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.

At IJ’s Center for Judicial Engagement, we’ve long argued that having judges who can say “no” to the executive branch are a crucial, necessary condition to freedom, prosperity, and the “rule of law.” But just what does it mean to have a “rule of law”? Over at our blog, Anthony Sanders discusses the essentials.

New on the Bound By Oath podcast: For the final episode of Season 3, we survey several strands of Supreme Court precedent that make it really, really hard for Native Americans to put their property to peaceful and productive use.

1. Gov’t watchdog group brings FOIA lawsuit to force DOJ’s Office of Legal Counsel to make several categories of its written opinions publicly accessible. D.C. Circuit: FOIA doesn’t apply to any of the requested opinions, including those about interagency disputes, as they are neither adjudicatory nor adopted as the agency’s working law. Watchdog group gets nothing. Concurrence: They should get nothing because they lack standing.
2. New York requires ammunition sellers to conduct a background check on anyone buying ammunition. Ammunition sellers and gun owners sue and seek a preliminary injunction, alleging the law violates the Second Amendment. District court: The law is consistent with our historical traditions. Second Circuit: Actually, we don’t even have to look at the history, because having to fill out some paperwork to buy bullets doesn’t meaningfully constrain the right to keep and bear arms.
3. Unlike some other circuits, the Fourth Circuit says there’s really not ever going to be anything cruel and unusual about holding prisoners past their release dates. It might conceivably shock the conscience. But not in this case, where Virginia men convicted of attempted aggravated murder spent an extra year in prison before the state supreme court ruled that a new-but-retroactive state sentencing law did indeed apply to their convictions.
4. Allegation: During “fraught, tense, and combative” five-hour interview, teen is told she can’t leave police station until she names man who (she’d told a therapist) had sexually abused her as a child. The teen names the now-plaintiff, whose prosecution is dropped over a year later when prosecutors learn the teen had previously identified a different perpetrator. Can plaintiff sue the Prince William County, Va. detective who knew (or should have known) about the earlier ID and left it, and other exculpatory info, out of an arrest warrant affidavit? Fourth Circuit: The probable cause bar is a low one. Case dismissed.
5. A few fellas were drinkin’ moonshine in a Tishomingo County, Miss. trailer when things get out of hand and one is arrested for shooting some bullets—which he denies. Due to a prior conviction he’s held awaiting trial. That lasts 1,233 days, during which he’s given four attorneys—some of whom he’s not told of—and three judges and files four pro se speedy trial motions. He’s convicted. District court: Speedy trial violation, but only on one of the two counts in the indictment. Fifth Circuit (over a dissent): On the whole indictment. Habeas granted.
6. It’s hard to tell who’s having the most fun in this Sixth Circuit case—whether it’s the majority opinion carefully identifying which expletives were intended by which historical euphemisms, the dissent diligently cataloging the personal insults lobbed at American presidents over the centuries, or the middle-school-student plaintiff who complied with the directive to remove his “Let’s Go Brandon” sweatshirt only to reveal a “Let’s Go Brandon” t-shirt underneath—but everybody seems to be having a good time.
7. Allegations: After five members of the University of Kentucky football team arrive at a frat party and attendees respond by physically assaulting them and hurling racial epithets, Lexington PD does the only responsible thing—fabricate information and very, very publicly charge the five teammates with burglary. ::Record scratch:: After grand jury refuses to indict, the teammates sue various denizens of the police department. Sixth Circuit: Yes you were arraigned and summoned to testify in court; yes one of your phones was seized; yes your reputations were tarnished nationwide when media picked up the cops’ press release; yes the allegations, if true, “reflect extremely poorly” on Lexington’s finest. But none of that amounts to a “deprivation of liberty,” so your Fourth Amendment claims are non-starters. And your beef with the allegedly defamatory press release is a non-starter too, since all it did was parrot the charging documents, meaning it enjoys absolute privilege.
8. Protesters have protested at an ICE facility a few miles west of Chicago for the past 19 years—with somewhat more intensity recently following the announcement of Operation Midway Blitz. A month after the announcement, the president federalized the Illinois National Guard. District court: Enjoined. Seventh Circuit: Just so. Political opposition is not rebellion, and a protest doesn’t become a rebellion merely due to a few isolated incidents of violence. Without that, none of the statutory predicates for federalizing the National Guard have been met.
9. Feds: We know this asylee and her kids have been in limbo for over a decade and we won’t defend the Board of Immigration Appeals’ application of the law, but can we have a remand so that we can kick her out in a way that’s less transparently unlawful? Tenth Circuit: No.
10. Allegation: In pre-dawn hours, naked, partially deaf man hears banging outside his home. Thinking it’s his adult son returning home, he opens the back door a crack and heads back to his bedroom. Yikes! It’s Levy County, Fla. officers (looking for the son, who isn’t there). Without a word, an officer follows the man into the house and confronts him at gunpoint, allowing him to put on pants but then tasing him without warning. Officers: We didn’t have a warrant, and there was no exigency. But the man consented to our entry when he opened the door. Eleventh Circuit: No qualified immunity. To a jury this must go.
11. And in en banc news, by a vote of 8 to 6, the Third Circuit will not reconsider its decision invalidating Pennsylvania’s practice of discarding mail-in ballots with missing or incorrect dates on the return envelope.
12. And in more en banc news, the Fifth Circuit will not reconsider its now-revised decision that un-dismissed a lawsuit brought by a fired Southwest Airlines flight attendant who was terminated after sending the president of the flight attendants’ union graphic images and videos of aborted fetuses.
13. And in further en banc news, the Ninth Circuit will not reconsider its earlier ruling declining to stay a California district court ruling that preliminarily enjoined the Trump administration from halting federal funding for the only program ensuring legal representation for unaccompanied children in federal immigration proceedings. Nine judges dissent from denial, arguing that this is a contract claim that should have been brought in the Court of Federal Claims.

Final victory: After an 8-1 win at the Supreme Court last year reviving her First Amendment retaliation claim, IJ client Sylvia Gonzalez’s case against Castle Hills, Tex. officially concluded this week. The settlement includes $500k for Sylvia, who was jailed on pretextual charges, and mandatory training for city officials that the Texas Municipal League will also offer statewide to over 1,000 municipalities. Click here to learn more.