Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Good news! With near-unanimous bipartisan support, the Colorado General Assembly this week passed HB26-1250, a civil forfeiture reform bill that closes a longstanding loophole in Colorado law allowing property to be forfeited without a criminal conviction. The bill also makes Colorado one of the first states in the nation to grant forfeiture defendants the right to an attorney in civil cases. “Even after significant reforms in recent years, Colorado’s civil forfeiture laws still permit the government to permanently confiscate property without a criminal conviction,” said Alasdair Whitney, legislative counsel at the Institute for Justice. “This bill closes that loophole for good, and it also makes Colorado the first state in the nation to grant property owners the right to an attorney in the forfeiture proceeding, just like there is in criminal court.”
New on the Short Circuit podcast: Get in loser, we’re going shopping. With Roy Moore! (No, he’s not on the show. But we discuss how he was allegedly at the mall. A lot. Along with “Santa’s helper.”)
- New York’s Chancellor Kent (1811): “It is a principle in the English common law, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect.” And the same is true in our new land of liberty. New York’s highest court (2025): No, actually it’s totes fine. Second Circuit (2026): And constitutional in all the ways.
- The American Association of University Professors and the American Federation of Teachers sue the feds to restore grants withheld from Columbia University. The unions move for a preliminary injunction, lose, and appeal to the Second Circuit. While the appeal is pending, the unions and the feds strike a deal and the unions withdraw their claims, mooting the case. Should the denial of the preliminary injunction be vacated? Second Circuit: Yes, the parties stipulated that plaintiffs didn’t cause the mootness. Dissent: But we all know that they kinda did.
- Retailers Bass Pro Shops and Cabela’s use a JavaScript code on their websites that tracks your mouse movements, clicks, scrolls, zooms, window resizes, keystrokes, and text entries, allowing them to build digital “fingerprints” of online shoppers. Aggrieved shoppers across the country sue, and their cases are consolidated in the E.D. Pa., which dismisses their claims. Third Circuit: Which was generally correct for the folks who merely browsed the websites. But the two plaintiffs who made purchases—a camp chair and a belt—have standing, because this is a little bit like the common-law tort of “intrusion upon seclusion.”
- John Hancock routes customers’ calls through Amazon and another tech company, which authenticate callers based on their biometric voiceprints. Customers sue, alleging that Illinois law bans collecting their voiceprints without their consent. After a circuitous route through the state and federal courts, the Third Circuit concludes that Illinois’s law exempts financial institutions—an exemption the tech companies can invoke when authenticating people engaging in financial transactions.
- Company buys contracts for motor vehicle payments, which provide it collateral and the right to take possession when the borrower defaults. At issue here are two motorcycle contracts it purchased in South Carolina, one ridden by a man killed in front of a Waffle House and one ridden by a man allegedly affiliated with Hells Angels who was charged with the murder. Sheriff seizes both motorcycles as material evidence, refuses to return to the company. Fourth Circuit: The Fourth Amendment defines the process due under the Fourteenth Amendment, and this is all above board.
- Virginia undergraduate at Liberty University applies for the Virginia Tuition Assistance Grant Program. But when she changes her major from “Music Education: Choral” to “Youth Ministries” and, later, to “Music & Worship,” she’s informed she is no longer eligible for the grant, which excludes “religious training or theological education.” Fourth Circuit: Too bad for her, the Supreme Court’s 2004 ruling in Locke v. Davey—a nearly identical case upholding a similar Washington prohibition—is still good law. Concurrence: It is also a “stain on our Free Exercise jurisprudence” that the Supreme Court should “formally bur[y].”
- As part of a wide and long-running program, in the 1890s the U.S. gov’t forcibly removed two Native American boys from their homes and installed them at the Carlisle Indian Industrial School in Pennsylvania. Things did not go well. both were buried over the next few years. Their bodies were later moved to a military cemetery where a sign now notes their historical significance. In 2023, their tribe asked to repatriate the remains under a 1990 law. Fourth Circuit: Repatriation is required as the remains are a “holding or collection.” Dissent: A graveyard is neither.
- Michigan man, arrested following domestic disturbance, admits to having ingested several pills of unknown identity. He’s taken to the emergency room, which medically clears him for incarceration. While in pre-trial detention, he becomes lethargic and vomits. At some point in the early morning hours, he dies from what is later determined to be an overdose of antidepressants. Deliberate indifference? Sixth Circuit: Denial of qualified immunity reversed. He may have been unwell, but his need for emergency medical care was not so obvious that a layperson can be held liable.
- One reason for reading a long novel is that after years of everyone’s trials and tribulations you can enjoy the villains getting their comeuppance. For example, Becky Sharp is looking pretty nifty halfway through Vanity Fair but (spoiler alert) not so sharp at the end. Sadly, civil rights stories do not always follow the same arc. But, as told by the Sixth Circuit, a $10 million judgment for prosecutorial misconduct in Detroit—concerning a guy who was framed and wrongly spent years behind bars—is roughly equivalent.
- An American citizen who travels to Syria to join ISIS and in fact fights on the front lines against American-supported Kurdish troops is eventually convicted of providing material support to a terrorist organization. District court: But this wasn’t, like, terrorism-terrorism. This guy just joined an army. Sixth Circuit: Shooting people on behalf of ISIS is pretty much the definition of terrorism. Back he goes for resentencing!
- The circuit splitting continues. Sixth Circuit (2-1): Non-citizens in the country who were never lawfully admitted to the country are not subject to mandatory detention without bond pending their removal proceedings.
- There’s a lot of juicy morsels in this Sixth Circuit opinion about a First Amendment challenge to some of Kentucky’s judicial-campaigning rules brought by a pair of erstwhile candidates. Standing. Voluntary cessation. A dash of Pennhurst. Some Younger-abstention talk. No seriously, guys, this is a good one.
- Wisconsin towing company allegedly overcharges and fails to have its employees wear reflective safety vests. It’s summarily kicked off the county’s approved towing list. A due process violation? Seventh Circuit: Nope. The phrase is “deprive any person of … property,without due process of law.” And there’s no property interest in just being on the dispatch list. Maybe under certain circumstances, but not here. Dismissal affirmed.
- For some clever lawyering, check out this 2-1 decision from the Eighth Circuit. In 2024, the Supreme Court held that for a certain enhanced mandatory minimum to apply, a jury, not a judge, must find the predicate facts about a prior serious drug conviction. But a statute, 21 U.S.C. § 851, says a defendant can ask those facts to be found by a judge. Drug dealer: So that means no one can make the finding, and the enhancement can’t apply! Gov’t: That seems like it should be wrong. Eighth Circuit: He’s right! Dissent: Too clever by half. We should just remand to a jury.
- Defendant in a North Dakota fraud trial wasn’t permitted to introduce statements from a recording of the gov’t preparing its star witness, a co-fraudster who received a sweetheart plea deal. Eighth Circuit: Because that video arguably showed the witness was angry with the defendant and the prosecutor suggested his account to him, it should have been allowed as relevant evidence about the witness’s bias and credibility. New trial.
- In an Idaho tax-fraud trial, just as the jury is on the cusp of a verdict, one juror informs the judge that another juror made a racist comment. After interviewing all the jurors, the judge excuses the allegedly racist juror, and the remaining 11 return a guilty verdict on several charges. Ninth Circuit: There’s a strong presumption of prejudice when a racially biased juror is involved in deliberations, one the gov’t didn’t overcome here. New trial. Dissent: Most jurors didn’t even hear the offending comment, and they all said they weren’t influenced by it. The verdict should stand.
- Two Georgia voters compare USPS change-of-address data to voter registrations, then sue the state alleging that it’s violating federal law by not kicking movers off the voter rolls. Eleventh Circuit: Even if your analyses “shook [your] faith in the electoral process” and “undermined [your] confidence,” that is not a sufficiently particularized injury to confer standing.
- And in en banc news, the Ninth Circuit will not reconsider its decision that the University of Washington violated the First Amendment by punishing a professor for mocking land acknowledgements in his course syllabus.
- And in further en banc news, the Tenth Circuit will not reconsider its decision that an officer did not violate the Fourth Amendment by peeping through a one-inch gap in a motel room’s blinds.
- And in extended en banc news, the Eleventh Circuit will reconsider its decision that courts have the power to enforce the Takings Clause’s just-compensation requirement—a question on which IJ has expressed some firmly held views.
New case! After an Omaha family christened their speakeasy bar “The Barber Shop Blackstone” in honor of their dad (“Don the Barber” DiGiacomo), the Nebraska Board of Barber Examiners threatened them with criminal punishment. Why? Because—this is not a joke—the Board claims only licensed barbers can use the words “barber shop” or display a striped barber pole. This week IJ joined the family’s already filed federal lawsuit. And while it continues, they’re unveiling a temporary new name: The Censored Shop Blackstone, to avoid potentially ruinous fines and even jail time.
The post Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal appeared first on Reason.com.
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