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

Firework permits, intratribal smokes, and really just a whole lot of shootings and killings.

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

In 2023, police in Marion, Kan.—armed with bogus warrants—raided the offices of a local newspaper, the home of the newspaper owner (a nonagenarian who died of a heart attack the following day), and the home of a city councilwoman who'd been critical of the mayor. And this week, Marion County and its sheriff agreed to a financial settlement, admitted the raids violated the First and Fourth Amendments, and apologized. The lawsuit proceeds, however, against the City of Marion and its now-former mayor and now-former police chief. Read all about it in the Marion County Record, or The New York Times, or quite a few other places.

Over at The Wall Street Journal, meanwhile, IJ's Anya Bidwell and Patrick Jaicomo call a spade a spade and say that this week's vote in the Senate to give senators—and only senators—a cause of action to sue federal officials (who, notably, are also stripped of qualified immunity) is an unqualified betrayal.

New on the Short Circuit podcast: TikTok star and real-life lawyer Reb Masel tells us a tale about how a moonshine argument led to years of jail without trial.

1. After Springfield, Mass. woman is arrested for disorderly conduct, she does three months of pre-trial probation without admitting any wrongdoing, and the charges are dismissed. She sues the arresting officers for excessive force. District court: Heck bar doesn't apply because it only prevents lawsuits that would impugn a conviction, and here there was none. Officers: That's an "excessively literal reading" of Heck. First Circuit: OK, but figuratively speaking, you're trying to stretch Heck way beyond its bounds. Affirmed. (Literally the result IJ urged.)
2. New York makes it illegal to sell dietary supplements to minors if those supplements are marketed as aids in weight loss or muscle building. Supplement sellers: That sounds an awful lot like a restriction on speech!  Second Circuit: Sure does, but it also sounds a lot like a restriction that survives Central Hudson. Preliminary injunction denied.
3. Fourth Circuit: Just so we're all on the same page, law enforcement officers do not have carte blanche to pull guns on people whenever (in the words of this Richmond, Va. officer) "there's any type of crime that's committed, regardless of what type of crime it is."
4. A problem that complicates Biblical studies is different texts written by different authors at different times. For example, some scholars argue that Mark and the "Q" source date to the 40s or 50s (AD) while Revelations came decades later. Similar challenges stack up against a repeat drug trafficker, who argues he is eligible for First Step Act relief because he is serving "a sentence" for a qualifying crime while also, unfortunately for him, serving "a sentence" of a disqualifying crime. Part of his argument rests on a comparison with the Second Chance Act. Fourth Circuit: "[T]he original text of the Second Chance Act was drafted at a different time—in 2007—by a different Congress with different considerations in mind." Habeas denied. Dissent: "Can a prisoner 'serve' a 24-month sentence for 144 months? Of course not."
5. After Columbus, Ohio police kill an unarmed man in bed during an early-morning raid, his survivors sue the department alleging a custom of racially discriminatory policing and excessive force. The suit claims, in part, that the collective bargaining agreement for police shields bad apples, and it seeks to overturn some of its terms. Sixth Circuit: And in such circumstances, the police union must be allowed to intervene to defend the agreement. (Your summarist wonders whether the court's acknowledgment that the city's elected gov't has conflicting interests with the union in defending the lawsuit has any broader implications about public-sector unions.)
6. Connoisseurs of local-gov't meetings will like the part of this Sixth Circuit case in which a citizen objects to his neighbor's proposal to host an Orthodox Jewish prayer group on the Sabbath (a day on which their religion forbids them to drive) on the grounds that it would cause "parking issues in the area." Connoisseurs of ripeness rules will like the part where the neighbor loses anyway because city officials never decided whether having some friends over to pray required a permit in the first place.
7. Benton, Ark. officer shoots, kills teen who was holding a gun to his own head as the teen allegedly—question for the jury—attempted to comply with the officer's order to drop the gun. Jury: We don't think this one's on the officer. But the city and the police chief are liable for failing to train him properly and failing to investigate prior accusations of excessive force against him. Eighth Circuit: Look, no one told the jury this, but you can't have a verdict like this. No constitutional violation by the officer = no liability for the city or the chief (absent conditions that are not met here). Please consult this appendix containing 51 circuit opinions dating back to 1986 that say so.
8. Environmentalists: It is very, very important that embers from a Long Beach, Calif. restaurant's annual July 4th fireworks display do not land in Alamitos Bay without a permit. Ninth Circuit: Whelp, now they have a permit. And we have all the fireworks puns.
9. Indian tribe makes cigarettes on its remote northern California reservation that are only sold on tribal land (including other tribes' land). California: And we're going to need you to pay state taxes on those. Ninth Circuit: Neither tribal sovereign immunity nor qualified immunity protects the tribe or its officials from the state's suit.
10. After shooting three people (two of them fatally), mentally ill man takes 12-year-old boy hostage. Henderson, Nev. police arrive, and a sergeant tells officers to "[t]ake the shot if you have it." An officer fires a single round, killing the man. But then other officers open fire two seconds later and kill the boy. Ninth Circuit: Qualified immunity.
11. In lieu of a citation for allowing her dogs to roam off leash, woman consents to Locust Grove, Okla. police taking them. An officer shoots them, but one survives and finds its way back home nine days later with a bullet hole in its head. Tenth Circuit (unpublished): Your complaint didn't satisfactorily allege that you expected to be able to get the dogs back, and it doesn't help you that the officers may not have followed the relevant animal-control procedures. Case dismissed.
12. Remember when 60,000 Americans voted for Kanye for president? A marketing company provided services for his campaign under a handshake agreement between the company and a political consultant working for Kanye. Yikes! The marketing company was allegedly never paid for its work. Tenth Circuit: But it can't sue Kanye's campaign directly, as there's not an inkling of support that the campaign agreed to hire the company, as opposed to the consultant. (Fear not: the marketer's suit against the consultant continues.)
13. Pregnant woman at Florida airport requests pat-down rather than X-ray screening out of concern for her unborn child. Prolonged probing of her vaginal area reveals something in her underwear, which she explains is toilet paper to stem bleeding related to the pregnancy. TSA agents are unconvinced, take her to a separate room, and strip search her (it is toilet paper). She sues. Feds: TSA agents are immune from suit. Eleventh Circuit: We join five of our sister circuits in holding that is incorrect.
14. Seems weird that a thorough, 50-page opinion with a dissent would be unpublished, but what do we know. In related news, this Florida prisoner who was denied care for chronic pain caused by a prison bus accident—pain that was exacerbated by further injuries in his prison workplace—loses his appeal at the Eleventh Circuit.
15. In the wake of the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, victims filed 60 lawsuits against the Sheriff of Broward County, alleging negligent failure to secure the school once the shooting started. The Sheriff's office has insurance that kicks in after the Sheriff pays $500k plus a $500k deductible "per occurrence." The insurer argues that the shooting was not one occurrence, but instead dozens of occurrences, one for each bullet. Eleventh Circuit: Incorrect.
16. In 2019, an officer in the Royal Saudi Air Force opened fire at Pensacola Naval Air Station, killing three servicemen and seriously injuring 13 other people. The survivors and the victims' families sue the Kingdom of Saudi Arabia. Eleventh Circuit: And considering how open the shooter was on social media about his radical beliefs, the district court should not have dismissed the plaintiffs' claim that Saudi Arabia was grossly negligent in hiring and vetting the shooter.

New case! New York City is in the grip of a housing crisis, and yet at least 25,000 apartments sit vacant, withheld from the rental market. What gives? Dumb laws. The city requires landlords to perform extensive maintenance and upgrades to keep older units up to snuff, but at the same time forbids the rent increases that would make that economically feasible. Who's going to spend tens or hundreds of thousands of dollars on upkeep when they're only allowed to charge $700/month in rent? It's bananas. And because the rent caps are tethered to each unit's individual rental history, similar apartments are capped at arbitrary, wildly disparate, and generally far-below-market rates. So this week, brothers Pashko and Tony Lulgjuraj, who worked for decades in building maintenance and eventually purchased a building of their own, filed suit challenging the city's rent-stabilization regime for vacant apartments. Click here to learn more. Or head over to The Wall Street Journal for their editorial board's take.