February 2, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Rahimi, 21-11001, appeal from N.D. Tex.
    • Wilson, J. (Jones, Ho, Wilson), Ho, J., concurring; criminal, Second Amendment
    • Vacating conviction for possession of a firearm by someone subject to a domestic violence restraining order, declaring 18 USC § 922(g)(8) facially unconstitutional in light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
    • After defendant moved to dismiss his indictment for violating § 922(g)(8) on grounds of unconstitutionality of the statute, the district court denied the motion because the argument had been foreclosed by U.S. v. McGinnis, 956 F.3d 747 (5th Cir. 2020). On appeal, the first panel of the Court had agreed that the argument was foreclosed by McGinnis, but while the defendant’s petition for en banc rehearing was pending, the Supreme Court issued its opinion in Bruen. The prior panel withdrew the original opinion and ordered supplemental briefing, leading to this new panel opinion.
    • The Court held that Bruen–which requires the government to “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms,” and which repudiated the means-end scrutiny step of the analysis under McGinnis–“fundamentally changed” the Court’s framework of analysis of Second Amendment challenges, “rendering our prior precedent obsolete.”
    • The Court rejected the government’s argument that the scope of Second Amendment only applies restrictions to firearm ownership by “law-abiding, responsible” citizens, holding that the approach to the Second Amendment of analyzing history and tradition to identify the scope of the legislature’s power to take away a right to bear arms trumps the approach of using that same body of evidence to identify the scope of the right. The Court held that “the people” in the Second Amendment is not restricted in any way.
    • The Court held that, where the right exercised is specifically within the scope of the Second Amendment, then it is the government’s burden to show at least a “well-established and representative historical analogue” in the historical understanding of the restriction in § 922(g)(8). The Court held that England’s Militia Act of 1662 was not a good historical analogue, because it had been used to disarm political opponents of Charles II and was subsequently qualified under the 1689 English Bill of Rights. The Court also rejected “dangerousness” laws from the colonies and states that allowed disarming of certain categories of persons, because those laws were anti-rebellion laws aimed at protecting against violence against the state, rather than domestic violence. The Court then rejected proposed modifications to the Second Amendment in Pennsylvania’s and Massachusetts’ ratifying conventions, since they were not enacted. The Court also rejected as analogues colonial and early state “going armed” laws, as all but one of those either never contained a forfeiture provision or removed their forfeiture provisions, and because they could only result in disarming after a criminal conviction–where § 922(g)(8) was triggered by a civil adjudication. Finally, the Court held that, while surety laws were analogous in the “why”–to protect an identified individual from harm–and much of the “how”–civil adjudication and a finding of a credible threat–they were ultimatley not sufficiently analogous because they did not solely require disarmament, but only in the case that the subject could not post a monetary surety.
    • Judge Ho concurred, pointing out that the Second Amendment cannot protect the right to bear arms for those who have been criminally convicted.
  • Fort Bend County v. U.S. Army Corps of Engineers, 21-20174, appeal from S.D. Tex.
    • Southwick, J. (Dennis, Southwick, Wilson), jurisdiction, Administrative Procedures Act, floodwater management
    • Reversing and remanding dismissal of county entities’ claims against the Corps of Engineers on the basis that the district court lacked subject matter jurisdiction over APA claims challenging the Corps’ adoption of a water management plan that allowed it to impound floodwaters on non-government-owned property upstream of flood-control reservoirs in Houston, and that they failed to state a claim for damages arising from flooding arising from the Corps’ management of floodwaters.
    • The Court held that the counties’ APA claims were not actually Tucker Act claims for payment of money or takings claims, and therefore that there was jurisdiction to review them under § 702 of the APA.
    • The Court held that the counties had stated a claim under the APA § 706 challenging the promulgation of the water management plan, but that there was no claim under § 706 for a failure to subsequently amend the plan. As to the counties’ § 706 claim for failure of the Corps to acquire additional land for floodwater impoundment, the Court remanded so that the relevant Corps policy could be produced and a determination made whether it created a binding, non-discretionary duty.
    • The Court then rejected the counties’ request that the case be reassigned to a different judge on remand.

Unpublished

  • Wilder v. Stephen F. Austin State University, 21-40806, appeal from E.D. Tex.
    • per curiam (Smith, Barksdale, Haynes), employment discrimination, Title VII
    • Upholding evidentiary rulings and a denial of motion for new trial, affirming judgment against plaintiff in employment discrimination claim.
  • U.S. v. Ramirez, 22-10461, appeal from N.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Robinson, 22-30269, appeal from W.D. La.
    • per curiam (Elrod, Haynes, Willett), criminal, search and seizure
    • Affirming conviction of possession with intent to distribute heroin, upholding the application of the good-faith exception to the exclusionary rule.
  • U.S. v. Brooks, 22-50241, appeal from W.D. Tex.
    • per curiam (Jolly, Jones, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Olmos, 22-50515, appeal from W.D. Tex.
    • per curiam (Stewart, Duncan, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.