Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Armed canvassers, extrajudicial killings, and guns on the metro.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Beyond the Brief podcast: In the 1970s, the Supreme Court upheld requirements that banks report their clients' cash transactions of $70k (adjusting for inflation) or more. Fast forward to today, and the feds are demanding disclosure of transactions of just $200. Yowza! Are there any constitutional limits on financial surveillance?
New on the Short Circuit podcast: Two Sixth Circuit First Amendment cases that go together "like cocaine and waffles." With a special appearance by Captain Justice, Guardian of the Realm and Leader of the Resistance. [link forthcoming]
- D.C. Circuit: "Heavy is the crime when a government official trades on his office for personal gain." And separately, this "expediter" who facilitated bribes from nightclub owners to a D.C. tax official, and whose sentencing-guideline recommendation more than doubled after he declined a plea deal, didn't pay a "trial penalty." (He'll serve a below-guidelines nine years and change.)
- After a brief tour through some of the D.C. Circuit's standing case law, gun owners challenging D.C.'s ban on carrying on Metro get standing by virtue of alleging they paid more money by taking alternative forms of transportation. (Your summarist is puzzled why circuit precedent seems to require pleading such ancillary costs when the plaintiffs are the people being directly regulated by a law they say is unconstitutional.)
- Now-former CEO accused of sexual misconduct sues accuser, who testified to Congress about her experiences and who had won an arbitration against him. Unfortunately for him, not only does the D.C. Circuit reject his defamation and related claims based on the common-law privilege for legislative testimony, all the statements at issue are now also in F.4th.
- At murder trial, the judge frames the jury's choice as letting a dying loved one die (acquit) or greenlighting their last-chance surgery (convict). Third Circuit (unpublished): That's unconstitutional, but what with the defendant's statement to police ("They shot at me first so I did what I had to do") and the two shots in the victim's back, a proper instruction wouldn't have changed the verdict. Denial of habeas affirmed.
- Pretrial detainee at the Aiken County, S.C. jail develops a "grapefruit sized" lump on her head and files a series of grievances ("HUGE ABSCESS," "KEEPS GETTING BIGGER," "PLEASE HELP ME") that result in not much action. Eventually, she's hospitalized with a bone infection and severe sepsis, and part of her skull is removed. Fourth Circuit: No QI.
- Responding to anonymous tip about drug dealing, North Carolina officers bring their patrol vehicles to an abrupt stop in front of suspect's parked car. He could have squeezed out if he drove carefully, but would a reasonable person feel free to do that? District court: Yes. Fourth Circuit (2-1): No.
- South Carolina public schools stop offering AP African American Studies course in response to legislation prohibiting the teaching of concepts like "an individual, by virtue of his race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously." Fourth Circuit: And some of these challengers have standing. Case undismissed!
- In 1982, during Salvadoran civil war, colonel orders the ambush and murder of four Dutch journalists and their opposition escorts. (He now lives in Virginia.) Can he be sued for money damages under the Torture Victim Protection Act? Fourth Circuit (interlocutorily): Yep. Acts of foreign gov'ts and their officers get sovereign immunity, but extrajudicial killings are not the acts of a sovereign.
- CBP agent hits woman with his vehicle as he's leaving station. Can she sue the U.S. under the Federal Tort Claims Act? District court: Nope, he was on union business. Fifth Circuit: Reversed. A reasonable jury could find that accepting snacks donated to the union for distribution among CBP agents was to CBP's benefit.
- In 2001, the Texas legislature provided that certain noncitizen residents of the state can pay in-state tuition at public universities. The feds sue the state, arguing the law is preempted, and six hours later the district court approves a consent judgment. Fifth Circuit (over a dissent): Done and dusted.
- Last week, we brought you links in service of the big circuit split about whether the feds can detain certain aliens without bond pending their removal hearing. The Fifth Circuit had said yes. Yet this week's Fifth Circuit is… softening? It's now granted habeas to three aliens on procedural due process grounds and concludes that the feds may detain unadmitted aliens without a bond hearing for ninety days but no longer. Concurrence: 90 days is better than nothing, but the hearing should be within 30 days. Dissent (of the respectful yet emphatic variety): Congress had the power to impose mandatory detention, and the relatively brief duration of this detention presents no constitutional defect.
- The Convention Against Torture provides an avenue of relief to noncitizens facing deportation who can credibly allege that they face persecution or torture upon return. As with all immigration stuff, it's procedurally complicated, with multiple hearings and levels of review happening at the same time. A federal statute consolidates all Article III review for a particular person into a single proceeding. What starts the clock for that deadline? Seventh Circuit (2024): The conclusion of the torture-relief proceedings. SCOTUS (2025): Nay, it's the order of removal even if the other proceedings are pending. A dozen noncitizens to the Seventh Circuit: We're way past that deadline. Gov't: Which means they're hosed. Seventh Circuit (2026, over a dissent): It does not.
- Indiana state trial judges are mostly all elected, except for three populous counties where two-thirds of the state's black voters live. There, the judges are appointed. Seventh Circuit: This was a tricky case but, after it was argued, the Supreme Court decided Callais and made it an easy one. No evidence of intentional racial discrimination.
- Drunk, armed man threatens to kill his ex, her nephew, himself. Elgin, Ill. officer fires non-lethal round at him on porch, breaking his forearm. He retreats into house, comes back out 10 minutes later unarmed, and shouts: "I want to know who's that [expletive] was who shot me because I want to [bust or punch] his … face in." Officers shoot him with non-lethal rounds again. Excessive force? Seventh Circuit: Qualified immunity.
- Illinois recently banned the AR-15, the nation's bestselling rife, and 30-round magazines, the AR-15's standard magazine. Consistently with the nation's history and tradition of firearm regulation? District court: No. Seventh Circuit (2-1): Yes.
- Indiana man is involuntarily committed in 2009 and released four months later. In 2022, he buys several guns, telling the dealers he's never been committed. (A glitch apparently waves some of those purchases through.) He's indicted for violating 18 U.S.C. § 922(g)(4)'s lifetime gun ban for anyone ever committed to a mental institution. District court: Unconstitutional as applied to someone no longer mentally ill. Seventh Circuit: Perhaps, but has this fellow recovered? The record doesn't say whether he's a threat now or ever was. Vacated and remanded with seven questions the district court is free to put to the parties, now that Rahimi and Hemani have clarified the analysis.
- Eighth Circuit: Prosecutors are not supposed to frame people for murder by threatening to plant drugs on an eyewitness, who'll lose custody of her kids, so she'll change her story. Claims against Kansas City, Mo. detectives for reckless investigation proceed as well.
- Following the 2020 election, three Coloradans form an unincorporated association, United States Election Integrity Plan, to investigate what they believed was large-scale election fraud. They recruit canvassers who go door to door, sometimes armed and wearing badges, asking voters who they voted for and whether they had engaged in voter fraud. Voting-rights groups sue. District court holds a three-day bench trial and rules for defendants. Tenth Circuit: Try again.
- Distressed man walks in and out of traffic, pleads for help, repeatedly pulls away from handcuffs. A Colorado Springs, Colo. paramedic tackles him and chokes him until he stops moving. Then the paramedic puts his full bodyweight down on the man's head and neck for about 45 seconds until an officer gets him cuffed. He dies. Tenth Circuit (unpublished): Qualified immunity. After the cuffs were on, the paramedic let up.
- Instead of handcuffing him, Oklahoma officers tase distressed, naked man repeatedly—53 times in nine minutes—to keep him on the ground. (They're convicted of murder.) Another officer puts the man in a chokehold. (He resigns in lieu of criminal charges.) Tenth Circuit: Though the sheriff threw away his phone after receiving notice to preserve it, thereby irretrievably destroying text messages relevant to the estate's claims, there's no reason to think it was intentional rather than negligent. Denial of spoliation sanctions affirmed.
- "We are far from the first court to see lawyers uncritically rely on artificial intelligence software and submit briefs citing nonexistent cases," says the Eleventh Circuit. But boy howdy this one's a doozy.
- Florida law prohibits university professors from any "training or instruction that espouses, promotes, advances, inculcates, or compels" students at the state's public colleges and universities to believe various "woke" concepts relating to topics like race and sex. University professors challenge the law as a violation of the First Amendment. Eleventh Circuit: Correct. A clear violation of academic freedom. Dissent: Which is a phony-baloney concept judges made up in the 1950s.
- The Department of Education will only distribute federal financial aid to students enrolled at accredited schools. This annoys the state of Florida, which has had disputes with its regional accrediting agency over gubernatorial influence at state universities. Florida sues the feds, arguing that the accreditation requirement violates the Vesting, Appointments, and Spending Clauses of the Constitution. Eleventh Circuit: Incorrect.
- Alabama man is convicted for possession of child porn in 2013. Following five years in prison, and while on supervised release, he and his wife have a son in 2021. But because of his conviction, it is illegal for him to live or reside overnight with his son. A constitutional violation? Eleventh Circuit (en banc): Yes. Parents have a fundamental right to reside with their minor children. Dissent: Tough to say that about sex offenders when we used to execute them.
- It's a "high bar" for a prisoner to allege deliberate indifference under the Eighth Amendment based on a generalized risk of violence in a prison. But that bar is met for the Eleventh Circuit by an Alabama inmate who was personally attacked twice, and who presented evidence that there's at least one assault for every ten inmates every year at the prison and that the guards both let dangerous inmates walk freely around and even return confiscated weapons to them.
- And in en banc news, the Seventh Circuit is going to have another look at whether the Florida AG's prosecution of the American Academy of Pediatrics is bad-faith retaliation for the organization's advocacy about gender-affirming care. PI dissolved, and the merits to be heard en banc in the first instance.
New case! Leavenworth, Wash. permits all sorts of home businesses so long as they don't create parking issues or otherwise mess with the peace and quiet of residential neighborhoods. Massage therapy, beauty parlors, and barbershops are all A-okay. But, for reasons that make no sense, officials won't allow IJ client Nicole Bulow, a physical therapist whose practice will have pretty much zero impact on her neighbors, to open up shop. Click here to learn more.