Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

Group chats, monopolies, and corporate espionage.

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

Over at The Dispatch, IJ attorney John Wrench invokes General Slushington and makes the case that the White House's intimidation of law firms is an existential threat to the rule of law. Click here to read it.

1. In 2003, Accuracy in Media files a FOIA request with the CIA seeking records related to Vietnam-era POW/MIAs. In 2004, they filed suit after the CIA failed to respond to the request. And in 2025, the D.C. Circuit holds that the CIA still has not shown that it performed an adequate search for the records.
2. Iran provided material support for a Taliban attack that killed 30 Americans, including Navy SEAL Kraig Vickers. Vickers' family sues Iran under the Foreign Sovereign Immunities Act and all recover damages except for Vickers' youngest daughter, whom the district court regretfully holds is ineligible because she was not born until two months after Vickers' death. D.C. Circuit: That limitation isn't in the statute. Iran is on the hook for her damages, too.
3. Allegation: Per some investigative journalism, the Catholic Church used donations for people in dire need to instead fund real-estate investments, Hollywood films, etc. Fraud? Unjust enrichment? District court: Could be. Motion to dismiss denied. D.C. Circuit: Which is not a final decision that we can review. The church-autonomy doctrine isn't a grant immunity from trial and other burdens of litigation, and so says every other circuit to weigh in on this.
4. One of the most-read novellas of all time, Joseph Conrad's Heart of Darkness, clocks in at, depending on what edition you pick up, around 120 pages. Not to be outdone, the Fourth Circuit (en banc) provides 126 pages of non-precedential concurrences, plus one dissent, in addressing whether geofence warrants are unconstitutional. Oh, there is one precedential sentence in the per curium opinion affirming the district court. Sadly, no one referenced any horror.
5. Over the course of 10 years, Louisville, Ky. man is indicted and re-indicted six times on 34 charges including murder, rape, kidnapping—all over the same nexus of events that took place in 2004. (He spends over seven years in prison.) But wait! The state drops the murder charge in 2015 and then all the rest of the charges in 2016. Malicious prosecution? Sixth Circuit: Too late to sue over being framed for murder. You were supposed to file that before you were off the hook for the rest of the charges.
6. Allegation: In private group chat with the mayor and city manager, an Albion, Mich. city council member suggests firing another city official. Yikes! Instead, the council member is arrested and prosecuted for violating a city ordinance that prohibits council members from firing people. (She's acquitted.) Sixth Circuit: Yeah, well, there was probable cause to think she might have been secretly firing people. The ordinance applies to exactly six people on earth, so it's not like the fact that it had never been enforced before means her prosecution was retaliatory.
7. In a challenge to Hawaiʻi's ban on butterfly knives the district court ruled against the plaintiffs. But! At the Ninth Circuit (2023) a 3-judge panel reversed and ruled the law violated the Second Amendment. But! The case went en banc, which immediately vacated the 3-judge panel's judgment. Then, 20 months later, the en banc court ruled the case was moot because the legislature changed the law after the 3-judge panel ruled. So, can the plaintiffs get attorneys' fees, as they did kind of win at one point? Ninth Circuit (en banc) 2025: No, mootness is not a win. Concurrence: This is a dumb rule. Dissent: Like, really dumb.
8. Chinese state-owned company is indicted for corporate espionage for allegedly stealing trade secrets from DuPont concerning the manufacture of titanium dioxide. Company: We're entitled to foreign sovereign immunity because we're owned by the Chinese government and we stole the secrets using "sovereign techniques—namely, espionage." Ninth Circuit: Nice try.
9. Riverside, Calif. officers tase, handcuff mentally ill man who's high on meth. He stops moving, but they continue to pin him down for several minutes. He dies. Jury: Which was not a Fourth Amendment violation, but was negligent under state law. Officers: Both federal and state law hinge on whether we acted "reasonably," so this mixed verdict can't stand. Ninth Circuit: Nope, they are different standards. Pay the $1.5 mil judgment.
10. Allegation: San Diego police arrest mentally ill man who was, it turns out, not high on meth. (He dies in custody.) District court: The results of field sobriety tests were consistent with schizophrenia, not meth use. A jury should decide if the officers lacked probable cause to arrest. Ninth Circuit (unpublished, over a dissent): Reversed. The officers' mistake was not objectively unreasonable.
11. In which the Ninth Circuit (unpublished) reminds us that the Sherman Act only forbids privately created monopolies because monopolies created by state governments are totally super-cool, man.
12. Oklahoma cops seize a 24-year-old's iPhone when he surfaces with a missing 14-year-old and get a state warrant to search for anything on the phone that might be evidence of any crime. Yikes! They uncover child porn and hand the trove to federal officers, who apply for a federal warrant using that evidence. Tenth Circuit: State warrant authorized a pure 18th-century general search, so no good-faith exception; strike the poisoned paragraphs from the federal warrant application and probable cause disappears. Phone suppressed. Reversed, vacated, and remanded.
13. Lowell, Mass. officers cross into Nashua, N.H., pluck a home invasion suspect's phone from his hands mid-call-log-deletion, and return to Mass. where they get a warrant to search the phone. Mass. Supreme Judicial Court: No fresh-pursuit statute, no cross-border aid agreement, and N.H. citizen-arrest law lets you seize people, not property. Later Mass. warrant can't launder the Granite-State-grab, and "inevitable discovery" wasn't raised below. Phone suppressed. Affirmed.
14. And in amicus news, next month IJ will argue to the Indiana Supreme Court that modern zoning runs afoul of the state's rich tradition of protecting the quiet use and enjoyment of property. Not least in the present case, which involves a county zoning board rescinding a conditional-use permit granted to a local recycling facility after a competitor—a big shot national conglomerate—belatedly objected. (The county's belated reasoning: that since the recycling facility doesn't also handle regular trash, it's not allowed under the ordinance that authorizes recycling facilities. Yeah, right.)

First-round victory! IJ client UPSIDE Foods is a California-based startup that produces cultivated meat grown from cells, a process that is certifiably safe and that has been approved by federal health regulators. But last year, Florida imposed a first-in-the-nation ban on cultivated meat, and not because of any health-and-safety concerns. Rather, officials want to protect state agricultural interests from competition. This week, however, a federal judge said that just might violate the dormant Commerce Clause. "UPSIDE is not looking to replace conventional meat, which will always have a place at the table," says Dr. Uma Valeti, CEO of UPSIDE. "All we are asking for is the right to compete, so that Floridians can try our product and see that it is possible to have delicious meat without the need for slaughtering animals." Click here to learn more.

Comments

[John F. Carr]

In Doe v. Roman Catholic Bishop of Springfield, 490 Mass. 373 (2022), the Supreme Judicial Court of Massachusetts denied an interlocutory appeal on church autonomy grounds but allowed an appeal on charitable immunity grounds. A charitable organization is entitled to immediate review of whether a complaint states a claim that falls outside the scope of immunity. Hiring priests who turned out to be pedophiles is within the scope of immunity. Molesting boys is outside the scope of immunity.

[John F. Carr]

Add the Heart of Darkness case to the list that could be disposed of with a single short paragraph: The decision is affirmed. Three judges think there was no search. Three judges think the search was reasonable. Three judges think there was a constitutional violation. One judge thinks the lizard people are not protected by the Fourth Amendment.

I didn't count the actual votes.

[Both Sides]

Nothing specific about this set of cases, but I just wanted to say that in general, "Short Circuit" is by far the best thing on the VC. Thanks for it!

[Bill Poser]

Seconded.

[Jerry B.]

“…all recover damages except for Vickers' youngest daughter, whom the district court regretfully holds is ineligible because she was not born until two months after Vickers' death. D.C. Circuit: That limitation isn't in the statute. Iran is on the hook for her damages, too.”

So a fetus is an actual person?

[Stupid Government Tricks]

Whether or not that is true, the birthed person still lost a parent.

[Michael P]

The trial judge apparently didn't think so. It must have almost been a virgin birth.

[Stupid Government Tricks]

What wagon did you just climb on?

…all recover damages except for Vickers' youngest daughter, whom the district court regretfully holds is ineligible because she was not born until two months after Vickers' death. D.C. Circuit: That limitation isn't in the statute. Iran is on the hook for her damages, too.

Not everything is about abortion and conception and when life begins. Sometimes a daughter is just a daughter.

[Bill Poser]

I think the OC's point is that the loss occurred at the time of death, at which point the youngest daughter had not yet been born. So he sees this as a case in which a foetus is regarded as having been damaged, and which therefore treats the foetus as a legal person. However, if one views the tort as the ongoing absence of a parent, not restricted to the point at which the death occurred, then the daughter was damaged after becoming a legal person even if a foetus is not one. A comparable situation would be a suit by a legal adult where the underlying cause, say the wrongful death of a parent, took place while she was a minor.

[Bored Lawyer]

Riverside, Calif. officers tase, handcuff mentally ill man who's high on meth. He stops moving, but they continue to pin him down for several minutes. He dies. Jury: Which was not a Fourth Amendment violation, but was negligent under state law. Officers: Both federal and state law hinge on whether we acted "reasonably," so this mixed verdict can't stand. Ninth Circuit: Nope, they are different standards. Pay the $1.5 mil judgment.

Which just highlights the importance of asserting all alternative legal theories. Never know which one will succeed.

[John F. Carr]

From a concurrence in the knife case:

And now, our order denying Plaintiffs their fees in this case shows even more unwarranted upside for government defendants like Hawaii: by gaming our en banc process they can also eliminate the risk of attorney’s fee awards, even when the government lost the only decision on the merits before our court.

[mse326]

From a legal perspecitve I think it is correct to say mootness is not a resolution in favor of the plaintiffs making them a prevailing party. Obviously the nature of mootness itself is to say there isn't jurisdiction anymore, not a merits ruling. And a legislature may change the law for any number of reasons that aren't related to whether it is constitutional.

Now the concurrences policy based argument is undoubtedly correct, it does incentivize states to game the system. And that does smell bad (regardless of which constitutional right is at issue). There is, however, a counter policy issue which is that if mooting is considered a win for the plaintiff that incentives the legislature not to change the law even if it now agrees that it is constitutionally suspect or bad policy. This is the rationale for F.R.E 407 (and most if not all states have an equivalent) preventing remedial measures from being used against a defendant. We want things to be corrected as expeditiously as possible, so we don't want to disincentivize it from doing so.

I'm personally a textualist so really the nature of mootness itself is enough for me to say it isn't a resolution in the plaintiff's favor, but even a purposvist should be cautious about saying it is despite the undoubtedly problematic incentives it provides.

[gormadoc]

The case became moot after they first won on the merits and before the en banc court decided against them. I would think that having already won before the case was moot should count as a resolution in their favor.

[David Nieporent]

I'm not sure your counter-policy argument has any force. The only time the legislature is going to act to moot a case is when the legislature is sure it's going to lose on the merits anyway. In which case so what if it doesn't moot the case because of the possibility of attorneys' fees?

[Noscitur a sociis]

I don’t think that’s right, because Hawaii most definitely wasn’t sure to lose. The plaintiffs did draw an inside straight with an en banc panel (or whatever you want to call it) that might have ruled against them. But as far as I can tell, the composition of the en banc court hadn’t been announced at the time the law was amended, and the process was pretty far along before en banc rehearing was even granted.

[santamonica811]

As a lifelong vegetarian; I wonder if I will see in my lifetime true labgrown meat that will be the functional equivalent of slaughtered meat. Since, till now, my objection has always been moral (as opposed to, say, health-related, or religion-based, or the like), I now need to start thinking about whether or not this will satisfy my moral concerns. I think it will.

Yeah; based on dead animal cells. But, by Generation X or so of cultivation, it will seem far enough removed to be okay. Or maybe not . . . it's a bridge I don't yet need to jump off of. And may not need to--depending on how quickly the technology develops, how long I live, etc.. But it is a Brave New World indeed. 🙂

[Currentsitguy]

My concerns are a bit more pragmatic. As a Type 1 Diabetic carbs are my mortal enemy. Not that I don't love meat (I really do) or have moral qualms (I don't) but that I really do have to eat a diet that is extremely low, or better yet zero, in carbs.

My concern is between the crazy green activist crowd who would love to force everyone into eating nothing but plants and insects and their cousins the extreme vegan activists who want to impose their eating habits on everyone they are driving the price of food that is essential to my continued health through the ceiling I think with the eventual goal of making it completely unavailable.

The alternative that you mention here, would meet my nutritional needs. However, even as their CEO admits it's a specialty niche product for people such as yourself who's objection lies in the source of the meat, not in the concept of meat itself, that no doubt will be even more expensive yet again.

Products such a Beyond and Impossible while outwardly appearing like meat are nevertheless plant based, and are quite carb heavy. That adds up to more and more insulin injections which can only take you so far. The less of that I need the longer I keep my vision, feet, and toes and frankly the longer other certain... um.... "parts" keep working.

Bottom line is the longer I stay on a mostly meat and eggs diet, the less chance I spend my Twilight Years being known as Stumpy the Blind Man. I just wish as much effort was being put into bringing zero carb low cost protein to market as they do high cost boutique luxuries.

[Bill Poser]

I hope this isn't intrusive, but is there some sort of Type I diabetes that requires a carb-free diet because insulin is not effective in controlling glucose levels?

[Currentsitguy]

When you get it as an adult, rather than a child it can take a form unofficially called "Type 1.5" which has some characteristics of Type 2 mixed in, such as increasing lack of sensitivity to insulin dosages. In other words, the more you take say to counter large amounts of carbohydrates, the less your body responds therefore requiring larger and larger dosages. I didn't get this until I was 40, so unfortunately I fall into that camp. I was originally 1 unit of insulin per 10g of sugar/carbohydrate. Now I'm closer to 8 or 9.

I'm trying to resensitize my body a bit, so I've cut the carbs to the bone.

[tuphat]

Suggestion: Instead of "An inexhaustive weekly compendium of rulings," how about "A weekly compendium of selected rulings"? Same number of words, less unwieldy.

[Stupid Government Tricks]

Part of the fun of these is the word play.

[mulched]

Don't sleep on the impeccable use of the [Read more] link.