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Short Circuit: A Roundup of Recent Federal Appeals Court Decisions

Neighborly strolls, cannabis discrimination, and a thorough un-en-bancing.

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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: Midland County, Tex. hired a prosecutor to secretly moonlight as a paid law clerk for nearly two decades, helping judges decide his and his colleagues' cases—an "utterly bonkers" due-process violation and a "DEFCON 1 legal scandal." But over the "emphatic[]" dissent of six judges, who asked the Supreme Court to step in and resolve a "deep and enduring circuit split," the Fifth Circuit ruled this year that victim and IJ client Erma Wilson can't vindicate her federal constitutional right to a conflict-free trial until she first exhausts possible state-law remedies. Click here to learn more.

New on the Short Circuit podcast: There's something rotten in the Ohio Attorney General's office but the Sixth Circuit won't do anything about it (for now).

  1. Rhode Island's legislature decided to pay for maintenance on 13 bridges by charging tolls, but only on tractor-trailers and with a daily cap. That meant that 97 percent of vehicles did not pay the tolls. Further, only 19 percent of the tractor-trailers are registered in the state George Washington said "baffled all calculation." Is that a dormant Commerce Clause problem? First Circuit: The tolls themselves are constitutional, but the daily cap is evidence of protectionism in favor of local interests. And it is severable. So now all tractor-trailers pay unlimited tolls! (Something no party asked for.)
  2. Luke's family farmed water. Pinkie Pie's raised rocks. Well, another clan is trying to harness the inorganic resource of wind, 14 miles due south of Martha's Vineyard and Nantucket. Trouble is, some fishing folk don't like Vineyard Wind's operations and sued to shut 'er down under a smorgasbord of environmental protection laws. Can an old farmer catch a break? District court: The fishermen lose. First Circuit: Affirmed.
  3. In 2022, Connecticut adopted an attorney ethics rule based on ABA Model Rule 8.4(g), prohibiting lawyers from "[e]ngag[ing] in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, color, ancestry, sex, pregnancy, religion, national origin, ethnicity, disability, status as a veteran, age, sexual orientation, gender identity, gender expression or marital status in conduct related to the practice of law." Lawyers who claim the rule chills their speech sue. District court: I don't think any of the speech you want to engage in actually violates the rule, so you lack standing. Second Circuit: The test is whether it arguably violates the rule, so they have standing.
  4. In 2021, New Jersey enacted a statute prohibiting employers from refusing to hire job applicants based on cannabis use. Under that statute, does a job applicant have an implied remedy to sue Walmart for rescinding his job offer based on cannabis use? Third Circuit: Rights without remedies may have been a "monstrous absurdity" to our forebears but such monsters roam freely today. Dismissal affirmed. Dissent: I bet that the New Jersey Supreme Court (whose approach to implied remedies controls here) disagrees—we should have certified the question.
  5. If life were fair, something called Just Puppies v. Brown would be a rollicking animated adventure that teaches an important lesson about friendship at the end, but it is instead this Fourth Circuit case holding that Maryland's ban on dog sales from retail stores is neither preempted by federal law nor unconstitutional.
  6. In late 2020, Nasdaq proposed rule changes requiring each company listed on its stock exchange to (1) disclose its board members' gender, race, and LGBTQ+ status, and (2) have, or explain why it does not have, at least two members of its board who self-identify as female, an underrepresented minority, or LGBTQ+. The SEC approved the proposed rules. But the en banc Fifth Circuit (by a 9-8 vote) says they're a no go: The SEC can't approve rules unless they are designed to prevent fraud, protect investors, etc., and there's no evidence the diversity requirement has anything to do with that. Dissent: The SEC's rule-vetoing authority is much more limited. Nasdaq is a private company, and if its rules are no good, the market will figure that out.
  7. Do nonprofits whose members live, work, and recreate near an Exxon facility in Texas have a sufficient "personal stake" in curtailing Exxon's illegal emissions to bring a suit under the Clean Air Act, seeking civil penalties payable to the U.S. Treasury? Fifth Circuit (en banc): We granted en banc review 18 months ago to provide an answer and we still can't agree. So I guess we'll just un-en-banc this one and affirm the judgment below. Now here's 170 pages of us fighting.
  8. Street preacher leaves city-designated protest zone to better share the gospel with Brandon, Miss. concertgoers. But the chief of police gets out his handcuffs and orders her back. She complies. (Two members of her group are arrested.) City: So she doesn't have standing to challenge the protest-zone ordinance. Who knows if the chief was serious or if he'd decide not to enforce the ordinance in the future? Fifth Circuit: She has standing, but the ordinance is probably constitutional. [N.B.: Readers may remember another member of plaintiff's group, who is barred from challenging the ordinance because he's previously been convicted of violating it.]
  9. Rosenberg, Tex. officer stops elderly man taking a stroll through a residential neighborhood—not to arrest him, but to inform him of the importance of walking on the correct side of the road, which lacks sidewalks. The man tells the officer he's done nothing wrong and begins to turn away. The officer slams him to the concrete and arrests him. Man: I wasn't even on the wrong side of the road. I was legally crossing an intersection. Fifth Circuit (over a dissent): You can't just walk away from an officer. Qualified immunity.
  10. Some of you may think you have already learned all you care to know about the history of bricks or the definition of the word "collapse." For the rest of you, those with the souls of poets and scholars, we offer this (unpublished) Sixth Circuit opinion.
  11. According to the Sixth Circuit, the "canard" that a "foolish consistency is the hobgoblin of little minds" may have been fine and dandy for Ralph Waldo Emerson, but it "has no place in legal reasoning." What that means in this case is that Kentucky's lawsuit against the EPA concerning ozone standards won't be transferred to the D.C. Circuit and the EPA was arbitrary and capricious.
  12. Man and his minor son are touring a home with their realtor. Yikes! Wyoming, Mich. police order them out of the house at gunpoint and handcuff them. Turns out a neighbor confused the realtor with a different "young, Black man" that had been arrested for trespassing at the home a week before. District court: Qualified immunity all around. Sixth Circuit (unpublished): Reversed as to one officer, who knew right away the realtor was not the trespasser. Partial dissent: There shouldn't be QI on the gun pointing thing either. It is clearly established that officers shouldn't point guns at compliant suspects.
  13. State environmental agency sues Bay County, Mich. landowner for allegedly messing with wetlands on his property. State court preliminarily enjoins said messing and authorizes the agency to conduct inspections of the property. Agency officials do so, and take some water and soil samples. Landowner: Which was an unconstitutional seizure under the Fourth Amendment! Sixth Circuit (unpublished): Younger abstention! Take it up with the state courts. And no, it doesn't matter that a recent Michigan Supreme Court decision (an IJ case) means you probably can't actually get the relief you want in the state courts. #OurFederalism
  14. Eighth Circuit: Even if an arrestee is intensely annoying, officers must not punch, choke, or slap him—and certainly don't bash his head into a squad car—once he's been subdued. Grant of QI reversed.
  15. As fellow LAPD officers urge him to "hold up," officer shoots man, who'd been rampaging around a store attacking customers with a bike lock, in the back, killing him. One round goes through a wall and kills a 14-year-old girl. Ninth Circuit (unpublished): A reasonable jury might have a look at the video and decide that shooting the man was unreasonable. Denial of QI affirmed.
  16. Las Vegas police officers respond to reports of a man walking around a residential neighborhood with a machete late at night. When he refuses to follow their directions and advances towards them, the officers shoot and kill him—only to discover the "machete" was a handmade toy plastic sword. His parents sue. Ninth Circuit: Officers acted reasonably under the circumstances. Qualified immunity. Concurrence: The parents' substantive-due-process claim for companionship of a child also fails because that doctrine doesn't extend to a 44-year-old adult son. Dissent: I think a jury could find that this mentally impaired man wasn't a threat and shooting him was unreasonable.
  17. Father alleges that Douglas County, Colo. caseworker unconstitutionally took his 14-year-old son based on false and unsupported allegations. District court: Your complaint references one of the caseworker's affidavits, which makes the affidavit part of your complaint. And because according to the affidavit, everything was done by the book, you lose! Tenth Circuit: Hold up. That's some incorporation-by-reference jiu-jitsu, since the father referenced the caseworkers' affidavit because he was alleging that there were literal inaccuracies in the affidavit. Case undismissed.
  18. Florida woman sues Publix supermarkets after she allegedly slips and falls on "chicken juice" near the refrigerated section. Insurance investigators deny the claim and police later arrest her for criminal offenses including communications fraud. After the charges are dropped, she sues. Was there probable cause for the arrest? Eleventh Circuit (unpublished): Let's go to the video tape! Which shows the woman "suspiciously looking down at the floor, standing over a liquid, sliding her foot forwards and backwards through the liquid, looking around at other customers, and placing her right hand on the edge of the coolers before stepping forward, as if to brace herself for the fall she was staging."
  19. And in en banc news, the Ninth Circuit will not reconsider a panel opinion holding that a California death-row inmate stated a plausible due process claim that state officials violated his rights by failing to appoint postconviction relief counsel as required by California law. While the petition for rehearing en banc was pending, the inmate died. Though the case was now moot, the panel declined to vacate the opinion. Seven dissenting judges would grant review to vacate the panel's opinion—mootness notwithstanding—calling the opinion "plainly wrong" and "an affront to the principles of federalism."

Friends, have you ever dreamed of opening a restaurant in Philadelphia? Well, you're in luck, we've just produced a flow chart detailing all the questions you need to answer and the little pitfalls you might face. Have a look! Yikes! But there's good news. This week, IJ and the Philly mayor's office announced a partnership to identify and scrap regulatory barriers to entrepreneurship that aren't doing anybody any good. It's a part of IJ's Cities Work initiative wherein our team partners up with cities—completely free of charge—to make it cheaper, faster, and simpler to start a small business. Longtime readers may recall we've been a tad harsh on Philadelphia governance in the past, but we're always happy to provide robust policy recommendations and work with officials who want to do the right thing. Click here to learn more.