The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: A Roundup of Recent Federal Court Decisions
Hoary doctrines, lurking theories, and atomic bombs.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Friends, Short Circuit is turning 10, and we're having a party! Sláinte! Please come join us, retired judges Diane Wood and Kent Jordan, and a full cast of noteworthies on Thursday, April 3, 2025, at 7pm at the Studio Theatre in Washington, D.C. for lively discussion and a live recording of the Short Circuit podcast. Register here today!
- Some people think that natural gas is a much cleaner and more efficient fuel than many of its alternatives and that it would be good to be able to transport it by rail. Others think that doing so risks unleashing an explosion "equal to that of the atomic bomb that was dropped on Hiroshima." The D.C. Circuit "express[es] no opinion on the wisdom" of either position, but it thinks that no matter who is right it's essential to do a lot more environmental paperwork.
- After two state chemists in Massachusetts were revealed to have rampantly tampered with drug evidence and falsified test results, the state's high court vacated over 30,000 criminal cases and ordered the repayment of most of the funds collected as a consequence of those convictions. But, said the court, folks were not necessarily entitled to the automatic return of property forfeited in connection with those cases. (Since, simplifying slightly, Massachusetts's forfeiture regime—which has the distinction of earning the only F grade in IJ's nationwide Policing for Profit study—lets the state confiscate your stuff based on mere probable cause.) First Circuit: And the hoary Ex parte Young doctrine means these folks are out of luck in federal court too.
- Two married Indian nationals have lawfully lived in the United States on employment-based nonimmigrant visas since 2012. After waiting in line almost eight years for a green card, they thought they had reached the front, only to be told two years later that their applications were on hold indefinitely until more immigrant visas became available. The last time this happened, applicants waited eight to nine years for final adjudication. Fed up with the delays, they sue. Third Circuit: Federal law gives USCIS unreviewable discretion on how to manage green card applications and the visa backlog. Whether this particular policy is sound is not for courts to say.
- Fayetteville, N.C. police approach the front of a house to conduct a "knock and talk," finding two juveniles who say that the owner isn't home. The officers nevertheless walk around the house, enter the backyard, and approach a shed, in which they find the owner and the smell of marijuana. Based on that evidence, police get a warrant and find contraband. The owner argues, inter alia, that he received ineffective assistance because counsel should have moved to suppress evidence due to officers exceeding the "knock and talk" doctrine—a claim that the lower court concluded was "frivolous." Fourth Circuit: It's not knock-and-talk-and-walk-around-the-backyard. We need an evidentiary hearing to determine whether the officers violated the owner's Fourth Amendment rights. Reversed and remanded.
- Prince William County, Va. court documents are available to anyone who shows up in person and uses a public-access terminal, but if you want to access the documents remotely, you have to be a Virginia-licensed lawyer. Courthouse News Service challenges the restriction as a violation of the First Amendment. Fourth Circuit: But it's a content-neutral time/place/manner restriction, so we're not too bothered by it. Dissent: Actually, it's "listener-based discrimination," a murky concept that has been lurking in our First Amendment jurisprudence and that we should take more seriously.
- Former member of the Old Guard (a storied U.S. Army unit) takes a phone call in his parked car on road between the Pentagon and Arlington Cemetery. Along with his wild gesticulations, this arouses the suspicion of police, who discover that the car's registration is expired and that the man doesn't have a license on him. They search the car, revealing guns, a smoke grenade, and body armor. They send him on his way and tow his car with the property in it. The next day, police decide that the body armor must be stolen. They arrest him, and he spends seven months in jail until a judge determines that the search violated the Fourth Amendment and the state drops the charges. Fourth Circuit: But the cops have qualified immunity against the man's civil claim of a Fourth Amendment violation.
- Norfolk, Va. plaintiff: The city declared my property a public nuisance and knocked it down. That's a taking! Fourth Circuit: Either your property was a nuisance, which means it wasn't a taking to knock it down, or it wasn't a nuisance, which means the city knocked it down for no good reason instead of for a public use, and that's not a taking either.
- New Orleans couple gets into an argument, and police respond. They enter the yard, and one shoots a 22 lb. puppy named Apollo who did not bark, growl, jump, bare his teeth, or lunge. Instead, Apollo wagged his tail—for the last time. Fifth Circuit (unpublished): No qualified immunity.
- For years, Thetford Twp., Mich. property owners seek license to operate an auto-related business, but in 2015 officials deny their application once again—this time on the ground that it's illegal to have a business and residence on the same property. It turns out that's not quite true, and, after a few more years of litigation, the owners finally get their license. Then they sue, alleging that the township discriminated against them in violation of equal protection, while granting licenses to similar businesses operating in residential areas. Sixth Circuit (unpublished): Although officials' rationales for denying the license "may be concerning," that's fine under rational-basis review, which required the owners to refute "every conceivable basis" for the township's decision. Dissent: The license denials were based on "shifting and demonstrably false rationales." This case should have gone to trial.
- Madisonville, Ky. plaintiff: The city declared my property a public nuisance and knocked it down. That violates due process! Sixth Circuit: Yeah, we're pretty sure the Constitution requires you to have some way to challenge that nuisance declaration before things get to the knocking-down stage. Concurrence: There is absolutely no way the Framers would have thought you could knock down somebody's house just because you announced it was a nuisance.
- Arizona law prohibits criminal defendants or their legal defense team from initiating contact with the alleged victim of a crime unless they do so through the prosecutor's office. Defense attorneys challenge the restriction as a violation of the First Amendment. Ninth Circuit: But (1) they brought a facial challenge, which we can only grant if a substantial number of the law's applications are unconstitutional, and (2) they didn't challenge the law's application to victim interviews, which is the vast majority of what the law regulates. Perhaps a narrower challenge would succeed, but this one fails.
- Butterfly knives are incredibly cool, but are they also "arms" protected by the Second Amendment? Ninth Circuit (2023): Yes; Hawaiʻi's ban on butterfly knives is unconstitutional. Ninth Circuit (2025, en banc): After we granted en banc review and vacated the panel opinion, Hawaiʻi changed the law to moot plaintiffs' claims. So we don't need to decide that. Dissents: Our practice of granting en banc review and vacating panel opinions whenever a Second Amendment plaintiff wins is encouraging states to strategically moot cases and manipulate our jurisdiction to erase unfavorable precedent, and we shouldn't let them get away with that.
- Unionized HVAC workers and Macy's fail to negotiate a new contract. After striking for three months, the workers unconditionally offer to return to work. Macy's responds by locking them out. The NLRB finds the lockout was an unfair labor practice. It orders backpay and—crucially—"other direct or foreseeable pecuniary harms" such as expenses made in looking for other work. But can the NLRB do that? Ninth Circuit: Sure can, it's for the public good. Dissent: This is like a personal claim for damages, which the NLRB lacks jurisdiction over. Plus, we're splitting with the Third Circuit who just ruled the other way.
- And in amicus brief news: Two years ago this week, Justice Gorsuch penned a cert-denial dissent (in an IJ case) admonishing lower courts to quit making the "mistake[]" of saying that multi-million-dollar civil penalties are not "fines" under the Excessive Fines Clause. Since then, the DOJ has diligently continued trying to persuade lower courts to keep making precisely that mistake. Enjoy our latest amicus brief, hot off the presses in the Fourth Circuit, sensibly explaining why the DOJ is wrong.
New cert petition! In 1872, the Supreme Court ruled that when the gov't destroys private property that right there is a "taking" requiring just compensation the same as if the property was taken by eminent domain. There are some caveats and qualifications, but none of them—nor any intervening caselaw in the last 150 years—mean that the gov't is exempted from takings liability when a SWAT team blows up an innocent person's house to capture a fugitive. Nevertheless, lower courts have in recent years invented a variety of ahistorical and unjustifiable exceptions to let the gov't wriggle out of its obligations and to shift the cost of enforcing the law onto a few unlucky individuals rather than the public as a whole. Now we're asking SCOTUS to summarily reverse some woolly reasoning from the Sixth Circuit in light of a statement respecting the denial of cert last month on the same claims (decided on different grounds) by the Fifth Circuit. For a capacious rumination on the relevant precedents, have a listen to this lovingly crafted podcast episode.
