Short Circuit: A Roundup of Recent Federal Court Decisions

Almond milk, pee tests, and the Lorax doctrine.


Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice. And please enjoy Bound By Oath, our new podcast.

Friends, it does seem as if criminal justice reform has a real chance of being signed into law. Unfortunately, many of the men and women who would see their sentences reduced could still face real problems getting good jobs because of a tangle of state and local occupational licensing rules. IJ's own Andrew Wimer has more on such "collateral consequences" over at

  • Latin abounds in this D.C. Circuit opinion holding that a nonprofit can't invoke the Freedom of Information Act to peek at President Trump's tax returns. Delight in some in pari materia, expressio unius est exclusio alterius, sui generis, and—for you Bird Law practitioners—rara avis.
  • Fourth Circuit: In approving a pipeline to run through the George Washington and Monongahela National Forests and across the Appalachian Trail, the U.S. Forest Service violated some federal codes and also the code of The Lorax—"speak for the trees, for the trees have no tongues." For the court's announcement of the Lorax doctrine, skip to the final paragraph of the opinion. For a 91-word opening sentence boasting nine initialisms and three abbreviations, scroll back up to the top.
  • Did you know that federal authorities don't need a warrant to comb through your trash looking for evidence? But, according to the Fourth Circuit, they do need to find more than three marijuana stems and empty packages of rolling papers to justify a warrant to search your house.
  • Feminist student group at University of Mary Washington seeks changes to the school's policies on sexual assault, provokes the wrath of fellow students by opposing authorization of male-only fraternities and seeking punishment of the men's rugby team (which had performed an offensive chant at a party off campus). Fourth Circuit (over a dissent): The feminist group's complaint, alleging the school violated Title IX by failing to protect them from student-on-student sexual harassment, should not have been dismissed.
  • For 80 years, Mercer County, W.Va. public schools taught Bible lessons. Agnostic parent's allegation: And when my daughter opted out, the school didn't teach her something else, and the other kids harassed her. I had to send her to a different district! Fourth Circuit: Blessed are the excluded, for they shall obtain standing.
  • Allegation: Houston medical examiner, egged on by police, creates misleading autopsy report; husband is charged with murder of wife, who in fact committed suicide. The examiner's findings don't stand up to scrutiny; charges are dropped mid-trial. Can the man sue the medical examiner? District court: Indeed. No qualified immunity. Fifth Circuit (over a dissent): Vacated. The district court didn't sufficiently explain its reasoning.
  • Motorist receives text, checks her iPhone, and then causes accident, for which she is convicted of negligent homicide. Can Apple be held responsible under Texas law for creating a "neurobiological compulsion to engage in texting"? The Fifth Circuit says no.
  • Trumbull County, Ohio corrections officer regularly demands that 19-year-old inmate expose herself to him, masturbate. (She does.) Can her cellmate (who witnessed the whole thing and felt threatened by the officer after she told him she'd report him) sue the officer for creating a "sexually hostile environment"? The Sixth Circuit says no; that's not actually a thing. (The other inmate is also suing; her case was heard on oral argument earlier this month at the Sixth Circuit.)
  • Man spends nearly three decades in prison for Newport, Ky. murder. Freed in 2015 based on newly discovered DNA evidence, he sues 13 police officers involved in the original investigation. Allegation: The cops tried to frame me, coerced false testimony from a jailhouse snitch, and deliberately suppressed exculpatory evidence. District court: If those allegations are true, then no qualified immunity; the case can proceed. Which is so clearly right, says the Sixth Circuit, that it would be a waste of our quills, ink, and blotting paper to "duplicate the district court's careful work with our own opinion."
  • Illinois prisoner learns prison gang is going to "eradicate" him. He says he warned the staff, but they did nothing to protect him. The staff: We couldn't. He didn't say when or where the beating would happen. Seventh Circuit: Is this Agatha Christie's 1950 novel A Murder Is Announced? The failure-to-protect claim is going to trial.
  • Can a class action lawsuit be brought for not labeling almond milk as "imitation milk"? The Ninth Circuit (in an unpublished decision) says no; the district court was correct to find that "[n]o reasonable consumer could be misled by Defendant's unambiguous labeling or factually accurate nutritional statements" describing almond milk as almond milk. (The district court's ruling is here, via the FDA Law Blog.)
  • Utah state trooper hears about a bank robbery in which the suspect wore a Bud Light hat and checkered shirt. Thirty minutes later and 60 miles away, he hears a report of a suspicious Cadillac sitting in a bank parking lot, the driver of which is wearing a Bud Light hat and checkered shirt. Can the trooper pull over a Cadillac that he later sees on the freeway because Cadillacs aren't often seen in rural Utah? No, says the Tenth Circuit. Dissent: We should take account of all of the circumstances, including the fact that the guy was caught on film robbing the first bank.
  • Castle Rock, Colo. man has debts (for, among other things, purchasing a $65k Camaro and $73k Corvette). So he sends a note, invoice to the U.S. Dep't of Agriculture asking the feds to pay off the debt. Feds: Which was an attempt to defraud the gov't. Man: I was petitioning the gov't, as is my First Amendment right. Tenth Circuit: Conviction affirmed. (His sentence, via Courthouse News: a $500 fine, community service, probation.)
  • Palm Beach County, Fla. school officials require prospective substitute teachers to submit to drug test. (Results are not shared with law enforcement. In 2016, 40 applicants out of 4,965 fail or refuse to take the test.) An unconstitutional suspicionless search? Probably not, says the Eleventh Circuit. No need for an injunction while the suit proceeds.

This month, the Montana Supreme Court held that the state constitution forbids a scholarship program that helped families send their children to the private school of their choice. According to the court, the program (which provided a $150 annual tax credit to individuals and businesses that donate to scholarship organizations) unconstitutionally aided religious schools, even though it was up to families which school to pick. Two single moms who have been relying on the program will appeal to the U.S. Supreme Court (which has jurisdiction because the case involves a question of federal law). Click here to read more.

NEXT: No Compulsory Sharia for Greek Muslims, European Court Rules

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  1. I think I see the problem with the two sex harassment cases – they were supposed to rule for the plaintiff in the prison case and for the defendant in the college case but they mixed up the paperwork and got it backwards.

    1. Eddy,
      I don’t get it. Was this an attempt at humor???

      1. No, I have sources on both courts who informed me of the slip up.

        Of course it was an attempt at humor.

  2. According to the reasoning of the Montana Supreme Court, why wouldn’t other state tax credits run afoul of the same principle? Presumably some folks use money that they gained as a tax credit to aid religious schools or otherwise pay for them.

    1. While I hope it gets overturned on Federal Constitutional grounds, it seems to be a correct ruling for the State Constitution:

      Article X, Section 6, (1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.

      Doesn’t seem to leave a lot of room for argument on the state level.

      1. Except that it’s supposed to be a tax credit that they can use; it’s not the various government levels making the payments. I don’t see why all tax credits aren’t illegal if this specific one is.

        1. Oh, sorry. It’s probably the “indirect” payments clause here, because the credit is specifically for donations to creating scholarships for [religious] schools.
          But you are correct, I don’t know why “indirect” isn’t combined with “in part” to block tax credits to almost all schools or other literary or scientific institutions.

          That’d be an amusing counter – Have a church buy shares or invest in every other school, etc. Then hit them all with the same lawsuits, and watch the panic.

  3. “criminal justice reform”

    Releasing criminals early to prey on people! Yeah.

  4. Almond milk doesn’t come from cows? I though almond was a breed of dairy cow, like black angus.

    1. Cows are “Angus”?!?! I’ve been turning down steaks and burgers because I thought they were “anus beef”. No wonder no waitress could explain why that part of the cow is better than other parts and walk away laughing and shaking their heads.

  5. Didn’t Orin Kerr blog about this 4th circuit trash pull case or something similar? I recall it vividly but cannot find the post.

    1. ahh, @ the old WaPo blog December 12, 2016
      “Finding marijuana residue in trash doesn’t justify search of the home for drugs, court rules” – 6th circuit

      Unfortunately this platform wont allow a link (“word too long”)

      1. Yes you can, dwb68. Use the following. The length won’t matter.


        1. Arrrhgh! I’ll try again. Use the following without the external quotation marks.

          TEXT GOES HERE

          1. I give up!

            a href=”URL GOES HERE”>TEXT GOES HERE

            1. I’ll let someone who knows this stuff better than me show it.


              Basically the line should have a left arrow on the left and a right arrow on the right.


            2. Just Google “Finding marijuana residue in trash doesn’t justify search of the home for drugs, court rules Orin Kerr”

        2. HTML Link Instructions

          Basically: [a href=”url goes here”]Text goes here[/a] except change the [ ] to < >

          And learn how to use the preview button.

          1. “Finding marijuana residue in trash doesn’t justify search of the home for drugs, court rules”


  6. “Did you know that federal authorities don’t need a warrant to comb through your trash looking for evidence?”

    Yes I did. When the barrel is on your property, they can’t search without a warrant. But at some point, you need to give up ownership to let the rubbish truck take the stuff away, and the sidewalk makes it available for search.

    1. No, they actually can search it on your property, as long as it isn’t in the curtilage.

    2. When you set your trash out for the government to take, (a different branch of) the government can search it? Oh the horror! Who could have predicted such a wacky argument?

  7. “Trumbull County, Ohio corrections officer regularly demands that 19-year-old inmate expose herself to him, masturbate … her case was heard on oral argument …”

    Shouldn’t that be digital argument?

  8. “… Fourth Circuit: Blessed are the excluded, for they shall obtain standing….”

    Okay, that was funny.

  9. It is great to see the stale authoritarians of the religious right get smacked in West Virginia.

    When did O’Melveny & Meyers start a slackjaw practice?

  10. Blessed are the excluded, for they shall obtain standing.

    Standing? Where is the injury? Schools are not required to teach. A blank period would be an extra study hall.

  11. In the 6th Circuit case, the prison guard’s conduct was reprehensible, and the plaintiff failed not because there is no such thing, because the plaintiff’s lawyer failed to put the correct legal theory in the complaint. The lawyer also failed to give the correct basis for appeal jurisdiction, and the appeal barely survived being dismissed.

    In a situation like this, I might have taken a more apologetic tone towards the plaintiff, acknowledging that she has being wronged and the conduct of those who were supposed to have ensured her security have failed her, both the prison guard’s reprehensible conduct and her own lawyer’s incompetence, and yet there is nothing the law can do for her.

    This was a 19 year old girl who was facing a sexual predator with complete control over her, who couldn’t afford a competent lawyer. I would have taken a moment, just a moment, to acknowledge the humanity of the situation, acknowledge that her lawyer isn’t her and these arguments aren’t her personal arguments and she isn’t personally to blame for their failing, and perhaps express just a little bit of sympathy for her, before dismissing the case.

  12. Also, I think that the 6th Circuit gave the 8th Amendment claim too short a shrift. Far from being evidence it doesn’t fall within the 8th Amendment, the fact that there’s no case law dealing with a subject strikes me as evidence it’s unusual, and hence evidence favoring the 8th Amendment covering it. And I think there’s at least a reasonable argument that it’s cruel.

    The 6th circuit needed to make a lengthier argument comparing it to 8th Amendment cases found to be cruel and unusual and 8th Amendment cases that weren’t and explaining why this cases more reassembles the cases that weren’t covered than cases that were.

    A summary “other cases don’t cover these specific facts and we decline to extend” type opinion just doesn’t work for a constitutional amendment where “unusual” (e.g. not being covered by other cases) is one of the specific textual elements and specific indicators the amendment applies.

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