The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Anti-Muslim tweets, inactive warrants, and anti-Muslim prison guards.


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

D.C.-area friends, come and join us on Friday, March 31 to commemorate a real American hero, Robert T. Meyer, who violated a Nebraska law banning instruction in a foreign language and fought his case all the way to the U.S. Supreme Court, which, in 1923, ruled in his favor and gave us one of its most stirring and all-too-rare defenses of individual liberty. Click here to RSVP! Or click here for a nice little article on the exciting backstory to Meyer v. Nebraska.

New on the Short Circuit podcast: Professor Katy Ramsey Mason of the University of Memphis joins the show to talk crime free rental ordinances, which force landlords to evict tenants after anyone in a household is merely charged with (not convicted of) a crime.

  • Separation-of-powers buffs may recall the Supreme Court's Seila Law decision in 2020. That decision held that the statute protecting the Director of the Consumer Financial Protection Bureau from removal (other than "for cause") unconstitutionally limited the President's removal power. Does that mean that the CFPB's civil investigative demand to a (different) law firm was void ab initio? Second Circuit: No. Then was the demand unenforceable because the CFPB's funding structure violates the Constitution's Appropriations Clause? Second Circuit: Also no, and the Fifth Circuit's contrary holding is unpersuasive. Then perhaps the Consumer Financial Protection Act violates the nondelegation doctrine? Second Circuit: Still no. Surely, though, this particular civil investigative demand was unduly burdensome? Second Circuit: We would agree with you if today were Opposite Day, but today is not that day.
  • While most of us were doing sad Zoom happy hours and binging on Tiger King in the early days of the COVID-19 pandemic, entrepreneurial lawyers representing students and parents sued just about every university for refunds when they shut down in-person facilities. Because the great thing about America is that everyone gets their decade in court, three years later in a suit against NYU, two judges of the Second Circuit decide that parents who paid their kids' tuition don't have standing to sue, a different two judges say maybe a student can sue so please start this all over again, one judge has some concerns about conflating merits and standing questions, and one judge thinks we should just be done with this all.
  • Former federal inmate, a devout Muslim, sues under the Religious Freedom Restoration Act, alleging that when he would try to perform his required daily prayers during shift breaks at the prison commissary where he worked, his guards—who also said "There is no good Muslim but a dead Muslim" and put a sticker on his back reading "I love pork bacon"—would follow him and deliberately interfere by making noises, talking loudly, and kicking boxes. Guards: What gov't official could possibly know that violated the law? Third Circuit (over a dissent): You two. You could have known. No qualified immunity.
  • Fourth Circuit (2021): This petitioner's state court death sentence was defective. We rely on evidence introduced in his federal habeas proceedings. Supreme Court (2022): Reconsider in light of Shinn v. Martinez Ramirez, where we said you can't do that. Fourth Circuit (2023): Same answer because the State didn't properly raise the argument that the evidence was inadmissible. Dissent: But have you heard of the "tipsy coachman" rule?
  • New IJ cert petition: The Fifth Amendment says that the gov't must pay just compensation when it takes private property for public use. But the Fifth Circuit recently held, in a one-page opinion, that this requirement doesn't matter if the legislature hasn't chosen to enforce it. That, says IJ's petition, is both wrong and contrary to quite a bit of precedent. And Judge Oldham, joined by four other Fifth Circuit judges, seems to agree, writing that "barring Supreme Court intervention . . . [t]he panel decision is an insuperable obstacle to any plaintiff asserting any federal takings claim against any State in federal or state court." Sounds like a big deal!
  • In which the Fifth Circuit, sitting en banc, upholds a nationwide preliminary injunction against President Biden's mandate that federal employees get vaccinated against COVID-19.
  • In Knick v. Township of Scott, the Supreme Court eliminated the requirement that takings plaintiffs exhaust their state-court remedies before suing in federal court, in part because that rule created a "preclusion trap" that prevented property owners from ever getting to federal court. But that, says the Fifth Circuit, is cold comfort for this plaintiff, which filed its case in state court before Knick and is therefore squarely caught in that same preclusion trap.
  • More breaking news on the Fifth Circuit's e-cigarette docket: the FDA's denial of an application to market menthol-flavored e-cigarettes is stayed.
  • Allegation: During a 2015 traffic stop (over a minor infraction), Houston police officer approaches with gun drawn and then shoots motorist five times as he reaches for his wallet. Officers drag the man from the vehicle, handcuff him, and do not seek medical attention for six minutes. He dies. Officer: In fact, the motorist pulled a gun. And yet! Seven officers searched the vehicle and did not find a gun. Rather, an investigator who took another look 22 days later found one in plain view on the back seat. Fifth Circuit: The district court's grant of qualified immunity to the officer is reversed. The claims against the city were properly dismissed, however; just because the officer was promoted and awarded a certificate of bravery for the incident doesn't mean the city approved of any excessive force.
  • Man calls 911 to report that a store clerk pulled a gun on him and threatened him. When Saginaw, Mich. police arrive, they arrest him for filing a false police report. He spends 18 days in jail before being released and all charges against him are dropped. Sixth Circuit: And since they decided he was a "f*cking liar" before he even spoke, dismissed his story as "bull sh*t" before talking to any witnesses, and are alleged to have deliberately avoided reviewing video evidence that could have confirmed his story, there's enough for this to go to a jury.
  • "Steven Moss was sentenced to 15–45 years in prison after an entrapment hearing for which his attorney, David Steingold, arrived entirely unprepared, and a bench trial that lasted only 20 minutes. At every step along the way, from his failure to investigate and interview witnesses to his failure to meaningfully test the prosecution's case, Steingold failed to conduct himself in the manner consistent with effective representation." Which would be an absolutely killer first paragraph for Moss if it had appeared in the Sixth Circuit's panel opinion considering his ineffective-assistance claim, instead of in the dissent.
  • Legally blind prisoner in Tennessee is stabbed by gang members. He sues the prison (and others), alleging civil-rights violations. District court appoints him pro bono counsel, but he files a flood of complaints against the lawyer and she withdraws. Now pro se, he has (understandable) difficulties complying with discovery and other deadlines, so district court dismisses the case for his failure to prosecute it. Sixth Circuit: It looks like the district court might have overstepped, since the blind, incarcerated plaintiff doesn't appear to have been deliberately flouting his discovery obligations. Judge Readler, concurring in the judgment: Based on the district court's threadbare analysis, I'll agree that dismissal was improper. But let's be real: The plaintiff effectively fired his free lawyer (from "a well-equipped Nashville law firm") who was doing a perfectly fine job representing him, and then he started missing deadlines and filing frivolous documents. Not great.
  • If you're going to appeal to the Sixth Circuit, Tennessee attorney fired from the state Board of Professional Responsibility allegedly because of your anti-Muslim tweets, remember that court-watchers are going to look up what your tweets were. Apparently, things like "Where's the evidence that 'Islam is a religion of peace'? They've gone to war against every society they've encountered for 1000s of years." This is the "Streisand effect," a form of "situational irony." (One of the attorney's First Amendment claims can proceed.)
  • South Dakota police arrest man based on a warrant that was mistakenly left active. Obviously, inactive warrants don't supply probable cause. Suppress the meth they found? Eighth Circuit: The exclusionary rule is supposed to deter intentional police misconduct, not paperwork goofs. So, no.
  • California-based fast-fashion upstart Honey Bum sues larger rival Fashion Nova for organizing a group boycott against it, alleging Fashion Nova threatened to stop purchasing from clothing vendors who continued selling to Honey Bum. Ninth Circuit: A group boycott requires that the clothing vendors have conspired with each other to boycott Honey Bum. Here they were just sort of independently bullied into it.
  • This Ninth Circuit decision contains three judges, yet generates four opinions, but it's easy to discern the holding: You see, Parts I, II, and III(A) of the lead opinion have three votes, Part III(B)(i) has two votes, and Part III(B)(ii) has two votes, but not the same two votes as the other bit with two votes, except for footnote 16, which has one vote—we have this all written down, but we can show it to you tomorrow if you want to see it.
  • Tribe: We have "aboriginal title" to these lands in New Mexico because we had exclusive occupation of them from around 1300 to 1650, and then still used them a lot since then. Further, the "sovereign" (the U.S.) has never properly taken them away, so they're still ours. District court: No. Tribe on motion to reconsider: How about just these bits of the lands? District court: Still no. Tenth Circuit: There's still a claim for one of the bits. Concurrence 1: No bits for you. Concurrence 2: Two bits.
  • Woman on the state of Oklahoma's Death Row: The federal district court denied my habeas petition. Would you please certify my appeal on ten issues for why my sentence should be thrown out? Tenth Circuit (2017): Sure, we'll take a look. Tenth Circuit (2023): But you still lose on all of them. Dissent: OMG there were so many errors in her trial.
  • Mining company files an application with the Bureau of Land Management to mine certain claims in Wyoming. The Interior Secretary then sits on the application and soon afterward Congress orders the office to not consider any more. Repeatedly. For 26 years. Company then sues. Does it have a claim that the application should have been initially processed but was unreasonably delayed? District court: It's time barred. Tenth Circuit: The case can proceed due to the repeated violations doctrine.
  • Some people say a Florida Man is stubborn as a mule. He'll pick fights that don't need to be picked and continue them long past the point of any conceivable personal benefit. Cross a Florida Man and he'll hold a grudge against you until the day he dies. I forget where I was going with this. (Ed.: We suspect these reflections by our summarist, himself an erstwhile Florida Man, may have been inspired by these two unpublished cases from the Eleventh Circuit.)

Law students! Come to IJ's annual Law Student Conference, a two-day event hosted in our Arlington, Va. office on June 3 and 4 that will focus on our recent First Amendment retaliation work. (Like this and like that and also see here. And don't sleep on this.) Students who aren't local will receive a travel scholarship. The program includes a dinner cruise on the Potomac River along with an opportunity to meet a few of our clients (as well as this newsletter's beleagered profreading staff). Click here to have a look at the agenda and to register. Registration includes a simple application that is due by Monday, April 17. Apply today! Spots will go fast!