Short Circuit: A Roundup of Recent Federal Court Decisions

Pizza wiretapping, free books, and a search during childbirth.

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

Law students! We haven't met you, and this is crazy, but maybe come join us at one of our upcoming Legal Intensives, which feature interactive sessions on constitutional and public-interest law led by experts at IJ. You'll gain practical skills, learn practical strategies, and connect with like-minded peers and pros. Click here to learn more about the intensive in Malibu, Calif. on Nov. 9, 2024, which will focus on First Amendment Retaliation. And click here to learn more about our event in Arlington, Va. on Jan. 25, 2025, on Unconstitutional Zoning. Space is limited and competitive.

1. The Clear Air Act says "new" pollution sources are those built after EPA promulgates the relevant pollution standard for that source. In 2022 EPA came up with some standards for certain industrial boilers and said they applied to the boilers even though the boilers were built before the standards had been proposed. D.C. Circuit: Which means the boilers aren't "new."
2. Maine law and jail policy prohibit officers from being in the delivery room while a prisoner is in labor or giving birth, absent a request from medical staff. First Circuit: And it's clearly established that, absent an emergency, the Fourth Amendment prohibits observing the prisoner's naked body, unless "inadvertent, occasional, casual, and/or restricted." So no qualified immunity for these officers, both of whom also allegedly have histories of inappropriate conduct with female inmates. (IJ filed an amicus brief, with our friends at the MacArthur Justice Center, urging this course of action.)
3. "Is it 'fair use' for a nonprofit organization to scan copyright-protected print books in their entirety, and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors?" Second Circuit: We have a 64-page opinion you can read, but—from that description of the question—we're pretty sure you can guess the answer.
4. Man is arrested after causing traffic accident and appearing unsteady on his feet. He's got no alcohol in his system, so maybe drugs? Yikes! Turns out he'd had a stroke. Can he sue an NYPD officer who pursued charges (that required him to come to court several times before they're dismissed) even after learning of the stroke? Second Circuit (unpublished): No, he could have had the stroke after the accident, so the officer had at least arguable probable cause, which defeats a malicious prosecution claim.
5. FullStory Inc. sells a script of computer code that allows businesses to collect data about how visitors interact with their websites. E.g., Papa John's uses the code to capture website visitors' mouse movements, clicks, scrolls, zooms, window resizes, keystrokes, and text entries. Mamma mia! Two class actions filed in Pennsylvania allege that FullStory (produces the code) and Papa John's (uses the code) violated the state's wiretapping and privacy laws. The district court dismisses both cases for lack of personal jurisdiction over the out-of-state corporations. Third Circuit (over a dissent): Dismissal of Papa John's is affirmed, but dismissal of FullStory is vacated and remanded for district court to apply the correct test.
6. Allegation: Man in Houston drives in the early morning to help his girlfriend in a fender bender and is getting along well with assisting officers until police sergeant barrels in, escalates the situation, and then chokeslams man on a car hood, leading to a scuffle in which the man is tased and arrested. Fifth Circuit: If the facts are as alleged, no qualified immunity. Dissent: "This is an absurd result." Bodycam video shows man assault sergeant, so sergeant should get qualified immunity. Concurrence: I don't see that in the video at all, so this should be decided at trial, "not by three appellate judges playing junior-varsity jury."
7. Driver pleads guilty to felony fleeing after high-speed chase and then sues Hernando, Miss. officers for excessive force. District court: Heck bar precludes claims and, alternatively, driver hasn't identified a constitutional violation. No attorneys' fees for prevailing defendants. Fifth Circuit (unpublished): Driver's counsel has inexplicably failed to appeal the alternative holding so he loses, but also no fees because civil-rights defendants can only get those when claims are frivolous. Concurrence: The text of the fee-shifting statute for civil rights cases doesn't differentiate between plaintiffs and defendants, so maybe precedent that treats plaintiffs more favorably is wrong?
8. In 2001, when the Supreme Court's deference to campaign finance laws was at its zenith, the Court upheld federal limits on the amount of spending political parties could do in coordination with their candidates. Twenty-three years later, has the legal landscape changed so much that the Sixth Circuit can strike down the limits? Sixth Circuit (en banc): If we were writing on a blank slate, we'd probably say yes, but vertical stare decisis is absolute. Concurrence(s): SCOTUS should abandon tiers of scrutiny and adopt Rahimi-style historical review. Other concurrences: Why are we even opining on this? Just uphold the law and send it to SCOTUS. Dissent: We can strike it down.
9. Murder suspect holes up in his parents' house (where he does not live). His mother offers to persuade him to come out peacefully, but Smyrna, Tenn. officers instead fire chemical munitions into the home, causing massive damage. Was the damage a Fifth Amendment taking requiring just compensation? Sixth Circuit: No. Historically, officers have had the privilege to kick in a door or break a window to carry out a lawful arrest without any Fourth Amendment liability, so there's no Fifth Amendment liability against municipalities when innocent people's houses are destroyed during a lawful arrest. (This is an IJ case.)
10. Three Republican Party county executive committees in Kentucky would like to spend money in support of a state constitutional amendment (on school choice) that is on the ballot this November. But state campaign finance officials, in an official opinion, say that would be illegal. Officials: But we might not enforce the law, so you can't sue us yet. Sixth Circuit: Not only can the committees sue, but they'll also probably win. So we're taking the extraordinary step of granting an injunction pending appeal.
11. At George Floyd protest in Des Moines, Iowa, a bunch of different officers arrest a bunch of different protestors spread over several blocks. Officers: We had blanket authority to arrest everyone in the area for unlawful assembly, failure to disperse, or participation in a riot. Eighth Circuit: No, you need at least arguable probable cause to suspect individual arrestees did any of those things. Many of these officers did not and thus are not entitled to qualified immunity.
12. At George Floyd protest in San Jose, Calif., officer shoots non-threatening protestor in the groin with a foam baton round, which causes serious injury. (The protestor is a community activist who had for years trained police recruits about implicit bias.) Ninth Circuit: To a jury these First Amendment retaliation and Fourth Amendment excessive force claims must go.
13. At George Floyd protests in Los Angeles, officers allegedly injure people who didn't have it coming, arrest people who didn't have it coming, gave dispersal orders people couldn't hear, zip-tied people too tightly, packed arrestees on busses too tightly without access to water or bathrooms, and more. Ninth Circuit: Doesn't seem like plaintiffs' injuries in the four classes the district court certified are common enough for a class action. Vacated and remanded for another look.
14. If you move from Hawaii to the Commonwealth of the Northern Mariana Islands (CNMI), you get to continue voting absentee in Hawaiʻian federal elections. But if you move from Hawaiʻi to Guam, about 37 miles southwest of CNMI, you don't (same goes for Puerto Rico, the U.S. Virgin Islands, and American Samoa). Former-Hawaiʻian-now-Guamanian sues, alleging this disparate treatment violates the right to vote. Ninth Circuit: That's a little weird, but it's not irrational. Dissent: I think the standard is a little more demanding than that, and the district court should take another crack at it.
15. California wants large social media companies to file semi-annual reports about their content-moderation policies and practices. The social media company formerly known as Twitter objects that this violates the First Amendment and moves for a preliminary injunction. The district court denies the injunction, concluding that the reports are permissible compelled commercial speech. Ninth Circuit: "The Content Category Report provisions would require a social media company to convey the company's policy views on intensely debated and politically fraught topics, including hate speech, racism, misinformation, and radicalization, and also convey how the company has applied its policies." That ain't commercial speech. Injunction granted.
16. Montana enacts a law that makes it a crime—punishable by up to 18 months in prison and $5,000 in fines—for any person to "purposefully remain registered to vote in more than one place in this state or another state any time" or to fail to "provide . . . previous registration information on the Montana voter registration application." Voter registration group sues and gets a preliminary injunction. Montana: But there's no First Amendment right to maintain multiple voter registrations! Ninth Circuit (unpublished): You didn't raise that argument below, so we won't consider it now. Preliminary injunction affirmed.
17. LGBTQ+ students who applied to or attended various religious universities sue the federal government for allowing the schools to discriminate against them and still get a tax break. Ninth Circuit: Tax breaks for religion are as American as apple pie.
18. Maricopa County, Ariz. officials post all arrestees' mugshots on its "Mugshot Lookup" website, regardless of whether it ends up charging them with a crime. Embarrassing! But does it violate the Due Process Clause? Ninth Circuit: It just might maybe could! Case undismissed!
19. To litigants, it may feel unfair when a case is randomly assigned to a new judge who suddenly announces the previous judge's rulings were super-wrong, but the Ninth Circuit reminds us that this is totally allowed when the previous rulings were, in fact, super-wrong.
20. Mesa County, Colo. police suspect they'll find a stolen Sno-Cat vehicle in plaintiff's garage. When no one answers the front door, SWAT officers fire chemical munitions into the house, causing $50k in damage. Yikes! Turns out no one was home except for a dog. Tenth Circuit: The Sno-Cat could only have fit in the garage; the search warrant therefore did not authorize entry into—much less tear gassing—the rest of the home. Fourth Amendment claims undismissed.
21. The Eleventh Circuit holds that a robber pointing a gun at, but not touching, a cashier has "physically restrained" the cashier. Concurrence 1: But only because of prior caselaw that is dumb. Concurrence 2: I welcome our new AI overlords' help in this case (as I said previously (and as your humble podcasters discussed in a thrilling episode)).
22. Christian school in Tampa, Fla., wants to say a prayer over the PA system at the 2015 Florida High School Athletic Association state championship game, but is denied the right to do so. It sues, alleging a violation of the Free Speech and Free Exercise Clauses of the U.S. and Florida Constitutions. Eleventh Circuit: Your retrospective claim for nominal damages is barred because announcements over the PA system at FHSAA games are government speech to which the First Amendment does not apply. Your prospective claims for declaratory and injunctive relief are barred because, frankly, it doesn't seem like you're going back to the big game anytime soon.
23. First Circuit (2022): You might think a multimillion-dollar monetary penalty imposed by the federal gov't would be a "fine" within the meaning of the Eighth Amendment's Excessive Fines Clause, but you'd be wrong, because, see, it's a "penalty," not a "fine." We at IJ (cert petition): That seems wrong. Justice Gorsuch (dissenting from denial of cert): Indeed, that seems wrong, and we can only hope future courts don't repeat the First Circuit's mistakes. Eleventh Circuit (2024): Yeah, that was a real swing and a miss from the First Circuit. In considering the same penalty scheme, we think these penalties absolutely qualify as fines. And of the $12 mil imposed on this particular guy, $300K was unconstitutionally excessive.
24. And in en banc news, the Ninth Circuit will not reconsider its decision to allow practitioners of Falun Gong to move forward with their lawsuit against Cisco Systems, alleging that the company facilitates human-rights abuses by the Chinese Communist Party and Chinese government officials. Judge Bumatay, joined by five other judges, sees troubling separation-of-powers implications in allowing U.S. courts to hear cases about alleged human rights violations committed in China against Chinese nationals by the Chinese government.
25. And in more en banc news, the Ninth Circuit will not reconsider its decision that certain suspects awaiting trial can be disarmed in a way consistent with the Second Amendment. Dissent: "This latest effort stems from a particularly enticing opportunity for Second Amendment shenanigans."

Victory! Friends, Wilmington, Del. officials engaged in some very predatory vehicle impound practices. As just one example, they repeatedly ticketed IJ client Ameera Shaheed's legally parked car, towed it based on those bogus tickets, and then—when she couldn't pay the full sum—let the city's contractor keep the full value of the car. We filed a lawsuit in 2021 and were set to go to trial last summer, but this week reached a settlement agreement that will allow the city to enforce its laws but will also provide vehicle owners with substantial protections against abuse, requiring repeated notice, very liberal and easy payment plans for parking tickets, and convenient hearings. Click here to learn more.