A qualified immunity and property rights pairing this week. But first we announce the winning answer from last episode’s “decretal language” competition. Then, Patrick Jaicomo explains why in the Fourth Circuit it can be unconstitutional for the police to prevent you from livestreaming an encounter, but you can’t sue them about it. Then Suranjan Sen walks us through a couple challenges to New York’s notorious rent control laws. The Second Circuit finds no taking there, whatever the realities of tenants who never move out. However, the question arises: Can these cases be heading somewhere higher? Also, courts, you’re not writing mystery novels. So stop opening your opinions like one.

Click here for transcript.

Register for Feb 18 Cleveland show, Comedy is not a Crime!

Register for event with Joanna Schwartz on her book “Shielded”!

Register for March 31 conference on Meyer v. Nebraska!

Sharpe v. Winterville Police Dept.

Community Housing Improvement Program v. City of New York

74 Pinehurst v. State of New York

Our newsletter begins announcements about federal en banc decisions with the phrase “And in en banc news.” And about a year ago we had an argument on the podcast on how to pronounce that fancy French-sounding phrase. Today we bring back the guests from that episode—Sam Gedge and Bob Belden—to settle the issue, once and for all. Along the way you’ll learn about how we have the Germans to thank for how we describe full sittings of the federal courts of appeals. You’ll also learn about two recent en banc cases, one from the Eleventh Circuit concerning how prisoners can sue in federal court, and one from the D.C. Circuit about how foreign students can stay in the country and get some work experience. There’s also a couple rabbit holes involving decretal language and whether a “dissental” is a thing.

Click here for transcript.

Register for Feb 17 panel at Case Western Reserve!

Register for Feb 18 Cleveland show, Comedy is not a Crime!

Register for Marc 31 conference on Meyer v. Nebraska!

Buy Anthony’s book!

Draft of article And in En Banc News . . . (to appear in Judicature)

Judge Newman article on decretal language

Wells v. Brown

Washington Alliance v. DHS

En banc argument episode

On this Groundhog Day special we’re sniffing out a couple eternally recurrent subjects: limits on government surveillance and limits on property rights. We’re joined by IJ’s Seth Young and also are very pleased to announce we once again have on Mike Chase, author of How to Become a Federal Criminal. Mike gives an overview of a case pending in the Fourth Circuit that could have major ramifications for everyone with a smart phone and a Google account—that is, everyone, period. After a bank robbery the police tried to track down a suspect using several layers of Google data. The court later found that the warrant in question violated the Fourth Amendment—yet excused it anyway. Mike explains the issues and also gives a preview of what’s coming in the world of federal crimes. Seth’s case is also from the Fourth Circuit, and it brings us to the happy days of March 2020 and what happened to a couple who simply wanted to access their own property. Was that a taking? The multifactored magic 8 ball says “no.”

United States v. Chatrie

Blackburn v. Dare County

16 USC § 668DD

50 CFR § 32.49

Phil Connors forecast

Could you identify a “bag of dope” through a tinted car window? A police officer in Euclid, Ohio thought he could, but it turns out the effort wasn’t close enough for government work. Under the Fourth Amendment, at least. IJ’s Rob Frommer joins us to tell the latest Sixth Circuit tale of cops not bothering to get a warrant. Then Suranjan Sen of IJ takes us to the Eighth Circuit where the police dispersed a crowd for “unlawful assembly.” That may have been unconstitutional, but when the protesters sue they encounter some pleading problems.

Click here for transcript.

Register for our Meyer v. Nebraska conference!

2023 IJ Summer Clerkship Application

U.S. v. Loines

Edwards v. City of Florissant

Bound By Oath episode on municipal liability

We are joined by Texas “teenylaw” lawyer Kristen Vander-Plas LaFreniere. We talk about what it’s like to run a very small practice and then dig into the latest from the circuits. Kristen presents a religious victory over the Marines in the D.C. Circuit and gives a bit of background about what that service thinks of the Navy. If you’ve made it through basic training this is the episode for you. Then, Erica Smith Ewing of IJ takes us out to the Ninth Circuit where there’s a rare win against a zoning ordinance.

Singh v. Berger

SoCal Recovery v. City of Costa Mesa

In honor of the birthday of Martin Luther King, Jr. we invited on three civil rights lawyers to talk about their latest, pathbreaking, cases and the challenges they face in bringing justice for all. Anya Bidwell of IJ welcomes her colleague Marie Miller, as well as Mark Silverstein, Legal Director of the ACLU-Colorado, and Sam Thypin-Bermeo a civil rights lawyer in Miami. Each discusses a recently filed case where law enforcement officers are alleged to have gone far beyond the bounds of the Constitution.

Click here for transcript.

Johnson v. Staab (complaint)

Maple v. Stella (complaint)

Rosales v. Alexandria PD

50 Shades of Government Immunity

Constitutional GPA

Two tales of the criminal justice system this week, with the Excessive Fines Clause and the Fourth Amendment both playing a part. First, in the Second Circuit, Ari Bargil tells us how an ingenious scheme of selling marijuana over an app hits a snag when the funds have to go through the bank. Which is subject to all kinds of federal laws. What about the law forbidding excessive fines? For that it gets a little complicated. Then it’s off to the Ninth Circuit where John Wrench details a traffic stop with an “inventory search.” Did the cops really make it just to ensure the defendant didn’t lose his stuff? Many of us our skeptical, but somehow the conviction stands.

Click here for transcript.

U.S. v. Patterson

U.S. v. Anderson

Blow – Courtroom Scene

World of Trouble

Not many lawyers alive today can say they’ve litigated a Thirteenth Amendment case (yes, that amendment; the one about slavery). But we at IJ have one, and we’re asking the Supreme Court to take a look at it. What’s before the Court is whether prosecutors who—under political pressure—made a bogus case against a group of nurses are “absolutely immune” from the nurses’ civil rights lawsuit. IJ’s Ben Field explains the stakes in this case from the Second Circuit. Then, Jaba Tsitsuashvili of IJ tells us of a Minnesota police department that holds every person who wasn’t born in the U.S. until it hears back from I.C.E., whether they’re a citizen or not. Um, is that a problem? Jaba explains how the Eighth Circuit explained that, oh yes, it is.

Click here for transcript.

Cert petition in Anilao v. Spota

Anilao v. Spota (3d Circuit)

Parada v. Anoka County

Bound By Oath Episode on Absolute Immunity

You got insurance is not just a question they ask at the doctor’s office. Most of the time when someone sues the government—especially a local government—there’s at least some insurance potentially available to pay for the government’s defense and to pay a claim. But insurance policies are famous for having exclusions. And it turns out that in bunch of lawsuits in the Sixth Circuit there are exclusions for property rights and taxes that are making things complicated for property-tax-collecting counties. These come in the wake of “equity theft” cases, and court rulings that these can constitute a taking. IJ’s Dan Knepper joins us for this intersection of insurance and civil rights law. Also, we go down to the Eleventh Circuit for a life insurance policy and a tragic story of “suicide-by-cop.” Turns out the standard exclusion in a policy for suicide can count even if that happens indirectly. Finally, if you haven’t heard our “12 Days of Short Circuit Christmas” on our separate bonus episode, stick around until the end for a song about 12 days and 12 federal circuits.

Click here for transcript.

Law Students: Apply to be a 2023 summer fellow at IJ!

Safety Specialty Insurance Co. v. Genesee County Board

North American Co. for Life & Health Insurance v. Caldwell

Rafaeli, LLC v. Oakland County

Short Circuit episode on Rafaeli

A very short episode for the Holidays. Sung by members of the Institute for Justice. Click to listen, but here are the words:

On the 1st day of Short Circuit Christmas my federal reporter gave to me

A thesaurus under Judge Selya’s pine tree

On the 2d day of Short Circuit Christmas my federal reporter gave to me

Two Calabresi tort rules

And a thesaurus under Judge Selya’s pine tree.

On the 3d day of Short Circuit Christmas my federal reporter gave to me

Et al.

[Yeah, you know how the song goes. Let’s skip to the 12th, i.e. D.C. Cir., verse & you can see all of them at once]

Twelve vacaturs granted

Eleven judges named Pryor

Ten library courtrooms

Nine en banc reversals

Eight qualified immunities

Seven Chicago professors

Six Sutton Stanzas

Five Judge Hos

Four ex-prosecutors

Three Jersey convictions

Two Calabresi tort rules

And a thesaurus under Judge Selya’s pine tree.