Short Circuit: A Roundup of Recent Federal Court Decisions

Pepper spray, carry permits, and adult cabaret.

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: We visit the D.C. law firm of Hogan Lovells for a live show about silencers, shipping containers, and speech. If you're jealous and would like Short Circuit to visit your firm, reach out to our own Anthony Sanders.

• Get out your bingo cards, libertarian nerds, because this D.C. Circuit case has Elon Musk, environmental review, and space NIMBYs rolled into one. The bottom line? Starlink gets to operate thousands of broadband-providing satellites, but amateur astronomy might get a little harder.
• Allegation: After the U.S. invasion of Iraq, our company contracted with the new Iraqi government to help rebuild its military—but the Iraqi government instead gave our money to a third party (and maybe murdered our CEO, though that could have been someone else). D.C. Circuit: Iraq is immune from suit because the contract and its effects all happened in Iraq. (The murder, it turns out, doesn't affect the analysis and was just there for color.)
• First Circuit Senior Judge Bruce Selya gets a lot of attention for his penchant for unusual vocabulary. But don't overlook Senior Judge O. Rogeriee Thompson, who has apparently discarded cliché section headings like "Facts," "Discussion," and "Conclusion." Last month, we got "Table-Setting," "The Main Course," and "Parting Words." This week, we get "How the Case Came to Us," "Our Take on the Situation," and "What This All Means." Along the way, the court denies qualified immunity to "public officials who baselessly threatened a citizen-journalist with legal action if he did not remove a video on a matter of public concern that he made and posted on Facebook without breaking any law." (IJ submitted a sage amicus brief in this case.)
• Eastern European sailors on a Liberian-flagged vessel blow the whistle on illegal bilgewater dumping. When the ship arrives in Maine, it's detained pending criminal investigation. The sailors are arrested as material witnesses and not allowed to leave the country for two months, during which one sailor's mother-in-law dies overseas. After they're finally released, they sue over their extended detention. First Circuit: But it's a Bivens case, so you know how that goes.
• During a federal sentencing in New York, the defendant lunged at the prosecutor's table. Security personnel restrained him, breaking his arm in the process. Can he bring a Bivens claim about that in the Second Circuit? A three-sentence per curiam tallies the votes across twenty-two pages of discussion: "yes," "no," and "really really no."
• Wedding photographer who does not believe in same-sex marriage alleges that New York's public-accommodation law unconstitutionally compels her to photograph same-sex weddings. Second Circuit: The photographer states a plausible free-speech claim, and the district court should consider her application for a preliminary injunction on remand. All other claims were properly dismissed.
• Your summarist has sought (and obtained) his fair share of preliminary injunctions in constitutional cases, but even he has to admit the quality of the Third Circuit's cri de cœur against courts' granting preliminary injunctions in constitutional cases all willy-nilly and such.
• Does modern American society still morally contemn the solicitation of prostitutes? We mere newsletter scriveners couldn't begin to tell you: That's a question for philosophers, sociologists, and, of course, the Fourth Circuit interpreting the Immigration and Nationality Act.
• Sometimes questions of reasonableness should be reserved for the factfinder, but the bodycam footage in this case (some of which, admittedly, consists of "groans, gasps and difficult to decipher words") is enough for the Fourth Circuit to decide as a matter of law that qualified immunity protects an officer who shot a man who charged at him in the dark.
• In which the Fifth Circuit, en banc, holds that Mississippi's felon-disenfranchisement law (or more precisely, some-felon-disenfranchisement law) does not violate the Eighth Amendment's Cruel and Unusual Punishments Clause. Bad news for convicted bigamists in the Magnolia State. Why is bigamy one of the ten crimes leading to disenfranchisement? No idea. If you know, tell us!
• A 2023 Tennessee law prohibits performing "adult cabaret entertainment" in places where minors might see it. Drag-show theatrical organization: This violates our First Amendment rights. Sixth Circuit (2-1): The law covers only performances that "lack serious literary, artistic, political, or scientific value for a reasonable 17-year-old minor." And since the drag-show group likens its performances to Shakespeare and Ancient Greek theater, it hasn't carried its burden of showing that it plans to arguably violate the law. No standing. (And while it's far outside your light-hearted summarists' mandate, we'll note with some dismay that both the majority and the dissent say some decidedly dodgy things about Article III standing.)
• Transgender individuals: A Tennessee law prohibiting people from amending the sex listed on their birth certificates violates their due process rights to equal protection and informational privacy. Sixth Circuit: Transgender status is not a suspect class, the law is rationally related to Tennessee's interest in recording biological sex, and there is no deeply rooted "right to a birth certificate matching one's gender identity." Dissent: The law impermissibly classifies individuals based on the state's view of sex, and it violates their "fundamental interests in bodily integrity and private sexual matters."
• Chicago police officers engaged in "proactive policing" stop a minivan for traffic violations. They recognize the passenger as a gang member, and, after a third pat-down, find an illegal gun. The passenger moves to suppress the gun. And after more than a year and a half without a ruling, he then moves to dismiss the indictment under the Speedy Trial Act. District court: No to everything. Seventh Circuit: Fourth Amendment violation? No. Speedy Trial Act violation? Absolutely. The lower court cannot rely on its "crowded calendar" as a reason for the delay. The indictment must be dismissed (though it's up to the district court whether the feds should be allowed to refile).
• Joliet, Ill. police officer criticizes her neighbor via text regarding the neighbor's testimony at a criminal trial of the officer's boyfriend. Neighbor tells the prosecutor, who believes it to be witness harassment, and detectives get a search warrant for the officer's phone. The officer hands her phone over but expresses concern about material that she didn't want anyone to see. Spoiler alert: They saw. She says that another detective unrelated to the case intentionally accessed her phone data to view an explicit photo, illegally intruding on her seclusion. The detective says he saw it only inadvertently. Seventh Circuit: Given that the law requires intentional intrusion, which the parties hotly dispute, a jury needs to sort it out.
• The Equal Credit Opportunity Act prohibits creditors from discriminating on the basis of sex, marital status, race, national origin, religion, and age. In 2020, the CFPB brought an action alleging that a mortgage lender discouraged Black people from applying for mortgages on its radio show. For example, the lender's CEO referred to a downtown Chicago grocery store as "Jungle Jewel," "a scary place" because its patrons "were people from all over the world." District court: The law doesn't ban discouraging prospective applicants, just actual applicants. Seventh Circuit: Reversed. The point of the law was to end discrimination in credit applications, which includes the lender's actions before someone applies for credit.
• During the 2020 George Floyd protests in Minneapolis, a 19-year-old is shot in the face by police with a chemical projectile and loses sight in one eye. Qualified immunity? Eighth Circuit: A jury could find the situation was under control and there was no threat to the officers, so that the force used was unconstitutionally excessive. Dissent: Officers were trying to rescue a stabbing victim amid a "large, out-of-control crowd," and the plaintiff "attacked a fellow officer," so the officer who fired acted reasonably (or at least reasonably enough to get qualified immunity).
• During protests against the police in Brooklyn Center, Minn., in 2021, a protestor is pepper-sprayed and injured by a rubber bullet. He sues state and local law enforcement, who assert various immunities. Eighth Circuit: The state agency has sovereign immunity, and the police supervisors get qualified immunity because it wasn't clearly established that dispersing a crowd counts as a "seizure" for Fourth Amendment purposes. But the claims that the police retaliated against First Amendment-protected speech need more factual development, so no qualified immunity there.
• Arkansas man fires his shotgun at the bumper of an SUV cruising near his home, thinking it's a pair of ne'er-do-wells who had tried to rob him a couple of days earlier. Surprise! It's actually two federal law-enforcement officers. The man is convicted of assaulting federal officers with a deadly weapon and sentenced to 10 years' imprisonment. Eighth Circuit: And the district court was right in holding that the gov't didn't need to prove that the guy knew that the people he was shooting at were federal officers.
• A qualified-immunity ouroboros in which a Champlin, Minn. police officer is bitten by a K9 handled by a Hennepin County, Minn. sheriff's deputy. The bitten officer sues his compatriot for Fourth Amendment violation. District court: no qualified immunity. Eighth Circuit: Since the deputy didn't intend for Thor to bite his fellow officer, it's not clearly established that the bite was a seizure. Qualified immunity.
• Minnesota: The Second Amendment allows us to categorically deny carry permits to people between 18 and 21 because, at common law at the time of the Founding, people under 21 were minors. Eighth Circuit: But a lot of them were minors who carried guns, so this all seems pretty unconstitutional to us.
• We continue to believe that when the judges on an appellate panel issue at least three different conflicting opinions, the "holding" of the case should be determined exclusively by reference to its Short Circuit summary. But, until the courts adopt that sensible rule, we applaud the Ninth Circuit's decision to also issue a short per curiam opinion detailing where the opinions overlap and what counts as a "holding."
• Two members of the "Rise Above Movement" ("a combat-ready, militant group of a new nationalist white supremacy and identity movement") are charged with conspiracy to violate the Anti-Riot Act for attacking people at peaceful protests in California. District court (2019): The Anti-Riot Act is facially unconstitutional. Ninth Circuit (2021): No (simplifying slightly), no it's not. District court (2024): Well, the government engaged in selective prosecution by going after these white nationalists and leaving Antifa alone. Ninth Circuit (2024): What? No. Come on.
• Fuzhou University (in China) offers chemist a five-year, full-time professor gig. But he's already a tenured professor at the University of Kansas, a gig he doesn't want to give up. So he tries to do both without telling KU about Fuzhou, including by omitting Fuzhou from an annual report to KU of his significant financial interests and time commitments. Feds: This omission constitutes a materially false statement that could've been used to influence federal agencies' decisions on the prof's grant proposals. Tenth Circuit (over a dissent): It does not. He had no pending grant proposals when he submitted the annual report, so there were no decisions to influence, making any omissions immaterial. (He's currently trying to get his job back at KU.)
• A federal program provides grants for family-planning services, but to be eligible recipients must provide "nondirective counseling and referrals for all family-planning options, including abortion." Following the Supreme Court's ruling in Dobbs, Oklahoma says it can't do this anymore. HHS responds that the state can remain eligible if it simply passes along a national call-in number to inquiring patients. Oklahoma initially agrees, but then changes its mind, and HHS ends the grant. Oklahoma sues. Tenth Circuit (over a dissent): But their claims fail. (Ed.: If you'd like to see what they claimed and why they lost, the court provides an unusually helpful summary on pp. 4-5—a laudable practice.)
• A social-media influencer asks: Does literally shit-posting from a national park count as "conducting business activity" without a license? Tenth Circuit: The regulation's too vague. Given people's tendency to self-promote, our personal and professional identities online are often intertwined. The influencer could not have known that doing posts online was illegal "work activity." Two-judge concurrence: Also, maybe the Supreme Court should reconsider its made-up rule that the Sixth Amendment's jury guarantee applies only to "serious infractions."
• Georgia driver is pulled over for going 85 in a 55 on a wet road at night. When it turns out he'd been drinking, he's arrested for DUI. He sues the arresting officer for excessive force, alleging he was thrown to the ground for no good reason and suffered a broken collarbone. Eleventh Circuit: Let's go to the videotape! Nope. No excessive force here.
• Eleventh Circuit: We're withdrawing our previous 111-page opinion in this class action under the Telephone Consumer Protection Act and replacing it with this one. It's identical in every way, but two of us want you to know you can ignore everything but Section III.C.iii, which is the only part we all agree on.

Does video footage of DEA officials' bullying travelers at airports get your dander up? Then take a look at this recent IJ video, which puts a spotlight on the agency's unconstitutional airport interdiction tactics. Or maybe you're the kind of person who's a big fan of unconstitutional airport interdiction tactics? Well … you should probably watch the video too.