Take the Fifth

Designated for publication

• United States v. Williamson, 25-10565, appeal from N.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), Willett, J., concurring (joined by Wilson, J.); criminal, Second Amendment, Commerce Clause
  • Affirming conviction of possession of a firearm by a felon
  • Jaterron Williamson was convicted of possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). He had three prior felony convictions for “Deadly Conduct – Discharge Firearm at Individual.” On appeal, he raised two constitutional challenges: (1) that § 922(g)(1) violates the Second Amendment as applied to him because his prior felonies are not analogous to colonial-era offenses punishable by execution or estate forfeiture, relying on New York State Rifle & Pistol Ass’n v. Bruen and United States v. Diaz; and (2) that the statute exceeds Congress’s Commerce Clause authority.
  • The court held that Williamson’s as-applied Second Amendment challenge was foreclosed by United States v. Reyes, 141 F.4th 682 (5th Cir. 2025), which rejected an analogous challenge based in part on a deadly-conduct conviction. The panel emphasized the rule of orderliness: “one panel of this court ‘may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or [the] en banc court'”. Williamson also correctly conceded that his Commerce Clause challenge was foreclosed by United States v. Alcantar.
  • Judge Willett (joined by Judge Wilson) joined the per curiam but wrote separately to express continuing doubt about the circuit’s precedent on both fronts. On the Commerce Clause, he questioned whether “mere possession of a firearm” falls within any of the “three general categories of regulation” recognized under the Supreme Court’s expansive Commerce Clause jurisprudence, warning that if “mere possession sufficed, the Commerce Clause would quietly—but completely—confer the very general police power the Constitution withholds from Congress.” He invoked the ratification debates, asking: “How could the Federalists have assured skeptics that Congress lacked power to infringe individual rights . . . if the mere exercise of that right were itself enough to trigger federal power?” On the Second Amendment, Judge Willett noted tension in the circuit’s as-applied case law, observing that some cases follow Diaz‘s common-law-analogue test while others, including Reyes, apply “a more generalized dangerousness inquiry,” and urged that “our full court—or the Supreme Court—should supply the clarity this unsettled corner of Second Amendment law now lacks”.

• Hardwick v. FAA, 25-60188, petition for review from National Transportation Safety Board
  • Higginbotham, J. (Elrod, Higginbotham, Graves) (oral argument), administrative law
  • Denying petition for review of NTSB order of 150-day suspension of pilot’s license.
  • Professional pilot Glen Hardwick twice flew a Cessna Citation 550 whose physical tail number (N550ME, applied with tape) did not match its current FAA registration (N550MK). The discrepancy arose when the aircraft’s owner, Michael King, applied to change the tail number from N550ME to N550MK, received new registration documents, but was denied a new airworthiness certificate because the plane needed additional inspections. Believing the denied certificate nullified the new registration, King had the tail number taped back to N550ME. Hardwick noticed the taped tail number during preflight but accepted King’s explanation and flew from Pearland, Texas, to Wichita, Kansas. In Wichita, two FAA inspectors issued Hardwick a condition notice for displaying the wrong tail number and flying without a valid airworthiness certificate, warning that a Special Flight Permit was required before further operation. Despite this, Hardwick flew back to Pearland the same day without the permit. The FAA suspended his license for 150 days. The NTSB affirmed.
  • The court held that Hardwick’s reliance on King’s explanation was unreasonable under the NTSB’s narrow reasonable-reliance doctrine. As the sole pilot-in-command, Hardwick was “ultimately responsible for safe operation of the flight, which involves ensuring the aircraft is in an airworthy condition.” The court emphasized that Hardwick “ignored numerous red flags,” including King’s warning of “paperwork issues,” a visibly taped-on tail number, unread onboard documents that would have revealed the registration change, and—most critically—the FAA condition notice that he “admits he received but did not read” before flying back to Texas. The court concluded: “Hardwick claims he reasonably relied on wrong information—yet he ignored or outright evaded numerous chances to learn the real facts, flouting his responsibility to be informed as the pilot-in-charge.”
  • On the argument that the violations were merely administrative and not safety-related, the court acknowledged “there is a distinction between an ineffective airworthiness certificate and an aircraft that is unairworthy due to its physical condition,” but held that an aircraft can lose airworthy status for either safety or administrative reasons and that declining to mitigate the penalty on that basis was not arbitrary or capricious. On disparate treatment relative to another pilot (Scott Breeze) who flew the same aircraft but was not sanctioned, the court noted the FAA later admitted the Breeze incident was a mistake and determined the plane was properly registered when Breeze flew it—meaning Breeze flew with the correct tail number (N550MK) while Hardwick flew with the wrong one (N550ME).

Unpublished decisions

• United States v. Cantarero-Mendez, 25-20278, appeal from S.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Cerrillo, 25-10829, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sentencing
  • Affirming 120-month sentence on conviction of possession of a firearm by a felon.

• United States v. Toledo-Gomez, 25-20247, appeal from S.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• Taylor v. Morel, 25-30465, appeal from E.D. La.
  • per curiam (Richman, Southwick, Willett) (no oral argument), § 1983
  • Affirming dismissal of § 1983 complaint as frivolous and time-barred, and denial of Rule 59(e) motion to alter or amend.

• Molosso v. Board of Supervisors University of Louisiana System, 25-30362, appeal from W.D. La.
  • per curiam (King, Southwick, Haynes) (no oral argument), disability discrimination, summary judgment
  • Affirming summary judgment dismissal of failure-to-accommodate claim.
  • Plaintiff-Appellant Jennifer Molosso, a nursing student at the University of Louisiana at Monroe who allegedly suffered from ADHD and depression, sued the university, its provost, and a dean under the Rehabilitation Act for failure to accommodate her disability after she was dismissed from the nursing program. The district court granted summary judgment for the defendants and denied Molosso’s Rule 56(d) motion to defer consideration of summary judgment pending further discovery.
  • On the failure-to-accommodate claim, the Fifth Circuit held that Molosso’s disability and resulting limitations were not “open and obvious,” explaining that verbal disclosure of a mental health condition like ADHD to a professor does not satisfy the narrow open-and-obvious exception, and that academic struggles such as freezing during an exam could stem from causes other than a disability. The court further held that Molosso did not properly request an accommodation from the university’s Counseling Center—the centralized office for such requests—despite the fact that the course syllabus directed students there, and multiple faculty members recommended she go.
  • On the Rule 56(d) motion, the court found no abuse of discretion, concluding that Molosso’s counsel failed to diligently pursue discovery, having received multiple extensions yet taking no action for over two months after receiving a supplemental document production and only seeking relief on the eve of the opposition deadline.

• Landry v. Singley, 25-30416, appeal from W.D. La.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), § 1983
  • Affirming dismissal of § 1983 claim as Heck-barred, untimely, and frivolous.

• Murphy v. Beaumont Independent School District, 24-40704, appeal from E.D. Tex.
  • per curiam (Graves, Duncan; determined by quorum upon Judge Dennis taking inactive senior status) (oral argument), § 1983, due process, First Amendment, qualified immunity, municipal liability
  • Affirming in part and vacating in part summary judgment dismissal of claims by carpenter employed by school district against the district and against the superintendent, and remanding for further proceedings.
  • Plaintiff-Appellant Greg Murphy, a carpenter employed by Beaumont Independent School District (BISD), sued under 42 U.S.C. § 1983 after being denied premium pay during the COVID-19 pandemic, receiving a misconduct notice, being arrested for an alleged bomb threat, and being terminated. He asserted claims for (1) substantive due process, (2) procedural due process, (3) First Amendment retaliation, and (4) Fourth Amendment malicious prosecution. The district court granted summary judgment to BISD and Superintendent Shannon Allen on all claims.
  • The Fifth Circuit disagreed with the district court’s finding that Murphy lacked a protected property interest. BISD’s own Premium Pay During Disasters policy used mandatory language (“shall be paid”) for nonexempt employees required to work during an emergency closure, and the record showed BISD had in fact paid numerous other employees premium pay during the COVID-19 closure. The court found that BISD’s post-hoc characterization of the pandemic period as mere “modified operations” rather than an “emergency closure” was undermined by the policy’s own terms and BISD’s own conduct. Murphy raised genuine issues of material fact as to his entitlement.
  • The court agreed that Murphy failed to establish municipal liability under Monell because he could not show that BISD’s actions were substantially motivated by his protected conduct; the record contained witness statements and legitimate reasons supporting the misconduct notice, arrest, and termination. The criminal charges against Murphy were dismissed for insufficient evidence to prove the case beyond a reasonable doubt, not for lack of probable cause. The court also found no abuse of discretion in the district court’s partial striking of an officer’s declaration.
  • While the court found evidence of a constitutional violation on the due process claims, Murphy failed to show the right was “clearly established” such that Allen (the superintendent) would have known her conduct violated it, particularly during the confusion of the COVID-19 pandemic; Board of Regents v. Roth was not sufficiently on point. Accordingly, the Court affirmed the qualified immunity dismissal of the claim against Allen.