Unripe septics, unripe Commandments, and technological advances.
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Victory! This week, S.D. Iowa rejected a mayor and police chief's invocations of qualified immunity (and the Nuremberg defense) and handed a big win on the merits to our client, who was arrested, jailed, and criminally prosecuted for criticizing them. Good stuff. Click here to learn more.
New on the Short Circuit podcast: To fuel the nightmares of our lawyer listeners, a story of a settlement that was until it wasn't, powered by litigation financing.
- After news reports indicate that ICE planned to request immigrants' addresses from the IRS to aid immigration enforcement, immigrant-rights groups sue to enjoin the information sharing. D.C. Circuit: But the statute that prohibits release of "taxpayer return information" exempts addresses. Injunction denied.
- Allegation: Cargo pilot who is stuck in Vietnam for reasons outside his control gets pinged by his employer for a same-day, FAA-mandated random drug test in Seattle. Employer: And since you "refused" to take the test, you're fired. Feds: And you can't do any piloting until after rehab. D.C. Circuit: The feds' argument that the FAA need not or cannot review the employer's test-refusal determination raises serious constitutional concerns under the private nondelegation doctrine, but this goes back for a rethink for other reasons.
- Without a warrant, officers search a home owned by a North Carolina man on probation, they find drugs and money, and then the gov't seeks to civilly forfeit the cash. Uh oh! The probationer lived elsewhere, he leased the searched home to his girlfriend, and she did not consent to a search. Does the Fourth Amendment's warrant exception for searches of probationers extend to property they've leased to others? Fourth Circuit: Nope. The search was illegal, and evidence it yielded must be suppressed. Return the money!
- Fourth Circuit (unpublished): Sure, the county's water and sewer plan forbids you from building a well on your property, and county employees told you you're not eligible for a waiver that would let you build a well on your property, but the county hasn't told you you're not allowed to build a well on your property until you ask the County Council to change the law and let you build a well on your property and then they say no.
- Louisiana law requires that the Ten Commandments be displayed in every classroom. A First Amendment violation? Fifth Circuit (en banc): No need to decide that because the case isn't ripe. (If that's too boring for you, feel free to enjoy Judge Ho's concurrence, which would have reached the merits, or any of the four (4) dissents.)
- Man is arrested in Greenville, Miss. for allegedly stealing a car. Investigators search his phone sans warrant, discover evidence of purchases with a stolen debit card 150 miles away in Southaven. They call the Southaven police and share the information, saying they had a warrant for the search. Southaven police arrest him based on the info. Once charges are dropped, he sues. Fifth Circuit: Qualified immunity. It was clearly established at the time that a Fourth Amendment search occurs when an officer looks at material from a phone, but there's no case about second-hand viewings of material from a phone.
- Owner of Ohio-based trucking company applies for a small-business grant advertised by his insurance company, Progressive. He abandons his application upon learning that only black-owned businesses are eligible (he is white), then sues for racial discrimination. Sixth Circuit: He does not have standing because he was welcome to apply, and who's to know if they would have ultimately discriminated against him in issuing the grants? Dissent: That is not how anti-discrimination law has ever worked.
- Allegation: Detroit officer lied on search warrant application and lied on witness stand, resulting in man spending more than seven years in prison for cocaine that he did not deal. (He's released early after conviction integrity unit finds it can't verify the officer's testimony, for instance, whether the confidential informant actually existed.) Sixth Circuit: But officers have absolute immunity for lying on the stand, and the search warrant was for the man's mother's house—where he disclaims a privacy interest. So you had to show the officer was lying at some other point in the process, which you didn't argue.
- When warden and investigator at Illinois women's prison learn that a prison counselor is sexually assaulting an inmate, they devise a shambolic plan: using the victim as unwitting bait, in the hopes that the investigator could hide in a drop ceiling and then leap out and catch the counselor in the act. Except that the counselor had nearly 24/7 access to the victim, and the investigator kept scrupulous bankers' hours. More sexual assault ensues. Seventh Circuit: The warden and the investigator are definitely liable for these obvious Eighth Amendment violations. But only for the period they were executing their preposterous rape-bait plan, not before. Given that distinction—which was muddied a bit at trial—they get a new trial on damages.
- Eighth Circuit (unpublished): This Arkansas state judge abused his office for sexual gratification and lied to the FBI, but we'll "spare [him] the indignity" of going through the details. Short Circuit (lacking such scruples): Real piece of work, this guy.
- Without warning, Des Moines, Iowa officer sets canine on murder suspect who'd jumped off a roof and was trying to flee on foot. The dog bites the suspect for 15 seconds until he's cuffed. Eighth Circuit: Gotta give a warning. To trial this must go.
- Under a delegation of authority that Congress blissfully bestowed unto the Presidency long long ago, the holder of that office can de-unionize many swaths of the federal gov't if the swaths kinda relate to national security. The current holder of the office so de-unionized in March 2025 and along the way mentioned that the unions were saying mean things about him. District court: First Amendment retaliation! Ninth Circuit: He was gonna do that stuff anyway. Concurrence: But this is just a preliminary injunction and, who knows, new facts may come to light.
- Federal law creates a civil cause of action for victims of human trafficking against companies that benefit from the trafficking. Victims of trafficking sue American seafood importer but lose because the importer merely attempted to benefit but didn't succeed. Congress responds by clarifying the law to explicitly cover attempt. Is the change retroactive? Ninth Circuit (en banc): Indeed it is.
- In July 2021, fifty people attended a housing-rights march in Colorado Springs. Afterward, police obtained warrants for data from a protestor who allegedly pushed her bike in front of a running police officer and a nonprofit that helped organize the event. Tenth Circuit: Officers can't just search everything related to someone they suspect committed a crime. These warrants were insanely overbroad, lacking any limiting principle. No qualified immunity on those Fourth Amendment claims. Dissent: Our caselaw hasn't kept up with technological advances, so reasonable officers—and judges—could disagree about how to apply 18th-century concepts to digital data.
New case: IJ client Fernando "Fernie" Madrid served Apache County, Ariz. for decades as a teacher, assistant principal, and principal. But when he decided to run for superintendent of schools, the county attorney—who happens to be married to the incumbent superintendent—launched a campaign of harassment against him, including physical assault in the street, an anonymous package containing threats dropped off at Fernie's home (turns out the shipping was paid for with the county attorney's credit card), and more. This week, Fernie joined with IJ to file a First Amendment suit against the now-former county attorney, his two villainous henchmen, and the county. Click here to learn more.