Non-Exhaustive Weekly Digest of Federal Appellate Court Rulings

Please enjoy the newest issue of Short Circuit, a weekly feature produced by a group of contributors at the Institute for Justice.

Do Flock cameras actually curb crime? The manufacturer asserts that a recent study proves it. Yet a close reading of the same study reveals no statistically meaningful shifts in car-theft rates or in the rates at which car thefts are resolved for the typical police department. Click here to read more.

Fresh on the Short Circuit podcast: SWAT teams at the Supreme Court?

1. The plaintiff in a First Circuit case isn’t permitted to proceed using a pseudonym—and neither is the judge, though she entertains the prospect for a moment.
2. Are associations allowed to sue under Section 1983 on behalf of their members? The Second Circuit said “no” back in 1973, but since then every other federal circuit, citing the Supreme Court, has disagreed. Fortunately, the Second Circuit can fix these sorts of issues with a “mini en banc,” a “salutary practice” in which the panel asks the rest of the circuit whether it can overturn the prior ruling. The Second Circuit: that’s what we’ve done.
3. Neither the Second Circuit nor the Supreme Court has ruled on the constitutionality of warrantless, suspicionless border searches of cellphones. The Second Circuit now weighs in, and the decision is bad news for this identity thief busted at JFK Airport. Concurrence: And bad news for everyone else too.
4. The Third Circuit grants a ruling: from now on, the Fourth Amendment generally requires a warrant supported by probable cause to strip-search an arrestee (deepening a circuit split). The Third Circuit revokes that position—but grants immunity in this case.
5. New Jersey child-welfare officials search a home and later remove children, citing concerns about the mother’s partner being abusive and the home’s poor condition. The Third Circuit suggests there could be a Fourth Amendment violation if the search relied solely on a vague, unsubstantiated complaint, yet qualified immunity applies to both substantive and procedural due-process claims. Partial dissent: I would demand more evidence and conclude there isn’t a controlling point that overrides qualified immunity on the Fourth Amendment claim.
6. The questions “what counts as a reality show?” and whether “My 600-lb Life” qualifies have sparked a Fifth Circuit symposium on the party-presentation principle. Majority: The argument raised on appeal about whether the insurer must pay show-related claims was waived below, so we need not answer those philosophical questions. Concurrence: Sometimes we can tackle waived arguments—but not when they run exactly opposite to what a party argued below, as is the case here. Dissent: Our job is to get the law right, and my take is that “reality show” is ambiguous. For instance, does that include “Monday Night Football”?
7. Homeowners: Austin breached our constitutional rights by incorporating us into the city’s jurisdiction in 2019. District court (2022): This case is barred by the Tax Injunction Act! Fifth Circuit (2023): No, it isn’t. District court (2025): Oh, now I understand. So it’s barred by Pullman abstention! (City, on appeal: And now it’s moot!) Fifth Circuit (this week): It isn’t any of those things, and we suggest this six-year-old case may be ready to move forward a bit.
8. After being accused of stalking, a New Orleans university student is arrested by campus police. An officer shares information about the arrest with a student journalist, who covers it in the campus newspaper. The arrested student sues the university for defamation and related claims (he withdraws; the criminal case is dropped). Fifth Circuit: And the school must continue to defend. State anti-SLAPP laws don’t apply in federal court. Judge Oldham, dissenting: We lack interlocutory jurisdiction over this.
9. A putative class of children brings a Section 1983 suit against current and former officers of the Illinois Department of Children and Family Services, alleging they kept the youths in juvenile detention long after releases were ordered. District court: Aha, but you’re seeking damages from the officers for acts taken as state officials, which means the suit is effectively against the state, and sovereign immunity applies. Seventh Circuit: What on earth? Section 1983 literally says people can sue for damages when officers violate rights “under color of” state law. Case not dismissed.
10. The 2022 Minnesota gubernatorial candidate, a physician, argued that COVID-era school closures and vaccine mandates were problematic. The state medical board pushed back, opening several inquiries into possible misinformation. He retained counsel, answered the inquiries, and spent substantial time preparing for an in-person hearing. No discipline followed. Doctor: Interfering with my public-sphere speech violates the First Amendment. Board: He lacks standing to sue. Eighth Circuit: Actually, he does have standing.
11. Programmers: Copilot reproduces our code without attribution. Removing that attribution violates the DMCA! Ninth Circuit: If the AI-generated code rather than removal of attribution is at issue, you’d be looking at copyright law rather than the DMCA.
12. California Indian tribes contend that Kalshi’s “event contracts” on sports outcomes—offered on tribal land—run afoul of the Indian Gaming Regulatory Act. Ninth Circuit: And they’re probably right.
13. Alaskans sue the Native Village of Eklutna and the National Indian Gaming Commission over approvals for gaming on tribal lands. Uh oh—the tribe has sovereign immunity and is a necessary party. District court: So the entire case is dismissed. Ninth Circuit: Correct. Concurrence (Bumatay, J.): That’s consistent with precedent, but it creates a one-way ratchet where the tribe can challenge rules that hurt it while others can’t challenge rules that help it. We should rely on the federal government to represent the tribe’s interests in court. Concurrence (Bea, J.): That stance feels historically dubious.
14. On the eve of trial, and after an initial denial, the government concedes that two Border Patrol agents testifying against a defendant for illegal entry are members of a Facebook group where agents share unprofessional memes and jokes. Ninth Circuit: Conviction vacated conditionally. More discovery was warranted. (Ed.: ProPublica has published some of it. It’s graphic.)
15. District court: Among other steps, Oregon must take to shield transgender inmates from violence, including stopping the automatic placement of those who identify as women in men’s facilities. Ninth Circuit: The record shows the state is indeed conducting individualized assessments and has placed eight of 26 requesters in women’s facilities. And the named plaintiff in custody has a troubling history of violence against women. Preliminary injunction vacated. Class decertified.
16. A Kirkland, Washington church with an insurance plan that excluded abortion coverage saw its plan end after the state enacted a law mandating abortion coverage if the plan covers maternity care. Regulations later clarified that conscience-based objectors like the church aren’t affected. So, does the church have standing to challenge the law because it indirectly made its original plan unavailable? Ninth Circuit (2021) (unpublished): It appears so. Ninth Circuit (2025, withdrawn): Actually not. There are other plans that exclude abortion. Just obtain one. Ninth Circuit (2026): The church has standing, but the law is constitutional (over a dissent).
17. Bay Area Rapid Transit dismissed six workers who refused the COVID-19 vaccine without a religious accommodation. They held various jobs, none of which required close public contact. Three years later a jury awarded them $7.8 million under Title VII and state-law claims. Ninth Circuit: Reversing a jury verdict is hard. Concurrence: The plaintiffs were mishandled on their free-exercise claim. But the fault lies with the existing precedent. Smith delenda est.
18. Under Colorado law, first responders may exceed the speed limit in an emergency, provided their emergency lights are mounted “as high as practicable.” District court: So a Kiowa County deputy who mounted his lights just above the plate can be sued over a fatal crash. Sheriff: Post-accident photos aren’t reliable. Rely instead on photos from a different vehicle with properly mounted lights, reflecting the true placement. Tenth Circuit (unpublished): Not adopting that. But the lower ruling is vacated so the court can decide whether the deputy’s siren was active (if yes, immunity).
19. Back in 2002, Denver Water sought to address a looming shortage by increasing a reservoir’s capacity. After 15 years of permitting, the Army Corps of Engineers issued the permit, and the roughly $600 million project was completed in 2026. Environmental groups allege violations of several federal statutes, including the Clean Water Act. Tenth Circuit: The agency action stands. “Judicial review hinges on deference, and nowhere is deference more warranted than when an agency uses its expertise to make technical and scientific judgments.”
20. Suspected shoplifter at a Duluth, Georgia Walmart bolts through the back, is found by police, tased, and charged with obstruction. He has his own legal troubles and sues Walmart and a store employee, asserting federal and state claims. He drops the federal claims. The district court then dismisses some state claims and declines jurisdiction over others. But can it split the baby like that? Eleventh Circuit: Yes. He should be allowed to pursue his malicious-prosecution claim at this stage.
21. A woman calls Tampa, Florida police to report a man with a gun near her apartment. Officers don’t locate him; when they knock, her dog escapes and runs at an officer, who shoots the dog in the head (the dog survives). She seeks relief. Eleventh Circuit (unpublished): The result likely constitutes an unreasonable seizure, but qualified immunity applies. There is no prior case holding that detaining a shooting witness for 12 minutes is unreasonable.
22. En banc news: The Ninth Circuit will not reconsider its ruling that the VA must build housing for disabled veterans on 600 acres between Santa Monica and Los Angeles that were deeded to the United States in the late 1800s for veterans’ housing. Dissent 1: Merits are wrong. Dissent 2: There is no private right of action.
23. And in state-court news, the Georgia Supreme Court unanimously (save for one recused justice) holds that the exercise of police power is not categorically exempt from the Georgia Constitution’s just-compensation requirement. Therefore, a lawsuit by a legal hemp grower seeking roughly $37,000 in damages caused by police during a routine enforcement exercise may proceed.

Friends, when law enforcement intentionally damages private property to catch a bad guy (or to perform some public service), that’s a Fifth Amendment taking that requires just compensation—provided the owner’s hands are clean. But until the Supreme Court weighs in on a pair of petitions to clarify the point, IJ’s sharp research team pressed ahead and identified thousands of claims arising from police damage across 222 jurisdictions over nine years. What have we learned? A lot. The overall payout rate is abysmal in many places. Some jurisdictions compensate almost no one; others pay nearly every claim. And we found that if every jurisdiction paid every claim in our dataset—even those that might not qualify as takings—it wouldn’t blow up the budget. Click here to learn more.