Take the Fifth

Designated for publication

• Ford v. McKesson, 24-30494, appeal from M.D. La.
  • Jones, J. (King, Jones, Oldham) (oral argument), King, J., dissenting; personal torts, First Amendment
  • Reversing summary judgment dismissal of negligence claims against protest organizer by police officer who was injured while responding to the protest, and remanding for trial of claims.
  • Officer John Ford was struck in the head with a piece of concrete or rock while policing a Black Lives Matter protest in Baton Rouge on July 9, 2016, causing him to lose teeth, injure his jaw, suffer a concussion with lasting vision damage, and develop PTSD, ultimately forcing him to leave law enforcement. Ford alleges that DeRay McKesson, a prominent BLM figure, negligently organized and led the protest—including directing protesters onto a public highway—in a manner that foreseeably provoked a violent confrontation with police. The case has a lengthy procedural history involving two prior Fifth Circuit decisions, a U.S. Supreme Court decision, and certified questions answered by the Louisiana Supreme Court; the district court ultimately granted summary judgment for McKesson, finding insufficient evidence of McKesson’s leadership and concluding that the First Amendment barred the claim. The issues on appeal are (1) Whether Officer Ford presented sufficient evidence to create a genuine dispute of material fact on the elements of his Louisiana negligence claim—specifically duty, breach, cause-in-fact, and scope of duty; (2) whether the First Amendment shields McKesson from negligence liability for his conduct in leading the protest; and (3) whether the Supreme Court’s decision in Counterman v. Colorado implicitly overruled the Fifth Circuit’s prior holding that negligence liability does not offend the First Amendment.
  • The court found “ample evidence” to allow a jury to find that McKesson was a leader of the protest, including his own testimony about being “part of” a planning group, his amplification of the protest on social media, Officer Ford’s eyewitness observation of McKesson “leading the crowd” and “giving orders” to go onto the highway, McKesson’s position at the front of the crowd as police cut them off from I-12, and McKesson’s own class-action filings in which he claimed “leadership” over the protesters. The court stressed that the district court erred in discounting Officer Ford’s testimony as “self-serving,” noting that “‘self-serving affidavits and depositions may create fact issues even if not supported by the rest of the record.'”  
  • On breach and causation, the court held that a jury could find McKesson breached his duty by leading protesters onto a busy highway, making it “patently foreseeable” that a violent confrontation with police would result, and that “‘by leading the demonstrators onto the public highway and provoking a violent confrontation with the police, Mckesson’s negligent actions were the “but for” causes of Officer [Ford’s] injuries.'” As the majority put it: “Eight years of pretrial litigation are enough. It is time for Officer Ford to have a jury assess his claim.” 
  • On the First Amendment, the court held that its earlier precedent—that “imposing negligence liability on Mckesson does not offend the First Amendment”—remained binding under the rule of orderliness, and that Counterman v. Colorado did not “unequivocally” overturn that precedent because Counterman addressed only the elements of an unrelated criminal true-threats offense. The court noted that a protest leader who directs protesters to block a public road “‘intends to produce disorder'” within the meaning of Counterman itself.
  • Judge King dissented. She contended that the evidence showed at most that McKesson was “a well-known leader in a social movement” who attended the protest, not that he organized or directed it, and that the prior panel’s conclusions rested on allegations taken as true at the motion-to-dismiss stage, not on evidence. She found Officer Ford’s key testimony—that McKesson told people to go onto the highway—to be self-contradicted, as Ford earlier admitted he “did not personally hear [McKesson] giving any orders.”  
  • On the First Amendment, Judge King warned that the majority’s holding “greenlights a form of ‘heckler’s veto'” because “by hinging Mckesson’s liability on the ‘foreseeab[ility] that the Baton Rouge police would be required to respond to the demonstration,’ . . . the majority ‘allows law enforcement to dictate the extent of protesters’ liability exposure.'” She concluded: “Because ‘First Amendment freedoms need breathing space to survive,’ . . . and the majority suffocates them, I respectfully dissent.”

• United States v. Burger, 25-50976, c/w 25-51021, c/w 26-50011, appeal from W.D. Tex.
  • per curiam (Elrod, Smith, Wilson) (oral argument), criminal, First Amendment, pretrial detention, judge disqualification
  • Reversing the dismissal of the indictment of the defendant of three counts of transmitting threats in interstate commerce, and remanding for trial.
  • James Wesley Burger, an 18-year-old high school senior in Round Rock, Texas, was indicted on three counts of transmitting threats in interstate commerce under 18 U.S.C. § 875(c). The charges were based on statements Burger allegedly made in January 2025 on Roblox—a massive online gaming platform with 144 million daily active users—within an “experience” called “Church,” a virtual church environment where avatars engaged in debate, role-playing, and often extreme or offensive speech. Burger, using avatars named “Ghurabaah” and “crazz3pain,” made statements referencing guns, martyrdom, detonating munitions, and attacking “the followers of the Cross” at a Christian concert, with one statement identifying a specific date—”the 12 of Shawwal” (April 12, 2025)—and the government contending a Christian concert was scheduled for that date in Austin. Two separate Roblox users independently reported Burger’s statements to the FBI, each believing them to be genuine threats rather than trolling or role-playing. A search of Burger’s devices revealed disturbing internet searches, including “Lone wolf terrorists isis” and “Festivals happening near me.” The district court dismissed the indictment pretrial under Federal Rule of Criminal Procedure 12, concluding that no reasonable juror could find the statements were “true threats” because they were made in a “role-playing context.” The issues on appeal were (1) Whether the district court properly dismissed the indictment pretrial under Rule 12 by resolving disputed factual questions—specifically, whether Burger’s statements constituted unprotected “true threats” under the First Amendment; and (2) whether the government’s appeal of a pretrial release order was moot.
  • The court held that whether a statement is a “true threat” is “generally a question for the jury” and that the district court improperly resolved disputed factual issues at the pretrial stage. Under Rule 12, a court may dismiss an indictment pretrial only when the defense can be determined “without a trial on the merits”—meaning “trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.” The court emphasized: “There is no authority under Rule 12 . . . to dismiss on the basis of a sufficiency-of-the-evidence defense which raises factual questions embraced in the general issue.” 
  • The court found the district court had resolved contested factual issues on both the objective and subjective prongs of the true-threats test. Two Roblox users witnessed Burger’s statements, believed them to be genuine threats, and reported them to the FBI—evidence the court found relevant to whether “an objectively reasonable person would interpret the speech as a serious expression of an intent to cause a present or future harm.” The court noted that the correct characterization of the context—whether the Church experience was mere role-playing—was itself disputed and “would be materially incomplete without further evidence, particularly the testimony of the two tipsters.” The court also stressed: “[S]peaking on Roblox, or similar platform, does not categorically immunize someone from the criminal code.” 
  • On reassignment, the court declined the government’s request despite the district judge’s statement that “if I were on the jury, I would acquit him,” his characterization of any future trial as “impossible,” and testy exchanges with the prosecutor. The court acknowledged the judge “may have been able to make his points . . . without stating that he would acquit if he were on the jury,” but quoted Liteky v. United States in noting that “‘expressions of impatience, dissatisfaction, annoyance, and even anger’ are ‘within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display.'” The court took the district judge “at his word that he ‘will faithfully execute a trial and do the best that he can to try and protect the defendant’s constitutional rights and to make sure the government can put on a fair case.'”

Unpublished decision

• United States v. Kelvin Todd Lee, 25-11058, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Deray Eugene Morgan, 25-10770, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Noe Gonzalez-Martinez, 25-40174, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing, 404(b), prosecutorial misconduct. sufficiency of evidence, jury instructions
  • Affirming conviction and life sentence for conspiracy to possess with intent to distribute cocaine, conspiracy to commit murder for hire, attempted murder for hire, conspiracy to kidnap, possession of a firearm in furtherance of a drug trafficking crime or crime of violence, and interstate travel in aid of racketeering (attempted murder).
  • The court held that challenged testimony about prior drug dealing and cartel involvement was intrinsic to the charged conspiracy offenses and need not satisfy Rule 404(b). On the overt-act instruction, the court found no plain error because circuit law was unsettled on whether the murder-for-hire conspiracy statute requires proof of an overt act. The Government’s closing argument comment that a witness’s testimony was uncontroverted was permissible and could not “naturally and necessarily” be construed as a comment on the defendant’s decision not to testify. Viewing the evidence in the light most favorable to the Government, there was sufficient evidence of knowing participation in the drug conspiracy. Finally, the district court did not clearly err in denying a three-level reduction under U.S.S.G. § 2X1.1(b)(2) or in applying a two-level leadership/organizer enhancement under U.S.S.G. § 3B1.1(c).

• United States v. Calvin Easley, 25-10554, appeal from N.D. Tex.
  • per curiam (Elrod, Stewart, Higginson) (no oral argument), criminal, sentencing
  • Affirming sentence and revocation of supervised release.

• Daniels v. LAZ Parking, 25-50894, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), employment discrimination, Title VII
  • Reversing 12(b)(6) dismissal of plaintiff’s hostile work environment and retaliation claims, and remanding for further proceedings.
  • Frederick Daniels, proceeding pro se and in forma pauperis, alleged racial discrimination under Title VII of the Civil Rights Act of 1964 while working at LAZ Parking. The district court dismissed his suit without prejudice for insufficient pleading. On appeal, the Fifth Circuit reviewed de novo and held that Daniels’s filings—though “inartful”—adequately stated both a hostile work environment claim and a retaliation claim under Title VII.
  • As to hostile work environment, Daniels alleged membership in a protected group, that he was called a racial slur, that he reported the harassment to human resources, and that the hostile environment interfered with his work and culminated in his termination. As to retaliation, Daniels alleged that he reported harassment (a protected activity), was thereafter terminated, and that his report prompted the decision—sufficient at this early stage.

• Berrocal v. Valdespino et al., 25-50897, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), prisoner suit
  • Affirming dismissal of Texas state prisoner’s § 1983 claims.

• Apokalypto v. City of Hurst et al., 25-10929, appeal from N.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), § 1983
  • Affirming dismissal of pro se against the City of Hurst (with prejudice) and against the City of Carrollton and Maggie Rejino (without prejudice).

• Berrocal v. Bondi et al., 25-50617, appeal from W.D. Tex.
  • per curiam (Graves, Ho, Douglas) (no oral argument), foreclosure
  • Dismissing as frivolous appeal from dismissal of injunctive relief arising from attempted foreclosure.