Short Circuit: A Roundup of Recent Federal Court Decisions

Intellectual strait jackets, vulgar language, and dodging judicial inquiry.

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

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1. President issues executive order denying birthright citizenship for people born in the country while their parents were here illegally or temporarily. District court preliminarily enjoins the order, finding that state-plaintiffs are likely to succeed in arguing that the order violates the Fourteenth Amendment, which extends citizenship to "[a]ll persons born . . . in the United States, and subject to the jurisdiction thereof." The administration appeals, moving to stay the injunction pending litigation. First Circuit: Negative, the injunction holds. Motion denied.
2. In 2020, Vermont Superior Court transitions to electronic filing. When filed documents are received, they're reviewed to ensure they meet all filing requirements and don't contain confidential information, after which they're made available electronically. Courthouse News Service can't abide that delay and sues, alleging the procedures violate their First Amendment right of access to court documents. Second Circuit: And it does seem like the process could be more narrowly focused on protecting confidential information than proper margin widths.
3. 2012: New York woman pleads guilty to promoting prostitution. (Evidently this was big news a decade ago, though your correspondents confess to having no memory of it.) 2021: She asks the state trial judge to unseal various transcripts from her criminal case. The request is partly denied. She appeals. And, separately, files a Section 1983 suit in federal court against the state judge, asking the federal court to order the state court to release the transcripts. Second Circuit (2-1): Younger abstention!
4. Violent, high-risk inmate is placed in a cell with low-risk pretrial detainee in Philadelphia jail. After telling a guard he's going to kill his cellmate, the former proceeds to render the latter a quadriplegic. Third Circuit: "Not every jail tragedy makes a municipality liable. …"
5. Myrtle Beach, S.C. bar owner challenges municipal ordinance that restricts the broadcasting of "obscene, profane or vulgar language from any commercial property" above certain volumes at certain times. The district court upholds the ordinance, concluding that the "vulgar language" prohibition applies only to speech that is constitutionally obscene. Fourth Circuit: But that ruling (1) isn't binding on state courts, and (2) doesn't make any sense.
6. North Carolina man pleads guilty to being a felon in possession of a firearm, with a guideline sentencing range of 41-51 months. He's sentenced to 114. Fourth Circuit: That was unreasonable. Dissent: Well, he did do an awful lot of stabbing while he was in pretrial detention.
7. When you gaze down at a roll of 3M Scotch tape you probably don't imagine that you're staring into the eyes of an officer of the United States. Yet, according to the Fourth Circuit (over a dissent) that might be true in certain circumstances—or at least that the tape was following the orders of an officer—as it pertains to removal from state to federal court.
8. "Suffer any wrong that can be done you rather than come here!" is the warning no one gives in Chapter 1 of Bleak House. Apparently there was also an absence of such a warning in a dispute involving New Orleans breast surgeons, insurance companies, and a lawyer because the district court christened it "the Bleak House of arbitration." Close to a dozen arbitration proceedings examined what seems to have been the same dispute resulting in four wildly inconsistent arbitration awards. Fifth Circuit: And the awards mostly stand, but it's OK to have one more arbitration to rule them all.
9. It may seem surprising that prosecutors felt the need to withhold Brady material in order to secure the conviction of a 23-year-old who stabbed an octogenarian 58 times, bludgeoned him with an iron, and then shoved a lamp down his throat while he was still alive. But that's what they did, failing to disclose that a key witness—who later recanted her testimony—was a compensated gov't informant. Fifth Circuit: And so we grant habeas. Dissent: The Brady material would have made no difference; the self-defense theory was "ludicrous."
10. Have you ever wondered how the "inherently transitory" exception to the mootness doctrine in class actions relates to the "capable of repetition yet evading review" exception to the mootness doctrine for individual claims? Probably not, but the few of you who said yes will really like this Sixth Circuit opinion.
11. HHS, which funds family-planning projects across the country, requires fund recipients to provide neutral counseling and abortion referrals to patients when requested. After Dobbs, Tennessee mostly banned abortions and committed only to conduct counseling and referrals for options deemed legal in the state. So HHS cut off funding. Sixth Circuit: Which likely doesn't violate the Spending Clause or the APA. Partial dissent: Loper Bright, which came out while this appeal was pending, changes the calculus of the APA claim such that the abortion-referral requirement should be enjoined.
12. Allegation: University of Illinois Chicago law professor has long given a civil procedure exam with a question about a discrimination case involving an expurgated racial slur; but when students complain in 2020, the university hunts through everything he's ever said in class for anything that could be seen as offensive to justify disciplining him. First Amendment retaliation? University: State university professors don't have free-speech rights, they're just mouthpieces for the gov't. Seventh Circuit: No. "To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation."
13. Allegation: Fearing physical harm from his cellmate, Nevada prisoner requests a cell change. Instead, an officer says, "Fight him or fight me" and takes the prisoner's legal papers, Quran, prayer rug, etc. And though the cell transfer happens later that day, his belongings are never returned. Ninth Circuit: It is clearly established that prison officials can't retaliate against prisoners for complaining about prison officials. It is not clearly established that prison officials can't retaliate against prisoners who complain about other prisoners. Denial of QI reversed.
14. Driver on the Nevada stretch of I-80 is pulled over and has his cash seized. (No, it's not Marine veteran and Friend of IJ Stephen Lara.) It's over a million dollars. Yikes! In the civil-forfeiture action that ensues, the driver tries to recover the money, but when pressed by the gov't about how he came to own it, he provides only a cursory response. District court: You gotta provide more information. Driver: Here's some more information. District court: That's not enough. Your claim for the money is stricken and the gov't wins. Ninth Circuit: Affirmed. Under special civil-forfeiture rules, the gov't gets to send out extra-early interrogatories to test a claimant's standing, which is what the gov't did here, and the driver didn't do a good enough job responding. Dissent: "The majority . . . validates an extremely troubling government strategy that allows the government to use the fruits of a potentially illegal search to set up a supposed discovery violation, while dodging any judicial inquiry into the search itself."
15. Pro tip: If you are the chief security officer of a large technology company, you should not cover up a major data breach lest you wish to become a felon. Uber's now-former CSO learned this the hard way after concealing a 2016 data breach while the FTC was investigating a 2014 data breach. The CSO got the hackers to sign an NDA for $100k that recharacterized the hack as "research" into "vulnerabilities" while lying about it all to the FTC, Uber's CEO, and Uber's attorneys. And the Ninth Circuit lets the conviction stand.
16. Another professor, another First Amendment retaliation case. This time, it's a Nevada community college math prof alleging he was retaliated against for criticizing a school policy change to water down curriculum standards. Ninth Circuit: We're on the same page as the Seventh Circuit, supra.
17. Like celebrity deaths, circuit decisions involving school administrators retaliating against protected speech apparently come in threes. This one involves allegations that the superintendent of Los Lunas, N.M.'s public schools threatened frivolous litigation against parents who created a Facebook group to talk about the schools. The Tenth Circuit says this one can go forward, too.
18. Denver man calls 911 saying he'd just been shot by a masked intruder. Police discover a locked door, no sign of forced entry, and a shell casing on the man's desk. They then get a warrant and discover a loaded handgun in a locked drawer in the man's desk with one bullet missing from the magazine. Surgeons remove the bullet, which is later matched to the handgun from the man's desk. Not the world's hardest whodunit. He's convicted of being a felon in possession of a firearm. Tenth Circuit: Which stands. The man consented to the bullet's removal and never attempted to claim an ownership or privacy interest in the bullet.
19. Regular readers of Short Circuit will be familiar with constitutional claims alleging that gov't officials kept someone in jail for too long, but this Eleventh Circuit case presents the rare constitutional claim alleging that an official let someone out of jail too soon (allegedly to avoid paying for medical care for the heart attack that the prisoner was having at the moment he was released).
20. This Eleventh Circuit decision is a good reminder that you shouldn't escape from prison and then create a new life by stealing a dead man's identity. Or, at least, if you do that, when you're caught and finish out your sentence, you shouldn't keep using the dead man's last name upon your release. Or, at least, if you do that, you shouldn't get a passport with your fake last name. Or, if you do, don't renew that passport. But if you really must do all that, when the second passport is about to expire, don't try to get a new passport using your birth name. Because that, my friend, will be what gets you charged with federal crimes.
21. School in Tallahassee, Fla. hides from parents the fact that a 13-year-old girl is now presenting as a boy at school. Parents claim a violation of parental and familial-privacy rights. As one does, a three-judge panel of the Eleventh Circuit issues four opinions. Majority: It doesn't shock the conscience. We don't even say that when students die! Concurrence 1: I'm all about protecting rights, just not those Lochner ones! Concurrence 2: Substantive due process delenda est. Dissent: Judges can't amend the Civil Rights Act of 1871.
22. Sarasota, Fla. voter challenges the state's system of closed party primaries. He wants to be able to influence who the Republican Party nominates for office but doesn't want to have to join the party to do it. Eleventh Circuit: That's a genuine injury, but binding precedent forecloses his claim. Dissent: The inability to influence the choices of private groups you're not a member of isn't an injury at all.
23. Allegation: In 2020, Atlanta police officers are fired and arrested for tasing two college students who'd been flouting curfew and ignoring orders to leave the downtown area during George Floyd-related unrest. (The officers are reinstated and all charges dropped.) Can the officers sue the mayor, the police chief, and the DA (who'd held press conferences and gone on podcasts to "publiciz[e] their roles in effectuating the officers' terminations and arrests")? Eleventh Circuit (unpublished): No. << deep breath>> State-law qualified and official immunity. And absolute, qualified, and municipal immunity on the federal constitutional claims. (The city settled with the students for $1 mil each.)

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