthony Sanders

Ever worked in a salt mine? It seems some non-union employees hadn't either when their boss joked that they might be sent to one. That wasn't funny to someone completely unconnected to the employer, who filed an unfair labor practice. Jared McClain joins us to discuss this funny case from the Third Circuit. And get a refresher on the open fields doctrine--and how it doesn't apply to seizures--from John Wrench as he tells us about a few not-very-well-looked-after cows. Click here for transcript.

Recorded live at UCLA, we're introducing a new study from the Institute for Justice: Constitutional G.P.A., is your Government Preventing Accountability? The study grades each state on how its citizens are able--or all too often, are not able--to hold government officials accountable when their rights are violated. It's also a research tool you can use yourself. Hosted by IJ attorney Anya Bidwell we hear about three recent cases through the prism of the study. They are presented by UCLA law professor (and Chief Conspirator at the Volokh Conspiracy) Eugene Volokh, President of the National Police Accountability Project Julia Yoo, and California civil rights attorney Nicholas Yoka. Feel free to follow along with us by checking out the interactive study here. Click here for transcript.

On a special Short Circuit, we sit down with Michael Bindas, a senior attorney at the Institute for Justice and lead attorney in Carson v. Makin. There, the Supreme Court just ruled in favor of Michael’s clients and thousands of children whose parents now have additional options for their education. We talk to Michael about the underlying religious liberty and school choice issues, what it’s like to argue a case at the Supreme Court, and the future of school choice in the wake of this important victory. Somehow we also work bourbon and rye into the conversation. Transcript forthcoming.

It's just so easy these days to put a camera on a pole and record everything that happens in someone's front yard for eight months. So easy that we keep getting cases where that's exactly what the police do. Without a warrant. IJ attorney Josh Windham unpacks the latest, out of the First Circuit, Courier font and all. The judges don't agree, but the rest of us can that this issue is likely heading to the Supreme Court soon. Then Anthony Sanders tells a story from Indiana where its supreme court drew a line in the sand dunes about what its legislature can delegate. But it's not the "nondelegation doctrine" you've heard about. RSVP for Short Circuit Live and Constitutional G.P.A. on June 30, 2022 in Los Angeles! Click here for transcript.

We discuss a couple legal immunities, one listeners will be familiar with and one that’s pretty unknown. The second is being addressed by our special guest, Aliza Shatzman. She is the co-founder of The Legal Accountability Project, a new nonprofit whose mission is to ensure that as many law clerks as possible have positive clerkship experiences while extending support and resources to those who do not. Aliza had a harrowing experience as a law clerk and found that the laws that apply to other government employees often don’t extend to those in the judicial branch. She also presents a recent case from the Fourth Circuit about a judicial branch employee who brought a number of claims to try and get around sovereign immunity—and actually succeeded on a few of them. Then Kirby Thomas West of IJ discusses a Fifth Circuit case with terrible facts, but a good outcome on the qualified immunity front. Click here for the transcript.

Recording in front of a live audience at the 2022 Institute for Justice’s Law Student Conference, we look at some of the best, and some of the worst, from the Fourth Circuit. First, Justin Pearson explains why a restriction on “political” advertising on the side of buses was unconstitutional even though it recognized the side of a bus is not a “public forum.” Then, Michael Bindas gives us his best sommelier (or is it wino?) impersonation and discusses a tipsy opinion allowing North Carolina to prevent out-of-state retailers from shipping wine to the state’s consumers. It’s pretty much not what the Supreme Court has said about the dormant Commerce Clause and alcohol. RSVP to Constitutional GPA and Short Circuit Live at UCLA on Thursday, June 30th 2022! Click here for transcript.

When is a case over? As you'll learn, that depends on a lot of weird stuff. IJ attorney Will Aronin walks us through the Ninth Circuit's recent decision on everybody's favorite bedtime reading, Rule 68 and offers of judgment. Seriously, it's an untapped resource of the federal courts with some counterintuitive traps for lawyers who don't read the rules. Then Jeff Redfern of IJ tells us about the latest chapter in mask lawsuits, this time from the Eighth Circuit. The court says part of the case (all of the case?) is moot, but with the pandemic it's hard to know with any finality. There's an invocation of Sisyphus that might not surprise you. Click here for transcript.

Short Circuit is proud to present to you Professor Marin Levy of Duke University School of Law. She is a top scholar on the federal judiciary, including its history, how it has evolved, and how it actually works. Plus, she’s educated the world about the federal (and state!) courts through the magic of Twitter threads. We talk to her about what’s so interesting about the federal courts (with some “short” remarks about the “circuit” courts) and how she got started Tweeting them. After that Kirby Thomas West of IJ tells us about a Second Circuit case where the government didn’t do enough to pass the First Amendment (at least for now) even though the plaintiff wasn’t the most sympathetic. And we go back to Marin to detail a Ninth Circuit case with an even less sympathetic party, but where the court overlooked the importance of some pretty intriguing issues, such as whether there’s a Fourth Amendment violation if the government comes in and copies all of your stuff. Register for IJ’s Judicial Engagement Foru

A couple issues near-and-dear to many of your hearts this week: Money and Facebook. First, if you win a case against the government are you a "prevailing party" deserving of an attorneys fees award? North Carolina officials argued you're not if you do so well that the law you're challenging actually disappears. Luckily the Fourth Circuit shot that argument down. Alexa Gervasi explains. But meanwhile the Sixth Circuit shot down quite a lot of the First and Fourth Amendments when a police department took great vengeance upon a man with the audacity to . . . create a parody Facebook page. As Ari Bargil tells us, it's a case demonstrating why everyone hates lawyers. If you're in Michigan, sign up now for our May 20, 2022 forum on Judicial Engagement and the Michigan Constitution! Click here for transcript.

It's a First Amendment fiesta at Short Circuit this week! Tori Clark explains how in the Eighth Circuit it's hard to sue the government to protect your right to free speech when the law is privately enforced. And we're not talking about Texas here, but people not acting so nice in Minnesota. Further down the trail, things went a little berserk in Oregon, and a pro se legislator won himself another day in court in the Ninth Circuit. Sam Gedge has hunted through the briefs. If you're in Michigan come to our State Forum on Judicial Engagement and the Michigan Constitution! Friday, May 20, 2022 at noon. There's also a free lunch. RSVP here. Click here for transcript.

Suing the United States government is really hard. So hard that someone's family might not get to even if the government is at fault for that person dying in a flood. Adam Shelton explains why that luckily might not be true in this case, but all too often is. Then Diana Simpson walks us through a procedural pretzel of property rights preventing people from putting up homes. She also discusses some old cases you might not know about, but really should. Click here for transcript.

We focus in on two Latin words this week: habeas and mandamus. Both usually mean “you lose.” But things somehow turned out differently in the Fourth Circuit and Fifth Circuit. Hear the story of a man trapped in prison for a small drug sale for almost a decade who fights his way through the state and federal courts and wins himself a new trial. IJ’s Bob Belden tells that tale. And then there’s a story about guns, the Internet, speech, the differences between Texas and New Jersey, and transfer orders. Alexa Gervasi gets us up to speed on that saga. She also previews a new IJ case about a prosecutor working for a judge he practiced before. It’s as bad as it sounds. Click here for transcript.

Short Circuit Live returns with an all-star all-D.C. Circuit panel! IJ attorney Anya Bidwell hosts a discussion with three Supreme Court lawyers (and former D.C. Circuit clerks), Lisa Blatt, Kelsi Brown Corkran, and Paul Clement. They reminisce about their days clerking for D.C. Circuit judges and analyze three recent circuit opinions on liability under terrorism laws, executive privilege, and no-fly lists.

Some property owners sued an arm of the State of Louisiana for damages and won a $10 million judgment. Wow, that's real money! Except, because the lawsuit was in state court they can't collect on it unless the legislature gives it to them. Which it doesn't want to do. So the money isn't so real after all. They then went to federal court, but the Fifth Circuit gave them some bad news. IJ's Jeff Redfern explains. When we move to the Ninth Circuit, however, it's all smiles. The court said an antitrust case could move forward against members of the California Dental Board. Your host Anthony Sanders gives the latest in turning the antitrust laws on the most anticompetitive of them all, the regulators. Ariyan, Inc. v. Sewerage & Water Board of New Orleans, https://www.ca5.uscourts.gov/opinions/pub/21/21-30335-CV0.pdf SmileDirectClub, LLC v. Tippins, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/03/17/20-55735.pdf Bound By Oath podcast, https://shortcircuit.org/center-for-judicial-engagement/sc/14th-at-150

Michigan lawyer and YouTube legal sensation Steve Lehto joins us this week. We talk a bit about his career as a broadcaster, consumer protection lawyer, and host of an internet show with 300,000 subscribers. Then we get into some language he never got to “play on the radio.” All because a few police officers threw a man out of a $3 county fair for wearing a t-shirt with a famous saying of the group NWA. Or at least that’s what the Sixth Circuit said in denying the officers qualified immunity. Also, our old friend Rob Peccola comes back with the latest in the landlord wars in Minneapolis, and how the Eighth Circuit didn’t see no takings.

Like owls? We've got owls. Two of them. But they don't like each other. Ben Field explains how the Ninth Circuit adjudicated with this Parliament of owls, and how a 12 gauge shotgun is involved. In addition, Evan Lisull tells a story of "chalking," the police, and the First Amendment. Both from another Ninth Circuit case, but also from his own brush with the law. Throw in some qualified immunity and admin law, and you've got a very festive St. Patrick's Day episode (minus anything Irish). Register for Short Circuit Live! Wednesday, April 6, 2022 at the National Press Club in Washington, D.C., https://ij.org/event/scl/ Friends of Animals v. U.S. Fish & Wildlife Service, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/03/04/21-35062.pdf Ballentine v. Las Vegas Metropolitan Police Department, https://cdn.ca9.uscourts.gov/datastore/opinions/2022/03/08/20-16805.pdf Rivas-Villegas v. Cortesluna (case questioning circuits clearly establishing law), https://www.supremecourt.gov/opinions/21pdf/20-1539_09m1.pd