Short Circuit: A Roundup of Recent Federal Court Decisions

Amateur sports, geofence warrants, and a Saudi kill squad.

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

This week on the Short Circuit podcast: A First Amendment 2-4-1. Non-governmental speech in a Minnesota public school and big political party protection in New York.

1. Exiled former Saudi official (who was the top adviser to the king's nephew and heir until the 2017 royal purge): Crown Prince and Prime Minister Mohammed bin Salman runs the Tiger Squad, a death squad composed of military and intelligence agencies that kills Saudi dissidents at home and abroad (such as Jamal Khashoggi), which he sent to kill me in Canada. D.C. Circuit: As the sitting head of Saudi Arabia, MBS is immune from suit. But the exilee is entitled to discovery to see if the court has jurisdiction over two top aides the exilee alleges recruited spies and funneled info to MBS to help kill him.
2. Normally, political activity that is coordinated with a federal campaign is treated as a political contribution that is subject to limits and public reporting. But in 2006, the Federal Election Commission made an exception for unpaid communications over the Internet. In 2016, a PAC called Correct the Record spent $6 mil in coordination with Hillary Clinton's presidential campaign, "[l]eaning heavily on that internet exemption." D.C. Circuit: Leaned a little too heavily, in our view. The FEC should not have dismissed a complaint against the group.
3. Third Circuit: We're not saying it would be good for state and federal officials to collude to evade the limitations of the Speedy Trial Act. We're just saying nothing in the Speedy Trial Act prohibits them from doing so. (Though under the right facts it might violate due process.)
4. "Amateur" college sports is a multi-billion-dollar industry—for universities and the NCAA. But what about the players who are doing the hard work? If they're earning money for their schools, why shouldn't they be treated as employees under the Fair Labor Standards Act? The Third Circuit thinks that's an awfully good question and takes us on a rollicking history of college athletics while un-dismissing players' FLSA claim.
5. Allegation: As a condition of my bail, I had to pay a nonprofit corporation $450 per month to keep me on house arrest. That's excessive! Third Circuit: The nonprofit is (just maybe) a state actor, and you should at least get a second bite at a complaint that tells us what that $450 was for. Case undismissed!
6. Man in Virginia jail awaiting trial: Hey guards, please don't put me back in that cell, I fear for my life. Guards: Whatever. Man (in subsequent lawsuit): While forcibly putting me back, they threw me to the ground and choked me for a minute, forcing me to pass out. District court: The video shows you're a liar. Fourth Circuit: Um, are you looking at the same video we are? Remanded for the merits.
7. Armed robber makes off with a cool $195k from 2019 heist at a Midlothian, Va. bank; police exhaust every lead. But wait! The robber was seen carrying a cell phone, so officers get a "geofence" warrant requiring Google to turn over information about devices within 150 meters of the bank that had location tracking turned on. After some back and forth, Google provides identifying info for three accounts, including the defendant's. Fourth Circuit: Since the defendant voluntarily turned location data over to Google, the gov't did not conduct a "search." And anyway, it was only two hours of location info. No need to suppress the evidence. Dissent: Sharing location info with Google isn't really voluntary. Moreover, in 2018 the Supreme Court ruled that obtaining cell-phone records that were less revealing than those at issue here was a search. (Ed. note: Google says it has made changes to its system that mean it can no longer fulfill geofence warrants.)
8. What happens when the NLRB tells an appellate court that it's going to do one thing on remand and then, hilariously, does a totally different thing instead? If you expected the Fifth Circuit to laugh it off as harmless youthful exuberance, this might be your first time reading Short Circuit. Welcome to the newsletter!
9. Woman spent an evening at a Houston bar where her cousin works. Upon leaving, she felt something was wrong (later suspecting she'd been roofied); she encountered two off-duty sheriff's deputies working at the bar who took her home, she says by force. She awoke in pain the next morning and went to the hospital, where a rape kit revealed semen from one of the officers. (He later pleaded guilty to felony attempted sexual assault.) Fifth Circuit: The non-felon deputy is entitled to qualified immunity, and her claim against the boss fails, even if he knew that the felon deputy had previously been arrested for sexually assaulting a child.
10. Whoa there! The Horseracing Integrity and Safety Act of 2020 empowered a private company to regulate horseracing. Which, held the Fifth Circuit, was an unconstitutional private delegation. But now that Congress has reined in the company and made its rules subject to review by the FTC, is the act still unconstitutional? Fifth Circuit: Neigh. (Except a private enforcement provision.)
11. In this Fifth Circuit opinion about alleged police brutality during the George Floyd protests in Dallas that turned violent, you'd think you were reading about two entirely different cases as you turned from the majority to the dissent. Majority: Plaintiffs seem to have been subdued and arrested for obstructing a highway, and they haven't plausibly alleged that the city failed to properly discipline its police officers because they point only to a smattering of vague allegations over two decades against a single officer out of the entire police department. Dissent: The plaintiffs alleged that they were peacefully protesting and then were brutally attacked by an officer, and they adequately alleged that that specific officer had a long and detailed history of brutalizing Dallas residents with no meaningful discipline from the city.
12. Illinois inmate desires a loofah or "body puff" to clean himself with. However, his plan hits a snag when the "commissary supervisor told [him] that if he wanted to purchase the body puff, he would need to change his gender identity to female." As that was not part of his plan, he sues. Seventh Circuit (unpublished): And he has stated an equal protection claim. Back to district court to figure out what tier of scrutiny applies. Good luck with all that.
13. In which two-thirds of an Eighth Circuit panel astutely observes that "we must be mindful not to give 'undue deference' to legislative judgments about excessiveness" under the Eighth Amendment's Excessive Fines Clause. Hear hear (a less objective editor might rumble).
14. Allegation: Now-retired federal agents recklessly omitted material facts from a search warrant application and manufactured bogus human trafficking charges against a Sacramento-area neurologist, resulting in her arrest and a seven-year legal ordeal. Might that violate the Constitution? Ninth Circuit: Can't say! But the good news is you can fill out a complaint form. Concurrence: We should go en banc at some point and overrule our 2018 decision that allowed constitutional claims to proceed against an ICE lawyer who intentionally submitted forged documents to a court.
15. Under what's called the Monell doctrine, a municipality is liable for its employee's federal civil rights violations only if the municipality itself did something to cause the violation. So is a sheriff's office (a municipality) liable when the sheriff himself (both an employee and the final policymaker for the municipality) sexually assaults a prisoner while transporting her between jails? Tenth Circuit: Obviously yes, the sheriff here (Sedgwick County, Colo.) is the alter ego of the sheriff's office. Dissent: No, the assault was purely personal and not related to carrying out municipal policy.
16. Colorado woman, plus her mother/employee, plead guilty to mail fraud for using their nonprofit funeral home to acquire hundreds of dead bodies, dismember them (with a power saw (allegedly)), and sell the body parts to body brokers. They forge "donor" forms to make the body sales look legit. They sell bodies which tested positive for hepatitis and HIV. They even hand next of kin fake or mixed cremains. District court: Time for some serious sentence enhancements: 20 years prison for daughter; 15 years for mom. Tenth Circuit: Some enhancements were incorrect. Back to sentencing you go. But you're getting the same judge.
17. Chief of the Oklahoma Highway Patrol gives info on the contents of promotion exams to a favored trooper. When another trooper finds out and raises a fuss, the Chief and others try to have the trooper charged with blackmail. After the DA declines to charge, they go to the attorney general; he files the charges, only to dismiss them when the sordid story comes out. The Chief is told he can retire or be fired. He chooses retirement, thinking he can return to his previous gig with the highway patrol. Chagrined to learn that he cannot, the Chief sues, alleging a property interest in his old job. Tenth Circuit (unpublished): Which he surrendered when he retired. Case dismissed.
18. Father dies while mountain climbing in remote Pakistan. His sons seek $500k under his "accidental death" insurance. Insurer: Claim denied. Eleventh Circuit: Denial upheld. Per the policy, insurer had discretion over its decision (a conflict, yes, but we give it "little weight"), so its decision need only be reasonable, which it was. Who knows if dad died by "accident"? His body was never recovered. Sure, aerial photos suggest dad fell to his death. Sure, he only had enough supplies to survive four days. But maybe he died of an uninsured event (heart attack, perhaps?). Plus, deaths aren't "accidental" if the deceased—who climbed that day despite his friend (an experienced mountain climber) advising against it—knew death was "highly likely to occur."
19. A Georgia advocacy group under investigation for being an unregistered political committee brings a First Amendment lawsuit challenging the state's campaign-finance laws. A couple of weeks later, the state begins an administrative enforcement case against the group. District court: These laws very likely violate the First Amendment. Eleventh Circuit: Actually, because the gov't lost the race to the courthouse by only a little bit, the federal courts don't get to think about whether the laws violate the First Amendment. Younger abstention applies, and the case is dismissed. The group can vindicate its First Amendment rights by raising them, defensively, in a sclerotic and labyrinthine state-level administrative process and then someday, maybe, get their case heard in a state court. Concurrence: "In my view, it is time for the Younger doctrine to be reexamined." (In a sage amicus brief, IJ, too, urged that Younger makes perilously little sense in cases like this one.)
20. Allegation: Georgia inmate does not receive his daily anti-seizure medication for four days, suffers two seizures and brain damage. Eleventh Circuit (2023): No Eighth Amendment violation because the prison officials didn't act with more than gross negligence (disagreeing with prior panels that applied a more-than-mere-negligence standard). Eleventh Circuit (en banc, 2024): Enough of this gross-versus-mere debate, the standard is now recklessness—the defendant must have been "subjectively aware that his own conduct caused a substantial risk of serious harm to the plaintiff." Remanded for the panel to do it again under the right rule. Concurrence 1: This standard isn't as hard for a plaintiff to satisfy as you might think. Concurrence 3: Maybe the standard should actually be intentionality, rather than negligence or recklessness? Concurrence 2: That is crazy.
21. Seeking to crack down on student visa fraud, in 2015 the Department of Homeland Security invited immigrants to engage in student visa fraud. It created a fake university, University of Farmington, that collected money from students but actually taught no classes. But not all the students knew it was a scam—they paid expecting classes and now want their money back. Claims Court: Sure, the gov't entered into contracts to provide services, but it was actually acting as the sovereign and can't be sued. Federal Circuit: The sovereign stepped off the throne when it took money in exchange for a promise to provide educational services.
22. In which the Northern District of Texas politely explains that the federal prohibition on recreational home distilling is not a valid exercise of the taxing power because, instead of taxing anything, it just prohibits recreational home distilling.
23. After three Fifth Circuit opinions, a Supreme Court vacatur, and a certified question to the Louisiana Supreme Court about whether a protest organizer can be sued for any reasonably foreseeable violence at a protest (answer: yes), the Middle District of Louisiana politely notes that the plaintiff, a Baton Rouge police officer who allegedly suffered a grievous head wound at a 2016 protest, doesn't have any evidence that the guy he sued actually organized the protest. The officer relied solely on a single retweet and a deposition in which the defendant denied being an organizer.
24. And in en banc news, the Seventh Circuit will (sua sponte) reconsider its decision that two prison officials might be on the hook for accidentally keeping a Wisconsin man on probation for nearly a year beyond his statutory maximum (leading to some jail time as well).
25. And in additional en banc news, the Ninth Circuit will not reconsider its decision that the profit system private prisons operate under (including the use of forced prison labor) does not violate the Thirteenth Amendment's ban on slavery or involuntary servitude, the Eighth Amendment's prohibition on cruel and unusual punishment, or any other clause of the Constitution.
26. And in more en banc news, the Ninth Circuit will not reconsider its decision that a Pissarro painting stolen from a German Jewish family by the Nazis lawfully belongs to the Spanish art museum in which it currently resides.
27. And in further en banc news, the Eleventh Circuit (over dissentals and a response to the dissentals) will not reconsider its decision that filling Georgia's Public Service Commission via statewide election (as opposed to single-member districts) is simpatico with the Voting Rights Act. (Factoid: SCOTUS denied cert three weeks ago. Another factoid: petitions for rehearing are due within 25 days of cert denial. Yet another factoid: three weeks is less than 25 days.)

Victory! In California, anyone who tries to secure evidence for a court proceeding is a private investigator in the eyes of the law and must obtain a license, which requires 6,000 hours of training. Which had ensnared IJ client Jay Fink, who runs a business helping Californians flag deceptive spam emails that might be actionable in court. State officials demanded that Jay either shut down his business or spend years apprenticing in wholly irrelevant fields like military policing or arson investigation. Phooey! And, no more. This week, the court converted a preliminary injunction we won in March into a permanent injunction—with the state's agreement! Click here to learn more.