Short Circuit: A Roundup of Recent Federal Court Decisions

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 2023, South Carolina enacted a law providing $6,000 education scholarship accounts for low-income families to be used for a virtually unlimited number of education expenses: textbooks, tutoring, homeschool materials, therapies, and tuition and fees at private and out-of-district public schools. But in response to a recent state supreme court ruling, officials have barred families from using the ESAs for private school tuition. So this week, IJ filed a petition in the South Carolina Supreme Court, arguing that the new policy falls afoul of two bedrock, towering, and monumental U.S. Supreme Court cases: Meyer v. Nebraska, which recognized the right of parents to direct the education of their children; and Pierce v. Society of Sisters, which held that this right includes the right to send one's children to a private school. Click here to learn more.

New on the Short Circuit podcast: Chicago attorney Patrick Eckler joins the podcast to share a trainwreck of a Seventh Circuit oral argument.

1. Concerned that China is collecting information on American citizens and covertly influencing them through the social media app TikTok, the United States enacts the "Protecting Americans' Data from Foreign Adversaries Act of 2024," which prohibits data brokers from transferring information on U.S. residents to any entity "controlled by a foreign adversary." TikTok and content creators sue, alleging the law violates the First Amendment. D.C. Circuit: This is the rare law that survives strict scrutiny. Concurrence: We don't have to go that far because it is only subject to intermediate scrutiny.
2. Convicted felons challenge their disenfranchisement under Virginia law, alleging that it violates the Virginia Readmission Act, an 1870 federal statute that allowed Virginia to regain its representation in Congress after the Civil War. Virginia officials: We have sovereign immunity, and Ex parte Young doesn't apply to this kind of case. Fourth Circuit: Can you point to any case holding that Ex parte Young is limited in that way? Virginia officials: Nope. Fourth Circuit: Then there's no sovereign immunity.
3. What does it sound like when the genteel Fourth Circuit is mad as hell? "We deal here with the unfortunate instance of a district court failing to follow our clear mandate to dismiss the state law claims against the school officials in this case." So says the court in (re)granting state-law official immunity to North Carolina public school officials who failed to intervene when an elementary school teacher abused an autistic first grader, reaffirming its prior 2022 ruling and emphasizing: "We meant what we said the first time."
4. A tragic case arising from a Baltimore County, Md. jail suicide reaches the Fourth Circuit in its third interlocutory appeal. But this decision isn't on the merits, instead addressing whether this third trip was premature. It was, because the district court still hasn't fully resolved the motion for reconsideration that is the subject of the appeal. Appeal stayed until the district court finishes up. (And check out footnote 3 for a lowkey creation of a circuit split.)
5. Texas wants to string concertina wire along part of its border with Mexico, but the U.S. Border Patrol keeps removing it. So Texas sues to stop them and for a preliminary injunction. Fifth Circuit (over a dissent): Which we grant. The feds are enjoined from removing the wire fencing except in instances where they lack the necessary access to both sides of the fence for immigration law enforcement and emergency purposes.
6. "Two households, both alike in dignity, in fair Gary, Indiana, where we lay our scene." Hard to credit, we know, but the Seventh Circuit resisted that opening line in this (concededly grim) opinion about two rival car washes (and possible fronts for drug dealing), which features one of the car-wash owners' being killed with an AK-47, a lot of disturbing chaos, and a life sentence affirmed. Also some stuff chiding the gov't for ignoring circuit precedent on standards of review.
7. This class-action lawsuit challenging the treatment of prisoners with gender dysphoria by the Illinois Department of Corrections takes a sharp turn towards the procedural in this Seventh Circuit opinion about whether the district court could retroactively change its preliminary injunction into a permanent one. Short answer: No. As for why it matters? Because, evidently, the Prison Litigation Reform Act provides that preliminary injunctions expire automatically 90 days after their issuance unless the district court makes certain findings about whether the injunction is narrowly tailored. Which the district court didn't do here.
8. Little Rock, Ark. detective obtains a no-knock warrant after informant makes cocaine purchase at plaintiff's home. A SWAT team barges in. Yikes! No cocaine. Turns out the informant might not have been on the up and up. Eighth Circuit: It's not clearly established that calling in SWAT when there is no need for SWAT violates the Constitution. Just like we said last time.
9. Allegation: During Kansas City, Mo. George Floyd protest, officer fires white smoke projectile rounds into unthreatening crowd and strikes plaintiff, permanently blinding him in one eye. Eighth Circuit: But the officer wasn't trying to single anyone out or intentionally trying to hurt anyone, so these constitutional claims fail.
10. Idaho criminalizes "abortion trafficking," which it defines as "procur[ing] an abortion" or an abortion drug for an unemancipated minor without her parents' consent "by recruiting, harboring, or transporting" the minor. District court: There's a lot wrong with that, preliminarily enjoined. Attorney General: I'm appealing, but only as to jurisdiction. Ninth Circuit: There's jurisdiction and the law is OK when it comes to "harboring, or transporting." But we'll keep things enjoined for the "recruiting." Concurrence: I thought all we were talking about was jurisdiction, and I don't see none.
11. Separately, Idaho penalizes doctors who "assist" with abortions. State legislator: Hey Attorney General, what's that mean? AG (on official letterhead): It includes referring a patient to someplace out of state where abortion is legal. Plaintiffs: That's a First Amendment violation. AG: You know, I get that my name was on that letter, but it was drafted by my assistant [who is now under a bus] and who cares what I think anyway, I'm just some guy, you know? Ninth Circuit: You're the state's chief law enforcement officer, and the law is enjoined.
12. While the loser in a Ninth Circuit decision seeks certiorari, the mandate issues and the case returns to the district court, where the parties agree to stay proceedings pending resolution of the cert petition. District court: No can do, with the mandate issued I must press forward to trial. Parties: Oh no! Would the Ninth Circuit please recall the mandate to get us out of this jam? Ninth Circuit: No, recalling the mandate is only "a power 'of last resort,'" and this was all foreseeable. But we never said the district court can't stay the case, so give that another go.
13. Several members of a Miami-based gang, including an individual with the prescient alias "The Real Rico," are convicted of doing the RICO (among other things). Was the lower court wrong to exclude an expert's testimony that the defendants were merely a "bunch of yahoos running around" rather than members of an organized criminal enterprise? Eleventh Circuit (over a partial dissent): Yep, and the gov't doesn't address whether the exclusion was harmless error. We are not combing through a nearly 8,000-page trial transcript to do so sua sponte. RICO convictions set aside and remanded.
14. And in en banc news, the Eighth Circuit will reconsider its decision that a Springfield, Mo. school district did not violate the First Amendment when it compelled employees to attend "equity training" where they were required to complete online quizzes parroting the district's views, even if they disagreed with them, and were told they were "wrong" and "confused" when they expressed opinions like "Kyle Rittenhouse acted in self-defense." The panel held that the plaintiffs' alleged self-censorship was based on fears that were too speculative to raise a First Amendment claim.
15. And in state court news, the North Carolina Court of Appeals has struck a blow for freedom and good sense, undismissing a bevy of state constitutional claims against a Jacksonville, N.C. ordinance that bans food trucks in 96 percent of the city and makes operating them in the other 4 percent needlessly difficult. City council members have openly said the purpose of the ban is to benefit restaurants, which is just the kind of impermissible preferential treatment that the North Carolina Constitution forbids. Three cheers for a rule of law that protects the right to earn an honest living! To the merits! (This is an IJ case.)

For years, the Pasco County, Fla.'s sheriff's office used a glorified Excel spreadsheet—an "algorithm" based on entirely arbitrary inputs—to identify people they thought were likely to commit future crimes (many of them kids). Then they subjected their families to relentless harassment in the express hope of forcing them to move out of the county. Deputies conducted suspicionless "checks," confronting people at home, including at night, peering in windows and banging on doors. They confronted people at work and harassed colleagues and friends. Officers manufactured bogus criminal charges and blitzed people with unwarranted civil citations. It was evil. (So much so that the inventor of the "focused deterrence" theory that officers—wrongly—thought they were applying volunteered to serve as our expert witness and was brought to tears by what these officers were doing, routinely, to kids.) But this week, after three years of litigation, and on the literal eve of trial, Pasco County Sheriff Chris Nocco threw in the towel. The county agrees with us that they violated the Constitution and has entered into a court-enforceable promise never to do anything like that again. If it does—or if some other department tries this kind of "predictive policing" elsewhere—we will nuke them into the sun. Click here to learn more.

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