Short Circuit

Short Circuit went mile high for a live show before the students at Sturm College of Law at the University of Denver. The focus was qualified immunity. That’s because Colorado led the way with qualified immunity reform a few years ago when its legislature adopted SB 20-217, which created a cause of action for suing state and local officials when they violate rights protected by the state constitution and also made sure that qualified immunity wouldn’t get in the way. Our panel were three local experts on the subject. First we heard from former Colorado State Senator John Cooke. Senator Cooke was involved in the passage of Colorado’s reform legislation while also working with law enforcement. He explains what was involved in those negotiations and what the reforms mean from the law enforcement side, something he knows about after having served as an officer and a sheriff for thirty years before entering the legislature. Then we hear from Andy McNulty, a Colorado civil rights lawyer. He was also involved in the passage of Colorado’s reforms and gives us his perspective from the civil rights litigation side. Then he describes a Tenth Circuit case he litigated about a woman who was brutally injured by a police officer. The court said her rights were indeed violated, but not in a way that overcame qualified immunity. Finally, we hear from Professor Laurent Sacharoff of Denver Law. He tells us of a recent Tenth Circuit case where a couple of officers got their dog to run into a house without first contacting the resident but after telling the dog to bite the first person it sees. Sig, the dog, then did what it was told and bit the resident—who was asleep in bed—and was allowed to hold on for a minute before the police commanded it to stop. The court found that this was so obviously wrong that it not only violated the Constitution but that the plaintiff overcame qualified immunity. The panel discusses why QI was defeated in one case and not the other and how this makes for unpredictability in legal practice. SB 20-217 Surat v. Klamser Luethje v. Kyle Tenth Circuit courtrooms

An old friend returns to Short Circuit, but it’s not a guest. It’s a case, Villarreal v. City of Laredo, where police retaliated against a citizen journalist. We’ve talked about the matter a few times before, most recently last year when the Supreme Court was considering whether to take it. The thing is, the Court did take the case, reversed what the Fifth Circuit did on qualified immunity, and remanded for a do over based on IJ’s victory last year, Gonzalez v. Trevino. Which the Fifth Circuit now claims it has done, except it seems like nothing changed. IJ’s Kirby Thomas West analyzes the outcome and tries to make sense of the current state of play. After that Jacob Harcar of IJ take us down memory lane to when some of us used to rent these rectangular things called VHS cassettes. Because of worries about privacy—and in the wake of Judge Robert Bork’s confirmation hearings—Congress passed a law in the 1980s banning video stores from giving out lists of what movies people rented. Turns out, even though just about no one rents these things anymore, the statute still applies to rentals of movies online. Both the Sixth Circuit and the Seventh Circuit recently ruled on the scope of the law and came to opposite conclusions. Along the way, Jacob provides a dramatic reading of the original article about Bork’s video rentals. And stay tuned to the end for a segment of “Where Are They Now?” Villarreal v. City of Laredo Gardner v. Me-TV National Limited Partnership Salazar v. Paramount Global Short Circuit episode with JT Morris 1987 article on Judge Bork’s video rentals Short Circuit episode on Papa Johns’ website Nietzsche’s Eternal Recurrence

Last week the Short Circuit staff celebrated ten years of our inexhaustive coverage of the federal courts of appeals. At the Studio Theatre in Washington, D.C. we welcomed about 150 of our closest friends to an evening of reminiscing about “how it all began” with John Ross, Robert McNamara, and Clark Neily plus a “showcase panel” discussing the future of the federal circuits with moderator Ben Field eliciting comment from retired judges Kent Jordan (Third Circuit) and Diane Wood (Seventh Circuit) plus Adam Liptak of the New York Times. Unfortunately for you, dear podcast listener, those acts of our performance were not recorded. But sandwiched between them we held a Short Circuit Live which, like all Short Circuit Lives, was recorded! Which is this week’s episode. Your host Anya Bidwell welcomes two returning guests to Short Circuit, Professor Eugene Volokh of the Hoover Institution at Stanford University and Raffi Melkonian, appellate attorney and partner at Wright Close and Barger in Houston, Texas, and, as many listeners will know, the Dean of what some still call #AppellateTwitter. Eugene begins the episode with a recent en banc ruling from the Ninth Circuit which upheld California’s ban on gun magazines with more than 10 rounds. He analyzes the majority’s reasoning but what the audience really enjoyed was his—and Raffi and Anya’s—thoughts about the video dissent by Judge Van Dyke, wherein the judge displayed a number of firearms and how they work. Then we move to Raffi for a few litigation tips from Lord of the Rings. We don’t do a lot of arbitration cases on Short Circuit but, wow, if you’re ever going to hear about one it’s got to be this. Four different arbitrators all heard one dispute, gave mutually inconsistent awards, and even sanctioned one and other. How does this story end? The Fifth Circuit hopes with one last arbitration to rule them all. If it doesn’t go to the Supreme Court first. Duncan v. Bonta Sullivan v. Feldman Judge Van Dyke’s video dissent 

Bad news for our AI listeners this week. The D.C. Circuit ruled that you cannot be the “author” of a copyrighted work. Only humans get that perk. Dan Knepper of IJ comes by to explain this latest victory in humanity’s war against the machines. Dan also lays out how the court actually kind of dodged some of the trickier issues when it comes to artificial intelligence and copyright law, but notes that those may be coming soon. IJ’s Dan Nelson (no relation) then steps up and takes us on a trek to Wyoming where some hunters engaged in “corner crossing” to get to public land, which an adjoining private landowner did not appreciate. The owner sued the hunters for nine million big ones because they briefly were in private airspace while jumping between parcels. Was that jumping OK? You’ll learn why the Tenth Circuit said it was, and also hear some history about why the West was turned into a checkerboard. Daniel Nelson and Patrick Jaicomo’s Section 1983 article Thaler v. Perlmutter Iron Bar Holdings v. Cape John Connor’s speech

Most weeks we summarize two, sometimes three, cases from the federal courts of appeals. This week we provide to you free of charge (as always) one, single, case. But, hang on, it has four opinions! It’s also 169 pages, which is way way more than our guests usually read for all an episode’s cases put together. We did, however, so you don’t have to. The matter is about a Florida public school that didn’t abide by the wishes of a child’s parents when it comes to what pronouns to use for the child. Much more broadly, though, it’s about the ins-and-outs of how the due process clauses of the Constitution substantively protect rights. And how rights are protected is different not only based on whether the right is “fundamental” or not, but also whether the government is acting legislatively or executively. Our team goes through each opinion, details where the three Eleventh Circuit judges disagreed with each other, evaluates the litigation tactics, and points out where the judges—and the Supreme Court precedent they’re relying on—go astray. Littlejohn v. School Board of Leon County Sacramento v. Lewis Judge Newsom’s article on incorporation The One and Only Substantive Due Process Clause

Is stretching out one’s middle finger at the police protected by the First Amendment? And whether it is or not, can the police trump up charges and assault someone who flips that bird? We dig into those deep constitutional issues with Jaba Tsitsuashvili of IJ when he discusses an Eighth Circuit case about a man stopped in Des Moines, Iowa. The police claim it was because he drove dangerously. The courts bought that—until the man got a hold of the video. It showed that the police may not have been entirely accurate, which led to his acquittal and the current civil rights lawsuit. Then we move to the Sixth Circuit and hear from IJ’s Robert Fellner about another retaliation case, this time involving Wayne County, Michigan. A man had his pension cut off in response to him criticizing the county’s policies. But he seems to have not actually qualified for the pension at that time anyway. What’s that mean for retaliation and the First Amendment? The court upheld a jury award for the man and he won on appeal. Our panel discuss how the issue can get complicated. Click here for transcript. Fugenschuh v. Minnehan Seals v. Wayne County Whren v. U.S.

Often in old constitutional cases you see judges of yonder years invoking this mysterious substance called “the police power.” It’s something that has fallen out of a lot of our constitutional conversations, and unfortunately when it’s remembered today it’s often taken to mean “the government can do whatever it wants.” We take an episode to try and set things straight. Joining us is Professor Daniel B. Rodriguez of Northwestern, who has written a book to explain what the police power is, where it comes from, and why it—for better or for worse—allows our state and local governments to do a good many things, but not all things. The book is Good Governing: The Police Power in the American States. Dan points out that the police power, the states’ power to regulate for public health, safety, welfare (and perhaps morals), was traditionally not thought of as simply letting the government do whatever it wants minus constitutional rights. Instead, what the government did could exceed the police power without even getting to the question of rights. Over the years the police power has expanded in ways many of us can reasonably disagree about, Dan taking a more expansive view than many fans of IJ might. But whatever one’s thoughts on where the edges are, Dan persuasively argues we need to reassess where the police power has gone and where it’s going. On the podcast we particularly focus on zoning and occupational licensing as a couple areas needing rethinking, and cover much other ground. It you’ve ever wondered what’s the difference is between the police power and due process or where the states get their authority to regulate in the first place this is the wide-ranging episode—and book—for you. Click here for transcript. Good Governing (free download!) Good Governing (physical copy for purchase) Dan’s NYU Journal of Law & Liberty article

What’s the difference between a campaign contribution and a bribe? More than the Sixth Circuit seemed to think. Or so argues Paul Sherman of IJ about a recent appeal of a bribery prosecution of a Cincinnati city councilmember. The councilmember was speaking to a developer and asking for a contribution. Unknown to him, the developer was working with the FBI and wearing a wire. They had some conversations about contributions and approving projects that were very confusing and also raised important First Amendment concerns. The court split 2-1 on whether his conviction was OK with three interesting opinions. Then we move on from bribery to iPhone use. By cops. Who use an iPhone to look into a car’s window. Was that a search? IJ’s Bobbi Taylor discusses a Second Circuit case that said it was not and neither was the touching of the car a seizure. It’s an interesting Fourth Amendment case where the court applies a famous case of Justice Scalia’s about searches and modern technology. The “reasonable expectation of privacy” test comes up as does the complete mess that the Fourth Amendment finds itself in these days. Click here for transcript. U.S. v. Sittenfeld U.S. v. Poller Kyllo v. U.S. Herculaneum scrolls Plunkitt of Tammany Hall

A long-time friend of the Institute for Justice, Robert Thomas, joins us this week. For years he’s litigated property rights cases across the country, lately for the Pacific Legal Foundation, and also blogged his adventures—and a whole bunch of other property rights news—at inversecondemnation.com. With some years since his last visit to Short Circuit, he comes back to discuss a recent North Carolina case where the legislature revived some claims after a statute of limitations had lapsed. Was that the taking of a “vested right”? The court is unanimous in saying it wasn’t, but how the two opinions got there in different ways is the most interesting part. Then, IJ’s Justin Pearson brings us to the fields—and feed lots—of Minnesota for a retaliation case where a farmer petitioned the state legislature. That leads into a discussion of “old property” versus “new property” and how we should think about their protections. Plus, law students interested in SCOTUS previews being held at their school should reach out to Justin. Those looking for a little “where are they now” can skip to the end. And fans of Thomas Hardy can enjoy the opening. Register for the Tavern Debate on March 28, 2025 in Westlake Village, California! RSVP for our 10th Anniversary Party and Show on April 3d in DC! Click here for transcript. Wagner v. Scheirer McKinney v. Goins inversecondemnation.com Bound By Oath episode on Pennsylvania Coal SC episode on the British Constitution Tess of the d’Urbervilles

Everyone agrees we need to build more homes. But what if those homes are going to be in your backyard? For some reason that possibility often leads to discoveries of endangered species. Ben Field of IJ joins us to report on an environmental case from the Fourth Circuit where the dispute came down to whether new homes would hurt a species of bat. The problem is no one had seen a bat. So are they really endangered? And what does this have to do with the famous snail darter “species” from a 1970s Supreme Court Case? Ben explains all. Then your host lays out how a case is “removed” from state to federal court and “remanded” back again. This issue came up in some opioid crisis litigation, also from the Fourth Circuit. Follow along as all the mysteries of the federalist system are revealed. Click here for transcript. S.C. Coastal Conservation League v. Corps of Engineers City of Martinsville v. Express Scripts TVA v. Hill Adam’s Legal Newsletter post on the snail darter Short Circuit episode on Mark Meadows case Short Circuit episode on PBMs Dracula Corleone, Sicily