Did you know that you can be arrested for walking on the wrong side of the road? Neither did a Missouri police officer. Until he needed an excuse to put someone in handcuffs. Marie Miller of IJ details her recent victory at the Supreme Court—in a relatively terse, 20-word opinion—on behalf of her road-walking client after he lost at the Eighth Circuit, and how the First-Amendment-retaliation victory depended on an IJ case from last term, Gonzalez v. Trevino. Then IJ’s Anya Bidwell—who had something to do with that last-term victory—outlines a trilogy of recent opinions in the Eleventh Circuit where former federal officials have tried to remove their state criminal prosecutions to federal court. It may well be that one of the cases—involving former White House Chief of Staff Mark Meadows—has been taken by the Supreme Court by the time you listen. Also, in the podcast Anya says she’ll make a handy chart to help all of you navigate through the story. Well, afterward she actually did! Click on the link below to see it.

Murphy v. Schmitt (8th Cir.)

Georgia v. Clark

Georgia v. Shafer

Georgia v. Meadows (11th Cir.)

SCOTUS docket for Meadows

Short Circuit episode with Andrew Fleischman

Ulysses

Anya’s chart

Is a “fine” a “fine”? No, not at all, and therefore it can’t be “excessive.” At least that’s the IRS’s position. Thankfully that argument was rejected in a recent Eleventh Circuit case about a taxpayer who failed to file some forms and was subsequently fined—yes, fined—millions of dollars. IJ’s Sam Gedge explains this story and what fines the court thought were excessive and were not. We also look at the Ninth Circuit and an odd rule (that only exists there) which turns dicta into law. Jacob Harcar of IJ provides the holding and some well-reasoned portions of his opinion as well. Further, as a special treat, Jacob tells us of some work he’s done on legislative immunity and Reconstruction. Plus, do you know the difference between an acronym and an initialism? Whatever it is, we hope you won’t say the two flirted excessively.

U.S. v. Schwarzbaum

Stein v. Kaiser Foundation Health Plan

Gorsuch dissent in Toth v. U.S. denial

Timbs v. Indiana

Short Circuit episode on dicta in 9th Cir.

Jacob’s Section 1983 article

Excessive flirting in Emma

With less than two weeks before America’s general election it’s time for our biennial dive into election law! A whirlwind tour of election decisions from the federal courts of appeals with a wide-ranging look at the legal disputes that arise before (and while) Americans cast their ballots. To guide us through the process we called upon Minnesota (and North Dakota) election law practitioner David Asp. He tells us what it’s like practicing in this “seasonal” specialty and what opportunities there are for attorneys to jump in and get courtroom and appellate experience. Then we dig into a Sixth Circuit case about foreigners and campaign contributions, a Ninth Circuit opinion about voter rolls, a Fifth Circuit decision on ballot collection, back to the Sixth Circuit for a flurry of opinions about RFJ Jr.’s quest to not be on a ballot, and finally to the Minnesota Supreme Court for what the heck “learned in the law” means. But we begin with the question of whether all that much has changed in politics in the last 100+ years.

OPAWL v. Yost

AZ Alliance v. Mayes

La Union del Pueblo Entero v. Abbott

RFK Jr. v. Secretary of State (MI Ct App)

RFJ Jr. v. Secretary of State (MI Sup Ct)

RFK Jr. v. Benson (6th Cir panel)

RFK Jr. v. Benson (6th Cir en banc)

MacDonald v. Simon

Psmith in the City

When it comes to the law, it’s the responsibility of the government. After all, that’s why we have a government, right? Well, it seems the government is responsible for enforcing the law . . . until it would rather not. This week we have a pair of cases where different governments have wriggled out of their enforcement responsibilities in an effort to avoid a lawsuit. And in each case it worked. First, Erica Smith Ewing of IJ tells us of a rarity in the federal courts of appeals: A Contracts Clause lawsuit that was successful—at least, it was successful in stating a Contracts Clause claim. Later on, however, the city of New York “remembered” that it didn’t actually enforce the law in question—a pandemic-era rent-collection abatement—which lead to the plaintiff landlords losing their standing. There’s a silver lining for them—but it’s very much a lining. Then we’re off to the Tenth Circuit where IJ’s Paul Sherman explains Utah’s online age verification law and how the state designed it to only be enforced by private actors. Similar to the Texas abortion law which the Supreme Court tussled with a few terms ago, the statute’s intent is to get the state out of the enforcement business, and therefore get the courts out of the business of finding content-based restrictions on speech unconstitutional under the First Amendment. And it seems this attempt succeeded, for now.

Unpublished Opinions podcast

Bochner v. NYC

Free Speech Coalition v. Anderson

Whole Woman’s Health v. Jackson

IJ amicus brief in Obamacare

Charles Osgood’s Responsibility Poem

For the 8th year in a row Short Circuit travels to the University of North Carolina to preview the Supreme Court’s new term, hosted by our friends at the school’s Federalist Society chapter. IJ’s Justin Pearson serves as your host, and joining him once again, as he has for many years now, is UNC professor Andrew Hessick. They’re joined by IJ attorney Ben Field. First they educate us with a little trivia about cases that we’ll see this term and then dig in with a deeper preview of a couple matters the justices will soon hear argument on and a couple cert petitions that the Court has been considering. You’ll learn about the First Amendment’s history with the Internet, applications of the First Step Act, where things stand with speaking occupations, and the twilight status of the Bivens doctrine.

Free Speech Coalition v. Paxton

Hewitt v. U.S.

360 Virtual Drone Services v. Ritter

Henning v. Snoden

“Twelve” isn’t just another word for a dozen or the original number of Apostles. It’s how many jurors sit on a criminal jury. Well, except in some cases. And one of those cases, from the Second Circuit, IJ’s Bob McNamara details to us this week. A New York man was prosecuted for making death threats to various broadcasters and politicians. Along the way the jury whittled down to 11 members. Which then found the defendant guilty. The Second Circuit said it’s all fine because it seemed clear the guy did it. But, as Bob explains, “juries do stuff.” Then it’s off to the Fifth Circuit for some different views of video. Anya Bidwell of IJ relates that one particular video demonstrates—or does it?—that a police officer may have been out of line and violated the Fourth Amendment with excessive force. All three judges on the panel write a take about a roadside encounter between police and a driver’s boyfriend that was imperfectly—or was it?—captured by a video camera. Two judges think this means the whole question should go to a jury. Another judge disagrees, and pines for qualified immunity.

Spiller v. Harris County

U.S. v. Johnson

Scott v. Harris

Scene from Twelve Angry Men

“Effects” isn’t a word that most people associate with “my stuff” these days. But that’s what it means in the Fourth Amendment. Our “effects” are protected from unreasonable searches and seizures just as much as “person, houses” and “papers.” Unfortunately, the D.C. police don’t agree and have been seizing people’s phones and other items and not giving them back even when they have no intention of prosecuting the property owners. Well, that may be changing because the D.C. Circuit recently issued a major decision recognizing that a “seizure” is ongoing as long as the police have your stuff in their possession. Michael Perloff of the ACLU argued and won the case and he joins us to discuss its ramifications. Several other circuits have gone the other way on the question, making it a prime issue for another court in Washington D.C. Also, Rob Frommer of IJ’s Fourth Amendment Project treats us to a qualified immunity/Fourth Amendment opinion from the Ninth Circuit about someone who was severely injured by foam baton round fired by a police officer. The judges address the extremely odd question of whether an officer gets the benefit of case law getting better for him after he commits a constitutional violation when it comes to qualified immunity. “Um, no” is the Ninth Circuit’s answer, which leads into a discussion of how qualified immunity may be changing.

Asinor v. D.C.

Sanderlin v. Dwyer

Baby blood case

Molly Brady’s “The Lost ‘Effects’” article

Economic liberty is in poll position. Or at least it won an early round victory in North Carolina. IJ attorney, and North Carolinian, Josh Windham reports on a recent ruling of the North Carolina Supreme Court about a racing track and the right to earn a living. Josh brings his knowledge of state constitutions and litigation tactics to tell this tale that began in the dark days of the COVID-19 pandemic. It also has a sovereign immunity angle that fans of IJ’s Project on Immunity and Accountability may enjoy. Then we have a special treat for fans of pizza—and, of course, that’s essentially everyone. What doesn’t include everyone, though, are those who enjoy having foreign websites track everything we do on our computers. Will Aronin of IJ tells us of a Third Circuit case that examines how various companies track users’ online activity while on the companies’ websites—including users ordering pizza. Is that tracking enough to mean you can sue the company in Pennsylvania? Well, we don’t know because the court didn’t allow the case to go forward. Will breaks it down while providing some strong views about invasions of one’s personal—and virtual—space, plus a throwback reference to shrinkwrap licensing. And did you know that on any given day 13% of Americans are eating pizza?

Kinsley v. Ace Speedway Racing

Hasson v. Fullstory, Inc.

Shrinkwrap license case

Short Circuit episode on Georgia economic liberty case

Anthony on Advisory Opinions about Justice Holmes

Dumas’ Marguerite de Valois

A special edition of Short Circuit Live where the Institute for Justice teamed up with the Texas Observer for a conversation about how local governments increasingly are retaliating against those who call them to account. The event took place in Austin, Texas on September 4, 2024, and was subtitled “Picking the man and then searching the lawbooks: How local governments turn to their criminal codes to silence critics.” It brought together the Observer’s Gus Bova, IJ’s Anya Bidwell, Texas journalist Jason Buch, and Texas attorney David Gonzalez. The discussion mentions several high-profile examples of local-government retaliation from the last few years, including IJ’s Gonzalez v. Trevino and a case that the Supreme Court may soon also hear, Villarreal v. City of Laredo. The confluence of journalists, a civil rights lawyer, and an attorney who has worked as a Texas special prosecutor make for a wide-ranging exploration that we hope you enjoy.

Gonzalez v. Trevino case page

Villarreal v. City of Laredo en banc

Right on Crime

Over Ruled by Justice Gorsuch

Texas Observer

An extremely sad case, especially for man’s best friend (dog-lover discretion is advised!), and a happy case for property rights. First, the Center for Judicial Engagement’s new Assistant Director, John Wrench, brings us the latest in wild Fifth Circuit qualified-immunity stories with a domestic disturbance check gone bad—so bad that an officer is alleged to have shot two non-threatening dogs. A silver lining is that the grant of qualified immunity was reversed on appeal. Then Betsy Sanz hops aboard to ride the rails. She tells us of the Pennsylvania Supreme Court’s recent decision that the word “railroad’ doesn’t magically turn everything it touches into a public use. It’s a big Fifth Amendment takings case that prevented the use of eminent domain to build a railroad that would only service one party. It also brings to light another railroad-takings case that IJ is litigating in Georgia.

Ramirez v. Killian

Wolfe v. Reading Blue Mountain

Bound By Oath episode on Pennsylvania and coal

IJ’s Georgia railroad eminent domain case

From a Railway Carriage

Part of the job description of a journalist is talk to public officials, gather information, and report on it. Unfortunately, that seems to be a crime in Texas. An unconstitutional crime, to be sure, but enough of a crime that the Fifth Circuit said there was qualified immunity for officers who arrested a citizen journalist for asking question of a source within a police department and reporting what she heard. JT Morris of the Foundation for Individual Rights and Expression (FIRE) joins us to discuss this loooooong running case and a pending cert petition at the Supreme Court. It involves the First Amendment, freedom of the press, the Fourth Amendment, arrest warrants, retaliation, and all kinds of Fifth Circuit drama. Then we move to the Eleventh Circuit where our own Anya Bidwell reports on an extremely strict version of qualified immunity that protected a forcible strip search made of a visitor to a prison without any probable cause. There are also concurrences disagreeing with the circuit’s own caselaw, including and one of our favorite staples: a Judge Newsom concurrence asking “what is the law?”

IJ event with the Texas Observer in Austin on September 4!

Short Circuit on YouTube

Villarreal v. Laredo (en banc)

Villarreal v. Laredo (panel)

Villarreal cert petition

Short Circuit 201 (discussing Villarreal panel opinion w/o dissent)

Pentagon Papers case

Gilmore v. Georgia Dept. of Corrections