Please enjoy the latest edition of Short Circuit, a weekly feature written by a group of individuals at the Institute for Justice.
This week, Tex. Attorney General Ken Paxton lost 9-0 at the U.S. Supreme Court. Despite this, he declared victory. However, it was confirmed that the Court revived IJ client Richie Devillier’s Fifth Amendment takings claim, which Paxton had urged to dismiss. Click here for more information.
- A Russian businessman gives $100k to an American political operative to meet then-President Trump at a fundraiser. The operative contributes $25k to the fundraiser and keeps $75k. He is found guilty of violating the Sarbanes-Oxley Act and Federal Election Campaign Act. The D.C. Circuit affirms the conviction.
- Editors considered various names for this publication before settling on “Short Circuit.” One rejected name was “Weekly Circuit Court Decision Summaries,” deemed too descriptive for registration under the Lanham Act. The Second Circuit upholds this decision.
- New Jersey law requires consent for slogans containing the name of a New Jersey group in primary election campaigns. The Third Circuit upholds this law against a First Amendment challenge.
- The “Save Women’s Sports Act” in West Virginia is challenged by a transgender girl. The Fourth Circuit finds potential violations of Equal Protection and Title IX.
- Two Maryland state troopers face allegations of excessive force in a domestic disturbance call. The Fourth Circuit rules that the case should go to a jury.
- A Harris County constable faces allegations of retaliation against precinct employees. The Fifth Circuit dismisses the case, stating the constable is not a final policymaker.
- The Lipan-Apache Native American Church’s religious beliefs are partially protected in a dispute over a park in San Antonio. The Fifth Circuit upholds the decision with partial dissent.
- A murder conviction is overturned by the Sixth Circuit due to insufficient evidence.
Detective: Qualified immunity! District court: No; her claims should go to trial. Sixth Circuit (2024): Yes.
“Strike suits” with “mootness fees” are what the Seventh Circuit calls “no better than a racket” and describes this way: “money moves from corporate treasuries to plaintiffs’ lawyers; the investors get nothing, yet the payment diminishes (though only a little) the market price of each share.”
“Behind every good man there is a woman, and that woman was Martha Washington, man, and every day George would come home, she would have a big fat bowl waiting for him, man, when he come in the door, man, she was a hip, hip, hip lady, man.” And, of course, George had guns. So does that mean the federal law making it a felony to be an “unlawful user of” a controlled substance and possess a firearm is unconstitutional due to “history and tradition”? Eighth Circuit: No, because in this facial challenge we have to think of how the mentally ill were treated in George Washington’s time. Concurrence: This history stuff is kind of unnecessary.
Fresno man high on meth is jumping in and out of traffic. Police restrain him and, at paramedic’s direction, place pressure on the prone man while securing him to a backboard to transport him to hospital. Once they turn the man on his back, they find he has no pulse, and he’s pronounced dead. Ninth Circuit: Not clearly established that police can’t follow paramedic’s directions, or that a paramedic can violate the Fourth Amendment by giving (even negligent) medical care. Qualified immunity. Partial dissent: Law was very clearly established on police asphyxiating a suspect on his stomach, and the fact that somebody else gave directions doesn’t change that.
Seattle man attends abortion rally and LGBTQ-pride event and tries to read Bible passages to attendees, who respond with physical and verbal abuse. Police arrest … the man? ::record scratch:: Seattle: And we’d do it again! Ninth Circuit: Heckler’s vetoes are not just uncool, they are (substantially likely to be) a First Amendment violation. Give this guy a preliminary injunction.
Normally, police violate the Fourth Amendment if they extend a traffic stop to ask questions unrelated to handling the matter. Ninth Circuit: But police can, for their safety, extend stops to ask about a driver’s parole status—just as they can run a criminal history check during a traffic stop. Motion to suppress driver’s illegal gun possession denied.
In another Ninth Circuit parolee case, an officer forces a parolee to unlock his phone with his thumbprint, so that the officer can look for evidence of drug dealing—which he finds. Ninth Circuit: Parolee’s motion to suppress evidence denied. Compelled thumb use did not violate the Fourth Amendment because parolees subject themselves to broad warrantless searches in exchange for limited freedom. Nor did it violate the Fifth Amendment right to not testify against oneself because thumbs can’t testify.
In a spat between competing manufacturers of skid-steer attachments, one accuses the other of falsely claiming that its attachments are made in America when some of the components come from China and Canada. Tenth Circuit: To recover under the Lanham Act, Plaintiff had to show the statements were unambiguous and literally false. But “Made in America” can mean lots of things, including assembled in America. (Ed.: And if you’ve read I, Pencil, you’d know that a strict interpretation of “Made in America” is impossible for even the simplest consumer goods.)
Citizen journalist films outside Artesia, N.M. refinery from a public sidewalk and is arrested when he declines to provide ID to officers. Tenth Circuit: No qualified immunity. To arrest someone for that, you have to reasonably suspect them of some underlying crime and no reasonable officer would have thought he was disorderly, trespassing, loitering, or doing terrorism. Dissent: Could have been a trespass; an officer might have reasonably, if mistakenly, thought the sidewalk was private.
And in en banc news, the Fifth Circuit, by a 9-8 vote, will not reconsider its decision that the 1935 SCOTUS case Humphrey’s Executor is still good law. Concurrence: Although I can’t quite sign on to it, the dissental means that “this cert petition writes itself.”
And in more en banc news, the Fifth Circuit will not reconsider its decision that Texas’s READER Act, which requires any bookstore or other vendor selling to public school libraries to rate its materials according to their “sexually explicit” and “sexually relevant” content, violates the First Amendment. Eight judges voted in favor of rehearing, with five judges, led by Judge Ho, publishing a dissent from denial.
And in further en banc news, the Fifth Circuit will not reconsider its one-sentence order denying a mandamus request filed by SpaceX, seeking to transfer its lawsuit against the NLRB back to Texas. Eight judges voted in favor of rehearing, with Judge Edith Jones, joined by five other judges, dissenting from denial (and attaching Judge Elrod’s original panel dissent for good measure).
And in additional en banc news, the Ninth Circuit will not reconsider its unpublished decision that conveying information through language and graphics is not protected as speech if the government calls it conduct. (This is an IJ case.)
Do you enjoy reading this humble newsletter? If so, maybe the right thing to do with your life is to apply to work for the Institute for Justice. We are currently hiring litigation attorneys with 3–6 years of experience, give or take, for our Arlington, Va. and Austin, Tex. offices. We are hiring baby lawyers for fellowships and law students for clerkships. And we are hiring nonlawyers to do things like empirical research and coalition building and paralegaling. All of these opportunities are enumerated at ij.org/careers. We might be right for you. And you might be right for us.
With our strength combined, we will overcome any challenge.
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