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.

New on the Short Circuit podcast: The First Amendment is for listeners too.

1. New York may have Page Six for its celebrity gossip. But Washington puts it to shame with Page One Hundred Thirty Six, courtesy of the D.C. Circuit wading into White House ballroom drama. The majority blocks much of the construction, saying congressional authorization is needed. The dissent is largely flummoxed at allowing aesthetic objections to overcome security concerns (and concludes in knowing celebrity-rag fashion by poking fun at District Judge Leon’s famous exclamation points).
2. Congress reformed the immigration removal system three decades ago, allowing some—but not all—aliens to be released on bond pending their hearing. A regulation issued soon after explaining that bond was available only for people already within the U.S., not for those arriving at the border. The feds reversed course last summer; now, no bond for any aliens. Cool? Fifth, Eighth circuits: Yup. Second, Sixth, Seventh, Ninth, Tenth, Eleventh, and now First circuits: No.
3. Plaintiff: My gov’t employer cooked up baseless allegations to fire me in retaliation for my whistleblowing. State court (round one): Sounds like a claim that requires discovery, which means you should file a plenary proceeding. State court (round two): Whoops! Turns out that round-one decision precludes all your state-law claims in this here plenary proceeding. Federal district court: And that all looks like res judicata for your constitutional claims, too! Second Circuit: Guys. Guys. Calm down. Nothing has been judicataed, and somebody needs to listen to this lady’s claims. Case undismissed!
4. Coalition of disabled Texas voters and allied organizations sue a tableau of defendants, arguing that new vote-by-mail rules violate the ADA. Fifth Circuit: See, there’s no standing to sue the election officials because the voting barriers seem speculative. While there is standing to sue prosecutors who enforce the law, it doesn’t matter because they’re not the ones who would be denying reasonable accommodations in the first place.
5. If a Fifth Circuit opinion considering a challenge to gas stove regulations begins, “The Biden Administration proposed numerous regulations to make home appliances more expensive and less useful,” you probably know how it’s gonna turn out.
6. In Texas, arrestees may request appointed counsel at their first appearance, after which the magistrate must transmit, or cause to be transmitted, the necessary forms to the counsel-appointment program. Within 24 hours. Man: A magistrate found that I qualified for counsel, but the paperwork wasn’t forwarded for several weeks, and my initial lawyer was rubbish and never met with me, so I was stuck in jail for 252 days until the state finally dropped the case against me. I was never even charged! Fifth Circuit: The jail administrator enjoys qualified immunity for the (seemingly widespread) failure to forward the counsel-appointment forms to the folks who could, y’know, appoint counsel.
7. Sixth Circuit: Forcing a compliant suspect to pee in his front yard when there were plenty of officers on hand to supervise a trip to the toilet is an obvious Fourth Amendment violation. No qualified immunity. Case undismissed. Dissent: At the Founding, public urination was probably not a crime in these circumstances.
8. Manistee County, Mich. prison conducts hostage training exercise that goes awry, injuring one staffer’s knee. Sixth Circuit: Because the force occurred during a training exercise, no one intended to restrain the staffer in a way that effects a Fourth Amendment seizure.
9. Minneapolis-based Antifa member’s social media encourages followers to “hunt” ICE, “take their f**king guns,” “[g]et your f**king guns and stop these f**king people,” and so on. He’s arrested for allegedly doxxing someone he deems to be “pro-ICE”; he threatens the arresting officers and flips off the camera during his booking photo. (Charges added later include solicitation to commit a crime of violence and transmitting interstate threats.) Should he be detained pending trial? Magistrate: Yes. District court: No. Sixth Circuit (over a dissent): Yes.
10. Indiana passes “intellectual diversity” law that requires state universities to enact policies that, among other vague things, require professors to expose students to scholarly work from a variety of political or ideological frameworks. Professors: This is infringing our speech! Seventh Circuit: Nobody can possibly say what Indiana’s law actually requires of anyone, so you lack standing and we federal courts lack the power under Article III to decide the merits of your claim. Concurrence: I heartily agree. Also, here’s an advisory opinion about why the professors are wrong on the merits.
11. If you haven’t kept up with House of the Dragon, small-town Wisconsin politics is a fit substitute. To put this case in GRRM terms, when the Blacks take King’s Landing and purge the gov’t of any opposing Greens, is that a First Amendment violation? The Seven(th Circuit): You’ll have to wait for the final season to find out; here, we’re just granting qualified immunity because our case law on firing policymakers over political differences is a mess.
12. Man convicted in 1998 of murdering his ex and their infant son (and dumping their weighted-down bodies in the Calumet River) says modern DNA testing will exonerate him. State’s attorney: And I am totally willing to do that for him, but, per counsel at oral argument, “shrug.” Seventh Circuit: Case undismissed. His challenge to Illinois’ post-conviction DNA testing law is not barred by Rooker-Feldman.
13. Iowa requires a license for anyone who helps people negotiate with their insurance companies and forbids residential contractors from doing so at all. But, per the Eighth Circuit (over a dissent), giving people advice to help them navigate red tape is protected speech. Case undismissed.
14. Minnesota Jane Doe, who was sexually assaulted at age 14, provides evidence for a rape kit. Anoka County police do not test the kit for over 16 years, then find it contains DNA implicating the assailant she identified. She sues the police for failure to investigate. Eighth Circuit: Crime victims have no standing for that sort of thing.
15. Eighth Circuit (2023): South Dakota’s one-year pre-election deadline for filing citizen petitions violates the First Amendment. South Dakota: How about nine months? Eighth Circuit (2026): Nope. Dissent: There’s actually some evidence supporting this one.
16. Section 230 gives immunity to internet companies for speech they distribute but do not create. That’s generally been held to mean they get to appeal denials of immunity immediately. Ninth Circuit: Well, when we’ve said “immunity” in past cases we meant immunity from liability not immunity from suit, so this mega-case against Meta and TikTok has to go to trial first. (Our friends at TechDirt think this is a major—and ungood—ruling against free-speech protections.)
17. Allegations: Rules promulgated by the National Association of Realtors are facilitating a boycott of low-cost brokerage. That anticompetitive conspiracy violates the Sherman Act! Tenth Circuit: You should have challenged the boycott and sued the brokers. The NAR rules were promulgated outside the statute of limitations.
18. Eleventh Circuit: “A father and daughter owned a house together. But it was not as idyllic as it might sound—each warned the insurance company that the other would likely burn the house down. Remarkably, the insurer issued and maintained the policy anyway. Less remarkably, the house burned down a month later.”

Automated license plate readers (ALPRs) are sold as a targeted tool to catch dangerous criminals and find missing persons. And we like both of those things. But the frequency with which officers use ALPRs for non-law-enforcement purposes (chiefly stalking) or wind up tracking and detaining the wrong people (sometimes at gunpoint) is downright alarming. Officers rarely record specific reasons for ALPR searches, and even where they are supposed to, as we learned in litigation against Norfolk, Va., officers ignore those internal department requirements without consequence. (One officer repeatedly wrote “la la la la,” and no one noticed.) Which is all to say that constitutional safeguards are desperately needed, and we have a sensible proposal that we’re bringing to a courthouse near you: If the police want to track someone, they have to get a warrant. Click here to learn more.