United States Court of Appeals for the Eleventh Circuit

And the interesting thing here too is that, yes, in the Eighth Circuit, they specifically say if you allege a constitutional violation, this could circumvent the discretionary function exception of the FTCA, which is the motherlode of all exceptions that makes it extremely difficult to sue under that statute.

Now, in the Eleventh Circuit or in the Seventh Circuit, uh, the courts specifically say that alleging a constitutional violation will ne- not save you.

The discretionary function exception is still gonna be there killing your claims.

So even though the case was allowed to proceed in the Eighth Circuit, if it were brought in the Seventh or in the Eleventh Circuit, it would've been thrown out, and that kinda gets to the broader point of the FTCA, right? A reasonable listener [laughs] would say, "Well, what's wrong? You have an alternative, uh, remedy.

Yes, it's not against the official specifically, but it does allow you some sort of a day in court." Now, the FTCA is often a trap for the unwary.

It makes cases not only difficult to bring, but sometimes it actually kills valid constitutional claims against individual officers that you bring simultaneously.

is a jurisdictional requirement.

And I would note the dissent relies heavily on what about this 11th Circuit case and I think the Talley case.

Well, the Talley case didn't address, as my reading of it, the argument, it wasn't raised by the defense counsel, whether the violations that occurred pre-expiration could still go on because of the delay for the then expired violations.

And I would note, I agree with Mr. Hanson a lot of times that it makes sense to wait for state court.

citing Mamma Mia's Trattoria vs.

Original Brooklyn Water Bagel, 11th Circuit, 2014.

But plaintiff emphasizes that orders enforcing a prelim injunction are not appealable.

Defendant is plainly seeking to stay in appealable order.

The first of these circuits, and they're defined geographically, and Andy, we're gonna talk about connections between and tensions between the Supreme Court and the various geographically defined circuits, and we're gonna talk about the role of circuit justices today, 'cause it's in the news in places like Missouri.

But the first of these four that invited me was the 11th Circuit.

That's basically the heart of the former Confederacy, America's Southeast.

The presiding judge who invited me was Bill Pryor, William Pryor, a Republican appointee, a dear friend of mine and of this podcast.

I believe Sam Alito is the Third Circuit Justice, and he used to sit on the Third Circuit.

And other justices, Clarence Thomas is from the South.

He didn't sit on the 11th Circuit, but that's his neck of the woods.

And Harry Blackmun, for whom Vic clerked, wa- was from Minnesota, and he was, I believe, the circuit justice for the Eighth Circuit.

Plaintiff further acknowledges that an order that modifies a previously entered injunction is appealable, citing Mamma Mia's Trattoria v.

Original Brooklyn Water Bagel, 11th Circuit, 2014.

But plaintiff emphasizes that orders enforcing a prelim injunction are not appealable.

Defendant is plainly seeking to stay an appealable order.

The big one here is that there was a guy who was getting a haircut in his front lawn, and somebody observed him having a handgun in his hoodie while he was getting his haircut, which I wouldn't call the cops about, but somebody felt the need to call the cops about, and whenever the cops claimed they saw the gun or something and then detained him, it turned out he was a felon and they arrested him.

But the Eleventh Circuit found that, especially since Florida has become a carry zone, Seeing somebody have a handgun is not a reason.

It's not probable cause to see somebody have a gun.

And so the 11th Circuit said you can't have had probable cause to stop them and detain them for that reason.

Kerry doesn't cite to any of the Fifth Circuit cases.

He doesn't cite to the Eleventh Circuit.

The loan references to it are in the Eleventh Circuit, he references in Judge Rudofsky's footnote, and in the Fifth Circuit, the only reference to any Fifth Circuit case is a parallel... a parenthetical citation to Yates when he's citing to Hamilton.

You are addressing an absolutely worthless issue from the standpoint of this oral argument.

You're not responding to our questions.

Do you think that this court was right or wrong in Cody?

Your Honor, I think that this...

I'm only aware of, for heat specifically, the Fifth and Eleventh Circuits.