Short Circuit: A roundup of recent federal court decisions


(Here is the latest edition of the Institute for Justice's weekly Short Circuit newsletter, written by John Ross.)

Occupational licensing proponents often claim that an occupation is either licensed or is entirely unregulated, leaving consumers in grave peril. It ain't so. Click here to read an IJ white paper on an array of regulatory and voluntary mechanisms policymakers should consider before imposing—or continuing to impose—licensing.

  • Israeli armed forces attack, detain activists who opposed Israel's blockade of the Gaza Strip while aboard U.S.-flagged ship in international waters. Can activists sue in U.S. court? The D.C. Circuit says no.
  • Prosecutors once prepared a draft indictment of Hillary Clinton during an investigation into her real estate dealings, but charges were not pursued and the draft has not been publicly released. Release it now? D.C. Circuit: No.
  • Inmate in solitary confinement finishes sentence, is released. Yikes! He allegedly reoffends; Connecticut corrections officials stick him right back into solitary 23 hours a day as a pretrial detainee. Second Circuit: Which violated his substantive due process rights, but (over a dissent) the officers are entitled to qualified immunity.
  • Qualified immunity is overcome, the 3rd Circuit holds, where a police firearms instructor disregards all safety precautions, points a gun at the chest of another officer and shoots him dead.
  • Qualified immunity is overcome, the 5th Circuit holds, where there is a genuine dispute about whether an officer shot and killed a suspect in order to stop him from fleeing (not okay) or stop him from endangering the officer's life (okay). Dissent: Police should get the benefit of the doubt.
  • One hundred seventy-three Texas municipalities sue Expedia, Orbitz, Travelocity, etc., claiming failure to fully pay hotel tax. Fifth Circuit: None of your ordinances place any duties on online rental agents to collect or remit taxes, so $84 million judgment in your favor is overturned.
  • What happens when a prosecutor willfully lies to a jury, claiming the defendant invented his self-defense claim at trial? Nothing, says the 6th Circuit, because the standard for challenging a state conviction in federal court is nigh impossible to meet. Concurrence: Change the standard!
  • Anonymous blogger who criticizes multi-level marketing schemes posts the entirety of a book published by a multi-level marketing company on his website. He is promptly sued for copyright infringement, loses, and is ordered to destroy all copies of the publication. Should his identity also be made public? District court: Nah. Sixth Circuit: The district court should reconsider, with a strong presumption of unmasking.
  • Thirteen Illinois municipalities sue Expedia, Orbitz, Travelocity, etc., claiming failure to fully pay hotel tax. Seventh Circuit: None of your ordinances place any duties on online rental agents to collect or remit taxes, so you lose.
  • Oklahoma law issues special driver's licenses to aggravated sex offenders identifying them as such. Which, says this 10th Circuit panel, does not violate the equal protection clause because aggravated sex offenders are not similarly situated to nonaggravated sex offenders.
  • The 11th Circuit notes that a judge who is presiding over a case involving an altercation between two gay men outside a gay bar where one side's witnesses are all gay should probably at least inquire into whether potential jurors have an anti-gay bias.
  • Does a liquor-store owner have an inverse-condemnation claim against a state agency that allowed another business to compete with him? The Michigan Court of Appeals relies on several Institute for Justice victories to say "no." (Via
  • Private developer, unable to purchase small parcel it wants for housing development, forms "district" whose members are all employees of the developer, and, via the district, condemns the land. Colorado Court of Appeals: The state's post-Kelo eminent domain reforms preclude such a taking. (H/T: Geoffrey Klingsporn.)
  • And in en banc news, the 7th Circuit has declined to revisit its decision that it's "not necessarily" discrimination for an auto-service chain to transfer a black worker out of a shop that mostly serves Hispanic customers. Dissent: In choosing to use race as the defining characteristic for sorting employees to separate stores, companies embrace the separate but equal notion struck down in Brown v. Board of Education (and applied to private parties via Title VII of the Civil Rights Act).

In March, Wyoming law enforcement took $91,800 from Phil Parhamovich at a roadside stop. Phil was never accused of, or charged with, a crime; they ignored documentation that he earned the money legally; and they didn't notify him of a court hearing even though they knew where he lived and how to contact him. On Friday morning, Phil and IJ launched a case to get the money back. And on Friday afternoon, a judge ordered the state to do just that—a great outcome for Phil, but one that showcases the need for forfeiture reform for folks whose stories don't get national media attention. Read more at Vox.