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

Citizen flag poles, mega-appeals, and land acknowledgments.

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

New cert petition: Starting in 2011, then-16-year-old Hamdi Mohamud spent over two years in prison on bogus charges fabricated by a St. Paul police officer. Which is a bang-on Fourth Amendment violation, but the Eighth Circuit has twice held Hamdi has no cause of action because the officer (still employed and making six figures) was cross-deputized onto a federal task force. IJ is asking the Supreme Court to resolve some circuit splits and let the case go forward.

New on the Short Circuit podcast: When the gov't takes your long walk on the beach.

1. The holidays are a time to be together with family. But when family togetherness grows too much—when Uncle Lou starts to explicate his views on politics or your wife's cousin tries to sell you magnets—you can always say, "I'm sorry, but I simply must go read the First Circuit's 96-page resolution of a 'mega-appeal' arising out of a sprawling overtime-fraud scheme within the Massachusetts State Police."
2. Nashua, N.H. officials establish a "citizen flag pole," on which locals can fly all sorts of different flags. Except that one. Or that one. Or that one. First Circuit: And because the flags were not gov't speech, the town's viewpoint discrimination was unconstitutional.
3. After a student is arrested on firearms charges, a parade of parents speak at a Loudoun County, Va., school board meeting. They berate the administration for not doing more to keep the schools safe. They're allowed to soliloquize until allegedly alluding to a particular, and identifiable, student, at which point they're admonished. First Amendment violation? Fourth Circuit: Facially neutral policy, non-discriminatory application. Dissent: Yeah, but the district court's vagueness analysis could have used a do-over.
4. ERISA authorizes attorneys' fees for parties who win some degree of success on the merits. Fifth Circuit: And this former NFL running back does not qualify. Yes, he probably would have been entitled to top-level benefits under the NFL retirement plan. But he failed to appeal from his original benefits denial. So he's out of luck. And the fact that the district court made some findings about how badly the plan behaved doesn't turn the player's loss into a fee-eligible win.
5. In 2007, Houston woman dies of a gunshot wound to the head. Her husband is tried twice for murder, but the case is ultimately dropped after the medical examiner does a new analysis and changes the autopsy report's cause of death from "homicide" to "undetermined." Fifth Circuit: The husband's suit against an assistant examiner for intentionally fabricating the original autopsy report, which we last considered in 2018, needs to go back down for another look. Denial of QI vacated (again).
6. Fans of takings law or res judicata will find a lot to enjoy in the back-and-forth between the majority and the dissent in this Sixth Circuit opinion. Fans of chutzpah will enjoy the fact that the defendant filed a motion in the run-up to the second trial in this case arguing that the property owner's takings claims (which had been in litigation, in one form or another, since 2002) were not yet ripe.
7. Chicago first boots, then impounds cars owned by people who have accumulated unpaid tickets. If the owner doesn't cough up the money soon enough, the city sells the car. To pour a little extra salt in the wound, the city doesn't use the proceeds of the sale to offset unpaid ticket debt. Seventh Circuit: This doesn't offend the Takings Clause, which doesn't apply when the city is using its police power to enforce the traffic code. Pay your tickets.
8. While trying to catch up to surveillance team, which is taking turns keeping eyes on a drug suspect, DEA agent blows through a stop sign in Salem, Ore., killing a bicyclist, a married mother of two who had the right of way. State officials prosecute him in state court. Ninth Circuit (unpublished): The agent is entitled to Supremacy Clause immunity.
9. Computer science professor includes land acknowledgment on his syllabus stating, "I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington." University administrators do not take it well. Ninth Circuit (over a dissent): Indeed, they took it unconstitutionally poorly.
10. During a 2020 George Floyd protest in Oakland, Calif. man drives van while his passenger fires nineteen rounds at guards outside the federal courthouse. One guard dies; another is permanently disabled. Driver is duly convicted of aiding and abetting murder and attempted murder. Ninth Circuit: And the district court did not err in admitting a raft of the driver's Facebook posts, which advocated for violence against law enforcement and conveyed general animosity toward the U.S. gov't through such terms as "Boogaloo." Conviction (and resulting life sentence) affirmed.
11. After qualified immunity is overcome and a civil jury finds that a Pontotoc County, Okla. jail officer raped a pretrial detainee, she's awarded $75k. The now-former officer doesn't pay. Garnish the county's insurer (which paid for his defense)? Tenth Circuit: No, the policy doesn't cover acts that are bad faith, reckless, wanton, etc.
12. The start of this Eleventh Circuit opinion (per curiam, unpublished) quoting the entirety of an 1888 Georgia Supreme Court decision upholding a gambling conviction ("A social, genial gentleman, fond of company and a glass … ") is hardly propitious for these Enigma, Ga. businessmen prosecuted for gambling violations. And yet! Some of their malicious prosecution claims can go forward.
13. And in en banc news, the Fifth Circuit will not reconsider its decision that a lawsuit against a city could proceed—but, due to qualified immunity, could not proceed against individual cops—concerning a man who the city threatened with arrest for distributing leaflets about Christian vegetarianism (while not threatening someone distributing commercial fliers). Concurrence: Extending existing messed-up QI law to suits against cities themselves is pretty messed-up. Dissent: As Article III Groupie used to say, Meow! Allusions to lions in the Colosseum plus: "At the end of the day, my concurring colleague presents an imaginary case that implicates persecuted Christians in Rome, 'religious liberty,' and the 'ancient tradition' of street preaching."
14. And in more en banc news, the Fifth Circuit will not reconsider its decision that punishing a detainee by, among other things, putting him naked in a disgusting cell where guards threatened him for days does not offend the Constitution. Dissent: If you don't want to take my word for it, here's a scholars' amicus brief that also explains why this is wrong.
15. And in further en banc news, the Tenth Circuit will not reconsider its decision to preliminarily enjoin a New Mexico law placing a blanket seven-day waiting period on firearms sales.

Law students! Come work at IJ next summer. Applications are open and being reviewed on a rolling basis for the Dave Kennedy Fellowship, which gives a unique opportunity to dive into high-stakes civil rights litigation. As a Fellow, you'll help develop litigation strategies, draft critical legal documents, and even assist with U.S. Supreme Court petitions! With weekly programming, mentorship from top IJ litigators, and career-boosting opportunities, this is your chance to make a real difference. Applications are due by February 6th, with interviews starting soon! Apply today to one of our five offices in Arlington, Va.; Miami; Austin; Phoenix; or Seattle. These competitive, paid fellowships offer $8,000 for the 10-week program, so apply now and take the next step in your legal career!