The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Flouncing, flaunting, flirting, flouting, foundering, and flounting.


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

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  • In 1972, Congress proposed the Equal Rights Amendment and sent it to the states with a seven-year deadline for ratification, later extended to 10 years. Only 35 of the required 38 states ratified the amendment before the deadline, and several passed votes purporting to withdraw their ratification. Fast forward to 2018, when Nevada, Illinois, and Virginia became the 36th, 37th, and 38th states to ratify the supposedly defunct amendment and then file a mandamus action seeking to compel the national Archivist to record the amendment as part of the Constitution. D.C. Circuit: Mandamus is only to be used when the right to relief is "clear and indisputable," which, it's fair to say, ain't the case here.
  • Garner's Modern American Usage shows no mercy to federal judges who confuse "flaunt" with "flout." A mouth-breathing "Stage 3" error, says Garner! Which doubtless is why the First Circuit wasted no time issuing this sua sponte blockbuster errata clarifying that a district court's discovery orders were in fact "flaunted." Wait, no. "Flouted." "Flaunted"? "Flounted." Definitely flounted.
  • Plaintiff: New York law forbids employers from taking adverse action against employees who procure abortions, but we are crisis pregnancy centers. Taking adverse action against abortion is kind of our whole thing. Second Circuit: And you may well have a First Amendment right to only employ people who agree with that. Case undismissed!
  • What should you do when the police confiscate your handmade sign warning motorists of a nearby "traffic-enforcement operation"? Make another sign, of course! It'll absolutely get you arrested, but it'll also make you a starring character in an opinion like this one from the Second Circuit.
  • Two dudes go walking down the sidewalk of a Richmond, Va. housing complex. Cops see them, recognize them, and accuse them of trespassing based partly upon a trespassing arrest from eight years ago. Cops ask the dudes to lift their shirts. One does, one kind of does. The kind-of one is also wearing skinny jeans, and there was a sketchy tip he sold drugs. Officers threaten him with trespassing charges and then detain and pat him down, finding a gun. Permissible Terry stop? District court: That's totally fine. Fourth Circuit (over a dissent): A sketchy tip, eight-year-old arrest, and skinny jeans? Grant the motion to suppress.
  • Allegation: Inmate at Rush City, Minn. correctional facility is attacked with a shank when he declines to pay off his cellmate's drug debt. He (and his family) repeatedly ask for a transfer to another facility, but officials decline (in part because the assailant attests "the issue [is] dead.") The assailant attacks again the first chance he gets, causing serious injuries. Eighth Circuit: Prison sucks, man. What do you want us to do about it?
  • Driver of utility-terrain vehicle declines to stop for Bureau of Land Management officer in Berdoo Canyon, Calif., passing within arm's reach of the officer. The officer fires his weapon, striking the passenger in the hand and grazing her head. Excessive force? District court: No qualified immunity. Ninth Circuit: Vacated with instructions to dismiss with prejudice. The Supreme Court has never said you can bring a Fourth Amendment claim against a BLM officer—a narcotics officer, sure, but they have a totally different mandate. [IJ filed an amicus brief urging a rather different course of action.]
  • During the George Floyd protests in the summer of 2020, Seattle police withdrew from the Capitol Hill neighborhood and turned it over to the Capitol Hill Occupied Protest (CHOP). Notwithstanding the mayor's characterization of the events as a "summer of love," 19-year-old Horace Lorenzo Anderson, Jr. was shot, paramedics staged only a block and a half away couldn't get to him, and he died. His mother sued the city arguing that its actions violated her substantive due process right to the companionship of her adult son. Ninth Circuit: We're the only circuit that actually recognizes this right, and the city was deeply irresponsible, but the risks it created weren't particularized to your son, so case dismissed. Concurrence: Bah! We should go en banc to un-recognize this "right" to not have your adult kids killed by state-created dangers.
  • Abortion demonstrators operating a "sidewalk ministry" sue the city of Norman, Okla. alleging that the city's disturbing-the-piece peace ordinance violates the First Amendment both facially and as applied. Sure, they lost at trial, but guess what happened when they appealed and (inexplicably for litigants represented by pro bono counsel) waived oral argument. Tenth Circuit: They lost again.
  • In 2014, New Mexico State Police agents carrying out an arrest warrant in their "battle dress uniforms" (dark clothes, tactical gear) confront woman who is not their suspect and who believes she is being carjacked. She drives away, and the agents shoot 15 times, hitting her once in the back. Excessive force? Tenth Circuit: (2019): You can't raise Fourth Amendment claims unless you were "seized." And because you got away, you weren't. SCOTUS (2021): Vacated. Shooting someone is a "seizure," even if they get away. District court (2021): But these agents get qualified immunity because that hadn't been clearly established. Tenth Circuit (2023): Ah, but they couldn't have known she'd escape when they shot her. Remanded to determine if the agents behaved reasonably. [IJ filed an amicus brief urging this course of action.]
  • Man, a felon, suspects his wife has overdosed, calls 911, and ambulance takes her to the hospital where she dies. Kingman, Kans. police then prohibit him from entering his house for several hours while they search. Find meth and guns. He's prosecuted, but on appeal the evidence is suppressed because there wasn't probable cause. He then sues for Fourth Amendment violations and malicious prosecution. District court: You waited too long to sue, and you can't sue for malicious prosecution you weren't found not guilty. Man: But the clock should have stopped while I was being prosecuted! And the Supreme Court just said all I need is the prosecution to end without a conviction! Tenth Circuit: Sorry, you should have sued even while you were fighting a long-running criminal prosecution. And good point on the new SCOTUS case, but your pleading was bad.
  • Finally, courtesy of the Tenth Circuit, an admin-law decision with some real fireworks in it.
  • Allegations: Douglas County, Ga. pretrial detainee who has severe injuries from an earlier car accident, and who also suffers from heart and kidney issues and seizures, suffers further severe injuries when left unmonitored and deprived of his crutches in a holding cell and again when forced to crawl, shackled, in an out of a bus that could not accommodate his wheelchair. Eleventh Circuit (unpublished): Jail sucks, man. What do you want us to do about it? Dissent: Completely agree, but it does seem like the jailer should have guessed that the guy in the wheelchair had some mobility issues and that crawling while shackled might exacerbate them. So the whole bus thing should go to a jury.
  • In the early months of the Covid pandemic, the Alabama State Board of Pharmacy dedicated itself to the important work of investigating and bringing an enforcement action against an Auburn, Ala. pharmacist for allegedly administering Covid tests improperly. Pharmacist sues: HHS issued a federal declaration upon the outbreak of the pandemic providing "liability immunity for activities related to medical countermeasures against COVID-19." District court: Younger abstention. Eleventh Circuit: Younger abstention! If the pharmacist wants a federal court to consider her federal-preemption theory, all she has to do is defend against the board's enforcement action at the administrative level, appeal through every level of the Alabama state-court system, and get the U.S. Supreme Court to grant cert.
  • And in en banc news, the Fifth Circuit will not reconsider its denial of qualified immunity to an Arlington, Tex. officer who jumped into the backseat of a car (over the repeated objections of a fellow officer) and first choked and then shot and killed a motorist who had declined to exit the vehicle for several minutes. (The stop was precipitated by the motorist's 2-year-old tossing part of plastic candy cane out of the vehicle.)
  • And in amicus brief news, IJ is asking the First Circuit to reverse a grant of qualified immunity to Gloucester, Mass. school officials who threatened to charge a parent with wiretapping—which requires a secret recording—after he openly recorded them in a public place and posted the recording to Facebook. The district court found there was no previous case on point. But, in fact, every official throughout the land has had more than adequate warning that threatening legal action under a facially inapplicable statute in retaliation for someone's protected speech does indeed violate the First Amendment.
  • Friends, last week's edition contained a deeply painful error. The blame lies with your editor, whose fondness for the eponymous sarsaparilla of Sioux City, Iowa, which is not the same place as Sioux Falls, S.D., resulted in an unfortunate and surprising switcheroo. Still, we feels the proffreader's should have caught that one.

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