Take the Fifth

Designated for publication

• Rash v. Lafayette County, Mississippi, 24-60558, appeal from N.D. Miss.
  • Oldham, J. (Wiener, Engelhardt, Oldham) (oral argument), First Amendment, standing, mootness
  • Affirming permanent injunction against restriction on film projection, reversing dismissal on standing grounds of plaintiff’s facial overbreadth challenge, and remanding for further proceedings.
  • University of Mississippi film professor John Rash sought to host PROJECT(ion), a free nighttime public art event projecting artwork onto the white walls of the Lafayette County Courthouse on Oxford’s Town Square. In July 2020, the County Administrator denied his permit application, citing the County’s Facility Use Policy curfew provision, which barred events on the courthouse grounds “after dusk, due to security issues.” Rash sued, alleging the Policy imposed an unconstitutional prior restraint and violated the First Amendment as an unreasonable, content-based time, place, and manner restriction on speech in a traditional public forum. At a bench trial, the district court permanently enjoined the curfew provision as applied to Rash, but dismissed Rash’s remaining facial challenges to five other provisions—including permit requirements for groups of five or more, advance notice, sheriff fees, insurance-and-indemnification, and discretionary denial—finding he lacked standing. The County amended the Policy multiple times, most recently in 2024, and argued the amendments mooted the case.
  • At issue on appeal was (1) whether the County’s 2024 amendments to the Facility Use Policy mooted the district court’s injunction against the curfew provision; (2) whether the curfew provision violates the First Amendment as an unreasonable time, place, and manner restriction; and (3) whether Rash has standing to bring facial challenges—including overbreadth and vagueness—against the curfew provision and five other provisions of the Policy.
  • The Fifth Circuit affirmed the permanent injunction against the curfew provision, reversed the district court’s dismissal of Rash’s facial overbreadth challenges for lack of standing, and remanded for further proceedings.
  • Mootness: The court held the 2024 amendments did not moot the case. The revised curfew merely shifted the ban’s trigger from “thirty minutes before dusk” to “one hour after sunset”—a cosmetic change that “eliminates none of the problems” the district court found unconstitutional. The other provisions were either unchanged (insurance-and-indemnification) or disadvantaged Rash “to a lesser degree” while retaining the same fundamental problems, such as impermissible content-based distinctions. Notably, the updated “five or more” provision, which Rash contended simply “doubles down” on “explicitly content-based distinctions” by codifying differential treatment of casual uses and political speech, did not moot his challenge.
  • Curfew Provision—Affirming the Injunction: Assuming arguendo that only intermediate scrutiny applied, the court found the curfew provision failed. On the government’s interest, the County offered only a speculative fear that future nighttime events might pose safety risks, with “no evidence” those concerns extended to the courthouse grounds themselves. Quoting Turner Broadcasting, the court emphasized that harms must be “real, not merely conjectural.” On narrow tailoring, the court found the blanket ban was wildly overinclusive: it applied “from sundown to sunup,” “every day of the week,” despite “zero trial evidence that violence, arrests, or pedestrian fatalities have occurred on the courthouse grounds.” The court quipped that “the question is not whether the curfew provision is reasonably related to the earth’s rotation on its axis. The question is whether the provision is narrowly tailored to the County’s public safety concerns.” The court also observed that “it borders on impossible to find a regulation narrowly tailored when the government changes it to restrict speech in different ways after virtually every protest, parade, or permit application.”
  • Standing for Facial Challenges: The court reversed the district court’s dismissal of Rash’s facial challenges. It agreed Rash lacked standing for a Fourteenth Amendment vagueness challenge to the curfew—because his nighttime art event was “clearly proscribed” by the ban—but held the district court erred by failing to consider his First Amendment overbreadth claim separately. For the remaining five provisions, the court found Rash’s testimony proved a chilling injury: he intends to apply for future permits, all six provisions would regulate those applications, and the threat of enforcement was substantial. The court cautioned that Rash’s facial challenge “comes at a cost”—on remand he must show that the provisions’ “unconstitutional applications substantially outweigh” the constitutional ones, which is a “heavy burden.”

Unpublished decisions

• United States v. Bell, 25-20208, appeal from S.D. Tex.
  • per curiam (Jones, Clement, Richman) (no oral argument), criminal, sentencing
  • Affirming supervised release conditions as part of sentence.
  • At issue on appeal was whether the district court satisfied its oral pronouncement requirement under the Fifth Amendment’s Due Process Clause and United States v. Diggles when it imposed discretionary supervised release conditions by orally adopting a Judge’s Sentencing Options Worksheet without first confirming on the record that the defendant had reviewed the worksheet with counsel.
  • The court declined to resolve whether Diggles imposes an independent duty on district courts to verify that defense counsel reviewed the document containing discretionary conditions with the defendant. Even assuming the pronouncement requirement was not satisfied, the court held the district court did not abuse its discretion because the record showed that Bell would have understood the conditions imposed — the conditions were the same as or very similar to those in her prior revocation judgment, the Options Worksheet (provided to Bell and her counsel before the hearing) listed every condition imposed, the court referenced the worksheet multiple times, and Bell never objected.

• United States v. Williams, 25-20435, appeal from S.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Lavallais, 25-20454, appeal from S.D. Tex.
  • per curiam (Davis, Stewart, Duncan) (no oral argument), criminal, sentencing, supervised release
  • Affirming conviction and sentence on revocation of supervised release.
  • At issue on appeal was (1) whether the district court erred at a supervised release revocation hearing by relying on bare allegations of new law violations (an arrest in Houston and a warrant for arrest in Iowa) when sentencing the defendant; and (2) whether the resulting sentence was substantively unreasonable because it was based on an improper factor — the defendant’s failure to comply with the court’s earlier instruction to work 40 hours per week.
  • Under plain error review (no objection below), the court found no clear or obvious error in the district court’s comments about the defendant’s arrests. The court likewise found no plain error in the district court’s reference to its earlier work instruction, which served to highlight the defendant’s continued failure to pay his fine — an admitted violation and permissible sentencing consideration.

• Triple C Minerals, L.L.C. v. XTO Energy, Inc., 25-30741, appeal from W.D. La.
  • per curiam (Stewart, Higginson, Ho) (no oral argument), mineral law
  • Affirming summary judgment for defendant on mineral lease dispute.
  • At issue on appeal was whether a Pugh clause in an oil, gas, and mineral lease (the “Collins Lease”) was triggered by compulsory unitization ordered by the Louisiana Commissioner of Conservation, thereby overriding Louisiana’s codified rule of indivisibility (La. R.S. § 31:114) and releasing a non-producing tract from the lease. The subsidiary question was whether the Pugh clause’s reference to land “pooled with other land so as to form a pooled unit” encompassed compulsory units or only voluntary pooling.
  • The court acknowledged that the Louisiana Supreme Court in Peironnet v. Matador Resources Co. interpreted similar “pooled” language to include compulsory units in a different context, but held that under Fifth Circuit precedent (Bennett v. Sinclair Oil & Gas Co.), Pugh clauses must clearly and unequivocally express the intent to contract out of Louisiana’s presumption of indivisibility. Because the Collins Lease Pugh clause did not clearly and unequivocally state that it applied to compulsory units, it could not be read to do so — even if the broader form lease referenced compulsory pooling elsewhere.

• United States v. Ramirez-Zapata, 25-40816, appeal from S.D. Tex.
  • per curiam (Davis, Jones, Richman) (no oral argument), criminal, guilty plea
  • Affirming guilty-plea conviction of illegal reentry.
  • At issue on appeal was (1) whether the district court plainly erred by failing to advise the defendant of the immigration consequences of his guilty plea for illegal reentry after deportation, in violation of Federal Rule of Criminal Procedure 11(b)(1)(O); and (2) whether this failure rendered the plea unknowing and involuntary in violation of due process.
  • On the due process claim, the court found no clear or obvious error because the Fifth Circuit has not held that a failure to give Rule 11(b)(1)(O) immigration advice amounts to a due process violation. On the Rule 11 claim, the court agreed with the government’s concession that the district court’s omission was clear error, but held that the defendant failed to show the error affected his substantial rights.

• United States v. Green, 25-50841, appeal from W.D. Tex.
  • per curiam (Jones, Richman, Willett) (no oral argument), criminal, Second Amendment, Commerce Clause
  • Affirming conviction of possession of a firearm in furtherance of a drug trafficking crime and felon-in-possession.
  • At issue on appeal was whether, in light of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, (1) 18 U.S.C. § 924(c)(1)(A) violates the Second Amendment as applied; (2) 18 U.S.C. § 922(g)(1) violates the Second Amendment as applied and facially; and (3) whether § 922(g)(1) exceeds Congress’s Commerce Clause powers. All issues raised for the first time on appeal and reviewed for plain error.
  • The § 922(g) challenges were foreclosed by circuit precedent (Simpson, Kimble, Giglio, Alcantar). As to § 924(c)(1)(A), although no published Fifth Circuit opinion addressed the issue post-Bruen, the court found no plain error, relying on its own unpublished decision in United States v. Ruiz and published decisions from the Third, Sixth, and Eleventh Circuits rejecting Second Amendment challenges to § 924(c)(1).
  • The government’s motion for summary affirmance was denied. Judge Willett would have denied the government’s motion for summary affirmance and instead granted the government’s alternative request for additional time to brief the merits.

• Kadyebo v. Centennial Court, et al., 26-10331, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), timeliness, § 1983
  • Affirming dismissal of § 1983 claims as untimely under the two-year statute of limitations.

• Rylander v. Frazier, et al., 26-20051, appeal from S.D. Tex.
  • per curiam (Smith, Stewart, Southwick) (no oral argument), § 1983
  • Affirming dismissal of civil claims under (1) 42 U.S.C. § 1983 (alleging judicial misconduct in handling a recusal motion and collusion between opposing counsel and the state trial judge), (2) 42 U.S.C. § 1985(3) (conspiracy), and (3) civil RICO for failure to state a claim. Additional issues included denial of electronic filing access, the district court’s de novo review of the magistrate judge’s report, and alleged due process violations related to briefing procedures.
  • The § 1983 claim failed because the defendant attorney acted within the scope of her representation. The § 1985(3) claim was abandoned on appeal for failure to brief it adequately (no allegation of racial animus). The RICO claim failed for insufficient factual allegations. The court found no abuse of discretion in denying electronic filing access, no error in the de novo review, and no due process violation in the briefing procedures. Multiple additional issues were abandoned for failure to adequately brief them.

• Dukes v. Gautreaux, et al., 26-30019, appeal from M.D. La.
  • per curiam (Southwick, Higginson, Willett) (no oral argument), § 1983
  • Dismissing as frivolous appeal from dismissal of claims.
  • At issue on appeal was whether the pro se plaintiff’s appeal of the district court’s dismissal and severance orders raised any nonfrivolous issues warranting in forma pauperis (IFP) status on appeal. The plaintiff challenged the district court’s (1) failure to identify the statutory basis for subject matter jurisdiction; (2) dismissal at the screening stage before service of process; (3) dismissal without leave to amend under Rule 15; and (4) finding that his Loper Bright argument was not preserved.
  • The court concluded that none of the plaintiff’s arguments raised a nonfrivolous issue and that he failed to meaningfully brief any challenge to the district court’s substantive reasons for dismissing claims against Judge Marcantel, the Lafayette Parish Sheriff’s Office, and Sheriff Gautreaux, thereby abandoning those challenges.

• United States v. Flack, 26-30098, appeal from W.D. La.
  • per curiam (Elrod, Southwick, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.