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

Peter and Annica Quakenbush want to use their 20-acre property in rural Brooks Township, Mich. as a green cemetery and nature preserve, but township officials banned all cemeteries to stop them. This week, however, a state trial court noted that it's "Zoning 101" in Michigan that officials can't ban legitimate land uses—and ruled from the bench that the county is violating the state constitution. A rational-basis win at the motion-to-dismiss stage? Eureka! Click here to learn more.

1. EPA economist has severe allergies. When a nearby coworker starts wearing cologne that causes reactions, economist asks to be moved from a cubicle to an office with a door. EPA refuses but says he can work from home. (Coworker also refuses to stop wearing cologne.) Economist says he doesn't want to WFH as he actually likes interacting with colleagues (just not with cologne). District court: EPA did enough. D.C. Circuit: Lots of facts here, talk to a jury. Dissent: WFH sounds pretty good to me.
2. "Although Fresh Line chickens and turkeys, according to allegations we accept as true, were raised strictly indoors, the approved product labels depict birds freely roaming outside a barn." Does a member of the Animal Legal Defense Fund have standing to sue the Department of Ag and challenge its approval of this feathered propaganda? D.C. Circuit: The member alleges the label is misleading, but that means she already knows it's misleading. So she won't be misled. (And who cares what anyone else thinks.) So she doesn't have an injury. Case dismissed.
3. A century ago, when zoning laws were shiny and new, they were a favorite tool for targeting racial minorities. City of Cromwell, Conn.: As a nation, we've evolved since then. What we like to use our zoning laws for now is targeting people with mental-health disabilities. Cool? Second Circuit: Decidedly uncool―and unlawful under the Fair Housing Act. But the mismatch between the jury's award of $181k in compensatory damages and its award of $5 mil in punitive damages was so large as to violate the Due Process Clause's limit on excessive punitive damages. The punitive damages are reduced to $2 mil.
4. Driver pulls over to fix his malfunctioning GPS; a Waterbury, Conn. police officer knocks on the window, and driver hands over his driver's license and gun permit and tells officer there's a legal pistol in the driver's side door. Yikes! Officer violently drags him out of the car, handcuffs him, detains him in squad car for half an hour, and searches the driver's car and trunk. Second Circuit: Having a lawful gun doesn't give police carte blanche to arrest you for over half an hour and ransack your car. No qualified immunity
5. One man is murdered and another grievously wounded in Lebanon, Penn. in drug-money dispute. Three people were seen leaving the scene of the crime; one pleads guilty to a 20-count criminal information, naming one of the others seen as a co-conspirator. At the latter man's trial, the court reads aloud to the jury the entirety of the former man's criminal information—without having him testify—and he's convicted, sentenced to life. Third Circuit: A clear violation of the Confrontation Clause. Habeas granted.
6. The first rule of ex post facto challenges to sex-offender registration and residency requirements is that the sex offenders lose. Fourth Circuit: Applying that hoary legal principle here, we conclude that the sex offenders lose.
7. Circuit split alert! In July, the Fourth Circuit (over a dissent) held that "geofence" warrants ordering Google to provide law enforcement with information about every accountholder who enters a particular area in a particular time period are totally cool under the Fourth Amendment. But lo! A mere month later, here comes the Fifth Circuit to tell us that these same warrants are, in fact, totally bogus under the Fourth Amendment! This problem can only be solved by SCOTUS (or by Google, which has apparently changed the way it stores data to put a stop to these warrants no matter what the courts say).
8. This Sixth Circuit opinion is an absolute banger for anyone who's a huge fan of the Social Security Administration's org chart or who gets super-excited when federal courts reaffirm that the Appointments Clause of Article II doesn't really pose any obstacle to federal agencies' doing whatever they want so long as the nominal agency head says the right magic words. The slim minority of you who fall into neither category can probably give it a miss.
9. Cleveland, Ohio woman is found in a park in 1974, fatally stabbed. Near her body is a newspaper with a bloody palm print and a bloody pillowcase from a nearby hotel, both with ties to another man. Despite no physical evidence linking the woman's husband, he's convicted, spends 46 years in prison—and is exonerated in 2021. (He died six months after his acquittal.) He sues the detectives' estates (they've since died) and the city of Cleveland. Sixth Circuit: He's too late suing the detectives' estates, but a jury should have the chance to consider whether evidence was unconstitutionally withheld. Partial concurrence/dissent: The claims against the detectives' estates should go forward, too.
10. Under federal law, anyone who receives more than $10k in cash in the course of their trade or business has to make certain disclosures to the gov't. In 2021, Congress amended the law so that "cash" now includes "digital assets," such as cryptocurrency and monkey pictures. Crypto folks sue. Sixth Circuit: And their enumerated powers, Fourth Amendment, and First Amendment claims can go forward. But their vagueness and self-incrimination claims are not yet ripe.
11. Security guard at a Cincinnati public library posts an insensitive meme to his personal Facebook page concerning the BLM protests. He takes it down less than 24 hours later, but some of his Facebook friends who work with him at the library complain. He's fired from his job. He sues for First Amendment retaliation: Sixth Circuit: He spoke on a matter of public concern, and nobody could think that his post would actually disrupt the library. He wins. Dissent: How are we supposed to weigh whether his interest in speaking outweighs potential disruption at work? We should defer to the library.
12. After a warning, Barron County, Wisc. officer lets canine loose into home to apprehend man wanted on several outstanding arrest warrants for violent crimes. The dog locates the man, and the K9 officer shouts that he'll call off the dog if the man shows his hands. Amid tortuous screams, the man explains he can't do that because of the dog trying to tear one of his arms apart. After about 2 minutes the dog is successfully commanded to stop. The arm is now severely disfigured. Qualified immunity? Seventh Circuit: Too many disputed facts to assess at this stage. Get thee to a jury.
13. You might think two affected firearms industry manufacturers, a gun association, and an individual are enough to make a federal case out of a new ATF rule reclassifying pistols equipped with "stabilizing braces" as "short-barreled rifles." But apparently 25 states—fully half of the Republic—needed to be plaintiffs as well. And their AGs can now ring the register (and prepare talking points for future gubernatorial runs) because their additional presence seems to have been just enough to convince the Eighth Circuit to find the rule likely is arbitrary and capricious under the APA and therefore is preliminarily enjoined. Dissent: A judge in Texas already vacated this rule so how can we enjoin it?
14. Man in Columbia County, Ark., wanted for a murder earlier that evening, is said to be driving a white SUV. Officer finds a matching SUV, blocks the vehicle into its parking space, gets out and asks the driver his name. Which—in an unusual tactic for a wanted murderer—he honestly provides. However, he then puts the SUV in reverse, slamming into the cop car, and is about to drive over the curb when the officer shoots him dead through the window. His estate sues for excessive force. Eighth Circuit: Dude, he just murdered someone. Qualified immunity. Dissent: The facts of the encounter are genuinely disputed.
15. Iowa passes law requiring school libraries to remove any books that are not "age-appropriate" and prohibiting any "program, curriculum, test, survey, questionnaire, promotion, or instruction relating to gender identity or sexual orientation to students in kindergarten through grade six." Lawsuits are filed and the law is enjoined. Eighth Circuit: Enjoined a little too hastily. Why don't you take another look at it and hew a little closer to the Supreme Court's standards.
16. Conservation group sues Minnesota, saying the state isn't doing enough under the Endangered Species Act to protect the threatened Canadian lynx. Minnesota agrees to a consent decree that imposes regulations on trappers to prevent harms to the lynx. But wait! Three pro-trapping organizations intervene and object to the consent decree. Eighth Circuit: The decree seems fair and reasonable to us and doesn't appear to violate state administrative law.
17. Los Angeles police looking for a stolen limo encounter a limo driving by, the license plate of which doesn't match the vehicle because of DMV error. Yikes! Escalating rapidly, roughly a dozen officers (with a helicopter assist) conduct a "high-risk" stop, swarming the innocent and terrified occupants—a mom and two teens. When the limo occupants sue, alleging excessive force, the district court grants qualified immunity to the individual officers, and then a jury rules for the city on the remaining claims against the LAPD. Ninth Circuit: It was clearly established that reasonable suspicion a vehicle is stolen isn't a constitutionally sufficient basis to go all Heat on the car, so plaintiffs get another crack at their claims against the individual officers. But jury instructions were OK, so verdict for the city affirmed. Dissent: Given how the jury was instructed, it's clear they didn't think the officers acted unreasonably and would have rejected the individual-officer claims too, so any qualified-immunity error was harmless.
18. With no warrant, Los Angeles police snoop onto driveway ("curtilage") and spot an uncle handling meth in his nephew's garage. Drug convictions ensue for both. They push for post-conviction relief, claiming their lawyers messed up by not raising the obvious: Police can't snoop onto curtilage without a warrant, so the evidence should've been tossed. Ninth Circuit: Nephew's lawyer dropped the ball since the police had no right to invade his curtilage. But the uncle? It's not his house. Concurrence: Few things are more serious than a (literal) overstep of gov't power. Protection of curtilage, tracing back to English common law, is an ancient right deeply rooted in our history.
19. Children's Health Defense, a nonprofit founded by RFK Jr., wants to distribute information via social media about what it views as the dangers of vaccines. But Meta Platforms, operator of Facebook, adds warnings these views are, in fact, bunk. The nonprofit sues, alleging that Meta violated their First Amendment rights and even effectuated an unconstitutional "taking" by removing their donation button. Ninth Circuit: But Meta is not the gov't, so all of these wacky claims fail. Dissent: All of the wackiest claims fail, but there are enough allegations that Meta was acting on behalf of the gov't that the First Amendment claims should go forward.
20. Mexican national is connected to the fatal shooting of a Border Patrol agent in the United States. Seven years later, FBI agents interrogate him in a Mexican prison. After reading him his Miranda rights, they hit him with everything: good cop, bad cop; your friends told us a different story; we're not charging you with anything. He doesn't bite. Then his lawyer says, you were just in the mountains looking to rob drug dealers, and that's not a crime, so tell these guys what they want to know. So he does. Ninth Circuit: That is extremely ineffective assistance of counsel. Dissent: We should make this guy who admitted to participating in the murder of a federal agent work at least a little harder before we vacate his sentence.
21. Mexican national—who had previously been removed from the country—reenters, gets caught, and is charged with illegal reentry. His lawyer collaterally challenges his initial removal, arguing that he has major brain damage and unknowingly waived his right to counsel in the first case because when he was told the gov't would not pay for his attorney and he would have to "hire" one, he thought that precluded him from getting a pro bono attorney. Ninth Circuit: The waiver was invalid. Dissent: Oh, come on. He was expressly told about the availability of pro bono counsel.
22. Man abducts pregnant woman from her home at gunpoint, forces her to steal stacks of money from the bank where she works. The man faces kidnapping and robbery charges, along with a solicitation of murder charge based on a jailhouse informant, who said that the man asked him to kill the woman, her husband, and baby for $10k. The informant also testified that his motives were altruistic and he'd received no parole consideration—a lie. Ninth Circuit (over a dissent): And that lie results in a habeas grant.
23. And in amicus brief news, IJ—and some friends—are asking the Supreme Court to hold that a civil rights plaintiff is a "prevailing party" when they win a preliminary injunction and then the gov't capitulates, by changing the law being challenged or otherwise mooting the case before a final judgment on the merits. Last year, the Fourth Circuit—in line with every other circuit—ruled that indeed they are, which entitles them to attorneys' fees under Section 1988. And that's a holding the Court should not disturb.
24. And in en banc news, the Eleventh Circuit will reconsider its decision that the Houston County, Ga. sheriff's office is violating Title VII by offering health insurance that lacks coverage for sex changes.

New case! Indiana's state motto is "The Crossroads of America," and for years Indiana police have exploited one of the nation's biggest shipping hubs to profit from that status―plucking parcels en route from the East Coast to the West, subjecting them to K-9 sniffs, opening them, and, if they contain money, suing to forfeit the money in Indiana state courts. What violation of Indiana law supports these forfeitures? Indiana doesn't say. Since 2022, the state has sued to forfeit more than $2.5 mil in this way. Now, IJ has teamed up with a small California jewelry company (whose money was recently snatched up in Indiana) to file a class-action lawsuit and put a stop to Indiana's money grab.

New case! Friends, do you love meat but have ethical or environmental qualms about the more than 34 million cows and 8 billion chickens killed annually to satisfy America's appetite for it? Then you're the sort of consumer UPSIDE Foods wants to appeal to with cultivated chicken, which is grown from real chicken cells without the need to kill animals and has been greenlit for interstate sale by the FDA and USDA. The state of Florida, however, is not a fan: At the behest of in-state agricultural interests, it recently banned cultivated meat from the state. But Florida can't wall itself off from the interstate market just to please favored in-state interests. So this week IJ and UPSIDE joined forces to challenge this protectionist ban. Learn more here.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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

New cert petition! In 2013, a Clovis, Calif. officer disclosed to a fellow officer that his girlfriend had filed a confidential domestic violence complaint against him—knowing full well that she was trapped in a room with him at that very moment. He then brutally attacked her. And though the Ninth Circuit ruled earlier this year that it was "obvious" that disclosing the report put her in grave danger, it granted the first officer qualified immunity anyway, finding that no factually identical prior case gave the officer fair notice the disclosure was unconstitutional. The decision reinforces a circuit split and also conflicts with Supreme Court precedent that says a factually identical case is not necessary in situations where an official has time and opportunity to deliberate (as opposed to a split-second decision on the use of force). Today, IJ asked the Supreme Court to weigh in.

Is school choice racist? Did it originate with post-Brown v. Board opposition to public school integration? Shameful mistruths! IJ Senior Attorney Michael Bindas takes to the Syracuse Law Review and sets the record straight.

Over at the Advisory Opinions podcast, IJ's Anthony Sanders indicts Justice Oliver Wendell Holmes Jr., who turns out to have been a bit of a bad egg Constitution-wise.

1. The USDA goes after Amazon for allegedly aiding and abetting violations of the Plant Protection Act and the Animal Health Protection Act because importers of illegal plant and animal products had them delivered through Amazon fulfillment centers. An ALJ agrees and fines the company $1 mil. D.C. Circuit: But SCOTUS has told us that aiding-and-abetting liability requires culpability. As for USDA's argument that its strict-liability reading of the statute is entitled to Chevron deference . . .
2. Fun fact: People for the Ethical Treatment of Animals once operated a blog called "The PETA Files," a name that apparently no one on their staff ever read out loud. But that's not the limit of their online presence—they also like commenting on the Facebook and Instagram pages of the National Institutes of Health. Seeking to moderate "off-topic" comments, NIH deploys a keyword filter, concealing comments containing words like "PETA," "cruelty," and "torture." PETA sues, alleging the filter policy violates the First Amendment. D.C. Circuit: And it does. NIH can exercise some moderation, but it has to draw reasonable lines, which the filter policy does not.
3. The DFINITY Foundation is a Swiss-based nonprofit that develops technology that enables the Internet Computer blockchain and its ecosystems, which are powered by novel "chain-key cryptography," allowing smart contracts to serve web directly to end users and mass market Web3 services to run entirely on-chain, all while being governed by a protocol-integrated DAO that decides using liquid democracy. Your summarist doesn't know what any of that means, but can confirm that the Second Circuit has rejected the Foundation's defamation lawsuit against financial analysts who speculated as to why the Foundation's cryptocurrency token lost 95% of its value within two months of its release.
4. North Carolina officer attempts to stop an allegedly stolen car, eventually blocking it into a dead-end section of a parking lot. Officer leaves his car while the driver of the stolen car tries to turn around and drive away. The officer fires one shot through the windshield and more shots through the passenger window, killing the driver. His estate sues for excessive force. District court: Dismissed; the claims in plaintiff's complaint are contradicted by bodycam footage. Fourth Circuit: They're not blatantly contradicted, and that's what it takes for video to torpedo an otherwise valid complaint. Case un-dismissed.
5. West Virginia officer seeks to stop motorcyclist whose passenger isn't wearing a helmet. The motorcyclist flees! But police soon have the pair (plus the motorcyclist's girlfriend) surrounded in their house. Was it a clearly established constitutional violation for officers to (allegedly) force their way into the home? Fourth Circuit: Indeed, the warrantless entry claim goes forward. But it was not excessive force to shoot the motorcyclist dead after he jumped out a window and pulled an AR-15 on an officer. Partial dissent: The officers should also have gotten QI for shooting the unarmed girlfriend, who jumped out after him.
6. Fifth Circuit: Do these tanker-truck drivers transport property in "interstate or foreign commerce" even though they only move crude oil inside Texas? Our precedent—which we very pointedly do not say is correct—requires us to say the answer is yes. Judge Oldham, concurring: And let's have a quick word about how bonkers that precedent is.
7. Allegation: After three youths driving in New Orleans ask an officer for his help in looking for a lost chihuahua, the officer gets a funny feeling and—along with another officer—tails the youths and orders them out of the car at gunpoint. Everything being in order, they're permitted to leave. Unreasonable seizure? Excessive force? Might be, says the Fifth Circuit, reversing the lower court's judgment in favor of the officers. Sadly, however, the panel also notes that it is unable to grapple with plaintiff's argument that qualified immunity sits on a throne of lies—only the Supreme Court can do that.
8. In 2021, Galveston County, Tex. officials redraw voting maps and eliminate the sole majority-minority district, where a combination of Black and Hispanic voters had outnumbered white voters. Fifth Circuit (en banc, 12-6): We overrule our precedent that had allowed coalitions of different minorities to bring voter dilution claims under Section 2 of the Voting Rights Act.
9. A fleet of airlines challenge a proposed DOT rule regulating how they disclose fees during the booking process and seek a stay while their challenge goes forward. DOT: Surely you can't be serious? Fifth Circuit: Don't call me Shirley. And if Congress had wanted to allow rulemaking in this area they would have said something about it. Stay granted.
10. Is the Rio Grande "navigable"? The en banc Fifth Circuit splits on this subject as it applies to a 1,000 foot stretch where Texas' governor installed some tethered buoys. The majority reverses a preliminary injunction but the full trial is still upriver. And one concurring judge says that if the governor thinks there's an invasion—like there was from 19th century cattle rustlers—courts must abdicate defer. Dissents: Haven't y'all read Gibbons v. Ogden?
11. New Orleans crime lab employee warns superiors that one of their drug tests is unreliable. They respond that the lab's employees will themselves be subjected to the potentially unreliable drug tests, and the employee asks to go on leave. His supervisor then goes to his home with two other armed officers to conduct a "wellness check," and they both force their way into the home and force him into a police car to take him to police headquarters. Employee sues, saying the home search and his seizure violated the Fourth Amendment. Qualified immunity? Fifth Circuit: No immunity for the supervisor, but the Nuremberg defense works for the two other officers.
12. Consider this timeline. 2018: Brentwood, Tenn. police detective gets a search warrant for a lawyer's private Facebook records. 2020: Lawyer learns of the search through discovery in a criminal proceeding against her. 2022: Detective testifies that one of the main reasons she got the search warrant was because the lawyer criticized the police, and the lawyer brings a First Amendment retaliation suit. Is the lawsuit timely under the one-year statute of limitations? Sixth Circuit (per curiam): Under our circuit's discovery rule, the lawyer knew about the search and who did the search in 2018, and that's enough to start the clock. Claim time-barred. (Any equitable-tolling argument was forfeited.) Concurrence 1: The real problem is just that the facts show the lawyer should have known in 2018 that she was being retaliated against. Concurrence 2: Our discovery rule seems wrong, and Supreme Court precedent says what matters is just whether the elements of the cause of action have occurred, whether or not the plaintiff knew about them.
13. Ohio school district prohibits students from intentionally using another's non-preferred pronouns that rise to the level of harassment. Parents with children in schools who believe that biological sex is immutable challenge the policy under the First Amendment. Sixth Circuit: You can use their names, thus avoiding pronouns, or not speak to them at all. No injunction. Dissent: The policy is a viewpoint-based regulation that compels students to speak in a manner with which they disagree, namely that biology doesn't determine gender. It should be enjoined.
14. Teen witnesses two assailants—one who is 320 pounds and one who is bald—commit a murder in Saginaw, Mich. in 2015. At a lineup, a police sergeant presents two suspects—neither of whom are bald or weigh anywhere near 300 pounds. The teen says they are not the assailants and later, at trial, testifies to the same. But wait! The sergeant produces a report saying that on the day of the lineup the teen did indeed finger the suspects, who spend over five years incarcerated before they're cleared. Sixth Circuit: Their fabrication of evidence and malicious prosecution claims against the sergeant can go forward.
15. Hamilton County, Ohio judge is indicted on multiple felony charges, including claims that she backdated documents to prevent appeals. Her 2014 trial attracts a great deal of interest; two people attending a pretrial hearing are arrested for taking pictures in the hallway (charges later dropped). They sue. Sixth Circuit (2018): No qualified immunity. Sixth Circuit (2020): Qualified immunity for all claims other than official-capacity claims. Jury (2022): One arrestee's rights were violated, and she gets $35k in damages plus $500k in attorney's fees. Sixth Circuit (2024, unpublished): The arrest was not in retaliation for protected conduct or caused by the county's failure to train its employees, so the jury verdict is reversed and money yanked. (The judge was convicted of improperly using her position to help her brother, spent 75 days behind bars, and saw her law license suspended.)
16. Portage County, Ohio woman left near dead with severe head injuries after a hammer attack. She first has no memory of what happened, but, after police show her a photo of a man who they say did it, she eventually (months later) says she knew all along that he did it. Suppress the identification? Ohio Court of Appeals (2018, over a dissent): Nah. The cop shouldn't have done that, but her identification of the man was nonetheless reliable. Sixth Circuit (2024, over a dissent): Calling the cop's procedures "'impermissibly suggestive' is a gross understatement." Habeas granted.
17. Listen, friends: We've all had that deposition where we thought opposing counsel crossed the line from zealous representation to unreasonable and obstructive conduct. Don't curse them out afterwards. Definitely don't physically push them. And definitely, definitely don't later tell the district judge you "unintentionally" brushed against them. Seventh Circuit: Sanctions award affirmed.
18. The Seventh Circuit voted to go en banc last year because its take on the Rooker-Feldman doctrine was a mess. After careful deliberation, the en banc court holds that the Rooker-Feldman doctrine is, in fact, a mess and that SCOTUS should really do something about that. In the meantime, if you add up the votes across three dueling en banc opinions, different parts of which are joined by different judges, the court reaches at least a few holdings about how it's going to apply Rooker-Feldman going forward, but, honestly, your summarist ran out of fingers trying to count the votes and respectfully refers you to the summary in Judge Hamilton's lead opinion, which we're sure is right.
19. Lobbying gets a bad rap, but, the Eighth Circuit reminds us, petitioning the gov't for a redress of grievances is, in fact, a core component of the First Amendment. As a result, Missouri's prohibition on former state legislators and staff working as lobbyists for two years after they leave office is subject to strict scrutiny, which it comes nowhere close to passing.
20. Allegation: Over the course of three days, pretrial detainee at White County, Ark. jail repeatedly alerts officers that a spider bite has caused an infection in his arm and hand, which are oozing pus and swelled to the size of a small watermelon. They ignore him. Eighth Circuit: We've previously held that ignoring a detainee's serious medical need for two days is unconstitutional. The lower court's denial of qualified immunity to the officers is affirmed.
21. Man suffering from mental illness calls Las Vegas police for help. Though he's unarmed and nonthreatening, two officers drag him to the ground and pin him down. He dies of asphyxiation. Officers: We stopped kneeling on him after he was cuffed; in the prior case at issue, officers continued pinning down the decedent after he was cuffed. Ninth Circuit: No need for a factually identical case here; he wasn't a threat. No qualified immunity.
22. Allegations: Georgia political candidate runs for city commission on a platform of "replac[ing] Caucasian employees with African Americans," including, specifically, the white city manager. He's elected, warns the city manager he'll be replaced with a Black city manager, and encourages the other Black commissioners to vote to do just that. The fired city manager is then told he can't return to his former position as finance director because he "did not look like" them. Eleventh Circuit: "The question for us is whether those allegations permit the inference that the City Commission fired McCarthy because he is white."
23. There are two things your summarist knows to be true: Defamation lawsuits draw more attention to the alleged defamation, and nobody is ever going to start referring to Twitter as X. Relatedly, the Eleventh Circuit (per curiam) holds that former Chief Justice of the Alabama Supreme Court Roy Moore cannot sue over tweets calling him a pedophile, which were inspired by multiple news reports of women who accused Moore of groping them while they were underage.
24. Each week, the federal courts of appeals decide cases with complicated facts featuring lurid tales of murder, mayhem, and misadventure. So when the Eleventh Circuit starts its opinion with "Warning: This is going to get messy," you know what you're going to get: an extended discussion of class-certification standards under Rule 23.
25. Defendant: Google had to pull my account information in response to gov't's "geofence" warrant, and I want all the evidence suppressed. Eleventh Circuit: Maybe it did. But the only account information Google actually turned over in response to that warrant belonged to your girlfriend's daughter, so you don't have standing to object.
26. Georgia prison officers invasively strip-search a woman visiting her inmate husband for seemingly no reason, violating prison policy in the process and dissembling about the incident afterwards. Woman sues under the Fourth Amendment, and officers assert qualified immunity. Eleventh Circuit: Strip searches are "embarrassing and humiliating," the Constitution requires that prison visitors can be subjected to them only if there is reasonable suspicion and the search is not more intrusive than necessary, and most circuits had held as much when this search occurred. But our circuit doesn't allow out-of-circuit precedent to clearly establish the law (or care that prison policy was violated), so the officers get qualified immunity. Concurrence 1: We should take this case en banc because our refusal to consider an out-of-circuit consensus goes against Supreme Court authority. Concurrence 2: K. Newsom, Considerations on Qualified Immunity, 44 11th Cir. L. Rev. 211 (2024).
27. One of the great joys of civil procedure is that you can, as in this Eleventh Circuit case, recite truly bonkers allegations about secret affairs with appellate judges and quid-pro-quo arrangements to spring criminal defendants and then just say there's no need to bother with any of it because the whole thing is barred by the Rooker-Feldman doctrine anyway.
28. Wayne County, Mich. sheriff's deputies seek to forfeit woman's car based on allegation that her passenger might have had drugs in the car at some previous time (no drugs were found). Michigan Supreme Court (over a dissent): To be forfeitable under the statute, a car has to be used to transport drugs for their sale or receipt. That didn't happen, so no forfeiture. (This is an IJ case.)

New case! In 2009, officials tried to install a new sewer line on Melisa and Michael Robinson's property, a small mobile home community they own and operate in Okay, Oklahoma. But they made a hash of it! They didn't grade the pipes properly, and sewage backed up into the homes. They hit an underground power line, killing the power and blowing out tenants' refrigerators and air conditioners. Moreover, officials never bothered to obtain the necessary easement or even notify the Robinsons before they started digging. All of which, after 13 years of litigation, led to the Oklahoma Supreme Court (and a jury) declaring the whole thing to be an unconstitutional taking. The Robinsons are now owed over $200k, but—and here's where IJ comes in—the town says it does not have to pay and that court-ordered judgments are merely unenforceable IOUs. Fiddlesticks! The Fifth Amendment is made of sterner stuff, and the gov't must pay for what it takes. Click here to learn more.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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

New SCOTUS victory! Friends, it is very bad and wrong for gov't officials to arrest people in retaliation for their speech, and yesterday the Supreme Court issued a deeply important ruling on what kinds of evidence can be used to prove up a retaliatory arrest claim. The Fifth Circuit had held it wasn't enough that our client, Sylvia Gonzalez, was jailed for a "crime" that never results in arrest via irregular and inappropriate procedures after she championed a petition to oust Castle Hills, Tex.'s city manager. In vacating that ruling, SCOTUS ensured that people slimed, falsely accused, and jailed in retaliation for speaking out against the authorities can have their day in court. Click here to learn more.

New on the Bound By Oath podcast: In Kelo v. New London (2005), the Supreme Court allowed officials to seize and raze an entire neighborhood of well-maintained homes and businesses in the hopes that someone else could build fancier homes and businesses. On this episode, we ask: what, if anything, is left of the Fifth Amendment's prohibition on using eminent domain to take property from Person A merely to give it to Person B?

• In 2017, at the behest of the Chinese government, U.S. casino magnate Steve Wynn lobbied Donald Trump to extradite a Chinese businessman. Trump demurred—reportedly after learning that the businessman was a Mar-a-Lago member—and Wynn told the Chinese he couldn't help anymore. The following year, the feds told Wynn he was required to register as a foreign agent. Wynn refused, and in 2022 the feds sued to compel Wynn's registration. D.C. Circuit: Registration is only required for someone who is a foreign agent. Wynn was a foreign agent. Case dismissed.
• The Digital Performance Right in Sound Recordings Act of 1995 entitles recording artists featured on sound recordings to a 45 percent share of certain royalties generated by the recordings. When the former lead singer of the wildly popular Puerto Rican band El Gran Combo asks for his share, the record label protests that he is not the recording artist—El Gran Combo (owned by the label) is the recording artist. First Circuit: "If you think that Paul, John, George, and Ringo were 'the recording artist[s] . . . featured' on the White Album—even though that iconic record's cover mentioned none of The Beatles by name—then you will not be surprised by the analysis that follows."
• A procedural rat king in which the litigants in a False Claims Act suit back in 2010 file a bunch of summary-judgment documents under temporary seal, settle the case before the trial court rules on the summary-judgment motions, and never get around to asking to permanently seal the temporarily sealed documents. After which, in 2023, a documentarian demands access to the still-sealed records. District court: I never ruled on the summary-judgment motions, so there's no public right of access to the materials. Fourth Circuit: No way. "The public has an interest in ensuring basic fairness and deterring official misconduct not only in the outcome of certain proceedings, but also in the very proceedings themselves." Remanded, so the district court can consider whether keeping the documents under seal is justified by a compelling governmental interest.
• Cuba's Arechabala family started producing rum in the 1930s that it exported to the U.S. under the Havana Club trademark. Following the Cuban Revolution, the Castro-led gov't stole the family's assets, including the Havana Club trademark. The family's trademark expired (a trademark has to be renewed every ten years via paperwork and fees), and a Cuban-gov't-owned company registered the trademark for itself. The Cuba-owned company missed its renewal in 2006 because of a trade embargo—but the feds let the company renew anyway. Bacardi, which bought the family's interest in the trademark and has been fighting to reclaim it for 20 years, sued the feds. District court: There's no judicial review of an agency decision to renew a trademark. Fourth Circuit: Oh yes there is.
• In 2020, USA Today published a deep dive into sexual misconduct allegations in the LSU athletic department, including that the school swept rape and dating violence allegations against star football players under the rug. Seven years before, the school had hired a law firm to conduct a Title IX investigation into sexual harassment allegations against its football coach. The report was kept confidential, allegations privately settled, and the coach "cleared of any wrongdoing" while being urged to refrain from one-on-one contact with students. Following the USA Today article, an athletic director sued the school's board of supervisors (raising Title VII and IX claims) and two partners at the firm who conducted the investigation (alleging that the partners were part of a RICO scheme to suppress the complaints). Fifth Circuit (2023): No RICO. While that appeal was pending, discovery continued apace on the Title VII and IX claims, and the district court compelled the depositions of the partners and the disclosure of documents from the 2013 report under the crime-fraud exception to attorney-client privilege. Fifth Circuit (2024): There's no crime, so no crime-fraud exception.
• Like sands through the hourglass, so are the appeals of the Fifth Circuit. Last time we encountered an ongoing challenge to a new CFPB-credit-card rule a Fifth Circuit panel mandamized the district court because it lacked jurisdiction to transfer the case to the District of Columbia. It also suggested that district courts should stay their transfer orders a teeny-weeny bit to give time for an appeal. District court (after remand): I'm transferring this puppy again and I ain't staying nuthin'. Plaintiffs (later that night): Um, stay please. Fifth Circuit (after another appeal): Mandamus! Transfer was not complete because it wasn't docketed yet in D.C.
• Texas inmate: Prison guards sodomized me with a pencil, which ruptured my colon. Guards: Did not! Fifth Circuit (unpublished): He did indeed exhaust his administrative remedies before filing suit. Case un-dismissed.
• Voting rights activists challenge a Texas election law, suing, among others, the Texas AG. Separately, the Texas Court of Criminal Appeals (2021) says it violates the Texas Constitution to give the AG primary enforcement powers. District attorneys have those. Activists: Oh, OK, we'll amend our complaint and sue the DA for Harris County. Harris County DA: "Sovereign immunity!" Fifth Circuit (2024): Exactly. Even though the DA can enforce these voting rules she doesn't have to so she's not the proper party to sue, even though the state court implied you really shouldn't be suing anyone else. "This is not absurd."
• Following the Supreme Court's 2020 ruling in Bostock v. Clayton County that Title VII prohibits discrimination on the basis of sexual orientation or gender identity, the Department of Education published a new interpretation of Title IX in 2021, holding that Title IX's prohibition of sex discrimination in educational programs that receive federal funds similarly prohibits discrimination based on sexual orientation or gender identity. Twenty states sue and are granted a preliminary injunction. Sixth Circuit: Affirmed. The new interpretation should have gone through notice and comment. Dissent: The new interpretation doesn't have the force of law, so there's no standing.
• Starting in at least 2007, Oklahoma has allowed transgender people to obtain Oklahoma birth certificates with amended sex designations. In 2021, the governor issued an executive order directing the Department of Health to stop amending sex designations. Three transgender Oklahomans sue. Tenth Circuit: This is sex discrimination and thus might get heightened scrutiny, but it fails even rational-basis scrutiny. Dissent: It's not clear that all discrimination against transgender people is sex discrimination, but it doesn't really matter because, yeah, it fails rational-basis scrutiny.
• In which the Eleventh Circuit explains that you can have Fourth Amendment protection from warrantless searches of your home or you can live with your boyfriend who's on probation, but you definitely can't do both.
• Honduran citizen is nabbed by border patrol a day after crossing the Rio Grande illegally. She (or, more precisely, her Miami-based boyfriend, with whom she planned to live) gives agents the address where she plans to live. But the address contains a small but critical error: a missing "SW." So when immigration officials eventually mail out a notice setting the date and time for the woman's removal hearing she doesn't receive it. Yikes! She doesn't show up for the hearing and is ordered removed in absentia. Woman (sixteen years later): Since I never received the notice, the removal proceedings should be reopened. Eleventh Circuit: Nope. The burden was on you to provide the correct address.
• And in en banc news, the Sixth Circuit is going to reconsider its decision telling Ohio's AG to certify a proposed state constitutional amendment to eliminate qualified immunity (and other immunities) so that its sponsors can begin collecting signatures. (The AG had declined to certify it six times, finding various reasons why the summary of the amendment wasn't "fair and truthful.")

New case! Last year, Arkansas legislators created the Education Freedom Accounts program, which provides up to $6.8k per student to cover certain education expenses, including private school tuition, tutoring, and therapy. Though eventually all students will be eligible for the program, currently it is only available to students with a disability, current or former foster care children, the children of military members and first responders, and more. Sadly, however, the program is the target of a lawsuit, and IJ is intervening on behalf of families to defend it. "Before I received my Education Freedom Account, my son was being bullied and struggling academically, but now I have the resources to put him into a school where he's thriving," said Erika Lara. "Taking away this program would put my son's academic and social progress in jeopardy." Click here to learn more.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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 Bound By Oath podcast: the story of Berman v. Parker. In which the Supreme Court, in 1954, abandoned previous constitutional limits on the gov't's power to take property from Person A to give it to Person B, greenlighting the era of urban renewal. Which was a bad era.

New at Fox News: Ever since Berman, cities have been able to take "blighted" neighborhoods, bulldoze them, and give them to private developers. But Brentwood, Mo. officials are threatening to take property that is not remotely blighted. Does "blighted" mean blighted, or does it instead mean "coveted by the gov't"?

1. Green card holders from Jamaica and the Dominican Republic are convicted of crimes in 2000 and 2012, respectively. In 2019 and 2020, ICE arrests them both and they are held for months without bond while removal proceedings move forward. Both sue, alleging that their detention violates due process. Second Circuit: Correct. We won't draw a bright line on when it has to happen, but at some point, the gov't has to give noncitizen detainees a bond hearing.
2. Diddy (f/k/a Puff Daddy and P. Diddy) has, uh, seen a lot of legal action lately. He's succeeded in at least one, where the Third Circuit (unpublished) rejected a pro se case seeking $45 mil in damages and contending that Diddy's "newfound status as a sexual predator" has made him a public nuisance (by way of billboards featuring him), led to tortious interference (by enabling him to conduct business in places of public accommodation), and created products liability (by allowing him to represent various companies at department stores).
3. Army officer driving through Windsor, Va., is pulled over because his new vehicle's temporary tag was obscured in a tinted rear window. Somehow, this encounter quickly escalates into two officers yelling at him with guns drawn, repeatedly pepper-spraying him, and dragging him from his car. He sues for violations of the Fourth Amendment. Fourth Circuit: The officers mostly get qualified immunity, except for one claim because one of the officers clearly went too far with death threats. Dissent: Those threats were "unprofessional," to be sure, but they didn't prolong the stop so he should be immune for that, too.
4. Back in the old days, Louis XIV would say "L'État, c'est moi." Apparently, they also say that around the South Carolina Department of Parks, Recreation and Tourism. After South Carolina's attorney general had the "State of South Carolina" join an ongoing antitrust suit against Google, Google sought discovery from the Parks & Rec department. But someone there probably not named Ron Swanson said the department had sovereign immunity. Google: Uh, the State waived sovereign immunity when it intervened in the case. Parks & Rec: That was just the attorney general, and he doesn't speak for us. Fourth Circuit: Yes, he does.
5. Texans complain to Llano County public library about children's books about "butts and farts," leading to their removal from shelves. Further complaints prompt the removal of books about sexuality, gender, and racism. Patrons of the library sue, alleging the removal of the books violates the First Amendment, and seek a preliminary injunction. Fifth Circuit: Granted; "a book may not be removed for the sole—or a substantial—reason that the decisionmaker does not wish patrons to be able to access the book's viewpoint or message." Concurrence: Agreed, except the "butt and fart" books don't have a message. Dissent: Curation decisions are gov't speech, and the disagreement between the majority and concurrence shows how unworkable this ruling is.
6. Today's edition of endless immunity-related interlocutory appeals brings us to Quitman, Tex., where a police captain was fired in 2017 for submitting an affidavit in his friend's criminal case supporting a change of venue because of a corrupt relationship among the sheriff, district attorney, and presiding judge. 2019: Fired captain sues for First Amendment retaliation. Fifth Circuit (2022, on motion to dismiss): No qualified immunity. Fifth Circuit (2024, on motion for summary judgment): Still no qualified immunity, please have a trial now. Also, no absolute immunity for the prosecutor for threatening to use his discretion to suppress free speech.
7. Allegation: National medical specialty certifiers coordinated with the Biden administration to censor and chill the speech of physicians who spoke critically of positions taken by Dr. Anthony Fauci, lockdowns, mask mandates, Covid vaccination, and abortion, including by threatening to strip certifications from otherwise qualified physicians who expressed these views. Fifth Circuit: And the district court was a bit too hasty in dismissing First Amendment and antitrust challenges to those alleged practices.
8. Allegation: In 2014, Beavercreek, Ohio officer is summoned to a Walmart by a (false, now-recanted) report of an active shooter; he shoots the suspect dead on sight. Yikes! The man had picked up an unpackaged, unloaded pellet gun (that looked like an AR-15) off a shelf and continued to shop. He was not threatening, and the gun was pointed at the ground when the officer shot him. Sixth Circuit: It's too soon to appeal dismissal of one claim against Walmart; back down for trial on the other claims. (Claims against the officer, chief, and city were settled in 2020.)
9. Does the Second Amendment protect the right to build a thousand-yard commercial shooting range? No, say two of the three opinions in this Sixth Circuit case, from which your summarist learned that Revolutionary War-era sharpshooters were recorded hitting targets up to 900 (but never a thousand!) yards away.
10. According to a reputable source, the Nazi Party developed a frothy disdain for the fonts of twentieth-century type-designer Lucian Bernhard—based on the (incorrect) assumption that he was Jewish. The Seventh Circuit doesn't like Herr Bernhard's fonts either (or Bernhard Modern, at least), though for less Nazi-y reasons: The font simply strains the judicial eyeballs. Quaere whether the court would be better served by simply amending its circuit rules to formally classify permitted or disfavored fonts. Though have a care, CA7: Don't follow in the footsteps of the Northern District of Georgia, whose local rules voice a strident preference for the tropically nonexistent "Book Antigua." (Shout-out to IJ's in-house proofer for catching that one.) And while we're on the subject, allow us to propose a friendly amendment to the circuit's Requirements and Suggestions for Typography in Briefs and Other Papers: Word on the street is that the font of choice for the U.S. Solicitor General's Office is not Century, but a variant of Century Expanded.
11. In Illinois, a state where cannabis is legal, does the smell of unburnt cannabis alone justify a warrantless automobile search? The Seventh Circuit says yes because the smell might indicate an unlawful use, i.e., transporting cannabis in a non-odor-proof container, a misdemeanor under Illinois law. (In an amicus brief, IJ urged the court to hold that cannabis smell alone cannot justify a search given other innocent, plausible explanations for the smell.)
12. Pre-trial detainees who were held in St. Louis's notorious (and now closed) Medium Security Institution file class action claiming they were detained in conditions that "equaled or exceeded 88 degrees." They move for class status. District court: Ouch! Sounds bad, classes certified. Eighth Circuit: You gotta say more than the class is everyone who suffered "putrid physical conditions." The city loses on a bunch of other procedural issues, though, because we're not gonna do its "work for it by developing the argument[s] and putting flesh on [their] bones." Case remanded.
13. Mom sees ad for a toy on Facebook and orders it for her toddler. But it's a sad day at their house when a different toy arrives. She tries to get a refund but it turns out it's a scam and the vendor is in China. She and another scammee sue Facebook under a number of claims. Facebook: Section 230! Ninth Circuit: 230 does not apply to the contract claims as Facebook's promise to moderate scammy ads is separate from its status as a publisher. But for the tort stuff the claims rely on a duty to moderate third-party speech, which is what 230 is all about. Concurrence: This 230 stuff is getting out of hand.
14. Less sophisticated commentators may focus on the substance of the Ninth Circuit's (2-1) holding that it likely violates the Sixth Amendment for Oregon to let indigent pre-trial detainees languish in jail, awaiting trials that can't be held until a defense lawyer is appointed, which may not happen for months. But we know what our readership demands—Younger abstention. And you will positively lose your monocles over the Younger analysis here, which holds that even if Younger's elements are met, "extraordinary circumstances" counsel against abstention.
15. Prosecutor in plea negotiations: We agree to recommend a sentence at the bottom of the guideline range. Prosecutor to district court: We recommend a sentence at the bottom of the guideline range for this top-of-the-food-chain drug dealer who is worse than a murderer. District court: Top of the guideline range it is. Ninth Circuit (en banc): The gov't breached the agreement, but it wasn't an obvious breach, so we affirm.
16. Dissenting judge: I'm trying to explain why the majority of this Eleventh Circuit panel is wrong to conclude that this plaintiff has standing to challenge a venture capital contest that is only open to Black women. Can you think of a sports analogy that will really resonate with the American legal community, particularly in Alabama, Georgia, and Florida? Clerk: What about football? Dissenting judge: By crumpets! Footie is perfect!
17. Miami-Dade officer: I'm entitled to qualified immunity because no published federal appellate opinion warned me it would be unconstitutional to shoot a barking dog, twice, after my colleague had already tasered it into submission. Eleventh Circuit: Some things in life, my guy, we expect you to just know. Case undismissed!
18. Man gets in a shootout with Atlanta-area officers. After he collapses, they detonate a flashbang to see if he reacts; he doesn't, but the officers allegedly continue to shoot him anyway. An autopsy finds 43 bullets and bullet fragments in his body. Excessive force? Eleventh Circuit: Well, the Supreme Court has recognized excessive-force claims against federal officers. But these officers were part of a joint state-federal task force that included U.S. Marshals, and SCOTUS has never said anything about that. Fortunately, there are a few federal agencies his mom (the plaintiff) could have asked to look into this, so it's not like there aren't any remedies.
19. In 2021, FBI agents lied to a judge, got permission to raid safe-deposit boxes owned by people suspected of no crime, and then sent hundreds of forfeiture notices never saying what the box owners did wrong. Then they lost the contents of many of the boxes, including retirees' entire life savings. But don't take our word for it. Head over to The Los Angeles Times and see the FBI agents admit as much under oath. And then click here to learn more.

And speaking of shady, did Pasadena, Tex.'s counsel lie to a judge? Last year, the city reneged on a settlement agreement to allow our client to open his auto-repair shop and resolve his challenge to the city's irrational parking requirements. And in April, the city's lawyer told a judge that the city council had approved his legal strategy (of pursuing an interlocutory review to further delay resolution of the case). But now The Texan reports that city council members say they approved no such thing. Wild. Click here to learn more about the case.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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 Short Circuit podcast: How to make a mandamus claim against the Capitol Police. Plus — parental advisory! — some spicy language in the Seventh Circuit, the first reported judicial opinion in America to drop the f-bomb, and a shoutout to Adeline, Countess of Cardigan.

• Postal union member wants to run for leadership and place ads in the union magazine, but the union refuses, saying campaign ads may only appear in a special election issue. Union member sues, alleging that federal law requires the union to publish his ads, which the union claims would violate the First Amendment. D.C. Circuit: No First Amendment problem here; editorial control is for news media, not unions. Dissent: The law requires the union to "distribute" the message, not publish it in their magazine.
• Perhaps not the most high-profile criminal case pertaining to former President Donald Trump this week, but the D.C. Circuit affirmed a 10-year sentence for a former police officer who assaulted Capitol police on Jan. 6 (the unusually lengthy sentence reflecting both the trial penalty and his wearing of body armor during the assault).
• Sometimes a court will go out of its way to commend the lawyers on both sides for the quality of their advocacy, but in this case it really feels like the D.C. Circuit wanted to emphasize the ways both sides' arguments were deficient.
• This case raises a question familiar to the personal-injury bar: Did you jump onto my car or did I hit you? But because the car was a Buffalo, N.Y. police cruiser and the collision resulted in the allegedly unlawful seizures of the struck pedestrian and his son, we also get qualified-immunity conundrums. Second Circuit (unpublished): All the key facts are disputed, so we don't have jurisdiction to decide before trial whether the officers get immunity.
• This case has been up to the Supreme Court, back down to the district court, and is now back at the court of appeals after the district court granted summary judgment to a police-officer defendant on a malicious prosecution claim. Second Circuit (unpublished): And back to the district court it shall go because it was error to conclude that someone can be lawfully arrested just for asserting his Fourth Amendment rights against a warrantless search of his home. (Also, qualified immunity was forfeited by not asserting it in the district court.)
• Baby Ethan was healthy for his first 30 months of life. But then he rapidly regressed, exhibiting seizures and mitochondrial dysfunction, which several doctors diagnosed as a result of heavy-metal poisoning. Several years after his diagnosis, a House committee released a report showing that certain baby foods, including the brand that Ethan almost exclusively consumed (Earth's Best Organic), contained elevated levels of toxic heavy metals. Ethan's parents sued the manufacturer and Whole Foods in state court, but the manufacturer removed the case to federal court on diversity grounds. Fifth Circuit: Shouldn'ta done that. Their claim against Whole Foods—that its representations of selling high-quality products without harmful ingredients were incorrect—is plausible, making the grocer a proper defendant and defeating diversity. Back to Texas state court.
• In the years leading up to WWII, Jewish art collector Max Emden was forced to sell three Bernardo Bellotto paintings, including a replica Bellotto himself painted of The Marketplace at Pirna. The painting was destined for the Führermuseum, along with another replica of The Marketplace at Pirna, this one painted by an unknown artist rather than Bellotto and owned by an art dealer also fleeing the Nazis. The Monuments Men recovered both, restituting the Bellotto to the owner of the non-Bellotto by way of a Dutch governmental foundation that mistakenly requested the Bellotto rather than the replica. The Bellotto is now displayed at the Museum of Fine Arts, Houston, which insists it has no obligation to return the painting, despite Emden's heirs' efforts to recover the painting. Fifth Circuit: Alas, any evaluation of the case would require us to question an act of the Dutch government, which we cannot do under the act-of-state doctrine.
• Louisiana parishes sue oil companies and officers on various state law claims. Officers: Hey, we can take these cases to federal court because of some contracts from World War II. Fifth Circuit (2021): Hmmm, no on most claims, but maybe on some? Fifth Circuit (2022): OK, now it's a no on everything. Some similar officers whose cases had been stayed then appeal. Officers: This time it's different. Fifth Circuit (2024): Yeah, still no. Dissent: This is the Greatest Generation we're talking about.
• Ohioans want to put an initiative on the ballot to amend the state's constitution to eliminate qualified immunity, prosecutorial immunity, sovereign immunity, and every other kind of immunity. But the Ohio AG has refused to certify the proposed amendment six times, finding various reasons why the summary of the amendment isn't "fair and truthful." Fed up, the Ohioans sue. Sixth Circuit (over a dissent): And their motion for preliminary injunction is granted. The AG must certify the initiative so that its sponsors can begin collecting signatures.
• When a newly built bridge in Lawrence County, Ark. flooded local farms, the Eighth Circuit rules, the trial court was right to let the jury decide the case based on the rental value of the land rather than the cash value of specific destroyed crops, but it maybe should take a second look at whether the farmers can get an injunction to knock the bridge down as well.
• In 1981 in an unemployment compensation case, the Supreme Court said that when considering accommodations for people of faith, religious beliefs do not need to be "acceptable, logical, consistent, or comprehensible to others." This was useful precedent for the Eighth Circuit in un-dismissing a suit by former employees of Minnesota's Mayo Clinic who claim they were fired after refusing to either take a COVID shot or submit to weekly COVID tests.
• Letting the jury see a criminal defendant's shackles (the Supreme Court has said) is inherently prejudicial. But what about this defendant's ankle monitor, which, though unseen, emitted some inopportune beeping in the presence of the jury? Ninth Circuit: That's different. It's not inherently prejudicial. And even assuming any of the jurors grokked that the beeping was from an ankle monitor, this defendant hasn't shown that she was actually prejudiced. Concurrence: A perceptible ankle monitor strikes me as kind of shackle-y, so I'd be open to saying it's inherently prejudicial if it's actually perceptible to the jury. But there's no evidence that any juror had any idea the defendant was wearing one here.
• Guatemalan-Nicaraguan citizen who has been removed from the United States six times challenges his conviction for illegal reentry, arguing that the criminal prohibition on illegal reentry was enacted out of discriminatory animus and has a disproportionate effect on Latinos. Tenth Circuit: We join four other circuits in rejecting that argument.
• Does "landscaping" include installing an in-ground trampoline? Not in this case, says the Eleventh Circuit, because the landscaper told his insurance company that his landscaping wouldn't involve any playground equipment. Which would not be all that interesting, except Judge Newsom went and wrote the most Newsom-esque concurrence of all time, in which he talks to us (and himself) about the promise and perils of using ChatGPT to discern plain meaning.
• And in en banc news, the Ninth Circuit will not reconsider its opinion that you don't have standing to sue the gov't just because the gov't has (illegally) compiled a bunch of information about you.
• And in state court news, the Georgia Supreme Court has said that yes, seriously, civil-forfeiture complaints need to allege the essential elements of the crimes that serve as the basis for forfeiture. In a footnote to rival that of Carolene Products, the court also thanks IJ for its amicus brief. You're welcome, friend. You are most welcome.
• And in cert denial news, we are sad that the Supreme Court will not take up Pollreis v. Marzolf, leaving undisturbed an Eighth Circuit decision that ignored the usual rule that factual disputes are resolved by a jury and found that an officer did not violate the Constitution when he pointed a taser at a "calm and nonthreatening" bystander. According to the panel majority, the officer could have reasonably perceived a threat because, in response to the officer's command to "move back," the bystander moved away sideways to ensure she didn't run into a police cruiser parked behind her.

New case! Last summer, Marion, Kans. police made national news for raiding the local newspaper in retaliation for investigating the police chief and for coverage that was critical of the mayor. (The newspaper's 98-year-old co-owner died the next day of a heart attack.) They also raided the home of the vice mayor, 80-year-old Ruth Herbel, a political opponent of the mayor's. This week, Ruth and IJ filed suit against the city, the (now-former) mayor, and the (now-former) police chief over the retaliatory search and seizures. "I ran for office because I love Marion, and in my wildest dreams I never thought I would end up at my kitchen table being charged with crimes," said Ruth. "Political conflicts should be settled at the polls, not with warrants and raids." Click here to learn more.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

New on the Short Circuit podcast: Duke Professor Nita Farahany digs into her book The Battle for Your Brain and what can be done about a future where the government can read your mind.

• D.C. Circuit: We're not saying that these plaintiffs weren't on a terrorist watch list when they filed this lawsuit. We're just saying that if, hypothetically, the government's ex parte submission showed the plaintiffs weren't on a terrorist watch list when they filed this lawsuit, they wouldn't have standing. Also, the plaintiffs don't have standing.
• The nature of "property" has beguiled philosophers from Grotius to Pufendorf to Locke, but one thing we now know, thanks to two-thirds of this D.C. Circuit panel, is that it definitely includes a federal employee's status as a member of the Senior Executive Service. Pufendorf never figured that one out.
• Former presidential advisor Steve Bannon refused to comply with a subpoena from the January 6 committee, for which he was convicted of contempt of Congress. Bannon: Ah, but the statute requires "willful" disobedience. I may have disobeyed intentionally, but not willfully because my attorney told me not to comply. D.C. Circuit: We rejected this exact "advice of counsel" defense in 1961. So.
• As part of the celebration for Eid al-Adha, a major Islamic holiday that spans four days, Sing Sing Prison provided a host of events, meals, and services for inmates on the first day of the holiday. But, according to one inmate, its meal service for the third day was insufficient, and he didn't get a special religious meal, in violation of the Free Exercise Clause. Second Circuit: Factual disputes over the meal denial mean that summary judgment in favor of the prison was inappropriate.
• What happens when a Ukrainian couple with two young children separate, the mother takes the kids promising to bring them back the next day, instead travels to an undisclosed location, the war breaks out while the father is in Dubai, the mother brings the kids to New York, and now the father wants them to stay with him in Paris? According to the Second Circuit, a "rare circumstance" under the Hague Convention where a court can order the return of a child to a parent who is "temporarily in a third country."
• On the one hand, federal patent law gives limited-time monopolies to encourage invention. On the other, it encourages generic pharmaceutical manufacturers to challenge name-brand patents while antitrust law prohibits anticompetitive deals. In balancing these competing interests, the Supreme Court has held it may violate antitrust law for a name-brand pharma company to pay a "large and unjustified" settlement to generics to get them to drop patent challenges and thus delay entry into the market. But what if the name-brand isn't just giving the generics a big payout but also entering into separate commercial deals with them? Second Circuit: At least in this case, it's kosher because the consumer antitrust plaintiffs didn't allege any facts to indicate those commercial agreements weren't legitimate.
• If lots of jurors and alternates drop out during the course of a trial due to the unavoidable travails of life so that the jury only goes up to eleven, so that there's a mistrial, does that constitute double jeopardy? The Third Circuit says not always.
• Parents of Montgomery County, Md. public schoolkids don't receive notice and cannot opt out from their children's exposure to certain books. One example is Pride Puppy!, an alphabet primer featuring a family whose puppy gets lost at a pride parade, with each page focusing on a letter of the alphabet and directing its three- and four-year-old readers to look for items such as drag kings and queens and underwear. The school board also provided scripts for teachers to use in responding to student questions, including, "Our body parts do not decide our gender." The parents sue, invoking the Free Exercise Clause. Fourth Circuit: With a scant record, the parents don't (yet) have the evidence necessary to preliminarily enjoin the program. Dissent: The parents have shown that the school board has put them to the choice of compromising their beliefs or forgoing a public education for their children, so an injunction is proper now.
• Woman sues, alleging that when she was an inmate in Berrien County, Mich. jail, her roommate sexually assaulted her multiple times, and, rather than protecting her, the officers retaliated against her and placed her in solitary. Officers: Qualified immunity! Sixth Circuit: You forfeited that argument by mentioning it in summary-judgment briefing "in a perfunctory manner, devoid of applied facts or developed argumentation." But even if you hadn't forfeited it, you'd still lose.
• Kentucky mom, dad, and their 10-year-old daughter are three days into a job painting the interior of a house when police unexpectedly arrive to execute a search warrant. Mere seconds after knocking and announcing, police shatter the front window and, responding to the family's terrified screams, begin shooting through the broken windows. They haul the family out and handcuff all three before searching the empty house and discovering no criminal activity. Sixth Circuit (unpublished): And their Fourth Amendment rights were violated. Whether the police department is liable for that is a question for remand.
• Defendant: Look, sure, I was just convicted of drug trafficking, and, yes, I testified that I deposited all my legitimate income in the bank while I kept all my drug-trafficking money in cash, and, okay, you found a bunch of cash in my house near my drugs and my scale and my notebooks meticulously documenting my drug-trafficking transactions, but that doesn't prove the cash is the proceeds of drug trafficking. Sixth Circuit: Actually, you're right (as to some of the money).
• Security guard at a high-crime Des Moines, Iowa apartment complex calls police after he sees a vehicle moving about very late at night to various places where it's illegal to park, with a passenger swinging a gun around. Police arrive, vehicle tries to leave, police conduct a Terry stop, and they discover the gun. Yikes! The guy with the gun is a felon, so it's a federal crime for him to have it. District court: Permitless carry is legal in Iowa so those circumstances didn't provide reasonable suspicion for the stop and search; gun suppressed. Eighth Circuit: Seems plenty suspicious to us, gun unsuppressed.
• This Eighth Circuit opinion teaches two lessons. First, sovereign citizens' legal-mumbo-jumbo-filled parallel universe is a wild place. Second, criminal defendants have a constitutional right to "go down in flames if they wish" by representing themselves, and the mere fact that a defendant is politely pressing his "wacky" arguments before trial is not the kind of disruptive behavior that loses him his right to self-representation.
• Allegation: White man complains that a Black woman coworker at their Missouri state agency repeatedly hits on him, including with the proposition that it's "not cheating if it's not in your race." Two-ish months later he's terminated and then sues under Title VII for race and gender discrimination, plus retaliation. Eighth Circuit: You still gotta plead a motive. Dissent: For retaliation the temporal proximity is enough.
• When the en banc Ninth Circuit in March issued six opinions spanning 241 pages on whether the federal government's transfer of Oak Flat to Resolution Copper violated the rights of Apache Indians who hold the land sacred, your summarists frankly told you to read it yourself because we weren't going to. And because our word is important to us, we're not reading this amended opinion either. We write again only to note that—per page 13 of this newly released opinion—you can apparently petition for rehearing en banc from a decision en banc, which is both puzzling and, in any case, denied.
• If you call 911 to report you have taken hostages and already killed two of them, and then confront the police while holding a machete, that is probably not going to end well. Tenth Circuit: And even if police might have handled it differently, they're going to get qualified immunity for shooting you.
• Another throwback to Short Circuits past! Back in March we summarized a decision concerning Timothy Sepi, former videographer for the now-incarcerated Joe Exotic, star of Netflix's Tiger King. Last time around the Tenth Circuit threw out almost all of Mr. Sepi's copyright claims against Netflix for use of his video footage, but remanded for the trial court to take a closer look at one of the video clips. This week the Tenth Circuit vacates that opinion and requests supplemental briefing on how the Supreme Court's recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith should affect its fair-use analysis regarding the remaining video clip.
• One thing that nearly ten years of writing Short Circuit has taught us is that when you see a judicial opinion that needs a "Table of Contents," you're in for a ride—particularly if, as in this Eleventh Circuit opinion, the Table doesn't show up until page 12.
• Health insurance at one Georgia sheriff's office doesn't cover sex changes. A Title VII violation? Eleventh Circuit: Sure is! The Supreme Court just held that Title VII's ban on sex discrimination includes discrimination based on gender identity. And that includes denying coverage for a surgery that only transgender people want. Dissent: The plan excludes bariatric surgery and Viagra too. "It's not discriminatory; it's just a cheap plan."
• And in en banc news, the Second Circuit will not rehear its earlier decision that the Promoting Security and Justice for Victims of Terrorism Act of 2019 violated due process by providing that groups—such as the Palestine Liberation Organization and the Palestinian Authority—that make payments to the families of incarcerated or deceased terrorists are "deemed to have consented to personal jurisdiction" in U.S. courts. Three judges dissent from denial. Meanwhile, Judge Leval—who as a senior judge cannot vote on whether to rehear a case en banc—adopts Ninth Circuit Judge O'Scannlain's idiosyncratic practice of issuing a "statement of views" (in this case, agreeing that the case should not be reheard).
• And in amicus brief news, IJ is urging the Michigan Supreme Court to rule that the mere smell of marijuana does not give police probable cause to stop, search, and seize people when it is legal, as the drug is in Michigan.

The words "zoning" and "justice" don't often go together, but they do in IJ's new Zoning Justice Project where IJ aims to protect and promote the freedom to use property. For more than a century, abusive zoning practices have eroded property rights, disregarding individual liberty while emphasizing top-down planning. IJ has been pushing back against zoning for years, but with the housing affordability crisis raging we wanted to put all our efforts in one place. From links to our ongoing zoning cases to our latest amicus brief we filed at the Montana Supreme Court to how-to advice on challenging zoning laws you can find it all at the Zoning Justice Project.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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

New cert petition! Mason Murphy was arrested for walking on the wrong side of a rural road in central Missouri. OR WAS HE? He would like to argue that in fact he was arrested as punishment for his protected speech, and that there's pretty darn strong evidence of the officer's true motive. For one thing, no one is ever arrested for walking there. For another, the officer's bodycam caught him calling others to ask, "What can I get him on?" But the lower courts are deeply split on what evidence people can use to prove up retaliatory arrest, and SCOTUS should surely take a look.

New on the Short Circuit podcast: We grab some bricks and consider if the Anti-Riot Act might be overbroad. And then: an "amazing" qualified immunity case about a Good Samaritan's arrest.

• In a rare sua sponte en banc hearing, the Third Circuit unanimously abandons its previous practice of reviewing dismissals of shareholder derivative actions for failure to plead demand futility under an "abuse of discretion" standard. Instead, it will now review those dismissals de novo. Unfortunately for the plaintiffs, they lose under that standard, too.
• Catholic high school in North Carolina fires teacher who intends to marry his same-sex partner. When sued for sex discrimination under Title VII, the school raises several defenses, but expressly waives any argument under the "ministerial exception" to Title VII. Nevertheless, the district court considers the question and holds that the exception does not apply. Fourth Circuit (over a dissent): Actually, it does apply, the school's waiver notwithstanding.
• Baltimore County, Md. jail oversees a "work detail" program under which detainees work for various arms of the county, including the county's recycling center, where they are paid $20 per day despite regularly working nine-to-ten-hour shifts sorting recycling. Former detainee files a class action, alleging that he's owed unpaid minimum wage and overtime under the Fair Labor Standards Act. Fourth Circuit: Maybe so. The FLSA doesn't apply to work in or for the prison directly, but it might apply here. Case un-dismissed.
• "For those who worry that qualified immunity can be invoked under absurd circumstances: Buckle up." From that opening line, you can correctly predict this Fifth Circuit barnburner will not be kind to these Houston officers who arrested a Good Samaritan while letting a dangerous drunk driver go, and then submitted a wildly misleading affidavit to kick off a baseless prosecution. (Your summarist's query: Why again do such "absurd" invocations of qualified immunity get a rare and special right to interlocutory appeals, adding years to litigation?)
• Washtenaw County, Mich. man fatally overdoses on fentanyl in 2000. His family claims that he got the drugs from a worker at a University of Michigan pharmacology lab that tested the effects of controlled substances on animals, and they sue the lab worker, the university, and the professor in charge of the lab for his death. (Police investigated the lab worker; prosecutors never charged him.) Sixth Circuit: Can't sue the university or the prof running the lab on account of immunity (sovereign and qualified). Being a little lax about locking up drugs doesn't shock the conscience.
• Wisconsin man is convicted of murder in 1996 and sentenced to life imprisonment. Contrary to his instructions, his lawyer fails to file his appeal. Yikes! He spends the next two decades trying to get the state courts to let him get his appeal. In 2016, they finally give him the thumbs-up. Huzzah! But in order to appeal, he needs a transcript of the original trial. Which he tried to get in 1997 but couldn't because he lacked the money. And the court reporter's notes have since been destroyed. Yikes again! State trial court: Given the absence of a transcript, it's only fair he gets a new trial. Huzzah! State appeals courts: Au contraire, it's his fault he doesn't have a transcript since he should've ordered it back in the '90s. ::Sigh:: Yikes. Seventh Circuit: Which he tried to do. But you all said no because he was too poor! Wisconsin's behavior is a "travesty of justice." If you don't start a new trial within two months, the guy needs to be released on bail. And if you don't start it within three, he's to be released unconditionally.
• California law requires the state to disclose information from its databases of registered firearms owners to a research center at the University of California-Davis and gives the state discretion to disclose the information to other accredited research institutions. Registered firearms owners sue, alleging, among other things, violation of their right to informational privacy and the Second Amendment. Ninth Circuit: They lose. The data is not "highly sensitive" and, in any event, is subject to strict data security precautions.
• When Inglewood, Calif. police officers make to pull car over, a passenger tosses a gun out of the window; he's later convicted of being a felon in possession—he has five prior convictions. But does the fact that they were all non-violent make this latest conviction unconstitutional? Also, is he a member of "the people"? Ninth Circuit (over a dissent): The people he is. And there's no historical analog for disarming non-violent felons. Only, arguably, "British Loyalists, Catholics, Indians, and Blacks."
• A woman is murdered in Torrance, Calif. in 1979 with a handmade garrote. The investigation stalls, but detectives pick up the cold case and home in on an ex-boyfriend of the woman. Based only on circumstantial evidence—such as picture-hanging wire found at his mother's house that is similar to the wire used in the garrote—the man is tried in 2014. The court does not allow him to present exculpatory evidence of another viable suspect, an ex-boyfriend of the woman who had had dinner with her the night of her murder. He's convicted. Ninth Circuit: That evidence was powerful for the defense and most definitely should not have been excluded. Habeas granted. Dissent: The evidence shouldn't have been excluded, but it was harmless error.
• University of Colorado, Apr. 2021: All employees and students must get the COVID-19 shot, although we do have a religious exemption. Various applicants: Hey, we're religious. School: Oh no, see by "religious" we meant super-against-all-vaccines-religious. Which really is just Christian Scientists and Jehovah's Witnesses. The rest of you are just objecting on "personal" grounds. I mean, some of my best friends are Catholic, and they're fine with vaccines. Plus, some of you aren't even members of an "organized religion." Tenth Circuit: Wow, that's super unconstitutional. Dissent: Animus? What animus?
• Aurora, Colo. police investigate a call about men in a parking lot taking guns in and out of their pockets near an SUV. The SUV drives away at a normal speed, leaving one man behind. The man immediately complies with an order to raise his hands and is detained; officers learn the man's name and that he's a convicted felon. Other officers stop the SUV after it runs a red light and discover a stolen gun. Officers use the detained man's name to get a warrant for his DNA, which ties him to the stolen gun. Should the man's name have been suppressed? Tenth Circuit: Suppress! Officers violated the Fourth Amendment by detaining the man without "any hint of any kind of illegality whatsoever." Concurrence: The 911 call described suspicious activity, but the man didn't match the caller's description.
• Federal prisoner alleges guards beat him and nurses failed to provide medical care, and he sues for constitutional violations under the Bivens doctrine that allows suits against federal officials directly under the Constitution. Defendants: Bivens is dead. Tenth Circuit: As with Schrödinger's cat, we cannot say—because you don't get to skip ahead to an appeal before final judgment. Dissent: Bivens is as dead as Marley from A Christmas Carol, and we should just say so now. (Ed. note: This strikes us as an odd allusion because Marley nevertheless played a famously important role in the story. Perhaps Bivens's ghost likewise has some vitality left?)

Flawless victory! It is with great fellowship and soaring spirit that we report to you that the Tennessee Court of Appeals has ruled that the state constitution cannot abide state wildlife officials' practice of skulking around on private land in search of hunting violations without notice, consent, or judicial oversight. Indeed, according to the court, that practice bears a "marked resemblance" to the very abuses that sparked the American Revolution. Just so! Click here to read the opinion. And click here for a lovingly-crafted, documentary-style podcast on the history of the "open fields doctrine," which okayed gov't trespassing on all private land (save the immediate vicinity of the home) under the federal Constitution.

Ignominious defeat! It is with horror and shame that we report to you that the Michigan Supreme Court, in a unanimous decision, has okayed warrantless drone surveillance for the purpose of civil code enforcement. The court dodged the question of whether repeated drone snooping is a "search" under the Fourth Amendment, instead holding that, no matter the answer, the gov't can still use the drone evidence in court. "Courts ordinarily order evidence from unconstitutional searches excluded, to disincentivize officials from violating our Fourth Amendment rights," said IJ Attorney Mike Greenberg. "The court's holding creates a massive hole in that rule, removing that incentive for officials who pursue civil, rather than criminal, violations." Click here to learn more.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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

Pish-tosh and tomfoolery! This week, Tex. Attorney General Ken Paxton lost 9-0 at the U.S. Supreme Court. Curiously, he declared victory. But we double checked and can indeed confirm that he urged the Court to affirm the dismissal of IJ client Richie Devillier's Fifth Amendment takings claim and the Court instead revived it. Because Ken Paxton lost. And Texans won. Click here to learn more.

• Russian businessman gives $100k to American political operative to meet then-President Trump at a fundraiser and take a picture with him. Yikes! The operative contributes $25k to the fundraiser and pockets $75k. A jury finds him guilty of violating both the Sarbanes-Oxley Act and Federal Election Campaign Act. Operative: The gov't could only charge me under FECA, and the jury shouldn't have been told about an earlier campaign finance conviction from which I was later pardoned. D.C. Circuit: The gov't had discretion to bring charges under either or both statutes, and the earlier pardon was an "act of grace" rather than evidence of innocence. Affirmed.
• When your editors were trying to name this humble publication, they bandied about several possibilities before settling on the snappy "Short Circuit." One moniker they vetoed immediately, however, was "Weekly Circuit Court Decision Summaries," which, besides lacking verve, is obviously a "merely descriptive" mark that cannot be registered under the Lanham Act. Second Circuit: Same goes for "Medical Special Operations Conference."
• New Jersey law allows candidates in primary elections to include a six-word slogan by their name, but if the slogan contains the name of a New Jersey group, you need that group's consent. Which struck us as a really weird law when the Third Circuit (2022) upheld it against a First Amendment challenge. But suddenly it all made sense when, this week, the Third Circuit (2024) explained that it is part of an elaborate—and now enjoined—system of electoral jiggery pokery unique to New Jersey, the least corrupt state in the nation.
• West Virginia enacts the "Save Women's Sports Act" to ensure that student athletes determined to be male at birth do not play on teams or in sports designated for "females, women, or girls." A 13-year-old transgender girl who takes puberty blockers and has publicly identified as a girl since third grade challenges the policy. Fourth Circuit: The policy possibly violates Equal Protection and definitely violates Title IX. Dissent: That would surprise the drafters of the Equal Protection Clause and Title IX.
• Two Maryland state troopers respond to domestic-disturbance call where mom says 15-year-old son assaulted her. They wrestle the son to the ground, and one officer punches him several times in the head while the other tases him. Fourth Circuit: The two sides have very different accounts of what happened in the crucial moments. No qualified immunity; this should go to a jury. Dissent: Maybe the force was unreasonable, but there was no clear law about how to deal with a suspect who hasn't yet been fully subdued.
• Allegation: A Harris County, Tex. constable requires precinct employees to work for his campaign or face retaliation, ranging from transfer to termination. Is the county liable for the constable's employment decisions? Fifth Circuit: Nope. The county's only liable if the constable was a final policymaker. Sure, the plaintiffs allege that the constable had "complete control" over his precinct's employment decisions. But he's not in charge of those decisions for the whole county, so he's not a final policymaker. Dismissal affirmed.
• Members of the Lipan-Apache Native American Church have worshipped in a San Antonio, Tex. park for at least 25 years. They believe that a riverbend in the park bridges the physical and spiritual worlds and that its capacity to function as a sacred area relies on the presence of trees and nesting cormorants. But the city has a bond project for the park, which includes deterring migratory birds (including cormorants, on account of there being far too much poop) and removing some trees and planting others. It excludes people from the riverbend area. Does this unconstitutionally burden religious beliefs? District court: In some ways, yes. The church may access the area for one-hour religious services for 15–20 people on specified astronomical dates coinciding with their spiritual beliefs, but the city may continue with its tree-removal and bird-deterrence plans. Mitigating the dangers posed by poop is a compelling interest. Fifth Circuit: Sounds right. Partial dissent: The city ought to have done more to accommodate religious beliefs in its tree-removal and bird-deterrence plans.
• Bartender is fatally stabbed in apparent robbery at a Calhoun County, Mich. bar. By the time the crime lab arrived to process the scene, seven people, including bar employees, were in the area where bloodstains and the murder weapon were found. Police home in on a woman who denies committing the murder; a prosecutor refuses to issue a warrant for her due to insufficient evidence, but a new prosecutor takes office and green-lights the warrant. A crime lab analyst testifies that the woman's blood type matches blood found at the scene, though it was too small to be tested for DNA. (In fact, millions of people matched the blood type found at the scene.) She's convicted, sentenced to life without parole. Sixth Circuit (2017): Habeas granted due to insufficient evidence. She's released after serving 17 years, sues a variety of people involved, including a detective who she says fabricated evidence and maliciously prosecuted her. Detective: Qualified immunity! District court: Nay; her claims should go to trial. Sixth Circuit (2024): Indeed.
• "Strike suits" with "mootness fees" are what the Seventh Circuit calls "no better than a racket" and describes this way: "money moves from corporate treasuries to plaintiffs' lawyers; the investors get nothing, yet the payment diminishes (though only a little) the market price of each share."
• "Behind every good man there is a woman, and that woman was Martha Washington, man, and every day George would come home, she would have a big fat bowl waiting for him, man, when he come in the door, man, she was a hip, hip, hip lady, man." And, of course, George had guns. So does that mean the federal law making it a felony to be an "unlawful user of" a controlled substance and possess a firearm is unconstitutional due to "history and tradition"? Eighth Circuit: No, because in this facial challenge we have to think of how the mentally ill were treated in George Washington's time. Concurrence: This history stuff is kind of unnecessary.
• Fresno man high on meth is jumping in and out of traffic. Police restrain him and, at paramedic's direction, place pressure on the prone man while securing him to a backboard to transport him to hospital. Once they turn man on his back, they find he has no pulse, and he's pronounced dead. Ninth Circuit: Not clearly established that police can't follow paramedic's directions, or that a paramedic can violate Fourth Amendment by giving (even negligent) medical care. Qualified immunity. Partial dissent: Law was very clearly established on police asphyxiating a suspect on his stomach, and the fact that somebody else gave directions doesn't change that.
• Seattle man attends abortion rally and LGBTQ-pride event and tries to read Bible passages to attendees, who respond with physical and verbal abuse. Police arrest … the man? ::record scratch:: Seattle: And we'd do it again! Ninth Circuit: Heckler's vetoes are not just uncool, they are (substantially likely to be) a First Amendment violation. Give this guy a preliminary injunction.
• Normally, police violate the Fourth Amendment if they extend a traffic stop to ask questions unrelated to handling the matter. Ninth Circuit: But police can, for their safety, extend stops to ask about a driver's parole status—just as they can run a criminal history check during a traffic stop. Motion to suppress driver's illegal gun possession denied.
• In another Ninth Circuit parolee case, officer forces parolee to unlock his phone with his thumbprint, so that the officer can look for evidence of drug dealing—which he finds. Ninth Circuit: Parolee's motion to suppress evidence denied. Compelled thumb use did not violate 4A because parolees subject themselves to broad warrantless searches in exchange for limited freedom. Nor did it violate 5A right to not testify against oneself because thumbs can't testify.
• In a spat between competing manufacturers of skid-steer attachments, one accuses the other of falsely claiming that its attachments are made in America when some of the components come from China and Canada. Tenth Circuit: To recover under the Lanham Act, Plaintiff had to show the statements were unambiguous and literally false. But "Made in America" can mean lots of things, including assembled in America. (Ed.: And if you've read I, Pencil, you'd know that a strict interpretation of "Made in America" is impossible for even the simplest consumer goods.)
• Citizen journalist films outside Artesia, N.M. refinery from a public sidewalk and is arrested when he declines to provide ID to officers. Tenth Circuit: No qualified immunity. To arrest someone for that, you have to reasonably suspect them of some underlying crime and no reasonable officer would have thought he was disorderly, trespassing, loitering, or doing terrorism. Dissent: Could have been a trespass; an officer might have reasonably, if mistakenly, thought the sidewalk was private.
• And in en banc news, the Fifth Circuit, by a 9-8 vote, will not reconsider its decision that the 1935 SCOTUS case Humphrey's Executor is still good law. Concurrence: Although I can't quite sign on to it, the dissental means that "this cert petition writes itself."
• And in more en banc news, the Fifth Circuit will not reconsider its decision that Texas's READER Act, which requires any bookstore or other vendor selling to public school libraries to rate its materials according to their "sexually explicit" and "sexually relevant" content, violates the First Amendment. Eight judges voted in favor of rehearing, with five judges, led by Judge Ho, publishing a dissent from denial.
• And in further en banc news, the Fifth Circuit will not reconsider its one-sentence order denying a mandamus request filed by Space X, seeking to transfer its lawsuit against the NLRB back to Texas. Eight judges voted in favor of rehearing, with Judge Edith Jones, joined by five other judges, dissenting from denial (and attaching Judge Elrod's original panel dissent for good measure).
• And in additional en banc news, the Ninth Circuit will not reconsider its unpublished decision that conveying information through language and graphics is not protected as speech if the gov't calls it conduct. (This is an IJ case.)

Do you enjoy reading this humble newsletter? If so, maybe the right thing to do with your life is to apply to work for the Institute for Justice. We are currently hiring litigation attorneys with 3–6 years of experience, give or take, for our Arlington, Va. and Austin, Tex. offices. We are hiring baby lawyers for fellowships and law students for clerkships. And we are hiring nonlawyers to do things like empirical research and coalition building and paralegaling. All of these opportunities are enumerated at ij.org/careers. We might be right for you. And you might be right for us. And together, we'll be all right.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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

Last month, the Fifth Circuit granted qualified immunity to a Waxahachie, Tex. SWAT officer who directed his team to smashbangraid the wrong house. It was obviously the wrong house because it had the wrong house number, the wrong amount of wheelchair ramps leading to the front door (1), the wrong number of chain-linked fences around the perimeter (0), and various other readily identifiable indicators of wrongness. Click here for IJ's petition urging review en banc.

• Nearly two-thirds of the world's cobalt (an essential metal for the rechargeable lithium-ion batteries that power modern electronics) comes from the Democratic Republic of the Congo, some by forced labor, including that of children. Allegation: By purchasing cobalt from the global cobalt supply chain, Apple, Alphabet, Dell, Microsoft, and Tesla participated in a venture that engages in forced labor in violation of the Trafficking Victims Protection Reauthorization Act. D.C. Circuit: Purchasing a commodity in an ordinary arms-length transaction isn't "participation in a venture" within the meaning of the law.
• In 2022, Rhode Island officials banned large capacity magazines that enable more than ten rounds of ammunition to be fired before reloading. Is the ban consistent with our historical tradition of firearm regulation? The First Circuit says yes.
• Does prolonged solitary confinement implicate a liberty interest protected by the Due Process Clause of the Fourteenth Amendment? First Circuit (en banc): Sometimes! But we hold the law wasn't clearly established when this guy was held in solitary for nearly two years, so qualified immunity. Concurrence: Why spoil the mystery? Let's just say qualified immunity.
• Nonprofit sues Pfizer, alleging that its fellowship program for Black, Latino, and Native American undergraduates unlawfully excludes white and Asian American students, alleging that "Member A" and "Member B" are otherwise eligible for the fellowship. Second Circuit: Those aren't names, and if you don't name names, you don't have associational standing to sue on their behalf.
• Michael Avenatti pilfered $300k from a book contract for his then-client, Stormy Daniels, for which he was convicted of wire fraud and aggravated identity theft. Second Circuit (unpublished): The evidence against him was overwhelming, so any error is harmless. Conviction affirmed.
• New Texas law requires porn sites to verify users' age and give health warnings. District court: Enjoined! Fifth Circuit: Partly reversed. Rational basis applies and the age verification is legit. And that's true even though the Supreme Court has struck down similar regulations on internet speech. See, we're basing this on a Warren Court opinion that applied the test from another Warren Court case where one of the parties was A Book Named 'John Cleland's Memoirs of a Woman of Pleasure'. But the health warning requirement's gotta go because minors won't understand the warnings anyway. Dissent: This is like burning a house to roast a pig.
• Federal law provides that any Medicaid patient must be able to obtain medical care "from any institution … qualified to perform the service." South Carolina: We would like to disobey this by disqualifying Planned Parenthood for non-medical reasons, so could the federal courts please say the requirement can't be enforced by private patients? Fourth Circuit (2019): No. Fourth Circuit (2022): Still no. Fourth Circuit (2024, after major Supreme Court decision on private enforceability of federal statutes): We deny you thrice. Concurrence: But maybe? The Supreme Court's precedents in this area are still very confused.
• SpaceX sues the NLRB in Texas, but the Texas district court transfers the case to California, where the "most significant part of the events" giving rise to the lawsuit took place. SpaceX seeks mandamus to transfer the case back. Fifth Circuit (in a one-sentence order): Mandamus denied. Dissent (Elrod, J.): Venue is property where any substantial part of the events took place, not just the most substantial part. Transferring the case was an abuse of discretion.
• Allegation: Houston police officer trespasses on private property, screams at security guard (perhaps because he mistook the guard's legal firearm for an illegal one), and is told to leave. He does but returns and arrests the guard. A grand jury indicts, but prosecutors dismiss the case. Can the guard sue the officer for false arrest? Fifth Circuit: Qualified immunity.
• Allegation: Homeless man (with outstanding warrant for failure to pay a fine) shows up to mom's workplace to ask for money and shelter. She calls Coal Grove, Ohio police instead. The man runs and an officer tases him in the head. He falls, sustaining serious injuries that put him in a multiday coma. Sixth Circuit (over a dissent): Qualified immunity. It's "reasonable for officers to tase fleeing suspects." And while a head-tasering might be excessive, it's not clearly established.
• In Prison Litigation Reform Act cases, does the tolling provision of Wisconsin's statute of limitations toll the limitations period only for the time during which a prisoner's administrative grievance is pending or does it also extend to the days between the complained-of incident and the filing of that grievance? Seventh Circuit: A good question, which we won't answer today because these particular prison officials failed to argue the point below. Concurrence: Agreed, but while we're on the subject—the time leading up to the filing of the grievance is definitely tolled, and district courts should start holding as much.
• Plaintiff: Indiana didn't pay me interest when it held my property, which violates the Takings Clause. Indiana: We will absolutely pay interest when we do this in the future. Plaintiff: But what about me? Seventh Circuit: Sovereign immunity means never having to say you're sorry.
• South St. Paul, Minn., which used to be peppered with stockyards and meatpacking facilities, redeveloped in the 21st century. A few holdovers remain, including an animal-carcass rendering plant that stinks. Officials rezone the rendering plant's land, deem it in violation of an Odor Ordinance (using a Nasal Ranger), and slap it with $35k in fines. Plant: You only adopted the Odor Ordinance because we challenged the previous odor legislation, which is retaliation in violation of the First Amendment. Eighth Circuit: The City amended its odor strategy after recognizing its previous approach was unlikely to survive a legal challenge, which isn't retaliation.
• Sacramento authorizes permits for marijuana dispensaries but (simplifying a lot) makes them available only to current or former city residents. A violation of the dormant Commerce Clause? District court: This case doesn't really qualify for Pullman abstention. Or Burford abstention. Or Thibodaux abstention. Or Colorado River abstention. But it kinda-sorta feels abstention-y. Is "Pullfordodaux River" abstention a thing? Ninth Circuit: It is not. No abstention doctrine applies here, and the whole is not greater than the sum of its parts. The case shall proceed.
• Oregon requires a supermajority quorum in its legislature, which has encouraged a problem of legislator walk-outs. So the people passed a referendum to punish legislators with too many absences from running for re-election. Walkers-out: We have a First Amendment right to absent ourselves in protest and shouldn't be excluded from the ballot. Ninth Circuit: Nay, failing to attend is a legislative act, not personal expression protected by the First Amendment. Plus: Dueling concurrences on how the First Amendment would apply if it were personal expression.
• Newborn falls off bed; doctors say baby's ok. San Bernardino, Calif. social workers get involved anyway. They open a custody hearing without ever telling mom, who loses custody. Then, they lie to the judge at that hearing. Then, they invoke absolute & qualified immunity after mom sues. Ninth Circuit: You can't have either. Absolute immunity protects "quasi-prosecutorial decisions," not perjury and denying notice. And qualified immunity isn't for such "obvious" wrongdoing.
• Ninth Circuit (unpublished): "[T]he fact that Plaintiffs' site plans convey information through language and graphics does not ipso facto subject the Act to First Amendment scrutiny." Which is a weird thing to say, because that's totally what that ipso factos. (This is an IJ case.)
• Oak Flat is an area within the Tonto National Forest of great spiritual importance to the Western Apache Indians. It also sits on the world's third largest deposit of copper. The federal gov't transfers the land to a copper mining company, but a nonprofit representing the interests of Apache Tribe members sues under RFRA and RLUIPA to halt the transfer. The plaintiff loses, and if you have the time to untangle the 241 pages of the six opinions generated by the en banc Ninth Circuit, more power to you.
• Word to the wary: If you already are a felon and you're going to ship guns and ammo to the Commonwealth of Dominica while using a false name, wrapping the contents in aluminum foil, and telling the clerk that the box simply contains "two frying pans," don't wear a sweater with your employer's logo on it. Because the authorities are probably going to identify you, and the Eleventh Circuit finds naught in our history and tradition of firearm regulation that might call into question the federal ban on felons possessing firearms.
• Under the Stop W.O.K.E. Act, Florida bans employers from holding mandatory employee training expressing viewpoints that the state disagrees with. Florida says it hasn't regulated speech at all, just the "conduct" of holding meetings. Eleventh Circuit: "We have rejected similar conduct-not-speech claims before … . So too here. The only way to discern which mandatory trainings are prohibited is to find out whether the speaker disagrees with Florida. That is a classic—and disallowed—regulation of speech." (Ed.: Contra the Ninth Circuit, this is what speech/conduct analysis is supposed to look like.)
• And in en banc news, the Sixth Circuit will not reconsider its decision to not reconsider its decision to affirm a revocation of supervised release based on nonstatutory factors. On the plus side for the unsuccessful defendant, one more judge joined a dissent from denial than did the first time the circuit denied the defendant's en banc request.

Tom Manuel owns land in Ethel, La., that he uses for his forestry business/tree farm as well as for recreation and wildlife conservation. It is fenced and marked as private. Nevertheless, state game wardens have repeatedly entered the property without consent, a warrant, probable cause, or reasonable suspicion in search of hunting violations—and each time left without issuing any citations. Tom wants the invasions to stop, so this week he joined with IJ to vindicate his rights under the Louisiana Constitution, which secures all property against "unreasonable searches … or invasions of privacy." Click here to learn more. And also click here for a lovingly crafted, documentary-style podcast episode on why officials might wrongly think they have carte blanche to invade private land.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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 Short Circuit podcast: a special episode on artificial intelligence and the law with special guest Ed Walters of Georgetown Law.

• The D.C. Circuit reaffirms that 18 U.S.C. § 1512(c)(2) indeed covers the sort of riotous acts undertaken on January 6, an issue that will be heard by the Supreme Court in its April argument sitting. So this particular fellow's conviction is affirmed. But his three-level sentencing enhancement for "substantial interference with the administration of justice" was an error. That language covers interfering with judicial, quasi-judicial, and adjunct investigative proceedings—not Congress's certifying electoral-college votes. Remanded for resentencing.
• Cryptocurrency entrepreneur launches My Big Coin (MBC), a purported competitor to Bitcoin. Unlike Bitcoin, though, MBC is backed 100% by gold! However, signs are not all golden. For example, instead of a promised Mastercard linked to MBC, investors simply received a plastic card embossed with "preferred customer." And barrels of gold actually contain mining waste. MBC's founder is charged with a mint of federal crimes. At trial he moves for testimony from several federal gov't employees on various crypto issues. It's denied for not following the "Touhy" regulations. He's then convicted on all counts. On appeal, he argues the regulations violate the history and tradition of his Sixth Amendment right to compulsory process. First Circuit: Yeah, that's Second Amendment stuff, not Sixth.
• It's said that the wheels of justice grind slowly. If you need proof, witness this decision of the Second Circuit, involving a workplace retaliation case first filed in 2004, which will only now be headed to trial.
• New York Metropolitan Transit Authority requests a pre-motion conference with the district court to discuss its anticipated motion for summary judgment in a personal injury lawsuit brought by a former employee. At the conference, the judge deems the motion to have been made, denies it, and sets the case for trial. Two years later, and only four days before trial, the judge has a change of heart and sua sponte reconsiders and grants the motion for summary judgment without notice to the parties or an opportunity for the former employee to respond. Second Circuit: That was not appropriate.
• Can two New Jersey municipalities sue Netflix and Hulu for failing to pay franchise fees to the municipalities in violation of the New Jersey Cable Television Act of 1972? They cannot, says the Third Circuit, as the Act contains no private right of action. And the argument that such a right can be inferred is not much aided by the text of the Act, which says "sole and exclusive authority to bring actions" rests with a state agency.
• Allegation: Off-duty Beaumont, Tex. officer provokes confrontation, shoots man dead in parking lot outside bar. Police chief: The man was wielding a baseball bat! And no, we will not release any video. Multiple witnesses: He didn't have a bat; he was unthreatening. Officials: Those witnesses better quit lying; that's tampering with evidence. Yikes! It turns out the officer has a long history of excessive force, which the dept. downplayed, covered up, and hired and promoted him in spite of. Can the man's estate sue the city? Fifth Circuit (unpublished): Troubling circumstances, but no. And plaintiffs' lawyers' should have done more in discovery.
• Does the First Amendment protect the right to wield firearms in protest? After several concerned citizens call 911, Olmos Park, Tex. police are dispatched to deal with "those Second Amendment people"—men carrying scary-looking rifles in public. The men argue with the cops and refuse instructions, ultimately leading to their arrests (which they resist). They sue, asserting several claims, including under the First Amendment. Fifth Circuit: There was probable cause to believe they were disturbing the peace by displaying firearms in a manner causing alarm. Judgment for the cops.
• Allegation: Woman erects a tent on a levee in a Kenner, La. public park; when she does not immediately comply with a police order to leave, she is handcuffed and then, though unresisting, body slammed, knelt on, and otherwise manhandled. Officers also discard her property, including her birth certificate and irreplaceable personal items. District court: She provided no corroborating evidence of her injuries beyond her own statements, so she can't sue for excessive force. Fifth Circuit (unpublished): Reversed. She produced enough evidence to get to a jury on that claim.
• Narrow strip of land in Euclid, Ohio, has been used by a recycling facility and its predecessors since the '90s; the strip is fenced off and there's even a scale buried in the ground on site. Yikes! Turns out a railroad has owned the parcel all this time. Railroad: We'll lease the parcel to you. Facility: No thanks, at this point we have a right to use it. District court: "Prescriptive easements are not favored in law," but the recycling facility prevails. Sixth Circuit: Reversed. The Interstate Commerce Commission Termination Act preempts the facility's claim.
• El Salvadoran man's life hangs on whether an "order of removal" becomes "final" when it is reinstated or at the conclusion of withholding proceedings. If the former, then the Seventh Circuit has no jurisdiction to hear his appeal and he'll be deported to his home country, where MS-13 has threatened to kill him and has already killed a family member who refused to divulge his location. Seventh Circuit: We have jurisdiction, and we reverse the Board of Immigration Appeals ruling ordering his removal.
• This case features a cast of characters including a horse named Malpractice Meuser, the California Horse Racing Board, the Jockey Club of New York, the Los Alamitos Board of Stewards, and "a Kentucky lawyer specializing in equine law"—along with a fun First Amendment question of whether California can indirectly prohibit naming a racehorse to disparage said Kentucky lawyer. But the actual question on appeal is whether the decision of a state agency with no authority to decide constitutional issues can preclude subsequent federal constitutional suits. Ninth Circuit: It cannot.
• In 2022, California enacted a law declaring it to be unprofessional conduct for a physician to disseminate anything the state considers "misinformation" related to COVID-19. Two physicians sue, alleging that the law violates their freedom of speech. The district court denies a preliminary injunction, holding that doctor's advice is not speech at all, but "professional conduct"—which, as IJ gently suggested in an amicus brief to the Ninth Circuit, is searingly wrong. How will the Ninth Circuit resolve this weighty First Amendment issue? Ninth Circuit: We won't! California repealed the law effective January 1, 2024, so the case is moot.
• The Suquamish Tribe of Washington State purchases a business-losses insurance policy from non-tribal insurance company. The policy is specifically for Indian tribes. Then along comes covid and the tribal council shuts down tribal businesses. Tribe submits claims for losses. Insurance company indicates they may not pay, so tribe sues in its own tribal court. Insurance company runs to federal court and argues no jurisdiction in tribal court. Ninth Circuit: Usually civil suits between a tribe and a non-Indian can't be in tribal court but here you willingly offered a tribal-only product covering actions on tribal land. To tribal court you go!
• Can a grieving father whose minor daughter committed suicide after watching a Netflix show where the main character commits suicide sue Netflix? He cannot, says the Ninth Circuit (unpublished), as the suit was filed too late. (See here for some discussion of the First Amendment issues that might otherwise have been in play.)
• Oklahoma jail supervisor orders the transfer of two Black pretrial detainees to a floor occupied by the Aryan Brotherhood and then—over the concerns of other corrections officers—orders that the doors to all the cells be opened. The two Black detainees are attacked. The federal gov't brings criminal charges against the supervisor for this and other abuses of authority, for which he is convicted and sentenced to just under four years' imprisonment. Tenth Circuit: Sounds reasonable to us.
• In considering e-cigarette approvals, the FDA balances the chance that more adults will transition away from traditional tobacco products against the risk that more children will start vaping. Two companies sought approval to manufacture products with names like Ice Cream Dream, Cap'n Berry Crack, and Candy Man, accompanied with proposed marketing plans to reduce the risk to kids. FDA: We don't even need to read the marketing plans to say no way. Tenth Circuit: Which is fine, as the FDA had already warned manufacturers that similar marketing plans didn't work.
• And in en banc news, the Fifth Circuit will not reconsider the grant of qualified immunity to a Galveston, Tex. officer who fatally shot a fleeing teen in the back. (The teen was armed, but the officer allegedly didn't know that.) Seven judges would have reheard the case.
• And in more en banc news, the Ninth Circuit will reconsider its decision that secular fraud claims against the LDS Church—alleged to have used tithes for commercial rather than charitable purposes—are not barred by the ecclesiastical abstention doctrine.
• And in additional en banc news, the Ninth Circuit will not reconsider a grant of qualified immunity to Los Angeles officers who killed a man as he was either (1) straddling an officer and pummeling her in the head or (2) not doing that at all and the officers are lying.
• And in further en banc news, the Eleventh Circuit will reconsider the denial of qualified immunity to Homestead, Fla. officers who arrested a man who'd flipped the bird. Given the officers' petition, however, perhaps it is the man's (alleged) crotch-grabbing that will be the focus.

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The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.