Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Righteous gaolers, crooked feds, and interlocutory appeals.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case! Art Yatsko wants to build a modest home in North Port, Fla. for his retirement. And though his lot is in a neighborhood comprised entirely of single-family homes, the city recently rezoned the area to promote commercial uses. Art could build a shooting range or a nightclub, or he could seek permission to build a duplex, but he is absolutely downright forbidden from building a single-family home. Which is arbitrary, irrational, and dishonorable, so Art has teamed up with IJ to sue. Click here to learn more.
New on the Short Circuit podcast: Suing a probation officer and moth-eaten precedent.
- This Third Circuit case has a lot of familiar parts: a pro se litigant squaring off against gov't lawyers, complaints of constitutionally insufficient notice, and ultimately a finding of civil contempt. Except here it's the gov't arguing that the pro se party didn't provide enough notice, and let's just say the contempt order doesn't run against the guy you all thought it would.
- Federal inmate is beaten to death by other inmates; despite emergency alarm's being triggered and live video footage of dodgy activity, guards inexplicably fail to spring into action until hours after he died. Third Circuit (unpublished): The Bureau of Prisons has an administrative-remedy program to deal with prisoners' grievances, which means that we courts shouldn't imply a right to bring a constitutional claim under Bivens. What? Dead inmates can't actually use the administrative-remedy program? Because they're dead? No matter. Case dismissed.
- Fifth Circuit (2022): The Horseracing Integrity and Safety Act of 2020 violates the nondelegation doctrine! Fifth Circuit (2024): And intervening amendments to the statute have fixed exactly half of the problem! SCOTUS (2025): Maybe give that another look? Fifth Circuit (this week): Nope. Just half!
- Dallas police respond to couple sleeping in their van with lights, sirens, and shouting commands. The driver reverses slowly and hits a cop car. Police respond by opening fire, killing the driver and injuring the passenger. An officer who shot a dozen times was fired, indicted (the first Dallas cop in more than 40 years); a jury acquitted him. Fifth Circuit (2024, unpublished): Can't sue the officers, but maybe the city? Fifth Circuit (2026, unpublished): Can't sue the city, either.
- We don't know much about the unsuccessful doggie-daycare plaintiff in this unpublished Fifth Circuit opinion, but if he didn't want gov't officials telling him what to do, he probably shouldn't have opened his business in the City of Bossier City. (We know, the locals don't pronounce it like that. Let us have our fun.)
- When a district court denies a defendant's request for qualified immunity, the defendant gets a special right of interlocutory appeal (which can delay litigation for months). But what if the district court just doesn't mention the request for qualified immunity at all? That triggers the same appeal right as a denial would, says the Fifth Circuit.
- A "heckler's veto" is when the gov't silences speech because of the hostile reaction of listeners. And, per the Sixth Circuit, it remains as unconstitutional in limited public forums as it is in traditional public forums. Thus, a Xenia, Ohio school board member should not have yoinked the microphone from a speaker who was expressing her views regarding the school district's alleged teaching of critical race theory.
- The Kenosha County, Wisc. jail has long contracted with federal agencies to house immigrants who are civilly detained pending hearings or removal. While in custody, the detainees are required to perform unpaid custodial work, on pain of discipline like loss of phone privileges or solitary confinement. A violation of 18 U.S.C. § 1589, which provides a civil damages remedy for people who are forced to provide labor or services by means of physical restraint or threatened abuse of legal process? Jail: Come on, guys. That statute's meant to deal with human traffickers, not righteous gaolers like us. Seventh Circuit: It's actually not so limited. Case undismissed.
- Under Indiana law, members of the public may only attend executions if they are invited by the condemned inmate or are immediate family members of the victim. Reporters sue, arguing that the First Amendment protects their right of access to gov't proceedings. Seventh Circuit (over a dissent): That applies to trials, not executions, and the law treats members of the press just like everyone else. No First Amendment violation.
- Allegation: Prison guards at Moberly, Mo. facility are supposed to check on certain inmates every 20 minutes. These guards didn't, and an inmate committed suicide by hanging. District court: The guards are not shielded from suit by state-law official immunity because the checks are a mandatory, rote task. Eighth Circuit: Reversed. The checks are discretionary because, if they had done them, then they would have had discretion in assessing the inmate's condition and any steps to take.
- After 32 years in prison, man is exonerated of murder; the prosecution's star witness was an accomplice to the actual shooter and, in exchange for full immunity, adopted the story San Francisco investigators fed him. Ninth Circuit: The man's fabrication-of-evidence and malicious-prosecution claims can proceed. Dissent: Even if his rights were violated, that wasn't clearly established in 1990.
- Pro se Kansas prisoner: I was subject to excessive force during a medical emergency. Defendants: Qualified and sovereign immunity, please. District court: Happy to consider it, but please comply with the page limits for your motion. Defendants: No, we'd rather appeal. Tenth Circuit: Guys, official immunities may give gov't defendants lots of chances for interlocutory appeals, but not just because you don't want to follow the rules. Appeal dismissed for lack of jurisdiction.
- This case demonstrates the complexity of trying a criminal case and the many legal fights that happen in the lead up to and during trial. Unfortunately for the crooked federal agent convicted of participating in an oxycodone-trafficking conspiracy, the Eleventh Circuit doesn't find any of those issues sufficient to disturb his conviction or sentence.
- Florida man sues, arguing that "any use of city or state tax dollars supporting a public place with a Confederate name—streets, schools, and the like—violates his statutory and constitutional rights." Eleventh Circuit: "His disgust, no matter how deep and how sincere, is not the kind of injury that can give rise to a lawsuit."
- And in en banc news, the Ninth Circuit will reconsider its decision that celebrity tattoo artist Kat Von D is off the hook for copyright infringement for her skillful recreations of Jeff Sedlick's famous photo of Miles Davis on a friend's arm. The earlier panel had affirmed a California jury's ruling that the tattoo was not "substantially similar" to the photo under the Ninth Circuit's "intrinsic test" for substantial similarity, which looks to the jury's subjective interpretation of the overall concept and feel.
New case! North Dakota is one of only two states that require every private school teacher to get a license. And then on top of that, N.D. officials dictate which courses and grade levels teachers are allowed to teach. Obtaining a license is onerous, time consuming, and expensive. And it means that private schools like IJ client Capstone Classical Academy can't hire teachers they know to be perfectly well qualified. "Private schools across the state are turning away Ph.D.s, working professionals, and accomplished educators from other states because none of them happen to hold North Dakota's particular paper credential," says IJ Senior Attorney Michael Bindas. "That isn't a recipe for quality—it's a barrier to it, especially in a state that is already finding it hard to attract and keep great teachers." Click here to learn more.