Short Circuit

We welcome on Sam MacRoberts of the Kansas Justice Institute for an inspection of the Fourth Amendment. Sam is the General Counsel and Litigation Director of KJI where he does things like sue the government. So he’s a perfect fit for Short Circuit. Sam tells us of a case he recently litigated about how his state’s inspection laws went to the dogs. Specifically, clients of his who ran a very small dog training business at their home and had to deal with abrupt, last-minute inspections where the state said it did not need to get a warrant. But Sam thought the Fourth Amendment seems to indicate it did. So the case went to the Tenth Circuit, which ruled Sam was right. The opinion digs into a judge-created exception to the warrant requirement concerning “closely regulated” businesses. What’s a “closely regulated business”? Sam tries to help us answer. As does Daniel Woislaw of IJ, who discusses our second case, a recent one from the Sixth Circuit, about what happens when the closely regulated exception is used in a criminal investigation. An employee of a bar in Michigan drank on the job and later was arrested for a DUI. The police investigated the bar itself and tried conducting a search as a part of the criminal investigation under the cover of a regulatory inspection. The court said you can’t use the easy search when you’re actually trying to do the hard one. Both cases and both guests give us a hard look into this frustratingly complicated area of constitutional law. Plus, at the end, we play a little “where are they now” and learn what’s happened to some cases of Short Circuits past.

Johnson v. Smith

Generis Entertainment v. Donley

Kansas Justice Institute

[Note: This episode was down for a couple days but has been reposted. It originally dropped on March 6, 2026.] If you’ve ever wondered if a sniff is a search, IJ’s Rob Frommer has you covered on this week’s episode. Well, he has you covered in explaining how the law is all over the place on the subject. Rob tells the story of a couple who were sleeping in their car in a Mississippi parking lot when a cop saw they had an empty bottle of Fireball whisky in the back. This quickly led to a K-9 dog sniff and a full search of the car which then led to a civil rights lawsuit. After that, Jaba Tsitsuashvili of IJ brings us another Fourth Amendment story, this one involving the ICE detentions and habeas petitions rolling across the country. A federal district judge in West Virginia had enough of the federal government’s unconstitutional tactics and wrote a fiery opinion lambasting ongoing violations of both the Constitution and immigration law. It was in the context of a specific detainee who was pulled over for having a plastic cover on his license plate. Jaba takes us through the opinion and the wider world of contemporary ICE tactics.

Register for “The Other Declarations of 1776” conference on April 10!

Wogan v. Rose

Urquilla-Ramos v. Trump

Florida v. Harris

Litigation is a risky business. Borrowing tens of millions of dollars to win a lawsuit is even more risky. And it turns out makes settling a case especially difficult. Patrick Eckler, Chicago attorney and co-host of the Podium and Panel Podcast, rejoins us to detail a wild Seventh Circuit story about an antitrust chicken (and pork and beef) lawsuit that got a bit spicy. Anyone who has tried to settle a case will want to give a listen—and then to do exactly not what happened. Patrick also explains what litigation financing is and why it’s something to handle with extreme caution. Then IJ’s Bert Gall takes us down the aisles of your local Trader Joe’s. A store had an employee it wasn’t happy with. Turns out that she wasn’t happy with them either and went to the National Labor Relations Board. She won a couple rounds of unfair labor practice litigation and then the matter went to the Fifth Circuit. The panel’s majority sided with her by deferring to the NLRB’s legal and factual findings but the dissent had a lot of problems with how that went, including in light of the fall of Chevron deference. Fans of labor law, administrative law, and spicy tortilla chips (but not Two-Buck Chuck) might find joy in this pop down to the shops.

Register for “The Other Declarations of 1776” conference on April 10!

Carina Ventures v. Pilgrim’s Pride

Trader Joe’s v. NLRB

Podium and Panel Podcast

In Colorado marijuana is legal under state law. In Kansas it is not. This had led Kansan police officers to stop a lot of cars with out-of-state plates. And after they stop the cars they come up with tactics to prolong the stops to buy time to look for weed. One of these tactics is the “Kansas Two-Step.” A lawsuit, on behalf of innocent people caught up in these stops, challenged the whole scheme, leading to a big-time injunction against the police. But, as IJ’s Jared McClain explains, on appeal the Tenth Circuit thought the injunction was just too big—even though the court recognized there were a lot of constitutional violations. Then we move to the Ninth Circuit where switchblade owners challenged California’s knife restrictions. Nick DeBenedetto tells us how the court upheld the law in a Second Amendment challenge and what Bowie knives (and various other weapons you may not be familiar with) have to do with it. Finally, we bring you the latest in our #12Months12Circuits series with a look at the Second Circuit, the circuit of the Big Apple.

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Shaw v. Smith

Knife Rights v. Bonta

Rodriguez v. U.S.

Nunchucks case

Our Second Circuit episode

An all-star conversation among Stanford professors, recorded live before Stanford students, about originalism and how it interacts with recent cases from the federal courts of appeals. Anya Bidwell hosts Jud Campbell, Jonathan Gienapp, and Orin Kerr on topics such as what originalism is, how to think about the Fourth Amendment when making originalist arguments, what levels of generality have to do with how courts are approaching history, what is the state of play after Bruen, and how everything went wrong after Erie.

Click here for transcript.

NRA v. Bondi (en banc)

Texas v. Bondi (panel)

U.S. v. Wilson

If you own rights to movies or shows and would prefer them to not end up on YouTube for free this is an episode for you. Dan Knepper of IJ explains how the owner of some classic Mexican films tried to deal with the problem of the films ending up on YouTube. A recent Eleventh Circuit opinion tackled the Digital Millenium Copyright Act and how YouTube tries to deal with the problem of users putting copyrighted material on its site when they don’t have permission. As you might imagine it is a complicated process. If you want YouTube’s help in tracking what goes up on the site then you have to agree not to sue YouTube. Otherwise you can try and track things yourself and retain the right to sue but it turns out that’s quite difficult. Some of this has to do with the “red flag” test. Dan explains how this messy world works and how the court broke with the top legal treatise in the area. Then, IJ’s Sophia Henderson takes us to the beach and, unfortunately, a monopoly. The city of North Myrtle Beach, S.C., gave a monopoly to itself to set up beach equipment for beach patrons. A competitor who was boxed out of the industry sued and instead of making a constitutional case of it argued that the city was violating federal antitrust law. The question then became was the city immune because it is a state actor. In the end, the Fourth Circuit tells us that monopoly wins.

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Athos Overseas v. YouTube

Cherry Grove Beach Gear v. North Myrtle Beach

IJ’s John Wrench journeys to New Orleans to chat with some legal scholars on their recent work on all kinds of IJ-adjacent questions, especially as they relate to the American Founding. This includes economic liberty at the Founding, legal interpretation at the Founding, and “history and tradition” and constitutional rights. Between sessions at the Association of American Law Schools conference John reconnoiters with Kenneth Rosen of the University of Alabama and separately with Jonathan Green of Arizona State and Ryan Snyder of the University of Missouri. These conversations will give you a snapshot of cutting edge work about some of the Constitution’s perennial issues.

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Historical Practice at the Founding

Some Traditional Questions About “History and Tradition”

Lovers of municipal crime and corruption—and internal affairs departments not doing their jobs—may enjoy the stories this week from Detroit and Baltimore. First, Kirby Thomas West of IJ reports on a Sixth Circuit case where a towing company was a little too good at finding cars to tow after they had been stolen. It turns out the towing company was in contact with a ring of car thieves, who would give it a head’s up after a theft, allowing it to then cash in on towing fees from the city. The company had its license pulled and then sued, claiming a due process violation. And it won! A dollar. Otherwise, the court concluded that the city’s pulling of its license for working with car thieves was incredibly justified. There’s also an internal investigation in the city that found nothing wrong, and which the court was not happy about. Then IJ’s Carl Wu details a Fourth Circuit case that started with a punch up at a bachelorette party that then got really complicated. Fans of HBO’s The Wire will find many familiar facts and practices concerning Baltimore’s finest. A fight at the party leads to an off-duty police officer being disciplined and fired. She then brings a lawsuit alleging racial discrimination and a First Amendment violation. There’s all kinds of bad behavior of other cops that becomes relevant, including failures to fire cops who have done much worse. The court allows the case to go forward despite an internal investigation that pinned the blame on the officer, and which perhaps was not the most thorough. Finally, we begin a series for 2026: #12Months12Circuits. We’re giving a little background on each circuit, once a month, starting with, which else, the First. It’s a “little baby circuit” in New England.

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Nationwide v. Detroit

Johnson v. Baltimore

IJ’s Detroit forfeiture case

When you pay your bail money it’s a good practice to get a receipt. A woman in Mississippi found that out the hard way when she was arrested on pretty shaky grounds and then told she had to pay up or stay in jail. Her sister paid the $1,300+ the next day and then a long time later was never told to come back to court. She then sued for civil rights violations. But then the government claimed she had been found “guilty” and that money she paid had in fact been payment of the resulting fine. What? Marco Vasquez of IJ details this Fifth Circuit case and why the court didn’t address the merits because it had been prematurely appealed. Then IJ’s Riley Grace Borden updates us on a religious liberty matter in the Ninth Circuit concerning how expansive the First Amendment’s protection of church autonomy is. The doctrine applies to how houses of worship hire their ministers and similar officials but also extends to other church employees. How much? The court is careful to say it goes further but is careful to limit how much it says too.

All that plus a “where are they now?” update of past cases we’ve discussed on the podcast that now have met their end with cert denials. That leads to some reflections on a recent denial of a cert petition of IJ’s and why filing cert petitions can be a bit like following your local sports team.

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Jew v. Dobbins

Union Gospel Mission v. Brown

Cert Petition in McKinnon v. Hernandez

The Other Declarations of 1776

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.  

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Guptill v. Chattanooga

Keup v. Sarpy County

Henry VI, Part 1

St. Joan by Shaw