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.



Click here for transcript.



Buchanan v. Barr



Snowden v. Henning



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

Short Circuit 280 | Something’s Rotten in the State of Bivens

The Supreme Court decides a few dozen cases every year; federal appellate courts decide thousands. So if you love constitutional law, the circuit courts are where it’s at. Join us as we break down some of the week’s most intriguing appellate decisions with a unique brand of insight, wit, and passion for judicial engagement and the rule of law.  http://ij.org/short-circuit

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News Commentary

Stories we hope our listeners can relate to this week: borrowing cars and lousy neighbors. First, from the Sixth Circuit, IJ’s Rob Frommer details how a man sitting in the passenger seat of a running car somehow lost his Fourth Amendment standing. And went to prison. And then in the Second Circuit your host explores what can be done when your neighbor is an embassy. It’s an all-too-familiar tale of a building project gone awry but with a twist of sovereign immunity.  



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U.S. v. Rogers



Harvey v. Sierra Leone



Neighbors 1980’s opening song



Fawlty Towers—The Builders

Short Circuit 322 | Neighbors

It’s been a while but we’re back with an episode of Unpublished Opinions. Herein IJ attorneys Anya Bidwell, Patrick Jaicomo, and your host talk about . . . Anya’s recent Supreme Court oral argument, how SCOTUS is surprisingly a friendlier place to argue than many other courts, the recent FTC rule about non-competes, why we still have a “Lawyers’ Edition” for SCOTUS cases, how perhaps lawyers can learn from magazine covers . . . and more!



Judge Posner liquidated damages case



Rob Johnson’s Tweet on FTC’s & non-competes



Anya’s SCOTUS argument



No Fly List case

Unpublished Opinions 6 | Little Contract Tricks

We can neither confirm nor deny the existence of this podcast. But if we could we’d tell you all about the CIA’s involvement in a prison at Guantanamo Bay. At least that’s what some Freedom of Information Act litigation is trying to figure out in a case at the D.C. Circuit. Michel Paradis, a national security lawyer and expert on much else, joins us to share his impressions of a recent oral argument in this case and the underlying relationship between FOIA and agencies like the CIA. There’s also a story about Howard Hughes and a submarine. Then IJ’s Ben Field takes us to the Fifth Circuit for a challenge to how a Texas prison treats a Muslim inmate. It’s a provisional win for religious liberty which includes an interesting concurrence about the kind of scrutiny courts should apply when it comes to prisoners practicing their religious freedoms while behind bars.



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Connell v. CIA



Lozano v. Collier



Audio Arguendo (Michel’s oral arguments podcast)

Short Circuit 321 | A Tale of Two Prisons

We revisit an issue that’s really coming into focus: cameras on poles and how they stand up to the Fourth Amendment. Mike Greenberg of IJ comes by to tell the story of a veteran who received disability benefits when, it seems, he wasn’t exactly disabled. Things get interesting when the feds put a camera on a pole (on a school) and point it at his house 24/7 for months. Is that a search? The Tenth Circuit says it isn’t and uphold his felony conviction. But, as Mike explains, other courts have disagreed. Then your host brings us some zoning plus standing plus the Establishment Clause in the suburbs of New York City. There, some residents don’t like how their village has let their Jewish neighbors open more houses of worship and claim it will “radically transmorgrify” things. Do they have an “injury”? The Second Circuit doesn’t think so.



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US v. Hay



Citizens United to Protect Our Neighborhoods v. Chestnut Ridge



Episode on 7th Cir pole camera case



Episode on 1st Cir pole camera case



End of The Usual Suspects (SPOILER ALERT!)

Short Circuit 320 | Spy Cameras

Two wild stories this week, one biblical and one of a more secular nature—but still wild. Jeff Redfern of IJ tells of a Texan judicial shootout in a fight between credit card companies and the Consumer Finance Protection Bureau. The companies got tired of waiting for the trial court to rule on an emergency motion so they appealed it—but around the same time the trial court transferred the case to a court in Washington, D.C. Was that wrong? Can anything be done about it? Opinions differ. Then Keith Neely of IJ takes us underwater to the Sixth Circuit for perhaps our first case involving baptism. An officer was ready to charge a driver with marijuana possession, but then offers to give her a lesser charge . . . if she lets him baptize her in a lake that night. Which, after she grabs some towels, goes forward. And in the ensuing lawsuit qualified immunity is denied because, well, this is pretty obviously unconstitutional. Right? Also, Keith gives a preview of IJ’s new show Beyond the Brief. Check it out!



Beyond the Brief



In re Fort Worth Chamber



White v. Hamilton County



Mark i:6-8

Short Circuit 280 | Something’s Rotten in the State of Bivens

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