The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Gift cards, strong medicine, and cloud search warrants.


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

New cert petition: If the gov't wants to restrict speech based on its content, it bears the burden to show, among other things, why the restriction is necessary. But earlier this year, the Second Circuit upheld New York's restrictions on out-of-state therapists providing teletherapy to N.Y. residents without holding the state to its burden. The decision deepened not one, but two, circuit splits on important First Amendment questions, so we say the Supreme Court should take a look. Click here to learn more.

At Short Circuit, we're thinking of the Roman Empire. Well, at least what happened after it fell. That's because Duke's Judicature just published a piece by IJ's Matt Liles and Anthony Sanders on the history of the phrase "en banc," from its origins in the post-apocalyptic wilds of Gaul through modern-day federal courts. They conclude that "en banc" has no single correct pronunciation. Say it however you want.

  • It's a prosecutor-v.-prosecutor showdown in a dispute over whether the Department of Justice must turn documents over to the district attorney of Hampden County, Mass. concerning the DOJ's investigation of police misconduct within the Springfield Police Department. District attorney: I need that info because some of it might count as exculpatory evidence in my criminal prosecutions. First Circuit: The DOJ didn't abuse its discretion in saying the documents can be withheld under the work-product and law-enforcement privileges.
  • An internet-communication platform in Puerto Rico sues a grab-bag of federal prosecutors, FBI agents, and employees of two competitors. Allegations: Our competitors conspired with the feds to search our offices and give these companies access to our confidential trade secrets. That violated our Fourth Amendment rights; we should get damages under the Bivens doctrine. First Circuit: Is your name Webster Bivens? No? Then you're out of luck.
  • The day after gas station/convenience store chain Wawa, Inc., announces that hackers obtained financial data for around 22 million customers, enterprising attorneys file class action lawsuits. To settle, the plaintiff lawyers and Wawa come to a $9 mil deal, with most of the compensation being . . . gift cards. Only $2.9 mil is claimed, and the plaintiff attorneys get $3.2 mil. Was that reasonable under Rule 23(h)? Third Circuit: The rule incorporates a historical reasonableness standard, and this ain't it. Remanded to start over.
  • "Judicial immunity is strong medicine." But, says the Fourth Circuit, not strong enough to protect a Raleigh County, W.Va. family court judge who forced her way into a man's house without a warrant (on pain of arrest), forbade him to record (on pain of arrest), and (in bare feet) directed a search of the house, allowing the man's ex-wife and her lawyer to take disputed items like DVDs, pictures, and an umbrella stand. (This is an IJ case.)
  • Anonymous 911 caller: "I shot my girlfriend with a 9mm." Abilene, Tex. officers bust into an apartment, where they find the plaintiff and a pellet gun—but no girlfriend or 9mm. Officers post-search: We're keeping you under arrest until we sort out who made the false 911 report. Fifth Circuit: No QI for post-search detention. "[I]t would be nonsensical for someone to file a false report on himself."
  •  The governor of Texas issues an executive order prohibiting private individuals from transporting "migrants who were previously detained or subject to expulsion." Folks who don't like this sue him. Fifth Circuit: The guy may have made this law, but he doesn't enforce it. Sovereign immunity. Dissent: All the plaintiffs need at this stage is a scintilla of enforcement.
  • Publicly traded companies often buy back their own stock. Sometimes they do it because they think the stock is undervalued, but other times they might do it to pump up the value and trigger extra compensation for executives. The SEC thinks investors should know which of those it is, so after notice and comment it orders companies that buy back their own stock to file public disclosures stating the reason. The U.S. Chamber of Commerce and others challenge the rule. Fifth Circuit: No First Amendment problem here. But the agency didn't take comments about the cost/benefit of the proposal seriously enough, so it's back to the drawing board.
  • The Sixth Circuit has a growing body of law specifically about where plaintiffs can sue over Kathy Griffin's tweets. Who knew? Here, she summoned a Twitter mob to successfully get a Tennessee executive fired after he lost his temper (she thought homophobically) at high school promgoers disrupting his dinner. Can he sue Griffin (a Californian) in Tennessee for torts related to her Twitter activity? Indeed he can, because Griffin tagged his Tennessee employer and her tweets emphasized his Tennessee residence, so that targeting of Tennessee gives the state's courts personal jurisdiction over the claims.
  • Allegation: Protesters protesting the Dakota Access Pipeline in North Dakota are injured when police deployed pepper spray, bean bags, water, and rubber bullets against the crowd. Unreasonable seizures? Eighth Circuit: Officers were not on notice that their actions could have violated the Constitution; we have repeatedly recognized that the law is unclear about whether the use of force to disperse a crowd is a seizure.
  • In 2021, Arizona banned abortions performed "solely because of a genetic abnormality." A group of doctors (who would otherwise be performing more abortions) challenged the law as unconstitutionally vague. District court: Dobbs eliminated any right to abortion, so I don't see how you can have standing at all. Ninth Circuit: Remanded! We're not weighing in on the merits, but these doctors are obviously affected enough to sue.
  • California man attends the Hmong New Year Festival at the state fairgrounds in Sacramento, hoping to distribute religious tokens. He's told he can distribute them outside the festival, but not inside. Undeterred, he buys a ticket, enters, distributes tokens, and is duly removed. He sues, arguing that the fairgrounds are a traditional public forum. Ninth Circuit: The fairgrounds were surrounded by a fence, and you had to buy a ticket for admission, neither of which is typical of traditional public fora.
  • Former attendees of a Wyoming treatment program for troubled adolescents file a class action, alleging that they were basically kidnapped and forced into hard labor (the program was housed at a ranch). The district court refuses to certify the class, concluding that everyone's claims are just too different. Tenth Circuit: But the district court's standards were too strict. Take another look at that.
  • Seeking to improve race relations, Miami Beach officials commission artists to produce works for a curated exhibit that the city hopes will "spark[] crucial conversations about inclusion, blackness, and relationships." Artist: Okay, here's my painting of a Haitian-American man shot to death by Miami police in 2011. City: We don't want to spark that particular conversation, so no thank you. Eleventh Circuit: Which is just fine. The city's decisions about what art to purchase and display are gov't speech, so the First Amendment doesn't apply.
  • Florida man loses a big poker game and allegedly uses his cellphone to arrange a violent robbery of the winners. Police get a warrant for essentially all his iCloud data without any time limitation, even though the last backup was 12 hours before the poker game. They find a month-old photo of the man with a gun. Yikes! Based on that image, he's charged with being a felon in possession. Suppress the evidence? Eleventh Circuit: He's got a decent case that the search warrant was too broad, but in this newfangled world of tech, the law is sufficiently unsettled that the officers were entitled to rely on the warrant in good faith. Concurrence: Going forward, cloud search warrants really should specify particular timeframes, subject matters, and categories of data.
  • Indiana's Constitution provides that "in all civil cases, the right of trial by jury shall remain inviolate." But do defendants in civil forfeiture proceedings—here, the owner of $2,435 in cash that the state is seeking to take—have a right to a trial by jury? Indiana Supreme Court: They do indeed! And the state's argument to the contrary would "effectively deprive Hoosiers of a jury trial when filing suit under any modern statutory scheme." (This is an IJ case.)
  • And in amicus brief news, this week IJ urged the Oregon Supreme Court to affirm that it would violate double jeopardy to use civil forfeiture to take a sexagenarian's home after the resolution of her criminal case (which resulted in a guilty plea, prison time, and the criminal forfeiture of $50k.)
  • And in cert denial news, this week the Supreme Court decided not to rehear King v. Brownback, though its previous ruling in the case left a critical question unanswered: Does the FTCA's judgment bar preclude consideration of other claims brought in the same action? This means that two federal task force officers who beat and choked an innocent college student until he was unconscious (after mistaking him for a fugitive)—and then had him jailed and prosecuted on bogus charges—will not face any accountability. Justice Sotomayor wrote separately, criticizing the denial.
  • And in more denial news, SCOTX has declined to review a South Padre Island ordinance that requires food trucks to obtain the blessing of a restaurant before they can operate in the city. Justice Young wrote separately, noting that that is so obviously unconstitutional that "the Court would have little ability to develop the law" if it had taken up the case. (This is an IJ case. And here is a sparkling law review article on economic liberty's deep roots in Texas.)

When a baby is born in the U.S., blood samples are taken and tested for various maladies. But in New Jersey, health officials retain and store the samples—without any parental notice—for 23 years. There are no restrictions on how the samples can be used, and in the past they have been given (without a warrant) to law enforcement. "It's incredibly misleading for the state to tell parents they are simply drawing blood from their babies to test for diseases when it could be sold to third parties or used by other government agencies to build invasive databases or registries," said IJ Attorney Brian Morris. So this week, IJ filed a class action demanding that the state either destroy the samples after testing or obtain consent from parents to allow for specific uses of the samples. Click here to learn more.