Fifth Circuit – Overlawyered

Doe v. Mckesson: liability for foreseeable injury from unlawful protest

Walter Olson — Thu, 02 Jan 2020 11:00:11 +0000

Racial activist Deray Mckesson led a Black Lives Matter demonstration in Baton Rouge, Louisiana that illegally occupied a roadway; in the ensuing confrontations, an unidentified person threw a missile that seriously injured a police officer. Can the officer sue Mckesson for lawbreaking acts that foreseeably created dangerous conditions that led to his injury?

In August a panel of the Fifth Circuit ruled unanimously that the First Amendment did not block such a suit; earlier this month the panel reissued an altered opinion after one of its members, Judge Don Willett, changed his mind and wrote a partial dissent finding Mckesson to have a First Amendment defense. [Jonathan Adler, Volokh Conspiracy] Central to the constitutional issues at play here is the 1982 case of NAACP v. Claiborne Hardware, in which a unanimous Supreme Court held that the First Amendment can bar the imposition of civil liability on organizers of protests even when some participants commit, or threaten, acts of violence.

Eugene Volokh has now written a series of posts on the case. Part I asks: why didn’t Mckesson’s lawyers invoke doctrines precluding recovery by rescue professionals (“firefighters’ rule”) to bar the officer’s claim? Part II is on the tort law side of the case (independent of the First Amendment angle), and so far as I can see Volokh and Willett reach different conclusions. In Part III, Volokh addresses the First Amendment issues, in the light of precedents like Claiborne Hardware. While the analysis is not a simple one, Volokh is “inclined to say that the First Amendment doesn’t require” immunity for foreseeable civil harms resulting from unlawful blocking of public roads as a protest.

Tags: Fifth Circuit, firefighters rule, First Amendment

Doe v. Mckesson: liability for foreseeable injury from unlawful protest is a post from Overlawyered - Chronicling the high cost of our legal system

Fifth Circuit: basing judges’ fund on fines and fees violates due process

Walter Olson — Wed, 04 Sep 2019 09:59:44 +0000

Orleans Parish, Louisiana (= county, in this case coterminous with the City of New Orleans) funnels the revenue from many criminal fines and fees into a judicial services fund which, while it does not pay judges’ salaries, does cover many related expenses including staff salaries, conferences and office supplies. Judges themselves help determine the volume of inflow to the fund by their rulings in cases. Now a unanimous Fifth Circuit panel has ruled that given the fund’s substantial dependence on such revenue, the parish “failed to provide a neutral forum” and thus violated defendants’ constitutional right to due process [Nick Sibilla/Forbes, ABA Journal; opinion in Cain v. White]

Tags: Fifth Circuit, judges, law enforcement for profit, Louisiana, New Orleans, petty fines and fees

Fifth Circuit: basing judges’ fund on fines and fees violates due process is a post from Overlawyered - Chronicling the high cost of our legal system

Fifth Circuit: Apple not liable for crash of driver reading texts

Walter Olson — Thu, 17 Jan 2019 11:02:27 +0000

“The U.S. Court of Appeals for the Fifth Circuit has a rejected a products liability claim against Apple alleging that a woman’s neurobiological response to looking at a text message on her iPhone 5 while behind the wheel was the cause of a car crash that killed two people and paralyzed a child.” [John Council/Texas Lawyer, Tim Cushing/TechDirt; Meador v. Apple]

Tags: Apple, cellphones, deep pocket, Fifth Circuit

Fifth Circuit: Apple not liable for crash of driver reading texts is a post from Overlawyered - Chronicling the high cost of our legal system

December 5 roundup

Walter Olson — Wed, 05 Dec 2018 11:01:11 +0000

“An important win for property owners”: Supreme Court rules 8-0 that protected species habitat doesn’t include tracts containing no actual dusty gopher frogs and not inhabitable by them absent modification [Roger Pilon, George Will, earlier on Weyerhaeuser v. U.S. Fish & Wildlife Service, Cato Daily Podcast with Holly Fretwell and Caleb Brown (“The Frog Never Had a Chance”)]
Proposed revision of federal Violence Against Women Act (VAWA) would expand definition of domestic violence to include nonviolent “verbal, emotional, economic, or technological” abuse. Vagueness only the start of the problems here [Wendy McElroy, The Hill]
Bad ideas endorsed by the American Bar Association, part 3,972: laws requiring landlords to take Section 8 tenants [ABA Journal; earlier on “source of income discrimination” laws]
Minneapolis “Healthy Foods Ordinance” drives up costs for convenience stores, worsens food waste, pressures ethnic grocers into Anglo formats [Christian Britschgi]
New York Attorney General-elect Letitia (Tish) James has been zealous about suit-filing in recent years, quality another matter [Scott Greenfield]
“Plaintiff wins $1,000 in statutory damages for technical violation of Fair Debt Collection Practices Act. (Debt collector illegally used the words ‘credit bureau’ in its business name.) After plaintiff’s lawyers seek $130k in fees, district court awards them the princely sum of $0. Fifth Circuit: Just so. While fees are ordinarily mandatory, ‘special circumstances’ obtain here: The record suggests that the plaintiff colluded with her lawyers to generate this ‘outrageous’ fee-heavy lawsuit in Texas instead of in her home state of Louisiana.” [John Kenneth Ross, IJ “Short Circuit” on Davis v. Credit Bureau of the South]

Tags: bar associations, debtor-creditor law, domestic violence, endangered species, Fifth Circuit, housing discrimination, obesity

December 5 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

October 11 roundup

Walter Olson — Wed, 11 Oct 2017 10:08:49 +0000

Newspaper execs who faked circulation numbers ended up copping pleas. Law deans who fudged employment stats don’t need to worry, do they? [Morgan Cloud and George Shepherd via Paul Caron]
Back in The Excuse Factory I wrote about the unplanned consequences of age discrimination law and the prohibition of automatic retirement ages and it’s nice to see a wider consensus forming even if nothing, absolutely nothing, ever gets done to fix it [Saul Levmore and Martha Nussbaum, WSJ]
Fair use: “Man who sued over Facebook childbirth livestream slapped with $120k in fees” [Joe Mullin, Ars Technica]
“Stop Faking Service Dogs: Loving your pet too much is putting people with real disabilities at risk” [Wes Siler, Outside, our tag on service animals] More: Michael Ollove, Stateline;
Fifth Circuit reverses $663 million Eastern District of Texas False Claims Act award over sale of guardrails to highway authorities [U.S. ex rel. Harman v. Trinity Industries, Mark Curriden/Texas Lawbook, our earlier critical commentary]
“Why Conservatives Should not Sic Antitrust on Silicon Valley” [John McGinnis, Liberty and Law]

Tags: age discrimination, antitrust, Fifth Circuit, law schools, qui tam, service animals, technology, YouTube

October 11 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

“Can the police retaliate against a citizen for refusing to answer police questions?”

Walter Olson — Fri, 21 Apr 2017 04:15:07 +0000

Orin Kerr at Volokh Conspiracy sorts through the complications of a Fifth Circuit case that has arguable Fifth, Fourth, and First Amendment angles.

Tags: constitutional law, Fifth Circuit, First Amendment, Fourth Amendment

“Can the police retaliate against a citizen for refusing to answer police questions?” is a post from Overlawyered - Chronicling the high cost of our legal system

March 29 roundup

Walter Olson — Wed, 29 Mar 2017 04:05:45 +0000

“SEAT Act: Top Senators Sponsoring Bill to Outlaw Low Cost Carriers, Raise Airfares” [Gary Leff, View from the Wing]
“Trump’s Safe and Sane ‘Regulatory Reform’ Idea” [Cass Sunstein/Bloomberg, earlier Sunstein on Trump regulatory initiatives]
Changing law and economics shape street protest [Tyler Cowen] Arizona’s bad idea on protestors involves racketeering charges, forfeiture, and more [Coyote]
“Rights And Reality: Georgia Cop Jails Ex-Wife For Facebook Gripe” [Ken White, Popehat]
“Opponents of same-sex marriage cynically…manufacture[d] a baseless controversy in the Texas Supreme Court” to attack City of Houston’s spousal benefits, but as the Hon. Jerry Smith of the Fifth Circuit had already stated in persuasive guidance, Obergefell “is the law of the land.” [Mark Pulliam, Law and Liberty; a second view from Josh Blackman]
Idea making some headway: adapting use of class action and similar aggregate litigation procedures to administrative adjudication [Sergio Campos, Jotwell]

Tags: airlines, are you feeling protected?, Arizona, class actions, Fifth Circuit, Houston, police, regulation and its reform, same-sex marriage, Texas

March 29 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Fifth Circuit: no cheers for cheerleader suit

Walter Olson — Sun, 05 Mar 2017 17:02:29 +0000

Missed this one from 2011, with Judge Jerry Smith writing for a Fifth Circuit panel: “Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court. We find no error and affirm.” [Sanches v. Carrollton-Farmers Branch Independent School District]

Tags: cheerleading, Fifth Circuit

Fifth Circuit: no cheers for cheerleader suit is a post from Overlawyered - Chronicling the high cost of our legal system

Gate Guard v. Perez: the sequel

Walter Olson — Fri, 11 Mar 2016 05:05:06 +0000

Last month we told the story of a Texas business that managed to clobber the U.S. Department of Labor in court over its challenge to the company’s use of independent contractors. The Fifth Circuit granted the company a substantial award in legal fees to punish the department for its bad faith in litigation.

Now, Coyote relates a personal encounter in which he runs into a man at a Houston steakhouse who turned out to be the owner of that company, Gate Guard:

I refused to believe him until he showed me a picture of him with the check. He had had it blown up into one of those huge golf tournament checks. I told him he was my hero and tried to buy him drinks the rest of the night, but when I got up to leave, I found he had actually paid my tab. I drank that evening on the Department of Labor’s dime, I guess.

Tags: Fifth Circuit, Houston, sanctions, wage and hour suits

Gate Guard v. Perez: the sequel is a post from Overlawyered - Chronicling the high cost of our legal system

Ninth Circuit raps prosecutors’ use of press clip

Walter Olson — Sat, 22 Aug 2015 15:50:54 +0000

Was the L.A. Times’s reporting manipulated in hopes of helping federal prosecutors win a case? If so, the effort sure backfired [Ken at Popehat, with commentary on the “too-cozy too-credulous relationship between law enforcement and the press”] And from the Fifth Circuit, also on prosecutorial misconduct: “The online anonymous postings, whether the product of lone wolf commenters or an informal propaganda campaign, gave the prosecution a tool for public castigation of the defendants that it could not have used against them otherwise, and in so doing deprived them of a fair trial.” [ABA Journal]

Tags: Fifth Circuit, Ninth Circuit, prosecutorial abuse

Ninth Circuit raps prosecutors’ use of press clip is a post from Overlawyered - Chronicling the high cost of our legal system