Short Circuit: A Roundup of Recent Federal Court Decisions

Private searches, threatening tweets, and constitutional abominations.

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

New on the Short Circuit podcast: The IRS hands out some excessive fines and the Ninth Circuit's dicta-is-law rule.

1. Are historic restrictions on gunpowder stores "relevantly similar" to the District of Columbia's 10-round cap on gun magazines? D.C. Circuit: "The suggestion . . . is silly." OK, what about bans on trap or spring guns? "This analogy is too generalized." Alright, stretching a bit here, but maybe Bowie knives? "[A]t this interlocutory juncture, the District has met its burden." Dissent: Long, long ago the Stuart kings disarmed Protestants.
2. Allegation: FBI agents violated Religious Freedom Restoration Act when they retaliated against Muslim Americans who declined to be informants by baselessly putting them on the No Fly List. District court (2015): You can't seek damages under RFRA. Supreme Court (2020): There's no atextual exclusion of a damages remedy in RFRA. Second Circuit (2024): How about an atextual qualified immunity bar to these claims instead?
3. Second Circuit (en banc): If a guilty plea could lead to denaturalization and deportation, lawyers must advise their clients of that fact or they're giving unconstitutionally ineffective counsel.
4. New York man uploads a file to his Gmail account containing an image with a "hash value" (a digital footprint assigned by Google) matching content that Google previously identified as child porn. Without inspecting the image, Google passes it along to the National Center for Missing and Exploited Children, which in turn passes it along to NY State Police without inspection. The police open it. It's child porn. Did they need a warrant to visually inspect the image when Google had already conducted a "private search" of its hash value? Second Circuit: Yes. "Human visual examination" of the image went beyond what could be learned by Google's hash-matching algorithm. But the good faith exception applies. Conviction affirmed.
5. Do project labor agreements that require workers be associated with a specific union violate the First Amendment? Third Circuit: We're not gonna tell you this time, but the plaintiff contractors definitely have standing to challenge Philadelphia's recent PLA policy. And they can go forward on their equal protection claims too.
6. This week's remake of Trading Places stars defendant election officials who argue the guys suing them—a couple political party entities—have standing while the guys themselves "sheepishly" suggest maybe they don't. That's because the guys would rather be somewhere else: in North Carolina state court. However, once the film begins you'll learn what an "embedded federal question" is (basically a state-law claim that entirely rests on federal law) and why, as the Fourth Circuit says, it means the case was properly removed and ain't going back.
7. Mississippi passes new law allowing the counting of absentee ballots mailed by election day but arriving in the mail up to 5 days later. Is this in accord with Congress designating a singular "day for the election" of federal candidates? Fifth Circuit: Once an "election" is over all ballots must be in the hands of election officials. In the mail doesn't count. Congress could legislate otherwise but it hasn't. Mississippi's law is preempted.
8. Questioned about unions, Tesla CEO Elon Musk opines in a tweet, "[W]hy pay union dues & give up stock options for nothing?" The National Labor Relations Board sees that as a threat to rescind stock options if employees unionize and orders him to delete the tweet. Fifth Circuit (en banc): "Deleting the speech of private citizens on topics of public concern is not a remedy traditionally countenanced by American law." Dissent: "Musk's coercive tweet was not 'constitutionally protected speech.'"
9. In 2022, a district judge finds Hinds County, Miss. officials in contempt of a federal consent decree after monitors report that a portion of its jail is essentially run by gangs. About 30 cells are used as dumpsters. Lights don't work. The majority of cell doors do not lock. Inmates regularly escape through the roof and return with contraband. Disliked inmates are assaulted, not allowed to eat. (Two such inmates are discovered emaciated and covered in feces and sores.) Hinds County: The real "constitutional abomination" here is the consent decree, which is the cause of all these problems. Fifth Circuit: The district court did not err in declining to terminate the consent decree, but it can't give a receiver control over the jail's budget.
10. Federal prosecutors in San Diego try to use civil forfeiture to seize a $1.2 mil bank account in Liechtenstein, a whole other country. Ninth Circuit: You can't combine the legal fiction of suing a thing with the legal fiction of worldwide jurisdiction. Due process requires more, and that trumps an expansive federal forfeiture statute saying otherwise. Dissent: But that argument was waived by the account owner, and we've always done it this way.
11. California will contract with private schools to provide education under the Individuals with Disabilities Education Act only if those schools are "nonsectarian." Orthodox Jewish schools and families sue, saying the blanket exclusion of religious schools violates the Free Exercise Clause. Ninth Circuit: Categorically excluding religious institutions from this public-benefits program seems pretty unconstitutional.
12. Can a local gov't sue a state gov't for violations of the U.S. Constitution? Huntington Beach, Calif.: Perhaps other places can't, but we are a charter city and not a political subdivision. Thus, we do in fact have standing to challenge a state law that requires us to allow new high-density housing. Ninth Circuit (unpublished): No standing.
13. Allegation: At private area in Tulsa airport, TSA agents require woman to lower her pants and remove what turns out to be a feminine hygiene product. She has a panic attack and is no longer keen on traveling by plane. False arrest? Intentional infliction of emotional distress? Tenth Circuit: The good news is that you can bring suits under the Federal Tort Claims Act for the actions of TSA agents. The bad news is you lose. Partial dissent: You can't sue over TSA agents' actions under the FTCA.
14. It's been said that "we are all textualists now." But how should the Tenth Circuit interpret the text of the U.S. Sentencing Commission's Guidelines Manual after it has "exhausted all sources from which interpretive guidance may be derived," is "convinced that the parties' respective interpretations are in equipoise," and fears that "by accepting either side's interpretation, [it] would be hazarding a mere 'guess as to what [the Sentencing Commission] intended'"? Tenth Circuit: Rule of Lenity to the rescue.
15. And in en banc news, the Fifth Circuit will reconsider its decision that it lacked jurisdiction to consider an appeal in which the appellant—challenging his conviction and sentence for illegal reentry after removal—filed a motion seeking summary disposition and a letter brief conceding that his argument was foreclosed by Supreme Court precedent (while preserving the claim for further review). The original panel held, over a dissent, that this was an "impermissible shortcut" that removed any adversity from the proceedings and thus deprived the court of jurisdiction.

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