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

Delight in the newest issue of Short Circuit, a weekly feature assembled by a group at the Institute for Justice.

New on the Bound by Oath podcast: In 1966, officials in Los Angeles attempted to jail a man for distributing leaflets protesting a fatal police shooting. Today this case is known as Younger v. Harris, the birthplace of the Younger abstention doctrine, a frequent obstacle for civil-rights plaintiffs. In this episode, we trace the origins, the consequences, and the ongoing reach of this rule.

New on the Short Circuit podcast: You hold a First Amendment right to document police activity—and a Fourth Amendment right to avoid showing identification. Yet exercising those rights can still land you in handcuffs.

Infantryman Robert “Bowe” Bergdahl deserted his post in Afghanistan in June 2009 and was quickly seized by Taliban-affiliated forces. After five years of captivity and torture, he was released in a prisoner exchange. At his court-martial, he pleaded guilty and received a dishonorable discharge. Unbeknownst to him, the judge presiding over the proceeding was seeking a position in the Trump administration and had submitted as his writing sample an order declaring that then-candidate Trump’s assertion that Bergdahl was a “traitor” who “deserved the death penalty” did not amount to “unlawful command influence.” Bergdahl sues in federal court to overturn the conviction. The D.C. Circuit responds that the court lacks jurisdiction over such matters.
A man, convinced that the president is the antichrist, fires several rounds from an AK-47 at the White House. No one is injured; he pleads guilty to damaging a dwelling. Is this a crime of violence? The D.C. Circuit answers in the affirmative.
Because we’re thorough, we’ll note that this First Circuit decision is, in fact, the first Federal Reporter entry to promise to “fill in the deets.”
Puerto Rican individuals who identify as nonbinary challenge the commonwealth’s denial of their request to amend birth certificates from the name given at birth to the marker “X.” The First Circuit adopts rational-basis review and finds the asserted privacy interest sufficiently persuasive under that standard.
Public-school teachers on Long Island, New York, are ordered to remove pride flags by their district. They sue, alleging First Amendment and related rights. The Second Circuit holds that the decorations adorning classroom walls and doors fall within government prerogatives to regulate; it aligns with the Sixth, Seventh, and Ninth Circuits in saying that standards aimed at university professors do not apply here.
The Third Circuit holds that limits on telemedicine by doctors licensed in other states amount to content-based speech restrictions that would invite strict scrutiny—except the court leans on the Founding-era practice of government licensing of physician speech, which complicates the physicians’ argument. (Skeptical about the court’s historical reading? We’ve got the article you’ll want.)
The Third Circuit states that suppression targets misconduct, not mistakes. Hence there is no suppression for a hit-and-hold operation—where officers relied on a warrant to locate a container at a specific residence, secure the container, and search that address—that went awry when the recipient moved the box to Apartment 1 instead of Apartment 2, yet the police searched Apartment 1 anyway. The officer’s single error harms the defendant, who now faces the discovery of five pounds of meth and a substantial amount of fentanyl.
A woman who has identified herself as a Jehovah’s Witness, a follower of the Nation of Islam, and a Christian brings a Title VII claim after being dismissed for declining a COVID vaccine. The Fourth Circuit, in a dissent, notes her religious connection is not perfectly tight, but we don’t expect laypeople to be theologians. The panel concludes the claim is close enough to proceed to trial.
In Sunset, Louisiana, the police chief handcuffs an innocent, nonresisting bystander who does not match the suspect description and twists the bystander’s wrist until it is injured. The former chief now admits the action was unreasonable, yet he is surprised to learn he must pay restitution of $3,500. The Fifth Circuit orders compensation.
Tennessee’s Protecting Children from Social Media Act compels platforms to verify user ages and obtain parental consent for minors. A coalition of internet companies seeks a preliminary injunction. The district court denies relief, citing lack of irreparable harm. The Sixth Circuit reverses, deeming the harm irreparable and citing chilling effects on speech and unavoidable compliance costs; the case is remanded to weigh the remaining factors. A dissent questions the irreparability, asking whether the Tennessee attorney general might simply refrain from enforcement against the challengers.
A once-prominent Cincinnati spine surgeon is accused of fraudulently billing Medicare, Medicaid, and private insurers for hundreds of unnecessary operations that harmed patients. He fled to Pakistan after the indictment and remains at large. Civil litigation proceeds with his insurer defending and his remote participation in a few depositions. The Sixth Circuit holds that the insurance policy excludes coverage for damages “in consequence of” fraud, leaving insurers off the hook for malpractice judgments. It further holds that insurers owe no duty of good faith beyond the now-absent surgeon, so patients cannot pursue a bad-faith claim here.
A $250,000 watch vanishes in transit; the owner’s insurer pays out the full amount and then sues the shipper. The Eighth Circuit rules in favor of the insurer, but only for a token $100, the expense limitation under the shipping contract.
Seek out someone who loves you as much as Courthouse News Service adores suing state courts over their sluggish document-processing rituals (this time in the Ninth Circuit. Again.)
Under the Dodd-Frank Act, the CFTC holds exclusive jurisdiction over “swaps,” defined as any agreement or transaction that involves payment, delivery, or other transfers tied to a future event or contingency with financial repercussions. Does that include wagers about whether the Patriots cover the spread against the Seahawks? The Ninth Circuit says no, so Nevada’s gaming laws aren’t federally preempted as applied to Kalshi’s sports-event contracts. (Circuit-split alert: the Third Circuit disagrees!)
A Canadian citizen living in Dubai is alleged to have run a business selling encrypted BlackBerry devices used in drug-trafficking activities. The United States charges him criminally and seeks civil-forfeiture as well. The twist: he has never visited the United States, and his assets are in Liechtenstein. The Ninth Circuit finds that exercising in rem jurisdiction without control of the property violates due process; concurrences discuss Article III concerns and alternative control theories, while a dissent urges deference to Congress on jurisdiction in such foreign matters.
An applicant from El Salvador facing possible removal presents evidence tending to show a near-certain risk of torture upon return. The Board of Immigration Appeals denies relief for lacking a numerical threshold. The Ninth Circuit, in a majority with a dissent, notes that such quantitative studies are rare, yet the record contains substantial evidence, including an expert testifying to a near-100-percent likelihood of torture if sent home.
Legal scholars diverge on the value of lengthy footnotes, but there’s broad agreement they gain traction when, as in a Tenth Circuit decision about Utah’s compulsory bar dues, they illuminate existing circuit splits.

Live podcast! On Monday, October 19, we’ll travel to Cambridge, Massachusetts to mark the 100th anniversary of zoning and to celebrate the 98th anniversary of the Supreme Court’s ruling that a Cambridge zoning rule went too far. We’ll also discuss notable zoning reforms Cambridge has adopted recently. The panel features Molly Brady of Harvard, Cambridge Vice Mayor Burhan Azeem, and Ari Bargil, head of IJ’s Zoning Justice Project. Space is limited—please RSVP today!