Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

Fabricated evidence, terminated grants, and taxes on jets.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Friends, the procedural and legal obstacles to holding federal officers accountable in court for violating people's rights are nothing to sniff at. But if you want a whiff, we have it all here in this handy flowchart.

New on the Bound By Oath podcast: We mess with Texas, telling the story of Pullman abstention and Justice Frankfurter's introduction of federalism to fed courts.

New on the Short Circuit podcast: We go stateless in Seattle with a visit to the CHOP zone and explore the history of forced Native American reeducation.

1. D.C. Circuit (unpublished): We're not saying these two IRS employees didn't fabricate evidence, we're saying there's nothing you can do about it (Constitution-wise) if they did.
2. On at least 181 occasions, Massachusetts state police secretly and warrantlessly record phone conversations and then bring criminal charges against people involved. The recordings are not disclosed to prosecutors (or defendants). District court: That might violate the Constitution. First Circuit: Though the police declined to say that they have stopped doing this, these plaintiffs haven't shown they're likely to be secretly recorded and charged again in the future. They lack standing to seek an injunction.
3. As the COVID-19 pandemic started to abate, the U.S. District Court for the Virgin Islands resumed in-person hearings, with some restrictions. In one such instance, drug traffickers who go by "Bogus" and "Crumbull" challenge their convictions, arguing that the exclusion of observers from the courtroom during parts of the opening and later portions of the trial violated their right to a public trial. The government argues the exclusions were trivial, since the trial was remotely viewable from an overflow room. Third Circuit: Their rights were violated, but neither of them sufficiently objected, and they received a fair trial. Convictions affirmed.
4. Third Circuit (unpublished): Hey district court, you got this one right but maybe don't include puns in your next opinion about two kids who were killed in a tractor-trailer accident.
5. Exoneration watch, Baltimore edition: Two brothers are incarcerated for 20 years for a murder they did not commit. The convictions were partly based on a statement from a 13-year-old with a learning disability, who fingered the brothers only under pressure from detectives banging the table in front of him and which he recanted at trial. Before the brothers are released from prison, this witness dies. The brothers sue the detectives. Can the court consider the decedent's old testimony? District court: Inadmissible hearsay. Fourth Circuit: It was extracted way back then for a similar motive to what it would be used for now. To a jury this must go.
6. So, you might think that a case about whether the fixed-fees charged by fractional-share jet companies (think time-shares for planes) are subject to a 7.5% "ticket tax" would be extraordinarily boring. But credit to Chief Judge Sutton, it's actually a fascinating tale about the IRS jerking around an entire industry, hitting one company with a $39 mil judgment, and unanimously losing in the Sixth Circuit. Concurrence: Also, it's weird that over the course of the nation's history, the Supreme Court's "taxpayer-favoring canon" of interpretation quietly switched to "a novel taxpayer-disfavoring one."
7. Exoneration watch, Detroit edition: Two men are convicted of murder based on some sketchy evidence. This includes a jailhouse informant who claimed he heard one of them confess but years later said he never actually met either defendant and that his testimony was entirely dictated to him by a detective. The defendants are released after nearly 20 years and then sue the detectives. District court: Much of this case can go forward. Detectives: Fine, we'll appeal. Sixth Circuit: It's best not to raise arguments in reply briefs. Appeal partly dismissed and partly affirmed.
8. Madison, Wisc. police hear loud bangs and see drunk man (who is thought to own firearms) go inside home. SWAT surrounds the house. But the man does not respond, and during five-hour impasse there are no more gunshot-like noises. They enter the house and shoot him with foam bullets, including after he'd come downstairs empty handed and as officers gave conflicting commands. (No shell casings are found, and a jury acquits him of being a felon in possession.) Seventh Circuit: A jury could find some constitutional violations here, but qualified immunity. Concurrence: "[T]he day has come when the doctrine's privilege has nearly eclipsed the Constitution's guarantees."
9. In early 2025, following Executive Orders by President Trump, three federal agencies terminated research grants en masse via form letters. Six researchers from the University of California system who had their grants terminated bring a class action, and the district court enjoins the terminations. Ninth Circuit: About half-right. The district court was correct to enjoin the terminations based on EOs related to DEI programs. But the terminations with no explanation had to be brought in the Court of Federal Claims.
10. Tenth Circuit: Following the Supreme Court's ruling in Chiles v. Salazar—holding that a state ban on talk therapy that seeks to change or reduce same-sex attraction or transgender expression is a viewpoint based restriction on speech—we remand to the district court to apply strict scrutiny. Dissent: Since the law obviously fails strict scrutiny, we could save everyone a lot of time by just striking it down now.
11. Southern Company Services, Inc., has one neat trick for reducing its pension obligations: Calculate them based on life-expectancy numbers from 1951. Eleventh Circuit: Why not go all the way back to 1789? Oh, we know: Because the unreasonable actuarial assumptions violate ERISA.
12. Two DeKalb County, Ga. officers investigating stolen vehicle knock on a house's front door, enter when it swings open. They go upstairs, find a man sitting in his bed who throws a phone at them. One officer shoots a half dozen times, killing the man. He was unarmed. (The shooting officer was fired and accepted a plea deal for involuntary manslaughter.) The man's family sues for Fourth Amendment violations. The shooting officer invokes qualified immunity and appeals his loss to the Eleventh Circuit. Family: The court shouldn't even entertain the appeal because the issues are all factual and thus ought to be hashed out at trial. Eleventh Circuit (unpublished): Nope, the issues are legal, so we're going to address them in the normal course. File your brief.
13. And in en banc news, the Third Circuit, 6–5, will not reconsider its decision on Columbia University grad and pro-Palestinian activist Mahmoud Khalil. The feds detained Khalil and began deportation proceedings in response to his advocacy, raising questions about how the First Amendment applies to lawful permanent residents. The non banc means Khalil will have to exhaust the removal process and cannot challenge his detention via writ of habeas corpus.
14. And in more en banc news, the Fourth Circuit will reconsider its decision that federal law preempts Maryland's and West Virginia's attempts to regulate drug manufacturers' distribution of Medicaid-covered drugs.

"Get on the fucking ground!" You know who has standing to challenge ICE's habit of barging onto private property, ignoring No Trespassing signs, and tackling, shackling Hispanic people—and then prolonging those detentions by refusing to accept REAL ID or other proof of citizenship? Per the Southern District of Alabama, IJ client Leo Venegas—who has been violently detained three times in the last year—has standing. Stay tuned for the court's ruling on injunctive relief.

Harvard law professor Larry Lessig thinks that super PACs are destroying America. That sits poorly with IJ Senior Attorney Paul Sherman, who helped litigate SpeechNow.org v. FEC, the case that created super PACs. According to him—and, well, us—restrictions on super PACs censoriously limit the messages voters may consider before they cast their ballots. Who's right? We have our biases, but if you'd like to decide for yourself, we encourage you to watch Lessig and Sherman slug it out on So to Speak: The Free Speech Podcast, hosted by our good friends at FIRE.