Short Circuit 451 | Tales from the Tenth

Ever seen a hamburger UFO? A town in Kansas tried to make sure its residents couldn’t. At least regarding a mural at a hamburger joint. The restaurant tried to paint a picture of hamburger flying saucers on the side of its building but local officials told it to stop because the picture wasn’t a legal “sign.” The restaurant argued this was a First Amendment violation. And the Tenth Circuit agreed. IJ’s John Wrench flies us around this free speech case and also gives some examples of excellent deposition questions. Then Eliana Fleischer of IJ gets into a hugely topical case on the Fourth Amendment and cell phone locations, from the Fourth Circuit. Some Baltimore police used a cell-site simulator—called “Hailstorm”—to figure out where a suspect’s cell phone was. Trouble is they didn’t get a warrant and the technology also tells the police where a bunch of other people’s cell phones are and can disrupt their calls. Was this constitutional? No. Was it clearly established? No also. So qualified immunity applies. There’s also a wild sidenote about a nondisclosure agreement and the FBI. Plus, Eliana tells us a bit about one of the best kept secrets in the federal courts of appeals: the Seventh Circuit’s staff attorneys office. Cozy Inn v. Salina Andrews v. Baltimore IJ’s donut mural case

With a live audience in Cambridge, Massachusetts, we mark (not celebrate) the 100th anniversary of Village of Euclid v. Ambler Realty, where the Supreme Court ruled it was constitutional for cities to “zone” land into separate uses. We’re in Cambridge for two reasons. First, we also mark (and celebrate) a forgotten follow-up case from 1928: Nectow v. City of Cambridge. There, the Court clarified that there are situations where zoning rules can be unconstitutional and said that about a particular rule in the city. Second, we hear about the great zoning reforms Cambridge has pursued in recent years, giving it a much simpler zoning code and making it a much better place to build housing. Before an audience of Cambridge residents we hear from a panel of zoning experts: Harvard Law’s Molly Brady, the Vice Mayor of Cambridge, Burhan Azeem, and IJ’s own Ari Bargil. We discuss the two SCOTUS cases and their influence on constitutional law today, hear from Vice Mayor Azeem about the reforms he’s pursued in Cambridge, and speak more generally about whether the future, and property rights, will give us a little more Nectow and a little less Euclid.  Euclid v. Ambler Realty Nectow v. City of Cambridge Molly’s article on deeds Welcoming Neighbors Network Bound By Oath episode on Euclid

Vote early. But maybe don’t vote often? That’s the bottom line from Short Circuit’s biannual election special. With the 2026 General Election only days away, IJ’s Diana Simpson and your host bring you some of the latest cases from the federal courts of appeals on elections and political speech. There’s a polling place full of rulings on speech and paperwork burdens, what you can say about who can vote, the Founder’s fondness for anonymous pamphlets, the motor voter law, the Purcell principle, preliminary injunctions, prefilling voter applications, public records requests, and a real-life Twenty-Sixth Amendment case. Minnesota Voters Alliance v. Ellison AFP v. Meyer AFP v. Albence VoteAmerica v. Schwab Grant v. Belangia Red Wine & Blue v. LaRose PILF v. Wolfe PILF v. Simon

John Wrench is joined by Diana Simpson and Patrick Jaicomo to discuss the truly frightful! Like, what to make of the Supreme Court’s latest refusal to address whether the government needs to pay innocent people when it destroys or damages their property, and what can be distilled from the justices’ insistence on further “percolation” of the issue? Speaking of which, the Court will weigh in on a challenge to the federal ban on distilling spirits at home; might it rein in horrifyingly broad interpretations of the Necessary and Proper Clause? Finally, they speculate about law’s experiences with the spectral, including witness testimony about ghostly encounters and the practical challenges of selling a haunted house. Diana’s Chicago impound case IJ’s SWAT takings cases McNutt at SCOTUS

Short Circuit visited the Tenth Circuit Bench and Bar Conference in Colorado Springs. Between gin and tonics at the Broadmoor hotel we heard from a number of Tenth Circuit experts about some interesting circuit cases and what makes their court a Perfect Tenth. You’ll hear about qualified immunity, gun rights, prisoner conditions litigation, the continuing ramifications of the McGirt decision for the federal courts in Oklahoma, law students arguing on appeal, and what goes on at the Tenth Circuit Historical Society. Get your Rocky Mountain High, feel the wind come sweeping down the plain, and learn that in some matters you actually are in Kansas anymore. Tenth Circuit Historical Society McGirt v. Oklahoma The OG Tenth Circuit

If you’ve ever seen the 1971 flick “The French Connection” you may know a bit about hiding illegal drugs inside the bodies of cars. Someone else had the same background knowledge and so had installed a secret compartment in his minivan. The problem for him was the police already had a warrant to search his home and while they were executing the warrant they took his van. After taking it away they got another warrant and found the drugs and then took the van through civil forfeiture. The defendant argued there was no warrant for the van’s initial seizure and that it therefore violated the Fourth Amendment. Unfortunately for him, the Second Circuit upheld what the police did because of the “automobile exception.” Robert Fellner of IJ tells us the story and discusses the weird world of civil forfeiture, cars, and searches, that should trouble us even when it crosses paths with the not most sympathetic of folks. After that, IJ’s Andrew Ward tells us of an Eleventh Circuit matter addressing the right to raise one’s child and substantive due process. The opinion allows us to have a fascinating discussion about general matters of constitutional law but please be warned (especially parents with children listening) that some sensitive subjects come up. RSVP for Short Circuit Live in Cambridge, Mass. on October 19! U.S. v. Acevedo Henry v. Sheriff Short Circuit 369 The French Connection

Our annual Supreme Court term preview, this year from Wake Forest Law and released today, First Monday, the first day of the Supreme Court’s new term. IJ’s Justin Pearson is joined by colleague Paul Avelar and Professor Wilson Parker of Wake Forest. After a bit of SCOTUS trivia they preview two cases—about fair trials and guns—and then two cert petitions—about electronic searches and guns. Along the way you’ll learn about a few other cases coming the Court’s way, letting all of us get our kicks for OT26. DOL v. Sun Valley Orchards Viramontes v. Cook County Thompson v. Wilson U.S. v. Squire (5th Cir. en ban grant)

We’ve all seen the ads for prediction markets, like Kalshi, and some of us have even placed bets with them. But are they actually “bets”? That is, are they gambling? The Ninth Circuit addressed this issue as it relates to the Indian Gaming Regulatory Act and said that at least on the land of a tribe that operated its own gaming, what Kalshi does is gambling and is not allowed. IJ’s Kirby Thomas West takes us into the wild world of predicting vs. gambling and the related issues of whether federal law preempts state law on predicting/betting. But before that, Paul Sherman of IJ brings us exciting news from Georgia where its state supreme court ruled that a legal hemp-growing operation had a valid takings claim against authorities who damaged its crop (and cows) with a helicopter. The case concerns whether there is a “police power” exemption from takings protections and how courts often have tried to avoid takings claims by saying takings clauses only apply to eminent domain. RSVP for Short Circuit Live in Cambridge, Mass. on October 19! Blue 42 Organics v. Georgia DPS Blue Lake Rancheria v. Kalshi The Damagings Clauses

We focus on a district court case that has appellate court explanatory power. As our special guest Professor Robert Steinbuch says, if you reside in Arkansas you must be living in a cave if you haven’t heard of the Malinowski matter. The lawsuit concerns the tragic death of a man who was shot by the police in a raid after he shot first. His widow alleges the man did not know the people breaking into their house were police as they did not properly announce themselves. Because the police were ATF members, or task force members who were working with the ATF, the ability of the widow to sue for damages is limited. For constitutional claims that means a Bivens claim. For non-constitution (or are they non-constitutional?) claims that means the Federal Tort Claims Act. The court threw out the first route but kept most of the second. Professor Steinbuch and IJ’s Anya Bidwell explain what the court said, what was right and what was questionable, and who these issues mean for the larger debate, including efforts in state legislatures to provide alternatives to Bivens. Malinowski v. U.S. (FTCA claims) Malinowski v. U.S. (Bivens claims) Docket for Nielsen v. Watanabe Professor Steinbuch’s column on Malinowski case Bound By Oath episode on Bivens claims

Say a gaggle of police with military-grade toys fire a boatload of tear gas into a home and then run in and break a bunch of stuff, all the while looking for a fugitive with no connection to the family that lives there. Do the police have to pay for the damage? That’s an issue that’s at the Supreme Court’s doorstep in a couple of IJ cert petitions. And along with those IJ has just issued a report about how many claims are actually made against the police for the destruction of property, how many are paid, and how much the claims are. We hope you enjoy a report on the report from IJ’s Jeff Redfern, who has litigated many of IJ’s SWAT cases. (And you can download the report itself at the link below.) Then it’s on to a Sixth Circuit case out of Nashville where the city waited on a request to build an apartment building even though the zoning was fine. Nick DeBenedetto of IJ tells us this story, with a happy (intermediate) ending on bringing a takings claim. Then we finish off with more from Jeff, this time concerning a D.C. Circuit decision about a Project Veritas scheme involving fake names, hidden cameras, a claim for fraudulent misrepresentation, the First Amendment, and a reminder to get that intern to actually sign a non-disclosure agreement. RSVP for Short Circuit Live in Cambridge, Mass. on October 19! The SWAT Report: Public Benefit, Private Burden SW Nashville EB Owner v. Nashville Democracy Partners v. O’Keefe