Short Circuit

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.

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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.

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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.

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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.

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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.

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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.

One of our oldest friends (well, not really a “friend”) is back, the rational basis test. Turns out the government can justify refusing to give someone a license on the grounds that it’s extra work for the government itself to have to issue the license. That sounds kinda weird, right? IJ attorney Josh House agrees, as he discusses a new case from the Fifth Circuit. But it’s not all bad news this week. In the Sixth Circuit the police can’t receive qualified immunity when they lie on a police report. Turns out that’s an “obvious” constitutional violation. Yeah, who knew? Jared McClain of IJ explains pretty much everyone did.

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Newell-Davis v. Phillips

Caskey v. Fenton

St. Joseph Abbey v. Castille

Taylor v. Riojas

For millions of lower-income Americans, state licensing laws make finding work or opening a small business harder and more expensive—if not outright impossible. So claims the third edition of Licensed to Work, a report of the Institute for Justice. We talk to Lisa Knepper, a co-author of the report, to hear why occupational licensing is such a big deal—and such a big barrier to so many—and what has changed in the five years since the last edition. There’s good news! Yet, so many challenges remain. And as Short Circuit listeners know one way to address those challenges is through judicial engagement. Thus, Josh Windham of IJ also joins us to discuss a recent decision in Pennsylvania where a court found a licensing requirement to be unconstitutional, clearing the way for entrepreneurs like Josh’s client. We hope you enjoy a little policy along with a little law, and we promise there will be no (well, not much) math.

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Licensed to Work 3

Ladd v. Real Estate Commission (2022 decision)

Ladd (2020 decision)

Bang the Drum All Day

Money makes the world go round. And sometimes the Constitution and our civil rights laws help money out with that. We examine a couple recent cases where bankruptcy and attorney fees awards intersected with constitutional law. First, IJ’s Rob Peccola describes how the Second Circuit followed the Supreme Court’s recent instructions to take Constitution’s use of the word “uniform” seriously. Then, IJ’s Bert Gall joins us for the first time to walk through what the Sixth Circuit had to say on who a “prevailing party” is and what “enduring” means. A whole lot of cash can turn on the answer. Plus, if you like Shel Silverstein, this might be the episode for you.

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In re Clinton Nurseries, Inc.

Tennessee NAACP v. Hargett

Siegel v. Fitzgerald

Smart, read by Shel Silverstein