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

Backup groomsmen, weak sauce, and interment camps.

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

New case! IJ client Katy Duckstein is a former public school math teacher who opened Roots Learning Academy, an innovative hybrid homeschooling program that's open three days a week and is a real boon to her community north of Pittsburgh, Pa. But earlier this year, state officials ordered her to shut down, accusing her of operating an unlicensed daycare. Phooey!

New on the Short Circuit podcast: How the Ninth Circuit is just too darn big. As told via gas stoves and gun shops.

1. If you're on law Twitter, you've probably seen the opinion in which Judge Pillard calls one of the federal gov't's arguments "weak sauce." But while everyone's been debating whether that phrase is or is not too informal, nobody seems to be talking about the D.C. Circuit's actual decision, which affirms a preliminary injunction prohibiting the IRS from sharing data on allegedly undocumented immigrants with ICE.
2. Ain't many examples of the federal gov't screaming "emergency!" and not getting what it wants. But to that short list you can add this D.C. Circuit rejection of the feds' order that a due-to-retire coal-fired power plant remain open.
3. Restaurant/bar owner alleges one of D.C.'s (in)famously hyper-local neighborhood commissions held up his liquor-license renewal with a frivolous objection in retaliation for the owner's civil disobedience and criticism of late-COVID-era masking and vaccination requirements. D.C. Circuit: Violating the COVID orders wasn't itself First Amendment-protected expression, but there are sufficient allegations of retaliation against the associated speech to state a claim. Case undismissed.
4. A firearms trade group brings a federal constitutional challenge against a N.J. public nuisance law (said to impose vague requirements on gunmakers), but the Third Circuit (2023) says it cannot proceed: The state hasn't enforced the law against the group (and says it won't). But wait! Months later, the state enforces the law against one of the group's members. Third Circuit: And it'd be quite the Catch-22 not to let this proceed now. Case undismissed!
5. New Jersey officials reject pipeline company's application to dredge a channel in Raritan Bay—it'd stir up arsenic, manganese, mercury, etc. in the sediment. Five years later, the company submits essentially the same application, with no new plan for managing the arsenic, etc. It's approved. Third Circuit: Substantial deference is due to these state officials, but even so they need to have another look.
6. 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. First, Second, Third, Sixth, Seventh, Ninth, Tenth, and Eleventh: No. And this week, the Fourth Circuit (2-1) joins the latter camp, comparing the feds' new policy to Japanese internment. (There are no immigration detention facilities in D.C., so that's all circuits accounted for.)
7. North Carolina prison officers keep woman shackled during active labor, as well as at other times before, during, and after giving birth. District court: Qualified immunity. Fourth Circuit: Vacated. No security or flight risk = an Eighth Amendment violation, as was discontinuing her opioid-withdrawal meds after she'd given birth. A jury must determine whether some of the defendants acted with deliberate indifference.
8. Allegation: Jackson, Miss. officials knew that the city's lead-contaminated drinking water was unsafe and told residents otherwise. A former mayor even scrapped planned upgrades. Can the city and its officials be sued for violating residents' right to bodily integrity? Fifth Circuit (2025): The city but not the officials. Fifth Circuit (en banc, 2026): Neither the city nor the officials. Dissent: Plaintiffs also advanced a plausible state-created-danger theory; we should have joined the ten other circuits that recognize that theory (and then granted qualified immunity because it wasn't clearly established).
9. Louisiana magistrate judge oversees a trial and eventually awards $120 mil to the plaintiff. She fails, however, to disclose that plaintiff's attorney has been a close family friend for nearly 40 years. Fifth Circuit: Decision vacated. Dissent: C'mon, the "worst" fact is that the plaintiff's lawyer was a substitute groomsman at the judge's wedding in 1987.
10. Man jailed for failure to pay child support is put in a Barren County, Ky. cell with two inmates who have, between the two of them, previously attacked cellmates 11 times. They attack him almost immediately, leaving him paralyzed and in assisted living. Sixth Circuit (2025): The county might be on the hook for keeping them in gen pop. Sixth Circuit (en banc, 2026): The county might be on the hook for keeping them in gen pop.
11. Marijuana vendor breaches contract to purchase a marijuana farm's output because the vendor could get a better price elsewhere. Jury: Duuuuude, not cool; $31.8 mil to the farm. Sixth Circuit: Sorry to narc, but even though the sales were legal under Michigan law, they were still technically a crime under federal law (even if that's rarely enforced), and federal courts can't be in the business of enforcing contracts in violation of federal statutes.
12. Non-Indian energy company drills on N.D. reservation land with federal approval and pursuant to side agreements with a family that owns the allotments. As part of the side agreements, the company promises to ban smoking near oil & gas wells. Zoinks! The family alleges the company breached, sues in tribal court. Company: But this belongs in federal court. Eighth Circuit (2023): Go back to tribal court. Three Affiliated Tribes Supreme Court: Yup, we have jurisdiction. Company: But this belongs in federal court. Eighth Circuit (2026): Go back to tribal court.
13. Two internal candidates, who are both white guys, complete application process to become the new police commish, but the mayor reopens the search, saying, "St. Louis is more diverse than white males, our police department is more diverse." (The city eventually hires Wilmington, Del.'s erstwhile chief, a white male, for the position.) Eighth Circuit: Maybe an equal protection violation. To discovery this must go. No qualified immunity.
14. Allegation: It's easy for inmates at Columbia County, Ark. jail to break out of their pod; they just wedge clothes between the door and frame. They do this for months, and eventually attack a pretrial detainee housed in a different pod, causing a serious head injury. Eighth Circuit (per curiam): Qualified immunity.
15. Two college football players score preliminary injunctions against the NCAA, arguing junior college eligibility rules are a bogus restraint of trade. Their district court W's allow them to finish out their careers in Fall 2025. NCAA appeals. Ninth Circuit: "The game clock has run out on the 2025 college football season." Not only is this case moot but you can spike the Munsingwear!
16. College baseball player, most recently seen playing for University of Nevada-Reno, challenges another NCAA rule: the limit of 4 eligible seasons within 5 years of enrollment. It's a home run! He snags a P.I. in the district court. Ninth Circuit: Joining other circuits, we conclude the rule is subject to the Sherman Act. But we're not so sure about the district court's analysis. For one thing, the "relevant market" for a college baseball player ain't gonna be the same as if he played football. Remanded for more facts.
17. Allegation: California prisoner who's in a wheelchair and needs adult diapers does not get them for months, a humiliating and intensely painful (cleaning himself exacerbates his spinal injury) experience. Ninth Circuit (over a dissent): Could be an ADA violation. To a jury this must go. (Some other claims proceed as well.)
18. Ten years after teen is murdered in Coos County, Ore., cold-case investigators finger her boyfriend—and, among other errors, do not disclose that a still-unknown male's DNA is on the victim's shoes. The boyfriend is convicted by a non-unanimous jury and spends nearly 10 years in prison before receiving a certificate of innocence. He sues many, many defendants. Ninth Circuit (unpublished): And for the most part, to a jury this must go.
19. New Oklahoma law says public-school employees may not "require or make part of a course" any of eight prohibited "concepts," such as "an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex" or "meritocracy or traits such as hard work ethic are racist or sexist or were created by members of a particular race to oppress members of another race." Teachers: This is hopelessly vague! How can we know what this means? Tenth Circuit (over a dissent): It means you can't teach those things.
20. Allegation: Miami-Dade officers corner suspect after armed robbery and dangerous high-speed chase. He does not resist as officers drag him from his truck. They beat him blind: He suffers 25 facial fractures, an eye pops out of its socket, his skull is caved in. Other inmates now call him "The Martian" on account of his deformities. Jury: It was not excessive force to beat him after he stopped resisting. Eleventh Circuit (unpublished): And qualified immunity for beating him when he was resisting. Dissent: What resisting?!
21. Allegation: Florida prisoner suffers serious head injury after being struck by flying 50 lb. chunk of concrete at St. Lucie County job site. County employee operating backhoe: That did not happen. District court: Let's find out! No qualified immunity. Eleventh Circuit (unpublished): Reversed. Qualified immunity. Special concurrence: It's a tort, not a constitutional violation.

New case! IJ client Brandi Rosemond, a licensed esthetician, wants to operate a mobile beauty salon in South Carolina, but state officials say that's illegal. Not that there's anything unsafe about it—indeed, mobile barber shops that offer some of the very same services are permitted—just cuz. "Confining Brandi's business to a building doesn't make anybody safer or better off," says IJ Attorney Jessica Bigbie. "The government has no business enforcing a law that does nothing more than prevent entrepreneurs from pursuing their dreams."

Comments

[Murcushio]

If you're on law Twitter, you've probably seen the opinion in which Judge Pillard calls one of the federal gov't's arguments "weak sauce." But while everyone's been debating whether that phrase is or is not too informal,

The traditional spelling, "weaksauce," probably would be, but making it two words, "weak sauce," lends it a certain air of dignity, akin to "weak tea" as an expression.

Think about it:

"That's weaksauce."

"That's weak tea."

"That's weak sauce."

The latter two, at least to me, look 'better' than the first one.

Can the city and its officials be sued for violating residents' right to bodily integrity? Fifth Circuit (2025): The city but not the officials. Fifth Circuit (en banc, 2026): Neither the city nor the officials.

Can someone friggin'... tell me why the Fifth Circuit keeps doing that? Because it isn't the first time. They seem to really love telling plaintiffs "go back and do it this way" and then seem somehow aggrieved when plaintiffs take them at their word and go "no, we won't allow this either."

As always, every single one of these newsletters makes me go "Christ ALIVE, qualified immunity needs to be dragged into the street and shot in the head."

[John F. Carr]

In the marijuana farm case, the usual common law disposition of cases that violate public policy is dismissal without prejudice. The courts will not enter any judgment on the merits. It's not that the law says one or the other of two highways robbers should win. Neither of them wins. The Sixth Circuit ordered judgment for the defendants.