Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Civil unrest, true threats, and South Carolina receptions.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
America turns 250 this year, which is outstanding. But you know who else turns 250 this year? A whole lot of state declarations of rights. And that is a thing to celebrate, too, which we'll do on Friday, April 10 with our friends at the Liberty & Law Center at Scalia Law School in Arlington, Va. You should come, too. Register here! And in the meantime, check out our blog series on state declarations, this week focusing on Delaware.
New on the Short Circuit podcast: An interesting lease between boyfriend and girlfriend proves decisive in a forfeiture case.
- Within days of President Trump beginning his second term, OMB orders a sweeping freeze to all federal financial assistance programs. The following day, 22 states sue, alleging that the freeze is unlawful. The following day, OMB rescinds the memo announcing the policy. Feds: So the lawsuit is moot. First Circuit: Then why did the White House Press Secretary post, "This is NOT a rescission of the federal funding freeze. It is simply a rescission of the OMB memo"? The case is live and the preliminary injunction against the freeze is affirmed. But the part of the injunction actually requiring disbursement of the money is vacated.
- This First Circuit case is not that big of a deal. But it's about escheatment, and there's a guy on the Short Circuit staff 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.
- After teen is shot and killed in Boston park in 1974, vicenarian suspect flees to the Midwest and evades detection using different aliases—before eventually being indicted for the murder in 1997 and convicted in 2004. Suspect: I didn't get a speedy trial. Massachusetts: … because you were on the lam. First Circuit: The speedy-trial clock starts with the 1997 indictment, and you didn't argue that the 1997–2004 gap was too long. No habeas for you.
- Three people sue Diddy under pseudonyms, alleging that the rapper sexually assaulted them. Second Circuit (unpublished): They need to reveal their names under our ten-factor test that balances the presumption of openness and need for anonymity.
- Possessing no penological purpose, prison policeman purposefully pummels pretrial prisoner's penis. Permissible? Second Circuit: Preposterous.
- New York prisoner calmly and repeatedly requests to be taken off his medication for schizoaffective disorder. Doctor grants the request because the prisoner is showing no signs of psychosis. Following an altercation with prison officers, the prisoner is placed in disciplinary housing for a month before his sentence expires and he is released. The following day, the now-ex-prisoner stabs his mother. He then sues the doctors and prison officials for violating his Eighth Amendment rights by showing deliberate indifference to his medical needs. Second Circuit (over a dissent): Send the case to trial.
- This habeas petitioner is going to get a chance to show that the Philly police officer integral to his murder conviction harbored impermissible bias (i.e., petitioner was dating the officer's niece, to the officer's great chagrin). Per the Third Circuit (unpublished, over a dissent), trial counsel maybe ought to have looked into that a bit more.
- During "reception and evaluation" period, all new inmates entering South Carolina prison system are confined to their cells nearly 24/7 for two to three months. Fourth Circuit: No qualified immunity for prison staffers whose adherence to the policy caused this plaintiff, who was unable to do his physical therapy exercises for his recently repaired broken legs and feet, to suffer mightily. (Less clear is why the inmate was made to do the intake period twice for a total of 10 months.) But there's insufficient evidence the head of the prison system could have known a zero-out-of-cell-exercise policy could cause such suffering. [Staff note: A hearty tip of the hat to law-student counsel.]
- Long-time Short Circuit readers (and podcast listeners) will remember the seemingly endless litigation over a suit filed by a Baton Rouge police officer against Black Lives Matter activist DeRay McKesson (and, initially, against "Black Lives Matter" as, like, a concept). Those readers might have been sad that the saga seemed like it was coming to an end, but fear not: The Fifth Circuit (over a dissent) tells us it must go on!
- After getting alert from an automated license plate reader for vehicle associated with someone with an outstanding warrant, police officer in Gautier, Miss. pulls the man over and arrests him. Yikes! Officer finds a Glock in the car that's been converted into an illegal machine gun. An unreasonable search? Fifth Circuit: License plate reader wasn't a search because, at least here, the LPRs aren't so numerous to allow cops to follow people around with them.
- Concerned about a lack of accountability for perceived misconduct by a member of the president's immediate family, man leaves voicemail for FBI agent involved with the investigation: "The last thing you'll ever hear are the horrified shrieks of your widows and orphans. … We're going to slaughter your whole fucking family. … That's what happens when you cover up for fucking pedophiles, you fucking piece of shit!" 1A protected speech? Jury: No. Fifth Circuit (unpublished): Conviction affirmed.
- Eighteen-year-old Roblox user in Texas keeps telling other Roblox users in the chat (some of whom, perhaps unbeknownst to him, are ISIS supporters and recruiters) that he's going to do some jihad, including some statements that sure look like he's going to shoot up a music festival in Austin. His internet search history includes "Festivals happening near me" and "Lone wolf terrorists isis." District court: No reasonable jury could conclude these were true threats. Fifth Circuit: To a jury this must go. Indictment undismissed.
- Sixth Circuit (unpublished): These Glasgow, Ky. officers possibly violated the Constitution by tasing and knee-striking a meth-addled suspect until they got him in cuffs. (He dies.) The parties don't agree on how much he resisted or how serious his alleged crimes, and there is some "troubling evidence" that officers disregarded their training. But qualified immunity. The law wasn't clearly established, and we're not going to establish anything.
- Ohio-based ICE agent responsible for supervising illegal immigrants (he can have them deported, imprisoned, ankle-monitored, etc., etc.) repeatedly shows up at home, work, etc. of woman he's supervising for sex against her will. Sixth Circuit: Throw in the kidnapping, witness tampering, five other victims, etc., etc., and you earned that 12-year sentence.
- What happens when a Tennessee man bent on revenge against his town teams up with incompetent lawyers? Sixth Circuit: Sanctions for the man for his frivolous lawsuits; and Sixth Circuit: Sanctions against the lawyers for their AI-hallucination-filled briefs.
- Allegation: During 2020 civil unrest, Minneapolis cop fires projectile from a "less-lethal 40mm launcher" into a crowd and hits a protestor in the back of the head. She sits down and blacks out and now suffers from memory loss and headaches. Eighth Circuit: The city was basically a war zone that night; she wasn't "seized" for Fourth Amendment purposes. Dissent: Those launchers are for incapacitation, not dispersal—indeed they are forbidden for dispersal. Sure seems like a seizure.
- Activists protesting a pipeline construction in northern Minnesota ignore "No Trespassing" sign, scale first of two fences at the site, and enter a "No Man's Land"-area where they attempt to lock themselves to equipment to prevent its use. Mayhem ensues between them and officers, with pepperballs flying. Eventually they are all arrested. Protestor: I was shot in the head several times. Eighth Circuit: That's a seizure, but it wasn't excessive. Concurrence: Yeah, but the officer said he didn't mean to. Probably not even a seizure.
- The Forest Service transferred 2,500 acres of federal land—including Chí'chil Biłdagoteel, a.k.a. Oak Flat, an Apache ceremonial religious ground that sits on the world's third-largest deposit of copper ore—to a private mining company. Ninth Circuit (2024) (en banc): Which doesn't violate tribal members' rights under the Free Exercise Clause or RFRA. Plaintiffs: Mahmoud changes things. Ninth Circuit (2026): It does not.
- During traffic stop, Denver police discover driver is a gang-member felon with outstanding warrants, and they arrest him. After detaining him, they do a "protective sweep" of the car on the ground they may be in danger from the passenger—his girlfriend who owned the car and was being polite and cooperative. Police find a gun, and driver is convicted of being a felon in possession. Tenth Circuit: Search was illegal because merely dating a gang member doesn't make a person dangerous. Dissent: Seems reasonable to me to do a protective search when arresting a gang member in a dangerous neighborhood at night.
- Three Eleventh Circuit judges, three opinions, one bottom line: Florida mom should have the chance to amend her complaint to allege that her insurer was indeed her children's primary insurer, such that the company shouldn't have denied coverage for the $420,269 in hospital bills (yikes!) that her twin infants incurred in the ICU.
- And in en banc news, the Fourth Circuit will reconsider its decision that several advocacy organizations, including one that is required by federal statute to protect the interests of people with mental illness, lack standing to challenge allegedly grievous defects in South Carolina's juvenile-detention system.
- And in more en banc news, the Seventh Circuit will not reconsider its decision that prisoners facing transfer to disciplinary segregation get bargain-basement due-process rights. Three-judge dissent: This cements a circuit split and is wrong.
- And in additional en banc news, the Eleventh Circuit will not reconsider its decision to dismiss Donald Trump's defamation suit against CNN for using the phrase "Big Lie" to describe his claims about the 2020 election.
Victory! In 2021, Jacksonville, N.C. officials effectively banned food trucks from nearly 90 percent of the city, admittedly to protect brick-and-mortar restaurants from competition. But we're pleased to report that this week, the city council voted unanimously to repeal the ordinance's three most irredeemable restrictions and mandates. Huzzah! Now IJ client Nicole Gonzalez can welcome trucks back to her property, and IJ clients (and Marine Corps vets) Tony Proctor and Octavius Raymond can keep selling their tasty eats, including to Marines venturing off nearby Camp Lejeune. The lawsuit will continue, however, to ensure that the state's policymakers know that not only is protectionism unwise, it is also unconstitutional. Click here to learn more.