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Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
The Volokh Conspiracy
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Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal
Cellphones searches, home searches, and strip searches.
John Ross | 9.18.2026 3:30 PM
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:........© Reason.com
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