November 17, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • Argueta v. Jaradi, 22-40781, appeal from S.D. Tex.
    • Clement, J. (Clement, Haynes, Oldham), Haynes, J., dissenting; qualified immunity
    • Reversing denial of qualified immunity for officer defendant arising from fatal shooting of suspect armed with a handgun equipped with a high-capacity ammunition extension, and rendering judgment dismissing excessive force claims brought by suspect’s survivors.
    • The Court held, “We therefore conclude that, even taking the facts in the light most favorable to Argueta—that the gun was not visible to Jaradi when Jaradi fired—this fact question is immaterial because Argueta’s clutching his right arm to his side as he fled police confrontation was a furtive gesture akin to reaching for a waistband. And again: it is Argueta’s burden to establish that Jaradi is not entitled to qualified immunity, a protection that we honor unless existing precedent places the constitutional question ‘beyond debate.'” The Court then held that there was no clearly established precedent that verbal warning before use of deadly force is required where a furtive gesture indicates the possibility of imminent endangerment.
    • Judge Haynes dissented. She would hold that the “furtive gesture” line of cases does not render the remaining genuine disputes of fact immaterial, as those cases involved other facts not present here.
  • U.S. v. Kersee, 23-20381, appeal from S.D. Tex.
    • Graves, J. (Graves, Higginson, Ho), Ho, J., concurring; criminal, supervised release
    • Vacating revocation of supervised release and remanding for a hearing.
    • The Court held that “[a] defendant has a qualified right to confrontation in a revocation proceeding,” and that “Kersee’s qualified right to confront and cross examine adverse witnesses was denied without good cause.”
    • Judge Ho concurred. “[W]e don’t presume that citizens are dangerous criminals. We presume they’re innocent. And to overcome that presumption, we require more than just notice and a hearing. We afford the accused with the assistance of counsel and a meaningful opportunity to present evidence and confront adverse witnesses. We impose a robust burden of proof on the government. And when in doubt, we err on the side of liberty.”

Unpublished

  • Sanchez v. Griffis, 21-51160, appeal from W.D. Tex.
    • per curiam (Jones, Barksdale, Elrod), prisoner suit
    • Affirming dismissal of pre-trial detainee’s excessive force claims.
  • North Atlantic Security Co. v. Blache, 22-30703, appeal from M.D. La.
    • per curiam (Clement, Haynes, Oldham), Haynes, J., dissenting; due process
    • Dismissing appeal of dismissal of due process claims on basis of lack of jurisdiction.
    • Judge Haynes dissented, concluding that the plaintiff had raised a federal claim.
  • U.S. v. Diaz-Resendiz, 23-10428, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Jones, 23-10523, appeal from N.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Perez-Ramirez, 23-20121, appeal from S.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Hamid v. State of Michigan, 23-20243, appeal from S.D. Tex.
    • per curiam (Stewart, Graves, Oldham), sec. 1983
    • Dismissing as frivolous appeal from dismissal of sec. 1983 claims.
  • Caceres v. Preload, L.L.C., 23-30354, appeal from W.D. La.
    • per curiam (Dennis, Elrod, Wilson), workers’ compensation
    • Affirming dismissal of survivor’s wrongful death action against deceased son’s employer, holding that injury did not fall under intentional act exception to workers’ compensation exclusivity.
  • U.S. v. Covarrubias-Martinez, 23-40368, appeal from S.D. Tex.
    • per curiam (Smith, Higginson, Engelhardt), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • Hudnall v. Smith, 23-50143, appeal from W.D. Tex.
    • per curiam (Dennis, Engelhardt, Wilson), breach of contract, RICO, fraud
    • Affirming dismissal of RICO and breach of contract claims, modifying the judgment to reflect that the breach of contract claims are dismissed without prejudice.
  • U.S. v. Pascual-Juan, 23-50351, appeal from W.D. Tex.
    • per curiam (Wiener, Stewart, Douglas), criminal, sentencing
    • Affirming conviction and sentence for illegal reentry.
  • Sechler v. U.S. Bank National Association, 23-60103, appeal from N.D. Miss.
    • per curiam (Elrod, Oldham, Wilson), foreclosure
    • Granting petition for panel rehearing, withdrawing original panel decision, and substituting new opinion that affirms dismissal of plaintiffs’ claim alleging wrongful foreclosure.