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

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

CA7 friends: The Short Circuit team is heading to downtown Chicago on Sunday, August 17 for a live recording of the podcast on the eve of the Seventh Circuit Judicial Conference. Come watch Sarah Konsky of UChicago Law and Christopher Keleher of Keleher Appellate Law hash things out with us. Click here to learn more.

New on the Short Circuit podcast: What’s the difference between legit multi-level marketing and illegit pyramid schemes? Sometimes it’s hard to tell.

1. Accused 9/11 co-conspirators have been in pretrial proceedings before a military commission in Guantanamo Bay for more than two decades. Gov’t offers them a plea deal that will spare them the death penalty. The co-conspirators take the deal. Sec’y of Defense: Takesies backsies! Military Judge: No takesies backsies! D.C. Circuit (over a vehement 75-page dissent): Mandamused!
2. Citizen journalist films open garage at a Secret Service building. Two agents order him to stop and, when he refuses to identify himself, slap cuffs on him. A third agent shows up and tells the others the man is allowed to film. The man sues for violations of his First and Fourth Amendment rights. D.C. Circuit: But he brought Bivens claims so you know how that goes.
3. Maine voters, upset with the construction of an energy-transmission line through the state that would connect Canadian electricity to Massachusetts, try to stop the project. When that fails, they propose a ballot initiative to use eminent domain to seize the assets of the two Maine corporations building the line. When that fails, they propose a ballot initiative to prohibit American corporations from contributing to ballot initiatives if they have more than 5% foreign ownership. That passes and the two corporations sue. First Circuit: And the law should be preliminarily enjoined. Silencing corporations with 95% American ownership isn’t narrowly tailored to preventing foreign influence in Maine elections.
4. Albany, N.Y. police execute search warrant at apartment and allegedly conduct a body-cavity inspection of a visitor there in front of a crowd of officers and other arrestees. Second Circuit (unpublished): Officers can conduct such searches if they have reasonable suspicion, but only in a reasonable manner, and the trial court’s failure to instruct the jury on that second point was plain error. New trial.
5. If a plaintiff alleges a deliberate gov’t plot to retaliate against protected free speech and then goes all the way to the Supreme Court, which rules that the complaint states a viable First Amendment claim, what happens next? Cynics among you may think you already know. For the rest, we won’t spoil this Second Circuit opinion except to say that the right answer rhymes with schmalified schmimmunity.
6. Palestinian imam settles in New Jersey on a three-year work visa in 1996. In 1999, he applies for a green card. Over the next 20 years, an immigration judge twice grants adjustment of status. Following the final grant in April 2020, DHS did not appeal the immigration judge’s order, which became final 30 days later. Eleven months later, the Board of Immigration Appeals “self-certifies” an appeal and revokes the man’s green card. Third Circuit: Congress put the 30-day limit in there for a reason. Reversed. Dissent: Samuel Pufendorf, Raoul Berger, and Adrian Vermeule would be outraged by this decision.
7. You know who was not a fan of Dr. Benjamin Rush, a signer of the Declaration of Independence? Libertarian psychiatrist Thomas Szasz, who said Rush over-medicalized human behavior and “was oblivious to the deprivation of personal liberty inherent in medical or psychiatric incarceration.” You know who is cool with repeatedly citing Rush (and other sources) in justifying the federal law making it illegal to buy guns if you’re a pothead? The Third Circuit (over a dissent). That said, the court did remand to see exactly how much of a pothead the defendant was.
8. Over 25 years after Philly man’s 1986 conviction for murder, three of the four eyewitnesses recant. In an attempt to bypass certain procedural hurdles, and with a Philly DA who wanted to help set things right, defendant and the DA “settle” to allow his federal habeas petition. The state AG objects. And so does the Third Circuit, which says those hurdles can’t just be waived away by prosecutors. They’re prosecutors, after all. Dissent: The what now?
9. Virginia staffing agency paired nurses with available nursing work. After a DOL investigation, though, the agency is prosecuted for failing to pay a mega-amount of overtime. After a trial, it’s found liable for millions in backpay and almost as much in penalties. Agency: But they’re independent contractors. Fourth Circuit: Seems to us they’re not. Dissent: The majority cherry-picked facts out of a voluminous record and bent a multifactored and squishy test to its will.
10. West Virginia prohibits abortion in most circumstances. Is this preempted by federal law that regulates access to mifepristone, the first drug in a two-drug medication abortion regimen? Fourth Circuit (over a dissent): No. “For us to once again federalize the issue of abortion without a clear directive from Congress, right on the heels of Dobbs, would leave us one small step short of defiance.”
11. There’s sometimes a fine line between “retaliating against someone for asserting his rights under the Fair Housing Act” versus “retaliating against someone because you just think they’re kind of a jerk,” but the Fourth Circuit politely reminds us that drawing lines like this are exactly what juries are for.
12. Marilyn Mosby, former State’s Attorney of Baltimore who gained national attention following the killing of Freddie Gray, catches a break: Following her conviction for mortgage fraud, two-thirds of a Fourth Circuit panel agree that the district court improperly instructed the jury on the what it must find to establish that venue was proper in Maryland. Bonus: She gets to keep the condo in Longboat Key!
13. Following the Supreme Court’s 2023 ruling ending consideration of race in college admissions, many schools erected firewalls that prevented admissions officers from learning applicants’ race and even barred their officers from receiving aggregate racial data during the admissions process. The University of Texas at Austin took a different tack: Admissions officers can access all that stuff at any time, they’re just not allowed to consider it in making decisions. Students for Fair Admission challenges the policy. District court: But UT said it doesn’t consider race anymore, so your claims are moot. Fifth Circuit: That is not how mootness works.
14. The families of three Black innocent bystanders killed in Houston police chases (two by fleeing suspects and one by an officer) sue the city, alleging there’s a policy of racial profiling that led to those chases. Fifth Circuit: The bystanders were certainly injured, but they weren’t treated differently because of their race—and so didn’t suffer an injury that the equal-protection clause protects against.
15. Applying First Amendment intermediate scrutiny, do you think federal courts in Texas will require that the state allow strip clubs to hire 18-to-20-year-olds? Fifth Circuit: The answer is exactly what you’d expect.
16. For some of us the delight in our child’s eyes when we return home from a long day is what makes us smile. For others the phrase “HOLD IN ABEYANCE” set amongst other decretal language punches the same ticket. And thus the latter may enjoy the latest chapter in the drama between Media Matters and a corporation that for unconvincing reasons labels itself “X.” This time from the Fifth Circuit.
17. Harris County, Tex. deputies approach house with guns drawn after woman reports an intruder in her home. An unarmed man opens the front door, and an officer immediately shoots him without warning or command. (He lives.) Yikes! He’s the woman’s dad, who’d also raced over to check on things. (There was no intruder.) Fifth Circuit: If the shooting was accidental, then QI. If it was intentional, then no QI. To a jury this must go.
18. Allegation: Louisville, Ky. officers raid house in May 2020 and force innocent family, including two kids, out into the street in pajamas and underwear at gunpoint. Oops! The officers were meant to raid the house next door. Sixth Circuit: Kentucky’s one-year statute of limitations to file 1983 claims is not impermissibly short, even in cases like this where plaintiffs must also figure out the identities of the officers and the city won’t tell them without a court order.
19. During protective sweep of residence—for officer safety and not to search for evidence—Great Lakes Regional Fugitive Task Force officers (who’d already nabbed their man outside the home) lift up the corner of a mattress and find contraband. District court: Someone hiding between the box spring and mattress could have launched an unexpected attack. Seventh Circuit: Suppress the evidence. (And we note for standing purposes that a probationer who’s meant to be staying at one place but discards his ankle monitor and sleeps at another still has Fourth Amendment rights in the second place.)
20. During the George Floyd protests, an undocumented man in Chicago fires his gun at cars he says were driven by looters. He’s charged under 18 U.S.C. § 922(g)(5)(A), which bars illegal aliens from possessing firearms. District court: The law is facially valid but unconstitutional as applied—he has a job and no felony convictions. Seventh Circuit: What do Catholics, British Loyalists, Native Americans, and slaves have in common? Each has historically been disarmed en masse on the ground that they lacked allegiance to the sovereign. Same goes for illegal aliens. The law is facially constitutional; no individual assessments required. Reversed and remanded.
21. After hernia surgery, pre-trial detainee in Chicago federal jail suffers complications that go untreated for six weeks: his testicles swell to the size of a grapefruit and are so intensely painful he can’t sit or sleep. (After that, he’s transferred to prison and ultimately has additional surgery.) He sues over his undertreatment in jail. Seventh Circuit: But he brought Bivens claims, so … case undismissed! Federal officials don’t have many constitutional duties you can sue over, but the duty to respond reasonably to detainees’ serious medical needs is one of them. Dissent: Of course corrections officials have that duty. But you can only sue about it if you’re a convicted prisoner, not a pre-trial detainee.
22. Arkansas law prohibits K-12 teachers from “indoctrinating” students with ideologies that encourage them to discriminate based on protected characteristics (race, ethnicity, sex, etc.). High school students claim that the law has made their teachers self-censor and stop teaching critical race theory (which the students wish to learn) in violation of the Free Speech Clause. Eighth Circuit: The gov’t gets to control what it says, and the Free Speech Clause doesn’t give the students the right to compel the gov’t to say something it doesn’t want to.
23. Because of how federal land was allocated to finance the Transcontinental Railroad, southern Wyoming has a checkerboard of one-square-mile sections that alternate between public and private ownership. This created a substantial problem when the private landowners rescinded permission for wild horses on the federal land to move across the private land. Because wild horses are incorrigibly disrespectful of property boundaries, the Bureau of Land Management adopted a plan that would effectively stop maintaining wild horse herds in the checkerboard areas. Tenth Circuit: Which violated the Wild Free-Roaming Horses and Burros Act by failing to consider the statutory requirement to maintain a thriving ecological balance. (But neigh to the plaintiff horse enthusiasts’ NEPA claim.)
24. After the feds investigate Walmart for paperwork violations related to its employment of non-citizens, its fate is foisted into the hands of an ALJ. Undeterred, Wally World goes on the offense and obtains an injunction in district court on the grounds that the AlJ had unconstitutional “good cause” protection from the presidential axe. Eleventh Circuit: Furthering a circuit split, we conclude the protection is actually OK.
25. And in en banc news, the Second Circuit will not reconsider its opinion upholding man’s conviction—by an 11-member jury—for sending death threats to congresspersons and Fox News hosts. The panel said the error wasn’t structural b/c there’s no constitutional right to 12 jurors, so the conviction is only reviewed for harmless error. The en banc court denied rehearing but fractured over why: Did the panel hold that only constitutional errors can be structural (automatically reversible) or was that dicta? The conviction stands—but according to a majority of the court, whether a non-constitutional error can demand more than harmless error review is an open question.

What the Flock! Officials in Greers Ferry, Ark. have installed a “Flock Safety Falcon” camera directly in front of the home of Charlie and Angie Wolf, a retired couple who do not think the city should surveil their every coming and going—and the comings and goings of everyone who drives by their house. At IJ, we can think of a couple ways warrantless, suspicionless, constant, and enduring surveillance might pose some constitutional concerns, so this week we urged the city not to renew its contract with Flock. Click here to learn more.

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