Take the Fifth

Designated for publication

• Police Jury of Calcasieu Parish v. Indian Harbor Insurance Co., 24-30696, appeal from W.D. La.
  • Higginson, J. (Southwick, Higginson, Wilson) (oral argument), insurance, jurisdiction
  • Remanding appeal from denial of motion to compel arbitration to district court to consider motions pending in case in light of holding that court lacks subject-matter jurisdiction due to inapplicability of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards to suit against domestic insurers.
  • In this insurance coverage dispute arising from claims the Calcasieu Parish Police Jury filed after Hurricanes Laura and Delta, the Parish purchased a surplus-line policy from multiple domestic and foreign insurers. Although the insurers signed a single policy, the contract contained an endorsement specifying that each underwriter’s obligations were separate contracts. After the Parish dismissed the foreign insurers from state-court litigation, the remaining domestic insurers removed the case to federal court and repeatedly sought to compel arbitration under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the Convention”). The insurers argued that the Convention provided the federal district court with subject-matter jurisdiction and required arbitration, either because the foreign insurers remained parties or through equitable estoppel.
  • The Fifth Circuit, relying on its recent decision in Town of Vinton v. Indian Harbor Insurance Co., concluded that no foreign party remained in any arbitration agreement and that Louisiana law—as interpreted by the Louisiana Supreme Court on a certified question in Vinton—precludes using equitable estoppel to bind nonsignatories to arbitration. Because the Convention’s applicability was the sole basis claimed for federal subject-matter jurisdiction and it did not apply here, the court held it lacked subject-matter jurisdiction. The panel remanded the case to the district court to address pending motions consistent with Vinton and denied as moot motions for summary reversal and a stay.

• U.S. v. Hembree, 24-60436, appeal from S.D. Miss.
  • Higginson, J. (Higginson, Willett, Engelhardt) (oral argument), Willett, J., concurring; criminal, Second Amendment
  • Reversing conviction of possession of a firearm by a felon, on basis that conviction was a violation as applied of the Second Amendment.
  • Here’s a three-paragraph summary of Judge Higginson’s majority opinion in United States v. Hembree, No. 24-60436 (5th Cir. Jan. 27, 2026) — covering pages 1–16 of the published opinion at the link you provided:
  • Charles Hembree had been convicted in Mississippi in 2018 of simple possession of methamphetamine; he pleaded guilty to a subsequent § 922(g)(1) charge for possession of a firearm by a felon, while reserving the right to appeal the denial of his pre-trial motion to dismiss under New York State Rifle & Pistol Association v. Bruen and subsequent Fifth Circuit precedent. The panel reviews his preserved as-applied Second Amendment challenge de novo, situating the case within the evolving post-Bruen caselaw on felon disarmament and the analytical framework that requires assessing whether a firearm regulation aligns with the nation’s historical tradition of firearm regulation.
  • Judge Higginson explains that the Fifth Circuit’s recent decisions, particularly U.S. v. Diaz, require the government to bear the “heavy burden” of showing that disarming a specific class of persons — here, someone whose only predicate felony is simple drug possession — is “relevantly similar” to historic regulations that disarmed dangerous individuals. The opinion carefully reviews the historical analogues offered by the government: laws imposing severe punishments for knowing possession of contraband and historic disarmament of dangerous people. The court finds those analogues insufficient because the Founding-era legal tradition did not criminalize mere possession of intoxicating substances, and the government’s reliance on analogies to theft or fraud crimes (e.g., stolen goods or counterfeiting) does not match Hembree’s felony. Further, the government’s argument that drug possession is inherently dangerous and thus justifies disarmament fails because the record does not demonstrate that simple possession reflects the dangerousness required by tradition.
  • Having concluded that the government did not meet its historical burden, the majority holds that § 922(g)(1) as applied to Hembree violates the Second Amendment. The opinion therefore reverses his conviction, without addressing additional constitutional or statutory challenges raised on appeal. The decision underscores the Fifth Circuit’s iterative approach to Bruen framework analysis and its insistence on precise historical analogies tailored to the specific predicate offense at issue when evaluating felon-in-possession restrictions under the Second Amendment.
  • Judge Willett concurred, placing the court’s as-applied Second Amendment ruling in a broader constitutional and historical context, emphasizing the Framers’ deliberate design of overlapping safeguards—including representative government, separation of powers, federalism, and the Bill of Rights—to protect liberty. He traced the adoption of the Bill of Rights to concerns about federal overreach, noting that even with an expansive Commerce Clause, laws like the federal felon-in-possession ban (§ 922(g)(1)) sit uneasily within Congress’s enumerated powers. Against that backdrop, Judge Willett agreed with the majority that disarming Hembree, whose predicate conviction was for simple possession of methamphetamine, is inconsistent with the Second Amendment, illustrating how the Bill of Rights operates as “suspenders” when other constitutional “belts” may slip. He reiterated respect for structural limits on federal power and signaled openness to future reconsideration of § 922(g)(1)’s foundations, while joining the court’s conclusion that the statute, as applied, violates the right to keep and bear arms.

Unpublished decisions

• U.S. v. Martinez, 25-10557, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Ramirez, 25-10771, 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. Fields, 25-10806, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Jackson, 25-10881, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Affirming conviction of possession of a firearm by a felon.

• U.S. v. Perez, 25-10896, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, sentence reduction
  • Affirming denial of motion for sentence reduction.

• U.S. v. Molina-Moncivais, 25-10937, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.

• Powells v. 1600 West Loop South, L.L.C., 25-20026, appeal from S.D. Tex.
  • per curiam (Richman, Higginson, Oldham) (no oral argument), § 1981
  • Affirming summary judgment dismissal of § 1981 claims or racial discrimination arising from plaintiff being asked to remove baseball cap by employees of defendant.

• Eurings v. Tucker, 25-30384, appeal from E.D. La.
  • per curiam (King, Haynes, Ho) (no oral argument), § 1983, timeliness, service of process
  • Affirming dismissal of § 1983 claims against officer defendant for failure to timely serve, and reversing dismissal of claims against pharmacist defendant who had been served and as to whom the district court had dismissed because the plaintiff did not satisfactorily respond to show cause order that the plaintiff obtain responsive pleadings from the defendant. “[I]t is not the job of the plaintiff to obtain a responsive pleading, despite this being a not-uncommon order for the Eastern District of Louisiana to give.”

• U.S. v. Huerta-Garcia, 25-40352, appeal from S.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Davidson, 25-50326, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming 48-month sentence on conviction of escape from custody.

• Moreno v. Bondi, 25-60219, petition for review of BIA order
  • per curiam (Barksdale, Graves, Duncan) (no oral argument), immigration
  • Denying Honduran citizens’ petition for review of BIA order affirming an Immigration Judge’s (IJ) denying their application for asylum, withholding of removal, and relief under the Convention Against Torture.

• U.S. v. Hampton, 25-60338, appeal from S.D. Miss.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), criminal, sentencing
  • Dismissing appeal from sentence on basis of appeal-waiver in plea agreement.