Short Circuit: A Roundup of Recent Federal Court Decisions

Foreign adversaries, abortion trafficking, and Virginia's readmission.

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

New case: In 2023, South Carolina enacted a law providing $6,000 education scholarship accounts for low-income families to be used for a virtually unlimited number of education expenses: textbooks, tutoring, homeschool materials, therapies, and tuition and fees at private and out-of-district public schools. But in response to a recent state supreme court ruling, officials have barred families from using the ESAs for private school tuition. So this week, IJ filed a petition in the South Carolina Supreme Court, arguing that the new policy falls afoul of two bedrock, towering, and monumental U.S. Supreme Court cases: Meyer v. Nebraska, which recognized the right of parents to direct the education of their children; and Pierce v. Society of Sisters, which held that this right includes the right to send one's children to a private school. Click here to learn more.

New on the Short Circuit podcast: Chicago attorney Patrick Eckler joins the podcast to share a trainwreck of a Seventh Circuit oral argument.

1. Concerned that China is collecting information on American citizens and covertly influencing them through the social media app TikTok, the United States enacts the "Protecting Americans' Data from Foreign Adversaries Act of 2024," which prohibits data brokers from transferring information on U.S. residents to any entity "controlled by a foreign adversary." TikTok and content creators sue, alleging the law violates the First Amendment. D.C. Circuit: This is the rare law that survives strict scrutiny. Concurrence: We don't have to go that far because it is only subject to intermediate scrutiny.
2. Convicted felons challenge their disenfranchisement under Virginia law, alleging that it violates the Virginia Readmission Act, an 1870 federal statute that allowed Virginia to regain its representation in Congress after the Civil War. Virginia officials: We have sovereign immunity, and Ex parte Young doesn't apply to this kind of case. Fourth Circuit: Can you point to any case holding that Ex parte Young is limited in that way? Virginia officials: Nope. Fourth Circuit: Then there's no sovereign immunity.
3. What does it sound like when the genteel Fourth Circuit is mad as hell? "We deal here with the unfortunate instance of a district court failing to follow our clear mandate to dismiss the state law claims against the school officials in this case." So says the court in (re)granting state-law official immunity to North Carolina public school officials who failed to intervene when an elementary school teacher abused an autistic first grader, reaffirming its prior 2022 ruling and emphasizing: "We meant what we said the first time."
4. A tragic case arising from a Baltimore County, Md. jail suicide reaches the Fourth Circuit in its third interlocutory appeal. But this decision isn't on the merits, instead addressing whether this third trip was premature. It was, because the district court still hasn't fully resolved the motion for reconsideration that is the subject of the appeal. Appeal stayed until the district court finishes up. (And check out footnote 3 for a lowkey creation of a circuit split.)
5. Texas wants to string concertina wire along part of its border with Mexico, but the U.S. Border Patrol keeps removing it. So Texas sues to stop them and for a preliminary injunction. Fifth Circuit (over a dissent): Which we grant. The feds are enjoined from removing the wire fencing except in instances where they lack the necessary access to both sides of the fence for immigration law enforcement and emergency purposes.
6. "Two households, both alike in dignity, in fair Gary, Indiana, where we lay our scene." Hard to credit, we know, but the Seventh Circuit resisted that opening line in this (concededly grim) opinion about two rival car washes (and possible fronts for drug dealing), which features one of the car-wash owners' being killed with an AK-47, a lot of disturbing chaos, and a life sentence affirmed. Also some stuff chiding the gov't for ignoring circuit precedent on standards of review.
7. This class-action lawsuit challenging the treatment of prisoners with gender dysphoria by the Illinois Department of Corrections takes a sharp turn towards the procedural in this Seventh Circuit opinion about whether the district court could retroactively change its preliminary injunction into a permanent one. Short answer: No. As for why it matters? Because, evidently, the Prison Litigation Reform Act provides that preliminary injunctions expire automatically 90 days after their issuance unless the district court makes certain findings about whether the injunction is narrowly tailored. Which the district court didn't do here.
8. Little Rock, Ark. detective obtains a no-knock warrant after informant makes cocaine purchase at plaintiff's home. A SWAT team barges in. Yikes! No cocaine. Turns out the informant might not have been on the up and up. Eighth Circuit: It's not clearly established that calling in SWAT when there is no need for SWAT violates the Constitution. Just like we said last time.
9. Allegation: During Kansas City, Mo. George Floyd protest, officer fires white smoke projectile rounds into unthreatening crowd and strikes plaintiff, permanently blinding him in one eye. Eighth Circuit: But the officer wasn't trying to single anyone out or intentionally trying to hurt anyone, so these constitutional claims fail.
10. Idaho criminalizes "abortion trafficking," which it defines as "procur[ing] an abortion" or an abortion drug for an unemancipated minor without her parents' consent "by recruiting, harboring, or transporting" the minor. District court: There's a lot wrong with that, preliminarily enjoined. Attorney General: I'm appealing, but only as to jurisdiction. Ninth Circuit: There's jurisdiction and the law is OK when it comes to "harboring, or transporting." But we'll keep things enjoined for the "recruiting." Concurrence: I thought all we were talking about was jurisdiction, and I don't see none.
11. Separately, Idaho penalizes doctors who "assist" with abortions. State legislator: Hey Attorney General, what's that mean? AG (on official letterhead): It includes referring a patient to someplace out of state where abortion is legal. Plaintiffs: That's a First Amendment violation. AG: You know, I get that my name was on that letter, but it was drafted by my assistant [who is now under a bus] and who cares what I think anyway, I'm just some guy, you know? Ninth Circuit: You're the state's chief law enforcement officer, and the law is enjoined.
12. While the loser in a Ninth Circuit decision seeks certiorari, the mandate issues and the case returns to the district court, where the parties agree to stay proceedings pending resolution of the cert petition. District court: No can do, with the mandate issued I must press forward to trial. Parties: Oh no! Would the Ninth Circuit please recall the mandate to get us out of this jam? Ninth Circuit: No, recalling the mandate is only "a power 'of last resort,'" and this was all foreseeable. But we never said the district court can't stay the case, so give that another go.
13. Several members of a Miami-based gang, including an individual with the prescient alias "The Real Rico," are convicted of doing the RICO (among other things). Was the lower court wrong to exclude an expert's testimony that the defendants were merely a "bunch of yahoos running around" rather than members of an organized criminal enterprise? Eleventh Circuit (over a partial dissent): Yep, and the gov't doesn't address whether the exclusion was harmless error. We are not combing through a nearly 8,000-page trial transcript to do so sua sponte. RICO convictions set aside and remanded.
14. And in en banc news, the Eighth Circuit will reconsider its decision that a Springfield, Mo. school district did not violate the First Amendment when it compelled employees to attend "equity training" where they were required to complete online quizzes parroting the district's views, even if they disagreed with them, and were told they were "wrong" and "confused" when they expressed opinions like "Kyle Rittenhouse acted in self-defense." The panel held that the plaintiffs' alleged self-censorship was based on fears that were too speculative to raise a First Amendment claim.
15. And in state court news, the North Carolina Court of Appeals has struck a blow for freedom and good sense, undismissing a bevy of state constitutional claims against a Jacksonville, N.C. ordinance that bans food trucks in 96 percent of the city and makes operating them in the other 4 percent needlessly difficult. City council members have openly said the purpose of the ban is to benefit restaurants, which is just the kind of impermissible preferential treatment that the North Carolina Constitution forbids. Three cheers for a rule of law that protects the right to earn an honest living! To the merits! (This is an IJ case.)

For years, the Pasco County, Fla.'s sheriff's office used a glorified Excel spreadsheet—an "algorithm" based on entirely arbitrary inputs—to identify people they thought were likely to commit future crimes (many of them kids). Then they subjected their families to relentless harassment in the express hope of forcing them to move out of the county. Deputies conducted suspicionless "checks," confronting people at home, including at night, peering in windows and banging on doors. They confronted people at work and harassed colleagues and friends. Officers manufactured bogus criminal charges and blitzed people with unwarranted civil citations. It was evil. (So much so that the inventor of the "focused deterrence" theory that officers—wrongly—thought they were applying volunteered to serve as our expert witness and was brought to tears by what these officers were doing, routinely, to kids.) But this week, after three years of litigation, and on the literal eve of trial, Pasco County Sheriff Chris Nocco threw in the towel. The county agrees with us that they violated the Constitution and has entered into a court-enforceable promise never to do anything like that again. If it does—or if some other department tries this kind of "predictive policing" elsewhere—we will nuke them into the sun. Click here to learn more.

Comments

[John F. Carr]

Car wash case admonishing the government: "We are running low on patience with the lack of adherence to our precedent in this area." To make this effective the court could conclude "Therefore, we order the defendant released and the government's appellate attorneys to serve his life sentence instead." The Supreme Court might reverse. That's OK. Locking them up for the time it took to file an emergency application would be sufficient to get their attention.

As for the merits of the case, it's a typical case of manslaughter elevated to murder by the felony murder doctrine. The presumptive sentence for murder in the course of a drug offense is life. The trial judge declined to go lower despite an application note allowing felony murder to be punished less harshly than murder murder. I think the sentence is too harsh, but that's the result of my disapproval of the felony murder doctrine.

[Dr. Ed 2]

Wouldn't this be grounds for legal sanctions?

I like the spirit, but aren't there limits?

[John F. Carr]

I don't know how one sanctions a federal judge for making a bad decision.

[Syd Henderson]

I assume the Pasco County precogs are now free to live their lives well away from Precrime.

[John F. Carr]

In the border wire case, the trial judge's findings of fact were very important. His factual findings suggest that border patrol agents were cutting the wire to facilitate illegal immigration rather than enforce the laws. Another view of the facts might not have justified an injunction.

The legal question was whether the APA's waiver of sovereign immunity applied, and if so whether the INA's unwaiver of sovereign immunity applied. Two judges said yes and no. A recent Biden appointee said no and yes.

[John F. Carr]

In the precrime case, there are only four beneficiaries of the settlement agreement. If they die or move out of town there is nobody left to enforce it.

Also, nuking something into the sun is very hard. That's how orbital mechanics works. You'd think it is all downhill, but it isn't.

[Zarniwoop]

Yep, orbital mechanics is unquivocal that it's easier to nuke something out of the solar system than into the sun. And both are hard.

But it's comparatively easy to take off and nuke the site from orbit. It's the only way to be sure.

[jimc5499]

Google "Project Orion". It's kind of easy it you want to.

[Dr. Ed 2]

Other than mass, the only difference between the Sun and Earth (above the atmosphere) is that the Sun has the Solar Wind. But if that is strong enough to prevent de-orbiting, then it is also strong enough to preclude orbit in the first place.

In other words, you have an object traveling fast enough to orbit -- fast enough not to crash but slow enough not to escape the Sun's gravity. If you fire a retrorocket to slow it down, it will have to crash because if the Solar Wind is strong enough to keep it up at a slower speed, it also would have blown it out of orbit in the first place.

What am I missing here?

[BrotherMovesOn]

What the Scarecrow was missing?

[John F. Carr]

The solar wind is not strong enough to have a meaningful effect on orbits. Solar activity affects low earth orbit indirectly by causing the atmosphere to expand and contract.

[Commenter_XY]

What is: do sua sponte? (#13 above)

[Noscitur a sociis]

Sua sponte is Latin for “of his/her/their own accord”. In other words, since the government didn’t argue the error was harmless, the court isn’t going to take the time to figure out on its own whether it might have been.

[Dr. Ed 2]

Other way around -- sua sponte would be the court deciding to go through the 400 pages on its own accord, and the court said that it wasn't going to do that.

[BrotherMovesOn]

Ummm ... that's what Noscitur said.

[Dr. Ed 2]

"In other words, since the government didn’t argue the error was harmless, the court isn’t going to take the time to figure out on its own whether it might have been."

The court acting of its own accord would be the exact opposite of this. A court is still a singular -- or have they become gender fluid as well?

[Kazinski]

Is threatening to nuke a county or law enforcement agency into the sun a true threat?

[BrotherMovesOn]

If it's from a Lex Luthor or Thanos type, you bet it is.
But then there's the problem of apprehension.

[Dr. Ed 2]

Is it something that the county or law enforcement agency realistically thinks that one is going to do, or could do?

I am thinking the definition of "assault" in Massachusetts law here -- realistic fear of an imminent battery, or something like that.

[JoeFromtheBronx]

Meyer and Pierce involved the right to teach a foreign language or go to a private/parochial school.

The right to equal public funding is a separate matter. The government can choose to only fund government programs.

Recent cases held (however one accepts their logic) that the government cannot selectively refuse to fund religious schools in various respects if they fund non-religious schools.

But, the government here is not doing that. They are not funding "private" schools. Now, maybe this is bad public policy. But that is separate from it being unconstitutional under the older cases.

The summary references tutoring and homeschooling. So, apparently, not all non-governmental schooling is covered. But there are likely reasonable grounds for that classification. Since homeschooling often leans conservative/religious, the exception does not have an obvious ideological slant.

The denial arises from a state constitutional ruling. Many here seem to appreciate given states discretion over educational policy. Should the federal courts intervene here?

[Dr. Ed 2]

"The denial arises from a state constitutional ruling. Many here seem to appreciate given states discretion over educational policy. Should the federal courts intervene here?"

Trinity Lutheran onward all involve state Blaine amendments to their constitution -- with the exception of the Maine case which was just bureaucrat fiat.

Remember that the Federal Blaine amendment failed in the Senate. So you have state constitutions which conflict with the US Constitution -- and that is a legitimate Federal court issue.

[Dr. Ed 2]

"The county agrees with us that they violated the Constitution and has entered into a court-enforceable promise never to do anything like that again. If it does—or if some other department tries this kind of "predictive policing" elsewhere—we will nuke them into the sun."

Well you will be nuking just about every college and university in the country because this is what the Behavioral Intervention Teams do, and they've been around for 15 years now -- and are considered "Best Practices" in higher education.

I'm not holding my breath for the nuking...

[David Nieporent]

Narrator: in fact, that is not what any college or university does.

[Dr. Ed 2]

Oh, really?
Do they know that???

[Noscitur a sociis]

I would have to imagine that they do, in fact, know that they don’t do that.

[Dr. Ed 2]

My experience is that, outside of the people actually involved in doing it (and their clerical staff) they don't know they are doing it.

[Dr. Ed 2]

Actually, this issue is currently before SCOTUS -- Speech First, Inc. v. Whitten. See: https://www.supremecourt.gov/docket/docketfiles/html/public/24-361.html

[David Nieporent]

I'm scared to ask what "this issue" Dr. Ed thinks he's referring to and how it's relevant to the case described in the OP.

[ReaderY]

In the North Carolina case, the Court of Appeals only said the plaintiffs had stated a claim and were entitled to introduce facts to support it, not that their allegations were true. The City might, at trial or summary judgment, be able to show that there is a rational basis for distinguishing between restaurants and food trucks, and hence that the ordinanc is not as completely arbitrary as the plaintiffs are claiming.

For example, food trucks are cheaper in no small part because they rely on the City and its property and services for many of the functions that restaurants have to pay for themselves, including a location for their businesses and their customers (restaurants even have to pay property taxes), garbage collection and disposal (restaurants have to pick up their customers’ garbage and put it in their own containers for removal; food trucks don’t) etc.

That might turn out to be a non-arbitrary reason for preferring them.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

I was in school when Obama tried to give out education money. Fellow classmates did not go to class and used the aid for rent.
What a terrible idea that was. Want money? Just look like you might maybe be trying to get a degree.

[ReaderY]

You’re saying that since if you leave matters to private individuals unsupervised some of them will commit fraud, private property should be abolished? There are plenty of examples of private businesses and executives committing fraud. So no corporations? No banks? No financial industry? None of this business of people being permitted to make private arrangements entrusting things to others? Your proof is equally good for the one as for the other.

[Dr. Ed 2]

There often is significant fraud in all programs where the Feds hand out money. For example, there is significant fraud in the SNAP (Food Stamps) program -- my personal favorite was the small store that got caught when someone noticed that it was redeeming considerably more than the Super Shop&Save a half mile away, and that its purported Food Stamp sales exceeded the gross of all sales at the Super Shop&Save....

I have heard of the "cash & run" scam before -- sometimes the colleges are at least tacitly involved in arranging for loans to "students" whom they know will never attend, e.g. homeless people.

[ReaderY]

I’m just pointing out that the existwnce of thieves who steal from X doesnmt prove X is a bad idea. Thieves exist under every system and will steal from any program. Privatizing everything isn’t going to get rid of thieves.

It’s like arguing that there shouldn’t be any stores because shoplifters, or any executives because embezzlers.

[ReaderY]

The right to establish and maintain private schools under Meyer is no more a right to do so at public expense than the right of abortion under Roe was. The Supreme Court upheld amendments restricting public funds and letting the public decide how to spend its money even at the height of the Roe era.

I see no reason why conservatives’ values and priorities ahould be treated any differently from liberals’ were when liberalism was on the ascendency in the courts in this regard.

Those who don’t like what the public has to offer in the way of education are entitled to do it privately. But they are not entitled to have the public pay for it.