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

Recently in Civil Rights Law Category

On Friday, the Fifth Circuit heard oral arguments on the issue of whether to issue an emergency stay of enforcement of Texas' abortion law pending resolution of the appeal.

Recall that, in August, a federal district judge held unconstitutional a part of the law requiring abortion clinics to adhere to the same standards as surgical clinics. The result of enforcing the law would be the closure of 13 of the state's 20 abortion clinics, according to The Associated Press.

The facts of this case are pretty simple: Allen Thompson was a detective in Waco, Texas. Thompson and two other detectives were found to have falsified their time sheets. Thompson, but not the other two detectives, was subjected to written restrictions. Thompson is black; the other two detectives aren't. Hopefully you can see the Title VII employment discrimination lawsuit coming.

A federal district court dismissed Thompson's suit on the ground that he had failed to allege an adverse employment action. Last week, the Fifth Circuit reversed, finding that restrictions on his job duties were the equivalent of a demotion.

More than 30 federal courts have ruled against state bans on gay marriage since Windsor. Until today, federal courts unanimously agreed that such bans were unconstitutional, regardless of the level of scrutiny applied -- rational basis, intermediate, or strict scrutiny.

U.S. District Court Judge Martin Leach-Cross Feldman (a Reagan appointee) made note of the unanimity before straying from the course of his colleagues, noting, "It would no doubt be celebrated to be in the company of the near-unanimity of the many other federal courts that have spoken to this pressing issue, if this Court were confident in the belief that those cases provide a correct guide."

Applying the rational basis test, Judge Feldman held that Louisiana had two interests at stake: linking children to intact families formed by biological parents and "safeguarding that fundamental social change, in this instance, is better cultivated through democratic consensus."

The obvious case is, well, obvious.

Shift Sergeant Rodricus Carltez Hurst worked in a Lee County, Mississippi jail. The operations manual at the jail stated that only the Sheriff or his "designee" could talk to the media, though the rule doesn't seem to have been enforced all that well -- the record contained multiple instances where Hurst had spoken to the media during his tenure at the jail.

This time, however, he provided information on a local college player, Chad Bumphis, who had been arrested on New Year's Day after a "big group fight" at a local bar. Sgt. Hurst was quoted in a local newspaper's coverage, which is still available online. Hurst was fired shortly thereafter for violating the Department's media relations policy.

Remember the good old days before Hobby Lobby, when free exercise cases didn't impact reproductive freedom? Boy, do I yearn for a little harmless fun with Santeria in Florida, Hare Krishnas at the airport, or nativity scenes at Christmas.

Prepare to be taken back in time as the Fifth Circuit upholds a Free Exercise challenge to the Migratory Bird Treaty Act, which the petitioners in McAllen Grace Brethren Church v. Salazar said prevented them from collecting bald eagle feathers to be used in religious ceremonies.

The decision that kept Mississippi's only remaining abortion clinic open, despite a state law requiring the doctors working there to have admitting privileges at nearby hospitals (which were unwilling to extend such privileges), was so unusual that we gave it the double-post treatment.

We first talked about the Fifth Circuit panel's majority opinion, which relied upon an ancient, and some might say, inapplicable school segregation case to block the Mississippi law -- a decision that was especially curious considering a substantively identical law out of Texas was approved by this same court barely a few months prior. We then covered Judge Emilio Garza's vigorous dissent.

Now? We're looking an an en banc request from Mississippi, one that we wouldn't be surprised to see granted.

Barry Bobbitt and his law firm, Sullo & Bobbitt P.L.L.C., had a great idea for getting new clients: send mailings to every single person who gets a ticket using information on the court's docket.

Alas, there was a problem: They had trouble accessing the records in time. Prospective clients were often required to respond to their ticket within 21 days, but the public records weren't available in most cases until as much as 30 days after the incident, reports Texas Lawyer.

The firm's solution? Argue "right of access" to the records within 24 hours. Let's see how the Fifth Circuit felt about it:

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.

Want to spend more time practicing, and less time advertising? Leave the marketing to the experts.

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 ... "

Want to spend more time practicing, and less time advertising? Leave the marketing to the experts.

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!).