# Bay Area Unitarian v. Ogg

> Court of Appeals for the Fifth Circuit · April 9, 2025

URL: https://www.frixlaw.com/law-library/cases/10842076

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** April 9, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** Private Civil Federal
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10842076

## How later opinions describe it (automated extraction)

- recognizing that deterrence flows from criminal sanctions
- 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
- finding an injury not self-inflicted when a plaintiff “will be harmed if they comply with [the law] and harmed if they don’t”

## Opinion text

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.

______________________________

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

_____________________
*
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
_____________________
(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

_____________________
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,

_____________________
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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Case: 23-20165 Document: 119-1 Page: 17 Date Filed: 04/09/2025

No. 23-20165

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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No. 23-20165

trespass. Plaintiffs lack standing, and the district court’s judgment should be
affirmed. I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10842076. Public record. Not legal advice.