Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Unaccompanied kids, implied causes of action, and filming the police.
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: Humboldt County, Calif. fines people millions of dollars for things they didn't do because it doesn't care if they are innocent. For instance, it fined IJ clients Corrine and Douglas Thomas over $1 mil a mere six days after they bought their home (with a clean title) because the county believes a prior owner grew cannabis. Now, IJ is asking the Supreme Court to revisit its 1916 decision that the Seventh Amendment's guarantee of a jury trial in suits at common law—a bulwark against tyranny for 800 years—does not apply to the states. As it stands, the county need not present its case to a jury of the Thomases' peers; rather, it'd be heard by lawyers hired by Humboldt County. Phooey!
New on the Short Circuit podcast: In jail without trial and death row without all the DNA tests.
- Boston police officer is found dead in the front yard of his friend's house amid a nor'easter. Investigators conclude that the man's girlfriend ran him over with her car and left him to die. (Perhaps you've seen the docuseries or read the Vanity Fair longreads.) A jury hangs at the first trial, and her second trial is now under way. Throngs of demonstrators (both pro- and anti-girlfriend) have shown up for the trials, leading the state court to create a buffer zone around the courthouse. First Circuit: And to the extent that that prohibits quiet, offsite demonstrations on public property directed toward non-trial-participants, that raises some First Amendment problems.
- Buffalo, N.Y. detective feeds nonpublic information about a 2004 double murder to a schizophrenic man, who then "confesses" and spends over 10 years in prison before being exonerated. (The real culprits have since been caught and convicted.) Second Circuit: No need to disturb the $6.5 mil verdict against the detective.
- Newburgh, N.Y. man buys a house in 2006 but falls behind on his taxes. After several years of paying some back to the city he can't keep up and it forecloses on the place, with him still owing over 92 G's in tax. The city turns around and sells it for a tidy $350k. Does it owe him the difference? Second Circuit: It might. Reversed and remanded.
- Mohsen Mahdawi, the Columbia University undergraduate whom the Trump administration is trying to deport because of his on-campus criticism of Israel, will be attending his graduation ceremony on May 21. The Second Circuit rebuffed the administration's efforts to keep him locked up while he challenges his removal proceedings.
- In 2020, amid a torrent of lawsuits uncovering decades of sexual abuse, the Boy Scouts of America declared bankruptcy. This week, the Third Circuit largely affirmed that plan, rejecting arguments by some claimants that the plan improperly releases their claims against nondebtors without their consent.
- At George Floyd protest in Grand Rapids, Mich., protester who approached police line is met with burst of pepper spray. As he turns away, another officer fires a special munition that's meant for crowd control at long distance, striking him in the shoulder. Excessive force? Sixth Circuit: No QI for the special munition. It's deadly force at that range. Dissent: There's no case on point.
- Citizen journalist from South Bend, Ind. challenges state law that empowers police to order him to move 25 feet away from them, which interferes with his filming them. Seventh Circuit: Actually, contrary to both sides' arguments, the law only allows police to order you to stop approaching, not to step back. And, in any event, it applies whether you're recording or not, so it doesn't violate the First Amendment.
- Eighth Circuit (2023): OK guys, we know everyone has always thought there's an implied cause of action to enforce Section 2 of the Voting Rights Act, but too-bad-so-sad actually that's not true. HOWEVER, if you just invoke Section 1983 that might be all you need. Eighth Circuit (2025): Wow, this is actually pretty complicated and so Section 1983's not enough.
- Iowa motorist is pulled over for illegally tinted windows, but a tint reader reveals that the windows are legal. So suppress the evidence from a search of the car? Eighth Circuit: No, the officer reasonably believed the windows were illegal.
- Following the Supreme Court's overruling of Roe v. Wade in mid-2022, Yelp posts a notice on its review pages for crisis pregnancy centers stating that "Crisis Pregnancy Centers typically provide limited medical services and may not have licensed medical professionals onsite." In response to a letter from sundry state attorneys general, the company revises the notice in early 2023. Six months after that, the Texas Attorney General's Office (famously scrupulous about the accuracy of its Internet presence) leaps into action and sues Yelp in Texas state court, claiming the rescinded notices were false and misleading. Yelp sues in its home state (California) to enjoin Texas's suit. Yelp: Obviously, this is First Amendment retaliation, right? Ninth Circuit: You know what trumps concerns about free speech? Younger abstention! We cordially invite you to vindicate your First Amendment rights while defending yourself against the AG's enforcement action back in Texas.
- Madera, Calif. man shoots his ex-wife dead in medical clinic parking lot as she shields her three small children. Turns out a clinic staffer called an old phone number for the woman to confirm an appointment, tipping off the estranged husband. Can her estate sue the county or the domestic violence shelter, who'd helped her escape and get a restraining order? Ninth Circuit (unpublished): No, neither the county nor the nonprofit placed her in danger she wouldn't otherwise have faced. (The man was convicted and sentenced to life in prison, the staffer was fired for incompetency, and California passed a law in the woman's memory limiting the disclosure of information to abusers.)
- California's Unruh Act provides statutory penalties on top of the injunctive relief available through the federal Americans with Disabilities Act. Ninth Circuit: And those penalties should be decided by a jury, not a judge, under the Seventh Amendment.
- While the Ninth Circuit considers rehearing en banc, the panel majority issues an updated opinion holding that asylum seekers turned away from ports of entry while still on Mexican soil "arrived in" the U.S., thus triggering CBP's various obligations under the APA. Updated dissent: Still wrong, "arrives in" means "physically present in." The same order includes the dissent from denial of rehearing (12 judges) and a statement respecting denial (3 judges)—a not-so-subtle invitation for SCOTUS to step in. Affirmed in part, vacated in part.
- The feds try to halt funding set aside for the Trafficking Victims Protection Reauthorization Act (TVPRA), which requires HHS to ensure that kids in immigration custody receive legal representation. District court says "can't do that" and issues a preliminary injunction, so the gov't appeals asking for an emergency stay. Ninth Circuit (over a dissent): The gov't can't show that it'll be "irreparably harmed" by spending money that's been earmarked for a law that it's required to enforce. Motion for stay denied; the injunction stands.
- Driver in Clayton County, Ga. is pulled over with outstanding arrest warrants. He flees, triggering a highspeed chase, crashes his truck, then runs away from the wreckage. Officer fires four shots at him, "with one striking him in the buttocks." Excessive force? Eleventh Circuit (unpublished): No qualified immunity because, if driver's version of the facts is correct, officer was unreasonable in using deadly force on an unarmed fleeing suspect without giving warning.
- Here's a phrase that we're relatively certain has never occurred in human speech before: "Jimbo's baloney birth was legally problematic." In other news, the Eleventh Circuit has affirmed a preliminary injunction blocking enforcement of a Florida law that was, by its sponsors' admission, enacted to ban the "gateway propaganda" of Drag Queen Story Time.
- And in en banc news, the Sixth Circuit will reconsider its decision to grant habeas corpus to a foster father who was barred from introducing evidence that his accuser had made very similar accusations of abuse against previous foster parents.
"CoreCivic's Tennessee prisons are chronically understaffed death factories, and it is outrageous that the TDOC not only has done nothing meaningful to ensure CoreCivic's compliance with minimum contract requirements, but has lobbied to ensure that CoreCivic does not incur meaningful consequences." So says IJ client client Dan Horwitz, a lawyer in Tennessee who, like every other lawyer in the Middle District of Tennessee, was barred from speaking publicly about his cases. Until yesterday. With an IJ challenge to the gag order underway, the court amended its rules—a towering victory for the First Amendment. Click here to learn more.
Friends, freedom from arbitrary arrest is a fundamental right. And yet! In 2023, the Eleventh Circuit ruled, by a vote of 10 to 1, that if you get arrested and spend three days in jail because there's a warrant out for someone with the same name as you—someone with a different birthdate, weight, height, tattoos, etc.—the Constitution is silent. Over at the University of Miami Law Review, IJ attorneys Jared McClain and Dylan Moore maintain that, to the contrary, the Fourth Amendment very much protects against mistaken-ID arrests. That said, if courts insist, as the Eleventh Circuit did, on analyzing these cases through substantive due process, well, the Constitution is not silent there either. Check it out! And then check out IJ's own mistaken-ID case, which aims to change the law.