Short Circuit: An Inexhaustive Weekly Compendium of Rulings from the Federal Courts of Appeal

Big game hunts, Victorian London, and those trendy Trader Joe’s bags.

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

Where's the (cultivated) beef? Not in Texas. Starting September 1, it is illegal to sell cultivated meat—meat grown directly from animal cells—in the Lone Star State. The law's sponsors admit that the purpose of the law is to protect Texas cattle ranchers from this innovative competition, but that is not a legitimate use of government power. That's why IJ has teamed up with two California-based startups, Wildtype and UPSIDE Foods, to challenge Texas's unconstitutional ban. Read more here.

1. Following executive order, State Department adopts policy requiring passports to state biological sex of bearer. Transgender and non-binary plaintiffs challenge policy and win preliminary injunction in Massachusetts district court. Gov't: Please stay the injunction pending appeal; this policy isn't subject to judicial review. First Circuit (order, and hence in a blessedly non-Courier typeface): Seems like it is reviewable, and you didn't really engage with the merits of the district court's decision, so the injunction shall stay in place.
2. This First Circuit qualified-immunity opinion not only provides a chart to help the reader understand the sequence of events in question but then helpfully reproduces that very chart in a later footnote just in case the reader has forgotten the chart from five pages ago.
3. For hardcore defamation-law fans who have not read enough about Donald Trump's defamation of E. Jean Carroll and the ensuing six years of litigation, we offer this Second Circuit opinion affirming an $83.3 mil award in Carroll's first defamation case against Trump (which, oddly, went to trial after her second defamation case against Trump).
4. In good free-speech news, the Second Circuit holds that restrictions on legal advice are restrictions on speech that require First Amendment scrutiny. In bad free-speech news, the same panel then holds that the trial court erred in applying strict scrutiny instead of intermediate scrutiny to those restrictions. And in rather-vexing free-speech news, the panel then just vacates the plaintiffs' preliminary injunction instead of explaining whether the restrictions survive intermediate scrutiny. (This is an IJ case.)
5. In which the Harvard Law professoriat continues its suitably distinguished streak of falling on their faces in the circuit courts, this time in the Second Circuit. (In the interests of precision, we'll note that we're not entirely sure whether this latest appellant still is a member of the faculty, but since his pro se brief takes pains to note the affiliation, so too shall we, your 'umble correspondents.)
6. Third Circuit: Look, we can certainly imagine that having a philosophy professor who publicly talks up Hitler off-campus might disrupt your college's operations, but the deal is that we don't have to imagine the disruption, you have to prove it. Case un-dismissed!
7. Much of modern constitutional law seems to center around whether a time-traveler from 1791 would think this Third Circuit opinion correctly evaluates various New Jersey restrictions on owning or carrying firearms, but it's maybe more fun to imagine a time-traveler from, say, the 1990s, who would be impressed that the majority and dissent span 236 pages instead of simply answering the question "can the government ban firearms when . . ." by saying "yes" before anyone finished asking.
8. Fourth Circuit: The Eleventh Amendment, in its majesty, means courts cannot order a state to pay interest that accrued yesterday but can absolutely order a state to pay interest that will accrue tomorrow.
9. By early March, the Trump administration had fired more than 24,000 probationary employees. Blue states sued, and the District of Maryland preliminarily enjoined the firings. Fourth Circuit (over a dissent): A statute saying affected states are supposed to get 60 days' notice of reductions in force might mean there's some injury—but not nearly enough for states to control federal employment. These suits need to be brought by the employees themselves. No standing; case dismissed.
10. Lead counsel is hospitalized right before oral argument. Court declines to postpone argument. With two hours' notice, second chair is haled to the lectern (and does a bang-up job). Fifth Circuit (published order): On reflection … we're willing to do an additional argument by Zoom if you guys want. Two-judge concurrence: And for everyone's benefit in the future, here's a string-cite of examples of other courts' postponing arguments on the front end in response to last-minute emergencies.
11. In 2015, the Baptist Convention of Maryland/Delaware fired its executive director (who is also an ordained minister) after conflict between him and a partner religious organization ended in a "schism." [Ed. Note: Hah.]  In 2017, he sued the partner organization. In 2020, the Fifth Circuit held it "premature" to dismiss his claims under the church autonomy doctrine. Judge Oldham, on the losing side of a 9–8 vote that denied rehearing en banc, had some things to say. And now that it's 2025, this time Judge Oldham's got the panel opinion. So click here for an extremely thorough history of the church-autonomy doctrine, from before the Norman Conquest to the present day. The upshot? It's basically "church autonomy immunity," and, sorry, executive director, we're not going to decide whether your leadership was sufficiently Christ-like. Dissent: Aren't we missing both a church and a doctrinal dispute?
12. As some of the hippest shoppers around, Short Circuit readers are undoubtedly familiar with the trendy bags & accessories available at Trader Joe's. They may also be familiar with the Trader Joe's union. But they may not be aware that the union also sells trendy items with a logo that looks similar to its collective-bargaining partner's. Trademark violation? District court: No, plus no injunction due to the Norris-LaGuardia Act. Ninth Circuit: Seems perhaps confusing to us and after remand an injunction might be OK if the facts show this ain't a "labor dispute."
13. Making a domestic violence call, North Las Vegas, Nev. officers see a man flee out the back. They scurry around the neighborhood but can't find him. At least 18 minutes later one officer with his K-9 "Storm" ignores a "Beware of Dog" sign and jumps a wall to see if the suspect's in a nearby backyard. Non-law-enforcement canines "Shadow" and "Whitewall" greet them in a most unfriendly manner. Defending Storm, officer shoots and kills both dogs. The fleeing suspect is never found. Ninth Circuit: No QI for jumping the wall but QI for shooting the dogs (though the dog owners might get those damages through the jumping-the-wall claim anyway).
14. Artist posts sketches of characters to a website dedicated to crime and scandal in Victorian London. One is an occult-obsessed magical-witch-doctor-feminist-assassin who wears matching jackets and skirts. Another is an African explorer/clairvoyant P.I. with a lost half-sister. Artist also suggests actors for the characters, including Eva Green for the assassin. Three years later Showtime releases Penny Dreadful, a show that includes . . . a witch with supernatural abilities (played by Eva Green) and an African explorer whom she helps look for his lost sister. Copyright violation? Ninth Circuit: Victorian London was simply crawling with swells like this, so any similarity is purely coincidental.
15. Should California's new law designed to protect minors from "addictive" social media be preliminarily enjoined? Ninth Circuit: Mostly not, but the prohibition on showing minors the number of "likes" or other feedback on a post goes too far.
16. Motion-capture technology company sues Disney, alleging that Disney misused the company's technology in the 2017 live-action remake of "Beauty and the Beast." A jury finds Disney liable for $600k, but the trial court grants the Mouse judgment as a matter of law. If you'd like to read the Ninth Circuit opinion reversing that decision, well . . . be our guest.
17. More American Indian legal drama out of Oklahoma! In a vehicular-manslaughter prosecution, gov't had to prove defendant was an Indian to have federal jurisdiction. Defendant testified he was a tribal citizen, and he had also asserted that in state court to get out of related civil lawsuit. Tenth Circuit: Be that as it may, the gov't had to prove he was an Indian at the time of the crime, and the only evidence specifically bearing on timing was inadmissible hearsay. Conviction vacated.
18. You know that trope in movies where someone is talking at a noisy party and the music stops and everyone hears them loudly say something really awkward? Well, this renowned dentist and avid big-game hunter had, like, the worst one of those ever. Tenth Circuit: And his conviction for murdering his wife while on safari in Zambia is affirmed.
19. Do New Mexico's disclosure requirements for electioneering communications violate the First Amendment? Tenth Circuit: No. Concurrence: But I wish I could say they did. Dissent: They do.
20. Alabama man pleads guilty to a state Class D felony and receives a 24-month suspended sentence and is placed on probation for two years. Six months after completing his sentence, he's found with a gun. He is charged and convicted under the federal felon-in-possession statute. Eleventh Circuit: Twist! Despite being ubiquitously called the "felon-in-possession" statute, the word "felon" doesn't appear in the law. Instead, it applies only to people convicted of crimes punishable by more than a year in prison. And under Alabama law this guy could not have received a sentence of more than a year in prison. He may be a felon, but he's free to go.
21. Transgender Georgia sheriff's deputy seeks male-to-female sex-change surgery, but the procedures are excluded under the office's insurance policy. The deputy sues under Title VII for sex discrimination. But which Supreme Court precedent controls: Bostock or Skrmetti? Eleventh Circuit (en banc): Skrmetti. Concurrence: Skrmetti, but Bostock has its place. Concurrence 2: Skrmetti, regretfully. Dissents x3: Bostock.

Law students! Consider joining us at one of IJ's upcoming Legal Intensives, where you'll take part in interactive sessions on constitutional and public-interest law led by IJ attorneys. These programs are designed to help you build practical skills, learn effective strategies, and connect with like-minded peers and practitioners. On November 14–15 in Nashville, Tenn., the Intensive will focus on Economic Liberty, with sessions highlighting the fight to protect home-based businesses and food freedom. Then, on January 23–24 in Arlington, Va., we'll turn to the Fourth Amendment, exploring current cases and practical strategies for future litigators. Apply now! All travel fees covered by IJ for accepted students.

 

Comments

[jimc5499]

So how does a State Court get control over Passports that are issued by the Federal Government?

[Bill Poser]

No state court was involved. The trial court was a federal district court located in Massachusetts, not a Massachusetts court.

[John F. Carr]

The felon-in-possession statute would work better if it were based on actual prison terms rather than hypothetical prison terms.

[Number 2]

Bruce Hay is still suing people over the story he voluntarily gave to New York Magazine? How can this guy still be a professor at Harvard law school? He isn’t fit to teach preschoolers.

[Stupid Government Tricks]

Just as cops don't want smart recruits, neither do woke colleges want independent thinkers. Preschool mentality seems right up their alley.

[Syd Henderson]

Somebody will probably film #18 as a true crime drama. It's got all the elements: sex, murder, big game hunting, dentistry...

[MatthewSlyfield]

.

Alabama man pleads guilty to a state Class D felony and receives a 24-month suspended sentence and is placed on probation for two years. Six months after completing his sentence, he's found with a gun. He is charged and convicted under the federal felon-in-possession statute. Eleventh Circuit: Twist! Despite being ubiquitously called the "felon-in-possession" statute, the word "felon" doesn't appear in the law. Instead, it applies only to people convicted of crimes punishable by more than a year in prison. And under Alabama law this guy could not have received a sentence of more than a year in prison. He may be a felon, but he's free to go.

Since when is 24 months not more than a year?

[F.D. Wolf]

The sentence was "suspended" for 24 months. It could have been suspended for 24 years, but had the court eventually imposed a sentence, the maximum sentence would have been a year. It's essentially putting him on probation for 24 months.

[Poxigah146]

Because Alabama basically had binding sentencing guidelines in effect that prohibited any prison time, much less more than a year, for this first offense Class D felony.

A similar, but opposite, situation applies in Pennsylvania. Pennsylvania has a misdemeanor that carries a maximum 2 year prison sentence. The courts have held that a person convicted of that misdemeanor is federally disqualified from possessing a firearm.

In essence, what matters is not what a state calls a particular crime, but what the maximum sentence is.

[QuantumBoxCat]

The explanation is on the first couple of pages of the opinion. The statute authorized punishment of up to 5 years in prison, but a subsection of the statute lists specific criteria related to a defendants criminal history that had to be met for the defendant to be sentenced to any prison time. Gaines did have the criminal history specified in those subsections and thus, by the statutes language, could not be sentenced to any prison time. Instead, the statute required the court to sentence Gaines to probation, which it did.

The Court reasoned that the federal "felon in possession" statute had to be read in a defendent-centered context based on Supreme Court precedent. Since this specific defendant, Gaines, could not be sentenced to more than a year under the state law (because he didn't have the requisite criminal history), he didn't fall under the requirements for the felon in possession statute.

[wvattorney13]

"Transgender Georgia sheriff's deputy seeks male-to-female sex-change surgery, but the procedures are excluded under the office's insurance policy. The deputy sues under Title VII for sex discrimination. But which Supreme Court precedent controls: Bostock or Skrmetti? Eleventh Circuit (en banc): Skrmetti. Concurrence: Skrmetti, but Bostock has its place. Concurrence 2: Skrmetti, regretfully. Dissents x3: Bostock."

I don't understand how you would analyze this under Bostock. Bostock says change the sex and see what changes. So here you have a man who wants medical treatment to become a woman. Change the sex and you have a women who wants medical treatment to become a woman? That's an absurdity. She's already a woman. There is no Bostock comparator.

[Poxigah146]

Perfect summary of the 3rd Circuit Second Amendment case. Their logic over that 150 pages is basically "The Supreme Court said that we must find historical analogues that need not be identical. Since there were some restrictions at the time of the founding, any restrictions today are analogous, and thus, constitutional."