Take the Fifth

Designated for publication

• United States v. Arrieta, 25-50510, appeal from W.D. Tex.
  • Willett, J. (Smith, Willett, Ramirez) (oral argument), criminal, sentencing
  • Affirming sentence on “mutiny” conviction for immigration detainee.
  • Six detainees at an ICE facility in El Paso knotted bed sheets, towels, and shirts into a makeshift rope and climbed onto an unrailed canopy roof approximately two stories high. For more than three and a half hours they refused commands to descend, demanded release and media attention, and threatened to jump if officers approached. The facility summoned a Crisis Negotiation Team and a Special Response Team, which ended the standoff with sublethal munitions. The facility was locked down for six hours, canceling activities, turning away visitors and counsel, and suspending regular dining. Defendant Arrieta pleaded guilty to mutiny under 18 U.S.C. § 1792.
  • At issue on appeal was whether the district court clearly erred in finding that Arrieta’s offense “involved a major disruption to the operation of an institution” under U.S.S.G. § 2P1.3(a)(2), warranting a base offense level of 16 rather than the residual level of 10.
  • The court first rejected the Government’s waiver and invited-error arguments, holding that Arrieta preserved his objection by seeking level 10 in his written objection and naming level 16 only as a fallback. The court then interpreted “major disruption” using ordinary meaning: “major” means “important, serious, or significant,” and “disruption” means “a disturbance or problems that interrupt an event, activity, or process.”
  • The court rejected Arrieta’s characterization of the rooftop standoff as a mere “sit-in” or “administrative disruption,” reasoning that the middle tier of § 2P1.3 turns on “the disruption’s operational magnitude—not on whether the conduct can be labeled ‘violent’ or ‘run-of-the-mill.'” The court observed: “Whatever a ‘plain vanilla run-of-the-mill mutiny’ looks like, this was not it.”
  • A three-and-a-half-hour rooftop standoff that required two specialized units and sublethal munitions—and then shut down the facility for six hours—”sits comfortably within § 2P1.3(a)(2)’s ordinary meaning of a ‘major disruption.'” Reading requirements of violence or takeover into the middle tier would “collapse it into the top one.”

• Tuttle v. Gallegos, 25-20132, appeal from S.D. Tex.
  • Clement, J. (Jones, Clement, Richman) (oral argument), qualified immunity
  • Reversing denial of qualified immunity dismissal of charged arising from fatal shooting by police of two residents of home during gunfight.
  • On January 28, 2019, Houston Police Department Squad 15 officers executed a no-knock search warrant at 7815 Harding Street based on a fraudulently obtained warrant—Officer Gerald Goines had fabricated the affidavit supporting it. During the raid, a chaotic gunfight erupted; multiple officers were shot. Officer Felipe Gallegos fatally shot both residents—Dennis Tuttle and Rhogena Nicholas—over the course of approximately eighty seconds. The estates sued under 42 U.S.C. § 1983 for excessive force; the district court denied Gallegos’s qualified immunity motion, finding genuine disputes of material fact.
  • At issue on appeal were (1) whether the court had jurisdiction to review the video evidence and fact disputes under the collateral-order doctrine and Scott v. Harris; (2) whether body-worn camera video and Gallegos’s inconsistent statements created genuine fact disputes about Medina’s location when Nicholas was shot; (3) whether Gallegos’s shooting of Nicholas violated the Fourth Amendment; and (4) whether Gallegos’s final shots at Tuttle were objectively unreasonable.
  • As to resident Nicholas, the court found that Plaintiffs’ version—that Medina was outside the house when Gallegos shot Nicholas—was “blatantly contradicted by the record” under Scott v. Harris, because neither the BWC video nor the expert testimony supported the claim, and Plaintiffs’ own reconstructionist expert concluded Medina was inside. Even construing the remaining disputes in Plaintiffs’ favor—assuming Nicholas was not standing over Medina reaching for his gun—an objectively reasonable officer would have perceived Nicholas as a threat given the “tense, uncertain, and rapidly evolving” context of an active gunfight where multiple officers had been shot, Nicholas’s proximity to Medina’s weapon, and her movement off the couch after officers announced their presence.
  • As to resident Tuttle, even accepting Plaintiffs’ theory that Tuttle’s arms were incapacitated by seven prior gunshot wounds, the court held there was “no evidence that Gallegos would have known that fact” because Tuttle’s back was to the door and a reasonable officer could not have perceived that Tuttle was no longer dangerous. Tuttle continued moving after being shot and never indicated surrender; meanwhile, Gallegos had observed four officers shot in rapid succession. The court stated: “The Fourth Amendment’s excessive force jurisprudence does not require police officers to diagnose a suspect’s medical condition during an active gunfight in which officers had been shot.”
  • The court concluded with a broader observation: “The safety and comfort of our chambers invite a temptation to second-guess police officers and to reimagine, with the benefit of hindsight, how an officer should have responded here. We resist that temptation, as we must not ‘allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day.'” The panel also noted that the Supreme Court’s decision in Barnes v. Felix (2025) eliminated the former “moment-of-threat” doctrine, requiring courts to consider all facts and events leading up to the use of deadly force.

Unpublished decisions

• Morgan v. Chapman, 25-40357, appeal from S.D. Tex.
  • Douglas, J. (Willett, Wilson, Douglas) (oral argument), qualified immunity, summary judgment
  • Affirming in part and reversing in part grant of qualified immunity summary judgment to officials arising from a search of defendant physician’s clinics.
  • At issue on appeal was whether the district court abused its discretion in adopting a magistrate judge’s memorandum and recommendation (“M&R”) granting summary judgment based on qualified immunity, without allowing the plaintiff to file a belated response to summary judgment motions; and whether defendants—a Texas Medical Board investigator and a Texas Department of Public Safety officer—were entitled to qualified immunity on Fourth Amendment unreasonable search/seizure claims and a Fourteenth Amendment due process claim arising from a 2013 search of a physician’s clinics using instanter subpoenas and the physician’s resulting criminal prosecution.
  • Dr. Courtney Morgan, a physician in Victoria, Texas, sued Mary Chapman (TMB investigator) and John Kopacz (DPS agent) after they searched his clinics in 2013 using administrative instanter subpoenas, which led to his criminal indictment for operating an unregistered pain management clinic. The criminal charges were later dismissed, though the TMB did file a separate administrative proceeding. This appeal followed a prior Fifth Circuit decision (Morgan v. Chapman, 969 F.3d 238 (5th Cir. 2020)) that remanded for amendment of the complaint to add search, seizure, and due process claims.
  • Morgan never responded to the defendants’ motions for summary judgment for over a year, citing a belief that deadlines had been placed “in abeyance” and a family health crisis. The magistrate judge issued an M&R granting summary judgment, then denied Morgan’s belated motion for leave to respond. The court found that Morgan waived any challenge to the denial by failing to object under Rule 72(a), and that the district court did not abuse its discretion in declining to accept new evidence under the Performance Autoplex factors.
  • As to summary judgment on the unreasonable seizure claim against Kopacz, the court affirmed, finding Morgan failed to identify a genuine dispute regarding false statements.
  • As to summary judgment on the due process claim against Chapman, the court affirmed, finding Morgan failed to rebut Chapman’s explanation of how the TMB report was prepared.
  • The court affirmed summary judgment on the unreasonable search claim against Chapman, finding Chapman had reason to believe Morgan was operating an unregistered pain management clinic, entitling her to qualified immunity under Cotropia v. Chapman.
  • However, the court reversed and remanded on the unreasonable search claim against Kopacz, holding that the district court improperly construed the record in Kopacz’s favor. The evidence—including Kopacz’s pre-existing criminal investigation, his coordination with Chapman before the search, Chapman’s invitation for Kopacz to attend, and Kopacz’s later use of the TMB file to bring criminal charges—created a genuine factual dispute as to whether the administrative search was pretextual, which defeats qualified immunity because it was clearly established that “even under a valid inspection regime, the administrative search cannot be pretextual.”

• Vasquez Bonilla v. Blanche, 25-60652, petition for review of BIA order
• per curiam (Davis, Wilson, Douglas) (no oral argument), immigration
  • Dismissing in part and denying in part Salvadoran citizen’s petition for review of BIA order denying petitioner’s motion to reopen removal proceedings, including claims of lack of notice of the hearing at which she was ordered removed in absentia and changed country conditions in El Salvador
  • The court found that Vasquez Bonilla waived her argument regarding the number-barred notice claim by failing to brief it. On changed country conditions, she failed to make a meaningful comparison between El Salvador’s earlier and recent conditions as required. The court lacked jurisdiction to review the BIA’s denial of sua sponte reopening, citing the entirely discretionary nature of that authority.

• United States v. Lanza-Rios, 25-50918, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming sentencing enhancement in 8 U.S.C. § 1326(b) for illegal reentry, finding that Almendarez-Torres v. United States, 523 U.S. 224 (1998), which permits judges to find the fact of a prior conviction to enhance a sentence, remains binding precedent.