Short Circuit

On a special Short Circuit we look at the Constitution, and the constitutional history, of the Golden State. With two state constitutions and conventions in its history, and a multitude of ballot measures amending the state’s highest law, the story of the California Constitution is a turbulent, dynamic, and fascinating look at how constitutions get made in this country. Joining us are two experts who run the California Constitution Center at the University of California at Berkeley, Dr. David Carrillo and Stephen Duvernay. We also discuss how to research a state constitution, what resources are available online to both litigators and scholars, and how useful those materials might turn out to be. Transcript: https://ij.org/wp-content/uploads/2021/08/Short-Circuit-184_otter-FINAL.pdf IJ’s Conference on the Will of the People, https://ij.org/event/does-the-will-of-the-people-actually-exist/ California Constitution, https://law.justia.com/constitution/california/ California Constitution Center, https://www.law.berkeley.edu/research/california-constitution-center/ David A. Carrillo, https://www.law.berkeley.edu/our-faculty/faculty-profiles/david-carrillo/ Stephen Duvernay, https://www.law.berkeley.edu/our-faculty/faculty-profiles/stephen-duvernay/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

The Supreme Court has said a “search” occurs when the police invade your “reasonable expectation of privacy.” So what is a “reasonable expectation” to be free from video surveillance in a world where everyone has a camera, everywhere? Rob Frommer tells us the Seventh Circuit says there basically is no such thing as long as what you’re doing can be seen from a public place (or in this case, three cameras mounted on a utility pole for 18 months). But the court isn’t happy with the result and utters a cry for help. Also, have you ever had to fill out forms that don’t make any sense? Ben Field joins the podcast to tell the tale of what forms you need to lose your U.S. Citizenship, and how it’s difficult to sign them from federal prison. Transcript: https://ij.org/wp-content/uploads/2021/07/Short-Circuit-183_otter.ai-FINAL.pdf United States v. Tuggle, http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D07-14/C:20-2352:J:Flaum:aut:T:fnOp:N:2733467:S:0 Farrell v. Blinken, https://www.cadc.uscourts.gov/internet/opinions.nsf/E73FAF5B041FF05685258711005181D8/$file/19-5357-1906101.pdf Katz v. United States, https://www.law.cornell.edu/supremecourt/text/389/347 Vogon Bureaucracy (21:30), https://www.dailymotion.com/video/x4syjrl Rob Frommer, https://ij.org/staff/rfrommer/ Ben Field, https://ij.org/staff/ben-field/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

Today we think of the Equal Protection Clause as requiring equal treatment of the laws. But in addition to anything else it covers, at its core it’s supposed to protect, well, equal protection. Yet if you bring a claim that you’re not being protected equally the courts generally have little to offer. However, civil rights attorney Laura Schauer Ives just won an appeal at the Tenth Circuit in a tragic case where the court did take “protection” seriously, denying qualified immunity to police officers who failed to protect a woman from her stalking ex-partner. She joins us to discuss the victory and its wider impact. Also, what’s a “closely-regulated industry?” That term is often used to deny businesses some of their Fourth Amendment protections, and the Ninth Circuit recently ruled that massage parlors qualify. IJ’s Josh Windham joins us to analyze whether this is becoming an exception that swallows the rule, i.e. the rule that the government come back with a warrant. Click here for transcript.

It’s not often that we get three different appellate opinions on the same issue in one week. But recently the Fifth Circuit (twice) and the Tenth handed down their thoughts on mandatory bar associations and the First Amendment. Those are groups that lawyers in some states must join—and pay for—in order to work as licensed attorneys. The Supreme Court has said a lot of things over the years on whether these kinds of requirements are constitutional, overruling itself but also not overruling itself at the same time. What do you do with that confusing precedent if you’re a lower court federal judge? IJ attorney Rob Johnson joins us to walk through who now does—or does not?—have to join their state bar association, and how all of this may (quickly?) make its way back to the Supreme Court. Transcript: https://ij.org/wp-content/uploads/2021/07/Short-Circuit-181.pdf Schell v. The Chief Justice, https://www.ca10.uscourts.gov/opinions/20/20-6044.pdf McDonald v. Longley, https://www.ca5.uscourts.gov/opinions/pub/20/20-50448-CV0.pdf Boudreaux v. Louisiana State Bar Assoc., https://www.ca5.uscourts.gov/opinions/pub/20/20-30086-CV0.pdf Janus v. AFSCME, https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf Keller v. State Bar of California, https://supreme.justia.com/cases/federal/us/496/1/ Rob Johnson, https://ij.org/staff/rjohnson/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

The Fifth Circuit is not boring. In just one week they served up enough qualified immunity cases to fill an entire episode, and then some. Nicolas Riley of Georgetown’s Institute for Constitutional Advocacy and Protection joins us to discuss a case he litigated where the circuit failed to apply the Fourth Amendment to some rather un-Fourth Amendment friendly behavior by school officials. IJ’s Anya Bidwell then sends us in the other direction where the circuit denied qualified immunity to a pair of paramedics who refused to help a prisoner, and we discuss whether the Supreme Court’s recent tea leaves pushed it in that direction. Finally, we take apart an en banc denial where a majority of the circuit most definitely is not reading those tea leaves—although Judge Willet may be in the form of a telegraph message. Transcript: https://ij.org/wp-content/uploads/2021/07/short-circuit-180.pdf J.W. v. Paley, http://www.ca5.uscourts.gov/opinions/unpub/19/19-20429.0.pdf Kelson v. Clark, http://www.ca5.uscourts.gov/opinions/pub/20/20-10764-CV0.pdf Ramirez v. Guadarrama, https://www.ca5.uscourts.gov/opinions/pub/20/20-10055-CV0.pdf Taylor v. Riojas, https://www.supremecourt.gov/opinions/20pdf/19-1261_bq7c.pdf Nicolas Riley, https://www.law.georgetown.edu/icap/our-team/ Anya Bidwell, https://ij.org/staff/anya-bidwell/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

Something that is not the bee’s knees is when the county mosquito sprayers forget to tell you to cover up your bees so they don’t get murdered. When the bee farmers sue, is that killing a taking under the Fifth Amendment? Jeff Redfern comes on to explain how the Fourth Circuit said no, but along the way made it easier for property owners to bring takings claims in other cases. And can federal employees go to court so they can feel free to Tweet #Resistance? Not any more, and perhaps not ever, as Adam Shelton tells us of another Fourth Circuit opinion. Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-179_otter.ai-FINAL.pdf AFGE v. Office of Special Counsel, https://www.ca4.uscourts.gov/opinions/201976.P.pdf Yawn v. Dorchester County, https://www.ca4.uscourts.gov/opinions/201584.P.pdf Cert petition in Lech (tank case), https://ij.org/wp-content/uploads/2019/11/Lech-rehearing-petition-filed.pdf Jeff Redfern, https://ij.org/staff/jeffrey-redfern/ Adam Shelton, https://ij.org/staff/adam-shelton/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

If I express myself through designing a new house, is that expression protected by the First Amendment? Last week the Eleventh Circuit avoided that question through a couple dodges for which Paul Sherman takes it to task. And why do defendants enter into plea deals? We often don’t know, but Justin Pearson tells us about an Eighth Circuit case where a man may have had little choice to take one after (perhaps unwittingly) funding terrorist groups in Syria. Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-178_otter-FINAL.pdf Burns v. Town of Palm Beach, https://media.ca11.uscourts.gov/opinions/pub/files/201814515.pdf United States v. Harcevic, https://ecf.ca8.uscourts.gov/opndir/21/06/192755P.pdf Justin Pearson, https://ij.org/staff/justin-pearson/ Paul Sherman, https://ij.org/staff/psherman/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

How many pop culture references can a judge make in an opinion before we start to cringe? “Dean” of #AppellateTwitter Raffi Melkonian joins us to give his thoughts on a recent Ninth Circuit case that perhaps broke the all-time record for “coolness,” perhaps to such an extent that it got in the way of its own underlying legal argument. Plus, Diana Simpson looks at another case from the Left Coast, trying to thread the needle on whether “Your right to remain silent” is a “constitutional right” or merely a “constitutional rule.” What’s the difference? We’re not really sure. Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-177_otter.ai-FINAL.pdf Tekoh v. County of Los Angeles (en banc), https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/03/18-56414.pdf Tekoh v. County of Los Angeles (panel opinion), https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/15/18-56414.pdf Briseno v. Henderson, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/01/19-56297.pdf McCaughtry v. City of Red Wing (Phil Simms quote), https://casetext.com/case/mccaughtry-v-city-of-red-wing-3 Raffi Melkonian, https://www.wrightclosebarger.com/attorneys/raffi-melkonian/ Diana Simpson, https://ij.org/staff/diana-simpson/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

There’s this mysterious word in English that courts love to talk about, the Notorious A-N-D. Does it, in fact, mean “and?” Or does it mean “or?” The correction interpretation of the First Step Act—and a lot of years in prison for a lot of people—ride on the answer. Wesley Hottot explains how the Ninth Circuit and the Eleventh Circuit recently disagreed on this fundamental question. And can you sue over an unsolicited text message? Alexa Gervasi tells us what the Fifth Circuit said about this question, including how it relates to a public nuisance. Transcript: https://ij.org/wp-content/uploads/2021/06/Short-Circuit-176_otter-FINAL.pdf United States v. Garcon, https://media.ca11.uscourts.gov/opinions/pub/files/201914650.pdf United States v. Lopez, https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/21/19-50305.pdf Cranor v. 5 Star Nutrition, LLC, https://www.ca5.uscourts.gov/opinions/pub/19/19-51173-CV0.pdf Justice Paul Thissen, When Rules Get in the Way of Reason: One judge’s view of legislative interpretation, https://cdn.ymaws.com/mcaa-mn.org/resource/resmgr/files/mcaa_news/J_Thissen_article_in_Bench_a.pdf Alexa Gervasi, https://ij.org/staff/alexa-gervasi/ Wesley Hottot, https://ij.org/staff/whottot/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org

Can the county foreclose on your house because you haven’t paid your taxes, and then just keep the rest of your equity? In Ohio, yeah, they can. That kind of sounds like a taking without just compensation, which is why Ohio attorney Emily White joined us to talk about her recent case at the Sixth Circuit. Then Kirby Thomas West of IJ takes us “up north” where a band of Native Americans argued their land is a reservation under some often-neglected, and often-dishonored, agreements with the federal government. It’s an all Sixth Circuit, all Big Ten, property rights edition of Short Circuit. Transcript: https://ij.org/wp-content/uploads/2021/06/short-circuit-175_otter.ai-FINAL.pdf Harrison v. Montgomery County, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0103p-06.pdf Oral argument in Harrison v. Montgomery County, https://www.opn.ca6.uscourts.gov/internet/court_audio/aud2.php?link=audio/04-29-2021%20-%20Thursday/20-4051%20Alana%20Harrison%20v%20Montgomery%20County%20OH.mp3&name=20-4051%20Alana%20Harrison%20v%20Montgomery%20County%20OH Little Traverse Bay Band of Odawa Indians v. Whitmer, https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0109p-06.pdf McGirt v. Oklahoma, https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf Thread on Oklahoma history, https://threadreaderapp.com/thread/1288098856346034179.html Emily White, https://www.dannlaw.com/attorney-profile/emily-white/ Kirby Thomas West, https://ij.org/staff/kirby-thomas-west/ Anthony Sanders, https://ij.org/staff/asanders/ iTunes: https://podcasts.apple.com/us/podcast/short-circuit/id309062019 Spotify: https://podcasters.spotify.com/podcast/1DFCqDbZTI7kIws11kEhed/overview Stitcher: https://www.stitcher.com/podcast/institute-for-justice/short-circuit Google: https://play.google.com/music/listen?u=0#/ps/Iz26kyzdcpodkfm5cpz7rlvf76a Newsletter: ij.org/about-us/shortcircuit/ Want to email us? shortcircuit@ij.org