A non-exhaustive weekly collection of decisions from the Federal Courts of Appeal

Please enjoy the latest edition of Short circuita weekly article written by a group of people from the Institute for Justice.

New case! In 2021, Maine voters approved a constitutional amendment, the first in the nation, that protects a robust individual “right to food.” And yet! Officials in Calais, Maine (population about 3,000) recently banned most residents from having chicken coops in their backyards, which is a real kick in the teeth for IJ clients Kamiwan and Paul Oliver, who rely on their meticulously maintained chicken coop to feed their family of five. So last month, IJ and the Olivers filed a lawsuit to protect the state’s new protections for the right to food. Click here to find out more.

New podcast! Live short circuit at UNC Law: An Arbitrary and Capricious Overview of the Supreme Court with Sheldon Gilbert.

1. Robbers steal guns, drugs and cash from New York hideout; the getaway driver does not recover any of the loot before being arrested. The driver is then convicted of grand theft under the Hobbs Act and ordered to forfeit $10,000 based on a proportionate share of what was stolen. He is challenging the confiscation order, arguing the Supreme Court’s 2017 decision in the case honey cup limits confiscation to property that he has actually acquired. Second Circuit: Of course (deepening a circuit division) – and he gained nothing. Confiscation order quashed.
2. Were prison officials deliberately indifferent to a Connecticut inmate’s severe gender dysphoria? Second Circuit: There was legitimate medical disagreement over appropriate treatment, so they have qualified immunity. Dissent: Not during the 13 months of doing nothing, during which the inmate attempted to self-castrate.
3. If you were worried that the Telephone Consumer Protection Act’s ban on robocalls would prevent government officials from contacting you about public health resources, job opportunities, and upcoming events, fear not! THE Third Circuit says officials can send you an unlimited number.
4. While home sick, an employee receives an urgent message from work (a debt collection company menacingly called NRA Group) informing him that the company must renew its license that day or face dire consequences. She shares her password and access information with a friend at work, which allows renewal, but also violates workplace data security policies. In unrelated matters, she later resigned and threatened to sue for sexual harassment. The friend is fired for violating policies. The NRA is suing both for violating the Computer Fraud and Abuse Act. They both filed a counterclaim alleging sexual harassment and retaliation. District Court: Some counterclaims can be advanced, but not CFAA claims. Third Circuit: Affirmed. Calling a friend at work and giving her your password so she can achieve her professional goals is not a federal crime.
5. Allegations: Pennsylvania inmate collapses and is paralyzed from the chest down. The prison authorities force him to drag himself and leave him immobile so that he is forced to urinate on himself. (There are other bad things, too.) Does he have a claim under the 8th Amendment, the Americans with Disabilities Act, or the Rehabilitation Act? Third Circuit: Most likely. The district court should not have denied his requests.
6. Defendant: No, no, you don’t understand. It was not racist violence. This was regular violence against minorities from a man who, yes, had used racist slurs and who had a historical interest among the Nazis and the KKK. Fourth Circuit: Affirmed conviction.
7. The company says it will pay bail bonds (averaging $7.5,000) for detained immigrants. The monthly payments ostensibly pay off the bond, but that’s not the case because the company contracts with a real bail bond company to get the bond and then just collects money from immigrants and their families. The CFPB and three states file complaints over these misdeeds; the company, dissatisfied, refuses to respond to the court’s discovery requests and orders. District Court: Sanctions mean default judgment and final judgment means injunction + nine-figure cash sum. Fourth Circuit: Cool.
8. You may recall from studying law that the rational basis test is a toothless nullity under which the government must always win. You may remember the IJ victories (like the one we told you about it in last week’s Short Circuit), that the rational basis test is a real standard by which heroic litigants can achieve real victories for liberty. Regardless, those looking for more evidence of the “truly standard” view of the test might benefit. Fifth Circuit notice rescinding certain New Orleans restrictions on short-term rentals.
9. The “cat’s paw doctrine” of liability, coined by Judge Posner and later adopted by SCOTUS, provides relief against employers who, although ostensibly neutral, actually adopt an employee’s discriminatory animus when making an adverse employment decision (against another employee). Fifth Circuit: That’s all well and good, but you can’t sue a city on that theory. This is just one reason why this $5 million reward for the former city manager of Hutto, Texas, cannot stand.
10. A man handing out leaflets about Christian vegetarianism on the sidewalk is threatened with arrest, fired by cops and private security guards in Bossier City, Louisiana. A second person, who distributes sales flyers, is not. Fifth Circuit (three opinions): QI for cops/guards but cold case against city, whose officers “received literally no training” on the First Amendment.
11. Short Circuit readers who are very interested in third-party objections to class action certification should read this Sixth Circuit notice. Everyone besides these three (hi guys) should read Judge Kethledge’s concurring commentary. paean to justice, the protection of property rights and a legal system that too often fails to deliver on both.
12. SWAT officers break down the family’s South Bend, Indiana home, fire tear gas, tear holes in walls, break windows, destroy internal security cameras, and more. Yeah ! This is an innocent family; the wanted police suspects had never entered the house. Seventh Circuit: We are bound by circuit precedent say that it was not an expropriation requiring simple compensation. (Ed.: It’s an IJ affair. And we are bound by oath to refer you to this lovingly crafted document podcast episode on our nation’s long history and tradition of making property owners whole when their property is destroyed for public purposes.)
13. The owner of a digital marketing company is suing the owner of a San Diego takeout pizza business following a “series of strange exchanges” involving alleged racial slurs and bad behavior toward a disabled dog. The pizza maker files a counter-complaint alleging that the marketing company orchestrated more than 100 defamatory false reviews about the pizzeria. The marketing company moves to withdraw its 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 are overturning an older case that said otherwise. Interlocutory appeal dismissed for lack of jurisdiction and case dismissed.
14. ICE agent escorting passenger from Dallas to Miami takes upskirt photos and videos of flight attendant. He was convicted of interference with flight crew duties and sentenced to two years of probation. Agent: I didn’t know she knew about my “clandestine video voyeurism”, and that is an element of the crime. Eleventh Circuit (unpublished): This is not the case.
15. And in recent news, the Fifth Circuit will reconsider his decision granting a preliminary injunction against a Louisiana law that requires the Ten Commandments to be posted in every classroom. But is the court more interested in the argument that the plaintiffs lack standing or that such demonstrations are constitutional? Only time will tell.
16. And in the latest news, the Sixth Circuit will not reconsider decision that the First Amendment has nothing to say about Michigan’s ban on drone hunting, although Justice Bush’s separate statement on the case suggests that it would be very interesting for the Supreme Court to tell us how it thinks some of these things should work.
17. And in explosive news, the Eleventh Circuit will reconsider what your humble summaries have presciently described as being “obviously false“line of decisions violating the federal rule of appellate procedure 4. The case of “Herr Doktor Rev. Professor Blind Burt Ph.4KUltaHD, Department of Loser Studies, Pharmacology and Cosmic Criticism” is hanging by a thread!

Victory! In 2019, drug enforcement agents in Harris County, Texas, seized the savings of Ameal Woods and Jordan Davis during a traffic stop — more than $41,000 in cash that the Mississippi couple intended to spend on used trucking equipment. And although a jury later rejected the state’s contention that the money was the proceeds of a 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 the five specific drugs mentioned in the statute). But the State has produced no evidence linking Ameal, Jordan or the money to any drugs, and we are pleased to report that this week a Court of Appeals of Texas inverted and rendered. In the humble opinion of the editorial staff, this decision constitutes a historic turning point, reviving a half-century-old line of SCOTX decisions which imposed on the government a heavy and real burden of confiscation of property. Click here to find out more.