Short Circuit: A Roundup of Recent Federal Court Decisions

Corner crossing, prison typewriting, and an interview with Webster Bivens.

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

New on the Unpublished Opinions podcast (which y'all should subscribe to): Impeaching judges, legal media, AI and corpus linguistics, plus golfing dreams.

1. Computer scientist creates an AI-generated image and seeks to have it copyrighted, listing himself as the owner of the work, but naming the AI he designed as the work's author. The Copyright Office denies the application. D.C. Circuit: Correctly. The Copyright Act requires eligible works be authored by humans (whether that limitation is constitutionally required is a question for another day).
2. Eight states sue the Dept. of Education, alleging it cut off grants for teacher/principal training without a reasoned explanation as required under the APA. The lower court reinstates funding via TRO; the dept. seeks a stay. First Circuit: The termination letters lacked an adequate explanation, and the agency's attacks on the TRO are mere "speculation and hyperbole." For now, funding flows. Motion for stay denied.
3. Generally, parties charged with burglary, narcotics offenses, sexual assault, and running a prostitution ring do not fare well in federal court. So how badly did Syracuse, N.Y. officers mess up a 12.5-hour search and seizure of the defendant's residence for the Second Circuit to vacate and remand (over a dissent)?
4. Allegation: At 2020 police-brutality protests, NYPD officers used a tactic called "kettling" to trap and arrest and excessively force protesters and non-protesters without first providing them a warning or opportunity to leave. Many lawsuits ensued. Several reached settlement, under which the NYPD agreed to change certain procedures. But one party refused to sign onto the settlement: the union representing line police officers that had intervened in the litigation. District court: Too bad, the union cannot torpedo the settlement agreement, so the case is dismissed via consent decree. Second Circuit (unpublished): Indeed.
5. Fifth Circuit (over a dissent): Coast Guard servicemembers who were reprimanded for refusing to be vaccinated for COVID-19 have standing to seek a court ruling that the now-rescinded vaccination requirement was unlawful. Their refusal might hurt their chances of promotion, so they face ongoing harm.
6. During 2020 police-brutality protests, Dallas photojournalist is arrested because, officers now say, he briefly walked along the right side of the highway (illegal) instead of the left (legal). Photojournalist: Not so! I was arrested for snapping photos of police brutalizing people. Moreover, I couldn't have safely crossed to the other side of the highway. Fifth Circuit (unpublished): Qualified immunity.
7. Gov't punishes pill-mill operator with several decades' imprisonment and the forfeiture of all sorts of assets, including $400k from the pill-miller's individual retirement account. Tax court: And when that $400k was withdrawn (by the IRS) from your retirement account (to go into the IRS's coffers) it became a taxable "distribution" to you, so you owe the IRS $180k in taxes on the $400k. Sixth Circuit: Reversed. (NB: The miller managed to win this appeal, pro se, on a prison typewriter. No mean feat.)
8. Bivens claims (the old chestnut goes) are available in federal court if and only if your name is Webster Bivens. Seventh Circuit: Add Kevin Brooks to the club. His claim—that federal prison staff let him linger for ten days with agonizing appendicitis—is quite similar to one of the rare Bivens claims the Supreme Court approved, back in the '80s. As to the treating staff, his case may proceed. (For the historically minded, take a look at this fascinating piece by Prof. James Pfander, who, in 2008, interviewed the elderly Webster Bivens and one of the Six Unknown Named Agents of the Federal Bureau of Narcotics.)
9. Milwaukee police stop and detain a 16-year-old boy running with a bag. Uh oh! He's up to good, delivering a holiday turkey to a less-fortunate neighbor. Seventh Circuit: No evidence of discrimination, but officers should know that simply running on a cold winter night in a high-crime area does not give rise to reasonable suspicion of a crime. Also, an admonition to keep attorneys awake at night: "We urge [counsel for both sides] to reacquaint themselves with the [rules] before proceeding on remand. It is hardly fair to their clients for lawyers to overlook deadlines and handle facts carelessly."
10. When an opinion begins with the qualification that the necessary second vote joins everything except "Section IV(B)(3)" what do you do? Exactly. And after your summarist skipped straight there he learned that overall the Ninth Circuit (over a dissent) found a Hawaiʻi law unconstitutional under the Second Amendment. The law voids permits to purchase handguns unless the purchase is made within 30 days and requires some guns to be physically inspected by the police. In the juicy section, the judges split on "opaque dicta in footnote 9 of Bruen."
11. No preliminary injunction to prevent enforcement of an Idaho law requiring public school students to use the restroom and changing facility corresponding to their "biological sex." That's partly because, as the Ninth Circuit put it, "not exposing students to the unclothed bodies of students of the opposite sex" and "protecting students from having to expose their own unclothed bodies to students of the opposite sex" are "important" gov't objectives.
12. Second Amendment enthusiasts may want to read the Ninth Circuit en banc decision upholding California's ban on "large-capacity magazines." Dissent: And they may also want to watch, like, and subscribe!
13. In 1990, California inmates file a class action against the state for providing inadequate mental healthcare in prisons. They win, but after 30 years the state has still not come into compliance with the remedial orders. District court: And that's going to cost the state $110 mil in civil contempt. Ninth Circuit: They're definitely in contempt—probably for tens of millions of dollars—but explain that specific number a bit more.
14. Perpetrator of what was then the second largest data breach in U.S. history faces a sentencing guideline range of 14–17.5 years, but the district just sentences her to time served (approximately 100 days) and five years' probation. Unreasonable? Ninth Circuit: Yes. Dissent: That may be the majority's opinion, but it's not an abuse of discretion.
15. Can Kari Lake's lawyers be sanctioned for filing her failed lawsuit challenging Arizona's voting system? Ninth Circuit (over a dissent): Yes. Also Ninth Circuit: But not Alan Dershowitz.
16. "Does a district court have the power to order an intervenor to return or destroy confidential documents that were inadvertently disclosed to it by another party?" Ninth Circuit: Intervenors are parties, so obviously yes.
17. Allegation: Intoxicated woman hits her boyfriend and takes a walk around her neighborhood to cool off. Pierce County, Wash. deputies arrive to the home, not the first time they've been there, and announce a plan to "teach her a lesson." They send Zepp the dog to find her, which Zepp does, causing long-term injuries. Ninth Circuit (unpublished, over a dissent): It's clearly established that letting a dog continue to bite someone who is physically unable to show their hands and surrender is excessive force. No qualified immunity.
18. The American West contains millions of acres platted into alternating squares of public and private land like a checkerboard. Moving diagonally across public property requires corner-crossing: stepping across adjoining corners of public land without actually touching private land—but momentarily occupying private airspace. A ranch owner on Wyoming's Elk Mountain resolutely opposes corner-crossers, erecting chains to prevent crossings, scaring away hunters' game, seeking criminal trespass charges (resulting in acquittals), and suing for civil trespass. Tenth Circuit: There is no trespass so long as the hunters don't physically touch the private land. (Fellow nerds: This case brings it all, from 13th century conceptions of airspace to Manifest Destiny.)
19. Allegation: Douglas County, Colo. deputies responding to 911 call of a break-in arrive at the home, put Sig the dog through a broken window, and order him to bite anyone he finds (child, adult, whomever). Sig obeys, attacking man asleep in bed. Man screams, cops enter house and ask questions while Sig continues to gnaw. They handcuff and arrest the man, he's transported to the hospital, and they search his home. As it's not illegal to sleep in one's own bed, he's not charged with any crime. Tenth Circuit: It was clearly established that all of this violated the Fourth Amendment. No qualified immunity.
20. Can Florida ban those under 21 from purchasing firearms? Eleventh Circuit (en banc): Yes. Dissents: No. This result differs from the Third, Fifth, and Eighth Circuits and puts this issue on everyone's circuit-split bingo card.
21. And in en banc news, the Fifth Circuit will not reconsider its decision that under federal law all mailed-in ballots must be received by election officials (not just mailed to them) by the day of an election.

Friends, there's nothing we love more than winning a big case in court. But sometimes all that's needed to make gov't officials do the right thing is a little nudge, and we'll take that too. Case in point, Broward County, Fla. officials recently ordered Leann Barber to tear out a community garden where she and her neighbors have spent years planting fruit trees, vegetables, and native plants on a vacant lot she owns in her residential neighborhood. It's also the home of her nonprofit, which teaches kids how to garden, cook, and more. Tear all that down? Ridiculous! But as it turns out, a letter from IJ with a friendly reminder that state legislators passed a right-to-garden law in 2019 was enough to get the county to drop the citation (which was purely a zoning-conformity thing, not an actual health-and-safety thing). Huzzah for happy endings! Click here to learn more.