Short Circuit: A Roundup of Recent Federal Court Decisions

Veterinary speech, inflation reduction, and Inspector Javert's playbook.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New cert petition! Friends, if an FBI SWAT team ever raids your home by mistake, terrifying your family, because they couldn't be bothered to double check they had the right address, you might like to sue over it. And you might think the Federal Tort Claims Act, which Congress amended in 1974 specifically to ensure there's a cause of action for federal police raids, lets you do just that. But you'd be wrong, at least in the Eleventh Circuit, which earlier this year ruled (unpublished and per curiam) that FBI agents have the discretion to do anything or nothing at all when it comes to making sure they raid the correct house. Today, IJ asked the Supreme Court to step in, resolve some circuit splits, and tell the Eleventh Circuit that the Supremacy Clause doesn't conflict with federal statutes.

New on the Short Circuit podcast: Michael Perloff of the ACLU joins us to discuss how the D.C. Circuit said your "effects" receive Fourth Amendment protection for as long as the police hold onto them.

1. Three individuals are arrested for murder of Boston pizza delivery man in 2010; one pleads guilty and the other two are tried together. Co-defendant "A" makes inculpatory statements about co-defendant "B." The state wants to use A's statements against B, so it creates a redacted transcript of the statements, replacing all references to B's name with a blank space. The state shows the jury that transcript at the close of B's trial and he's convicted. Sixth Amendment violation? First Circuit: Yes, but we have "no grave doubt" that the jury would have reached the same verdict without the redacted statement. Conviction affirmed. Partial dissent: "I entertain 'grave doubt' about whether the statement had such an influence" because it was "plainly critical to the prosecution."
2. Not the worst news NYC Mayor Eric Adams received this week, but the Second Circuit has un-dismissed a lawsuit alleging that changes to the admission process for some of the city's most prestigious and highly selective high schools discriminated against Asian-American students.
3. Drugmaker Merck has been in court for quite some time over the question as to whether federal law preempts state-law claims related to the labeling of its anti-osteoporosis drug Fosamax. How long? Longer than the publication of George R.R. Martin's most-recent novel in the A Song of Ice and Fire series (July 2011). And just like the book-version of that series, there's no telling when the end will be. After multidistrict consolidation in 2011, a "bellwether trial" in 2013, a Third Circuit ruling in 2017, a SCOTUS reversal in 2019, and a district court ruling in 2022, the Third Circuit has once again penned a chapter, this time reversing the district court, determining the claims are not preempted and remanding for further writing.
4. Pennsylvania death-row prisoner with a history of mental illness is held in solitary confinement for 26 years. He sues a prison official, who does not dispute whether that violates the Eighth Amendment, arguing only that he is entitled to qualified immunity. Third Circuit (over a dissent): There's "no room for doubt that individuals with a known history of serious mental illness have a clearly established right not to be subjected to prolonged solitary confinement without penological justification." No QI.
5. Two fishermen challenge a federal fishing rule limiting their catch in the Mid-Atlantic region. Unlike federal rules issued by agencies headed by Senate appointees, this one emanates from the Mid-Atlantic Council, run by people appointed to various degrees by state governors and are not Senate-confirmed. The Council can "pocket veto" the Senate-appointed Secretary of Commerce in certain situations. Third Circuit: Pocket vetoes are right there in the Declaration of Independence. As a remedy, though, we won't do anything so drastic. Let's just sever the pocket-veto powers.
6. Octogenarian, disabled, good-hearted Texas veterinarian spends his golden years responding by e-mail to questions from pet lovers worldwide. Texas: This cannot stand! Under Texas law, vets cannot provide advice to pet owners unless the vet has first met the pet in-person (or visited the pet's home). A First Amendment violation? Fifth Circuit (2015): No. The First Amendment doesn't protect "professional speech" at all. Fifth Circuit (2020): Our bad, turns out the First Amendment does protect professional speech. Case remanded for the district court to deal with all this in the first instance. Fifth Circuit (2024): The vet wins. Even under intermediate First Amendment scrutiny, Texas's in-person examination requirement fails—not least because, under Texas law, "[e]xam-free telehealth, turns out, is fine for your Uncle Bernard, but not for your Saint Bernard." Concurrence: And the requirement definitely fails strict scrutiny, which is the standard I think should apply here. (This decade-long jaunt is an IJ case, and we couldn't be happier for the irrepressible Ron Hines: be sure to give your favorite schnoople, horse, Glaswegian cat, or Iranian pigeon a special pat on the head today in honor of Dr. Hines and the U.S. Constitution.)
7. After Texas put floating barriers across the Rio Grande, the United States sued, alleging the barriers violated the Rivers and Harbors Act of 1899 and seeking an injunction ordering their removal. Texas, thinking it stood a better chance in front of a jury than a judge, demanded trial by jury. When that was denied, it petitioned for mandamus. Fifth Circuit: Which we deny. The United States is seeking only equitable relief, and it is well established that the Seventh Amendment does not apply.
8. The Inflation Reduction Act gives HHS the power to "negotiate" prescription drug prices by telling companies how much they're allowed to charge for certain drugs and penalizing them if they don't agree. Manufacturers can only avoid the penalties if they give up Medicare coverage for all drugs they produce. Fifth Circuit (over a dissent): Yup, you can sue about that.
9. Christian healthcare ministry and Catholic school challenge Michigan anti-discrimination laws. Michigan: But they have nothing to worry about because the law states it doesn't apply where doing so would violate other applicable law, so the law can't cover anything that it would be unconstitutional to cover. Sixth Circuit: Nice try.
10. The American Rescue Plan Act conditioned certain kinds of COVID-19 aid for farmers on the race of the farmer receiving aid—which (said several federal judges) was probably unconstitutional but which (says two-thirds of this Sixth Circuit panel) was not, like, super-unconstitutional such that this plaintiff should be awarded fees for challenging it.
11. Allegation: Charlestown, Ind. police officers assure woman that they're having her violent, abusive, unstable husband detained in a hospital for 24 hours. But that's a lie. The husband is free to leave, and he does, returning home and carrying out his threats to kill her. Seventh Circuit (per curiam, three opinions): To trial some of this must go. J. Scudder: "Above all else, this case presents a tragic example of the risks posed by domestic violence and the consequences of law enforcement's failure to appreciate those risks. … [P]olice departments ought to prioritize training on responses to domestic violence."
12. Allegation: At oil pipeline protest in North Dakota, police tackle protestor, dogpile on top of him, and strike him even though he's not resisting—all without warning. He suffers a fractured pelvis, among other injuries. Eighth Circuit: Could be excessive force. No QI.
13. Man flees traffic stop on foot after being pulled over for speeding; a Kansas City, Mo. officer chases him down and shoots him dead. Officer: He was pointing what I thought was a gun at me. (There's no video; the man was unarmed.) Eighth Circuit: A jury might think he couldn't have been pointing anything at you because you shot him in the back of the elbow (among other places). No QI.
14. Pro se Arkansas inmate: I had a sexual relationship with a prison security officer, which violated my Eighth Amendment rights. Eighth Circuit: Since the (now-former) prison guard didn't bother to show up for any of this litigation, we've invited the Arkansas AG's office to weigh in as amicus, to ensure the integrity of the adversarial process. And based on the allegations in the complaint, the relationship was entirely consensual. No Eighth Amendment violation here. Dissent: I'm not so sure the plaintiff's handwritten complaint supports that conclusion. Mayhaps justice would be better served by remanding so she can have a hearing (and maybe even a lawyer to represent her!) to address whether the relationship was truly consensual.
15. The Ninth Circuit, standing out "like a flamingo in a flock of finches," is the only federal circuit that treats dicta as binding precedent. That fun little quirk explains both why Judge Forrest has to write a unanimous en banc opinion correcting some ill-considered dicta in an old panel opinion about the False Claims Act and also why that same Judge Forrest writes a concurring opinion noting that it sure would save a lot of time if the court went back to treating dicta as dicta.
16. Looking for male suspects behind a spate of car burglaries, Alameda County, Calif. officers detain, handcuff … a mother and her two teen daughters? For 90 minutes? Jury: Which violated the Constitution (and the Bane Act). Pay $8.25 mil. Officers: The judge erred by instructing the jury to decide whether the law was clearly established. That's a legal question for a judge. Plaintiffs: Sure, but the error made it harder for us to prevail. Ninth Circuit (unpublished): We're not going to throw out the verdict, but the judge [Ed.: who seemed none too happy with the defense last time around] should have another look at that. Remanded.
17. Arizona enacts a law allowing counties to cancel an individual's voter registration if it receives confirmation from another county that the person has moved and registered in a new county. Nonprofits sue. Ninth Circuit: well nonprofits aren't voters, so they don't have standing.
18. Alabama allows individuals to change the sex designation on their driver's licenses but only if they have had gender reassignment surgery. A group of transgender individuals who have not had that surgery sue so that they can also change their sex designations, raising equal protection, due process, and free speech arguments. Eleventh Circuit: And if you've been reading our opinions lately you'll know that these plaintiffs lose.
19. Florida boat crew believes it has stumbled on an illegal long-line fishing buoy. It pulls up the lines, cuts free several sharks, and even tells Florida Fish & Wildlife what they'd done. Whoops. Turns out the line was lawfully placed by marine researchers with proper permits. So the feds bring felony theft charges against the crew, who are convicted. Eleventh Circuit: Reversed. Thieves intend to profit from their crimes. Concurrence: I just want to take a moment to ensure that the name of the AUSA who brought this prosecution—"taking a page out of Inspector Javert's playbook"—is immortalized in the Federal Reporter.

New case! Friends, Pennsylvania law allows "waterways conservation officers" to traipse across private land at will to investigate violations of state fishing laws. Might that violate the Fourth Amendment? And might all that unbridled authority result in officers behaving like serious jerks? We say yes to both, as evidenced by the abusive and out-of-control behavior of an officer who harassed IJ client Tim Thomas and his late wife Stephanie, trespassing at their cabin, leveling baseless charges against Tim, and then—when Tim prevailed in court—retaliating with more trespassing, angry confrontations, and more bogus charges. "Protecting and preserving wildlife is important, but that doesn't mean those in government tasked with doing so can ignore the Constitution," says IJ Attorney Kirby Thomas West. "If any law enforcement officer wants to search someone's private property, the Fourth Amendment requires them to get a warrant based on probable cause." Click here to learn more.