The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Smart meters, bad metaphors, and the color of state law
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
IJ is going to The Show for the 14th time! On Monday, the Supreme Court announced that it was granting review in the case of Sun Valley Orchards, which the Department of Labor started targeting for penalties in 2015. Represented by IJ, Sun Valley fought back, and last year the Third Circuit unanimously held that DOL's in-house courts violated the Constitution. Now the Supreme Court has a chance to extend that ruling nationwide.
New on the Short Circuit podcast: The government's power over home distilling and virtual school vaccinations.
- Whistleblower goes to the media with information about misconduct by a large company. The SEC opens an investigation and asks the whistleblower for information, which he provides. The whistleblower then files an application for a monetary award, available to individuals who "voluntarily" provide "original information" to the SEC. SEC: Sorry, the disclosure wasn't made "voluntarily" because we asked you for the information after we saw the news stories. C. Circuit: Which is a fine interpretation of "voluntarily." But the SEC can also waive that requirement and needs to explain why it didn't, because it seems like a good idea here.
- Mainer with lymphoma sues the power company, arguing it's disability discrimination to charge him a fee to use an old-fashioned meter rather than a smart meter. The smart meter emits radio waves, and radio waves, you see, worsen his cancer. First Circuit: So about causation …
- Allegation: During an early COVID-era "lockdown," Columbia, S.C. cop sees a teenager strolling down a sidewalk. He takes off after the cop approaches. Cop repeatedly yells for the kid to stop and sees he has a firearm, although it's not pointed at anyone. Cop fires 9 times and it ends with a fatal forehead shot. Fourth Circuit: It's clearly established you can't use deadly force when a fleeing suspect poses no immediate threat. No qualified immunity.
- What does Steph Curry's career free throw percentage (91.2%) as applied to ten shots (39.8% to hit them all) have to do with a preliminary injunction? It's explained in the dissent to this Fourth Circuit (unpublished) grant of a motion for a stay of removal. The dissent also suggests the math relies on "divine characteristics."
- Allegation: Man suffering from a medical episode, and who relies on a prosthetic leg, breaks into a Chesterfield County, Va. used car dealership. Police arrive and he curls up in the fetal position. An officer with a dog named "Kona" allows Kona to savagely attack the man, causing severe damage to his prosthetic leg—and real body parts as well. Police: But we gave some warnings. District court: In that case, qualified immunity. Fourth Circuit: What does "fetal position" mean to you? Reversed. Dissent: The case the majority relies on concerns a baseball bat, not a dog.
- Late at night in Raleigh, N.C., a man on a bike repeatedly weaves in and out of a crime scene full of cops. After telling the cyclist to get lost for 10-20 minutes, the cops lose their patience, grab, and subdue him. During the extended struggle they take two cross-body bags he was carrying. Cops search the bags, finding a mega amount of criminal things. Cyclist: Unreasonable search, as by the time you looked in my bags I wasn't a threat. Fourth Circuit: They would have found the bad stuff anyway.
- Want to be a part of a congressionally sanctioned monopoly that doles out extremely prestigious benefits while simultaneously being impervious to the Constitution? Fourth Circuit: Then you should work for the United States Olympic Committee and its subsidiary "SafeSport."
- It's heartwarming to learn from the Seventh Circuit that in addition to a long line of Illinois governors spending time in federal prison, the occasional Speaker of the Illinois House of Representatives does too.
- In which a Mexican applicant is denied a visa. The applicant: This was just because of my many tattoos. The government: There were other reasons that we can be completely vague about. Ninth Circuit: Good enough for us! (Judge Lee, concurring, argues that courts aren't supposed to be reviewing these consular decisions in the first place.)
- Plaintiffs: Facebook's algorithm deliberately amplified controversial posts, which resulted in amplifying posts advocating for the genocide of the Rohingya, which resulted in, well, the genocide of the Rohingya. Ninth Circuit: Our circuit's interpretation of Section 230 bars these claims. Two-judge concurrence: Our circuit precedent reads Section 230 far too broadly. One-judge concurrence: Oh, boy, does it ever.
- The Supreme Court's interim orders get all the press, but the circuits do them, too. Consider this Ninth Circuit order staying an injunction that struck the word "operation" from Arizona's law governing when transgender people may amend their birth certificates.
- Or! Consider this (much longer) Ninth Circuit order staying (over a dissent) an injunction restricting how ICE officers may treat protestors at their Portland detention facility or what those officers may wear when so doing.
- Or! Or!! Consider this third Ninth Circuit order staying an injunction by squarely holding that there is no due-process right for innocent property owners to be free from exposure to tear gas.
- Ninth Circuit (unpublished): We're not here to give you legal advice, buddy, but if you want to challenge the enforceability of an arbitration clause, maybe don't, like, fully participate in the disputed arbitration while your case is on appeal.
- Inmate at Bent County, Colo. Correctional Facility falls, breaks neck. Prison medical staff: "Vic's Vapor Rub" [sic] should clear that right up for you. More shambolic treatment ensues. Tenth Circuit: The guy should have another chance to amend his pro se complaint.
- Everyone loves a good metaphor. But pro tip for prosecutors: In your closing argument urging that a defendant be convicted for enticing a minor, maybe don't present a full-body image of the guy naked in his shower before going on a riff about how the "cloak" of the presumption of innocence has fallen and the dude stands before the jury "naked in his guilt." Tenth Circuit: The government stands before us naked in its plain-error prosecutorial misconduct. Conviction vacated.
- Was this Aurora, Colo. policeman acting "under color of state law" when, while on administrative leave for having shot a man in the leg, he allegedly accosts a disabled neighbor walking her dog and proceeds to pummel her so hard that she suffers traumatic brain injury and vision loss—all while saying "I'm a cop," displaying his badge, and saying he was trying to arrest her? Tenth Circuit: He was not acting under color of state law, since the terms of his administrative leave had stripped him of all authority as a police officer. So the City of Aurora itself is not on the hook. (Don't be glum, though, the court reassures us! The now-former officer was criminally charged with first-degree assault by strangulation, attempting to influence a public servant, and third-degree assault! Unmentioned? He'd later plead out to one count of reckless endangerment, avoiding any jail time at all. … Hrm.)
- Georgia man offers friends all-expenses-paid vacations to Costa Rica. All he asks in exchange is that they bring back souvenirs in their luggage—most importantly, canned fruits and vegetables. When the travelers returned, he would collect only the cans and let them keep the other souvenirs. Eleventh Circuit: "The cans, as the reader may have suspected, contained neither fruit nor vegetables, but cocaine."
- And in en banc news, the Second Circuit will not reconsider its earlier panel opinion affirming E. Jean Carroll's $83.3 million defamation award against President Trump for statements he made while president. Three dissenting judges would have granted rehearing to consider presidential immunity arguments and to allow the United States to belatedly substitute itself in Trump's shoes.
- And in further en banc news, the Third Circuit will not reconsider its earlier panel opinion holding that talc producers facing thousands of tort suits alleging asbestos-related injury may file for bankruptcy. The panel will, however, provide additional explanation for why this is so.
- And in additional en banc news, the Fifth Circuit will reconsider its earlier panel opinion about two of America's favorite topics (arbitrability and ERISA) in a dispute between two of America's favorite companies (Aramark and Aetna).
- And in still more en banc news, the Fifth Circuit will not reconsider its earlier panel opinion holding that the federal machinegun ban survives both Commerce Clause and Second Amendment challenge; Judge Willett, concurring in the denial, thinks the Fifth Circuit's earlier rulings on these issues are dubious, but that this case is the wrong vehicle for revisiting them. Judges Ho and Oldham, are not pleased.
- And in final en banc news, the Ninth Circuit will not reconsider its earlier panel opinion allowing a death row inmate to reopen habeas proceedings challenging his murder conviction from the 1980s. Nine judges dissent and would not further disturb a conviction based on ineffective-assistance-of-counsel claims raised for the first time seventeen years later.
Victory! For 13 years, IJ has been representing retired Texas veterinarian Ron Hines in his long-running fight for the freedom to give online veterinary advice to pet owners around the world. In 2024, the Fifth Circuit held that Ron's speech was protected by the First Amendment, but the state board of veterinary medicine sought review at the Supreme Court. Last month, the Supreme Court denied review, giving Ron a well-deserved final victory! Learn more here.
