Take the Fifth

Designated for publication

• Crandel v. Hall, 22-10360, c/w Crandel v. Hastings, 22-10361, appeal from N.D. Tex.
  • Barksdale, J. (Barksdale, Southwick, Higginson), qualified immunity
  • Affirming qualified immunity summary judgment on failure-to-protect claims arising from detainee’s suicide, based primarily on whether jailer and officer defendants possessed subjective knowledge of a substantial risk of suicide by the detainee.
  • The Court, based on the rule of orderliness, rejected the plaintiffs’ proposed objective-unreasonableness standard as applicable to a pretrial detainee, and instead applied the standard to the failure-to-protect claim that “plaintiffs must show the official: was aware of facts from which the inference could be drawn that a substantial risk of serious harm exists; and also [drew] the inference. An official with such knowledge then shows a deliberate indifference to that risk by failing to take reasonable measures to abate it.” (Internal quotation marks and citations omitted).
  • Under this standard, the Court held that the jailers’ and officers’ observation of the detainee’s intoxicated state and defiant demeanor did not equate to a subjective knowledge of suicide risk. “Absent additional, independent evidence that the jailers believed Worl was at risk for suicide, failure to screen does not establish a genuine dispute of material fact for the jailers’ subjective knowledge regarding Worl’s risk of suicide.”

• Great Lakes Insurance, S.E. v. Gray Group Investments, L.L.C., 22-30041, appeal from E.D. La.
  • Wilson, J. (Wiener, Higginson, Wilson), insurance
  • Affirming ruling that insurer properly declined coverage for loss of boat that sunk during a hurricane.
  • The Court held that the hurricane protection plan submitted to the insurer by the insured, which provided that the boat would be moored in the Orleans Marina to be protected from an approaching named storm, was incorporated into the policy, justifying denial of coverage when the boat was instead moored in Pensacola and not protected according to the submitted plan.

• Edmiston v. Borrego, 22-50102, appeal from W.D. Tex.
  • Barksdale, J. (Barksdale, Southwick, Higginson), qualified immunity
  • Vacating judgment denying qualified immunity to defendants in failure-to-protect claims arising from pretrial detainee’s suicide, and rendering judgment granting qualified immunity, on basis that “[p]laintiffs fail to plausibly alleged appellants possessed the requisite subjective knowledge.”
  • The Court applied the elements discussed in its contemporaneous Crandel decision to the 12(b)(6) context: “We first address plaintiffs’ blanket allegation that appellants ‘were aware of the excessive risk of [Schubert’s] health and safety and were aware of facts from which an inference could be drawn of serious harm, suffering and death. Moreover, they in fact drew that inference.’ As stated supra, we must carefully discern factual allegations from legal conclusions in plaintiffs’ complaint. This statement about appellants’ state-of-mind merely restates the standard required to demonstrate the requisite subjective knowledge; therefore, we do not accept it as a well-pleaded allegation when evaluating the sufficiency of the complaint.”
  • The Court also held that “there is no independent constitutional right to suicide screening.”

• Mock v. Garland, 23-10319, appeal from N.D. Tex.
  • Smith, J. (Smith, Higginson, Willett), Willett, J., concurring; Higginson, J., dissenting; Administrative Procedure Act, Second Amendment
  • Reversing denial of preliminary injunction of ATF Final Rule creating six-factor test to determine if a handgun with a stabilizing brace should be treated as a short-barreled rifle (“SBR”) for purposes of the extra requirements of the National Firearms Act of 1934 and the Gun Control Act of 1968, holding that the plaintiff federal firearms licensee’s APA challenge had a substantial likelihood of success on the merits where the Final Rule’s test was substantively different from the Proposed Rule’s worksheet-based determination of whether a particular stabilizing-brace setup would be deemed a SBR.
  • The Court noted that “the main difference between rifles and handguns [under the NFA and GCA] is the shoulder stock. A handgun, intended to be fired with one hand, is statutorily requires to have a short stock and functionally does not need a longer one for recoil management or aim. Yet that statutory emphasis on a stock leads to some odd results: An AR-style rifle with a barrel shorter than 16 inches is subject to the restrictions of the NFA, while an identical AR-style pistol with similar dimensions but missing a should stock is not. That distinction is important. NFA-regulated firearms require registration in the National Firearms Registration and Transfer Record, and are subject to stringent restrictions and requirements.” (Internal footnotes and citations omitted).
  • Summarizing its APA analysis, the Court held, “The ATF incorrectly maintains that the Final Rule is merely interpretive, not legislative, and thus not subject to the logical-outgrowth test. The Final Rule affects individual rights, speaks with the force of law, and significantly implicates private interests. Thus, it is legislative in character. Then, because the Final Rule bears almost no resemblance in manner or kind to the Proposed Rule, the Final Rule fails the logical-outgrowth test and violates the APA.”
  • The Court declined to rule on the other elements of the entitlement to a preliminary injunction, instead remanding to the district court for expeditious consideration of injunctive relief, while maintaining the preliminary injunction pending appeal that had already been issued by a motions panel of the Court until 60 days after the Court’s decision.
  • Judge Willett concurred to opine that, in addition to the APA infirmity discussed by the majority, he believed that the “Final Rule would likely fail constitutional muster even if it were a logical outgrowth of the worksheet idea that preceded it.” He opined that the stability brace made the handguns safer because they improved accuracy, and that “protected Second Amendment conduct likely includes making common, safety-improving modifications to otherwise lawfully bearable arms.”
  • Judge Higginson dissented. He noted that the plaintiffs had argued the wrong standard to distinguish legislative from interpretive rules, and took issue with the majority’s supplying of a standard: “The majority forgives this misfire and attempts to fill the gap itself. I would not do so. While we might defensibly remedy a mistaken movant’s legal error if the error is small or readily correctable, that is not our situation. Discerning whether a rule is interpretive rather than legislative is difficult. … Reflective of these difficulties, the test crafted and applied by the majority creates more problems than solutions. … No party in the case has briefed the factors—their wisdom in general or their specific application to this Rule. The district court had no such opportunity either.” Judge Higginson also would hold that, even if the Final Rule were legislative, it was a logical outgrowth of the Proposed Rule, such that there was adequate notice and an opportunity to comment.
  • Judge Higginson also disagreed with Judge Willett’s opinion as to whether the stability braces were Second Amendment-protected safety conduct. “Increased concealability and accuracy, at least in the hands of killers, is not ‘safe’—it is lethal.”

Unpublished

• Malone v. Zambrano, 21-40807, appeal from S.D. Tex.
  • per curiam (Barksdale, Elrod, Haynes), prisoner suit
  • Affirming dismissal of Texas state prisoner’s § 1983 claims.

• U.S. v. Song, 21-51229, appeal from W.D. Tex.
  • per curiam (Jones, Clement, Haynes), criminal, search and seizure
  • Affirming conviction of receipt and possession of child pornography, upholding denial of motion to suppress.

• Martinez v. Garland, 21-60251, petition for review of BIA order
  • per curiam (King, Higginson, Willett), immigration
  • Dismissing in part and denying in part Meixcan citizen’s petition for review of BIA order denying him cancellation of removal.

• Nursery Decals and More, Inc. v. Neat Print, Inc., 22-10065, appeal from N.D. Tex.
  • per curiam (Haynes, Engelhardt, deGravelles, by designation), trademark, mootness
  • Reversing summary judgment cancelling four of defendant’s trademarks, holding that an “updated covenant not to sue” rendered the cancellation claims moot.

• U.S. v. Jenkins, 22-11066, appeal from N.D. Tex.
  • per curiam (King, Haynes, Higginson), criminal, sentencing
  • Affirming 60-month sentence on conviction of being a felon in possession of a firearm.

• U.S. v. Lopez, 22-11237, appeal from N.D. Tex.
  • per curiam (Jones, Haynes, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Tuttle v. Todd, 22-20233, c/w 22-20319, appeal from S.D. Tex.
  • per curiam (Clement, Elrod, Willett), § 1983
  • Reversing denial of motion to dismiss § 1983 claims arising from attempt to execute search warrant, and rendering judgment dismissing claims.

• Neptune v. Indian Harbor Insurance Co., 22-20592, appeal from S.D. Tex.
  • per curiam (Clement, Elrod, Willett), insurance
  • Affirming denial of coverage for claim by plaintiff arising from injuries she incurred while working as a Lyft driver.

• U.S. v. Deblasio, 22-20642, appeal from S.D. Tex.
  • per curiam (Jones, Southwick, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Williams, 22-30491, appeal from E.D. La.
  • per curiam (Jones, Haynes, Oldham), criminal, sentencing
  • Affirming 80-month sentence on conviction of being a felon in possession of a firearm.

• Rodriguez v. Touhami, 22-40695, appeal from E.D. Tex.
  • per curiam (Davis, Stewart, Oldham), prisoner suit
  • Affirming dismissal of Texas state prisoner’s § 1983 claims.

• U.S. v. Martinez-Saenz, 22-40823, appeal from S.D. Tex.
  • per curiam (Jolly, Engelhardt, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Ryan, 22-50330, appeal from W.D. Tex.
  • per curiam (Jones, Haynes, Duncan), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• McTruong v. Abbott, 22-51024, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham), § 1983
  • Affirming dismissal of pro se plaintiff’s claims that the Texas Heartbeat Act was drafted using his copyrighted material and was unconstitutional.

• Portillo-Erazo v. Garland, 22-60497, petition for review of BIA order
  • per curiam (Jones, Haynes, Oldham), immigration
  • Denying Honduran citizen’s petition for review of BIA order dismissing her appeal from an order of the Immigration Judge (IJ) denying her application for asylum, withholding of removal, and relief under the CAT.

• Smith v. Windham, 22-60544, appeal from S.D. Miss.
  • per curiam (Jones, Haynes, Oldham), prisoner suit
  • Affirming dismissal of Mississippi state prisoner’s § 1983 claims.

• U.S. v. Fleming, 22-60623, appeal from N.D. Miss.
  • per curiam (Jones, Haynes, Oldham), criminal, sentencing
  • Affirming 160-month sentence on conviction of possession of a firearm by a felon and distribution of methamphetamine.

• U.S. v. Watson, 22-60636, appeal from S.D. Miss.
  • per curiam (Higginbotham, Stewart, Southwick), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Ruiz, 23-40133, appeal from S.D. Tex.
  • per curiam (Jones, Southwick, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Diaz-Diaz, 23-50179, c/w 23-50186, appeal from W.D. Tex.
  • per curiam (Smith, Higginson, Engelhardt), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.

• Canales-Galindo v. Garland, 23-60013, petition for review of BIA order
  • per curiam (King, Haynes, Graves), immigration
  • Denying Honduran citizens’ petition for appeal of BIA order dismissing appeal of IJ’s denial of application for asylum, withholding of removal, and protection under the CAT.

• Sunesara v. Garland, 23-60026, petition for review of BIA order
  • per curiam (Jones, Haynes, Oldham), immigration
  • Denying Indian citizen’s petition for review of BIA order dismissing his appeal from an order of an Immigration Judge (IJ) ordering him removed, finding him not credible, and denying his application for asylum, withholding of removal, and protection under the CAT.