IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CASE NO. 20-10055
______________________________________________________________________________
SELINA MARIE RAMIREZ, individually and as Independent Administrator of, and on
behalf of, the Estate of Gabriel Eduardo Olivas and the heirs-at-law of Gabriel Eduardo
Olivas, and as parent, guardian, and next friend of and for female minor SMO;
GABRIEL ANTHONY OLIVAS, individually,
Plaintiffs-Appellees,
v.
JEREMIAS GUADARRAMA; EBONY N. JEFFERSON,
Defendants-Appellants.
______________________________________________________________________________

On Appeal from the United States District Court for the Northern District of Texas,
No. 4:20-CV-7
______________________________________________________________________________

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES

UNION OF TEXAS, AMERICANS FOR PROSPERITY FOUNDATION, CATO
INSTITUTE, AND DISABILITY RIGHTS TEXAS AS AMICI CURIAE IN SUPPORT OF
APPELLEES’ PETITION FOR EN BANC REVIEW
______________________________________________________________________________

Somil Trivedi Clark M. Neily III

Carl Takei Jay R. Schweikert
AMERICAN CIVIL LIBERTIES UNION Counsel of Record
FOUNDATION CATO INSTITUTE
125 Broad Street, 18th Floor 1000 Mass. Ave., N.W.
New York, NY 10004 Washington, DC 20001
(212) 607-3300 (202) 216-1461
[email protected]
Susan Mizner
West Resendes Counsel for the Cato Institute
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION (Additional counsel listed on inside
39 Drumm Street cover)
San Francisco, CA 94111
(415) 343-0769

Counsel for the American Civil Liberties

Union Foundation
Adriana Piñon Cynthia Fleming Crawford
Brian Klosterboer AMERICANS FOR PROSPERITY
Savannah Kumar FOUNDATION
AMERICAN CIVIL LIBERTIES UNION 1310 N. Courthouse Road, Suite 700
FOUNDATION OF TEXAS Arlington, VA 22201
5225 Katy Fwy., Ste. 350 (703) 224-3200
Houston, TX 77007
(713) 942-8146 Counsel for Americans for Prosperity
Foundation
Counsel for the American Civil Liberties
Union Foundation of Texas

Beth L. Mitchell
Texas Bar No. 00784613
DISABILITY RIGHTS TEXAS
2222 W. Braker Lane
Austin, TX 78758
(512) 454-4816

Counsel for Disability Rights Texas

CERTIFICATE OF INTERESTED PERSONS

In addition to the persons and entities previously identified by the parties,

undersigned counsel certifies that the following persons and entities have an interest in

the outcome of this case:

A. American Civil Liberties Union Foundation;

B. Somil Trivedi, Carl Takei, Susan Mizner, and West Resendes, counsel for the
American Civil Liberties Union Foundation;

C. American Civil Liberties Union Foundation of Texas;

D. Adriana Piñon, Brian Klosterboer, and Savannah Kumar, counsel for the American
Civil Liberties Union Foundation of Texas;

E. Americans for Prosperity Foundation;

F. Cynthia Fleming Crawford, counsel for Americans for Prosperity Foundation;

G. Cato Institute;

H. Clark M. Neily III and Jay R. Schweikert, counsel for the Cato Institute;

I. Disability Rights Texas;

J. Beth L. Mitchell, counsel for Disability Rights Texas.

SO CERTIFIED, this 15th day of March, 2021.

/s/ Jay R. Schweikert

Counsel for Amici Curiae

i
TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ............................................................................ i

TABLE OF AUTHORITIES ........................................................................................................ iii
INTEREST OF AMICI CURIAE .................................................................................................. 1
SUMMARY OF THE ARGUMENT ........................................................................................... 2
I. RECENT SUPREME COURT DECISIONS HAVE REAFFIRMED AND CLARIFIED
THAT COURTS SHOULD NOT GRANT QUALIFIED IMMUNITY SIMPLY
BECAUSE THERE IS NO PRIOR CASE INVOLVING THE SAME FACTS. ............. 3
II. THIS COURT SHOULD GRANT THE PETITION TO CORRECT THE PERSISTENT
PATTERN OF GRANTING IMMUNITY EVEN IN THE FACE OF OBVIOUS
CONSTITUTIONAL VIOLATIONS. ............................................................................... 7
CONCLUSION ............................................................................................................................. 9
CERTIFICATE OF COMPLIANCE ......................................................................................... 11
CERTIFICATE OF SERVICE .................................................................................................... 12

ii
TABLE OF AUTHORITIES
Cases
Anderson v. Creighton, 483 U. S. 635 (1987)................................................................................ 4
Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ....................................................................................... 3
Baxter v. Bracey, 140 S. Ct. 1862 (2020) ....................................................................................... 5
Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) (en banc) .............................................................. 9
Deville v. Marcantel, 567 F.3d 156 (5th Cir. 2009) .................................................................. 2, 8
District of Columbia v. Wesby, 138 S. Ct. 577 (2018)................................................................... 4
Groh v. Ramirez, 540 U.S. 551 (2004) ........................................................................................... 4
Harlow v. Fitzgerald, 457 U.S. 800 (1982) .................................................................................... 3
Hope v. Pelzer, 536 U.S. 730 (2002) .............................................................................................. 4
Joseph v. Bartlett, 981 F.3d 319 (5th Cir. 2020) ....................................................................... 2, 8
Kisela v. Hughes, 138 S. Ct. 1152 (2018) .................................................................................. 4, 5
Lane v. Franks, 134 S. Ct. 2369 (2014) .......................................................................................... 4
McCoy v. Alamu, 950 F.3d 226 (5th Cir. 2020) ........................................................................... 7
McCoy v. Alamu, No. 20-31, 2021 U.S. Lexis 768 (Feb. 22, 2021) ............................................ 6
Ramirez v. Guadarrama, No. 20-10055, 2021 U.S. App. LEXIS 3382 (5th Cir. Feb. 8, 2021) . 9
Sause v. Bauer, 138 S. Ct. 2561 (2018) .......................................................................................... 4
Taylor v. Riojas, 141 S. Ct. 52 (2020) .................................................................................... 3, 5, 6
Taylor v. Stevens, 946 F.3d 211 (5th Cir. 2019) ........................................................................... 6
United States v. Lanier, 520 U.S. 259 (1997) ............................................................................ 4, 6
White v. Pauly, 137 S. Ct. 548 (2017) ........................................................................................... 4
Wilson v. Layne, 526 U.S. 603 (1999) ........................................................................................... 4
Zadeh v. Robinson, 902 F.3d 483 (5th Cir. 2018) ......................................................................... 5
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ....................................................................................... 5
Statutes
42 U.S.C. § 1983 ............................................................................................................................ 3
Other Authorities
Andrew Chung, et al., Shielded, REUTERS (May 8, 2020), https://www.reuters.com/
investigates/special-report/usa-police-immunity-scotus/ .............................................. 5

iii
Doris A. Fuller et al., Overlooked in the Undercounted: The Role of Mental Illness in Fatal Law
Enforcement Encounters (Arlington, VA: Treatment Advocacy Center, 2015), available at
https://www.treatmentadvocacycenter.org/storage/documents/overlooked-in-the-
undercounted.pdf. ................................................................................................................... 8
Joanna C. Schwartz, The Case Against Qualified Immunity, 93 NOTRE DAME L. REV. 1797
(2018) ......................................................................................................................................... 5
William Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L. REV. 45 (2018) ............... 4, 5

iv
INTEREST OF AMICI CURIAE 1
The American Civil Liberties Union Foundation is a nationwide, nonprofit,

nonpartisan organization dedicated to the principles of liberty and equality embodied in

the Constitution and this nation’s civil-rights laws. The ACLU of Texas is one of its

statewide affiliates and ensures these principles extend to all Texans.

The Americans for Prosperity Foundation is a nonprofit organization committed to

educating and training Americans to be courageous advocates for the ideas, principles,

and policies of a free and open society.

The Cato Institute is a nonpartisan public policy research foundation founded in 1977

and dedicated to advancing the principles of individual liberty, free markets, and limited

government.

Disability Rights Texas is an agency authorized to provide legal representation and

related advocacy services and to investigate abuse and neglect of individuals with

disabilities in a variety of settings to ensure such persons’ constitutional rights to liberty

and equality are upheld.

Amici’s interest arises from qualified immunity’s deleterious effect on people’s ability

to vindicate their constitutional rights and the subsequent erosion of accountability for

public officials that the doctrine encourages.

1Fed. R. App. P. 29 Statement: No counsel for either party authored this brief in whole or in part.
No one other than amici and their members made monetary contributions to its preparation or
submission.

1
SUMMARY OF THE ARGUMENT

In July 2017, Defendant Arlington police officers Ebony Jefferson and Jeremias

Guadarrama responded to a 911 call placed by a son worried about his father, Gabriel

Eduardo Olivas, who was threatening to commit suicide by lighting himself on fire.

When Jefferson and Guadarrama found Olivas in a bedroom, they smelled gasoline and

could see Olivas holding a gas can. Jefferson and Guadarrama knew from their training

that tasers could ignite gasoline, but they drew and aimed their tasers anyway. Another

officer on the scene, Caleb Elliott, warned them “[i]f we Tase him, he is going to light on

fire.” Despite this explicit warning, Jefferson and Guadarrama tased Olivas, setting him

on fire and killing him, thereby causing the very injury they had been called to prevent.

Viewing the facts in the light most favorable to the Plaintiffs, the Defendants’ decision

to use deadly force in this scenario was an obvious violation of Olivas’s Fourth

Amendment rights. Even when physical force is justified, police “must also select the

appropriate ‘degree of force,’” and must take “measured and ascending action” in

response to the threat posed by a suspect. Joseph v. Bartlett, 981 F.3d 319, 332-33 (5th Cir.

2020) (quoting Deville v. Marcantel, 567 F.3d 156, 167-68 (5th Cir. 2009)). No reasonable

officer in the Defendants’ position could have thought that setting Olivas on fire was an

appropriate, measured response to the possibility that Olivas might set himself on fire.

Despite this obvious violation of Olivas’s constitutional rights, the panel found that

Defendants were entitled to qualified immunity. That decision was not simply an

egregious misapplication of Supreme Court and Fifth Circuit precedent on excessive

2
force—it is also reinforces a dangerous but widespread misunderstanding of how the

doctrine of qualified immunity should apply in cases of obvious constitutional violations.

In its recent decision in Taylor v. Riojas, 141 S. Ct. 52 (2020), the Supreme Court

reaffirmed the basic principle that qualified immunity turns on whether a defendant had

“fair warning” that their conduct was unlawful, and that in cases with “particularly

egregious facts,” it is unnecessary for plaintiffs to identify a prior case involving the same

factual scenario. Id. at 54. While Taylor did not formally revise black-letter law, the

decision was a much-needed corrective to the increasingly common practice of lower

courts requiring a prior case exactly on point before denying immunity. The Court should

grant the petition for en banc review to ensure that lower courts properly account for the

Supreme Court’s recent clarification on how to apply qualified immunity.

ARGUMENT

I. RECENT SUPREME COURT DECISIONS HAVE REAFFIRMED AND

CLARIFIED THAT COURTS SHOULD NOT GRANT QUALIFIED
IMMUNITY SIMPLY BECAUSE THERE IS NO PRIOR CASE INVOLVING
THE SAME FACTS.

Under the doctrine of qualified immunity, public officials can only be held liable

under 42 U.S.C. § 1983 if they “violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). However, the Supreme Court has not always spoken with clarity on how

lower courts should decide whether a right was “clearly established.” It has instructed

lower courts “not to define clearly established law at a high level of generality,” Ashcroft

v. al-Kidd, 563 U.S. 731, 742 (2011), and stated that “clearly established law must be

3
‘particularized’ to the facts of the case,” White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). But the Court has also emphasized that

its case law “does not require a case directly on point for a right to be clearly established,”

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting White, 137 S. Ct. at 551), and that

“‘general statements of the law are not inherently incapable of giving fair and clear

warning.’” White, 137 S. Ct. at 552 (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)).

While “earlier cases involving ‘fundamentally similar’ facts can provide especially strong

support for a conclusion that the law is clearly established, they are not necessary to such

a finding.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).

Despite these conflicting statements of principle, for decades the Court did send a clear

message to lower courts through the outcomes in actual qualified immunity cases. From

1982 through the 2018-2019 term, the Court issued 32 substantive qualified immunity

decisions, 2 and only twice did it find that defendants’ conduct violated clearly established

law. 3 Moreover, in all but two of the 27 cases explicitly granting immunity, the Supreme

Court reversed the lower court’s denial of immunity below. 4 The takeaway was clear:

lower courts should ratchet up the difficulty of demonstrating “clearly established law.”

2 See William Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L. REV. 45, 82, 88-90 (2018)
(identifying all qualified immunity decisions between 1982 and the end of 2017); see also Sause v.
Bauer, 138 S. Ct. 2561 (2018); Kisela v. Hughes, 138 S. Ct. 1148 (2018); District of Columbia v. Wesby,
138 S. Ct. 577 (2018).
3 See Groh v. Ramirez, 540 U.S. 551 (2004); Hope v. Pelzer, 536 U.S. 730 (2002).
4Lane v. Franks, 134 S. Ct. 2369 (2014), and Wilson v. Layne, 526 U.S. 603 (1999), were the two cases
affirming grants of immunity.

4
Lower courts received this message. A recent Reuters investigation examined

hundreds of circuit court opinions from 2005 to 2019 on appeals of cases in which police

officers accused of excessive force raised a qualified immunity defense. The report

revealed that the rate of qualified immunity grants has been steadily rising over time—

in the 2005-2007 period, courts granted immunity in only 44% of cases, but in the 2017-

2019 period, courts granted immunity in 57% of cases. 5

But in 2020, the Supreme Court began to change course. In light of recent scholarship

undermining the purported legal rationales for qualified immunity 6 and explicit calls to

re-evaluate the doctrine from both Justices 7 and lower-courts judges, 8 the Court has faced

the question of whether the doctrine of qualified immunity should be reconsidered. 9 And

while the Justices have yet to grant a petition on this fundamental, underlying issue, the

Supreme Court did recently issue an opinion in Taylor v. Riojas, 141 S. Ct. 52 (2020), which

provides crucial clarity on how lower courts should apply the doctrine.

5 Andrew Chung, et al., Shielded, REUTERS (May 8, 2020), https://www.reuters.com/

investigates/special-report/usa-police-immunity-scotus/.
6See Baude, supra; Joanna C. Schwartz, The Case Against Qualified Immunity, 93 NOTRE DAME L.
REV. 1797 (2018).
7Kisela, 138 S. Ct. at 1162 (2018) (Sotomayor, J., dissenting) (qualified immunity has become “an
absolute shield for law enforcement officers” that has “gutt[ed] the deterrent effect of the Fourth
Amendment”); Ziglar v. Abbasi, 137 S. Ct. 1843, 1872 (2017) (Thomas, J., concurring in part and
concurring in the judgment) (“In an appropriate case, we should reconsider our qualified
immunity jurisprudence.”).
8 Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring) (“I add my voice to a
growing, cross-ideological chorus of jurists urging recalibration of contemporary immunity
jurisprudence . . . .”).
9 See, e.g., Baxter v. Bracey, 140 S. Ct. 1862, 1865 (2020) (Thomas, J., dissenting from the denial of
certiorari) (“I continue to have strong doubts about our §1983 qualified immunity doctrine. Given
the importance of this question, I would grant the petition.”)

5
In Taylor, a panel of this Court granted qualified immunity to corrections officers who

held an inmate in inhumane conditions—one cell that was covered floor-to-ceiling in

human feces, and another kept at freezing temperatures with sewage coming out of a

drain in the floor—for six days. Taylor v. Stevens, 946 F.3d 211, 222 (5th Cir. 2019). The

panel reasoned that, “[t]hough the law was clear that prisoners couldn’t be housed in

cells teeming with human waste for months on end,” the law in this case “wasn’t clearly

established” because “Taylor stayed in his extremely dirty cell for only six days.” Id.

But the Supreme Court summarily reversed. In its per curiam opinion, the Court

explained that even though no prior case had addressed these exact circumstances, “no

reasonable correctional officer could have concluded that, under the extreme

circumstances of this case, it was constitutionally permissible to house Taylor in such

deplorably unsanitary conditions for such an extended period of time.” Taylor, 141 S. Ct.

at 53. The Court also reaffirmed the basic principle that “‘a general constitutional rule

already identified in the decisional law may apply with obvious clarity to the specific

conduct in question.’” Id. at 53-54 (quoting Lanier, 520 U.S. at 271).

Despite its brevity, and notwithstanding that the opinion did not formally alter black-

letter law, the Taylor decision marks a clear change in the trajectory of qualified immunity

jurisprudence. Indeed, the Supreme Court has already vacated and remanded another

decision of this Court granting qualified immunity “for reconsideration in light of Taylor

v. Riojas.” McCoy v. Alamu, No. 20-31, 2021 U.S. Lexis 768 (Feb. 22, 2021). In McCoy, a

prison guard had allegedly assaulted an inmate with pepper spray because he had

“grown frustrated” with another inmate and “arbitrarily took out his anger on McCoy by

6
spraying him ‘for no reason at all.’” McCoy v. Alamu, 950 F.3d 226, 231 (5th Cir. 2020). But

the Fifth Circuit affirmed immunity because no prior case had specifically held that “an

isolated, single use of pepper spray” was more than a de minimis use of force. Id. at 233.

The Court’s error in McCoy was the same sort of error as in Taylor: requiring a prior

case with nearly identical facts before denying immunity, even though application of

clearly established law to the particular conduct at issue would have been obvious to any

reasonable person in the defendant’s position. As the dissent in McCoy explained, prior

judicial decisions had already held that gratuitously punching, tasing, or beating an

inmate with a baton would violate clearly established law. Id. at 235 (Costa, J., dissenting).

Why should the gratuitous use of pepper spray be any different? By vacating the McCoy

order and remanding for reconsideration in light of Taylor, the Supreme Court has

signaled that lower courts should cease the practice of granting immunity simply because

there is no prior case with identical facts.

II. THIS COURT SHOULD GRANT THE PETITION TO CORRECT THE

PERSISTENT PATTERN OF GRANTING IMMUNITY EVEN IN THE FACE
OF OBVIOUS CONSTITUTIONAL VIOLATIONS.

The petition explains in detail how the Defendants’ conduct in this case amounted to

a constitutional violation, and an obvious one at that. Construing the facts in the light

most favorable to the Plaintiffs, the Defendants (1) received training just four months

before Olivas’s death explicitly warning them that tasers could ignite gasoline, Pet. at 10-

11; (2) found Olivas in his bedroom a “safe distance away from his family,” id. at 10; (3)

could smell gasoline and see Olivas holding a gas can, id. at 9; (4) heard Officer Elliot’s

7
explicit warning that “[i]f we Tase him, he is going to light on fire,” id. at 10; and (5) both

chose to discharge their tasers anyway, id. at 11-12.

The Defendants’ actions were plainly at odds with clearly established Fifth Circuit

precedent on excessive force. As the petition explains in more detail, see id. at 14-22, even

when the use of physical force is justified, police “must also select the appropriate ‘degree

of force,’” and must take “measured and ascending action” in response to a suspect’s

level of resistance. Joseph v. Bartlett, 981 F.3d 319, 332-33 (5th Cir. 2020) (quoting Deville v.

Marcantel, 567 F.3d 156, 167-68 (5th Cir. 2009)). These limitations are especially important

in the context of individuals experiencing mental distress and suicidal ideation, like

Olivas, because such individuals are 16 times more likely than the general public to be

killed during a police encounter. 10

Application of these Fourth Amendment principles to specific circumstances may

sometimes raise difficult questions. But it is inconceivable that a reasonable officer in the

Defendants’ position could have thought that knowingly setting Olivas on fire was a

measured, appropriate response to the mere possibility—contested in the record—that

Olivas might light himself on fire. One could as well argue that, if Olivas had been

threatening to hurt himself with a gun, a reasonable response would have been to shoot

him before he could shoot himself. And indeed, this Court recently held that similar

alleged conduct was not only a Fourth Amendment violation, but a violation of clearly

10Doris A. Fuller et al., Overlooked in the Undercounted: The Role of Mental Illness in Fatal Law
Enforcement Encounters (Arlington, VA: Treatment Advocacy Center, 2015), available at
https://www.treatmentadvocacycenter.org/storage/documents/overlooked-in-the-
undercounted.pdf.

8
established law. See Cole v. Carson, 935 F.3d 444, 453-55 (5th Cir. 2019) (en banc) (denying

immunity to officers alleged to have shot and killed a suicidal teen who was pointing a

gun at his own head).

Although the panel in this case rested its decision on a flawed understanding of the

Fourth Amendment itself, it did so in the context of qualified immunity and employed

the same sort of overly granular application of the “clearly established law” standard that

the Supreme Court vacated in both Taylor and McCoy. Specifically, the panel disclaimed

reliance on several Fifth Circuit cases involving excessive force against non-resisting

suspects, simply because those cases did not involve “a suicidal individual, flammable

material, a credible threat of arson, or the potential immolation of others.” Ramirez v.

Guadarrama, No. 20-10055, 2021 U.S. App. LEXIS 3382, *9-10 (5th Cir. Feb. 8, 2021).

But to the extent this case involves distinct facts, those distinctions only underscore

how plainly unreasonable the use of force here actually was. It is precisely because this case

involved “flammable material” and the “potential immolation of others” that the use of

force was excessive—the Defendants knowingly created the very danger they were called

to prevent. This case therefore involves a continuation of the same flawed mode of

qualified immunity analysis that the Supreme Court has begun to curb. The Court should

grant the petition to elaborate in detail on how lower courts should understand and apply

Taylor v. Riojas to ensure that judges do not keep making the same mistakes.

CONCLUSION

For the foregoing reasons, as well as those presented by Plaintiffs-Appellees, the

Court should grant the petition.

9
Respectfully submitted,

DATED: March 15, 2021. /s/ Jay R. Schweikert

Somil Trivedi Clark M. Neily III

Carl Takei Jay R. Schweikert
AMERICAN CIVIL LIBERTIES UNION Counsel of Record
FOUNDATION CATO INSTITUTE
125 Broad Street, 18th Floor 1000 Mass. Ave., N.W.
New York, NY 10004 Washington, DC 20001
(212) 607-3300 (202) 216-1461
[email protected]
Susan Mizner
West Resendes Counsel for the Cato Institute
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION Cynthia Fleming Crawford
39 Drumm Street AMERICANS FOR PROSPERITY
San Francisco, CA 94111 FOUNDATION
(415) 343-0769 1310 N. Courthouse Road, Suite 700
Arlington, VA 22201
Counsel for the American Civil Liberties (703) 224-3200
Union Foundation
Counsel for Americans for Prosperity
Adriana Piñon Foundation
Brian Klosterboer
Savannah Kumar Beth L. Mitchell
AMERICAN CIVIL LIBERTIES UNION Texas Bar No. 00784613
FOUNDATION OF TEXAS DISABILITY RIGHTS TEXAS
5225 Katy Fwy., Ste. 350 2222 W. Braker Lane
Houston, TX 77007 Austin, TX 78758
(713) 942-8146 (512) 454-4816

Counsel for the American Civil Liberties Counsel for Disability Rights Texas
Union Foundation of Texas

10
CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P. 29(b)(4) because

it contains 2,582 words, excluding the parts exempted by Fed. R. App. P. 32(f).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and 5th

Cir. R. 32.1 and the type-style requirements of Fed. R. App. P. 32(a)(6) because it has been

prepared in a proportionally spaced typeface in 12-point Book Antiqua typeface.

/s/ Jay R. Schweikert

March 15, 2021

11
CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of Court,

who will enter it into the CM/ECF system, which will send a notification of such filing

to the appropriate counsel.

/s/ Jay R. Schweikert

March 15, 2021

12