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

Solar panels, campus protests, and not much due process.

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

Hey, neat: Both The New York Times and The Washington Post featured stories about IJ client George Retes—a U.S. citizen and Iraq combat veteran beaten up by ICE and detained incommunicado for three days—this week. And don't sleep on ProPublica's coverage from last week.

New Short Circuit Live at GMU's Antonin Scalia Law School: A D.C. Circuit-focused episode with tales of the unitary executive, freedom of the press, and making bank after blowing the whistle.

1. Jewish students sue MIT, alleging that the school violated federal civil rights law by failing to crack down on antisemitic protests. First Circuit: Technically they were anti-Zionist protests, but even if they weren't, the school's gradually escalating actions were reasonable.
2. After man drops knife he'd been holding to his own throat, a Newton, Mass. officer attempts to fire a "usually less-than-lethal" beanbag round from close range. The officer's gun clicks loudly but does not fire. District court: And since the man then picked the knife back up and advanced toward an officer, qualified immunity for shooting him dead with regular rounds. First Circuit: Did he pick the knife back up? To discovery this must go. Partial dissent: The beanbag violated clearly established law; we should have undismissed that as well.
3. New York allows Medicaid beneficiaries that need help with daily living to hire assistants with public money. The program used to be administered by around 600 private "fiscal intermediaries," but in 2024 the state replaced them with a single state-run intermediary. Private intermediaries: It's a taking! An interference with obligations of contract! Irrational! Second Circuit: It is none of those things.
4. Solar panel scammers fraudulently convince New Jersey woman she can get free solar panels, then sign her up for a 25-year, $100k loan without her knowledge or permission. She sues the scammers and the scam-adjacent lender but later drops the scammers and focuses on the lender. Third Circuit: Boy, we wish you hadn't done that.
5. Pro tip: If planning to leave 60+ threatening, profanity-laced voicemails for the Franklin County, Ohio judge presiding over your drunk-driving case, be sure to identify yourself by name, leave your phone number, and advise her that you're located in a different state and that the federal authorities alone have the power to arrest you. Also consider calling in bomb threats to a local bar, a Home Depot, a Best Western, and two nearby schools. And phoning the local sheriff's office 100 times to advise them (among other disobliging things) that one of their dispatchers is "probably fat as fuck." Sixth Circuit (unpublished): Conviction affirmed.
6. This Seventh Circuit decision about the due-process rights of inmates placed in segregation is worth a read if you like that sort of thing. (Bottom line: the process due is … not much.) But for your summarist, the most interesting part is the revelation that some gangs require their members to fill out questionnaires identifying themselves, their offenses, their affiliations, and other data. Dissent: "I believe this court is losing its way on prisoner due process claims." (Shout-out to Judge Rovner, by the by, for the piquant diamond-shape dinkuses in her dissent.)
7. Minnesota mom works at a bank with a branch inside the local high school. She's fired after heated interactions with school officials criticizing a mandatory masking policy in 2021. She sues, claiming school and bank conspired to retaliate against her speech. Eighth Circuit: The First Amendment doesn't require being Minnesota nice, and a jury should decide this case under the same constitutional standard that would apply to any private citizen. Concurrence: I would instead apply the balancing test for public employees, but you betcha a jury should do that balancing.
8. Homeless, sexagenarian woman builds home on vacant strip of public land, which she keeps spick and span. District court: And it may well violate due process for Vallejo, Calif. officials to evict her without finding a suitable place for her to go. PI granted. Ninth Circuit (unpublished): And since she's now in a suitable place, the case is moot.
9. In 1995, a pair of teens (16 and 14 years old) are arrested for King County, Wash. property crimes. Police probe to see if they'd also stabbed a man whose body was found nearby. They interrogate the older one, who states that he aspired to be a Crip and had killed 13 gangsters in the past (a statement no one believed). He also confesses to the murder but with significant discrepancies from the evidence. Nevertheless, he's tried as an adult, convicted, and sentenced to 46 years in prison. Twenty years later, DNA testing excludes him. He's released and sues for various constitutional violations, all of which the district court rejects. Ninth Circuit (unpublished): A jury needs to consider if a detective fabricated evidence.
10. Several months after California inmate sues guards over 2016 beating, the state files criminal charges against the inmate for resisting the guards. After receiving assurances that it won't affect his civil suit, the inmate pleads "no contest" to the criminal charges. Ninth Circuit (over a dissent): The plea was not an admission of guilt, so the civil suit can proceed. Case undismissed.
11. Life tip from Utah: If you've got a ne'er-do-well brother, don't lend him half a mil. He might commit wire fraud to avoid paying you back. While serving a home-custodial sentence for healthcare fraud. And while awaiting trial on the wire fraud, he might be convicted of being a felon in possession of ammo. (Possibly, he might be involved in animal cruelty.) Tenth Circuit (over a partial dissent): Wire fraud conviction affirmed.
12. And in en banc news, the Third Circuit will not rehear an earlier panel decision striking down Pennsylvania's requirement that mail-in ballots be dated next to the voter's signature. Newly appointed Judge Emil Bove pens his first dissental, arguing that the First and Fourteenth Amendments do not prohibit a decades-old requirement that, "[f]or a voter with a functioning pen, sufficient ink, and average hand dexterity . . . should take less than five seconds."
13. And in more en banc news, the Ninth Circuit will not reconsider its opinion that the NLRB can award consequential damages. Six judges dissent from the denial and tie a bow around some glittering prose that packages the Seventh Amendment with the nation's largest department store. It's perfect for friends, relatives, or underneath the tree.

Cert denied! Less than a week after they bought their new home, IJ clients Corrine and Douglas Thomas were fined over $1 mil because Humboldt County, Calif. officials believe the prior owner grew cannabis there. And while the county doesn't care that Corrine and Doug are innocent, we think a Humboldt County jury might. So we asked the Supreme Court to revisit a 1916 decision holding that the Seventh Amendment's civil jury trial right does not apply to the states. Sadly, the petition was denied this week, but Justice Gorsuch sees room for a rethink: "Surely, those who founded our Nation considered the right to trial by jury a fundamental part of their birthright." Hear, hear. And fear not, other constitutional claims in the case are alive and well at the district court. Onward! Click here to learn more.

Comments

[wvattorney13]

Number two is interesting. Convince me why the officer was privileged to fire the beanbag AFTER the guy dropped the knife. If he wasn't, then the officer was the initial aggressor and could not use any force, let alone lethal force without clearly retreating and making it clear that he was no longer interested in fighting.

The clearly established law: 700 years of tort.

[TextFirst]

By the frank admission of the deceased relatives, it was a split second decision when dealing with a crazy, dangerous predator. If in his professional judgment the best option was to use the beanbag round to disable the threat, then that should receive extremely broad discretion. Just because he for now dropped the knife doesn't mean he wasn't a threat. In any event, even if found liable, no more than a dollar in damages should be awarded.

[wvattorney13]

"If in his professional judgment the best option was to use the beanbag round to disable the threat, then that should receive extremely broad discretion. "

The only threat was to himself. Once he drops the knife, there is no more threat. There is no privilege to use force because someone is generally "a crazy, dangerous predator."

[TextFirst]

To the jury this may go, but if it does then the police can quite plausibly testify that they feared for their lives and wanted to disable him. Just because he dropped the knife doesn't mean he's not a threat. His erratic, dangerous behavior gives them ample justification that the best thing to do is to disable him with a bean bag round. It didn't work out in his favor, tough rocks.

[wvattorney13]

They have to do more than make conclusory statements of "erratic, dangerous behavior." From the facts presented, you have a guy with a knife who was only threatening himself and then dropped the knife. I would like to hear what imminent danger to themselves that the officers feared was present that would privilege the use of force in that situation.

[TextFirst]

A man like that can easily kill another man with his bare hands and his behavior up to that point painted him as a threat. Disabling him with a beanbag round is a completely reasonable reaction to end the problem. This is entirely the deceased's fault, he made the choice to do all of these things. If you hesitate for a split second when dealing with a predator this dangerous, then you are dead. Public servants aren't signing up to be murdered by thugs because they're afraid of the liability. From a balance of harms perspective, all the people went home safely and nothing bad happened except to a feral predator. This is a win. Take the win.

[David Nieporent]

A "man like" what?

Also,the claim that he can "Easily kill another man with his bare hands" is pretty implausible, particularly when the purported killer — the only actual killers there were the cops — is vastly outnumbered, as this guy was.

If you hesitate for a split second when dealing with a predator this dangerous, then you are dead.

There's no evidence he was dangerous, and, no, you're not dead.

[David Nieporent]

but if it does then the police can quite plausibly testify that they feared for their lives

Not doing much to dispel the notion that cops are cowards.

[darkknight9]

New York allows Medicaid beneficiaries that need help with daily living to hire assistants with public money. The program used to be administered by around 600 private "fiscal intermediaries," but in 2024 the state replaced them with a single state-run intermediary.

Cuz if you let the private fiscal intermediaries run the show with little to no oversight you have just one of Minnesota's current fraud predicaments.

[Stupid Government Tricks]

Yes, it's better to have all the corruption eggs in one government-run and government-protected basket.

[SRG2]

Did the Fifth Circuit take a week off?

[Krychek_2]

Re Thomas v Humboldt County, the 7th Amendment case, I agree the 7th Amendment should be incorporated against the states. However, the IJ's characterization of the facts is a near complete fabrication. For the full picture, here's the County's brief in opposition to cert:

https://www.supremecourt.gov/DocketPDF/24/24-1180/364871/20250710121029643_24-1180_Brief%20in%20Opposition.pdf

That IJ flat out lied about the facts is probably reason to deny cert all by itself.

[Stupid Government Tricks]

That's an 85 page PDF. Since you seem to think you know what happened so well, why not help the people you want to know about it AND TELL US. Surely if IJ can lie about it in just a paragraph, you can correct their lies just as shortly.

Or maybe you want everybody to take your word for it. No thanks. I'll take IJ's word for it on the evidence presented so far.

[Krychek_2]

Read Pages 14-20. And if you don't want to take the County's word for it, have a look at the exhibits the County filed in support of its position.

[Stupid Government Tricks]

Page 14 begins in the middle of the allegations. I went back to the start and read several pages of allegations about ponds and remnants of hoop houses and gave up. If you don't want to summarize how IJ lied, I'm sticking with IJ's reputation.

Ross can summarize; if you won't, frankly, I don't care what you think.

[Krychek_2]

Short summary is that almost none of the allegations IJ makes are true. The County worked with these people for months trying to resolve the matter. The plaintiffs actually did have significant code violations that they either caused themselves or knew were there when they bought the property. Nobody has been fined large amounts of money (or, so far, any amount of money since the cases were still ongoing at the administrative level). The story IJ puts out is made up from start to finish. But then, since your predisposition is to believe anything bad about the government must be true, you just accept it.

And you can think, believe, or assume whatever you like; your opinion is irrelevant. The Supreme Court denied cert because they actually did take a look at it.

[Stupid Government Tricks]

Bud, you're the one with the anti-IJ agenda, the one who wants us commenters to take your side. I'm trying to actually help you, if your brain can work around to a little bit of logic. Why would I tell you I downloaded your 85 PDF and tell you why that wasn't good enough, if not to get your side of the matter?

Stop whining that others don't take your word as gospel.

[Krychek_2]

I never asked you to take my word for anything; I posted a link to the opposition brief that set out everything in excruciating detail, and furthermore has the necessary exhibits to document what was being claimed. I even told you which pages to read.

And in general I support the work of IJ. I think economic rights have been given short shrift by the courts and on most of their cases I agree with them. This one time I think their characterization of the facts was wildly off the mark.

But, as I said, neither your opinion nor my opinion ultimately counts. The Supreme Court took a look at it and decided there was nothing to see. And this is a Supreme Court that is far more protective of economic liberty than any we've seen in a while.

[David Nieporent]

The argument that cert was denied so obviously the petitioners are lying is such a terrible one that it calls into question everything else that you say. The vast majority of cert petitions are denied, regardless of how much legal or factual merit they have. And you don't get to make up your own reasons for that when the court doesn't give them.

[Krychek_2]

It's a bit of a leap to get from what I actually said to "cert was denied so obviously the petitioners are lying." David, your analytical skills are usually much better than that.

But in point of fact the petitioners were lying, which almost certainly didn't help their case.

[David Nieporent]

It's a bit of a leap to get from what I actually said to "cert was denied so obviously the petitioners are lying."

"The Supreme Court denied cert because they actually did take a look at it."

[wvattorney13]

From my cursory read the county was unreasonably demanding demolition of these structures for the sole reason that they had in the past, by previous owners, been used to grow cannabis. That seems absurdly unreasonable to me to mandate the destruction of a perfectly good structure because of bad aura from past bad stuff.

[Krychek_2]

Did you miss the part where they changed the rules so that the property owners could apply for permits to save the structures, but none of the property owners did?

[Davy C]

You cite the other party' brief. Certainly the facts are disputed. But how do you know THAT brief isn't the near complete fabrication?

And of course the facts are going to be disputed in a 7th Amendment case. That's why they want a jury trial in the first place!

[Krychek_2]

Because I also looked at the exhibits in support of the County's brief. This is not a case in which you need eyewitness testimony; everything that happened in the case was thoroughly documented.

And of course I agree with you that the cases (plural) should go to juries, but the Supreme Court is not going to grant review unless there are good facts to support it. Here, there are not.

[David Nieporent]

I'm curious about your methodology in reading two briefs with different descriptions of the facts and claiming that one is true and one is a lie.

EDIT: I see you cite "exhibits," but you don't explain how you think those exhibits prove that the IJ lied. Indeed, you don't cite any specific lie.

[David Nieporent]

Moreover, I am a bit puzzled by your assertion, as I see no "exhibits" and it is not standard practice, to say the least, to file exhibits with a BIO to a cert petition.

[TextFirst]

This Seventh Circuit decision about the due-process rights of inmates placed in segregation is worth a read if you like that sort of thing. (Bottom line: the process due is … not much.)

Of course not. He already had due process for whatever sent him to prison in the first place. Once there, where he is in the prison doesn't deprive him of further life, liberty, or property. Therefore this is an ordinary question to be resolved by statutes and regulations, there's no constitutional question whatsoever. How on earth did the district court need a circuit court to figure this out for them?