Short Circuit: A Roundup of Recent Federal Appeals Court Decisions

A mashgiach minister, a spicy habeas, and a Madlibs macro.

New on the Bound By Oath podcast: When a SWAT team blows up an innocent person's house, who should foot the bill for the damage? The public! Since 1872, the Supreme Court has consistently said that such damage is a taking requiring just compensation. Which was also the rule at common law. Plus, what might state constitutions have to say about the matter?

• Anti-abortion groups challenge New York labor law that prohibits them from discriminating against employees based on whether they've had an abortion (or any other reproductive-health decision). The groups also object to having to include information in their employee handbooks about rights/remedies under the law. Second Circuit: The groups may have an expressive-association claim, which needs more development, but the handbook claim fails.
• If you're the sort who reads Short Circuit on the regular, you've probably already consumed all manner of hot- and lukewarm-takes on the Second Circuit's decision upholding an NYC jury's verdict that Donald Trump defamed E. Jean Carroll.
• West Virginia parents of schoolchildren challenge the state's vaccination requirement for students attending public, private, or parochial school, arguing that it violates the Free Exercise Clause. The district court abstains, reasoning that state courts should first analyze the law under the state's recently enacted Equal Protection for Religion Act, which became effective the month after the suit was filed. Fourth Circuit (over a dissent): Which was error. Abstention is the exception, not the rule!
• Truck driver subject to a domestic violence restraining order is arrested for possessing a gun, in violation of federal law. He challenges the law as facially unconstitutional and wins … until the Supreme Court vacates and remands his case for reconsideration in light of Rahimi. Fifth Circuit: And his facial challenge cannot prevail. The district court should take another look at his as-applied challenge—and there are some as-applied challenges that might succeed (though we wouldn't hold our breath in this case).
• Man convicted of murder in Mississippi state court argues several jurors were struck based on their race and the prosecution's alternative reasons don't add up. District court: This looks bad! Fifth Circuit: The Mississippi Supreme Court already said this argument was waived and who are we to judge a state court when it comes to federal constitutional rights? Habeas denied.
• Man convicted of manufacturing spice (the illegal kind, not melange) in Mississippi federal court appeals pro se; he's dismissed for want of prosecution. He then files a habeas petition in district court. Meanwhile, though, he successfully moves to recall the appellate court's mandate, gets an attorney, the Fifth Circuit (2021) affirms his conviction and SCOTUS denies him cert. Then he files another habeas petition in district court. Is that a "second or subsequent" petition? Fifth Circuit (2025): Weird facts, so no, treat it as a first petition.
• Are broadband providers a telecommunications provider under the Telecommunications Act of 1996, thus subjecting them to so-called "net neutrality" rules? Under Chevron, federal courts just had to ask the FCC. Sixth Circuit: But in the wake of Loper Bright, we actually have to read and interpret the law. And the answer is no.
• Montana man pleads guilty to assaulting his girlfriend in 2013. In 2018, he's found in possession of firearms. He's charged and convicted of violating federal law, which prohibits gun possession by anyone convicted of a "misdemeanor crime of domestic violence." Ninth Circuit: Vacated. Federal law applies only to convictions where use of force is an element, but Montana's law can be triggered by emotional abuse. Applying the Supreme Court's "categorical approach," the conviction can't stand. Concurrence 1: But this is a pretty messed up result that Congress or the Montana Supreme Court could do something about. Concurrence 2: The categorical approach is pretty messed up in general and the Supreme Court should reconsider it.
• A משגיח (mashgiach) is an Orthodox Jew who supervises food preparation to make sure it's kept kosher. But is one who sues his former employer over employment-related claims also a "minister" for purposes of the ministerial exception (which categorically bars certain employment-related claims against religious organizations)? Ninth Circuit: Yes; the ministerial exception takes a "broad" view of who counts as a minister. Concurrence: Yes, even though the ministerial exception actually isn't necessarily as broad as the majority says.
• An Idaho inmate claimed other inmates would attack him, exhausted the grievance process, was returned to his cell—and other inmates attacked him. He sues, alleging Eighth and Fourteenth Amendment violations. Does the Prison Litigation Reform Act bar the suit because he failed to file and exhaust another grievance after the attack? Ninth Circuit (over a dissent): Under the "continuing violation doctrine," which we now adopt, a properly exhausted grievance asserting continuing harm exhausts future events arising from that harm. The inmate's suit against prison officials can proceed. Reversed in part and remanded.
• Firearm instructor purchases a Glock pistol modified to prevent its safety from re-engaging after firing a round. Yikes! He drops the gun during training, it shoots, and he loses a leg. The instructor sues Glock arguing, inter alia, that the gun is unreasonably dangerous. Tenth Circuit: Glock's warning and testing instructions adequately warn that modified guns may cause unintentional discharge.
• Alabama State University pays its athletic director (a woman) $135k, and, once she quits, pays her replacement (a man) $170k. Eleventh Circuit: Which isn't sex discrimination given the non-sex-based reasons for the difference: He had more relevant experience (13 years v. 2 years) and more education (a PhD v. a master's degree). Dissent: Should've let a jury figure it out, particularly considering the decisionmaker's gendered comments when she asked for a raise.
• Upon finding an unconscious inmate, corrections officers respond. He arouses and becomes combative, and it ultimately takes officers 20 minutes to restrain and get him into a wheelchair and to the medical treatment room. They do not stop to let two nurses on the scene help, nor do they check his pulse—and he has no pulse upon arrival to the treatment room. He dies. Eleventh Circuit: Totally reasonable response. Dissent: Video shows that officers applied force for at least 20 minutes, leaving him face down and throwing up while handcuffed and not resisting. And rather than see if he was okay, they took their sweet time getting him to the medical treatment room. A jury should've determined if the officers were deliberately indifferent.
• And in en banc news, the Fifth Circuit will not be quickly escalating to the en banc stage a challenge to a Louisiana law requiring displays of the Ten Commandments in public school classrooms. Instead, the case will be heard by a three-judge panel on its already expedited basis later this month. Three judges noted they voted in favor of an initial hearing en banc but did not issue a dissent. What was issued—and was on the Fifth Circuit's website for at least a day—was the order plus a Madlibs macro that assumedly was prepared before the votes came in. It read (p. 5-6 of pdf, without any edits by Short Circuit staff) "In the en banc poll, [enter number] judges voted in favor of hearing [list judges' last names], and [enter number] voted against hearing [list judges' last names]."
• And in more en banc news, the Fifth Circuit will not reconsider a panel opinion denying qualified immunity to an Austin, Tex. officer for the death of a suspect following a high-speed chase. Eight judges would have granted en banc review, nine would not, and once again no one noted their reasons. But no Madlibs this time.
• Friends, last week's edition contained a damnable mistake. In the case of the Aurora, Ill. officer who leg swept and punched a man at a traffic stop, it was a jury who decided the punches were not excessive force. Rather, the Seventh Circuit (over a dissent) held that several other claims were properly not presented to the jury because dashcam videos definitively show that the man was fleeing from police. The staff regrets the error. Phooey.

Onward! This week the Ninth Circuit revived a challenge to an abusive system of fines. Humboldt County, Calif. issued fines reaching into the millions of dollars for code violations that property owners did not even commit. County staff threatened rapidly escalating fines based on sometimes-years-old satellite images without on-the-ground investigations, accusing owners of unlawful cannabis cultivation any time they suspected an unpermitted building or greenhouse. IJ filed suit on behalf of a number of property owners but the district court dismissed the case. Now with the Ninth Circuit's reversal (in two opinions), the fight against the outrageous conduct can move forward.