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

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

CA7 friends: The Short Circuit team is heading to downtown Chicago on Sunday, August 17 for a live recording of the podcast on the eve of the Seventh Circuit Judicial Conference. Come watch Sarah Konsky of UChicago Law and Christopher Keleher of Keleher Appellate Law hash things out with us. Click here to learn more.

New on the Short Circuit podcast: What’s the difference between legit multi-level marketing and illegit pyramid schemes? Sometimes it’s hard to tell.

1. Accused 9/11 co-conspirators have been in pretrial proceedings before a military commission in Guantanamo Bay for more than two decades. Gov’t offers them a plea deal that will spare them the death penalty. The co-conspirators take the deal. Sec’y of Defense: Takesies backsies! Military Judge: No takesies backsies! D.C. Circuit (over a vehement 75-page dissent): Mandamused!
2. Citizen journalist films open garage at a Secret Service building. Two agents order him to stop and, when he refuses to identify himself, slap cuffs on him. A third agent shows up and tells the others the man is allowed to film. The man sues for violations of his First and Fourth Amendment rights. D.C. Circuit: But he brought Bivens claims so you know how that goes.
3. Maine voters, upset with the construction of an energy-transmission line through the state that would connect Canadian electricity to Massachusetts, try to stop the project. When that fails, they propose a ballot initiative to use eminent domain to seize the assets of the two Maine corporations building the line. When that fails, they propose a ballot initiative to prohibit American corporations from contributing to ballot initiatives if they have more than 5% foreign ownership. That passes and the two corporations sue. First Circuit: And the law should be preliminarily enjoined. Silencing corporations with 95% American ownership isn’t narrowly tailored to preventing foreign influence in Maine elections.
4. Albany, N.Y. police execute search warrant at apartment and allegedly conduct a body-cavity inspection of a visitor there in front of a crowd of officers and other arrestees. Second Circuit (unpublished): Officers can conduct such searches if they have reasonable suspicion, but only in a reasonable manner, and the trial court’s failure to instruct the jury on that second point was plain error. New trial.
5. If a plaintiff alleges a deliberate gov’t plot to retaliate against protected free speech and then goes all the way to the Supreme Court, which rules that the complaint states a viable First Amendment claim, what happens next? Cynics among you may think you already know. For the rest, we won’t spoil this Second Circuit opinion except to say that the right answer rhymes with schmalified schmimmunity.
6. Palestinian imam settles in New Jersey on a three-year work visa in 1996. In 1999, he applies for a green card. Over the next 20 years, an immigration judge twice grants adjustment of status. Following the final grant in April 2020, DHS did not appeal the immigration judge’s order, which became final 30 days later. Eleven months later, the Board of Immigration Appeals “self-certifies” an appeal and revokes the man’s green card. Third Circuit: Congress put the 30-day limit in there for a reason. Reversed. Dissent: Samuel Pufendorf, Raoul Berger, and Adrian Vermeule would be outraged by this decision.
7. You know who was not a fan of Dr. Benjamin Rush, a signer of the Declaration of Independence? Libertarian psychiatrist Thomas Szasz, who said Rush over-medicalized human behavior and “was oblivious to the deprivation of personal liberty inherent in medical or psychiatric incarceration.” You know who is cool with repeatedly citing Rush (and other sources) in justifying the federal law making it illegal to buy guns if you’re a pothead? The Third Circuit (over a dissent). That said, the court did remand to see exactly how much of a pothead the defendant was.
8. Over 25 years after Philly man’s 1986 conviction for murder, three of the four eyewitnesses recant. In an attempt to bypass certain procedural hurdles, and with a Philly DA who wanted to help set things right, defendant and the DA “settle” to allow his federal habeas petition. The state AG objects. And so does the Third Circuit, which says those hurdles can’t just be waived away by prosecutors. They’re prosecutors, after all. Dissent: The what now?
9. Virginia s

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Reason Magazine

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