The wheels of justice, the administration of justice, and a disparaging racehorse.

John Ross · March 1, 2024

New on the Short Circuit podcast: a special episode on artificial intelligence and the law with special guest Ed Walters of Georgetown Law.

  • The D.C. Circuit reaffirms that 18 U.S.C. § 1512(c)(2) indeed covers the sort of riotous acts undertaken on January 6, an issue that will be heard by the Supreme Court in its April argument sitting. So this particular fellow’s conviction is affirmed. But his three-level sentencing enhancement for “substantial interference with the administration of justice” was an error. That language covers interfering with judicial, quasi-judicial, and adjunct investigative proceedings—not Congress’s certifying electoral-college votes. Remanded for resentencing.
  • Cryptocurrency entrepreneur launches My Big Coin (MBC), a purported competitor to Bitcoin. Unlike Bitcoin, though, MBC is backed 100% by gold! However, signs are not all golden. For example, instead of a promised Mastercard linked to MBC, investors simply received a plastic card embossed with “preferred customer.” And barrels of gold actually contain mining waste. MBC’s founder is charged with a mint of federal crimes. At trial he moves for testimony from several federal gov’t employees on various crypto issues. It’s denied for not following the “Touhy” regulations. He’s then convicted on all counts. On appeal, he argues the regulations violate the history and tradition of his Sixth Amendment right to compulsory process. First Circuit: Yeah, that’s Second Amendment stuff, not Sixth.
  • It’s said that the wheels of justice grind slowly. If you need proof, witness this decision of the Second Circuit, involving a workplace retaliation case first filed in 2004, which will only now be headed to trial.
  • New York Metropolitan Transit Authority requests a pre-motion conference with the district court to discuss its anticipated motion for summary judgment in a personal injury lawsuit brought by a former employee. At the conference, the judge deems the motion to have been made, denies it, and sets the case for trial. Two years later, and only four days before trial, the judge has a change of heart and sua sponte reconsiders and grants the motion for summary judgment without notice to the parties or an opportunity for the former employee to respond. Second Circuit: That was not appropriate.
  • Can two New Jersey municipalities sue Netflix and Hulu for failing to pay franchise fees to the municipalities in violation of the New Jersey Cable Television Act of 1972? They cannot, says the Third Circuit, as the Act contains no private right of action. And the argument that such a right can be inferred is not much aided by the text of the Act, which says “sole and exclusive authority to bring actions” rests with a state agency. 
  • Allegation: Off-duty Beaumont, Tex. officer provokes confrontation, shoots man dead in parking lot outside bar. Police chief: The man was wielding a baseball bat! And no, we will not release any video. Multiple witnesses: He didn’t have a bat; he was unthreatening. Officials: Those witnesses better quit lying; that’s tampering with evidence. Yikes! It turns out the officer has a long history of excessive force, which the dept. downplayed, covered up, and hired and promoted him in spite of. Can the man’s estate sue the city? Fifth Circuit (unpublished): Troubling circumstances, but no. And plaintiffs’ lawyers’ should have done more in discovery.  
  • Does the First Amendment protect the right to wield firearms in protest? After several concerned citizens call 911, Olmos Park, Tex. police are dispatched to deal with “those Second Amendment people”—men carrying scary-looking rifles in public. The men argue with the cops and refuse instructions, ultimately leading to their arrests (which they resist). They sue, asserting several claims, including under the First Amendment. Fifth Circuit: There was probable cause to believe they were disturbing the peace by displaying firearms in a manner causing alarm. Judgment for the cops.
  • Allegation: Woman erects a tent on a levee in a Kenner, La. public park; when she does not immediately comply with a police order to leave, she is handcuffed and then, though unresisting, body slammed, knelt on, and otherwise manhandled. Officers also discard her property, including her birth certificate and irreplaceable personal items. District court: She provided no corroborating evidence of her injuries beyond her own statements, so she can’t sue for excessive force. Fifth Circuit (unpublished): Reversed. She produced enough evidence to get to a jury on that claim.
  • Narrow strip of land in Euclid, Ohio, has been used by a recycling facility and its predecessors since the ’90s; the strip is fenced off and there’s even a scale buried in the ground on site. Yikes! Turns out a railroad has owned the parcel all this time. Railroad: We’ll lease the parcel to you. Facility: No thanks, at this point we have a right to use it. District court: “Prescriptive easements are not favored in law,” but the recycling facility prevails. Sixth Circuit: Reversed. The Interstate Commerce Commission Termination Act preempts the facility’s claim.
  • El Salvadoran man’s life hangs on whether an “order of removal” becomes “final” when it is reinstated or at the conclusion of withholding proceedings. If the former, then the Seventh Circuit has no jurisdiction to hear his appeal and he’ll be deported to his home country, where MS-13 has threatened to kill him and has already killed a family member who refused to divulge his location. Seventh Circuit: We have jurisdiction, and we reverse the Board of Immigration Appeals ruling ordering his removal.
  • This case features a cast of characters including a horse named Malpractice Meuser, the California Horse Racing Board, the Jockey Club of New York, the Los Alamitos Board of Stewards, and “a Kentucky lawyer specializing in equine law”—along with a fun First Amendment question of whether California can indirectly prohibit naming a racehorse to disparage said Kentucky lawyer. But the actual question on appeal is whether the decision of a state agency with no authority to decide constitutional issues can preclude subsequent federal constitutional suits. Ninth Circuit: It cannot.
  • In 2022, California enacted a law declaring it to be unprofessional conduct for a physician to disseminate anything the state considers “misinformation” related to COVID-19. Two physicians sue, alleging that the law violates their freedom of speech. The district court denies a preliminary injunction, holding that doctor’s advice is not speech at all, but “professional conduct”—which, as IJ gently suggested in an amicus brief to the Ninth Circuit, is searingly wrong. How will the Ninth Circuit resolve this weighty First Amendment issue? Ninth Circuit: We won’t! California repealed the law effective January 1, 2024, so the case is moot.
  • The Suquamish Tribe of Washington State purchases a business-losses insurance policy from non-tribal insurance company. The policy is specifically for Indian tribes. Then along comes covid and the tribal council shuts down tribal businesses. Tribe submits claims for losses. Insurance company indicates they may not pay, so tribe sues in its own tribal court. Insurance company runs to federal court and argues no jurisdiction in tribal court. Ninth Circuit: Usually civil suits between a tribe and a non-Indian can’t be in tribal court but here you willingly offered a tribal-only product covering actions on tribal land. To tribal court you go!
  • Can a grieving father whose minor daughter committed suicide after watching a Netflix show where the main character commits suicide sue Netflix? He cannot, says the Ninth Circuit (unpublished), as the suit was filed too late. (See here for some discussion of the First Amendment issues that might otherwise have been in play.)
  • Oklahoma jail supervisor orders the transfer of two Black pretrial detainees to a floor occupied by the Aryan Brotherhood and then—over the concerns of other corrections officers—orders that the doors to all the cells be opened. The two Black detainees are attacked. The federal gov’t brings criminal charges against the supervisor for this and other abuses of authority, for which he is convicted and sentenced to just under four years’ imprisonment. Tenth Circuit: Sounds reasonable to us.
  • In considering e-cigarette approvals, the FDA balances the chance that more adults will transition away from traditional tobacco products against the risk that more children will start vaping. Two companies sought approval to manufacture products with names like Ice Cream Dream, Cap’n Berry Crack, and Candy Man, accompanied with proposed marketing plans to reduce the risk to kids. FDA: We don’t even need to read the marketing plans to say no way. Tenth Circuit: Which is fine, as the FDA had already warned manufacturers that similar marketing plans didn’t work.
  • And in en banc news, the Fifth Circuit will not reconsider the grant of qualified immunity to a Galveston, Tex. officer who fatally shot a fleeing teen in the back. (The teen was armed, but the officer allegedly didn’t know that.) Seven judges would have reheard the case.
  • And in more en banc news, the Ninth Circuit will reconsider its decision that secular fraud claims against the LDS Church—alleged to have used tithes for commercial rather than charitable purposes—are not barred by the ecclesiastical abstention doctrine.
  • And in additional en banc news, the Ninth Circuit will not reconsider a grant of qualified immunity to Los Angeles officers who killed a man as he was either (1) straddling an officer and pummeling her in the head or (2) not doing that at all and the officers are lying. 
  • And in further en banc news, the Eleventh Circuit will reconsider the denial of qualified immunity to Homestead, Fla. officers who arrested a man who’d flipped the bird. Given the officers’ petition, however, perhaps it is the man’s (alleged) crotch-grabbing that will be the focus.

Do you enjoy reading this humble newsletter? If so, maybe the right thing to do with your life is to apply to work for the Institute for Justice. We are currently hiring litigation attorneys with 3–6 years of experience, give or take, for our Arlington, Virginia and Austin, Texas offices. We are hiring baby lawyers for fellowships and law students for clerkships. We are even looking for an extra special lawyer to join the Center for Judicial Engagement, which produces the Short Circuit podcast and this very newsletter. And we are hiring nonlawyers to do things like empirical research and coalition building. All of these opportunities are enumerated at We might be right for you. And you might be right for us. And together, we’ll be all right.