Take the Fifth

Designated for publication

• Doe v. Mckesson, 17-30864, appeal from M.D. La.
  • per curiam (Jolly, Elrod, Willett), Elrod, J., concurring; negligence
  • On remand from the U.S. Supreme Court, the panel certified questions to the Louisiana Supreme Court.
  • In this suit, the plaintiff police officer had sued the leader of a Black Lives Matter protest in Baton Rouge for injuries the officer received when he had been hit by a chunk of concrete thrown by an unidentified participant in the protest march. The district court had dismissed the suit at the 12(b)(6) stage, finding that the alleged conduct did not support one of the narrow categories recognized under Louisiana law for liability for the tortious conduct of an associate. The Fifth Circuit panel reversed, finding that Louisiana law recognized a “duty not to negligently cause a third party to commit a crime that is a foreseeable consequence of negligence.” The U.S. Supreme Court side-stepped the First Amendment issue briefed on cert. petition by the defendant, but vacated the Fifth Circuit panel decision, holding instead that the Fifth Circuit panel decision was based on an interpretation of Louisiana law that was “too uncertain a premise on which to address … [t]he constitutional issue[.]” The U.S. Supreme Court suggested that, on remand, the panel should certify the Louisiana law question to the Louisiana Supreme Court.
  • Accordingly, the panel certifies these questions to the Louisiana Supreme Court: “1) Whether Louisiana law recognizes a duty, under the facts alleged in the complaint, or otherwise, not to negligently precipitate the crime of a third party? 2) Assuming Mckesson could otherwise be held liable for a breach of duty owed to Officer Doe, whether Louisiana’s Professional Rescuer’s Doctrine bars recovery under the facts alleged in the complaint?”
  • Judge Elrod concurred. She observed that the certified questions seemed “narrow to these eyes,” but noted that the Louisiana Supreme Court was not constrained by the wording of the questions. “We stand to benefit from the Louisiana Supreme Court’s guidance on the intersection of state tort law and constitutional law, as Americans should be free to exercise their constitutional rights to free speech and assembly. While these rights are ‘fundamental in our democratic society,’ the ‘constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy.’ Cox v. Louisiana, 379 U.S. 536, 554 (1965). Moreover, ‘[t]he control of travel on the streets is a clear example of governmental responsibility to [e]nsure this necessary order.’ Id.”

• Ramirez v. Guadarrama, 20-10055, appeal from N.D. Tex.
  • per curiam (Jolly, Stewart, Oldham); Jolly, J., concurring in denial of rehearing; Ho, J., concurring in denial of rehearing (joined by Judges Jolly and Jones); Oldham, J., concurring in denial of rehearing (joined by Judges Jolly, Jones, Ho, and Engelhardt); Smith, J., dissenting from denial of rehearing; Willett, J., dissenting from denial of rehearing (joined by Judges Graves and Higginson); qualified immunity
  • Denying en banc rehearing on a 13-4 vote, of the panel’s opinion reversing the district court’s denial of qualified-immunity summary judgment to officers who had tased a suicidal man who was high on methamphetamines, who had doused himself and the house he was in in gasoline and was holding a lighter and threatening to light up himself and the house, where there were six other occupants of the house; when the officers tased him, he ignited and subsequently died from the burns.
  • In an interesting breakdown of votes, the four judges who had voted for en banc rehearing were Judges Smith, Graves, Higginson, and Willett; while the thirteen judges who voted against en banc rehearing were Chief Judge Owen and Judges Jones, Stewart, Dennis, Elrod, Southwick, Haynes, Costa, Ho, Duncan, Engelhardt, Oldham, and Wilson. However, Judge Smith and Judges Graves, Higginson, and Willett had polar opposite reasons for voting for rehearing. Judge Smith voted for the en banc to rehear the case because he wanted the en banc court to affirm the panel opinion and to overrule the Court’s prior en banc decision in Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) (en banc). Judges Graves, Higginson, and Willett voted for en banc rehearing because they believed the panel got it wrong. And in this set of divergent votes for rehearing is evidence of why some judges who have a history of ruling to ratchet down the availability of qualified immunity (in particular, Judge Dennis) voted to let this panel opinion stand–in order to avoid an opinion that would overrule or water down Cole.
  • As noted, Judge Smith dissented from the denial of rehearing, despite opining that “the unanimous panel got it exactly right.” His concern is the continued vitality of Cole, which he opined that “the court reached a result that is not only grave error but is legally and factually irreconcilable with the commendable panel decision here. … Reconsideration of Ramirez by the en banc court is the ideal vehicle for the court to modify or overrule Cole before it achieves immortality in this court’s jurisprudence. The refusal to do that is understandable―given that the panel reached the right result―but it is nonetheless regrettable in the wake of Cole.”
  • Judge Willett dissented, joined by Judges Graves and Higginson, on more traditional grounds, that he believed the panel got it wrong: “When painter-turned-inventor Samuel Morse sent the first telegraph message—’What hath God wrought?’—he was standing in the chamber of the United States Supreme Court, a place that specializes in sending historic messages. Long before 1844, when Morse tapped out his dots and dashes, and for 177 years since, the Supreme Court has issued countless directives—some more emphatic than others, but all of which we must heed. In recent months, the Court has signaled a subtle, perhaps significant, shift regarding qualified immunity, pruning the doctrine’s worst excesses. The Justices delivered that message in back-to-back cases, both from this circuit and both involving obvious, conscience-shocking constitutional violations. This case is of a piece—yet more troubling. Whereas the Supreme Court’s two summary dispositions checked us for holding, on summary judgment, that there was no violation of ‘clearly established’ law, despite obvious constitutional violations, here we held, on a motion to dismiss, that there was no violation of law whatsoever, despite an obvious constitutional violation. By giving a premature pass to egregious behavior, we have provided the Supreme Court yet another message-sending opportunity.”
  • Judge Willett disagreed with the panel’s surmising that the officers had no other reasonable option other than the one they chose. Because the panel opinion results in dismissal at the 12(b)(6) stage, Judge Willett would have held that the complaint was sufficient to state a claim that could survive qualified immunity and that discovery should have been conducted. As to the panel’s supposition, Judge Willett wrote, “Such speculation is out of place at the motion-to-dismiss stage. This is exactly why we have discovery. In what legal universe is it not even plausibly unreasonable to knowingly immolate someone? … Unable to ascertain the best alternative or to resolve these disputed facts, the panel ruled for the officers. But that’s exactly the point—how could we have disputed facts? This is 12(b)(6). There has been no discovery. Instead, we must determine whether the alleged facts, if proven true, could plausibly demonstrate excessive force. Guesswork about whether the officers had ‘apparent justification’ or a ‘good reason’ to tase a gasoline-soaked Olivas, or alternatives to doing so, is misplaced at this stage. The issue is whether this case goes to discovery, not to trial.” Further, Judge Willett rejected the panel’s conclusion that, not only was there no clear violation of a constitutional right, but that there was no violation at all, as a matter of law: “The complaint alleges a plausible Fourth Amendment violation, and an obvious one at that. How is it reasonable—more accurately, not plausibly unreasonable—to set someone on fire to prevent him from setting himself on fire? To my mind, it is unfathomable to conclude with zero discovery, yet 100% finality, that no facially plausible argument exists that these officers acted unreasonably. Perhaps discovery would have supplied crucial facts that cut the officers’ way. But we have stumbled through the looking glass when we conclude—as a matter of constitutional law at the motion-to-dismiss stage—that government officials can burn someone alive and not even be troubled with discovery.”
  • Judge Willett did not discount the facts facing the officers on the ground, but noted that it was precisely for that reason that qualified immunity was inappropriate at the 12(b)(6) stage: “These officers faced a harrowing, fast-moving situation, no question. But we cannot dispense with discovery as to the reasonableness of officers’ actions whenever circumstances are difficult. This is not second-guessing what the officers did. It’s simply, and unremarkably, recognizing that facts matter—in fact, facts are all that matter—and we must actually gather some in order to determine if these officers acted unreasonably.”
  • Judge Willett concluded: “This year America commemorates the sesquicentennial of our preeminent civil rights statute, 42 U.S.C. § 1983, the text of which promises a federal remedy for the violation of ‘any’ right—not just ‘clearly established’ ones. Nonetheless, the atextual, judge-created doctrine of qualified immunity shields lawbreaking officials from accountability, even for patently unconstitutional abuses, thus largely nullifying § 1983. … But transformation is often born of tragedy. … The horrific death of Gabriel Olivas is also suffused in sorrow. And while qualified immunity has enjoyed special solicitude at the Supreme Court, perhaps these ‘particularly egregious facts’ will prompt another meaningful message from the Court, one that marries law with justice (and common sense) and makes clear that those who enforce our laws are not above them.”
  • Judge Jolly, concurring in the denial, writes that “[t]he [Willett] dissent and I must have received different sets of dots and dashes from the 1844 telegraph message that it attempts, strangely, to metaphorically adapt to this appeal. For this appeal is not the ‘particularly egregious’ case the dots and dashes transmitted to it. Instead, this appeal is a textbook case for the grant of qualified immunity, as the doctrine presently is promulgated.” After recounting some of the allegations in the complaint, Judge Jolly concluded, “In short, I write to say the dissent is quite unfair to the record, to the law, and to the officers.”
  • In Judge Ho’s concurrence in the denial of rehearing, he asks, “[H]ow can a constitutional violation be ‘obvious,’ ‘egregious,’ and ‘conscience-shocking,’ when the dissent can’t tell the officers what they should have done differently to keep people safe?” He also asks, “If the only way to know what the Constitution requires is to consult lawyers and conduct discovery, what message does that send to police officers? What are they supposed to do in extremely dangerous situations such as this? What are the rules of engagement they can follow, so they know how to protect innocent people from violent criminals, while avoiding a career-ending lawsuit?” Judge Ho then decries “woke” judicial response to police brutality: “Reasonable people can advocate in favor of greater restrictions on the police than what the Fourth Amendment requires. Our Nation is currently engaged in a rigorous debate over the need for police reform. Some argue the police should not use force, even in cases involving deadly threats—or that we should defund the police altogether. But that is a policy debate for the political branches, not the judiciary. As judges, we apply our written Constitution, not a woke Constitution.”
  • Judge Oldham also concurred in the denial of rehearing, opining first, “I do not understand how the dissent can say the officers’ split-second decision was ‘unreasonable’—much less plainly unreasonable— when no one can specify what reasonable alternative the officers had.” Judge Oldham took on the 12(b)(6) standard, and opined, “By all accounts, the plaintiffs in our case are missing an element of their claim. Alleging the officers behaved unreasonably without any facts to support a superior alternative is materially identical to alleging an antitrust conspiracy without any facts to support a conspiracy. Both fail Rule 12(b)(6). In fact, this case is far easier than Twombly because our plaintiffs have alleged nary one fact they hope to uncover in discovery if given the chance to go fishing. (At least in Twombly, the plaintiffs hoped to uncover some smoking-gun conspiracy that they did not have a basis to allege.) Supreme Court precedent squarely forecloses the dissent’s assertion that plaintiffs can fail to allege an element of their claim and then use discovery to find it.” Judge Oldham concluded, “This is a tragic case. But the Fourth Amendment is not an antidote to tragedy. It’s a cornerstone of our Bill of Rights, with an august history and profound original meaning. We cheapen it when we treat it like a chapter from Prosser & Keeton. And we transmogrify it beyond recognition when we say officers act ‘unreasonably’ without any effort to say what a reasonable officer would’ve done.”

Unpublished

• U.S. v. White, 20-10557, appeal from N.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal, First Step Act
  • Granting summary affirmance of district court’s denial of motion for sentence reduction under the First Step Act.

• Priest v. Grazier, 20-10652, appeal from N.D. Tex.
  • per curiam (Ho, Oldham, Wilson), qualified immunity, excessive force
  • Affirming summary judgment dismissal of claims on qualified immunity grounds, arising from alleged excessive force used against an arrestee who was experiencing a diabetic emergency.

• U.S. v. Garrido, 20-10683, appeal from N.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
  • Affirming 144-month sentence on conviction of conspiring to possess with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine.

• U.S. v. Diaz-Roman, 20-40070, appeal from S.D. Tex.
  • per curiam (King, Southwick, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Freeman, 20-50181, appeal from W.D. Tex.
  • per curiam (Ho, Oldham, Wilson), criminal, sentencing
  • Affirming conviction of possession of a firearm by a convicted felon, but vacating 96-month sentence and remanding for resentencing.

• U.S. v. Naranjo, 20-50257, appeal from W.D. Tex.
  • per curiam (Jones, Barksdale, Stewart), criminal, First Step Act
  • Affirming denial of two motions for sentence reduction under the First Step Act.

• U.S. v. Turner, 20-50537, appeal from W.D. Tex.
  • per curiam (Jones, Clement, Haynes), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Guevara-De Rivera v. Garland, 20-60099, petition for review of BIA order
  • per curiam (Clement, Higginson, Engelhardt), immigration
  • Denying El Salvadoran citizens’ petition for review of BIA orders dismissing their appeal from the immigration judge’s denial of their applications for asylum and withholding of removal.

• Jackson v. Baidoo, 21-20135, appeal from S.D. Tex.
  • per curiam (Southwick, Ho, Duncan), prisoner suit, appellate jurisdiction
  • Dismissing appeal of dismissal of suit for violating the bar on repetitive frivolous suits, for lack of jurisdiction due to an untimely notice of appeal.

• U.S. v. Flores, 21-50014, appeal from W.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
  • Granting summary affirmance of 27-month sentence for illegal reentry after removal.

• U.S. v. Rosa-Rodriguez, 21-50107, appeal from W.D. Tex.
  • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
  • Granting summary affirmance of 30-month sentence for illegal reentry after removal.