Recent Federal Fifth Circuit Cases of Interest to Cities

Note: Included cases are from March 1, 2024, through March 31, 2024.

Free Speech: Free Speech Coal., Inc. v. Paxton, 95 F.4th 263 (5th Cir. 2024). An adult industry trade association, domestic and foreign corporations that produced, sold, and hosted pornography, and individual adult content creator brought action (collectively the “plaintiffs”) alleging that the Texas legislation requiring commercial pornographic websites to verify the age of their visitors and to display health warnings about effects of consumption of pornography violated the First Amendment and was preempted by Communications Decency Act (CDA). The district court granted the plaintiffs’ motion for preliminary injunction, and the state appealed.

The Fifth Circuit affirmed in part and vacated in parting, holding that: (1) the proper standard for review of whether age-verification requirement violated the First Amendment is rational basis; (2) the age-verification requirement did not violate First Amendment; (3) the health warning requirement was regulation of commercial speech for First Amendment purposes, and plaintiffs were likely to succeed on the merits of their claim that the health warning requirement violated the First Amendment; (4) the CDA did not preempt the Texas legislation; and (5) because plaintiffs faced irreparable harm in absence of preliminary injunction, the balance of harms and the public interest weighed in favor of granting a preliminary injunction.

Civil Rights: Espinal v. City of Houston, No. 23-20075, 2024 WL 981839 (5th Cir. Mar. 7, 2024).   Following a heated interaction with a Houston police officer, security guard Maximo Espinal was arrested for aggravated assault. Though a grand jury subsequently indicted Espinal, the charges were later dropped. Espinal then sued the officers involved and the City of Houston (collectively the “defendants”), alleging they subjected him to false arrest, malicious prosecution, and assault, violating the Fourth and Fourteenth Amendments and state law. The district court granted the defendants’ motion to dismiss all of Espinal’s claims based on qualified immunity and immunity under Texas law.

The Fifth Circuit affirmed, holding that: (1) the independent intermediary doctrine shielded officers from liability under Section 1983 for false arrest; (2) the officers were not cause of security guard’s prosecution; and (3) it was not clearly established in 2020 that there was a Fourth Amendment right to be free from malicious prosecution.

Civil Rights: Woods v. Harris Cnty., Tex., No. 22-20482, 2024 WL 1174185 (5th Cir. Mar. 19, 2024). This is a civil-rights action arising from the fatal shooting of Thomas by Brewer, a deputy for Harris County, Texas. The deputy was at an intersection when he observed Thomas, who was unarmed and with his pants down to his ankles, banging his hands on a vehicle’s hood, prompting the driver to exit the vehicle and confront Thomas.  The deputy exited his vehicle and Thomas immediately pointed at him and began to walk quickly towards the deputy.  Thomas continued to approach the deputy despite his multiple orders to get down and warnings that he would shoot him.  A bystander’s cell phone video captured the deputy steadily retreating as Thomas approached him.  Thomas was four feet away from the deputy when he was shot in the lower chest area and died at the scene. Thomas’s autopsy’s toxicology report detected phencyclidine (PCP) and substances associated with marijuana in his blood.

Members of Thomas’s family brought claims against the deputy under Section 1983 for excessive force and under state law for wrongful death, survival, negligence, and gross negligence. They also brought claims against the county under Monell, the Americans with Disabilities Act, and the Rehabilitation Act. The district court granted the deputy’s and county’s motion for summary judgement.

The Fifth Circuit determined that the deputy had qualified immunity as his conduct did not amount to a constitutionally right that is clearly established.   The court also found that the plaintiffs’ claims failed under Monell because: (1) the plaintiffs’ failed to show that the county was deliberately indifferent with respect to any failure to review use-of-force policies; (2) uncontroverted evidence shows that the county did equip officers with less-lethal force options (specifically, a taser); (3) plaintiffs failed to demonstrate a pattern of sufficiently similar excessive-force violations or a pattern of failing to render medical aid; and (4) plaintiffs failed to show that the deputy was inadequately trained or that the county was deliberately indifferent with respect to his training. Finally, the court found that the plaintiffs failed to show a prima facie ADA claim.