Short Circuit: A Roundup of Recent Federal Court Decisions

Voting districts, work uniforms, and hunter harassment.

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

Friends: IJ is off to the races with an exciting new free-speech case! For decades, Minnesotan Leda Mox has taught equine-massage classes. But Minnesota says she can no longer teach her classes (read: can't talk to her students about horse massage) unless she pays the state thousands of dollars in fees and submits her horse-massage curriculum to regulators for approval. A First Amendment violation? Yes. Yes it is. Read about the case—and see Leda's noble steeds—here.

• Circuit-split alert? Whereas the Seventh Circuit famously enjoys contrasting judges with truffle pigs—in the context of scolding parties for not supporting their factual claims with record citations—the First Circuit has staked out a bold preference for contrasting judges with ferrets. Based on some hard-hitting investigative journalism, your editors have confirmed that this split is a mature one. Possibly the first judge-versus-ferret metaphor came from the Fifth Circuit's Judge Goldberg in 1983 ("Judges are not ferrets!"). And since the late '90s, the "anti-ferret rule" has become a peculiar fixture in the District of Puerto Rico, whence it trickles upward occasionally to the First Circuit. While we're on the subject, shout-out to Judge Johnston, of the Northern District of Illinois, who has done yeoman's work trying to get bloodhounds into the mix.
• Inmate: Prison officials ignored my letters informing them that people were smoking inside, thus exposing me to high levels of secondhand smoke in violation of the Eighth Amendment. Second Circuit (unpublished): Discovery is necessary to identify who may have received his letters, so back down to the district court this case shall go. (NB: Congrats to Seton Hall law students for getting the W on appeal!)
• Inmate: A prison official placed a cup of juice on the tray into my cell and deliberately catapulted it into my face, which is excessive force. Second Circuit (unpublished): No case law (case. law.) indicates that purposely spilling a cup of juice on an inmate constitutes more than a de minimis use of force, so, say it with me now, qualified immunity.
• Muslim member of the Fairfax County, Va. school board is pulled over for running a red light. After she refuses numerous commands to produce ID and step out of the car, she is pepper-sprayed, arrested, and booked, where she is forced to take mugshots without her hijab. She sues, alleging a RLUIPA violation for the mugshots (among other claims). The district court orders the mug shots destroyed. Fourth Circuit: And since the mug shots have indeed been destroyed, the sheriff's appeal of that part of the ruling is moot.
• Fourth Circuit, caring about procedure: District courts can't just assume prisoners are filing in forma pauperis, no matter how common that may be. Which means inmates at a Virginia prison were not required to file separate actions (and pay separate filing fees) to claim that the IRS illegally refused to give them COVID-19 stimulus payments during their incarceration.
• Fourth Circuit, caring about procedure: District courts can't just deny a preliminary injunction without explaining their reasoning. Which means pretrial detainees in Prince George's County, Md., will get another crack at arguing that the county is unconstitutionally over-detaining people despite judges' ordering them released.
• Golden Girls fans still debate whether that out-of-left-field chronic-fatigue-syndrome two-parter is inspirational or unhinged. The Blanche of the federal circuits (a/k/a the Fifth Circuit) doesn't answer that precise question, but it does hold that the marketplace of ideas—rather than tort law—is the way to hash out medical disputes over controversial chronic diseases. (For those who may object that Blanche, an Atlanta native, hails from the Eleventh Circuit, not the Fifth, pump the brakes: Her formative years were spent in the Old Fifth, long before enactment of the Fifth Circuit Court of Appeals Reorganization Act of 1980.)
• Galveston County, Tex., had a judicial district that was majority-minority if you add the Black and Hispanic populations together, but not a majority of either group on its own. And not majority-minority at all after redistricting in 2021. District court: Under Fifth Circuit precedent you can aggregate minorities together under the Voting Rights Act for purposes of vote-dilution claims. Fifth Circuit: Yeah, we know we said that, but we were "wrong as a matter of law." Even so, we're stuck with that error for now, though "[w]e request a poll on whether this case should be reheard en banc at the earliest possible date."
• Should Louisiana have one Black-majority congressional district? Or two? After a five-day hearing, the district court issues a 152-page ruling concluding that the Voting Rights Act requires two. Louisiana Secretary of State seeks a stay pending appeal. Fifth Circuit: Which we deny. The district court's opinion isn't perfect, but a stay pending appeal is an extraordinary remedy. We're expediting the appeal, though, and the merits panel is free to disagree with us.
• Member of Louisiana's mandatory state bar association sues, alleging a violation of his First Amendment rights. "Why should I have to pay the Bar so that they can tweet about charity drives, student debt, and 'the purported benefits of walnuts'?" he queries. Fifth Circuit: You shouldn't! Though you can still be forced to pay for advocacy that's actually germane to the bar association's purpose—at least until the Supreme Court holds otherwise.
• Allegation: Burleson County, Tex. judge—and owner of a restaurant called "Funky Junky"—sexually assaults a county-attorney clerk on several occasions, both at Funky Junky and at his office. She sues Funky Junky, the judge, and the county. All claims either settle or are dismissed except the Section 1983 claim against the county. Fifth Circuit: Although the judge may have been a policymaker with final decision-making authority for Funky Junky, his alleged acts of sexual assault were not within his policymaking authority as a county official, so the county's not liable.
• Tesla requires certain line workers to wear uniforms to cut down on "mutilations" of the company's products. Some of the workers instead wear union t-shirts until Tesla tells them to stop. NLRB: That's an unfair labor practice. Union garb is protected. Fifth Circuit: Yeah, no. That would mean all dress codes are invalid. Also, as an aside, there's a Major Questions Doctrine problem here.
• In a case about whether your school district has a problem with pervasive gender-based harassment, it's probably a bad sign if the Sixth Circuit needs to drop a footnote to clarify the multifarious forms of "Jane Doe" it has employed to identify the many juvenile victims of gender-based harassment in your school district.
• In 2016, Wisconsin amended its hunter-harassment statute to include in its definition of harassment various forms of recording a hunter's activity. Flagrant violation of the First Amendment, or empty act of political theater? Seventh Circuit: The first thing! (Dissent: I'm not saying it's empty, but it's empty enough that none of these plaintiffs has standing.)
• Defendant: The Fourth Amendment requires you to weigh the violence of the police's entry against the likelihood of an exigent circumstance, and here, there wasn't enough chance of exigency to justify using a sledgehammer. Seventh Circuit: The door was locked. The sledgehammer opened it. Why are we still talking about this?
• News you can use from the Seventh Circuit: When you go to the emergency room with a plastic device in your mouth that can convert a firearm into a fully automatic weapon, it can probably be used as evidence against you if the doctors make you spit it out while treating you.
• St. Louis, Mo. police officer gets into altercation with protester and uses pepper spray. Photojournalist 20 feet off to the side gets hit by spray and sues for First Amendment retaliation. Eighth Circuit: There's no evidence the officer even knew you were there or who you are, so you can't win on a claim that he was retaliating against your journalism.
• This sad-all-around case features a deadly standoff on a Colorado bridge. On the one hand, the suspect (confronted for suspected possession of child pornography) said that he wasn't "going back to jail without a fight" and was holding a handgun with a high-capacity magazine. On the other hand, he was arguably more suicidal than homicidal. And the cops shot him in the back. District court: No qualified immunity. Tenth Circuit: Wrong. In fact, the cops acted reasonably. Summary judgment to the police.
• In which the Tenth Circuit respects the narrow parameters of its appellate jurisdiction over an interlocutory appeal from a district court's denial of qualified immunity. But! In which it also throws caution to the wind by releasing its opinion in Century Schoolbook instead of Times New Roman, a typographical decision that is sure to trigger en banc review! (Editors' note: Look, man, you try reading this many appellate opinions every week. You'd get excited about this kind of thing, too. Though the real bombshell will be when the First Circuit stops writing its opinions on Underwood typewriters.)

The First Amendment isn't just for horse-massage lessons; it protects lots of other speech too! Like the speech of Clarence Cocroft, who wants to publicly advertise his licensed medical-marijuana dispensary in Olive Branch, Miss. Under state law, Clarence's business is totally lawful. But telling people about that totally lawful business? Totally unlawful. A First Amendment violation? Yes indeed. Which is why Clarence has teamed up with IJ to institute some justice in the Magnolia State. Click here to learn about the case.

 

You know what else the First Amendment protects? Reading e-mails. Jay Fink helps Californians flag deceptive spam emails that might be actionable in court. Mostly that means sitting at his desk and going through his clients' junk folders. You probably know where this is going. Yes, California's calling him an unlicensed private detective. And in what might be a burden-to-benefit record for an IJ client, the state wants him to work for 6,000 hours—in fields like investigative journalism, military policing, or arson investigation—before he can get back to reviewing junk mail. A First Amendment violation? You decide! Or more precisely … one or more federal judges will decide, because Jay and IJ are suing the California regulators.