Take the Fifth

Designated for publication

• Barnes v. Felix, 22-20519, appeal from S.D. Tex.
  • Higginbotham, J. (Elrod, Higginbotham, Smith), qualified immunity
  • On remand from the U.S. Supreme Court’s reversal and disabling of the Fifth Circuit’s “moment-of-threat” rule for analyzing a deadly force case, again affirming–this time under a reasonableness framework–the district court’s qualified immunity dismissal of a suit against a police officer who used deadly force against a driver who he had pulled over in a traffic stop and who had begun to drive away instead of exiting his vehicle as ordered to by the officer.
  • The Fifth Circuit’s decision examines the legal framework surrounding traffic stops and police use of force. Drawing on Supreme Court precedent, the court noted that officers may stop vehicles for any traffic violation and order drivers out of their cars, primarily to protect against weapons or prevent flight. These rulings recognize the dangers officers face during traffic stops, particularly the risks posed when suspects attempt to flee. The doctrine long allowed officers to consider flight as justification for deadly force if it posed a threat of serious harm to officers or the public.
  • This framework became central in the case of Deputy Roberto Felix, who fatally shot Ashtian Barnes during a 2016 traffic stop on the Sam Houston Tollway. Barnes’s parents brought excessive-force claims under 42 U.S.C. § 1983 against Felix and Harris County. The district court granted summary judgment for the defendants, and the Fifth Circuit initially affirmed under its “moment-of-threat” rule, which limits the analysis to the instant of the shooting. However, the Supreme Court unanimously reversed, holding that the moment-of-threat doctrine improperly narrowed the Fourth Amendment inquiry. Instead, courts must apply the totality-of-the-circumstances standard from Tennessee v. Garner, balancing individual rights against governmental interests.
  • On remand, applying the broader standard, the Fifth Circuit again affirmed summary judgment for Felix and Harris County. Reviewing dashcam footage and sworn testimony, the court found no genuine dispute of material fact that Felix’s use of deadly force was objectively reasonable given the risks posed by Barnes’s sudden attempt to flee. Because plaintiffs failed to show a constitutional violation, their claims also failed against the county. Ultimately, Felix was entitled to qualified immunity, and summary judgment was proper on all claims.
  • Take the Fifth ed. note: The interplay between the deadly-force reasonableness inquiry and the qualified immunity analysis has long been in tension in the Fifth Circuit (and other courts). More than a quarter-century ago I wrote my Tulane Law Review comment on it: Tad Bartlett, “‘The Swamp’s a Hell of a Place to Die, Ain’t It?’: How Objective Reasonableness Has Stagnated the Flow of Fourth Amendment Deadly Force Law at Its Juncture with the Qualified Immunity Defense,” 74 Tulane Law Review 301 (1999).

• U.S. v. King, 24-30323, appeal from E.D. La.
  • Higginson, J. (Higginson, Ho, Wilson), criminal, sentencing
  • Granting petition for panel rehearing, withdrawing Aug. 15 panel opinion and replacing with a new opinion, again affirming sentence that use a prior armed robbery conviction in Louisiana as a “crime of violence” for purposes of calculating the base level offense under the Sentencing Guidelines.
  • Tyree King, who pleaded guilty to firearm and machinegun possession, challenged the use of a prior Louisiana armed robbery conviction as a “crime of violence” in calculating his Sentencing Guidelines range. Because he raised this argument for the first time on appeal, the court applied plain error review and concluded that the district court’s classification of the offense as a crime of violence was not clearly or obviously erroneous. Accordingly, the court affirmed the calculation of King’s base offense level at 22.
  • The panel explained that Louisiana armed robbery, defined as taking something of value from another by force or intimidation while armed, falls within the Guidelines’ enumerated definition of robbery. King argued that, under Louisiana law, armed robbery is a general intent crime and therefore could be committed recklessly, citing prior precedent analyzing Louisiana’s aggravated assault statute. However, the court noted that precedent limiting “general intent” offenses under Louisiana law did not clearly extend to armed robbery, and no Louisiana case demonstrated that armed robbery could be committed recklessly or negligently. Because the question remained at least reasonably disputable, there was no clear or obvious error to satisfy plain error review.
  • The court did, however, find two issues requiring remand. First, the district court’s oral pronouncement of King’s sentence included credit for time served before sentencing, but the written judgment did not reflect that intent. Second, two supervised release conditions in the written judgment conflicted with those pronounced orally. Since oral pronouncements control, the court remanded for resentencing, if necessary, to address presentence detention credit, and directed the district court to conform the written judgment to its oral pronouncement. Thus, the base offense level was affirmed, but corrections to the judgment and potential resentencing were ordered.

Unpublished decisions

• U.S. v. Galvez, 25-10649, appeal from N.D. Tex.
  • per curiam (Smith, Haynes, Oldham), criminal, sentence reduction
  • Dismissing as frivolous appeal from denial of motion for sentence reduction.

• U.S. v. Darden, 24-10831, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Reyes-Gonzalez, 24-11029, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Bowman, 25-30106, appeal from M.D. La.
  • per curiam (Wiener, Willett, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Quzada-Lara, 25-40226, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Ramirez, 24-40686, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Oldham), criminal
  • Affirming judgment of conviction after remand.

• U.S. v. Contreras-Mendoza, 24-40732, appeal from S.D. Tex.
  • per curiam (Wiener, Willett, Wilson), criminal, sentencing
  • Affirming sentence for conviction of r conspiracy to possess with intent to deliver five kilograms or more of a mixture or substance containing cocaine.

• U.S. v. Pizarro-Espinoza, 25-50101, c/w 25-50110, appeal from W.D. Tex.
  • per curiam (Clement, Richman, Willett), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Quintana v. Ramos, 25-50182, appeal from W.D. Tex.
  • per curiam (Stewart, Willett, Wilson), bankruptcy
  • Dismissing as frivolous appeal from dismissal of claims that plaintiff’s former homestead was exempt from bankruptcy proceedings and was fraudulently sold by bankruptcy trustee.

• Rusesabagina v. GainJet Aviation, S.A., 24-50630, appeal from W.D. Tex.
  • per curiam (Stewart, Dennis, Haynes), personal jurisdiction
  • Reversing dismissal for lack of personal jurisdiction suit claiming that defendant aviation company has conspired with Rwandan government to kidnap plaintiff, and remanding for determination of subject-matter jurisdiction.

• U.S. v. Garcia-Montero, 24-50694, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham), criminal, sentencing
  • Affirming 42-month sentence on conviction of illegal reentry.

• U.S. v. Pardo-Ramos, 24-50799, appeal from W.D. Tex.
  • per curiam (King, Haynes, Ho), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• U.S. v. Wells, 25-60088, appeal from S.D. Miss.
  • per curiam (Higginbotham, Engelhardt, Ramirez), criminal, sentencing
  • Dismissing under appeal-waiver of plea agreement the defendant’s appeal of sentence after guilty-plea conviction of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine,