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
Colorado River abstention, Wilton-Brillhart abstention, and sua sponte shenanigans.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
What's so natural about rights? Well, a lot of our state constitutions actually call some rights "natural." And state courts consider all kinds of rights of the "natural" variety, from life, liberty, and the pursuit of happiness to the right to worship to the right to earn a living. In State Court Report, Anthony Sanders, the director of IJ's Center for Judicial Engagement, summarizes the family of "natural," "inherent," "unalienable," and "fundamental" rights—both "enumerated" and "unenumerated"—and what state courts are doing these days to protect them.
This week on the Short Circuit podcast: One gun a month is too few, even in the Ninth Circuit.
- At 2020 police-brutality protest, a 6'5", 250-lb. Stamford, Conn. officer—without warning or command—hoists woman by her bra strap, pushes her backward in the air for about 15 feet, and then slams her to the pavement. The woman—who was not a protester; she was there at the request of a police supervisor to deescalate—suffers serious head and neck injuries. Second Circuit: And since it's not clear from the video whether he was trying to get past her to aid other officers or just gratuitously thumping people, the grant of qualified immunity is vacated.
- Shortly before the 2016 election, self-described Twitter "shitlord" tweets and retweets memes urging supporters of Hillary Clinton to vote by text message. More than four years later—and two days after the inauguration of President Biden—he is criminally indicted for conspiring to injure citizens in the exercise of their right to vote. After four days of deliberation and two Allen charges to the jury, he's convicted and sentenced to seven months in prison. Second Circuit: But there was no evidence he actually conspired with anyone, which is, y'know, an element of the crime.
- The federal Protection of Lawful Commerce in Arms Act preempts civil liability against gun manufacturers or sellers when gun users engage in illegal behavior. But not when the manufacturer or seller knowingly violates state or federal law. So how about a N.Y. law specifically enacted to go after the gun industry? Members of the industry challenge the law. Second Circuit: And they miss the mark because facial challenges are hard. Concurrence: But they have a good shot in an as-applied case. Governor Cuomo pretty much admitted this law is an end-run around the PLCAA when he signed it.
- How far down a 70-foot driveway does the home's curtilage begin? Pittsburgh, Penn. officer followed a car into a driveway after smelling weed, searched the car, found an illegal gun. The driver argued that the officer entered the curtilage of his home without a warrant. Third Circuit: If you just look at these pictures, you'll see that the officer was standing "several dozen feet" from the garage, outside the curtilage. Affirmed. Dissent: If you just look at these pictures, you'll see that the officer was more than halfway up the driveway, past the stairs to the front porch, in an area enclosed on three sides, within the curtilage.
- "Twenty-four years ago, [Virginia] decided that Appellant was a guilty man. From that moment, the Commonwealth has done everything in its power to ensure Appellant dies in prison, eschewing the Constitution, ethical strictures, and Appellant's own repeated and consistent assertions of factual innocence." So says the Fourth Circuit in its fourth consideration of habeas for a man once sentenced to death for a murder-for-hire scheme in which the only evidence tying him to the crime was the shooter's since-recanted testimony that the shooter said was coerced by the state via death-penalty threats.
- Allegation: After shooting at Dallas bar, investigators clear the bar owner and a security guard of wrongdoing. Yikes! A detective who isn't assigned to the case—and who is secretly moonlighting for a neighboring property owner (who wants the bar gone)—gets the bar owner and guard brought up on bogus charges. (Prosecutors drop the case mid-trial when the conflict of interest comes to light.) Fifth Circuit: Despite any ulterior motives, the detective was doing detective stuff and thus acting within the scope of his employment. Which means, contrary to the district court, that he's immune from civil liability under Texas state law. Concurrence: We should rethink whether interlocutory appeals of denials of state-law immunity should be available.
- Allegation: Harris County, Tex. deputy constables like to use the n-word, refer to a police vehicle as "slave transport," and circulated pics and cartoons of a black mamba snake—a reference to plaintiff's private parts. Fellow deputies also refused to provide backup for plaintiff, and supervisors required him to clean vehicles soiled with excrement, which white deputies were not assigned to do. Fifth Circuit (unpublished): And there's some evidence that he was fired for pretextual reasons when he complained, so his Title VII race-discrimination claims should not have been dismissed.
- Allegation: Pretrial detainee in Henderson County, Tex. is placed in housing with violent, dangerous men who threaten him. Guards refuse to move him, so he falsely claims to be suicidal. Guards tell him "you really fucked up now, bitch," and put him in a cell (for five days) where there is no bed or bedding and the lights are on 24/7. For a bathroom, there is only a small, grated drain in the middle of the cell, through which he has to push his feces using a paper cup. Guards taunt and threaten him, saying "you are not leaving this facility alive." Fifth Circuit (over a dissent): Well, he asked to be put in there, so.
- In 2014, plainclothes members of an FBI task force mistake an innocent Grand Rapids, Mich. college student for a fugitive and nearly beat him to death when he tries to escape what he thinks is a mugging. Sixth Circuit: It was attorney error or strategic miscalculation to waive his tort claims back in 2019. Dissent: His attorneys would have to be clairvoyant to have foreseen the 2021 Supreme Court decision that dinged his constitutional claims; he should be permitted to unwaive his tort claims. [Ed.: We are his attorneys, and we note this decision creates a hot new Rule 60(b)(6) circuit split!]
- In this case, the facts remind your summarist why Trusts & Estates was one of the most interesting classes in law school. The law is a Sixth Circuit tour de force on the critical distinction between standing and merits. And the outcome is an object lesson in raising your strongest defenses early, rather than hoping to contort them into a jurisdictional argument after losing.
- The Sixth Circuit's adventures through family inheritance feuds continues in this case, here with a healthy dose of copyright law. What comforting words can we give the effectively disinherited granddaughter? Que Sera, Sera.
- Allegation: In 2018, Louisville, Ky. officers arrest man with a little bit of weed and a lot of cash. Yikes! After he's been searched three times, officers "find" a small bag of meth. They also "find" a large bag of marijuana, the discovery of which is mysteriously not captured on bodycam. In 2020, the man's motion to suppress is granted: Officers had no business searching him in the first place. Sixth Circuit: His unlawful-search and false-arrest claims had to be filed while the criminal case was still ongoing to make the one-year statute of limitations, so those were filed too late. But fabrication-of-evidence claims don't accrue until a criminal case is over, so that was filed on time. And here, there's a "litany of evidence" that officers planted the drugs. Case undismissed.
- Under Texas's S.B. 8, any person can bring a bounty-hunter suit against a defendant, seeking statutory penalties for the defendant's having performed an abortion. Three such plaintiffs file three such suits against a single doctor. Doctor brings interpleader action in Illinois federal court (home jurisdiction of one of the plaintiffs). District court: No defendants raised this issue, but I'm going to sua sponte abstain from exercising federal jurisdiction under the Wilton-Brillhart doctrine. Seventh Circuit: No one's raised this issue either—not even the amicus appointed to argue for affirmance—but we're going to sua sponte affirm abstention under the Colorado River doctrine. But wait (you may be asking), even if Colorado River abstention can sometimes be raised sua sponte, isn't it a questionable and possibly unconstitutional practice to rule on that ground without first giving the plaintiff notice and a fair opportunity to respond? And since Colorado River abstention ordinarily rests in the discretion of the district court, does it really make conceptual sense for the appellate court to rule on that ground in the first instance? When the district court never had the opportunity to exercise its discretion one way or the other? And to those questions, dear reader, we say … you are an incisive interlocutor and we, your humble summarists, can but shrug in response.
- In 2021, Sunrise Beach, Mo. officer arrests pedestrian who took umbrage at the officer's demand for ID, later saying "I didn't want him walking down my highway" and asking colleagues "What can I get him on?" (No charges were filed.) After the officer is sued, he says the arrest was for walking on the wrong side of the road. Pedestrian: The real reason for the arrest—and by the way, the officer lied about me being drunk—was that I criticized him. Eighth Circuit (2023, unpublished): Case dismissed. There was probable cause to arrest for walking on the wrong side of the road. Eighth Circuit (2025, after an IJ cert petition and a GVR from the Supremes): If no one ever gets arrested for that, then it could have been an unconstitutional retaliatory arrest. To discovery this must go.
- In 2013, a Montreal Maine & Atlantic railroad engineer improperly sets the brakes on a train carrying crude oil. It rolls downhill for several miles until 63 railcars derail in Lac-Mégantic, Que., setting off a series of explosions that kill 47 people and destroy the downtown. MMA admits 100 percent fault, shuts down, and transfers all its assets to victims. Eighth Circuit: A different railroad company that had operated the train on the previous leg of its journey and was 0 percent at fault doesn't need to pay the victims.
- Over the course of a few weeks, a previously healthy, 20-year-old pretrial detainee vomits frequently, loses his hearing, can't stand, stops eating. He's offered Tylenol and told to quit faking. He dies in St. Louis county jail of acute, but treatable, leukemia. Eighth Circuit: And some of his mother's claims should have gotten past the pleading stage.
- In a case of nominative determinism, the Ninth Circuit must decide whether one Mr. Liberato—who was convicted of unlawful re-entry following removal from the United States—should be set free. Ninth Circuit: He was arrested just over the border fence, and there's no evidence he was ever free from official restraint, which is an element of the crime. Él está liberato. Dissent: ¡No! You're not viewing the evidence in the light most favorable to the gov't, which suggests he was free from official restraint—at least for a short time—before his arrest.
- California prohibits advertising firearm-related products "in a manner that is designed, intended, or reasonably appears to be attractive to minors." The publisher of Junior Shooters, a youth-oriented magazine focused on firearm-related activities and products, challenges the ban under the First Amendment. Ninth Circuit (2023): They're right, the law should be preliminarily enjoined. Ninth Circuit (2025; unpublished): Yes, district court, we meant the whole thing.
- Allegation: Arapahoe County, Colo. social worker (who's now in prison for lying in a different case) committed perjury at a custody hearing, testifying, for instance, that a minor gave her father baths when in fact the minor had described giving the family dog a bath. (The parents lose custody for 18 months.) Tenth Circuit: Officials who lie on the stand get absolute immunity. [For a deep, documentary-style dive on absolute testimonial immunity, give this podcast a listen.]
- The Tiger King, currently serving 21 years in prison for attempting to hire a hitman to kill an animal rights activist and for actually killing five of his tigers, seeks a new trial on the basis of purportedly new evidence indicating that several witnesses had lied and that the tigers were already ill when he killed them. Tenth Circuit: No new trial. He waived several of his arguments, but for those we address on the merits, he's just wrong.
- Black man is arrested (and spends three days in jail) for filming in entryway to Denver police station. There's a sign saying no videorecording is allowed in the station, but he didn't try to go past the sign and into the station. (A few days later, a white man films in the same place, and he's not arrested.) Tenth Circuit (unpublished): Even if it was unreasonable to arrest him, it wasn't unreasonably unreasonable. Denial of QI vacated.
New case! IJ clients Alex and Lynda Pepin want to build an accessory dwelling unit (ADU) in their backyard, and ADUs are perfectly legal in Blaine, Minn. But because of unfounded neighborhood opposition, officials rejected the Pepins' application, which is fully compliant with the city's strict rules about square footage, height, setbacks, parking, aesthetics, and much more. The Pepins intend to rent to a family that is transitioning out of homelessness (with support from and vetting by a local nonprofit), and neighbors spread false rumors that the ADU will be rented to criminals or become a homeless shelter. But the U.S. and Minnesota constitutions secure the Pepins' right to be treated the same as anyone else with a fully compliant permit application, and this week IJ and the Pepins filed suit in state court. Click here to learn more.
