The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Bird poop, non-testimonial thumbs, and the heckler's veto.


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

Pish-tosh and tomfoolery! This week, Tex. Attorney General Ken Paxton lost 9-0 at the U.S. Supreme Court. Curiously, he declared victory. But we double checked and can indeed confirm that he urged the Court to affirm the dismissal of IJ client Richie Devillier's Fifth Amendment takings claim and the Court instead revived it. Because Ken Paxton lost. And Texans won. Click here to learn more.

  • Russian businessman gives $100k to American political operative to meet then-President Trump at a fundraiser and take a picture with him. Yikes! The operative contributes $25k to the fundraiser and pockets $75k. A jury finds him guilty of violating both the Sarbanes-Oxley Act and Federal Election Campaign Act. Operative: The gov't could only charge me under FECA, and the jury shouldn't have been told about an earlier campaign finance conviction from which I was later pardoned. D.C. Circuit: The gov't had discretion to bring charges under either or both statutes, and the earlier pardon was an "act of grace" rather than evidence of innocence. Affirmed.
  • When your editors were trying to name this humble publication, they bandied about several possibilities before settling on the snappy "Short Circuit." One moniker they vetoed immediately, however, was "Weekly Circuit Court Decision Summaries," which, besides lacking verve, is obviously a "merely descriptive" mark that cannot be registered under the Lanham Act. Second Circuit: Same goes for "Medical Special Operations Conference."
  • New Jersey law allows candidates in primary elections to include a six-word slogan by their name, but if the slogan contains the name of a New Jersey group, you need that group's consent. Which struck us as a really weird law when the Third Circuit (2022) upheld it against a First Amendment challenge. But suddenly it all made sense when, this week, the Third Circuit (2024) explained that it is part of an elaborate—and now enjoined—system of electoral jiggery pokery unique to New Jersey, the least corrupt state in the nation.
  • West Virginia enacts the "Save Women's Sports Act" to ensure that student athletes determined to be male at birth do not play on teams or in sports designated for "females, women, or girls." A 13-year-old transgender girl who takes puberty blockers and has publicly identified as a girl since third grade challenges the policy. Fourth Circuit: The policy possibly violates Equal Protection and definitely violates Title IX. Dissent: That would surprise the drafters of the Equal Protection Clause and Title IX.
  • Two Maryland state troopers respond to domestic-disturbance call where mom says 15-year-old son assaulted her. They wrestle the son to the ground, and one officer punches him several times in the head while the other tases him. Fourth Circuit: The two sides have very different accounts of what happened in the crucial moments. No qualified immunity; this should go to a jury. Dissent: Maybe the force was unreasonable, but there was no clear law about how to deal with a suspect who hasn't yet been fully subdued.
  • Allegation: A Harris County, Tex. constable requires precinct employees to work for his campaign or face retaliation, ranging from transfer to termination. Is the county liable for the constable's employment decisions? Fifth Circuit: Nope. The county's only liable if the constable was a final policymaker. Sure, the plaintiffs allege that the constable had "complete control" over his precinct's employment decisions. But he's not in charge of those decisions for the whole county, so he's not a final policymaker. Dismissal affirmed.
  • Members of the Lipan-Apache Native American Church have worshipped in a San Antonio, Tex. park for at least 25 years. They believe that a riverbend in the park bridges the physical and spiritual worlds and that its capacity to function as a sacred area relies on the presence of trees and nesting cormorants. But the city has a bond project for the park, which includes deterring migratory birds (including cormorants, on account of there being far too much poop) and removing some trees and planting others. It excludes people from the riverbend area. Does this unconstitutionally burden religious beliefs? District court: In some ways, yes. The church may access the area for one-hour religious services for 15–20 people on specified astronomical dates coinciding with their spiritual beliefs, but the city may continue with its tree-removal and bird-deterrence plans. Mitigating the dangers posed by poop is a compelling interest. Fifth Circuit: Sounds right. Partial dissent: The city ought to have done more to accommodate religious beliefs in its tree-removal and bird-deterrence plans.
  • Bartender is fatally stabbed in apparent robbery at a Calhoun County, Mich. bar. By the time the crime lab arrived to process the scene, seven people, including bar employees, were in the area where bloodstains and the murder weapon were found. Police home in on a woman who denies committing the murder; a prosecutor refuses to issue a warrant for her due to insufficient evidence, but a new prosecutor takes office and green-lights the warrant. A crime lab analyst testifies that the woman's blood type matches blood found at the scene, though it was too small to be tested for DNA. (In fact, millions of people matched the blood type found at the scene.) She's convicted, sentenced to life without parole. Sixth Circuit (2017): Habeas granted due to insufficient evidence. She's released after serving 17 years, sues a variety of people involved, including a detective who she says fabricated evidence and maliciously prosecuted her. Detective: Qualified immunity! District court: Nay; her claims should go to trial. Sixth Circuit (2024): Indeed.
  • "Strike suits" with "mootness fees" are what the Seventh Circuit calls "no better than a racket" and describes this way: "money moves from corporate treasuries to plaintiffs' lawyers; the investors get nothing, yet the payment diminishes (though only a little) the market price of each share."
  • "Behind every good man there is a woman, and that woman was Martha Washington, man, and every day George would come home, she would have a big fat bowl waiting for him, man, when he come in the door, man, she was a hip, hip, hip lady, man." And, of course, George had guns. So does that mean the federal law making it a felony to be an "unlawful user of" a controlled substance and possess a firearm is unconstitutional due to "history and tradition"? Eighth Circuit: No, because in this facial challenge we have to think of how the mentally ill were treated in George Washington's time. Concurrence: This history stuff is kind of unnecessary.
  • Fresno man high on meth is jumping in and out of traffic. Police restrain him and, at paramedic's direction, place pressure on the prone man while securing him to a backboard to transport him to hospital. Once they turn man on his back, they find he has no pulse, and he's pronounced dead. Ninth Circuit: Not clearly established that police can't follow paramedic's directions, or that a paramedic can violate Fourth Amendment by giving (even negligent) medical care. Qualified immunity. Partial dissent: Law was very clearly established on police asphyxiating a suspect on his stomach, and the fact that somebody else gave directions doesn't change that.
  • Seattle man attends abortion rally and LGBTQ-pride event and tries to read Bible passages to attendees, who respond with physical and verbal abuse. Police arrest … the man? ::record scratch:: Seattle: And we'd do it again! Ninth Circuit: Heckler's vetoes are not just uncool, they are (substantially likely to be) a First Amendment violation. Give this guy a preliminary injunction.
  • Normally, police violate the Fourth Amendment if they extend a traffic stop to ask questions unrelated to handling the matter. Ninth Circuit: But police can, for their safety, extend stops to ask about a driver's parole status—just as they can run a criminal history check during a traffic stop. Motion to suppress driver's illegal gun possession denied.
  • In another Ninth Circuit parolee case, officer forces parolee to unlock his phone with his thumbprint, so that the officer can look for evidence of drug dealing—which he finds. Ninth Circuit: Parolee's motion to suppress evidence denied. Compelled thumb use did not violate 4A because parolees subject themselves to broad warrantless searches in exchange for limited freedom. Nor did it violate 5A right to not testify against oneself because thumbs can't testify.
  • In a spat between competing manufacturers of skid-steer attachments, one accuses the other of falsely claiming that its attachments are made in America when some of the components come from China and Canada. Tenth Circuit: To recover under the Lanham Act, Plaintiff had to show the statements were unambiguous and literally false. But "Made in America" can mean lots of things, including assembled in America. (Ed.: And if you've read I, Pencil, you'd know that a strict interpretation of "Made in America" is impossible for even the simplest consumer goods.)
  • Citizen journalist films outside Artesia, N.M. refinery from a public sidewalk and is arrested when he declines to provide ID to officers. Tenth Circuit: No qualified immunity. To arrest someone for that, you have to reasonably suspect them of some underlying crime and no reasonable officer would have thought he was disorderly, trespassing, loitering, or doing terrorism. Dissent: Could have been a trespass; an officer might have reasonably, if mistakenly, thought the sidewalk was private.
  • And in en banc news, the Fifth Circuit, by a 9-8 vote, will not reconsider its decision that the 1935 SCOTUS case Humphrey's Executor is still good law. Concurrence: Although I can't quite sign on to it, the dissental means that "this cert petition writes itself."
  • And in more en banc news, the Fifth Circuit will not reconsider its decision that Texas's READER Act, which requires any bookstore or other vendor selling to public school libraries to rate its materials according to their "sexually explicit" and "sexually relevant" content, violates the First Amendment. Eight judges voted in favor of rehearing, with five judges, led by Judge Ho, publishing a dissent from denial.
  • And in further en banc news, the Fifth Circuit will not reconsider its one-sentence order denying a mandamus request filed by Space X, seeking to transfer its lawsuit against the NLRB back to Texas. Eight judges voted in favor of rehearing, with Judge Edith Jones, joined by five other judges, dissenting from denial (and attaching Judge Elrod's original panel dissent for good measure).
  • And in additional en banc news, the Ninth Circuit will not reconsider its unpublished decision that conveying information through language and graphics is not protected as speech if the gov't calls it conduct. (This is an IJ case.)

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