Cole v. Hunter

Dockets: 14-10228, 15-10045
Opinion Date: September 25, 2018
Judge: Higginbotham
Areas of Law: Criminal Law

On remand from the Supreme Court, the Fifth Circuit considered this case in light of the Court's decision in Mullenix v. Luna. Plaintiffs filed suit under 42 U.S.C. 1983, alleging that officers used excessive force when they shot and killed their son. The court affirmed the district court's denial of Officer Cassidy and Hunter's motion for summary judgment based on qualified immunity, otherwise reinstated the court's previous opinion in this case, and remanded for further proceedings. The court held that the district court did not weigh the evidence and resolve the factual dispute over the shooting and that a jury should resolve what happened on that night.

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​US Court of Appeals for the Fifth Circuit Opinions
Doe v. Marine-Lombard

Docket: 17-30292
Opinion Date: September 20, 2018
Judge: Leslie H. Southwick
Areas of Law: Civil Rights, Constitutional Law

Three exotic dancers under the age of 21 filed suit challenging Louisiana's amendment of two statutes (Act No. 395) that required entertainers on premises licensed to serve alcohol and whose breasts or buttocks are exposed to view be 21 years of age or older. The district court concluded that plaintiffs were likely to succeed on the merits of their claims that the Act was unconstitutionally overbroad and vague, and issued a preliminary injunction barring enforcement of the Act. The Fifth Circuit disagreed with the district court’s determination that the statute failed to comply with time, place, and manner standards on expressive conduct under United States v. O'Brien, 391 U.S. 367, 376 (1968), and that the statute was overbroad. However, the court held that the statute was unconstitutionally vague, and the standards for an injunction have been met. In this case, there was a substantial likelihood that plaintiffs would prevail on the merits of their vagueness claim where plaintiffs have shown that the Act had the capacity to chill constitutionally protected conduct, especially conduct protected by the First Amendment. The court held that the Act's vagueness and its resultant capacity to chill protected conduct supported a finding that the remaining injunctive relief requirements were satisfied.

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US Court of Appeals for the Fifth Circuit Opinions
Alvarez v. City of Brownsville

Docket: 16-40772
Opinion Date: September 18, 2018
Judges: Carl E. Stewart, E. Grady Jolly, Jerry E. Smith, Jacques Loeb Wiener, Jr., Edith Brown Clement, Priscilla R. Owen, Jennifer Walker Elrod, Leslie H. Southwick, Catharina Haynes, Stephen Andrew Higginson, Don R. Willett, Ho
Areas of Law: Civil Rights, Constitutional Law

This case was reheard en banc after plaintiff obtained a $2.3 million judgment that was reversed and his claims were dismissed. The court held that plaintiff's Brady v. Maryland claim should have been dismissed as a matter of law on summary judgment because the city should not have been subjected to municipal liability for plaintiff's 42 U.S.C. 1983 claim. The court also declined the invitation to disturb its precedent concerning a defendant's constitutional right to Brady material prior to entering a guilty plea.

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Louisiana Supreme Court Opinions

​City of New Orleans v. Clark

Docket: 2017-KK-1453
Opinion Date: September 7, 2018
Judge: Marcus R. Clark
Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law

Defendant, Lawrence Clark was issued a citation for displaying his art for sale on neutral ground at Decatur Street and Esplanade Avenue in New Orleans, in violation of New Orleans Municipal Code. Clark moved to quash the charging affidavit, asserting the ordinance was unconstitutional. The Louisiana Supreme Court granted review to consider whether New Orleans Municipal Code section 110-11, which regulated the outdoor retail sale of art, was indeed unconstitutional as a violation of Clark’s First Amendment rights. The Supreme Court concurred with Clark that the ordinance was unconstitutional. Therefore, it reversed the lower courts’ rulings and granted the motion to quash the charging affidavit against Clark.

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US Court of Appeals for the Fifth Circuit Opinions
Smit v. SXSW Holdings, Inc.

Docket: 17-50674
Opinion Date: September 12, 2018
Judge: Thomas Morrow Reavley
Areas of Law: Personal Injury

After an intoxicated driver fled Austin police and knowingly accelerated through a closed city block during the South by Southwest Festival and killed four people, the family of one of the victims filed a wrongful death action against the festival organizers and the City of Austin. Plaintiffs alleged that defendants failed to adequately blockade the street and prevent the ensuing harm. The Fifth Circuit affirmed the district court's dismissal of the action for failure to state a claim under Texas law. The court held that plaintiffs failed to plausibly allege the SXSW defendants controlled the premises where the driver struck the victim. Therefore, the district court properly dismissed the negligence and premises-liability claims against the SXSW defendants for lack of duty. The court held that plaintiffs failed to allege any violation of a codified standard of conduct and thus plaintiffs' negligence per se claim was properly dismissed. The court also held that the district court properly dismissed the implied warranty and public nuisance claim. Finally, the City's immunity was not waived because plaintiffs have failed to state a valid premises claim.

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Louisiana Supreme Court Opinions
Louisiana v. Horn

Docket: 2016-KA-0559
Opinion Date: September 7, 2018
Judge: Bernette J. Johnson
Areas of Law: Constitutional Law, Criminal Law

Defendant Brian Horn was indicted by a grand jury for the first-degree murder of 12-year-old Justin Bloxom. Following the close of evidence at trial, a jury unanimously found defendant guilty as charged and, at the conclusion of the penalty phase of the trial, recommended the death sentence. In his appeal to the Louisiana Supreme Court, defendant raised seventy assignments of error. Finding merit only in defendant’s assignment of error asserting a violation of his Sixth Amendment right to counsel, the Court vacated defendant’s conviction and sentence and remanded this matter to the district court for a new trial.

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US Court of Appeals for the Fifth Circuit Opinions
DeVoss v. Southwest Airlines Co.

Docket: 17-11462
Opinion Date: September 8, 2018
Judge: Jennifer Walker Elrod
Areas of Law: Labor & Employment Law, Family Law

The Fifth Circuit affirmed the district court's grant of summary judgment for Southwest in an action filed by plaintiff under the Family Medical Leave Act (FMLA), alleging claims of interference and retaliation. The court held that the district court correctly determined that plaintiff failed to raise a genuine issue of material fact as to whether she provided the required notice to her employer to sustain her FMLA claims. Even if plaintiff had made a prima facie showing for her FMLA interference claim, she was still required, and failed, to raise a genuine issue of material fact as to whether Southwest's proffered nondiscriminatory reason for terminating her employment was merely pretextual.

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US Court of Appeals for the Fifth Circuit Opinions
United States ex rel. Vaughn v. United Biologics, LLC

Docket: 17-20389
Opinion Date: September 7, 2018
Judge: Edith Brown Clement
Areas of Law: Civil Procedure, Government & Administrative Law

The Fifth Circuit affirmed the district court's dismissal with prejudice as to relators and without prejudice as to the Government in an action under the False Claims Act (FCA). The court held that the district court did not err by dismissing the Government without prejudice when relators sought to abandon their claims. The court explained that relators acted on purely private interests and the Government, even one that chose not to intervene, should not be bound by that decision, because it was powerless to vindicate the public's interests in other actions that may have a stronger basis or a relator more able to shoulder the burdens of litigation. The court rejected United's remaining claims regarding relators' voluntary dismissal and held that the district court did not abuse its discretion.

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US Court of Appeals for the Fifth Circuit Opinions
Black v. Davis

Docket: 16-10159
Opinion Date: September 5, 2018
Judge: Leslie Southwick
Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Fifth Circuit vacated a certificate of appealability (COA) on two issues and dismissed the appeal. The court held that it had no jurisdiction to issue a COA on an issue in which the district court did not deny a COA. In this case, petitioner did not present to the district court, in any manner identifiable by that court, a claim that he was constructively denied counsel. Therefore, the district court did not consider the Cronic issues and thus the COA was granted without jurisdiction.

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US Court of Appeals for the Fifth Circuit Opinions
United States v. Fuentes-Canales

Docket: 15-41476
Opinion Date: August 30, 2018
Judge: Priscilla Richman Owen
Areas of Law: Criminal Law

The Fifth Circuit denied a petition for panel rehearing and withdrew the previous opinions, substituting the following opinion. The court held that, in light of United States v. Herrold, defendant's conviction for burglary did not qualify as a predicate for the district court's application of a 16 level sentencing enhancement under USSG 2L1.2(b)(1)(A)(ii). Herrold abrogated prior decisions of this court that held that a conviction under Texas Penal Code 30.03(a)(1) was generic burglary. The court held, however, that defendant failed to satisfy the fourth prong of plain error review, because the error did not seriously affect the fairness, integrity or public reputation of judicial proceedings.

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