June 27, 2025, opinions

Posted on by tadbartlett

Designated for publication

  • McMurry v. Weaver, 24-50571, appeal from W.D. Tex.
    • King, J. (King, Ho, Ramirez), Ho, J., concurring; qualified immunity
    • Affirming denial of qualified immunity to officer defendant on claims of Fourth and Fourteenth Amendment violations from the taking of a child from her home during a child welfare investigation.
    • The Fifth Circuit affirmed the district court’s denial of qualified immunity to Officer Alexandra Weaver, who, during a child welfare check, entered a family’s home without a warrant, consent, or exigent circumstances and removed a fourteen-year-old child, J.M., from the home. The court found that the record supported the family’s claims that Weaver violated their Fourth and Fourteenth Amendment rights. The evidence included Weaver entering the home under questionable consent, inspecting the kitchen, and directing J.M. not to contact her parents. Weaver then removed J.M. from the home, denied her communication with her father, and took her to school for questioning. CPS quickly determined no abuse or neglect existed, and the children were returned home. Ms. McMurry was later acquitted of criminal charges arising from the incident.
    • The Fifth Circuit held that Weaver was not entitled to qualified immunity for the warrantless search. It emphasized that under Gates v. Texas Department of Protective and Regulatory Services, searches in the child welfare context require either a court order, consent, or exigent circumstances — none of which applied. Weaver’s claimed exceptions of “community caretaking” or “special needs” did not justify the intrusion, especially since the visit culminated in criminal charges, revealing a close tie to law enforcement objectives. Because the legal standards were clearly established by 2018, Weaver had fair warning that her actions were unconstitutional.
    • The court also found that J.M.’s seizure was unlawful. Like the search, the removal of the child lacked a court order, consent, or immediate danger that would justify exigent circumstances. The court reiterated that by 2018, precedent from Gates, Wernecke, and Romero had clearly established that children cannot be removed from their homes absent those conditions. The procedural due process claim brought by the parents was likewise sustained, as the seizure of J.M. without following legally required procedures violated the family’s clearly established rights. Thus, the denial of qualified immunity on all claims was affirmed.
    • Judge Ho concurred condemning a defense theory asserting that parents who homeschool their children effectively convert their homes into public schools, thereby forfeiting Fourth Amendment protections. The theory, raised during oral argument, suggests police could remove homeschooled children without constitutional limits because their home doubles as a school. Judge Ho calls this argument not only legally absurd but also deeply offensive to parental rights and long-established constitutional doctrines. He praises the court’s majority for swiftly rejecting the theory and reaffirming that homeschooling families are entitled to full Fourth Amendment protections, noting that the home is a particularly sacrosanct space in American constitutional law. Judge Ho further argues that no case law is required to refute such an obviously unconstitutional theory, relying on the Supreme Court’s “obviousness” doctrine from Hope v. Pelzer and Taylor v. Riojas, which holds that some violations are so egregious that they need no direct precedent to overcome qualified immunity.
    • Judge Ho then critiques his own court’s broader qualified immunity jurisprudence, especially en banc decisions in Morgan v. Swanson and Villarreal v. City of Laredo, which narrowly limit the applicability of the “obviousness” exception to Eighth Amendment cases. He criticizes this approach as illogical and inconsistent with Supreme Court precedent, pointing out that every other federal circuit applies the same principle to First Amendment violations and other rights. He echoes Justice Thomas’s view that public officials who make deliberate decisions to infringe on rights—unlike officers in emergency situations—should not benefit from broad immunity. Citing strong criticism of Morgan and Villarreal by civil liberties groups, he concludes that while bound to follow en banc precedent, he refuses to extend it and insists on protecting clearly established constitutional rights, particularly when they are as fundamental and obvious as those at stake in this case.

Unpublished decisions

  • U.S. v. Pena, 24-50058, appeal from W.D. Tex.
    • per curiam (King, Southwick, Engelhardt), criminal
    • Affirming defendant’s conviction of possession of a firearm by a felon, rejecting Second Amendment and Commerce Clause challenges.
  • Vinales v. AETC II Privatized Housing, L.L.C., 24-50113, appeal from W.D. Tex.
    • per curiam (Elrod, King, Graves), personal torts, federal enclave doctrine, attorneys’ fees, fraud
    • Affirming jury award on claims arising against military base housing developer; but affirming the application of the federal enclave doctrine to plaintiffs’ other claims, the dismissal of the fraud claim, the exclusion of evidence at trial, and the denial of attorneys’ fees.