Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Prosecutor professional misconduct, detention without bond, and wanton statch interpretation.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case! Last fall, masked, heavily armed CBP agents raided IJ client Leo Feler's property in Chicago because they saw some construction workers out in front of his home. The agents didn't have a warrant (nor does any exception to the warrant requirement apply), jumped a locked gate, and caused a bunch of damage and left behind puddles of blood. On their way out, they tear gassed neighbors "for fun" (per an agent on bodycam). So we're suing under Bivens, the FTCA, Illinois tort law, and the Westfall Act, and one of these days the Supreme Court is going to say that there is in fact a way to hold federal officers accountable for violating the Constitution. Click here to learn more.
New on the Short Circuit podcast: Tim Sandefur tells us all about his new book Proclaiming Liberty: John Adams, Thomas Jefferson, and the Declaration of Independence.
- Remember how they started restricting the "good Sudafed" because of all the meth? But then there was this other stuff called "PE" that they claimed did the same thing? Turns out it was basically snake oil and that's been known since 2016. Class action plaintiffs: Drug companies did The RICO. District court: No. Second Circuit: Mostly affirmed. If the FDA says snake oil can be sold to fight cold symptoms, then you can't blame manufacturers for repeating those lies. But remanded on the claim that it's "maximum strength."
- Law professors and nonprofit file a slate of grievance complaints against prosecutors in New York State, then bring First Amendment lawsuit to challenge the secrecy of the disciplinary proceedings that ensue. New York: You lose under Younger abstention! And O'Shea abstention too! And your case isn't ripe! District court: Cool it dudes. The plaintiffs absolutely have the right to be here. Also, they're right on the merits. Second Circuit: Chyeah. Attorney-disciplinary proceedings have been public since 1275.
- White supremacist kills 10 and injures three, all victims black, in livestreamed Buffalo, N.Y. grocery store shooting. Were his statements beforehand that were meant to inspire copycat killings First Amendment-protected? District court: Yes. Second Circuit: No, they can be used as an aggravating factor (one of many) when the jury considers the death sentence.
- In which the Third Circuit (over a dissent) holds that "you guys can just go pray somewhere else" is not a defense to an RLUIPA claim.
- Atlantic City casino hotels provide occupancy and pricing data to AI company, which generates "suggested" prices for rooms. Casino guests allege the result is illegal price fixing, leading to significantly more expensive rates. Third Circuit: "Is it ok for a guy named Bob to collect confidential price strategy information from all the participants in a market, and then tell everybody how they should price? If it isn't ok for a guy named Bob to do it, then it probably isn't ok for an algorithm to do it either." Case un-dismissed.
- Federal courts generally aren't permitted to intervene in ongoing state court prosecutions. Third Circuit (over a dissent): And these plaintiffs are challenging Lancaster County, Penn.'s pretrial incarceration procedures, which will not interrupt and has naught to do with the merits of their criminal cases. No Younger abstention. No O'Shea abstention. Case undismissed!
- Octogenarian with medical issues and no criminal record, whose family is all here, and who was told to self-deport in 1998 (but didn't) now seeks to adjust his immigration status. BIA: Bummer, but we can't adjust solely on humanitarian grounds. Third Circuit (unpublished, over a dissent): That is not only wrong, but so wrong that we'll forgive his forfeiture of the argument.
- Allegation: Though he promises not to snitch, Texas inmate (who saw another inmate having sex with a female guard) is attacked with metal fan inside a pillowcase, resulting in, among other injuries, "severely twisted" broken fingers. He's given only Ibuprofen for his "intense, blinding" pain and isn't taken to the hospital for three weeks. District court: Dismissed with prejudice. Fifth Circuit (unpublished): No, some of these claims can go forward.
- Safe harbors aren't just technology that Odysseus was notoriously unable to secure. They're often used in the law, and one in particular gives certain Medicare providers a way to avoid liability. But, says the Sixth Circuit in remanding to an ALJ, the right standard must be applied.
- An 'umble scrivener, your correspondent lacks the writing chops to fully convey the scale of this epic saga, complete with cop allegedly digging up dirt on ex-wife's new beau; and ex-wife and beau suing cop and cop's buddy and Hamilton County, Ohio, for all sorts of things; and ex-wife then getting held in contempt in state-custody proceeding for divulging ex-husband-cop's home address in federal-court filings; and ex-wife then seeking preliminary injunction in federal court against the state-court contempt order. Sixth Circuit: Let no one ever again say that Younger abstention is dreary.
- Congress reformed the immigration removal system three decades ago, allowing some—but not all—aliens to be released on bond pending their hearing. A regulation issued soon after explaining that bond was available only for people already within the U.S., not for those arriving at the border. The feds reversed course last summer; now, no bond for any aliens. Cool? Fifth, Eighth circuits: Yup. Second, Sixth, Tenth, Eleventh, and now Seventh and Ninth circuits: No.
- Chobani's "sugar free" yogurt actually contains four grams per serving of allulose, a sugar substitute that doesn't spike blood sugar and is naturally occurring (in foods other than yogurt, like dates). Seventh Circuit: Consumers may not care, but that doesn't mean they haven't been deceived. Case undismissed!
- After a high-speed chase and deployment of stop sticks, Independence, Mo. cops arrest the driver & find a .22 pistol, along with a soda bottle "modified into a smoking apparatus." He admits he's done meth regularly for 10 years. Eighth Circuit: And with only those facts to go on he just might have a Second Amendment defense to possessing a firearm while being an unlawful user of a controlled substance. Reversed & remanded.
- Church offers employee with previous history of abusing children as a babysitter, and he abuses more kids. The church settles with the families and then sues its insurers for declining to cover the church's costs. District court: Insurers win because abusing separate children at separate times in separate places constitutes multiple occurrences. Tenth Circuit: Reversed. It's ambiguous, and Utah law says ambiguity means coverage.
- Oklahoma protestors are charged with felony incitement to riot after they approach a patrol car, yell abuse, then run after the car as it drives away (they later plead guilty to misdemeanors). Two years later, they file a lawsuit alleging that Oklahoma's riot statute is facially unconstitutional and seek a preliminary injunction. Tenth Circuit: Denied. The law is neither facially overbroad nor unconstitutionally vague.
- This Tenth Circuit opinion, dismissing a defamation lawsuit against the producers of a Netflix documentary about the "troubled teen" industry, has it all: First Amendment analysis, a rebuke for citing AI-hallucinated cases, and a citation to The Accountant 2 (Artists Equity 2025).
- Apartment maintenance worker harasses resident, culminating with entering her unlocked apartment and raping her. He was in uniform and had previously sent harassing texts from his work phone. Is his employer liable under the Fair Housing Act? Tenth Circuit: Any member of the public could have entered the unlocked apartment, so no. The fact that he had a master key doesn't help, since he didn't use it.
- Nonprofit that promotes black community empowerment applies to Pinellas County, Fla. for COVID-relief funds. Their first request is initially approved but later revoked, with the stated reason that the project wouldn't directly counteract COVID's effects; the second request is denied outright. Nonprofit: Three other groups that serve predominantly white communities got money despite their projects not directly counteracting COVID's effects. Eleventh Circuit: Those are plausible allegations of First Amendment and Equal Protection Clause violations. Undismissed.
- Two bowfishers sustain severe injuries after they crash into an unmarked, partially submerged duck blind at night in the navigable waters of the United States. But can you even sue the feds for that kind of negligence and wantonness? Eleventh Circuit: Luckily for plaintiffs, they were in waters subject to the Tennessee Valley Authority's purview, and the TVA statute waives sovereign immunity. Concurrence: Sovereign immunity is waived in the other navigable waters, too, and we should reconsider our precedent that wantonly imports the Federal Tort Claims Act's discretionary-function exception into the Suits in Admiralty Act.
- And in en banc news, the Fifth Circuit will not reconsider its decision that a Baton Rouge, La. police officer wounded by a thrown rock or some such can sue a prominent Black Lives Matter activist (who did not throw the rock or incite rock throwing). Dissental: "Citizens deciding whether to organize, publicize, attend, or lend their names to a demonstration must now weigh the risk of financial ruin for an unknown stranger's violence before exercising a First Amendment right."
At the Center for Judicial Engagement, we do not cash in on pop culture like it's a Trojan horse. So this post about judicial opinions quoting a 2,700-year-old poem has no movie spoilers. But you'll learn how litigation can be an "odyssey"; about the stars of the unconstitutional conditions doctrine, Scylla and Charybdis; that APA-compliant review can't work nights like Penelope; that legislative history's like a Siren's song; that Argos's sniff is (wrongly) held to not be a search; and how, even when Homer nods, there's a rosy-fingered dawn on the jurisprudential wine-dark sea.