September 10, 2021 opinions

Designated for publication

  • Barilla v. City of Houston, 20-20535, appeal from S.D. Tex.
    • Higginson, J. (Owen, Clement, Higginson), First Amendment, standing
    • Reversing district court’s dismissal on grounds of lack of standing of First Amendment suit by plaintiff, an accordionist and would-be busker, challenging Houston ordinances that restrict busking.
    • Plaintiff alleges “that but for the Busking Ordinances, he would busk again in Houston.” The district court dismissed his suit, finding that “Barilla had not been cited for violating the Busking Ordinances nor threatened with a citation, nor had he been arrested or shown that he was in immediate danger of arrest.”
    • The Court noted that, “[i]n pre-enforcement cases alleging a violation of the First Amendment’s Free Speech Clause, the Supreme Court has recognized that chilled speech or self-censorship is an injury sufficient to confer standing.” The Court held that, “to demonstrate a justiciable injury at the pleading stage, (1) Barilla’s complaint must have alleged facts showing his intent to engage in conduct arguably affected with a constitutional interest; (2) his desired conduct must be arguably proscribed by the Busking Ordinances; and (3) provided that the Busking Ordinances are not moribund, the record must lack compelling evidence contravening the presumption that Barilla faces a substantial threat of their future enforcement.”
    • As to the first prong, the Court held that “[b]usking is affected with a constitutional interest because both music and solicitation are constitutionally protected forms of speech.” As to the second prong, the Court held that a plausible reading of the ordinances requires a permit for solo performers such as plaintiff. As to the third prong, the Court held that there was no “evidence at this early stage contravening Barilla’s assertions that the Busking Ordinances remain in force and that he faces a substantial threat of their enforcement”; and that “the City did not disclaim its intent to enforce the Busking Ordinances to the district court, in its appellate briefing, or during oral argument, and instead stressed the Ordinances’ legitimacy and necessity.”
  • Poole v. City of Shreveport, 21-30015, appeal from W.D. La.
    • Costa, J. (Stewart, Costa, Willett), qualified immunity
    • Affirming district court’s denial of summary judgment on qualified immunity grounds in excessive force case.
    • Holding that the district court did not err in finding that “genuine disputes exist on … three material facts—whether the officer warned before shooting, whether the citizen had turned away from the officer, and whether the officer could see that the citizen was unarmed.”
  • Whole Woman’s Health v. Jackson, 21-50792, appeal from W.D. Tex.
    • per curiam (Jones, Duncan, Engelhardt), abortion law, sovereign immunity
    • Denying motion to enjoin Texas S.B. 8 pending appeal of district court’s denial of state officials’ Eleventh Amendment immunity defense, on finding that S.B. 8’s private enforcement provision means that there is no “enforcement connection” between S.B. 8 and the state officials that could support an Ex parte Young exception to Eleventh Amendment immunity; granting private individual defendant’s motion to stay district court’s decision pending appeal of his jurisdictional issues, on basis that they “are related to the issues presented in the state officials’ collateral-order appeal; and expediting appeal to next available oral argument panel.


  • Callinan v. Lexicon Pharmaceuticals, Inc., 20-20487, appeal from S.D. Tex.
    • per curiam (Dennis, Engelhardt, Hicks (by desig.)), securities law
    • Affirming district court’s 12(b)(6) dismissal of plaintiff investors securities fraud claim against biopharmaceutical company.
  • Rockett Special Utility District v. McAdams, 20-50938, appeal from W.D. Tex.
    • per curiam (Stewart, Costa, Willett), mootness
    • Dismissing appeal as moot, vacating district court’s judgment and remanding to dismiss case as moot in dispute between utilities and regulators.
  • U.S. v. Kelley, 21-10042, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
    • Granting summary affirmance of 360-month sentence on guilty plea conviction for production of child pornography.
  • U.S. v. Ramirez-Baeza, 21-50290, appeal from W.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal, sentencing
    • Granting summary affirmance of 16-month sentence on conviction for illegal reentry.