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

Discretionary lawn care, Agent Orange, and banished from South Georgia.

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

Victory! Yesterday, the Supreme Court unanimously ruled in favor of an innocent Atlanta family, represented by IJ, whose home was mistakenly raided by an FBI SWAT team. The Court undismissed all five of the family's claims under the Federal Tort Claims Act and rejected a novel and atextual rule that the Eleventh Circuit had invented to ding worthy cases. Click here to learn more.

New on the Short Circuit podcast: A whodunit with a serial-fabulist detective.

• Sesquipedalian federal judge Bruce Selya may be gone, but his influence lives on in First Circuit citations like this one: See Cohen v. Brown Univ., 16 F.4th 935, 944 (1st Cir. 2021) (concluding that an argument was preserved where "we have no reason to doubt that the district court grasped the gist of the [party's] argument" even though it was not made "with lapidary precision"). In other news, the First Circuit grants a new trial to a Puerto Rican man convicted of possessing a machine gun, whose objection to the conditions under which the jurors examined the weapon was just lapidarian enough to get the job done.
• In the latest as-applied attempt by a nonviolent convicted felon to get back his right to keep and bear arms, we have a New York man who in 2015 was convicted for defrauding a bank of tens of millions of dollars and cheating on over $1 mil in taxes. Second Circuit: We used to hang felons like you. That's why there "are no twins of the modern felon-in-possession laws" from the Founding. At least you've got your health.
• Allegation: Eyewitness fingers two teens for 1999 murder in New Haven, Conn. deli. But only after he said 18 times that he could not identify the masked perpetrators and detectives threatened to revoke his probation. Second Circuit (unpublished): That's the sort of thing that the jury should have heard about it. No qualified immunity. (The teens' convictions were vacated in 2018.)
• During the Vietnam War, the feds compelled Dow Chemical to make Agent Orange under threat of criminal liability and under strict supervision. So when people exposed to Agent Orange sued Dow in state court, Dow was able to have the case removed to federal court under the federal-officer removal statute. Third Circuit: Which Dow cannot avail itself of here. Though it made an allegedly toxic cleaning product to the gov't's specifications, it was not "acting under" the feds' direction. Back to New Jersey state court.
• But what if the wannabe-remover is a pharmacy benefit manager that negotiates a bunch of drug prices all at once and some of that includes drugs for federal employee insurance plans? Fourth Circuit (joining the First and Ninth Circuits on the same question): Sounds like a federal officer to me! In federal court ye shall stay.
• Former student files federal Title IX suit claiming Beaufort, S.C. school officials turned a blind eye to bullying, sexual harassment. District court: If she were filing a state-law negligent supervision claim, she'd have filed too late. And since that's the most analogous state law to Title IX, she filed too late. Fourth Circuit: No need to overcomplicate things. Title IX is analogous to Section 1983, which is most analogous to state-law personal injury claims, under which the suit was timely. Undismissed!
• Officials in the city of Tenaha and Shelby County, Tex. used to steal people's valuables at roadside stops, threatening them with criminal charges—and even to put their kids in foster care—if they did not sign over their property. Deplorable. Anyway, the most recent consent decree has expired, and the victims' attorneys would like to be paid for ensuring Tenaha lived up to it. Fifth Circuit: Practice tip! You have to notify the class first. Parties can't forfeit Rule 23(h).
• Double-homicide suspect abducts his infant son, leads Mississippi police on highway chase, and shoots at officers. Officers return fire, killing the child, whom the suspect had been holding in his arms. Fifth Circuit: Assuming that shooting an innocent hostage is a seizure, something that's unresolved, this use of force was reasonable.
• In determining whether an inmate should be paroled, Tennessee's Board of Parole relies on hearing officers who conduct hearings, take testimony, and propose recommendations. The Board also relies on a computer test, STRONG-R, to assess a particular inmate's fitness for parole. Allegation: The tests aren't always right—for instance, falsely flagging one plaintiff as having recently developed a drug addiction. And inmates can't meaningfully challenge the results. Sixth Circuit: Bummer if true, but because inmates don't have a protected liberty interest in parole, it doesn't really matter.
• Cuyahoga, Ohio housing officer: The suspect pointed a gun at me when I tried to arrest him, so I shot him in the back. Then he took off running until he collapsed and died. Eyewitnesses: We didn't see him holding a gun, and he was shot as he was running away. District court: Since the only witness was the defendant police officer, and his story sort of makes sense: qualified immunity. Sixth Circuit (unpublished): Reversed.
• For those practicing in the Seventh Circuit, here's a charming little primer on how the court screens district-court decisions for jurisdictional problems. It also sets out the path to take when the district court's Rule 58 judgment seems like it inadvertently didn't resolve all the claims of all the parties.
• In 2014, California businessman is convicted and sentenced to 17 years for hiding assets during his divorce, which came to light after he called the FBI and asked them to investigate his ex-wife. Ninth Circuit: The district court erred when it failed to transfer garnishment proceedings to the District of Oregon, where he purportedly resided at the time. And no, feds, this isn't moot. You still have a big chunk of his money. (A rare pro se win!)
• When Congress passed the Federal Tort Claims Act in 1946 to make the gov't liable for torts committed by federal employees, it included a "discretionary-function exception" that bars claims based on high-level policy choices, regulatory decisions, and the like. (Per Justice Robert Jackson, "it is not a tort for the government to govern.") But when federal employees cause car accidents (or fly a plane into the Empire State building), that does lead to liability, even though driving and flying require countless acts of discretion. Which is all to say that your humble staff—if we took positions on these things—would emphatically agree with the two-thirds of this Ninth Circuit panel that says that negligently maintaining a grassy area where national park visitors routinely trod is not discretion that is excepted from liability.
• Utah man pleads guilty to operating an unlicensed money transmitting business and agrees to criminally forfeit a lot of land. Uh oh! It's not his land, but rather is owned by a friend and former employee—though it was partially paid off with tainted money from the criminal enterprise. Tenth Circuit (over a dissent): The gov't may have had other ways to get at tainted proceeds, but taking land that was always owned by a third party isn't one of them.
• Man reports his car stolen and stays at the scene of the theft. Two miles away, the thief crashes the car as he's being pursued by a Miami police officer, who'd seen him speeding. The thief escapes on foot, leaving behind contraband. The officer then goes to the scene of the theft, thinks the man looks a lot like the guy who crashed the car, and arrests him. Yikes! The car was actually stolen. Man: To think I faked the theft, you'd have to believe I ran two miles in the eight minutes without getting sweaty or out of breath. Eleventh Circuit: You could have taken a scooter. QI.
• After man is released from jail, he complies to the letter with his only probation condition: banishment from five southern Georgia counties. But Georgia probation officers goof up and seek a warrant for his arrest; he's returned to the state and jailed for 104 days before it gets sorted out. Officers: He can't sue us for malicious prosecution because we didn't initiate a prosecution; we were merely revoking his probation. Eleventh Circuit: At common law, one could bring malicious-prosecution claims over all sorts of "suits or proceedings" that resulted in erroneous confinement. So, yes, this was a constitutional violation, and a clearly established one at that. No QI.
• And in state court news: Absolute prosecutorial immunity is a tough nut to crack, so we're ecstatic to report that this week a Michigan appeals court ruled that a prosecutor will have to explain himself for filing baseless criminal charges against IJ client Robert Reeves in retaliation for Robert's participation in a separate lawsuit challenging Wayne County's civil forfeiture practices. Click here to learn more. And click here for a lovingly crafted podcast episode on the history of prosecutorial immunity. Or click here for a lovingly crafted podcast episode on the history of civil forfeiture.

New case: Last year, U.S. Marshals kidnapped IJ client Penny McCarthy at gunpoint as she was doing yardwork in Phoenix, Ariz. They'd mistaken her for someone else: a nonviolent offender wanted on a 25-year-old warrant for missing a probation check-in. Ignoring evidence they had the wrong person and leaving her house unsecured, the marshals sent Penny to a detention center nearly two hours away where she spent the night in a cold cell. She was strip searched three times along the way. Which is unconstitutional and tortious, and IJ is suing the marshals and the federal gov't. Click here to learn more.