The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Controversial memes, mandatory recusal, and punitive damages caps.


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

This year the Fourth of July isn't just America's independence day—it's also, ironically, general election day in the old mother country. Over at Discourse Magazine, IJ's own Anthony Sanders uses this coincidence as an opportunity to reflect on the differences between the two countries. Such as: when Americans declared their independence, it ended up not just being from Britain but from the British constitutional system. Parliamentary supremacy was out, written "higher law" constitutions were in. Which meant judicial review was too. Yet, some judges keep wanting to be British, even today.

New on the Short Circuit podcast: British connections with the US of A, old and new. The Supreme Court's affirmation of the ancient common law right of trial by jury in SEC v. Jarkesy and a Fifth Circuit crime caper at the British Consul General's home.

  1. Newly hired Massachusetts high school teacher is discovered to have posted six "controversial" memes to her TikTok account months before she was hired. She is promptly un-hired and sues for violation of her First Amendment rights. But the First Circuit, in a ruling with inexplicably strange section headings (including "Table-Setting," "The Main Course," and "Parting Words") says there's no claim here.
  2. Certain federal statutes allow litigants that prevail against the gov't to recover their attorneys' fees, but, as the Second Circuit reminds us, litigants haven't "prevailed" just because they've gotten literally everything they wanted.
  3. Under New York law, political groups that nominate candidates aren't considered "parties" until they reach a certain size. Until that point, they're "independent bodies." The difference matters, because parties can receive contributions of $138,600 from individuals (and unlimited contributions to pay for headquarters, staff, etc.), and may make unlimited contributions to their candidates, while "independent bodies" are limited to receiving and making contributions of $9,000. An independent body challenges these distinctions. Second Circuit: Allowing 15x greater contributions to the groups most likely to control government is closely drawn to preventing corruption.
  4. Oops! District judge presiding over a case involving Bank of America discovers his wife owned stock in the company. She divested before the judge ruled. Was recusal mandatory? Must the court of appeals vacate the ruling? Second Circuit: Yes, and yes.
  5. In 2017, the "Unite the Right" rally in Charlottesville, Va. sought to protest the city's decision to remove a statue of Robert E. Lee. And, as a subsequent civil trial found, to incite violence for which a jury awarded more than $26 mil in damages, of which $24 mil were punitive damages. But the district court slashed the punitive damages to $350k by applying a Virginia cap on punitive damages to the award. Fourth Circuit: Which was improper. The $350k cap applies per plaintiff. Remanded for recalculation.
  6. Allegation: Louisiana prison officials kept IJ client Percy Taylor in prison an extra 525 days after his sentence had finished; indeed, the state overdetains a quarter of its prisoners, a fact that's been known to the head of the state's prison system for over 10 years. So, no qualified immunity for him, right? Fifth Circuit (2023): The right to timely release is clearly established, but Taylor didn't satisfy this fun, special third prong to the QI test: whether the prison chief's conduct was "objectively unreasonable in light of clearly established law." Fifth Circuit (2024, unpublished): Okay, just kidding, there is no third prong. But Taylor still loses because he wasn't actually overdetained! The state court judge who said that he was (and ordered him released) did his figuring wrong.
  7. Adrian, Mich. city commissioner gets beered up and goes on Facebook, where he is chagrined to see that a local gadfly has posted a picture of him during his time as a Chippendales dancer, along with a variety of criticisms. The commissioner calls the gadfly's mom, a fellow real-estate agent, and they exchange some disputed words. The gadfly sues for First Amendment retaliation. Sixth Circuit: The commissioner was acting as a private citizen, notwithstanding being represented under the city's insurance coverage.
  8. Lexington, Ky. officers get a tip that man is selling drugs from apartment. After each of two controlled buys, the man drives from the buy location to the apartment. So the officers had probable cause to get a warrant to search the apartment? Sixth Circuit (en banc): Sure did. Motion to suppress denied. And even if they didn't, the good-faith exception applies. Dissent: An uncorroborated tip and a tenuous connection to a location do not probable cause create.
  9. Two teens threw lit matches into the woods on Chimney Tops Mountain in the Great Smoky Mountains on Thanksgiving Eve 2016, sparking a fire. The park's fire management officer decided to let it burn, believing that natural barriers would catch and hold the fire. He rejected the local fire department's offer of help and didn't call in the park's fire staff (who were out for the holiday). The fire worsened. By the time the officer requested more help and officials ordered the area evacuated, it was too late—the fire engulfed Gatlinburg, Tenn., killing 14 people, injuring nearly 200, and destroying property worth hundreds of millions. Much litigation ensued. As for the families of the dead and those who lost property, the feds tried to toss their claims for filing the wrong forms. Sixth Circuit (2023, with three opinions): No. As for the insurers, the feds tried to toss their claims for challenging discretionary decisions. Sixth Circuit (2024, with three opinions): The fire management officer ignored the mandatory incident-command structure, so that claim goes forward, as does the claim that the park failed to warn about the imminent danger of the fire.
  10. In 1987, a 17-year-old is sentenced to 42–60 years in prison for his role in a home invasion and sexual assault, which the sentencing court described as "one of the most heinous crimes that it ha[d] presided over." He will not be eligible for parole until 2027, when he'll be 57 years old. Does the sentence effectively keep him in prison for life without parole in violation of his Eighth Amendment rights? Sixth Circuit (over a dissent): We can't answer that. His claim attacks a combination of his sentence and the statute that won't let him out on parole before 2027. He should've brought a habeas claim, not a § 1983 claim.
  11. Eighth Circuit (2023): It was dark out and the video is inconclusive, so plaintiff, a mom begging a Springdale, Ark. officer to stop holding her minor (mistakenly identified) children at gunpoint, might have seemed like a threat to the officer. No constitutional violation for pointing a taser at her. Eighth Circuit (2024, per curiam): It was dark out and the video is inconclusive, so we accept the plaintiff's version of events, under which a Washington County, Minn. officer shot an armed, suicidal—but not threatening—man dead. We don't even have jurisdiction to review the denial of qualified immunity.
  12. Allegation: Meta Platforms, Inc., which operates Facebook, Instagram, and WhatsApp, prefers to hire H-1B visa holders over U.S. citizens because it can pay the former less money. Naturalized U.S. citizen sues, claiming this violates federal law. Ninth Circuit: We agree and split with the Fifth Circuit. Dissent: Federal law prohibits discriminating against non-citizens. It doesn't prohibit discriminating against citizens. Even though "I personally like the majority's conclusion better than mine."
  13. Allegation: The Office of Foreign Asset Control has threatened to impose sanctions on transactions involving humanitarian aid to Iran. As a result, third-party banks won't facilitate our transactions and pharmaceutical companies won't provide the wound dressings we need. Ninth Circuit (unpublished): No standing. Maybe banks and pharmaceutical companies would refuse to do business with Iran even if they didn't fear sanctions. Who's to say?
  14. Ninth Circuit (unpublished): Officers have been on notice since 2014 that it's unconstitutional excessive force to handcuff a calm, compliant 10-year-old who is surrounded by adults. So no qualified immunity for these Honolulu officers who arrested a girl at school for drawing a threatening cartoon picture. Contrary to the district court, however, the false-arrest claim is a no-go.
  15. Allegation: Two Mesa, Ariz. officers approach suspected drunk driver's vehicle on foot. The driver declines to hand over his keys, instead reversing slowly and knocking down an officer who'd been reaching into the vehicle with a taser. The car stops when it collides with a patrol car, at which point the officer who'd fallen shoots at the driver nine times, killing him. Officer (who has an Army Ranger tattoo despite never being one): I thought the other officer was pinned under the car! District court: Then why did you fire in that direction? Ninth Circuit (unpublished): Yeah, a reasonable jury might not believe you. Denial of QI affirmed. Dissent: There's no case on point saying an officer who just had his taser knocked out of his hands can't shoot into a car.
  16. Driver of a Mercedes parks poorly; it rolls into another car at a Los Angeles strip mall. Man from the other car punches the Mercedes driver. Everyone leaves, but the driver of the Mercedes reappears and fires into the other car (which contains not only the man but also his girlfriend and their baby). The man is fatally struck. Did it violate the Mercedes driver's Fifth Amendment rights to put him in a cell with a jailhouse informant after he invoked his Miranda rights? Ninth Circuit: The Supreme Court has never said so, so it's not clearly established for AEDPA purposes. No need to upset his conviction for second-degree murder.
  17. Is the mayor of Wichita's political campaign's Facebook page a "public entity" that must comply with the ADA? Tenth Circuit: The Supreme Court has definitively answered the question of whether a personal social-media page is also an official gov't social-media page, and the definitive answer is "maybe, sometimes, it depends." So this claim goes to discovery.
  18. When the Constitution says that takings require the gov't to pay "just compensation," does it mean the gov't actually has to pay the compensation, or is it enough if the gov't just gives you an unenforceable judgment suggesting it really ought to pay you compensation (but only if it wants to)? Louisiana Supreme Court: Is that really your question? It's the first thing. (IJ had urged this eminently sensible result in our amicus brief.)
  19. And in en banc news, the Fifth Circuit will reconsider its decision that it may have violated the First Amendment for Llano, Tex. public libraries to have removed children's books abouts "butts and farts," as well as books about gender, sexuality, and racism, in response to citizen complaints.

Victory! Last week, the Alaska Supreme Court overturned a lower court ruling that had barred families who choose to send their kids to private schools from receiving tuition reimbursements from the state's correspondence study program. The new ruling means that the reimbursements for over 20,000 students (who can receive up to $4.5k per year) are safe for at least the next school year. Moreover, on remand, the supreme court ordered the lower court to consider our arguments under the U.S. Constitution, something it had declined to do in its first ruling. Click here to learn more.