July 30, 2026, opinions

Posted on by tadbartlett

Designated for publication

  • Ford v. Mckesson, 24-30494, appeal from M.D. La.
    • per curiam (en banc; voting against en banc rehearing: Elrod, Jones, Smith, Richman, Southwick, Haynes, Ho, Duncan, Oldham, Wilson; voting for en banc rehearing: Stewart, Graves, Higginson, Willett, Douglas, Ramirez; Englehardt, J., not participating), Ho, J., concurring in denial, Willett, J., dissenting from denial (joined by Stewart, Graves, Higginson, Douglas, Ramirez) (oral argument at panel stage); personal torts, First Amendment, en banc
    • Denying en banc rehearing of March 19, 2026, panel opinion (King, Jones, Oldham; King, J., dissenting) that reversed 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.
    • Baton Rouge Police Officer John Ford was grievously injured when an unidentified person hurled a rock or piece of concrete into his face during a July 2016 political protest. The assailant was never identified, nor was the assailant’s affiliation, motive, or connection to defendant DeRay Mckesson ever established. Mckesson, a nationally prominent activist, was invited by local community organizers to attend the protest; he arrived the day before, retweeted details about the event, walked with the crowd, and filmed the demonstration until his own arrest. Discovery revealed no evidence that Mckesson planned the protest, controlled its participants, or had any relationship with the person who struck Ford.
    • At issue in the appeal was whether the First Amendment permits a “negligent protest” theory of civil liability—i.e., holding a protest organizer or prominent activist liable for an unidentified stranger’s violence based solely on the foreseeability that disorder might follow. The case implicates the standards of NAACP v. Claiborne Hardware Co., Brandenburg v. Ohio, and Counterman v. Colorado.
    • Judge Ho concurred in the denial of rehearing en banc. He agreed with the dissent’s call for viewpoint-neutral First Amendment enforcement: “Popular speech doesn’t need protection. It’s only when speech is unpopular that you need the First Amendment.” However, he parted company on the ultimate question, seeing “no violation of viewpoint neutrality in this case—only the dutiful application of a simple principle: ‘The First Amendment protects protest, not trespass.'” He emphasized that the plaintiff presented “ample evidence for a jury to put this case in the category of trespass, not protest,” and that this principle “applies with equal force to pro-police protestors” or “pro-life and pro-choice protestors alike” who unlawfully obstruct a public highway.
    • Judge Willett dissented from the denial of en banc rehearing, contending that the panel’s decision erases the constitutional boundary between advocacy and violence by permitting what he called “a freestanding tort of negligent protest.” He wrote: “Strip away the euphemisms, and the rule is stark: a freestanding tort of negligent protest—liability imposed on Mckesson not for causing Ford’s injury, but for failing to foresee that someone else might cause it.” He warned that the rule “will govern every cause and every viewpoint” and that “[t]he most visible speaker may become the ready-made defendant whenever an unidentified person in the crowd—even an interloper or provocateur—turns violent.”
    • On the constitutional merits, Judge Willett identified two independent defects. First, Claiborne requires that the defendant “authorized, directed, or ratified specific tortious activity,” and the record here shows no connection between Mckesson and the unknown assailant. He noted: “The missing assailant is not an evidentiary gap at the margin. It is the void at the center of the case.” Second, Counterman forecloses liability based on objective negligence and requires at least a culpable mental state tied to the violence: “Intent to obstruct traffic is not intent to shatter an officer’s jaw.” He further contended that the panel “exhumes” the bad-tendency rationale Brandenburg buried and “turns every speaker into the insurer of every stranger’s crime.”
    • On the broader implications, Judge Willett warned that the panel’s rule creates a “civil heckler’s veto” and makes police reaction evidence against police critics. He invoked the example of Dr. Martin Luther King Jr.’s 1968 Memphis march, arguing that the panel’s theory offers “no principled reason why Dr. King would have fared differently.” He concluded: “Constitutional rules cannot turn on the cause, the crowd, or the speaker. The First Amendment must protect advocacy without regard to whether the cause is popular or unpopular, favored or disfavored. Otherwise, constitutional guarantees become fair-weather guarantees.” He urged the Supreme Court to grant review and “restore the constitutional line between advocacy and violence.”

Unpublished decisions

  • United States v. Hoffman, 5-11352, appeal from N.D. Tex.
    • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • United States v. Blank, 25-40761, appeal from E.D. Tex.
    • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, appellate jurisdiction
    • Dismissing appeal from denial of early termination of supervised release, for lack of timely appeal.
    • At issue on appeal was whether the court had jurisdiction over an appeal by Travis Hunter Blank — a former federal prisoner serving a life term of supervised release following convictions for transportation and possession of child pornography — from the district court’s denial of his motion for early termination of supervised release under 18 U.S.C. § 3583(e)(1). The threshold question was the timeliness of Blank’s notice of appeal.
    • The Government correctly asserted that Blank’s notice of appeal was untimely under Federal Rule of Appellate Procedure 4(b)(1). Citing Eberhart v. United States, 546 U.S. 12, 18 (2005), the court held that its “duty to dismiss the appeal [is] mandatory” when a party properly seeks to enforce the time limit.
  • Alao v. Warden, Federal Medical Center Fort Worth, 26-10107, appeal from N.D. Tex.
    • per curiam (Smith, Southwick, Douglas) (no oral argument), habeas corpus
    • Dismissing as frivolous appeal from denial of sec. 2241 petition.
    • At issue on appeal was whether federal prisoner Afeez Abiola Alao was entitled to habeas relief under 28 U.S.C. § 2241, where he contended that the Bureau of Prisons wrongly refused to apply earned time credits under 18 U.S.C. § 3632(d)(4)(A) to reduce his sentence after erroneously determining that he was subject to a final order of removal.
    • The court found that an administrative order of removal — such as the Expedited Order of Removal issued in Alao’s case — may be final upon issuance, citing Riley v. Bondi, 606 U.S. 259, 267 (2025), and 8 C.F.R. § 235.3(b)(2)(ii), (b)(5). Because Alao made no showing that his removal order was not final, he failed to raise a nonfrivolous issue regarding the denial of his § 2241 petition. The court denied the IFP motion, dismissed the appeal as frivolous, and denied Alao’s motion for expedited consideration and immediate release.