October 23, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Galbraith v. Hooper, 22-30159, appeal from M.D. La.
    • Southwick, J. (Stewart, Dennis, Southwick), habeas corpus
    • Affirming district court judgment granting sec. 2241 petition on holding that Louisiana state prisoner had a state-created liberty interest in parole that had been granted under Louisiana law, in suit arising from rescission of that parole just prior to its effective date.
    • The Court first held that the petitioner’s claim was properly brought under sec. 2241, as a challenge to the manner in which his confinement was carried out. The Court then rejected the State’s exhaustion argument, holding that state habeas relief was not available for a challenge to a parole action, a point that was highlighted when the petitioner’s application for administrative review of the rescission of his parole was rejected on the basis that parole is purely discretionary under Louisiana law; the Court distinguished the petitioner’s rescission, which occurred prior to the release date, from a post-release-date rescission, which would fall within the Louisiana provision for a hearing prior to a revocation of parole.
    • The Court held that, even though the right to parole is not constitutionally created, it is created in this case under Louisiana law by the grant of parole, such that the petitioner had a procedural and substantive due process right to notice and a hearing prior to the rescission of the already-granted parole.
  • National Press Photographers Association v. McCraw, 22-50337, appeal from W.D. Tex.
    • Willett, J. (Clement, Elrod, Willett), First Amendment, standing, sovereign immunity
    • Reversing judgment in favor of journalist and press association plaintiffs in facial constitutional challenge to Texas statutes prohibiting drone use for surveillance photography over private property and flight of drones over certain designated critical facilities, but affirming district court’s judgment that federal drone regulations did not field-preempt the Texas statutes.
    • The Court held that the plaintiffs did not have standing to bring Due Process claims where there had been no prosecution or threat of prosecution under the statutes; but that the plaintiffs did have standing to bring their First Amendment claims where they had provided sufficient evidence of chilling of their First Amendment activities by the presence of the Texas statutes, which was fairly traceable to the defendants.
    • The Court held that the two state heads of law enforcement agencies were entitled to sovereign immunity, where there was not even a scintilla of evidence that they intended to enforce the statutes and therefore no entitlement to the Ex parte Young exception; but that the county district attorney remained a viable defendant because sovereign immunity did not extend to county officials.
    • The Court then held that the surveillance and no-fly provisions did not facially violate the First Amendment. The Court held that the no-fly provisions “are flight restrictions, not speech restrictions.” As to the surveillance provisions, the Court held that, while the restrictions were subject to some level of scrutiny because they implicated First Amendment concerns, “they call for us to balance First Amendment values against third parties’ right to privacy.” The Court held, “While newsgathering is no doubt critical to a free society, the right to gather news affords no right to compel others to supply information. Here, Plaintiffs claim a First Amendment right to use aerial drones to conduct ‘surveillance’ on private persons and property without consent. But in light of the authorities above, no such right exists. The press has no special privilege to invade the rights and liberties of others. We stress that the Surveillance provisions protect only private individuals and property. They expressly permit using drones to capture images on ‘public real property or a person on that property.’ This makes good sense because there is an important and obvious distinction between recording in public spaces and unauthorized recording on private property.” (Internal footnotes and quotation marks omitted). Under this intermediate level of scrutiny, the Court held that Texas has a legitimate interest in protecting the privacy rights of its citizens, sufficient to withstand the facial First Amendment challenge.
    • The Court affirmed the dismissal of the plaintiffs’ field-preemption challenge to the Texas statutes.

Unpublished

  • Love v. University of St. Thomas, 22-20498, appeal from S.D. Tex.
    • per curiam (Wiener, Graves, Douglas), Title VII, employment discrimination
    • Affirming summary judgment dismissal of plaintiff’s employment discrimination claims.
  • Carcamo-Campos v. Garland, 23-60050, petition for review of BIA order
    • per curiam (King, Haynes, Graves), immigration
    • Denying Honduran citizen’s petition for review of BIA order denying his motion to reopen.
  • U.S. v. Williams, 23-60211, appeal from S.D. Miss.
    • per curiam (Haynes, Graves, Higginson), criminal, sentencing
    • Affirming 360-month sentence on multiple drug-trafficking charges.