Short Circuit

A whole lot of searching going on this week. First, Scott Regan of IJ reports on a Ninth Circuit opinion involving, among other things, an iCloud account. How does the Fourth Amendment apply to the gazillions of pieces of data stored on our phones? It depends on what the officers are searching for, and their searches. Then, in a very different search, a DC police officer asks a guy to show his waistband. Twice. And then the guy runs and throws a gun in the bushes. Were the officer’s requests seizures? Searches? Unreasonable? The evidence is suppressed but the judges disagree on a few things. Your host reports on this case from the DC Circuit.

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U.S. v. Pelayo

U.S. v. Gamble

Edgar Allan Poe’s “Eldorado”

Ari Bargil of IJ visits the Short Circuit virtual studio to take a bet. Or, rather, to tell us why some of us can keep taking bets—for now. The Fifth Circuit recently granted a preliminary injunction to participants in PredictIt, a New Zealand-based research experiment where people can bet real money about the outcomes of elections. The CFTC, however, doesn’t want to put up with this business anymore and is trying to shut it down. Nevertheless, because of the Fifth Circuit you can place your bets, but only for now. Then, your host takes us on another internationally oriented adventure regarding the difference between the “government” and the “state” of Venezuela. It’s mighty important to a group of investors in the Third Circuit. Turns out rulers can change but “sovereignty survives.”

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Clarke v. CFTC

OI European Group B.V. v. Venezuela

Welcome to Short Circuit’s new podcast! In this free ranging side of the Center for Justice Engagement we welcome two Institute for Justice attorneys, Anya Bidwell and Patrick Jaicomo, to discuss what’s on their legal minds. Although we won’t be doing this every podcast, given its name we can’t help but begin by ranting about unpublished opinions. Why are they “unpublished” again? And perhaps that made sense at one point but in the age of the Internet, is that really true anymore? The gang chew the fat on this topic but also how it relates to qualified immunity and the relatively new dispute over whether “precedent” is the same thing as “clearly established.” Then we muse on the new Supreme Court, under the old adage that whenever the Court’s membership changes there’s a whole new “court.” There’s a focus on the dynamics of oral argument and how there’s a lot more talking at 1 First Street these days. We also throw a football down the field for Justice Byron White.

Case where Judge Oldman talks about precedent

Draft en banc article

If someone sends you an unsolicited text message are you “injured”? In a constitutional sense, that is. Bob Belden swoops back to the podcast to explain the latest en banc business from the Eleventh Circuit on texting, common law causes of action, Article III of the Constitution, and Office Space. Your host then gives him a quick summary of The Case of the Thorns. After that we cross the continent to the Ninth Circuit where first-time guest Christian Lansinger tells us of a dissent from a denial of en banc (dissental?) on the state-created danger doctrine. The facts are disturbing, but the issue is one that might be going to the Supreme Court soon.

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Drazen v. Godaddy.com

Murguia v. Langdon

The Case of the Thorns

Professor Andrew Hessick’s standing article

Fractions of a Penny

We swing from one legal extreme to another this week. From the First Amendment protecting street entertainers in Vegas on the one hand to deference to the comments of the United States Sentencing Commission on the other. First, John Wrench walks us down the Vegas Strip with a couple “sexy cops” who bumped into some undercover real cops and then ran into some real trouble. The Ninth Circuit ruled in the case in 2017 and then after a petition for rehearing was filed did . . . nothing. Until this month when it filed an amended opinion. We try and figure out what happened with that and where the case stands now. Then it’s off to the Tenth Circuit where Jared McClain explains a developing circuit split over what deference courts owe to the Sentencing Commission’s interpretation of its own rules. Despite the split, though, Jared explains how it might be a while until this area gets sorted out.

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Santopietro v. Howell

U.S. v. Maloid

Law review article on Santopietro case (by Stephen Touchton)

We talk with a couple remarkable women who achieved something pretty remarkable for some other remarkable women in Georgia: Had the state supreme court strike down an occupational licensing law that would have put hundreds of women out of work. The law mandated a license for “lactation consultants,” women who help new moms breastfeed their babies. The license required vast amounts of training, far more than necessary and far more than most existing consultants had. IJ attorneys Jaimie Cavanaugh and Renée Flaherty join us to detail how they fought a five-year legal battle to the Georgia Supreme Court—twice—and how the Georgia Constitution and other state constitutions protect economic liberty. The case provides a lot of hope for the future, and not just to those who work with babies and breasts.

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Jackson v. Raffensberger (1st appeal)

Jackson v. Raffensberger (2d appeal)

Patel v. Texas Dept. of Licensing & Regulation

Ladd v. Real Estate Comm.

Anthony’s old article on states and economic liberty

Lady Madonna

Scott Michelman of the ACLU-DC joins us to discuss the ins-and-outs of a recent fascinating (yet disappointing) ruling of the D.C. Circuit. Remember when President Trump had a square cleared of protesters—with tear gas—so he could take a photo op? Scott represents some of the plaintiffs in that case, whose claims against federal officials were thrown out because the court said it wasn’t enough like three cases from over forty years ago. Yet, it seems like some of the judges were reluctant about that conclusion and even offered a theory about how a different lawsuit might work in a future. Then Anya Bidwell discusses a very different result from the Seventh Circuit where a claim against federal narcotics agents could go forward because the relevant precedent, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics was against, well, federal narcotics agents.

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Buchanan v. Barr

Snowden v. Henning

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics

It’s hard to sue the police. But it’s even harder to sue a judge. Rob Johnson returns to tell us about an Eighth Circuit case where a suit against a judge can actually go forward . . . partly. Why one way and why the other? It seems it might be all because of the robe. It didn’t help the judge that he physically put two kids in jail himself. Then we swing through the Sixth Circuit for a cop who opens a car door and hilarity (and the community care doctrine) ensues. Sound a bit like a Mickey Spillane story? You can judge for yourself.

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Rockett v. Eighmy

U.S. v. Morgan

Pennsylvania v. Dunlap (Roberts dissent)

Who knew that is was so easy to defeat qualified immunity when you sue an elevator inspector? Wesley Hottot of IJ joins us this week to spread the good news of a much more reasonable qualified immunity opinion in the Sixth Circuit than we are used to. But what about all those terrible opinions we’ve talked about in previous episodes? To figure that out maybe you’re going to have to take the stairs. Anna Goodman of IJ then brings us to the Fifth Circuit where an attorney is sick and tired of having his phone searched every time he enters the country—and also wants to get some confidential data back. Except, it turns out he’s fine so there’s nothing to worry about. Well, that’s what the court said when it sent him packing.

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Sterling Hotels v. McKay

Anibowei v. Morgan

Short Circuit is delighted to welcome one of the “Founding Fathers” of #AppellateTwitter to our virtual studio, Sean Marotta. Sean tells the story of how it all began at a Washington, D.C. BBQ joint (leading to The Tweet from The Dean, Raffi Melkonian) and then switches to a story of discovery abuse in the Eleventh Circuit. The court tells us that the rules of civil procedure apply to the federal government. Who knew? Apparently not the Consumer Finance and Protection Bureau. Then IJ’s Diana Simpson takes aim at an emerging circuit split regarding the Second Amendment and felons. Could Jean Valjean win a case to get his gun rights back? In the Third Circuit signs point to oui, but in the Eighth Circuit he’d have to say au revoir. And in one of the Eighth Circuit cases there was an immensely short—but just as interesting—dissent. Does it have connections to biblical apocrypha, specifically the Book of Esdras? As you’ll hear, there likely is “[m]ore to come.”

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CFPB v. Brown

U.S. v. Jackson

U.S. v. Cunningham

Range v. Attorney General

2 Esdras 4:45-46

Commentary on Esdras (G.H. Box 1912)

The lunch that launched #AppellateTwitter