Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
SWAT damage, sloppy briefs, and forced confessions.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case! Pennsylvania requires real estate brokers to maintain a physical office space even if they don't need one and never use it. Indeed, IJ client Kevin Gaughen's office has been visited more often by state inspectors—who ensure there is a conference table, a landline phone, a filing cabinet, and an outdoor sign—than by actual clients. The rule chiefly serves to impose unnecessary costs that are harder for small brokers to absorb than big firms. So this week Kevin teamed up with IJ to challenge the rule under the Pennsylvania Constitution, which protects the right to earn an honest living free of unreasonable regulations. Click here to learn more.
New on the Short Circuit podcast: We take a long drink from the Fifth Circuit's waters. Including those of the Panama Canal.
- In 2022, New York passes the Concealed Carry Improvement Act, banning the possession of firearms (1) on private property where the owner has not given express consent to the carrying of firearms, and (2) in public parks. Gun-rights advocates sue. Second Circuit: The private property restriction violates the Second Amendment, but there's enough of a historical basis to uphold the restriction in public parks. Dissent: No there isn't.
- Maryland prohibits renewable energy suppliers from advertising "green power" unless the electricity is at least 51% renewable or backed by renewable energy credits from within a specific geographic region. As a result, an energy company whose electricity is fully backed by renewable energy credits from outside that region cannot advertise its electricity as "green." Energy companies seek a preliminary injunction. Fourth Circuit: Granted. None of the regulated terms are inherently misleading, nor has the state shown the law will clear up consumer confusion.
- Over 100 W. Va. local gov'ts sue Express Scripts for a boatload of cash over its part in furthering opioid addiction. They want to create a fund that would then spend money on Good Things. Express Scripts: We get a jury trial! District court: No. Fourth Circuit: On the first day of kindergarten law students learn that there is law and there is equity. The Seventh Amendment guarantees juries for the first but not the second. And asking for a boatload of cash is very much the first. Mandamused!
- "Death and taxes," that's what they say, amirite? What they don't tell you is that taxes can follow you beyond the grave, or at least can follow your spouse. Learn from the Fourth Circuit about how a couple's taxes that were both underpaid and overpaid in the early 1980s led to decades of squabbles and litigation with the IRS—something to do with the IRS accidentally overpaying interest—and how the widow now claims it was her husband's fault anyway. Also, the IRS loses this round, so that's nice.
- In 2020, a fugitive evades police officers from McKinney, Tex. in a high-speed chase, then breaks into Vicki Baker's home, where he barricades himself inside. A SWAT team tears the house apart—saturating it with noxious gas—in an effort to capture the fugitive (he commits suicide). The officers promise Ms. Baker that the city would compensate her, but the city refuses to pay. Fifth Circuit: The Texas Constitution requires the city to pay the owner the $60k it cost her to repair the house and replace damaged items. (This is an IJ case. For a lovingly crafted podcast episode on what the federal Constitution requires, click here.)
- After learning that probationer has burglarized his ex's Beaumont, Tex. home and threatened to murder her, federal probation officer tells the ex that she is safe at home and that the officer will seek an arrest warrant immediately. Instead, the officer does nothing for two days, and the probationer returns and stabs the ex, leaving her a quadriplegic. Fifth Circuit: When an officer decides on a proper course of action and then negligently fails to follow through, that is not the discretion excepted by the Federal Tort Claims Act's discretionary function exception. Case undismissed. To trial this must go.
- We don't lightly use the f-word ("forum-shopping," obviously), but it is curious that Starbucks's challenge to NLRB rulings about two stores in upstate New York has landed in the Fifth Circuit. One of the employees at issue used the other f-word quite liberally in sexist remarks about his co-workers, and the court thinks the NLRB should give that a closer look before concluding that firing said potty-mouth was a labor-law violation.
- In which the Fifth Circuit (unpublished) holds that a statute commanding pipeline companies to establish a particular maximum operating pressure for their pipelines does not implicitly require the companies to maintain records proving that they've done so, especially when a totally different part of the statute governs what records they have to keep.
- Look, we understand that judicial opinions have to focus on the dispositive facts in a case, but we still think the Fifth Circuit (unpublished) could have given us at least a little more about this DNA expert who "was impeached by her training in veterinary medicine, running of an unaccredited laboratory, and involvement 'in the DNA quest for Bigfoot.'"
- Texas felon is convicted for possessing a firearm, challenges the conviction under the Second Amendment. Fifth Circuit (per curiam): Easy-peasy affirmance under our precedent. Concurrence (Judge Ho): But categorical lifetime disarmament for all felonies is a problem. Concurrence (Judge Oldham): This is an easy-peasy affirmance, even though our precedent is egregiously wrong.
- Man is convicted of burying three people alive. This despite the lack of any physical evidence implicating him, and his conviction hinges on the since-recanted testimony of a snitch. He unwillingly and badly represented himself at trial, which the Tennessee Supreme Court blessed on account of his forfeiting his right to counsel. The Sixth Circuit (2018) denied habeas relief, and the state set his execution for May 21, 2026. Before that happens, he wants fingerprints and DNA from the crime scene (which don't match him) to be tested against an alternative suspect, but the state courts refuse under Tennessee law. Sixth Circuit (2026): And those statutes are constitutional. (Ed. note: Officials called off the execution after spending more than an hour trying to find a vein while he groaned in pain. The governor has since granted the man a one-year reprieve from execution.)
- Seventh Circuit: "We see [] sloppy work in briefs fairly often, and almost always let it pass without comment as we try to focus on the merits of appeals. But … "
- Feds' letter to company: Your special brake-lights are illegal; tell us all your customers so we can inform them your product makes their cars inoperative, and we will fine you up to $26.3k per day if you don't comply. District court: That letter is rough, but it's not a "final" agency action you can challenge. Eighth Circuit (over a dissent): Yes it is.
- Indigent criminal defendants in Benton County, Ark., sue for an injunction requiring state-court judge to appoint them counsel before their bail hearings. Eighth Circuit: But we have no reason to think you'll be arrested again in the future, much less brought before the same judge. No standing!
- Black Hawk County, Iowa jail requires inmates to sign "confessions of judgment" upon their release, binding them to pay fees for booking, room, and board. Two former inmates sue, claiming that the coerced confessions of judgment violate the Due Process Clause. Eighth Circuit: And contrary to the district court's view, they do indeed have standing, since they say the confession-of-judgment workaround short-circuited their right to process. (Without the confessions, the jail would actually have to litigate a reimbursement action against them.) Case undismissed.
- Eleventh Circuit (unpublished): Alabama state law does not immunize police officers from suit for making bogus arrests or filing made-up charges if the officer was acting out of personal animus. So the case against this officer, who is alleged to have arrested and charged the plaintiffs for complaining about him, can proceed.
- And in en banc news, the Fourth Circuit will reconsider its decision allowing the military not to enlist people with undetectable viral levels of HIV. (With modern medication, such people can take a daily pill and be otherwise healthy.) A prior Fourth Circuit decision had held that the military could not discharge such people because of their HIV status, and the two decisions are, in technical legal terms, conflict-y.
- And in more en banc news, the Sixth Circuit will not reconsider its decision that the owner of an Ohio-based trucking company lacked standing to sue his insurance company over racial discrimination related to a small-business grant program open only to black-owned businesses. The panel held that the owner should have applied for the grant even after learning his company was ineligible for it. Dissental (Judge Thapar): "If a hungry black customer—ready and willing to purchase lunch—walks up to a restaurant with a sign reading 'Whites Only,' does he need to open the door, request a table, and get thrown out to be harmed?"
New case! The federal gov't is demanding that IJ client Tuncay Saydam—an 88-year-old retired computer-science professor (and truly delightful human)—pay $437,564 in penalties for unwittingly failing to file a short form identifying bank accounts he kept in his native Turkey. The feds say that not only are the penalties not "excessive," but they're not even "fines," meaning the Eighth Amendment's Excessive Fines Clause doesn't apply at all. Which is gale-force bananapants. Click here to learn more.