Short Circuit: A Roundup of Recent Federal Court Decisions

Veterinary speech, inflation reduction, and Inspector Javert's playbook.

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! Friends, if an FBI SWAT team ever raids your home by mistake, terrifying your family, because they couldn't be bothered to double check they had the right address, you might like to sue over it. And you might think the Federal Tort Claims Act, which Congress amended in 1974 specifically to ensure there's a cause of action for federal police raids, lets you do just that. But you'd be wrong, at least in the Eleventh Circuit, which earlier this year ruled (unpublished and per curiam) that FBI agents have the discretion to do anything or nothing at all when it comes to making sure they raid the correct house. Today, IJ asked the Supreme Court to step in, resolve some circuit splits, and tell the Eleventh Circuit that the Supremacy Clause doesn't conflict with federal statutes.

New on the Short Circuit podcast: Michael Perloff of the ACLU joins us to discuss how the D.C. Circuit said your "effects" receive Fourth Amendment protection for as long as the police hold onto them.

1. Three individuals are arrested for murder of Boston pizza delivery man in 2010; one pleads guilty and the other two are tried together. Co-defendant "A" makes inculpatory statements about co-defendant "B." The state wants to use A's statements against B, so it creates a redacted transcript of the statements, replacing all references to B's name with a blank space. The state shows the jury that transcript at the close of B's trial and he's convicted. Sixth Amendment violation? First Circuit: Yes, but we have "no grave doubt" that the jury would have reached the same verdict without the redacted statement. Conviction affirmed. Partial dissent: "I entertain 'grave doubt' about whether the statement had such an influence" because it was "plainly critical to the prosecution."
2. Not the worst news NYC Mayor Eric Adams received this week, but the Second Circuit has un-dismissed a lawsuit alleging that changes to the admission process for some of the city's most prestigious and highly selective high schools discriminated against Asian-American students.
3. Drugmaker Merck has been in court for quite some time over the question as to whether federal law preempts state-law claims related to the labeling of its anti-osteoporosis drug Fosamax. How long? Longer than the publication of George R.R. Martin's most-recent novel in the A Song of Ice and Fire series (July 2011). And just like the book-version of that series, there's no telling when the end will be. After multidistrict consolidation in 2011, a "bellwether trial" in 2013, a Third Circuit ruling in 2017, a SCOTUS reversal in 2019, and a district court ruling in 2022, the Third Circuit has once again penned a chapter, this time reversing the district court, determining the claims are not preempted and remanding for further writing.
4. Pennsylvania death-row prisoner with a history of mental illness is held in solitary confinement for 26 years. He sues a prison official, who does not dispute whether that violates the Eighth Amendment, arguing only that he is entitled to qualified immunity. Third Circuit (over a dissent): There's "no room for doubt that individuals with a known history of serious mental illness have a clearly established right not to be subjected to prolonged solitary confinement without penological justification." No QI.
5. Two fishermen challenge a federal fishing rule limiting their catch in the Mid-Atlantic region. Unlike federal rules issued by agencies headed by Senate appointees, this one emanates from the Mid-Atlantic Council, run by people appointed to various degrees by state governors and are not Senate-confirmed. The Council can "pocket veto" the Senate-appointed Secretary of Commerce in certain situations. Third Circuit: Pocket vetoes are right there in the Declaration of Independence. As a remedy, though, we won't do anything so drastic. Let's just sever the pocket-veto powers.
6. Octogenarian, disabled, good-hearted Texas veterinarian spends his golden years responding by e-mail to questions from pet lovers worldwide. Texas: This cannot stand! Under Texas law, vets cannot provide advice to pet owners unless the vet has first met the pet in-person (or visited the pet's home). A First Amendment violation? Fifth Circuit (2015): No. The First Amendment doesn't protect "professional speech" at all. Fifth Circuit (2020): Our bad, turns out the First Amendment does protect professional speech. Case remanded for the district court to deal with all this in the first instance. Fifth Circuit (2024): The vet wins. Even under intermediate First Amendment scrutiny, Texas's in-person examination requirement fails—not least because, under Texas law, "[e]xam-free telehealth, turns out, is fine for your Uncle Bernard, but not for your Saint Bernard." Concurrence: And the requirement definitely fails strict scrutiny, which is the standard I think should apply here. (This decade-long jaunt is an IJ case, and we couldn't be happier for the irrepressible Ron Hines: be sure to give your favorite schnoople, horse, Glaswegian cat, or Iranian pigeon a special pat on the head today in honor of Dr. Hines and the U.S. Constitution.)
7. After Texas put floating barriers across the Rio Grande, the United States sued, alleging the barriers violated the Rivers and Harbors Act of 1899 and seeking an injunction ordering their removal. Texas, thinking it stood a better chance in front of a jury than a judge, demanded trial by jury. When that was denied, it petitioned for mandamus. Fifth Circuit: Which we deny. The United States is seeking only equitable relief, and it is well established that the Seventh Amendment does not apply.
8. The Inflation Reduction Act gives HHS the power to "negotiate" prescription drug prices by telling companies how much they're allowed to charge for certain drugs and penalizing them if they don't agree. Manufacturers can only avoid the penalties if they give up Medicare coverage for all drugs they produce. Fifth Circuit (over a dissent): Yup, you can sue about that.
9. Christian healthcare ministry and Catholic school challenge Michigan anti-discrimination laws. Michigan: But they have nothing to worry about because the law states it doesn't apply where doing so would violate other applicable law, so the law can't cover anything that it would be unconstitutional to cover. Sixth Circuit: Nice try.
10. The American Rescue Plan Act conditioned certain kinds of COVID-19 aid for farmers on the race of the farmer receiving aid—which (said several federal judges) was probably unconstitutional but which (says two-thirds of this Sixth Circuit panel) was not, like, super-unconstitutional such that this plaintiff should be awarded fees for challenging it.
11. Allegation: Charlestown, Ind. police officers assure woman that they're having her violent, abusive, unstable husband detained in a hospital for 24 hours. But that's a lie. The husband is free to leave, and he does, returning home and carrying out his threats to kill her. Seventh Circuit (per curiam, three opinions): To trial some of this must go. J. Scudder: "Above all else, this case presents a tragic example of the risks posed by domestic violence and the consequences of law enforcement's failure to appreciate those risks. … [P]olice departments ought to prioritize training on responses to domestic violence."
12. Allegation: At oil pipeline protest in North Dakota, police tackle protestor, dogpile on top of him, and strike him even though he's not resisting—all without warning. He suffers a fractured pelvis, among other injuries. Eighth Circuit: Could be excessive force. No QI.
13. Man flees traffic stop on foot after being pulled over for speeding; a Kansas City, Mo. officer chases him down and shoots him dead. Officer: He was pointing what I thought was a gun at me. (There's no video; the man was unarmed.) Eighth Circuit: A jury might think he couldn't have been pointing anything at you because you shot him in the back of the elbow (among other places). No QI.
14. Pro se Arkansas inmate: I had a sexual relationship with a prison security officer, which violated my Eighth Amendment rights. Eighth Circuit: Since the (now-former) prison guard didn't bother to show up for any of this litigation, we've invited the Arkansas AG's office to weigh in as amicus, to ensure the integrity of the adversarial process. And based on the allegations in the complaint, the relationship was entirely consensual. No Eighth Amendment violation here. Dissent: I'm not so sure the plaintiff's handwritten complaint supports that conclusion. Mayhaps justice would be better served by remanding so she can have a hearing (and maybe even a lawyer to represent her!) to address whether the relationship was truly consensual.
15. The Ninth Circuit, standing out "like a flamingo in a flock of finches," is the only federal circuit that treats dicta as binding precedent. That fun little quirk explains both why Judge Forrest has to write a unanimous en banc opinion correcting some ill-considered dicta in an old panel opinion about the False Claims Act and also why that same Judge Forrest writes a concurring opinion noting that it sure would save a lot of time if the court went back to treating dicta as dicta.
16. Looking for male suspects behind a spate of car burglaries, Alameda County, Calif. officers detain, handcuff … a mother and her two teen daughters? For 90 minutes? Jury: Which violated the Constitution (and the Bane Act). Pay $8.25 mil. Officers: The judge erred by instructing the jury to decide whether the law was clearly established. That's a legal question for a judge. Plaintiffs: Sure, but the error made it harder for us to prevail. Ninth Circuit (unpublished): We're not going to throw out the verdict, but the judge [Ed.: who seemed none too happy with the defense last time around] should have another look at that. Remanded.
17. Arizona enacts a law allowing counties to cancel an individual's voter registration if it receives confirmation from another county that the person has moved and registered in a new county. Nonprofits sue. Ninth Circuit: well nonprofits aren't voters, so they don't have standing.
18. Alabama allows individuals to change the sex designation on their driver's licenses but only if they have had gender reassignment surgery. A group of transgender individuals who have not had that surgery sue so that they can also change their sex designations, raising equal protection, due process, and free speech arguments. Eleventh Circuit: And if you've been reading our opinions lately you'll know that these plaintiffs lose.
19. Florida boat crew believes it has stumbled on an illegal long-line fishing buoy. It pulls up the lines, cuts free several sharks, and even tells Florida Fish & Wildlife what they'd done. Whoops. Turns out the line was lawfully placed by marine researchers with proper permits. So the feds bring felony theft charges against the crew, who are convicted. Eleventh Circuit: Convictions affirmed. Reversed. Thieves intend to profit from their crimes. Concurrence: I just want to take a moment to ensure that the name of the AUSA who brought this prosecution—"taking a page out of Inspector Javert's playbook"—is immortalized in the Federal Reporter. [Ed.: The staff here has many regrets, and getting the holding of this case precisely backwards is one of them.]

New case! Friends, Pennsylvania law allows "waterways conservation officers" to traipse across private land at will to investigate violations of state fishing laws. Might that violate the Fourth Amendment? And might all that unbridled authority result in officers behaving like serious jerks? We say yes to both, as evidenced by the abusive and out-of-control behavior of an officer who harassed IJ client Tim Thomas and his late wife Stephanie, trespassing at their cabin, leveling baseless charges against Tim, and then—when Tim prevailed in court—retaliating with more trespassing, angry confrontations, and more bogus charges. "Protecting and preserving wildlife is important, but that doesn't mean those in government tasked with doing so can ignore the Constitution," says IJ Attorney Kirby Thomas West. "If any law enforcement officer wants to search someone's private property, the Fourth Amendment requires them to get a warrant based on probable cause." Click here to learn more.

Comments

[jimc5499]

Yep. That's Pennsylvania. All of their State Level enforcement organizations have people like those Waterway Conservation Officers. I've had a Liquor Enforcement Officer that the Law was what he said it was, not what was in the Liquor Code book.

[TextFirst]

Pennsylvania death-row prisoner with a history of mental illness is held in solitary confinement

In re 4: If you *don't* hold him in solitary confinement, it's a ticking clock until he assaults another prisoner, then you're also buying an 8th Amendment lawsuit from his victim for not protecting them ("How could you not know this death row, mentally ill inmate was dangerous?!?"). This could have been argued better by the state but, bottom line, you're going to get sued no matter what you do; you might as well keep the guy in solitary while the courts sort it out.

[SRG2]

Solitary confinement is not the same as one person per cell.

[darkknight9]

Hear, hear!

[TextFirst]

I don't think that's responsive-- it's solitary confinement or at least some contact with other prisoners. If it's the latter, then he attacks and it's a lawsuit. If it's the former, he doesn't attack and it's a lawsuit. He didn't end up on death row and solitary confinement by playing nice with others, we don't have a great answer on what to do with people too dangerous to even be around other prisoners. The best we've ever come up with is the Thomas Silverstein treatment.

[SRG2]

I don’t think that’s responsive

Of course you don't, because otherwise you'd be admitting to being wrong.

[TextFirst]

All right, I'll bite: What's your plan to keep him completely isolated so that he can't attack other prisoners (leading to a lawsuit) but doesn't count as solitary confinement (leading to a lawsuit)?

[Alan Vanneman]

"Pocket vetoes are right there in the Declaration of Independence"? Uh, I don't think the Court meant that pocket vetoes were necessarily a good thing. In any event, of course, the D of I can't really be cited as "precedent". And the actual Constitution only allows presidential use of the pv immediately prior to congressional adjournment.

[The Margrave of Azilia]

"[George III] has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them."

[Drewski]

The Declaration was cited as historical evidence that a pocket veto is "significant authority" as part of the analysis of whether the Council members are Officers of the United States. The trial court had found otherwise. Article II and various precedents under it are the actual controlling law.

[ReaderY]

I think Christian Healthcare Centers was wrongly decided. When the named defendants are state officials who say a state statute doesn’t apply to and they won’t enforce it against the plaintiffs or those similarly situated, I think a federal court has to accept the officials’ word, and this defeats the credible threat of enforcement element required for standing. I don’t think a federal court has a right to interpret a state statute against the will of the state’s own officials.

I think the Texas Heartbeat Act fit a narrow exception. Texas structured the Act to prevent preventive enforcement, to eliminate any standing requirement and permit anyone on the street to enforce it, and to stack the judicial deck against those accused of violating it by permitting citizen-enforcer plaintiffs but not defendants to obtain fees.

The Michigan law here has no such features. It is a normal law with no soecial deck-stacking features. For this reason, I think that the ordinary standing rules should apply. And I tnink that under ordinary standing rules, if the defendants all say they won’t enforce the statute in the plaintiffs’ context, then there simply is no credible threat of enforcement and hence no standing. If the defendants subsequently attempt enforcement, I would think that at the very least estoppel would apply.

[MN2828]

But the defendants didn't say that. The defendants argued that they don't think that the law would apply to the plaintiffs (based on an exemption that seems inapplicable) but refused to say that they would not try to enforce it. The concurrence called out the state actors for this bit of gamesmanship.

As to the interpretation of the statute, the AGs interpretation is not binding even on the AG itself. The statute means what it says. If Michigan wanted to avoid these sorts of disputes, it should have included an express religious exemption, the way that Title IX does.

[ReaderY]

They don’t have to say they won’t enforce the law. They merely have to say they won’t enforce it against the plaintiffs.

As to the interpretation of the statute, it’s none of the federal courts’ damn business what the statute means unless there is standing. Witjout standing, it just doesn’t matter what it means.

If there’s no credible threat of enforcement, then there’s no standing. So if the attorney general is the individual sued, and the attorney general tells the court he won’t enforce, then absent particular evidence-based reason to think the attorney general is lying, there’s no credible threat of enforcement, and hence no standing. What the statute means just doesn’t enter into it, isn’t a matter that a federal court has power to consider, absent a credible threat of enforcement.

[Drewski]

It's basically the same fact pattern as Driehaus, so I disagree. It could just barely be distinguished but I don't think it should be. I honestly have no idea which is the better policy, but both cases should come out the same and one is controlling precedent.

[Soronel Haetir]

Why wouldn't the long-line fishing case be seen as vandalism or some other destruction-of-property wrong rather than theft? Regardless of the bin you put it in, the behavior was wrong.

[MN2828]

But it shouldn't be criminal. This should have been nothing more than a civil dispute between the two boat owners.

[mse326]

Basically every state has criminal statutes for destroying other people's property. How often they bring a case rather than leave it to civil courts is another matter.

[MN2828]

True. But this is a case that should not have been prosecuted, which was the concurrence's point.

[mse326]

Not prosecuting, and the act not being criminal are different things. That is why prosecutorial discretion exists. And importantly the concurrence is saying they shouldn't have been prosecuted because of their motives and ancillary actions, not because the action itself isn't potentially rightly prosecuted if those were different

[MN2828]

We are saying the same thing. My original point was that this situation should not have been treated criminally; albeit less than clearly stated. The prosecutor abused his discretion.

[ReaderY]

Is it the job of a federal judge to decide whether or not the prosecutor acted wisely? I don’t think so.

It may not meet the definition of theft as the defendants destroyed the property but didn’t remove it or take possession of it for themselves. And it may be the defendants had extenuating circumstances

But it’s by no means clear to me that the defendants didn’t commit a crime. Government can require you, in the absence of immediate harm to people, to report things to authorities rather than take vigilante action. And it can certainly require that you do some work to assure yourself that what is going on is really unlawful before you simply destroy things. I think it’s quite reasonable for government to say that in the absence of any immediate danger, vigilantes act at their own risk and if they are in the wrong, they are lianle for the harm they’ve caused.

I’m not convinced this prosecutor was being such a terrible person for prosecuting.

[Krychek_2]

Suppose a firefighter breaks a window to rescue a child from a burning builds. Suppose that this technically violates state law against breaking and entering.

It is possible for two things to both be true. First, the firefighter committed a crime. Second, any prosecutor who actually charges him is a complete moron who deserves to be publicly shamed, humiliated, doxed, harassed and held to as much opprobrium as possible.

[Noscitur a sociis]

I’m not defending this prosecution, but I do think you’re missing the important part where the defendants were wrong about what the situation was.

A better analogy might be something like, an FBI agent is trying to execute a search warrant to find a dangerous criminal, but accidentally searches a similar-looking house down the street…

[Krychek_2]

There might be exceptions but in general I don’t think people should be criminally prosecuted for innocent mistakes. It’s been a long time since I took criminal law but my recollection is that while mistake as to law is not an excuse, mistake as to fact is. Sued civilly, yes, but not criminally prosecuted.

[Noscitur a sociis]

The doctrine is that a mistaken belief of fact can negate criminal intent. So for instance, had the FBI agent genuinely (however unreasonably) believed that they were searching the correct house, that could negate the intent necessary to establish a breaking and entering or trespass kind of offense.

Here, however, even under the facts as the defendants apparently believed them to be, their conduct would still have been illegal (although obviously much more sympathetic).

None of which is to say that I think this is a good exercise of prosecutorial discretion of law enforcement resources, to be clear!

[Krychek_2]

OK, I think we agree that (1) technically a crime was committed and (2) the prosecutors were idiots for bringing the charges. I would go the next step and say the prosecutors should be roasted in the court of public opinion. If I were president, I would tell the US Attorney’s Office that they’ve got ten days to get the convictions vacated or I will not only issue a pardon, but a public statement that the prosecution was idiotic and people that stupid shouldn’t be working for the Justice Department.

Why shouldn't prosecutors who do stupid things be called out on it, in the loudest possible fashion? The consequences of a criminal prosecution can be devastating. Even if you win an acquittal, the mere fact of being charged tends to follow you around for life and can be financially ruinous. Giving prosecutors that kind of power to destroy lives should carry with it consequences, including public contempt and reputational damage, when they exercise it in a stupid way such as this.

[ReaderY]

First, Firefighters and similar authoized professionals are legally exempt from these laws. Second, the law gives ordinary citizens defenses like the necessity defense. If there is immediate danger to people, they get a defense from prosecution.

There was no necessity in this case. Nobody was in any immediate danger of any harm. And in the absence of any immediate danger, the law is entitled to require that would-be vigilantes first do their homework and check that what is going on is actually illegal before muscling in and taking vigilante action against it.

[Malika]

The prosecutors should have tried for non-felony misdemeanor charges in the interest of justice.

[Krychek_2]

My hypothetical explicitly said that the firefighter committed a crime under applicable state law. You just re-wrote my hypothetical, and changed the subject, all at the same time.

My central point is that just because a prosecution is legally possible does not mean it should go forward if doing so is stupid or unjust. And that prosecutors who do go forward with stupid and unjust prosecutions, even ones that are legally permissible, should be called out on it.

And I disagree that there was no immediate danger. How many more sharks would have been caught in the line?

[ReaderY]

There was no immediate danger to human beings.

[MN2828]

The actual result in the long-line fishing case was that the conviction was affirmed.

[John F. Carr]

Does the State of Texas have the right to a jury trial as a defendant in federal court? Or is that a right reserved to human beings like the co-defendant Governor Abbott?

[Davy C]

"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved..."

It doesn't specify that it's an individual right. But if there's not $20 at stake, it doesn't apply in the first place. According to the blurb here the feds were seeking equitable relief only.

[ReaderY]

Suits between states are equitable matters, not legal ones (or at least not common law ones), so no jury trial.

[John F. Carr]

"held in solitary confinement for 26 years"

If there is a "not a split-second decision" exception to qualified immunity, I think we found it.

[John F. Carr]

Now I understand why, about 20 years ago, a judge in the Ninth Circuit dropped an apparently irrelevant reference to marriage into an opinion. He was trying to pre-establish a right to same sex marriage. At the time I thought he was only going off on a tangent and signalling how a future case ought to be decided. But John Ross owes me a unicorn pony, and non sequiturs are the law.

[ReaderY]

It seems hard to me to see how the 9th Circuit’s approach can comport with standing doctrine. If, once they get a legitimate case on some topic, 9th Circuit judges are empowered to say anything they want on any topic whatsover and it becomes binding 9th Circuit precedent, standing has been completely bypassed.

[John F. Carr]

Concurrence in the shark case: "I am bound to consider only the single, narrow issue raised on appeal ... What’s more, they are felons for having violated a statute that no reasonable person would understand to prohibit the conduct they engaged in."

Translated, this means they should have brought a due process challenge in addition to a jury instruction challenge.

I remember another skeptical panel affirming a conviction in a fuel tax case. Dyed diesel is for off road use only because no road tax has been paid. Somebody put it in a road vehicle tank by mistake and the authorities jumped into action rather than let the defendant fix the problem. And it was indeed a violation of the letter of the law.

[Noscitur a sociis]

Re 19 (the fishing line case): I believe the court in fact affirmed the convictions, rather than reversing.

[Noscitur a sociis]

Re 15 (the Ninth Circuit binding dicta case): Judge Forrest writes,

Our treatment of dicta is contrary to our common-law tradition, the jurisprudence of the Supreme Court and all our sister circuits, and our proscribed constitutional role. It is within our power to get back on track.

But... is it really? Wouldn't any pronouncement that dicta is no longer binding itself be dicta?

[mse326]

Not if the dicta says one thing and they think it's wrong and rule that way.

1. Old dicta dictates outcome A
2. New En Banc thinks this is incorrect law
3. They can either overrule just that dicta OR overrule the binding nature of it as a way to not follow it
4. Profit (i.e. that decision to do away with dicta binding was necessary for the ruling so it isn't dicta)

[Noscitur a sociis]

But everyone agrees the en banc court isn’t bound by dicta any more than they’re bound by prior holdings. So I’m not sure that works. Consider this case:

1. Case 1 said in dicta that the first-to-file rule is jurisdictional.

2. The panel treated the first-to-file-rule as jurisdictional because Case 1 said that it was and they had to follow it.

3. Before the en band court, the only issue was whether or not to treat the rule as jurisdictional or not—and everyone agrees that they had the ability to choose either answer, regardless of what Case 1 said. Once they decided not to follow Case 1, it didn't make any difference whether the panel was required to follow it or not—so wouldn’t that make any comments on the subject dicta?

[mse326]

No because when saying a lower court/panel is reversed part of the ruling can be what they got wrong or why they got it wrong. So acknowledging the panel was following precedent but overturning said precedent, which would include the dicta as precedent part, is part of the ruling.

[JonFrum]

"Alabama allows individuals to change the sex designation on their driver's licenses but only if they have had gender reassignment surgery."

What the hell is wrong with Alabama? No amount of surgery can make a woman out of a man. Since when does the state lie on official documents?

[Davy C]

Many states will, if you dye your hair, allow you to list the dyed color on your license. There's at least some merit in having the license match your physical appearance.

[tuphat]

” … the Second Circuit has un-dismissed a lawsuit.” Yes, I know that “un-dismissed” is short way the kids have of saying that the lower court’s dismissal is being reversed, and that I am a curmudgeon, but: Do we really have to “un-” everything?

My very least favorite is when police “un-arrest” people. No such thing. They were arrested (full stop), and then they were released without charges.

[tuphat]

It ain't easy being green, but it's an absolute b-word to be transgender in the Eleventh Circuit.

[HankViam]

And the name of the malignant prick AUSA who prosecuted the boat crew is TOM WATTS FITZGERALD of the U.S. Attorney’s Office for the Southern District of Florida.

[Krayt]

Octogenarian, disabled, good-hearted Texas veterinarian spends his golden years responding by e-mail to questions from pet lovers worldwide. Texas: This cannot stand! Under Texas law, vets cannot provide advice to pet owners unless the vet has first met the pet in-person (or visited the pet’s home). A First Amendment violation? Fifth Circuit (2015): No. The First Amendment doesn’t protect “professional speech” at all. Fifth Circuit (2020): Our bad, turns out the First Amendment does protect professional speech. Case remanded for the district court to deal with all this in the first instance. Fifth Circuit (2024): The vet wins. Even under intermediate First Amendment scrutiny, Texas’s in-person examination requirement fails—not least because, under Texas law, “[e]xam-free telehealth, turns out, is fine for your Uncle Bernard, but not for your Saint Bernard.” Concurrence: And the requirement definitely fails strict scrutiny, which is the standard I think should apply here.

Florida boat crew believes it has stumbled on an illegal long-line fishing buoy. It pulls up the lines, cuts free several sharks, and even tells Florida Fish & Wildlife what they’d done. Whoops. Turns out the line was lawfully placed by marine researchers with proper permits. So the feds bring felony theft charges against the crew, who are convicted. Eleventh Circuit: Convictions affirmed.

That’s two items this week where government shits hate people who are kind to animals.