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.

Friends, IJ is hiring. Come litigate the kinds of cases that made you want to go to law school. Positions are open at our offices in Phoenix, Austin, Seattle, and Arlington, Va. Click here to learn more and apply.

Comments

[Stupid Government Tricks]

Regarding #9 and the Seventh Amendment ...

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

It's never been amended. I believe it hasn't been incorporated against the states. Wikipedia says this:

Little historical evidence exists to interpret the amendment's reference to "twenty dollars", which was added in a closed session of the Senate and is often omitted in judicial and scholarly discussion of the amendment. A Harvard Law Review article described it as "mysterious ... of shrouded origin and neglected for two centuries", stating that "no one believes that the Clause bears on the right protected by the Seventh Amendment". According to law professor Philip Hamburger, the twenty-dollar requirement was intended to become obsolete by inflation, so that its application to more cases would be phased out gradually. $20 in 1791 is equivalent to $480 in 2023.
Congress has never extended federal diversity jurisdiction to amounts that small. Under federal law (28 U.S.C. §1332), the amount in dispute must exceed $75,000 for a case to be heard in federal court based on diversity of the parties' citizenship (the parties are from different states or different countries). However, civil cases may arise in federal court that are not diversity cases (e.g., in places like the District of Columbia that are federal jurisdictions), in which case the Twenty Dollars Clause may apply.

How do federal traffic tickets survive, like from park rangers? Is that because tickets are not suits at common law?

It sure looks to me like everyone ignores it because it's inconvenient. Even amending it away would be an admission that it actually meant something.

Has anyone ever actually tried challenging this?

[John F. Carr]

If traffic tickets are criminal they are petty offenses and defendants can be sent to traffic court instead of having a fair trial.

Ten or twenty years ago the Supreme Court of Wisconsin decided whether the state's right to a jury trial applied in noncriminal traffic cases. The justices looked back to how things worked in the mid-19th century and considered that a forfeiture is different from a fine is different from a sentence. Three justices said no jury, three justices said a proper 12 member jury, and the last justice produced the controlling opinion calling for a 6 member jury.

[Area Man]

A suit at common law is typically just one where someone is seeking to remedy a private wrong by receiving damages. If I hit you with my car, you could sue me for money damages. If we were diverse parties (and putting aside the jurisdictional threshold amount of $75,000.01), then you could bring suit in federal court. If the amount of damages you were seeking was $20.01 or more, then you could get a jury trial. If not, then you would not be entitled to a jury under the Seventh Amendment. Pretty straight forward.

[A Japanese Student]

Federal traffic tickets are misdemeanor prosecutions, for which 6A and Blanton v. City of North Las Vegas apply. And yes, there is currently a case at the SCOTUS challenging this. See United States v. Lesh (CA10 2024), Lesh v. United States (24-654) (distributed for 1/24/2025)

[Stupid Government Tricks]

Thanks, all. I wasn't particularly clear, either in what I saw as the problem or how I phrased the question. I guessed the bit about traffic tickets. What I was most curious about whether any court had opined on the $20 limit, but someone would have to sue in a Federal court for less and be denied a jury trial. That might have happened in a DC court way back when, when $20 was an appreciable amount, but I doubt it's happened in a long long time.

ETA there's also small claims courts, but those are state. I don't know what DC does; if they have small claims courts, can anyone dragged in as a defendant demand a jury trial?

[SRG2]

The Baltimore case looks like an abomination of a conviction.
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5498

I wonder whether this was one of those cases where I believe a jury, wrongly, thinks that better to convict just in case, he can always win on appeal if we're wrong.

[Krayt]

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.

Illogical. If you need a warrant to enter a yard without a gate, you certainly need one to open a gate and enter.

[SRG2]

Yes, but then you might have to rule against the police.

[MatthewSlyfield]

I tend to agree that a gate shouldn't make a difference, but the older case appears to be a fence with no gate not an open yard, in other words, the officer in the older case would have had to climb or jump over the fence.

[DixieTune]

They'll always find a way to distinguish the cases, so as to prevent the government from ever being held liable.

That's what statists do.

Meanwhile, private citizens don't get to make mistakes on the grounds that they were "reasonable."

[David Nieporent]

Private citizens absolutely do get to make mistakes on the grounds that they were "reasonable." What private citizens don't get to do is assert an immunity on the grounds that their mistakes were reasonable. If you admit you did X, but contend that it was reasonable for you to do X, the issue goes to a jury to decide. But for government employees who are accused of violating people's rights, they get multiple bites at the apple before juries are even allowed to consider whether the employees' actions were reasonable.

[ReaderY]

In the Virginia hemp case, the 4th Circuit says that the hemp product manufacturer plaintiffs lack standing either because they aren’t currently manufacturing henp products in Virginia or because they aren’t licensed in Virginia.

That strikes me, as someone who is (at least I think I am) fairly strict on standing, an insane decision. The reason for Plaintiff’s supposed ineligiblity is the law they are challenging. Those violating the law can’t get a license because they can’t risk violating the law (I assume they get inspected for compliance) those with a license have stopped their previous activities to come into compliance. Since their claim they want to resume manufacturing legally and injunctive relief will enable them to do so strikes me as very plausible, claiming they need both to be manufacturing illegally AND have a license to get standing both puts them in a catch-22 and just doesn’t comport with standing law.

Also, I agree with the merits result that neither federal law nor the constitution prohibits Virginia, as a distinct sovereign with its own views of things, from having stricter laws for its own citizens regarding what to make illegal to grow, manufacture, or sell if it wants to. And I agree that strict marijuana laws if a state wants them are as rational today as they were half a century ago. But I think federal judges should take a more neutral tone when addressing highly controversial topics. Rather than say things like “Virginia recognized a problem” with federal law, I might say “Virginia perceived a problem.” In cases like this, federal judges should recognize that other people and other sovereigns can perceive, and indeed many have perceived, things differently.