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
Bogus traffic stops, cell-site simulating, and chain refoulment.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
"Technology may make surveillance more convenient, but it does not make the Fourth Amendment's protections any less important." So said IJ legislative counsel Alasdair Whitney this week at a congressional hearing on Flock and other automated license plate readers. Read all about it at The Hill. And then maybe check out our model legislation on the topic.
New on the Short Circuit podcast: We welcome on Robert Steinbuch, a professor at the University of Arkansas, to tell a tragic story of the upside-down world of federal remedies.
- After Anthropic refused to relax contractual prohibitions on the use of Claude for lethal autonomous warfare or domestic surveillance, the DoD deemed it a supply-chain risk and prohibited any of its contractors from using it. D.C. Circuit: Which was fine. Dissent: Clearly not what Congress meant.
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In 2015, when Somerville, Mass. detective asks an informant to help locate a burglary suspect, the informant threatens to hurt the suspect (over an unrelated personal beef)—and then does, grievously, with a machete. City: We'd like to fire the detective for lack of candor about his role. Arbitrator: Not a chance. (The city's appeal is ongoing.) Detective (in a separate suit): Other officers have done worse and weren't fired; the city is retaliating against me. Jury: Yup, pay the detective $800k. First Circuit: More like $300k. (Some journalism.)
- Some of a district court's ruling against DHS evaporates in a cloud of Article III standing in this First Circuit opinion. However, requirements for adequate notice regarding third-country removals of noncitizens remain. Less noticeable is the use in footnote 2 of the word "refoulment" (in the context of "chain refoulment"), which means "forcing a refugee or asylum seeker to return to a country or territory where they are likely to face persecution." Originally a French term, it was not listed in the original OED and, unlike many of its Law French friends, seems to have only migrated into English (along with human rights law) after WWII.
- Maryland appeals court (2016): It was unconstitutional for Baltimore police to use a cell-site simulator without a warrant to locate this shooting suspect. Suppress the evidence. Fourth Circuit (2026): It was unconstitutional, and we have concerns about law enforcement relying on private nondisclosure agreements "as an excuse to conceal or obfuscate important information when seeking a search warrant." But qualified immunity, state-law "public official" immunity, and municipal immunity doom his claims for damages for the nearly two years spent in pretrial detention.
- It's beyond debate that officers cannot pull someone over without reasonable suspicion and then invent a bogus reason for the stop afterwards, says the Fifth Circuit (per curiam, unpublished). So this case about Alexandria, La. officers who said a motorist failed to signal despite dashcam footage showing otherwise (and who then unlawfully prolonged the stop) will proceed past the pleading stages (nearly four years and over 200 docket entries after it was filed). No qualified immunity. (This is an IJ case.)
- With many other gun laws not faring so well, it's surprising that the ban on selling guns across state lines (except for gun-industry licensed professionals) has survived. Well, until now, at least in the Fifth Circuit. If you only plan to skim, might we suggest skipping to page 11, which provides a long list of old-timey gun laws, including one related to "Bacon's Rebellion."
- Sixth Circuit (over a dissent): A Tennessee law that prohibits sharing truthful information with minors about how to obtain an abortion out-of-state is a content-based restriction on speech, and the state didn't even try to argue it satisfies strict scrutiny. Enforcement enjoined.
- Indiana man gets life for gun and drug crimes, but wait! His sentence was enhanced because of some threatening text messages (that the jury didn't see) discovered by dint of a warrantless forensic examination of his phone. Seventh Circuit (unpublished): Qualified immunity. It's not clearly established that if the examining officer is told there's a warrant, and there isn't, that that's an unconstitutional search.
- Honestly, kudos to this guy who told the Ninth Circuit that using a stolen identity for over 30 years should constitute "adverse possession" rather than identity theft. The case comes out the way you'd expect, but still: Way to go down swinging—or, y'know, identity-thieving.
- Idaho declared 40 years ago that the time had come to adjudicate water rights in the Snake River Basin. State courts decreed more than 158,600 water rights over the ensuing 27 years, including claims filed by private landowners, the U.S. gov't, and ranchers whose livestock graze on federal lands. In 2017, three years after the last water right was decreed under this system, Idaho changed its laws about stockwater rights (the right to use water for livestock), from how people could challenge them as forfeited to limiting the feds' ability to acquire such rights. After wading through a procedural morass, the Ninth Circuit concludes the new laws violate the Supremacy Clause.
- Like many states, Hawai'i requires firearm purchasers to obtain a permit before they can buy a gun. Unique among states, Hawai'i's permits become void after 30 days, and purchasers must bring some of their firearms to a police station for inspection. A Second Amendment violation? Ninth Circuit (en banc): Nope. There's a footnote in Bruen that creates a safe-harbor for this sort of thing. Dissent (VanDyke, J.): "[I]f our court's takeaway from Bruen is that Bruen changed the law to make it harder to mount a successful Second Amendment challenge, then somebody has seriously lost the plot."
- The Supreme Court has said that if an asylum applicant entered the country illegally but was apprehended a mere "25 yards" inside the border, that's basically at the "threshold of initial entry" and not far enough to gain any constitutional due process rights. ICE: And by "25 yards," the Court meant anywhere in the country. Ninth Circuit: Um, no.
- "For much of the 150-plus-year history of school yearbooks," recounts the Ninth Circuit, "the embarrassing photographs and cringeworthy anecdotes featured in these annual volumes languished in obscurity, tucked away in basements and closets across the country." In our modern era, Classmates.com now publicizes hundreds of thousands of yearbooks online. And, the Ninth Circuit holds, a district court properly certified classes to seek monetary and injunctive relief against the website's creator for violating California's right-of-publicity statute.
- On cross-country flight, man, an Egyptian immigrant, won't stay in his seat, repeatedly goes to different bathrooms, stares fixedly at other passengers, and snaps a photo of flight attendants. An attendant approaches to ask him to stay in his seat, but yelling ensues and a federal officer intervenes. Jury: The airline must pay him $7.2 mil for physical and emotional injuries. District court: Vacated. It need not. Ninth Circuit: Indeed, airlines enjoy immunity for reporting suspicious behavior, and that includes immunity for what happens after they report it. Dissent (Higginson, J.): The jury didn't think he was suspicious.
- In 2019, family sues property manager, others in state court over mold problem in their Coronado, Calif. military housing. Ninth Circuit (2025): And indeed this belongs in state court. Supreme Court: GVR'd! Might be that the defendants are federal officers and this belongs in federal court. Ninth Circuit (this week): It belongs in state court.
- Alabama man with terminal brain cancer and a scarred, shaved head with staples in it, who is shirtless and covered in blood (from shattering an ambulance's windshield with his fists), disobeys orders to stop advancing toward officers—and then attacks an officer, who shoots him dead. Eleventh Circuit: And here's 87 pages on why that's not a Fourth Amendment violation, precipitated—your humble summarist is bold to imagine—by some arguments from the man's estate's lawyer that were not well taken.
"The Court is simply not inclined to take the Government's word for it." This week, a federal judge in Alabama issued a stay barring the feds from enforcing what sure seem (to the court) like three unconstitutional policies: warrantless raids of construction sites, detentions of (non-white) workers on those sites without individualized suspicion, and disregard of evidence that the detainees are citizens, like DHS-certified REAL IDs. "For the first time in a long time, I will be able to go to work without worrying that I will be arrested for no reason," said IJ client Leo Venegas. Click here to learn more.
Facts Only
* Alasdair Whitney discussed technology's impact on the Fourth Amendment in a congressional hearing concerning Flock and automated license plate readers.
* A D.C. Circuit opinion addressed a conflict between Anthropic’s refusal to relax contractual prohibitions regarding Claude use for lethal autonomous warfare or domestic surveillance and the DoD’s prohibition of contractor use.
* A scenario involved a detective threatening an informant, which led to litigation over candor and retaliation claims by the detective.
* A district court ruling against DHS was discussed in the context of Article III standing in a First Circuit opinion regarding requirements for notice concerning third-country removals of noncitizens.
* A Maryland appeals court decision in 2016 found it unconstitutional for Baltimore police to use a cell-site simulator without a warrant to locate a shooting suspect.
* A Fourth Circuit opinion in 2026 found the use of cell-site simulators unconstitutional and raised concerns about law enforcement using private nondisclosure agreements to conceal information sought during warrant applications, noting issues with qualified immunity for officers.
* The Fifth Circuit discussed an unpublished per curiam ruling stating that officers cannot pull someone over without reasonable suspicion and then invent a bogus reason for the stop after dashcam footage contradicts it, noting no qualified immunity.
* A Tennessee law prohibiting sharing truthful abortion information with minors was found to be a content-based restriction on speech in a Sixth Circuit dissent.
* An Indiana man received a life sentence enhanced due to threatening text messages discovered via warrantless forensic examination of his phone; the Seventh Circuit opinion discussed qualified immunity regarding such examinations.
* The Ninth Circuit concluded that new laws limiting the federal government's ability to acquire stockwater rights violated the Supremacy Clause, following adjudication over water rights in the Snake River Basin.
* The Ninth Circuit addressed a challenge regarding firearm permits in Hawai'i, finding no Second Amendment violation based on *Bruen*, noting a footnote in *Bruen* created a safe harbor.
* A court opinion addressed whether an asylum applicant apprehended within 25 yards of the border gained constitutional due process rights, with the Ninth Circuit denying that such proximity implies being at the "threshold of initial entry."
* The Ninth Circuit found that historical yearbook photographs can be subject to monetary and injunctive relief under California's right-of-publicity statute.
* A jury awarded $7.2 million in damages to an Egyptian immigrant airline after he repeatedly moved during a flight, upheld by the Ninth Circuit regarding airline immunity for reporting suspicious behavior.
Executive Summary
Full Take
The collection of excerpts reveals a deep friction between established legal precedents and rapidly evolving technological realities and constitutional interpretations. A significant pattern emerges in the tension between state-level autonomy—seen in issues like water rights, firearm regulations in Hawai'i, and property disputes—and federal constitutional mandates, particularly concerning Fourth Amendment protections and due process. The repeated focus on qualified immunity, both for individual officers facing civil liability and for government entities potentially shielding information, suggests a systemic difficulty in holding actors accountable when actions intersect with complex regulatory or technological frameworks.
The handling of surveillance technologies demonstrates an ongoing jurisprudential struggle: courts grapple with whether the mere convenience offered by new tools negates constitutional safeguards, as suggested by the discussion around cell-site simulators and contractual prohibitions on AI use for surveillance. The complexity is further amplified by the movement of precedent across different circuits, where similar factual scenarios yield divergent outcomes, such as the differing views on federal immunity or the interpretation of historical legal concepts like adverse possession versus identity theft.
The narrative implies that judicial outcomes are not merely technical applications of law but involve wrestling with fundamental societal shifts—from refugee status and property claims to privacy in digital spaces. The patterns suggest that the real consequence often lies in the fractured application of established rights across different jurisdictions, where interpretations regarding 'notice,' 'suspicion,' and 'due process' remain highly contested, leaving significant uncertainty regarding personal agency and governmental constraint.
Bridge Questions: How can legal systems develop coherent standards for applying due process when technological surveillance creates novel forms of informational control? What are the long-term systemic consequences when qualified immunity shields actors involved in privacy-sensitive enforcement actions? If precedents diverge widely across circuits, what mechanisms exist to ensure a uniform understanding of constitutional rights at the national level?
Sentinel — Human
The text reads as a highly dense compilation of disparate legal case summaries and commentary, strongly suggesting it is human-curated content designed for an informed audience rather than raw AI generation.