Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Cocaine & waffles, voter rolls, and deeding the farm.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case! The Texas Constitution says that "monopolies are contrary to the genius of a free government, and shall never be allowed." And yet! Waxahachie officials have imposed a monopoly on construction dumpster rentals, handing the market to a big national chain and outlawing honest competition from folks like IJ client American AF Dumpster Rentals. Not so genial if you ask us.
New on the Short Circuit podcast: But what if the police themselves are the emergency?
- Allegation: Chinese-American IT worker for the State Department is harassed by a diplomatic security officer because of his ethnicity. It culminates in the officer coming to his home, where the officer forcefully grabbed him and then pantomimed pointing a gun at his son while calling the child a racial slur. He sues the gov't under the Federal Tort Claims Act. D.C. Circuit: That all sounds pretty assault-ey to us; lawsuit undismissed.
- In January 2025, the Trump Administration expanded expedited removal of illegal aliens to the maximum extent allowed by Congress. A due process violation? D.C. Circuit: No. Concurrence: we don't even have jurisdiction. Dissent: Yes.
- Mom discovers that Skaneateles, N.Y. school had been socially transitioning her child without telling her. She objects, but the school persists, so she sends kid to a private school. District court: Mom lacks standing to challenge the school's policy. Second Circuit (unpublished): She can't seek prospective relief, but she certainly can seek damages, particularly in the wake of the Supreme Court's interim docket decision on the same topic.
- So, you know those "explanation of benefits" documents that your health-insurance company sends you that you don't read? What happens if they're defamatory—like, what if they tell you that your claim is being denied because your doctor doesn't have a license to practice medicine even though your doctor totally has a license to practice medicine? It turns out, the Third Circuit says, the doctor's defamation claims are preempted by ERISA.
- In response to several near-fatal overdoses, a Virginia prison institutes a new strip-search protocol—of inmates escorted to a nearly empty videoconference room, that they use one at a time, under video surveillance, that's searched in between uses. An inmate strip searched 26 times in a month sues. Fourth Circuit: Even in prison, this looks like a Fourth Amendment violation. It's nearly impossible to trade contraband in the room, and the policy was based on an unsubstantiated tip. But no need to make any law on that. Qualified immunity!
- This (unpublished) Fifth Circuit case raises the age-old question: If you can't trust the twin brother to whom you fraudulently deeded your farm in an effort to evade creditors, then who can you trust?
- In a refreshingly commonsense qualified-immunity opinion, the Fifth Circuit holds that, even if someone is suspected of serious crimes and is squirming around, if he's already handcuffed and detained in a police car then it's clearly unconstitutional to discharge high-velocity pepper spray at his face point-blank thereby blinding him in one eye.
- Ohio requires social-media companies to obtain parental consent for users under 16. District court preliminarily enjoins the law, concluding it likely violates the First Amendment. Sixth Circuit: Wrong. Opinion 1: Because the law satisfies strict scrutiny. Opinion 2: Because the plaintiff didn't compile the right record for a facial challenge. Dissent: The law is unconstitutional.
- After Michigan refused to produce unredacted copies of its statewide qualified voter list to DOJ, the feds sue to compel production. Sixth Circuit: Nope. These are surely "records," but they're not records that "came into … possession" of Michigan, because Michigan made them. Dissent: The holding is "inconsistent with our responsibility to 'make sense rather than nonsense out of the corpus juris."
- Tullahoma, Tenn. alderman who might charitably be described as colorful (e.g., she posed "in front of a Confederate flag with a sign that read, '[w]e go together like cocaine and waffles'") moves out of town. Two citizens pursue a quo warranto action asserting she's no longer eligible for office, and court says she did "just enough" to barely show she intended to reestablish residency. She sues those constituents (and others) claiming First Amendment retaliation. Sixth Circuit: "Surely those citizens have free-speech rights of their own, including the right to challenge on reasonable grounds whether an officeholder meets the requirements of office. … Who, it is fair to ask, is retaliating against whom in this situation?"
- It takes a lot for a federal court to intervene to stop a state from prosecuting you in state court. So a tip of the hat is due to the Florida Attorney General, who managed to persuade a district court in Illinois that his enforcement action against the American Academy of Pediatrics was such a bad-faith effort to retaliate for the organization's advocacy about gender-affirming care as to warrant a preliminary injunction. Seventh Circuit (2-1): And given the district court's factual findings and all the improvident things the attorney general said on X and various podcasts, we won't stay the PI pending appeal. (Also—and your correspondents are beating a badly putrefied horse at this point—can we all stop calling attorneys general "General" already? Or at least can we be consistent? And start doing the same for the postmaster general? And the comptroller general? And use the rank of "Public" for our local notaries?)
- In response to FOIA request for files of three immigration detainees, ICE proceeds to spend several years slow-walking and screwing up and then providing inaccurate info to the district court in the ensuing FOIA lawsuit. District judge: I've had it with you clowns. Turn over everything. No redactions allowed. Seventh Circuit: Some of the stuff that was redacted would seem to implicate the privacy rights and interests, not of ICE, but of private citizens and other law-enforcement agencies. It's probably fine if the district court wants to say the agency waived privileges for its own confidential information, but it doesn't make a ton of sense to expose innocent third parties and other agencies to harm, simply because of ICE's foul-ups.
- Man repeatedly violates no-contact order, resulting in issuance of a writ that triggers a mandatory duty to take him into custody. But Bellevue, Iowa police do not, and he murders his ex. Eighth Circuit: "Courts cannot remedy every wrong."
- In the 1980s, Alaska Airlines ran an ad where a customer on a rival airline needed 50¢ to use the in-flight bathroom but lacked change. While tapping his feet he progressively offered more and more cash for 2 quarters. A similar over-escalation occurred more recently on Alaska Air's employee intranet message board. In response to the airline's support for federal anti-discrimination legislation, a flight attendant asked, "As a company do you think it's possible to regulate morality?" A co-worker posted a somewhat longer objection. The posts quickly lead to investigation and discharge, with lots of soon-to-be-discoverable texts between company higher-ups demeaning the women. Ninth Circuit: Which makes for a question of fact in their Title VII lawsuit against Alaska Air and the union.
- The Biden Administration proclaimed the expansion of two national monuments in Utah. The state and a number of state officials sue. Feds: Sovereign immunity! Tenth Circuit: You're only acting in the sovereign's name if you aren't ultra vires. Too bad you are. Dissent: But not ultra vires enough.
- Mountain View, Colo. firefighter is deeply chagrined to learn that a new recruit has, for religious reasons, requested not to have the American flag emblazoned on his kit. The firefighter, who is also the union prez, proceeds to (it is said) act like a big jerk about it, and for that he is fired. Did it violate due process not to have a post-termination hearing? Tenth Circuit (unpublished): Who can say what process is due? Qualified immunity.
- Pittsburgh dentist has a years-long affair with his dental hygienist, culminating in murdering his wife on safari in Zambia while staging it to look like suicide. (He can't watch the multitude of documentaries, given his forever-prison sentence, but you can.) As for his paramour, she was convicted of two counts of perjury, among other things, stemming from her testimony to the grand jury investigating the dentist, and is now serving a 17-year sentence. Tenth Circuit: One of the perjury counts has to go: she couldn't and didn't speculate as to the dentist's motives for his generosity, which can't be perjury. Maybe he gave her money for fear of a costly divorce, damage to his reputation, adoration for her children, or another reason. But all the other convictions are solid. Partial dissent: I'd toss the other perjury conviction, too.
- In which the Eleventh Circuit almost entirely upholds a comprehensive permanent injunction mandating all kinds of changes within Alabama's corrections system, which has a "staggering" number of suicides.
- Eleventh Circuit: Daytona Beach, Fla.'s panhandling ordinance is unconstitutional, and we affirm the $80k damages award. But each plaintiff needed to establish standing as to each of the 18 provisions they challenged, and none of them have or say they intend to panhandle near ATMs, daycares, public schools, public bathrooms, playgrounds, etc. So those provisions aren't affected by the injunction.
Victory! This week, a federal judge in D.C. struck down a law that barred therapists licensed in other jurisdictions from doing online teletherapy sessions with clients in D.C. During the pandemic, when demand surged, district officials told IJ client Elizabeth Brokamp, who is licensed in Virginia, she could not talk online with any new clients in D.C. But the First Amendment requires that the gov't have a good reason to stop people from talking to each other, and, per the district court, D.C. sure didn't: "After a substantial time for discovery, the District cannot identify any evidence of low-quality care or unethical conduct by unlicensed professional counselors in the District. In fact, the opposite." Click here to learn more.