Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: An IJ victory for free speech over licensing.

1. Another week, another First Circuit decision denying a Trump Administration emergency motion to stay an injunction against dismantling a federal agency (here, four sub-agencies of HHS). Does this presage another trip to One First Street?
2. By statute, Congress gives the President discretion both to parole immigrants into the country on a case-by-case basis and to terminate that parole. Biden Administration had a program that paroled in about 532,000 people from Cuba, Haiti, Nicaragua, and Venezuela for humanitarian purposes. Trump Administration revokes that parole en masse. Paroled immigrants sue and win a stay of that revocation in district court. First Circuit: Gov’t by executive fiat cuts both ways. Stay vacated.
3. Police follow a car with a broken headlight and taillight. When driver refuses to exit and resists officers’ efforts to pull him out, police punch and tase him to get him out of car. Driver sues. First Circuit: Quickly escalating to punching and tasing without giving some time for driver to respond to lesser efforts crosses the line into being unreasonable and violates Fourth Amendment. But prior case law was sufficiently murky that officer gets qualified immunity.
4. “I wish that my son will grow up to be a legend in his chosen field.” [Finger on monkey’s paw curls.] First Circuit: This legendary dogfighting trainer’s seven-year sentence for animal cruelty is affirmed.
5. Traders bring anti-trust claims, alleging that Lloyds, Barclays, RBS, and others conspired to rig LIBOR. Second Circuit: Yeah, well, rates go up, rates go down. Do you have an injury?
6. If you are a drug dealer texting other drug dealers, maybe don’t consent to a search of your phone? (The Third Circuit is not going to care if you asked for a lawyer first.)
7. In August 1978, five teenage boys disappeared in Newark, N.J., never to be found. Thirty years later, an Essex County cold-case unit secures a statement from a man who implicates his cousin in locking the five boys in a house and burning it to the ground. The alleged arsonist is arrested and tried for murder. And acquitted. Twist: His cousin later recants and avers that his inculpatory statement was coerced, false, and wholly concocted by two detectives. Qualified immunity for the malicious-prosecution claim that ensues? Third Circuit: Decidedly not. To trial the case must go.
8. Thief stole 69 guns from gun stores—but says the restitution order stole from him, charging double for the same guns. Third Circuit: Agreed. Restitution can cover the guns’ value but not lost sales on top. Victims get made whole, not paid twice.
9. The 1870s weren’t a great time for voting laws in North Carolina, featuring, among other innovations, a (maybe?) strict liability statute making it a crime for felons to vote. North Carolina: Yes, that original statute was shot through with racial animus. But we tweaked the predicate state constitutional provision in 1971, so the statute isn’t racist anymore! Fourth Circuit: Yet you didn’t amend the actual statute being challenged. The equal-protection taint remains unpurged. (And in a sign of great personal growth, your summarists will resist the urge to sigh resignedly at the presence of footnote seven.)
10. Man under state felony indictment in Arizona travels to Maryland with a pistol, where he is arrested and federally charged with illegally transporting a gun across state lines. He argues that the charge violates his Second Amendment rights. Fourth Circuit: The Second Amendment applies to his actions, and a lot of the gov’t’s arguments are bunk, but disarming people under indictment isn’t all that different from having them post a bond, so there’s a historical precedent.
11. During a roadside stop in Harris County, Tex., officer smells pot, calls for backup, and orders the driver out of the car. Instead, driver starts the engine and begins moving. Officer jumps on the hood and then shoots and kills the driver. Fifth Circuit (2024): Our hands are tied by our precedent. We thus rule in favor of the officer. SCOTUS (2025): Your precedent was wrong. Consider the totality of the circumstances. Fifth Circuit (2025): We agree, but the officer still wins.
12. Allegation: Mentally ill Nashville woman calls police and asks them to come shoot her. The police come, tase her after a few minutes because the situation “wasn’t going anywhere,” and then do, in fact, shoot her. Qualified immunity? That’s gonna be a no, holds the Sixth Circuit.
13. The First Amendment provides a qualified right of access to the gov’t’s adjudicatory proceedings, says the Sixth Circuit, but no right at all to access non-adjudicatory proceedings, even when those non-adjudicatory proceedings are run by judges.
14. Transgender professor at Kent State alleges that they were discriminated against because the university did not select them to lead its Center for the Study of Gender and Sexuality and denied the professor’s request to transfer to a different campus. Sixth Circuit: Seems like, if they discriminated against the professor at all, it was because of the professor’s extensive, profanity-filled public tirades against their colleagues and the university.
15. Lawful permanent residents are allowed to make contributions and expenditures in federal elections but are prohibited from doing so in Ohio state elections. They challenge the Ohio law as a First Amendment violation, and the district court grants a preliminary injunction. An earlier Sixth Circuit panel stays the injunction. Sixth Circuit (per curiam): And now we hold plaintiffs are unlikely to win, for largely the same reason the last panel articulated. Concurrence (by two judges): We’d like to add that strict scrutiny is a mess! And the Privileges or Immunities Clause would help out a lot in cases like this. Dissent: This law violates the First Amendment.
16. If the first paragraph of an opinion tells you the defendant has used either crack or heroin every day for 20 years, such as in this one from the Seventh Circuit, it’s a good signal that his Second Amendment challenge to the federal law making it a crime for users of illegal drugs to have guns will fail.
17. Eighth Circuit (over a dissent): We have held several times that officers cannot use more than minimal force against a person who is neither suspected of a serious crime nor threatening anybody nor resisting arrest, which means there is no qualified immunity for the officers who caused permanent nerve damage to a guy who was neither suspected of a serious crime nor threatening anybody nor resisting arrest. (IJ urged this result in a salubrious amicus brief.)
18. In which the Eighth Circuit grants qualified immunity to two officers who were bamboozled into letting blackguards bogart a bloke’s bike.
19. Naifs in the audience might assume that this Ninth Circuit case asking whether Washington state medical regulators can punish a doctor for writing a newspaper column will be about the First Amendment, but loyal Short Circuit heads have already guessed it’s about Younger abstention.
20. In May, the Supreme Court stayed a preliminary district-court order delaying the revocation of the Temporary Protective Status of certain Venezuelan immigrants. Gov’t: And the Supreme Court’s earlier stay means we should get an emergency stay after the district court ruled against us on the merits! Ninth Circuit: We’re not totally sure that one-paragraph stay means much of anything, so we’re just going to do law stuff and see what happens.
21. Nonprofits challenge provisions of the 2023 Arizona Elections Procedures Manual. One requires the Secretary of State to omit the vote totals of counties that do not certify their totals by a certain deadline following the election, the other purports to summarize the state’s voter intimidation laws. Ninth Circuit: No standing to challenge the vote-counting provision because there’s no way to know when or if it will apply to anyone. But the voter-intimidation provisions are too speech-y, so they’re enjoined.
22. This Tenth Circuit opinion holds that a case challenging a visa denial is mooted when the plaintiff gets a visa, but it also has a nice little discussion of when mootness at the en-banc stage requires vacatur of the panel opinion under Munsingwear, if that’s your kind of thing. (If you didn’t understand the end of that sentence, it’s not your kind of thing, and that’s probably a good life choice.)
23. Public school ends multi-million-dollar contract with veggie farmer after he blasted COVID-19 and Black Lives Matter as “hoaxes” duping “lemmings.” Farmer claims speech retaliation; school cites food-safety worries. Eleventh Circuit: the school acted to protect kids’ lunches, not punish speech.
24. And from the Court of Appeals for the Armed Forces we have a Brady violation (the rule that prosecutors must turn over potentially exculpatory evidence) in a case involving cocaine, Fourth of July parties, roommates, workout supplements, and false positives.

The Marshall family has owned property and passed it down in the East End of Freeport since 1940. Historically, this was because of redlining laws. Now their ownership is a symbol of resiliency and resolve. The Port of Freeport, however, wanted to take it via eminent domain. Do you know why? Neither did the Port! It just wanted to take the land and figure it out later. That’s not enough under the Constitution and under Texas law. So IJ teamed up with the family and this week the Texas Court of Appeals agreed. “Private property cannot be imperiled with such nonchalance.”

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