The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Sex trafficking, child-pornography solicitation, and FERC.


Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Dedicated readers will remember that just before the new year, the Nevada Supreme Court held that the state constitution's search-and-seizure rights could be enforced through private damages suits and that qualified immunity did not apply. (IJ filed a brief and participated in oral argument as an amicus, asking for just that result.) And Short Circuit listeners will remember that earlier last year, the Michigan Supreme Court reached a similar result to hold that rights in its constitution could be enforced through damages actions, too. In a recent article, IJ's Nick Sibilla dives into how this kind of robust state constitutional accountability contrasts with constitutional claims in federal court that run into the qualified immunity buzzsaw.

  • When Barbra Streisand filed a $50 mil lawsuit against a photographer for invasion of privacy after he published a picture of her home, it led to the vastly wider distribution of that photo and the coining of the "Streisand effect," the phenomenon in which an attempt to hide, remove, or censor information leads to the unintended consequence of increasing awareness of that information. Some people haven't learned the lesson. See, e.g.In re: Tara A. Demetriades, No. 20-2559 (Second Circuit, Jan. 18, 2023) (denying motion to keep attorney disciplinary matter under seal).
  • This Third Circuit case in which a current law student wins a resounding victory for a pro se prisoner might seem to undermine the rationale for lawyer licensure, but it's just one anecdote with no broader implications.
  • Pro tip from the Third Circuit: Strive to live your life in such a way that an appellate court never describes your "reputation for sanctionable conduct before tribunals around the country" as "well documented." Aim instead for something like "unjustified" or, at a minimum, "unexpected and disappointing."
  • In which the Fourth Circuit reaffirms that precedent from the 1970s is still both instructive and binding, just as Creedence Clearwater Revival remains totally righteous no matter what your niece says on TikTok.
  • This Fourth Circuit case in which a current law student wins a resounding victory for a pro se prisoner might seem to undermine the rationale for lawyer licensure, but it's just one anecdote with no broader implications.
  • Wedding photography company takes pictures not of weddings, but of the vendors servicing weddings, like florists. (Markets in everything!) It brings an antitrust suit against (and defames) two traditional wedding photographers whose exclusivity requirements precluded some potential business. Texas courts: A picture may be worth a thousand words, but this frivolous lawsuit is worth $41,518.75 in sanctions—which bankrupts the company. Do you take the lawyer who filed the frivolous suit to be liable for malpractice in the bankruptcy proceedings? Fifth Circuit: I do.
  • The Louisiana Public Service Commission is deeply unhappy with certain of the rates filed by a nuclear-power company. The one pathway for the commission to challenge those rates is through filing a complaint with the Federal Energy Regulatory Commission. One of those complaints has been stagnating for six years; two others have languished for over four. Louisiana commission to Fifth Circuit: Congress did not intend for the process to be quite this molasses-like. Mandamus please? Fifth Circuit: It sure looks like FERC might need to quit FERC-ing around. The agency has 21 days to give us a meaningful explanation for its delays.
  • Asking for a friend (who happens to be an insurance company): Were state and local governments' economic costs dealing with opioid over-distribution "because of bodily injury"? Sixth Circuit: No.
  • Curiosity may have killed the cat, but, the Sixth Circuit reminds us, curiosity alone would not have given the cat Article III standing.
  • St. Anthony isn't just the patron saint of lost things; he's also the patron saint of swineherds. One of the more industrial-sized operations he watches over raised piggies in Scott County, Ill. Neighbors alleged the farm negligently handled hog waste "resulting in foul and offensive odors and toxic gases" plus "runoff of swine effluent" and numerous other unsaintly things. They sue in state court. Two insurers defend the farm but a third insurer claims it doesn't have to. St. Anthony—and the insurance-defense lawyers—come through and the farm wins! Then, the insurers all sue each other in federal court. Can the two insurers find indemnity with the third? Seventh Circuit: Better start praying.
  • Husband and wife are both employees at a Kokomo, Ind. transmission plant. Eventually, their employer notices that the two are taking suspiciously overlapping periods of FMLA leave. They're investigated, then suspended, after which the husband sues, insisting everything was on the up-and-up. Husband: My wife's irritable bowel syndrome flare-ups sometimes would trigger my anxiety and other medical conditions. Wife: And my IBS sometimes would be triggered by stressful situations like my husband's medical conditions. Seventh Circuit: The employer was justified in its honest suspicion that Jim and Della were abusing their FMLA leave.
  • Allegation: During Black Lives Matter protests outside the Florissant, Mo. police station, the police declare an unlawful assembly five times and order protestors to disperse even though the protesters had not committed the underlying crime of unlawful assembly. Protestors sue the city for enforcing an unconstitutional and unwritten arbitrary policy. Eighth Circuit: Police can declare an unlawful assembly even if there's no crime. Complaint does not plausibly state a claim. Dissent: It's plausible the protestors were targeted.
  • Agents trace suspected producer of child pornography to Bettendorf, Iowa, escort him to a vehicle, repeatedly tell him he's free to leave whenever he wishes and can decline to answer questions. He answers questions for over ninety minutes, makes incriminating statements, consents to a search of two cell phones, ultimately is charged with possessing and producing child pornography, is convicted, and is sentenced to 50 years' imprisonment. Man: I should've been Mirandized before answering the agents' questions. Eighth Circuit: Except you weren't in custody at that time. Judgment affirmed.
  • Allegation: Police in the St. Peters, Mo. police department create a text messaging group about ongoing Black Lives Matter protests. One cop shares a parody video that's critical of the protests. Someone complains. The cop is told he should resign. He does, but then sues, arguing he was retaliated against in violation of the First Amendment. Eighth Circuit: The cop shared the video in his capacity as a private citizen and it involved a matter of public concern. Case undismissed.
  • One for the chutzpah files: California man kidnaps and transports 12-year-old girl to Las Vegas to prostitute her. After being caught, he enters a plea agreement dropping the most serious charges against him in exchange for two lesser criminal charges and restitution to the 12-year-old. After entering the agreement, he changes lawyers, and his new lawyer argues that the district court lacks authority to enforce the restitution agreement. The district court reluctantly agrees. Ninth Circuit: MANDAMUSED!
  • California cannabis entrepreneurs sue former business partners and others for doing a RICO through mail and wire fraud. Is it a RICO? Ninth Circuit: Pish posh! You cannot do the RICO against a business that is a federal crime.
  • You might think that writing Short Circuit is just a fun romp through endless discussions of Younger abstention, but we also have to summarize 40-page Tenth Circuit opinions about child sex trafficking.
  • Florida man is sentenced for conspiracy to possess with intent to distribute a controlled substance. He's sentenced as a career offender, dramatically lengthening his sentence, because this is his third "controlled substance offense." OR IS IT? The definition of "controlled substance offense" in the sentencing guidelines does not include inchoate offenses such as conspiracy, but the commentary to the definition does include them. Which one binds the sentencing court? Eleventh Circuit (en banc): Now that SCOTUS has revisited Auer deference, we have to find the rule genuinely ambiguous before we turn to the commentary, and this rule is perfectly clear. Dissent: There's an on-point SCOTUS case that says otherwise and is still binding on us no matter how we might think the Court would approach the issue today.
  • Florida child-pornography aficionado cruises "mom blogs," asking moms—in disgusting detail that we read so you don't have to—to send him pornographic pictures of their daughters. "T'was but a jape! He was but a troll!" argues his lawyer. Eleventh Circuit: The vast trove of child pornography found on his personal computer belies that argument.
  • And in en banc news, the Fifth Circuit will reconsider its opinion holding that the FDA did not, among other things violate the "surprise switcheroo" doctrine (::sigh:: seriously) in entering marketing denial orders against two e-cigarette companies.
  • And in further en banc news, the Ninth Circuit will reconsider its opinion that the San Jose Unified School District likely violated the Free Exercise Clause by selectively enforcing its non-discrimination policy against a religious student club.

The Institute for Justice is now interviewing talented law students from across the country for our summer fellowship program: the Dave Kennedy Fellowship. Students are hosted in Arlington, Miami, Austin, Tempe, and Seattle. The program offers law students an unparalleled professional opportunity to substantively contribute to active and future strategic litigation in both state and federal courts. During your summer with us, you would have the opportunity to work closely with IJ attorneys to develop litigation strategies and assist in the nuts and bolts of cutting-edge civil rights litigation, including drafting motions and briefs, crafting discovery requests, and preparing for hearings. The fellowship is a paid opportunity—offering $7,000 for the 10-week program—and generally runs from the last week of May through early August. Applications are due by January 27th and offers will be made on a rolling basis. For more information, visit