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

Miami vice, tactical dog bites, and the tantalizing takings clause.

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

Two weeks ago, we told you about Greers Ferry, Ark. officials putting a Flock surveillance camera directly in front of the home of retired couple Charlie and Angie Wolf. The Wolfs asked the city to take it down and were rudely rebuffed, but after IJ sent the city a letter explaining that the camera was a bit of a problem Constitution-wise, the city did the right thing and removed it. "We're thrilled that the Wolfs will no longer be subjected to constant warrantless surveillance of their property," said IJ Senior Attorney Josh Windham. "That said, there are still massive Fourth Amendment concerns with the use of these license plate reader cameras, and we urge the city not to renew its contract with Flock Safety when the initial term is up."  Click here to learn more.

On the latest Unpublished Opinions podcast, the team run through a lot of legal news, including the fact that AI keeps apologizing to IJ's Josh Windham.

  1. Social worker at public school in Maine gives 13-year-old "a device used to flatten a female's chest so as to appear male." The teen also starts going by another name and using different pronouns at school—neither of which are disclosed.  When mom finds out, she sues the school district for violating her right to direct the upbringing of her child. First Circuit: And we're not going to address that because none of this was a school policy, just employees doing stuff.
  2. In 1995, a 12-year-old reports that his mother's husband, a Boston cop, had been sexually abusing him for years. The cop is arrested, and both the police dept. and state child welfare officials investigate—each determining the evidence supports the allegations. And then … the charges are dropped, he's reinstated, and he continues to serve until his retirement in 2018 (including a stint as head of the police union). In 2022, he pleads guilty to sexually abusing six children. Did the City, its police officers and their union, and the state employees exacerbate the danger to the victims in violation of the Fourteenth Amendment right to bodily integrity? First Circuit: Indeed, they might have.
  3. UMass resident assistant has a handful of maladroit-but-not-particularly-sexual conversations with fellow RAs and sometimes extends his arms to invite a hug from one RA in particular. Following complaints, the University investigates, finds that he committed sexual misconduct, bars him from living on campus, and places him on "elevated probation" through his graduation. He sues, alleging a violation of his First Amendment rights. First Circuit: Even if his awkward conversations and invitations to hug were unwelcome, there's no evidence they actually disrupted the work or educational environment.
  4. Remember NFTs? They were like Pogs, but you could only look at them. Well, there's an online marketplace for them called OpenSea, and it would highlight specific NFTs, which typically caused their price to increase. One employee is responsible for choosing which NFTs to highlight, and he has the clever idea to highlight NFTs that he has already purchased anonymously. He sells them and ends up making $57k. He's found out, fired, and convicted of wire fraud. Second Circuit: Reversed! Because OpenSea doesn't buy or sell NFTs—it earns a commission on their sale—his insider trading didn't deprive OpenSea of any property.
  5. Following an egregiously violent attack on a prison official, New York inmate is sentenced to 14 years of solitary. After his term is up, he is kept in solitary on the grounds that he's a danger to the general prison population. He is held there for years, despite apparently good behavior. He challenges his continued detention in solitary as a violation of due process. Second Circuit: And the case should move forward; the cut-and-paste reviews of his continued detention were not meaningful process in light of his good behavior. Dissent: His behavior was probably good because you can't get in very much trouble when you're in solitary.
  6. New York town clerk alleges she was great at her job but was fired in retaliation for declining to talk to a judge about an ethics complaint against the judge. (Said judge later permanently resigned to avoid discipline over allegations she was fixing traffic tickets for relatives.) District court: No First Amendment protection for clerk's (non)speech because it was part of her job. Second Circuit: At least as alleged, talking about ethics complaints handled by a different agency is not part of her job. Case undismissed.
  7. New York federal indictment alleges Russian woman conspired with oligarch to evade sanctions, including making arrangements in California for his partner to give birth to their child there. She returns to Russia, refuses to return to U.S. after indicted, and moves to dismiss the indictment. Second Circuit: Have you heard of the "fugitive disentitlement doctrine"? Come back if you'd care for us to hear your motion.
  8. After mass shooting in Buffalo, N.Y. grocery store, which the shooter livestreamed, the state adopts law requiring social media networks, including even blogs where commenting is allowed, to adopt clear policies about and mechanisms to report hateful conduct. District court: What is required and what is prohibited is clear as mud. PI granted. Second Circuit (over a dissent): Not so fast. We have some questions for the state high court. Dissent: "No blogger can be free of jeopardy for the … reason that the regulation (enforced by ruinous fines) is intolerably opaque. … The uncertainty today is the point. It is the power to suppress that every government craves."
  9. In 2016, the Dept. of Labor imposed over $550k in penalties on a family farm in New Jersey for selling workers beer and soda, providing a meal plan where workers could buy pre-cooked meals, having bald tires on a bus, and other alleged violations of federal labor law. Farmers: Hey now. Half a million dollars? DOL ALJ, 2019: Pay up. DOL Agency Review Board, 2021: Pay up. Third Circuit (this week): Reversed. It's unconstitutional for the feds to impose these kinds of penalties in in-house tribunals where agency employees are prosecutor, judge, and jury. If you think the farm did something wrong, prove it in a real court. (This is an IJ case.)
  10. Pottstown, Penn. police stop, cuff Black man who had been looking in garage windows in back alley of residential block, per an anonymous tipster. Yikes! The man had just purchased a home there and spent "a few seconds" looking at his new neighbors' garages—on account of  wanting to build one for himself. Third Circuit (unpublished): The tip didn't justify the stop, and it's possible the officer displayed actual malice by getting the man prosecuted for disorderly conduct (purportedly for enduring the stop with insufficient equanimity). 
  11. In 2018, U.S. Marshals serving on a joint fed-state task force set loose a "tactical canine" into a Riverdale, Md. home at 2 a.m. to subdue man wanted for beating up his girlfriend. The dog instead bites the girlfriend, taking a chunk out of her leg. Might that have been unreasonable? Possibly even unconstitutional? Fourth Circuit (over a dissent): We really can't say. Since these guys are feds, they can't be sued.
  12. At the Institute for Justice, we're fans of both institutes and free speech. So naturally we're good buddies with the folks at the Institute for Free Speech (IFS). And this week, we're tickled pink to see that the Fifth Circuit has revived IFS's challenge to a Texas campaign finance provision that would treat their pro bono legal services to candidates and political committees as illegal corporate political contributions. [Ed.: We tried to warn Texas, but to no avail.]
  13. Allegation: Following multiple days of 100-plus degree heat inside Colorado City, Tex. prison, nurse sees inmate naked and nonverbal on the floor of his cell with four trays of untouched food beside him. She encourages him "to get up and get on with his day." He dies. Fifth Circuit (unpublished): It is clearly established that baking inmates to death violates the Constitution. And given that hundreds of such deaths have occurred in Texas in recent years, claims against some supervisors, in addition to the nurse, might have been dismissed too hastily. 
  14. In which the Eighth Circuit continues to express its dislike of private causes of action, this time regarding Section 208 of the Voting Rights Act.
  15. Minneapolis SWAT team raids apartment looking for murder suspect. Instead, they find the suspect's cousin asleep on a couch and shoot him dead. Plaintiffs: The cousin never raised his gun—for which he had a proper permit—toward an officer. Cop: The bodycam shows the man pointing the gun. Eighth Circuit: It's not definitive, so our review would be premature. No qualified immunity for now.
  16. Noted pillow salesman and election denier Mike Lindell issues a challenge: He'll show you data he claims is from the 2020 election, and if you prove with 100% certainty that it's not, he'll give you $5 mil. Experienced software developer enters the challenge, reviews the data, and issues a 15-page report concluding that the data "unequivocally does not contain packet data of any kind and does not contain any information related to the November 2020 election." Contest judges are, unsurprisingly, not 100% convinced, and the software developer exercises his right to arbitrate. Arbitrators: Give this man his money. Eighth Circuit: We're extremely deferential to arbitration, but we think these arbitrators misinterpreted the contract. Appellate practitioners: That is not the standard!
  17. In 2020, Little Rock, Ark. police-brutality protester throws Molotov cocktails at three police cars, causing $86k damage. Eighth Circuit (over a dissent): Which is a federal crime because the different police dept's that owned the cars got 2%, 1%, and 0.7% of their budgets from the feds, respectively, even though federal money was not used to buy the cars.  
  18. California passes a law that says providers of continuing medical education must include curriculum about implicit bias in the practice of medicine, unless they're based outside of California in which case they don't have to. California CME Provider: This violates my First Amendment rights. Ninth Circuit: Of course, we all recognize that when we take continuing education classes we're listening to the gov't's speech, not the speech of the private educator, so the First Amendment doesn't apply.
  19. Friends, your humble summarist has not read this shoot-em-up between Google and the makers of the videogame Fortnite, and indeed—fun fact—the Ninth Circuit publishes its own summaries of its published opinions. But we want to add some value, and so we relate that 117 lawyers—give or take—were involved in the briefing.
  20. After two Miami businessman support his opponent in 2017 election, city commissioner (a former mayor) unleashes a campaign of harassment—sending mobs of police, code enforcement, fire inspectors, and other city employees to shut down the plaintiffs' businesses, harass plaintiffs' commercial tenants, and even shut down an annual holiday party. Plus much more. Jury: Which was unconstitutional retaliation. Pay $63.5 mil. Eleventh Circuit (unpublished): Yup, pay up.
  21. The joke around water trough here is that one day soon, law schools are going to have start offering a class called "The Law of Fane Lozman." This week, the two-time Supreme Court winner returns to the Eleventh Circuit (unpublished, per curiam), and we learn that the Swamp Lands Act of 1850 does not mean the feds improperly ordered him to remove a container home and floating docks that he built without a permit on sometimes-submerged land he owns on Lake Worth Lagoon in Palm Beach County, Fla.
  22. Friends, the Fifth Amendment says that when the gov't takes property, it must pay just compensation. Eleventh Circuit (over a tantalizing dissent): Right so, when the gov't takes private property, it must pay just compensation. [Ed.: We are honored that the panel reached out to us, among others, to file an amicus brief and chuffed that the majority accepted essentially all our arguments in such a well-written, deeply persuasive opinion. We are also chuffed that we had the foresight to prepare an in-depth podcast episode that we know you'll like on this very issue.

And in other amicus brief news, IJ is urging the Eighth Circuit to do the right thing twice. In 2023, it denied judicial immunity to a judge who took off his robe, stepped down from the bench, and personally jailed two innocent children and threatened to put them in foster care if they didn't go home with their mom. (They wanted to go with their dad.) After a jury verdict in favor of the kids, he's now seeking qualified immunity, notwithstanding the Supreme Court's repeated admonitions that obvious constitutional violations are not shielded.