Short Circuit: A Roundup of Recent Federal Court Decisions

Hemp reform, private conversations, and police memes.

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: Major Questions about the SEC and dirt sampling without a warrant.

1. Going in the other direction from most states, in 2023, Virginia legislators outlawed certain products containing THC that are actually legal under federal law per Congress's 2018 "hemp" reform. Does that reform, or the dormant Commerce Clause, nullify the new state legislation? Fourth Circuit: No standing for some aspects of the challenge but likely to lose on the rest anyway. No preliminary injunction.
2. To receive certain assistance from the Small Business Administration one must be economically and socially disadvantaged. Members of certain racial groups have a "presumption" that they are socially disadvantaged. Disabled vet business owner is twice denied assistance. He sues on the grounds that he wouldn't have been but for his race. District court: A speedier litigant has already obtained an injunction in another circuit, so this case is moot. Fourth Circuit: But that case isn't final yet, so this case is not moot. Except it doesn't really matter because the complaint fails to allege standing.
3. Allegation: Raleigh, N.C. high schooler runs for junior class VP. Three other Black students run for sophomore rep. Mysterious Twitter accounts then surface promoting the election but not mentioning these Black candidates. Plus, the Black candidates' campaign materials are defaced around the school. Once the ballot appears the Black candidates aren't on it. Because of this and various other fiascos the election is delayed and redone, but of the four Black candidates only the prospective VP runs again. The delay leads to cyberbullying of her, various rumors, and bomb threats. The student newspaper has a cartoon of a cockroach saying its kind is underrepresented. School officials don't do much to address all this. The VP candidate loses the election and continues to suffer harassment. District court: I don't see anything here to support your Title VI and equal protection claims and I won't let you amend your complaint either. Fourth Circuit: The claims are supported and she can amend her complaint.
4. Virginia nurse says she can't take the COVID-19 vaccine based on her study of the Bible and personal direction from God. She asks her employer for a religious exemption. It's denied. She claims other employees received religious exemptions who had more "conventional beliefs." District court: Saying your body is a temple ain't enough. Fourth Circuit: If that's what you sincerely believe, then—at this stage of the case—it is. Undismissed. But who knows if she'll win on remand.
5. The sole basis for a Baltimore man's murder conviction is the testimony of a 12-year-old—who later recants, saying that police threatened to take him away from his mother forever and refused to let him leave until he identified the man as the shooter. State court (1999): Nah, the recantation isn't believable. State court (2018): He's consistently recanted since becoming an adult. New trial. Without witnesses or evidence, the state frees the man after 31 years behind bars and gives him $3 mil. District court: But he can't sue the police for any misconduct thanks to that first state court decision. Fourth Circuit: Yes, he can, thanks to the second state court decision and because it would be unfair to prevent him from litigating these civil claims. Plus, here's the rare case where an intentional infliction of emotional distress claim can go forward.
6. San Benito, Tex. officer opens closed gate, enters quinquagenarian man's fenced front yard, and arrests him. Fifth Circuit (2023): Could be false arrest. Even if there was probable cause to arrest him for something (the man had been making rude comments and gestures to neighbors), a warrant was needed to enter the curtilage. Fifth Circuit (2025): But a reasonable officer might not have known that. The prior case is about a fenced back yard without a gate. Qualified immunity.
7. Clinton, Iowa man has a ruff day. First, he's pulled over for driving a car with overly tinted windows, then he's arrested when a drug dog alerts, and then his clothes and house are searched, revealing drugs and guns. Woof; he's sentenced to 17.5 years. Eighth Circuit: The stop was pawsitively fine. Police didn't prolong the stop for the dog sniff, the dog completed bone-a-fied certification programs, and the alert was sufficiently reliable. But remand for new sentencing given intervening caselaw.
8. Eighth Circuit: A regulation that says you can't build a house without paying to connect to the city's water system doesn't deprive you of the ability to build a house. It just forces you to connect to the city's water system.
9. Ninth Circuit: There are interesting questions about when the Seventh Amendment requires a jury trial, but one time it absolutely does not is when a defendant explicitly waives its right to a jury trial in writing, like you guys did in this case. Concurrence: Also, our circuit has gotten some of those interesting questions wrong, which we should fix when we get a chance.
10. Oregon law prohibits unannounced recordings of oral conversations unless the recording is of a conversation during a felony that endangers human life or a conversation in which a law enforcement officer is a participant, if other conditions are met. Project Veritas—which has made a name for itself through hidden-camera recordings—challenges the law as a content-based restriction on speech. Ninth Circuit (2023): Quite right. Ninth Circuit (en banc, over a dissent): Quite wrong.
11. In 2019, a Tulsa, Okla. activist digs up years-old memes posted on Facebook by newly hired Tulsa police officer. One, for instance, depicts Donald Trump riding a lion with a Confederate flag in the background. And when the police dept. starts receiving calls from upset citizens, it immediately fires the officer. He sues for First Amendment retaliation. Tenth Circuit: And his claim should go forward. You generally can't resolve these cases at the motion-to-dismiss stage.

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