Take the Fifth

Designated for publication

• Fogleman-Laxey v. Guillory, 25-30132, appeal from W.D. La.
  • per curiam (Elrod, Richman, Willett), Willett, J., dissenting (no oral argument); qualified immunity, municipal liability
  • Affirming the district court’s dismissal of all claims—both the individual-capacity claims on qualified immunity grounds and the Monell claim for failure to plausibly allege an official policy or custom.
  • On August 29, 2020, Tara Fogleman-Laxey staged a peaceful protest—billed as a “community barbeque”—on the public street in front of the home of Lafayette Mayor-President Joshua Guillory, seeking to promote discussion about a fatal police shooting. She grilled hotdogs and hamburgers behind her parallel-parked truck. Lafayette Police Lieutenant Lisa Carstens approached, told Fogleman-Laxey she was obstructing a public roadway, and ultimately arrested her under Louisiana R.S. § 14:100.1 (obstruction of a public passageway). Fogleman-Laxey alleges she offered to move the grill but was refused. She was also charged with disturbing the peace, transported to the parish correctional center, strip-searched, and held for several hours. Months later, after she confronted Mayor Guillory at a civic meeting about COVID-19 policies, the District Attorney filed formal charges, which were eventually dropped when she agreed to a civil “stay away” order.
  • At issue on appeal was whether the plaintiff’s First Amendment retaliation and Fourth Amendment (arrest without probable cause) claims survived qualified immunity at the motion-to-dismiss stage; and whether the plaintiff’s municipal liability (Monell) claim was adequately pleaded against the Lafayette Consolidated Government and Mayor Guillory.
  • Fogleman-Laxey bore the burden of identifying clearly established law that would have given the officers “fair warning” that their conduct was unlawful. She made no attempt to do so before the district court and only offered two cases on appeal—Bailey v. Illes and Green v. Thomas—neither of which was sufficiently factually analogous. Bailey involved an in-home arrest over a Facebook post, and Green involved a detective manipulating a photo lineup; drawing parallels to a roadside-grilling arrest would require defining the right at “an impermissibly high level of generality.”
  • The court found no case—whether cited by the plaintiff, the dissent, or through its own review—providing the required level of specificity establishing that arresting someone for grilling in the street under § 14:100.1(A) violates clearly established rights. The majority noted: “Perhaps this is because no clearly established rights were violated.”
  • On the Monell claim, the court found the allegation that Mayor Guillory “ordered and/or directed” the arrest to be “conclusory and speculative,” insufficient to plausibly plead an official policy or custom.
  • Judge Willett issued a lengthy and forceful dissent contending that the majority violated Rule 12 pleading standards by “discounting allegations, resolving factual disputes, and substituting its own account of what happened.” He wrote: “Few abuses of public power are more corrosive to self-government than turning the machinery of the State against its critics.”
  • On qualified immunity, Judge Willett contended that the doctrine is “entirely judicially invented, textually indefensible, and at war with the law Congress actually wrote,” but acknowledged it is binding. Nonetheless, he contended the majority applied it too rigidly. He argued the court must “use [its] full knowledge of [its] own and other relevant precedents” rather than confining itself to cases the plaintiff happened to cite, citing Elder v. Holloway. He further argued there was no arguable probable cause because the complaint alleged no blocked lane, stopped vehicle, or impeded passage—meaning the statutory elements of § 14:100.1(A) were not even arguably satisfied. A particularly vivid passage: “If a grill squeezed between parked cars is enough where ‘walking down the middle of the street’ was not, § 14:100.1(A) stops functioning as an obstruction statute. It becomes a general roadside-presence offense.”
  • On the Monell claim, Judge Willett contended that the allegation “The Mayor directed the arrest” describes an “alleged historical act” rather than a legal conclusion, and therefore must be accepted as true under Rule 12. He pointed to an apparent inconsistency with the panel’s own recent decision in Thompson v. McGehee, where the same panel credited a nearly identical allegation. He concluded: “Fogleman-Laxey may lose once the facts are developed, but she should not lose because we developed them

Unpublished decisions

• United States v. Mendez-Martinez, 25-11232, appeal from N.D. Tex.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Plaquemines Parish v. Chevron USA Holdings, Inc., 23-30336, appeal from E.D. La.
  • per curiam (Elrod, Clement, Oldham), Oldham, dissenting in footnote (“respectfully dissents in part” and “would decide the appeal rather than remand the case”) (no oral argument after remand from Supreme Court); environmental, federal officer jurisdiction
  • On remand from Supreme Court, vacating district court’s order remanding case to state court, and remanding to district court to determine jurisdictional issue in light of Supreme Court’s opinion.
  • At issue on remand was whether the district court’s remand order sending an environmental-damage case back to state court should stand following the Supreme Court’s decision in Chevron USA Inc. v. Plaquemines Parish, 146 S. Ct. 1052 (2026).

• United States v. Salvador, 25-30710, appeal from W.D. La.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal, sentencing
  • Affirming 168-month sentence on conviction of conspiracy to distribute methamphetamine.
  • At issue on appeal was whether the district court erred in denying a mitigating-role reduction under the amended U.S.S.G. § 3B1.2 for a defendant convicted of conspiracy to distribute methamphetamine.
  • The court found any error harmless because the district court stated it would have imposed the same 168-month sentence regardless of the mitigating-role determination, based on the § 3553(a) factors and the 10-year statutory mandatory minimum.

• United States v. Leal, 25-40705, appeal from S.D. Tex.
  • per curiam (Higginbotham, Jones, Oldham) (no oral argument), criminal, Speedy Trial Act, sentencing
  • Affirming conviction and sentence.
  • At issue on appeal was (1) whether the defendant’s rights under the Speedy Trial Act were violated; (2) whether the district court was biased; and (3) whether the defendant was entitled to resentencing in a related case.
  • The second superseding indictment reset the speedy trial clock, the court’s scheduling orders properly tolled it, and fewer than 70 non-excludable days elapsed before trial. The bias claim lacked evidentiary support, and resentencing in the related case was unwarranted because the sentence here was not being reversed.

• Cutshall v. Dillow, 25-20386, c/w 25-20499, appeal from S.D. Tex.
  • per curiam (Higginbotham, Smith, Oldham) (oral argument), qualified immunity
  • Reversing denial of motions to dismiss on qualigied immunity grounds.
  • At issue on appeal was whether thirteen police officers were entitled to qualified immunity on a truck driver’s § 1983 claims for excessive force and bystander liability arising from a prolonged standoff and forcible extraction from a semi-truck.
  • The court analyzed each officer’s conduct individually and chronologically. It held that every officer acted reasonably given the suspect’s hours-long refusal to exit, active resistance, and possession of knives. The bystander liability claims likewise failed for lack of an underlying constitutional violation. The court noted it lacked appellate jurisdiction over the summary-punishment, failure-to-render-aid, and state-law claims because the officers had not raised qualified or official immunity on those grounds below.

• United States v. Luna, 25-40272, appeal from S.D. Tex.
  • per curiam (Willett, Engelhardt, Douglas) (oral argument), Willett, J., concurring; criminal, Second Amendment
  • Affirming dismissal of felon-in-possession indictment on as-applied Second Amendment grounds.
  • At issue on appeal was whether 18 U.S.C. § 922(g)(1) could constitutionally be applied to a felon whose sole predicate was a simple drug possession conviction, and whether the Government could rely on evidence of the conduct underlying that conviction that it failed to timely present.
  • The Government forfeited its argument that the district court abused its discretion in refusing to consider late-submitted evidence of Luna’s underlying drug-trafficking conduct. The Government’s new historical analogue (Founding-era tobacco laws) was rejected under prior precedent. Under United States v. Hembree, a simple-possession predicate cannot support a § 922(g)(1) conviction.
  • Judge Willett wrote a lengthy concurrence addressing the “doctrinal friction” in the circuit’s § 922(g)(1) case law. He proposed reconciling two seemingly conflicting lines of precedent—Diaz/Kimble (which convictions enter the analysis) and Contreras/Morgan (what courts may examine about qualifying convictions)—under a “two-step framework.” He noted that Squire, recently granted en banc, offers the full court “a welcome chance to bring some order to this area.” He expressed ongoing “serious doubts” about § 922(g)(1) under both the Commerce Clause and the Second Amendment, observing that the statute “sits at the intersection of two constitutional guarantees” and “regulates—on a vast scale—conduct lying unusually close to the constitutional bone.”

• United States v. Hill, 26-20054, appeal from S.D. Tex.
  • per curiam (Stewart, Willett, Wilson) (no oral argument), criminal, sentence reduction
  • Dismissing as frivolous appeal from denial of motion for sentence reduction.
  • Court held that Hill did not qualify for a reduction as a matter of law because he was not assessed status points, was assessed only one criminal history point, and his offense involved a death. His remaining claims were not cognizable in a § 3582(c)(2) motion.

• Herod v. Guerrero, 25-40247, appeal from S.D. Tex.
  • Engelhardt, J. (Richman, Engelhardt, Wilson) (oral argument), habeas corpus, Brady violation
  • On panel rehearing, reversing grant of habeas relief on Brady violation claim, and remanding for proceedings on remaining claims.
  • At issue on appeal was whether a state prisoner was entitled to federal habeas relief under Brady v. Maryland and Napue v. Illinois based on DNA evidence that was later reinterpreted to exclude him as a contributor, and on claims that the state’s DNA expert gave false testimony.
  • The court found that Herod overcame the procedural default of his claims, establishing prejudice sufficient to pass that threshold because the DNA evidence was the only physical evidence tying him to the crime scene and the prosecution emphasized it heavily. However, the court held that Herod’s Brady claim that the state suppressed his DNA exclusion was barred by Teague v. Lane‘s non-retroactivity principle because applying Brady to “shifted science” not known at the time of trial would announce a new rule. Herod’s remaining Brady argument—suppression of scientific debate about the CPI method—failed on the merits because the debate was publicly available and discoverable through reasonable diligence. Herod’s Napue claims also failed: the state had insufficient knowledge at the time of trial that the expert’s testimony was false, and expert methodology disputes were “grist for the cross-examination mill,” not grounds for collateral relief.

• United States v. Newton, 23-30658, appeal from W.D. La.
  • per curiam (Elrod, Wilson, Douglas) (no oral argument), criminal, sentencing, forfeiture
  • Affirming firearm forfeiture order, vacating unpronounced supervised release conditions, and remanding to excise conditions from sentencing judgment.
  • At issue on appeal was (1) whether the district court procedurally erred in ordering firearm forfeiture without entering a preliminary order before sentencing; and (2) whether the district court erred by failing to orally pronounce supervised release conditions.
  • On forfeiture, the court found plain error in failing to follow Rule 32.2’s requirements, but Newton could not show the error affected his substantial rights because the firearms had a sufficient nexus to his drug-trafficking offense. On supervised release, the court held the district court failed to confirm that Newton personally reviewed the PSR and therefore could not pronounce conditions by reference under Diggles.

• United States v. Membreno-Lainez, 25-20442, appeal from S.D. Tex.
  • per curiam (Barksdale, Willett, Douglas) (no oral argument), criminal, sentencing
  • Affirming sentence.
  • At issue on appeal was whether the defendant’s prior Texas aggravated robbery conviction qualified as an aggravated felony under 8 U.S.C. § 1326(b)(2), raised for the first time on appeal.
  • Reviewing for plain error, the court held that the defendant failed to cite any binding authority supporting his contention.

• Johnson v. Cortez, 25-30760, appeal from M.D. La.
  • per curiam (Jones, Ho, Engelhardt) (no oral argument), prisoner suit
  • Dismissing as frivolous and denying IFP status appeal from sua sponte dismissal of prisoners’ complaint.

• Ohendalski v. United States, 26-20123, appeal from S.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), tax law, res judicata
  • Affirming dismissal of refund suit.
  • At issue on appeal was whether res judicata barred a pro se taxpayer’s refund suit under 26 U.S.C. § 7422(a) for the same tax years (2002–2004) that were the subject of a prior settled Tax Court judgment.
  • All four res judicata elements were met: the prior settlement was a final judgment on the merits, and under the transactional test, both suits shared the same nucleus of operative facts—the taxpayer’s liability for the same tax years.

• United States v. Jyles, 25-30350, appeal from E.D. La.
  • per curiam (King, Higginson, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Sandoval Ortiz v. Blanche, 25-60650, petition for review of BIA order
  • per curiam (Clement, Southwick, Oldham) (no oral argument), immigration
  • Dismissing in part and denying in part petition to review the denial of a motion to reopen removal proceedings for a noncitizen convicted of an aggravated narcotics felony.
  • The INA’s jurisdictional bar applied because petitioner was removable for an aggravated felony. His challenge to the IJ’s factual finding that no documents were received was an unreviewable factual dispute. The due process argument failed because there is no liberty interest at stake in a motion to reopen.

• Tijerina v. City of San Antonio, 25-50719, appeal from W.D. Tex.
  • Douglas, J. (Willett, Engelhardt, Douglas) (oral argument), excessive force, qualified immunity, municipal liability
  • Affirming dismissal of excessive force claim arising from fatal police shooting, and dismissal of municipal liability claim.
  • At issue on appeal was (1) whether an officer who fired nine shots at a hostage-taker used excessive force under the Fourth Amendment when a hostage was inadvertently killed; (2) whether the officer was entitled to qualified immunity; (3) bystander-injury claims on behalf of minor children; and (4) Monell municipal liability.
  • The court assumed without deciding that the deceased hostage was “seized” for Fourth Amendment purposes but held that the officer acted reasonably under the totality of the circumstances. All three Graham factors favored the officer: the suspect held a family hostage for hours, had active warrants for aggravated assault, was wearing a bulletproof vest, and pointed a gun at officers. The bystander claim failed because the officer directed fire at the suspect, not at the children, who were confirmed to be in a different room. Monell claims against the City failed for lack of an underlying constitutional violation.

• United States v. Escobar, 25-50922, appeal from W.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, sentencing
  • Affirming constitutionality of enhanced sentence for illegal reentry.

• United States v. Mosley, 26-60031, appeal from S.D. Miss.
  • per curiam (Stewart, Richman, Higginson) (no oral argument), criminal, sentencing
  • Affirming sentence on drug possession charge.
  • At issue on appeal was (1) ineffective assistance of counsel for admitting possession of methamphetamine at trial; (2) whether the district court erred in applying a two-level dangerous-weapon enhancement (U.S.S.G. § 2D1.1(b)(1)); and (3) whether a four-level fentanyl-misrepresentation enhancement (U.S.S.G. § 2D1.1(b)(13)(A)) was properly applied.
  • The IAC claim was declined without prejudice to collateral review because the record was insufficiently developed. The weapons enhancement was proper; firearms need not be loaded to support the adjustment. The fentanyl-misrepresentation enhancement was supported by significant evidence.

• Apex Clearing Corp. v. SEC, 25-60330, petition to enforce SEC order
  • per curiam (King, Southwick, Haynes) (oral argument), administrative law
  • Denying petition for review of SEC denial of motion to modify settlement terms.
  • At issue on petition was whether the SEC acted arbitrarily and capriciously in denying a broker-dealer’s motion to modify settlement undertakings imposed in the Commission’s off-channel communications enforcement sweep, after later-settling firms received significantly lighter terms.
  • The court first rejected the SEC’s waiver argument because the agency never raised it in the administrative record. On the merits, the court held the SEC’s denial was not arbitrary and capricious. The Commission properly required Apex to show compelling or extraordinary circumstances for modification under Rufo v. Inmates of Suffolk County Jail and found that later parties’ better settlement terms did not constitute a significant change in factual conditions or law. The Commission reasonably distinguished Apex’s situation from Millenium Partners, where the Division did not oppose modification and the undertakings had become unworkable. The court acknowledged the inequity but noted the SEC has discretion in settlement terms, and Apex had consented to its obligations.

• United States v. Ghazi, 26-20202, appeal from S.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, pretrial detention
  • Affirming denial of motion for pretrial release.
  • At issue on appeal was whether the district court erred in denying pretrial release for a defendant charged with conspiring to distribute cocaine.
  • The evidence as a whole supported the district court’s detention decision. The court heard mitigating arguments, orally explained its ruling, and its consideration of the defendant’s alienage was not an abuse of discretion.

• United States v. Cuevas Marente, 26-40111, appeal from S.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Benamon v. Cox, 26-30040, appeal from W.D. La.
  • per curiam (Graves, Wilson, Ramirez) (no oral argument), habeas corpus
  • Dismissing as frivolous appeal from dismissal of § 2241 petition, which challenged his conviction and sentence.
  • Because the petition challenged a federal conviction and sentence, the district court correctly construed it as a § 2255 motion, and only the sentencing court in the Southern District of Mississippi had jurisdiction. The prisoner failed to satisfy the saving clause of § 2255(e) under Jones v. Hendrix.