Take the Fifth

Designated for publication

• Timpa v. Dillard, 20-10876, appeal from N.D. Tex.
  • Clement, J. (Clement, Southwick, Willett), qualified immunity
  • Reversing summary judgment on qualified immunity as to plaintiffs’ claims of excessive force, and affirming in part and reversing in part the qualified immunity summary judgment on claims of bystander liability, arising from Dallas Police Department’s killing of a man through the prolonged use of a prone restraint with bodyweight force during the arrest of Anthony Timpa after he had called 911 requesting assistance during a mental health episode.
  • The excessive force claim against officer Dillard arose from his use of bodyweight force in keeping Timpa in the prone position for more than fourteen minutes, the last three and a half of which Timpa was wholly limp and unresponsive. Applying the Graham factors, the Court held that the severity of the crime at issue was minor–at most a traffic violation; that the officers were not facing an unknown situation requiring split-second decisions, but knew they were facing a “Crisis Intervention Training” situation due to Timpa’s own 911 call and Dillard’s observance of Timpa when he first arrived to find him already handcuffed and sitting on the grass next to the sidewalk; that he no longer posed an immediate threat to the officers once he was cuffed at his wrists and ankles, was no longer kicking his legs, and was surrounded by five police officers, two paramedics, and two private security guards (“[a] jury could find that no objectively reasonable officer would believe that Timpa–restrained, surrounded, and subdued–continued to pose an immediate threat of harm justifying the prolonged use of such force”); that the “force calculus” changed when Timpa stopped actively resisting and that it was objectively reasonable to perceive any further struggles from Timpa as struggling to breathe, not resisting arrest. “Viewing the facts in the light most positive to the Plaintiffs, none of the Graham factors justified the prolonged use of force. A jury could find that Timpa was subdued by nine minutes into the restraint and that the continued use of force was objectively unreasonable in violation of Timpa’s Fourth Amendment rights. … Ultimately, it is the job of the factfinder, not of this court, to resolve those factual disputes for itself. A jury’s interpretation ensures that legal judgments of reasonableness hew closely to widely shared expectations of the use of force by our police officers.”
  • The Court held that the plaintiffs had presented sufficient evidence to create a genuine issue of fact as to whether Dillard’s use of the bodyweight-force prone restraint constituted deadly force from an objective reasonably point of view.
  • The Court also held “that the state of the law in August 2016 clearly established that an officer engages in an objectively unreasonable application of force by continuing to kneel on the back of an individual who has been subdued.”
  • As to qualified immunity for the bystander liability claims against the four officers who were in the vicinity of Timpa while Dillard continued his bodyweight-force prone positioning of Timpa, the Court affirmed in part and reversed in part the qualified immunity ruling. As to two officers who “stood mere feet away from Timpa throughout the fourteen-minute duration of the restraint” and who “stood by and laughed” after Timpa became incapacitated, that questions of fact preclude summary judgment. As to another officer who was in a patrol car a few fet away but who “was observing Timpa for the critical half-minute when Timpa suddenly lost consciousness,” the Court held that “[a] jury could find that Mansell remained present on the scene and acquiesced in the violation of Timpa’s Fourth Amendment rights.” For the one officer who was absent from the scene from a point two and a half minutes before Timpa stopped moving his legs until after Dillard released the restraint, the Court held that there was no genuine issue of fact that he “lacked a reasonable opportunity to intervene.”

• Oliver v. Arnold, 20-20215, appeal from S.D. Tex.
  • Dennis, J. (Wiener, Dennis, Duncan); Ho. J., concurring in denial of rehearing; Elrod, J., dissenting from denial of rehearing (joined by Jones, Smith, Duncan, Engelhardt, Wilson, JJ.); Duncan, J., dissenting from denial of rehearing (joined in full by Smith, Elrod, Engelhardt, Wilson, JJ.; joined by Jones, J., as to all but Part III of dissent); Oldham, J., dissenting from denial of rehearing (joined by Elrod, J.); First Amendment, qualified immunity
  • Denying rehearing en banc of panel opinion that dismissed an appeal of a denial of qualified immunity summary judgment for teacher defendant in student’s First Amendment claim arising from teacher compelling student to write the Pledge of Allegiance or receive a zero. Ten judges voted against en banc rehearing (Owen, C.J.; Stewart, Dennis, Southwick, Haynes, Graves, Higginson, Costa, Willett, Ho, JJ.), while seven had voted for rehearing (Jones, Smith, Elrod, Duncan, Engelhardt, Oldham, Wilson).
  • Judge Ho concurred in the denial of rehearing to argue that the panel opinion was correct, and would be just as correct in cases where “liberal” viewpoints may sought to be imposed by teachers on “conservative” students, just as well as in cases such as the instant claim by a student compelled to write the Pledge of Allegiance. “Schools should educate—not indoctrinate. Teachers can teach. An teachers can test. But teachers cannot require students to endorse a particular political viewpoint.” Judge Ho also reiterated his criticism of “the doctrine of qualified immunity as contrary to the text and original understanding of 42 U.S.C. § 1983.”
  • Judge Elrod dissented. “Federal judges should not be in the business of policing the lesson plans of public-school teachers. But even when we must, qualified immunity should protect a teacher who (until now) could not have known that his conduct violated a student’s constitutional rights.”
  • Judge Duncan dissented. “Our law in this area is … a dumpster fire. We should have taken this case en banc to put it out. Then we could have addressed in a more coherent way how the First Amendment applies to student speech and public school curricula, an important and developing field.”
  • Judge Oldham dissented. “Just four years ago, our court granted qualified immunity to a teacher who required students to recite the Mexican pledge of allegiance. Brinsdon v. McAllen Indep. Sch. Dist., 863 F.3d 338, 348 (5th Cir. 2017). Today’s decision reaches the opposite result for the American pledge. The distinction purportedly turns on the purity (whatever that means) of the motives (however we find those) guiding the different teachers. See Oliver v. Arnold, 3 F.4th 152, 162–63 (5th Cir. 2021) (embracing an ‘impure motive’ test). The importance of students’ constitutional rights demands far better. The ‘impure motive’ test reaffirms none of our Nation’s founding principles; it undermines them.”

• Terral River Service, Inc. v. SCF Marine Inc., 21-30047, appeal from W.D. La.
  • Higginbotham, J. (Higinbotham, Stewart, Wilson); maritime law
  • Affirming summary judgment dismissal of claims against barge owner brought by loading facility owner arising from the barge’s sinking at the loading facility.
  • The facility owner sued the barge owner for general maritime negligence, unseaworthiness, breach of contract, and indemnity, after the barge sunk at the facility and the subsequent salvage revealed a fracture in the hull. The facility owner claimed that the fracture pre-dated the barge’s arrival at the facility; though inspections were performed prior to the towing of the barge to the facility and after the barge first arrived at the facility and no fracture was noted. The district court had granted Daubert motions to exclude plaintiff’s experts’ testimony that the fracture occurred prior to the barge’s arrival at the facility.
  • The Court held first that the facility owner bore the burden to prove that the barge was unseaworthy.
  • The Court then held that the defendant succeeded in showing that there was no genuine issue of material fact that the barge hull was not fractured prior to its arrival at the facility. “SCF presented evidence that the fracture was not present when SCF transferred the barge to Terral: the C&M inspection report and Terral’s own inspection report did not note any fracture. The barge traveled hundreds of miles along the Mississippi River and then sat partially loaded for two days before sinking.”

• Louisiana v. Becerra, 21-30734, appeal from W.D. La.
  • per curiam (Southwick, Graves, Costa), injunction, COVID-19
  • Granting in part and denying in part a motion for stay of the district court’s nationwide preliminary injunction barring enforcement of the federal COVID-19 vaccination mandate applying to staff of Medicare- and Medicaid-certified providers. The Court denied the stay insofar as the district court injunction applied to the 14 plaintiff states, and granted the stay as to all other states and jurisdictions.
  • The Court held that the HHS secretary failed to show a likelihood of success on the merits on the element of the “major questions doctrine.” “The district court held that the Secretary’s decision to enter the vaccine regulatory space for the first time implicates what some courts and commentators have called the ‘major questions doctrine,’ though apparently not (yet) so designated in a majority opinion for the Supreme Court. It appears to us not so much a new doctrine but a new label for courts’ method of analyzing federal agencies’ novel assertions of authority.” While noting that the Secretary showed a closer call for the Medicare/Medicaid space than the OSHA Secretary did for a broader vaccine mandate, “the first stay factor requires more than showing a close call.”
  • As to non-plaintiff states and jurisdictions, the Court held, “Principles of judicial restraint control here. Other courts are considering these same issues, with several courts already and inconsistently ruling. … In addition, the many states that have not brought suit may well have accepted and even endorsed the vaccination rule.”

Unpublished

• U.S. v. Hailey, 20-10293, appeal from N.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
  • Affirming sentence and conviction for possession of methamphetamine with intent to distribute.

• Young v. Select Portfolio Servicing, Inc., 20-11236, appeal from N.D. Tex.
  • per curiam (Stewart, Haynes, Graves), foreclosure
  • Affirming summary judgment dismissal of claims arising from foreclosure.

• U.S. v. Dumas, 20-30478, appeal from W.D. La.
  • per curiam (Jolly, Willett, Engelhardt), criminal
  • Affirming conviction of five counts of interference with commerce by robbery, one count of conspiracy to do the same, five counts of carrying, using, and brandishing a firearm during those robberies, and one count of possession of ammunition following conviction of a felony.

• Dugas v. U.S., 20-40329, appeal from S.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), prisoner suit
  • Affirming district court’s dismissal of prisoner’s § 1983 claims as frivolous and failing to state a claim.

• Xie v. University of Texas M.D. Anderson Cancer Center, 20-20622, appeal from S.D. Tex.
  • per curiam (Owen, Clement, Duncan), employment, § 1983
  • Affirming dismissal of former professor’s claims of violation of the federal and state constitutions arising from the search of his computer data drives and subsequent termination.

• Shields v. Warden, 20-40753, appeal from E.D. Tex.
  • per curiam (Higginbotham, Higginson, Duncan), habeas corpus
  • Affirming dismissal of § 2241 petition for failure to show why a § 2255 petition would have provided an adequate remedy.

• U.S. v. Suke, 20-50896, appeal from W.D. Tex.
  • per curiam (Barksdale, Costa, Engelhardt), criminal, sentencing
  • Affirming concurrent 144-month and 120-month sentences on conviction of voluntary manslaughter and assault with a dangerous weapon.

• U.S. v. Barahona-Paz, 21-10350, appeal from N.D. Tex.
  • per curiam (Barksdale, Costa, Engelhardt), criminal, sentencing
  • Affirming 36-month sentence on conviction of illegal reentry.

• Salter v. Cheniere Energy, Inc., 21-20296, appeal from S.D. Tex.
  • per curiam (Southwick, Oldham, Wilson), employment discrimination
  • Affirming summary judgment dismissal of sexual harassment and retaliation claims.

• Diaz v. Garland, 21-60404, petition for review of BIA order
  • per curiam (Jolly, Willett, Engelhardt), immigration
  • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order denying his putative motion to remand and dismissing an appeal from an order of the immigration judge (IJ) denying his application for cancellation of removal.