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.

New on the Short Circuit podcast: Shooting the wrong man (tragedy) and free speech dying in the library (comedy).

1. Under the Federal Vacancies Reform Act of 1998, a first assistant U.S. Attorney automatically becomes interim U.S. Attorney if there’s a vacancy. So can the AG name someone the first assistant to a vacant U.S. Attorney position and have them automatically elevated? Second Circuit (over a dissent): Joining every other court that has considered the question, no.
2. Man videorecords Waterbury, Conn. police station from public sidewalk, declines to show ID to officers. He’s arrested. (Prosecution is dropped over two years later.) Second Circuit: It was dusk and he didn’t answer officers’ questions, so there’s no 4A violation. And while it’s now clearly established that recording the police is 1A protected, qualified immunity. Concurrence: He wasn’t recording the police!
3. That noise you hear is not gunfire but champagne corks popping down at the 26th Amendment Center. It might be the biggest 26th Amendment news since 1971! There’s now a circuit split on whether a state has “denied or abridged” the right to vote “on account of age” if it offers no-excuse absentee ballots to over-65s but not to the rest of us. The Fourth Circuit just said that’s unconstitutional in a challenge to South Carolina’s law while the Fifth (2020) and the Seventh (2023) said Texas’s and Indiana’s laws were OK. Dom Pérignon at 1 First Street next year?
4. “Sanctuary!” No, that exclamation is not from the Fourth Circuit‘s ruling upholding a preliminary injunction against DHS’s new policy of allowing immigration enforcement at or near houses of worship, as applied to the plaintiffs (Quaker, Sikh, and Baptist organizations). Instead, it’s what Quasimodo cries out after he grabs Esmeralda and swings into the cathedral in Victor Hugo’s The Hunchback of Notre Dame.
5. After getting 911 call (in 2017) about a Black man yelling at kids as he put them in a vehicle trunk outside an IHOP and told by dispatcher it’s a possible kidnapping, Montgomery County, Md. police go to the address on file for the vehicle (which officers know has legal rear-facing trunk seats). They encounter plaintiff, a criminal law professor, on his porch, who says everything is okay and tries to go inside his home. Officers bust in, tackle him, and confirm the kids are okay. Fourth Amendment violation? Fourth Circuit (over a dissent): No.
6. Allegation: Grandmother is taken to off-the-books warehouse (the “Brave Cave”) and strip searched after Baton Rouge, La. officers find prescription drugs in her car and refuse to let her show them her prescriptions. District court: Which is clearly unconstitutional. No qualified immunity. Fifth Circuit (unpublished): To discovery this must go.
7. Allegation: In 2021, Port Lavaca, Tex. officers arrest head shop owner and employee for selling illegal edibles. (Charges are dropped after officers are “unavailable to testify due to a credibility issue.”) Oops! Lab tests did indicate the presence of THC but not whether the concentration was high enough to render the products illegal, and the investigating officer was being just a tad imprecise when he swore otherwise. Fifth Circuit (per curiam, unpublished): Qualified immunity.
8. Allegation: Austin, Tex. officers go ballistic on man they say grabbed a police horse’s reins and then struck a second police horse, leaving the man with traumatic brain injury and spinal fractures (among other severe injuries). All charges are dropped after video doesn’t show rein grabbing or horse striking. Officers: Okay, but all that force was justified solely because he tried to pull his arm free from an officer (who, per plaintiff, grabbed him unexpectedly and inexplicably.) Fifth Circuit (unpublished): To a jury this must go.
9. Sure, say Nashville officials, we’ve had an “indefinite hold” on your building plans since 2022 (because we might want to condemn part of your land), but you can’t sue us because we haven’t made a final decision about anything. Sixth Circuit: Yeah, we’re pretty sure saying “you can’t build anything” counts as a decision.
10. Allegation: Saginaw County, Mich. officers call in sick en masse (“blue flu”) after an officer is fired for punching a handcuffed woman. In response, activists set up a table and chairs near police union building to engage officers in dialogue about police culture. Within minutes, officers falsely accuse them of trespassing and then tackle, tase, knee, and arrest the organizer, who’d tried to deescalate and then passively resisted cuffing. Sixth Circuit (unpublished): To a jury this must go. No qualified immunity. Dissent: The officers were actually pretty patient with this guy.
11. Woman suffers massive hemorrhage, organ failure and has to have a hysterectomy after childbirth; she sues the obstetricians. United States: Surprise! The clinic gets federal funding, so the docs are federal employees, and you can’t sue them. You could have sued the U.S., but only after exhausting administrative remedies, which you didn’t do. Seventh Circuit (per curiam): Yup. Case dismissed. Med-mal lawyers really need to check this database of federally funded clinics before they file suit. Dissent: Per text and history, our precedent is wrong, and she ought to be able to amend her complaint.
12. Indiana prison officers give inmate a pair of rough rides; first, breaking his collarbone after leaving him unbuckled in prison van and slamming on the brakes. Then, right after a surgery, deliberately driving over bumps and laughing as he yelled out in pain. District court: Qualified immunity all around. Seventh Circuit: Actually, the first rough ride should go to a jury. Partial dissent: They both should!
13. Seventh Circuit (over a dissent): It’s been clearly established since 1962 that holding a 14-year-old incommunicado for five days to force a confession out of him is unconstitutional. But this 14-year-old, who falsely confessed to murder in 1977, was only in custody for two days. And he got to see his dad for a few minutes. To a jury this cannot go. Denial of QI reversed.
14. Elderly, disabled Missourian attempts to apply for food benefits, but no one at state SNAP administrator’s office answers the phone. She submits her application in person but is not interviewed, and her application is ultimately rejected for failure to interview—despite her calling 11 times over the course of a month, and spending hours and hours on hold, without ever being put through to an interviewer. After she files suit, she’s approved for benefits. Eighth Circuit: A due-process violation! But the district court’s injunction was a bit too universal. Remanded to see if maybe giving her (and other plaintiffs) some money instead of requiring systemic changes to the program might suffice.
15. Minnesota election watchdog thinks that the state constitution forbids felons from voting until their civil rights are restored—which happens at the end of their sentence—but a state statute says felons can vote once they’re no longer behind bars, even if they remain on supervised release. The watchdog wants to publicize its view but is chilled by a state law that prohibits spreading “election disinformation.” A First Amendment violation? Eighth Circuit: Very likely. Preliminary injunction granted.
16. Under the Federal Vacancies Reform Act of 1998, a first assistant U.S. Attorney automatically becomes interim U.S. Attorney if there’s a vacancy. So can the AG name someone the first assistant to a vacant U.S. Attorney position and have them automatically elevated? Ninth Circuit: Joining every other court that has considered the question, no.
17. Telemedicine provider QueerDoc offers puberty blockers and cross-sex hormones to its patients. The DOJ subpoenas documents from the company, allegedly to investigate potential violations of federal law. The district court quashes the subpoena, holding that it was issued for an improper purpose. Ninth Circuit: Reversed. Dissent: “It is hard to imagine clearer evidence that DOJ issued the subpoena to QueerDoc in bad faith.”
18. Azusa, Calif. officers beat, tase disturbed man, leaving him in a vegetative state. An eyewitness says the man wasn’t threatening and laid down on his stomach just before officers started kicking him. Officers: Plaintiffs didn’t timely disclose this witness. Strike his declaration! District court: No, we can just extend the discovery deadline. Ninth Circuit: Qualified immunity lets gov’t employees immediately appeal all kinds of things, but not this.
19. Hillsborough County, Fla. clerk: We gave the plaintiff plenty of notice before we forfeited his money! We mailed him letters (which were returned as undeliverable because he’d moved) and published notice (but only in a Spanish-language newspaper serving less than 0.2% of the county). What else could we have done? Eleventh Circuit: You could have sent a letter to his new address (which you had) or his email address (which you also had). Summary judgment reversed!
20. “Scratch a lover, find a foe.” In which the Eleventh Circuit has occasion to relate a little Dorothy Parker and also to note that while the fired plaintiff-officer does not deny carnal relations, he does deny “carnally relating while on duty.”
21. And in en banc news, the Tenth Circuit will not reconsider its decision that the only woman on Oklahoma’s death row received a fair trial (for conspiring with a paramour to kill her husband) despite the prosecutor referring to her as a “slut puppy,” presenting evidence of her provocative appearance and flirtatious behavior, and denigrating her parenting. Dissental: The Supreme Court remanded this case to consider whether her trial violated due process, and the panel turned the constitutional principle on its head.

Mega-cool! Last week, Austin, Tex. officials passed a resolution to reduce regulatory permitting costs for the city’s smallest businesses (<20 employees)—costs that, according to a 2025 IJ report, were among the most burdensome of 20 cities we studied. “A small bookstore with four employees shouldn’t have to navigate the same regulatory maze as a tech company with four hundred,” said co-sponsoring Councilmember Vanessa Fuentes. “This resolution begins to change that by reducing barriers and ensuring Austin’s smallest businesses aren’t priced out before ever opening their doors.” Click here to learn more.

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