Replies

Fourth Amendment
United States v. Neufeld-Neufeld, 338 F.3d 374 (5th Cir., 2003) - held police had reasonable suspicion support vehicle stop where: (1) defendant was 35 miles from the border; (2) he was traveling north; (3) the highway did not traverse any settled area other than a park service headquarters; and (4) the highway only intersected one other road between the border and where the officers encountered defendant. One officer had less than two years' experience, but he benefitted from the other officer's 13 years of experience in deciding to stop the pickup. Even if it was assumed that the officers could not identify a vacationer to the park, the following factors provided reasonable suspicion: (1) the proximity to the border; (2) the proximity to a drug cache that the officers were enroute to investigate, which was two miles; (3) the use of a known drug smuggling route in an area known for drug smuggling; and (4) the fact that defendant appeared stiff, stared straight ahead, failed to acknowledge the patrol car, and slowed down considerably. Taken together, the factors sufficed to form a particularized and objective basis for stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment.
United States v. Ellis, 330 F.3d 677 (5th Cir., 2003) - court held that Border patrol agents violated Fourth Amendment by squeezing and sniffing luggage on way off bus, after completing immigration check. The court held that the delay to manipulate the baggage impermissibly extended the seizure because it was not supported by reasonable suspicion.
Zaffuto v. City of Hammond, 308 F.3d 485 (5th Cir. 2002) - Judge Clement found that a police supervisor's surreptitious recording of a phone call made by an officer from his private office violated the Fourth Amendment.
Civil Rights - Race Discrimination
Ramsey v. Henderson, 286 F.3d 264 (5th Cir. 2002) - Judge Clement held that the district court erred in failing to consider prior incidents of harassment in determining whether the plaintiff experienced a hostile work environment. Any claims based on those incidents were time-barred, but Judge Clement held that they were still relevant background information for the evaluation of non-time- barred claims. However, she also found that the error was harmless because even taken together the incidents did not rise to the level of a hostile work environment.
Baker v. Waterford Square Homeowners Ass'n, 57 Fed.Appx. 211 (CA5 2003) (per curiam) (unpublished): Recognizing that the Fair Housing Act may provide relief for plaintiffs alleging "hostile housing environment" race, national origin and/ or sex discrimination.
Civil Rights - Disability Discrimination
Henrickson v. Potter, 327 F.3d 444 (5th Cir. 2003) - Judge Clement found on behalf of a unanimous panel that the plaintiff's claim of disability discrimination was properly dismissed because the defendant was the U.S. Postal Service and the Americans with Disabilities Act does not apply to the federal government.
Blanks v. Southwestern Bell Communs., Inc., 310 F.3d 398 (5th Cir. 2002) - Judge Clement found that the plaintiff's HIV was not a disability within the meaning of the ADA. She acknowledged that HIV was physical impairment, but held that the plaintiff had not established the requisite interference with a major life activity.
Soledad v. United States Dep't of Treasury, 304 F.3d 500 (5th Cir. 2002) - Writing for the panel, Judge Clement held that the standard for a claim of disability discrimination under the Rehabilitation Act (the pre-ADA law that still governs claims against the government) is whether an adverse employment action occurred "solely because of" the plaintiff's disability.
Qualified Immunity
Kinney v. Weaver, 367 F.3d 337 (CA5 2004) - Judge Clement joined Judge Edith Hollan Jones's partial dissent from a denial of a qualified immunity-based summary judgment motion in a suit brought by instructors at police academy who, having testified as experts against the police in excessive-force case brought in another part of state, alleged that police officials had boycotted instructors' courses and tried to effect their removal in retaliation for testimony. The partial dissent argued that the police officials named as defendants in the suit were entitled to qualified immunity for their actions since "no reasonable police chiefs and sheriffs could have clearly understood . . . that they were violating the First Amendment by refusing to enroll their recruits in Kinney's and Hall's classes."
Tarver v. City of Edna, 2005 U.S. App. LEXIS 9533 (CA5 May 25, 2005) - Writes for three-judge panel in affirming district court's denial of summary judgment re qualified immunity with regard to excessive force claim brought by grandfather who alleged that, while in police custody in a police car, police officer had slammed the car door on his foot and head, when car doors were allegedly opened by family members trying to check on his well-being after police officer refused to open windows or turn on air-conditioner. Opinion notes that "the severity of the crime at issue was minimal, [grandfather] did not pose an immediate threat to anyone's safety, and according to the testimony of four witnesses, there was no risk of Tarver trying to escape police custody." However, reversed denial of summary judgment w/r/to other qualified immunity claims.
Habeas
Coleman v. Dretke, 409 F.3d 665 (CA5 2005) - Judge Clement joined Judge Edith Hollan Jones's dissent from a denial of rehearing en banc for a habeas action brought by a state prisoner who had been indicted for sex offenses but convicted of only misdemeanor assault. The dissent interpreted AEDPA as preventing federal courts from striking down decisions that were "just wrong" as opposed to "really wrong." ("AEDPA authorizes federal courts to overturn only those state court decisions that represent an 'unreasonable' application of constitutional law decided by the Supreme Court. An 'unreasonable' decision must be not just wrong, but really wrong.")
Federal Preemption
Mitchell Energy & Dev. Corp. v. Fain, 311 F.3d 685 (5th Cir. 2002) - Judge Clement held that the Employee Retirement Income Security Act of 1974 (ERISA) does not preempt state prohibitions on the waiver of claims for unemployment compensation.

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