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.

Comments

[Sabedi1]

Liberals think same sex marriage is the holy grail. That's why they're hell bent on forcing religious photographers to photograph it. Hell, if they had their way, they would make them photograph the "after" when they consummate their fake marriages through abuse of the digestive system. Yuck.

[santamonica811]

Sabedi thinks about what he masturbates to, and assumes that this is what liberals would do as well.
[disappointed sigh]

[Old Smokin' Egg]

Social-media influencer Lesh deserved to lose, if only for "free reign" (p. 9, line 5).

[mulched]

Purple Rain, free rein, Reign of Terror

[John F. Carr]

Skimming the Iraq contract case, it seems the problem was the company agreed to be paid in Iraq. That made it an overseas matter. If they had demanded a lap dance for the CEO in the United States there would have been enough of a domestic connection to survive the Foreign Sovereign Immuities Act.

[ReaderY]

I don’t think courts should attempt to engage in the kind of discussion that the 4th Circuit did in Ortega-Cordova. This kind of discussion is entirely Congress’ and other legislatures business. Where extensive precedents give a term like “moral turpitude” a clear well-established meaning, it is for Congress to decide whether that meaning should be changed. It simply isn’t the business of courts to decide for themselves what is moral. Changes in societies views on these subjects, if any, should be considered and decided exclusively by their elected representatives. It is for society through its elected representatives, and not unelected judges acting on tneir own, to make decisions about what is and isn’t moral.

Only if faced with a case of first impression should courts attempt to parse whether a new kind of offense is one of moral turpitude or not, based not on their own views of morality but on analogy to previous classification decisions.

[Drewski]

"Where extensive precedents give a term like “moral turpitude” a clear well-established meaning, it is for Congress to decide whether that meaning should be changed. It simply isn’t the business of courts to decide for themselves what is moral."

It extremely literally is in fact the job of the judiciary to interpret the meaning of statutes. If the legislature wants to be more specific, it can be. I'm not a fan of kicking the can to the courts like that, but saying it's not the courts' job to pick it up when they do is silly.

[TextFirst]

Posted in wrong spot, sorry

[Nelson]

"It simply isn’t the business of courts to decide for themselves what is moral."

Nor is it Congress'. Morality as a basis for law is indefensible. Law is about order and protection of rights, not imposing an arbitrary moral code on citizens.

[ReaderY]

You’re welcome to provide a constitutional amendment to that effect.

Would you throw out the 13th Amendment? The civil rights laws? The basic contemporaneous justification for abolishing slavery and for prohibiting racial preference in employment was that these practices are immoral. The Supreme Court in Heart of Atlanta compared the newly enacted Civil Rights Act to the federal laws against prostitution, gambling, etc., saying the conception of morality embodied in the new law is just as within Congress’ power as the conception of morality embodied in these others.

Or is it only moral values you disagree with that can’t be legislated?

[John F. Carr]

Oklahoma sued, among others, the Office of Population Affairs. Now there is an ominous name. Sounds like the agency that will start the culling when our population grows too large. According to its web site its mission is to display stock photos of minority women. Other than that,

The Office of Population Affairs (OPA), in the Office of the Assistant Secretary for Health, administers the Title X family planning, Teen Pregnancy Prevention, and Embryo Adoption Awareness and Services programs. OPA advises the Secretary and the Assistant Secretary for Health on a wide range of reproductive and adolescent health topics, including teen pregnancy prevention, family planning, and sterilization, as well as other population issues.

[John F. Carr]

The influencer case got me thinking about the "corpus delicti" rule. My state's courts also call it the corroboration rule. A person can not be convicted of a crime based solely on the person's own statements. The defendant was convicted of work activity on public lands based on images he posted. He claims he photoshopped them. Under what circumstances is an image created by the defendant sufficient evidence? Does the prosecution need an expert on image manipulation to testify "that picture looks legit"?

In contrast the snowmobiling count included witness testimony to corroborate the picture.

[Noscitur a sociis]

1. The corpus delicti rule just says that an out of court confession can’t be literally the only evidence that the crime occurred. A photo of the defendant committing the crime is more than enough corroboration.

2. It doesn’t appear that this defendant made an out of court confession (as best I can tell, his out of court statement are all somewhat implausibly denying guilt), so the corpus delicti rule wouldn’t be implicated.

3. Federal courts don’t apply the corpus delicti rule, so it wouldn’t even be an issue in this case.

[Absaroka]

"A photo of the defendant committing the crime is more than enough corroboration."

That make sense for a photo with some provenance ... if the photographer says 'yes, I took that photo at the scene and it accurately reflects what happened', then sure.

But if the defendant says 'I photoshopped myself naked in front of a picture of the White House' (and assuming forensics can't prove that wrong), is that any different than the defendant writing in his diary 'today I went starkers in front of the White House'?

(I'm guessing here that an uncorroborated diary entry by the defendant counts as an 'out of court confession')

[Noscitur a sociis]

The idea (as the name implies) is that you shouldn’t get convicted of murder just for telling someone “I murdered John Doe”: there needs to be some evidence that John Doe did actually die. And it’s just a rule to admissibility: assuming there’s that corroboration, the defendant is still free to challenge the weight of the confession, the corroboration, and any other evidence in the case.

As far as those general question about authentication, evidence is generally admissible if the fact finder could conclude that it actually is what it purports to be. As long as a reasonable jury could conclude that it shows what it appears to show—which is almost always going to be the case—then the parties get to make their arguments and present their evidence, and the jury decides what to believe. (Or, in a case like this one, the judge).

[Absaroka]

thanks!

[santamonica811]

"... Last month, we got "Table-Setting," "The Main Course," and "Parting Words." ..

I'm annoyed at this opinion. If you're going to do something this self-indulgent; the final section should have been titled something along the lines of, "Plaintiff's Just Desserts" or the like. The boring and off-theme "Parting Words" is just a missed opportunity. 🙁

[darkknight9]

😀

[David Nieporent]

Regarding the 9th Circuit's Rise Above case: Trump had moved to dismiss the Florida documents case based on (inter alia) selective prosecution. (I don't think he raised that argument in the DC case.) It's obviously moot for the moment since Cannon invented new law to dismiss the case, but once it's reinstated, that issue will have to be decided. As several people here have noted, selective prosecution arguments work roughly 0% of the time. This was a case where it temporarily worked, but — as with all other defendants — will not.

[Ben of Houston]

I’m not certain. We rarely have something so clear and obvious in selective prosecution as the documents case. Biden and Trump did the exact same thing, Biden’s was worse in every dimension (longer, less security, less authority), and yet Trump was prosecuted while Biden was not.

Once you add in the transparently political nature of prosecuting an ex president by the current president, there’s a rather transparent motive being taken by people that are clearly going to benefit.

In short, if any case can make this work, it’s this one. If this fails, there’s no point in anyone ever bringing it up again.

Finally, I don’t see any holes in the argument that dismissed the case. Why are you so sure it will get overturned?

And finally, even if we assume both arguments fail, we have the president's effectively unlimited power over classification. In that case, Trump's only violation would be not telling people, which doesn't seem to be an actual law that can bind the president.

[David Nieporent]

I’m not certain. We rarely have something so clear and obvious in selective prosecution as the documents case. Biden and Trump did the exact same thing, Biden’s was worse in every dimension (longer, less security, less authority), and yet Trump was prosecuted while Biden was not.

Biden and Trump did not do "the exact same thing." In fact, Biden did none of the things Trump was charged with. (Ditto for Pence.) Trump was not charged with having taken the documents.

[David Nieporent]

In short, if any case can make this work, it’s this one. If this fails, there’s no point in anyone ever bringing it up again.

There isn't any point. The last time the argument succeeded in a federal case was 140 years ago.

Finally, I don’t see any holes in the argument that dismissed the case. Why are you so sure it will get overturned?

Besides the fact that it handwaved away contrary Supreme Court precedent, that it ignored statutory text, and that it's incredibly bonkers? The fact that dismissal doesn't make sense as a remedy.

And finally, even if we assume both arguments fail, we have the president’s effectively unlimited power over classification. In that case, Trump’s only violation would be not telling people, which doesn’t seem to be an actual law that can bind the president.

Donald Trump is not the president; he's the former president. As such, he has no power over classification. Again, your comment seems premised on the mistaken assumption that Trump was charged with having taken the documents. But in fact, all of his charges are based on his post-presidency actions.

Even if, while president, he could declassify the documents in his mind — which he could not — (a) he didn't do that, which we know because he has coyly refused to ever put that into a legal pleading; (b) it would not be a defense to any of the charges in the indictment if he had done so; and (c) the only way he could establish that he had done so would be to take the stand and testify, which his lawyers would commit seppuku before they would let him to do.

[TextFirst]

I see we’re back to not using numbers. So about the Seventh Circuit ECOA one:

In 2020, the CFPB brought an action alleging that a mortgage lender discouraged Black people from applying for mortgages on its radio show.

So first off, I think the court is wrong on this. The act prevents discrimination against applicants. Look at the statute, what’s an applicant?

any person who applies to a creditor directly for an extension, renewal, or continuation of credit, or applies to a creditor indirectly by use of an existing credit plan for an amount exceeding a previously established credit limit.

So somebody has to apply to be an applicant. Which is hardly a surprise; that’s what the word applicant means. The Seventh Circuit then ties itself into knots trying to justify the wrong result.

But then:
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.

There’s other allegations, but they’re of the same kind. What is the CFPB even doing here on the merits? Is the theory here that black people are less likely to apply if there’s a Jungle Jewel in the neighborhood, in a way that white people aren’t, and are therefore being discriminated against by being made aware of a Jungle Jewel? That seems incredible. I would think people, regardless of race, would be equally troubled by that. And if the CFPB is right, then it’s effectively illegal to alert people that a neighborhood is dangerous because that discriminates against black people (by some unexplained process).

[David Nieporent]

Is the theory here that black people are less likely to apply if there’s a Jungle Jewel in the neighborhood, in a way that white people aren’t, and are therefore being discriminated against by being made aware of a Jungle Jewel? That seems incredible.

No; the CFPB's theory is that these sorts of statements discouraged black people from applying for loans because they signaled that the company was racist. (The company has also raised a first amendment defense, which the circuit court didn't address because the district court hadn't done so.)

And if the CFPB is right, then it’s effectively illegal to alert people that a neighborhood is dangerous because that discriminates against black people (by some unexplained process).

In fact, Fair Housing Act claims are regularly brought for statements like this by real estate agents; it's considered a form of illegal steering.

[TextFirst]

>No; the CFPB’s theory is that these sorts of statements discouraged black people from applying for loans because they signaled that the company was racist. (The company has also raised a first amendment defense, which the circuit court didn’t address because the district court hadn’t done so.)

I’ve reviewed the comments carefully and in fact race is not mentioned. If listeners heard “JUNGLE JEWEL”– a term in common usage in the midwest, referring to locations of the popular JEWEL OSCO chain that are dangerous– and thought of any particular race, then that’s on them. The CFPB doesn’t even appear to have any evidence that this happened, they’re just speculating that maybe it did.

>In fact, Fair Housing Act claims are regularly brought for statements like this by real estate agents; it’s considered a form of illegal steering.

I understand the law as applies to real estate agents; I view that as problematic enough and wonder how many people have been raped or murdered because their real estate agent can’t alert them that the neighborhood they’re thinking of buying in is dangerous. But this is totally different, because this was just a broadcast. The CFPB position here is an incredibly broad restriction on speech because of a fantastical fear of speculative discouragement by a hypothetical applicant. This is much, much more broad and amounts to the government crushing speech. If these racially neutral comments can’t be said on air, then I don’t think anybody who is a Director or Officer of a lending company can say anything on air ever; the CFPB will throw a dart board at a transcript, declare some harmless comment you said as discriminating against an applicant, and now you’re stuck in litigation.

The First Amendment claim that the circuit court didn’t have to consider should prevail. Failing that, the CFPB should lose on the merits and then be sanctioned. This entire lawsuit is absurd.

[Ken Arromdee]

>The indictment must be dismissed (though it's up to the district court whether the feds should be allowed to refile).

How is this not equivalent to the Speedy Trial Act being of no use at all? The decision just adds this at the very end: "We leave, however, the decision of whether to dismiss with prejudice in the court’s sound discretion." If the act is supposedly meant to ensure a speedy trial, but the government can just refile, that just means the government gets to lengthen the trial further.

[Noscitur a sociis]

It certainly makes the benefits less significant. On the other hand, it also avoids the injustice of a clearly guilty criminal getting to go free because the judge took to long to deny his meritless motion without saying the right magic words. As with anything, there’s a balance.

[Grumbler]

How about turn down the cleverness and turn up the legal issues