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.
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New on the Bound by Oath podcast: In 1966, Los Angeles officials tried to put a man in prison for handing out leaflets in protest of a fatal police shooting. Today, we know the case as Younger v. Harris, which kicked off the doctrine of Younger abstention, the bane of many a civil rights plaintiff. On this episode, we examine the origins, the impact, and the relentless expansion of the doctrine.
New on the Short Circuit podcast: You have a First Amendment right to record the police! And a Fourth Amendment right to not show ID! But if you exercise those rights, it's OK if you're arrested.
- Infantryman Robert "Bowe" Bergdahl left his post in Afghanistan in June 2009 and was promptly captured by allies of the Taliban. After five years of captivity and torture, he was released in a prisoner swap. At court-martial, he pleaded guilty and was dishonorably discharged. Unknown to him, the judge presiding over his court-martial was seeking a job in the Trump DOJ and had submitted as his writing sample an order holding that then-candidate Trump's comments that Bergdahl was a "traitor" who "deserved the death penalty" did not constitute "unlawful command influence." Bergdahl files suit in federal court to vacate the conviction. D.C. Circuit: But we don't have jurisdiction over that sort of thing.
- Convinced that the president is the antichrist, man fires multiple rounds from an AK-47 at the White House. No one is hurt; he pleads guilty to injuring a dwelling. Crime of violence? D.C. Circuit: Crime of violence.
- Because we love you, we do research: This First Circuit opinion is, in fact, the first time a decision in the Federal Reporter has promised to "fill in the deets[.]"
- Puerto Rican "nonbinary persons" challenge the commonwealth's denial of their request to change their birth certificates from what they said when they were born to "X." First Circuit: We're going to assume rational basis applies. And with that, the asserted legitimate interest in protecting privacy sounds good enough.
- Long Island, N.Y. public-school teachers are ordered by the school district to take down pride flags. They sue, alleging violations of the First Amendment, among other things. Second Circuit: The displays covering the walls and doors of grade-school classrooms are something the gov't is allowed to control. We join the Sixth, Seventh, and Ninth Circuits in holding the rules for university professors don't apply here.
- In which the Third Circuit holds that restrictions on out-of-state doctors' telemedicine practice are content-based restrictions on speech that would be subject to strict scrutiny … if not for the Founding-era history of gov't licensing of physician speech, which is hard cheese for the plaintiff physicians. (Wondering if the court's historical analysis is correct? Well, have we got just the article for you.)
- Third Circuit: "[S]uppression is for misconduct, not mistakes." So no suppression for this hit-and-hold (a procedure by which police officers use warrants to track a box to a particular address, secure the box, and then search that address) that went awry when the recipient took the box to Apartment 1, rather than the Apartment 2 listed on the warrant, yet police searched Apartment 1 anyway. The cop made an isolated mistake—bad news for the defendant, who now must face the music of the discovery of five pounds of meth and a boatload of fentanyl.
- Woman who has identified as a Jehovah's Witness, a follower of the Nation of Islam, and as a Christian, files a Title VII case against her employer after they fire her for not taking a COVID vaccine. Fourth Circuit (over a dissent): She was kind of hazy about how her refusal connected to religion, but we don't expect people to have degrees in theology. This is close enough to go to a jury.
- Sunset, La. police chief handcuffs unresisting, innocent bystander who does not match description of suspect and then twists the bystander's wrist until it's injured. Now-former chief: That was unreasonable of me, but you know what else is unreasonable? Me paying this guy $3.5k in restitution. Fifth Circuit: Pay up.
- Tennessee's Protecting Children from Social Media Act requires social-media companies to verify the ages of their prospective account holders and, if a minor, obtain parental consent before creating the account. A coalition of internet companies sue, seeking a preliminary injunction. The district court denies the injunction, holding that there's no showing of irreparable harm. Sixth Circuit: Clearly erroneous. The chilling of speech and the unrecoverable compliance costs the companies face are irreparable. Remanded to consider the other factors. Dissent: How can they be irreparably harmed? Maybe the Tennessee AG will just decide not to enforce the law against them.
- A once-prominent Cincinnati spine doctor is accused of fraudulently billing Medicare, Medicaid, and private insurance companies millions of dollars for hundreds of unnecessary surgeries that left patients worse off. (He fled to Pakistan after the indictment and remains on the lam.) Civil litigation proceeded in his absence with his insurer defending and his appearing remotely for a few depositions. Sixth Circuit: The insurance policy excludes coverage for damages "in consequence of" fraud, leaving the insurance companies off the hook for the malpractice judgments. Moreover, the insurance company owes no duty of good faith beyond the now-former surgeon, so the patients cannot assert a bad faith claim there.
- Oof! $250k watch goes missing during shipping; the owner's insurer pays them $250k and sues the shipper. Eighth Circuit: And wins! A whole $100, which is the limit of the liability under the shipping contract.
- Find someone who loves you as much as Courthouse News Service loves suing state courts about their sclerotic document-processing practices (This time in the Ninth Circuit. Again.)
- Under the Dodd-Frank Act, the Commodity Futures Trading Commission has exclusive jurisdiction over "swaps," which include "any agreement, contract, or transaction … that provides for any purchase, sale, payment, or delivery … that is dependent on the occurrence, nonoccurrence, or the extent of the occurrence of an event or contingency associated with a potential financial, economic, or commercial consequence." Does that include "swaps" about whether the Patriots beat the spread against the Seahawks? Ninth Circuit: No, so Nevada's gaming laws are not federally preempted as applied to Kalshi's sports event contracts. (Circuit Split Alert! The Third Circuit disagrees!)
- Canadian citizen living in Dubai allegedly ran a company selling encrypted Blackberry phones for use in drug-trafficking shenanigans. U.S. gov't indicts him and also civilly seeks to forfeit ill-gotten proceeds. Just one problem: He's never been in America, and his money is in Lichtenstein. Ninth Circuit: And it violates due process for a U.S. court to exercise in rem jurisdiction without first having control over the property. Concurrence 1: It also violates Article III because an opinion is just advisory unless the court actually controls the property. Concurrence 2: Constructive control solves the Article III problem. Dissent: I'd defer to Congress's foreign-policy judgment in conferring jurisdiction by statute in this type of case.
- El Salvadoran in deportation proceedings submits evidence that it is more likely than not he'll be tortured if sent home. Board of Immigration Appeals: Denied. You don't have a quantitative study saying there's a 50 percent or higher likelihood. Ninth Circuit (over a dissent): Such studies rarely exist in these cases. There's a wealth of evidence here, including an expert who testified that "there is a near-100-percent certainty" that the guy will be put in a torture prison if sent back.
- Legal writers have differing opinions on the value of lengthy footnotes, but we can all agree they're better when (as in this Tenth Circuit case about Utah's mandatory bar dues) they acknowledge circuit splits.
Live podcast! On Mon, Oct. 19, we're heading to Cambridge, Mass. to rue the 100th anniversary of zoning—and to cheer the 98th anniversary of the Supreme Court ruling that a Cambridge, Mass. zoning rule was a bridge too far. Plus, how Cambridge has made some good zoning reforms in recent years. With Molly Brady of Harvard, Vice Mayor Burhan Azeem of Cambridge, and Ari Bargil, leader of IJ's Zoning Justice Project. Space is limited so RSVP today!
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