Take the Fifth

Designated for publication

• Siders v. City of Brandon, 23-60381, appeal from S.D. Miss.
  • per curiam (voting against en banc rehearing: Jones, Smith, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Duncan, Engelhardt, Oldham, Wilson, Douglas, Ramirez, JJ.; voting for en banc rehearing: Elrod, Ho, JJ.); Oldham, J., concurring in denial of rehearing (joined by Jones, Smith, Willett, Duncan, Engelhardt, Wilson, JJ.); Ho, J., dissenting from denial of rehearing; First Amendment, en banc
  • Denying en banc rehearing of panel judgment (Wiener, Smith, Douglas) affirming district court’s denial of preliminary injunction of city ordinance against protesting or demonstrating near amphitheater, in claim brought by plaintiff who sought to “share the gospel” outside amphitheater.
  • Judge Oldham concurred in the denial of rehearing, to take issue with the dissent’s characterization of the result: “At this preliminary stage of the litigation, however, Siders does not challenge any of the restrictions in the ‘Protest Area.’ Nor does she claim the City violated her Free Exercise rights to evangelize. Nor does she claim the City selectively enforced a facially neutral time, place, and manner restriction to discriminate against evangelical Christians. You would know none of this from reading the dissenting opinion. It alleges that 15 members of the en banc court have blessed the ‘sacrifice [of] our constitutional freedoms at the altar of bureaucratic efficiency’ by ‘banish[ing] people of faith like Siders to the functional equivalent of Siberia.’ Post, at 9 (Ho, J., dissenting). And it claims today’s vote is tantamount to ‘banishment of religious activity from the public square.’ Ibid. If this case implicated the First Amendment’s Religion Clauses, the result might have been different. But rhetorical flourish is no substitute for the facts and law in the case before us.”
  • Judge Ho dissented from the denial of rehearing.

Unpublished

• U.S. v. Swick, 24-10167, appeal from N.D. Tex.
  • per curiam (Davis, Stewart, Southwick), criminal
  • Affirming conviction of possession of a firearm by a felon.

• Thornton v. University of Texas Southwestern Medical Center School of Medicine, 24-10594, appeal from N.D. Tex.
  • per curiam (Wiener, Stewart, Southwick), Title VII, employment discrimination
  • Affirming dismissal of plaintiff’s racial discrimination claims against former employer.

• U.S. v. Briseno, 23-10797, appeal from N.D. Tex.
  • per curiam (Clement, Graves, Ramirez), Graves, J., dissenting; criminal, Miranda
  • Affirming conviction arising from kidnapping of mother and daughter, upholding denial of motion to suppress statements made without proper Miranda warning where interrogating officer gave incomplete oral Miranda warning in rudimentary Spanish and then provided card with full written Miranda warning printed in Spanish to defendant prior to his statement; and upholding use of telephone-tracking information.
  • Judge Graves dissented. “The record here shows that Briseño was not properly Mirandized. The record also shows that the government failed to establish that there were exigent circumstances to justify the warrantless tracking of his cell phone.”

• U.S. ex rel. Doe v. Planned Parenthood Federation of America, Inc., 23-11184, appeal from N.D. Tex.
  • per curiam (Barksdale, Southwick, Graves), False Claims Act
  • Reversing denial of summary judgment dismissal of plaintiff’s implied-false-certification claim, and remanding for dismissal of case.

• U.S. v. Ratcliff, 24-30192, appeal from W.D. La.
  • per curiam (Graves, Higginson, Wilson), criminal, sentencing
  • Vacating sentence and remanding for resentencing after finding that there is insufficient factual support to show that the defendant’s possession of a firearm facilitated his possession of a stolen vehicle.

• U.S. v. Lawson, 24-30240, appeal from W.D. La.
  • per curiam (King, Ho, Ramirez), criminal, sentencing
  • Affirming 105-month sentence on conviction of conspiracy to distribute cocaine.

• Mitchell v. Dudek, 24-30342, appeal from E.D. La.
  • per curiam (Smith, Clement, Duncan), social security
  • Affirming time-period for award of disability benefits.

• Foster v. Bellamy, 24-30454, appeal from W.D. La.
  • per curiam (Barksdale, Stewart, Ramirez), prisoner suit
  • Affirming summary judgment dismissal of Louisiana state prisoner’s sec. 1983 claims.

• Frickey v. Nelson, 24-30691, appeal from E.D. La.
  • per curiam (Smith, Graves, Engelhardt), sec. 1983
  • Dismissing as frivolous appeal from dismissal of sec. 1983 claims.

• U.S. v. Gatewood, 24-50256, appeal from W.D. Tex.
  • per curiam (King, Southwick, Engelhardt), criminal, compassionate release, sentence reduction
  • Affirming denial of motion for compassionate release or for sentence reduction.

• U.S. v. Carranza, 24-50402, appeal from W.D. Tex.
  • per curiam (Haynes, Higginson, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.