The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Facsimile fun, federal funding freezes, and fateful photos.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New cert petition: Friends, it is almost entirely illegal to advertise medical marijuana in Mississippi even though the state has legalized the industry. And yet! The First Amendment protects truthful speech that proposes a legal commercial transaction, so we're asking the Supreme Court to step in and resolve a circuit split on how to apply its four-part test for the regulation of commercial speech.
New on the Short Circuit podcast: What's up with substantive due process?
- In response to various federal funding freezes imposed by the Trump administration, 22 states, the District of Columbia, and the governor of Kentucky sue, alleging that the freezes and an OMB memo implementing them are illegal in a slew of ways. The day after the lawsuit is filed, the administration revokes the OMB memo, but the funding freezes remain. A moot case? First Circuit: Not on your life. And the administration's motion to stay the district court's preliminary injunction is denied.
- New Jersey wife and husband are convicted of various horrendous child-endangerment crimes. District court (2015): 24 months' imprisonment for the wife and probation for the husband seems good enough. Third Circuit: No way. District court (2018): Okay, 40 months' imprisonment for the wife, and still probation for the husband. Third Circuit: You've screwed it up again. District court (2021): Fine! 40 months' imprisonment for the wife, and 18 months' home confinement for the husband. Third Circuit: No! And the case needs to get a new judge. District court (2023): 140 months for the wife, and 108 for the husband. Third Circuit: Affirmed. And the fact that the couple had already served their original, defective prison sentences during the (many) appeals doesn't give them a get-out-of-jail-free card on serving their at-long-last-correct sentences.
- The fun thing about being a lawyer is that sometimes you're fighting about how copyright intersects with advanced AI technology and sometimes you're fighting about whether a facsimile confirmation sheet is probative evidence that a plaintiff sent a fax in 2023. (The Fifth Circuit says it is.)
- You may have heard of East Coast rappers vs. West Coast rappers. A bit less familiar are Upwind States vs. Downwind States. While having little to do with music, their dispute intersects with how the EPA approves or rejects state implementation plans for reducing ozone. The EPA rejected those for Louisiana, Mississippi, and Texas. Fifth Circuit: And that was fine, except for the rejection of Mississippi's.
- The Supreme Court recently ruled that a party which receives preliminary relief against the gov't cannot later be granted attorneys' fees if the case becomes moot before it reaches a final judgment. (An outcome with which IJ disagrees.) Sixth Circuit: And that means a Kentucky church that successfully challenged orders prohibiting church services during the height of the pandemic cannot now get any money.
- Man is convicted and sentenced to death for murder of 12-year-old boy in Warren, Ohio in 1985. His direct appeal fails, as does his first habeas petition (after much activity, including a trip to SCOTUS). He files another habeas petition. Sixth Circuit (2023) (en banc): The new one is "second or successive," so it must meet the gatekeeping provisions of AEDPA. Sixth Circuit (2025) (unpublished): Modern forensic scientists no longer endorse bitemarks, resulting in the revelation that a mark on the victim crucial to the conviction was not a human bitemark. He can file his petition. (NB: One might reasonably expect further decisions, as the three judges on the 2025 panel decision dissented in the 2023 en banc decision.)
- Detroit man spends 15 years in jail for a murder he didn't commit, based primarily on inconsistent and retracted testimony of an eyewitness who identified him from a standalone photo (not in a photo array) that didn't match the witness's prior description of the shooter. After exoneration, he sues the detective on the case. Sixth Circuit: No qualified immunity for due-process claims for withholding evidence and using an overly suggestive identification. Concurrence: That's what our precedents require, but I'm not sure suggestive identifications are themselves constitutional violations, and we should give more qualified immunity in suppressed-evidence cases. Dissent: The real problem was not the detective, but shoddy defense counsel and poor choices by the prosecutor and judges.
- Chicago man spends 15 years in jail for a murder he didn't commit, in part because police showed suggestive photos to witnesses. Seventh Circuit: Which isn't itself a violation of due process. Your qualm is instead with the prosecutors and judges (and shoddy defense counsel).
- Allegation: Whittier, Calif. police take woman to ground without warning during 2020 police appreciation parade. A counter protestor, she'd been yelling expletives to express distaste for police brutality. Once on the ground, she tries to bite an officer, resulting in more rough handling that necessitates surgery for nerve damage. Ninth Circuit (unpublished): And since the video doesn't show any lawbreaking prior to her arrest, her claims must proceed to trial.
- The fourth entry in Laura Loomer's ill-fated saga of lawsuits alleges that various organizations, including Facebook and Twitter, did the RICO by conspiring to censor conservative voices and interfere with elections. Ninth Circuit (unpublished): Loomer's complaint lacks plausible allegations of RICO violations. She already amended the complaint once, and the lower court was within its discretion to deny another amendment. Dismissal affirmed.
- In 2020, Burlington, Wash. officers get a warrant to scour a man's computer after an alleged sexual assault, including a catch-all "dominion and control" clause that effectively authorized an unlimited search of any documents or files. They find child porn from 2016 and charge him in federal court. Ninth Circuit (over a partial dissent): That's an unlawful general warrant if I've ever seen it—no good-faith exception, no plain view, no dice. Evidence suppressed, conviction and sentence vacated.
- Florida's Lake Okeechobee had no defined southern border before humans got involved, leaving it to flow into the Everglades in the wet seasons. Since the first canals were dredged and housing built along the lake in the 1920s, the gov't has constantly fought the incursion of water. A slew of laws and regulations have sought to address it, by way of levees, hurricane gates, canals, dikes, and scrupulously maintaining the level of the lake. Agricultural users of the water prefer the lake to contain more water than the baseline level indicated by a project authorized by the Army Corps of Engineers, which the farmers contend violates the aforementioned slew of laws and regulations. Eleventh Circuit: No violation here.
Some good news from the states: This week, Virginia prohibited occupational licensing boards from using vague and arbitrary criteria like "good moral character" and "moral turpitude" to reject applicants. Also salutary is a new provision that lets applicants request a written predetermination on whether their past criminal record will prevent them obtaining a license (before they spend years completing various schooling and training requirements). Not to be outdone, Utah this week enacted a law barring occupational licensing boards from rejecting applicants over unrelated criminal convictions that are over five-years old. The law, which passed both houses unanimously, also stops boards from considering expunged or juvenile records. Huzzah! Click here and here to learn more.
