Bay Area Unitarian v. Ogg

Case: 23-20165 Document: 119-1 Page: 1 Date Filed: 04/09/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

April 9, 2025

No. 23-20165 Lyle W. Cayce

____________ Clerk

Bay Area Unitarian Universalist Church; Drink

Houston Better, L.L.C., doing business as Antidote Coffee;

Perk You Later, L.L.C.,

Plaintiffs—Appellants,

versus

Harris County District Attorney Kim Ogg; County

Sheriff Ed Gonzalez; Webster Acting Chief Pete Bacon;

Chief of Houston Police Department Troy Finner,

Defendants—Appellees.

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Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CV-3081

______________________________

Before Jones, Dennis, and Douglas, Circuit Judges.

James L. Dennis, Circuit Judge: *

This lawsuit arises from a First Amendment challenge to Texas Penal

Code §§ 30.06 and 30.07, but this appeal only addresses whether a church

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 23-20165

and a coffee shop have standing to press their claims. Because we hold that

they do, we REVERSE the district court’s dismissals, VACATE the

district court’s order denying leave to amend, and REMAND for further

proceedings.

I

Plaintiffs Bay Area Unitarian Universalist Church (the “Church”)

and Antidote Coffee/Perk You Later, LLC (“Antidote”) are property

owners who wish to exclude all guns from their church and coffee shop. The

Church is a unitarian universalist church located in Webster, Texas. Antidote

is a small coffee shop in Houston that also serves alcohol.

Plaintiffs complain about Texas’s trespass laws, so we explain the

schema. Under Texas’s General Trespass Law, “[a] person commits an

offense if the person enters or remains on or in property of another . . .

without effective consent” and if the person “(1) had notice that the entry

was forbidden” or “(2) received notice to depart but failed to do so.” Tex.

Penal Code § 30.05(a). Section 30.05 affords property owners many ways

to provide notice, including by oral or written communication, an enclosure

that is obviously designed to exclude, or a sign that is reasonably likely to

come to the attention of the intruders. See id. § 30.05(b)(2).

In 2003, the Texas legislature carved out an exception to the General

Trespass Law in § 30.05(f). Specifically, § 30.05(f) states that it is a defense

to prosecution for trespassing if a person is forbidden from entering the

property because entry with a handgun was forbidden without adequate

notice. Id. § 30.05(f). In 2003, this exception applied only to those who

carried a concealed handgun with a permit but was later expanded to any

person openly carrying a handgun “in a holster.” Id. § 30.05(f)(2)(B)(ii).

Following these exceptions, §§ 30.06 and 30.07 were enacted to create

trespass crimes for those exempted under § 30.05(f). Section 30.06

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(“Concealed Carry Trespass Law”) covers concealed handgun license

holders and Section 30.07 (“Open Carry Trespass Law”) covers open-carry

handgun license holders.

Under the Concealed Carry Trespass Law, a person commits an

offense if the person carries a concealed handgun on the property of another

without consent and receives notice by oral or written communication that

the concealed handgun was forbidden. Id. § 30.06. “Written

communication” means:

(A) a card or other document on which is written language

identical to the following: “Pursuant to Section 30.06, Penal

Code (trespass by license holder with a concealed handgun), a

person licensed under Subchapter H, Chapter 411,

Government Code (handgun licensing law), may not enter this

property with a concealed handgun”; or

(B) a sign posted on the property that:

(i) includes the language described by Paragraph (A) in

both English and Spanish;

(ii) appears in contrasting colors with block letters at

least one inch in height; and

(iii) is displayed in a conspicuous manner clearly visible

to the public.

Id. § 30.06(c)(3).

The Open Carry Trespass Law defines “written communication” in

the same way, except the sign posted on the property also must be “displayed

. . . at each entrance to the property.” Id. § 30.07(c). These statutes only

encompass handguns. Therefore, if property owners want to exclude other

types of guns too, they must post a third sign under the General Trespass

Law, § 30.05.

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The Church’s official policy forbids carrying firearms onto church

property. However, the Church currently displays only the open carry signs

in English and Spanish in accordance with the Open Carry Trespass Law.

The Church alleges with supporting evidence that posting the requisite signs

under both §§ 30.06 and 30.07 would (1) degrade the church experience; (2)

inhibit guests’ safety and obstruct the Church’s inclusivity aims; and (3)

detract from the Church’s religious principles. The signs are displayed at the

front and side entrances to the church building, each measure eighteen inches

by twenty-four inches, and both cost $118.80.

Antidote objects to guns being on its property because it believes the

presence of guns creates an unsafe environment for its guests, which include

children and pets. Prior to 2016, Antidote displayed a pictograph sign of a

gun enclosed in a red circle with a red diagonal line through it, which

measured three inches by three inches and cost $0. Since 2016, to comply

with the signage requirements, Antidote has posted both sets of signs

required by §§ 30.06 and 30.07, accruing $260 in costs to do so. The signs

cover a large portion of the windowpane next to the front door—measuring,

altogether, approximately ten square feet—and frustrate Antidote’s desired

“neighborhood coffee shop” aesthetic.

II

In 2020, Plaintiffs filed this lawsuit for declaratory and injunctive

relief against the District Attorney and County Sheriff for Harris County

(collectively the “Harris County Defendants”); the Chief of the Webster

Police Department; and the Chief of the Houston Police Department.

Plaintiffs asserted First Amendment speech and association claims. 1

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1

Plaintiffs brought a federal due process claim too, which the district court

dismissed for lack of standing. Plaintiffs only mention the due process claim once on appeal.

It is forfeited due to inadequate briefing. Rollins v. Home Depot USA, Inc., 8 F.4th 393, 397

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Plaintiffs also brought a parallel Texas Constitution § 8 claim. The Harris

County District Attorney prosecutes violations of Texas Law, including §§

30.06 and 30.07. Likewise, the Harris County Sheriff’s Office, the Webster

Police Department, and the Houston Police Department enforce §§ 30.06

and 30.07 as written in their respective jurisdictions. Officers and

prosecutors employed by Defendants are specifically trained on the nuances

of the signage requirements under §§ 30.05, 30.06, and 30.07.

Relevant to this appeal, the Houston Police Chief filed a Rule 12(c)

motion for judgment on the pleadings, arguing that Plaintiffs lacked Article

III standing. The district court granted the Houston Police Chief’s Rule 12(c)

motion, ruling that Plaintiffs failed to allege facts establishing an injury.

Following that ruling, Plaintiffs filed a motion for leave to file an amended

complaint to incorporate evidence unearthed during discovery. Meanwhile,

the Harris County Defendants filed a Rule 12(c) motion for judgment on the

pleadings also on the ground that Plaintiffs lacked standing, and the Webster

Police Chief filed a Rule 12(b)(1) motion to dismiss for the same reason. The

district court granted the 12(c) and 12(b)(1) motions, dismissed Plaintiffs’

claims without prejudice for lack of standing, denied Plaintiffs’ motion for

leave to file an amended complaint as futile, and entered final judgment.

Plaintiffs timely appealed.

III

A district court’s Rule 12(b)(1) dismissal is reviewed de novo. 2 Ctr. for

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(5th Cir. 2021); see also Consumers’ Rsch. v. Consumer Prod. Safety Comm’n, 91 F.4th 342,

349 (5th Cir. 2024) (“[S]tanding is not dispensed in gross; rather plaintiffs must

demonstrate standing for each claim that they press . . . .”).

2

We treat the Webster Police Chief’s and the Harris County Defendants’ Rule

12(c) motions attacking standing as Rule 12(b)(1) motions. 5C Charles A. Wright &

Arthur R. Miller, Federal Practice and Procedure § 1367 & n.23 (3d ed.

2020) (“[I]f a party raises an issue as to the court’s subject matter jurisdiction on a motion

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Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 421 (5th Cir. 2013).

A “district court . . . has the power to dismiss for lack of subject matter

jurisdiction on any one of three separate bases: (1) the complaint alone;

(2) the complaint supplemented by undisputed facts evidenced in the record;

or (3) the complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts.” Williamson v. Tucker, 645 F.2d 404, 413 (5th

Cir. May 1981).

The district court based its review of the Houston Police Chief’s

motion to dismiss on the complaint, and its review of the Webster Police

Chief’s and Harris County Defendants’ motions on the complaint

supplemented by undisputed facts evidenced in the record. In neither of the

district court’s two rulings on standing did it resolve factual disputes.

“Where, as here, ‘the district court rules on jurisdiction without resolving

factual disputes . . . we consider the allegations in the plaintiff’s complaint as

true and review whether the district court’s application of the law is

correct.’” Di Angelo Publ’ns, Inc. v. Kelley, 9 F.4th 256, 260 (5th Cir. 2021)

(quoting Laufer v. Mann Hosp., L.L.C., 996 F.3d 269, 271–72 (5th Cir. 2021)).

The denial of leave to amend as futile is reviewed de novo. Jim S.

Adler, P.C. v. McNeil Consultants, L.L.C., 10 F.4th 422, 430 (5th Cir. 2021).

IV

A

The requirement that a plaintiff have standing is an essential Article

III restriction. Davis v. FEC, 554 U.S. 724, 732 (2008). To have standing, a

plaintiff must establish they (1) suffer an injury; (2) that is fairly traceable to

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for a judgment on the pleadings, the district judge will treat the [Rule 12(c)] motion as if it

had been brought under Rule 12(b)(1).”).

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the defendant’s conduct; and (3) that is likely to be redressed by a favorable

ruling. Time Warner Cable, Inc. v. Hudson, 667 F.3d 630, 635 (5th Cir. 2012).

1. Injury

First, we find Plaintiffs suffer an ongoing injury because they are

subject to a statutory scheme that treats varying types of similar speech

differently. 3 Davis, 554 U.S. at 734–35 (recognizing that “asymmetrical”

treatment in the First Amendment context is alone sufficient to constitute

Article III injury); see also Time Warner Cable, Inc., 667 F.3d at 636 (holding

in the First Amendment context that “[d]iscriminatory treatment at the

hands of the government is an injury long recognized as judicially

cognizable” (quoting Tex. Cable & Telecomms. Ass’n v. Hudson, 265 F. App’x

210, 218 (5th Cir. 2008))). Specifically, property owners who wish to express

a prohibition on firearms are treated differently from property owners who

wish to express a prohibition on virtually any other item or entrant. Compare,

e.g., Tex. Penal Code § 30.06 (providing that property owners who

exercise their right to exclude firearms can vindicate their property rights by

posting a sign with language identical to the following: “Pursuant to Section

30.06, Penal Code (trespass by license holder with a concealed handgun), a

person licensed under Subchapter H, Chapter 411, Government Code

(handgun licensing law), may not enter this property with a concealed

handgun”), with id. § 30.05(b)(2)(C) (providing that property owners who

exercise their right to exclude for other legally permissible reasons—such as

not wearing shoes—can vindicate their property rights simply by posting a

sign that is “reasonably likely to come to the attention of intruders”); see also

ROA.28 n.1 (“[Sections 30.06 and 30.07 were intentionally designed to be]

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3

We therefore do not reach Plaintiffs’ alternative injury theories, and we express

no opinion on the dissenting opinion’s analysis of them. See post, at 5–6.

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cumbersome so as to discourage businesses from prohibiting entry to

customers carrying guns.”). Plaintiffs allege this asymmetrical scheme limits

their ability to exercise their First Amendment rights to communicate their

desire to exclude firearms relative to other property owners who desire to

exclude other items via signage. Davis, 596 U.S. at 298 (“For standing

purposes, we accept as valid the merits of [Plaintiffs]’ legal claims, so we

must assume that the [Texas statutory scheme] unconstitutionally burdens

speech.”).

Defendants counter that Plaintiffs’ asymmetrical treatment injury is

self-inflicted because they are not required to post compliant signage—i.e.,

Plaintiffs are not subject to prosecution if they choose to post non-

conforming signs, and the Texas statutory scheme contemplates that

Plaintiffs can alternatively give oral notice that guns are forbidden.

Defendants’ argument is too clever by half. While it is true that “standing

cannot be conferred by a self-inflicted injury,” Zimmerman v. City of Austin,

881 F.3d 378, 389 (5th Cir. 2018), it is equally true that an injury is not self-

inflicted when a plaintiff faces a dilemma, the horns of which entail different

harms. See, e.g., Evers v. Dwyer, 358 U.S. 202, 203–04 (1958) (per curiam);

Book People, Inc. v. Wong, 91 F.4th 318, 331–32 (5th Cir. 2024) (finding an

injury not self-inflicted when a plaintiff “will be harmed if they comply with

[the law] and harmed if they don’t”).

Either choice here results in harm. If Plaintiffs do post compliant

signs, they suffer an “asymmetrical treatment” injury. If Plaintiffs do not

post compliant signs, their right to exclude is limited because property rights

are protected by the deterrent value of the criminal laws. 4 See Reno v. ACLU,

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4

The dissenting opinion makes much of the fact that police come when called

regardless of whether compliant signage is posted. Post, at 2–3. But this ignores that the

right to exclude is already injured by the time the police come. The inherent deterrent value

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521 U.S. 844, 872 (1997) (recognizing that deterrence flows from criminal

sanctions); see also ROA.41 ¶ 49 (noting that if a business’s sign does not

precisely comply with §§ 30.06 and 30.07, some individuals take that

opportunity to bring guns onto properties because they face no criminal

consequence for doing so). Oral notice is an inadequate alternative to signage

according to Plaintiffs’ allegations and record evidence because, inter alia, (1)

oral notice is impractical, see ROA.40 ¶ 42; ROA.1212 ¶ 14 (“For one thing,

there is no way for our greeters or anyone else at the Church to know whether

someone is carrying a concealed handgun[.]”); (2) oral notice limits

Plaintiffs’ expressive preferences, see ROA.1212 at ¶¶ 15–16; and (3) oral

notice can lead to danger for guests and employees, ROA.40 ¶ 42 (“Giving

individual notice . . . risks physical confrontation.”); ROA.1259 (discussing

an incident where a person with a gun was asked to leave the Antidote coffee

shop; person “came back with a sword”). See also Skyline Wesleyan Church v.

Calif. Dep’t of Managed Health Care, 968 F.3d 738, 748–49 (9th Cir. 2020)

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flowing from the criminal law and the attendant threat of penalties protects the right to

exclude from the get-go. The record (and common sense) bears out that the law will have

its intended effect: handgun owners will carry handguns where legally permissible and not

where criminally prohibited. See, e.g., ROA.41 ¶ 49 & n.7 (person posted online “I walked

right past a sign yesterday that said ‘No firearms allowed.’ I thought it was cute.”);

ROA.1250–64, 1269–70 (passerby challenged sufficiency of Antidote’s signs to exclude

handguns); ROA.2216–18 ¶¶ 42–44 (alleging that people bring guns onto properties

lacking compliant signage “because they face no criminal consequences for doing so”).

What’s more, even when police do arrive, the right to exclude continues to be deprived for

a period because the record also shows that police sit on their hands in the absence of

compliant signage or oral notice to a trespasser coupled with a subsequent refusal to leave.

As to the dissent’s concern about traceability, for the reasons just stated, it is predictable

that handgun owners will be affected by Defendants’ strict enforcement of the allegedly

unconstitutional signage requirements, so Plaintiffs’ “theory of standing . . . does not rest

on mere speculation about the decisions of third parties; it relies instead on the predictable

effect of Government action on the decisions of third parties.” Dep’t of Com. v. New York,

588 U.S. 752, 768 (2019); post, at 4 (arguing a trespasser’s “audacity is not attributable to

the Texas statute or to” the Defendants).

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(rejecting an argument that an injury was “self-inflicted” when resorting to

alternatives would lead the plaintiff to be “worse off than it had been before

the” challenged conduct). Thus, whichever path Plaintiffs choose—to post

the compliant signage or to not—harm lies ahead, which means their injuries

are not “self-inflicted.”

Nor does it matter that §§ 30.06 and 30.07 are directly enforced

against trespassers rather than the Plaintiffs. A plaintiff challenging the

constitutionality of a statute need not face the threat of direct enforcement to

have standing; they need only show that their rights are adversely affected by

operation of the challenged laws, which, here, is the entire basis of Plaintiffs’

lawsuit. See generally Gange Lumber Co. v. Rowley, 326 U.S. 295 (1945)

(holding that to challenge the constitutionality of a statute, a plaintiff must

show that the alleged unconstitutional feature of the statute injured him, and

so operates as to deprive him of a constitutional right). Plaintiffs’

asymmetrical treatment injury is therefore cognizable.

2. Traceability

Second, Plaintiffs’ asymmetrical treatment injury fairly traces to the

Defendants’ enforcement of §§ 30.06 and 30.07. When an injury flows from

an allegedly unconstitutional law, the individuals charged with the

enforcement of that law are at least part of the cause of the injuries, satisfying

the minimal traceability requirement. K.P. v. LeBlanc, 627 F.3d 115, 123 (5th

Cir. 2010). As noted, it is undisputed that Defendants follow the law and

apply the heightened notice requirements of §§ 30.06 and 30.07. K.P.

dictates that Defendants’ enforcement of §§ 30.06 and 30.07 is at least a

cause of Plaintiffs’ asymmetrical treatment injury. Id.

3. Redressability

Third, Plaintiffs’ asymmetrical treatment injury is redressable by a

favorable judicial decision. Plaintiffs seek a declaration that the heightened

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notice requirements imposed by §§ 30.06(c)(3) and 30.07(c)(3) are

unconstitutional and an injunction against their enforcement. If this relief is

granted, Plaintiffs can provide “notice” as that word is defined in §

30.05(b)—the General Trespass Law—rather than as defined in §§ 30.06

and 30.07. The relief would remove the asymmetrical treatment at the hands

of the government as Plaintiffs would be on equal footing with property

owners who exclude other items via the less burdensome § 30.05 compliant

signage. See, e.g., Heckler v. Mathews, 465 U.S. 728, 738–39 (1984) (equal

treatment is a remedy).

* * *

At bottom, Plaintiffs have alleged with supporting evidence (1) an

injury-in-fact that is both (2) traceable to Defendants’ enforcement of

§§ 30.06 and 30.07 and (3) redressable by a favorable judicial decision. They

have established their Article III standing to press their First Amendment

claims. Time Warner Cable, Inc., 667 F.3d at 635. The parties (and the district

court) treat Plaintiffs’ First Amendment and Texas Constitution § 8 claims

as coterminous. Because “we analyze [the] First Amendment and § 8 claims

together[] [and] apply[] federal law,” Crampton v. Weizenbaum, 757 F. App’x

357, 369 n.9 (5th Cir. 2018) (per curiam), Plaintiffs also have standing to press

their Texas Constitution § 8 claim. 5

We caution that this appeal does not reach the merits of Plaintiffs’

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5

Defendants raise two additional justiciability issues, and one merits argument.

First, Defendants re-urge their standing arguments to say that Plaintiffs’ claims are not ripe

because they have not alleged any injury traceable to Defendants. For the reasons already

stated, we disagree. Second, the Houston Police Chief claims the Ex Parte Young exception

to sovereign immunity does not apply to him because he is a city official, “not a state official

or an arm of the state.” That’s a non-starter because Eleventh Amendment immunity

“does not extend” to cities in the first place. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531

U.S. 356, 369 (2001). And third, the Houston Police Chief argues that “a municipality such

as Houston is not subject to suit” unless Plaintiffs allege a “policy or custom.” This is an

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claims, and we express no opinion on them. Warth v. Seldin, 422 U.S. 490,

500 (1975) (“[S]tanding in no way depends on the merits of the plaintiff’s

contention that particular conduct is illegal.”). 6

B

Finally, the district court denied as futile Plaintiffs’ motion for leave

to file an amended complaint because it ruled Plaintiffs lacked standing.

Given our disposition, we vacate the denial of leave to amend. See Jim S.

Adler, P.C., 10 F.4th at 430.

V

For the foregoing reasons, we REVERSE the district court’s

dismissals, VACATE the district court’s order denying leave to amend, and

REMAND for further proceedings not inconsistent with this opinion.

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attack on the merits of Plaintiffs’ claims, which the district court did not reach. Neither do

we. Magnolia Island Plantation, L.L.C. v. Whittington, 29 F.4th 246, 252 (5th Cir. 2022)

(“As a well-established general rule, this court ‘will not reach the merits of an issue not

considered by the district court.’” (quoting Baker v. Bell, 630 F.2d 1046, 1055 (5th Cir.

1980))).

6

But see post, at 3–4 (the dissenting opinion first arguing that there is no “compelled

speech” and then arguing that Plaintiffs’ unconstitutional condition theory fails).

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Edith H. Jones, Circuit Judge, dissenting:

The majority opinion relies primarily on one “injury” pled by the

plaintiffs: an “asymmetric treatment” injury allegedly founded on Davis v.

Federal Election Com’n, 554 U.S. 724, 128 S. Ct. 2759 (2008). That “injury”

does not exist, and Davis is wholly inapposite. Moreover, all of the plaintiffs’

other injury theories are equally unfounded. I would affirm the district

court’s judgment, which found that plaintiffs lack Art. III standing to sue.

1. Asymmetrical injury. Plaintiffs claim to suffer an “ongoing injury

because they are subject to a statutory scheme that treats varying types of

similar speech differently.” The majority opinion agrees with the

“asymmetrical injury” theory because plaintiffs are supposed to post a

certain size and type of poster on their property to repel gun-carrying

patrons, Tex. Penal Code § 30.06, while any attention-drawing sign may

be used by landowners for other types of discouraged entry. Tex. Penal

Code § 30.05(b)(2)(C). “Asymmetrical” implies the opposite of

something “symmetrical.” But plaintiffs’ signs and other statutorily

prescribed signs cover entirely different subjects. Dissimilar signs are apples

and oranges, because there is no content symmetry arising from the

legislature’s differing choices. Plaintiffs’ factual underpinning for this

“injury” makes no sense.

Legally, Davis has nothing to do with signage outside entities open to

the public. Davis’s recognition of “‘asymmetrical’ treatment” in the First

Amendment context was based on the comparative status of two candidates

for the same public office. The campaign finance law expressly

disadvantaged a self-financed candidate, because his opponent was allowed

to receive far more individual contributions and party expenditures up to the

self-financed amount. See Bipartisan Campaign Reform Act (BCRA),

§ 319(a); Davis, 554 U.S. at 729, 128 S. Ct. at 2766. The Federal Election

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Commission (FEC) argued that, because the opponent had not yet qualified

for or taken advantage of the asymmetrical limits, the self-financed plaintiff

Davis lacked standing to challenge the provision. Id. at 734, 128 S. Ct. at

2769. Recognizing this prescribed disparity in campaign finance limits, the

Supreme Court held that Davis had standing to challenge the provision’s

“asymmetrical contribution scheme.” Id. at 735, 128 S. Ct. at 2679.

In Davis, the “asymmetry” affected direct adversaries. The

consequences of plaintiff Davis’s decisions were either (1) limit your

protected right to political speech, or (2) be directly disadvantaged if you

don’t. The majority opinion here abstracts asymmetry to meaninglessness,

in stating that the challenged no-guns signage scheme “limits [Plaintiffs’]

ability to exercise their First Amendment rights to communicate their desire

to exclude firearms relative to other property owners who desire to exclude

other items via signage.” Here, there is no direct prospective injury or

consequence to the plaintiffs as there was in Davis: posting a less obtrusive

sign on the premises for other reasons (e.g., no shirt, no shoes, no service, or

No Dogs) causes no comparative injury vis a vis the no-guns posters.

In any event, the majority opinion cites no cases, articles or anything

that supports their illogical finding of “asymmetrical injury” in this situation.

I now turn to plaintiffs’ other theories of injury.

2. Adverse effect of failure to post signs. The record shows, as a

matter of fact and on the face of the statute, that even if the Plaintiffs refuse

to post the statutory wording on their signs, the police will still come when

they call. The Plaintiffs are not deprived of access to law enforcement to help

them exclude trespassers carrying guns. Importantly, the Church’s

administrator, Sharlene Rochen, testified that the Webster Police

Department has always responded when she calls. Over the last five years,

she called the police ten times and they always responded within nine

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minutes. Likewise, Webster PD Chief Bacon affirmed that the Department

investigates and responds to trespass and other calls in the same manner

regardless whether the property owner elects to use the Acts’ written signage

option.

What is true as a matter of proof for the Church, which was dismissed

based on factual development in Defendant Chief Bacon’s motion to dismiss,

is also true for the coffee shop Plaintiffs whose case was dismissed on

pleadings alone pursuant to Rule 12(c). On its face, the statute states that a

trespasser is anyone carrying a gun who refuses to leave the premises after

being verbally warned. Tex. Penal Code §§ 30.06(b), 30.07(b). That

means that if the coffee shop or the Church sees someone trespass under

those circumstances, either Plaintiff may call the police—which they’d have

to do for official protection—and the police would arrive to eject the person.

No posters need be published to accomplish the person’s ouster, nor posters

that exactly conform to the statutory warning. A verbal command or request

activates the statute. See id. Thus, whether Plaintiffs post the prescribed

sign, a modified sign, or no sign at all, makes no difference to their right to

protection as landowners or occupants of the property. They are not injured.

Nor are they subject to a dilemma about whether to comply with the

prescribed signage.

3. Compelled speech. There is no “compelled speech” for two

reasons. First, Plaintiffs aren’t saying they disagree with the “message” on

the posters, they simply contend that the posters are so big as to be

“unwelcoming” or “non-inclusive.” One wonders, “unwelcoming” to

whom? To patrons who don’t carry guns, or only to those who might do so?

Plaintiffs can’t be “injured” if the regulation-size posters deter the gun

carriers, which is the effect they say they want. But they claim injury from

disagreements spawned by Second Amendment supporters who quarrel with

them about the signs. Would such people be less quarrelsome if the no-carry

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signs were pretty little pistols with a red slash inside a red circle? Who

knows? It is not the content of the signs that “injures” Plaintiffs, but the

appearance of the signs that reflects the Plaintiffs’ own views. Plaintiffs

cannot suffer a First Amendment “injury” by posting their own views at

their places of worship/business. Their objection to the prescribed signage

is thus purely aesthetic. To this extent, it is like an objection to any

aesthetically-based zoning ordinance, but it is not a “free speech” objection.

Second, as to “compelled speech,” this fact pattern is completely

distinct from actual state-mandated speech cases. Here, not only is nothing

“compelled,” but there is no penalty attached to Plaintiffs’ refusals to post

the statutory language. Cf. Free Speech Coalition, Inc. v. Paxton, 95 F.4th 263,

267–69 (5th Cir. 2024) (plaintiff pornographic websites had standing to bring

a First Amendment challenge to a Texas law requiring the websites to display

“health warnings” on their webpages or pay a fine); see also Book People, Inc.

v. Wong, 91 F.4th 318, 329–32 (5th Cir. 2024) (booksellers had standing to

bring a First Amendment challenge to a Texas law requiring warnings of

sexual content on books sold to Texas schools—or they couldn’t sell the

books).

A more comparable case is California v. Texas. 593 U.S. 659, 666, 141

S. Ct. 2104, 2112 (2021) (no standing by individual plaintiffs to challenge the

minimum “commanded” essential coverage requirement of the Affordable

Care Act, which Congress had reduced to zero). In other words, no harm, no

foul for standing purposes. Here, if the Plaintiffs fail to post any or non-

compliant signage, they allege they are deprived of the “deterrent value” of

the criminal law. But as noted above, the Plaintiffs can still order anyone off

their property and call the police to enforce the law. If any would-be

trespassers remain undeterred, their audacity is not attributable to the Texas

statute or to any actions taken by Defendants to enforce it.

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4. Other theories of injury. Plaintiffs seemed to back off the idea that

injury would result if the Defendants not only fail to enforce, but also fail to

prosecute gun-carrying trespassers. These Plaintiffs have no constitutional

right to force the criminal prosecution of others. In any event, the statute

offers a complete defense to a trespassing charge if the trespasser voluntarily

leaves the premises.

The Plaintiffs also contend that they have acceded to an

“unconstitutional condition” by posting the signs. But the doctrine of

“unconstitutional conditions” provides that “the government may not

require a person to give up a constitutional right . . . in exchange for a

discretionary benefit.” Dolan v. City of Tigard, 512 U.S. 374, 385, 114 S. Ct.

2309, 2317 (1994). As explained above, the Plaintiffs have given up no right,

they are not forced to post any sign or any compliant sign, and they are

deprived of no benefit.

Finally, the Plaintiffs argue they have suffered reputational harm,

because third parties have posted negative Google reviews drawing attention

to their posting of the signs. But to constitute an injury in fact, reputational

harm must “bear[] a ‘close relationship’ to . . . the reputational harm

associated with the tort of defamation.” TransUnion LLC v. Ramirez,

594 U.S. 413, 432, 141 S. Ct. 2190, 2209 (2021). Here, the alleged Google

reviews wholly fail to line up with the common law of defamation: the Google

reviews state true facts and perhaps matters of opinion. But even if bad

reviews constitute an injury in fact, it is traceable only to the third party posts

on Google, not to the Defendants.

For these reasons, I see no way in which the Plaintiffs are actually

injured by the existence of the statutory language that prescribes the contents

and form in which notices may be posted to warn gun carriers against

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trespass. Plaintiffs lack standing, and the district court’s judgment should be

affirmed. I respectfully dissent.

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