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 case! In 2021, Maine voters approved a first-in-the-nation constitutional amendment that protects a robust, individual "right to food." And yet! Officials in Calais, Maine (pop. ~3,000) recently made it illegal for most residents to have backyard chicken coops, which is a real kick in the teeth for IJ clients Kamiwan and Paul Oliver, who rely on their meticulously maintained coop to feed their family of five. So last month, IJ and the Olivers filed suit to protect the state's new right-to-food protections. Click here to learn more.

New podcast! Short Circuit Live at UNC Law: An arbitrary and capricious Supreme Court preview with Sheldon Gilbert.

1. Robbers steal guns, drugs, and money from an NYC stash house; the getaway driver doesn't get any of the loot before being arrested. Driver is later convicted of Hobbs Act robbery and ordered to forfeit $10k based on a pro rata share of what was stolen. He challenges the forfeiture order, arguing the Supreme Court's 2017 decision in Honeycutt limits forfeiture to property he actually acquired. Second Circuit: Sure does (deepening a circuit split)—and he acquired nothin'. Forfeiture order vacated.
2. Were prison officials deliberately indifferent to a Connecticut inmate's severe gender dysphoria? Second Circuit: There was legitimate medical disagreement about the appropriate course of treatment, so they have qualified immunity. Dissent: Not for the 13 months they did nothing, during which the inmate attempted self-castration.
3. If you were worried that the Telephone Consumer Protection Act's ban on robocalls was going to prevent gov't officials from contacting you regarding public health resources, employment opportunities, and upcoming events, fear not! The Third Circuit says gov't officials can send you an unlimited number.
4. While home sick, employee gets an urgent message from work (a debt-collection firm menacingly called the NRA Group) that the firm needs to renew a license that day or face awful consequences. She shares password and access info with a friend at work, enabling the renewal but also breaching workplace data-security policies. In unrelated matters, she later quits and threatens to sue for sexual harassment. The friend is fired for the breach of policies. NRA sues both for violating the Computer Fraud and Abuse Act. They both counterclaim for sexual harassment and retaliation. District court: Some counterclaims can go forward, CFAA claims cannot. Third Circuit: Affirmed. Calling a friend at work and giving her your password so she can accomplish work objectives is not a federal crime.
5. Allegations: Pennsylvania inmate collapses and is paralyzed from the chest down. Prison officials force him to drag himself around and leave him immobile so he has to urinate on himself. (There's other bad stuff, too.) Does he have a claim under the 8th Amendment, the Americans with Disabilities Act, or the Rehabilitation Act? Third Circuit: Very possibly. The district court should not have dismissed his claims.
6. Defendant: No, no, you don't understand. This wasn't racially motivated violence. This was regular violence against minorities by a man who, yes, happened to use some racial slurs and has a historical interest in Nazis and the KKK. Fourth Circuit: Conviction affirmed.
7. Company says it'll pay for bonds (which average $7.5k) for immigration detainees. Monthly payments ostensibly pay down the bond—but they don't, actually, as the company contracts with an actual bond company to get the bond and then just rakes in money from immigrants and their families. The CFPB and three states sue for the misdeeds; the company, displeased, declines to respond to discovery requests and court discovery orders. District court: Sanctions mean default judgment, and final judgment means injunctive relief + nine figures' worth of cash. Fourth Circuit: Cool.
8. You may remember from law school that the rational-basis test is a toothless nullity under which the gov't must always win. You may remember from IJ victories (like the one we told you about in last week's Short Circuit) that the rational-basis test is a real standard under which heroic litigators can win genuine victories for freedom. Anyway, those in the market for more evidence of the "real standard" view of the test may enjoy this Fifth Circuit opinion striking down certain of New Orleans' restrictions on short-term rentals.
9. The "cat's paw doctrine" of liability—coined by Judge Posner and then adopted by SCOTUS—allows recovery against employers who, though appearing neutral, actually adopt an employee's discriminatory animus when making an adverse employment decision (against another employee). Fifth Circuit: All fine and good, but you can't sue a city on this theory. Which is but one reason this $5 mil award to the former city manager of Hutto, Tex. can't stand.
10. Man distributing leaflets on sidewalk about Christian vegetarianism is threatened with arrest, sent away by Bossier City, La. cops and private security guards. A second person, who's distributing commercial fliers, is not. Fifth Circuit (three opinions): QI for the cops/guards but case undismissed against the city, whose officers "received literally zero training" on the First Amendment.
11. Short Circuit readers who are super-into third-party objections to class-action certification should read this Sixth Circuit opinion. Everyone other than those three (hi, guys) should read Judge Kethledge's concurring paean to justice, the protection of property rights, and a legal system that too often falls short of both.
12. SWAT officers smashbang through South Bend, Ind. family home, shooting tear-gas grenades, ripping holes in walls, breaking windows, destroying internal security cameras, and more. Yikes! It's an innocent family; the suspect officers were seeking had never been to the house. Seventh Circuit: We're bound by circuit precedent to say that this was not a taking requiring just compensation. [Ed.: This is an IJ case. And we're bound by oath to refer you to this lovingly crafted podcast episode on our nation's long history and tradition of making owners whole when their property is destroyed for some public purpose.]
13. Owner of digital marketing firm sues the owner of a San Diego take-n-bake pizza business following a "series of odd exchanges" involving alleged racial slurs and poor behavior towards a handicapped dog. The pizzaiolo files a countercomplaint alleging that the marketing firm orchestrated over 100 fake, defamatory reviews of the pizza shop. The marketing firm moves to strike the countercomplaint under California's anti-SLAPP law, but the district court denies the motion. Ninth Circuit (en banc): Orders denying anti-SLAPP motions are not immediately appealable; we overrule an older case that said otherwise. Interlocutory appeal dismissed for lack of jurisdiction and case remanded.
14. ICE agent escorting passenger from Dallas to Miami takes upskirt pictures and videos of flight attendant. He's convicted of interfering with her flight-crew duties, sentenced to two years' probation. Agent: I didn't know that she was aware of my "clandestine video voyeurism," and that's an element of the crime. Eleventh Circuit (unpublished): It is not.
15. And in en banc news, the Fifth Circuit will reconsider its decision granting a preliminary injunction against a Louisiana law that requires the Ten Commandments to be displayed in every classroom. But is the court more interested in the argument that the plaintiffs lack standing or that such displays are constitutional? Only time will tell.
16. And in more en banc news, the Sixth Circuit will not reconsider its decision that the First Amendment has nothing to say about Michigan's prohibition on hunting by drone, though Judge Bush's separate statement about the case suggests it would be super-neat if the Supreme Court told us how it thought some of this stuff should work.
17. And in bombshell en banc news, the Eleventh Circuit will reconsider what your humble summarists presciently described as its "conspicuously wrong" line of decisions doing violence to Federal Rule of Appellate Procedure 4. The case of "Herr Doktor Rev. Professor Blind Burt Ph.4KUltaHD, Department of loser Studies, Pharmakonology, and Cosmic Criticism" hangs on by a thread!

Victory! In 2019, Harris County, Tex. drug interdiction officers seized Ameal Woods and Jordan Davis' life savings at a traffic stop—over $41k cash that the Mississippi couple had intended to spend on used trucking equipment. And though a jury later rejected the state's claim that the money was the proceeds of crime, it accepted the state's invitation to imagine that the money would have been used to buy drugs (and, not only that, but one of five specific drugs named in the statute). But the state produced no evidence whatsoever tying Ameal, Jordan, or the money to any drugs, and we are thrilled to announce that this week a Texas appeals court reversed and rendered. In the humble opinion of the editorial staff, the decision is a landmark, reviving a half-century-old line of SCOTX rulings that set a real and high burden on the gov't to forfeit property. Click here to learn more.

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