Petitions to the
United States Supreme Court
Johnson v. Texas (21-532)
Amicus brief from the Harris County Public Defender’s Office
Amicus brief from the National Association for Public Defense
Government actors seized medical records from a doctor without a warrant.
The Fifth Circuit held the officers were entitled to qualified immunity.
Notable dissent from Judge (and former Texas Supreme Court Justice) Willett - at p. 25.
“[D]eeper study has convinced me that the officials' constitutional misstep violated clearly established law… [and] has reaffirmed my broader conviction that the judge-made immunity regime ought not be immune from thoughtful reappraisal.”
“Everyone agrees [Dr. Zadeh’s] Fourth Amendment rights were violated. But owing to a legal deus ex machina—the ‘clearly established’ prong of qualified-immunity analysis—the violation eludes vindication. At first I agreed with the panel majority that the government violated the law but not clearly established law. I was wrong. Beyond this case, though, I must restate my broader unease with the real-world functioning of modern immunity practice.”
“[M]any courts grant immunity without first determining whether the challenged behavior violates the Constitution. They avoid scrutinizing the alleged offense by skipping to the simpler second prong: no factually analogous precedent. Forgoing a knotty constitutional inquiry makes for easier sledding, no doubt. But the inexorable result is ‘constitutional stagnation’ — fewer courts establishing law at all, much less clearly doing so. Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because no one's answered them before. Courts then rely on that judicial silence to conclude there's no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads government wins, tails plaintiff loses.”
Jones v. Eder, 19-20223 (5th Cir.)
Can police officers reasonably arrest the People inside their homes for possession of controlled substances when residents of the home have prescriptions therefor?
“Yes” (Lake, J.), based largely upon a decision from the Texas Court of Criminal Appeals. See https://law.justia.com/cases/texas/court-of-criminal-appeals/1977/54976-3.html
I strenuously disagree on numerous grounds, including the text of the Fourth Amendment and the Interstate Commerce Clause of the United States Constitution
Motion for Rehearing En Banc (denied, December 13, 2019)
Thomas v. Williams (17-1641)
Notable dissent from Judge Dennis at the Fifth Circuit accusing the majority of:
misapprehending the summary judgment standard and
making “patently untrue” findings
This case involved:
an alleged confidential informant
who was never identified
about whom no information was produced and
to lying in his affidavit about what he saw the informant do (at 8-11) and
“that since the complex occupancy is ALL BLACK he felt that he walking through the complex being a WHITE MALE would have jeopardized the investigation.” (at 9-10 & n. 3, emphases added)
Comments
Every court which permitted this result ignored the fact that the underlying inadmissible facts were hearsay from an unidentified and unproduced confidential informant utilized by the Houston Police Department (see generally, Petition at 30-35).
Second, comparable purported hearsay from an unidentified (and unfindable) confidential informant is what led to the Harding Street murders in Houston.
Third, the Fifth Circuit improperly fabricated an incorrect fact to support its conclusion (thereby evidencing the importance of selecting honest people for the judiciary). See Petition, at 27-28; see also Opinion, at 12 & n. 5
Lilly v. McLennan County (19-1223)
Question presented: Are government actors immune under the doctrine of qualified immunity for failing to treat an inmate suffering from a life-threatening condition (i.e., a myocardial infarction) despite having knowledge of her condition for more than three hours prior to her death?
Apparently, “yes”.
A Texas Ranger conducted an extensive report and attempted (albeit unsuccessfully) to have the jail’s medical doctor indicted by a grand jury.
Barry v. Freshour (18-1483)
Question presented: Must doctors have an ownership interest in their medical practices in order to have cognizable privacy or property interests in medical records that (a) they are required by state law to maintain, (b) are subpoenaed from them personally, and (c) are being used against them in administrative proceedings?
Relevant documents (in chronological order)