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.

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The day draws near for IJ's upcoming conference "The Other Declarations of 1776." As part of the nationwide celebration of 250 Years of America, we're partnering with the Liberty & Law Center at Scalia Law School for an examination of the various declarations of rights that the new states adopted in 1776. It's Friday, April 10 in Arlington, Va. You can still register here! And, if you want to learn more about those Other Declarations in the meantime, check out our series of blog posts, covering Virginia, Pennsylvania, Maryland, Delaware, and, new this week, North Carolina.

New on the Short Circuit podcast: A certification request from the Eleventh Circuit to the Alabama Supreme Court radicalized IJ's Mike Greenberg into Erie abolitionism.

1. If you like comparing the EPA to the DMV then you'll love how the D.C. Circuit disapproved of the feds delegating endangered species compliance to the state of Florida. Well, you'll love the lead opinion. The concurrence only joins in part and takes issue with the DMV hypo while the dissent bequeaths an "in-the-weeds discussion of various overlapping environmental laws."
2. Sometimes you can tell the clerk judge had a fun time writing an opinion. Such as this First Circuit decision. A sample of the literature: "Meet the Ponzo brothers, Chris and Joe . . . How the Ponzos became crooks and what they want from us is kind of a long story. But here's the short version . . . Life was good for the millionaire brothers. But the government eventually caught on."
3. From the annals of "litigation takes a long time": Eleven American families filed suit in 2004 against the Palestine Liberation Organization and the Palestinian Authority for the Second Intifada terror attacks in Israel. In 2015, a jury sides with the families and they're awarded $655 mil. Second Circuit (2016): Federal courts lack personal jurisdiction over the Palestinian groups for these claims. Congress (2018): Jurisdiction exists if certain requirements are met. Second Circuit (2019): Those requirements aren't met. Congress (2019): What we said before but more. Second Circuit (2023): That violates due process. SCOTUS (2025): It does not. Second Circuit (2026): Okay fine, we recall our mandate from our first go at the case and affirm the judgment and jury award.
4. New York state prisoner arrives at a new facility with too much luggage. The extra items are legal materials he claims he has permission for. A fight ensues with prison staff which leads to disciplinary action which requires more legal materials and evidence. Which the prison denies. He's then sentenced to months of restricted confinement. Gov: There's no liberty interest here. Second Circuit: The conditions were "atypical" so there is and his due process claim can go forward.
5. Trainspotting offers one pathway to giving up addiction. Some prison authorities offer another. But if you're in one of their opioid-addiction programs and you're given alternative, safer opioids, then it's best to not be suspected of dealing those alternatives to other prisoners. If subsequent punishment leads to you going into withdrawal, the Third Circuit tells us it is not an Eighth Amendment violation.
6. Wherein the Third Circuit admonishes and sanctions an attorney in a case where the attorney's client went up against the DEA. The hallucinations at issue are not the DEA's standard fare (whether of drugs themselves or of federal drug policy) but of the AI-induced variety. Things might have gone better had the attorney not doubled down.
7. From the annals of "litigation takes a long time": Angola, Louisiana's notorious prison once dubbed the worst in America, saw multiple preventable deaths as a result of medical care failures, following unheeded or very belatedly heeded complaints. Inmates sued in 2015, it went to trial in 2018, and the district court entered a liability opinion in 2021 with extensive findings of Eighth Amendment violations, followed in 2023 with a remedial opinion that, among other things, established special masters for overseeing ordered improvements. Fifth Circuit (en banc) (over a dissent): Congress enacted the Prison Litigation Reform Act to rein in "judicial adventurism," and federal courts must "maintain a delicate balance among the prerogatives of public institutions, the demands of federalism, and the judiciary's limited remedial role." The remedial order doesn't do that.
8. Texas pretrial detainee gives birth alone in her cell two weeks before she's due; the baby doesn't make it. The jail's medical director didn't read an email that indicated the detainee had refused breakfast and was experiencing abdominal cramps that morning. Fifth Circuit: Qualified immunity. He didn't see the email, how was he to know?
9. Business owner slapped with a $130k restitution order in FINRA and SEC proceedings argues that the Supreme Court's 2024 decision in Jarkesy entitles him to a jury trial in an Article III court. Sixth Circuit: He forfeited that argument by failing to raise it before the SEC. Nevertheless, for the following reasons discussed over several pages, his arguments are strong . . . if only we were able to reach them. Petition for review denied.
10. You'll learn from the Sixth Circuit that there are long-running disputes over when and where the first Kentucky bourbon was distilled. The arguments over "when" are narrower regarding the first bourbon distilled by an African American-owned distiller. That's because the year is either 2018 or 2020, not long before one contender sued the other for false advertising regarding its firstness under the Lanham Act.
11. In further AI-hallucination news, the Seventh Circuit admonished—but did not sanction—an attorney who included two nonexistent sources in a brief. In her favor, she claimed she did not use AI herself (she apparently copied language from a different brief), and she apologized profusely when the court called the errors to her attention. Further, of relevance to litigators everywhere: The court cast shade on opposing counsel for not catching the errors themselves.
12. Police enter home and arrest a Wisconsin man based on a felony "want"—a type of alert issued by a law enforcement officer saying she believes there's enough evidence for a warrant, but without a judge actually approving one. Seventh Circuit: No matter how much you may want it otherwise, the Fourth Amendment says warrants—and a warrant requires sign-off from a "neutral and detached magistrate." Man's claim for unconstitutional entry into home may proceed. (Ed.: Federal agencies famously active in the Seventh Circuit's largest city may care to take note that warrants must come from a judge.)
13. Those teaching fed courts next term may be interested in a run-of-the-mill adverse-possession squabble over land in Champaign, Ill. that was removed to federal court. District court: I'll keep the issue over subpoenaing Dept. of Ag. officials as witnesses but remand the underlying dispute over building a garage. Seventh Circuit: Affirmed. Just because Congress passed a law in 1785 concerning the land where the properties are does not federal jurisdiction make.
14. Jury finds St. Louis city employee was unconstitutionally fired in violation of the First Amendment because she reported corruption at the city tow lot where employees were more-or-less stealing nicer cars. Eighth Circuit: Defendant forfeited qualified immunity defense by not meaningfully raising it until post-briefing 28(j) letters. Also, as you would have learned from watching Liar, Liar, "the federal rules of evidence do not offer protection against evidence that is prejudicial in the sense that it is detrimental to a party's case."
15. Come for the Eighth Circuit upholding a P.I. enjoining an Arkansas rule requiring a "wet signature" to register to vote. Stay for the dissent chronicling the centuries-long march from a wax-seal-based system of proving authenticity to a written-signature one.
16. According to its text, the Eleventh Amendment prevents suits against states in federal court by people from other states or countries. According to the courts, it prevents all kinds of other stuff. The Eighth Circuit says you can now add to that list third-party discovery propounded by the estate of a mentally ill man whose death may have been made more likely by sending in a state-owned light-armored vehicle.
17. During protests in Southern California against ICE tactics in summer 2025, journalists get caught in the pepper-ball crossfire. Press organizations obtain a P.I. against the feds to prevent methods where sometimes "officers issued no warnings and shot individuals who posed no threat." Ninth Circuit: With the Boston Tea Party as prologue, we agree that the plaintiffs are likely to end up victorious. But the injunction's too much; remand to redraw.
18. Allegation: Tulsa police officer shoots dead a non-threatening, mentally ill (or high) man who had his hands raised. District court: Right but show me a prior case that says an officer can't shoot a non-threatening, mentally ill (or high) suspect who was in an open space and slowly walking away from an officer toward a parked car while ignoring commands to kneel and then lowered one arm when he got close to the car door. Qualified immunity. Tenth Circuit: Reversed. We're not sure he lowered his arm, and anyway the prior case on point doesn't have to be that on point.
19. Atlanta police officer's already choppy relationship with his superiors (he previously accused them of racial discrimination) doesn't improve after he reports them for downgrading traffic tickets issued to the former mayor's grandson. One week later, the officer learns his flexible shift schedule, a privilege that he's relied on for years, will now be "fixed." He sues alleging, inter alia, First Amendment retaliation. The district court granted summary judgment for the city on all claims. Eleventh Circuit: Mostly affirmed, but a jury could find the officer's superiors had a retaliatory motive for pulling his flexible schedule, in which case they would not be entitled to QI. To a jury it goes. Affirmed in part, reversed in part, and remanded.
20. Medically complex Florida children need skilled nursing to stay out of pediatric nursing homes, but nearly 94% of them receive fewer hours than authorized. In 2013, DOJ sued, alleging discrimination under the ADA. Eleventh Circuit: The feds can sue on behalf of all affected kids, not just the one who filed an administrative complaint; risk of institutionalization (not just actual institutionalization) gives rise to Title II claims, joining six circuits over the Fifth; and system-wide injunction based on widespread violations affirmed in the main. Dissent: That overstates the circuit split and, regardless, we're on the wrong side of it.
21. And in en banc news, the Ninth Circuit will not reconsider (but did amend) its decision holding that the Mandatory Victims Restitution Act allows the garnishment of funds in an inmate's trust account coming from gradual accumulations from family and friends.
22. And in cert denial news: For nearly 20 years, a Midland County, Tex. prosecutor was arguing to put people in jail by day while secretly working as paid law clerk for the county's judges at night, drafting rulings in favor of the prosecution, including in his own cases. Per the Fifth Circuit, that's "utterly bonkers," but also not something IJ client Erma Wilson, who was wrongly convicted, can bring a civil rights claim about. This week, SCOTUS declined to take up the case. What the Heck.

Victory! On Tuesday a federal court ruled that the town of Parksley, Va., and a city councilman violated the Fourth Amendment when the councilman cut a water pipe running from the Eben-Ezer Food Truck, causing more than a thousand dollars in food spoilage and damages. The court also found the violation was so outrageous that it denied qualified immunity. The food truck's owners, Theslet Benoir and Clemene Bastien, teamed up with the Institute for Justice (IJ) to sue in January 2024, after the councilman repeatedly harassed them, cut the pipe, and, according to Theslet and Clemene, told them to "go back to your own country."

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