U.S. Fifth Circuit: March 2012 Archives
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March 2012 Archives

Dismissed: School Lacks 'Special Relationship' in Child Rape Case

The Fifth Circuit Court of Appeals made a great argument for homeschooling last week: Schools are not constitutionally required to protect students from rapists.

We’re not talking about teachers and principals taking extraordinary measures to wrest kids away from bad guys. The school in this case released a nine-year-old girl to Tommy Keyes — who was not authorized to sign her out from school — at least six times. Keyes took the girl from the school, raped her, and returned her to school. (He is now in prison.)

Who Dat Say They Gonna Fleece Dem Saints?

The New Orleans Saints have been rocked by plenty of bad news lately.

Last week, the NFL slapped the Louisiana franchise with the harshest penalties in league history for its illegal bounty program, and suspended head coach Sean Payton for a year. Then, the Fifth Circuit Court of Appeals announced that former punter Mitch Berger is stuck pursuing fraud claims against former deep snapper Kevin Houser in binding arbitration.

Since this is an appellate law blog, you already know which of these let-downs we have to cover.

'Not All Securities Frauds are Ponzi Schemes'

It’s easy to vilify the perpetrators and beneficiaries of securities fraud — the one percent living in their ivory towers with their golden toilets — so we usually don’t mind when the long arm of the law reaches into a bank account to retrieve ill-gotten gains.

It’s slightly harder to cheer for disgorgement, however, when the American Cancer Society (ACS) is being disgorged.

Texas 'Occupancy License' Housing Ordinance is Unconstitutional

The Fifth Circuit Court of Appeals ruled today that a Texas city housing ordinance that requires citizenship or lawful immigration status as a precondition to renting housing is unconstitutional.

The New Orleans-based appellate court concluded that the Farmers Branch, Texas ordinance's sole purpose was not to regulate housing, but to exclude undocumented aliens -- specifically Latinos -- from the city, which is an impermissible regulation of immigration.

Good Cop, Ambien Cop: 5th Cir OKs Dismissal of Sleepy Cop's Claim

Ambien and firearms don't mix. Considering that Drugs.com warns that patients who use the popular sleep aid should wait at least four hours -- or until fully awake -- before driving or doing anything that requires one to be awake and alert, most people would conclude that operating firearms while under the influence of Ambien is a poor life choice.

But if everyone reached that conclusion, we might not have today's employment and defamation decision from the Fifth Circuit Court of Appeals.

There's No Second Amendment Right to Bear a Specific Arm

Citizens have a Second Amendment right to bear arms in a visceral sense. According to the Fifth Circuit Court of Appeals, the Second Amendment does not extend to a right to bear a specific arm, reports The Wall Street Journal.

This week, the New Orleans-based court ruled that the Crescent City's police did not violate a man's Second Amendment rights by keeping his lawfully-seized gun after the district attorney refused charges against him.

Fifth Circuit Clears Path for Diesel Exhaust Study

Diesel exhaust is bad for you. Allegedly.

If you hadn't already guessed that based on the fact that diesel exhaust is a smelly cloud -- and smelly clouds are generally hard on the lungs -- then you should thank the Fifth Circuit Court of Appeals for green-lighting the release of a study (20 years in the making) from the National Cancer Institute (NCI) and the National Institute for Occupational Safety and Health (NIOSH).

Fifth Circuit Tosses Jury Award for Tourists Jailed During Katrina

It was bad to be one of the tourists stuck in New Orleans when Hurricane Katrina struck in 2005. It was even worse to be one of the tourists stuck in a New Orleans jail during the storm.

Robie Waganfeald and Paul Kunkel Jr., two Ohio tourists, were arrested for public drunkenness in New Orleans two days before Hurricane Katrina hit the Crescent City. They remained in jail for a month after the storm -- well beyond the 48-hour holding period limit.

Waganfeald and Kunkel sued Orleans Parish Sheriff Marlin Gusman for false imprisonment, and a jury awarded them over $650,000 in damages. Monday, the Fifth Circuit Court of Appeals tossed that award, finding that the storm emergency trumped the 48-hour rule, reports The Associated Press.

Holly Springs Now Known for Graceland Too, Anti-Church Ordinance

Until recently, Holly Springs, Miss.'s claim to fame was Graceland Too, Paul MacLeod's home-turned-Elvis-museum where you can view memorabilia and learn obscure Elvis facts 24/7.

Now, Holly Springs has the unusual distinction of being an anti-church city in the Bible Belt. And soon, the Fifth Circuit Court of Appeals could consider whether a city zoning ordinance that applies a more-restrictive set of requirements to churches seeking zoning approval violates the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the U.S. Constitution.

Fifth Circuit Katrina Suit: No Qualified Immunity for Corps Under FCA

The Fifth Circuit Court of Appeals ruled last week that the Army Corps of Engineers (Corps) is liable to property owners who suffered billions of dollars in damage during Hurricane Katrina, reports the Associated Press.

The court affirmed District Judge Stanwood Duvall's 2009 decision in the matter on Friday, finding that the Corps is not protected by qualified immunity under the Flood Control Act.

Nightclub Shareholder is not an Employer in FLSA Claim

Bartending isn't exactly a path to fame and fortune, but it can pay the bills. In our college days, the bartenders at our favorite bar -- which, admittedly, fell on the swankier end of the college-bar spectrum -- took in $500 in tips each night on home football game weekends. That's $500 on top of their 50-cent minimum wage, (or whatever the minimum wage was then).

No matter how lucrative the tips are, an employer must still pay a tipped employee a minimum wage, which is currently $2.13 for tipped employees. So who qualifies as an employer? This week, the Fifth Circuit Court of Appeals offered clarification on that point.