The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: A Roundup of Recent Federal Court Decisions
Right whales, premium cigars, and tax evasion.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Hey, what's new? Us? Oh, not much . . . except IJ is headed to the U.S. Supreme Court for the 13th time! On Monday afternoon, the Court granted IJ's petition for certiorari in Martin v. United States, a case that seeks to hold the FBI accountable for sending a SWAT team to the wrong house, where they traumatized an innocent family—Trina Martin, her then-seven-year-old son Gabe, and her partner Toi Cliatt, none of whom had committed any crime. When the feds refused to pay for the harm they'd caused, Trina, Gabe, and Toi sued. But the Eleventh Circuit held their claims were barred by sovereign immunity. Now, the Supreme Court has a chance to set things right and hold the gov't accountable. Read more here!
Also this week: A new Bound By Oath podcast! Renowned civil rights litigator Marshall Krause tells the story of Camara v. Municipal Court of the City & County of San Francisco, which he argued at the Supreme Court in 1967. And we tell the story of how the Fourth Amendment's protections against invasions of the home became less robust when it's a code inspector rather than a police officer knocking at the door.
- After a FOIA request goes ignored, an advocacy group sues the U.S. Park Police seeking information about, among other things, pre-lawsuit settlements. The Park Police produces documents about three claims but withholds the names of the officers involved under FOIA's exception for "clearly unwarranted invasion of personal privacy." D.C. Circuit: And since the Park Police hasn't given any justification besides the idea of privacy itself, that's a no-go. Release the names. Also, no clawbacks of other FOIA-able documents that the agency produced by accident. Also also, the last vowel in "de minimis" is still an I.
- More FOIA news. In 2021, President Biden directed federal agencies to submit to the White House "strategic plans" to "promote voter registration and voter participation." Conservative group America First Legal FOIA-ed those plans. Sorry, holds the D.C. Circuit. The plans are exempt from disclosure under the "presidential communications privilege."
- The phrase "sometimes a cigar is just a cigar" is often attributed to Sigmund Freud, although there's no evidence he ever said or wrote it. We won't begin to guess what Freud would think of the difference between a "premium cigar" and a cigarette, but—according to the D.C. Circuit—it was arbitrary and capricious for the FDA to regulate them the same way without considering the differences in use patterns and health risks.
- Two decades ago, the D.C. fire department effectively banned beards. Which was good, maybe, for ensuring an airtight seal around facemasks, but not so good for firefighters compelled to grow beards for religious reasons. Said bearded firefighters secured an injunction banning the ban under the Religious Freedom Restoration Act. But, following COVID-19, the department effectively reintroduced the same ban because of a perceived need for firefighters to wear N95 masks. Civil contempt for violating the injunction? D.C. Circuit: Maybe. The district court should've decided despite the department's apparent good faith. There are legitimate defenses to contempt, but caution in extraordinary circumstances isn't one of them.
- The North Atlantic right whale is believed to have been so named because it was the "right" whale to hunt: It swims slowly and usually floats after death. Driven to near extinction by whaling, there are now estimated to be fewer than 400 North Atlantic right whales remaining, of which fewer than 100 are breeding females. To protect the whales' migration routes, the National Marine Fisheries Service issued a final rule seasonally banning vertical buoy lines used in lobster and Jonah crab trap fishing in federal waters off the coast of Massachusetts. Lobstermen challenge the rule. First Circuit: The whales win.
- In 1676, during the reign of Charles II ("the Merry Monarch"), the colonial governor of New York entered an order, endorsed by the Unkechaug Nation, that its members may "freely whale or fish." Is this a "treaty" that, for modern-day members of the tribe, preempts New York's prohibition on harvesting glass eels? Second Circuit: There was no "United States" in 1676 so there cannot be any preemption. Go talk to Charles III.
- The right of public employees to speak their minds on matters of public concern is so messy even unpublished cases draw dissents. Take, for example, this Third Circuit (unpublished) matter, in which a group of Springfield Township, Penn. cops are told they can't display "Thin Blue Line American Flags" while on the job. The majority thinks the policy fails the Pickering balancing test, while the dissent thinks that test does not require the gov't to show "actual, specific, and already-transpired harm."
- South Carolina death row inmate challenges his death sentence in state court as a violation of the Eighth Amendment because he claims to have intellectual disabilities. More than a year and a half later, he tries to amend his application to add a claim that he also has fetal alcohol spectrum disorder, which he argues should similarly bar his execution. The state court denies the request to amend, his intellectual disability claim fails, and he seeks habeas review in federal court. Fourth Circuit: Regardless of whether Supreme Court precedent prohibiting the execution of the intellectually disabled should be extended to people with FASD, the claim is procedurally barred.
- In 2024, the FTC issued new rules governing car dealerships, but two-thirds of this Fifth Circuit panel holds that the FTC failed to give sufficient advance notice of the rules, rejects the argument that the Dodd-Frank Act changed the notice requirements, and declines the FTC's invitation to wait right here for just a minute while they check with their manager about a better price on that TruCoat.
- Complaint: These officers should have known the suspect they had arrested needed medical attention because she'd just been in four (4) separate car accidents over the course of several minutes. Fifth Circuit: "Should have known better" may count in grade school, but around here, the constitutional standard requires them to actually have known. (Concurrence: The standard is also "it was obvious," but nobody made that argument here.)
- In which the Fifth Circuit holds that the Department of Transportation has the statutory authority to issue rules about airfare disclosures in general—but it can't issue this particular rule, which requires more noticing-and-commenting.
- Federal law prohibits Federal Firearms Licensees from selling handguns to anyone under the age of 21. Does this violate the Second Amendment as applied to adults aged 18-20? Fifth Circuit: We upheld the law in 2012, but that was before the Supreme Court told us to look to history to determine the scope of the Second Amendment's protection. And the history says 18-year-olds could keep and bear arms.
- State trial court makes a series of rulings (including striking defense witnesses for not being disclosed 20 days before trial even though the defense was still receiving new discovery from the prosecution as trial began) that ultimately prevent the defendant foster father from introducing evidence showing his accuser had made very similar false accusations of abuse against previous foster parents. State appeals court: Those are unfortunate mistakes, but they don't require reversal. Sixth Circuit: Those are unfortunate mistakes, and they violate the Constitution. Habeas corpus'd!
- All good things must come to an end, including, the Sixth Circuit reminds us, the royalties you were earning for your patent after that patent expires.
- For more than two decades, the Sixth Circuit has been issuing unpublished opinions saying that early termination of supervised release is "only warranted" upon a showing of "exceptionally good behavior." Tennessee man, whose behavior while on supervised release was not quite up to that standard, says the unpublished opinions are wrong. Sixth Circuit (published this time): He's right. That's not anywhere in the statute.
- Owner of a medical-marijuana business is convicted of failure to pay taxes and ordered to pay $2.75 mil in restitution. He appeals, arguing that—guess what?!—Congress doesn't even have the power to regulate marijuana. Sixth Circuit (unpublished): "Suffice it to say, Raich suggests that Congress . . . has the power to regulate a business that sells well over a million dollars' worth of marijuana in a year."
- Kentucky man who shot himself in the leg: My pistol didn't have a safety, which is unsafe and makes Sig Sauer liable for the shooting! Sixth Circuit: The trial court should have allowed expert testimony about how the pistol works, even if the experts didn't have an opinion about how this particular guy got shot in that particular leg. Dissent: Sig Sauer sells this exact pistol with a manual safety, and this guy chose to buy the version without one. Why would we assume he'd have kept the safety engaged if the pistol had one in the first place?
- On New Year's Eve 2018, DUI suspect is arrested and brought to the Cass County, Ind. jail. In response to some of his struggles, an officer twice slams his face into a wall, executes a leg sweep that causes him to hit his head again, slams a door into him, and performs a "hip toss" that lifts him up and slams him onto the ground. Civil-rights litigation ensues, culminating in a jury award against the officer of $400,000 in compensatory damages and $850,000 in punitive. Seventh Circuit: The punitive-damages award was not excessive, not least because, even at trial, the officer came across as "flippant."
- Illinois woman sues her former employer after she's fired for refusing the COVID-19 vaccine. District court: This dispute is obviously covered by your arbitration agreement. Case dismissed. Seventh Circuit: Technically, the district court should've stayed the suit pending arbitration, not dismissed it, which would've been a non-appealable interlocutory order. But the court here didn't do that. So we guess this appeal is properly before us. And it's sanctionably bad, so you get to pay your erstwhile employer's appellate expenses.
- Following a murder investigation in Rockford, Ill., police get a warrant and arrest a man whom a witness identified as one of the assailants. Within a few weeks, though, it's determined that DNA under the victim's fingernails doesn't match that of the arrestee. Police also confirm the arrestee has an alibi: a timecard from work and a supervisor who says it's not possible for the arrestee to have been at the murder scene. Nevertheless, the man spends 13 months in jail before the charges are dropped. He sues. Seventh Circuit: And his claims fail, since there was probable cause for the arrest warrant and the later grand-jury indictment, and none of the exculpatory evidence conclusively proved he didn't do it.
- Federal law makes it illegal for a non-citizen to be in the United States without permission. Iowa's legislature passed a law that makes it even more illegal. The United States sued Iowa state officials and asked for a preliminary injunction, arguing the law was preempted because it's such a federal thing that there's no room for the state variety. Eighth Circuit (issued four days after the change in administration, and apparently before any AUSAs filed anything new): Yes, the law is preempted. PI affirmed.
- Remember that cultural moment when then-Congressman Devin Nunes was filing defamation suits against a whole bunch of folks and media companies (including a cow on Twitter)? He didn't fare too well, although the Eighth Circuit (2021) did keep alive part of his case against reporter Ryan Lizza and the publisher of Esquire. Well, in this blast from the past he has now lost on the merits at the Eighth Circuit, affirming the district court which found that the article "Milking the System," about his family's dairy farm, was not defamatory.
- In this Ninth Circuit case, where most everything is under seal, all we know is this: "Client" invoked his Fifth Amendment privilege against self-incrimination during a tax-evasion investigation, leading to a grand jury to subpoena "Law Firm" for the docs and requiring a privilege log if any were withheld. "Client" then intervened to stop any privilege log, the district court ordered a log, and "Client" appealed. And prevailed, at least if the docs were provided to "Law Firm" for the purpose of legal advice (to be determined on remand).
- Arizona death-row inmate challenges his conviction in state court, claiming ineffective assistance of counsel at the guilt phase of his trial. When that fails, he seeks federal habeas, raising for the first time arguments that he also had ineffective assistance at the penalty phase and that he is intellectually disabled. Can the federal court hold his habeas proceedings in abeyance while he exhausts these claims in state court? Ninth Circuit: We're not certain the state courts would say the arguments are procedurally barred, so we can stay the petition while they figure that out. Dissent: It's very clear they're barred.
- Feds accuse a guy of using stolen Social Security numbers to apply for gov't benefits, a felony requiring a grand-jury indictment instead of just a grand-juryless information. Feds file the information in time but miss the statute of limitations for the indictment (as grand juries were suspended due to COVID-19). Guy: So let me go. Eleventh Circuit: Nope. History shows that filing the information in time is all the gov't needs to do to make its deadline. Concurrence: Our decision means prosecutors could file the information and then wait as long as they want to file the indictment. Congress should fix this.
- The FCC enacted a rule in 2023 that prohibits telemarketing and advertising calls/texts unless the recipient provides prior written consent—and that consent is only valid if it's given for one entity at a time and covers related subject matter. Eleventh Circuit: Congress drew a line in the text of the statute—requiring prior express consent—and the FCC stepped right over it by requiring way more. Rule vacated.
- Per footnote three of this Eleventh Circuit (unpublished) decision, if this plaintiff had "simply trusted the [insurance] agents' misrepresentations without reviewing the actual terms of the policies, this might be a different case." Instead, he read the contract, asked the agents about the apparent conflict between the original misrepresentations and the terms of the contract, and then simply trusted the agents' subsequent misrepresentation that he was mistaken in believing there was a conflict. So case dismissed.
- Under federal law, a child born outside of the United States to alien parents gains automatic U.S. citizenship upon "[t]he naturalization of the parent having legal custody of the child when there has been a legal separation of the parents," as long as the child is under 18 and has a green card at the time of the naturalization. But what if the legally separated parents remarry before the naturalization? Eleventh Circuit (Judge Aileen Cannon, sitting by designation): Doesn't count. Dissent: Where's that in the statute?
- It's not an Article III court, but your editors thought it would be a hoot to check if the Court of Appeals for the Armed Forces issued one of its relatively rare published opinions this week (they issue only about two or three dozen a year). Now buckle up for JAG: Short Circuit, in which the CAAF holds that the cumulative error doctrine does not apply to pre-trial proceedings in courts-martial.
- And in en banc news, the Fifth Circuit will not rehear its earlier decision holding that the Orleans Parish Sheriff's Office must abide by a 2013 consent decree and complete construction of housing for prisoners with mental health issues and medical needs. The original panel opinions drew a scathing dissent from Judge Jerry Smith, and this en banc denial draws an equally scathing dissent (this time courtesy of Judge Oldham).
Proponents of occupational licensing never claim the laws are about shutting out competition—they always claim they're needed to protect health and safety. In a new IJ report, we put those claims to the test for two of the most pervasively licensed occupations in America: barbering and manicuring. The report, Clean Cut, looks at whether nail salons and barbershops in states with differing licensing burdens for workers did better or worse when it came to health inspections. The answer was clear: There was no difference in inspection outcomes across the states. Learn more here.
