Short Circuit

John Wrench is joined by Diana Simpson and Patrick Jaicomo to discuss the truly frightful! Like, what to make of the Supreme Court’s latest refusal to address whether the government needs to pay innocent people when it destroys or damages their property, and what can be distilled from the justices’ insistence on further “percolation” of the issue? Speaking of which, the Court will weigh in on a challenge to the federal ban on distilling spirits at home; might it rein in horrifyingly broad interpretations of the Necessary and Proper Clause? Finally, they speculate about law’s experiences with the spectral, including witness testimony about ghostly encounters and the practical challenges of selling a haunted house.

Diana’s Chicago impound case

IJ’s SWAT takings cases

McNutt at SCOTUS

Short Circuit visited the Tenth Circuit Bench and Bar Conference in Colorado Springs. Between gin and tonics at the Broadmoor hotel we heard from a number of Tenth Circuit experts about some interesting circuit cases and what makes their court a Perfect Tenth. You’ll hear about qualified immunity, gun rights, prisoner conditions litigation, the continuing ramifications of the McGirt decision for the federal courts in Oklahoma, law students arguing on appeal, and what goes on at the Tenth Circuit Historical Society. Get your Rocky Mountain High, feel the wind come sweeping down the plain, and learn that in some matters you actually are in Kansas anymore.

Tenth Circuit Historical Society

McGirt v. Oklahoma

The OG Tenth Circuit

If you’ve ever seen the 1971 flick “The French Connection” you may know a bit about hiding illegal drugs inside the bodies of cars. Someone else had the same background knowledge and so had installed a secret compartment in his minivan. The problem for him was the police already had a warrant to search his home and while they were executing the warrant they took his van. After taking it away they got another warrant and found the drugs and then took the van through civil forfeiture. The defendant argued there was no warrant for the van’s initial seizure and that it therefore violated the Fourth Amendment. Unfortunately for him, the Second Circuit upheld what the police did because of the “automobile exception.” Robert Fellner of IJ tells us the story and discusses the weird world of civil forfeiture, cars, and searches, that should trouble us even when it crosses paths with the not most sympathetic of folks. After that, IJ’s Andrew Ward tells us of an Eleventh Circuit matter addressing the right to raise one’s child and substantive due process. The opinion allows us to have a fascinating discussion about general matters of constitutional law but please be warned (especially parents with children listening) that some sensitive subjects come up.

RSVP for Short Circuit Live in Cambridge, Mass. on October 19!

U.S. v. Acevedo

Henry v. Sheriff

Short Circuit 369

The French Connection

Our annual Supreme Court term preview, this year from Wake Forest Law and released today, First Monday, the first day of the Supreme Court’s new term. IJ’s Justin Pearson is joined by colleague Paul Avelar and Professor Wilson Parker of Wake Forest. After a bit of SCOTUS trivia they preview two cases—about fair trials and guns—and then two cert petitions—about electronic searches and guns. Along the way you’ll learn about a few other cases coming the Court’s way, letting all of us get our kicks for OT26.

DOL v. Sun Valley Orchards

Viramontes v. Cook County

Thompson v. Wilson

U.S. v. Squire (5th Cir. en ban grant)

We’ve all seen the ads for prediction markets, like Kalshi, and some of us have even placed bets with them. But are they actually “bets”? That is, are they gambling? The Ninth Circuit addressed this issue as it relates to the Indian Gaming Regulatory Act and said that at least on the land of a tribe that operated its own gaming, what Kalshi does is gambling and is not allowed. IJ’s Kirby Thomas West takes us into the wild world of predicting vs. gambling and the related issues of whether federal law preempts state law on predicting/betting. But before that, Paul Sherman of IJ brings us exciting news from Georgia where its state supreme court ruled that a legal hemp-growing operation had a valid takings claim against authorities who damaged its crop (and cows) with a helicopter. The case concerns whether there is a “police power” exemption from takings protections and how courts often have tried to avoid takings claims by saying takings clauses only apply to eminent domain.

RSVP for Short Circuit Live in Cambridge, Mass. on October 19!

Blue 42 Organics v. Georgia DPS

Blue Lake Rancheria v. Kalshi

The Damagings Clauses

We focus on a district court case that has appellate court explanatory power. As our special guest Professor Robert Steinbuch says, if you reside in Arkansas you must be living in a cave if you haven’t heard of the Malinowski matter. The lawsuit concerns the tragic death of a man who was shot by the police in a raid after he shot first. His widow alleges the man did not know the people breaking into their house were police as they did not properly announce themselves. Because the police were ATF members, or task force members who were working with the ATF, the ability of the widow to sue for damages is limited. For constitutional claims that means a Bivens claim. For non-constitution (or are they non-constitutional?) claims that means the Federal Tort Claims Act. The court threw out the first route but kept most of the second. Professor Steinbuch and IJ’s Anya Bidwell explain what the court said, what was right and what was questionable, and who these issues mean for the larger debate, including efforts in state legislatures to provide alternatives to Bivens.

Malinowski v. U.S. (FTCA claims)

Malinowski v. U.S. (Bivens claims)

Docket for Nielsen v. Watanabe

Professor Steinbuch’s column on Malinowski case

Bound By Oath episode on Bivens claims

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

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

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

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