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

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Victory! This week the Pennsylvania Supreme Court rejected the "open fields doctrine" under its state constitution, ruling in favor of IJ's clients the Punxsutawney and Pitch Pine hunting clubs. They challenged warrantless searches of their property by state gov't agents. At the federal level, the doctrine allows searches of private land without a warrant. As a result, about 96% of all private land in the country is exposed to warrantless searches and surveillance. Pennsylvania had followed the doctrine but the court found its precedent failed to protect the rights of our clients and everyone else in Pennsylvania.

New cert grant! Since 2012, the state of Alaska has been trying to permanently forfeit Ken Jouppi's $95,000 airplane after he transported a passenger carrying a six-pack. On Monday, the U.S. Supreme Court agreed to decide if it can. For decades, Ken flew his Cessna across the Alaskan wilderness, shuttling locals and tourists who depend on bush pilots like him. Then, state troopers found some Budweiser tucked in a passenger's luggage. Ken and the passenger were charged with misdemeanors, fined $1,500, and sentenced to 3 days in jail. But Alaska tried to take his plane too. Now, the Court will decide whether taking a man's plane over a six-pack is an unconstitutionally excessive fine.

New on the Short Circuit podcast: Men in black and Presidents in ultra vires.

1. Don't leak a President's tax returns or you could go to prison for a while, the D.C. Circuit informs us. It also informs us that even though this particular crime occurred in 2017, the defendant housed the data on, among other devices, an iPod. Footnote 2: "Yes, iPod, not iPad."
2. How do things work at the NLRB now that the Chevron doctrine has "run down the curtain and joined the bleedin' choir invisible"? NLRB: Congress has provided us with policymaking authority so we still get to do a lot of what we want. D.C. Circuit: But not here. Dissent: Chevron is gone but it wasn't everything to do with agency discretion.
3. After the overthrow of Muammar Gaddafi, the U.S. established a diplomatic outpost in Benghazi to help the country transition from a dictatorial regime to a democracy. An Islamic militant group attacked the outpost in 2012, killing the U.S. ambassador to Libya and three other Americans. The militiaman who helped lead the attack is captured, sentenced to 22 years in prison. D.C. Circuit (2022): Shockingly light, try again. District court: Okay, 28 years. D.C. Circuit (2026): The sentencing court's discretion is vast—but not this vast. He's a terrorist whose only stated regret is that every American there wasn't killed. He needs a much longer sentence.
4. Russian auditor of $4 bil hedge fund stumbles onto a tax-fraud scheme implicating the Russian gov't and mob. After bringing the scheme to light, Russian authorities whisk him away to prison, never to emerge again. The fund's founder gets Congress to pass a law authorizing sanctions for human rights abusers. Russian-American lobbyist living in D.C. sets out to refute the story and rehabilitate Russia's image. He's present at a 2016 Trump Tower meeting involving Donald Trump Jr., about which the fund's founder goes on a media offensive, including appearing in NYC on a CBS This Morning segment where he described the lobbyist as a shady "spy operator in Washington." The lobbyist sues for defamation in D.C. federal court. D.C. Circuit: Commenting about D.C. residents over mass media doesn't satisfy International Shoe or more recent personal jurisdiction precedents. Case tossed.
5. Palestinian student at Columbia University shows up for U.S. citizenship interview, but is instead arrested and ordered removed from the country. He immediately files a habeas petition and is ordered released. The feds appeal. Second Circuit: The district court had no jurisdiction. Congress requires these cases to go through the administrative process.
6. At a meth-trafficking trial, a marshal reports a gallery spectator was clicking his teeth and rocking in his pew, as if to brand the witness a liar. However, he "didn't get the indication he was trying to intimidate him." Judge partially closes the courtroom for the rest of the witness's testimony. Fourth Circuit: Partial closures need only a "substantial reason," and shielding a witness from intimidation qualifies. Affirmed. Dissent: The court found no facts, never asked the witness, and considered nothing short of closure (capped with an invocation of A Man for All Seasons on giving even the Devil the benefit of law).
7. Splitting with the Third Circuit, the Fourth Circuit says district courts have jurisdiction to hear habeas challenges to certain deportations. As the dissent explains in a footnote, this is a different kettle o' fish from the whole can-you-get-a-bond rigmarole going on elsewhere.
8. Allegation: Godley, Tex. councilwoman asks pointed questions about city spending and is warned by police of "consequences" if she keeps it up. Her "crime": adding proposed items to an emailed courtesy copy of a council agenda and asking the city secretary to post the updated version. The DA laughs off a felony forgery case, so—after being told by the mayor to "get it done"—officers take a misdemeanor tampering charge to a different prosecutor. She's arrested outside city hall minutes before a meeting where she'd have voted against the mayor's preferred appointees. Fifth Circuit: "Not every document that emerges from a government employee's printer is so sanctified." No probable cause and no dismissal of her Fourth Amendment and retaliation claims. (Déjà vu? Same statute as IJ's Gonzalez v. Trevino.)
9. In as-applied challenges to federal felon-in-possession-charges news, the Fifth Circuit rules (with no majority opinion and over a dissent) for a guy who is only a felon because he damaged property, not people. Cries for an en banc doctrinal clean up are noticeably audible.
10. "Alien smuggling," on the other hand, does not make for an as-applied Second Amendment challenge in the Fifth Circuit.
11. Nashville woman is arrested at gunpoint for felony evading; officer testifies she ignored his lights and sirens for ten minutes. The case is stayed for three years, during which the charges cost her her job and home and ruin her life. Tapes eventually reveal she was "driving normal speeds" and that the officer was "not in pursuit." Charges are dropped within a week and she sues within a year. Sixth Circuit: In a split opinion, one judge says too late as the clock was triggered by her arrest, another—who admits having a "deeply troubled" deciding vote—by knowing she'd done nothing wrong. Either way, Brady is no help because these charges were dismissed before Dissent: This "makes a mockery of the law."
12. Sixth Circuit: "[Officer] Willis responds that Steger has cited only cases involving the use of pepper spray, which he says would not warn him of the illegality of slamming Steger to the ground and punching him."
13. Your summarist had never heard of the Almighty Vice Lord Nation before today, but—based on the information in this opinion of the Sixth Circuit—now hopes there will soon be a prestige television series about it in the near future.
14. In which the Seventh Circuit notes in passing that the plaintiff journalists seem to have accidentally stipulated that it would have been physically impossible for the defendant police officers to have shot them with foam-baton rounds but nonetheless goes on to hold that the officers did not violate the Constitution by shooting them with foam-baton rounds.
15. If you buy a foreclosed property in Chicago, you owe ten grand to each tenant who decides not to renew their lease, no matter why they choose to leave. Which seems maybe in tension with the cases recognizing the broad scope of the Takings Clause, says the Seventh Circuit, but is also a-okay under the cases saying rent control is a-okay.
16. University of Wisconsin freshman tells police and the University that she was sexually assaulted by another student. The University provides academic accommodations, imposes a no-contact order on the alleged rapist, and expels him from campus. After a jury acquits him, the University readmits him, citing new evidence, but keeps the no-contact order in place. The alleged victim sues the school under Title IX. Seventh Circuit (en banc): No jury could believe the school acted with deliberate indifference to known acts of sexual harassment. Concurrence (Easterbrook, J.): More to the point, there's no allegation that the University is discriminating on the basis of sex.
17. Age obviously isn't "immutable" because you, yourself, are older than you've ever been (and now you're even older). But, says the Ninth Circuit, it's still "immutable" in the sense that you can't change it on purpose.
18. Ninth Circuit: The First Amendment doesn't prevent a school district from disciplining a public-school education specialist for displaying the children's book Johnny the Walrus (which is some sort of trans allegory) because schools can restrict the messages employees convey to children. Dissent: Displaying Johnny the Walrus in his own office is still his personal expression, even if it's in a public school where kids can see it. (For a fun game, decide what you think about this case now, while you still don't know whether Johnny the Walrus is allegedly a pro- or anti-trans allegory.)
19. Ninth Circuit: When a juror announces a bias before hearing evidence, a district court should take immediate action—even if the juror's an alternate. That's because, like happened here, sometimes the alternate ends up deliberating.
20. Santa Barbara, Cal. officers suspect a parolee is up to no good, visiting L.A. at odd hours. They find he's in a trailer next to his girlfriend's family's house. They find him there and, without a warrant, search the trailer and a truck they believe is his and find ammo and lots of drugs. Ninth Circuit: Given the Fourth Amendment doesn't do much for parolees, the searches were all fine. Dissent: But you at least need probable cause that the stuff was his. For all the cops knew he was just a trailer guest.
21. This Tenth Circuit case holds that a public library did not violate the First Amendment by suspending a patron who violated the library's rule against displaying signs in the library by displaying signs protesting the library's rule against displaying signs in the library.
22. Allegation: Florida federal prisoner finds out he has Hep C and repeatedly complains to prison authorities as it gets worse. Though treated for symptoms, he's never given meds that could have saved him. He also never files a formal complaint under an unenforceable grievance program called the ARP. He dies. Eleventh Circuit: He has no Bivens claim because of that complaint-box thingy.
23. And in en banc news, the Fifth Circuit will reconsider its decision that the ban on felons possessing firearms is a constitutional exercise of Congress's power to regulate interstate commerce. One judge issued a rare dissent from the grant. (Yes, yes, people, we know it's called a "disgrantle" in certain circles.)
24. And in additional en banc news, the Fifth Circuit issued a "published order" that, among other things, stayed a pair of district court judgments concerning whether denial of a bond hearing in certain deportation cases violates due process. As we reported last week, the merits of the appeals are pending with the en banc court.
25. And in further en banc news, the Tenth Circuit will not reconsider a decision on the applicability of the McDonnell Douglas burden shifting standard in certain Title VII cases. Four judges would have granted review.

New cert petition! A Massachusetts regulation forces parents to choose between sending their children to private school and receiving special education services that state law guarantees. The First Circuit said this was just fine because the "unconstitutional conditions" doctrine is merely a First Amendment thing—it doesn't apply to the long-recognized right to send one's child to a private school. Five other courts: oh really? Petition for cert: can you settle whether one of the oldest constitutional principles applies to one of the oldest constitutional rights?

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