Short Circuit: A Roundup of Recent Federal Court Decisions

Crypto rules, false statements, and regulatory habitats.

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

Friends, 2025 marks ten years of Short Circuit. That's right, our first newsletter went out February 13, 2015, and our first podcast two weeks later. To celebrate, we're putting on a show—and hosting a party. The best part is that you're invited. It's Thursday, April 3, 2024, at 7pm at the Studio Theatre in Washington, D.C. You'll hear about how it all began, see a Short Circuit Live podcast recording, and learn about the future of the federal courts of appeals. Plus, free food and drinks. And in addition to several of us at IJ, you'll hear from retired judges Diane Wood (CA7) and Kent Jordan (CA3), Adam Liptak of The New York Times, Prof. Eugene Volokh, Dean of #AppellateTwitter Raffi Melkonian, and our old friend Clark Neily, now at Cato. Register here today!

1. Allegation: New York inmate complains of urinary symptoms that, unknown to him, are telltale signs of prostate cancer. Prison doctors don't investigate and instead treat him for benign enlarged prostate. He's paroled in 2019 and in 2021 discovers that he has late-stage prostate cancer. He sues, alleging that the cancer should have been caught and treated earlier while he was incarcerated. Second Circuit: And his claims should not have been dismissed as untimely. Dissent: He knew he had a serious medical problem when he was incarcerated, even if he didn't know it was cancer. His claims should be barred.
2. Cryptocurrency trading platform asks the SEC to promulgate rules clarifying how and when federal securities law apply to digital assets like $HAWK coin or pictures of monkeys. The SEC demurs, deciding that it would rather explain the law through the process of suing companies it thinks have violated it. Third Circuit: We won't order rulemaking, but the SEC needs to provide a better explanation for this enforcement-based approach. Concurrence (Judge Bibas): The old regulations are a poor fit for digital assets, and the SEC's enforcement strategy raises constitutional notice concerns.
3. A Kenyan national residing in Lancaster, Penn. faces a deportation order based on 2014 and 2019 felony convictions for vehicular fleeing a police officer. On appeal, the man argues that his convictions are not crimes involving moral turpitude (CIMT) that trigger deportation. Following oral argument before a panel, the Third Circuit votes for en banc rehearing and requests supplemental briefing. Eh … never mind, un-banc'd and remanded to the panel, which grants the man's petition after holding that neither offense qualifies as a CIMT.
4. Third Circuit (Jan. 2024): It's unconstitutional to prevent 18–20-year-olds from carrying firearms outside their homes for lawful purposes. Supreme Court last summer: Hey, here's this new Rahimi opinion, see what you think about them apples. Third Circuit (Jan. 2025): Yeah, still the same thing.
5. Louisiana man sentenced to a mandatory minimum of 20 years in prison for conspiracy to distribute crack and cocaine seeks compassionate release under the First Step Act, even though that law was enacted years after his sentence and is explicitly not retroactive. Fifth Circuit: So obviously he's going to lose. And a 2024 decision suggesting otherwise is wrong under the rule of orderliness, because it conflicts with an earlier circuit decision.
6. Zillow wants public records from counties in Kentucky on property values and taxes. State law allows them to charge Zillow more because it has a commercial purpose, while exempting certain favored commercial uses like newspapers. A First Amendment problem? Sixth Circuit: Nope, this is OK because the gov't isn't targeting any particular content with more expensive fees. Dissent: Ummm, seems pretty content-based to me to charge fees based on what the requestor intends to do with the information.
7. Every once in a while, the law of electricity regulation escapes its natural habitat in the D.C. Circuit and invades a new ecosystem where neither it nor its attendant acronyms have any natural predators. In that spirit, aspiring David Attenboroughs may wish to narrate this divided panel of the Sixth Circuit, which holds that Michigan violates the dormant Commerce Clause by requiring at least some of the energy distributed in its lower peninsula to also be generated in that lower peninsula.
8. Wags sometimes like to chortle that "it's not the crime; it's the cover-up." But here, both were pretty bad. In 2018, guards at an Illinois state prison beat an inmate so badly he later dies. Yikes. One of the guards (the precise nature of whose involvement remains disputed) then prepared an incident report containing falsehoods and lied in the police interviews that ensued. In the federal prosecution that ensues, he is convicted of, among other crimes, witness tampering and falsifying records in a federal investigation. Guard: But I just lied to state folks, not the feds! Seventh Circuit: When you made the false statements, there was "a reasonable likelihood they would reach federal officials."
9. City police seize firearms owned by an innocent homeowner in the course of arresting his apparently not-so-innocent houseguest—and, four years later, haven't given them back. Unconstitutional? Ninth Circuit (unpublished): No, it's totally reasonable to keep the guns until this guy pays a fee and provides sufficient proof of identity. (Dissent: They know who he is. He's the guy who filed this lawsuit. They should just give him his stuff back.)
10. On December 14, 2017 (yes, 2017), a gentleman parks his car in downtown Portland, Ore. and pays for 1 hour and 19 minutes of parking. Then he bounces. After five days' worth of tickets, officers place a notice on the vehicle warning that it would soon be towed. Two days later, it is. Man: This abject failure of notice violated my due-process rights. After all, you knew from the untouched, accumulating mountain of tickets on my windshield that I wasn't checking the windshield for notices. District court (2018): Due process is a-okay with this. Ninth Circuit (2020): You applied the wrong due-process standard (Mathews instead of Mullane, for the due-process mavens in the audience). District court (2023): Due-process is still a-okay with this. Ninth Circuit (2025): By Jove, so it is.
11. The California Supreme Court politely declined the Ninth Circuit's recent invitation to weigh in on Uber's liability, under state law, for the sexual assault of a rideshare customer. Leaving the Ninth Circuit to "predict as best we can what the California Supreme Court would do in these circumstances." Ninth Circuit: We predict that Uber owed the customer a duty of care under California law. Affirmed in part, reversed in part, and remanded. Dissent: And I predict that the state high court disagrees.
12. Tacoma, Wash. ICE detention center (a federal contractor) pays its civil detainees $1 per day for a voluntary work program, far below the state's minimum wage. Jury awards $17 mil in back pay. Ninth Circuit: Just so. The state's minimum wage does not violate intergovernmental immunity or the contractor's derivative sovereign immunity, and it is not preempted. Pay your workers. Dissent: State facilities don't have to follow the state's minimum wage requirements, so it violates all kinds of doctrines to hold federal facilities to a higher standard.
13. After Florida Governor Ron DeSantis suspended state attorney Andrew Warren and replaced him with a political ally, Warren sued, alleging First Amendment retaliation. The district court held that DeSantis would have canned Warren regardless, but in January of last year the Eleventh Circuit ordered the court to take a second look. DeSantis moved for rehearing en banc, and the Eleventh Circuit took no action on that motion for a year, during which Warren's term of office expired. Eleventh Circuit (2025): So now his case is moot.
14. And in en banc news, the Ninth Circuit (and the Ninth Circuit) will not reconsider its decisions that it's constitutional for California and Hawaii to ban the carrying of firearms in many spaces that are open to the public. Eight judges would have granted review.
15. And in amicus brief news, this week the U.S. Supreme Court heard oral argument in Free Speech Coalition v. Paxton, a First Amendment challenge to Texas's law requiring age-verification on adult websites. The case drew a truly bonkers number of amicus briefs (more than 40!), so we were particularly flattered that counsel for the Free Speech Coalition made of point of noting that petitioners "agree with the Institute for Justice in its amicus brief." What did we say there? Read it and find out!

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