Circuit Watch: A Non-Exhaustive Weekly Digest of Federal Appellate Rulings

Please enjoy the latest edition of Short Circuit, a weekly feature assembled by a group at the Institute for Justice.

New on the Short Circuit podcast: The First Amendment is for listeners too.

New York may boast Page Six for its celebrity gossip. But Washington dwarfs it with Page One Hundred Thirty-Six, thanks to the D.C. Circuit venturing into White House ballroom drama. The majority blocks a large portion of the construction, insisting congressional authorization is necessary. The dissent mainly frets about letting aesthetic objections trump security concerns (and, in classic celebrity-rag fashion, pokes fun at District Judge Leon’s famous exclamation points).
Congress overhauled the immigration removal framework thirty years ago, permitting some—but not all—aliens to be released on bond while awaiting their hearing. A subsequent regulation clarified that bond was available only to individuals already inside the U.S., not those arriving at the border. The administration reversed course last summer; now, no bond for any aliens. How’s that playing out? Fifth, Eighth circuits: okay. Second, Sixth, Seventh, Ninth, Tenth, Eleventh, and now First circuits: not so much.
Plaintiff claims her government employer concocted groundless charges to fire her in retaliation for whistleblowing. State court (round one): it sounds like a claim that needs discovery, so file a plenary proceeding. State court (round two): whoa—turns out that round-one ruling bars all of your state-law claims in this very proceeding. Federal district court: and that looks like res judicata for your constitutional claims as well. Second Circuit: Folks. Folks. Take a breath. Nothing has actually been judicataed, and someone should listen to this woman’s claims. Case undismissed!
A coalition of disabled Texas voters and allied groups sue a host of defendants, arguing that new vote-by-mail rules violate the ADA. Fifth Circuit: there’s no standing to sue the election officials—the voting hurdles appear speculative. While there is standing to sue prosecutors who enforce the law, they aren’t the ones who would be denying accommodations in the first place.
If a Fifth Circuit opinion on challenging gas-stove regulations opens with, “The Biden Administration proposed numerous regulations to make home appliances more expensive and less useful,” you can probably predict the ending.
In Texas, arrestees may request appointed counsel at their first appearance, after which the magistrate must transmit or cause to be transmitted the necessary forms to the counsel-appointment program, within 24 hours. A man testifies that a magistrate found he qualified for counsel, but the paperwork took weeks, his initial attorney was poor and never met him, so he languished in jail for 252 days until the case was dropped—never even charged. Fifth Circuit: the jail administrator enjoys qualified immunity for the widespread failure to forward counsel-appointment forms to those who could arrange representation.
Sixth Circuit: Forcing a cooperative suspect to urinate in his yard when several officers stood by to supervise a trip to the toilet is a clear Fourth Amendment violation. No qualified immunity. Case undismissed. Dissent: In the Founding era public urination under these circumstances likely wouldn’t have been a crime.
Manistee County, Michigan’s prison runs a hostage-training exercise that goes wrong, injuring a staffer’s knee. Sixth Circuit: because the force occurred during a training exercise, no one intended to restrain the staffer in a way that would amount to a Fourth Amendment seizure.
A Minneapolis-based Antifa member’s social media posts urge followers to “hunt” ICE, “take their guns,” and other inflammatory calls. He’s arrested for allegedly doxxing someone he calls “pro-ICE”; he threatens the arresting officers and flips off the camera in his booking photo. (Later charges include solicitation to commit a crime of violence and transmitting interstate threats.) Should he be detained pending trial? Magistrate: Yes. District court: No. Sixth Circuit (in a decision with a dissent): Yes.
Indiana enacts an “intellectual diversity” statute requiring universities to adopt policies that, among other vague requirements, push professors to expose students to scholarly work from various political or ideological perspectives. Professors claim this curbs their speech. Seventh Circuit: nobody can precisely determine what Indiana’s law actually requires from anyone, so you lack standing and we don’t have Article III power to adjudicate the merits. Concurrence: I entirely agree. Also, here’s an advisory note about why the professors’ merits arguments are flawed.
If you’ve missed House of the Dragon, small-town Wisconsin politics can stand in for the fantasy epic. To translate for GRRM fans: when the Blacks seize King’s Landing and purge the Greens, is that a First Amendment violation? The Seventh Circuit: you’ll have to wait for the final season to see; for now we’re granting qualified immunity because our caselaw on firing policymakers for political disagreements is a tangled mess.
A man convicted in 1998 of murdering his ex and their infant son (and dumping the bodies in the Calumet River) says modern DNA testing will prove his innocence. State’s attorney: And I’m willing to pursue that, but, as argued, “shrug.” Seventh Circuit: Case undismissed. His challenge to Illinois’s post-conviction DNA testing regime isn’t barred by Rooker-Feldman.
Iowa requires a license for anyone who helps people negotiate with their insurers and forbids residential contractors from doing so. Yet the Eighth Circuit (over a dissent) holds that giving general advice to navigate red tape is protected speech. Case undismissed.
Minnesota’s Jane Doe, assaulted at 14, provides material for a rape kit. Anoka County police delay testing for more than 16 years, then find DNA linking the suspect she identified. She sues the police for failing to investigate. Eighth Circuit: Crime victims have no standing for that.
Eighth Circuit (2023): South Dakota’s one-year pre-election deadline for filing citizen petitions violates the First Amendment. South Dakota counters with a nine-month deadline. Eighth Circuit (2026): No. Dissent: There’s some evidentiary support for the opposite view.
Section 230 grants immunity to internet platforms for speech they distribute but do not create. It’s generally been read to permit immediate appeals of immunity denials. Ninth Circuit: Well, when we’ve spoken of “immunity” before, we meant immunity from liability, not immunity from suit, so the blockbuster case against Meta and TikTok must proceed to trial first. (TechDirt’s crew views this as a major—and troubling—blow to free-speech protections.)
Allegations claim the National Association of Realtors’ rules promote a low-cost brokerage boycott in violation of antitrust laws. Tenth Circuit: You should have challenged the boycott directly and sued the brokers; the NAR rules were enacted outside the statute of limitations.
Eleventh Circuit: “A father and daughter owned a house together. Yet it wasn’t as peaceful as it sounds—each warned the insurer that the other would likely burn the place down. Surprisingly, the insurer kept the policy anyway. Not surprisingly, the house burned a month later.”

Automated license plate readers (ALPRs) are pitched as precise tools to catch dangerous criminals and locate missing people. And we’re in favor of both aims. Yet the troubling frequency with which officers deploy ALPRs for non-law-enforcement purposes (chiefly stalking) or end up detaining the wrong people (sometimes at gunpoint) is deeply alarming. Officers rarely log the exact reasons for ALPR checks, and even when they’re supposed to, as demonstrated in litigation against Norfolk, Va., they ignore those internal requirements with no accountability (one officer even wrote “la la la la” repeatedly, and no one noticed). All of this underscores the urgent need for constitutional safeguards, and we’re proposing a practical remedy: if police want to track someone, they must obtain a warrant. Learn more by clicking here.