The opinion
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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
June 16, 2025
No. 23-10881
____________ Lyle W. Cayce
Clerk
Mark Hamilton,
Plaintiff—Appellant,
versus
The City of Wilmer, Texas; Rona Stringfellow,
Individually,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:22-CV-2103
______________________________
Before Higginson, Willett, and Oldham, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Mark Hamilton, former Chief of the Fire Department of Wilmer,
Texas, was dismissed from his job after he testified, pursuant to a subpoena,
at a probation revocation hearing for a former employee who had hidden re-
cording devices in fire station bathrooms. Hamilton drove a city car to the
hearing, wore his uniform as he testified, and did not take leave from work.
The issue here is whether Hamilton has stated a claim that he was
fired in retaliation for protected First Amendment activity. We find that he
has not, so we AFFIRM the decision of the district court.
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I
Because this matter was before the district court on a 12(b)(6) motion,
the district court relied on the allegations of the complaint made by Hamilton.
In general, Appellees do not contest Hamilton’s account of the facts.
Hamilton alleges that the factual background of his termination “be-
gins” with misconduct allegations against another Wilmer Fire Department
employee, Craig Lawrence, in 2019.1 Hamilton alleges that the charge that
Lawrence put recording equipment in the bathroom of the fire station at
which Lawrence worked had been “generally known” by the City since that
time, and that Lawrence had been put on paid leave pending trial on a crimi-
nal charge based on those allegations. However, Hamilton alleges, because of
the long delay in trial caused by the Covid-19 pandemic, the City Adminis-
trator (prior to Rona Stringfellow) put Lawrence back on duty, “based on the
idea that if the city was going to pay Lawrence’s salary, it should at least re-
ceive his services.” Hamilton alleges that, when Stringfellow became the
City Administrator, both her predecessor and Hamilton informed her of
Lawrence’s ongoing criminal matter.
On June 16, 2022, Hamilton alleges, the Dallas County District Attor-
ney’s Office (“the Dallas DA’s office”) issued him a subpoena in the matter
of State of Texas v. Craig Lawrence, in the 363rd Judicial District Court of
_____________________
1
Lawrence was facing allegations that he had placed a camera in the bathroom of
the fire station where he worked. Per the Appellees’ briefing, he was arrested and charged
with a violation of Texas Penal Code § 21.15, for Invasive Visual Recording of a
Bathroom/Dressing Room. In an affidavit filed in the district court, Hamilton states that
Lawrence told him that he put the hidden camera in a locker room at the fire station after
his locker was burglarized. Hamilton alleges that Lawrence told him the camera was
pointed towards a locked bathroom area but that “nobody used the bathroom without
closing the door.” Lawrence had been sentenced to two years of probation on October 29,
2021, and the hearing on June 23, 2022, was in fact a revocation hearing at which he was
sentenced to 270 days in prison.
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Dallas County Texas. On June 20, 2022, Hamilton alleges, Lawrence in-
formed him that he had an upcoming court date at which he would be as-
signed a new counselor. But he did not inform Hamilton of the subpoena.
The next day, June 21, 2022, a representative of the Dallas DA’s office
attempted to serve Hamilton at Wilmer City Hall. Hamilton was not present,
so the representative could not serve him. However, Hamilton alleges,
Stringfellow was aware that someone had come to Wilmer City Hall seeking
to serve Hamilton, and she called Hamilton to relay this information. Hamil-
ton alleges that, when Stringfellow called him, she did so on speakerphone
with the Dallas DA’s office representative and another city employee. Ham-
ilton alleges that, on the phone call, he agreed to be served by email. The next
day, June 22, 2022, Hamilton was served via email. He was ordered to appear
on the following day, June 23, 2022, at 9:00 A.M. Hamilton alleges that, be-
cause Lawrence had told him that the purpose of the hearing was “to assign
a new counselor for Lawrence,” he did not feel the need to contact Human
Resources, Stringfellow, or the City Attorney before he testified.
On the day of the hearing, Hamilton alleges, he appeared to testify in
uniform because the subpoena had been addressed to “Chief Mark Hamil-
ton” and wearing a uniform was “the custom of fire chiefs in Texas.” Before
the hearing, Hamilton alleges, Lawrence told him that he intended to resign
from the fire department, and Hamilton informed him that he preferred to
receive a written resignation letter. Hamilton alleges that after he was sworn
in, he testified for about five minutes of direct examination by the State and
a cross-examination by Lawrence’s attorney.
According to Hamilton’s complaint, the State asked him to state his
name, employer, and position, and asked if his position was Fire Chief. Ham-
ilton confirmed that information. The State asked if it was true that Hamilton
had hired Lawrence after he was charged with the crime at issue, and
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Hamilton said that Lawrence had worked for the City since 2013. Then,
Hamilton alleges, the State asked if he was aware of the 2019 allegations, and
he “truthfully testified that his knowledge of the case was limited to what
Lawrence had told him because the District Attorney’s Office and the Dallas
Police Detectives refused to talk to Hamilton based on the policy or proce-
dure to not discuss an ongoing investigation.” The State asked if Hamilton
“would be surprised to find out Mr. Lawrence has visited adult sexually ori-
ented websites on his phone,” and Hamilton responded that he would be sur-
prised. Then the State asked if Hamilton was concerned with Lawrence going
into people’s homes, and Hamilton answered in the negative.
Subsequently, Lawrence’s attorney asked Hamilton how long he had
known Lawrence, and Hamilton replied, “more than 20 years.” He testified
that he had met Lawrence when he worked with him at the Seagoville Fire
Department. When asked if the charges “sounded like the person Hamilton
had known for over 20 years,” he said they did not. At the end of the hearing,
Hamilton alleges, Lawrence was placed into custody and sentenced to three
months of confinement. Hamilton alleges that he was “stunned” because he
still thought the hearing was about reassigning a counselor to Lawrence.
Hamilton alleges that, after the hearing, Lawrence sent Hamilton a
resignation email, which he accepted and forwarded to the City’s Human Re-
sources Department. Immediately, he alleges, he also told Stringfellow that
Lawrence had resigned. He alleges that he intended to “more fully inform”
Stringfellow on two occasions over the next day: first, at a town hall meeting
the evening of the hearing, during which he found “no appropriate oppor-
tunity to speak with Stringfellow” and then at a regularly scheduled meeting
the next morning that Stringfellow canceled. He alleges that he did not speak
to Stringfellow until the day after the hearing at an afternoon meeting that
she scheduled, at which he was given a notice that he was being placed on
administrative leave. The notice stated:
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The notice also informed him that he may be contacted during the investiga-
tion and that he was expected to “fully cooperate.”
On July 19, 2022, Hamilton alleges, the Human Resources Director
sent Hamilton a series of eight questions regarding the subpoena, his testi-
mony, whether he wore a city uniform, and if he indicated he was Fire Chief
during his testimony. One question asked why Hamilton did “not inform and
seek guidance from the City Administrator, Human Resources, or the City
Attorney when [he] became aware of Mr. Lawrence’s arrest,” and another
asked for a summary of his testimony. Hamilton alleges that on July 22, 2022,
he sent “truthful responses” to each of the questions.
On August 9, 2022, Stringfellow sent him a termination letter via
email. He included the email in his complaint:
Subsequently, Hamilton appealed his termination to the City Council, which
affirmed his termination. Hamilton alleges that, at the appeal hearing, the
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City Attorney stated “on the record” that he would have ordered Hamilton
to disobey the subpoena had he known about it.2
On September 21, 2022, Hamilton sued Stringfellow and the City of
Wilmer. Hamilton brought claims under 42 U.S.C. § 1983 against the City of
Wilmer and Stringfellow, in her individual capacity, for violating his First
Amendment rights by terminating him in retaliation for speaking as com-
pelled by a lawful subpoena. Hamilton seeks compensatory damages and eq-
uitable relief, including reinstatement, back pay, and attorneys’ fees.
Both Stringfellow and the City of Wilmer filed motions to dismiss
Hamilton’s complaint under Federal Rule of Civil Procedure 12(b)(6). The
court granted both motions, and this appeal followed.
II
“Dismissals for failure to state a claim are reviewed de novo.” Cody v.
Allstate Fire & Cas. Ins. Co., 19 F.4th 712, 714 (5th Cir. 2021) (citing Magee v.
Reed, 912 F.3d 820, 822 (5th Cir. 2019)). At this stage of the proceedings, we
must “accept[] all well-pleaded facts as true and draw[] all reasonable infer-
ences in the nonmoving party’s favor.” Franklin v. Regions Bank, 976 F.3d
443, 447 (5th Cir. 2020) (citation omitted). “A plaintiff seeking to overcome
a motion to dismiss because of qualified immunity grounds or for failing to
state a claim must plead facts that allow the court to draw the reasonable in-
ference that the defendant is liable for the harm alleged.” Bevill v. Fletcher,
26 F.4th 270, 274 (5th Cir. 2022) (Bevill I) (citation omitted). That is, “a
plaintiff must plead factual allegations that, if true, ‘raise the right to relief
_____________________
2
Hamilton attached a copy of a transcript of this hearing to his response to
Defendants-Appellees’ motion to dismiss. During the hearing, the City Attorney
repeatedly asked him why he did not send the subpoena to the legal counsel for the city
when he received it, but no party has identified any statements in the transcript that suggest
anyone told him he should have disobeyed the subpoena.
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above the speculative level,’” Mayfield v. Currie, 976 F.3d 482, 486 (5th Cir.
2020) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), meaning
that the relief is “plausible, not merely possible,” Benfield v. Magee, 945 F.3d
333, 337 (5th Cir. 2019) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Stringfellow and the City of Wilmer have both asserted qualified im-
munity to Hamilton’s claims against them. Stringfellow is entitled to quali-
fied immunity unless Hamilton can raise a fact issue showing (1) Stringfellow
violated a constitutional right, and (2) the right at issue was “clearly estab-
lished” at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S.
223, 232 (2009); see also Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir.
2016). With regard to the City of Wilmer, to establish municipal liability un-
der § 1983, a party must show that “(1) an official policy (2) promulgated by
the municipal policymaker (3) was the moving force behind the violation of a
constitutional right.” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th
Cir. 2009). “We have stated time and again that without an underlying con-
stitutional violation, an essential element of municipal liability is missing.”
Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 866-
67 (5th Cir. 2012) (en banc) (alteration adopted) (internal quotation marks
and citation omitted).
III
We will first address whether Hamilton states a claim that his consti-
tutional rights have been violated.
“To succeed in a First Amendment retaliation claim under § 1983, a
public employee must show: (1) he suffered an adverse employment action;
(2) he spoke as a citizen on a matter of public concern; (3) his interest in the
speech outweighs the government’s interest in the efficient provision of pub-
lic services; and (4) the speech precipitated the adverse employment action.”
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Wilson v. Tregre, 787 F.3d 322, 325 (5th Cir. 2015) (citing Nixon v. City of
Houston, 511 F.3d 494, 497 (5th Cir. 2007)).
“[T]he First Amendment protects a public employee’s right, in cer-
tain circumstances, to speak as a citizen addressing matters of public con-
cern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). Courts employ a two-
step inquiry to determine if speech is protected under the First Amendment.
The first step “requires determining whether the employee spoke as a citizen
on a matter of public concern.” Id. at 418. “If the answer is no, the employee
has no First Amendment cause of action based on his or her employer’s re-
action to the speech.” Id. But if the answer is yes, the court analyzes whether
the “government entity had an adequate justification for treating the em-
ployee differently from any other member of the general public.” Id. The
Court in Garcetti held that, when employees make statements “pursuant to
their official duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their commu-
nications from employer discipline.” Id. at 421.
In its Memorandum Opinion and Order, the district court stated that
it accepted the following facts as true for the purposes of the motion to dis-
miss:
(i) Hamilton was the Chief of the Wilmer Fire Department; (ii)
the Dallas County District Attorney’s office subpoenaed
“Chief Mark Hamilton” to testify in a matter wherein another
Wilmer Fire Department employee, Lawrence, was a criminal
defendant; (iii) the Dallas County District Attorney’s Office
attempted to serve Hamilton at Wilmer City Hall; (iv) Wilmer
City Administrator Stringfellow communicated notice of the
subpoena to Hamilton in a call with another Wilmer City em-
ployee and a Dallas County District Attorney employee on the
call; and (v) Hamilton testified in Lawrence’s criminal pro-
ceeding—while wearing his Fire Chief uniform, during work
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hours—as to (a) Hamilton’s employment as Wilmer’s Fire
Chief, (b) Lawrence’s work with Wilmer, (c) Hamilton’s
knowledge of allegations involving Lawrence from 2019, and
(d) Hamilton’s knowledge that Lawrence had not faced disci-
plinary action at any place of employment. Indeed, Hamilton’s
pleading confirms that he “testif[ied] as the Chief of the Fire
Department, and not as a civilian.”
1 Considering these facts, the district court rejected Hamilton’s argu-
ment that his speech fell outside of his official duties and that it was protected
First Amendment speech under Lane v. Franks, 573 U.S. 228 (2014).
In Lane, Edward Lane, an administrator of a youth program at the
Central Alabama Community College (CACC) began an investigation of a
state legislator who was on the CACC payroll. Lane, 573 U.S. at 232. Lane
testified against the legislator in front of a grand jury and at two trials (as the
first ended in a mistrial), and the legislator was convicted of mail fraud and
theft concerning a program receiving federal funds. Id. at 233. Lane was sub-
sequently fired. Id.
The Eleventh Circuit affirmed the district court’s grant of summary
judgment to the defendant Steve Franks, the CACC president, holding that
Lane spoke as an employee because his investigation of the state legislator
was pursuant to his official duties, even though he testified pursuant to a sub-
poena. Id. at 235. The Eleventh Circuit also affirmed the district court’s con-
clusion that Franks would be entitled to qualified immunity because he had
violated no clearly established law. Id.
The Supreme Court reversed on the question of “whether the First
Amendment protects a public employee who provides truthful sworn testi-
mony, compelled by subpoena, outside the scope of his ordinary job respon-
sibilities.” Id. at 238. Regarding whether Lane was speaking as a “citizen”
when he testified, the Court held that the Eleventh Circuit had incorrectly
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applied the rule from Garcetti, which concerned an internal memorandum, to
the sworn testimony Lane gave. Id. at 239. While Lane had testified based on
information he had learned during work, “the mere fact that a citizen’s
speech concerns information acquired by virtue of his public employment
does not transform that speech into employee—rather than citizen—
speech.” Id. at 240. As to the “public concern” prong of the Garcetti analy-
sis, the Court held that “[t]he content of Lane’s testimony—corruption in a
public program and misuse of state funds—obviously involves a matter of
significant public concern.” Id. at 241. While reversing the Eleventh Cir-
cuit’s determination of the constitutional merits, the Court also held that
Franks was entitled to qualified immunity because First Amendment protec-
tion for Lane’s testimony was not “beyond debate” at the time of the firing.
Id. at 246.
Importantly for our purposes here, because the Supreme Court con-
cluded it was “undisputed” that testifying was not part of Lane’s normal
tasks, it expressly declined to reach the question of “whether truthful sworn
testimony would constitute citizen speech under Garcetti when given as part
of a public employee’s ordinary job duties.” 573 U.S. at 238 n.4.
IV
Our court’s post-Lane jurisprudence does not clearly answer the ulti-
mate question in this case: does Lane’s use of the phrase “ordinary job du-
ties” refer to categorical duties augured by a specific role—say, law enforce-
ment officer—or is it merely a restatement of the Garcetti formulation that a
government employee is not protected by the First Amendment if he makes
a statement “pursuant to [his or her] official duties”? Bevill I, 26 F.4th at 276
(citing Garcetti, 547 U.S. at 421).
In 2022, our court decided Bevill I, which takes the latter point of view.
In that case, the plaintiff, a police officer, wrote an affidavit in support of a
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venue transfer for a friend, a county jail administrator who was facing crimi-
nal prosecution. Id. at 273. In the affidavit, he wrote that based on his experi-
ence as a police officer in the county, he did not think his friend would receive
a fair trial because of the friendship between the sheriff, the district attorney,
and the judge. Id. Bevill did not sign the affidavit in his capacity as an officer,
nor did he speak with anyone in the police department about the affidavit be-
fore he signed it. Id. Bevill was placed on administrative leave, and eventually
fired for violating city policies that prohibited police officers from “seek[ing]
to obtain any continuance of any trial in court out of friendship for the De-
fendant or otherwise interfere with the courts of justice” and “conduct[ing]
themselves in a manner which . . . discredit[s] the Peace Officer profession
or their employing agency.” Id. Later, the same judge issued a warrant for
Bevill’s arrest for perjury, though the charges were dropped, and placed re-
strictive conditions on Bevill during the pendency of his bond. Id. at 273-74.
Bevill brought a § 1983 action against the sheriff and DA for retaliatory
termination of his employment, and sued the sheriff, DA, and judge for con-
spiracy to terminate his employment in retaliation for his affidavit. Id. at 274.
The district court held that the defendants were not entitled to qualified im-
munity on conspiracy, and that the complaint plausibly pled that the defend-
ants formed an agreement to violate Bevill’s First Amendment rights. Id.
This court upheld the district court’s ruling, holding that Bevill was
speaking as a private citizen on a matter of public concern. Id. at 278. While
it was true that Bevill gave “his affidavit the imprimatur of his position” by
putting his job title directly after his name on the affidavit, id. at 277, and he
“learned about potential bias in [his friend’s] upcoming trial through his
work as a policeman,” id. at 276, the panel majority found neither of these
facts outweighed other facts “suggest[ing] that Bevill did not write his affi-
davit pursuant to an official duty:” he “voluntarily submitted the affidavit;”
he alleged that he was not asked to, nor did he, sign the affidavit in his
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capacity as a police officer; and he did not speak to anyone in the police de-
partment about the affidavit before he signed it. Id. The panel majority also
rejected the defendants’ contention that “[b]ecause city policies controlled
Bevill’s right to submit an affidavit . . . he spoke pursuant to an official duty.”
Id. at 277. A line of authority stemming from Garcetti permits government
employers to “exercise . . . employer control over what the employer itself
has commissioned or created.” Id. at 277-78 (citing Garcetti, 547 U.S. at 421-
22). But Bevill’s affidavit “did not owe its existence to” the police depart-
ment, in part because it specifically conflicted with his employer’s policy and
was against his employer’s interest. Id. at 278.
Six months after the Bevill I opinion, our court decided Rogers v. Hall,
46 F.4th 308, 309 (5th Cir. 2022). Rogers states that, if someone is a “public
law enforcement officer,” he “arguably” falls within the “scenario Lane left
open for another day.” Id. at 313.
The plaintiff in the case, John Rogers, then Chief of Investigation at
Mississippi State Penitentiary (Parchman), investigated allegations by a
Parchman inmate that he had been assaulted by a corrections officer on No-
vember 21, 2016. Id. at 310-11. Rogers alleged that, in the process of the in-
vestigation, he left two Corrections Investigation Division (CID) officers in
an interview room with a prison guard who was implicated in the assault. Id.
at 310. He returned when he heard a commotion and found the two CID
officers in a physical altercation with the guard. Id. The CID officers said
they had been assaulted by the guard, who then resisted when they attempted
to arrest him. Id.
Rogers helped handcuff the guard, after which the Parchman Super-
intendent entered the room and said he was leaving with the detained guard.
Id. Rogers said that the guard was a suspect and could not leave; Rogers then
left to call his supervisor. Id. At that point, the Superintendent and one of the
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CID officers began a physical altercation. Id. Subsequently, the Superinten-
dent pursued a criminal assault charge against the CID officer. Id. Rogers
was subpoenaed by the CID officer to testify at a probable cause hearing on
March 13, 2017. Id. at 311. At the hearing, he testified to the chain of events
that led to the final altercation between the CID officer and the Superinten-
dent. Id.
2 On a parallel track, Rogers contacted the FBI to report that he
thought his superiors were attempting a “cover-up” of the assault of the in-
mate, and he sent documents to an FBI agent three days before he testified
in the assault case against the CID officer. Id. In May or June of 2017, his
supervisors contacted him expressing displeasure with his contacts with the
FBI and asking for a “synopsis” of his interactions with them. Id. Rogers
was fired on June 23, 2017. Id. He appealed his termination to the Mississippi
Employee Appeals Board, which found that his termination was a result of
reporting the inmate assault investigation to the FBI and ordered the Missis-
sippi Department of Corrections (MDOC) to reinstate Rogers. Id. But Rog-
ers declined reinstatement and brought a § 1983 suit alleging that his super-
visors violated his First Amendment rights by terminating him for communi-
cating with the FBI and testifying at the probable cause hearing. Id. at 311
n.5.
After defendants filed a summary judgment motion, Rogers conceded
that the testimony was the only basis for a potential First Amendment viola-
tion. Id. The district court then granted the summary judgment motion as to
the testimony, concluding that Rogers failed to show that testifying in court
proceedings was outside his “ordinary job responsibilities,” because it was
“axiomatic” that testifying was part of a law enforcement officer’s duties. Id.
at 312. As a result, he could not claim the protection of Lane, and he failed to
rebut the qualified immunity defense asserted by the MDOC supervisors.
Id.
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Our court affirmed the district court’s judgment, holding that while
Rogers’s case “comes close to Lane,” the uncertainty in the law was fatal for
overcoming qualified immunity. Id. at 313. The panel majority held that Rog-
ers’ testimony “fit squarely” within the question the Supreme Court failed
to address—whether an individual who testifies as part of their “ordinary job
duties” can claim First Amendment protection for such activities—because
it “may have fallen outside” his normal work duties as the altercation be-
tween two colleagues was not part of his “main investigation.” Id. at 313-14.
But because Rogers did not introduce evidence showing his testimony was
“undisputedly outside the scope of his ordinary job responsibilities,” and be-
cause the law was not clearly established as to the open issue from Lane, he
could not overcome the defendants’ qualified immunity defense. Id. at 314.3
The story does not end after Rogers. In 2024, following oral argument in
Hamilton’s appeal, our court revisited Bevill’s case on summary judgment.
The court did not disturb our previous ruling that Bevill “spoke as a citizen,
rather than as an employee” when he wrote his affidavit, but did consider the
previously unaddressed issue of whether he spoke on a matter of public con-
cern. Bevill v. Wheeler, 103 F.4th 363, 375 (5th Cir. 2024) (Bevill II). We found
that he did: though he wrote the affidavit to help his friend, his affidavit “nev-
ertheless addressed ‘a subject undoubtedly of public concern’”—the poten-
tial collaboration between the sheriff, DA, and judge. Id. at 376-77. And we
gave “decisive[]” weight to the fact that his speech was in the form of an
affidavit. Id. at 377. That it was “in the context of a well-publicized judicial
proceeding” supported the district court’s holding that Bevill spoke on a
matter of public concern when he submitted the affidavit. Id.
_____________________
3
Judge Costa dissented from the Rogers panel majority.
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Rogers and the Bevill opinions exist in tension with each other. Rogers
gave sworn testimony upon a subpoena about an event that he witnessed at
work; Bevill volunteered to provide a sworn affidavit in a friend’s criminal
trial based on misconduct he said he had witnessed at work. Both gave their
testimony against the wishes of their superiors. But this court reached oppo-
site outcomes on whether these acts were clearly constitutionally protected:
the Bevill I panel majority relied on the Garcetti formulation of “official du-
ties,” observing that “[a]lthough Lane added ‘ordinarily’ to the formulation
used in Garcetti . . . , we have since noted that, whatever change in the juris-
prudence ‘ordinary’ may augur, we are unable to discern any change in Gar-
cetti’s rule from Lane.” Bevill I, 26 F.4th at 276 n.2 (quoting Gibson v. Kilpat-
rick, 773 F.3d 661, 669 (5th Cir. 2014)) (cleaned up). Based on this premise,
the court simply considered whether Bevill had prepared the affidavit at issue
in service of his employer—it did not consider whether Bevill normally pre-
pared affidavits of any kind or whether police officers normally provide testi-
monial evidence in court. Id. at 276. Rogers, however, adopted the assumption
that giving sworn testimony was within Rogers’s “ordinary job duties” be-
cause he was a law enforcement officer, and pointed out that Rogers failed to
produce record evidence to the contrary. Rogers, 46 F.4th at 314. Bevill I pre-
dates Rogers, and it is also supported by the precedent of this court. See Gib-
son, 773 F.3d at 669; see also Howell v. Town of Ball, 827 F.3d 515, 524 (5th Cir.
2016) (“Howell asserts that it was never part of his normal job duties, secretly
and without departmental authorization, to aid in an FBI investigation of
coworkers and superiors, much less to record surreptitiously coworkers’ con-
versations at the FBI’s request. The defendants offer no evidence to the con-
trary, other than the all-encompassing, judicially established general descrip-
tion of a police officer’s professional responsibilities in the state of Louisiana,
which, as we have stated, cannot be considered dispositive.”).
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V
While the district court relied on Rogers to reach its decision, we would
reach the same outcome regardless of whether the Bevill decisions or Rogers
controlled our analysis of the first prong of Garcetti. We need not resolve the
tension between Rogers and Bevill today. Even if Hamilton had engaged in
speech protected by the first prong of Garcetti, “[a] public employee’s sworn
testimony is not categorically entitled to First Amendment protection simply
because it is speech as a citizen on a matter of public concern.” Lane, 573
U.S. at 242. If a plaintiff clears that bar, “[t]he question becomes whether the
government employer had an adequate justification for treating the employee
differently from any other member of the general public.” Garcetti, 547 U.S.
at 413 (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).
The Court in Lane pointed to factors recognized by Connick as
legitimate reasons the government might have for treating an employee
differently, including “promoting efficiency and integrity in the discharge of
official duties” and “maintaining proper discipline in public service.’” 573
U.S. at 242 (citing Connick v. Myers, 461 U. S. 138, 150-51 (1983)). In Lane,
the Court held that the defendant had not made any such showing,
submitting “no evidence, for example, that Lane’s testimony . . . was false or
erroneous or that Lane unnecessarily disclosed any sensitive, confidential, or
privileged information while testifying.” Id.
In this instance, Hamilton’s own pleadings demonstrate that he is not
entitled to relief under Garcetti. Although there is, as in Lane, no evidence
that Hamilton perjured himself, the Connick factors of “promoting efficiency
and integrity in the discharge of official duties” and “maintaining proper
discipline in public service” favor the City of Wilmer.
Hamilton included in his own complaint Stringfellow’s letter
summarizing the reasons why he was dismissed. As an initial matter, the
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letter raises some reasons for his firing that are not in the ambit of First
Amendment protection—such as not immediately reporting to his
supervisor that Lawrence had been arrested, which he admits to in his
complaint. The letter also speaks to a number of reasons outside of the
content of his testimony—or the fact that he was called to give it—that
animated his firing: he testified about an employee without informing the
City Administrator or the consulting the City Attorney; he drove a city car to
the courthouse; he gave testimony in his uniform; and he testified during
work hours but did not take leave. Even if we understood his failure to inform
his supervisor or seek advice from the City Attorney before testifying as
wrapped up in the First Amendment right of a public employee to testify
under a sworn subpoena,4 the City of Wilmer had “adequate justification” to
treat Hamilton differently. Garcetti, 547 U.S. at 413. Hamilton used the
instrumentalities and uniform of the City’s Fire Department to testify during
the workday—and thus his positive testimony about Lawrence could have
been seen as an endorsement on behalf of the Fire Department rather than
merely his personal opinion.
Lane is animated by a concern that whistleblowers will be fired from
their jobs for reporting misconduct by public officers, and as such its rule is
intended to ensure that officials who witness public corruption are not “torn
between the obligation to testify truthfully and the desire to avoid retaliation
and keep their jobs.” 573 U.S. at 241. The concern that the Fire Department
or the City has for maintaining public trust if its officers are seen as testifying
in support of employees who surreptitiously filmed their colleagues in the
_____________________
4
For example, the Bevill I panel majority found that the plaintiff’s failure to tell his
supervisors that he was filing an affidavit on a friend’s behalf, in violation of city policy,
demonstrated he “could not have acted for the benefit and subject to the control of his
employer” because in doing so “he engaged in speech against his employer’s interest.”
Bevill I, 26 F.4th at 278.
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bathroom does not trigger the same kind of constitutional scrutiny. Stringfel-
low’s stated reasons for firing Hamilton fall squarely within the Connick fac-
tors describing legitimate reasons for treating an employee differently. Ham-
ilton’s claims cannot overcome the second prong of Garcetti. Because Ham-
ilton has pleaded no underlying constitutional violation, the district court’s
dismissal of the claims against Stringfellow and the City of Wilmer was
proper.
VI
Finally, Hamilton appeals the district court’s denial of his request for
leave to amend his complaint to plead that he “had never previously provided
sworn testimony in his entire career.”
After a party’s initial 21-day period to amend its complaint following
service has passed, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave. The court should freely give
leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Courts generally
review a district court’s denial of leave to amend for abuse of discretion.
Flores v. Stephens, 794 F.3d 494, 504 (5th Cir. 2015) (internal citation
omitted). But where “the district court’s denial of leave to amend was based
solely on futility, we apply a de novo standard of review identical, in practice,
to the standard used for reviewing a dismissal under Rule 12(b)(6).” City of
Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010) (citing
Wilson v. Bruks-Klockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010)).
In this instance, Hamilton did not attach an amended complaint to his
motion for leave to amend, as is traditionally required, but he indicated in his
motion that he “stands ready to replead . . . as to additional facts . . . that he
had never previously testified under oath in Court in his entire career as a
firefighter and Fire Chief.” The district court denied this motion, holding
that “taking the Complaint’s well-pleaded facts as true . . . such additional
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pleadings regarding Hamilton’s purported lack of prior testimony under oath
would, nevertheless, result in the same outcome of dismissal.”
As the district court noted, Hamilton himself alleged that “when a
chief of a fire department is subpoenaed as ‘Chief’ by the State of Texas’
subpoena, then that means he is understood to be testifying as the Chief of
the Fire Department, and not as a civilian.” In his own pleading, then, Ham-
ilton claimed that he testified pursuant to his official duties. And even if Ham-
ilton re-pleaded that he spoke “as a civilian” and that testifying was not part
of his ordinary job duties, he would not prevail on his First Amendment claim
under the second prong of the Garcetti test. The district court did not err in
finding an amendment would be futile.
* * *
Accordingly, we AFFIRM the judgment of the district court.
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Andrew S. Oldham, Circuit Judge, concurring in part and concurring in
the judgment:
I agree with the panel’s judgment, but I can only join part of its
opinion.
*
Let’s start with three points of agreement.
First, I agree we should focus on the First Amendment rather than
qualified immunity. As I recently explained, I am unsure “whether and to
what extent qualified immunity should apply” outside the context of “split-
second” decision-making. Villarreal v. City of Laredo, 134 F.4th 273, 277 (5th
Cir. 2025) (Oldham, J., concurring). This case did not involve split-second
decision-making: Stringfellow had all the time in the world “to consult
counsel” and “to investigate all the facts” before deciding whether to fire
Hamilton. Ibid. So I am unsure whether and to what extent qualified
immunity should apply.
Second, I agree that Hamilton failed to state a First Amendment claim.
If a government employer “ha[s] an adequate justification for treating [an]
employee differently from any other member of the general public,” then the
employee has no First Amendment claim. Garcetti v. Ceballos, 547 U.S. 410,
418 (2006). Here, the government employer “had an adequate justification
for treating” Hamilton “differently from any other member of the general
public.” Ibid. So Hamilton has no First Amendment claim.
Third, because that resolves the case, I agree that the district court’s
judgment should be affirmed.
*
But there is one part of the panel’s opinion I cannot join. I cannot join
the panel’s dicta about Bevill v. Fletcher, 26 F.4th 270 (5th Cir. 2022), and
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Rogers v. Hall, 46 F.4th 308 (5th Cir. 2022). The panel spends eight pages
meandering through our precedent interpreting Lane v. Franks, 573 U.S. 228
(2014). Then, at the last minute, the panel concludes it does not matter. See
ante, at 16 (“[W]e would reach the same outcome regardless of whether the
Bevill decisions or Rogers controlled our analysis of the first prong of
Garcetti.”). Respectfully, I would omit this dicta.
21