Take the Fifth

Designated for publication

• Lefebure v. D’Aquilla, 19-30702, c/w 19-30989, appeal from M.D. La.
  • Ho, J. (Owen, Graves, Ho), Graves, J., dissenting; standing
  • Treating petition for rehearing en banc as a petition for panel rehearing, and denying petition for panel rehearing, but withdrawing Feb. 9, 2021 opinion and substituting with new opinion with same result–reversing judgment denying motion to dismiss claims against district attorney for lack of standing, and remanding for further proceedings. However, Judge Graves, who had concurred in the original ruling, now dissents.
  • From the introduction to Judge Ho’s opinion: “If anyone deserves to have her day in court, it is Priscilla Lefebure. The allegations in her complaint are sickening: Barrett Boeker, her cousin’s husband, raped and sexually assaulted her on multiple occasions at his home on the grounds of the Louisiana state prison where he serves as an assistant warden. Boeker then conspired with the district attorney, Samuel D’Aquilla (as well as his own counsel, who happens to be a relative of D’Aquilla’s), to ensure that he would not be investigated or prosecuted for his crimes. In response, Lefebure filed this suit against D’Aquilla (as well as Boeker and others) on various constitutional and statutory grounds. It is difficult to imagine anyone who deserves justice more than Priscilla Lefebure. But her claim against D’Aquilla runs into a legal obstacle that the panel has no discretion to ignore. Supreme Court precedent makes clear that a citizen does not have standing to challenge the policies of the prosecuting authority unless she herself is prosecuted or threatened with prosecution. See Linda R.S. v. Richard D., 410 U.S. 614, 617–19 (1973). Under this established principle of standing, each of us has a legal interest in how we are treated by law enforcement—but not a legally cognizable interest in how others are treated by law enforcement.”
  • The Court held that “[t]he standing analysis in Linda R.S. reinforces th[e] constitutional allocation of power among the branches of government. … In short, it is not the province of the judiciary to dictate prosecutorial or investigative decisions to the executive branch.”
  • The Court held that the plaintiff’s argument that her claims were based on a broader, discriminatory non-prosecution policy in violation of the Equal Protection clause did not impart standing, as this mirrored the claims made in Linda R.S., and because the substance of the plaintiff’s claims were based on specific allegations of the specific conspiracy not to prosecute the perpetrator in her case.
  • The Court then addressed three decisions cited by plaintiff where claims based on lack of prosecution created a split with the panel opinion here. First, the Court held that those decisions did not actually address the question of standing. “We cannot rely on these decisions to justify standing when they do not even mention standing—let alone offer a theory for distinguishing Linda R.S.—let alone a theory that applies to the specific facts presented here. See, e.g., United States v. Doe, 932 F.3d 279, 284 (5th Cir. 2019) (noting that we do not give precedential effect to a jurisdictional holding in a previous case when ‘we never stated the basis of our jurisdiction’).”
  • Second, the Court held that those cases were actually claims regarding a policy of lack of protection (by police, regarding known crimes), and not lack of prosecution. The Court rejected the argument that lack-of-protection and lack-of-prosecution cases should be collapsed. The Court noted that the “reasoning is certainly understandable[.] … Less police, more crime. Likewise, less prosecution, more crime. Unquestionably, the denial of prosecution may very well be tantamount to a denial of protection.” However, the Court held that the Supreme Court had rejected this approach in Linda R.S., deeming the link between lack of prosecution and the increased risk of crime as “too ‘speculative’ to support standing.”
  • After noting that the dissent’s analysis was foreclosed by Linda R.S., the Court found, “if there is a case for revisiting Linda R.S. on these or other grounds, only the Supreme Court has the authority to do so. … We are horrified by the allegations in this case—the repeated acts of rape and sexual assault, followed by grotesque acts of prosecutorial misconduct. But we have no authority to overturn Supreme Court precedent. If we are to take seriously our obligation to follow Supreme Court precedent, whether we like it or not, then we must conclude that Lefebure lacks standing to sue D’Aquilla. As the adage goes, a principle is not a principle until it costs you. If Lefebure or amici believe the Supreme Court erred in Linda R.S., they are of course welcome to petition for a writ of certiorari. But for us to do as counsel and amici suggest would ‘replace judicial hierarchy with judicial anarchy.'” (Internal citations omitted).
  • Judge Graves’ dissent focused on standing specifically under the plaintiff’s Equal Protection argument. “Lefebure has maintained from the beginning that the district attorney’s history of treating sexual assaults reported by women as less of a priority than other crimes ‘foster[ed] an environment whereby perpetrators of sexual assault [were] allowed to prey on victims,’ including herself. She thus articulates a failure-to-protect injury that we have recognized for at least twenty years—and one that invokes the original concerns of the Equal Protection Clause.” Judge Graves then analyzed that failure-to-protect victims of crimes was a driving original understanding of the Fourteenth Amendment. “Congressman Thaddeus Stevens, co-chair of the Joint Committee on Reconstruction, noted that the Clause would ensure that ‘[w]hatever law protects the white man shall afford ‘equal’ protection to the black man. Whatever means of redress is afforded to one shall be afforded to all.’ Cong. Globe, 39th Cong., 1st Sess. 2459 (1866). Another member of the Committee, Senator Jacob Howard, remarked that the Clause ‘gives the humblest, the poorest, the most despised of the race … the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.’ Id. at 2766. Failure-to-protect claims based on discriminatory enforcement of the law therefore touch on the original concern of equal protection.”

Unpublished

• Muradi v. Garland, 19-60055, petition for review of BIA order
  • per curiam (Davis, Jones, Elrod), immigration
  • Denying Afghanistani citizen’s petitions for review of BIA orders dismissing his appeal of the denial by an IJ of his application for deferral of removal under the CAT and denying his motion to reopen his removal proceedings.

• Ellis v. Wilson, 20-10403, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), prisoner suit
  • Affirming dismissal of prisoner’s § 1983 claim for failure to timely comply with order to file an inmate trust account certificate.

• Martinez v. Standard Insurance Co., 20-10475, appeal from N.D. Tex.
  • per curiam (Jones, Southwick, Engelhardt), ERISA
  • Reversing district court’s award of any-occupation benefits, and remanding to district court with instructions to remand to plan administrator to make an any-occupation-benefits determination.

• U.S. v. Valencia, 20-50450, appeal from W.D. Tex.
  • per curiam (Dennis, Higginson, Costa), criminal, sentencing
  • Affirming 480-month sentence and conviction of possession with intent to distribute 500 grams or more of methamphetamine; conspiracy to possess with intent to distribute 500 grams or more of methamphetamine; conspiracy to import 500 grams or more of methamphetamine, five kilograms or more of cocaine, and one kilogram or more of heroin; conspiracy to distribute 500 grams or more of methamphetamine and five kilograms or more of cocaine for importation into the United States; conspiracy to possess firearms in furtherance of drug trafficking crimes; possession of at least one firearm in furtherance of drug trafficking crimes; conspiracy to conduct financial transactions involved in proceeds of drug trafficking crimes; felon in possession of firearms; illegal re-entry into the United States; and illegal alien in possession of firearms.

• Gordon v. Lee, 20-60006, appeal from S.D. Miss.
  • per curiam (Jones, Duncan, Engelhardt), Federal Tort Claims Act, medical malpractice
  • Dismissing as frivolous appeal from dismissal of FTCA claim for failure to exhaust administrative remedies and declination to exercise supplemental jurisdiction over remaining state-law medical malpractice claim.

• U.S. v. Sandoval-Reyes, 21-10145, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Acevedo, 21-40122, appeal from S.D. Tex.
  • per curiam (Barksdale, Willett, Duncan), criminal, guilty plea
  • Affirming conviction of possession of a firearm by a felon, holding the district court did not err in holding rearraignment by video conference.

• U.S. v. Jimenez-Ramos, 21-40352, appeal from S.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.