Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Helicopter accidents, nasty feuds, and serial lies.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Not in my backyard! In which IJ goes full NIMBY: IJ client Dalton Boley used to enjoy camping with his three little boys in the 10-acre woods immediately behind his house. That is, until he learned that Alabama game wardens have been spying on them without warrants. On multiple occasions, these armed agents have trespassed onto the property, tampering with Dalton's trail cameras, while ignoring No Trespassing signs. So this week, IJ filed suit on Dalton's (and others') behalf, seeking to vindicate the Alabama Constitution's protections against unreasonable searches and the state's common-law right against trespasses. Click here to learn more. And click here for a special podcast episode explaining why this isn't a Fourth Amendment case.
This week on the Short Circuit podcast: Dirt biking around the nondelegation doctrine and unmooting free speech.
- We wish we could tell you if, in 2017, two FBI officials unlawfully leaked info from a classified FISA warrant to the press in order to besmirch the reputation of a Trump adviser. But the D.C. Circuit (over a dissent) says the suit claiming as much is time-barred.
- North Carolina helicopter pilot dies when his crop-dusting chopper collides with a steel wire strung between a tall pole and a distant tree. Negligence on the part of the farm's owners and the pesticide company that hired the crop-duster? District court: No. The risk posed by the wire wasn't reasonably foreseeable to the defendants, since they're farmers, not pilots. Fourth Circuit: Under North Carolina law, which governs here, summary judgment is basically never appropriate in negligence cases. To trial the case must go! (Your summarist must confess to not being entirely sure the court faithfully applied the Erie doctrine in placing such weight on North Carolina's fondness for jury trials, but … who knows? Not us!)
- In 2024, the federal gov't entered into a settlement with a certified class of unaccompanied alien children. Under it, the gov't agreed not to remove any class member while his or her asylum applications remained pending. Following President Trump's Alien Enemies Act proclamation, the gov't sends a class member to an El Salvadoran prison. District court: Quit violating the settlement agreement, and "facilitate" getting the guy back. Fourth Circuit (2-1): We cordially deny the gov't's request to stay that order.
- Widow of assassinated Saudi Arabian journalist and human rights activist Jamal Khashoggi sues Israeli company, alleging that "at least one cell phone she owned and used to communicate with Jamal had been the subject of unlawful surveillance using a technology developed and licensed by" the company, and that "this surveillance culminated in his death." Fourth Circuit: But her allegations are too vague to show that the company did anything in Virginia, where she sued. So no personal jurisdiction.
- The FCC has been charged by Congress with regulating the broadcast spectrum "in the public interest." Seems kinda vague. Does that mean they can do anything they think is good or useful for the public? Fifth Circuit: It does not. And, in particular, they cannot require broadcasters to disclose employment demographic data, which the FCC wants to post online.
- Gravity Capital submitted a claim to property that was subject to criminal forfeiture, but their lawyer accidentally signed the petition with the name Gravity Funding, a different entity. No problem, you may be thinking—a signature is anything a party intends to be a signature, the lawyer intended this to be Gravity Capital's signature (it's a claim for a loan made by Gravity Capital, after all), and it's all a silly goof. Fifth Circuit: "There but for the grace of God go I." Your lawyer forfeited your claim.
- In 1946, Congress passed the Federal Tort Claims Act so that when a mailman causes a car accident, the feds will pay for the damage. (The Act covers other torts, bien sûr, but the mailman is the example that came up in legislative hearings.) Later, in 1974, Congress amended the FTCA so that when federal agents raid the wrong home, the feds are on the hook for damages. (The amendment covers other law-enforcement misconduct, bien sûr, but wrong-house raids were the motivation for the legislation.) Fifth Circuit: Good news in this tragic case; the act still covers postal worker accidents. Editorial comment: And maybe it still covers wrong-house raids, too. We'll have to see what SCOTUS does.
- Texas associate departs his law firm and also tries to leave with a bundle of clients and files. His former employer is displeased and sues him in state court. Associate moves to dismiss under Texas's anti-SLAPP law and then removes the case to federal district court. District court then remands on the ground that the MTD waived removal. Associate appeals, but under old precedent Fifth Circuit (2024) says it can't review remand orders based on waiver. Fifth Circuit (2025): And as an en banc court we now overrule that old precedent 17-0.
- Ohio man is convicted of murdering his wife. Yikes! The lead investigator is a serial fabulist, having lied about, among other things, having a master's degree, having been a U.S. Postal Inspector and a Special Forces parajumper. Sixth Circuit (unpublished): His testimony wasn't all that important. Habeas denied.
- Sixth Circuit: The Eleventh Amendment means never having to say you're sorry—and also that we can resolve the merits of your ADA claim against the state (there are none) while deciding we lack jurisdiction.
- In which the Seventh Circuit faults a set of plaintiffs for failing to clearly articulate whether their challenge to Cook County, Ill.'s Covid-19-vaccination policy is "facial" or "as-applied." (According to the plaintiffs, the county treated requests for religious exemptions worse than requests for secular exemptions.) Is the Seventh Circuit's complaint reasonable? Quite possibly. Is the distinction between facial and as-applied challenges an absolute mess that might not have been particularly relevant to this case at all? Also, quite possibly.
- Missouri man is going to trial for dealing meth when he tries to fire his (second) lawyer and defend himself pro se. District court: That's "not a very good decision." Even if you were a lawyer, "pro se is a bad decision." Defendant: Whatever. Court: OK, fine. Defendant is then convicted, receiving 25 years in the slammer. Eighth Circuit: This waiver was not made "knowingly, voluntarily, and intelligently".
- Allegation: Oklahoma City officer pushes calm, handcuffed, and very drunk man on the shoulder so as to nudge him toward paddy wagon. The man falls and breaks his ribs. Tenth Circuit: Accidents happen.
- Eleventh Circuit: The Eleventh Amendment may not allow federal courts to order the states to pay money, but these plaintiffs haven't asked the state for any money yet, which means federal courts can order the state not to withhold the money when they ask for it.
- We wish you could tell you if some of The Hollywood Reporter's reporting in its 2020 article entitled "Allegations of Prostitution, Substance Abuse, and Spying: Inside Hollywood's Nastiest Producer Feud" was defamatory or nah. But the Eleventh Circuit says the suit claiming as much is time-barred.
- And in en banc news, the Fifth Circuit will not reconsider its decision that an appellate waiver in a plea agreement did not cover restitution because the restitution was beyond the "statutory maximum" sentence allowed. Seven judges disagreed and would have granted the en banc petition. But what is the name of the disagreeing opinion they sign onto? Concurrence 1: No mention. Concurrence 2: Dissental. Concurrence 3: Dissent. Dissent(al): Dissent.
Victory! In 2022, IJ client Sean Young invited a group of high school art students to design a mural for his bakery's storefront. Within days, however, Conway, N.H. officials ordered him to remove the mural because the students chose to paint muffins, donuts, scones, etc. If the students had instead painted mountains or a covered bridge or literally anything else, no problem. If the exact same mural was painted on a different building in town, no problem. Which is a First Amendment problem, and this week a federal judge ruled that the town's enforcement efforts have "no rational connection to any of its stated interests." Click here to learn more.
Victory! Some weeks back, we obtained TROs barring the feds from undertaking ruinous financial surveillance of money services businesses in Texas and California. And we now have written orders (Texas and California) granting a PIs. And, friends, they're beauts. For example: "While the Government's goal of ferreting out illegal drug money laundering is laudable, the tactic employed here is akin to using a blunderbuss to target a fly, likely wreaking economic destruction on surrounding law-abiding citizens who the facts show are already subject to the 'nth degree' of audits by Internal Revenue Service, Texas bank regulators and other extensive federal reporting requirements, all of which give the Government ample information of suspicious activities. Using proper law enforcement investigation techniques and other information from Currency Transaction Reports already available, the Government could establish probable cause before a neutral judge to obtain a search warrant. This is called Due Process, the violation of which is the revolutionary reason for the Fourth Amendment to our Bill of Rights." Click here to learn more.