Short Circuit: A Roundup of Recent Federal Court Decisions

Frothy fonts, unprofessional death threats, and books about butts and farts.

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

New on the Bound By Oath podcast: the story of Berman v. Parker. In which the Supreme Court, in 1954, abandoned previous constitutional limits on the gov't's power to take property from Person A to give it to Person B, greenlighting the era of urban renewal. Which was a bad era.

New at Fox News: Ever since Berman, cities have been able to take "blighted" neighborhoods, bulldoze them, and give them to private developers. But Brentwood, Mo. officials are threatening to take property that is not remotely blighted. Does "blighted" mean blighted, or does it instead mean "coveted by the gov't"?

1. Green card holders from Jamaica and the Dominican Republic are convicted of crimes in 2000 and 2012, respectively. In 2019 and 2020, ICE arrests them both and they are held for months without bond while removal proceedings move forward. Both sue, alleging that their detention violates due process. Second Circuit: Correct. We won't draw a bright line on when it has to happen, but at some point, the gov't has to give noncitizen detainees a bond hearing.
2. Diddy (f/k/a Puff Daddy and P. Diddy) has, uh, seen a lot of legal action lately. He's succeeded in at least one, where the Third Circuit (unpublished) rejected a pro se case seeking $45 mil in damages and contending that Diddy's "newfound status as a sexual predator" has made him a public nuisance (by way of billboards featuring him), led to tortious interference (by enabling him to conduct business in places of public accommodation), and created products liability (by allowing him to represent various companies at department stores).
3. Army officer driving through Windsor, Va., is pulled over because his new vehicle's temporary tag was obscured in a tinted rear window. Somehow, this encounter quickly escalates into two officers yelling at him with guns drawn, repeatedly pepper-spraying him, and dragging him from his car. He sues for violations of the Fourth Amendment. Fourth Circuit: The officers mostly get qualified immunity, except for one claim because one of the officers clearly went too far with death threats. Dissent: Those threats were "unprofessional," to be sure, but they didn't prolong the stop so he should be immune for that, too.
4. Back in the old days, Louis XIV would say "L'État, c'est moi." Apparently, they also say that around the South Carolina Department of Parks, Recreation and Tourism. After South Carolina's attorney general had the "State of South Carolina" join an ongoing antitrust suit against Google, Google sought discovery from the Parks & Rec department. But someone there probably not named Ron Swanson said the department had sovereign immunity. Google: Uh, the State waived sovereign immunity when it intervened in the case. Parks & Rec: That was just the attorney general, and he doesn't speak for us. Fourth Circuit: Yes, he does.
5. Texans complain to Llano County public library about children's books about "butts and farts," leading to their removal from shelves. Further complaints prompt the removal of books about sexuality, gender, and racism. Patrons of the library sue, alleging the removal of the books violates the First Amendment, and seek a preliminary injunction. Fifth Circuit: Granted; "a book may not be removed for the sole—or a substantial—reason that the decisionmaker does not wish patrons to be able to access the book's viewpoint or message." Concurrence: Agreed, except the "butt and fart" books don't have a message. Dissent: Curation decisions are gov't speech, and the disagreement between the majority and concurrence shows how unworkable this ruling is.
6. Today's edition of endless immunity-related interlocutory appeals brings us to Quitman, Tex., where a police captain was fired in 2017 for submitting an affidavit in his friend's criminal case supporting a change of venue because of a corrupt relationship among the sheriff, district attorney, and presiding judge. 2019: Fired captain sues for First Amendment retaliation. Fifth Circuit (2022, on motion to dismiss): No qualified immunity. Fifth Circuit (2024, on motion for summary judgment): Still no qualified immunity, please have a trial now. Also, no absolute immunity for the prosecutor for threatening to use his discretion to suppress free speech.
7. Allegation: National medical specialty certifiers coordinated with the Biden administration to censor and chill the speech of physicians who spoke critically of positions taken by Dr. Anthony Fauci, lockdowns, mask mandates, Covid vaccination, and abortion, including by threatening to strip certifications from otherwise qualified physicians who expressed these views. Fifth Circuit: And the district court was a bit too hasty in dismissing First Amendment and antitrust challenges to those alleged practices.
8. Allegation: In 2014, Beavercreek, Ohio officer is summoned to a Walmart by a (false, now-recanted) report of an active shooter; he shoots the suspect dead on sight. Yikes! The man had picked up an unpackaged, unloaded pellet gun (that looked like an AR-15) off a shelf and continued to shop. He was not threatening, and the gun was pointed at the ground when the officer shot him. Sixth Circuit: It's too soon to appeal dismissal of one claim against Walmart; back down for trial on the other claims. (Claims against the officer, chief, and city were settled in 2020.)
9. Does the Second Amendment protect the right to build a thousand-yard commercial shooting range? No, say two of the three opinions in this Sixth Circuit case, from which your summarist learned that Revolutionary War-era sharpshooters were recorded hitting targets up to 900 (but never a thousand!) yards away.
10. According to a reputable source, the Nazi Party developed a frothy disdain for the fonts of twentieth-century type-designer Lucian Bernhard—based on the (incorrect) assumption that he was Jewish. The Seventh Circuit doesn't like Herr Bernhard's fonts either (or Bernhard Modern, at least), though for less Nazi-y reasons: The font simply strains the judicial eyeballs. Quaere whether the court would be better served by simply amending its circuit rules to formally classify permitted or disfavored fonts. Though have a care, CA7: Don't follow in the footsteps of the Northern District of Georgia, whose local rules voice a strident preference for the tropically nonexistent "Book Antigua." (Shout-out to IJ's in-house proofer for catching that one.) And while we're on the subject, allow us to propose a friendly amendment to the circuit's Requirements and Suggestions for Typography in Briefs and Other Papers: Word on the street is that the font of choice for the U.S. Solicitor General's Office is not Century, but a variant of Century Expanded.
11. In Illinois, a state where cannabis is legal, does the smell of unburnt cannabis alone justify a warrantless automobile search? The Seventh Circuit says yes because the smell might indicate an unlawful use, i.e., transporting cannabis in a non-odor-proof container, a misdemeanor under Illinois law. (In an amicus brief, IJ urged the court to hold that cannabis smell alone cannot justify a search given other innocent, plausible explanations for the smell.)
12. Pre-trial detainees who were held in St. Louis's notorious (and now closed) Medium Security Institution file class action claiming they were detained in conditions that "equaled or exceeded 88 degrees." They move for class status. District court: Ouch! Sounds bad, classes certified. Eighth Circuit: You gotta say more than the class is everyone who suffered "putrid physical conditions." The city loses on a bunch of other procedural issues, though, because we're not gonna do its "work for it by developing the argument[s] and putting flesh on [their] bones." Case remanded.
13. Mom sees ad for a toy on Facebook and orders it for her toddler. But it's a sad day at their house when a different toy arrives. She tries to get a refund but it turns out it's a scam and the vendor is in China. She and another scammee sue Facebook under a number of claims. Facebook: Section 230! Ninth Circuit: 230 does not apply to the contract claims as Facebook's promise to moderate scammy ads is separate from its status as a publisher. But for the tort stuff the claims rely on a duty to moderate third-party speech, which is what 230 is all about. Concurrence: This 230 stuff is getting out of hand.
14. Less sophisticated commentators may focus on the substance of the Ninth Circuit's (2-1) holding that it likely violates the Sixth Amendment for Oregon to let indigent pre-trial detainees languish in jail, awaiting trials that can't be held until a defense lawyer is appointed, which may not happen for months. But we know what our readership demands—Younger abstention. And you will positively lose your monocles over the Younger analysis here, which holds that even if Younger's elements are met, "extraordinary circumstances" counsel against abstention.
15. Prosecutor in plea negotiations: We agree to recommend a sentence at the bottom of the guideline range. Prosecutor to district court: We recommend a sentence at the bottom of the guideline range for this top-of-the-food-chain drug dealer who is worse than a murderer. District court: Top of the guideline range it is. Ninth Circuit (en banc): The gov't breached the agreement, but it wasn't an obvious breach, so we affirm.
16. Dissenting judge: I'm trying to explain why the majority of this Eleventh Circuit panel is wrong to conclude that this plaintiff has standing to challenge a venture capital contest that is only open to Black women. Can you think of a sports analogy that will really resonate with the American legal community, particularly in Alabama, Georgia, and Florida? Clerk: What about football? Dissenting judge: By crumpets! Footie is perfect!
17. Miami-Dade officer: I'm entitled to qualified immunity because no published federal appellate opinion warned me it would be unconstitutional to shoot a barking dog, twice, after my colleague had already tasered it into submission. Eleventh Circuit: Some things in life, my guy, we expect you to just know. Case undismissed!
18. Man gets in a shootout with Atlanta-area officers. After he collapses, they detonate a flashbang to see if he reacts; he doesn't, but the officers allegedly continue to shoot him anyway. An autopsy finds 43 bullets and bullet fragments in his body. Excessive force? Eleventh Circuit: Well, the Supreme Court has recognized excessive-force claims against federal officers. But these officers were part of a joint state-federal task force that included U.S. Marshals, and SCOTUS has never said anything about that. Fortunately, there are a few federal agencies his mom (the plaintiff) could have asked to look into this, so it's not like there aren't any remedies.
19. In 2021, FBI agents lied to a judge, got permission to raid safe-deposit boxes owned by people suspected of no crime, and then sent hundreds of forfeiture notices never saying what the box owners did wrong. Then they lost the contents of many of the boxes, including retirees' entire life savings. But don't take our word for it. Head over to The Los Angeles Times and see the FBI agents admit as much under oath. And then click here to learn more.

And speaking of shady, did Pasadena, Tex.'s counsel lie to a judge? Last year, the city reneged on a settlement agreement to allow our client to open his auto-repair shop and resolve his challenge to the city's irrational parking requirements. And in April, the city's lawyer told a judge that the city council had approved his legal strategy (of pursuing an interlocutory review to further delay resolution of the case). But now The Texan reports that city council members say they approved no such thing. Wild. Click here to learn more about the case.