Designated for publication
- U.S. v. McClaren, 17-30524, appeal from E.D. La.
- Stewart, J. (Stewart, Higginson, Wilson), criminal, sufficiency of evidence, Batson challenge
- “Defendants Delwin McClaren, Dedrick Keelen, Jawan Fortia, Bryan Scott, and Lionel Allen were convicted of numerous crimes related to their participation in a New Orleans street gang. We AFFIRM their convictions in part and VACATE in part.” Court decided issues related to a denial of a motion to sever; Batson challenges; use of co-conspirator testimony; sufficiency of evidence for proving a RICO conspiracy, VICAR convictions, drug-trafficking conspiracy, the quantity of drugs involved, and firearms offenses; admission of a co-conspirator’s plea agreement document; motion for new trial; and reasonableness of the sentences.
- Tucker v. City of Shreveport, 19-30247, appeal from W.D. La.
- Engelhardt, J. (Clement, Higginson, Engelhardt), Higginson, J., dissenting; qualified immunity
- Reversing denial of qualified immunity to two officers on excessive force claims, and remanding for further proceedings on claims against city.
- Judge Higginson dissented:
- “The district court, in an extensively detailed order, determined that issues of fact precluded summary judgment based on qualified immunity for the Defendant Officers. I agree with the district court that fact issues remain as to whether Tucker, a motorist whose brake light was out, actively resisted arrest to justify a sudden, violent takedown and repeated physical blows and open kicks while prone and unarmed and surrounded by officers. See Trammell v. Fruge, 868 F.3d 332 (5th Cir. 2017); see also Wright v. City of Euclid, 962 F.3d 852 (6th Cir. 2020). I would affirm the district court.
- “Video footage of the incident confirms the violent takedown and Defendant Officers’ use of repeated strikes and kicks against Tucker while he was on the ground. Tucker asserts that, immediately prior to the takedown, he was putting his hands behind his back in compliance with Officer Cisco’s order and did not pull away from Officers Cisco and McIntire prior to being taken to the ground. The footage does not ‘blatantly contradict’ his account. See Darden v. City of Fort Worth, 880 F.3d 722, 729 (5th Cir. 2018); see also Scott v. Harris, 550 U.S. 372 (2007).
- “The law is clearly established that the use of violent physical force against—not to mention the extreme violence of kicking—an arrestee who is not actively resisting arrest is a constitutional violation. Darden, 880 F.3d at 731. It may be that the Defendant Officers will nonetheless prove entitled to qualified immunity for the extreme force they used against Tucker from start to finish. But, as the district court found, a jury must first resolve the factual uncertainty as to whether Defendant Officers had justification and urgency to throw Tucker down and repeatedly strike and kick him. See Joseph v. Bartlett, 981 F.3d 319, 342 (5th Cir. 2020); Goode v. Baggett, 811 F. App’x 227, 232 (5th Cir. 2020); see also Wright, 962 F.3d at 868 (whether motorist’s ‘arm movement’ was active resistance as opposed to passive presents a quintessential jury question, indeed, noting that such movement could be deemed ‘minimal to the extent that it constituted resistance at all’).
- “I regret not having persuaded the majority. I hope, however, our disagreement highlights the importance of recent attention given to the issue of qualified immunity and violent police-citizen encounters. See Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) (en banc); id. at 470 (Willett, J., dissenting); id. at 473 (Ho & Oldham, JJ., dissenting); see also Jamison v. McClendon, 476 F. Supp. 3d 386, 423 (S.D. Miss. 2020) (exhortation to revisit doctrine of qualified immunity). From my perspective, it is not our role to second guess a district court’s assessment of factual disputes, here pretermitting resolution of uncertainties about excessive force, specifically why police inflicted such abrupt and steadily escalating violence against this motorist whose brake light was out.
- “When there is no dispute about the reasonableness of the use of force, for example when an arrestee flees or is an aggressor, the doctrine of qualified immunity will shield defendant officers. But here, I agree with the district court that qualified immunity is not yet an available tool to resolve this fact-laden, extended, and brutal police-citizen encounter. See generally Graham v. Connor, 490 U.S. 386, 396 (1989). Instead, careful resolution properly comes, and constitutionally must come, from citizen peer jurors. Their fair assessment is vital as much for fellow citizens like Tucker and public trust, as it is for the police who respond to situational threats with professional restraint and seek to be distinguished from the few who do not, whose misconduct is maliciously unrestrained. One acting under color of law who throws a fellow citizen to the ground and then, when the other is prone surrounded, and unarmed, repeatedly strikes and kicks him, surely gives rise to a material question of fact as to whether that government force is excessive.”
- Cameron County Housing Auth. v. City of Port Isabel, 19-40717, appeal from S.D. Tex.
- Oldham, J. (Smith, Ho, Oldham), standing
- Affirming dismissal of Fair Housing Act claims against city by county housing authority arising from housing authority’s failure to secure funds to rebuild housing project damaged by Hurricane Dolly due to the city’s failure to rezone the property to allow rebuilding of the complex or to timely issue permits for a reduced-scope complex, for lack of standing. The Court held that the housing authority’s claimed injury, the complete removal of the funding commitment, was not fairly traceable to conduct of the city but was self-inflicted by the housing authority’s own protracted efforts to get the necessary permits.
- Academy of Allergy & Asthma in Primary Care v. Quest Diagnostics, Inc., 20-50179, appeal from W.D. Tex.
- Stewart, J. (Stewart, Higginson, Wilson), antitrust law
- Affirming in part, reversing in part, and remanding district court’s dismissal of plaintiff’s antitrust claims against defendant for attempting to push plaintiff out of market for providing allergy and asthma testing.
- In re: Jones, 21-10507, appeal from N.D. Tex.
- Higginbotham, J. (Higginbotham, Dennis, Elrod), habeas corpus, death penalty
- Denying motions to file a successive § 2244 petition and for stay of execution based on claims of intellectual disability and false and misleading testimony.
Unpublished
- Shin v. Allstate Texas Lloyd’s, 19-20698, appeal from N.D. Tex.
- per curiam (Wiener, Enghelhardt, Oldham), insurance
- Vacating summary judgment in favor of defendant insurer on prompt payment claims, and remanding for further proceedings.
- U.S. v. Allen, 19-30983, appeal from W.D. La.
- per curiam (Clement, Higginson, Engelhardt), criminal, sufficiency of evidence
- Affirming conviction on one count of aggravated sexual abuse and one count of sexual abuse of a minor or ward.
- U.S. v. O’Donnell, 20-10225, appeal from N.D. Tex.
- per curiam (Dennis, Costa, Engelhardt), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Ramirez-Jaramillo, 20-10703, appeal from N.D. Tex.
- per curiam (Smith, Stewart, Higginson), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Thomas, 20-10950, appeal from N.D. Tex.
- per curiam (King, Southwick, Ho), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. McGee, 20-30586, appeal from W.D. La.
- per curiam (Haynes, Willett, Ho), criminal, sentencing
- Affirming 24-month sentence on revocation of supervised release.
- U.S. v. Perez-Rodriguez, 20-40167, appeal from S.D. Tex.
- per curiam (Dennis, Costa, Engelhardt), criminal
- Granting Anders motion to withdraw, and dismissing appeal.
- U.S. v. Medina-Oliden, 20-51021, appeal from W.D. Tex.
- per curiam (Davis, Stewart, Dennis), criminal, sentencing
- Granting summary affirmance of 57-month sentence for guilty plea conviction of illegally reentering the United States following removal.
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