Short Circuit: A Roundup of Recent Federal Appeals 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 cert petition: Does the Supreme Court want to overturn Kelo v. New London? We’re asking them to overturn Kelo v. New London. Swear to heck. Click here to learn more.

New on Unpublished Opinions, IJ’s roundtable podcast: Is a pun worth keeping if you have to explain it in a footnote? Plus, other weighty jurisprudential questions.

New on the Short Circuit podcast: UCLA’s Joanna Schwartz and Kasia Wolfkot of the Brennan Center talk with IJ’s Anya Bidwell about civil rights reforms at the state level.

1. Sometimes our creations escape our control—sometimes our monster pushes a little girl into a well or our dinosaurs eat the guy from Seinfeld—but this is not the case with Pennsylvania’s Joint Underwriting Association, which, holds the Third Circuit, is purely a creature of the state and thus incapable of either asserting constitutional claims against its creator or (one assumes) devouring any beloved character actors.
2. Following a trial, jury finds that Pennsylvania prison guard twice sexually abused a prisoner. It awards $20k in compensatory damages for each assault, $25k in punitive damages for the first one, and $200k in punitive damages for the second. Guard: Maybe it was a different guard who did the assaulting. And the punitive damages are too punitive. Third Circuit: No and no. The jury could reasonably have concluded that you were the guy who did the assaulting. And given that you repeated your “egregious behavior,” it sure seems like these punitive damages are needed to deter future wrongdoing. (Fun fact: The Pennsylvania Attorney General’s Office appears to take a decidedly more . . . nuanced view of reprehensibility for prison guards found liable for sexual abuse (“Reprehensibility has to be considered on a spectrum . . . .”) than it does for elderly widows facing forfeiture of their homes because their sons sold $190 worth of weed (“Including a claimant’s culpability as a specific consideration in the [Excessive Fines Clause] balancing test is not only contrary to established precedent, it is illogical.”).)
3. South Carolina ACLU wants to record and publish an interview with a death row inmate, but the South Carolina Department of Corrections forbids “personal contact” interviews with inmates, including those by telephone (exchanging letters is fine, though). ACLU-SC challenges the prohibition as a violation of the First Amendment. Fourth Circuit: The press has no special right of access to prisoners that is not enjoyed by the public generally, and the ACLU doesn’t dispute that the inmate is unavailable to the public. Case dismissed.
4. This unpublished per curiam opinion from the Fifth Circuit—affirming a denial of qualified immunity—gives no hint of the outrageous allegations in the case (which involve the innocent plaintiff being tackled and hogtied for meeting the description “Hispanic male”). For the full scoop, you’ll have to check out the district court opinion.
5. Maverick County, Tex. judge, who is presiding over a meeting of the county commissioners, orders resident removed for speaking out of turn (though it’s unclear that she did). On the judge’s say-so, the resident—herself a former county judge—is detained outside in the rain for three hours and then taken to jail, booked, and released. But wait! Was the arrest actually retaliation for her criticism of the commission? Fifth Circuit: Let’s find out. The judge is neither protected by sovereign immunity, nor judicial immunity. And he doesn’t even get to invoke qualified immunity because judges don’t have authority—outside of their courtrooms—to hold people in contempt. You have to be operating within the scope of your authority to ask for QI.
6. Apparently the Fifth Circuit thinks some of their readers are so modern that they won’t understand what a “rolodex” is without a footnote. Of course, discerning Short Circuit readers know that it is, as the court says, “a genericized portmanteau referring to a desktop card index used to record names, addresses, and telephone numbers.” This is relevant to the court’s conclusion that Section 230 does not immunize Salesforce in a lawsuit brought by sex trafficking victims where Salesforce provided services for Backpage.com. This is because Salesforce did not act as a “publisher” but instead did rolodex-type stuff. The court also footnotes Lewis Carroll to justify its use of the term “rabbit hole.”
7. After a series of seemingly random shootings into homes in Detroit, the police chief announces that a man who open carries an AR-15 around the neighborhood is a person of interest. But the open carrier is not the shooter, and he loses customers and gets assaulted by private parties as a result of the announcement. Sixth Circuit (unpublished): There’s no prior case like this. QI.
8. If a person repeatedly buys distribution-level quantities of drugs from a supplier, is that enough to show he has entered a “conspiracy” with the supplier to distribute drugs? Seventh Circuit (en banc): Yes, and in so holding we realign our circuit with the Supreme Court’s precedent. Dissent: False! You need more than that to show intent to enter a conspiracy.
9. Bodybuilder “Chuck Diesel” sells a testosterone-boosting herbal supplement called Diesel Test. Then, a different enterprise, “Revolution Laboratories,” starts selling a nutritional supplement called . . . Diesel Test. After disgruntled customers of Company B start mistakenly complaining to Company A, cease-and-desist letters and trademark-infringement litigation ensue, culminating in an award of $2.5k in compensatory damages to Company A, disgorgement of ~$550k and punitive damages of $900k ($300k each against Company B and its two owners, respectively). Seventh Circuit: This all checks out, not least because in comparing the ratio of punitive damages to the harm suffered, disgorgement amounts can count towards the harm-suffered part of the equation.
10. Nonpartisan legislative specialist in the clerk’s office of the Missouri House sends a super-polite email in August 2020 to the Speaker of the House and the President Pro Tem of the Missouri Senate, requesting that they implement a mask policy to protect visitors to the capitol from COVID-19. Three days later he’s fired. He sues for First Amendment retaliation. Defendants: It’s a total coincidence; we actually fired him for poor job performance. Eighth Circuit: A jury disagreed, which wasn’t unreasonable given his seven years of sterling performance reviews. Pay the man.
11. Pursuant to the Indian Gaming Regulatory Act (IGRA), Indian tribes located in Washington State are authorized to offer gambling (including sports betting) on their land by entering into tribal-state compacts. After Washington denies a (non-tribal) gaming company the right to engage in sports betting, the company sues, alleging that Washington’s tribal-state compacts are unconstitutional. Are the tribes required parties to the company’s lawsuit? Ninth Circuit: Indeed, but the tribes can’t be sued because they have sovereign immunity. The company is out of luck. Dismissal affirmed.
12. After protest in 2017, Phoenix police officers sell/obtain/possess a “challenge coin” commemorating the events of the day that depicts a protestor being hit in the groin by a munition and that bears the inscription “Making America great again one nut at a time.” Ninth Circuit: Immature. Distasteful. But of minimal relevance. The crowd was unruly, and using chemical irritants and flashbang grenades to disperse them was fine.
13. This en banc Tenth Circuit case has a little something for everyone. Bickering over en banc procedure. (The court sua sponte ordered it to be heard en banc after the appeal was briefed and argued at panel but before the decision issued.) A prosecutor who misconducted so egregiously that she was later disbarred. (Her rap sheet is long, including framing an innocent man of double murder who spent 23 years in prison before being exonerated.) A court overturning its nearly 30-year-old precedent. (The Tenth Circuit no longer has a per se Sixth Amendment violation if a prosecutor listens in on a defendant’s calls with his attorney. The defendant now must show prejudice.) An intense circuit split. (Four positions, as identified in the dissent’s footnote 34, a citation that presumably will make its way to a cert. petition in short order.) So pour yourself a tipple this holiday season and pore over this decision.
14. And in en banc news, the Sixth Circuit will reconsider its opinion that a class-action lawsuit against GM for certain transmission problems may proceed even though not all putative class members actually had those problems in their GM vehicles.

Law students! Come work at IJ next summer. Applications are open and being reviewed on a rolling basis for the Dave Kennedy Fellowship, which gives a unique opportunity to dive into high-stakes civil rights litigation. As a Fellow, you’ll help develop litigation strategies, draft critical legal documents, and even assist with U.S. Supreme Court petitions! With weekly programming, mentorship from top IJ litigators, and career-boosting opportunities, this is your chance to make a real difference. Applications are due by January 24th, with interviews starting soon! Apply today to one of our five offices in Arlington, Va.; Miami; Austin; Phoenix; or Seattle. These competitive, paid fellowships offer $8,000 for the 10-week program, so apply now and take the next step in your legal career!