Take the Fifth

Designated for publication

• Ramirez v. Granado, 24-10755, appeal from N.D. Tex.
  • per curiam (en banc; Elrod, Stewart, Southwick, Haynes, Graves, Higginson, Willett, Douglas, Ramirez, voting against en banc rehearing; Jones, Smith, Richman, Ho, Duncan, Engelhardt, Oldham, Wilson, voting for en banc rehearing) (oral argument at panel stage), Ho, J., dissenting from denial of en banc rehearing (joined by Jones, Smith); en banc, qualified immunity
  • Denying petition for en banc rehearing of December unpublished per curiam panel opinion (Dennis, Oldham, Douglas; Dennis, J., concurring; Oldham, J., dissenting), reversing summary judgment dismissal of plaintiff’s claims against officer defendants for the shooting death of her son, on qualified immunity grounds, and remanding for further proceedings.
  • Judge Ho dissented from the denial of en banc rehearing. “I voted for rehearing en banc because I’m troubled by the decision to put police officers on trial for using reasonable force in a good faith effort to keep innocent people safe. Instability remains the state of the law in our circuit when it comes to excessive force. … I fear that officers will choose to stand by and watch, rather than to protect and to serve, if the rules of engagement are unclear and unknowable.” (Internal quotation marks omitted).

• Roake v. Brumley, 24-30706, appeal from M.D. La.
  • en banc (Elrod, Jones, Smith, Stewart, Dennis, Richman, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas, Ramirez) (oral argument), Ho, J., concurring, Dennis, J., dissenting (joined by Graves, Higginson, Douglas, Ramirez), Haynes, J., dissenting, Higginson, J., dissenting (joined by Dennis, Graves, Douglas, Ramirez), Ramirez, J., dissenting (joined by Stewart, Dennis, Graves, Higginson, Douglas); en banc, First Amendment, Establishment Clause, Free Exercise Clause, ripeness, standing, sovereign immunity
  • Where June 20, 2025, panel opinion (Dennis, Haynes, Ramirez; Dennis, J., concurring) had affirmed the district court’s preliminary injunction of Louisiana’s 10-Commandments law, the “per curiam” en banc Court vacated the preliminary injunction, not on the merits of the law’s constitutionality or not, but on the basis that the challenge was not ripe and that there was no “case or controversy” where it was unclear in what way the law would be implemented.
  • Sitting en banc, the court vacated a preliminary injunction against Louisiana’s H.B. 71, which requires public schools to display the Ten Commandments, holding that the parents’ Establishment and Free Exercise Clause challenge is not yet ripe for judicial review. Emphasizing that Article III confines federal courts to resolving concrete “Cases” and “Controversies,” the court explained that constitutionality here turns on context—“how the text is used” and the circumstances of each display—yet key facts remain unknown, including the precise content, prominence, accompanying materials, and classroom use of the displays, all of which are largely left to local school-board discretion. Because Supreme Court precedent requires a fact-intensive, context-specific inquiry for religious-display claims, and because plaintiffs suffer no present concrete harm from the statute itself, adjudicating the law’s validity now would require speculation rather than judgment. Rejecting the argument that the statute is facially unconstitutional under any conceivable application, the court concluded that anticipatory review demands a real, substantial controversy grounded in an actual record; without that, the dispute is nonjusticiable at this stage, though future as-applied challenges may proceed once the law is implemented. Although this opinion was denominated as “per curiam,” it was not actually “for the court,” as it was accompanied by one separate concurrence and four dissents joined by seven of the eighteen judges who sat on the en banc panel (the 17 active Fifth Circuit judges, plus senior-status Judge Dennis, who had been on the original panel).
  • Judge Ho concurred in the vacatur of the district court’s preliminary injunction of H.B. 71. Judge Ho agreed with the result, but not the court’s rationale. Judge Ho would have disposed of the injunction on the merits, concluding the law is “constitutional and consistent with our Founding traditions” and that no further facts are needed to uphold it. He stressed that in a preliminary injunction appeal, a merits ruling can properly end the case when “it is plain that the plaintiff cannot prevail as a matter of law,” and he would so “terminate the litigation now” rather than rely on ripeness. Judge Ho rejected the notion that Stone v. Graham remains controlling after the Supreme Court’s rejection of Lemon, writing that Stone “turns entirely on Lemon” and thus is no longer good law. He also emphasized that passive classroom displays are not coercive—noting, as he put it, that such a display is “even less coercive than being forced to listen every morning to the monotheistic and anti-atheist Pledge of Allegiance.” On historical grounds, Judge Ho contended that the Founders presumed religion in education, citing early American practice and sources like the New England Primer to show the Ten Commandments’ place in the Nation’s heritage.
  • Judge Dennis dissented from the vacatur of the preliminary injunction (joined by Judges Stewart, Graves, Higginson, and Douglas), contending that H.B. 71’s own text makes this case “fit for judicial decision” because the statute unambiguously sets mandatory “when, where, [and] under what circumstances” Louisiana schools must display a Protestant version of the Ten Commandments—on an 11×14-inch poster with the commandments as the “central focus” and accompanied by a required “context statement”—meaning the court need not “wait and see” what future classroom displays look like before evaluating the plaintiffs’ First Amendment challenges. Judge Dennis reasoned that these “pure legal questions” of Establishment and Free Exercise Clause law do not require additional factual development and are ripe for review, rejecting the majority’s reliance on Van Orden and Staley to postpone adjudication.
  • Judge Haynes dissented from the vacatur of the preliminary injunction, specifically to join Judge Ramirez’s dissent (infra). “Simply stated, the Louisiana statute clearly requires the posting of the Ten Commandments, which is what the Plaintiffs are challenging, so there is nothing to wait on in that arena, as we explained in our panel opinion filed on June 20, 2025. I also concur with the last paragraph in Judge Ramirez’s dissent that the preliminary injunction was proper, and we should affirm the district court as we explained in our panel opinion. I respectfully note that we must follow what the Supreme Court requires; thus, my determination is not based on what I think of the Ten Commandments but following the Constitution as the Supreme Court has explained.”
  • Judge Higginson dissented from the vacatur of the preliminary injunction (joined by Judges Dennis, Graves, Douglas, and Ramirez), sharply critiquing the majority’s refusal to reach the merits of the plaintiffs’ First Amendment challenge to Louisiana’s Ten Commandments law, contending the case is ripe and should be decided now rather than postponed. He emphasized that H.B. 71 “mandates detailed minimum requirements for ‘when, where, [and] under what circumstances’ the Ten Commandments shall be displayed,” and that because the statute compels a state-selected Protestant version to be posted permanently in every public-school classroom with specified size and prominence, there is no need to “wait and see” how local boards implement it. Judge Higginson stressed that this mandate forces a religious text on children, confronting them “every day” in a uniquely coercive classroom context that courts have long treated with heightened concern, and he warned that the majority’s approach “displaces parents and churches as belief-givers” and risks pitting faiths against one another in violation of core First Amendment safeguards.
  • Judge Ramirez dissented from the vacatur of the preliminary injunction (joined by Judges Stewart, Dennis, Graves, Higginson, and Douglas). She explained that Louisiana’s H.B. 71 “mandates detailed minimum requirements for ‘when, where, [and] under what circumstances’ the Ten Commandments shall be displayed in every Louisiana public-school classroom,” and that this statutory specificity means the court does not need to “wait and see” how displays may evolve before evaluating the First Amendment challenge. Because the statute imposes uniform, compulsory requirements—including precise text, display size, context statement, and location—Plaintiffs’ facial challenge presents “pure legal questions” that are fit for review without further factual development.
  • On the Establishment Clause claim, Judge Ramirez stressed that the Supreme Court has long treated public-school religious displays as especially sensitive, given students’ impressionability and compulsory attendance. Relying on Van Orden v. Perry and Stone v. Graham, she noted that a mandated classroom display of the Ten Commandments confronts students “every day” and cannot be analogized to passive displays in other contexts; thus the required context exists now and need not await implementation. She made clear that H.B. 71’s minimum requirements provide all the necessary content and structural detail for a constitutional assessment, because the statute requires “a state-selected Protestant version” to be displayed, printed large, and centrally positioned, along with a historical context statement, with no obligation to post anything else.
  • Judge Ramirez also addressed the Free Exercise Clause, drawing from recent Supreme Court guidance that pre-enforcement challenges can be justiciable when a statute’s application is certain and burdens on religious exercise are sufficiently defined. She analogized H.B. 71 to the Mahmoud v. Taylor context, where courts did not require waiting to see how a policy was used because the instructions and likely application were clear enough to assess harm. In her view, the law’s explicit and compulsory nature means the court can and should adjudicate Plaintiffs’ claims now, rather than postpone review until after implementation.

Unpublished decisions

• Risby v. Ciolli, 25-10934, appeal from N.D. Tex.
  • per curiam (Jones, Richman, Haynes) (no oral argument), habeas corpus
  • Dismissing as frivolous appeal from dismissal of sec. 60(b) “fraud-based” claims as a procedurally improper habeas petition.

• Loeb-Defever v. Mako, L.L.C., 24-20410, appeal from S.D. Tex.
  • per curiam (Southwick, Oldham, Ramirez) (oral argument), copyright, breach of contract, attorneys’ fees
  • Vacating award of attorneys’ fees to defendants on suit for breach of contract and violation of the Digital Millennium Copyright Act.

• Proffitt v. GRMI, Inc., 25-30382, appeal from W.D. La.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), personal tort
  • Affirming summary judgment for restaurant defendant on patron’s trip-and-fall personal injury claim.

• Harvey v. Montiel, 25-40127, appeal from S.D. Tex.
  • Engelhardt, J. (Wiener, Engelhardt, Oldham) (no oral argument), sec. 1983, municipal liability
  • On claims that officers used excessive force and entered plaintiff’s home without probably cause, reversing the district court’s dismissal of plaintiff’s Fourth Amendment unlawful arrest claim against the defendant-officers and affirming the district court’s dismissal of the remaining claims, including a municipal liability claim.

• U.S. v. Harris, 25-50266, appeal from W.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), criminal, sentencing
  • Affirming 36-month sentence on conviction of escape from federal custody.