Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
· Reason
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: It's our biannual election law special! Anonymous speech! The Founders and pamphlets! Motor voter! Purcell! Prefilling ballots! Vote early! Vote often!
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New on the Beyond the Brief podcast: Automated license plate readers are a lot of things, but one thing they definitely are is great tool for stalking. Hoo boy!
- D.C. Circuit (unpublished): No need to comment on the denial of this guy's latest request for compassionate release from a well-below-guidelines sentence for pimping minors. J. Walker, concurring: I have comments.
- Rather than provide documents through discovery, the feds now direct people in DHS proceedings to file FOIA requests. Their lawyers sue, claiming that this procedure is too slow and the responses often incomplete. First Circuit: If the first thing we do is kill all the lawyers, the second is deny standing to those who remain.
- Uber driver passes six field sobriety tests, and, after he's arrested anyway, his blood tests come back negative for intoxicants. So maybe he was telling the truth about pulling over for a nap while business was slow? Brookhaven, Penn. officer (weeks later): No, I'm filing charges for DUI. Third Circuit (unpublished): Could be false arrest and abuse of process. No qualified immunity. To a jury this must go.
- In 2020, a disgruntled lawyer murdered the son of a federal district judge. Most states responded with laws that restrict addresses disclosure for certain public officials. But only West Virginia's law goes straight to liability (for, e.g., data brokers) without first requiring a takedown request. Fourth Circuit: A First Amendment violation on its face. Least restrictive means least restrictive.
- Your summarist is not sure exactly how to implement this practice tip (New Orleans voodoo dolls?), but if you are going to ask the Fifth Circuit to extend qualified immunity to a statute where it has never gone before (here, the Fair Labor Standards Act), you really should avoid having Judge Willett write the opinion.
- Undocumented immigrants—who have lived here over a decade, don't have criminal records, and have close relatives who are citizens—ask: Can they be imprisoned for the duration of the deportation process or does the Constitution require an inquiry into whether they're a flight risk or danger to the community? Fifth Circuit (en banc, 10-7): The former.
- In which the Sixth Circuit holds that the federal prohibition on firearm possession by anyone "adjudicated as a mental defective" does not violate the Second Amendment on its face because it can sometimes be applied constitutionally—like to this defendant, who could have petitioned to have his rights restored under Missouri law but "[i]nstead, he drove to Fort Knox wearing body armor and possessing eight guns."
- Now-former Perry Twp., Ohio police chief attempts to intimidate auditor hired to look into his practices, culminating in his filing misdemeanor charges against her—and then pursuing them as if they were felony charges, i.e., having her arrested outside his jurisdiction and ensuring she spends 36 hours in jail instead of just receiving a summons. Sixth Circuit (unpublished): Could be abuse of process. No state-law immunity. To a jury this must go.
- Supreme Court (2005, unanimous): Lower courts, it's almost never Rooker-Feldman; stop dismissing cases. Supreme Court (2026, 5-to-4): OK, sometimes it's Rooker-Feldman, but don't go nuts. Seventh Circuit: We are holding the line; the district court was wrong to invoke Rooker-Feldman where the plaintiffs are challenging administrative action that predated any court decision. [Ed.: Who were Mr. Rooker and Prof. Feldman? We're glad you asked.]
- The Durbin Amendment to the Dodd-Frank Act authorized the Federal Reserve to regulate debit-card interchange fees (the per-swipe fee that banks charge merchants when you use a debit card). But it instructed the Fed to limit those fees to only the "incremental cost incurred" in the transaction. Fed: Let's just call it 21 cents. Eighth Circuit: You might have gotten away with that sort of thing in the Chevron era, but nowadays, "We say 'what the law is.'" The 21-cent cap is vacated.
- Each year, the State Dept. must hold a lottery and award up to 55,000 visas to people from countries with low rates of immigration to the United States. This year, however, officials decided not to. Lawyers who represent visa selectees sue. District court: And win! Hold the lottery. Ninth Circuit (per curiam): If the first thing we do is kill all the lawyers, the second is deny standing to those who remain.
- Fifteen days before the midterm elections, the Department of Justice sued California, seeking a temporary restraining order that would require the state to sequester ballots that DOJ alleges were sent to non-citizens. Ninth Circuit (Monday, per curiam, over a dissent): We're not going to order that. Ninth Circuit (Friday, per curiam, over a dissent): We're not going to order that.
- Berkeley, Calif. officials seek to shut down a homeless encampment on city property to stymie a leptospirosis outbreak. Challengers: The city, among other things, needs to first follow the ADA. District court: That makes sense, here's a P.I. Ninth Circuit (per curiam, 73 pages): P.I. is stayed, but only a bit of it. Partial dissent: Rats are spreading this disease, and we're worried about the ADA?
- California prohibits employers from requiring employees to attend meetings where religion or politics (including unionization) will be discussed. Employers: That's a content-based restriction on speech. California: Well, it's not really speechy speech. More like conduct. Ninth Circuit: The law doesn't apply to meetings about how to fill out firm paperwork. It's content based. And likely unconstitutional.
- Is a giant painting of space aliens in cheeseburger-shaped flying saucers a "mural"—or is it instead a dangerous, prohibited "sign"? Whichever it is, says the Tenth Circuit, it's protected by the First Amendment, which means the city of Salina, Kans. needs to come up with better evidence than it has here if it wants to shoot those little aliens down. (IJ urged just this result in an erudite amicus brief.)
- And in en banc news, the Fifth Circuit will reconsider its decision that Texas's SCOPE Act—which requires digital service providers to monitor and filter content accessible to minors to prevent exposure to several categories of potentially harmful speech—is preempted by section 230 of the Communications Decency Act.
New cases! Last year, in two separate airport seizures, DEA and CBP agents seized a total of nearly $1.4 mil in cash from IJ client Steven Bailey and his small currency wholesaling business, which, among other things, buys U.S. dollars in Mexico and brings them back to the states—all above board and in compliance with numerous federal rules and reporting requirements. What's not above board is each agency's failure to say what they think Steven did wrong, denying him a chance to meaningfully contest the deprivation of his property. That violates due process, and, in CBP's case, the agency's own rules. Click here to learn more.
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