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

An empty whiskey bottle, a rat in the crosshairs, and the nightmares of HR managers

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

Registration is ongoing for IJ's upcoming conference "The Other Declarations of 1776." As part of the nationwide celebration of 250 Years of America, we're partnering with the Liberty & Law Center at Scalia Law School for an examination of the various declarations of rights that the new states adopted in 1776. It's Friday, April 10 in Arlington, Va. Register here! And, if you want to learn more about The Other Declarations in the meantime, check out the latest blog post in our series, this week focusing on Pennsylvania.

New on the Short Circuit podcast: Two-Steps in Kansas, switchblades in California, and spreading the news about the Second Circuit as a part of our #12Months12Circuits series.

1. During the 2014 invasion of Crimea, Russia effectively took over certain Ukrainian energy companies. The companies responded by pursuing millions in arbitrations against Russia in Europe. Can the awards they received be enforced in the United States, which, according to our most geographically astute editor, is part of neither Russia, nor Ukraine, nor Europe? Maybe! There's at least subject-matter and personal jurisdiction, holds the D.C. Circuit. Thanks, 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
2. The nerds who write this newsletter were thrilled to read these sentences: "In ordinary English grammar, we 'routinely' use the past participle . . . as an adjective 'to describe the present state of a thing.' Thus, for example, an 'escaped' prisoner is currently at large, a 'broken' window is not yet fixed, and a 'delayed' train has not yet arrived." Unfortunately, the D.C. Circuit opinion containing those sentences is not about a prison break, just a dispute about whether certain immigration programs created in the past are currently obligated to pay for antifraud monitoring. Read pages 9 to 12, ye Garner fans, and skip the rest.
3. "But if you go carryin' pictures of Chairman Mao, you ain't gonna make it with anyone anyhow." True. But if you're a Nepalese Maoist you might so threaten a countryman with persecution and torture that years later the First Circuit will order the BIA to reconsider his attempts to not be reacquainted with believers in the Prachanda Path.
4. Colombian patrol cop says his colleague recruited him to pose as a police major in meetings with a drug trafficker—not to traffic drugs, but to lure the trafficker's cocaine to a warehouse where the Colombian National Police (CNP) would seize it and split the reward money. It turns out the "trafficker" was a DEA agent, and the cop was extradited and convicted of conspiracy to import cocaine. District court: Let's exclude evidence that the colleague had provided tips leading to successful CNP seizures. Second Circuit: Which would have bolstered the cop's defense that he was facilitating a seizure. Excluding the evidence wasn't harmless error. Conviction vacated and remanded.
5. It's Defense Distributed once again. That's the Texas company that shares code for 3D-print plastic guns. Is that speech? Is it conduct? And can New Jersey stop them from sharing their information? You might think the interesting part would be the First Amendment holding: New Jersey wins because nonexpressive code isn't speech. But the fun part is actually the fed-courts boondoggle about whether the case should even be in the Third Circuit, given that Defense Distributed sued in the Western District of Texas.
6. Old-fashioned (and since amended) statute from 1952 makes immigrant children citizens if they are born out of wedlock, their mother naturalizes, and the "paternity of the child has not been established by legitimation." Did that apply if the unwed father had signed the birth certificate? Fourth Circuit: Yes, signing a birth certificate is not a process of "legitimation," so this immigrant is indeed a citizen and hence not deportable. We do not care if El Salvador modernized its law of legitimacy before Congress; this is America, and here we follow American law and play football with our hands.
7. North Carolina prisoner is severely injured when he's attacked by a "safekeeper"—a category of dangerous prisoners prone to violence—who should have been separated from general-population prisoners. Gen-pop victim sues guards under Eighth Amendment. Fourth Circuit: Guards knew this was a big security risk, had been repeatedly warned about it, and were still lazy about keeping safekeepers separated. That's enough to go to trial on a deliberate-indifference claim. Dissent: We've granted qualified immunity for way worse prison-guard neglect, so we have to do so here too.
8. U.S. Military bars HIV-positive individuals from enlisting, alongside hundreds of other disqualifying conditions. Plaintiffs, whose infections are asymptomatic and well-managed with daily medication, sue under the Fifth Amendment and the APA. Fourth Circuit: Rational basis review is already relaxed, even more so in the military context. Medication resupply at forward positions, the need for blood donations abroad, and the costs of treatment are all rational justifications. (IJ filed an amicus brief in support of the Plaintiffs in this case.)
9. Another day, another set of sanctions for a lawyer using artificial intelligence to hallucinate case citations. This time in the Fifth Circuit, where an attorney representing a different attorney in an appeal from a district-court sanctions award (yikes) outsourced the writing of her reply brief to AI (double yikes) and then, according to the court, "likely" used AI again to respond to the show-cause order that ensued (yikes trifecta).
10. Fans of Trader Joe's will be sorely disappointed by this Fifth Circuit matter if they are in want of affordable goat cheese or sodas sporting unpronounceable names. But fans of the downstream effects of the demise of Chevron deference as it relates to labor law may enjoy the dissent, which objects to upholding an unfair labor practice finding in the case of a store employee who objected to "unsafe" practices during the COVID pandemic (and who the dissent calls "the sort of employee who haunts the nightmares of HR managers everywhere").
11. In which the Fifth Circuit holds that the empty whiskey bottle in the plaintiffs' parked car in Ridgeland, Miss. created reasonable suspicion to extend the stop while an officer summoned a drug dog but does not explain how a possible open-container violation connects to the dog sniff. (Perhaps it was a boozehound?)
12. Texas criminalizes paid ballot harvesting, defined as in-person interactions with voters in the physical presence of a mail ballot, intended to deliver votes for a specific candidate, in exchange for compensation. Fifth Circuit: The statute targets paid, trained operatives haranguing voters while they fill out ballots, not volunteers handing out swag or glasses of water. Not vague, not overbroad, and can even survive strict scrutiny. (Also, with raised eyebrow, noting that the district court gave an interview suggesting he used AI to help decide the case).
13. This Sixth Circuit opinion is about the legality of the CDC's restrictions on importing foreign (and thus potentially rabid) dogs, but it's also how your summarist learned that through widespread vaccination the United States officially eliminated dog-transmitted rabies in 2007.
14. Mentally ill Michigan man with a history of assaulting women and girls bludgeons his female neighbor to death—because (the complaint alleges) county authorities systematically denied police protection to women facing violence and had therefore failed to respond to any of his previous crimes. Sixth Circuit: Even if that's true, though, that just means the county discriminated against those other women, not against the victim here (who never called the police).
15. There is apparently significant evidence that the Undesirable Aliens Act of 1929 was enacted with invidious discriminatory motives, which the Sixth Circuit says does exactly nothing for this defendant who was convicted for violating a provision of the Immigration and Nationality Act of 1952.
16. A defendant who posts a Facebook photo of a rat in the crosshairs of a riflescope says he still deserves a sentencing reduction for accepting responsibility, but the Sixth Circuit understands, like, metaphors.
17. Two Cleveland police officers respond to a call about an armed man in a boarding house. One officer testifies he saw the suspect aiming a gun. So he shot twice. Whoops—he accidentally shoots his partner. (For nearly a year, prosecutors pursue attempted murder charges against the suspect on the belief that he shot the penetrating bullet.) Shot officer sues the city and the other officer. Qualified immunity? Sixth Circuit (2023): To discovery! Sixth Circuit (2026): She was indeed seized by his bullet but caselaw wasn't clear until after the shooting. So qualified immunity. (It is now clearly established, though.) Dissent: That she wasn't his target means she wasn't seized. This puts us on the wrong side of a split with seven of our sister circuits.
18. Prisoner on dialysis is kept in un-airconditioned Arkansas prison cell for weeks in the heat of summer, eventually losing his kidneys—but the Eighth Circuit explains that the Cruel & Unusual Punishment Clause forbids deliberate indifference, and prison officials here (who consulted with a doctor and brought in portable air conditioners) were at worst just not good enough.
19. And in en banc news, the Eleventh Circuit will not reconsider its decision to deny habeas relief to a prisoner where the jury was initially split on whether to impose a death sentence.

New lawsuit! Short Circuit readers may remember that last July, George Retes, a U.S. citizen and Iraq combat veteran, was detained by Immigration and Customs Enforcement (ICE) and other federal agencies for three days and three nights. He was denied access to an attorney, not allowed to shower or make a phone call, and not presented to a judge. He missed his daughter's third birthday. He was never charged with a crime. U.S. citizens cannot be detained for immigration violations, and the government presumptively may not hold people for more than two days without a probable-cause hearing. Now, after a federal agency rejected his claims for unlawful detention, George has sued to vindicate his rights with the help of IJ.