Take the Fifth

Designated for publication

• Cope v. Cogdill, 19-10798, appeal from N.D. Tex.
  • Haynes, J. (Stewart, Dennis, Haynes), Dennis, J., dissenting; qualified immunity
  • Reversing district court’s denial of qualified immunity for officers sued after the jailhouse suicide death of Derrek Monroe, and rendering judgment in favor of officers.
  • Monroe was a pretrial detainee in the Coleman County Jail. During his intake, he indicated he wanted to commit suicide and that he had attempted to do so two weeks prior. He tried to hang himself in his cell. Afterwards, the sheriff did not transfer him to a medical unit, but left him in his cell, which had a phone with a cord inside of it, when the shift changed and there was only one jailer on duty. That one jailer (Laws) watched while Monroe wrapped the telephone cord around his neck and strangled himself, without going in to unwrap the cord. After Monroe collapsed, Laws did not enter the cell until after another jailer arrived, and then only to unwrap the cord. He did not try to resuscitate Monroe, and only called EMTs after backup arrived, and waited another five minutes (for a total of 16 minutes after the strangulation began) to start attempts to resuscitate Monroe. Monroe died the next day. The district court denied summary judgment to Law, as well as to the sheriff and other officials, holding that whether the officers acted reasonably would have to be determined by a jury.
  • The Court held that, in the deliberate indifference context as in other contexts, whether a constitutional right is clearly established must be “beyond debate. … Broad general propositions are not enough to overcome qualified immunity.”
  • The Court held regarding a pretrial detainee’s rights to medical care: “When, as in this case, a pretrial detainee’s claim is based on a jail official’s episodic acts or omissions, the proper inquiry is whether the official had a culpable state of mind in acting or failing to act. … Although deliberate indifference is a high bar and requires egregious conduct, plaintiffs need not prove that the official acted with the intent to cause harm.” (Internal quotation marks and citations omitted). “In the context of inmate suicide, to defeat qualified immunity, the plaintiffs must establish that the officers . . . were aware of a substantial and significant risk that [the detainee] might kill [him]self, but effectively disregarded it.” (Internal quotation marks and citations omitted).
  • The Court held that Laws did not violate a clearly established constitutional right by following jail policy and waiting for backup to arrive before entering Monroe’s cell. The Court held that it was unconstitutional conduct for Laws to fail to call for emergency medical help immediately, but that this was not clearly established at the time of the event, such that Laws was nevertheless entitled to qualified immunity. “Until today, we have not spoken directly on whether failing to call for emergency assistance in response to a serious threat to an inmate’s life constitutes deliberate indifference.”
  • The Court held that the sheriff and other jail officers did not violate clearly established constitutional rights by placing Monroe in a cell with a long telephone cord because it couldn’t be shown that they subjectively had knowledge that this would be dangerous to an inmate with a known suicidal ideation.
  • Judge Dennis dissented. Examining the undisputed facts, Judge Dennis noted, “In this case, Defendants were all aware of [Monroe’s] risk of suicide. Their responses to this known risk convince me that a reasonable jury could find that they each effectively disregarded the risk by acting in a manner that they knew or believed was likely inadequate in light of the circumstances. First, based on Laws having watched Monroe wrap the thirty-inch phone cord around his neck and yet failing to promptly contact emergency services—in direct contravention of his training—a reasonable jury could find that Laws recognized that Monroe was at risk of committing suicide but deliberately disregarded it by not taking the one action he knew would be the most likely to save Monroe’s life. Second, Cogdill had been trained to avoid isolating suicidal inmates, yet he chose to remove Monroe from Cell 2 where there were other inmates and to relocate Monroe to Cell 3 by himself, a decision Brixey ratified. Compounding the dangers of isolation, Cell 3 had a thirty-inch telephone cord—an obvious potential suicidal ligature for a known suicidal inmate, like Monroe, who had just attempted to strangle himself to death the previous day. In addition to the obviousness of the danger posed by the lengthy cord, a jury could infer that Cogdill and Brixey had received guidance from the Texas Jail Commission recommending jails limit the length of phone cords to no more than 12 inches and yet ignored this recommendation. Moreover, the risks of isolating Monroe and of the lengthy cord in Cell 3 could have been eliminated by transferring Monroe to a better equipped facility, an option Cogdill knew he could employ. Cogdill and Brixey also could have reduced the risk of harm to Monroe by maintaining a second jailer on duty during when the jail had custody of a suicidal inmate. This simple and low-cost change to staffing policy would provide readily available backup support and thus enable a jailer to immediately enter a cell in the event of a suicide attempt, avoiding the delays inherent in a lone jailer having to await the arrival of off-duty personnel before being able to save a known suicidal detainee. In short, Monroe’s suicide in Cell 3 was highly predictable and easily preventable, and the failure by Cogdill and Brixey to take any of these obvious precautions permits the reasonable inference that they were deliberately indifferent to Monroe’s substantial risk of suicide.”
  • Judge Dennis distilled the applicable standards and opined, “it is always clearly, objectively unreasonable for a jail official to intentionally disregard a known suicide risk. … There is no need for a prior case to put an officer on notice that a situation presents a risk of inmate suicide or that a particular sort of response is unreasonable because, by the very nature of a deliberate-indifference claim, the officer must actually know both of these things in order for a constitutional violation to occur.” Judge Dennis opined as to the crux of the majority’s errors: “First, the majority takes an incredibly narrow approach to defining the clearly established right at issue, claiming that the right must be defined much more specifically than simply the right of a suicidal detainee to be free from a deliberately indifferent response by officers charged with his supervision. Second, having defined the clearly established right in an overly narrow manner, the majority requires in effect that Plaintiffs point to a case with virtually identical facts to prove that this excessively narrow description of the right has been clearly established. Both of these propositions are contrary to what our precedent in the detainee-suicide context demands.”

• Boudreaux v. Louisiana State Bar Association, 20-30086, appeal from E.D. La.
  • Willett, J. (Smith, Willett, Duncan), First Amendment
  • Reversing district court’s dismissal of plaintiff’s claims that his “First Amendment rights to free association and free speech are violated by (1) mandatory membership in LSBA, (2) the collection and use of mandatory bar dues to subsidize LSBA’s speech, and, alternatively, (3) LSBA’s failure to provide safeguards to ensure that his dues are not used for impermissible purposes.” The Court issued its judgment in tandem with judgment in McDonald v. Longley, an appeal involving similar claims made with regard to the Texas Bar.
  • The Court noted two Supreme Court decisions regarding bar association membership–Lathrop v. Donohue, 367 U.S. 820 (1961), and Keller v. State Bar of California, 496 U.S. 1 (1990)–and laid out what those decisions did and did not decide. In Lathrop, “A plurality of the Supreme Court held that states can pursue their legitimate interests in improving the legal profession through mandatory bar membership without violating the right to free association as long as an attorney’s only obligation to the bar is to pay dues. When that’s the case, mandatory bar membership is constitutional even though the bar ‘also engages in some legislative activity.'” But the Court held that “Lathrop did not consider whether an attorney’s associational rights are violated by, for instance, being incorrectly perceived as agreeing with the bar when the bar takes a public stance on a topic. Second, the opinion did not specify when (if ever) a bar’s legislative activity would infringe on an attorney’s associational rights. The plurality either presumed that the bar’s legislative activity in the case furthered a legitimate interest or concluded that the legislative activity did not alter the First Amendment analysis because it was not the bar’s ‘major activity.’ The opinion is unclear on that. In any event, Lathrop does not appear to implicate the constitutionality of a bar’s political activity that is unrelated to improving the legal profession.” As to Keller, the Court noted, “Keller held that the use of mandatory bar dues to regulate and improve the legal profession does not violate an attorney’s speech rights. However, Keller prohibited bars from using mandatory dues for activities that are not germane to regulating and improving the legal profession. The Court explained that state bars could satisfy their First Amendment obligation toward mandatory dues by adopting procedures to prevent the use of objecting attorneys’ dues for non-germane expenses.” But, noted the Court, “Keller … left open whether an attorney can be compelled to join a bar that engages in non-germane activity.”
  • The Court held that the Plaintiff presents a cognizable claim that compelled membership in the LSBA violates his free association rights, raising the question left open by Keller regarding compelled membership in a bar that engages in non-germane activity: “Boudreaux alleged that LSBA engages in legislative advocacy that is ‘inherently political and ideological.’ His complaint specifically identifies LSBA’s resolutions urging a moratorium on executions, opposing civil immunities, and advocating changes to the high school civics curriculum. His complaint also notes LSBA’s lobbying against reducing the amount-in-controversy threshold to request a civil jury trial in state law, against requiring judges to file financial statements, and against allowing school personnel to carry firearms in schools. With these allegations, Boudreaux plausibly pleads that LSBA’s political and legislative activity goes beyond what’s constitutionally permissible under Lathrop—that the activity is not justified by the state’s interest in regulating and improving the legal profession. That’s all that is required to present the free association claim that Keller left unresolved.”
  • The Court then reversed the district court’s dismissal of Boudreaux’s claim that the mandatory dues were impermissible as compelled speech as being foreclosed by the Tax Injunction Act. The Court held that LSBA dues are not a tax. “That the dues were authorized by the legislature thus means little; the question is whether the dues are ‘imposed’ by the legislature. A charge is more likely to be a tax when it is ‘directly set by the legislature.’ LSBA’s dues are not.” The Court then observed that the dues are imposed only on attorneys, not on the public at large, showing that they are a fee rather than a tax. “Third, the dues are used to defray LSBA’s regulatory costs, not to raise general revenue for the state of Louisiana.”
  • The Court then reversed the district court’s dismissal for lack of standing Boudreaux’s claim that the LSBA failed to adequately notify attorneys of other non-germane activities. The Court first held that the procedures set forth in Chicago Teachers Union v. Hudson are the constitutional minimum required to safeguard free speech rights of mandatory bar association members. “Hudson requires ‘an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending.'” The Court held that Boudreaux did not need to identify a particular non-germane activity to which he would have objected, in order to have standing, because his injury was that the LSBA’s notice was inadequate to inform of the non-germane activities to begin with.

• McDonald v. Longley, 20-50448, appeal from W.D. Tex.
  • Smith, J. (Smith, Willett, Duncan), First Amendment
  • In the Texas companion case to Boudreaux, the Court vacated the district court’s grant of summary judgment in favor of the Texas Bar Association and rendered in part in favor of the plaintiffs in their challenge to compelled membership in and dues-paying to the bar association without adequate safeguards against expenditure of those funds for non-germane activities.
  • The Court first held that the bar membership fee and the legal services fee (a separate fee to fund access-to-justice programs) are “classic fees” and not taxes subject to the Tax Injunction Act.
  • Turning to Lathrop and Keller, as the Boudreaux panel did, the Court held, “So where do Lathrop and Keller leave us? Lathrop held that lawyers may constitutionally be mandated to join a bar association that solely regulates the legal profession and improves the quality of legal services. Keller identified that Lathrop did not decide whether lawyers may be constitutionally mandated to join a bar association that engages in other, nongermane activities. Nor did Keller resolve that question.”
  • The Court held, “[C]ompelling a lawyer to join a bar association engaged in non-germane activities burdens his or her First Amendment right to freedom of association. … Bar associations that also engage in non-germane activities will almost certainly be engaging in additional expressive activities that ‘support . . . a particular conception of the good life or controversial ideology of the good society.’ And, when a bar association does so, part of its expressive message is that its members stand behind its expression. The membership is part of the message. Compelling membership, therefore, compels support of that message. If a member disagrees with that ‘conception of the good life or controversial ideology,’ then compelling his or her membership infringes on the freedom of association.” The Court then held that compelling this membership would survive neither exacting scrutiny nor strict scrutiny, without deciding which standard would be required. Holding that there are less burdensome means for states to regulate the legal profession, the Court held, “[T]he plaintiffs are entitled to summary judgment on their freedom-of-association claim if the Bar is in fact engaged in non-germane activities.”
  • The Court rejected plaintiffs’ argument that all political expression is nongermane activity, but examined which specific political activity may be nongermane. “[Keller] identified ‘advanc[ing] a gun control or nuclear weapons freeze initiative’ and ‘proposing ethical codes’ as the bookends of the spectrum and left it to lower courts to work out intermediate cases. We must do so now.” The Court set forth this standard to govern its review: “Except as stated below, advocating changes to a state’s substantive law is non-germane to the purposes identified in Keller. Such lobbying has nothing to do with regulating the legal profession or improving the quality of legal services. Instead, those efforts are directed entirely at changing the law governing cases, disputes, or transactions in which attorneys might be involved. Lobbying for legislation regarding the functioning of the state’s courts or legal system writ large, on the other hand, is germane. So too is advocating for laws governing the activities of lawyers qua lawyers.” Under this standard, the Court found that “the Bar’s lobbying to amend the Texas Constitution’s definition of marriage and create civil unions is obviously non-germane. The Bar’s presumably less-controversial proposed substantive changes to Texas family law are equally non-germane. The Bar’s lobbying for the ‘creation of an exemption regarding the appointment of pro bono volunteers,” on the other hand, is germane, because it relates to the law governing lawyers. Its lobbying for changes to Texas trust law is germane to the extent the changes affect lawyers’ duties when serving as trustees, and non-germane to the extent the changes do not.”
  • The Court then found that the Bar’s diversity initiatives, “though ideologically charged, are germane to the purposes identified in Keller. … [D]espite the controversial and ideological nature of those diversity initiatives, they are germane to the purposes identified by Keller. They are aimed at ‘creating a fair and equal legal profession for minority, women, and LGBT attorneys,’ which is a form of regulating the legal profession. And the Bar contends that those initiatives ‘help to build and maintain the public’s trust in the legal profession and the judicial process as a whole,’ which is an improvement in the quality of legal services. The germaneness test does not require that there be unanimity on the Bar’s position on what best regulates the legal profession—that is typically for the Bar to decide.”
  • The Court held that the Bar’s programs for legal assistance to the needy are almost all germane, including all of the activities of the Legal Access Division. As to the Access to Justice Commission, the Court held all of the activities are germane except for “lobbying for changes to Texas substantive law designed to benefit low-income Texans.”
  • The Court held that “miscellaneous activities—hosting an annual convention, running CLE programs, and publishing the Texas Bar Journal—are all germane.” Plaintiffs had challenged those activities because some panels at the convention and CLE programs included content the plaintiffs challenged as politically charged. “[A]ny objectionable CLE and annual convention offerings are only one part of a large, varied catalogue, and the Bar includes disclaimers indicating that it is not endorsing any of the views expressed. That is enough to satisfy Keller.”
  • The Court concluded, “In sum, the Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights. There are multiple other constitutional options: The Bar can cease engaging in nongermane activities; Texas can directly regulate the legal profession and create a voluntary bar association, like New York’s; or Texas can adopt a hybrid system, like California’s. But it may not continue mandating membership in the Bar as currently structured or engaging in its current activities.”
  • The Court also held that the Texas Bar’s current opt-out/pro rata refund procedures for non-germane activities are constitutionally inadequate under Hudson.
  • The Court then rendered a preliminary injunction against compelling the plaintiffs to pay fees pending the completion of the remedy proceedings on remand.

• Douglass v. Nippon Yusen Kabushiki Kaisha, 20-30382, appeal from E.D. La.
  • per curiam (Owen, Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson); en banc, personal jurisdiction
  • Vacating the Court’s April 30, 2021 opinion that affirmed dismissal of two lawsuits against Japanese company that chartered boat that collided with U.S. Navy vessel in Japanese territorial waters, killing seven sailors and injuring forty others, for lack of personal jurisdiction; and ordering en banc rehearing.

• Trejo v. Garland, 20-60353, petition for review of BIA order
  • Dennis, J. (King, Dennis, Ho), immigration
  • Denying Mexican citizen’s petition for review of BIA order affirming IJ’s denial of his application for cancellation of removal.
  • The Court first held that it had jurisdiction to review the BIA and IJ orders at issue. “Section 1252(a)(2) specifies a range of issues arising from removal proceedings that ‘no court shall have jurisdiction to review.’ Among these is § 1252(a)(2)(B)(i), which excludes from our jurisdiction ‘[d]enials of discretionary relief,’ including ‘any judgment regarding the granting of relief under section . . . 1229(b),’ the cancellation of removal statute. On first blush, § 1252(a)(2)(B)(i) might seem to deprive us of the authority to review any decision related to cancellation of removal. But the provision does not actually sweep so broadly.”
  • The Court held, “[W]hen the IJ and BIA consider an application for cancellation of removal, they are faced with several distinct questions. First, they must make a number of factual findings, including how long the alien has been physically present in the country, how the alien behaved during that time, whether the alien was previously convicted of any crimes, and what would occur to the alien’s U.S.-citizen or legal-permanent-resident family members if the alien were removed. Section 1252(a)(2)(B) does not prevent us from reviewing these factual findings to determine whether they are supported by substantial evidence in the record because factual findings are not discretionary. See Mireles-Valdez, 349 F.3d at 216; Garcia–Melendez, 351 F.3d at 661. Next, the adjudicator applies the various legal standards contained in 8 U.S.C. § 1229b(b)(1)(A) through (D) to those established facts to determine whether the alien is eligible to be considered for cancellation of removal. The adjudicator decides whether the previously found period of physical presence was ten years or more, whether the previously found behavior the alien engaged in during that period qualifies as good moral character as Congress intended the phrase, whether any previously found criminal convictions are disqualifying, and whether the previously found events that would occur to the alien’s relatives if the alien were removed amount to exceptional and extremely unusual hardship as Congress intended the phrase. Under Guerrero-Lasprilla, we may review these determinations, too; determining whether an alien is legally eligible for cancellation of removal is not discretionary, but rather ‘the application of a legal standard to . . . established facts.’ Guerrero-Lasprilla, 140 S. Ct. at 1067.”
  • The Court held that the petitioner’s challenge here was to factual findings, and not to the IJ’s or BIA’s discretionary decision to not order relief, “and thus § 1252(a)(2)(B) is no bar to our jurisdiction.”
  • On the merits of the petitioner’s challenge, the Court, held, “Guerrero’s children’s mothers care for them, his brother lives with the youngest two, the children will not move to Mexico with Guerrero, and Guerrero has family in Mexico in any event. Guerrero has not shown that the events that the agency found would befall his U.S.-citizen children if he were removed amount to suffering substantially beyond the hardship usually associated with a parent’s removal, see In Re Monreal-Aguinaga, 23 I. & N. Dec. at 62, and he thus has not shown that the IJ or BIA erred in applying the pertinent legal standard”

Unpublished

• U.S. v. Minor, 19-50744, appeal from W.D. Tex.
  • per curiam (Clement, Higginson, Engelhardt), criminal, guilty plea
  • Affirming guilty plea conviction of distributing heroin (count one); possessing with the intent to distribute at least 100 grams of a mixture or substance containing heroin (count two); being a felon in possession of a firearm (count three); and possessing a firearm in furtherance of a drug trafficking crime (count four).

• U.S. v. Mata, 19-50831, appeal from W.D. Tex.
  • per curiam (Smith, Stewart, Higginson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Green v. Lumpkin, 19-70019, appeal from N.D. Tex.
  • per curiam (Dennis, Elrod, Duncan), habeas corpus
  • Denying certificate of appealability for petitioner whose petition for habeas relief from his death sentence was denied by the district court.

• U.S. v. Solano, 20-11037, appeal from N.D. Tex.
  • per curiam (Davis, Stewart, Dennis), criminal, sentencing
  • Affirming 200-month sentence on conviction of conspiracy to possess with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine.

• U.S. v. Thomas, 20-11183, appeal from N.D. Tex.
  • per curiam (Davis, Stewart, Dennis), criminal
  • Granting summary affirmance of conviction of possession of a firearm by a felon.

• U.S. v. Rodriguez, 20-20141, appeal from S.D. Tex.
  • per curiam (Higginbotham, Costa, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Rivera-Fiallos v. Garland, 20-60011, petition for review of BIA order
  • per curiam (Davis, Stewart, Dennis), immigration
  • Denying Honduran citizen’s petition for review of BIA order dismissing her appeal from an immigration judge’s denial of her motion to reopen and rescind her in absentia order of removal.