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, 2025, 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!

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

[John F. Carr]

The prison beatdown case reminds me of an ongoing criminal case in Massachusetts. A police officer in a community relations program became intimately related with an underage girl in the community. Years later she committed suicide, according to Norfolk County DA. Or she was killed by her sometime police officer boyfriend, according to the US Attorney. Ordinarily you can kill all the girls you want and the feds won't bother you. Did he kill her to prevent her telling her story to the FBI? That would be a federal crime. Personally I think the officer did it to save his reputation or avoid state charges. I would be tempted to vote "let him fry" anyway because he deserves it. I probably won't be on the jury.

[m2t8cjxbdu]

Google paid $195 a hour on the internet..my close relative has been without labor for nine months and the earlier month her compensation check was $23660 by working at home for 10 hours a day..

Here→→ https://da.gd/income6

[SRG2]

#1 - the dissent sucks. A layman cannot be expected to second guess doctors in their own field.

[TextFirst]

Cuts both ways. It took doctors in the free world over two years to figure it out (From Jan 2019 to May 2021) and the opinion details the step it took to make that conclusion. He definitely wasn't getting concierge medicine, but even if all the facts alleged in the complaint are true, then this is hardly the deliberate indifference, it was just a really hard diagnosis.

[Drewski]

Not the issue here, a question for the jury if it goes to trial.

[TextFirst]

Don't think so. Even if everything he says is right, this was obviously a hard diagnosis because it took two years to figure it out. It's one thing if he walks into the hospital and they immediately peg it for prostate cancer, explain the fact pattern where something is so obvious a prison doctor should crack it instantly but it takes doctors in the free world two years of tests.

[Drewski]

Not the issue here, it's a question for the jury if it goes to trial. The opinion is about when the tort accrued and started running the clock on the statute of limitations, not the merits of the claim of deliberate indifference. I don't know what else to say except that I'm sorry you don't understand the processes that govern the topics you read about and comment on every day.

[Drewski]

Yeah, it's pretty bad. You can tell this guy really hates torts or just prison civil rights suits specifically. Probably torts generally. It's one thing to get ticky-tacky with accrual, it's quite another to say it's impossible that he hadn't successfully self-diagnosed his cancer when his prostate didn't settle down quickly enough.

I am shocked, shocked I say, to learn that Menashi took leave from George Mason University to serve in the first Trump administration before being appointed to his seat. A lot of Trump-appointed judges have been fine but I think we can all agree that his first administration's lawyers were tremendously bad, and also just the worst.

[DixieTune]

Amazing how not a single Clinton, Obama or Biden judge will ever rule in favor of the 2nd Amendment. It's almost like they don't actually believe they're obligated to follow SCOTUS.

[Drewski]

Sometimes someone at Short Circuit has a professional interest in a case or just a bug up their ass and spins the summaries into pretty wild tales. I thought that was the case with 2 (SEC versus crypto bros). But no. No, the summary is accurate.

On 12, the summary is poor: The issue was whether a privately-run detention center contracted with ICE counted as a federal one. The dissent believed it did, and therefore minimum wage doesn't apply.

I think the majority is right. Government contractors are not the government. They can at times act as an arm of the state, but not be one. Any privileges of government actors must be given specifically by statute and the courts should construe such grants narrowly. These things always bring to mind Mussolini's famous line: "Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power."

[Krayt]

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

I've often said any citizen should be able to ask government, "I plan to do X. Is this legal or not?" and get a definitive answer, then proceed. None of this "we'll decide after you do it" crap.

It smacks both of retroactive illegality and dictatorship, speaking the law into existence by a strongman, sans legislative approval.

I don't recall such a stark case, though.

[jimc5499]

I'm an Officer at a small social club. I have had a State Liquor Control Officer tell me that it doesn't matter what the regulations say, it's what he says that counts and then handed me the citation.

[David Nieporent]

You can fight the citation based on what the regulations say.

[Krayt]

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.

"Poor is the man whose pleasures depend on the permission of another."

[Drewski]

"Poor is the man whose pleasures depend on the permission of another."

Fun that you chose to quote Madonna, a former porn star. Personally I'm fine with age verification but I'm also fine with not doing that. The former is probably better in principle but concern about data security is legitimate, as are questions about how effective it can be. I choose to leave this one to the prudes vs the sex-positivity activists vs the "porn harms women" feminists vs the "porn empowers women" feminists vs the libertarians.

[ConservativeProfessor]

Sounds like the aphorism of a rapist.

[ConservativeProfessor]

"Then he bounces."

What does that mean? Does it mean he found employment as a bouncer?

[David Nieporent]

I don't believe you are actually unfamiliar with the term, and if you actually inexplicably are, I don't believe you can't figure it out from context.