Villarreal v. City of Laredo

Case: 20-40359 Document: 00517042176 Page: 1 Date Filed: 01/23/2024

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

FILED
____________
January 23, 2024
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 Jones, Smith, Stewart,
Elrod, Southwick, Haynes, Graves, Higginson, Willett,
Ho, Duncan, Engelhardt, Oldham, Wilson and Douglas,
Circuit Judges.*

Edith H. Jones, Circuit Judge:

_____________________
*
Judge Ramirez joined the court recently and elected not to participate in this
case.
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No. 20-40359

Priscilla Villarreal alleged First and Fourth Amendment § 1983 claims
arising from her brief arrest for publicly disseminating nonpublic law
enforcement information, including the identities of a suicide and deceased
motor vehicle accident victims. The district court dismissed pursuant to
Federal Rule of Civil Procedure 12(b)(6) because the officials involved were
entitled to qualified immunity.
Villarreal was arrested for illegally soliciting information that had not
yet been officially made public “with intent to obtain a benefit.” Tex.
Penal Code § 39.06(c), (d). The arrest warrants were approved by the
Webb County District Attorney’s office and by a magistrate. We do not
reach the ultimate question of this facially valid statute’s constitutionality as
applied to this citizen-journalist. Federal courts do not charge law
enforcement officers with predicting the constitutionality of statutes because
the Fourth Amendment’s benchmark is reasonableness, and “[t]o be
reasonable is not to be perfect.” Heien v. North Carolina, 574 U.S. 54, 60,
135 S. Ct. 530, 536 (2014). Moreover, the statute is not “obviously
unconstitutional” as applied here.
Villarreal and others portray her as a martyr for the sake of journalism.
That is inappropriate. She could have followed Texas law, or challenged that
law in court, before reporting nonpublic information from the backchannel
source. By skirting Texas law, Villarreal revealed information that could
have severely emotionally harmed the families of decedents and interfered
with ongoing investigations. Mainstream, legitimate media outlets routinely
withhold the identity of accident victims or those who committed suicide
until public officials or family members release that information publicly.
Villarreal sought to capitalize on others’ tragedies to propel her reputation
and career.

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For a number of reasons, the officials were entitled to qualified
immunity and the district court’s judgment is AFFIRMED.
I. Background
Villarreal is a well-known Laredo citizen-journalist (a/k/a
“Lagordiloca”) who publishes to over a hundred thousand followers on
Facebook.1 She frequently posts about local police activity, including content
unfavorable to the Laredo Police Department (“LPD” or “Department”),
the district attorney, and other local officials.
Her complaint alleges that, as a result of her “gritty style of journalism
and often colorful commentary,” Villarreal has critics as well as admirers.
The admirers treat her to occasional free meals, and she occasionally receives
fees for promoting local businesses. She has used her Facebook page to ask
for and obtain donations for new equipment to support her journalistic
efforts. But, she alleges, officials in Laredo city government and the LPD
engaged in a campaign to harass and intimidate her and stifle her work.
The events before us began on April 11, 2017, when Villarreal
published, as a likely suicide, the name and occupation of a U.S. Border Patrol
employee who jumped off a Laredo public overpass to his death. She had
corroborated this information with LPD Officer Barbara Goodman, her
back-channel source, who was not an official city or LPD information officer.
Then, on May 6, she posted a live feed of a fatal traffic accident, including
the location and last name of a decedent in a family from Houston.
Officer Goodman also corroborated the information on this tragic event. In
each instance, Villarreal went behind the official information channel and

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1
See Simon Romero, La Gordiloca: The Swearing Muckraker Upending Border
Journalism, N.Y. Times, Mar. 10, 2019, https://tinyurl.com/4ntwktwy.

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published while the incident was being investigated. She acknowledges that
for several years she had published information obtained unofficially.
Villarreal alleges that several named Appellees conspired to suppress
her speech and arrest her for violating a law they had to know was
unconstitutionally applied to her. Facts revealed by publicly available
documents and incorporated by reference in Villarreal’s complaint complete
the picture.2
LPD investigator Deyanira Villarreal (“DV” or “investigator”)3 is
tasked with upholding the Department’s professional standards. She
received a tip from her colleagues on July 10, 2017, that Officer Barbara
Goodman was secretly communicating with Villarreal.4 Along with the tip,
DV noticed that some of the content posted to Villarreal’s Facebook page
was not otherwise publicly available information.

_____________________
2
“[W]hen ruling on a Rule 12 motion, a court may consider “documents that are
referred to in the plaintiff’s complaint and are central to the plaintiff’s claim.” Armstrong
v. Ashley, 60 F.4th 262, 272 n.10 (5th Cir. 2023) (quoting Scanlan v. Tex. A&M Univ.,
343 F.3d 533, 536 (5th Cir. 2003)); see also Lormand v. US Unwired, Inc., 565 F.3d 228, 251
(5th Cir. 2009). Villarreal’s complaint relies on, and references, criminal complaints, a
search warrant affidavit and magistrate approval, and arrest warrant affidavits and
approvals. Those documents were not attached to the complaint, but they are publicly
available documents Villarreal incorporated in her complaint by reference and are central
to her claims. Villarreal does not deny the information in those documents, although she
alleges the documents were “manufacture[d].” Her conclusory allegation is insufficient to
dispute all the information in the incorporated documents. “[C]onclusory statements,
naked assertions, and threadbare recitals fail to plausibly show violations . . . [of] clearly
established constitutional rights.” Armstrong, 60 F.4th at 269.
3
Officer Deyanira Villarreal shares Plaintiff-Appellant’s last name. We are aware
of no familial relationship between them.
4
Villarreal alleges Does 1 and 2 tipped DV. Does 1 and 2 are allegedly employees
of either Laredo or Webb County.

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Two weeks later, DV assigned Officer Juan Ruiz to investigate. Ruiz
prepared two grand jury subpoenas for phone records from cellphones
belonging to Officer Goodman, Officer Goodman’s husband, and Priscilla
Villarreal. Webb County Assistant District Attorney Marisela Jacaman
approved the subpoenas.
The phone records revealed that Officer Goodman and Villarreal
communicated with each other regularly and at specific times coinciding with
law enforcement activities.5 Ruiz presented to a Webb County magistrate an
affidavit in support of a warrant to search Officer Goodman’s cellphones.
The court approved that search. Officers performed forensic extractions on
the phones and sent additional subpoenas for call logs. As a result of the
investigation, Goodman was suspended for twenty days.
With evidence in hand, Ruiz prepared two probable cause affidavits to
arrest Villarreal for her conversations with Officer Goodman that were
uncovered during the investigation. In the first conversation, Villarreal
texted Officer Goodman about the man who committed suicide by jumping
from a highway overpass. She asked about the deceased’s age, name, and
whether he was employed by U.S. Customs and Border Protection.
Goodman answered her questions.6
The second conversation involved a fatal car accident. On the date of
the accident, Villarreal sent dozens of text messages to Officer Goodman.
Villarreal then posted on Facebook that one person, whom she named, died
in the accident. She also disclosed that a family from Houston was in the car

_____________________
5
The document indicates about 72 calls per month between Villarreal and Officer
Goodman occurring from January 1 to July 26, 2017.
6
Officer Goodman deleted these messages, but LPD software retrieved them.

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and that three children had been med-evac’d to San Antonio. Villarreal’s
text messages asked Goodman about those precise details.
Ruiz’s affidavits stated that the information Villarreal requested, and
Goodman provided, “was not available to the public at that time.” The
affidavits further stated that by posting this information on her Facebook
page “before the official release by the Laredo Police Department Public
Information Officer” and ahead of the official news media, Villarreal gained
“popularity in ‘Facebook.’”
Attorney Jacaman approved the two affidavits and submitted them to
the Webb County Justice of the Peace. The judge, finding probable cause,
issued two warrants for Villarreal’s arrest for misuse of official information
in violation of section 39.06(c) of the Texas Penal Code. Section 39.06(c)
prohibits individuals from soliciting or receiving nonpublic information from
a public servant who has access to that information by virtue of her position
with the intent to obtain a benefit.
Villarreal voluntarily surrendered. She alleges that she was detained,
not that she was “jailed,” and she was released on bond the same day.
Villarreal alleges that when she surrendered, many LPD officers and
employees, including Enedina Martinez, Laura Montemayor, and Alfredo
Guerrero, surrounded her, laughed at her, took pictures with their cell
phones, and “otherwise show[ed] their animus toward Villarreal with an
intent to humiliate and embarrass her.”
Villarreal petitioned for a writ of habeas corpus. A Texas district court
judge granted her petition and, in a bench ruling, held section 39.06(c)
unconstitutionally vague. The state did not appeal.

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II. Procedural Background
In April 2019, Villarreal sued Laredo police officers, the Doe
defendants, the Laredo Chief of Police (Claudio Treviño, Jr.), Webb County
prosecutors, the county, and the city in federal court under § 1983 for
violating the First, Fourth, and Fourteenth Amendments. She alleged
multiple counts, including direct and retaliatory violations of free speech and
freedom of the press, wrongful arrest and detention, selective enforcement
in violation of equal protection, civil conspiracy, and supervisory and
municipal liability.
The defendants moved to dismiss under Rule 12(b)(6) on the basis of
their qualified immunity and for failure to state a claim. The district court
dismissed all claims. Villarreal appealed, excepting her claims against Laredo
and Webb County.
Initially, a panel of this court reversed in part and held principally that
the defendants were not entitled to qualified immunity because the arrest was
“obviously” unconstitutional. Villarreal v. City of Laredo, 17 F.4th 532, 541
(5th Cir. 2021). Later, the panel replaced its opinion with a new one but
reached the same result. Villarreal v. City of Laredo, 44 F.4th 363, 372 (5th
Cir. 2022) (opinion on rehearing). Chief Judge Richman concurred in part
and dissented in part.7 Id. at 382. The panel opinion was vacated and ordered
to be reheard en banc. Villarreal v. City of Laredo, 52 F.4th 265, 265 (5th Cir.
2022).
This court reviews the district court’s order granting a Rule 12(b)(6)
motion de novo to determine whether the facts pled state plausible claims
cognizable in law. NiGen Biotech, LLC v. Paxton, 804 F.3d 389, 393 (5th Cir.
_____________________
7
The Chief Judge concurred to the extent that the panel majority affirmed
dismissal of Villarreal’s First Amendment retaliation and municipal liability claims.

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2015) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974 (2007)).
III. Discussion

A. Fourth Amendment Arrest Claim

We first address Villarreal’s Fourth Amendment and First
Amendment claims against Ruiz for the search warrant affidavits; DV, for
her role in the investigation; Does 1 and 2, who tipped off DV; Treviño, who
supervises LPD officers; Jacaman, the prosecutor who signed off on the
subpoenas and warrant affidavits; and Alaniz, another prosecutor who
allegedly endorsed the subpoenas and warrant affidavits. Villarreal alleges
each of these defendants caused a warrant to issue without probable cause for
conduct protected by the First Amendment. Because Villarreal’s First
Amendment free speech claim arises from her arrest and is inextricable from
her Fourth Amendment claim, liability for both rises and falls on whether the
officers violated clearly established law under the Fourth Amendment. See
Sause v. Bauer, 585 U.S. __, 138 S. Ct. 2561, 2563 (2018) (“When an
officer’s order to stop praying is alleged to have occurred during the course
of investigative conduct that implicates Fourth Amendment rights, the First
and Fourth Amendment issues may be inextricable.”).

To obtain money damages against the defendants, Villarreal must
overcome their qualified immunity by showing that (a) each defendant
violated a constitutional right, and (b) the right at issue was “clearly
established” at the time of the alleged misconduct. Pearson v. Callahan,
555 U.S. 223, 232, 129 S. Ct. 808, 816 (2009). To be clearly established
means that “[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that
right.” Anderson v. Creighton, 583 U.S. 635, 639, 107 S. Ct. 3034, 3039

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(1987). Accordingly, qualified immunity shields from suit “all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs,
475 U.S. 335, 341, 106 S. Ct. 1092, 1096 (1986).8

Villarreal fails to satisfy her burden on either prong. This is not a case
about a “citizen journalist just asking questions.” That clever but misleading
phrase cannot relieve this court of our obligation to evaluate Villarreal’s
conduct against the standards of Texas law. Villarreal was arrested on the
defendants’ reasonable belief, confirmed by a neutral magistrate, that
probable cause existed based on her conduct in violation of a Texas criminal
statute that had not been declared unconstitutional. We need not speculate
whether section 39.06(c) allegedly violates the First Amendment as applied
to citizen journalists who solicit and receive nonpublic information through
unofficial channels. No controlling precedent gave the defendants fair notice
that their conduct, or this statute, violates the Constitution facially or as
applied to Villarreal. Each defendant9 is entitled to qualified immunity from
suit.

_____________________
8
Ordinarily, a plaintiff must explain why each individual defendant is not entitled
to qualified immunity based on that defendant’s actions and the corresponding applicable
law. See Ashcroft v. Iqbal, 556 U.S. 662, 577, 129 S. Ct. 1937, 1948 (2009) (“[A] plaintiff
must plead that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.”); Meadours v. Ermel, 483 F.3d 417, 421 (5th Cir.
2007). Plaintiff failed to plead properly. However, the district court opinion, in concluding
that the statute did not facially violate clearly established law and probable cause existed
for the arrest, correctly found all defendants protected by qualified immunity.
9
We assume arguendo that Jacaman and Alaniz, Assistant District Attorneys, are
counted among defendant officers despite their positions as prosecutors. Participating in
the issuance of the warrants here was arguably outside their absolute prosecutorial
immunity. See Richard H. Fallon Jr., et al., Hart and Wechsler’s The
Federal Courts and the Federal System 1044 (7th ed. 2015)
(“[P]rosecutorial immunity extends only to prosecutorial functions related to courtroom

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1. The Officials Reasonably Believed They Had Probable Cause
Probable cause to arrest “is not a high bar.” Kaley v. United States,
571 U.S. 320, 338, 134 S. Ct. 1090, 1103 (2014). It “requires only a
probability or substantial chance of criminal activity, not an actual showing
of such activity.” Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 S. Ct. 2317,
2335 n.13 (1983). And in the qualified immunity context, “[e]ven law
enforcement officials who ‘reasonably but mistakenly conclude that probable
cause is present’ are entitled to immunity.” Mendenhall v. Riser, 213 F.3d
226, 230 (5th Cir. 2000) (quoting Hunter v. Bryant, 502 U.S. 224, 227,
112 S. Ct. 534, 536 (1991)).
We begin with the text of the statute officers believed Villarreal
violated. A person violates section 39.06(c) of the Texas Penal Code
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.10
Section 39.06(d) defines “information that has not been made public”
as “any information to which the public does not generally have access, and
that is prohibited from disclosure under” the Texas Public Information Act
(“TPIA”), Tex. Gov’t Code §§ 552.001–.353.
The Texas Penal Code further defines a “benefit” as “anything
reasonably regarded as economic gain or advantage, including benefit to any
_____________________
advocacy[.]”). Under this assumption, they are entitled to qualified immunity along with
the police officer defendants. See id.
10
A similar provision restricts public servants: “A public servant commits an
offense if with intent to obtain a benefit or with intent to harm or defraud another, he
discloses or uses information for a nongovernmental purpose that: (1) he has access to by
means of his office or employment; and (2) has not been made public.” Tex. Penal
Code § 39.06(b).

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other person in whose welfare the beneficiary is interested.” Tex. Penal
Code § 1.07(a)(7).
The TPIA, expressly referenced in section 39.06(c), governs the
overall availability of public records.11 This Act, formerly known as the Open
Records Act, states as its policy “that each person is entitled, unless
otherwise expressly provided by law, at all times to complete information
about the affairs of government.” Tex. Gov’t Code § 552.001. But to
protect important governmental interests, and ensure that some categories of
nonpublic information are not unwisely disclosed, the TPIA lists various
exceptions from required public disclosure. Id. §§ 552.101–.163.12 Officials
lack discretion to disclose some information. For example, “information
considered to be confidential by law, either constitutional, statutory, or by
judicial decision,” is protected from disclosure. Id. § 552.101; see also id.
§ 552.007(a) (allowing voluntary disclosure “unless the disclosure is
expressly prohibited by law or the information is confidential under law”).
For a small subset of the categories of excepted information, improper
disclosure may result in criminal penalties. See Tex. Att’y Gen. Op.
ORD 676, 2002 WL 31827950, at *2 (2002) (citing Tex. Gov’t Code
§§ 552.007, 552.101, 552.352). Further, certain information pertinent to the

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11
The TPIA requires agencies promptly to respond to requests for information,
with appeal available to the state Attorney General and state courts. Tex. Gov’t Code
§§ 552.221(a), 552.234(a), 552.305(b), 552.325. In addition, the LPD employed a public
information officer entrusted with reporting to the press and public.
12
Texas courts have held that the distinction between exceptions and outright
prohibitions on disclosing information is irrelevant for purposes of section 39.06(c). See
State v. Newton, 179 S.W.3d 104, 109 (Tex. App.—San Antonio 2005) (holding “the phrase
‘prohibited from disclosure’ in § 39.06(d)” means “the set of exceptions to disclosure
listed in Subchapter C” of the TPIA); Texas v. Ford, 179 S.W.3d 117, 123 (Tex. App.—San
Antonio 2005) (same); Tidwell v. State, No. 08-11-00322-CR, 2013 WL 6405498, at *12
(Tex. App.—El Paso 2013) (same).

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detection, investigation, or prosecution of crime is excluded from disclosure.
See 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 detention, investigation, or
prosecution of crime”).
The Supreme Court of Texas has held that statutes like section 39.06
permissibly shield from public disclosure certain sensitive “information that
has not been made public.” See Hous. Chron. Pub. Co. v. City of Houston,
536 S.W.2d 559, 561 (Tex. 1976) (upholding provisions of the Texas Open
Records Act, predecessor to the TPIA, that excepted certain police records
from disclosure), aff’g Hous. Chronicle Pub. Co. v. City of Houston, 531 S.W.2d
177 (Tex. Civ. App.—Houston [14th Dist.] 1975).
The state has a longstanding policy to protect individual privacy in law
enforcement situations that appear to involve suicide or vehicular accidents.
In 1976, the Texas Attorney General authoritatively interpreted the Open
Records Provision dealing with criminal investigation, and stated:
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 . . . insuring
the privacy and safety of witnesses willing to cooperate with
law enforcement officers.
Tex. Att’y Gen. Op. ORD 127 at 7 (1976); see also Indus. Found. of the S. v.
Tex. Indus. Accident Bd., 540 S.W.2d 668, 678–85 (Tex. 1976) (recognizing
both a federal constitutional right and a separate common-law right to
privacy); id. at 685 (“[I]nformation [is] deemed confidential by law if (1) the
information contains highly intimate or embarrassing facts the publication of
which would be highly objectionable to a reasonable person, and (2) the
information is not of legitimate concern to the public.”).

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Recently, the Texas Attorney General has stated that under the Texas
Constitution, “surviving family members can have a privacy interest in
information relating to their deceased relatives.” Tex. Att’y Gen. OR2022-
36798, 2022 WL 17552725, at *2 (2022) (citing Nat’l Archives & Recs. Admin.
v. Favish, 541 U.S. 157, 168, 124 S. Ct. 1570, 1578 (2004)). This right extends
at least until the government has notified the deceased’s family. See Office
of the Texas Attorney General, Public Information Act Handbook 76 & n.363
(2022), https://perma.cc/6NJB-X5NM (citing Tex. Gov’t Code
§ 552.304). Thus, because Texas law protects the privacy of the bereaved
family, the identity of a suicide or a deceased car accident victim may be
considered confidential, especially when a law enforcement investigation has
just begun or is ongoing.
Finally, Texas law prevents the disclosure of certain personal
identifying information of victims in accident reports and exempts disclosure
of information related to ongoing criminal investigations. See Tex.
Transp. Code § 550.065(f)(2)(A) (requiring the Texas Department of
Transportation to withhold or redact “the first, middle, and last name of any
person listed in a collision report”); Tex. Gov’t Code § 552.108(a)(1)–
(2) (exempting from disclosure information dealing with the investigation of
a crime).
Moving from Texas law to the objective facts available to the
defendant officers, there was abundant evidence for a reasonable belief that
Villarreal’s conduct matched the elements of a section 39.06(c) violation.
Officer Ruiz attested in support of a warrant for misuse of official information
that Villarreal “had received or solicited the name and condition of a traffic
accident victim and the name and identification of a suicide victim” from
Officer Goodman while their deaths were under investigation. The affidavit
also states that Villarreal gained popularity through her readership on
Facebook. Officer Goodman was in possession of nonpublic information by

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virtue of her position but was not authorized to provide this information to
Villarreal.
Villarreal disputes none of these facts. Instead, Villarreal denies that
she solicited and received the information with “intent to obtain a benefit,”
and she contends that the information was not “nonpublic.” She also
maintains that the warrants fail because the officers did not identify the
specific TPIA or other exceptions on which they relied. We reject each
contention. In her most extensive argument, which is dealt with in
succeeding sections, Villarreal asserts that section 39.06 was “obviously
unconstitutional” as applied to her conduct as a citizen-journalist.
First, Villarreal claims she could not “benefit” from soliciting
information from Officer Goodman if she already knew the requested
information from tips. In other words, soliciting and receiving information
that she already knew, even though she could not confirm its accuracy,
cannot be a prohibited benefit. But Texas law defines “benefit” broadly as
“anything reasonably regarded as economic gain or advantage.” Tex.
Penal Code § 1.07(a)(7). Scorning to await an official LPD report, and
ignoring other TPIA open records procedures, Villarreal secretly solicited
information from Officer Goodman to bolster her first-to-report reputation.
Her reputation is integral to her local fame and success as a journalist. After
all, if she did not confirm the name and condition of a traffic accident victim
or suicide victim from a back-channel police source, Villarreal would face a
choice: (a) report the raw witness information and run the risk of grotesque
error, or (b) take time to go through local or TPIA channels and sacrifice the
status of getting a scoop.
Villarreal’s federal complaint, in any event, readily admits the
“benefits” of her journalistic style. She boasts over one hundred thousand
Facebook followers and a well-cultivated reputation, which has engendered

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publicity in the New York Times, free meals “from appreciative readers,”
“fees for promoting a local business,” and “donations for new equipment
necessary to her citizen journalism efforts.” Villarreal pleads that she “does
not generate regular revenue or other regular economic gain from her citizen
journalism.” That bald assertion, however, does not contradict the pleadings
showing she benefited from receiving the nonpublic information solicited
through a backchannel.
Further, at the time of her arrest, no Texas court had construed the
meaning of “with intent to obtain a benefit” as used in section 39.06(c) to
exclude the perks available to citizen journalists. Her effort at statutory
construction hardly shows the law was so clearly established that “every
reasonable [law enforcement officer] would have understood” the statute
could not apply to Villarreal. Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5,
142 S. Ct. 4, 7 (2021).
Second, Villarreal maintains that information already known to her
cannot be nonpublic. More precisely, her complaint alleges that, because she
initially received information from two non-government witnesses, that
information was “generally accessible by the public.” She also asserts that
Officer Goodman simply corroborated the information she had
independently ascertained. But whether information is nonpublic is
determined by the terms of the statute. There is no “corroboration”
exclusion to the provision. What matters under section 39.06 is whether the
information qualifies for a TPIA exception or is prohibited from disclosure
under the Texas Constitution, a statute, or a judicial decision. As Chief Judge
Richman explained in her panel dissent,
[u]nder Villar[r]eal’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

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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.
Villarreal, 44 F.4th at 388 (Richman, C.J., dissenting). That a private third-
party knows some information does not change whether the information is
nonpublic under the statute.
Further undermining this (unconvincing) interpretation of the
statute, Villarreal never alleges that any defendant actually knew “that she
had obtained the identities of the victims before she approached her
backchannel source.” Id. at 387. But if the officers did not know she had
obtained information first from non-government sources, then they could not
have been unreasonable in inferring that she obtained the information
illegally from Officer Goodman.
Third, Villarreal contends that probable cause was defeated because
the affidavits fail to identify a specific TPIA exception. But an arrest warrant
affidavit is not required to paraphrase the elements of the law the defendant
allegedly violated. See Adams v. Williams, 407 U.S. 143, 149, 92 S. Ct. 1921,
1924 (1972) (“Probable cause does not require the same type of specific
evidence of each element of the offense as would be needed to support a
conviction.”). The whole point of a probable cause affidavit is to present
relevant “facts and circumstances” so that a judge can independently
determine the legal question—whether probable cause exists that a law was
violated. United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992). The
judge looks to the “totality of the circumstances” and decides “whether
these historical facts, viewed from the standpoint of an objectively reasonable
police officer,” demonstrate “a probability or substantial chance of criminal

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activity.” District of Columbia v. Wesby, 583 U.S. 48, 56–57, 138 S. Ct. 577,
586 (2018) (quotations and citations omitted).
Here, the affidavits clearly and expressly allege that Villarreal sought
and obtained nonpublic information from an unofficial source in violation of
section 39.06(c). They describe the information, the benefit obtained, and
the circumstances surrounding how she used an illicit backchannel to obtain
the nonpublic information. In reporting the identity of victims, the employer
of one victim, and the victims’ possible causes of death while those matters
remained under investigation, the conduct alleged in the affidavits sufficed
to establish probable cause.13 We reiterate: probable cause is a “practical,
nontechnical conception that deals with the factual and practical
considerations of everyday life on which reasonable and prudent men, not
legal technicians, act.” Maryland v. Pringle, 540 U.S. 366, 370, 124 S. Ct.
795, 799 (2003) (internal citations and quotations omitted). It turns “on the
assessment of probabilities in particular factual context—not readily, or even
usefully, reduced to a neat set of legal rules.” Id. at 371, 124 S. Ct. at 800
(internal citation omitted).
It is not this court’s task to say whether Villarreal would have been
convicted under the statute. But applicable state law confirms that all of the
officers involved here reasonably believed they had probable cause to seek
her arrest.14

_____________________
13
See also Tex. Gov’t Code § 552.108(a)(1)–(2) (exempting such information
from disclosure).
14
Villarreal repeatedly alleges that the officials were motivated by animus toward
her style of journalism and past criticism of LPD. We need not discuss this point, because
it is well established that the motivation for an arrest is not relevant to its constitutionality.
See Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996). The extent to

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2. No “Obvious Unconstitutionality”

The crux of Villarreal’s argument is that even if probable cause
existed, she was unlawfully arrested because as applied to her,
section 39.06(c) “obviously” violates the First Amendment. The panel
majority initially agreed with her, but on rehearing, it retreated from
proclaiming section 39.06(c) “obviously” unconstitutional. See Villarreal,
44 F.4th at 384 (5th Cir. 2022) (opinion on rehearing) (“On its face, Texas
Penal Code § 39.06(c) is not one of those ‘obviously unconstitutional’
statutes.”). As that turnabout suggests, Villarreal’s contention fails to
surpass three high hurdles. First, no final decision of a state court had held
the law unconstitutional at the time of the arrest. Thus, even if the law were
ultimately held to violate the First Amendment as applied to Villarreal’s
conduct, probable cause would continue to shield the officers from liability.
Second, the Supreme Court and lower courts have not relevantly defined the
contours of an “obviously unconstitutional” statute. Third, the independent
intermediary rule affords qualified immunity to the officers because a neutral
magistrate issued the warrants for Villarreal’s arrest.
a. Enacted Statutes Are Presumptively Constitutional
Courts do not charge officers with predicting the constitutionality of
statutes because the Fourth Amendment’s benchmark is reasonableness.
Heien, 574 U.S. at 60, 135 S. Ct. at 536. Accordingly, the law affords officers
“fair leeway” to make reasonable mistakes of law and fact. Id. at 61,
135 S. Ct. at 536 (quoting Brinegar v. United States, 338 U.S. 160, 176,
69 S. Ct. 1302, 1311 (1949)). In the end, “[w]hether the facts turn out to be
_____________________
which motivation may affect Villarreal’s retaliatory First Amendment prosecution claim is
discussed in Section C.1 below.

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not what was thought, or the law turns out to be not what was thought, the
result is the same: The facts are outside the scope of the law.” Id. Thus,
when a grand jury fails to indict, or charges are later dismissed, officers
cannot be held liable solely for arrests made reasonably but without probable
cause.15 Whether section 39.06 ultimately violates First Amendment
principles as applied here, “the officers’ assumption that the law was valid
was reasonable.” Id. at 64, 135 S. Ct. at 538.16
This principle defeats Villarreal’s contention. At the time of
Villarreal’s arrest, no final decision of a state court had held section 39.06(c)
unconstitutional. When Villarreal petitioned for a writ of habeas corpus after
posting bail, the Texas district court orally granted the writ and ruled
section 39.06 unconstitutionally vague. But that decision is irrelevant. First,
courts only take account of what notice officers had at the time of arrest. As
just noted, police officers are not “expected to predict the future course of
constitutional law.” Wilson v. Layne, 526 U.S. 603, 617, 119 S. Ct. 1692, 1701
(1999) (quoting Procunier v. Navarette, 434 U.S. 555, 562, 98 S. Ct. 855, 860
(1978)). Second, the state habeas court declined to apply section 39.06 to
Villarreal not because its application violated the First Amendment, but
because the law was unconstitutionally vague. (Villarreal does not contend
the statute is unconstitutionally vague.)
Prior to Villarreal’s arrest, one Texas intermediate appellate court
explicitly left open the question of this statute’s vagueness, while distancing
_____________________
15
The Supreme Court’s recent decision in Thompson v. Clark, 596 U.S. __,
142 S. Ct. 1332 (2022), is not to the contrary. That decision held only that actual innocence
is not required as an element of a Fourth Amendment malicious prosecution claim. Id. at
1335.
16
Chief Justice Roberts’s opinion for the Court in Heien traces this sort of
immunity for reasonable mistakes of law back to Chief Justice John Marshall in United
States v. Riddle, 9 U.S. (5 Cranch) 311 (1809). 574 U.S. at 62, 135 S. Ct. at 537.

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itself from the trial court’s holding of unconstitutionality. State v. Newton,
179 S.W.3d 104, 111 (Tex. App.—San Antonio 2005) (“[W]e do not address
the remaining issues raised on appeal, including the constitutionality of
§ 39.06(c) and (d) of the Penal Code.”).17 Moreover, Newton was a
companion case to another prosecution initiated under section 39.06(c). See
State v. Ford, 179 S.W.3d 117, 125 (Tex. App.—San Antonio 2005)
(dismissing indictment because the TPIA does not apply to judicial
information); see also Matter of J.B.K., 931 S.W.2d 581, 584 (Tex. App.—El
Paso 1996) (referring to a potential violation of section 39.06(c) in an attorney
discipline proceeding). Several other prosecutions have been brought under
the companion section 39.06(b), which prohibits a public servant from
disclosing nonpublic information. See Patel v. Trevino, No. 01-20-00445-CV,
2022 WL 3720135 (Tex. App.—Houston Aug. 30, 2022); Tidwell v. State,
No. XX-XXXXXXX-CR, 2013 WL 6405498 (Tex. App.—El Paso Dec. 4, 2013);
Reyna v. State, No. 13-02-499-CR, 2006 WL 20772 (Tex. App.—Corpus
Christi Jan. 5, 2006). These cases reinforce that the officers had no need to
predict the future exegesis of a presumptively constitutional law.
b. Section 39.06(c) Is Not Grossly and Flagrantly Unconstitutional as Applied
Villarreal characterizes her First Amendment claims as invoking her
rights “to peaceably ask officials questions and to engage in routine
newsgathering and reporting.” These rights, she asserts, are “obvious to

_____________________
17
The dissents inaccurately trumpet that district court decisions in Newton and
Ford held sections 39.06(c) and (d) unconstitutionally vague. Even so, such rulings were
abrogated by the court of appeals, which did not endorse the lower court’s constitutional
ruling when dismissing indictments on the statutory analysis that grand jury testimony is
not included in the Open Records Act. It would have been judicially improper for the
appellate court to rule on a constitutional ground when the statutory basis was not even
applicable to the defendants. Moreover, these companion cases arose out of the same
transaction, so they can hardly be disaggregated into two separate constitutional rulings.

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every reasonable official.” If probable cause turned on a defendant’s self-
serving rationales for her conduct, very little law enforcement could take
place. But under existing caselaw, officers are almost always entitled to
qualified immunity when enforcing even an unconstitutional law, so long as
they have probable cause. Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S. Ct.
2627, 2632 (1979). DeFillippo explained the rule and a possible exception for
“a law so grossly and flagrantly unconstitutional that any person of
reasonable prudence would be bound to see its flaws.” Id. (emphasis
added).18 The Court in Heien paraphrased this language when summarizing
DeFillippo. See Heien, 574 U.S. at 64, 135 S. Ct. at 538 (“Acknowledging that
the outcome might have been different had the ordinance been ‘grossly and
flagrantly unconstitutional,’ we concluded that under the circumstances,
‘there was abundant probable cause to satisfy the constitutional prerequisite
for an arrest.’” (quoting DeFillippo, 443 U.S. at 37–38, 99 S. Ct. at 2632)).19
Both DeFillippo and Heien note no more than a possible exception—which the
Supreme Court has not further developed in the forty-three years since
DeFillippo was decided. Although a few circuit court decisions before and
after DeFillippo have rested on the idea of “obvious unconstitutionality,”
none is apposite here, and this case presents no occasion to deviate from the
broad proposition that “[t]he enactment of a law forecloses speculation by

_____________________
18
Cf. Myers v. Anderson, 238 U.S. 368, 382, 35 S. Ct. 932, 936 (1915) (rejecting
immunity of officials against § 1983 liability for refusing to register black citizens to vote in
plain violation of the Fifteenth Amendment). Myers, of course, does not deal with probable
cause.
19
DeFillippo, it bears emphasis, is not limited to the exclusionary rule remedy for a
constitutional violation—it applies to the determination of a Fourth Amendment violation
itself. See Heien, 574 U.S. at 66, 135 S. Ct. at 539.

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enforcement officers concerning its constitutionality.” DeFillippo, 443 U.S.
at 38, 99 S. Ct. at 2632.20
Villarreal analogizes her conduct to that in Sause v. Bauer, in which,
she alleges, the Supreme Court held it is “obvious” that the right to pray is
protected by the First Amendment, and that an arrest of someone praying
was an obvious constitutional violation. She misconstrues Sause. The
Supreme Court reversed and remanded for further proceedings because
there were not enough facts to determine whether “circumstances [existed]
in which a police officer may lawfully prevent a person from praying at a
particular time and place.” Sause, 138 S. Ct. at 2562.
For example, if an officer places a suspect under arrest and
orders the suspect to enter a police vehicle for transportation
to jail, the suspect does not have a right to delay that trip by
insisting on first engaging in conduct that, at another time,
would be protected by the First Amendment.
Id. at 2562–63. Sause made no holding that the “obvious” violation
exception applies broadly to arrests that may impinge on First Amendment
rights; indeed, the court’s hypothetical example suggests the opposite
proposition.

_____________________
20
A handful of circuit court decisions that predate Heien denied qualified immunity
where the courts held the underlying statutes or ordinances were “obviously
unconstitutional.” None is remotely similar to the case before us. See Leonard v. Robinson,
477 F.3d 347, 359 (6th Cir. 2007) (disruption of a public assembly with profanity); Lawrence
v. Reed, 406 F.3d 1224, 1233 (10th Cir. 2005) (denial of due process); Carey v. Nev. Gaming
Control Bd., 279 F.3d 873, 881 (9th Cir. 2002) (failure to provide ID to police).
Two more recent decisions are no more apposite because they involve quite
different First Amendment issues. Ballentine v. Tucker, 28 F.4th 54, 66 (9th Cir. 2022)
(retaliatory arrest for “chalking” anti-police messages); Thompson v. Ragland, 23 F.4th
1252, 1255-56 (10th Cir. 2022) (discipline against college student exercising speech).

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Closer on point is DeFillippo, where the Court upheld an officer’s
arrest of a suspect for failing to identify himself in violation of Michigan law,
even though a state court later held that law unconstitutionally vague.
DeFillippo, 443 U.S. at 34–35, 99 S. Ct. at 2631 (noting that DeFillippo was
ultimately charged with possession of a controlled substance). The law on its
face raised an issue of compelled speech in violation of the First Amendment.
Yet at the time of DeFillippo’s arrest, “there was no controlling precedent
that this statute was or was not constitutional, and hence the conduct violated
a presumptively valid ordinance.” Id. at 37, 99 S. Ct. at 2632. Even if
Villarreal’s arrest implicated her First Amendment rights, this case is
substantially similar to DeFillippo because there was certainly no “obvious”
constitutional violation.
If more were needed, in Vives v. City of New York, 405 F.3d 115, 116–
17 (2d Cir. 2004), the court held that officers were entitled to qualified
immunity for arresting a defendant under an “aggravated harassment”
statute on account of his harassing letter to a candidate for state office. The
statute had never before been declared unconstitutional, and state courts had
declined to find it unconstitutional. Consequently, the statute was far from
being “so grossly and flagrantly unconstitutional that any person of
reasonable prudence would be bound to see its flaws.” Id. at 117 (quoting
Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 103 (2d Cir. 2003)).

Because Villarreal’s conduct fell within the elements of a violation of
section 39.06(c), a statute that is not “grossly and flagrantly
unconstitutional,” the officials could rely on the presumptively valid law.
c. The Independent Intermediary Rule Shields the Officers
The third basis for sustaining the Appellees’ qualified immunity is
that a neutral magistrate issued the warrants for Villarreal’s arrest. A warrant
secured from a judicial officer typically insulates law enforcement personnel

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who rely on it. See Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988); see also
Buehler v. City of Austin/Austin Police Dep’t, 824 F.3d 548, 553–54 (5th Cir.
2016) (applying independent intermediary doctrine to false arrest claims
under First and Fourth Amendment). Villarreal argues her claim can be
shoehorned into the independent intermediary rule’s single, narrow
exception, which arises “when ‘it is obvious that no reasonably competent
officer would have concluded that a warrant should issue.’” Messerschmidt
v. Millender, 565 U.S. 535, 547, 132 S. Ct. 1235, 1245 (2012) (emphasis added)
(quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096 (1986)).
Further, the magistrate’s mistake in issuing the arrest warrant must be “not
just a reasonable mistake, but an unacceptable error indicating gross
incompetence or neglect of duty.” Malley, 475 U.S. at 346 n.9, 106 S. Ct. at
1098 n.9.
That is a high bar. The Supreme Court puts such weight on a
magistrate’s determination because
[i]t is the magistrate’s responsibility to determine whether the
officer’s allegations establish probable cause and, if so, to issue
a warrant comporting in form with the requirements of the
Fourth Amendment. In the ordinary case, an officer cannot be
expected to question the magistrate’s probable-cause
determination or his judgment that the form of the warrant is
technically sufficient.
United States v. Leon, 468 U.S. 897, 921, 104 S. Ct. 3405, 3419 (1984). “It is
a sound presumption that the magistrate is more qualified than the police
officer to make a probable cause determination.” Malley, 475 U.S. at 346 n.9,
106 S. Ct. at 1098 n.9.
It cannot be said no reasonable officer would think warrants should
have issued here. The warrant affidavits were not mere “barebones”
affidavits without any factual support. Spencer v. Staton, 489 F.3d 658, 661

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(5th Cir. 2007), modified on other grounds on reh’g, 489 F.3d 666 (5th Cir.
2007). Nor has Villarreal alleged anything beyond conclusional assertions
that defendants tainted the intermediary’s decision-making process by
“maliciously withh[olding] relevant information or otherwise misdirect[ing]
the intermediary.” Shaw v. Villanueva, 918 F.3d 414, 417 (5th Cir. 2019).
Each arrest warrant affidavit is eight pages long and each one quotes
conversations between Villarreal and Officer Goodman about information
not yet made public and later posted on Villarreal’s Facebook page to the
benefit of her journalism activity. Villarreal’s conduct more than arguably
matches what is forbidden by the text of section 39.06(c).
The reasoning of DeFillippo and Heien concerning mistakes of law is
also relevant to the independent intermediary rule. Suppose the officers were
unsure whether section 39.06(c) applied to Villarreal. They had every right
to rely on the legal experience of the District Attorney and neutral magistrate
judge. It is one thing to hold the DA, assistant DA, and the officers
responsible under Malley and its progeny for known mistakes of fact
(although Villarreal identifies no specific factual mistakes in the warrant
affidavits). It is entirely different and unreasonable to say the officers’
reliance on a neutral magistrate’s application of the law is outside the
boundary of reasonableness for qualified immunity.21 To hold otherwise, as

_____________________
21
Villarreal makes conclusory allegations that Officer Ruiz “knew or should have
known” that the information she published was not subject to a TPIA exception, and that
Villarreal did not use her Facebook page “as a means of economic gain.” These allegations
ask for conclusions of law, precisely the domain of the magistrate who oversaw issuance of
the warrants. Yet Judge Higginson’s dissent asserts these statements amounted to material
misstatements and omissions that tainted the magistrate’s neutral decisional process. How
can that be? The terms of the statute and the TPIA regarding “nonpublic information”
and “benefit” were exactly what the magistrate was called upon to apply to the facts before
him. Any error about “benefit,” it must also be recalled, is harmless because Villarreal’s
own pleadings admit she received “benefits” from her citizen journalism.

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Chief Judge Richman’s dissent urged, would “shred[] the independent
intermediary doctrine.” Villarreal, 44 F.4th at 380 (opinion on rehearing).
* * *
Probable cause existed to arrest Villarreal for allegedly violating a
presumptively valid Texas law that had not previously been overturned. On
its face, the law was not grossly and flagrantly unconstitutional, and the arrest
warrants were approved by a neutral magistrate. Since there was no Fourth
Amendment violation, the officers have qualified immunity on these grounds
alone from Villarreal’s First Amendment claims.
B. No Clearly Established Right
Nonetheless, because Villarreal rests her case on the “obviousness”
of her First Amendment rights to “ask questions of a government official”
and “pursue her work as a journalist,” we proceed to the second step of the
qualified immunity analysis and consider whether the asserted constitutional
rights were “clearly established” at the time of the alleged violation. Thus,
even if the arrests were constitutionally infirm, the officers are entitled to
qualified immunity unless Villarreal can identify binding precedent that
“placed the statutory or constitutional question beyond debate,” so that
“every reasonable official would have understood that what he is doing
violates that right.” Rivas-Villegas, 595 U.S. at 5, 142 S. Ct. at 7–8 (internal
quotations and citations omitted). “That is because qualified immunity is
inappropriate only where the officer had fair notice—in light of the specific
context of the case, not as a broad general proposition—that his particular
conduct was unlawful.” Craig v. Martin, 49 F.4th 404, 417 (5th Cir. 2022)
(internal quotation marks and citation omitted). In other words, “police
officers are entitled to qualified immunity unless existing precedent squarely
governs the specific facts at issue.” Kisela v. Hughes, 584 U.S. __, 138 S. Ct.

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1148, 1153 (2018) (per curiam) (internal quotation marks and citation
omitted).
Villarreal cites no case, nor are we aware of one, where the Supreme
Court, or any other court, has held that it is unconstitutional to arrest a
person, even a journalist, upon probable cause for violating a statute that
prohibits solicitation and receipt of nonpublic information from the
government for personal benefit. Under the normal standards of qualified
immunity, no “clearly established law” placed the officers on notice of
Villarreal’s First Amendment right not to be arrested. Villarreal, however,
relies on Eighth Amendment cases where the Supreme Court denied
qualified immunity for deliberate indifference to unconstitutional prison
conditions and declined to scrutinize the cases fact-specifically. See Hope v.
Pelzer, 536 U.S. 730, 738–39, 122 S. Ct. 2508, 2514–15 (2002) (“[T]he risk of
harm [to the prisoners] is obvious.”); Taylor v. Riojas, 592 U.S. __, 141 S. Ct.
52, 54 (2020)(per curiam) (“Confronted with the particularly egregious facts
of this case, any reasonable officer should have realized that Taylor’s
conditions of confinement offended the Constitution.”) (footnote omitted));
McCoy v. Alamu, 141 S. Ct. 1364 (2021) (instructing the court to reconsider
an Eighth Amendment case “in light of Taylor”).
Hope and its progeny express a general, but decidedly narrow,
obviousness exception to the requirement that “clearly established law” be
founded on materially identical facts. In any event, those cases are
inappropriate templates for describing “clearly established” law in this
context. In Morgan v. Swanson, 659 F.3d 359, 373 (5th Cir. 2011) (en banc), a
case involving First Amendment free exercise rights, this court noted that
Hope does not stand for the broad proposition that plaintiffs need not offer
any similar cases to prove that an officer should have been on notice that his
conduct violated the Constitution. Hope does not excuse plaintiffs from
proving that every reasonable official would know the conduct at issue

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violates the Constitution. And Sause, if anything, also strongly implies that
an individual’s claimed First Amendment rights must be closely analyzed
when the question involves probable cause for an arrest, or an officer’s
qualified immunity. 142 S. Ct. at 2562–63.
Consequently, we adhere to the general rule that for an asserted right
to be clearly established for purposes of qualified immunity, it must “have a
sufficiently clear foundation in then-existing precedent” that it is “settled
law.” Wesby, 583 U.S. at 63, 138 S. Ct. at 589 (citation omitted). “The
precedent must be clear enough that every reasonable official would interpret
it to establish the particular rule the plaintiff seeks to apply.” Id., 138 S. Ct.
at 590 (emphasis added). The law is not clearly established if referenced
cases are “materially distinguishable and thus do[] not govern the facts of this
case.” Rivas-Villegas, 595 U.S. at 6, 142 S. Ct. at 8.
Villarreal identifies a general First Amendment principle—that a
third party may publish sensitive government information already in the
public domain—as evidence that the officer defendants violated clearly
established law by arresting her with a warrant upon probable cause for
violating section 39.06. But the alleged unlawfulness of the defendants’
conduct here “does not follow immediately,” or even secondarily, from the
cases Villarreal cites. Wesby, 583 U.S. at 64, 138 S. Ct. at 590 (quoting
Creighton, 483 U.S. at 641, 107 S. Ct. at 3039).
The principal cases Villarreal relies on involve publication of certain
information already in the public domain. See N.Y. Times Co. v. United States,
403 U.S. 713, 714, 91 S. Ct. 2140, 2141 (1971) (per curiam) (vacating an
injunction against publishing the Pentagon Papers, a classified study of
United States involvement in Vietnam, obtained without illegal action by the
press); Fla. Star v. B.J.F., 491 U.S. 524, 538, 109 S. Ct. 2603, 2611 (1989)
(stating that, when the government inadvertently places an incident report in

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the pressroom, “it is clear . . . that the imposition of damages against the press
for its subsequent publication can hardly be said to be a narrowly tailored
means of safeguarding anonymity”). A right to publish information that is no
longer within the government’s control is different from what Villarreal did:
she solicited and received nonpublic information from a public official for
personal gain.
Moreover, Villarreal correctly asserts that journalists have an
undoubted right to gather news “from any source by means within the law,”
but “[i]t has generally been held that the First Amendment does not
guarantee the press a constitutional right of special access to information not
available to the public generally.” Branzburg v. Hayes, 408 U.S. 665, 681–82,
684, 92 S. Ct. 2646, 2657–58 (1972) (citing cases); see also Houchins v.
KQED, Inc., 438 U.S. 1, 15, 98 S. Ct. 2588, 2597 (1978) (plurality opinion)
(“Neither the First Amendment nor the Fourteenth Amendment mandates
a right of access to government information or sources of information within
the government’s control.”). “Newsmen have no constitutional right of
access to the scenes of crime or disaster when the general public is excluded,
and they may be prohibited from attending or publishing information about
trials if such restrictions are necessary to assure a defendant a fair trial before
an impartial tribunal.” Branzburg, 408 U.S. at 684–85, 92 S. Ct. at 2658.
Further, “[t]he Court has emphasized that ‘(t)he publisher of a newspaper
has no special immunity from the application of general laws. He has no
special privilege to invade the rights and liberties of others.’” Id. at 683,
92 S. Ct. at 2657 (quoting Associated Press v. NLRB, 301 U.S. 103, 132–33,
57 S. Ct. 650, 656 (1937)). And the Court has been unequivocal that there is
no journalist privilege or immunity from prosecution under generally
applicable law. Nor is a journalist “free to publish with impunity everything
and anything [he] desires to publish.” Id., 92 S. Ct. at 2658 (citing cases).
Villarreal’s First Amendment rights as a citizen journalist are therefore based

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on news gathering by “means within the law.” Far from supporting the
“obviousness” of her claims, these authorities require further careful
analysis before any constitutional violation can be ascribed to her arrest.
The First Amendment also does not prevent the elected political
branches from protecting “nonpublic” information. L.A. Police Dep’t v.
United Reporting Pub. Corp., 528 U.S. 32, 40, 120 S. Ct. 483, 489 (1999)
(“[W]hat we have before us is nothing more than a governmental denial of
access to information in its possession. California could decide not to give
out arrestee information at all without violating the First Amendment.”).
The State of Texas chose to protect certain information from immediate
disclosure in order to ensure that the government can function. If citizens
possessed some overarching constitutional right to obtain information from
the government, laws like the TPIA and the Freedom of Information Act
would be superfluous. We do not presume the Texas legislature or Congress
performed meaningless acts in protecting public access to information that
was already required to be in the public domain under the First Amendment.
To the contrary, “[t]he Constitution itself is neither a Freedom of
Information Act nor an Official Secrets Act.” Houchins, 438 U.S. at 14,
98 S. Ct. at 2596 (plurality opinion).22 Whatever the outcome of particular
challenges to denials of access to nonpublic information, Villarreal cannot
sustain the proposition that Texas “obviously” had no authority to outlaw
disclosure (at least temporarily, e.g., pending notification of next of kin) of
the information she sought or to prohibit her from soliciting unlawful
disclosure for her benefit.

_____________________
22
The Court examined the history of Freedom of Information Act laws and noted
they “are of relatively recent vintage.” McBurney v. Young, 569 U.S. 221, 234, 133 S. Ct.
1709, 1719 (2013) (holding the Virginia Freedom of Information Act did not violate the
Privileges and Immunities Clause).

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An addendum to Villarreal’s position is her claim that the First
Amendment “right to petition for a redress of grievances” was “obviously”
violated by her arrest. “The right to petition allows citizens to express their
ideas, hopes, and concerns to their government and their elected
representatives.” Borough of Duryea v. Guarnieri, 564 U.S. 379, 388,
131 S. Ct. 2488, 2495 (2011). The Petition Clause is plainly not relevant to
establish the right she promotes. Soliciting nonpublic information for
personal benefit is neither an act of “petition” nor “for a redress of
grievances.”
No case would have given these officers “fair notice” that their
conduct in arresting Villarreal would run afoul of the First Amendment.
Consequently, she has not met her burden on the second prong of the
qualified immunity standard. Brosseau v. Haugen, 543 U.S. 194, 198,
125 S. Ct. 596, 599 (2004).
C. Additional Claims
Each defendant is entitled to qualified immunity on Villarreal’s
remaining claims because she fails to allege any plausible constitutional
violations.
1. First Amendment Retaliation
Villarreal fails to state a First Amendment retaliation claim. “The
First Amendment prohibits not only direct limits on individual speech but
also adverse governmental action against an individual in retaliation for the
exercise of protected speech activities.” Keenan v. Tejeda, 290 F.3d 252, 258
(5th Cir. 2002). To establish such a claim against the defendants, Villarreal
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

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No. 20-40359

defendants’ adverse actions were substantially motivated
against [her] exercise of constitutionally protected conduct.
Id. (citations omitted).
Villarreal fails to adequately plead a First Amendment retaliation
claim because the officers had probable cause under section 39.06, and she
does not allege that defendants curtailed her exercise of free speech. Nor
does Villarreal have an actionable retaliatory investigation claim, because this
court does not recognize such a claim. See Colson v. Grohman, 174 F.3d 498,
512 (5th Cir. 1999) (holding that “criticism, an investigation (or an attempt
to start one), and false accusations” are “all harms that . . . are not actionable
under our First Amendment retaliation jurisprudence”).
Further, the Supreme Court maintains that probable cause “generally
defeat[s] a First Amendment retaliatory arrest claim.” Nieves v. Bartlett,
587 U.S. __, 139 S. Ct. 1715, 1726 (2019). The Court articulated a narrow
exception “where officers have probable cause to make arrests, but typically
exercise their discretion not to do so.” Id. at 1727. To benefit from this
exception, Villarreal must “present[] objective evidence that [s]he was
arrested when otherwise similarly situated individuals not engaged in the
same sort of protected speech had not been.” Id. Villarreal does not offer
evidence of other similarly situated individuals who engaged in the same
conduct in violation of section 39.06(c) yet were not arrested.
Judge Higginson suggests the Nieves exception has been met here
because, allegedly, no one has ever been prosecuted for violating section
39.06(c). There have been prosecutions under other related statutory
sections, of course. By the same token, Judge Higginson’s analysis does not
identify “similarly situated individuals” who solicited or received nonpublic
information to obtain a benefit but were not prosecuted; he merely assumes
the conclusion. But more to the point, plaintiff offered no evidence of

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similarly situated individuals, perhaps because others are not in the habit of
obtaining backchannel information about ongoing criminal investigations,
like Villarreal.
2. Fourteenth Amendment Selective Enforcement
Villarreal’s Fourteenth Amendment selective enforcement claim
likewise required her to identify “examples” of similarly situated individuals
who were nonetheless treated differently. Tex. Ent. Ass’n, Inc. v. Hegar,
10 F.4th 495, 514 (5th Cir. 2021). “‘Similarly situated’ means ‘in all relevant
respects alike.’” Golden Glow Tanning Salon, Inc. v. City of Columbus,
52 F.4th 974, 978 (5th Cir. 2022) (quoting Tex. Ent. Ass’n, 10 F.4th at 513).
Villarreal did not provide even one example of an individual similarly situated
to her in all relevant respects who was not arrested for his conduct. This
claim fails.
3. Conspiracy
Last, Villarreal cannot maintain a § 1983 conspiracy claim because
each officer is immune from suit. “To support a conspiracy claim under
§ 1983, the plaintiff must allege facts that suggest ‘an agreement between
the . . . defendants to commit an illegal act’ and ‘an actual deprivation of
constitutional rights.’” Terwilliger v. Reyna, 4 F.4th 270, 285 (5th Cir. 2021)
(quoting Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994)). If all the “acts
fall under qualified immunity, there can be no § 1983 conspiracy claim.”
Mowbray v. Cameron County, 274 F.3d 269, 279 (5th Cir. 2001). The
conspiracy claim was correctly dismissed.
IV. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
judgment.

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No. 20-40359

James E. Graves, Jr., Circuit Judge, joined by Elrod, Higginson,
Willett, Ho, and Douglas, Circuit Judges, dissenting:
I agree with the persuasive opinions from my dissenting colleagues. I
agree with Judge Higginson that the majority errs by failing to credit
Villarreal’s allegations as true; with Judge Willett that qualified immunity is
not appropriate here, where no official was compelled to make a “split-
second judgment”; and with Judge Ho that, among other things, the majority
opinion will permit government officials to retaliate against speech while
hiding behind cherry-picked state statutes.
As Judge Ho notes, the majority is also wrong to disparage Villarreal
for, as it writes, “capitaliz[ing] on others’ tragedies to propel her reputation
and career.” Ante at 2. Not only is that characterization of Villarreal’s
enterprise unfair—as the majority writes, her journalistic endeavor survives
off the solicitude of fans and “occasional” advertising, id. at 3—but it
insinuates that Villarreal’s First Amendment rights are somehow diminished
because she makes a modest living while exercising them.
I write separately to emphasize the importance of gathering and
reporting news. Villarreal is a journalist.1 A journalist is someone who, on a
professional or even semi-professional basis, acts as an agent for the people,
representing what the Supreme Court has called the “public interest,
secured by the Constitution, in the dissemination of truth,” The Fla. Star v.
B.J.F., 491 U.S. 524, 533 (1989). The right to gather and report news could
not be more firmly embedded in the Constitution. The text of the First
_____________________
1
Villarreal’s appeal is supported by, among other amici, the Texas Press
Association, the Texas Association of Broadcasters, the Freedom of Information
Foundation of Texas, the Reporters Committee for Freedom of the Press, the Texas
Tribune, the Dallas Morning News, the National Association of Hispanic Journalists, and
the Society of Professional Journalists. Together, they write that “Villarreal is a citizen
journalist” who “provides a valued source of information for over 120,000 followers on
local news and events, at a time when mainstream news organizations are increasingly
stretched thin to cover community news.”

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Amendment itself forbids the government from “abridging the freedom . . .
of the press.” U.S. Const. amend. I.
There is simply no way such freedom can meaningfully exist unless
journalists are allowed to seek non-public information from the government.
Today’s majority opinion overlooks that protection all too cavalierly. But in
fact, the right to “newsgathering” has long been protected in American
jurisprudence. See Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (“[W]ithout
some protection for seeking out the news, freedom of the press could be
eviscerated.”). The Supreme Court has made clear that the First
Amendment protects the publication of information obtained via “routine
newspaper reporting techniques”—which include asking for the name of a
crime victim from government workers not clearly authorized to share such
information. Smith v. Daily Mail Pub. Co., 443 U.S. 97, 99, 103-04 (1979).
The majority at times conflates that right with the government’s
prerogative to “guard against the dissemination of private facts.” Fla. Star,
491 U.S. at 534. But those two principles are not mutually exclusive—the
government’s power to protect certain information has little to do with a
person’s right to ask for it. This case does not concern the rights of the officer
who furnished Villarreal with information, or what means a local government
may use to prevent employees from exposing sensitive information. It
concerns only the rights of a third party who did nothing more than ask.
Moreover, the Supreme Court has held that restraints on the
publication of lawfully obtained, truthful information are only allowed when
they further “a state interest of the highest order.” Fla. Star, 491 U.S. at 541.
And the Court has already explained that preserving the anonymity of a
juvenile offender did not meet that standard—so it seems unlikely that
preserving the anonymity of automobile accident victims, or victims of
suicide, as in this case, would fare any better. Smith, 443 U.S. at 104. Nor did

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anything make it unlawful for Villarreal to obtain that information, except for
the law that she now argues is unconstitutional.
While I agree with Judge Ho that the enforcement of Texas Penal
Code § 39.06(c) against Villarreal was obviously unconstitutional in light of
the broad right of each person to ask questions of the government, it is also
obviously unconstitutional in light of the related and equally well-established
right of journalists to engage in routine newsgathering. That right, arising out
of the plain language of the Constitution, acknowledges that journalists play
a special role in our society as agents of the people. They are individuals who
take on a civic and professional responsibility to keep the public informed,
and thereby provide a crucial check on the power of the government. That is
not to say that press possess any right of access to information that is
unavailable to the general public, see Branzburg, 408 U.S. at 684—only that,
more often than not, it is the press to which we delegate the responsibility of
asking for that information.
Today’s decision has profound practical implications. As amici note,
American society has often benefitted when journalists have acquired non-
public information from unofficial sources. Americans only learned about the
horrific My Lai Massacre, during the Vietnam War, because a journalist
asked a backchannel Pentagon source about it.2 Many years later, that same
journalist reported details of prisoner abuse at the Abu Ghraib prison after
gleaning them from a non-public military report.3 Confidential sources have

_____________________
2
Ian Shapira, ‘It was insanity’: At My Lai, U.S. soldiers slaughtered hundreds of
Vietnamese women and kids, The Washington Post (March 16, 2018),
https://www.washingtonpost.com/news/retropolis/wp/2018/03/16/it-was-insanity-at-
my-lai-u-s-soldiers-slaughtered-hundreds-of-vietnamese-women-and-kids.
3
Seymour M. Hersh, Torture at Abu Ghraib, The New Yorker (April 30,
2004), https://www.newyorker.com/magazine/2004/05/10/torture-at-abu-ghraib.

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also played an important role in exposing police abuses.4 And in one
particularly noteworthy example, an unauthorized source provided a
classified study on war policy to American news outlets—and the ensuing
legal case made it to the Supreme Court, which rejected efforts to suppress
the study’s publication. See New York Times Co. v. United States, 403 U.S.
713, 714 (1971).
But now, the majority would limit journalists who work the
government beat to publicly disclosed documents and official press
conferences, meaning they will only be able to report information the
government chooses to share. That outcome is unfortunate, unfair, and
unconstitutional. It is unfortunate because a democracy functions properly
only when the citizenry is informed. It is unfair because it restricts the
journalistic freedom to gather information. And it is unconstitutional, for
“[a] free press cannot be made to rely solely upon the sufferance of
government to supply it with information.” Smith, 443 U.S. at 104. Indeed,
it is not even clear whether the majority’s opinion would allow journalists to
request information in good faith from official channels without fear of
reprisal.
I respectfully dissent.

_____________________
4
Los Angeles Sheriff's deputies say gangs targeting “young Latinos” operate within
department, CBS News (February 25, 2021), https://www.cbsnews.com/news/los-
angeles-sheriffs-deputies-gangs-young-latinos.

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No. 20-40359

Stephen A. Higginson, Circuit Judge, joined by Elrod, Graves,
Willett, Ho, Oldham, and Douglas, Circuit Judges, dissenting:
Few constitutional progenitors are more celebrated by our Founding
Fathers than Thomas Paine, the citizen-journalist who published Common
Sense, the pro-independence pamphlet that historian Gordon Wood
describes as “the most incendiary and popular pamphlet of the entire
revolutionary era.” Gordon S. Wood, THE AMERICAN REVOLUTION: A
HISTORY 55 (Modern Library, 2002). To safeguard both the text of the
Constitution, as well as the values and history that it reflects, the Supreme
Court guarantees the First Amendment right of engaged citizen-journalists,
like Paine, to interrogate the government. Judge Ho forcefully describes the
obviousness of that guarantee, and I am confident all judges share the late
Judge Silberman’s similar, cautionary sentiment “that the most heinous act
in which a democratic government can engage is to use its law enforcement
machinery for political ends.”1
Priscilla Villarreal alleges that law enforcement officials in Laredo,
Texas did precisely this: They arrested her because her newsgathering and
reporting activities annoyed them. To silence her as a critic and gadfly, she
claims, they arrested her.
Villarreal is entitled to have the district court resolve her plausible
allegation that the government officers who arrested her lacked probable
cause, and misled the magistrate whose warrants they now claim should
insulate them from liability for their unconstitutional actions. And even if
these officers had probable cause to arrest her, the Supreme Court in
Nieves v. Bartlett, 139 S.Ct. 1715 (2019) has instructed courts on how to

_____________________
1
Laurence H. Silberman, Hoover’s Institution, WALL ST. J. (July 20, 2005),
https://www.wsj.com/articles/SB112182505647390371.

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respond when an individual brings a complaint against the government for
First Amendment retaliation. Because that instruction was not applied, I
would vacate and remand.
I. Villarreal alleges that her arresting officers lacked probable cause and
misled the magistrate who issued her arrest warrants.
Even if the majority is correct that Villarreal is obliged to plead no
probable cause as to a crime that does not exist, see Trevino v. Iden, 79 F.4th
524, 531 (5th Cir. 2023), she did. In the light most favorable to her, her
allegation is that Defendant Ruiz, supervised and directed by the other
named Defendants, tainted evidence to mislead and obtain warrants to arrest
and silence her:
90. Ruiz knew or should have known that the Statute
required a showing that the information at issue not be
generally available to the public and that it be excepted from
disclosure under the TPIA. And 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.
…
92. Ruiz also knew or should have known that the
Statute required a showing that Villarreal intended to enjoy an
economic advantage or gain from the request for or receipt of
the information in the Targeted Publications. But Ruiz failed to

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No. 20-40359

recite this essential element of the Statute in the Arrest
Warrant Affidavits, and failed to state how or why Villarreal
intended to enjoy an economic gain or advantage from the
information. Ruiz alleged only that Villarreal’s release of the
information before other news outlets gained her popularity in
Facebook. On information and belief, Ruiz’s
misrepresentations and omissions were deliberate.
93. Defendants Alaniz, Jacaman, Treviño, Ruiz, DV,
and the Doe Defendants were aware or should have been aware
that at all times leading up to Villarreal’s arrest, Villarreal did
not use her Facebook page as a means of economic gain.
94. Ruiz’s statements in the Arrest Warrant Affidavits
did not address Villarreal’s intent or knowledge in receiving or
using the information, despite this being required by the
statute. The affidavits also did not address whether Villarreal
knew she was asking for or receiving non-publicly accessible
information from an official source. On information and belief,
Ruiz’s omissions were deliberate.
95. Two warrants for Villarreal’s arrest—for each of the
Targeted Publications—were issued on December 5, 2017
(“Arrest Warrants”). The Arrest Warrant issued as a result of
the knowing or reckless misrepresentations and omissions of
key elements and facts Arrest Warrant Affidavits.
…
165. Lacking a valid basis to arrest Villarreal,
Defendants Alaniz, Jacaman, Treviño, Ruiz, DV, and the Doe
Defendants (a) knowingly manufactured allegations under a
pretextual application of Texas Penal Code § 39.06, upon

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No. 20-40359

which no reasonable official would have relied under the
circumstances; (b) knowingly prepared and obtained a warrant
for Villarreal’s arrest under false pretenses; and (c) knowingly
arrested and detained her and/or caused her arrest and
detention without probable cause and against her will, based on
a knowing or deliberately indifferent wrongful application of
TEXAS PENAL CODE § 39.06.
This extensive allegation is detailed. It is a plausible allegation that law
enforcement knew, but did not disclose to the court they approached for the
authority to arrest Villarreal, that she had sought no benefit from her
sourcing, and that she had obtained no non-public information. It is an
allegation that exculpatory facts were obscured by the Defendants in their
affidavits so that they could mislead a magistrate to confirm probable cause
for them to arrest Villarreal.
Despite this specific allegation of law enforcement
“misrepresentations and omissions”—and despite significant reiteration of
this allegation in the motion to dismiss hearing—the district court failed to
address, much less credit, the contention that Defendants misled the
magistrate whom they now offer, and our court majority accepts, as a shield
behind whose probable cause finding they can hide.2

_____________________
2
Compare Transcript of Hearing on Defendant’s Motion to Dismiss at 25,
Villarreal v. City of Laredo, No. 5:19-00048 (S.D. Tex. Sep. 9, 2019), ECF No. 58
(“[I]mmunity doesn’t apply if the allegations are sufficient to show. . . taint[] [a]nd that’s
exactly what happened with – Ms. Villarreal has alleged here, Your Honor.”), and id. at 80
(“[T]hey selected a statute, applied it to her to arrest her knowing there was no probable
cause” in order to “try[] to manufacture an arrest warrant affidavit[] to give the false
impression that there was.”), and id. at 98 (“[E]ven though there’s an intervening, you
know, independent judicial officer where the defendants engage in acts that lead to
omissions, lead to misstatements in the affidavit presented to the officer, that upsets that

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No. 20-40359

Of course, the manipulation of a magistrate who issues an arrest
warrant, accomplished by malicious law enforcement, remains an untested
allegation. But at the dismissal stage—before we, as judicial government
officers, confer immunity as a matter of law on executive government
officers—a comprehensive complaint that law enforcement misled a court
must be taken not just as true, but in the light most favorable to the citizen-
complainant. See McLin v. Ard, 866 F.3d 682, 689–90 & n.3 (5th Cir. 2017).
Otherwise, the “independent intermediary doctrine” would over-
protect police misconduct, and even reward it. Indeed, the heart of the
independent intermediary doctrine—which has strong critics, such as the
Cato Institute, appearing before us here as amicus curiae3—depends on the
assumption in its title. A judicial “intermediary,” whose post-hoc
determination will operate legally to shield police from liability for
unconstitutional action, must of course be “independent” from the
underlying illegality. Thus, “if facts supporting an arrest are placed before an
independent intermediary such as a magistrate or grand jury, the
intermediary’s decision breaks the chain of causation’ for the Fourth
Amendment violation.” Jennings v. Patton, 644 F.3d 297, 300–01 (5th Cir.
2011) (quoting Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 813 (5th Cir.
2010)). But this is true only “whe[n] all the facts are presented to the grand
jury, or other independent intermediary[,] where the malicious motive of the
law enforcement officials does not lead them to withhold any relevant
information from the independent intermediary.” Cuadra, 626 F.3d at 813

_____________________
intervening authority. And you can’t have qualified immunity as a result.”), with
Memorandum and Order at 14-15, Villarreal v. City of Laredo, No. 5:19-00048 (S.D. Tex.
May 8, 2020), ECF No. 51 (paraphrasing paragraphs 90-93 of the first amended complaint,
yet overlooking the taint allegation in paragraph 91).
3
See also generally Amanda Peters, The Case for Replacing the Independent
Intermediary Doctrine with Proximate Cause and Fourth Amendment Review in § 1983 Civil
Rights Cases, 48 PEPP. L. REV. 1 (2021).

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(citation omitted) (emphasis added). Otherwise, a malicious officer seeking
to obtain a facially valid arrest warrant would “be absolved of liability simply
because he succeeded.” Thomas v. Sams, 734 F.2d 185, 191 (5th Cir. 1984)
(citation omitted); see also Wilson v. Stroman, 33 F.4th 202, 208 (5th Cir.
2022).
This is our court’s settled “taint” exception critical to our
independent intermediary doctrine—in the vernacular, preventing “garbage
in, garbage out”—which we have restated for over thirty years. See Hand v
Gary, 838 F.2d 1420, 1427-28 (5th Cir. 1988) (“[T]he chain of causation is
broken only where all the facts are presented to the grand jury, where the
malicious motive of the law enforcement officials does not lead them to
withhold any relevant information . . . from the independent intermediary.
Any misdirection of the magistrate or the grand jury by omission or
commission perpetuates the taint of the original official behavior.”)
(emphases added); Winfrey v. Rogers, 901 F.3d 483, 497 (5th Cir. 2018)
(same); see also Morris v. Dearborne, 181 F.3d 657, 673 (5th Cir. 1999) (“[T]he
question of causation is ‘intensely factual’ . . . A fact issue exists regarding
the extent to which (if at all) Dearborne subverted the ability of the court to
conduct independent decision making by providing false information, and in
so doing, withholding true information.”).
It is important to emphasize, again, that Villarreal may be wrong in her
accusation of malice and law enforcement abuse of office. The Defendants
may not have misled anyone to secure their warrants to arrest her. But when
there is uncertainty, especially at the dismissal stage, see McLin, 866 F.3d at
689-690 & n.3, we are explicit that this judicially-created shield from liability
for a false arrest “does not apply,” Winfrey, 901 F.3d at 497. And we are
equally clear that at the dismissal stage, “it is [the defendant’s] burden to
prove the omitted material information was presented to the [intermediary
that found probable cause].” Winfrey v. Johnson, 766 F. App’x 66, 71 (5th

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Cir. 2019) (applying Winfrey, 901 F.3d at 497). Otherwise, police immunity
would mean police impunity. See Bledsoe v. Willis, No. 23-30238, 2023 WL
8184814, at *4–5 (5th Cir. Nov. 27, 2023) (unpublished).
II. Because Villarreal alleges her arrest was atypical, her arrestors do not
get immunity without inquiry even if they had probable cause to arrest
her.
When a plaintiff alleges that she was arrested in retaliation for First
Amendment activity, “probable cause should generally defeat a retaliatory
arrest claim.” Nieves, 139 S. Ct. at 1727. But “when a plaintiff presents
objective evidence that [s]he was arrested when otherwise similarly situated
individuals not engaged in the same sort of protected speech had not been,”
she can prevail even if the arresting officer had probable cause. Id.
Villarreal’s first amended complaint alleges that “[Officer
Defendants] selected the Statute as a pretext to target Villarreal. They did so
despite knowing that LPD, WDCA, and the Webb County Sheriff had never
arrested, detained, or prosecuted any person before under the Statute.” This
conduct falls squarely within the Nieves exception. In fact, there could be no
better example of a crime never enforced than this one. Texas has never
prosecuted it to conviction, ever. At no point in their district or appellate
court briefing did Defendants contest Villarreal’s allegation that law
enforcement in Laredo and Webb County, or indeed, any prosecutor
anywhere in Texas, had pursued anyone besides her under § 39.06(c). That
fact alone—putting to the side Villarreal’s detailed and so-far-untested
allegations of police animus, as well as Texas courts’ invalidation of the
criminal offense used to arrest her4—means that seizing and jailing Villarreal

_____________________
4
Judge Ho sets forth this state law in his dissent. See also State v. Newton, 179
S.W.3d 104, 107, 111 (Tex. App. 2005) (affirming the trial court’s decision, which had held

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should trigger the Nieves atypical-arrest exception and defeat, at the motion
to dismiss stage, any probable cause the majority imagines conferred
immunity on Defendants.
In lieu of countering Villarreal’s actual allegation, Defendants cite two
cases in their briefing to us for the proposition that Texas juries in other
counties had returned convictions under § 39.06, generally. However,
neither of these cases concerned the solicitation subsection, § 39.06(c), under
which Villareal was charged. Rather, both of those cases involved public
corruption convictions of public servants under § 39.06(a) and (b).
Moreover, neither implicated First Amendment concerns. See Reyna v. State,
No. 13-02-00499-CR, 2006 WL 20772 (Tex. App. Jan. 5, 2006)
(unpublished); Tidwell v. State, No. 08-11-00322-CR, 2013 WL 6405498
(Tex. App. Dec. 4, 2013) (unpublished). In Reyna, the defendant was a city
administrator in Los Fresnos, Cameron County, who used private
information about bidding processes to award construction contracts to his
affiliates, Reyna, 2006 WL 20772, at *1–2; Tidwell involved the Winkler
County Attorney using confidential, anonymous complaints to the Texas
Medical Board regarding a doctor’s unethical behavior to initiate a malicious
prosecution of the two nurses who blew the whistle on that behavior, Tidwell,
2013 WL 6405498, at *14. Neither instance contradicts Villarreal’s
contention that her offense has never been prosecuted successfully in Texas,
much less in Webb County, nor certainly against a journalist—exactly the
kind of “circumstance[] where officers have probable cause to make arrests,

_____________________
§ 39.06(c) and (d) “void for vagueness,” on statutory grounds, and not addressing
constitutional ruling); State v. Ford, 179 S.W.3d 117, 120, 125 (Tex. App. 2005) (same).
Villarreal alleges in her complaint that she filed a habeas petition on February 14, 2018,
arguing that § 39.06(c) was unconstitutionally vague and violated the First Amendment,
and that on March 28, 2018, Judge Monica Z. Notzon of the 111th Judicial District of Texas
granted Villarreal’s motion, holding from the bench that the statute was unconstitutionally
vague.

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but typically exercise their discretion not to do so” that requires an exception
to the probable-cause rule. Nieves, 139 S. Ct. at 1727.
Despite Nieves’s applicability here, the district court dismissed in a
footnote Villarreal’s argument that law enforcement did not prosecute
anyone under Texas Penal Code § 39.06(c) before her. The district court
held that Villarreal’s description in her pleading of “similarly-situated
persons” as those persons who (a) “asked for or received information from
local law enforcement officials” and (b) “published truthful and publicly-
accessible information on a newsworthy matter” was “conclusory.” Further,
the district court held that she did not “appropriately define similarly
situated individuals” because her description might have included people
“who obtained information from LPD’s public spokesperson.” Therefore,
the district court determined, Villarreal’s complaint did not establish that she
fit within the Nieves exception.
But the district court erred in holding that a pure factual allegation—
that “LPD and WCDA had never before arrested, detained, or prosecuted
any other person under TEXAS PENAL CODE § 39.06, let alone any person
similarly-situated to Villarreal, during the 23 years the operative version of
the statute had been in effect”—was “conclusory” and too broad. The
district court’s holding that “similarly-situated persons” was not narrowly
construed enough for Villarreal to state a claim sets up an unreasonable and
needless hoop for a plaintiff to jump through. Her allegation is that neither
the LPD nor the WCDA—nor indeed, any police officer or prosecutor in
Texas—has ever arrested or charged anyone, including newsgatherers, for
this offense. Such a contention surely encompasses those who “lawfully”
obtained information from a press official as well as those who did not, unless
we presuppose that no journalist has ever before relied on a back-channel
government source to obtain information. Black’s Law Dictionary defines
“conclusory” as “expressing a factual inference without stating the

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underlying facts on which the inference is based.” Conclusory, BLACK’S LAW
DICTIONARY (11th ed. 2019). That Villarreal’s factual allegation was that
something had never happened—resulting in a null set of individuals never
arrested or charged and cases never prosecuted—does not transform her
factual allegation into an inference.5
This case is straightforward. Villarreal alleged in her complaint that
her arrest for violating § 39.06(c) constituted a “circumstance[] where
officers have probable cause to make arrests, but typically exercise their
discretion not to do so.” Nieves, 139 S. Ct. at 1727. Hence, her allegation of
retaliatory police arrest falls under the exception to the probable-cause rule
and survives dismissal. By continuing to overlook this law, our court
compounds a constitutional error that countenances, with neither inquiry nor
discovery, dismissal of an American citizen-journalist’s complaint that her
newsgathering led to arrest for something that Texas courts have confirmed
is not a crime.
Conclusion
For the reasons discussed above, I would vacate the district court’s
dismissal of Villarreal’s complaint. Our court errs in holding that these

_____________________
5
Although the panel majority in Gonzalez v. Trevino, 42 F.4th 487, 494 (5th Cir.
2022), distinguishes Villarreal on the ground that Priscilla Villarreal’s arrest was a clear
violation of the First Amendment, I acknowledge that I sharply differ from that majority in
my interpretation of Nieves. Were Gonzalez not already before the Supreme Court, I would
urge that we revisit its holding here en banc because the “comparative evidence” standard
would raise an impossible bar—which is not required by the text of the Nieves decision—
for plaintiffs. See Gonzalez, 42 F.4th at 503 (Oldham, J., dissenting) (“It's not clear that
there will always (or ever) be available comparative evidence of jaywalkers that weren't
arrested. Rather, the retaliatory-arrest-jaywalking plaintiff always (or almost always) must
appeal to the commonsense proposition that jaywalking happens all the time, and
jaywalking arrests happen virtually never (or never).”)

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Defendants had probable cause to arrest her without testing the factual
allegation that the magistrate who issued her arrest warrants was tainted by
“misrepresentations and omissions” from her alleged antagonists. Our court
further errs in failing to apply Nieves to test whether, even if Laredo law
enforcement had probable cause to arrest her, they did so in retaliation for
her news reporting. In short, Villarreal’s complaint requires discovery and
fact-assessment, applying settled law. This court should not countenance the
erosion of the First Amendment’s protection of citizen-journalists from
intimidation by the government officials they seek to hold accountable in
their reporting.

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No. 20-40359

Don R. Willett, Circuit Judge, joined by Elrod, Graves,
Higginson, Ho, and Douglas, Circuit Judges, dissenting:
For many of the reasons persuasively penned by my dissenting
colleagues, I agree that the district court erred by dismissing Villarreal’s
claims on qualified-immunity grounds. I write separately to underscore three
brief points.
First, one of the justifications so frequently invoked in defense of
qualified immunity—that law enforcement officers need “breathing room”
to make “split-second judgments”—is altogether absent in this case.1 This
was no fast-moving, high-pressure, life-and-death situation. Those who
arrested, handcuffed, jailed, mocked, and prosecuted Priscilla Villarreal, far
from having to make a snap decision or heat-of-the-moment gut call, spent
several months plotting Villarreal’s takedown, dusting off and weaponizing a
dormant Texas statute never successfully wielded in the statute’s near-
quarter-century of existence. This was not the hot pursuit of a presumed
criminal; it was the premeditated pursuit of a confirmed critic.2 Also, while
the majority says the officers could not have “predicted” that their thought-
out plan to lock up a citizen-journalist for asking questions would violate the
First Amendment3—a plan cooked up with legal advice from the Webb
County District Attorney’s Office, mind you—the majority simultaneously
_____________________
1
E.g., Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (“breathing room”); Plumhoff v.
Rickard, 572 U.S. 765, 775 (2014) (“split-second judgments”).
2
Qualified immunity’s presumed purpose, to ensure “fair notice” before imposing
liability, seems mislaid in slow-moving First Amendment situations where government
officials can obtain legal counsel. See Hoggard v. Rhodes, 141 S. Ct. 2421, 2422 (2021)
(Thomas, J., statement respecting denial of certiorari) (“[W]hy 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 spit-second decision
to use force in a dangerous setting?”).
3
See ante, at 2, 19, 20, 21.

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indulges the notion that Villarreal had zero excuse for not knowing that her
actions might implicate an obscure, never-used provision of the Texas Penal
Code.4 In other words, encyclopedic jurisprudential knowledge is imputed to
Villarreal, but the government agents targeting her are free to plead (or feign)
ignorance of bedrock constitutional guarantees. In the upside-down world of
qualified immunity, everyday citizens are demanded to know the law’s every
jot and tittle, but those charged with enforcing the law are only expected to
know the “clearly established” ones. Turns out, ignorance of the law is an
excuse—for government officials.5 Such blithe “rules for thee but not for
me” nonchalance is less qualified immunity than unqualified impunity. The
irony would be sweet if Villarreal’s resulting jailtime were not so bitter, and
it lays bare the “fair warning” fiction that has become the touchstone of what
counts as “clearly established law.”6
Second, just as officers can be liable for enforcing an obviously
unconstitutional statute,7 they can also be liable for enforcing a statute in an
obviously unconstitutional way.8 The majority opinion seems to rest its
_____________________
4
See ante, at 2 (“Villarreal and others portray her as a martyr for journalism. That
is inappropriate. She could have followed Texas law . . . .”).
5
Then again, in fairness, who among us has not *checks notes* contrived a
premeditated, retributive, slow-motion plan—over several months and with the benefit of
24/7 legal counsel—to criminalize free speech and routine newsgathering by imprisoning
those who ask uncomfortable, truth-seeking questions of government officials?
6
See, e.g., Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (“The central
concept of [qualified immunity] is that of ‘fair warning’ . . . .” (quoting Hope v. Pelzer, 536
U.S. 730, 740 (2002)).
7
See, e.g., Lawrence v. Reed, 406 F.3d 1224, 1233 (10th Cir. 2005) (“[S]ome statutes
are so obviously unconstitutional that we will require officials to second-guess the
legislature and refuse to enforce the unconstitutional statute—or face a suit for damages if
they don’t.”).
8
See id. at 1232 (“[T]he overarching inquiry is whether, in spite of the existence of
the statute, a reasonable officer should have known that his conduct was unlawful.”); see

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holding on the principle that the officers reasonably presumed that Penal
Code § 39.06 was constitutional.9 Whatever one might think of that principle
or the majority’s application of it, ending the analysis there stops a half-step
short. It does not account for the possibility—indeed, the real-world
certainty—that government officials can wield facially constitutional statutes
as blunt cudgels to silence speech (and to punish speakers) they dislike, here
in a vengeful, calculated fashion, including months to consult legal counsel.10
So while we may not impute to officers the foreknowledge of what a federal
court may later say, neither should we impute to officers the ignorance of
what the First Amendment already says.
Third, this case illustrates (again) the one-sidedness of the modern
immunity regime. The plain text of § 1983 declares that government officials
“shall be liable” for violating the Constitution if they were acting “under
color of any [state] statute.”11 But in the majority’s view, the officers evade
liability under § 1983 precisely because they were acting pursuant to a state
statute.12 However erroneous that holding might be under Monroe v. Pape,13
it would not be quite so discomfiting were it not for the fact that courts have
also engrafted onto § 1983 assorted made-up defenses that cannot possibly be

_____________________
also Mink v. Knox, 613 F.3d 995, 1009–10 (10th Cir. 2010) (officer could not rely on
criminal-libel statute to arrest a student blogger).
9
See ante, at 19 (noting the officers’ assumption that § 39.06, despite previously
being invalidated, was constitutional and holding that “[t]his principle defeats Villarreal’s
contention”). My view is different: If a news-gathering citizen asks questions of her
government—no force, no coercion, no deception—and if a government employee answers
those questions outside of formal channels, the government can take it up with the
employee. It cannot imprison the citizen for asking.
10
See, e.g., Nieves v. Bartlett, 587 U.S. __, 139 S. Ct. 1715, 1727 (2019).
11
42 U.S.C. § 1983.
12
Ante, at 24.
13
365 U.S. 167 (1961).

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squared with the statutory text.14 If nothing else, today’s decision
underscores a striking statutory double standard: Judges read out text that is
plainly there, and read in text that is plainly not—both for the benefit of
rights-violating officials. Whatever the operative language of § 1983 says, or
does not say, current judge-invented immunity doctrine seems hardwired—
relentlessly so—to resolve these questions in one direction and one direction
only. Counter-textual immunity is a one-way ratchet, and regrettably, today’s
decision inflicts yet another wrong turn.

_____________________
14
The most glaring made-up defense is the “clearly established law” test, which
collides head-on with § 1983’s broad and unqualified textual command. Even those who
argue for some version of qualified immunity nevertheless disavow the clearly-established-
law requirement. See, e.g., Scott Keller, Qualified and Absolute Immunity at Common Law, 73
Stan. L. Rev. 1337, 1345 (2021) (“[T]he common law test for overcoming [qualified]
immunity looked quite different from the Supreme Court’s modern clearly-established-law
doctrine.”). Other recent scholarship casts doubt on qualified immunity’s entire historical
underpinning. Alexander A. Reinert, Qualified Immunity’s Flawed Foundation, 111 Cal. L.
Rev. 201 (2023) (noting that § 1983’s originally passed language contained a
“notwithstanding clause,” now missing for unknown reasons, that explicitly negated all
state-law defenses, making clear that § 1983 claims are viable notwithstanding “any such
law, statute, ordinance, regulation, custom, or usage of the State to the contrary”). Not all
scholars are convinced, however, including a prominent academic critic of qualified
immunity who suggests that the repeal of the “notwithstanding clause” was a codifier’s
error that Congress nevertheless “passed into law” as part of the Revised Statutes of 1874.
See William Baude, Codifiers’ Errors and 42 U.S.C. § 1983, VOLOKH CONSPIRACY (June
6, 2023), https://reason.com/volokh/2023/06/12/codifers-errors-and-42-u-s-c-1983/
(“This is a case where Congress itself passed a law that probably made a mistake, making
substantive changes to the text when the revision was not supposed to.”); cf. Maine v.
Thiboutot, 448 U.S. 1, 4–5 (1980) (holding that § 1983 can be used to enforce federal
statutory rights because of its inclusion of “and laws,” a phrase that might have been
accidentally added through a codifier’s error). But no matter where one falls on the
scholarly debate surrounding the “notwithstanding clause,” there really is no debate on
the fundamental point that the “clearly established law” test is untethered from § 1983’s
text and history and nigh impossible to defend. See Horvath v. City of Leander, 946 F.3d 787,
800 (5th Cir. 2020) (Ho, J., concurring in the judgment in part and dissenting in part)
(“Nothing in the text of § 1983—either as originally enacted in 1871 or as it is codified
today—supports the imposition of a ‘clearly established’ requirement.”).

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I respectfully dissent.

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No. 20-40359

James C. Ho, Circuit Judge, joined by Elrod, Graves, Higginson,
Willett, and Douglas, Circuit Judges, dissenting:
If the First Amendment means anything, surely it means that citizens
have the right to question or criticize public officials without fear of
imprisonment. The Constitution doesn’t mean much if you can only ask
questions approved by the state. Freedom of speech is worthless if you can
only express opinions favored by the authorities. The government may not
answer or agree—but the citizen gets to ask and to speak.
As the Supreme Court has long recognized, “[t]he right to speak
freely and to promote diversity of ideas and programs is . . . one of the chief
distinctions that sets us apart from totalitarian regimes.” Ashton v. Kentucky,
384 U.S. 195, 199 (1966) (quoting Terminiello v. City of Chicago, 337 U.S. 1, 4
(1949)). “The right of citizens to inquire . . . is a precondition to enlightened
self-government and a necessary means to protect it.” Citizens United v.
FEC, 558 U.S. 310, 339 (2010).
The right to speak freely and to inquire is precisely what’s at stake in
this case.
Like every American, Priscilla Villarreal holds views that are shared
by some—and disliked by others. But a group of police officers and
prosecutors in Laredo weren’t content to simply disagree with her. They had
to weaponize the coercive powers of the criminal justice system against her.
So they charged her and jailed her for asking a police officer a question.
The majority bristles at this short-hand description. But facts are
stubborn things. Just look at the majority’s own recitation of the facts
presented in this case:
Defendants don’t like that Villarreal “frequently posts . . . content
unfavorable to the Laredo Police Department, . . . the district attorney, and

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other local officials.” Ante, at 3. So they “engaged in a campaign to harass
and intimidate her and stifle her work.” Id. After a months-long
investigation, they settled on a strategy to “arrest Villarreal for [having]
conversations with” a police officer. Id. at 5. They chose that strategy
because, during those conversations, the officer voluntarily answered her
request for the names of two decedents—one involving a traffic accident, the
other, a suicide. Id. at 5–6. So they charged her with “soliciting information
that had not yet been officially made public”—namely, “the name and
condition of a traffic accident victim and the name and identification of a
suicide victim.” Id. at 2, 14. All they could find to charge her was a statute
that had previously been held unconstitutional, and by all accounts has never
been the basis of a successful prosecution. Id. at 20. But that was fine with
them, because their real objective was not to convict, but to humiliate. And
that’s exactly how Defendants used Villarreal’s time in county jail: “[M]any
LPD officers . . . surrounded her, laughed at her, took pictures with their cell
phones, and otherwise showed their animus toward Villarreal with an intent
to humiliate and embarrass her.” Id. at 6 (cleaned up).
So in sum, Villarreal politely asked a question—and an officer
voluntarily answered. No one forced the officer to answer. Villarreal did
nothing to warrant an aggressive, coercive response by law enforcement. The
actions taken here were not split-second judgments calls. No innocent lives
were at stake. No violent armed criminal was at large. Contrast, e.g., Winzer
v. Kaufman County, 940 F.3d 900 (5th Cir. 2019). Instead, this was a months-
long effort to come up with something—anything—to make a popular local
citizen-journalist pay for her unfavorable coverage of local police and
prosecutors.
All that Villarreal seeks from us is the dignity of presenting her
powerful allegations to a jury of her peers. We should’ve granted her
request—or at least resolved her appeal in timely fashion (panel argument

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took place in February 2021, nearly three years ago). Because Villarreal
convincingly alleges not one but multiple violations of our Constitution.
To begin with, the operative complaint presents two distinct theories
of First Amendment liability—Villarreal alleges both a direct violation and
unconstitutional retaliation. As our court has observed, “the First
Amendment prohibits not only direct limitations on speech but also . . .
retaliation against the exercise of First Amendment rights.” Colson v.
Grohman, 174 F.3d 498, 508–9 (5th Cir. 1999). The government can’t arrest
you for engaging in protected speech. That would constitute a direct
violation of your First Amendment rights. In addition, the First Amendment
also prohibits the government from arresting you because it dislikes your
views. That would be unconstitutional retaliation under the First
Amendment.
Villarreal presents both theories. She alleges that Defendants directly
interfered with her First Amendment rights by arresting her for asking
questions. And she further alleges that Defendants retaliated against her
because they dislike her criticisms of Laredo police and prosecutors. These
are distinct theories of liability. We should examine them both. See, e.g.,
Davidson v. City of Stafford, 848 F.3d 384, 398 (5th Cir. 2017) (noting that
“[t]he district court appears to have addressed only [the plaintiff’s] First
Amendment claim in the context of § 1983 retaliation,” and failed to address
his separate claim that his “arrest resulted in an as-applied violation of [his]
First Amendment rights”). And she should be allowed to proceed on both.
Furthermore, Villarreal contends that this blatant misuse of law
enforcement resources against a disfavored citizen presents Fourth
Amendment as well as other claims that warrant trial.

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In response, Defendants claim that Texas Penal Code § 39.06(c)
justifies their campaign against Villarreal. But this statutory defense to
liability under § 1983 is deficient in several obvious respects.
To start, there’s the Supremacy Clause. U.S. Const. art. VI, cl. 2.
Federal constitutional rights obviously trump state statutes. And courts have
repeatedly held § 39.06(c) unconstitutional—whether facially or as
applied—both before and after Villarreal’s arrest. See State v. Newton, 179
S.W.3d 104, 107, 111 (Tex. App.—San Antonio 2005) (observing that “[t]he
trial court . . . held that subsections (c) and (d) of § 39.06 are
unconstitutionally void for vagueness,” and affirming on statutory grounds,
while expressly reserving the constitutional question); State v. Ford, 179
S.W.3d 117, 120, 125 (Tex. App.—San Antonio 2005) (same). That
presumably explains why no one has been able to identify a single successful
prosecution ever brought under § 39.06(c)—and certainly never against a
citizen for asking a government official for basic information of public interest
so that she can accurately report to her fellow citizens.
It should be obvious why public officials can’t enforce state laws in an
obviously unconstitutional manner. The plain text of § 1983 expressly
imposes liability on state actors who violate the Constitution “under color of
[state law].” 42 U.S.C. § 1983. The Supreme Court has applied § 1983
accordingly. See, e.g., Myers v. Anderson, 238 U.S. 368, 382 (1915) (“the new
statute did not relieve the new officers of their duty, nor did it interpose a
shield to prevent the operation upon them of the provisions of the
Constitution”) (construing predecessor to § 1983); Tanzin v. Tanvir, 592
U.S. 43, 50 (2020) (section 1983 “impos[es] liability on any person who,
under color of state law, deprived another of a constitutional right”) (citing
Myers, 238 U.S. at 379, 383). There’s also broad consensus across the circuits
that “some statutes are so obviously unconstitutional that we will require
officials to second-guess the legislature and refuse to enforce an

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unconstitutional statute—or face a suit for damages if they don’t.” Lawrence
v. Reed, 406 F.3d 1224, 1233 (10th Cir. 2005).
Tellingly, none of the parties disputes this principle. Only the
majority flirts with the extreme notion that public officials are categorically
immune from § 1983 liability, no matter how obvious the depredation, so long
as they can recite some statute to justify it. See ante, at 21–22 (rejecting “the
idea of ‘obvious unconstitutionality’” as a basis for § 1983 liability). It’s a
recipe for public officials to combine forces with state or local legislators to
do—whatever they want to do. It’s a level of blind deference and trust in
government power our Founders would not recognize.
What’s worse, in addition to the obvious constitutional problems,
Defendants fail to show that Villarreal violated § 39.06(c) in the first place.
Section 39.06(c) purports to prohibit citizens from asking a public
servant for certain non-public information. It’s only a crime, however, if the
information meets the criterion specified by subsection (d).
Yet by all indications, Defendants were entirely unaware of subsection
(d) when they used § 39.06(c) to justify Villarreal’s arrest. Subsection (d)
makes clear that a citizen violates § 39.06(c) only when she asks for non-
public information that is “prohibited from disclosure under” the Texas
Public Information Act. But nowhere in their arrest warrant affidavits or
charging documents do Defendants ever mention subsection (d) or its
requirements—let alone identify which prohibition on disclosure Villarreal
violated.
And if all that weren’t enough, even counsel’s belated post hoc efforts
fail to identify a relevant prohibition on disclosure. Villarreal is charged with
nothing more than seeking “the name and condition of a traffic accident
victim and the name and identification of a suicide victim.” Ante, at 14. The
majority claims this is sensitive information about a pending criminal

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investigation, and therefore shielded from disclosure under § 552.108 of the
Texas Government Code. But that’s wrong for several reasons, the most
simple of which is this: Subsection (c) of that provision requires the release
of “basic information about an arrested person, an arrest, or a crime.” It’s
hard to imagine anything more “basic” than a person’s name. Every
authority cited by the majority supports that view. See, e.g., Tex. Att’y Gen.
Op. ORD–127, at 9 (1976) (“the press and the public have a right of access to
information concerning crime in the community and to information relating
to activities of law enforcement agencies,” including, among other things,
“the name and age of the victim”) (citing Houston Chron. v. City of Houston,
536 S.W.2d 559 (Tex. 1976)); Indus. Found. of the South v. Texas Indus.
Accident Bd., 540 S.W.2d 668, 685, 686 (Tex. 1976) (a person’s “name” and
“identity” does not constitute “highly intimate or embarrassing facts”
whose release would be “highly objectionable to a reasonable person” and
thus must be disclosed); see also Tex. Att’y Gen. Op. OR2022–36798 (2022)
(citing Indus. Found., 540 S.W. at 685).
So even if I accepted the majority’s extreme vision where public
officials and legislators can overturn federal constitutional rights at their
whim—and make no mistake, I don’t—Defendants fail to present a valid
statutory basis for infringing on Villarreal’s fundamental right to freedom of
speech without fear of incarceration.
***
That’s the executive summary. Further details are provided below.
But the most important point is this: If any principle of constitutional law
ought to unite all of us as Americans, it’s that the government has no business
imprisoning citizens for the views they hold or the questions they ask.
So it’s gratifying that a diverse amicus coalition of nationally
recognized public interest groups organized by the Foundation for Individual

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No. 20-40359

Rights and Expression—including Alliance Defending Freedom, Americans
for Prosperity Foundation, the Cato Institute, the Constitutional
Accountability Center, the Electronic Freedom Foundation, the First
Liberty Institute, the Institute for Justice, and Project Veritas—stands firmly
behind Villarreal.
I’m sure that a number of these amici disagree with Villarreal on a
wide range of issues. But although they may detest what she says, they all
vigorously defend her right to say it. These organizations no doubt have
many pressing matters—and limited resources. Yet they each decided that
standing up to defend the Constitution in this case was worth the squeeze.
This united front gives me hope that, even in these divided times,
Americans can still stand up and defend the constitutional rights of others—
including even those they passionately disagree with. We all should have
joined them in this cause. Because my colleagues in the majority decline to
do so, I must dissent.
I.
This should’ve been an easy case for denying qualified immunity. The
First Amendment obviously protects the freedom of speech. That protection
has long been incorporated against state and local governments under the
Due Process Clause. And it should go without saying that the freedom of
speech includes not only the right to speak, but also the right to criticize as
well as the right to ask questions.
Indeed, the First Amendment expressly protects not only “the
freedom of speech” but also “the right . . . to petition the Government for a
redress of grievances.” U.S. Const. amend. I. It would make no sense for
the First Amendment to protect the right to speak, but not to ask questions—
or the right to petition the government for a redress of grievances, but not for
information.

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It should be obvious, then, that citizens have the right to ask questions
and seek information. See, e.g., Citizens United, 558 U.S. at 339 (recognizing
the First Amendment “right of citizens to inquire, to hear, to speak, and to
use information”); Smith v. Daily Mail Pub. Co., 443 U.S. 97, 99, 103 (1979)
(“The reporters . . . obtained the name of the alleged assailant simply by
asking various witnesses, the police, and an assistant prosecuting
attorney”—which are all “routine newspaper reporting techniques”
protected by the First Amendment); see also Villarreal v. City of Laredo, 44
F.4th 363, 371 (5th Cir. 2022) (collecting other cases and examples).
The fact that the question or request for information happens to be
directed to a police officer does not change the equation. The Supreme Court
has long made clear that “[t]he freedom of individuals verbally to oppose or
challenge police action without thereby risking arrest is one of the principal
characteristics by which we distinguish a free nation from a police state.”
City of Houston v. Hill, 482 U.S. 451, 462–63 (1987). So a law that purports
to prohibit speech that “interrupts an officer” would plainly violate the First
Amendment. Id. at 462 (cleaned up). As the Court put it, “[t]he
Constitution does not allow such speech to be made a crime.” Id. And if it’s
unconstitutional to prohibit a citizen from interrupting a police officer, it’s a
fortiori unconstitutional to prohibit a citizen from politely asking a police
officer a question.
It should have been obvious to Defendants, then, that they were
violating Villarreal’s First Amendment rights when they arrested and jailed
her for asking a police officer for information. And that should be devastating
to their claim of qualified immunity.
The Supreme Court has made clear that public officials who commit
obvious constitutional violations are not entitled to qualified immunity. In
fact, the Court has repeatedly reversed circuits, including ours, for granting

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qualified immunity for obvious violations of constitutional rights. See, e.g.,
Hope v. Pelzer, 536 U.S. 730, 741 (2002); Taylor v. Riojas, 592 U.S. 7, 9 (2020).
The majority responds that the standard articulated in Hope and
Taylor doesn’t apply here, because those cases arose under the Eighth
Amendment, not the First Amendment. Ante, at 27.
But that would treat the First Amendment as a second-class right.
Nothing in § 1983 suggests that courts should favor the Eighth Amendment
rights of convicted criminals over the First Amendment rights of law-abiding
citizens. Nothing in Hope or Taylor indicates that those decisions apply only
to prison conditions. And no other circuit takes the approach urged by our
colleagues in the majority. To the contrary, nine circuits have indicated that
the standards articulated in Hope apply specifically in the First Amendment
context. See, e.g., Diaz-Bigio v. Santini, 652 F.3d 45, 50 (1st Cir. 2011); Nagle
v. Marron, 663 F.3d 100, 115–116 (2nd Cir. 2011); McGreevy v. Stroup, 413
F.3d 359, 366 (3rd Cir. 2005); Tobey v. Jones, 706 F.3d 379, 391 n.6 (4th Cir.
2013); MacIntosh v. Clous, 69 F.4th 309, 399 (6th Cir. 2023); Kristofek v. Vill.
of Orland Hills, 832 F.3d 785, 798 (7th Cir. 2016); Galvin v. Hay, 374 F.3d
739, 746–47 (9th Cir. 2004); Frasier v. Evans, 992 F.3d 1003, 1021–22 (10th
Cir. 2021); Leslie v. Hancock Cnty. Bd. of Educ., 720 F.3d 1338, 1345–46 (11th
Cir. 2013). See also Cheeks v. Belmar, 80 F.4th 872, 877 (8th Cir. 2023)
(applying Hope to the Fourteenth Amendment); Atherton v. Dist. of Columbia
Off. of the Mayor, 706 F.3d 512, 515 (D.C. Cir. 2013) (applying Hope to the
Fifth Amendment).
So I would apply Hope and Taylor in the First Amendment context.
See also Morgan v. Swanson, 659 F.3d 359, 412, 414 n.30 (5th Cir. 2011) (en
banc) (Elrod, J., dissenting in part) (concluding that Hope applies to obvious
First Amendment violations).

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That’s what the Supreme Court did in Sause v. Bauer, 138 S. Ct. 2561
(2018). Two police officers entered a woman’s living room in response to a
noise complaint. When she knelt down to pray, the officers ordered her to
stop, despite the lack of any apparent law enforcement need. Id. at 2562. The
Tenth Circuit granted qualified immunity on the ground that Sause couldn’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). But the Supreme Court summarily reversed,
holding that “there can be no doubt that the First Amendment protects the
right to pray.” Sause, 138 S. Ct. at 2562.1
Sause readily applies here. Just as it’s obvious that Sause has the right
to pray, it’s equally obvious that Villarreal has the right to ask questions.
A.
I suppose it’s understandable, given the obvious First Amendment
violation alleged in this case, why the majority would like to avoid the First
Amendment inquiry altogether. It opens by claiming that Defendants don’t
have to comply with the First Amendment at all. Ante, at 8.
The theory appears to go something like this: Villarreal is challenging
an arrest. So she can’t state a First Amendment claim unless she first
establishes a Fourth Amendment claim. To quote the majority: “Because
Villarreal’s First Amendment free speech claim arises from her arrest,” it’s
“inextricable from her Fourth Amendment claim”—so “liability for both

_____________________
1
The majority suggests I’m overreading Sause. It claims that the decision merely
“remanded for further proceedings.” Ante, at 22. But in fact, Sause “revers[ed] [the] grant
of qualified immunity in a case seeking damages under § 1983 based on alleged violations
of free exercise rights.” Tanzin, 592 U.S. at 50.

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[claims] rises and falls on whether the officers violated clearly established law
under the Fourth Amendment.” Id. See also id. at 26 (“Since there was no
Fourth Amendment violation, the officers have qualified immunity on these
grounds alone from Villarreal’s First Amendment claims.”).
There are a number of problems with the majority’s theory, but the
simplest is this: It spells the end of the First Amendment. All the
government would have to do is to enact some state statute or local ordinance
forbidding some disfavored viewpoint—and then wait for a citizen to engage
in that protected-yet-prohibited speech. The police would have ample
probable cause for arrest under the Fourth Amendment. But it would be an
indisputable violation of the First Amendment. Yet the majority would
conclude that there is no First Amendment liability.
This makes no sense. It’s a roadmap for destroying the First
Amendment. And unsurprisingly, there is no case law to support it.
In fact, the only authority the majority cites for this proposition is,
curiously, Sause. That’s a problem for the majority, because its theory gets
Sause backward: The whole point of Sause is that police actions like arrests
are subject to First Amendment as well as Fourth Amendment scrutiny. As
the Supreme Court has explained, Sause shows that “[t]here is no doubt that
damages claims have always been available under § 1983 for clearly
established violations of the First Amendment.” Tanzin, 592 U.S. at 50
(citing Sause).
The majority cites no authority that construes Sause to supplant the
First Amendment in favor of the Fourth Amendment whenever an arrest is
involved. To the contrary, the majority’s theory contradicts not only Tanzin
but also other Supreme Court decisions that subject arrests to First
Amendment scrutiny. For example, both Lozman v. City of Riviera Beach, 138
S. Ct. 1945 (2018), and Nieves v. Bartlett, 139 S. Ct. 1715 (2019), hold that,

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even where there is probable cause to arrest under the Fourth Amendment,
the First Amendment forbids a police officer from retaliating against a citizen
for engaging in protected speech. See Lozman, 138 S. Ct. at 1949 (“the First
Amendment prohibits government officials from retaliating against
individuals for engaging in protected speech”); Nieves, 139 S. Ct. at 1727 (“it
would seem insufficiently protective of First Amendment rights to
dismiss . . . on the ground that there was undoubted probable cause for the
arrest”).2
The majority’s misreading of Sause also places us in square conflict
with countless circuit decisions around the country that subject police arrests
to First Amendment analysis—such as cases involving peaceful protestors.
In Davidson, for example, the plaintiff was arrested while protesting
an abortion clinic and expressing his pro-life views there. 848 F.3d at 388.
Our colleagues on that panel agreed that individuals arrested while peacefully
protesting are obviously “protected under the First Amendment.” Id. at 391.
Notably, it didn’t matter that the officers claimed a statutory basis for
arresting the plaintiff. “Reasonable officers . . . must . . . consider the
balance between [the protestor’s] First Amendment rights and the right of
the public to have access to the Clinic.” Id. at 393.
Similarly, consider a recent ruling by the same circuit reversed in
Sause. See Jordan v. Jenkins, 73 F.4th 1162 (10th Cir. 2023). The facts of
Jordan are remarkably analogous to those presented here: A citizen verbally
criticizes a police officer. The police officer is upset by the criticism. So he
(wrongly) arrests the citizen, and finds some statute to justify the arrest. The

_____________________
2
Lozman and Nieves also rebut the majority’s curious claim that “the motivation
for an arrest is not relevant to its constitutionality.” Ante, at 18 n.14.

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Tenth Circuit held that the citizen’s “verbal criticism was clearly protected
by the First Amendment.” Id. at 1168.3
B.
Forced to confront the obvious First Amendment violation presented
in this case, the majority counters that a public official can’t be held liable so
long as the official can invoke some statutory justification—no matter how
obvious the constitutional deprivation. See ante, at 21–23.
That’s wrong on several levels. To begin with, it turns the plain text
of § 1983 on its head. The whole point of § 1983 is to hold public officials
accountable if they violate the Constitution “under color of any statute,
ordinance, regulation, custom, or usage, of any State.” To be sure, the
presence of a state statute is no longer a requirement for § 1983 liability after
Monroe v. Pape, 365 U.S. 167 (1961). But it would get § 1983 entirely
backward if the existence of a state statute is not only no longer a required
element of liability, but a defense to liability altogether.
Not surprisingly, then, none of the parties dispute that public officials
are liable if they’ve committed an obvious violation of a person’s
constitutional rights, regardless of whether a state statute authorizes the
official’s actions. A mountain of Supreme Court and circuit precedent
reinforces this principle. See, e.g., Myers, 238 U.S. at 382 (“the new statute
did not relieve the new officers of their duty, nor did it interpose a shield to
prevent the operation upon them of the provisions of the Constitution”)
(construing predecessor to § 1983); Tanzin, 592 U.S. at 50 (section 1983

_____________________
3
See also, e.g., Glik v. Cunniffe, 655 F.3d 78, 79 (1st Cir. 2011); Abraham v. Nagle,
116 F.3d 11, 15 (1st Cir. 1997); Gulliford v. Pierce, 136 F.3d 1345, 1348–1350 (9th Cir. 1998);
Mackinney v. Nielsen, 69 F.3d 1002, 1007 (9th Cir. 1995); Duran v. City of Douglas, 904 F.2d
1372, 1376–77 (9th Cir. 1990).

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“impos[es] liability on any person who, under color of state law, deprived
another of a constitutional right”) (citing Myers, 238 U.S. at 379, 383);
Lawrence, 406 F.3d at 1233 (“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”); see also Guillemard-Ginorio v. Contreras-Gomez, 490 F.3d 31, 40–41
(1st Cir. 2007); Vives v. City of New York, 405 F.3d 115, 118 (2nd Cir. 2005);
Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 103 (2nd Cir. 2003);
Leonard v. Robinson, 477 F.3d 347, 359 (6th Cir. 2007); Ballentine v. Tucker,
28 F.4th 54, 66 (9th Cir. 2022); Carey v. Nevada Gaming Control Bd., 279
F.3d 873, 881 (9th Cir. 2002); Jordan, 73 F.4th 1162; Thompson v. Ragland,
23 F.4th 1252, 1255–56 (10th Cir. 2022); Lederman v. United States, 291 F.3d
36, 47 (D.C. Cir. 2002).
The majority ignores all of this and instead claims that there is, at
most, only “a possible exception for ‘a law so grossly and flagrantly
unconstitutional that any person of reasonable prudence would be bound to
see its flaws.’” Ante, at 21 (quoting Michigan v. DeFillippo, 443 U.S. 31, 38
(1979)). None of the parties make this argument, or cite DeFillippo anywhere
in their briefs to support it.
So what does the majority’s theory mean for this circuit? It means
that public officials can engage in “obviously unconstitutional” violations all
they want. They just can’t commit “grossly and flagrantly unconstitutional”
ones. Maybe.
Under today’s ruling, then, citizens in future cases within the Fifth
Circuit will have to litigate not only whether their rights have been violated,
but whether the violation is merely “obvious” (and thus not actionable) or
“gross and flagrant” (and therefore might be actionable).

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But as for this case, it ought to be enough that arresting citizens for
“speak[ing] freely” is exactly how “totalitarian regimes” behave. Ashton,
384 U.S. at 199. I’ll leave it to the majority to explain why a totalitarian
government is not as bad as a grossly and flagrantly unconstitutional one.
C.
So Defendants cannot avoid liability for obvious constitutional
violations by invoking a state statute. Moreover, § 39.06(c) of the Texas
Penal Code is a particularly weak justification.
To begin with, courts have repeatedly held § 39.06(c)
unconstitutional, whether facially or as applied, both before as well as after
Villarreal’s arrest. See Newton, 179 S.W.3d at 107, 111 (observing that “[t]he
trial court . . . held that subsections (c) and (d) of § 39.06 are
unconstitutionally void for vagueness,” and affirming on statutory grounds,
while expressly reserving the constitutional question); Ford, 179 S.W.3d at
120, 125 (same).4
Not surprisingly, then, no one has identified a single prosecution ever
successfully brought under § 39.06(c)—and certainly not one against a

_____________________
4
The majority responds that Villarreal doesn’t argue that § 39.06(c) is
unconstitutionally vague under the First Amendment. Ante, at 20. But her complaint
repeatedly alleges that Defendants arrested her under an “unconstitutionally vague”
statute on which “no reasonable official would have relied,” and that the statute was
“vague to the average reader, and contrary to [] clearly established First Amendment
right[s].” See ROA.154 at ¶ 4; 169 at ¶ 82; 178 at ¶ 124; 202 at ¶ 256. The First
Amendment prohibits unconstitutionally vague laws—indeed, we apply “stricter standards
of permissible statutory vagueness” to a statute that has a “potentially inhibiting effect on
speech.” Smith v. California, 361 U.S. 147, 151 (1959) (emphasis added).

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citizen for requesting basic information of public interest so that she can
report the information to fellow citizens.5
But what’s more, Defendants have never been able to explain how
Villarreal violated § 39.06(c) to begin with.
Section 39.06(c) makes it a crime for any citizen to ask a public servant
for certain non-public information. But it’s only a crime if the information
meets the criterion specified by subsection (d).
Subsection (d) makes clear that a citizen violates § 39.06(c) only when
she asks for non-public information that is “prohibited from disclosure
under” the Texas Public Information Act. But nowhere in their arrest
warrant affidavits or charging documents do Defendants ever mention
subsection (d) or its requirements—let alone identify which prohibition on
disclosure Villarreal violated.
By all indications, Defendants were simply unaware of subsection (d)
when they used § 39.06(c) to justify Villarreal’s arrest.
Moreover, even after the fact, counsel has been unable to identify a
relevant prohibition on disclosure.
Villarreal is charged with requesting “the name and condition of a
traffic accident victim and the name and identification of a suicide victim.”
Ante, at 14. The majority contends that this is sensitive information about a
pending criminal investigation and therefore shielded from disclosure under
§ 552.108 of the Texas Government Code. Ante, at 12. But subsection (c) of

_____________________
5
The majority claims that Villarreal is not the first to be prosecuted under
§ 39.06(c). But the very example the majority cites is the one that led to § 39.06(c) and (d)
being held unconstitutional. See Ford, 179 S.W.3d at 120. The majority also notes that
prosecutions have been brought against public servants under a different provision,
§ 39.06(b). It’s not clear why the majority thinks this helps its cause.

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that same provision requires the release of “basic information about an
arrested person, an arrest, or a crime.”
In the absence of a statutory prohibition on disclosure, the majority
scrambles and identifies a small handful of other authorities. But none of the
majority’s authorities establish a crime by Villarreal. Ante, at 12–14. To the
contrary, every authority cited by the majority undermines its claims.
The majority cites Houston Chronicle. But there the city was required
to release a broad range of basic information—including “the offense
committed, location of the crime, identification and description of the
complainant, the premises involved, the time of the occurrence, description
of the weather, a detailed description of the offense in question, and the
names of the investigating officers,” 536 S.W.2d at 561, as well as the
property and vehicles involved. See Houston Chron. Pub’g Co. v. City of
Houston, 531 S.W.2d 177, 187 (Tex. App.—Houston [14th Dist.] 1975).
Next, the majority cites a 1976 Texas Attorney General opinion, Tex.
Att’y Gen. Op. ORD–127. But that opinion construes Houston Chronicle to
hold that “the press and the public have a right of access to information
concerning crime in the community and to information relating to activities
of law enforcement agencies”—including, among other things, “the name
and age of the victim.” Id. at 9.
The majority also cites Industrial Foundation. But that decision holds
only that “highly intimate or embarrassing facts” may be excluded from
disclosure under certain circumstances. 540 S.W.2d at 685. What’s more, it
also holds that the release of a person’s “name” and “identity” would not be
“highly objectionable to a reasonable person,” and therefore must be
disclosed. Id. at 686.
Finally, the majority cites a 2022 Texas Attorney General opinion,
Tex. Att’y Gen. Op. OR2022–36798. But that opinion observes that “the

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right to privacy is a personal right that lapses at death,” and therefore,
“information relate[d] to deceased individuals . . . may not be withheld from
disclosure.” Id. at 2-3. To be sure, the opinion also suggests that “surviving
family members can have a privacy interest in information relating to their
deceased relatives.” Id. at 3 (citing Nat’l Archives & Records Admin. v. Favish,
541 U.S. 157 (2004)). But that interest would not extend to basic information
such as the name of the decedent. Family members have a weaker interest in
privacy than the decedent. See 541 U.S. at 167 (family members are
“not . . . in the same position as” decedent). The family’s privacy right is
confined to only the most sensitive matters—namely, “the right of family
members to direct and control disposition of the body of the deceased and to
limit attempts to exploit pictures of the deceased family member’s remains
for public purposes.” Id. (Favish goes on to detail the longstanding cultural
sensitivities concerning “[b]urial rites or their counterparts [that] have been
respected in almost all civilizations from time immemorial.” Id. It also relies
on authorities recognizing a family privacy right in “autopsy records” and
“crime scene photographs,” observing that “child molesters, rapists,
murderers, and other violent criminals often make FOIA requests for
autopsies, photographs, and records of their deceased victims.” Id. at 169-
70.)
None of this remotely supports the conclusion that Villarreal broke
the law by asking for a person’s name.6

_____________________
6
The majority also makes a modest attempt to invoke § 550.065 of the Texas
Transportation Code. Ante, at 13. But that provision applies to the disclosure of written
collision reports prepared under certain enumerated provisions of the Transportation
Code. No one claims that any such report is at issue here.

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D.
Notwithstanding these glaring constitutional and statutory defects,
the majority insists that, because a state court magistrate agreed to issue the
warrants, the independent intermediary rule entitles Defendants to
immunity. As the majority puts it, “[a] warrant secured from a judicial
officer typically insulates law enforcement personnel who rely on it.” Ante,
at 24. “In the ordinary case, an officer cannot be expected to question the
magistrate’s probable-cause determination.” Id. (quoting United States v.
Leon, 468 U.S. 897, 921 (1984)).
But it should be obvious by now that this is not remotely the “typical”
or “ordinary” case. According to the complaint, Defendants jailed Villarreal
for exercising her fundamental right to ask questions and petition officials for
information of public interest. Moreover, they did so without even trying to
satisfy the statutory requirements enumerated in subsection (d)—
presumably because their goal was to humiliate, not incarcerate.
It’s precisely because of cases such as this that the Supreme Court has
warned us not to place blind trust in magistrates. The Court has cautioned
us about the circumstances in which “a magistrate, working under docket
pressures, will fail to perform as a magistrate should.” Malley v. Briggs, 475
U.S. 335, 345–46 (1986). That’s why courts must “require the officer
applying for the warrant to minimize this danger by exercising reasonable
professional judgment.” Id. at 346.
So courts may not allow police officers to shift responsibility to a
magistrate. Instead, we must conduct an independent inquiry to determine
“whether a reasonably well-trained officer . . . would have known that his
affidavit failed to establish probable cause, and that he should not have
applied for the warrant.” Id. at 345. “Defendants will not be immune if, on
an objective basis, it is obvious that no reasonably competent officer would

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have concluded that a warrant should issue.” Id. at 341. See also, e.g.,
Messerschmidt v. Millender, 565 U.S. 535, 547 (2012) (same); United States v.
Brouillette, 478 F.2d 1171, 1175 (5th Cir. 1973) (finding warrant deficient
because it lacked allegations to support “a necessary element of
the . . . criminal offense”).
In holding officers accountable for their warrant applications, the
Court readily acknowledged that “an officer who knows that objectively
unreasonable decisions will be actionable may be motivated to reflect, before
submitting a request for a warrant, upon whether he has a reasonable basis
for believing that his affidavit establishes probable cause.” Malley, 475 U.S.
at 343. “But such reflection is desirable, because it reduces the likelihood
that the officer’s request for a warrant will be premature.” Id.
That’s precisely the problem with this case. The operative complaint
presents compelling allegations that the officers here were motivated, not by
considered judgment, but by malice. The officers here set aside both
Villarreal’s constitutional rights under the First Amendment and the
statutory requirements of subsection (d)—conduct no objectively reasonable
officer would have permitted. These obvious constitutional and statutory
defects disentitle Defendants from the benefits of the independent
intermediary rule.
E.
There’s an old adage among lawyers that, if you don’t have the law on
your side, pound the facts. And that’s just what the majority does to
Villareal.
For example, the majority disparages Villarreal for revealing
information that “could have severely emotionally harmed the families of
decedents and interfered with ongoing investigations.” Ante, at 2. Never
mind that Villarreal was jailed for soliciting information—not publishing it.

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And never mind that Defendants have presented no evidence of any
emotional harm to families or interference with criminal investigations—to
the contrary, the majority is actively preventing the parties from presenting
evidence at trial.
What’s worse, the majority hasn’t explained how any of this provides
a basis for curtailing a citizen’s First Amendment rights. The threat of severe
emotional distress certainly didn’t stop the Supreme Court from enforcing
the First Amendment in Snyder v. Phelps, 562 U.S. 443 (2011), despite the
enormous pain that the speech undoubtedly caused the families of the
decedents. Moreover, the Supreme Court has identified a number of
constitutional rights that have “‘controversial public safety implications.’”
N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 17 n.3 (2022). There are
no doubt citizens who would find it enormously stressful to see another
citizen lawfully bearing firearms. See, e.g., Glass v. Paxton, 900 F.3d 233 (5th
Cir. 2018). But I would venture a guess that the majority would not allow
that emotional hardship to justify curtailment of a citizen’s Second
Amendment rights. The First Amendment deserves the same respect.
The majority also criticizes Villarreal for seeking this information “to
capitalize on others’ tragedies to propel her reputation and career.” Ante, at
2. It is certainly true that people often engage in behavior out of self-interest.
But that too is no basis for limiting a citizen’s First Amendment rights. The
First Amendment doesn’t turn on why a citizen asks a question, or what she
might gain by asking. Every citizen has the right to ask tough questions of
their government. The Constitution is premised on the right to ask, not the
need to ask. The First Amendment doesn’t distinguish between altruistic
and self-interested questions. There is no pro bono requirement to the
freedom of speech. As the Supreme Court has repeatedly observed,
“[s]peech . . . is protected even though it is . . . ‘sold’ for profit.” Va. State
Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761

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(1976). The fact that a speaker’s “interest is a purely economic
one . . . hardly disqualifies him from protection under the First
Amendment.” Id. at 762. See also, e.g., Smith v. California, 361 U.S. 147, 150
(1959) (First Amendment applies to booksellers, because books are plainly
covered by the First Amendment, and “[i]t is, of course, no matter that the
dissemination takes place under commercial auspices”); Thomas v. Collins,
323 U.S. 516, 531 (1945) (rejecting contention that First Amendment rights
don’t apply when “the individual . . . receives compensation” for exercising
those rights); Grosjean v. Am. Press Co., 297 U.S. 233 (1936) (applying the
First Amendment to corporations).
In addition, the majority finds it contemptible that Villarreal chose to
seek information, not through the formal (and often painfully slow)
mechanism of a public information request, but by communicating directly
with a public official she knows. The majority condemns her for using an
“illicit” “backchannel source.” See, e.g., ante, at 2, 16, 17. But I doubt
there’s a single member of this court who hasn’t sought non-public
information from a “backchannel source”—for example, from a Senate aide
who has information about the potential scheduling or other basic
information about a pending judicial nomination (perhaps their own, or that
of a friend). Defendants respond that Congress could make it a crime for a
federal judge to ask a Senate aide for information about a pending judicial
nomination. Oral Argument at 31:00–31:30. It’s a peculiar approach to the
Constitution—and contrary to common sense. See, e.g., Never Say ‘Nice to
Meet You’ and 27 Other Rules for Surviving in D.C., Politico, Feb. 17, 2023
(“D.C. is a formal city; to reach people, you often have to go through official
channels—a communications director, or a press secretary. But if you need
to ask a real question, or if someone needs to get in touch with you about
something important, texting is the way to go. There’s no better way to set

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up a meeting—without staff—or disclose substantive information than the
humble text.”).
Finally, the majority attempts to diminish the injury inflicted by the
police officers and prosecutors on Villarreal. It notes that Villarreal was
“detained, not . . . jailed.” Ante, at 6. It was only a “brief arrest.” Ante, at
1. But Villarreal’s complaint alleges that she was “detained at the Webb
County Jail” and “released from physical detention at the Webb County
Jail” on a $30,000 bond. If the majority thinks this is a material fact dispute,
it’s one that can be considered at trial. But more to the point, the legal
analysis supporting today’s grant of qualified immunity doesn’t turn on what
exactly happened to Villarreal. The majority’s logic would readily lead to
immunity if she had been convicted and incarcerated.
F.
Today’s ruling doesn’t just disrespect Villarreal’s rights. It
disrespects the rights of every citizen in our circuit who might wish to seek
information from public officials. And not just those citizens who seek
information involving a crime. There are countless other exceptions to
disclosure littered throughout Texas law besides § 552.108 of the Texas
Government Code. Indeed, the exceptions to disclosure aren’t even limited
to one particular chapter of one particular code (as noted, the majority cites
a provision of the Transportation Code as an alternative basis for jailing
Villarreal).
So a citizen may feel compelled to hire a lawyer before daring to ask a
public official for information. But even hiring a lawyer may not be enough—
as en banc oral argument in this case troublingly illustrates.
Many parents, for example, are enormously concerned about our
public schools. Their concerns range from curriculum to school safety.
Accordingly, the consideration and selection of a new school superintendent

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may be of great interest to many citizens. See, e.g., Uvalde school chief plans to
resign after community outrage, AP, Oct. 22, 2022 (“Uvalde’s school district
superintendent announced Monday he plans to resign by the end of the
academic year, following months of community outrage over the handling of
the United States’ deadliest school shooting in nearly a decade.”); Hannah
Natanson & Justin Jouvenal, Loudoun schools chief apologizes for district’s
handling of alleged assaults, promises changes to disciplinary procedures, Wash.
Post, Oct. 15, 2021 (“After news of the second assault became public—with
the sheriff’s office putting out a release Oct. 7—parents in the Northern
Virginia district of 81,000 exploded with anger and accusations of
incompetence. They questioned why a student involved in a sexual assault
was transferred to another high school, enabling that student to commit a
second assault. At a heated board meeting Tuesday, some speakers called on
the superintendent and school board to resign.”).
So what if a citizen wishes to ask for the names of those being
considered for superintendent, with plenty of time to investigate and publicly
debate the potential candidates? Does Texas law make it a crime to ask this
question? See Tex. Gov’t Code § 552.126 (“The name of an applicant
for the position of superintendent of a public school district is excepted from
the requirements of Section 552.021, except that the board of trustees must
give public notice of the name or names of the finalists being considered for
the position at least 21 days before the date of the meeting at which a final
action or vote is to be taken on the employment of the person.”).
When this question was asked during en banc oral argument, counsel
for Defendants confidently reassured us that such questions would not be a
crime. Oral Argument at 28:55–29:45.

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But counsel for the Texas Attorney General’s office gave precisely the
opposite response. She said that it would be a crime. Oral Argument at
1:00:38–1:01:00.7
If the attorneys who represent and advise local Texas law enforcement
officials and the attorneys who work for the Texas Attorney General can’t
agree on which questions can put a citizen in prison, it’s no wonder that
courts have repeatedly found the Texas law unconstitutionally vague.8
So the take-away from today’s ruling is this: Any citizen who wishes
to preserve her liberty should simply avoid asking public officials for
information outside of the formal (and time-consuming) channel of the
Public Information Act. But if you ask for public information using the wrong
mechanism, you may go to prison. See Oral Argument at 30:20–25 (“Wrong
procedure, so jail?” “Right.”).
This vision of democracy will no doubt sound idyllic to bureaucrats
who favor convenience to the government over service to the citizen. But it’s
dreadful to anyone who cherishes freedom.
II.
Villarreal also presents a claim of First Amendment retaliation. That
is, separate and apart from Defendants’ interference with her right to ask

_____________________
7
The Texas Attorney General plays a significant role in interpreting and enforcing
the Texas Public Information Act. See, e.g., Tex. Gov’t Code § 552.011.
8
Disagreements over which questions are a crime under § 39.06(c) aren’t limited
to attorneys. The Texas Attorney General’s office also disagrees with the majority. The
majority concludes that “the distinction between exceptions and outright prohibitions on
disclosing information is irrelevant for purposes of section 39.06(c).” Ante, at 11 n.12. By
contrast, the en banc brief of the Texas Attorney General’s office concludes that only
outright prohibitions on disclosure—and not discretionary exceptions—would trigger
§ 39.06(c). See Tex. Br. 19.

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questions, Villarreal alleges that Defendants arrested her in retaliation for
expressing viewpoints critical of local law enforcement.
I agree with, and concur in, Judge Higginson’s eloquent articulation
as to how Villareal has alleged a valid First Amendment retaliation claim. It
seems obvious, and Villarreal’s complaint amply alleges, that others have
asked Laredo officials countless other questions that would violate the same
offense alleged by the government here. Yet the officials only targeted
Villarreal—presumably because they dislike her views. See, e.g., Villarreal,
44 F.4th at 376 (“Villarreal’s complaint sufficiently alleges that countless
journalists have asked LPD officers all kinds of questions about nonpublic
information. Yet they were never arrested.”); id. (Defendants “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.”); id. (“Villarreal alleges, and Defendants concede,
that LPD had never before arrested any person under § 39.06(c).”).
The majority intimates that, under our circuit’s precedents,
Villarreal’s retaliation claim fails as a matter of law. But if that is so, we
could’ve used this very en banc proceeding to revisit those same precedents.
Some members of this court have urged that very course in other cases, but
each time, the majority has declined. See Gonzalez v. Trevino, 60 F.4th 906
(5th Cir. 2023); Mayfield v. Butler Snow, 78 F.4th 796 (5th Cir. 2023). So it’s
not surprising that the majority has declined to do so here.
Be that as it may, the Supreme Court recently granted certiorari to
examine our circuit precedent in any event. See Gonzalez v. Trevino, 144 S.
Ct. 325 (2023).
III.
As for Villarreal’s remaining claims, I would allow her Fourth
Amendment claim to proceed, for the reasons already detailed above, as well

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as the reasons so well stated in Judge Higginson’s scholarly dissent. Even
putting aside the obvious First Amendment problems, there was no probable
cause to arrest her, because the arrest warrants did not even bother to recite,
let alone substantiate, the elements of any crime under Texas law. To excuse
these deficiencies, the majority emphasizes that the probable cause standard
is “nontechnical” and “practical.” Ante, at 17 (citing Maryland v. Pringle,
540 U.S. 366, 370 (2003)). But the case the majority cites involves officers
in the field, not sitting at their desks drafting affidavits.
I would also allow Villarreal’s selective enforcement claim under the
Equal Protection Clause, as well as her conspiracy claim, to proceed, for the
reasons previously articulated by the panel majority. See Villarreal, 44 F.4th
at 375–77.
***
According to an old Russian joke, a kid comes home from school and
says: “Daddy, we had a civics lesson today, and the teacher told us about the
Constitution. He told us that we have a Constitution, too—just like in
America. And he told us that our Constitution guarantees freedom of speech,
too—just like in America.”
The dad responds: “Well, sure. But the difference is that the
American Constitution also guarantees freedom after the speech.”
I agree. Our Constitution guarantees Villarreal’s freedom after her
speech. We should have, too. I dissent.

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