Circuit Briefs: A Weekly, Incomplete Digest of Rulings from Federal Appellate Courts

Enjoy the newest edition of Short Circuit, a weekly feature crafted by a team at the Institute for Justice.

New on the Short Circuit podcast: Shooting the wrong man (a tragedy) and free speech fading in the library (a comedy).

Under the Federal Vacancies Reform Act of 1998, the primary deputy U.S. Attorney automatically becomes interim U.S. Attorney whenever a vacancy arises. So can the Attorney General appoint the deputy to a vacant U.S. Attorney seat and have them elevated automatically? The Second Circuit, with one judge dissenting, joins other courts in saying no.
A man records the Waterbury, Connecticut police station from a public sidewalk and refuses to identify himself to officers. He is arrested. (The case is dropped more than two years later.) The Second Circuit holds there was no Fourth Amendment violation—citing dusk and his failure to answer questions—as recording the police is now recognized as First Amendment protected, albeit with qualified immunity. A concurring judge argues that he wasn’t actually recording the police!
That sound you hear isn’t gunfire but celebratory corks popping at the 26th Amendment Center. It may be the most significant 26th Amendment development since 1971. A split has emerged among circuits over whether a state deprives or curtails the right to vote “by age” when it offers no-excuse absentee ballots to voters over 65 but not to others. The Fourth Circuit ruled that such a policy is unconstitutional in a challenge to South Carolina’s statute, while the Fifth (2020) and Seventh (2023) Circuits found Texas’s and Indiana’s laws acceptable. Will Dom Pérignon be on the agenda at 1 First Street next year?
“Sanctuary!”—that exclamation isn’t from the Fourth Circuit’s ruling upholding a preliminary injunction against DHS’s policy allowing enforcement actions near places of worship, as applied to the plaintiffs (Quaker, Sikh, and Baptist groups). Rather, it’s Quasimodo’s yell after grabbing Esmeralda and swinging into the cathedral in Victor Hugo’s The Hunchback of Notre Dame.
After receiving a 911 call in 2017 about a Black man shouting at children as he placed them into a car trunk outside an IHOP and a dispatcher labeling it a possible kidnapping, Montgomery County, Maryland, police head to the address on file for the vehicle (which they know has rear-facing trunk seats by law). They encounter the plaintiff, a criminal-law professor, on his porch, who says all is well and tries to retreat indoors. The officers force entry, subdue him, and verify the children’s safety. Was there a Fourth Amendment violation? The Fourth Circuit, in a decision with a dissent, says no.
A grandmother is escorted to an off-the-books warehouse (the “Brave Cave”) and subjected to a strip search after Baton Rouge, Louisiana, officers locate prescription medications in her car and refuse to let her present the prescriptions. The district court finds this plainly unconstitutional. No qualified immunity. The Fifth Circuit (unpublished) says further discovery is needed to proceed.
In 2021, Port Lavaca, Texas officers arrest a head shop owner and an employee for selling illegal edibles. (The charges are dismissed after the officers become unavailable to testify due to reliability concerns.) Meanwhile, lab tests detect THC but don’t prove concentrations high enough to render the products unlawful, and the lead investigator’s testimony was imprecise. The Fifth Circuit (per curiam, unpublished) grants qualified immunity.
In Austin, Texas, officers allegedly assaulted a man who supposedly grabbed a police horse’s reins and then struck a second horse, leaving the man with traumatic brain injury and spinal fractures among other serious injuries. All charges are dropped when video fails to show the alleged rein grabbing or horse striking. The officers contend the force used was justified only because the man tried to pull his arm away from an officer who, the plaintiff says, grabbed him unexpectedly and inexplicably. The Fifth Circuit (unpublished) says this should go to a jury.
Sure, Nashville officials claim they’ve had an “indefinite hold” on your building plans since 2022 (to reserve the possibility of condemning part of your land), but you can’t sue because no final decision has been made. The Sixth Circuit counters that saying “you can’t build anything” already constitutes a decision.
In Saginaw County, Michigan, officers call in sick in bulk (“blue flu”) after one is terminated for striking a handcuffed woman. Activists respond by setting up a table and chairs near the police union to discuss policing culture. Moments later, officers wrongly accuse them of trespassing and then tackle, Taser, knee, and arrest the organizer, who attempted de-escalation and resisted handcuffing. The Sixth Circuit (unpublished) sends this to a jury with no qualified immunity. A dissent notes the officers were, in fact, fairly patient with the individual.
A woman endures massive hemorrhaging, organ failure, and a hysterectomy after giving birth; she sues the obstetricians. The United States asserts that because the clinic receives federal funding, the physicians are federal employees and the suit cannot proceed against them. You could have sued the United States, but administrative remedies were not pursued. The Seventh Circuit (per curiam) agrees and dismisses the case. A dissent argues the text and history support a different outcome and that she should be allowed to amend.
Indiana prison guards provide an inmate with two brutal ordeals: first, breaking his collarbone by leaving him unbuckled in a van and braking harshly; then, shortly after surgery, deliberately hitting bumps and laughing as he cries out. The district court grants qualified immunity to all involved. The Seventh Circuit: the first rough handling should have gone to a jury. A partial dissent would extend that to both incidents.
The Seventh Circuit (with a dissent) notes that it’s well established since 1962 that holding a 14-year-old incommunicado for five days to extract a confession is unconstitutional. Yet the case at hand involves a 14-year-old who falsely confessed to murder in 1977 and was kept for only two days, with a brief opportunity to see his father. A jury should decide this matter; the court reverses the denial of qualified immunity.
A Missouri resident who is elderly and disabled applies for food assistance, but no one at the state’s SNAP office answers the phone. She submits a paper application, isn’t interviewed, and is ultimately denied for lack of an interview—despite eleven calls over a month and hours spent on hold, never reaching an interviewer. After she sues, she is approved for benefits. The Eighth Circuit views this as a due-process violation, but finds the district court’s injunction too sweeping and remands to consider whether monetary relief for her and similar plaintiffs might suffice instead of systemic changes.
A Minnesota election watchdog argues that the state constitution bars felons from voting until civil rights are restored—end of sentence—but a statute allows voting once released from incarceration, even if still on supervised release. The watchdog wants to publicize the stance but fears a state law outlawing “election disinformation.” The Eighth Circuit finds a likely First Amendment violation and grants a preliminary injunction.
Under the Federal Vacancies Reform Act of 1998, the head deputy becomes interim U.S. Attorney in the event of a vacancy. So can the Attorney General appoint the deputy to a vacant U.S. Attorney post and have the appointment elevate automatically? The Ninth Circuit, like others, says no.
QueerDoc, a telemedicine provider delivering puberty blockers and cross-sex hormones, faces a DOJ subpoena for documents the agency says relate to possible federal-law violations. The district court throws out the subpoena as improper; the Ninth Circuit reverses. A dissent argues the subpoena clearly shows bad-faith intent by the justice department toward QueerDoc.
Azusa, California, police beat and tase a troubled man, leaving him in a vegetative state. A witness says the man posed no threat and had laid on his stomach just before the kicks began. The defendants argue the plaintiff failed to disclose the witness on time. The district court allows extending the discovery period. The Ninth Circuit explains that, while qualified immunity often allows broad interlocutory appeals, not this one.
The Hillsborough County clerk defends the timing of a forfeiture notice, claiming they sent letters (which were returned as undeliverable when the recipient moved) and published notices (only in a Spanish-language paper serving a tiny portion of the county). The Eleventh Circuit asks what more could have been done—like sending a notice to the person’s new address or an email—and reverses the summary judgment.
“Scratch a lover, find a foe.” The Eleventh Circuit uses a dash of Dorothy Parker while noting that, although the fired plaintiff-officer does not deny intimate relations, he denies engaging in carnal conduct while on duty.
In en banc action, the Tenth Circuit declines to revisit its ruling that the sole woman on Oklahoma’s death row received a fair trial for conspiring with a lover to murder her husband, despite a prosecutor calling her a “slut puppy,” presenting evidence of provocative appearance and flirtatious conduct, and disparaging her parenting. A dissent contends the Supreme Court’s remand should trigger a reevaluation of due process, and accuses the panel of misapplying the constitutional principle.

Mega-cool! Last week, Austin, Texas officials approved a measure to cut regulatory permitting costs for the city’s smallest firms (fewer than 20 employees)—costs identified as among the most burdensome in a 2025 IJ review of 20 cities. “A tiny bookstore with four workers shouldn’t face the same regulatory maze as a tech company with four hundred,” said co-sponsor Councilmember Vanessa Fuentes. “This resolution starts shifting that balance by lowering barriers and preventing our smallest businesses from being priced out before they even open.” Click here to learn more.