Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

The Volokh Conspiracy Mostly law professors | Sometimes contrarian | Often libertarian | Always independent Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal Soccer hooligans, sticky fingers at the FBI, and juries for the HHS. Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. Cert granted! This week, SCOTUS took up IJ case Hoffman v. WBI Energy Transportation, which pits North Dakota ranchers against a private pipeline company that wants to run roughshod over state-law protections for private property. Click here to learn more. New on the Bound By Oath podcast: In 1960, the Supreme Court ignored text, history, and tradition and disfigured the Fourth Amendment, allowing warrants to issue based on hearsay. Which was bad and wrong, and the Court can fix it right now. - Puerto Rico puts over $2 mil in a court-controlled, interest-bearing account to pay for land condemnations. Before disbursing, the judiciary takes a 15 percent cut of the accrued interest. An unconstitutional taking? First Circuit: Doesn't seem like it. - An IRS official who wants to assess a tax penalty must obtain written approval from his immediate supervisor—but, surely, the IRS says, that requirement can't apply if a taxpayer's liability has already been conclusively adjudicated, right? I mean, we're not going to have some middle manager sign off on whether a court got it right, are we? C'mon, guys. Right? Second Circuit: Rules is rules. - Following the worst measles outbreak in the United States in 25 years, New York repealed its religious exemption for mandatory student vaccination. Amish schools and community members sue, alleging the law violates their Free Exercise rights and their right to control the religious upbringing of their children. Second Circuit (2025): Nope. Supreme Court: Take another look in light of Mahmoud v. Taylor. Second Circuit (2026): Still nope. - Fourth Circuit (2-1): The Trump Administration probably violated the due process rights of 19 career intelligence officers (who'd been doing the DEI) when it fired them without considering alternative positions for them or allowing them to appeal internally. PI affirmed. - Houston officer lies on no-knock warrant application, raids home of couple who are not drug dealers but are gun owners. Officers don't wear body cams into the house; officers outside the house don't activate their cams until the raid is underway or over. Five officers are shot, as many as four by friendly fire. Qualified immunity for the officer who shot husband and wife dead? District court: No, there are disputed facts. To a jury this must go. Fifth Circuit: Tragic. Harrowing. Reversed. We don't second-guess officers in a gunfight. - SEC: Our in-house staff can be prosecutor, judge, and factfinder in assessing fines. Supreme Court (2023): No dice, the Seventh Amendment guarantees a jury in a real court to impose civil penalties. HHS: But surely that rule doesn't apply to us (with respect to fining a vaping company). Fifth Circuit (over a dissent): Surely does. - Without a court order, Mariemont, Ohio officers push their way into condo, evict septuagenarian who had lived there for years—at the behest of the recently deceased condo owner's nephew. Yikes! The nephew wasn't on the up and up. Sixth Circuit (over a dissent): Actively participating in an eviction without any legal basis violates the Fourth Amendment. No qualified immunity. - A gang of soccer hooligans in Serbia called "The Red Devils" beat up a player over dissatisfaction with his performance on the pitch. After he gets out of the hospital, they threaten that the beatings will continue until his play improves. Instead, he flees to the U.S. and files for asylum based on his status as a professional soccer player. Seventh Circuit: That's not exactly the kind of "social group" the asylum laws are meant to protect. - FBI searches drug dealer's home and seizes $585k in cash from a safe. Yikes! Sticky-fingered agent pockets $218k and spends it on "cars, a Vegas trip, and plastic surgery for his wife." Dealer agrees to forfeit remaining cash but seeks return of what was stolen. Ninth Circuit: Fair enough; he might not be seeking return of the exact same bills, but money is fungible. Dissent: That money is long gone, so this is really like seeking damages and barred by sovereign immunity. - You'll be reminded in Footnote 7 of this Ninth Circuit preemption case that, unlike in most other tribunals, if you ask that court to take judicial notice of something it's best to file a separate motion explicitly asking for said notice. You'll also be reminded that smog is bad in southern California and (over a dissent) that federal law does not preempt new rules that are bad for sellers of gas water heaters. - Congress reformed the immigration removal system three decades ago, allowing some—but not all—aliens to be released on bond pending their hearing. A regulation issued soon after explaining that bond was available only for people already within the U.S., not for those arriving at the border. The feds reversed course last summer; now, no bond for any aliens. Cool? Fifth, Eighth circuits: Yup. Second, Sixth, Eleventh, and now Tenth Circuit: No. (With cases pending at the First, Third, Fourth, Seventh, and Ninth circuits.) - Utah's legislative sessions are open to the public, but it provides additional access to credentialed journalists, such as entry to a press room and secure areas of the capitol. The credentialing policy categorically excludes journalists associated with blogs, independent media, or other freelance media. A former newspaper journalist with 25 years' experience—now running an independent news organization—challenges his credential denial. Tenth Circuit: And it looks like he may have been denied because of his news stories' viewpoints. Case un-dismissed! - Okaloosa County, Fla. officers raid home, force suspect's girlfriend out of the house in the nude. She's given insufficient material to cover herself and is in view of male officers and her minor children for nearly 40 minutes. Eleventh Circuit (unpublished): A jury might find she was prevented from dressing for longer than necessary. - And in en banc news, the Second Circuit will not reconsider its decision that New York state judges have absolute judicial immunity for rulings denying concealed-carry licenses. Six judges dissent from denial, arguing that placing licensing authority in the hands of judges would then seem to be a pretty convenient way to shield it from constitutional attack. New on the Short Circuit podcast: Happy America at 250! On a special episode, two IJ Brits reflect on how 1776 led to judicial review.