What does qualified immunity have to do with Joan of Arc? Released on the anniversary of the start of her trial, this episode examines that question—from “the French perspective”—with two tales of qualified immunity. First, IJ’s Tahmineh Dehbozorgi presents a case from the Sixth Circuit where a police officer punched a mental hospital patient into a wall. The court concludes the punch violated the Constitution—but was it “clearly established”?  The court says no, leaving the victim with no remedy. Ben Marsh of IJ then details an Eighth Circuit case about a protest in Omaha, Nebraska during the tumult of 2020. A SWAT officer fired pepper balls into the crowd which unfortunately hit a member of the public in the eye. Was that an unreasonable seizure? And did it violate the First Amendment? It doesn’t matter, because under qualified immunity both claims fail anyway.  

Guptill v. Chattanooga

Keup v. Sarpy County

Henry VI, Part 1

St. Joan by Shaw

IJ’s Anya Bidwell interviews two civil rights lawyers for a wide-ranging conversation about what it’s like to litigate on behalf of people behind bars. She welcomes on Sam Weiss of Rights Behind Bars and Elizabeth Cruikshank of the Institute for Constitutional Advocacy and Protection (ICAP) to hear stories of qualified immunity, prison conditions, prisoners making their way in the court system without lawyers, and many other topics. To begin with we hear the story of what it was like for Sam, with Elizabeth’s assistance, to start a new nonprofit and then the story of an early success for them, the Supreme Court’s decision in Taylor v. Riojas, which jump-started the “obviousness” exception to grants of qualified immunity. Then each report on a recent success from the federal courts of appeals, Elizabeth’s from the Fourth Circuit and Sam’s from the Third.

Apply to be a summer fellow at IJ here!

Taylor v. Riojas

Frazier v. Prince George’s County

Montanez v. Price

In the early days of the COVID pandemic, a county in Florida thought it was a good idea to keep people off of the beach. Even if they owned it. The beach owners were not able to access their beaches for weeks—although local police could. And did. The owners went to court and now, years later, the Eleventh Circuit has ruled that that was a taking under the Fifth Amendment to the U.S. Constitution. IJ’s An Altik takes us beachcombing. But first, Diana Simpson of IJ walks us through a fascinating concurrence from the Fifth Circuit about certification. That is the practice of lower federal courts asking state supreme courts what ambiguous state law actually “is.” One judge isn’t a fan and explains where the practice came from and why it’s now out of control. We get into the history of “general law” versus local law and what federal courts were originally designed to do.

Stanford v. Brandon Nursing & Rehab. Ctr.

Alford v. Walton County

Cedar Point Nursery v. Hassid

Bound By Oath episode discussing Erie

Starting with a few lines from Shakespeare’s As You Like It, we are joined by two gentlemen of the stage, James Joseph, the first Assistant Director for IJ’s clinic at the University of Chicago, and Bob McNamara, IJ’s Deputy Director of Litigation. Both have theater backgrounds and both discuss how the skills you learn in theater play into being a good lawyer. It’s not just gesticulating to the jury, explains James, it’s also understanding how people act, how they respond to subtle clues, and most of all how to tell a story. Then we head off to the Third Circuit for two cases. James reports on a challenge to New Jersey’s restriction of assisted suicide to residents and how the law did when put up against the Privileges and Immunities Clause. Then Bob tells us of a wild story of extortion—or was it?—where federal prosecutors applied the Computer Fraud and Abuse Act to someone who tried to help a friend get some ransom cash from a former employer.

Apply to be a summer fellow at IJ here!

Bryman v. Murphy

U.S. v. Eddings

Abigail Alliance v. von Eschenbach

Recent other episode on CFAA

As You Like It

The U.S. government seized over $600,000 from a business, tried to forfeit the money, never filed criminal charges against anyone, and then three years later said “nevermind!” and dismissed the case and gave the money back. At the same time, the business was trying to find out what was in the original warrant applications for the seizure. Is the case over, or can the business keep working to see what the secret documents say? Dan Alban of IJ gives us the scoop in this case from the Sixth Circuit. Then, IJ’s McCarley Maddock tells us about the latest NCAA antitrust drama. A college football player transferred around to a few different schools and along the way played a year at a junior college. The problem for him was that year counted against his eligibility. But is that rule an antitrust violation? The Third Circuit says that, like with the French Revolution, it’s too early to tell.

California Palms v. U.S.

Elad v. NCAA

Short Circuit on baseball and antitrust

What happens if you sue your employer and your boss’s boss is a federal judge? It’s kind of complicated. Aliza Shatzman of the Legal Accountability Project rejoins us to detail a recent Fourth Circuit case where an employee who worked in a federal public defender’s office alleged she was sexually harassed and then sued about it. It’s the first case of its kind and gives a window into how employment complaints work within the Article III branch. Aliza also talks about her ongoing work at the Legal Accountability Project and their clerkship database. Then, IJ’s Katrin Marquez tells us a most unpleasant story about a woman who went through TSA screening. The woman then tried to use the Federal Tort Claims Act but the federal government claimed she couldn’t because TSA officers aren’t “law enforcement.” The Eleventh Circuit said “really?” and has now allowed the case to move forward.

Strickland v. U.S.

Koletas v. U.S.

Legal Accountability Project

The FTCA and the Military

Can a city require you to get a permit if you’re having a few people over to pray? In an Ohio town it was a little unclear. As IJ’s Suranjan Sen explains, an Orthodox Jewish man wanted to have enough people over that he could hold a proper service for the Sabbath. There was no worry about traffic and parking because Orthodox Jews don’t drive on the Sabbath. But that didn’t prevent a neighbor from complaining anyway. Things got confusing at city hall, though, where some officials weren’t even sure the man needed a “house of worship” permit. Even so, he went to federal court, ended up in the Sixth Circuit, and got dismissed because the case as not ripe. Along the way there’s a lot of talk about facial vs. as-applied claims and how land use is weird. Then we go to Tate Cooper of IJ with a couple subjects we’ve specialized in on Short Circuit over the years: drones and free speech. This time they’re together in a bit of a new way. A company provides a service to hunters for drones to help them find their prey after an animal has been shot. Michigan law forbids this. Is that a restriction on “speech” and a First Amendment violation because the drone is sending information to the hunter and the law only applies to the drone if it is “speaking”? The Sixth Circuit says no via some unclear reasoning. A lot of that is because of unclear Supreme Court cases which (perhaps?) might be cleared up a bit sometime soon.

Grand v. University Heights

Yoder v. Bowen (3 judge panel)

Yoder v. Bowen (en banc denial)

Williamson County Planning v. Hamilton Bank

Sorrell v. IMS Health

In a special episode, IJ’s Anya Bidwell interviews Matteo Godi of USC Law about his new article “Section 1983: A Strict Liability Statutory Tort.” Professor Godi provocatively argues that the basis of most modern civil rights litigation—originally part of the Civil Rights Act of 1871 and today known as “Section 1983”—should be interpreted as a strict liability cause of action. Anya has him discuss how the Supreme Court has erroneously imposed state-of-mind requirements in civil rights litigation in sharp contrast to the original scheme that he contends the Reconstruction Congress designed. Qualified immunity is one, but only one, example stemming from this error. The interview also covers additional recent developments in scholarship about Section 1983 and how Professor Godi’s proposal would work as a practical matter.

Section 1983: A Strict Liability Statutory Tort

Villarreal en banc with Oldham concurrence

We’re joined by Reb Masel, a California lawyer who tries to keep the law fun while educating the public about how it works. She’s apparently pretty good at it as she has a zillion followers across various platforms. She drops in to share her thoughts about a Fifth Circuit case concerning a little bit of moonshine. And years of pretrial detention. Did that detention deny the defendant a speedy trial? The court agrees, but only after further years of litigation. Then IJ’s Bobbi Taylor describes a marijuana and cash heist that goes poorly. How poorly? One defendant didn’t even “obtain” any of the pot or money. So can he be subject to a forfeiture order? The Second Circuit rules in his favor—although he still has plenty of other legal problems.

Click here for transcript.

Berryman v. Huffman

Elias v. Hytmiah

Georgia man in pretrial detention for 10+ years

Reb’s video on The Onion’s amicus brief

The Book They Throw at You

Reb’s TikTok

The balance between free speech, campus order, and fighting antisemitism has been a major flashpoint the last couple of years and it just hit the First Circuit in a lawsuit against the Massachusetts Institute of Technology. The case concerns protests and encampments at MIT’s campus in the wake of Hamas’s attack on Israel. The legal questions concern MIT’s responsibilities in light of taking federal funds. Michael Peña of IJ details what the court considered and where it came out. Then, IJ’s Arif Panju bring us to New Orleans for a short vacation. The city tried to restrict short term rentals to only those owned by “natural persons,” not ordinary people who use LLCs or other corporate forms. This was in response to losing the first round of the same case a few years ago under a dormant Commerce Clause challenge. The Fifth Circuit, again, found the city’s efforts unconstitutional in some ways, but most interestingly here it found the natural person/LLC distinction failed the rational basis test. In doing so, it relied on an IJ victory, also in the Fifth Circuit.

Click here for transcript.

Stand With Us Center for Legal Justice v. MIT

Hignell-Stark v. New Orleans

Short Circuit 235 (on earlier Fifth Circuit ruling)

IJ’s amicus brief in the New Braunfels case