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

Shooting in a car, discrimination in the air, and injuries at sea.

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

Famously, the First Amendment protects our right to talk. And laws limiting that right based on the content of the talking are, well, content-based. But wait! What if, instead of being triggered by the "content" of speech, the law can be portrayed as being triggered by the "purpose, focus, and circumstance" of the speech? According to the Second Circuit, that's the perfect loophole. According to other courts, it's a ham-fisted way to circumvent the First Amendment. IJ's latest cert petition invites the Supreme Court to weigh in.

New on the Short Circuit podcast: Three Stanford professors (Jud Campbell, Jonathan Gienapp, and Orin Kerr) look under the hood of originalism in the federal courts of appeals.

1. Circuit-court decisions denying immigrants' petitions for review are not uncommon, but rarely have your summarists seen the courts drop a lengthy footnote like the one in this unpublished Second Circuit decision, which directs the opinion to be forwarded to the circuit's Grievance Panel, torches the immigrants' attorney for execrable lawyering, and notes that his clients might want to consider seeking to reopen the removal proceedings based on ineffective assistance of counsel.
2. Since "the Middle Ages," shipowners have been responsible for injuries their crew suffer at sea. Which was the case for a "first mate and chef" aboard the catamaran M.B. Somewhere Hot. Her middle finger was badly damaged and she then received compensation for medical care, although doctors have told her it'll never fully recover. After that, she proceeded to chase the owner and captain "round Good Hope, and round the Horn, and round the Norway Maelstrom, and round perdition's flames" so they would pay for future medical care. Third Circuit: You can't get that now but maybe later.
3. In the latest on whether shooting victims (this time at the Edmund Burke School in D.C.) can sue gun manufacturers despite the Protection of Lawful Commerce in Arms Act, all the Fourth Circuit will tell you is that the plaintiffs have standing to go forward under their theory that irresponsible ads led the shooter to act. The dissent would dismiss on standing and on the merits too and also reminds us that alternative holdings are normal.
4. A Lynchburg, Va. election dispute is a good reminder, per the Fourth Circuit, that when you want to appeal a supposed denial of an attempt to introduce evidence, you need to actually try and introduce the evidence and not just repeatedly threaten to.
5. Near-naked 400 lb. Crockett, Tex. man writhes on grass near a road. Police quickly determine he's on PCP, and a neighbor directs them to his house. They call out and no one answers, walk through an open door and go room to room and still no one answers, and then see beaucoup mary jane plants, other drugs, and a gun, and repeatedly say "for safety!" to each other (and their body cams). They later get a warrant and the man-of-size is prosecuted. Should the fruits of the search be suppressed? Fifth Circuit: The situation was "close enough" to exigent circumstances to let us say the officers acted in good faith. Concurrence: Since we can't totally jettison the Fourth Amendment's exclusionary rule, maybe the next-best thing would be to say that it applies only when the cops' behavior is so unreasonable as to flunk qualified immunity. For safety!
6. Fifth Circuit (2-1): Non-citizens who were never lawfully admitted to the country are subject to mandatory detention pending their removal proceedings, with no opportunity for being released on bond. Dissent: "The overwhelming majority of courts in this circuit and elsewhere have recognized that the government's position is totally unsupported."
7. Sixty-one years ago, St. Mary Parish, La.'s school board was placed under a permanent injunction to desegregate its schools. The case never closed (peep at that district court case number!), and in 2019, class representatives sought to change the injunction, arguing that racial disparities persist. Board: Can we just be done instead? Fifth Circuit: The district court hasn't yet refused to dissolve the injunction, so we don't yet have jurisdiction.
8. Kentucky woman calls 911 on her son after a dispute, reporting that he's high on drugs and is pouring gasoline everywhere (and has a lighter). Yikes! Police arrive and tase the man almost immediately. This ignites the gasoline (severely injuring the man), and he's arrested for wanton endangerment. He's ultimately acquitted and sues the officers for violating the Fourth Amendment. Sixth Circuit: Qualified immunity.
9. Minnesota bans deceptive "deepfakes" about candidates close to elections. A deepfake purveyor and a state legislator who enjoys sharing deepfakes challenge the law under the First Amendment. Eighth Circuit: The purveyor doesn't have standing because he labels his deepfakes as parody so they don't violate the law, and the legislator doesn't get a preliminary injunction because she waited 16 months to challenge the law after it was enacted.
10. Idaho enacts law with civil penalties for schools and libraries that distribute material harmful to minors, broadly defined. Association of private schools challenges law under First Amendment. Idaho: The text of the statute may read like expansive culture-war-inflected censorship, but it should be construed narrowly to reach only constitutionally unprotected obscenity. Ninth Circuit: We can squint and apply a limiting construction to most of the statute, but one provision is just too subjective; schools should get a preliminary injunction.
11. Frontier Airlines accused of racial discrimination against passengers. Ninth Circuit (unpublished, over a dissent): There is enough evidence of racial discrimination for the case to proceed. (Your summarist feels sorry for the passenger seated in the same row as the plaintiffs, who not only had to fly Frontier but has apparently become the star witness in this messy case pitting allegations of racism against allegations of child abuse.)
12. Frontier Airlines accused of racial discrimination against passengers. Tenth Circuit (unpublished): There is not enough evidence of racial discrimination for the case to proceed. Also, sanctions against the plaintiff for AI hallucinations in her brief. (Your airline-snob summarist's favorite line: "If anything, [plaintiff's allegations] suggest that the airline treats everyone poorly, which would undermine her claim that the poor treatment she received was because of race.")
13. Opa-Locka, Fla. man experiences episode of erratic (though non-violent) behavior, during which family members tie him up and call 911. Several of Opa-Locka's finest arrive and tase, punch, and drag the man while attempting to handcuff him. Eleventh Circuit: Shambolic. At the summary-judgment stage, at least, no qualified immunity for the most punch- and taser-happy of the officers.
14. Georgia Lyft driver shoots passenger. Passenger sues Lyft. Theory: Lyft was negligent per se for conducting a background check that failed to disclose that the driver was once convicted of writing a bad check. Eleventh Circuit (unpublished): The background check complied with Georgia law, and the fact that it didn't catch the bad-check conviction is of no moment. Dismissal affirmed.
15. In en banc news, the Tenth Circuit will not reconsider its decision that (in one dissental's characterization) the Rooker-Feldman doctrine can be triggered by a state-court decision that is not "on the merits."
16. And in kinda-sorta en banc news, your summarists—mere mortals that we are—can't fully make sense of the four-opinion panel decision, denial of the appellee's en banc rehearing petition, concurral, dissental, subsequent denial of the appellant's motion for leave to file his own rehearing petition out of time, and order denying that request and declining to withhold the mandate in this Fifth Circuit case about a Louisiana man's First Amendment right to distribute pamphlets about Christian vegetarianism. But one thing that is clear? One judge is displeased.

Victory! Loyal Short Circuit readers can cast their minds back to the distant past—or more precisely, last month—when IJ teamed up with the nonprofit organization YIMBY Law and its executive director, Sonja Trauss. Sonja and YIMBY Law send letters to cities, offering views on housing-related policies. But on the day after Christmas, the California State Bar opened an investigation into them, signaling that the act of writing letters is the unauthorized practice of law. Which—as IJ impishly pointed out—is very much at odds with the First Amendment. We are pleased to report that the Bar has now corrected course and acknowledged that Sonja's "letter offering her view on state housing laws . . . does not constitute the unauthorized practice of law in California."