The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Private prisons, Pyrrhic victories, and a single-family hotel.


When Texas journalist Justin Pulliam started recording the response of the Fort Bend County Sheriff's Office to a mental health call in December 2021, he didn't know that he would end up arrested and charged with interfering with a police officer. And when his criminal trial ended in a hung jury in April 2023, he hoped that would be the end of it. This week, after making Justin wait more than a year, the county formally dismissed the charges against him. But Justin's federal lawsuit against the county for violating his First Amendment rights continues. Learn more here.

  • The Public Health Service Act requires pharmaceutical manufacturers who participate in Medicare or Medicaid to sell certain drugs at discounted prices to select healthcare providers, like hospitals serving low-income patients. But when those providers started contracting with third-party pharmacies to dispense the drugs, and those pharmacies were awfully loosey-goosey about tracking who got the discounts, drug manufacturers imposed contract conditions to tighten things up. D.C. Circuit: And they may do so, because the statute doesn't say otherwise.
  • We don't usually include decisions from the Federal Circuit in our lineup, but this week we noticed that the court issued an en banc decision overruling its established test for assessing nonobviousness of design patents, and we thought we'd throw a bone to the IP nerds.
  • This decision of the First Circuit is unremarkable except that it introduced your summarist to the claim of "culpa in contrahendo," which apparently comes from Germany's civil-law system, still exists in Puerto Rico, and is a little bit like detrimental reliance.
  • Pro-tip (well, not a "pro-tip" precisely, since your editors are neither pros nor amateurs at any of the shambolic, predatory malfeasance that follows): If you, a 30-year-old man, are a possessor and creator of child pornography and traveling in interstate commerce with the intent to have sex with a minor, don't park your pick-up truck conspicuously outside a high school. And while sitting in said pickup, keep your shorts on. And do a better job hiding your condensation-misted penis pump. Third Circuit: The cops who showed up and got an eyeful of this defendant's buttocks and penis pump lawfully seized him and search the pick-up. Conviction affirmed.
  • American Airlines pays its pilots for jury-duty leave and for bereavement leave (up to three days) but not for short-term military leave. Pilots: That violates the Uniformed Services Employment and Reemployment Rights Act of 1994! Third Circuit: Yeah, maybe. Sure looks like there's a fact dispute about whether the military leave is sufficiently similar to jury-duty leave and bereavement leave. To trial it must go.
  • North Carolina requires a full-blown land-surveyor license before you can share aerial photos of land that contain even basic locational information—even something as simple as a scale bar. Drone photographer receives a menacing cease-and-desist letter from the surveying board. He sues, alleging that banning him from sharing photographs of land without a license is a content-based restriction on speech. Fourth Circuit: One might think that determining whether a law is content-based turns on whether it regulates speech with a particular content, but it's actually based on a "non-exhaustive" list of vibes considerations. (Lest the coldly objective tone of this entry fooled you, this is an IJ case.)
  • Woman purchases oceanfront property in North Carolina. Unable to build a hotel or a bed and breakfast on land zoned single-family residential, she constructs "The Chesapeake," a "gargantuan" 15,000 square-foot "single-family" house boasting 24 bedrooms and 25 bathrooms that she rents out, spawning a long-running property dispute with her neighbors. Fourth Circuit: And despite some earlier setbacks, she's in the clear; amendments to state law preempt the local zoning ordinances she's accused of violating.
  • Border patrol canine alerts to truck crossing the border in Texas, and the resulting search reveals ten hidden undocumented immigrants. Driver is charged for transporting them but argues the search was illegal because the dog couldn't differentiate between him and the people hiding. Fifth Circuit: Search is OK, primarily because the dog could also detect drugs, and so an alert is sufficient to justify the search. (Queries an observer: if the dog alerts to both things that are illegal, like drugs, and things that might be legal, like people, how does that make the search more justified?)
  • Today in Pyrrhic victories, the Fifth Circuit (unpublished) affirms the denial of immunity to city councilors from Pharr, Tex. But only because they actually should have invoked the absolute immunity that applies to legislative actions, whereas the qualified immunity they did assert is for executive actions.
  • Michigan inmate with severe psychiatric disorders hits a breaking point, repeatedly cutting himself with—and swallowing—multiple razorblades. He's also extremely difficult to handle, having accrued more than 300 misconduct charges, some of which were violent and many of which were sexual. So prison officials put him in solitary for three months. He sues, alleging Due Process, Eighth Amendment, and ADA claims. Sixth Circuit: The Eighth Amendment claim survives. Concurrence/Dissent 1: His ADA claim should also survive. Concurrence/Dissent 2: What the hell were they supposed to do with this guy?
  • Indiana police officer and multiple black-belt martial artist encounters an inebriate. The encounter turns physical after the drunk man slaps the cop, leaving him startled but uninjured. In a "purely instinctual" response, the cop grabs the man and punches him four times in the face, knocking him unconscious, fracturing his eye socket, and breaking his nose. The man sues for excessive force. Seventh Circuit (which has clearly never seen Con Air): You're not supposed to keep beating people after they're unconscious, but Chuck Norris over here moves like lightning and didn't have time to realize the plaintiff was already out cold.
  • Alabama, Kansas, Georgia, Louisiana, and West Virginia would love to intervene in this lawsuit involving a challenge to the federal Circumvention of Lawful Pathways immigration rule, which is currently in settlement negotiations, claiming an interest in preserving the rule to reduce unlawful immigration. Can they join the fun? Ninth Circuit: They cannot. Dissent: The standard for intervention is broad, and the states have an interest in preventing collusive settlement here.
  • Those who know the joys of TSA precheck would go to almost any length not to be relegated to the indignity of taking off their shoes, submitting to an x-ray scanner, and unpacking their laptops. So imagine if you had your Trusted Traveler status revoked, then reinstated, then revoked again without explanation. You might make a federal case out of it. Ninth Circuit (over a dissent): Which you can do.
  • Arizona NAACP and two former prisoners challenge the constitutionality of private prisons, alleging that the profit incentive the prisons operate under (including the use of forced prison labor) violates the Thirteenth Amendment's ban on slavery or involuntary servitude, the Eighth Amendment's ban on cruel and unusual punishment, and the due process and equal protection guarantees of the Fourteenth Amendment. Ninth Circuit: Nope. Dissent: We shouldn't even say that much, because the plaintiffs lack standing.
  • The Stillaguamish Tribe of Indians is in a dispute with the state of Washington and other tribes about fishing rights under an 1855 Treaty, governed by an ongoing, 50-year-old injunction. Ninth Circuit: But the district court didn't provide enough facts in its ruling for us to decide who's right, so we remand. Concurrence: And maybe the court should figure out if there's a way to resolve this without another 50 years of continuous judicial supervision.
  • In a five-body homicide trial, the government failed to turn over information that their star witness was willing to shape her testimony in exchange for certain benefits. The defense instead learns this from the witness's counsel the night before her planned testimony. The district court is not happy and imposes about $5,000 in sanctions. Ninth Circuit: Which was totally justified by the government's egregious misconduct.
  • Law enforcement responds to teenager overdose in Archuleta County, Colo. EMTs take the teen to the hospital, and officers secure the scene, prohibiting anyone from entering the house. Nearly eight hours after arriving, they apply for and obtain a search warrant and discover guns that the dad, a convicted felon, couldn't lawfully own. Tenth Circuit: Can't do that. Officers can seize a home only for the amount of time it reasonably takes to get a warrant, not the length of an investigation.
  • Columbia County, Ga. sheriff investigating stolen debit card watches video footage of man using the card, whom he identifies as a person he'd encountered before. Together with investigators from the neighboring county, they compare mugshots of the man to Facebook photos and agree they've got their man. He's arrested, charged, and spends a few hours in county jail. D'oh! Wasn't him. Malicious prosecution? Eleventh Circuit: Nay. Mistakes happen, and the investigation was constitutionally fine, even if inaccurate.
  • Law-school-hypo time: Rehab-facility van crashes while driving clients. The estates of two clients sue, claiming the facility negligently caused the crash, which resulted in injuries, which required surgery, which required prescription painkillers, which led to relapse, which led to overdose deaths. Did the crash proximately cause the deaths? Eleventh Circuit: (unpublished): No, as the deaths were not the foreseeable result of any supposed negligence of driving the van
  • Unhappy with magistrate judge handling of his case, man calls courthouse saying things like, "this is judgment day" and the judge "is going to get hanged." As part of a plea deal, he's sentenced to time served and supervised release with conditions like requiring him to make financial disclosures and banning him from three courthouses. Eleventh Circuit: Perfectly acceptable. Dissent: Banning him from the courthouses unconstitutionally burdens his right to file lawsuits. Should've stuck to banning him from calling the courthouse.
  • And in en banc news, the Sixth Circuit will reconsider its opinion that a Kentucky man sentenced to death for a 1985 murder was entitled to habeas relief for ineffective assistance of counsel. This case's crazy procedural history involved the man losing before a panel of the Sixth Circuit, then winning after a member of the original panel majority took senior status and his replacement agreed with the original panel dissent.
  • And in further en banc news, the Ninth Circuit will not reconsider its opinion throwing out discrimination claims by a former California fire chief who claims he was fired because of his Christian faith. Four judges issue three dissents from denial of rehearing, including a particularly spicy dissent from Judge VanDyke, who suggests that courts "out here on the Left Coast" are out of step with the Supreme Court.

That Fourth Circuit drones case summarized above was awful, wasn't it? Unfortunately, a lot of federal courts are confused about how the First Amendment applies to "occupational speech," i.e., speech that people earn their living from. But as the nation's leading legal advocates for occupational speech, IJ is happy to set them straight. We recently filed an amicus brief in the Third Circuit explaining the various ways courts are getting cases wrong, identifying courts that get them right, and explaining the stakes for speakers throughout the country. You can learn more about IJ's work defending occupational speech here.