Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Vigilantes, less-lethal munitions, and a bananas ID theft case.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New cert petition! In 1960, the Supreme Court as good as erased the oath-or-affirmation requirement from the Fourth Amendment, thereafter permitting warrants to issue based on hearsay—instead of firsthand testimony from an actual witness. Now we're asking the Court to stop flouting text, original meaning, and a deep well of pre-1960 precedent and to take up the case of Michael Mendenhall, who was arrested and had his Denver office searched based on thirdhand hearsay from an obviously unreliable source. Click here to learn more.
New on the Short Circuit podcast: Live from Penn Law we continue our #12Months12Circuits series with Circuit Numero Tres. Reverse discrimination, prophylactics, and semi-sanctionable hallucinations.
- Based on a Presidential Proclamation, the current administration started summary deportation proceedings without adhering to procedures—such as allowing people to apply for asylum—that Congress adopted. A set of nonprofits sue and receive an injunction and class certification. D.C. Circuit: Which was correct. Congressional statutes > stuff the President says. Dissent: I agree the Proclamation is too broad in some respects. But I'll note that the inhabitants of North Sentinel Island don't have standing in this case.
- More than 99% of transgender female prisoners held in federal custody are housed in male prisons. The remaining <1% are housed in female prisons based on individualized factual findings by the Bureau of Prisons that these inmates are at particular risk of harm if housed in male prisons. In 2025, President Trump issues an executive order requiring these inmates to be transferred to male prisons. Eighteen trans inmates sue and secure a preliminary injunction against the transfer. D.C. Circuit (over a dissent): Which they may be entitled to, but the district court needs to do an individualized assessment for each inmate. Injunction vacated.
- Man sues feds to enjoin investigation. Feds argue that the suit is both too early and too late. (If we had a nickel, amirite?) D.C. Circuit: Neither too early nor too late.
- Practice Tip: Think twice before admitting all the allegations in a complaint in the hopes of then challenging it on appeal under the forgiving pleading standard for plausibility, especially when the gov't is trying to forfeit your property by alleging it's funding Iranian terrorism. If you ignore this tip, the D.C. Circuit may well give the gov't the benefit of the doubt.
- In 2017, a man deflagrated an improvised pipe bomb in an NYC subway tunnel near Times Square. He didn't succeed in seriously injuring anyone other than himself, but he did get a life sentence to Florence Supermax. Second Circuit: That the man was inspired by ISIS to commit a terrorist attack doesn't mean that he provided material support to ISIS. So his conviction on that count will be reversed, but the rest are fine—as is the sentence. Dissent: He set off a pipe bomb because ISIS called on its supporters to do so, he repeated an ISIS rallying cry, and he told investigators he did it on behalf of the Islamic State. That's providing material support, and the majority is "wrong, wrong, and wrong again."
- District court: The jury was entitled to believe a cyclist who says a Philly officer choked her without cause and to disbelieve the officer, who failed to activate her bodycam and whose story changed several times. Third Circuit: Yeah, sounds like the jury got a little emotional. And the district judge got a little emotional too, quoting Shakespeare and all. Punitive damages reduced from $250k to $12k.
- A baby girl is gravely injured at an Al Qaeda facility in Afghanistan when her parents detonate suicide bombs during a raid by U.S. forces. She's taken to a U.S. military hospital for treatment where a JAG officer learns of her injuries, obtains custody and later adoption orders from a Virginia court. Yikes! Notwithstanding the orders, the U.S. Embassy hands the girl over to an Afghan family that is evacuated in the chaotic U.S. withdrawal. A fractured Virginia Supreme Court upholds her adoption to the JAG officer. While the state-court litigation pended, the now-stateside Afghan family filed a federal suit seeking $20 mil in damages. The district court allows them to proceed pseudonymously and enters a protective order prohibiting the JAG officer's family from identifying the Afghan family to anyone unless they first sign an NDA. Fourth Circuit: This is the exceptional case where a content-based prior restraint survives First Amendment review.
- Texas law requires all public schools to display the Ten Commandments in every classroom. Does this violate the Establishment or Free Exercise Clauses of the First Amendment? Fifth Circuit (en banc): Nope. Founding-era establishments were not comparable to requiring a poster on the wall of a gov't building, and nobody is forcing or prohibiting anyone from practicing their religion. Judge Ho (concurring): And we shouldn't be worried about justiciability. Judge Oldham (concurring): Actually, I think we should be. Dissent: It's unconstitutional until the Supreme Court overrules Stone v. Graham.
- Last week, your dashing summarist brought you a few puns in service of the Fifth Circuit's striking down the 158-year-old federal ban on home distilling. This week, we've got a sexier approach: a circuit split. Contra the Fifth, the Sixth Circuit holds that the ban is a necessary and proper means of collecting taxes on liquor, which people have evaded as long as the Republic has existed. A dissenter wouldn't even reach the merits, in light of the view that the plaintiff is but a beer brewer who has "researched" distilling.
- Indiana elementary school teacher brings a First Amendment challenge against Indiana law prohibiting public schools and their teachers from providing instruction on human sexuality to students in prekindergarten through third grade. The Seventh Circuit emphasizes that the plaintiff "is represented by very able counsel," so you already know how that turns out.
- Tale as old as time: Guy walks into a bank, says his name is "William Woods" and tries to access accounts under that name. When the bank calls the account holder, who is a totally different guy, the so-called "William Woods" ends up arrested, convicted of felony identity theft, and jailed for over a year. The Scooby Doo twist, though, is that our guy is actually totally William Woods, the account holder was the identity thief all along, and things unravel from there in this Eighth Circuit case. [See here for the raveling and unraveling, which involves involuntarily commitment and a dogged investigator.]
- During World War II and the Vietnam War, various activities—like melting down surplus aircraft and burying drums of napalm—at the Chino Airport resulted in some hazardous conditions that the County of San Bernardino, Calif. is now responsible for remediating. Thankfully, the county's insurer from 1966 to 1975 is paying $9 mil per year to help with the cleanup. Ninth Circuit: Actually, it's going to help out a bit more than that.
- Last fall, California enacted the No Vigilantes Act, which requires non-uniformed law-enforcement officers—including federal ones—to visibly display identification while performing their duties. The feds sue. Ninth Circuit: And the feds are entitled to an injunction pending appeal, since the statute likely violates the Supremacy Clause.
- During 2020 civil unrest, Denver officer shoots nonthreatening protestor with pepperball without warning or cause. Jury: Fourth Amendment violation. Tenth Circuit: Even if he hadn't bragged about liking to shoot protesters, no QI. [Circuit split alert! Astute readers will recall the Eighth Circuit says that such shootings are not a "seizure," and thus not a 4A problem as long as the idea is just to shoot protesters for fun/dispersal and not to arrest them.]
- During 2020 civil unrest, lots of Denver officers shoot lots of nonthreatening protesters with usually-not-lethal projectiles without warning or cause. Jury: Which violated the Fourth Amendment, and the city is liable. Tenth Circuit: No need to disturb the verdict or damages awarded, "nonsensical" argument from the city notwithstanding.
- Here's something that might raise an eyebrow: Multiple lawsuits across the Spanish-speaking world dispute who owns intellectual property related to Frida Kahlo. (Her family licensed something to a Panamanian company in 2005.) In 2022, the dispute came to Miami when Kahlo's grandniece sent cease-and-desist letters to a Kahlo exhibitor licensed by the Panamanians. The Panamanians responded by suing the Mexican heirs. Eleventh Circuit: And they can fight about that in Florida. Sending allegedly tortious cease-and-desist letters into Florida is, in Due Process speak, a minimum contact with Florida.
- Per agreement with the feds, Florida built a detention facility in the Everglades and began using it to house immigration detainees. Environmentalists and the Miccosukee Tribe sue, saying environmental reviews had to happen first. Eleventh Circuit: It's not a NEPA when the state is building things on its own. Also, immigration law generally doesn't allow enjoining stuff involving immigration enforcement. Dissent: Immigration enforcement is a federal task, so it should be subject to federal environmental laws, even if a state is administering it.
- Failed Senate candidate and former Chief Justice of the Alabama Supreme Court Roy Moore sues the producers of a negative political ad that quoted news coverage of his alleged creeping on young girls. Jury: Defamatory. $8 mil in damages. Eleventh Circuit: No. Although some might read the ad as implying that Moore was banned from the mall FOR creeping on a 14-year-old working as Santa's helper (which is false), it can also be read as implying that he was banned from the mall AND creeped on a 14-year-old working as Santa's helper (which is, allegedly, true).
- Future readers of the Federal Reporter will find evidence of commonality between the Biden and 2d Trump Administrations when they learn that the latter defended an executive order of the former regarding project labor agreements. Both administrations were/are okay with making all contractors on a federal project enter into a master collective bargaining agreement. And the Eleventh Circuit says it doesn't facially violate the amusingly titled "Competition Act."
- And in en banc news, the Ninth Circuit will not reconsider its decision invalidating a land swap between the BLM and a phosphate company because of an 1898 agreement with the Shoshone-Bannock Tribes. There are two dissentals, one additional writing replying to one of the dissentals, and a "response" replying to the said additional writing by a judge who also wrote one of the dissentals. (Ed.: What's a "response" in this context? A "responsal"?)
New case! Friends, teaching is just talking. It's protected by the First Amendment, and if the gov't wants to regulate it, it has to have a good reason. And Wisconsin does not have a good reason to regulate people like Jim Masterson and Becky Tenges. Jim and Becky teach Jim's own method of horse care—a method that has been taught to thousands of students all over the world. The regulations in question go well beyond commonsense consumer protection and anti-fraud measures (which we don't object to). Rather, state law gives officials approval power over Jim's curriculum (which they don't know anything about) and requires Jim's school to navigate a costly and pointless review process—on pain of $500 per day fines (or even imprisonment). So this week, Jim and Becky teamed up with IJ to put the state to its burden—strict 1A scrutiny. Click here to learn more.