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Short Circuit: A Roundup of Recent Federal Court Decisions

Heated depositions, wellness checks, and strip searches.

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

New cert petition! In 2013, a Clovis, Calif. officer disclosed to a fellow officer that his girlfriend had filed a confidential domestic violence complaint against him—knowing full well that she was trapped in a room with him at that very moment. He then brutally attacked her. And though the Ninth Circuit ruled earlier this year that it was "obvious" that disclosing the report put her in grave danger, it granted the first officer qualified immunity anyway, finding that no factually identical prior case gave the officer fair notice the disclosure was unconstitutional. The decision reinforces a circuit split and also conflicts with Supreme Court precedent that says a factually identical case is not necessary in situations where an official has time and opportunity to deliberate (as opposed to a split-second decision on the use of force). Today, IJ asked the Supreme Court to weigh in.

Is school choice racist? Did it originate with post-Brown v. Board opposition to public school integration? Shameful mistruths! IJ Senior Attorney Michael Bindas takes to the Syracuse Law Review and sets the record straight.

Over at the Advisory Opinions podcast, IJ's Anthony Sanders indicts Justice Oliver Wendell Holmes Jr., who turns out to have been a bit of a bad egg Constitution-wise.

  1. The USDA goes after Amazon for allegedly aiding and abetting violations of the Plant Protection Act and the Animal Health Protection Act because importers of illegal plant and animal products had them delivered through Amazon fulfillment centers. An ALJ agrees and fines the company $1 mil. D.C. Circuit: But SCOTUS has told us that aiding-and-abetting liability requires culpability. As for USDA's argument that its strict-liability reading of the statute is entitled to Chevron deference . . .
  2. Fun fact: People for the Ethical Treatment of Animals once operated a blog called "The PETA Files," a name that apparently no one on their staff ever read out loud. But that's not the limit of their online presence—they also like commenting on the Facebook and Instagram pages of the National Institutes of Health. Seeking to moderate "off-topic" comments, NIH deploys a keyword filter, concealing comments containing words like "PETA," "cruelty," and "torture." PETA sues, alleging the filter policy violates the First Amendment. D.C. Circuit: And it does. NIH can exercise some moderation, but it has to draw reasonable lines, which the filter policy does not.
  3. The DFINITY Foundation is a Swiss-based nonprofit that develops technology that enables the Internet Computer blockchain and its ecosystems, which are powered by novel "chain-key cryptography," allowing smart contracts to serve web directly to end users and mass market Web3 services to run entirely on-chain, all while being governed by a protocol-integrated DAO that decides using liquid democracy. Your summarist doesn't know what any of that means, but can confirm that the Second Circuit has rejected the Foundation's defamation lawsuit against financial analysts who speculated as to why the Foundation's cryptocurrency token lost 95% of its value within two months of its release.
  4. North Carolina officer attempts to stop an allegedly stolen car, eventually blocking it into a dead-end section of a parking lot. Officer leaves his car while the driver of the stolen car tries to turn around and drive away. The officer fires one shot through the windshield and more shots through the passenger window, killing the driver. His estate sues for excessive force. District court: Dismissed; the claims in plaintiff's complaint are contradicted by bodycam footage. Fourth Circuit: They're not blatantly contradicted, and that's what it takes for video to torpedo an otherwise valid complaint. Case un-dismissed.
  5. West Virginia officer seeks to stop motorcyclist whose passenger isn't wearing a helmet. The motorcyclist flees! But police soon have the pair (plus the motorcyclist's girlfriend) surrounded in their house. Was it a clearly established constitutional violation for officers to (allegedly) force their way into the home? Fourth Circuit: Indeed, the warrantless entry claim goes forward. But it was not excessive force to shoot the motorcyclist dead after he jumped out a window and pulled an AR-15 on an officer. Partial dissent: The officers should also have gotten QI for shooting the unarmed girlfriend, who jumped out after him.
  6. Fifth Circuit: Do these tanker-truck drivers transport property in "interstate or foreign commerce" even though they only move crude oil inside Texas? Our precedent—which we very pointedly do not say is correct—requires us to say the answer is yes. Judge Oldham, concurring: And let's have a quick word about how bonkers that precedent is.
  7. Allegation: After three youths driving in New Orleans ask an officer for his help in looking for a lost chihuahua, the officer gets a funny feeling and—along with another officer—tails the youths and orders them out of the car at gunpoint. Everything being in order, they're permitted to leave. Unreasonable seizure? Excessive force? Might be, says the Fifth Circuit, reversing the lower court's judgment in favor of the officers. Sadly, however, the panel also notes that it is unable to grapple with plaintiff's argument that qualified immunity sits on a throne of lies—only the Supreme Court can do that.
  8. In 2021, Galveston County, Tex. officials redraw voting maps and eliminate the sole majority-minority district, where a combination of Black and Hispanic voters had outnumbered white voters. Fifth Circuit (en banc, 12-6): We overrule our precedent that had allowed coalitions of different minorities to bring voter dilution claims under Section 2 of the Voting Rights Act.
  9. A fleet of airlines challenge a proposed DOT rule regulating how they disclose fees during the booking process and seek a stay while their challenge goes forward. DOT: Surely you can't be serious? Fifth Circuit: Don't call me Shirley. And if Congress had wanted to allow rulemaking in this area they would have said something about it. Stay granted.
  10. Is the Rio Grande "navigable"? The en banc Fifth Circuit splits on this subject as it applies to a 1,000 foot stretch where Texas' governor installed some tethered buoys. The majority reverses a preliminary injunction but the full trial is still upriver. And one concurring judge says that if the governor thinks there's an invasion—like there was from 19th century cattle rustlers—courts must abdicate defer. Dissents: Haven't y'all read Gibbons v. Ogden?
  11. New Orleans crime lab employee warns superiors that one of their drug tests is unreliable. They respond that the lab's employees will themselves be subjected to the potentially unreliable drug tests, and the employee asks to go on leave. His supervisor then goes to his home with two other armed officers to conduct a "wellness check," and they both force their way into the home and force him into a police car to take him to police headquarters. Employee sues, saying the home search and his seizure violated the Fourth Amendment. Qualified immunity? Fifth Circuit: No immunity for the supervisor, but the Nuremberg defense works for the two other officers.
  12. Consider this timeline. 2018: Brentwood, Tenn. police detective gets a search warrant for a lawyer's private Facebook records. 2020: Lawyer learns of the search through discovery in a criminal proceeding against her. 2022: Detective testifies that one of the main reasons she got the search warrant was because the lawyer criticized the police, and the lawyer brings a First Amendment retaliation suit. Is the lawsuit timely under the one-year statute of limitations? Sixth Circuit (per curiam): Under our circuit's discovery rule, the lawyer knew about the search and who did the search in 2018, and that's enough to start the clock. Claim time-barred. (Any equitable-tolling argument was forfeited.) Concurrence 1: The real problem is just that the facts show the lawyer should have known in 2018 that she was being retaliated against. Concurrence 2: Our discovery rule seems wrong, and Supreme Court precedent says what matters is just whether the elements of the cause of action have occurred, whether or not the plaintiff knew about them.
  13. Ohio school district prohibits students from intentionally using another's non-preferred pronouns that rise to the level of harassment. Parents with children in schools who believe that biological sex is immutable challenge the policy under the First Amendment. Sixth Circuit: You can use their names, thus avoiding pronouns, or not speak to them at all. No injunction. Dissent: The policy is a viewpoint-based regulation that compels students to speak in a manner with which they disagree, namely that biology doesn't determine gender. It should be enjoined.
  14. Teen witnesses two assailants—one who is 320 pounds and one who is bald—commit a murder in Saginaw, Mich. in 2015. At a lineup, a police sergeant presents two suspects—neither of whom are bald or weigh anywhere near 300 pounds. The teen says they are not the assailants and later, at trial, testifies to the same. But wait! The sergeant produces a report saying that on the day of the lineup the teen did indeed finger the suspects, who spend over five years incarcerated before they're cleared. Sixth Circuit: Their fabrication of evidence and malicious prosecution claims against the sergeant can go forward.
  15. Hamilton County, Ohio judge is indicted on multiple felony charges, including claims that she backdated documents to prevent appeals. Her 2014 trial attracts a great deal of interest; two people attending a pretrial hearing are arrested for taking pictures in the hallway (charges later dropped). They sue. Sixth Circuit (2018): No qualified immunity. Sixth Circuit (2020): Qualified immunity for all claims other than official-capacity claims. Jury (2022): One arrestee's rights were violated, and she gets $35k in damages plus $500k in attorney's fees. Sixth Circuit (2024, unpublished): The arrest was not in retaliation for protected conduct or caused by the county's failure to train its employees, so the jury verdict is reversed and money yanked. (The judge was convicted of improperly using her position to help her brother, spent 75 days behind bars, and saw her law license suspended.)
  16. Portage County, Ohio woman left near dead with severe head injuries after a hammer attack. She first has no memory of what happened, but, after police show her a photo of a man who they say did it, she eventually (months later) says she knew all along that he did it. Suppress the identification? Ohio Court of Appeals (2018, over a dissent): Nah. The cop shouldn't have done that, but her identification of the man was nonetheless reliable. Sixth Circuit (2024, over a dissent): Calling the cop's procedures "'impermissibly suggestive' is a gross understatement." Habeas granted.
  17. Listen, friends: We've all had that deposition where we thought opposing counsel crossed the line from zealous representation to unreasonable and obstructive conduct. Don't curse them out afterwards. Definitely don't physically push them. And definitely, definitely don't later tell the district judge you "unintentionally" brushed against them. Seventh Circuit: Sanctions award affirmed.
  18. The Seventh Circuit voted to go en banc last year because its take on the Rooker-Feldman doctrine was a mess. After careful deliberation, the en banc court holds that the Rooker-Feldman doctrine is, in fact, a mess and that SCOTUS should really do something about that. In the meantime, if you add up the votes across three dueling en banc opinions, different parts of which are joined by different judges, the court reaches at least a few holdings about how it's going to apply Rooker-Feldman going forward, but, honestly, your summarist ran out of fingers trying to count the votes and respectfully refers you to the summary in Judge Hamilton's lead opinion, which we're sure is right.
  19. Lobbying gets a bad rap, but, the Eighth Circuit reminds us, petitioning the gov't for a redress of grievances is, in fact, a core component of the First Amendment. As a result, Missouri's prohibition on former state legislators and staff working as lobbyists for two years after they leave office is subject to strict scrutiny, which it comes nowhere close to passing.
  20. Allegation: Over the course of three days, pretrial detainee at White County, Ark. jail repeatedly alerts officers that a spider bite has caused an infection in his arm and hand, which are oozing pus and swelled to the size of a small watermelon. They ignore him. Eighth Circuit: We've previously held that ignoring a detainee's serious medical need for two days is unconstitutional. The lower court's denial of qualified immunity to the officers is affirmed.
  21. Man suffering from mental illness calls Las Vegas police for help. Though he's unarmed and nonthreatening, two officers drag him to the ground and pin him down. He dies of asphyxiation. Officers: We stopped kneeling on him after he was cuffed; in the prior case at issue, officers continued pinning down the decedent after he was cuffed. Ninth Circuit: No need for a factually identical case here; he wasn't a threat. No qualified immunity.
  22. Allegations: Georgia political candidate runs for city commission on a platform of "replac[ing] Caucasian employees with African Americans," including, specifically, the white city manager. He's elected, warns the city manager he'll be replaced with a Black city manager, and encourages the other Black commissioners to vote to do just that. The fired city manager is then told he can't return to his former position as finance director because he "did not look like" them. Eleventh Circuit: "The question for us is whether those allegations permit the inference that the City Commission fired McCarthy because he is white."
  23. There are two things your summarist knows to be true: Defamation lawsuits draw more attention to the alleged defamation, and nobody is ever going to start referring to Twitter as X. Relatedly, the Eleventh Circuit (per curiam) holds that former Chief Justice of the Alabama Supreme Court Roy Moore cannot sue over tweets calling him a pedophile, which were inspired by multiple news reports of women who accused Moore of groping them while they were underage.
  24. Each week, the federal courts of appeals decide cases with complicated facts featuring lurid tales of murder, mayhem, and misadventure. So when the Eleventh Circuit starts its opinion with "Warning: This is going to get messy," you know what you're going to get: an extended discussion of class-certification standards under Rule 23.
  25. Defendant: Google had to pull my account information in response to gov't's "geofence" warrant, and I want all the evidence suppressed. Eleventh Circuit: Maybe it did. But the only account information Google actually turned over in response to that warrant belonged to your girlfriend's daughter, so you don't have standing to object.
  26. Georgia prison officers invasively strip-search a woman visiting her inmate husband for seemingly no reason, violating prison policy in the process and dissembling about the incident afterwards. Woman sues under the Fourth Amendment, and officers assert qualified immunity. Eleventh Circuit: Strip searches are "embarrassing and humiliating," the Constitution requires that prison visitors can be subjected to them only if there is reasonable suspicion and the search is not more intrusive than necessary, and most circuits had held as much when this search occurred. But our circuit doesn't allow out-of-circuit precedent to clearly establish the law (or care that prison policy was violated), so the officers get qualified immunity. Concurrence 1: We should take this case en banc because our refusal to consider an out-of-circuit consensus goes against Supreme Court authority. Concurrence 2: K. Newsom, Considerations on Qualified Immunity, 44 11th Cir. L. Rev. 211 (2024).
  27. One of the great joys of civil procedure is that you can, as in this Eleventh Circuit case, recite truly bonkers allegations about secret affairs with appellate judges and quid-pro-quo arrangements to spring criminal defendants and then just say there's no need to bother with any of it because the whole thing is barred by the Rooker-Feldman doctrine anyway.
  28. Wayne County, Mich. sheriff's deputies seek to forfeit woman's car based on allegation that her passenger might have had drugs in the car at some previous time (no drugs were found). Michigan Supreme Court (over a dissent): To be forfeitable under the statute, a car has to be used to transport drugs for their sale or receipt. That didn't happen, so no forfeiture. (This is an IJ case.)

New case! In 2009, officials tried to install a new sewer line on Melisa and Michael Robinson's property, a small mobile home community they own and operate in Okay, Oklahoma. But they made a hash of it! They didn't grade the pipes properly, and sewage backed up into the homes. They hit an underground power line, killing the power and blowing out tenants' refrigerators and air conditioners. Moreover, officials never bothered to obtain the necessary easement or even notify the Robinsons before they started digging. All of which, after 13 years of litigation, led to the Oklahoma Supreme Court (and a jury) declaring the whole thing to be an unconstitutional taking. The Robinsons are now owed over $200k, but—and here's where IJ comes in—the town says it does not have to pay and that court-ordered judgments are merely unenforceable IOUs. Fiddlesticks! The Fifth Amendment is made of sterner stuff, and the gov't must pay for what it takes. Click here to learn more.