Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

October 23, 2026 · Reason

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

New case! In Feb. 2025, federal agents raided IJ client Mario Ayala Cruz's check cashing and money transfer business in Glendale, Ariz., seizing computers, cell phones, documents, and over $450k in cash and checks. And then … nothing. Mario, who runs the business (by the book) with his wife and adult children, has not heard anything for 20 months. No charges have been filed, and the feds are way past the 60-day deadline to either initiate civil forfeiture or return the property. Which violates the Fourth Amendment and federal law—and was extra crummy because it forced Mario to cut short his final visit with his dying father in Mexico. Click here to learn more.

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New on the Short Circuit podcast: We get a Rocky Mountain high at the Tenth Circuit Bench & Bar Conference. Learn all about what makes the circuit tick from the experts we met there, including our first guest from a circuit historical society.

For decades, federal guidance has limited immigration enforcement at "sensitive locations," including houses of worship. Recently, DHS and ICE release new policy guidance allowing "discretion" and "case by case" decisions regarding enforcement at churches, synagogues, and mosques. Religious organizations sue. D.C. Circuit (over a dissent): And they have standing.
After spending 7.5 years in pretrial detention at Rikers, man is finally sentenced to a max of 7 years—time to let him out! But prison officials drag their feet for another 17 days. Second Circuit: Case undismissed. He plausibly alleged the city and its officials are turning a blind eye to overdetention.
Sure, says two-thirds of this Third Circuit panel, the plaintiff church has shown a good bit of evidence that Collier, Penn. officials rejected its application to build a 13k-square-foot shrine out of animus towards the church's pro-life advocacy, but that doesn't mean it gets a preliminary injunction because there's absolutely nothing "preliminary" about building a 13k-square-foot shrine.
Judge presides over 1993 murder trial in Philadelphia where the prosecutor is … also an eyewitness in a separate personal injury suit where the judge is the plaintiff. Conflict of interest? Third Circuit (unpublished): Judicial, prosecutorial, and municipal immunity.
Federal prisoner is put in solitary for nearly three years without a hearing and then ultimately cleared of role in the death of another inmate. He brings FTCA claims; they're dismissed; he doesn't find out in time to appeal. SCOTUS (2025): And we agree with him (and the feds) that he did enough to reopen the case. Fourth Circuit (2026): And we agree with him that his 2017 complaint was timely; he was Heck barred from filing earlier.
Looking for some light reading this weekend? How about 173 pages from the Fourth Circuit about whether the church autonomy doctrine protects a Catholic social-services agency's decision to refuse to provide health-insurance benefits for an employee's same-sex spouse.
Trial-advocacy tip: If you're going to "cross[ ] the bounds of proper advocacy," try to make sure the court's enumeration of your misdeeds runs to no more than four pages. The four-and-a-half-page list in this Fifth Circuit opinion is a bad look. (Your humble summarist further recommends that readers ctrl-f for "skunk.")
FBI agent: I accidentally shot a hostage dead in 2018 after he popped up unexpectedly on the other side of a window we were breaching, leaned out of the window, and then grabbed my gun. District court: Lies. The hostage was blindfolded, his hands were duct-taped, and he grabbed nada. The federal gov't must pay $2.3 mil for the intentional torts of its agent. Fifth Circuit: Make that $1.9 mil. Dissent: We should be focusing on punishing the hostage takers (now behind bars), not the agent (who got qualified immunity).
Mississippi adopts a law cracking down on state-sponsored DEI programs. District court issues a TRO, then a corrected TRO, then a P.I., finding a likely First Amendment violation. Cool? Fifth Circuit: The merits were wrong and require a do over. More importantly, the initial TRO had several legal and factual AI hallucinations (including non-existent defendants), even the corrected (and back-dated) TRO had a hallucination, and the P.I. incorporated that TRO by reference. "Because of the extraordinarily grave errors by the district court, we vacate and remand for assignment to a different district judge."
Come for the dramatic retelling of Rebel Without a Cause. Stay for the definitely-not-just-a-form-of-intermediate-scrutiny Bruen analysis that leads the Fifth Circuit to conclude much of the Federal Switchblade Act violates the Second Amendment.
South Texas non-profit alleges FEMA has secret policies for determining disaster-relief eligibility and that it's violating the Freedom of Information Act by not posting them in an online "reading room." Fifth Circuit: FOIA empowers district courts to compel posting materials online in appropriate cases. Remand to determine whether this is such a case.
Friends, the LSIPA, as enforced by ERCOT's CEO, prevents GHAE from messing with Texas. But is the LSIPA conflict- or field-preempted by the DPA's CFIUS (to say nothing of FIRRMA)? Fifth Circuit: Texas can indeed ban certain investments from China, Russia, etc. to protect its electric grid.
Michigan prisoners sue under the Eighth Amendment, alleging that their facility is overrun by toxic mold. (In response to their request for fungicide to clean it themselves, the warden allegedly tells them to just scrub harder.) Officials: The prisoners didn't allege "heinous" conduct. And they didn't point to cases about these specific strains of mold. Sixth Circuit: No, this is going to discovery. No qualified immunity (for most defendants) on these allegations.
Tennessee inmate with chronic back problems suffers abrupt decline: He can no longer sit, stand, walk, eat, or take a deep breath. His pain is excruciating, and an x-ray shows several possible new issues. Even so, he's not sent to the hospital for two weeks, and a staph infection, which had been treatable, renders him paralyzed. Deliberate indifference? District court: No. Sixth Circuit: Maybe. To trial this must go. Dissent: No.
Federal law authorizes the president to call upon a state's national guard to put down a rebellion. But even applying highly deferential review, says the Ninth Circuit (over a dissent), a rebellion is not an honest description of the protests last year in Los Angeles. President Trump's order federalizing the California National Guard was unconstitutional.
At age 21, Iranian immigrant gets busted for marijuana possession; for over 20 years, he stays out of trouble and abides by all sorts of conditions in order to remain here. Like, in 2025, getting ICE's permission to move from California to Kansas, where ICE agents arrest him weeks later in his yard in front of his U.S. citizen wife. Tenth Circuit: His release (after eight months) doesn't moot his habeas case because ICE re-detains people all the time. Nor does it prevent the district court from ordering the feds not to deport him. Nor does it stop us from declaring that the feds didn't follow their own rules, violating due process. Dissent: This is moot.
It is a serious crime to lie on the paperwork and buy a gun for someone who is not allowed to have one. Less common is buying a gun for someone who is allowed to have one—because you get a military discount and they don't. Tenth Circuit (unpublished): Still a crime, though.
With decidedly less jam than the Allman Brothers, Congress passed the Midnight Rider in 2005, allowing Oklahoma to regulate environmental programs in Indian country with the EPA's approval. Everyone proceeded to ignore the rider until the Supreme Court determined that much of the state was actually Indian country. Reanimated, Oklahoma sought and obtained the EPA's approval in 2025—an approval the Pawnee Nation now challenges. Tenth Circuit: The EPA is bound to keep on ridin', as the approval was appropriate.
One response to our embittered, social-media-coarsened discourse might be to take a deep breath and focus on the important things. Alternatively, you could follow our example and tuck into this 46 pager from the Eleventh Circuit on Florida's procedures for figuring out which books belong in school libraries, and, in the inevitable lawsuits that follow, whether school board members are or are not shielded by legislative privilege from having to testify about their motives in removing books that they consider too sexual. (By a 2-1 vote, yes, they have to testify.)
Man serves 23 years of 75-year sentence, is exonerated by (among other things) modern DNA testing. District court: He can't sue a Georgia DNA analyst for testilying that the original testing resulted in a match, but he can sue the analyst for fabricating evidence outside of court. Eleventh Circuit (unpublished): Reversed; the only thing allegedly fabricated was the testimony, and lying witnesses are absolutely immune from civil liability. (Click here for a lovingly crafted podcast on common law immunity for witnesses, which, no, would not have protected this analyst.)
And in en banc news, the Ninth Circuit will not reconsider its (unpublished) decision reaffirming circuit precedent applying a "sliding scale" test for awarding preliminary injunctions. Ten judges dissent from denial, arguing that the Ninth Circuit's test conflicts with Supreme Court precedent. Three of those judges separately dissent to argue that the Ninth Circuit is too stingy about recognizing when the Supreme Court has disagreed with circuit precedent, and the Court should straighten them out.

New case! IJ client Karli Kemper, a 25-year teaching vet, runs State 48 Arts and Academics, an innovative microschool in Pinal County, Ariz. that has been life changing for its students, most of whom have special needs and struggle in traditional settings. But the county is threatening to shut it down. Even though schools are allowed by right in Kemper's rurally zoned neighborhood, officials say that means public and charter schools, not private schools. That's outrageous, and so are the numerous onerous conditions officials insist that Kemper must follow, even assuming they grant her special-use permit application, which they want denied anyway. Click here to learn more.

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