Short Circuit: A Roundup of Recent Federal Court Decisions

Eleven-person juries, noncustodial plaintiffs, and abdicated responsibilities.

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! One might think that, in determining whether a statute restricts speech or restricts nonspeech conduct (a question that tends to matter a great deal in First Amendment cases), courts should ask whether the statute … restricts speech? Or whether it restricts nonspeech conduct? Fourth Circuit: Wildcard! Let's instead use a "non-exhaustive list of factors" combined with a brand-new level of "loosened," "quite different," and "more relaxed" constitutional scrutiny. Read the cert petition to learn why the Fourth Circuit's approach is decidedly not cricket and entrenches a circuit split on a question of nationwide importance.

1. Capitol police officer warns a Facebook friend to take down a video of himself in the Capitol on January 6. When the FBI becomes very interested in these conversations, the officer deletes the conversations. He's convicted of obstructing grand jury proceedings. Officer: But who could have foreseen that a grand jury would be empaneled? D.C. Circuit: Well, you, for one, especially since you posted on January 7 that every protestor who entered the Capitol should be federally charged.
2. Section 2 of the Fourteenth Amendment mandates in plain English that if the right to vote is "in any way abridged" by a state for a sufficient number of its citizens then it proportionally loses seats in Congress. Since 1868 … no state has ever lost a seat in Congress because of Section 2. Voters group: Until now! Here's evidence that there's been vote denials in a number of states. Census Bureau: Um, that's not our problem. Voters: Oh yeah? Here's an APA lawsuit. D.C. Circuit: Too bad none of the voters have standing. Concurrence: "I concede that implementing the Reduction Clause might be difficult, but that is no excuse for the Judiciary Executive Branch to abdicate its responsibility to give effect to this important part of the Constitution."
3. New York man is prosecuted for sending death threats to congresspersons and Fox News hosts. A jury of 11 convicts. Second Circuit: That's OK. A 12-person jury isn't a constitutional right. And no prejudice suffered: The threats were clearly real (e.g., "Laura Ingraham, I am going to personally kill you"), so the error was harmless. Dissent: Not OK. Twelve jurors are "fundamental" to criminal trials. A 12th could've tipped the balance or hung the jury, a real possibility given the jury spent days deliberating, couldn't reach a consensus on one charge, and sent out notes like, "Do we have to convict even if we think he is mentally ill?"
4. If you're a massive corporation—like, say, Hertz—and you have enough dough to pay all your creditors but ask for bankruptcy protection anyway, don't be surprised if a court—like, say, the Third Circuit—doesn't allow you to cancel hundreds of millions of dollars in interest in an attempt to stiff your noteholders. Partial dissent: I think a different interest rate applies.
5. Navy man returns home from deployment and tries to rent a Hanover, Md. apartment. Yikes! A tenant screening agency reports that he (1) has a criminal record and (2) might be a Mexican drug trafficker (his name is similar to a purported trafficker who was born seven years before he was). He's initially rejected but then approved two days later after explaining that (1) he does not have a criminal record. (2) does not come up, and the property manager testifies she doesn't really know what that part of the report meant and didn't rely on it. Fourth Circuit: He lacks standing to sue the tenant screening agency over (2).
6. Twenty years after being convicted of (vehemently denied) cocaine possession, IJ client Erma Wilson learned that the Midland County, Tex. prosecutor on her case was moonlighting as a law clerk for the presiding judge, a flagrant violation of the constitutional right to a fair trial. Though she never served jail time, the conviction meant she's been unable to pursue a lifelong dream of becoming a nurse. Can she sue for money damages? Fifth Circuit (en banc): Nope, she's got to get her conviction overturned first. Dissent: There is a "deep and enduring" circuit split on this, and our circuit "has been on the wrong side of this fateful split for almost a quarter-century," unjustifiably cutting off access to federal court for federal constitutional violations. (This is an IJ case. Click here to learn more.)
7. Jury: Plaquemines Parish, La. sheriff's deputy acted unreasonably and unconstitutionally when he arrested a man for calmly asking "why" when the deputy asked for his ID. Deputy: Qualified immunity, please. Fifth Circuit: No. It wasn't reasonable to think you had probable cause to arrest, and the jury was entitled to reject your qualified-immunity defense and to award punitive damages.
8. Allegation: Motorist crashes his vehicle in Austin, Tex. after leading police on high-speed chase. Police tase him and pin him down; he tells them he can't breathe and that he has a heart condition. He dies. Did an officer who held him down for 90 seconds use excessive force? Fifth Circuit: That's for a jury to decide. Dissent: If the officer had shot the motorist dead during the chase, he'd have gotten qualified immunity. Makes no sense he could be liable just for holding him down. (NB: Two other officers were acquitted of criminal charges. And the incident was recorded by the "Live PD" reality show, leading to a state ban on law enforcement participating in such shows.)
9. Allegation: University of Louisville psychiatrist is demoted and essentially fired in retaliation for expressing his views on how to treat gender dysphoria in children at a think tank panel discussion in D.C. Sixth Circuit: There may not be a prior case on all fours, but all reasonable university officials know they can't fire a professor because of his protected speech. No qualified immunity.
10. Institutional investors have to vote in thousands of shareholder meetings annually. To assist them, Proxy Voting Advice Businesses (PVABs) research shareholder proposals and sell advice to these investors. Companies don't always like this advice, and in 2020 they convinced the SEC to impose a bunch of disclosure requirements on PVABs. Sounds to this humble First Amendment lawyer like a fascinating free speech case. But we're actually here because in 2022 the SEC rescinded the requirements. Sixth Circuit (over a dissent): And the way they did that was fine.
11. Man FOIAs the TSA for sundry video footage and incident reports. By statute, the TSA has twenty days to determine whether to comply with the request. It blows the deadline. Man sues. After which the TSA formally denies his request. Agency: Sure, circuit precedent says that if we don't thumbs-up or thumbs-down within the twenty-day response deadline, FOIA requestors don't need to exhaust our internal agency-appeal process (on the theory that we've constructively denied their request by ignoring it). But since we gave this guy a thumbs down after he sued, that retroactively un-exhausts the suit he filed previously, which should be dismissed so that he can exhaust the agency-appeal process that wasn't available to him when he filed the suit. District court: That makes perfect sense. Ninth Circuit: Actually, that makes precisely zero sense, as both the Fourth and the D.C. Circuits have held. The case can proceed.
12. In 2022, Arizona passed the "Save Women's Sports Act," which bans "students of the male sex" from competing in women's athletics. Two transgender girls who have been on puberty blockers since age 11 challenge the ban as applied to them. The district court grants a preliminary injunction, reasoning that there's no sound basis for excluding transgender students who have not undergone male puberty. Ninth Circuit: Which was not an unreasonable conclusion. Preliminary injunction affirmed.
13. In which the City of Los Angeles's litigation choices earn it its second remand from the Ninth Circuit in this, the eleventh year of an excessive-fines challenge to the city's $63 late-payment fee for parking fines. Ninth Circuit (2020): "[I]n its brief to this court, the City of Los Angeles did not even bother addressing the constitutionality of its late fee." Remanded. District court (2020): The late-payment fee is a-okay. Ninth Circuit (2024): "We simply ask that the City provide some evidence that the penalty amount was actually tethered to the nature and extent of the harm caused by nonpayment" (italics and underlining very much in original). Remanded again. Dissent: It's $63.
14. Allegation: Federal prisoner in California is attacked by his cellmate with a razor. Guards decline to move him to another cell, and his cellmate attacks again. An Eighth Amendment violation? District court: Could be! The Supreme Court has closed the courthouse door to nearly every constitutional claim against federal officers, but failing to protect against prisoner-on-prisoner violence is an exception. Ninth Circuit: We join three other circuits and hold that the officers don't enjoy a special right to interlocutory review here; that's a qualified immunity thing. Dissent: The Supreme Court has closed the courthouse door to these cases.
15. In 2021, inmate in Honolulu federal prison is attacked by gang members with a lock in a sock, breaking his coccyx. The nurse who examines him tells him "to stop being a cry baby," and gives him only over-the-counter pain medicine. His injuries go undiagnosed for seven months, and in the meantime bone chips embed in the soft tissue around the break. Per oral argument this last February, he still has not received treatment. Ninth Circuit: The Supreme Court has closed the courthouse door to nearly every constitutional claim against federal officers, but deliberate indifference to an inmate's serious medical needs is an exception. Proceed! Dissent: So officials have to send inmates to the hospital every time they report extreme pain? That can't be right.
16. Latest news from the world of Where Can I Take My Gun Based on kind-of Similar Laws from 1791/1868, Ninth Circuit edition: Banks? Cha-ching! Private property in general? Oh yeah. Bars? Um, no. Hospitals? First, do no harm. Parks? I'm [not] your Huckleberry.
17. Your summarist appreciates when judges are sufficiently humble to recognize that there are "hard cases" where "both sides have tendered plausible constructions of a text," and also that the Ninth Circuit majority here credits the dissent with making some good points that "gives [the majority] pause." Beyond that, we can only agree that this is indeed a "pretty complicated" case, and we leave it to the reader to decide which side has the better view on how Congress intended indemnification and removal to work for malpractice suits against private doctors at federally supported health centers that are deemed to be employees of the Public Health Service.
18. In 2013, Sacramento police officer receives two racist spam messages and texts them to a colleague, accompanied by the message, "Some rude racist just sent this!!" Six years later, the officer is now assistant chief of police for the city of Rancho Cordova and, in that capacity, forwards a complaint about the same colleague to internal affairs. The chagrined colleague digs up the texts and turns over the racist images but not the messages condemning the images. The chief is forced to resign. She later sues for First Amendment retaliation. Ninth Circuit: The speech wasn't on a matter of public concern, so no First Amendment problem. Dissent: We used to interpret public concern broadly and this is a weird case in which to tighten it up.
19. Federal officers conducting a mock hostage standoff exercise at Florence, Colo. prison get frustrated with several prison employees who'd locked themselves in a small room and refused to come out. And even though the employees repeatedly call out the safety phrase that's meant to terminate the exercise, the officers shoot rubber bullets and pepper spray into the room, punch employees in their faces, etc. Tenth Circuit (April 2024): No QI (for now) for the official who allegedly planned and facilitate the exercise. Tenth Circuit (this week): And regarding the other officers, they were acting outside the scope of their employment, so plaintiffs' state-law tort claims can proceed against them individually (in federal court) without the federal gov't substituting itself as the defendant (which is the outcome plaintiffs sought).
20. Oklahoma man shoots his intoxicated cousin dead after the cousin (allegedly) knocked his own girlfriend unconscious and then ran at the man "like a linebacker." The man is charged with three counts, including second-degree murder. He requests that the jury be instructed that he had no duty to retreat before using force in self-defense. Tenth Circuit: And that instruction should have been given; convictions reversed and remanded for a new trial.
21. Colorado assistant principal expresses reservations about an upcoming high school production of The Laramie Project and offers to add a "Christian perspective" on the issue. He's immediately put on leave and then fired. Tenth Circuit: And he has plausibly alleged that he was discriminated against because of his religion.
22. Is talk therapy "speech" within the meaning of the First Amendment? The Ninth Circuit has said no, and the Eleventh Circuit has said yes. This week, the Tenth Circuit weighs in, siding (over a dissent) with the Ninth Circuit. Last time a petition went up on this issue, three Justices indicated they'd have granted cert., so this is one to watch.
23. And in en banc news, the First Circuit will not reconsider its decision concerning whether backpacks are categorically covered by the search incident to arrest exception. Six judges joining a statement concerning denial: This would be a really good issue for SCOTUS to address whenever it gets around to doing Fourth Amendment cases again.
24. And in more en banc news, the Fifth Circuit will reconsider its decision that waiver-based remand orders are unappealable.

New cert petition! One might think that, in determining whether a statute restricts speech or restricts nonspeech conduct (a question that tends to matter a great deal in First Amendment cases), courts should ask whether the statute … restricts speech? Or whether it restricts nonspeech conduct? Ninth Circuit: Wildcard! If the gov't declares that it is regulating conduct and not speech, then everything's cricket. Read the cert petition to learn why the Ninth Circuit's approach conflicts with recent Supreme Court precedent and entrenches a circuit split on a question of nationwide importance.