Take the Fifth

Designated for publication

• Kennedy v. City of Arlington, 25-10259, appeal from N.D. Tex.
  • Duncan, J. (Haynes, Duncan, Ramirez) (oral argument), sec. 1983
  • Affirming dismissal of claims of family of man who died during self-defense exercise in police cadet training.
  • The court affirmed the district court’s dismissal of all § 1983 claims brought by Brittney Kennedy on behalf of her late husband, Marquis Kennedy, who suffered cardiac arrest during a mandatory police academy self-defense training exercise and later died. Kennedy alleged that the City of Arlington and several officers violated Marquis’s Fourth and Fourteenth Amendment rights by subjecting him to excessive force, improperly seizing him, and acting with deliberate indifference to his serious medical needs. The Fifth Circuit held that the complaint failed to plausibly allege a constitutional seizure because the training exercise was voluntary and instructional in nature, not a willful restraint of liberty. The court also rejected the claim that there is a freestanding Fourth Amendment right “to be free from excessive force” outside the seizure context. Additionally, the court found that, as a government employee voluntarily participating in workplace training, Marquis did not have a constitutional due process right to a safe training environment or medical care absent a custodial relationship.
  • Because there was no plausible constitutional violation, the Fifth Circuit further held that derivative claims for bystander liability and municipal liability against the City also could not stand. The court explained that without an underlying constitutional injury, neither the observing officers who failed to intervene nor the City for its training practices could be held liable under § 1983. Accordingly, qualified immunity shielded the individual defendants, and the dismissal of all claims was affirmed.

Unpublished decisions

• U.S. v. Gonzalez, 25-10437, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Ford, 25-10514, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Wilson) (no oral argument), criminal, search and seizure
  • Affirming conviction of possession of a machine gun, upholding denial of motion to suppress.

• U.S. v. Goines, 25-10569, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, sentencing
  • Affirming 78-month sentence on conviction of possession of a firearm by a felon.

• U.S. v. Ambriz, 25-10675, 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. Sanchez-Facundo, 25-10737, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming 70-month sentence and conviction of illegal reentry.

• U.S. v. Clark, 25-10801, appeal from N.D. Tex.
  • per curiam (Elrod, Higginson, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Snider, 25-10848, 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. Narvaez, 25-20039, appeal from S.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, compassionate release
  • Limited remand for district court to explain its reasons for denying motion for compassionate release.

• Apex Hospitality Group, LLC v. Independent Specialty Insurance Co., 25-30107, appeal from E.D. La.
  • per curiam (Haynes, Duncan, Ramirez) (oral argument withdrawn); insurance, arbitration
  • Affirming denial of insurer’s motion to compel arbitration.

• Elizondo v. Hinote, 25-40007, appeal from S.D. Tex.
  • per curiam (Southwick, Willett, Ho) (oral argument withdrawn); qualified immunity
  • Affirming summary judgment dismissal on basis of qualified immunity for claims brought by parents of man fatally shot by defendant officer.

• U.S. v. Montemayor, 25-40084, appeal from S.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming sentences on numerous drug, firearm, carjacking, and robbery convictions.

• U.S. v. Cortez-Rogel, 25-40288, appeal from S.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Abajian-Salon v. City of San Antonio, 25-50010, appeal from W.D. Tex.
  • per curiam (Haynes, Duncan, Ramirez) (oral argument), employment discrimination, Title VII
  • Affirming summary judgment for City defendant on employment discrimination claims arising from termination of defendant police officer after determination that she had violated department policy in incident involving noise complaint about construction crew in her neighborhood.

• U.S. v. Reyes, 25-50020, appeal from W.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Pettit, 24-50250, appeal from W.D. Tex.
  • per curiam (Elrod, Richman, Willett) (oral argument), criminal, sentencing, guilty plea
  • Vacating guilty plea and resulting 540-month sentence on charges of wire fraud and money laundering, and remanding for further proceedings.
  • The Fifth Circuit held that the district court plainly erred under Federal Rule of Criminal Procedure 11(b)(1)(H) by misinforming Pettit at his change-of-plea hearing about the maximum penalty he faced. Pettit had pleaded guilty to three wire-fraud and three money-laundering counts, which together exposed him to up to 90 years’ imprisonment if run consecutively, but the court’s colloquy incorrectly left the impression that the maximum was only 30 years. The appellate court held that this was a clear Rule 11 violation affecting Pettit’s substantial rights and, in the interest of the fairness and integrity of plea proceedings, vacated the plea and remanded for further proceedings.

• Mirelez v. Llano County, 25-50356, appeal from W.D. Tex.
  • per curiam (Elrod, Jones, Higginson) (no oral argument), prisoner suit, appellate jurisdiction
  • Dismissing for lack of jurisdiction, due to untimely notice of appeal, appeal from dismissal of Texas state prisoner’s sec. 1983 claims.

• U.S. v. Duran-Carbajal, 25-50447, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.