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

July 2014 Archives

Judge Garza Really Disagrees With the Miss. Abortion-Clinic Opinion

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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Miss. Abortion Clinic Can Stay Open, Thanks to 1938 Segregation Case

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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Confederate Flag License Plates: Whose Speech Is It Anyway?

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!).

Arbitrating Arbitrability: What If It's a Truly Groundless Claim?

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.

Mexican Teen's Family Can Sue CBP Agent Over Cross-Border Shooting

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.