In Ramirez v. Granado, a Fifth Circuit panel reversed a summary judgment on qualified immunity in a police-shooting case, producing a vigorous dispute between a concurrence and dissent.

The majority found genuine issues for trial, reasoning that a jury could infer that the decedent posed no immediate threat when the fatal shots were fired as he fled with his back turned. It highlighted that, after an initial miss, the officer fired six more rounds “without warning,” four striking “the back of [the decedent’s] head and shoulders,” and then asked, “did he have a gun?”—evidence a jury could use to reject a claim of an imminent threat. erception..

The dissent read the relevant videos and radio traffic as yielding one, dispositive narrative: “Here are the undisputed (and indisputable) facts,” including a 120‑mph chase into a residential area, an “armed and dangerous” advisory, the suspect “holding a gun,” and an eight‑second window from “he has a gun!” to the final shot—concluding that denying qualified immunity is “wrong.” It deemed the “did he have a gun?” remark “astonishingly irrelevant” because the officer learned the occupants were armed and dangerous and nothing “suggest[s] Officer Granado was lying.”

Legally, the majority (and concurrence) emphasize the “totality of the circumstances,” the predominance of the threat‑of‑harm factor once deadly force is used, and that a jury could find the justification had “ceased” by the time shots were fired at a suspect running away. The concurrence added that the dissent’s “mile‑wide” citations involve “overt‑threat” or “furtive‑reach” cases that don’t fit this record, when viewed favorably to the plaintiff (as it saw the record, showing continuous visual contact, no commands to disarm, no pointing, and back‑to‑front wound paths).

The dissent, based on its view of the video/radio evidence, reasoned that qualified immunity applies absent a case “that squarely governs” these “specific facts”: “It is the majority, the concurrence, and [the plaintiff’s] job to point to a case that squarely governs this one. It is not mine.” The dissent cited two Fifth Circuit opinions about firearms that it saw as “materially indistinguishable” from the facts of this case.

En banc review seems likely; serious consideration of en banc review, a certainty. No. 24-10755; Dec. 10, 2025.

Jones v. City of Hutto reversed a judgment for a former mayor based on 42 § 1981, while also describing the limits for municipal liability for breach of contract claims,

On the contract issue, the Court noted that the Texas Local Government Code waives governmental immunity for certain written contracts, permitting a breach claim against a city, and held that a municipality’s attempted rescission of a valid separation agreement constituted a breach even where the employee retained the severance payment. At the same time, the Court reminded that Section 271.153(b) bars recovery of consequential damages such as lost profits or reputational harm. Here, the plaintiff “pursued and prevailed on his right to retain the separation payment made under the contract,” which was sufficient to support a potential award of attorney’s fees, but not to open the door to consequential losses.

The Court also clarified attribution principles relevant to contract liability. Disparaging statements by individual councilmembers did not establish breach by the municipality because they were not actions of the city or the council as a body; conversely, a formal council resolution purporting to rescind the agreement was attributable to the city and was the breach that impaired contractual rights. No. 24-50096, Oct. 7, 2025.

Returning to the Fifth Circuit after the Supreme Court rejected the Circuit’s “moment-of-threat” doctrine, the panel in Barnes v. Felix now applied a totality-of-the-circumstances analysis.

The Court considered the events leading up to the shooting: the deputy stopped a vehicle for outstanding toll violations, and during the stop, the driver ignored commands, grabbed his keys, and attempted to flee by driving away on a busy freeway. The deputy, partially inside the moving vehicle, fired his weapon as the car accelerated. The Court held that the deputy’s use of deadly force did not violate the Fourth Amendment because his conduct was not objectively unreasonable given the immediate risks to himself and the public posed by the suspect’s sudden flight.

On that basis, the Court applied qualified immunity, concluding that “the plaintiffs have failed to satisfy the first step of the qualified-immunity analysis—raising a dispute of material fact on whether [the decedent’s] Fourth Amendment right to be free from excessive force was violated ….” No. 22-20519, Sep. 18, 2025.

The first two paragraphs elegantly place this dispute within many decades of the legal system’s interaction with the automobile:

“As advances of the genre of the Morse code, with its twenty-six letters and ten numerals, railroads, and flight challenged the social order and perforce its legal regime, today we repair to the horseless carriage with its then unimaginable role in daily life, and as with each of the past challenges to the essential task of policing its usage.

From a unanimous Supreme Court came pretextual stops, enabling police officers to stop an automobile upon probable cause that any traffic violation has occurred, even if the stop is in search of another violation. Even before that, the Court, aware of the “inordinate risk confronting an officer as he approaches a person seated in a vehicle,” had granted officers the right to order the driver out of the vehicle. The import of these decisions cannot be understated, as traffic stops are among the most common interactions the public has with police.” (citations omitted)

Judge Roy Bean famously considered himself to be “The Law West of the Pecos” (right). Judge Bean would have been at home in Jones v. King, a dispute about whether certain would-be voters actually resided in remote Loving County – the least populated county in the US.

The Fifth Circuit held that presiding over the general assembly of prospective jurors—including qualifying jurors and hearing excuses or exemptions—is a judicial act protected by absolute immunity. (The plaintiffs contended that they had been unfairly treated after appearing for examination as potential jurors.) The Court emphasized that the “touchstone” of the analysis is whether the judge is “resolving disputes between parties” or “authoritatively adjudicating private rights,” and that the act of qualifying a venire and hearing excuses inherently involves the exercise of judicial discretion.A dissent saw the judge’s activity as administrative in nature. No. 23-50850, Aug. 1, 2025

The Fifth Circuit’s “moment of threat” doctrine in police-force cases is no more after this morning’s reversal in Barnes v. Felix.

A breach-of-contract suit against a governmental entity led to these holdings about how the district court handled immunity defenses:

The district court thus made two errors. First, the district court held that Texas’s state-law immunity from suit deprived it of subject matter jurisdiction. But state-created immunities do not and cannot limit the jurisdiction of federal courts. If these state-law immunities apply at all in federal court under the Erie doctrine, they must be treated as non-jurisdictional, merits-based defenses. 

The second error flows directly from the first. The district court dismissed for lack of jurisdiction—without addressing the two other bases for dismissal that really do implicate subject matter jurisdiction. State sovereign immunity and the absence of complete diversity—unlike state-law immunities—are jurisdictional defects. And either of the former two problems would require a without-prejudice jurisdictional dismissal. Such jurisdictional problems must be addressed first, before the district court considers any merits-based defenses.

Anthology, Inc. v. Tarrant County College Dist., No. 24-10630-CV (May 2, 2025).

In Ambler v. Nissen, a Fifth Circuit panel dismissed a qualified-immunity appeal because of the materiality of the fact issues presented. The full court denied en banc review in a close vote:

Phillips v. ERCOT addresses a dispute between ERCOT and the liquidating trust of Entrust Energy, a supplier of electriciity to end users, who went into bankruptcy after receiving a large bill in the wake of Winter Storm Uri. In resolving this dispute, the Fifth Circuit held:

• No immunity for ERCOT. The six relevant factors were “an even split,” but because ‘our court has indicated repeatedly that factor 2 [the source of the entity’s funding] is the most important, ERCOT is not an arm of Texas and not entitled to immunity in federal court.”
• Abstention. Burford abstention was required because, inter alia: “federal adjudication of the [programs at issue] risks dramatic intrusion into Texas’s specialized system of electric utility regulation and would disrupt Texas’s efforts to establish a coherent and uniform policy for electric utilities. Under the specific circumstances of this case, the fact that the takings claim arises under federal law and that Texas does not provide any sort of specialized system for review does not support hearing the claim.” (footnote omittted).

No. 22-20603 (April 29, 2024).

Contentious litigation about the governance of the Jackson Municipal Airport again reached the Fifth Circuit in Jackson Municipal Airport Auth. v. Harkins, No. 21-60312 (May 10, 2023). The Court accepted jurisdiction in a document-production dispute for reasons unique to governmental privilege, but its waiver reasoning is instructive more broadly:

As relevant here, communications with third parties outside the legislature might still be within the sphere of “legitimate legislative activity” if the communication bears on potential legislation. Consequently, some communications with third parties, such as private communications with advocacy groups, are protected by legislative privilege when they are “a part and parcel of the modern legislative procedures through which legislators receive information possibly bearing on the legislation they are to consider.” Thus, we disagree with the district court’s broad pronouncement that the Legislators waived their legislative privilege for any documents or information that had been shared with third parties.

No 21-60312 (May 10, 2023) (citations omitted).

In a case about a school district’s liabilty for a student’s assault of another student, the Fifth Circuit declined to recognize a “state-created danger” exception to district officials’ immunity. The Court summarized:

     The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” “The Due Process Clause . . . does not, as a general matter, require the government to protect its citizens from the acts of private actors.” We have recognized just one exception to this general rule: “when [a] ‘special relationship’ between the individual and the state imposes upon the state a constitutional duty to protect that individual from known threats of harm by private actors.” However, “a number of our sister circuits have adopted a ‘state-created danger’ exception to the general rule, under which a state actor who knowingly places a citizen in danger may be accountable for the foreseeable injuries that result.” … 

     The problem for [Plaintiff] is that “the Fifth Circuit has never recognized th[e] ‘state-created-danger’ exception.” In our published, and thus binding, caselaw, “[w]e have repeatedly declined to recognize the statecreated danger doctrine.” For this reason, [Plaintiff] “ha[s] not demonstrated a clearly established substantive due process right on the facts [she] allege[s].” The district court thus erred in denying qualified immunity to Appellants.

Fisher v. Moore, No. 21-20553-CV (March 16, 2023) (footnotes omitted).

The recent Crane v. City of Arlington opinion declined to dismiss a traffic-stop case on qualified immunity grounds, noting significant factual dispute about how the situation escalated into a tragic shooting. No. 21-10644 (revised Oct. 4, 2022). The Dallas Morning News covered the case, and I did a lengthy interview with Fox 4 in Dallas about it.

Preble-Rich, a Haitian company, had a contract with a Haitian government agency to deliver fuel. A payment dispute developed and Preble-Rich started an arbitration in New York, pursuant to a broad clause in the parties’ contract (“In the event of a dispute between the [Parties] under this Contract, the dispute shall be submitted by either party to arbitration in New York. … The decision of the arbitrators shall be final, conclusive and binding on all Parties. Judgment upon such award may be entered in any court of competent jurisdiction.”). 

Preble-Rich obtained “a partial final award of security” from the arbitration panel requiring the posting of $23 million in security. Litigation to enforce that award led to Preble-Rish Haiti, S.A. v. Republic of Haiti, No. 22-20221, which held that the above clause was not an explicit waiver of immunity from attachment as required by the Foreign Sovereign Immunity Act, 28 U.S.C. § 1610(d). “The arbitration clause is relevant to whether BMPAD waived its sovereign immunity from suit generally, but a waiver of immunity from suit has ‘no bearing upon the question of immunity from prejudgment attachment.’” (citation omitted).

Strong feelings were voiced about the Fifth Circuit’s panel opinion in Ramirez v. Guardarrama, 844 F. App’x 710 (5th Cir. 2021) (per curiam). The vote against en banc review was 13-4, with several opinions:

• Judge Jolly, who had been on the panel that found no Fourth Amendment violation, concurred with denial and observed: “The unanimous panel opinion also explains why we cannot quarterback from our Delphic shrines, three years later, the split-second decision making required of these officers in response to a suicidal man (1) doused in gasoline, (2) reportedly high on methamphetamine, (3) screaming nonsense, (4) holding a lighter, and (5) threatening to set himself on fire and to burn down the home, occupied by six people, which he had earlier covered in gasoline.”
• Judge Ho, joined by Judges Jolly and Jones, concurred and further observed:       “[H]ow can a constitutional violation be ‘obvious,’ ‘egregious,’ and ‘conscience-shocking,’ when the dissent can’t tell the officers what they should have done differently to keep people safe?”
• Judge Oldham (also on the panel), joined by all of the above and Judge Engelhardt, reviewed the Fourth Amendment claim through a Twombly lens and concluded: “[T]he Fourth Amendment is not an antidote to tragedy. It’s a cornerstone of our Bill of Rights, with an august history and profound original meaning. We cheapen it when we treat it like a chapter from Prosser & Keeton. And we transmogrify it beyond recognition when we say officers act ‘unreasonably’ without any effort to say what a reasonable officer would’ve done.”
• Judge Smith dissented, arguing that this case provided an opportunity to revisit another recent en banc opinion.
• Judge Willett dissented, joined by Judges Graves and Higginson, pointing to recent Supreme Court cases that rejected qualified-immunity claims and observing: “The complaint alleges a plausible Fourth Amendment violation, and an obvious one at that. How is it reasonable—more accurately, not plausibly unreasonable—to set someone on fire to prevent him from setting himself on fire?”

In Williams v. Reeves, 953 F.3d 729 (5th Cir. 2020), “[t]he plaintiffs in this lawsuit are low-income African-American women whose children attend public schools in Mississippi. They filed suit against multiple state officials in 2017, alleging that the current version of the Mississippi Constitution violates the ‘school rights and privileges’ condition of the [1870] Mississippi Readmission Act.”  A Fifth Circuit panel found that ” a portion of the relief plaintiffs seek is prohibited by the Eleventh Amendment,” but that “the lawsuit also partially seeks relief that satisfies the Ex parte Young exception to sovereign immunity.” The full court recently denied en banc review by an 8-9 vote; the votes are described below, and they are identical to the split in another recent vote. (Red and blue show the political party of the nominating President, and an * indicates former service as a trial judge.)

The Fifth Circuit found that the Ex Parte Young exception to Eleventh-Amendment immunity (Mr. Young appears to the right) did not apply to the Texas Attorney General’s potential enforcement of a statute that was in conflict with a City of Austin ordinance: “[N]one of the cases the City cites to demonstrate the Attorney General’s ‘habit’ of intervening in suits involving municipal ordinances to ‘enforce the supremacy of state law’ have any overlapping facts with this case or are even remotely related to the Ordinance. And the mere fact that the Attorney General has the authority to enforce § 250.007 cannot be said to ‘constrain’ the City from enforcing the Ordinance. The City simply provides no evidence that the Attorney General may “similarly bring a proceeding” to enforce § 250.007: that he has chosen to intervene to defend different statutes under different circumstances does not show that he is likely to do the same here. . . . Thus, we find that Attorney General Paxton lacks the requisite ‘connection to the enforcement’ of § 250.007.” City of Austin v. Paxton, No. 18-50646 (Dec. 4, 2019).

• In the 1200s, Henry III was protected from suit by sovereign immunity, as chronicled by the prolific Bracton;
• In the 1780s, “Brutus,” the Anti-Federalist, debated with Alexander Hamilton about whether the Constitution would undermine sovereign immunity by allowing debilitating federal-court lawsuits against states about Revolutionary War debts;
• The Eleventh Amendment was ratified in 1796 to address those concerns and prevent, inter alia, federal-court suits “prosecuted against one of the United States by Citizens of another State . . . .” (emphasis added);
• Some time later, Kathie Cutrer sued the Tarrant County Local Workforce Development Board, in federal court under federal law, for discriminating against her because of severe back problems;
• The Fifth Circuit reversed the dismissal of her claim on sovereign-immunity grounds, observing, inter alia: “Because Tarrant County, the City of Arlington, and the City of Fort Worth are not the State of Texas, they obviously cannot confer the State’s sovereign immunity upon a board by interlocal agreement. They can’t give what they don’t have.” (emphasis added). Cutrer v. Tarrant County Local Workforce Development Board, No. 18-11092 (Nov. 22, 2019) (Oldham J., joined in the judgment only by Graves and Wiener, JJ.)  (Footnote 1 of the opinion also explains why Texas refers to a county adminstrator as a “county judge,” tracing the answer to the position of “alcalde” in Spanish law.)

A vocational school (RRCC) sought to recover damages from the federal government’s civil forfeiture of $4 million from it, arguing that the seizure without notice put it out of business. the Fifth Circuit found the school’s claims barred by sovereign immunity: “Congress has provided various remedies for claimants like RRCC who assert that the United States has wrongfully seized their property in forfeiture proceedings. Under certain circumstances, claimants who “substantially prevail[ ]” in a forfeiture action may recover attorneys’ fees, costs, and interest.  In some cases, they may sue the United States for property damages under the FTCA. .What claimants may not do, however, is sue the United States for constitutional torts arising out of the property seizure. Congress has not waived the United States’ sovereign immunity for damages claims of that nature. Because RRCC’s counterclaims sought precisely those kinds of damages, we hold its counterclaims are barred by sovereign immunity.” United States v. $4,480,466.16, No. 18-10801 (Aug. 22, 2019), withdrawn and revised (Nov. 5, 2019).

Litigation continues on the Texas tollroads, most recently producing a defamation lawsuit in BancPass v. Highway Toll Administration LLC, arising from letters sent by a company’s competitors to Google and Apple. The defendant unsuccessfully argued that the letters were immune from liability by the Texas privilege associated with court proceedings.

Before the Fifth Circuit, matters began well for the defendant – the Court concluded (1) that an immediate interlocutory appeal was allowed because the Texas privilege protects from suit, not just liability, and (2) while “[c]ertainly, the district court expressed its displeasure” at this issue arising late in the proceedings, it did not formally certify the appeal as frivolous (and thus avoided a line of cases that would otherwise have undermined defendant’s appeal right). But on the merits:

“Texas caselaw is clear that our analysis must focus on the connection between the communications and the specific legal action HTA now claims that it was contemplating, rather than legal action more broadly. The letters to Google and Apple in particular put forward bare accusations of unlawful conduct that was unrelated to HTA’s later tortious interference claim and that neither directly implicated HTA’s own legal rights nor constituted legal claims that HTA had any ability to pursue.”

No. 16-51073 (July 13, 2017).

Plaintiffs alleged that a terrible crime would have been averted with a faster response to a 9-1-1 call. The Fifth Circuit, applying City of Dallas v. Sanchez, 494 S.W.3d 722 (Tex. 2016), found a lack of proximate cause (and thus, immunity applied) because “plaintiffs have not plausibly alleged that any of the intervening parties would have acted differently,” including the call center operator and emergency personnel on the scene. The allegations on the general subject of response time were too speculative to satisfy Twombly (footnote 4). And “‘even if the brief delay in relaying Cook’s location ‘contributed to circumstances that delayed potentially life-saving assistance, the [delay] was too attenuated from the cause of [Cook’s] death . . . to be a proximate cause.” Cook v. City of Dallas, No. 16-10105 (March 29, 2017).

Attorney Martinez sued another law firm (“HLG”) for various torts related to the firm contacting his clients about alleged overbilling. The firm asserted absolute immiunity as a defense and the Fifth Circuit agreed, in a fact-specific holding, that the evidence “demonstrate[s] that the allegedly tortious statements at issue in this case were made in relation to a proposed arbitration and are therefore absolutely privileged under Texas law.” The firm already represented two Martinez clients in connection with the potential arbitration; the new clients did not originate contact with the firm; and all of them ultimately retained the firm. Martinez v. Hellmich Law Group, PC, No. 16-50305 (March 8, 2017, unpublished). This case joins a line of similar holdings in recent years in favor of attorney immunity.

Plaintiffs alleged that the government of Antigua was complicit in Allen Stanford’s fraudulent scheme; it defended under the Foreign Sovereign Immunities Act. With respect to liabilty under the “commercial activity” exception to the Act, the Fifth Circuit found too attenuated a connection to the United States. As to the scheme itself, “[w]hile Antigua may have helped facilitate Stanford’s sale of the fraudulent CDs, Stanford’s criminal activity served as an intervening act interrupting the causal chain between Antigua’s actions and any effect on investors.” And as to a more specific claim based on Antigua’s failure to repay loans to Stanford, “the financial loss in this case was not directly felt by Plaintiffs, who are investors and customers of Stanford . . . The financial loss due to Antigua’s failure to repay the loans was most directly felt by Stanford who was the actual lender in the loan transactions.” Frank v. Commonwealth of Antigua & Barbuda, No. 15-10788 (Nov. 22, 2016).

The receiver for Allen Stanford’s businesses sought to recover the proceeds of large certificates of deposit from two investment entities associated with the Libyan government. The district court dismissed one of the entities pursuant to the Foreign Sovereign Immunities Act, and allowed the claim against the other to proceed.  The Fifth Circuit reversed as to that entity, finding that the instruments at issue “did not require any act in the United States, much less the act of funneling money through the Stanford scheme or any Stanford entities in the United States,” and that the entity’s “commercial activity was limited to its obligations under teh . . . CDs, which . . . did not require any activity in the United States.” Janvey v. Libyan Inv. Auth., Nos. 15-10545 & 10548 (Oct. 26, 2016).

Continuing a theme in cases involving attorney liability (most notably the recent Stanford-related opinion in Troice v. Proskauer Rose, 816 F.3d 341 (5th Cir. 2015)), the Fifth Circuit affirmed summary judgment for the law firm involved in a disputed foreclosure: “Under Texas law, the doctrine of qualified immunity has ‘long authorized attorneys to practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves liable for damages.” Lassberg v. Bank of America, No. 15-40196 (Aug. 23, 2016, unpublished).

Earlier this year, the Fifth Circuit largely affirmed a series of rulings about governmental immunity in litigation about flood damage from Hurricane Katrina, allowing some cases to proceed and finding the government immune as to others.  On rehearing, the Court found that the “discretionary-function exemption” to the Federal Tort Claims Act created immunity even if the Flood Control Act did not.  In re Katrina Canal Breaches Litigation at 25-26 (Sept. 24, 2012) (“Our construction of the FCA leaves undisturbed the district court’s ruling on that issue.  Our application of the DFE, however, completely insulates the government from liability.”).

The Court affirmed almost all of a series of immunity rulings by the district court in the consolidated litigation against the Corps of Engineers arising from Hurricane Katrina.  In re Katrina Canal Breaches Litigation (March 2, 2012).  While most of the opinion focuses on issues unique to flood control, it provides a crisp summary of the requirements of the National Environmental Policy Act as to environmental impact statements, and concludes with a brief summary of the standards for mandamus relief in the federal system.  Op. at 27.  The Court declined to grant a writ of mandamus to stay an upcoming trial because its opinion affirmed the immunity rulings that the district court would use for that trial.  (A subsequent opinion mooted the mandamus issue because it changed the disposition of the merits.)