Short Circuit

The Institute for Justice is once again taking a close look at civil forfeiture. One of IJ’s leaders in our civil forfeiture work, Dan Alban, joins us to outline our new report Policing for Profit 4. Some listeners may be familiar with previous editions but, as Dan explains, in this one there’s a lot of new information and analysis, especially how civil forfeiture works procedurally and how those procedures fail the Supreme Court’s mandate that they be “timely.” Dan also discusses a recent Sixth Circuit case involving Bitcoin and civil forfeiture and how innocent owners of crypto are sometimes caught up in the forfeiture process. Then Marie Miller of IJ discusses a recent Seventh Circuit case about another government abuse near and dear to our hearts: qualified immunity. Some officers raided a rural Wisconsin property where they tackled a suspect and then “accidentally” (that’s disputed) hit him in the head with the butt of an M16. The court says with the facts being in dispute to a jury the case should go. Policing for Profit 4 U.S. v. 0.40401694 Bitcoin Steinhoff v. Malovrh Culley v. Marshall Indiana parcel forfeiture case BBO episode Pierson to Pearson

When the police ask you for an I.D., when do you have to hand it over? That depends on a lot of facts and a lot of law, including whether a state has a statute allowing an officer to make you hand the I.D. over. Mike Greenberg of IJ reports on a ruling from the Alabama Supreme Court where a cop demanded a man watering flowers tell him who he was. The man said he was “Pastor Jennings” and lived across the street. That wasn’t good enough for the cop and after some escalation Paster Jennings (who really did live across the street) was arrested. After a long march through the Eleventh Circuit the matter was certified to state court on the scope of the underlying statute. Along with that statute come Fourth Amendment issues. And whether the Erie doctrine is hogwash. Then IJ’s Betsy Sanz discusses a recent Sixth Circuit appeal involving a man serially suing his city. His claims, and their frivolity, are one matter but the more interesting part of the story is his lawyers’ use of AI in writing the briefs. The court is not happy with this, nor with the lawyers’ response to its attempt to investigate two dozen fake citations. Register for “The Other Declarations of 1776” conference on April 10! Jennings v. Smith Whiting v. Athens (merits) Whiting v. Athens (AI sanctions) Hiibel v. Sixth Judicial Dist. Court

With a baker’s dozen of circuits it’s hard to pick a favorite. Or is it? We sit down with three lawyers and scholars to ask what their favorite circuit is and why. Ben Field of IJ gives us his choice and we also bring on professors Tom Metzloff of Duke and Dawn Chutkow of Cornell. You’ll hear their impressions on how the courts work, what makes them special, and some behind-the-scenes stories (and even a conspiracy theory). But before all that we have Ben dig into a recent Ninth Circuit case concerning a Seattle ordinance that mandates policies and disclosures for app-based delivery companies. Are those policies “speech” and if so what does the First Amendment have to say about sending them to drivers? Plus, at the very beginning we give a shocking update to our #12Months12Circuits segment on the Fourth Circuit from last week. It seems there’s some trouble in the paradise of western North Carolina—or more properly put, a lack of trouble. At oral argument. And despite the statute that everyone will now be talking about: 28 U.S.C. § 48(a). Uber v. Seattle 28 U.S.C. § 48 Zauderer v. Office of Disc. Counsel

Evan Lisull of IJ tells us of a guy on probation who seems to have been pretty clever with his living arrangements. The police often don’t need a warrant to search the residence of a person on probation. In this case from the Fourth Circuit, the guy owned two properties, one of which he seemed to have lived at and the other of which he allowed his girlfriend to live in. But the girlfriend didn’t just hang out there, she had a lease with him. That lease, it turned out, was key to the court ruling the government should have got a warrant before it searched her apartment and seized thousands of dollars in cash. It’s a rare loss in a civil forfeiture case for the government. Then we go to the Eleventh Circuit where IJ’s John Korevec explains the ins-and-outs of the Federal Tort Claims Act. We explore new wrinkles on how to sue the federal government and the exceptions to the exceptions to the exceptions when doing so. Finally, we finish with a review of the Fourth Circuit as part of our #12Months12Circuits series. Register for “The Other Declarations of 1776” conference on April 10! U.S. v. Perez Doe v. U.S. Bound By Oath episode on the FTCA

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. 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. 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. Athos Overseas v. YouTube Cherry Grove Beach Gear v. North Myrtle Beach