Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Fiery writs, imperial sovereigns, and cheating escheators.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Friends, a while back IJ researchers went hard trying to find data on whether food sold by home-based vendors is safe. And looking at seven states with relatively liberal laws, we found not a single verifiable instance of a foodborne illness that could be traced to cottage food. Anyhoo, that's all to say it's super great that this week Indiana passed a food freedom bill that will expand opportunities for home-based entrepreneurs and allow more delicious eats in the Hoosier state. Click here to learn more.
New on the Short Circuit podcast: Sam MacRoberts of the Kansas Justice Institute inspects the Fourth Amendment's inspection exception (and exceptions to the exception)—and takes some exceptions.
- In naming a new police chief, Bergenfield, N.J. passes over its white deputy chief in favor of an Arab-American captain. Miffed deputy sues for racial discrimination under state and federal law. Third Circuit (per Judge Bove): We predict N.J. Supreme Court would follow U.S. Supreme Court in disavowing a rule making it harder for plaintiffs in the supposed majority group to bring discrimination claims. And there's plenty of evidence of intentional discrimination to send both state and federal claims to trial. Concurrence (also Judge Bove): I personally think it would also be unconstitutional if N.J. didn't abandon its rule.
- If you've ever wanted to know how to collect a judgment in West Virginia—or what the differences are between a "writ of fieri facias" and a "suggestion"—this Fourth Circuit opinion is for you. You will also learn that you can't sue your bank for following a court order to pay your creditors.
- The majority and dissent in this Fourth Circuit case spar over everything from piracy to the nature of the "territorial jurisdiction of the United States" in the course of deciding 2-1 that a Virginia company can be held liable under the Alien Tort Statute for torts arising out of the torture of detainees at Abu Ghraib during the Iraq War.
- The writing was on the wall for the Fourth Circuit's 2024 en banc decision declaring unconstitutional West Virginia's exclusion of sex-change surgeries from its Medicaid plan once Skrmetti issued. And sure enough, the High Court GVRed, and the Fourth Circuit came out the other way: The law classifies based on medical diagnosis, not sex or transgender status, and applies evenhandedly to everyone. And the law, motivated by the state's concern about costs, satisfies rational basis review.
- Man uploads files containing The Bad Stuff to his Google Drive account. Google tips off law enforcement, and a detective has a peek at a few files without a warrant. When law enforcement follow up months later, the man confesses and directs officers to incriminating evidence. Fourth Circuit: The initial peek was an unlawful search. He had a reasonable expectation of privacy in his account (knowing Google might take a look doesn't mean one expects the gov't to) and in the files (deepening a circuit split on whether Google's hash-matching algorithm destroys privacy in digital files). But the later-discovered evidence comes in. In prison, he must stay.
- Did Sulphur, La. officials retaliate against a police captain for being too public about his polyamorous relationship? Fifth Circuit (unpublished): Maybe, but we can't rule out the possibility that he was demoted because he was really bad at his job. Case dismissed.
- You guys know Judge Per Curiam over at the Fifth Circuit? Us neither, but we are pretty sure someone in chambers is super into CrossFit (see p. 3).
- Trigger-happy residents of Canton, Ohio have the habit of shooting firearms into the air to celebrate the New Year. As a police officer responds to the sound of gunfire shortly after midnight, he sees a man firing some 39 rounds into the air. The officer gets spooked and shoots the man dead. His widow sues. Sixth Circuit: And the case must go to a jury. The officer's claim that he saw the man point the firearm in his direction is a disputed fact that, if false, would mean no qualified immunity.
- This Sixth Circuit case is not that big of a deal. But it's about escheatment, and there's a guy on the staff here who really loves telling people that the word "cheater" is derived from the word "escheator" because of the widespread (seemingly correct) belief that the king's escheators were more interested in gobbling up property for profit than anything else. So, there you go. Tell your friends.
- If you had just told us the name of the lead plaintiff and nothing else re: this Ninth Circuit case, we would have predicted a perfunctory defeat for said plaintiff. And yet! The Imperial Sovereign Court of the State of Montana prevails (for now), and the state's restrictions on drag queen (and king) story hours remain preliminarily enjoined.
- Allegations: California first-grader, B.B., upon hearing a story about Dr. Martin Luther King, Jr., draws a picture of "all her friends holding hands" with the message "Black Lives Mater any life," and gives it to an African American classmate, who thanks her. Following a complaint from the recipient's mother, the principal tells B.B. that her drawing was "not appropriate" (and possibly "racist") and bars her from recess for two weeks. B.B.'s mother sues for First Amendment retaliation. District court: The drawing is not protected by the First Amendment. Ninth Circuit: It very much is.
- The California Age-Appropriate Design Code Act requires providers of online services that are likely to be used by those under 18 to estimate the age of child users with a "reasonable level of certainty." The law imposes other restrictions on how the providers can use data or interact with children. Service providers challenge that law and secure a preliminary injunction. Ninth Circuit: Vacated in part. There's no problem with the age-estimation, but some of the other requirements are unconstitutionally vague.
- Man confesses to murder after a 15-hour interrogation in Riverside County, Calif. A series of prosecutors are assigned to the case, and, upon digging in, request that it be dismissed. Each time, the boss refuses and reassigns the case. Finally, nearly four years after his arrest and months after someone else confesses to the crime, the man is released and a court declares him factually innocent. Ninth Circuit (unpublished): A bummer, but he can't sue a prosecutor for failing to dismiss charges (absolute immunity), and he can't sue the county for acting in the name of the people of the state.
- Colorado law previously prohibited convicted felons from changing their legal name except for "good cause." While taking public comments on proposed legislation to clarify that good cause exists when a change in legal name is sought to conform a person's name with their gender identity, Colorado legislators demand that witnesses refrain from "using derogatory language or misgendering witnesses, or using a witness's deadname." Speakers whose comments are curtailed sue, alleging a violation of their First Amendment rights. Tenth Circuit: Absolute legislative immunity.
- Allegation: Escambia County, Fla. cops don't take required steps to verify missing-child report before heading to home where the child might be found. They don't activate their lights or sirens and don't announce themselves when pounding at the door (at night). When the man who answers sees that it's the police, he immediately puts his gun down and out of reach, and he tries to comply with their conflicting commands by lying down. An officer attacks him anyway, causing injuries that require multiple surgeries and that end his career as a cable-line technician. Oof! The missing-child report was bogus—filed by the man's daughter's incarcerated ex. Eleventh Circuit (unpublished): QI for entering the home, but no QI for the gratuitous force, rummaging through drawers, and refusing to leave for almost an hour.
- And in en banc news, the Sixth Circuit will reconsider its decision that Barren County, Ky. could be on the hook for an attack on jail inmate—that left him paralyzed—by two other inmates with histories of violence who should not have been in gen pop.
- And in more en banc news, the Ninth Circuit will not reconsider its denial of qualified immunity to a North Las Vegas, Nev. officer who, about 18 minutes after losing sight of a domestic-violence suspect, jumped a nearby backyard fence to look for him. (He kills two dogs in the backyard, but QI for that). Eight judges dissent, arguing the pursuit was still hot enough to dispense with the warrant requirement.
- And in additional en banc news, the Ninth Circuit will not … erm, well, "This is a case about swinging dicks."
- And in amicus brief news: The Supreme Court has taken up geofence warrants, and we say that the lower courts' disagreements over whether a geofence is a "search" reflects decades of confusion and distortion—and that either way, this warrant flunked the Fourth Amendment's probable cause and particularity requirements by handing judgment calls to an investigating officer instead of a judge.
- And in more amicus brief news: IJ is weighing in for AT&T and Verizon in their Supreme Court fight with the FCC, which would very much like the Court to believe that a judge and jury need not show up at the start of an adverse gov't proceeding, so long as they remain theoretically available at some point down the line. Our brief explains why Article III and the Seventh Amendment do not tolerate that bait-and-switch. And indeed, many small businesses cannot afford to survive an agency proceeding and then finance another round of litigation afterward in a real court with a real judge.
New case! IJ clients David and Debbie Ross (no relation to your humble editor) run a small tobacco farm in Kentucky, and in 2023 they were stunned to learn that the Dept. of Labor wants to fine them over $70k for a variety of supposed employment-related issues, including, and this is an actual quote from the agency's letter, for "[insert description of violation]." David and Debbie emphatically deny the allegations, and they want an Article III court to hear the case—something the Supreme Court recently said the Constitution guarantees. But DOL is pursuing creative arguments for why that decision is not binding and trying to punish the Rosses through its own in-house administrative adjudication system, where the rules are all stacked in favor of the agency. So this week the Rosses filed suit in a real court. Click here to learn more. Or click here for The Wall Street Journal editorial board's take.