The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Cellphones searches, home searches, and strip searches.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Do Flock cameras actually reduce crime? The company says a new study shows it. But, looking at the same study, we see no statistically significant changes in car thefts and car-theft clearances for the average agency. Click here to learn more.
New on the Short Circuit podcast: SWAT teams at the Supreme Court?
- The plaintiff in this First Circuit case isn't allowed to proceed under a pseudonym—and neither is the judge, though she entertains the possibility for a bit.
- Can associations bring lawsuits under Section 1983 on behalf of their members? The Second Circuit said "no" in 1973, but since then every federal circuit—citing the Supreme Court—has disagreed. Luckily, the Second Circuit can fix these sorts of problems with a "mini en banc," a "salutary practice" in which the panel asks the rest of the circuit if they can reverse the earlier precedent. Second Circuit: Which we now do.
- Neither the Second Circuit nor the Supreme Court has addressed the constitutionality of warrantless, suspicionless searches of cellphones at the border. Second Circuit: Which we now do, and it's bad news for this identity thief busted at JFK Airport. Concurrence: And bad news for everyone else.
- The Third Circuit giveth: Henceforth, the Fourth Amendment generally requires a warrant supported by probable cause to strip search an arrestee (deepening a circuit split). The Third Circuit taketh away: But qualified immunity in this case.
- New Jersey child welfare officials search a home and later remove children on concerns that mother's boyfriend is abusive and that the home is in poor condition. Third Circuit: Might be a Fourth Amendment violation if the officials searched the home based only on a vague unsubstantiated complaint, but qualified immunity for substantive and procedural due process claims. Partial dissent: I would look at more evidence and also conclude there's no case sufficiently on point to overcome qualified immunity on the Fourth Amendment claim.
- The questions "what is a reality show?" and whether "My 600-lb Life" is one have sparked a Fifth Circuit symposium on the party presentation principle. Majority: The argument made on appeal (relating to whether the defendant insurer must pay claims related to the show) was waived below, so we don't have to answer those metaphysical questions. Concurrence: Sometimes we can address arguments waived below—but not when they're the exact opposite of what a party argued below, like here. Dissent: Our job is to get the law right and my two cents is "reality show" is ambiguous. Like, does that include "Monday Night Football"?
- Homeowners: Austin violated 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, I see. So it's barred by Pullman abstention! (City, on appeal: Oh, and now it's moot!) Fifth Circuit (this week): It is none of those things, and we politely suggest that maybe this six-year-old case could start to move forward a bit.
- After being accused of stalking, New Orleans university student is arrested by campus police. An officer shares info about the arrest with a student reporter, who writes it up in the school paper. The arrested student sues the school for defamation, etc. (He drops out; the criminal case against him is dropped.) Fifth Circuit: And the school will have to keep defending. State anti-SLAPP laws don't apply in federal court. Judge Oldham, dubitante: We don't have interlocutory jurisdiction over this.
- Putative class of children brings Section 1983 suit against current and former officers of the Illinois Department of Children and Family Services, alleging that they kept the kids in juvenile detention long after the kids were ordered released. District court: Aha, but you're seeking damages from the officers based on the acts they took as officers of the state, meaning your suit is actually against the state, and the state is sovereign-ly immune. Seventh Circuit: What on earth? Section 1983 literally says people can sue for damages when officers violate their rights "under color of" state law. Case undismissed.
- 2022 Minnesota gubernatorial candidate, a doctor, ran on the message that Covid-related school closures and vaccine mandates were problematic. The state medical board took umbrage, launched multiple investigations into whether he was spreading misinformation. He hired an attorney, responded to the investigations, and spent countless hours preparing for an in-person conference. No punishment ensues. Doctor: It violates the First Amendment to interfere with my speech on public matters outside the doctor-patient relationship. Board: He doesn't have standing to sue. Eighth Circuit: Oh, but he does.
- Programmers: Copilot reproduces our code without attribution. Removing that information violates the DMCA! Ninth Circuit: If AI_generates_code_rather_than_removing_attribution: raise WrongStatuteError("You may be thinking of copyright infringement.")
- California Indian tribes allege that Kalshi's "event contracts" on sports outcomes—when offered on tribal land—violate the Indian Gaming Regulatory Act. Ninth Circuit: And they're probably right.
- Alaskans sue the Native Village of Eklutna and the National Indian Gaming Commission over the approval of gaming operations on tribal land. Uh oh! The tribe has sovereign immunity AND is a necessary party. District court: So the whole case is dismissed. Ninth Circuit: Agreed. Concurrence (Bumatay, J.): That's right under the precedent, but it creates a one-way ratchet where the tribe can challenge rules that disfavor it, but no one can challenge rules that favor the tribe. We should trust the federal gov't to represent the tribe's interests in court. Concurrence (Bea, J.): That feels like a historically dubious proposition.
- On the eve of trial, and after initially denying it, the gov't admits that two Border Patrol agents testifying against defendant (for illegal entry) are members of a Facebook group where agents share unprofessional memes and jokes. Ninth Circuit: Conviction conditionally vacated. A bit more discovery about that was in order. (Ed.: Via ProPublica, you can see some of it. It's graphic.)
- District court: Among other steps Oregon needs to take to protect transgender inmates from violence, the state needs to stop categorically placing those who identify as women in men's facilities. Ninth Circuit: The record shows the state is in fact conducting individualized assessments and has placed 8 of 26 inmates who requested it in the women's prison. And not for nothing, but the named plaintiff who's still incarcerated has a very disturbing history of violence against women. PI vacated. Class decertified.
- A Kirkland, Wash. church had a health insurance plan for its employees that excluded abortion coverage. But the plan is discontinued after the state passes a law requiring abortion coverage (if an employer's plan covers maternity care). Regulations subsequently clarify that the law does not affect conscience-based objectors like the church. So, does the church have standing to challenge the law because it indirectly made the original plan unavailable? Ninth Circuit (2021) (unpublished): Seems like it. Ninth Circuit (2025, withdrawn): Actually, no. There are other plans out there that exclude abortion. Just go get one. Ninth Circuit (2026): The church has standing, but (over a dissent) the law is constitutional.
- Bay Area Rapid Transit fires six employees for not taking the COVID-19 vaccine after BART refused to give them a religious accommodation. They had various roles, none of which put them in close contact with the public. Three years later a jury awards them a cool $7.8 mil under Title VII and state employment law. Ninth Circuit: It's hard to reverse a jury verdict! Concurrence: The plaintiffs got shafted on their free exercise claim. But it's the fault of precedent. Smith delenda est.
- Under Colorado law, first responders can certainly exceed the speed limit in an emergency, but they must have emergency lights mounted "as high as practicable." District court: So this Kiowa County deputy who had lights mounted just above his license plate is not immune from suit over a fatal crash. Sheriff: The post-collision photos are unreliable. Please instead rely on photos of a different police vehicle with properly mounted lights, which reflect the true placement of the lights on this deputy's vehicle. Tenth Circuit (unpublished): Not going to do that. But the ruling below is vacated so that the court can make a finding on whether the deputy's siren was on. (If it was: immunity.)
- In 2002, Denver Water first sought to address a looming water shortage by increasing the capacity of a reservoir. The Army Corps of Engineers issued the permit after 15 years of process, and the $600 million construction project wrapped up in 2026. Environmental groups: This violates a host of federal laws, including the Clean Water Act. Tenth Circuit: It does not. "The touchstone for judicial review of agency action is deference, and nowhere is deference more appropriate than when an agency exercises its expertise to make technical and scientific judgments."
- Suspected shoplifter at Duluth, Ga. Walmart flees out a back door but is found by police, tased, and charged with obstruction of justice. He has his own issues with The Law but also sues Walmart and an employee, raising federal and state claims. He drops the federal claims. The district court then throws out some state claims and declines to exercise supplemental jurisdiction over other state claims. But can it split the baby like that? Eleventh Circuit: Yes. But he should get to go forward with his malicious prosecution claim at this stage.
- Allegation: Woman calls Tampa, Fla. police to report a suspicious man with a gun near her apartment. Officers don't locate him, and when they knock on the woman's door, her dog slips out and runs at an officer, who shoots it in the head. (It lives.) She tries to take the dog to the vet, but officers stop her. Eleventh Circuit (unpublished): Which was very possibly an unreasonable seizure. But QI. There's no prior case saying it's unreasonable to detain a witness to a shooting for 12 minutes.
- And in en banc news, the Ninth Circuit will not reconsider its decision that the VA needs to build some housing for disabled veterans on 600 acres between Santa Monica and Los Angeles that were deeded to the U.S. in the late 1800s for housing disabled veterans. Dissental 1: Wrong on the merits. Dissental 2: Wrong because there's no private right of action.
- And in state court news, the Georgia Supreme Court unanimously (minus a recused justice) holds that exercises of the police power are not categorically exempt from the Georgia Constitution's just-compensation requirement. So a lawsuit by a legal hemp grower over $37k in damages caused by police during a routine law enforcement exercise may proceed.
Friends, when law enforcement intentionally damages private property to catch a bad guy (or do some other public service), that right there is a Fifth Amendment taking requiring just compensation (so long as the property owner has clean hands). But while we're waiting for the Supreme Court to take up a pair of petitions and make that clear, IJ's crack research team went ahead and researched, finding thousands of claims for law enforcement damage across 222 jurisdictions over nine years. What have we learned? Lots! The overall payment rate is abysmal. Some jurisdictions compensate almost no one. Others, meanwhile, pay nearly every claim. And we learned that if every jurisdiction did pay every claim in our dataset—even ones that might not qualify as takings—it wouldn't break the bank. Click here to learn more.
Facts Only
* A study concerning Flock cameras showed no statistically significant changes in car thefts or clearances for the average agency.
* The plaintiff in a First Circuit case was disallowed from using a pseudonym, as was the judge.
* The Second Circuit established that associations cannot bring Section 1983 lawsuits on behalf of members unless they utilize a "mini en banc" process to reverse prior precedent.
* The Second Circuit and Supreme Court have not addressed the constitutionality of warrantless, suspicionless searches of cellphones at the border.
* The Third Circuit generally requires a warrant supported by probable cause for stripping search an arrestee, while ruling qualified immunity in a specific context.
* New Jersey child welfare officials searched a home based on unsubstantiated complaints; the court considered Fourth Amendment violations but granted qualified immunity for due process claims.
* A Fifth Circuit symposium addressed the party presentation principle regarding reality shows and whether metaphysical questions should be answered when an argument is waived.
* The Fifth Circuit addressed challenges related to incorporation and jurisdiction in property cases, noting that some jurisdictional bars are based on abstention doctrines.
* A Minnesota gubernatorial candidate faced investigations by the state medical board but received no punishment, citing First Amendment protections for speech outside the doctor-patient relationship.
* Programmers using Copilot generate code without attribution, raising DMCA concerns, leading to a Ninth Circuit statement about potential copyright infringement.
* California Indian tribes alleged violations of the Indian Gaming Regulatory Act regarding event contracts on tribal land.
* The Ninth Circuit vacated a conviction because two Border Patrol agents shared unprofessional memes in a Facebook group, suggesting discovery was insufficient for conviction.
* A class of children brought a Section 1983 suit against former government officials regarding juvenile detention; the court found the suit was against the state due to sovereign immunity.
Executive Summary
Full Take
The collection demonstrates a persistent tension between evolving constitutional standards, procedural precedent, and the practical application of law across diverse federal jurisdictions. A central pattern emerging is the friction caused by circuit splits—for instance, on the scope of Fourth Amendment protections or the exercise of state police power. The analysis moves beyond simple legal outcomes to examine how judicial mechanisms (like en banc review or abstention doctrines) are used to manage these conflicts, often prioritizing stability over immediate resolution, as seen in the Fifth Circuit's approach to metaphysics or the Ninth Circuit's decision regarding tribal sovereignty and gaming rights.
The tension between government authority and individual rights is evident across domains: surveillance (cellphone searches), public speech (First Amendment challenges), and property rights (eminent domain and public safety). The handling of systemic issues, such as the failure in compensation for law enforcement actions leading to property damage, suggests that legal processes alone are insufficient; there is a recognized gap between the existence of a right and its actual, equitable realization. This pattern implies that perceived procedural fairness often masks deeper structural imbalances where systemic outcomes—like disparities in compensation or due process—are shielded by established doctrines like qualified immunity or sovereign immunity.
The focus on AI attribution and media content highlights a contemporary challenge: how existing legal frameworks adapt to novel forms of creation and ownership when applied outside traditional contexts. The fact that courts grapple with these new concepts—whether code generation constitutes infringement, or whether an employer’s exclusion of services impinges on conscience-based objectors—indicates that the bedrock principles of law must constantly be reinterpreted in light of technological and social shifts to maintain cognitive sovereignty for all parties involved.
Bridge Questions: How should appellate courts balance the need for predictable precedent with the imperative to address emergent societal concerns? What role should judicial interventions play when systemic failures, such as inadequate compensation for state-sanctioned actions, are evident across multiple jurisdictions? When new technologies emerge, what proactive legal standards must be established to ensure that evolving definitions of property, speech, and agency maintain human dignity rather than simply reflecting existing institutional inertia?