United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
August 23, 2023
No. 21-60733 Lyle W. Cayce
____________ Clerk
Robin Mayfield; Owen Mayfield; William Mayfield;
Estate of Mark Stevens Mayfield,
Plaintiffs—Appellants,
versus
Butler Snow, L.L.P.; Donald Clark, Jr.; City of
Madison, Mississippi; Mary Hawkins-Butler, Individually
and in her Official Capacity; Police Chief Gene Waldrop,
Individually and in his Official Capacity; Chuck Harrison, Individually
and in his Official Capacity; Vickie Currie, Individually and in her
Official Capacity; John and Jane Does 1-10; Richard
Wilbourn, III,
Defendants—Appellees,
Dale Danks, Jr.; Janet Danks; Jordan Russell; Quinton
Dickerson,
Movants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:17-CV-514
______________________________
ON PETITION FOR REHEARING EN BANC
No. 21-60733
Before Richman, Chief Judge, and Ho and Engelhardt, Circuit
Judges. ∗
Per Curiam:
The court having been polled at the request of one of its members, and
a majority of the judges who are in regular active service and not disqualified
not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), on
the Court’s own motion, rehearing en banc is DENIED.
In the en banc poll, three judges voted in favor of rehearing (Smith,
Elrod, and Ho), and eleven voted against rehearing (Richman, Jones,
Stewart, Haynes, Graves, Higginson, Willett, Duncan, Engelhardt, Oldham,
and Douglas).
_____________________
∗
Judges Southwick and Wilson did not participate in the consideration of the
rehearing en banc.
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No. 21-60733
James C. Ho, Circuit Judge, joined by Smith, Circuit Judge, dissenting
from denial of rehearing en banc:
At first blush, Mark Mayfield, Priscilla Villarreal, and Sylvia Gonzalez
don’t appear to have a lot in common.
Mayfield was a Tea Party activist who supported a primary challenger
to a U.S. Senator. See Mayfield v. Butler Snow, _ F.4th _, _ (5th Cir. 2023).
Villarreal writes stories on Facebook “in profanity-laced Spanglish”
criticizing local police and prosecutors in a sprawling border city. Simon
Romero, La Gordiloca: The Swearing Muckraker Upending Border Journalism,
N.Y. Times (Mar. 10, 2019). See also Villarreal v. City of Laredo, 44 F.4th
363, 368 (5th Cir. 2022), vacated on reh’g en banc, 52 F.4th 265 (5th Cir.
2022). Gonzalez is a retiree who wanted to give back to her small bedroom
community by running for local office. See Gonzalez v. Trevino, 42 F.4th 487,
489 (5th Cir. 2022), reh’g en banc den., 60 F.4th 906 (5th Cir. 2022).
If they’d ever met, they likely would’ve disagreed on countless issues.
But they share at least one thing in common: They all disagreed with
those in power. And they all believe that they were punished for it—that they
were charged, arrested, jailed, and humiliated for the crime of criticizing
those in office. They all assert that it’s wrong for officials to jail their
opponents as an intimidation tactic. They all allege that that’s exactly what
happened to them. And they all ask this court for the opportunity to tell their
stories to a jury and prove their case in a court of law.
The First Amendment doesn’t mean much if you’re only allowed to
express views favored by the government. There’s not much left to freedom
of speech if you have to worry about being jailed for disagreeing with public
officials. Indeed, it’s hard to imagine anything more inimical to our Founding
principles. See, e.g., Laurence H. Silberman, Hoover’s Institution, Wall St.
J., July 20, 2005 (“[T]he most heinous act in which a democratic
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No. 21-60733
government can engage is to use its law enforcement machinery for political
ends.”). “Nothing is more corrosive to public confidence in our criminal
justice system than the perception that there are two different legal
standards—one for the powerful, the popular, and the well-connected, and
another for everyone else.” United States v. Taffaro, 919 F.3d 947, 949 (5th
Cir. 2019) (Ho, J., concurring in the judgment).
But I fear that that’s what we’re allowing. In case after case, citizens
present compelling allegations that officials are abusing government power
to reward allies and punish adversaries. And we stand by and let it happen.
So I’m concerned about the state of freedom of speech in our circuit.
I’m heartened that a diverse amicus coalition of respected public interest
groups have asked us to hold officials accountable in cases like these. See
Gonzalez, 60 F.4th at 913 & n. 4 (Ho, J., dissenting from denial of rehearing
en banc). These organizations no doubt disagree with one another on
virtually every major issue under the sun. Yet they’ve joined forces to
support the basic right of every American to criticize their government.
I regret that we remain unable to muster that same unity in these cases.
I worry that, as a result, “citizens in our circuit are now vulnerable to public
officials who choose to weaponize criminal statutes against citizens whose
political views they disfavor.” Id. at 911. I dissent from the denial of
rehearing en banc. 1
_____________________
1
To be clear, I have no quarrel with how my distinguished colleagues on the per
curiam panel decided this case. After all, we were bound by circuit precedent. That’s why
I concurred in the judgment. _ F.4th at _ n.*. It’s not just that we were bound by Gonzalez
(which was issued prior to our decision but after briefing and oral argument in this case).
We were also bound by our court’s previous ruling in this case. See Mayfield v. Currie, 976
F.3d 482 (5th Cir. 2020). As the per curiam correctly observes:
As this court has previously noted, Plaintiffs brought claims under
multiple provisions of the Constitution, including but not limited to the
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No. 21-60733
I.
This case is not just the latest example of officials abusing our criminal
justice system to punish political adversaries. It’s also the most tragic.
Plaintiffs present serious allegations that Defendants abused the
criminal justice system to destroy the livelihood and life of a citizen for
opposing an incumbent U.S. Senator in a contested primary election—and
that their misuse of government power drove him to suicide.
A group of political activists asked a local attorney, Mark Mayfield, to
help them take a photograph of the Senator’s wife. (They chose Mayfield
because his mother lived in the same nursing home.)
Mayfield declined to take the photo. But he did tell them where in the
nursing home the Senator’s wife lived.
Perhaps he shouldn’t have provided the information he was asked.
But did he deserve to be arrested, prosecuted, and imprisoned? Did he
deserve to be humiliated, even driven to suicide—and his family destroyed?
It’s unfathomable that law enforcement officials would’ve devoted
scarce police resources to pursuing Mayfield, but for one thing: The people
in power disliked his political views.
_____________________
First and Fourth Amendments. See Mayfield, 976 F.3d at 486 n.1. But this
court concluded that “Plaintiff-Appellees’ claims against Officer Currie
. . . fall under the Fourth Amendment.” Id. As that opinion explained, “in
order to bring a First Amendment claim for retaliatory arrest, a plaintiff
generally must first show the absence of probable cause for the arrest, i.e., a
Fourth Amendment violation.” Id. (citing Nieves v. Bartlett, 139 S. Ct.
1715 (2019)).
_ F.4th at _ (emphasis added). In other words, our earlier decision in Mayfield foreclosed
the theory adopted in Gonzalez—that a plaintiff could win even if there was probable cause.
So Plaintiffs had no choice but to dispute the existence of probable cause in this appeal.
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No. 21-60733
Substantial record evidence supports that common-sense inference.
To begin with, a former prosecutor, Dow Yoder, testified that he personally
witnessed a number of public officials—including the mayor, prosecutors,
and police officers—boast about their efforts to persecute political opponents
of the incumbent Senator, including Mayfield. He also reported these
statements to public corruption investigators at the FBI.
For example, according to Yoder, a prosecutor told him that he
“hate[s] those [activist] sons of bitches” and that “it kills [him] so bad to
have to say there’s no evidence of any felonies in th[e] case.” The prosecutor
added that “proving the crime . . . is not the point.”
In addition, Yoder testified that the mayor told him that, “[i]f the
DA’s office is scared to . . . prosecute these [challenger’s] supporters,” she
had other attorneys “just drooling, ready to get prosecuting.”
There’s more. Another former prosecutor admitted during his own
deposition that he had contacted the mayor and informed her that he was
“furious” about the incident and wanted to be appointed special prosecutor
in the matter. And Defendants acknowledged that the statutes they
considered didn’t cover the activists’ conduct.
II.
These allegations should’ve been sufficient to state a First
Amendment retaliation claim. Deploying the criminal justice system to
target one’s political opponents violates the First Amendment. And that is
so even if the arrest was supported by probable cause. See, e.g., Lozman v.
City of Riviera Beach, 138 S. Ct. 1945, 1955 (2018) (“Lozman need not prove
the absence of probable cause to maintain a claim of retaliatory arrest.”);
Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019) (same).
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No. 21-60733
After all, there are countless situations in which “officers have
probable cause to make arrests, but typically exercise their discretion not to
do so.” Nieves, 139 S. Ct. at 1727. So there’s a real “‘risk that some police
officers may exploit the arrest power as a means of suppressing speech.’” Id.
(quoting Lozman, 138 S. Ct. at 1953–54). But just as we would never accept
probable cause as a defense to a racially motivated prosecution, we shouldn’t
accept probable cause as a defense to a politically motivated one, either.
So this case should’ve gone to trial. Yet our court’s precedents
foreclose that result. In Gonzalez, we held that a plaintiff may not proceed on
a First Amendment retaliation claim unless he presents objective
“comparator” evidence that identifies other individuals who engaged in
similar conduct yet were not arrested. See 42 F.4th at 492.
Our decision in Gonzalez significantly under-protects freedom of
speech. Just look at this case: There’s powerful testimony that public
officials used the criminal justice system to punish the political opponents of
an incumbent U.S. Senator. But they did so by using obscure theories of law
that made it effectively impossible to assemble evidence of comparable
scenarios. (Exactly how is Mayfield’s family supposed to track down other
scenarios where a citizen provided similar information to another person, but
was not arrested—as Gonzalez requires?)
As a result, Gonzalez ties our hands and requires us to deny relief—no
matter how obvious it is that these actions would never have been taken
against a citizen who held views favored by those in power.
Like other forms of discrimination, political viewpoint discrimination
can come in all sorts of shapes and sizes. It makes little sense to protect only
certain people, depending on the particular size and shape of the abuse. In a
country that claims to be free, any politically-motivated prosecution should
be well out of bounds.
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No. 21-60733
***
Justice Scalia warned us about the dangers of unchecked prosecutorial
power—especially for those who hold views disfavored by public officials.
As he put it, “the most dangerous power of the prosecutor” is “that
he will pick people that he thinks he should get, rather than cases that need
to be prosecuted.” Morrison v. Olson, 487 U.S. 654, 728 (1988) (Scalia, J.,
dissenting) (quoting Robert Jackson, The Federal Prosecutor, Address
Delivered at the Second Annual Conference of United States Attorneys, Apr.
1, 1940). And he further explained why the risk is so real:
With the law books filled with a great assortment of crimes, a
prosecutor stands a fair chance of finding at least a technical
violation of some act on the part of almost anyone. In such a
case, it is not a question of discovering the commission of a
crime and then looking for the man who has committed it, it is
a question of picking the man and then searching the law books,
or putting investigators to work, to pin some offense on him. It
is in this realm—in which the prosecutor picks some person whom he
dislikes or desires to embarrass, or selects some group of unpopular
persons and then looks for an offense, that the greatest danger of
abuse of prosecuting power lies. It is here that law enforcement
becomes personal, and the real crime becomes that of being
unpopular with the predominant or governing group, being attached
to the wrong political views, or being personally obnoxious to or in
the way of the prosecutor himself.
Id. (quoting Attorney General Robert Jackson) (emphasis added).
I respectfully dissent from the denial of rehearing en banc.
8