Case: 20-40359 Document: 00516431109 Page: 1 Date Filed: 08/12/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 12, 2022
No. 20-40359 Lyle W. Cayce
Clerk
Priscilla Villarreal,
Plaintiff—Appellant,
versus
The City of Laredo, Texas; Webb County, Texas; Isidro
R. Alaniz; Marisela Jacaman; Claudio Trevino, Jr.; Juan
L. Ruiz; Deyanria Villarreal; Enedina Martinez;
Alfredo Guerrero; Laura Montemayor; Does 1-2,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:19-CV-48
Before Richman, Chief Judge, and Graves and Ho, Circuit Judges.
James C. Ho, Circuit Judge:
We previously issued an opinion in this case and noted that a
dissenting opinion was forthcoming. See Villarreal v. City of Laredo, 17 F.4th
532, 536 n.* (5th Cir. 2021). We now withdraw our prior opinion and
substitute the following in its place.
***
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If the First Amendment means anything, it surely means that a citizen
journalist has the right to ask a public official a question, without fear of being
imprisoned. Yet that is exactly what happened here: Priscilla Villarreal was
put in jail for asking a police officer a question.
If that is not an obvious violation of the Constitution, it’s hard to
imagine what would be. And as the Supreme Court has repeatedly held,
public officials are not entitled to qualified immunity for obvious violations
of the Constitution.
The district court accordingly erred in dismissing Villarreal’s First
and Fourth Amendment claims on qualified immunity grounds. The district
court also erred in dismissing her Fourteenth Amendment claim for failure
to state a claim. We reverse in part and affirm in part and remand for further
proceedings.
I.
For purposes of this appeal, we accept the factual allegations stated in
Villarreal’s complaint as true. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
A.
Priscilla Villarreal is a journalist in Laredo, Texas. She regularly
reports on local crime, missing persons, community events, traffic, and local
government. But Villarreal is not a traditional journalist. Instead of
publishing her stories in the newspaper, she posts them on her Facebook
page. Instead of using a tape recorder to conduct interviews, she uses her cell
phone to live-stream video footage of crime scenes and traffic accidents. Her
reporting frequently includes colorful—and often unfiltered—commentary.
Perhaps because of this, she is one of Laredo’s most popular news sources,
with more than 120,000 Facebook followers. See, e.g., Simon Romero, La
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Gordiloca: The Swearing Muckraker Upending Border Journalism, N.Y.
Times (Mar. 10, 2019), https://www.nytimes.com/2019/03/10/us
/gordiloca-laredo-priscilla-villarreal.html (“[Villarreal] is arguably the most
influential journalist in Laredo, a border city of 260,000.”).
Villarreal is not shy about criticizing law enforcement. For example,
in 2015, law enforcement uncovered evidence of animal abuse on the
property of a relative of Marisela Jacaman, Webb County’s Chief Assistant
District Attorney. Villarreal vocally denounced the district attorney’s
decision to recall the arrest warrant for Jacaman’s relative on animal cruelty
charges and instead pursue a civil settlement. On another occasion, Villarreal
live-streamed Laredo Police Department (LPD) officers choking an arrestee
during a traffic stop.
Not surprisingly, local law enforcement officials were less than
enthused with Villarreal’s reporting. During a meeting with Villarreal, Webb
County District Attorney Isidro Alaniz told her that he did not appreciate her
criticism of the decision to withdraw the arrest warrant for Chief Assistant
District Attorney Jacaman’s relative. On another occasion, an officer
threatened to take Villarreal’s cell phone when she was recording a crime
scene from behind a barricade—while saying nothing to the other members
of the media standing next to her.
B.
In April 2017, Villarreal published a story about a man who committed
suicide. The story identified the man by name and revealed that he was an
agent with the U.S. Border Patrol. Villarreal first uncovered this information
from talking to a janitor who worked near the scene of the suicide. She then
contacted LPD Officer Barbara Goodman, who confirmed the man’s
identity.
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The following month, Villarreal published the last name of a family
involved in a fatal car accident in Laredo. She first learned the family’s
identity from a relative of the family who saw a video that Villarreal had
posted. Again, Villarreal contacted Officer Goodman, and again, the officer
verified this information.
Six months later, two arrest warrants were issued for Villarreal for
violating Texas Penal Code § 39.06(c). According to Villarreal, local officials
have never brought a prosecution under § 39.06(c) in the nearly three-decade
history of that provision—and Defendants do not contend otherwise.
Section 39.06(c) states that “[a] person commits an offense if, with
intent to obtain a benefit . . . , he solicits or receives from a public servant
information that: (1) the public servant has access to by means of his office or
employment; and (2) has not been made public.” Tex. Penal Code
§ 39.06(c). According to the affidavit in support of the arrest warrants,
Villarreal solicited or received the names of the suicide victim and the traffic
accident victims (which, according to the affidavit, was “nonpublic”
information). The affidavit further alleged that Villarreal benefitted from
publishing this information before other news outlets, by gaining additional
followers on her Facebook page. Chief Assistant District Attorney Jacaman
approved the arrest warrant application.
After learning about the warrant, Villarreal turned herself in. During
the booking process, Villarreal saw LPD officers taking pictures of her in
handcuffs with their cell phones. The officers mocked and laughed at her.
Villarreal was then detained at the Webb County Jail.
Villarreal filed a petition for a writ of habeas corpus in the Webb
County district court. In March 2018, a judge granted her petition and held
that § 39.06(c) was unconstitutionally vague. The government did not
appeal.
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She subsequently brought suit under 42 U.S.C. § 1983 against various
LPD officers, Webb County prosecutors, Webb County, and the City of
Laredo. The suit alleged a pattern of harassment and retaliation by various
local officials, culminating in her arrest, in violation of her First, Fourth, and
Fourteenth Amendment rights. She sought damages as well as injunctive and
declaratory relief.
Defendants moved to dismiss all of her claims under Federal Rule of
Civil Procedure 12(b)(6). The officials sought dismissal on grounds of
qualified immunity and failure to state a claim, and the county and city sought
dismissal under Monell. The district court granted the motion and dismissed
all claims accordingly.
Villarreal appeals the dismissal of her claims against the officials under
the First, Fourth, and Fourteenth Amendments. She also appeals the
dismissal of her municipal liability claims against the City of Laredo, but not
her claims against Webb County.
We review de novo a district court’s dismissal under Federal Rule of
Civil Procedure 12(b)(6). Sw. Bell Tel., LP v. City of Houston, 529 F.3d 257,
260 (5th Cir. 2008). To survive a Rule 12(b)(6) motion to dismiss, Villarreal
must plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). With respect to
the defense of qualified immunity, Villarreal must plead specific facts that
defeat that defense with equal specificity. Backe v. LeBlanc, 691 F.3d 645, 648
(5th Cir. 2012).
II.
Villarreal alleges that Defendants violated her First Amendment
rights in two ways—first, by infringing on her constitutional right to ask
questions of public officials, and second, by arresting her in retaliation for her
exercise of First Amendment rights. We address each in turn.
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A.
The district court dismissed her First Amendment infringement claim
against various officials on qualified immunity grounds, finding that any
violation was not clearly established at the time. We disagree.
To defeat qualified immunity at the motion to dismiss stage, Villarreal
must allege, first, that the officials violated her First Amendment rights, and
second, that their actions were objectively unreasonable in light of clearly
established law. See, e.g., Powers v. Northside Indep. Sch. Dist., 951 F.3d 298,
305–06 (5th Cir. 2020). The crucial question in this inquiry is whether “a
reasonable official would understand that what he is doing violates [a
constitutional] right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
“The central concept is that of ‘fair warning.’” Kinney v. Weaver, 367 F.3d
337, 350 (5th Cir. 2004) (en banc) (quoting Hope v. Pelzer, 536 U.S. 730, 740
(2002)).
Ordinarily, a plaintiff defeats qualified immunity by citing governing
case law finding a violation under factually similar circumstances. But that is
not the only way to defeat qualified immunity. “Although 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, 536 U.S. at 741.
“[O]fficials can still be on notice that their conduct violates
established law even in novel factual circumstances.” Id. “‘[A] general
constitutional rule already identified in the decisional law may apply with
obvious clarity to the specific conduct in question, even though the very
action in question has [not] previously been held unlawful.’” Id. (second
alteration in original) (quoting Anderson, 483 U.S. at 640).
In Hope, prison guards handcuffed a prisoner to a hitching post for
seven hours in the sun with little water. Id. at 734–35. They taunted him
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about his thirst, giving water to some dogs, before bringing the water cooler
closer to the prisoner and kicking the cooler over, spilling the water onto the
ground. Id. at 735. The guards also refused to allow him to use a restroom.
Id.
The Court acknowledged that there was no “materially similar” case
finding an Eighth Amendment violation under those particular
circumstances. Id. at 739–41. But the Court denied qualified immunity
anyway, based on “[t]he obvious cruelty inherent” in the guards’ conduct.
Id. at 745.
Similarly, in Taylor v. Riojas, 141 S. Ct. 52 (2020) (per curiam), two
prison cells contained massive amounts of feces over a period of six days. Id.
at 53. Again, there was no binding case on point involving those particular
factual circumstances. But the Court nevertheless denied qualified
immunity, reasoning that “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.” Id.
Perhaps the decision most analogous to this appeal is Sause v. Bauer,
138 S. Ct. 2561 (2018) (per curiam). There, police officers entered a
woman’s living room in response to a noise complaint. When she knelt down
to pray, they ordered her to stop, despite the lack of any apparent law
enforcement need. Id. at 2562. She brought suit against the officers alleging,
inter alia, a violation of the Free Exercise Clause. Id. The Tenth Circuit
granted qualified immunity, reasoning that any violation was not clearly
established because “Sause d[id]n’t identify a single case in which this court,
or any other court for that matter, has found a First Amendment violation
based on a factual scenario even remotely resembling the one we encounter
here.” Sause v. Bauer, 859 F.3d 1270, 1275 (10th Cir. 2017).
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The Court reversed the Tenth Circuit’s grant of qualified immunity
and remanded for further proceedings, holding that “[t]here can be no doubt
that the First Amendment protects the right to pray,” and that “[p]rayer
unquestionably constitutes the ‘exercise’ of religion.” Sause, 138 S. Ct. at
2562.
The point is this: The doctrine of qualified immunity does not always
require the plaintiff to cite binding case law involving identical facts. An
official who commits a patently “obvious” violation of the Constitution is
not entitled to qualified immunity. Hope, 536 U.S. at 745.
That principle should have precluded dismissal of the various
constitutional claims presented here. Just as it is obvious that Mary Anne
Sause has a constitutional right to pray, it is likewise obvious that Priscilla
Villarreal has a constitutional right to ask questions of public officials. Yet
according to her complaint, Defendants arrested and sought to prosecute
Villarreal for doing precisely that—asking questions of public officials.
If the freedom of speech secured by the First Amendment includes
the right to curse at a public official, then it surely includes the right to
politely ask that official a few questions as well. See, e.g., Chaplinsky v. New
Hampshire, 315 U.S. 568, 569 (1942) (“‘You are a God damned racketeer’
and ‘a damned Fascist’”); Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir.
1997) (“In 1990 when [the defendant] was arrested for his use of the ‘f-
word,’ it was clearly established that speech is entitled to First Amendment
protection.”); Buffkins v. City of Omaha, 922 F.2d 465, 467 (8th Cir. 1990)
(“I will have a nice day, asshole.”).
If freedom of the press guarantees the right to publish information
from the government, then it surely guarantees the right to ask the
government for that information in the first place. See, e.g., In re Express-News
Corp., 695 F.2d 807, 808 (5th Cir. 1982) (“news-gathering is entitled to
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[F]irst [A]mendment protection, for ‘without some protection for seeking
out the news, freedom of the press could be eviscerated’”) (quoting
Branzburg v. Hayes, 408 U.S. 665, 681 (1972)); The Florida Star v. B.J.F., 491
U.S. 524, 538 (1989) (“That appellant gained access to the information in
question through a government news release makes it especially likely that, if
liability were to be imposed, self-censorship would result.”).
Put simply: If the government cannot punish someone for publishing
the Pentagon Papers, how can it punish someone for simply asking for them?
See New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).
Finally, if the First Amendment safeguards the right to petition the
government for a redress of grievances, then it surely safeguards the right to
petition the government for information. As one of our colleagues once
noted, “[t]he original design of the First Amendment petition clause . . .
included a governmental duty to consider petitioners’ grievances”—not the
right to detain the petitioner. Stephen A. Higginson, Note, A Short History
of the Right to Petition Government for the Redress of Grievances, 96 Yale L.J.
142, 142–43 (1986).
So it should be patently obvious to any reasonable police officer that
the conduct alleged in the complaint constitutes a blatant violation of
Villarreal’s constitutional rights. And that should be enough to defeat
qualified immunity. The Institute for Justice, a respected national public
interest law firm, puts the point well in its amicus brief: There is a big
difference between “split-second decisions” by police officers and
“premeditated plans to arrest a person for her journalism, especially by local
officials who have a history of targeting her because of her journalism.” We
agree that the facts alleged here present an especially weak basis for invoking
qualified immunity. For “[w]hen it comes to the First Amendment, . . . we
are concerned about government chilling the citizen—not the other way
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around.” Horvath v. City of Leander, 946 F.3d 787, 802 (5th Cir. 2020) (Ho,
J., concurring in the judgment in part and dissenting in part). Cf. Hoggard v.
Rhodes, 141 S. Ct. 2421, 2422 (2021) (Thomas, J., respecting denial of cert.)
(“But why should university officers, who have time to make calculated
choices about enacting or enforcing unconstitutional policies, receive the
same protection as a police officer who makes a split-second decision to use
force in a dangerous setting?”).
Defendants respond that the officials were simply enforcing a statute.
But “some statutes are so obviously unconstitutional that we will require
officials to second-guess the legislature and refuse to enforce an
unconstitutional statute—or face a suit for damages if they don’t.” Lawrence
v. Reed, 406 F.3d 1224, 1233 (10th Cir. 2005). We agree with Judge
McConnell and our other sister circuits that police officers can invoke
qualified immunity by “rely[ing] on statutes that authorize their conduct—
but not if the statute is obviously unconstitutional.” Id. at 1232. We do not
grant qualified immunity where the official attempts to hide behind a statute
that is “‘so grossly and flagrantly unconstitutional that any person of
reasonable prudence would be bound to see its flaws.’” Carey v. Nevada
Gaming Control Bd., 279 F.3d 873, 881 (9th Cir. 2002) (quoting Michigan v.
DeFillippo, 443 U.S. 31, 38 (1979)). See also, e.g., Guillemard-Ginorio v.
Contreras-Gómez, 490 F.3d 31, 40–41 (1st Cir. 2007) (denying qualified
immunity where statute allowed officials to suspend a professional license
without a hearing in violation of the Due Process Clause); Leonard v.
Robinson, 477 F.3d 347, 359, 361 (6th Cir. 2007) (denying qualified immunity
where statute criminalized cursing by the name of God and indecent language
in front of women or children); Lawrence, 406 F.3d at 1233 (denying qualified
immunity where derelict vehicle ordinance provided “no hearing
whatsoever” because that was a “sufficiently obvious” violation of due
process); Vives v. City of New York, 405 F.3d 115, 118 (2nd Cir. 2005) (no
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qualified immunity where official relies on a law “so grossly and flagrantly
unconstitutional that any person of reasonable prudence would be bound to
see its flaws”) (quoting Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84,
103 (2nd Cir. 2003)); Lederman v. United States, 291 F.3d 36, 47 (D.C. Cir.
2002) (similar); Aubin v. Columbia Cas. Co., 272 F. Supp. 3d 828, 839 (M.D.
La. 2017) (“[N]o reasonable officer could rely on Louisiana’s public
intimidation statute to arrest a person who threatens to have them fired.”).
On its face, Texas Penal Code § 39.06(c) is not one of those
“obviously unconstitutional” statutes. Villarreal nevertheless prevails
because it is far from clear that the officers can even state a plausible case
against Villarreal under § 39.06(c) in the first place.
Section 39.06(c) only applies if Villarreal solicited or received non-
public information from a public servant “with intent to obtain a benefit.”
Tex. Penal Code § 39.06(c). And Texas law defines “benefit” to mean
“anything reasonably regarded as economic gain or advantage.” Tex.
Penal Code § 1.07(a)(7).
That is plainly not this case. Villarreal maintains that she acted not to
obtain economic gain, but to be a good journalist. Indeed, all she sought here
was “corroborating information” to confirm what she had already received
from other sources. So Villarreal wasn’t even soliciting information she did
not already have. She only wanted further confirmation before publication—
what a purely economically motivated actor wouldn’t need, but precisely
what a good journalist would require.
Moreover, Villarreal alleges in her complaint that she “does not
generate regular revenue or other economic gain from her citizen
journalism.” What’s more, according to her complaint, the arrest warrant
affidavits signed by the officers contained just one single theory of unlawful
“benefit” under § 39.06(c)—her alleged desire to gain “popularity [o]n
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Facebook” by reporting “the information before other news outlets.” But
by that token, soliciting confirmation from public officials only slowed
Villarreal down—the very opposite of the benefit alleged by the officers,
namely, the reporting of information “before other news outlets.”
Accepting these allegations as true as we must, we conclude that no
reasonable officer could have found probable cause under § 39.06(c)—
separate and apart from whether § 39.06(c) could constitutionally apply to a
person motivated by journalism rather than by profits. “At this stage, we do
not determine what actually is or is not true; we only ask whether
[Villarreal’s] plausible allegations state a claim.” Converse v. City of Kemah,
961 F.3d 771, 780 (5th Cir. 2020). Villarreal “has pleaded the violation of a
clearly established right.” Anderson v. Valdez, 845 F.3d 580, 602 (5th Cir.
2016). Nothing more is required at this stage to avoid dismissal. To the
extent Defendants dispute Villarreal’s version of the facts, they can present
their evidence on remand. See Joseph v. Bartlett, 981 F.3d 319, 330–31 (5th
Cir. 2020) (an “official can raise qualified immunity at any stage in the
litigation . . . and continue to raise it at each successive stage”).
***
It should be obvious to any reasonable police officer that locking up a
journalist for asking a question violates the First Amendment. Indeed, even
Captain Lorenzo, the stubborn police chief in Die Hard 2, acknowledged:
“Now personally, I’d like to lock every [expletive] reporter out of the airport.
But then they’d just pull that ‘freedom of speech’ [expletive] on us and the
ACLU would be all over us.” Die Hard 2 (1990).
Captain Lorenzo understood this. The officers in Laredo should have,
too. Cf. Dickerson v. United States, 530 U.S. 428, 443 (2000) (“Miranda has
become embedded in routine police practice to the point where the warnings
have become part of our national culture.”). The complaint here alleges an
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obvious violation of the First Amendment. The district court erred in
holding otherwise.
B.
Turning to Villarreal’s First Amendment retaliation theory: To
establish such a claim, she “must show that (1) [she] w[as] engaged in
constitutionally protected activity, (2) the defendants’ actions caused [her]
to suffer an injury that would chill a person of ordinary firmness from
continuing to engage in that activity, and (3) the defendants’ adverse actions
were substantially motivated against [her] exercise of constitutionally
protected conduct.” Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002)
(citations omitted).
Notwithstanding that the second element turns on “a person of
ordinary firmness,” this court has held that “a retaliation claim requires
some showing that the plaintiffs’ exercise of free speech has been curtailed.”
Id. at 259 (emphasis added) (citing cases). The court found that the plaintiffs
there demonstrated curtailment when they asserted that they “backed off
from direct involvement in helping expose unlawful practices in the
constable’s office.” Id. at 260. See also McLin v. Ard, 866 F.3d 682, 697 (5th
Cir. 2017) (holding that plaintiff’s “allegation of ‘great personal damage[]’
. . . d[id] not demonstrate that he reduced or changed his exercise of free
speech in any way.”).
Villarreal fails to allege that her own “exercise of free speech has been
curtailed.” Keenan, 290 F.3d at 259. She alleges that she lost sleep, suffered
reputational damage, became physically ill, was detained, and feared future
interference from officials. But these allegations do not show that Villarreal
curtailed her speech. To the contrary, as Defendants point out, Villarreal has
continued reporting since her arrest—consistent with the highest traditions
of fearless journalism.
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In response, Villarreal contends that “a chilling injury does not
require the injured party to stop exercising her First Amendment rights.”
That is the law in other circuits—and perhaps for good reason—but it is not
the law of this circuit. Compare Keenan, 290 F.3d at 259 (“[A] retaliation
claim requires some showing that the plaintiffs’ exercise of free speech has
been curtailed.”), with Smith v. Plati, 258 F.3d 1167, 1177 (10th Cir. 2001)
(“The focus . . . is upon whether a person of ordinary firmness would be chilled,
rather than whether the particular plaintiff is chilled.”), and Mendocino Env’t
Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999) (“[I]t would be
unjust to allow a defendant to escape liability for a First Amendment violation
merely because an unusually determined plaintiff persists in his protected
activity.”).
We are duty-bound to follow our circuit precedent. Accordingly, we
must hold that Villarreal has failed to sufficiently plead a First Amendment
retaliation claim. 1
***
Although Villarreal has not pleaded an actionable First Amendment
retaliation claim under the standards set forth in our circuit precedent, she
has articulated a viable First Amendment theory based on the officers’
infringement of her constitutional right to ask questions of public officials.
The district court accordingly erred in dismissing her First Amendment
claim.
1
Villarreal also brings a retaliatory investigation claim. But this circuit does not
recognize such a claim. See Colson v. Grohman, 174 F.3d 498, 512 (5th Cir. 1999) (“[The
plaintiff] has alleged only that she was the victim of criticism, an investigation (or an attempt
to start one), and false accusations: all harms that, while they may chill speech, are not
actionable under our First Amendment retaliation jurisprudence.”) (emphasis added).
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Villarreal seeks not only damages but also injunctive and declaratory
relief for her First Amendment claim. We agree with the district court that
she fails to allege a risk of future injury as required to establish standing for
injunctive and declaratory relief. To the contrary, Defendants have not
appealed the grant of Villarreal’s petition for a writ of habeas corpus by the
Webb County district court. Nor have they sought to arrest or investigate
her in the two years since that ruling.
III.
We turn to Villarreal’s Fourth Amendment wrongful arrest claim. To
prevail on this claim, Villarreal must show that she was seized and that the
seizure was unreasonable because it lacked probable cause. See, e.g., Brown
v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001) (“The ‘constitutional tort[ ]’ of
false arrest . . . require[s] a showing of no probable cause.”). Defendants do
not dispute that Villarreal’s surrender in response to the arrest warrants was
a seizure. See McLin, 866 F.3d at 694 (“McLin’s seizure occurred when he
surrendered to the arrest warrants and [the sheriff’s office] exercised
authority consistent with the warrants.”).
“Probable cause exists when all of the facts known by a police officer
‘are sufficient for a reasonable person to conclude that the suspect had
committed, or was in the process of committing, an offense.’” Texas v.
Kleinert, 855 F.3d 305, 316 (5th Cir. 2017) (quoting United States v. Castro,
166 F.3d 728, 733 (5th Cir. 1999) (en banc)). Defendants argue they are
entitled to qualified immunity because their arrest warrant sufficiently alleges
a violation of § 39.06(c), which they obtained from a magistrate judge.
But “the fact that a neutral magistrate has issued a warrant
authorizing the allegedly unconstitutional search or seizure does not end the
inquiry into objective reasonableness.” Messerschmidt v. Millender, 565 U.S.
535, 547 (2012). Even when officers obtain an arrest warrant from a
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magistrate, we ask “whether a reasonably well-trained officer in [the
defendants’] position would have known that his affidavit failed to establish
probable cause and that he should not have applied for a warrant.” Jennings
v. Joshua Indep. Sch. Dist., 877 F.2d 313, 317 (5th Cir. 1989) (quoting Malley
v. Briggs, 475 U.S. 335, 345 (1986)). “Defendants will not be immune if, on
an objective basis, it is obvious that no reasonably competent officer would
have concluded that a warrant should issue.” Malley, 475 U.S. at 341.
As explained above, a reasonably well-trained officer would have
understood that arresting a journalist for merely asking a question clearly
violates the First Amendment. “A government official may not base her
probable cause determination on an ‘unjustifiable standard,’ such as speech
protected by the First Amendment.” Mink v. Knox, 613 F.3d 995, 1003–04
(10th Cir. 2010) (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)).
See also Swiecicki v. Delgado, 463 F.3d 489, 498 (6th Cir. 2006) (“[A]n officer
may not base his probable-cause determination on speech protected by the
First Amendment.”). And no reasonable officer could have found probable
cause under § 39.06(c) in any event, for the reasons we explained above.
Just as the First Amendment violation alleged in the complaint was
obvious for purposes of qualified immunity, so too the Fourth Amendment
violation alleged here. The district court therefore erred in dismissing
Villarreal’s Fourth Amendment claim.
IV.
Next, we address Villarreal’s selective enforcement claim under the
Equal Protection Clause of the Fourteenth Amendment. “[T]o successfully
bring a selective . . . enforcement claim, a plaintiff must prove that the
government official’s acts were motivated by improper considerations, such
as race, religion, or the desire to prevent the exercise of a constitutional
right.” Bryan v. City of Madison, 213 F.3d 267, 277 (5th Cir. 2000).
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“[R]etaliation for an attempt to exercise one’s religion or right to free speech
would be expected to qualify.” Id. at 277 n.5.
“As a prerequisite to such a claim, the plaintiff must prove that
similarly situated individuals were treated differently.” Id. at 276 (citing
Wheeler v. Miller, 168 F.3d 241, 252 (5th Cir. 1999)). The district court here
dismissed Villarreal’s selective enforcement claim for failure to identify
similarly situated individuals that could have been arrested, but were not. So
we begin our analysis there.
Defining the universe of similarly situated individuals is a “case
specific” inquiry—one that “requires us to consider ‘the full variety of
factors that an objectively reasonable . . . decisionmaker would have found
relevant in making the challenged decision.’” Lindquist v. City of Pasadena,
669 F.3d 225, 234 (5th Cir. 2012) (alteration in original) (quoting Griffin
Indus., Inc. v. Irvin, 496 F.3d 1189, 1203 (11th Cir. 2007)). In Lindquist, we
explained that, when a case “involves the application of an ordinance or
statute, the plaintiff’s and comparators’ relationships with the ordinance at
issue will generally be a relevant characteristic for purposes of the similarly-
situated analysis.” 669 F.3d at 234. So, for example, in Beeler v. Rounsavall,
328 F.3d 813 (5th Cir. 2003), a store alleged that it was treated differently
than another store located nearby. Id. at 816. The court held that “the
relevant question [was] whether the two stores were similarly situated under
[the relevant provision of] the Code,” not whether they were geographically
proximate. Id. at 817.
Under Defendants’ interpretation of § 39.06(c), any journalist who
asks a public official a question regarding nonpublic information commits a
crime. Villarreal’s complaint sufficiently alleges that countless journalists
have asked LPD officers all kinds of questions about nonpublic information.
Yet they were never arrested.
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Specifically, she alleges a similarly situated group that includes: “(a)
those who had asked for or received information from local law enforcement
officials, and (b) persons who published truthful and publicly-accessible
information on a newsworthy matter.” She points to “local professional
newspaper journalists, local professional broadcast journalists, and citizens
who published on matters of local public concern.” She further alleges that
Defendants “also knew that members of the local media regularly asked for
and received information from LPD officials relating to crime scenes and
investigations, traffic accidents, and other LPD matters.” Finally, Villarreal
alleges, and Defendants concede, that LPD had never before arrested any
person under § 39.06(c).
It is true that Villarreal did not name a specific journalist who solicited
or received nonpublic information from the LPD in her complaint. When
evaluating whether Villarreal survives a motion to dismiss under Rule
12(b)(6), however, we must draw all reasonable inferences in favor of
Villarreal. See, e.g., Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005)
(“The complaint must be liberally construed, with all reasonable inferences
drawn in the light most favorable to the plaintiff.”).
We have no difficulty observing that journalists commonly ask for
nonpublic information from public officials, and that Villarreal was therefore
entitled to make that same reasonable inference. Yet Defendants chose to
arrest Villarreal—and only Villarreal—for violating § 39.06(c). We
accordingly conclude that Villarreal has sufficiently pled the existence of
similarly situated journalists who were not arrested for violating § 39.06(c).
The district court reached the opposite conclusion, holding that
Villarreal “fail[ed] to allege any facts indicating that Defendants failed to
enforce § 39.06(c) against any other person where a similar situation
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existed.” The court offered various rationales to justify its conclusion. None
of them are plausible.
First, the district court reiterated that the officers had “probable cause
to arrest [her],” because they had “objectively reasonable grounds to find
probable cause that [Villarreal] violated § 39.06(c).” But probable cause is
not a bar to a selective enforcement claim. “The courts have long held that
a selective enforcement claim may be available even where there is probable
cause for prosecution.” Stemler v. City of Florence, 126 F.3d 856, 872 (6th
Cir. 1997) (citing Wayte, 470 U.S. at 607; Oyler v. Boles, 368 U.S. 448, 455–
56 (1962)). See also Bradley v. United States, 299 F.3d 197, 205 (3rd Cir. 2002)
(“The fact that there was no Fourth Amendment violation does not mean
that one was not discriminatorily selected for a search.”).
Second, the district court found that local journalists were not
similarly situated to Villarreal because she was arrested for communicating
with Officer Goodman—and not with Jose Beza, LPD’s official spokesman.
The district court reasoned that local journalists are similarly situated to
Villarreal only if they too “solicited or received information from
Goodman”—or at least from “some other unofficial or unsanctioned source
of information within the police department”—but not if they solicited
information from LPD’s designated spokesman. But of course, LPD has
never claimed that it has a policy of arresting every journalist who asks
questions about nonpublic information from LPD officials other than the
department’s designated spokesmen. Nor is there anything in § 39.06(c) to
justify such a distinction.
Finally, the district court found that Villarreal’s allegations could not
establish a discriminatory effect because “it would be equally plausible to
infer that Defendants had never before encountered circumstances giving
rise to potential prosecution under the statute.” That is implausible on its
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face. Defendants’ interpretation of § 39.06(c) criminalizes routine reporting.
It is not “equally plausible” that the only journalist to ever ask questions of
Laredo public officials was Villarreal.
The district court accordingly erred in dismissing Villarreal’s
selective enforcement claim for failure to identify similarly situated
individuals. We of course make no comment on whether Villarreal will
ultimately prevail on her selective enforcement claim—that is for the district
court to decide in the first instance on remand.
V.
As for Villarreal’s remaining claims: She also brings a claim for
conspiracy to violate her constitutional rights under § 1983. Given our
conclusion that the district court erred in dismissing her First, Fourth, and
Fourteenth Amendment claims, we remand her conspiracy claim as well.
Finally, we address Villarreal’s municipal liability claim against the
City of Laredo. “[M]unicipal liability under section 1983 requires proof of
three elements: a policymaker; an official policy [or custom]; and a violation
of constitutional rights whose ‘moving force’ is th[at] policy or custom.”
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (quoting
Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978)). The district court
held that Villarreal failed to identify an official policy or custom made by a
final policymaker. We agree. Although Villarreal repeatedly refers to an
“official city policy or custom” of retaliating against her for her reporting,
she fails to sufficiently allege either. Villarreal does not point to any
ordinance, statute, statement, or regulation directing city employees to
retaliate against her. See Doe v. United States, 831 F.3d 309, 318 (5th Cir.
2016) (noting that “[a]n official policy is usually evidenced by ‘duly
promulgated policy statements, ordinances or regulations’”) (quoting
Piotrowski, 237 F.3d at 579). Nor does Villarreal sufficiently allege a
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No. 20-40359
“custom.” Although she alleges “a persistent and widespread practice of
City officials and employees engaging in retaliatory acts against [her],” such
a “persistent, widespread practice” must be “so common and well settled as
to constitute a custom that fairly represents municipal policy.” Webster v.
City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc). Villarreal does
not allege that city employees retaliated against, investigated, or arrested
anyone else because of their speech. See Culbertson v. Lykos, 790 F.3d 608,
628 (5th Cir. 2015) (holding that the plaintiffs failed to allege a “widespread
practice” of retaliation because they “offered no evidence that similar
retaliation had victimized others.”). We affirm the district court’s judgment
dismissing Villarreal’s municipal liability claim against the City of Laredo. 2
***
It is not a crime to be a journalist. As the Institute for Justice rightly
observes, the position urged by the City of Laredo in this case is “dangerous
to a free society,” for “[i]t assumes that the government can choose proper
and improper channels for newsgathering—indeed, that the government can
decide what is and is not newsworthy.” See also Jobe v. Nat’l Transp. Safety
Bd., 1 F.4th 396, 410 (5th Cir. 2021) (Ho, J., dissenting) (“Open government
is a founding principle of our country.”).
We reverse the judgment of the district court dismissing Villarreal’s
First, Fourth, and Fourteenth Amendments claims, as well as her civil
conspiracy claims. We affirm the district court’s judgment dismissing
Villarreal’s municipal liability claims against the City of Laredo. We remand
the case for further proceedings consistent with this opinion.
2
Villarreal also appeals the district court’s denial of her request for a declaratory
judgment on her claim against the City of Laredo. Because she fails to establish municipal
liability, she is not entitled to a declaratory judgment.
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James C. Ho, Circuit Judge, concurring:
If any principle of constitutional law ought to unite all of us as
Americans, it’s that government has no business telling citizens what views
they may not hold, and what questions they may not ask. “If there is any
fixed star in our constitutional constellation, it is that no official . . . can
prescribe what shall be orthodox in politics, nationalism, religion, or other
matters of opinion or force citizens to confess by word or act their faith
therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
But this principle does not appear to even unite the judiciary, never
mind the citizenry at large. See, e.g., Dr. A. v. Hochul, 595 U.S. _, _, (2021)
(Gorsuch, J., dissenting from the denial of application for injunctive relief)
(Barnette ranks “among our Nation’s proudest boasts,” but as “today’s case
shows, however, sometimes our promises outrun our actions”); Oliver v.
Arnold, 19 F.4th 843, 852 n.7 (5th Cir. 2021) (Ho, J., concurring in denial of
rehearing en banc) (noting disagreement over whether Barnette is a
sufficiently “fixed star” to overcome qualified immunity).
Our split decision today further illustrates this unfortunate trend. I
write separately to offer a few additional thoughts in light of the dissenting
opinion by our learned colleague.
I.
Assuming, as we must at this stage, that the allegations presented in
this case are true, a group of police officers arrested Priscilla Villarreal for no
other reason than that she asked questions they didn’t like. They didn’t like
that, as a citizen journalist, she reported on corruption and abuse in local law
enforcement.
So they jailed her. They took pictures of her in handcuffs with their
cell phones. And they mocked and laughed at her while they did it.
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The dissent responds that the police officers were just dutifully
enforcing a Texas statute. See Tex. Penal Code § 39.06(c).
But no statute may be enforced that violates the Constitution.
Likewise, no officer of the law may hide behind an obviously unconstitutional
statute to justify trampling on a citizen’s fundamental liberties.
As our sister circuits have repeatedly recognized, “some statutes are
so obviously unconstitutional that we will require officials to second-guess
the legislature and refuse to enforce an unconstitutional statute—or face a
suit for damages if they don’t.” Lawrence v. Reed, 406 F.3d 1224, 1233 (10th
Cir. 2005). We don’t grant qualified immunity when an officer claims his
misconduct is authorized by a law “‘so grossly and flagrantly
unconstitutional that any person of reasonable prudence would be bound to
see its flaws.’” Carey v. Nevada Gaming Control Bd., 279 F.3d 873, 881 (9th
Cir. 2002) (quoting Michigan v. DeFillippo, 443 U.S. 31, 38 (1979)).
To its credit, the dissent does not dispute this principle. And for good
reason. Surely none of us would excuse a police officer for enforcing a statute
that blatantly discriminated on the basis of race. By the same token, we
wouldn’t excuse an officer for enforcing a statute that blatantly violated other
constitutional rights, either. 1
1
See, e.g., Guillemard-Ginorio v. Contreras-Gómez, 490 F.3d 31, 40–41 (1st Cir.
2007) (denying qualified immunity where statute allowed officials to suspend a professional
license without a hearing in violation of the Due Process Clause); Leonard v. Robinson, 477
F.3d 347, 359, 361 (6th Cir. 2007) (denying qualified immunity where statute criminalized
cursing by the name of God and indecent language in front of women or children);
Lawrence, 406 F.3d at 1233 (denying qualified immunity where derelict vehicle ordinance
provided “no hearing whatsoever” because that was a “sufficiently obvious” violation of
due process); Vives v. City of New York, 405 F.3d 115, 118 (2nd Cir. 2005) (no qualified
immunity where official relies on a law “so grossly and flagrantly unconstitutional that any
person of reasonable prudence would be bound to see its flaws”) (quoting Connecticut ex
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II.
Moreover, there’s an even simpler principle that we can invoke to
decide this case. Rather than treat § 39.06 as obviously unconstitutional, we
can construe it to avoid unconstitutionality altogether.
In fact, that’s what we’re duty bound to do. Under the canon of
constitutional avoidance, courts must construe statutes reasonably to avoid
unconstitutionality. See, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast
Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (discussing “the
elementary rule” that “every reasonable construction must be resorted to, in
order to save a statute from unconstitutionality”) (cleaned up).
And that’s precisely what the majority does here. As the majority
explains, § 39.06(c) applies only when a person solicits or receives non-public
information from a public servant “with intent to obtain a benefit.” Tex.
Penal Code § 39.06(c). Texas law defines “benefit” to mean “anything
reasonably regarded as economic gain or advantage.” Tex. Penal Code
§ 1.07(a)(7). And there’s no need to construe these provisions to apply here.
It isn’t difficult to come up with plausible interpretations of § 39.06(c)
that pass constitutional muster. For example, imagine a citizen who tries to
obtain non-public information from a public official about a confidential
investigation into a major company, with the intent of turning a profit by
selling that company’s stock short once the investigation becomes public. A
state might very well enact a statute like § 39.06(c) to stop that citizen. And
nothing in the First Amendment prevents the state from doing so.
rel. Blumenthal v. Crotty, 346 F.3d 84, 103 (2nd Cir. 2003)); Lederman v. United States, 291
F.3d 36, 47 (D.C. Cir. 2002) (similar); Aubin v. Columbia Cas. Co., 272 F. Supp. 3d 828,
839 (M.D. La. 2017) (“[N]o reasonable officer could rely on Louisiana’s public
intimidation statute to arrest a person who threatens to have them fired.”).
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That’s a far cry from this case. As the majority explains, “Villarreal
maintains that she acted not to obtain economic gain, but to be a good
journalist.” Ante, at 11.
The dissent responds by claiming that Villarreal acted with the intent
to obtain economic gain. For example, Villarreal “sometimes enjoys a free
meal from appreciative readers.” Post, at 33. It’s not clear why the dissent
finds those free meals fatal. Other journalists are paid full salaries by their
media outlets. And they talk to government sources about non-public
information, too. Should they be arrested, too? Surely not.
Yet that’s precisely (if alarmingly) what the dissent seems to have in
mind. To quote the dissent, “the statute does not exclude journalists.” Post,
at 32. “The Texas Penal Code defines ‘benefit’ as ‘anything reasonably
regarded as economic gain or advantage.’” Id. (cleaned up). And
“[j]ournalists generally gather information ‘with intent to benefit’, for
example, to sell newspapers or magazines, or to attract viewers on television,
computer, iPad or smart-phone screens.” Id.
In sum, it is a crime to be a journalist in Texas, thanks to the dissent’s
reading of § 39.06(c).
There are a number of flaws with the dissent’s approach. But perhaps
the simplest is this: Even if we were to set aside the canon of constitutional
avoidance and accept the dissent’s theory of interpretation of § 39.06(c), the
result is an obvious violation of the First Amendment.
If a statute can’t be reasonably construed to avoid a constitutional
violation, that just means there’s no avoiding the constitutional violation.
III.
Finally, the dissent makes some additional points that warrant a brief
response.
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1. The dissent claims that this concurring opinion “directly
conflicts with the majority opinion’s holding.” Post, at 35.
I don’t see how. There are two separate and independently
compelling reasons why reversal is warranted. And they’re entirely
compatible with one another. First, § 39.06(c) can and should be construed
not to prohibit Villarreal’s acts as a journalist. Second, if that’s wrong, and
the statute does in fact criminalize Villarreal’s acts as a journalist, then §
39.06(c) is obviously unconstitutional.
These are alternative holdings, not contradictory ones. The majority
expressly adopts the former holding. So does the concurrence. The
concurrence simply provides an additional, second holding, in hopes of
offering a coherent and complete intellectual response to the dissent.
2. The dissent contends that our holding today “shreds the
independent intermediary doctrine.” Post, at 36. In essence, the dissent says
that a magistrate issued a warrant, so the officers were entitled to rely on it.
But that’s not how the doctrine works. As the majority already
explains (ante, at 15–16), “the fact that a neutral magistrate has issued a
warrant authorizing the allegedly unconstitutional search or seizure does not
end the inquiry into objective reasonableness.” Messerschmidt v. Millender,
565 U.S. 535, 547 (2012). We deny qualified immunity if “it is obvious that
no reasonably competent officer would have concluded that a warrant should
issue.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Similarly, the dissent argues that, just as we can’t question the officers
because a magistrate issued a warrant, we likewise can’t question the officers
because a federal district court granted them qualified immunity. To quote
the dissent, “[w]hat does [our majority opinion] say about . . . the United
States Magistrate Judge . . . who decided the motion to dismiss on its merits
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and concluded that the defendants had reason to find probable cause to arrest
Villarreal under the Texas statute?” Post, at 31.
My answer is simple: It says that the federal magistrate judge got it
wrong. So we reverse.
If I understand the dissent’s theory, however, it’s that it’s just too
insulting for us to deny qualified immunity, when a fellow member of the
federal judiciary has already voted to grant such immunity. But that would
mean that, if one member of the judiciary would grant qualified immunity,
the rest of us have no choice but to go along. That can’t be right. That not
only misunderstands qualified immunity—it’s an alarming theory of our role
under the Constitution.
Finally, the dissent asserts that “[i]t is asking a lot of law enforcement
officers to know about and then apply the doctrine of constitutional
avoidance.” Post, at 43.
I profoundly disagree. We don’t just ask—we require—every
member of law enforcement to avoid violations of our Constitution. As well
we should, given the considerable coercive powers that we vest in police
officers. See Aucoin v. Cupil, 958 F.3d 379, 380 (5th Cir. 2020) (“Police
officers . . . sometimes must use physical force to enforce our laws and keep
people safe. But as with any use of government power, the law places
important limits on the use of such force.”). And when the violation is as
obvious as it is here, we don’t grant qualified immunity.
3. Lastly, the dissent accuses the majority of “employ[ing] blunt
force rather than careful analysis,” by “cast[ing] aside every individual
defendant’s qualified immunity in connection with the Fourth and First
Amendment claims without regard to the role each was alleged to have
played.” Post, at 36.
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That overreads the majority opinion. The district court categorically
granted qualified immunity to all of the individual defendants, on the ground
that § 39.06(c) gives each defendant a complete defense to the various claims
presented in this case. The majority simply rejects that rationale, and
remands for further proceedings, as we typically do under these
circumstances.
It goes without saying, of course, that if individual defendants have
particular reasons why they should be entitled to qualified immunity,
including the reasons intimated by the dissent, they are welcome to present
those claims on remand.
***
The dissent’s interpretation and defense of § 39.06(c), if accepted,
would undoubtedly condemn countless other journalists besides Villarreal,
as the dissent fully acknowledges. See post, at 32. Yet local officials have never
brought a § 39.06(c) prosecution against any other individual in the nearly
three-decade history of that provision. See ante, at 4.
So make no mistake: There’s no way the police officers here would
have ever enforced § 39.06(c) against a citizen whose views they agreed with,
and whose questions they welcomed.
And that’s what disturbs me most about this case—the unabashedly
selective behavior of the law enforcement officials here.
It is the unfortunate reality of modern American life that more and
more citizens are increasingly unable or unwilling to live amicably with those
we disagree with. Rather than debate, we would destroy. Instead of engaging
opponents in the political arena, we expel them from economic and social life,
using every resource available to us. “Our society . . . once embraced the
quintessentially American maxim: ‘I disapprove of what you say, but I will
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No. 20-40359
defend to the death your right to say it.’ But our culture . . . increasingly
send[s] citizens . . . the opposite message: I disapprove of what you say, and
I will use every means at my disposal to stop you from saying it.” Oliver, 19
F.4th at 854 (Ho, J., concurring in denial of rehearing en banc).
In these already troubling times, this is an exceedingly troubling case.
It’s bad enough when private citizens mistreat others because of their
political views. It’s beyond the pale when law enforcement officials
weaponize the justice system to punish their political opponents. One is
terrible. But the other is totalitarian.
I’m grateful that the majority of our court will not stand for that here.
I just wish we were unanimous in this regard. I concur.
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Priscilla Richman, Chief Judge, concurring in part and dissenting in
part:
The district court faithfully applied the law in holding that the
defendants were entitled to qualified immunity and in granting a motion to
dismiss. I would affirm that court’s judgment across the board. Accordingly,
I concur only to the extent the panel’s majority opinion affirms the dismissal
of Priscilla Villareal’s First Amendment retaliation and municipal liability
claims. I otherwise dissent. The principal disagreements I have with the
majority opinion are that 1) it is likely to confuse the bench and the bar as to
when a First Amendment violation is “obvious” for purposes of qualified
immunity; 2) it misapplies the law in concluding that even though a
magistrate issued arrest warrants for Villareal, a reasonably well-trained law
enforcement officer should not have applied for the warrants because he
would have known that Villareal, whose Complaint describes herself as
having over 120,000 Facebook followers and recounts that the New York
Times has dubbed her as “arguably the most influential journalist in
Laredo,” 1 did not act “with intent to obtain a benefit” within the meaning of
a Texas criminal statute 2 when Villareal obtained and published nonpublic
information from a public servant about two fatalities that were then under
investigation; and 3) the majority opinion misapplies the law governing
selective enforcement claims brought under the Equal Protection Clause of
the Fourteenth Amendment.
The majority opinion trumpets, repeatedly, that “Priscilla Villareal
was put in jail for asking a police officer a question.” 3 One would think in
1
First Amended Complaint ¶ 3 at ROA.153.
2
Tex. Penal Code § 39.06(c) and (d).
3
Ante, at 2.
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reading the first ten pages of the opinion (in its slip opinion form) that none
of the defendants had any basis, whatsoever, for arresting Villareal—that
they arrested her solely because she “politely ask[ed] [a police officer] a few
questions.” 4 But in order to make the jarring assertions that it does, the
majority opinion has to conclude that no reasonably competent law
enforcement officer could objectively have had a basis for seeking to arrest
Villareal under Texas Penal Code § 39.06(c) and (d). That means the
opinion necessarily concludes that the action of the state magistrate in issuing
the arrest warrants “is not just a reasonable mistake, but an unacceptable
error indicating gross incompetence or neglect of duty.” 5 What does that say
about the decision of the United States Magistrate Judge, in this case Judge
John Kazen, who decided the motion to dismiss on its merits and
concluded that the defendants had reason to find probable cause to arrest
Villareal under the Texas statute? 6 Is the federal Magistrate Judge, and for
that matter the undersigned Circuit Judge, “grossly incompeten[t] or
neglect[ful] of duty”?
I do not suggest that each time a magistrate issues an arrest warrant
and a federal district court grants qualified immunity to a state actor based on
the independent intermediary doctrine, a court of appeals cannot have a
4
Ante, at 8.
5
Malley v. Briggs, 475 U.S. 335, 346 n.9 (1986).
6
See ROA.437 (holding “the Court is unable to find that no reasonable officer
would have believed Plaintiff intended to gain economically from the receipt of information
from [police officer] Goodman. Accordingly, the Court finds Plaintiff has not alleged
plausible facts to support an inference that no reasonable officer could have found probable
cause as to the benefit element of the statute.”); see also ROA.453 (concluding that
“Defendants had objectively reasonable grounds to find probable cause that Plaintiff
violated § 39.06(c)”).
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different view. 7 I ask a rhetorical question, intimating that in the present
case, there is room for reasonable disagreement, even among federal judges,
as to the application of Texas Penal Code § 39.06(c).
Pertinent here, section 39.06(c) provides that “[a] person commits an
offense if, with intent to obtain a benefit . . . he solicits or receives from a
public servant information that . . . the public servant has access to by means
of his office or employment . . . and has not been made public.” 8 Subsection
39.06(d) defines “information that has not been made public” to mean “any
information to which the public does not generally have access, and that is
prohibited from disclosure under Chapter 552, Government Code.” 9 There
are elements to the offense other than “asking a question.”
Without citing any case law whatsoever construing the Texas law at
issue, the majority opinion holds that every reasonably competent law
enforcement officer would have understood that a “benefit” as used in Texas
Penal Code § 39.06(c) does not include a “good journalist” 10 gathering
information. But the statute does not exclude journalists, “good” or
otherwise. The Texas Penal Code defines “[b]enefit” as “anything
reasonably regarded as economic gain or advantage, including benefit to any
other person in whose welfare the beneficiary is interested.” 11 Journalists
generally gather information “with intent to benefit”, for example, to sell
newspapers or magazines, or to attract viewers on television, computer, iPad
or smart-phone screens. No allegations in Villareal’s Complaint plausibly
7
See ante, at 26-27.
8
Tex. Penal Code § 39.06(c).
9
Id. § 39.06(d).
10
Ante, at 11.
11
Tex. Penal Code § 1.07(a)(7).
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allege that the defendants had reason to believe that Villareal, as a “citizen”
journalist, as opposed to some other variety of journalist, or as a uniquely
situated journalist, had no intent to obtain an economic gain or advantage.
To the contrary, Villareal’s Complaint alleges that the affidavits supporting
the arrest warrants asserted that “Villarreal’s release of the information
before other news outlets gained her popularity in Facebook.” 12 This is what
journalists, including “good” journalists, do. They often attempt to
“scoop” other news sources to increase readership or listeners. It would be
reasonable for a law enforcement officer to think that there was an economic
benefit to attracting readers or viewers. As a general proposition, it is
necessary to draw readers or viewers to sustain the journalistic undertaking.
In fact, Villareal’s Complaint says that she “sometimes enjoys a free meal
from appreciative readers, . . . occasionally receives fees for promoting a local
business [and] has used her Facebook page [where all of her reporting is
published] to ask for donations for new equipment necessary to continue her
citizen journalism efforts.” 13 With great respect, the majority opinion is off
base in holding that no reasonably competent officer could objectively have
thought that Villareal obtained information from her back-door source within
the Laredo Police Department with an “intent to benefit.”
Texas courts, including the Supreme Court of Texas, have held that
statutes defining “information that has not been made public,” 14 as used in
section 39.06, constitutionally shield certain categories of sensitive
12
First Amended Complaint ¶ 92 at ROA.171.
13
First Amended Complaint ¶ 35 at ROA.159.
14
See generally Tex. Gov’t Code ch. 52; id. §§ 552.001, 552.101, 552.108.
33
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information from public disclosure. 15 Villareal’s Complaint recounts that
after she was arrested, she sought a writ of habeas corpus, and a Texas state
trial court ruled orally from the bench that Texas Penal Code § 39.06 was
unconstitutionally vague. 16 That decision was not appealed. But none of the
defendants in the present case had the benefit of the state court’s ruling at
the time they sought warrants for Villareal’s arrest.
There are certainly valid questions as to whether Texas Penal Code
§ 39.06(c) would violate the Constitution if applied in certain scenarios.
However, we do not need to resolve and do not resolve those questions. Our
focus in this case is on qualified immunity, and the majority opinion correctly
holds that “[o]n its face, Texas Penal Code § 39.06(c) is not [an] ‘obviously
unconstitutional statute.’” 17 But at the same time, the opinion vociferously
and insistently declares that “[j]ust as it is obvious that Mary Anne Sause has
a constitutional right to pray [referring to Sause v. Bauer 18], it is likewise
obvious that Priscilla Villarreal has a constitutional right to ask questions of
public officials”19; “[i]f the freedom of speech secured by the First
Amendment includes the right to curse at a public official, then it surely
includes the right to politely ask that official a few questions” 20; “[i]t should
be obvious to any reasonable police officer that locking up a journalist for
15
See Houston Chronicle Publ’g Co. v. City of Houston, 536 S.W.2d 559 (Tex. 1976),
aff’g Houston Chronicle Publ’g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.—
Houston [1st] 1975).
16
First Amended Complaint ¶ 127 at ROA.179.
17
Ante, at 11.
18
__ U.S. __, 138 S. Ct. 2561 (2018).
19
Ante, at 8.
20
Ante, at 8 (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 569 (1942); Sandul
v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997); and Buffkins v. City of Omaha, 922 F.2d 465,
467 (8th Cir. 1990)).
34
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asking a question violates the First Amendment” 21; “[t]he complaint here
alleges an obvious violation of the First Amendment. The district court erred
in holding otherwise” 22; “[i]f freedom of the press guarantees the right to
publish information from the government, then it surely guarantees the right
to ask the government for that information in the first place” 23; “[p]ut
simply: If the government cannot punish someone for publishing the Pentagon
Papers, how can it punish someone for simply asking for them?”. 24
What are the bench and bar to make of this? Similarly, what are the
bench and bar to make of the passages in the majority opinion cataloging cases
in which qualified immunity was denied because law enforcement officials
attempted to enforce “obviously unconstitutional statutes”? 25 That
discussion is followed by a single sentence, which is an actual holding of the
majority opinion: “[o]n its face, Texas Penal Code § 39.06(c) is not one of
those ‘obviously unconstitutional’ statutes.” 26 That holding, though a
grudging one, correctly resolves the issue of whether section 39.06(c) is
“obviously” unconstitutional. That holding should not be lost or overlooked
due to its brevity or obfuscated by preceding or succeeding passages in the
majority opinion.
Nor should Judge Ho’s concurring opinion muddy the water. It
directly conflicts with the majority opinion’s holding. The concurring
21
Ante, at 12.
22
Ante, at 12-13.
23
Ante, at 8-9 (citing In re Express-News Corp., 695 F.2d 807, 808 (5th Cir. 1982);
then citing The Florida Star v. BJF, 491 U.S. 524, 538 (1989)).
24
Ante, at 9 (emphasis in original) (citing New York Times Co. v. United States, 403
U.S. 713 (1971) (per curiam)).
25
Ante, at 10.
26
Ante, at 11.
35
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opinion leads off its discussion of Texas Penal Code § 39.06(c) saying, “no
statute may be enforced that violates the Constitution” and “[l]ikewise, no
officer of the law may hide behind an obviously unconstitutional statute to
justify trampling on a citizen’s fundamental liberties.” 27 This and the
discussion that follows would validate Villareal’s insistence that
section 39.06(c) is obviously unconstitutional.
None of the impassioned observations about the First Amendment in
the majority opinion or Judge Ho’s concurring opinion would be relevant
to the case before us if a reasonably competent officer could objectively have
concluded there was cause to arrest Villareal for suspected violations of
Texas Penal Code § 39.06. This is the core disagreement I have with the
majority opinion; that, and the fact that it shreds the independent
intermediary doctrine.
The majority opinion also employs blunt force rather than careful
analysis. It casts aside every individual defendant’s qualified immunity in
connection with the Fourth and First Amendment claims without regard to
the role each was alleged to have played. For example, it concludes that every
individual defendant violated the Fourth Amendment because there was no
probable cause to arrest Villareal. Yet, not every defendant was alleged to
have participated in preparing and presenting arrest warrant affidavits. This
exemplifies the rush to judgment in this case, heaping condemnation on all.
I
A
Villareal obtained then published the name of a person who
committed suicide and the identity of his employer, which was, according to
27
Ante, at 23.
36
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Villareal’s Complaint, the United States Customs and Border Protection
agency, while that death was being investigated. On another occasion she
obtained and published the name of a family involved in a fatal vehicular
accident while the crash was under investigation. The identities of the
suicide and vehicular crash victims had not been made public by law
enforcement authorities when Villareal posted the information on her
Facebook page. The City of Laredo had an established means of providing
information to the public and the press, of which Villareal was aware, and the
information that Villareal publicized did not come from that source. Villareal
instead reached out to an employee of the Laredo Police Department (LPD)
who was her back-channel contact.
Villareal’s arrest was based on Texas Penal Code § 39.06. That Texas
statute provides in pertinent part:
(c) A person commits an offense if, with intent to obtain
a benefit or with intent to harm or defraud another, he solicits
or receives from a public servant information that:
(1) the public servant has access to by means of
his office or employment; and
(2) has not been made public.
(d) In this section, “information that has not been made
public” means any information to which the public does not
generally have access, and that is prohibited from disclosure
under Chapter 552, Government Code. 28
Chapter 552 of the Texas Government Code, 29 expressly referenced
in section 39.06(d), is known as the Texas Public Information Act and was
28
Tex. Penal Code § 39.06(c).
29
TEX. GOV’T CODE ANN. §§ 552.001-.353 (West 2012).
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formerly known as the Open Records Act. 30 Chapter 552 excludes certain
categories of information from public disclosure, including certain
information pertaining to the detection, investigation or prosecution of a
crime. 31 A Texas court has confirmed that the reference in section 39.06(d)
to “any information . . . that is prohibited from disclosure under Chapter 552,
Government Code” means “the set of exceptions to disclosure listed in
Subchapter C” of the Texas Public Information Act. 32
The Attorney General of Texas in 1976, John Hill, who later became
the Chief Justice of the Supreme Court of Texas, explained more than forty
years ago why investigations regarding a death, even if it may appear to be a
suicide or caused by a vehicular accident, can come within the exception to
public disclosure while an investigation remains open:
30
See Act of May 29, 1995, 74th Leg., R.S., ch. 1035, § 29, 1995 Tex. Gen. Laws
5127, 5142 (effective Sept. 1, 1995).
31
See Tex. Gov’t Code § 552.108, which provides in relevant part:
Sec. 552.108. EXCEPTION: CERTAIN LAW
ENFORCEMENT, CORRECTIONS, AND PROSECUTORIAL
INFORMATION. (a) Information held by a law enforcement agency or
prosecutor that deals with the detection, investigation, or prosecution of
crime is excepted from the requirements of Section 552.021 if:
(1) release of the information would interfere with the detection,
investigation, or prosecution of crime; [or]
(2) it is information that deals with the detection, investigation,
or prosecution of crime only in relation to an investigation that did not
result in conviction or deferred adjudication. . . .
32
See Texas v. Ford, 179 S.W.3d 117, 123 (Tex. App.—San Antonio 2005, no pet.)
(holding that “prohibited from disclosure” under § 39.06(d) means “the set of exceptions
to disclosure listed in Subchapter C” of the TPIA); Tex. Gov’t Code § 552.108
(requiring the release of “basic information about an arrested person, an arrest, or a crime”
but not other information if it would “interfere with the detection, investigation, or
prosecution of crime”).
38
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Police investigations of incidents such as this death by other
than natural causes are rarely closed completely, and what
initially appears to be an accident may later be found to have
involved a criminal act. Cases are not always closed by
prosecution or a determination that no crime was involved.
The Open Records Act excepts from required public disclosure
records of law enforcement agencies “that deal with the
detection and investigation of a crime.” We do not believe that
this exception was intended to be read so narrowly that it only
applies to those investigative records which in fact lead to
prosecution. We believe that it was also intended to protect
other valid interests such as maintaining as confidential the
investigative techniques and procedures used in law
enforcement and insuring the privacy and safety of witnesses
willing to cooperate with law enforcement officers. These
interests in non-disclosure remain even though there is no
prosecution in a particular case. 33
Mainstream, legitimate media outlets routinely withhold the identity
of accident victims until public officials or family members release that
information publicly. Similarly, the identity of those who commit suicide is
generally not released by legitimate, mainstream media until a family
spokesperson or public officials provide that information. The identities of
victims are often withheld by public officials to ensure there is no interference
with an ongoing investigation.
The majority opinion asserts that Villareal had already obtained the
identities of the victims from a witness at or near each of the scenes of the
fatalities before she “confirmed” each of the victims’ identities with the LPD
employee who was her source. While that assertion may be true, it is beside
the point, not to mention misleading, because Villareal has not plausibly
33
Tex. Att’y Gen. ORD-127 at 7 (1976).
39
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alleged that any defendant she sued knew that she had obtained the identities
of the victims before she approached her back-channel LPD source. Nor has
Villareal plausibly alleged that any defendant had a basis to believe or even
suspect that the original sources of Villareal’s information were witnesses at
or near the scenes of the deaths.
Villareal did assert in her Complaint that the defendants knew or
should have known that the information she published “was generally
accessible by the public,” 34 but those allegations are conclusory and
unsupported by any specific facts. Villareal asserts only that her “initial
receipt of the information from two non-government individuals
demonstrates” that the information “was generally accessible by the
public.” 35 This is not a plausible construction of what section 39.06(c)(2)
means when it refers to “information that . . . has not been made public” or
34
See, e.g., First Amended Complaint ¶ 90 at ROA.171 (alleging that “Ruiz knew
or should have known that the information Villarreal published was not subject to a TPIA
exception and was generally accessible to the public. But Ruiz failed to mention or discuss
these essential elements of the Statute in the Arrest Warrant Affidavits. He also failed to
disclose that the information Villarreal received or published was generally accessible to
the public and not subject to a TPIA exception. On information and belief, Ruiz’s
misrepresentations and omissions were deliberate”); First Amended Complaint ¶ 91 at
ROA.171 (alleging “[d]espite knowing that the information in the Targeted Publications
was publicly accessible information, Defendants Alaniz, Jacaman, Treviño, Ruiz, DV, and
the Doe Defendants deliberately did not question or attempt to question Villarreal about
the circumstances of her access to the information in Targeted Publications, in furtherance
of their efforts to manufacture the Arrest Warrant Affidavits and cause the arrest of
Villarreal without probable cause”).
35
See First Amended Complaint ¶ 77 at ROA.168 (alleging “[t]here also was no
probable cause because the information Villarreal received and published in the Targeted
Publications was generally accessible by the public, as Villarreal’s initial receipt of the
information from two non-government individuals demonstrates. Any reasonable official
would have understood the Statute required a showing that the information at issue be that
to which public does not generally have access. And any reasonable official would have
understood that the information in the Targeted Publications did not meet this element”).
40
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of what section 39.06(d) means when it refers to “any information to which
the public does not generally have access.” Under Villareal’s reading of the
statute, information would rarely if ever be nonpublic because in virtually
every scenario, a person who is not a “public servant” would have some
knowledge of the event or incident. The fact that there are witnesses to a
crime, for example, does not mean that information the witnesses have or
may have related to other individuals is publicly accessible. Information
individual witnesses have is not commonly thought of as generally accessible
to the public.
Nor is the law well-established that before an arrest can be made, law
enforcement officers must question the suspect to ascertain whether
information the officers believe has been obtained in violation of a statute
such as Texas Penal Code § 39.06 was instead obtained from a source other
than a public servant. Villareal has not pointed to any authority for such a
proposition.
Villareal’s conclusory allegations that one or more defendants knew
or should have known that she first acquired the information she published
from a source other than a public servant do not raise a material fact question
regarding the qualified immunity analysis.
Each of the defendants could have reasonably believed there was
probable cause to arrest Villareal. Villareal’s First Amendment claim stems
from her arrest under section 39.06. If there was no Fourth Amendment
violation, the defendants are also entitled to qualified immunity as to
Villareal’s First Amendment claims. Villareal’s First Amendment claim is
inextricably intertwined with, tethered to, and inseparable from the facts that
gave rise to her Fourth Amendment claim. The Texas statute is not
41
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“obviously” unconstitutional. It does not purport to criminalize “asking
questions of public officials.” 36
B
Perhaps in recognition that its conclusion regarding the obviousness
of a First Amendment claim has no legs, the majority opinion proffers what
it says is an alternative basis for finding a First Amendment violation, which
is that “it is far from clear that the officers can even state a plausible case
against Villareal under § 39.06(c) in the first place.” 37 The opinion reasons
that Villareal did not seek non-public information from her police-
department source “with intent to obtain a benefit” 38 and that “no
reasonable officer could have found probable cause under § 39.06(c)—
separate and apart from whether § 39.06(c) could constitutionally apply to a
person motivated by journalism rather than by profits.” 39 The majority
opinion concludes that Villarreal acted out of a desire to be a “good
journalist,” not out of a “purely” economic calculation. 40
The statute’s text does not require pure economic motivation, only
solicitation or receipt “with intent to obtain a benefit.” 41 The Texas Penal
Code defines “[b]enefit” as “anything reasonably regarded as economic gain
or advantage, including benefit to any other person in whose welfare the
beneficiary is interested.” 42 As discussed above, section 39.06(c) and (d) do
36
Ante, at 8.
37
Ante, at 11.
38
Ante, at 11.
39
Ante, at 12.
40
Ante, at 11.
41
See Tex. Penal Code § 39.06(d).
42
Id. § 1.07(a)(7).
42
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not exclude journalists, and as a general proposition, journalists are engaged
in an economic enterprise when they gather information that they intend or
hope to publish or disseminate.
Judge Ho’s concurring opinion concludes that, because of the
doctrine of constitutional avoidance, section 39.06(c) must be construed to
exclude journalists or else it would be unconstitutional. It is asking a lot of
law enforcement officers to know about and then apply the doctrine of
constitutional avoidance.
It is also far from clear that journalists must be categorically excluded
from the reach of section 39.06(c) or else that statute is unconstitutional.
Suppose that a national media outlet authorizes one of its journalists to pay a
police officer to obtain a copy of a nonpublic witness statement in a high-
profile criminal case. The media company then publishes that statement, in
the hopes that its scoop will boost ratings and therefore advertising revenue.
The witness is murdered shortly after her statement is publicized. It is at
least debatable whether applying section 39.06(c) to such facts would violate
the First Amendment.
A reasonably well-trained law enforcement officer could have
concluded that Villareal sought non-public information from her LPD source
“with intent to obtain a benefit.” Moreover, Villareal’s brand of journalism
and economic benefit are two sides of the same coin: through “scooping”
traditional news sources and sensationalizing tragedies such as a suicide and
a fatal vehicular crash, the popularity of Villarreal’s Facebook page might (or
arguably would likely) increase and, in turn, the likelihood of fees, donations,
and free meals would increase. Even though Villarreal “does not generate
regular revenue” from her Facebook page, 43 it would have been reasonable
43
ROA.159.
43
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for a law enforcement officer to think that she intended to gain at least some
economic benefit by solicitating and receiving non-public information. As
noted above, Villarreal admitted in her Complaint that she “sometimes
enjoys a free meal from appreciative readers, and occasionally receives fees
for promoting a local business” and that she has “used her Facebook page to
ask for donations for new equipment necessary to continue her citizen
journalism efforts.” 44
The majority opinion maintains that Villareal sought only
“‘corroborating information’ to confirm what she had already received from
other sources.” 45 But as already discussed, Villareal did not plausibly allege
that any defendant knew she had obtained the information from another
source before or even after she made inquiry of the LPD officer.
No court had construed the meaning of “with intent to obtain a
benefit” as used in Texas Penal Code § 39.06 when Villareal was arrested.
There was no clearly established law that there was no probable cause for
arresting Villareal, and there was no clearly established law that in arresting
Villareal based on section 39.06, the defendants were violating her First
Amendment rights.
II
The majority opinion denies the defendants qualified immunity on the
First and Fourth Amendment claims in spite of the fact that a neutral
magistrate issued the warrants for Villareal’s arrest. “[W]hether an official
protected by qualified immunity may be held personally liable for an allegedly
44
ROA.159.
45
Ante, at 11.
44
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unlawful official action generally turns on the ‘objective legal reasonableness’
of the action, assessed in light of the legal rules that were ‘clearly established’
at the time it was taken.” 46 The Supreme Court has explained that under the
independent intermediary doctrine, when an officer seizes someone pursuant
to a warrant, “the fact that a neutral magistrate has issued a warrant is the
clearest indication that the officers acted in an objectively reasonable manner
or, as we have sometimes put it, in ‘objective good faith.’” 47
The independent intermediary doctrine applies to First and Fourth
Amendment violations. 48 Though issuance of a warrant by a magistrate
“does not end the inquiry into objective reasonableness” of an officer’s
actions, there can be liability “when ‘it is obvious that no reasonably
competent officer would have concluded that a warrant should issue.’” 49
The “threshold for establishing this exception is a high one, and it should
be.” 50 That is because “‘[i]t is a sound presumption that the magistrate is
more qualified than the police officer to make a probable cause
determination, and it goes without saying that where a magistrate acts
mistakenly in issuing a warrant but within the range of professional
competence of a magistrate, the officer who requested the warrant cannot be
held liable.’” 51
46
Anderson v. Creighton, 483 U.S. 635, 639 (1987) (internal citation omitted)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)).
47
Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quoting United States v.
Leon, 468 U.S. 897, 922-23 (1984)).
48
Buehler v. City of Austin/Austin Police Dep’t, 824 F.3d 548, 553-54 (5th Cir. 2016).
49
Messerschmidt, 565 U.S. at 547 (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)).
50
Id.
51
Id. 547-48 (quoting Malley, 475 U.S. at 346 n.9).
45
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Whether the facts set forth in the affidavits supporting the request for
warrants for Villareal’s arrest under Texas Penal Code § 39.06(c) gave rise
to probable cause was within the range of professional competence of a
magistrate. The defendants were entitled to qualified immunity.
In brushing aside the intermediary doctrine, the majority opinion
builds on its mischaracterization of Villareal’s claims. The opinion musters
its talismanic recitation that “a reasonably well-trained officer would have
understood that arresting a journalist for merely asking a question clearly
violates the First Amendment.” 52 The opinion then extends this rationale to
justify its finding of a Fourth Amendment violation. 53 The opinion’s ultimate
conclusion is that “[j]ust as the First Amendment violation alleged in the
Complaint was obvious for purposes of qualified immunity, so too the Fourth
Amendment violation alleged here.” 54 But it cannot be overemphasized:
Villareal did not plausibly allege that she was arrested for “merely asking a
question” and the majority opinion has not identified any basis for concluding
that Villareal has stated a claim that she was arrested for simply asking a
question.
The majority opinion dashes off a statement that officers may not find
probable cause using “an unjustifiable standard, such as speech protected by
the First Amendment.” 55 But Villareal’s arrest was not based on protected
speech. It was based on allegations that she solicited and received nonpublic
information from a government official with the intent to obtain a benefit in
52
Ante, at 16.
53
Ante, at 16.
54
Ante, at 16.
55
Ante, at 15 (internal quotation marks omitted) (quoting Mink v. Knox, 613 F.3d
995, 1003-04 (10th Cir. 2010)).
46
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No. 20-40359
violation of a statute that the majority opinion correctly recognizes is not
“obviously unconstitutional.” 56
To resolve the independent intermediary doctrine issue in Villareal’s
favor, it must be “obvious that no reasonably competent officer would have
concluded that a warrant should issue.” 57 The discussions above regarding
the elements of Texas Penal Code § 39.06(c) and (d), and probable cause to
arrest Villareal under that statute apply equally to the inquiry of whether the
intermediary doctrine applies. The standard for liability has not been met
here.
This is not a case in which the defendants tainted the intermediary’s
decision-making process, such as “maliciously withh[olding] relevant
information or otherwise misdirect[ing] the intermediary,” 58 and the
majority opinion does not conclude otherwise. Villarreal’s Complaint did
assert that Ruiz failed to disclose in the arrest affidavits that the information
Villareal received or published was accessible to the public and was not
subject to an exception under the Texas Public Information Act. 59 But she
failed to raise this issue on appeal 60 and has therefore forfeited any potential
taint exception argument. 61
56
See Tex. Penal Code §§ 39.06(c)-(d); ante, at 11.
57
Messerschmidt v. Millender, 565 U.S. 535, 547 (2012) (quoting Malley v. Briggs, 475
U.S. 335, 341 (1986)).
58
Shaw v. Villanueva, 918 F.3d 414, 417 (5th Cir. 2019).
59
See First Amended Complaint ¶ 90 at ROA.171.
60
See Villarreal Br. at 42-44.
61
See Rollins v. Home Depot USA, 8 F.4th 393, 397 & n.1 (5th Cir. 2021).
47
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III
As for the selective enforcement claim, Villareal has not made the
“prerequisite” showing “that similarly situated individuals were treated
differently.” 62 Villareal has not alleged that one person, ever, solicited and
received nonpublic information in a facial violation of § 39.06(c). 63 Instead,
her Complaint refers vaguely to “those who had asked for or received
information from local law enforcement officials, and . . . persons who
published truthful and publicly-accessible information on a newsworthy
matter,” such as “local professional newspaper journalists, local professional
broadcast journalists, and citizens who published on matters of local public
concern.” 64
The majority opinion concludes that because “we must draw all
reasonable inferences in favor of Villareal,” we should “have no difficulty
observing that journalists commonly ask for nonpublic information from
public officials,” even though “Villareal did not name a specific journalist
who solicited or received nonpublic information from the LPD in her
Complaint.” 65 The majority opinion’s approach, which allows courts to
speculate and draw inferences when no facts are alleged, departs from our
law in this area. Under our precedent, to allege selective enforcement
adequately, plaintiffs must identify “an example” of a similarly situated
62
Bryan v. City of Madison, 213 F.3d 267, 276 (5th Cir. 2000).
63
See ante, at 17 (conceding this point); ROA.187.
64
ROA.187.
65
Ante, at 18.
48
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comparator who was nonetheless treated differently. 66 Villareal’s failure to
do so dooms her selective enforcement claim.
IV
Finally, Villareal cannot maintain a § 1983 conspiracy claim. Such
claims require an underlying constitutional violation and are “not
actionable” against officials entitled to qualified immunity. 67 Accordingly,
Villareal’s civil conspiracy claim fails in tandem with her First, Fourth, and
Fourteenth Amendment claims.
V
Villareal sued eight individuals by name and two other individuals as
John Does. Her Complaint identifies only “Alaniz, Jacaman, Treviño, Ruiz,
DV, and the Doe Defendants” as being involved in the decision to arrest
Villareal and preparing the affidavits supporting the arrest warrants. There
are no colorable allegations against the other defendants, yet the majority
opinion holds that none of the defendants have qualified immunity.
It also unclear from the majority opinion precisely what actions the
defendants took that violated Villareal’s Fourth or First Amendment rights
and which of the ten individual defendants may be liable for each of those
violations. Is “threaten[ing] to take Villreal’s cell phone when she was
66
Bryan, 213 F.3d at 276-77; see Rountree v. Dyson, 892 F.3d 681, 685 (5th Cir. 2018)
(holding that a plaintiff “did not sufficiently allege that he ha[d] been treated differently
from others similarly situated” when “[h]is complaint generally allege[d] that other
similarly situated individuals were treated differently, but he point[ed] to no specific person
or persons and provide[d] no specifics as to their violations”); Lindquist v. City of Pasadena,
669 F.3d 225, 234 (5th Cir. 2012) (“The Lindquists have not satisfied their burden of
pointing to similarly situated comparators” (emphasis added)).
67
Hale v. Townley, 45 F.3d 914, 921 (5th Cir. 1995); see Shaw v. Villanueva, 918 F.3d
414, 419 (5th Cir. 2019).
49
Case: 20-40359 Document: 00516431109 Page: 50 Date Filed: 08/12/2022
No. 20-40359
recording a crime scene from behind a barricade—while saying nothing to the
other members of the media standing next to her” 68 a violation for which one
or more defendants may be liable? If so, which defendants?
Judge Ho’s concurring opinion says, “They took pictures of her
[Villareal] in handcuffs with their cell phones. And they mocked and laughed
at her while they did it.” 69 The majority opinion also refers to these
allegations in Villareal’s Complaint. 70 Does the alleged conduct constitute
inappropriate, unprofessional, shameful, disgraceful, dishonorable conduct?
Yes, absolutely. Does it amount to a constitutional violation? The majority
opinion does not say.
An equally important question is, who is “they”? Villareal’s
Complaint identifies only “Martinez, Montemayor and Guerrero” as having
been present when she was photographed in handcuffs and mocked. Are all
of the defendants nevertheless potentially liable?
The majority opinion paints with a broad brush, as does Judge Ho’s
concurring opinion. They make no effort to consider the particular
allegations as to each individual defendant. All are denied qualified
immunity. At the very least, there are no plausible allegations of
constitutional violations by Martinez, Montemayor and Guerrero. They are
entitled to qualified immunity. Each of the other defendants is entitled to
know what they must defend against in the district court.
* * *
I would affirm the district court’s dismissal of all of Villareal’s claims.
68
Ante, at 3.
69
Ante, at 22.
70
Ante, at 4.
50