The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Disparaging scientists, disappearing warrants, and disgruntled lawyers.


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

Last year, Brookside, Ala. became the poster child of policing for profit. The town relentlessly towed cars to extract fees and issued dubious traffic citations, without regard for public safety or constitutional rights. Town leaders boasted of their 600% revenue increase, almost all of which went right back to the police to buy expensive SUVs and other goodies. Last week, a federal court rejected the town's and its towing-company partner's effort to dismiss IJ's class action, which demands accountability and the return of the town's ill-gotten gains.

  • Third Circuit: Even in New Jersey, you can't sue scientists for libel just because they questioned how well your pharmaceutical works. Left unresolved is whether disparaging comments about the Jets are similarly non-actionable.
  • On the cusp of Easter, the Fourth Circuit resurrects Bivens that it may redeem us from the (constitutional) sins of federal officials—at least if those officials are Park Police flexing against a Secret Service agent by blatantly violating his Fourth Amendment rights.
  • After decades of confusion, the U.S. Supreme Court brought much needed clarity to First Amendment law by holding in Reed v. Town of Gilbert (2015) that a law regulating speech is "content-based" and subject to strict scrutiny whenever the law's application turns on what is being communicated. Then in City of Austin v. Reagan National Advertising (2022), the Court was like "LOL, except for when what's communicated is an off-premises advertisement." Fifth Circuit: And thus, on remand, we apply intermediate scrutiny and affirm this content-neutral regulation that applies only to signs that contain a particular disfavored category of message. Dissent: This one should fail even intermediate scrutiny.
  • After the Great Mississippi of Flood of 1927, the feds built a spillway 33 miles upstream of New Orleans. And lately, the spillway is getting pressed into service with much greater frequency, resulting in toxic algae blooms, beach closures, and harm to wildlife and industry in the Mississippi Sound. Fifth Circuit: Which does not give rise to a need for the Army Corps of Engineers to do a new environmental impact statement. The "true culprit for the plaintiffs' environmental misfortunes is not the Corps or the Spillway, but the environment itself."
  • It is hard to win attorneys' fees against the federal gov't! Under the Equal Access to Justice Act, it's not enough that a litigant prevail; he must also show that the gov't's position was not substantially justified. But "hard" does not mean "impossible," as evidenced by this ruling from the Fifth Circuit, granting fees to a Cameroonian man whose testimony that he faced a credible fear of persecution if forced to return to Cameroon was deemed not credible based on documents never referred to at his hearing or entered into evidence. (Unfortunately, as last year's merits ruling in his case notes, he has already returned to his home country, where both his father and brother were murdered by the government.)
  • Fifth Circuit: If you show up to the DMV in a wheelchair because you suffer a medical condition that causes you to faint regularly, it does not violate the Americans with Disabilities Act for the DMV to request you get a doctor's note before they will renew your license.
  • The medical attention given to a Texas inmate who suffered a traumatic brain injury when the ceiling of the prison's hog barn collapsed on his head was sufficiently prompt that qualified immunity is warranted, says the Fifth Circuit (noting that some claims are still a go in state court). Judge Willett, self-concurring: But let's all take note of game-changing scholarship showing that qualified immunity was wrong the day it was invented. [Ed.: Absolute immunity not looking so hot either.]
  • Disgruntled lawyers may grumble about a judge in private. Really disgruntled lawyers might even post disparaging Facebook comments on the judge's personal Facebook page. Only super-mega-disgruntled lawyers, though, file First Amendment lawsuits against judges who block them from posting disparaging Facebook comments on the judge's personal Facebook page. Fifth Circuit (unpublished): And that last kind loses.
  • Columbus, Ohio detective: Given your fingerprints at the scene of an armed robbery, I'm going to get a search warrant and toss your dad's house unless you start cooperating. Suspect: I'll just confess then. District court: Confession suppressed. Sixth Circuit: Reversed. Coerced confessions are uncool (and unconstitutional), but this one wasn't coerced.
  • "[R]egardless of whether it is good public policy to use so many court resources and so handsomely reward litigiousness over annoyances that have been greatly diminished by changes in technology, the plaintiffs are entitled to use the law to enforce their right not to receive unsolicited faxes." So says the Seventh Circuit, practically daring Congress to quit being a bunch of sissies and take on Big Junk Fax Law.
  • Via the Seventh Circuit: In which the defendant's connection to Jared Fogle isn't even close to the weirdest part of the story, which for now results in a remand to determine whether Indiana State Police altered a search warrant to add "bestiality" before or after the judge signed it.
  • After his indictment on drug conspiracy charges, man's arrest warrant mysteriously vanishes from the FBI's database. Human error? A technical glitch? Divine intervention? Eighth Circuit: We'll never know. But what we do know is his Sixth Amendment right to a speedy trial was not violated by the eight-month delay that resulted. Conviction affirmed.
  • In 2016, federal probation officers search man's Las Vegas home after he fails a drug test and find contraband. He spends 18 months incarcerated. And then the prosecution is dropped? And the officers knew all along he hadn't failed the drug test? And they planted the contraband? Ninth Circuit (unpublished): Nobody is saying any of this ever gets to a jury. But we are saying this guy can keep trying for now. He had to wait until after the prosecution terminated in his favor to file some of these claims, so they are not in fact untimely.
  • Hollywood Burbank Airport apparently wasn't listening to the pre-flight safety demonstration because it's been out of compliance with certain FAA standards since 1980. And attempts since then to get a new terminal off the ground have gone down in flames. The latest effort was cleared for takeoff by voters in 2016, and the pre-flight checklist (environmental review to comply with the National Environmental Policy Act) was completed in 2021. Ninth Circuit: We're sending you back to the gate to do more studies on construction noise. Dissent: This is literally next to a highway that's louder than any construction equipment. (Ed.: Is there a builder's remedy for airports?)
  • Self-described "person of extraordinary wealth" James Batmasian of Boca Raton, Fla. wants to give more of that wealth to charity, but is stymied by his 2008 conviction for failing to pay federal withholding tax, for which he served eight months in the slammer. Despite the governor of Florida having restored his civil rights in 2017 and President Trump having pardoned him in 2020, nobody wants his money! Will equitable expungement end this eleemosynary eschewal? Eleventh Circuit: Whether the expungement motion sounds in equity or the Constitution, we lack jurisdiction to hear it.

Michelle Przybocki has severe digestive issues, and it's important for her to follow doctor's orders and maintain what's called a low-FODMAP diet, consisting of foods with ingredients that are easy to digest. But! She's had a really hard time finding food that fits the bill, and it turns out the FDA and USDA make it illegal for producers to—perfectly truthfully—use labels like "low FODMAP certified" and "digestible." Because those labels aren't on the feds' outdated list of pre-approved "nutrient content claims," they are verboten. Which is not awesome for the tens of millions of Americans who suffer from digestive difficulties. Nor is it awesome for smaller producers like Ketan Vakil, founder of Gourmend Foods, who don't have millions of dollars to spend years petitioning the feds to update the list. Click here to learn more about IJ's latest case.