U.S. Fifth Circuit

U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog


A Fifth Circuit panel on Tuesday upheld an injunction against the enforcement of a Mississippi statute requiring physicians providing abortions to have admitting privileges at a nearby hospital as it applied to the state's last remaining clinic. It did so despite binding authority from earlier this year -- a different panel's decision upholding a substantially similar law out of Texas.

The majority justified the split from authority by pointing to a 1938 segregation-in-education case -- an Equal Protection holding, even though this is a Due Process dispute. Circuit Judge Emilio Garza was so dumbfounded by the majority's reasoning that his dissent more than doubles the length of the opinion -- from 18 to 37 pages long.

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Two states. Two laws. Both laws are pretty much the same: Abortion providers have to have admitting privileges at a nearby hospital. And despite everyone's expectations to the contrary, the Fifth Circuit just jumped in and issued a seemingly contradictory ruling, protecting a Mississippi abortion clinic.

How?

"Today, we follow the principle announced by the Supreme Court nearly fifty years before the right to an abortion was found in the penumbras of the Constitution ... "

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In case you missed it, the Fifth Circuit recently ruled that Texas has to honor the Sons of Confederate Veterans' request to issue Confederate Flag license plates. The majority's ruling was that the denial of the plate was a viewpoint-based restriction on free speech, and that Texas impermissibly dismissed the SCV's argument that the flag "is a symbol of sacrifice, independence, and Southern heritage," while crediting the view that "the Confederate flag is an inflammatory symbol of hate and oppression."

Hate. Pride. Rebel. Heritage. Whatever.

The real issue in this case, one that we've seen repeatedly, and which is pending in a Supreme Court petition for certiorari, is whether a license plate is government speech (restrict away!) or private speech (raise yer flags!).

A lady signs up for a checking account with a bank. She closes the account a year later. A few years after that, she's involved in a car accident, her attorney negotiates a settlement, and then embezzles the funds. Bad times.

She sues the attorney's bank, which she alleges ignored blatant signs that he was a scheming crook. The bank cries "arbitration!" based on her long-since closed checking account agreement from many years prior. Common sense says "puh-leaze," right? Unrelated disputes, unrelated accounts, and the arbitration agreement was signed in connection to a long-since closed account. Ridiculous.

This is one of the more interesting jurisdictional and constitutional questions you'll read about for a while: does the family of an unarmed Mexican national, shot across the border by a Border Patrol agent standing in the United States, have any cognizable claims whatsoever?

The answer, for now, is yes: the Fifth Circuit held, earlier this week, that the family could bring a Fifth Amendment claim against the agent himself, but no claims against his supervisors, the agency, or the U.S. government. The panel held that Border Patrol Agent Jesus Mesa Jr.'s conduct was "arbitrary," "shocked the conscience," and could for the basis for a Fifth Amendment claim, even though the victim, 15-year-old Sergio Adrian Hernandez Guereca was not a U.S. citizen and was killed in foreign territory.

You already know where this is going from the title: "harmless error," but last week's Boche-Perez decision, out of the Fifth Circuit, provides a stern warning to the overburdened law enforcement agencies near the Mexican Border: a little delay in processing might be fine, even a smidge beyond the six-hour "safe harbor" for prompt presentment of a criminal defendant to a magistrate judge.

But Rule 5 of the Federal Rules of Criminal Procedure requires that "[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge," and while there is that wiggle room, if authorities wait too long, they risk losing a confession and possibly a conviction.

In 2010, the U.S. Supreme Court made a curious ruling: it held that a federal ban on animal crush videos was unconstitutional.

Animal crush videos are despicable depictions of torture, dismemberment, and killing of animals, often in a sexually fetishized context. Few would argue that these videos deserve the protections of the First Amendment, but the Supreme Court ruled the way it did because of the text of the statute: an overly broad wording that could've been applied to hunting and husbandry.

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Yesterday, the Fifth Circuit made it official: The two child-porn restitution orders for Michael Wright and Doyle Paroline, which made it to the U.S. Supreme Court, are now vacated and remanded [PDF] to the district court. The two defendants were ordered to pay restitution for downloading child pornography featuring the victim, pseudonymously known as "Amy Unknown."

And while the two orders were brief and uneventful, it seems likely that these cases will return at some point. After all, not only are there causation issues and ever more defendants (the images are still widely traded online by pedophiles), but the Supreme Court barely helped the issue by vaguely ordering the lower courts to order "restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses."

Relative role. In an ever-increasing pool of hundreds, if not thousands of defendants. Expect a lot more litigation.

And then there were two (vacancies).

Congratulations to Judge Gregg Jeffrey Costa, who, yesterday, moved from the district court bench to the Fifth Circuit Court of Appeals after a unanimous confirmation. The filled seat leaves two more vacancies, one from mid-2012, the other from the end of last year, on the Fifth Circuit bench.

Who is this new, and highly uncontroversial judge? Read on, local practitioners:

British Petroleum made a bad bargain, a settlement that contained a formula that made it possible for parties not affected by the massive Deepwater Horizon oil spill disaster to gain windfall payouts. Though that formula was tweaked last year, and again this year, BP still wants to freeze the payouts.

Too bad, said the Fifth Circuit, both in a panel opinion and an en banc denial. Now, the oil company is reaching out to the Supreme Court in hopes that the nine justices will save the company from its own bad bargain, one that some argue has already been "fixed."