November 1, 2021, opinions

Designated for publication

  • U.S. v. Davis, 20-30593, appeal from E.D. La.
    • King, J. (King, Smith, Haynes), criminal
    • Affirming denial of defendant’s motion for certificate of innocence, which she filed after the Court’s reversal of her convictions for conspiracy to commit health care fraud and health care fraud and after she had been incarcerated for approximately one year.
    • Defendant’s convictions had been reversed for insufficient evidence, by which time she had served approximately one year of her prison sentence. She moved for a certificate of innocence under 28 U.S.C. § 2513, or, alternatively, for a declaration that § 2513’s requirement of an affirmative showing of innocence was unconstitutional.
    • Because the statute requires the defendant to make a showing by a preponderance of the evidence that she is innocent, and because she only relied on the Court’s appeal decision that the government had failed to show her guilt beyond a reasonable doubt, the Court held that the district court did not abuse its discretion in denying her a certificate of innocence.
    • The Court held that the Supreme Court’s holding and rationale in Nelson v. Colorado, 137 S. Ct. 1249 (2017), did not dictate a holding that § 2513’s actual-innocence requirement is unconstitutional. The Court held that “the issue in Nelson and the issue here are meaningfully different,” that, while Colorado law at issue in Nelson allowed for certain compensation, the petitioners in Nelson were not requesting compensation and the constitutionality of the requirements for that portion of the statute were not at issue. Because the defendant here is seeking damages, “she seeks something above and beyond her existing rights,” therefore requiring the affirmative showing of innocence.
  • Villarreal v. City of Laredo, 20-40359, appeal from S.D. Tex.
    • Ho, J. (Owen, Graves, Ho), Owen, C.J., dissenting; First Amendment, qualified immunity
    • Reversing in part and affirming in part dismissal of claims on qualified immunity grounds, and remanding for further proceedings.
    • Borrowing from Judge Ho’s introduction: “If the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned. Yet that is exactly what happened here: Priscilla Villarreal was put in jail for asking a police officer a question. If that is not an obvious violation of the Constitution, it’s hard to imagine what would be. And as the Supreme Court has repeatedly held, public officials are not entitled to qualified immunity for obvious violations of the Constitution.”
    • The plaintiff–a free-lance or citizen journalist who posts her reporting to her highly-followed Facebook page–had been arrested for violation of Texas Penal Code § 39.06(c), which prohibits the soliciting or receiving information from a public servant that the public servant has access to by means of their public employment and that has not been made public. The plaintiff had published the name of a suicide victim and the last name of a traffic accident victims based on information provided by public employees and that she then verified with a Laredo Police Department officer. She subsequently successfully filed a petition for writ of habeas corpus, with the state court judge declaring § 39.06(c) to be unconstitutionally vague.
    • The Court held that “The doctrine of qualified immunity does not always require the plaintiff to cite binding case law involving identical facts. An official who commits a patently ‘obvious’ violation of the Constitution is not entitled to qualified immunity.” The Court then held that it is “obvious that Priscilla Villarreal has a constitutional right to ask questions of public officials. Yet according to her complaint, Defendants arrested and sought to prosecute Villarreal for doing precisely that—asking questions of public officials. This is not just an obvious constitutional infringement—it’s hard to imagine a more textbook violation of the First Amendment.” The Court further rejected the officers’ argument that they were just enforcing a statute, § 39.06(c), holding that “the doctrine of qualified immunity does not permit government officials to invoke patently unconstitutional statutes like § 39.06(c) to avoid liability for their actions.” The Court, therefore, reversed the grant of qualified immunity to the officers on the plaintiff’s First Amendment infringement claim, and also reversed the dismissal of the plaintiff’s Fourth Amendment wrongful arrest claim.
    • The Court affirmed the dismissal of the plaintiff’s First Amendment retaliation claim, as the plaintiff did not allege that her exercise of her First Amendment rights had been curtailed. “She alleges that she lost sleep, suffered reputational damage, became physically ill, was detained, and feared future interference from officials. But these allegations do not show that Villarreal curtailed her speech. To the contrary, as Defendants point out, Villarreal has continued reporting since her arrest—consistent with the highest traditions of fearless journalism.”
    • The Court also affirmed the dismissal of plaintiff’s request for prospective injunctive and declaratory relief, because the state has not appealed the state court’s finding of unconstitutionality of the statute, leaving no risk of future injury.
    • The Court reversed the district court’s dismissal of the plaintiff’s selective enforcement claim under the Equal Protection Clause of the Fourteenth Amendment, holding that the plaintiff’s complaint plausibly alleged that other local journalists had sought information from police department employees and not been arrested under § 39.06(c).
    • The Court affirmed the dismissal of plaintiff’s municipal liability claim, because plaintiff had not alleged that city employees retaliated against anyone else because of their speech.
    • Chief Judge Owen dissents, and will issue a dissenting opinion later.


  • Martinez v. Garland, 20-60228, petition for review of BIA order
    • per curiam (Wiener, Dennis, Haynes), immigration
    • Denying Honduran citizen’s petition for review of BIA order dismissing his appeal of the denial of his motion to reopen by the immigration judge.
  • U.S. v. Briones, 21-10239, appeal from N.D. Tex.
    • per curiam (King, Costa, Ho), criminal, sentencing
    • Affirming 120-month sentence on conviction for being a felon in possession of a firearm.
  • Thibodaux v. Transocean Offshore Deepwater Drilling, Inc., 21-30080, appeal from E.D. La.
    • per curiam (Clement, Southwick, Willett), timeliness
    • Affirming denial of plaintiff’s Rule 60(b) motion after her claims were dismissed when her attorney failed to follow procedural and timeliness requirements in the BP Deepwater Horizon MDL.