Take the Fifth

Designated for publication

• Knife Rights, Inc. v. Blanche, 25-10754, appeal from N.D. Tex.
  • Elrod, C.J. (Elrod, Willett, Wilson) (oral argument), Second Amendment, standing, Commerce Clause, Federal Switchblade Act
  • Reversing dismissal of claim that § 1242 of the Federal Switchblade Act was unconstitutional under the Second Amendment, affirming dismissal of facial challenge to § 1243 of the Act, and remanding for further proceedings.
  • Knife Rights, Inc., two Texas-based firearms retailers, and five individual plaintiffs brought a pre-enforcement facial challenge to the Federal Switchblade Act (FSA), 15 U.S.C. §§ 1242–43. Section 1242 criminalizes the knowing introduction, manufacture for introduction, transportation, or distribution of switchblade knives in interstate commerce. Section 1243 prohibits manufacture, sale, or possession of switchblades within U.S. territories, Indian country, and special maritime and territorial jurisdiction. The district court dismissed the § 1242 claim on the merits—finding it was not a de facto ban on possession—and dismissed the § 1243 claim for lack of standing.
  • At issue on appeal was (1) whether plaintiffs had Article III standing to challenge both §§ 1242 and 1243 in a pre-enforcement posture; (2) whether switchblade knives are “Arms” protected by the Second Amendment; and (3) whether the FSA’s interstate-commerce restrictions on switchblades survive scrutiny under the historical-tradition framework of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).
  • Standing: The court found all plaintiffs (except one individual as to § 1242) had standing because the government affirmatively declined to disavow enforcement of either provision. At oral argument, the government stated: “we are not in a position to disavow enforcement. I’m, like, affirmatively telling you we will not, have not, are not disavowing enforcement.” As to § 1243, plaintiff Rodney Shedd—a resident of Muscogee Nation tribal land who had to abandon his switchblade before relocating—cleared the “forgiving” credible-threat-of-prosecution standard.
  • Bruen Step One—Plain Text: The court held switchblades are “Arms” under the Second Amendment, noting that knives have been used for defense throughout American history and that some forms of switchblades “have been commonly used for defense for hundreds of years.” Millions of automatically opening knives are in circulation today, confirming they are “in common use.” The court further held that § 1242’s regulation of the manufacture, transportation, and distribution of arms implicates the right to “keep and bear” them, because “the right to keep and bear arms ‘wouldn’t mean much’ without the corresponding right to acquire them.”
  • Bruen Step Two—Historical Tradition: The government’s historical analogues focused on the “why” of regulation—a tradition of restricting concealed weapons—but failed on the “how.” The court found that the government’s cited authorities overwhelmingly involved regulating the manner of carrying concealed weapons, not their manufacture, transportation, or distribution. Of nearly 200 pre-1900 statutes catalogued in the record, only two regulated bladed weapons in a manner analogous to § 1242, placing them in “outlier territory” that Bruen warns against endorsing.
  • Section 1243: The facial challenge to § 1243 failed under the demanding Salerno “no set of circumstances” standard. The government identified plainly constitutional applications of § 1243—including restrictions on switchblades in courthouses, federal prisons, embassies, and military bases—and the challengers offered “no good response.”

• Garcia v. United States, 25-20180, appeal from S.D. Tex.
  • Stewart, J. (Stewart, Higginson, Ho) (no oral argument), Ho, dissenting; Federal Tort Claims Act, attorneys’ fees
  • Affirming finding of government liability under FTCA, but reversing and remanding judgment to modify amount that had been raised to absorb the fee award.
  • In January 2018, Ulises Valladares was kidnapped from his Houston home while his twelve-year-old son, Ulysses, was present. The FBI deployed a SWAT team to rescue Ulises from the location where he was being held. During the operation, Agent Gavin Lappe fired through a window and fatally shot Ulises—who was blindfolded and bound with duct tape—after another agent broke the window with a Halligan tool. Ulysses and his mother, Justina Garcia, sued the United States under the FTCA. After a three-day bench trial, the district court found the government liable, awarded $1,915,000 in damages, and separately awarded $475,000 in attorney’s fees; it later issued an amended judgment inflating the damages by exactly $475,000 to absorb the fees.
  • At issue on appeal was (1) whether the district court clearly erred in finding Agent Lappe negligent and in rejecting the FTCA’s discretionary function exception; and (2) whether the district court properly awarded damages and attorney’s fees under the FTCA.
  • Liability: The court held the district court’s negligence finding was not clearly erroneous. Eyewitness Sophia Heath—one of the kidnappers present in the room—testified that Ulises was blindfolded and bound during the entire incident, never leaned out the window, never assumed a shooting stance, and never grabbed an agent’s weapon. The undisputed fact that Ulises was blindfolded and bound supported Heath’s testimony and contradicted the agents’ accounts. The district court’s credibility determination—crediting Heath over the agents—was entitled to “great deference.”
  • Damages: The FTCA limits attorney’s fees to 25% of the total damages award, to be “carved out of” the award rather than added to it. After the government objected to the separate $475,000 fee award, the district court simply inflated the damages by that exact amount—an increase “not independently supported by the record.” The court reversed the amended judgment and directed entry of the original award with fees properly limited under 28 U.S.C. § 2678.
  • Judge Ho dissented, arguing that “it’s the kidnappers who should be punished—not the FBI agents who attempted to rescue the hostage in good faith.” He contended that Heath’s own testimony was consistent with the agents’ accounts—Valladares stood on the couch, pushed the curtain open, and everything “happened very fast”—and that a bound figure with hands held together pushing open a curtain “could easily resemble a person in a threatening shooting stance, especially during a high-stakes rescue mission.” Judge Ho argued the discretionary function exception should apply because Agent Lappe had a “reasonable belief” that Valladares posed an imminent danger, and concluded: “we need to stop blaming law enforcement, and start blaming criminals, when people are harmed by their crimes.”

• In re Whitney Oil & Gas, L.L.C. (Quality Process Services v. Whitney Oil and Gas), 25-30560, appeal from E.D. La.
  • Willett, J. (Jones, Southwick, Willett) (oral argument), maritime law, indemnity, attorneys’ fees
  • Affirming judgment against plaintiff on indemnity claim, and dismissing without prejudice appeal of attorneys’-fee ruling.
  • Whitney Oil and Gas produces oil and gas in federal and state waters off Louisiana’s coast; Quality Process Services (QPS) supplied contract laborers—mostly production operators—under a Master Service Agreement (MSA). QPS operators used Whitney’s vessels to reach offshore platforms, where they would tie up, disembark, and perform production work such as reading gauges and checking pipes. In September 2021, during post-Hurricane Ida operations, a Whitney vessel driven by a QPS employee allided with a well jacket, seriously injuring Whitney employee Kerri Espadron. After Espadron’s personal injury claims settled, QPS sought contractual indemnity from Whitney under the MSA.
  • At issue on appeal was whether the MSA was a “maritime contract” under the Doiron framework—in which case the indemnity provision would be enforceable under federal maritime law—or a non-maritime contract governed by Louisiana’s Oilfield Anti-Indemnity Act (LOAIA), which would vitiate the indemnity clause.
  • Under Doiron, a contract is maritime if it (1) provides services facilitating drilling or production on navigable waters and (2) the parties expect a vessel to play a “substantial role” in completing the contract. While the first prong was undisputed, the court found the second was not met. The MSA’s references to general maritime law, the Jones Act, and marine insurance showed vessels were “part of the parties’ relationship, but not that they would play a substantial role in QPS’s work.” The operators’ tasks “could not be performed from the vessel”—they had to “tie the vessel up to the well, exit the vessel with their tools, and climb onto the platform.” Providing a ride to work “falls short of the ‘substantial role’ that Doiron requires.”
  • QPS argued that post-Hurricane Ida conditions and oral work orders should alter the analysis, but the court held the parties’ expectations were clear from the MSA itself and declined to consider actual vessel use during the shutdown. QPS’s argument that Whitney’s post-accident payment of “maintenance and cure” to its own employee was also unavailing, as it said nothing about the parties’ expectations at the time the MSA was signed. The attorney-fee appeal was dismissed because the district court had determined entitlement but deferred setting the amount, and “an order awarding attorney’s fees or costs is not reviewable on appeal until the award is reduced to a sum certain.”

Unpublished decisions

• Payne v. City of Houston, Texas, 25-20492, appeal from S.D. Tex.
  • per curiam (Stewart, Graves, Wilson) (oral argument), governmental immunity
  • Affirming denial of summary judgment for city on governmental immunity defense.
  • This case arises from a fatal automobile collision between Houston Police Officer Christopher Cabrera, who was driving up to 70 mph in a 35-mph zone while looking at his laptop, and Charles Payne, who was making a left turn while suffering a heart attack and under the influence of marijuana. Payne died shortly after the crash. His family sued the City of Houston under 42 U.S.C. § 1983 and the Texas Tort Claims Act (TTCA). The City had previously lost a motion to dismiss and returned to challenge the district court’s denial of summary judgment on the TTCA claim, asserting governmental immunity.
  • At issue on appeal was (1) whether genuine disputes of material fact existed as to whether Officer Cabrera breached duties under the Texas Transportation Code and proximately caused the collision, thereby triggering the TTCA’s waiver of governmental immunity under § 101.021(1); (2) whether the TTCA’s election-of-remedies provision, § 101.106(d), barred Plaintiffs’ suit because Cabrera’s separate state-court action against Payne’s estate had been dismissed by agreed order; and (3) whether the TTCA’s 9-1-1 exception, § 101.062(b), reinstated the City’s immunity.
  • Material fact disputes existed regarding breach and proximate cause — Cabrera was speeding at up to twice the limit with his emergency lights off and was looking at his laptop, and Plaintiffs’ expert opined the collision would not have occurred at the speed limit. The agreed dismissal order in Cabrera’s state-court suit was not a “judgment against” an employee under § 101.106(d). The court again rejected the City’s 9-1-1 exception argument, reaffirming that Cabrera was not “responding” to a 9-1-1 call when the collision occurred because he was merely driving to the station to complete paperwork.

• United States v. Logwood, 25-30674, appeal from W.D. La.
  • per curiam (Jones, Southwick, Duncan) (oral argument), criminal, search and seizure
  • Affirming conviction on drug and firearm charges, upholding denial of motion to reopen suppression hearing.
  • Charles Logwood was convicted after trial of possession with intent to distribute methamphetamine and marijuana and possession of a firearm during a drug trafficking offense. A DEA-monitored traffic stop by a sheriff’s deputy yielded 3.97 kilograms of methamphetamine, 1.11 kilograms of marijuana, and a loaded handgun. After a suppression hearing, the magistrate judge denied suppression. Two months before trial, Logwood moved to reopen the suppression hearing based on a forensic expert’s analysis of drone (“HELO”) video, which purportedly showed Logwood did use his turn signal before the stop. The district court denied the motion, and Logwood was convicted and sentenced to 204 months.
  • At issue on appeal was whether the district court abused its discretion in refusing to reopen the suppression hearing based on Logwood’s new expert report analyzing the HELO video.
  • The district court did not abuse its discretion in discounting the evidentiary value of the expert report, which contained “no analysis at all, only conclusions.” The HELO video was always available to Logwood and was played at the original hearing; the court reasonably rejected counsel’s excuse that he had only recently learned such forensic analysis was possible. The court also properly treated the expert report as not constituting “new evidence,” reasoning that it merely offered an alternative way to view the already-available video.

• Dyer v. New Orleans City, 26-30012, appeal from E.D. La.
  • per curiam (Smith, Haynes, Engelhardt) (oral argument), employment discrimination, Title VII
  • Affirming dismissal of § 1985 claim and disparate treatment/promotion claims on summary judgment, vacating dismissal of hostile work environment claim, reversing dismissal of Title VII retaliation claim, and remanding for further proceedings.
  • Captain Varrick Dyer, a dark-skinned African American firefighter with the New Orleans Fire Department, sued the City of New Orleans and the Fire Department superintendent under Title VII, 42 U.S.C. §§ 1981, 1983, and 1985, and Louisiana state law, alleging race-based hostile work environment, retaliation, disparate treatment, and conspiracy claims. The magistrate judge dismissed most claims at the pleading stage, then granted summary judgment on the remaining disparate treatment claim related to a promotion, and denied leave to amend.
  • At issue on appeal was (1) whether the magistrate judge erred in dismissing Dyer’s Title VII hostile work environment claim by evaluating the alleged incidents individually rather than as a whole; (2) whether the retaliation claim was plausibly pleaded where Dyer was suspended 42 days after filing an EEOC charge; (3) whether Dyer stated a § 1985 conspiracy claim; (4) whether summary judgment was proper on the disparate treatment/promotion claim under the McDonnell Douglas framework.
  • The court vacated the dismissal of the hostile work environment claim, finding the magistrate judge improperly evaluated the seven alleged incidents of harassment individually rather than as a whole, as required. The court reversed dismissal of the Title VII retaliation claim, holding that the 42-day gap between Dyer’s EEOC charge and his suspension was sufficient to establish a causal connection at the pleading stage. The court affirmed dismissal of the § 1985 conspiracy claim for failure to plead any agreement or class-based animus. The state-law conspiracy claim was deemed forfeited for inadequate briefing. The court affirmed summary judgment on the disparate treatment/promotion claim, reasoning that the superintendent never considered anyone other than the appointed candidate — including other white candidates — which negated an inference of discriminatory intent.

• United States v. Sylvester, 26-30072, appeal from W.D. La.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), criminal, sentencing
  • Affirming sentence on conviction of drug charges.
  • Marlon D. Sylvester pleaded guilty to conspiracy to distribute and possess with intent to distribute cocaine. He argued on appeal that the district court committed plain error in applying the career offender enhancement under U.S.S.G. § 4B1.1 by relying solely on the presentence report’s characterization of his prior Louisiana convictions as “controlled substance offenses” rather than conducting a proper modified categorical analysis.
  • At issue on appeal was whether the district court plainly erred in applying the career offender enhancement without conducting the required modified categorical analysis of Sylvester’s prior convictions.
  • The court found it was not clear or obvious that the district court relied solely on the PSR, given that Sylvester himself introduced state-court records and characterized his prior convictions as attempted possession with intent to distribute cocaine. Moreover, Sylvester failed to show the error affected his substantial rights because he never argued the career offender enhancement was ultimately wrong.

• Castillo v. Blanche, 26-60091, petition for review of BIA order
  • per curiam (Smith, Southwick, Oldham) (no oral argument), immigration
  • Denying Mexican citizen’s petition for review of BIA denial of motion for reconsideration of removal order.
  • Roberto Castillo, a native and citizen of Mexico, was removed in 1999 and reentered the United States without authorization in 2004. In 2025, he filed a motion for reconsideration of his 1999 removal order based on a 2001 change in law under United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001). The BIA denied the motion, finding Castillo had not demonstrated the requisite diligence for equitable tolling.
  • At issue on petition was whether the BIA abused its discretion in denying equitable tolling of the deadline for Castillo’s motion for reconsideration, given that he waited 22 years after the Chapa-Garza decision before seeking legal consultation about his removal order.
  • Castillo did not take any steps to pursue legal consultation until 2023 — 22 years after the legal change on which he relied. His cited circumstances, including limited education, language barriers, and lack of legal training, did not demonstrate reasonable diligence during that period, and the BIA’s decision reflected adequate consideration of his evidence and arguments.