Take the Fifth

Designated for publication

• Hignell-Stark v. City of New Orleans, 24-30160, appeal from E.D. La.
  • Jones, J. (Elrod, Jones, Stewart) (oral argument), equal protection clause, First Amendment, Commerce Clause
  • Affirming in part and reversing in part district court’s summary judgment finding city’s short-term rental regulations constitutional, and remanding for further proceedings.
  • The Fifth Circuit reviewed New Orleans’s regulation of short-term rentals (STRs)—defined as rentals of fewer than thirty days—challenged by homeowners and property managers. The City created an extensive permitting scheme governing who could operate STRs, how they were advertised, and who must oversee them. While the City has broad zoning authority to regulate neighborhood uses, the court found several constitutional violations. It held that the prohibition on business entities holding STR permits violated the Equal Protection Clause, that an advertising restriction violated the First Amendment, and that an operator-residency rule—if interpreted as a permanent residency requirement—would violate the dormant Commerce Clause.
  • The City had previously forbidden rentals shorter than thirty days in residential neighborhoods and sixty days in the French Quarter. In 2017, it began issuing licenses, but a later study found STRs harmed neighborhood character and reduced affordable housing. In response, the City imposed tighter restrictions in 2019, including a primary-residence requirement. That requirement was invalidated in Hignell-Stark I (2022) as discriminatory under the dormant Commerce Clause. The City then amended its code to require a resident “operator” rather than an owner-occupant, prohibited business ownership of STRs, and mandated detailed advertising disclosures. Property owners again sued, alleging constitutional violations under due process, equal protection, free speech, and the Commerce Clause.
  • The Fifth Circuit first held that the City acted within its state-law authority to regulate STRs under Louisiana Revised Statutes § 33:4721, which allows zoning by “use.” It rejected due-process claims because Louisiana law treats STRs as a commercial use, not an incident of residential property rights. The plaintiffs failed to show a protected property interest in operating STRs, as such rentals were historically unlawful before the City’s licensing scheme and are thus a privilege rather than a right. The court reaffirmed that short-term rental use of property is akin to hotel operation, not ordinary residential leasing, and thus subject to regulation.
  • However, the court found that the City’s categorical exclusion of “business entities” from obtaining owner or operator permits violated the Equal Protection Clause. Both natural persons and juridical entities are “persons” under Louisiana and federal law, and the City offered no rational basis connecting corporate ownership with the harms it sought to address, such as noise and neighborhood disruption caused by guests. Because individuals frequently use LLCs to manage liability without altering compliance or oversight, the prohibition was arbitrary and irrational. Likewise, banning business entities from operator permits was unsupported by any evidence that corporate operators would neglect neighborhood oversight, rendering the restriction unconstitutional.
  • Finally, the Fifth Circuit upheld most advertising disclosure requirements as permissible compelled factual speech under Zauderer v. Office of Disciplinary Counsel but struck down the “one dwelling per advertisement” rule as an unjustified restraint on commercial speech under Central Hudson. As for the operator-residency requirement, the court adopted the City’s narrowing interpretation—that an operator need only be present while guests are staying, not a permanent resident—thereby avoiding a dormant Commerce Clause violation. Thus, the Fifth Circuit’s decision leaves the City’s core regulatory authority intact but invalidates its discriminatory business-entity bans and unjustified advertising restriction.

• Hershey v. City of Bossier City, 21-30754, appeal from W.D. La.
  • per curiam (Dennis, Richman, Ho) (Dennis and Ho reversing dismissal of Monell claim; and Richman and Ho affirming qualified immunity dismissal of officer defendants), Ho, J., concurring; Dennis, J., dissenting in part (oral argument); Richman, J., dissenting in part; municipal liability, qualified immunity, First Amendment
  • Affirming qualified immunity dismissal of police officers for enforcement of leaflet-distribution prohibition, reversing dismissal of municipal liability claim against city; in a series of three individual opinions by each of the panel members that were nevertheless issued as a “per curiam” result.
  • Judge Ho’s concurrence opens by reaffirming that the First Amendment protects not only private worship but also public evangelism—the right to preach, proselytize, and distribute religious materials. Judge Ho contends that Richard Hershey’s attempt to hand out religious pamphlets on a public sidewalk near a concert squarely falls within that protected sphere. Because police officers and private security guards allegedly threatened him with arrest for doing so, Judge Ho agrees that Hershey’s Monell claim against the City of Bossier for failing to train its officers should proceed. However, he “reluctantly concurs” in affirming qualified immunity for the individual defendants, explaining that while the constitutional violation is obvious, Fifth Circuit precedent—especially Villarreal v. City of Laredo—prevents him from denying immunity absent a prior case with “materially identical facts.” Ho calls this approach mistaken and laments the circuit’s “record of protecting First Amendment rights.”
  • Judge Ho elaborates that Supreme Court precedent from Murdock v. Pennsylvania to Marsh v. Alabama clearly establishes that distributing religious tracts on public sidewalks—even those adjoining privately managed facilities—is constitutionally protected speech. Under those cases, it should not matter whether the officials violating Hershey’s rights were government officers or private contractors acting under color of law. Ho contends that qualified immunity should not shield such “obvious” constitutional violations, invoking Hope v. Pelzer and Taylor v. Riojas to argue that egregious misconduct does not require fact-twin precedent to be actionable. Yet under Villarreal and related circuit rulings, that reasoning applies only to Eighth Amendment cases, not First Amendment ones. Bound by that precedent, Judge Ho upholds the grant of qualified immunity to the individuals but allows the Monell claim against the City to proceed, concluding that the City’s alleged failure to train its officers on citizens’ First Amendment rights plausibly shows deliberate indifference and causation.
  • Judge Dennis dissents in part, dissenting from the affirmance of the qualified immunity dismissal as to the individual officer and security guard defendants. Judge Dennis observed that, while another person nearby handed out commercial flyers without interference, two city police officers and three Center security guards confronted only Hershey, ordered him to stop, and threatened him with arrest. When Hershey questioned why he was being targeted, security guard Tyshon Harvey said his literature had not been “approved” by the Center and that he would have to leave. The officers and guards then “used their command presence” to force him from the area, though the other leafleteer remained. Hershey, fearing arrest, did not return. He sued the City, the officers, and the guards for violating his First Amendment rights, but the district court dismissed his claims—holding that the officers were entitled to qualified immunity, the guards were not state actors, and Hershey failed to allege a City policy or custom under Monell.
  • Judge Dennis contended that the district court erred on each front. Hershey plausibly alleged a Monell failure-to-train claim, as the City provided “literally zero training” on officers’ First Amendment duties in public forums, satisfying the elements of deliberate indifference and causation. Judge Dennis also rejected qualified immunity for the officers, emphasizing that the right to distribute literature free from viewpoint discrimination in traditional public forums was clearly established, and Hershey’s allegations—showing police silenced religious speech while permitting commercial flyers—met that standard. Finally, Judge Dennis concluded that the security guards acted “under color of state law” because they performed an exclusively governmental function: policing speech on city property. By exercising that power jointly with city officers, they became de facto state actors.
  • Judge Richman dissented in part, dissenting from the reversal of the district court’s dismissal of the municipal liability claims against the city. Judge Richman contends that the panel majority improperly broadens Monell liability in two ways: by allowing a “gotcha” failure-to-train-at-all theory in a single-incident, nuanced First Amendment setting, and by permitting municipal liability for failing to train private security guards employed by a private arena operator. Judge Richman stresses that deliberate indifference can be inferred without a pattern only in “narrow,” “rare,” and “extreme” cases where violations are a highly predictable consequence of not equipping officers for recurring situations. Here, there are no allegations of prior similar incidents or a recurring risk that officers confronting paid pamphleteers outside a ticketed event would commit viewpoint discrimination; treating any absence of First Amendment training as making violations “obvious” would collapse deliberate-indifference into negligence or strict liability. The same logic forecloses a duty to train ASM Global’s private guards: Judge Richman notes no authority imposing municipal liability for training a third party’s employees.
  • On qualified immunity, Judge Richman would affirm dismissal of claims against the Bossier City officers because the forum status of sidewalks abutting a city-owned, privately managed arena during a ticketed concert was not clearly established, and the complaint’s facts do not plausibly show viewpoint discrimination or an officer-level duty to provide “ample alternative channels.” Judge Richman underscores that broad anti-viewpoint principles cannot define “clearly established” law for complex, fact-specific forum contexts. She also rejects § 1983 claims against ASM Global guards under the nexus/joint-action and public-function tests: the complaint pleads no concrete interdependence or concerted action with the City, and regulating speech on arena-adjacent sidewalks during an event is not a function “traditionally and exclusively” reserved to the state.

• Dunsmore v. Muth, 25-50047, appeal from W.D. Tex.
  • Higginson, J. (Southwick, Higginson, Wilson) (no oral argument), civil commitment, sec. 1983, equal protection, due process
  • Affirming dismissal of pro se civil commitment detainee’s sec. 1983 claims.
  • The Fifth Circuit affirmed the dismissal of civilly committed individual David Dunsmore’s pro se § 1983 suit against Texas officials, in which he alleged that the Texas Department of Family and Protective Services (TDFPS) and the Texas Health and Human Services Commission (THHS) violated his Fourteenth Amendment rights by failing to investigate his reports of abuse and misconduct at the Texas Civil Commitment Center (TCCC). Dunsmore, an adjudicated sexually violent predator (SVP), claimed this inaction deprived him of equal protection, due process, and rights under the Mental Health Patients’ Bill of Rights. The district court dismissed his complaint under § 1915(e)(2)(B) for failure to state a claim and denied leave to amend as futile.
  • On de novo review, the court held that Dunsmore failed to plead plausible equal protection or due process claims. It found that Dunsmore was not similarly situated to ordinary citizens because, as a civilly committed SVP, he was subject to the Texas Civil Commitment Office (TCCO) grievance system—a distinction rationally related to the state’s interest in centralized complaint management. His due process claims likewise failed: he identified no protected liberty or property interest in having TDFPS or THHS investigate his complaints, and the cited mission statements created no cognizable right to an investigation. His factual allegations—ranging from alleged medical neglect to a supposed extortion incident—were either conclusory, directed at unrelated actors, or unsupported by any link to the defendants’ conduct. Moreover, the alleged official inaction did not rise to the “shocks-the-conscience” threshold required for substantive due process violations.
  • The court further found no error in the district court’s refusal to permit amendment because Dunsmore had already pleaded his best case and dismissal was without prejudice, allowing him to refile against appropriate defendants in the proper venue. His allegations of judicial bias were meritless; the district court’s references to his SVP status were contextually relevant, not evidence of personal animus. Finally, the panel denied Dunsmore’s request for appointed counsel, holding that no “exceptional circumstances” warranted it—especially since he had retained private attorneys in parallel litigation concerning his confinement and treatment.

• Jones v. City of Hutto, 24-50096, appeal from W.D. Tex.
  • Richman, J. (Richman, Graves, Ramirez) (oral argument), sec. 1981, breach of contract, employment
  • Reversing judgment in favor of former city manager on sec. 1981 racial treatment claim, affirming breach of contract claim arising from separation agreement with city, and remanding for determination of attorneys’ fees.
  • Odis Jones, Hutto’s first Black city manager, left his position under a separation agreement that provided a year’s severance pay, health benefits, and mutual non-disparagement clauses. His departure followed mounting tension with two recently elected “anti-growth” councilmembers, Mike Snyder and Tanner Rose, whose opposition to his development-oriented agenda allegedly carried racial overtones. Although the City Council approved the agreement by a 5–1 vote, Snyder and Rose later publicly attacked it, and the council—relying on a legal opinion that the deal was defective—unanimously voted a year later to rescind it and demanded Jones repay his $412,000 severance. Jones sued, alleging racial discrimination under 42 U.S.C. § 1981 and breach of contract under Texas law. A jury awarded him $8 million and $4.5 million respectively, and the district court entered judgment in his favor.
  • On appeal, the Fifth Circuit held that Jones satisfied the structural requirements for municipal liability under § 1983—because the council’s rescission resolution was official policy adopted by the city’s policymaker—but failed to prove that racial animus motivated the council majority. Although Snyder and Rose’s conduct arguably reflected bias, there was no evidence that the remaining four councilmembers acted with discriminatory intent. The court rejected Jones’s alternative “cat’s-paw” theory—arguing that the biased members influenced the others—because that doctrine rests on agency principles incompatible with Monell’s bar on vicarious municipal liability. Lacking proof that racial motive was the “but-for” cause of the rescission, Jones’s § 1981 claim could not stand.
  • Turning to the contract dispute, the court upheld the district court’s ruling that the separation agreement was valid and enforceable. The City’s argument that the meeting notice violated the Texas Open Meetings Act failed because the agenda’s description—“personnel matters regarding city manager”—sufficiently informed the public of the topic. Its claim that the agreement violated a City-Charter spending provision was forfeited, and its invocation of governmental immunity failed because the Texas Local Government Code expressly waives immunity for breach-of-contract suits involving municipalities. The court thus agreed that Hutto breached the agreement when it purported to rescind it and demand repayment.
  • However, the Fifth Circuit agreed with the district court that Texas law bars recovery of consequential damages against municipalities, limiting Jones’s breach-of-contract recovery to attorney’s fees. The court found no evidence that the City as a body disparaged Jones—only that individual councilmembers did so in their personal capacities. Because Jones successfully defended his contractual right to retain the $412,000 payment, he “gained something” and remained eligible to recover reasonable attorney’s fees.

Unpublished decisions

• U.S. v. Macias-Aguilera, 25-10211, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Adebogun, 25-10427, appeal from N.D. Tex.
  • per curiam (Stewart, Haynes, Ho) (no argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Wilkins, 25-10516, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Monroy-Vega, 25-10608, appeal from N.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.

• U.S. v. Shike, 24-40471, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, search and seizure
  • Affirming conviction of conspiring to possess with intent to distribute a synthetic cannabinoid mixture and substance containing a detectable amount of FUB-AMB, a Schedule I controlled substance analogue, knowing that the substance was intended for human consumption, upholding denial of motion to suppress.

• Frederich v. Trisura Specialty Insurance Co., 24-40748, appeal from S.D. Tex.
  • per curiam (Dennis, Graves, Duncan) (oral argument withdrawn), insurance
  • Affirming summary judgment dismissal of claims that insurer violated Texas Insurance Code.

• Prime International Shipping, L.L.C. v. Occupational Safety & Health Review Commission, 25-60182, petition for review of OSHRC order
  • per curiam (Davis, Jones, Ho) (no oral argument), administrative law, occupational safety
  • Denying petition for review of OSHRC denial of request for discretionary review of ALJ’s sustaining of OSHA citation arising from death of worker.