McMurry v. Weaver

Case: 24-50571 Document: 98-1 Page: 1 Date Filed: 06/27/2025

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

June 27, 2025

No. 24-50571 Lyle W. Cayce

____________ Clerk

Megan Marie McMurry, Individually and as next friend of J.M.;

Adam Seth McMurry, Individually and as next friend of J.M.;

Alesia Jade McMurry,

Plaintiffs—Appellees,

versus

Alexandra Weaver,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:20-CV-242

______________________________

Before King, Ho, and Ramirez, Circuit Judges.

King, Circuit Judge:

Officer Alexandra Weaver took a fourteen-year-old child from her

home during a child welfare investigation. The child and her parents sued,

claiming Weaver searched the apartment and seized the child in violation of

their Fourth and Fourteenth Amendment rights. Weaver now brings an

interlocutory appeal of the district court’s order denying her motion for

summary judgment on the basis of qualified immunity. We AFFIRM.

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I.

The following are the facts the district court found sufficiently

supported by the summary judgment record.

In October 2018, Plaintiff-Appellee Megan McMurry resided in a

gated apartment complex in Midland, Texas with her daughter, Plaintiff-

Appellee J.M., (then age fourteen) and son C.M. (then age twelve). J.M. took

classes virtually from home, C.M. attended Abell Junior High School (Abell),

part of the Midland Independent School District (MISD), and Ms. McMurry

taught at Abell. Ms. McMurry’s husband and the children’s father, Plaintiff-

Appellee Seth Adam McMurry, was deployed to the Middle East with the

National Guard. To explore a job opportunity that would allow the family to

move closer to Mr. McMurry, Ms. McMurry planned a trip to Kuwait from

Thursday, October 25 to Tuesday, October 30.

Before leaving, Ms. McMurry arranged for a neighbor, Vanessa

Vallejos, to check in on J.M. and C.M., and for coworkers to take C.M. to

school. J.M. often babysat Ms. Vallejos’s son, and Ms. McMurry had

arranged for Ms. Vallejos to watch J.M. and C.M. while she was out of town

in the past.

On the morning of October 26, 2018, Defendant-Appellant Alexandra

Weaver, a police officer with MISD, received a text from a counselor who

was supposed to take C.M. to school that day. Weaver already knew that Ms.

McMurry was out of the country because Ms. McMurry had emailed all Abell

campus employees including Weaver a few days earlier. Upon receiving the

text, she became concerned that J.M. and C.M. were without adult

supervision, and informed her supervisor, Officer Kevin Brunner, of her

concerns.

Weaver and Brunner then proceeded to meet with three of Ms.

McMurry’s coworkers and learned that (1) Ms. McMurry was traveling for a

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job interview; (2) C.M. was at school; (3) a neighbor, whose son J.M. often

babysat, was checking on the children daily; and (4) J.M. was homeschooled.

Weaver and Brunner then went to the McMurrys’ apartment to conduct a

welfare check on J.M.

Weaver and Brunner arrived at the apartment at around 10 a.m. that

morning. J.M. answered the door and confirmed that her mother was

overseas, and a neighbor was checking on her and C.M. J.M. also told the

officers that the neighbor had last checked on her that morning and offered

to share the neighbor’s phone number for the officers to call. Brunner then

instructed J.M. to “go get some warm clothes on . . . then come visit with me

outside.” Brunner asked if Weaver could accompany her into the apartment

while she did so. J.M. responded “Mm-hmm,” then burst into tears and said

“I’m scared.”

Inside the apartment, Weaver told J.M. not to contact her mother.

While J.M. changed clothes in her room, Weaver “looked around the living

room and kitchen, peeking into the pantry and opening the refrigerator and

freezer doors.” The pantry was “stocked with food.” “Weaver’s body

camera footage reveals no signs of a dangerous or abusive environment or any

other exigent circumstances.” Nor does the footage reveal anything “that

sounds or looks like” J.M. giving Weaver consent to search the apartment.

The interaction lasted about five minutes.

Weaver and Brunner then questioned J.M. in the apartment

complex’s conference room. “J.M. asked to call her father but was not

allowed to do so.” After about fifteen minutes, Weaver and Brunner drove

to Abell, with J.M. in the backseat of their police car. Brunner instructed J.M.

not to respond to her father’s attempts to contact her and “recommended”

she not contact Ms. Vallejos. Brunner also called CPS to tell them he was

taking the children to Abell around this time.

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At the school, Brunner placed J.M. in a private office. When Ms.

Vallejos and her husband arrived, they told Brunner they were checking on

C.M. and J.M. and had last seen the children the night before. Ms. Vallejos

was then permitted to see J.M. and the two FaceTimed Mr. McMurry. By

that afternoon, CPS had concluded that the situation did not meet the criteria

for abuse and neglect and sent the children home with Ms. Vallejos and her

husband.

Afterward, Brunner continued criminally investigating Ms.

McMurry, and ultimately filed two probable cause affidavits to arrest and

charge Ms. McMurry with abandoning or endangering her children. In

January 2020, a jury acquitted Ms. McMurry of all charges.

After the acquittal, the McMurrys and J.M. sued Weaver, asserting

constitutional claims under § 1983 and state law claims arising from these

events. Weaver moved for summary judgment, asserting qualified immunity.

The district court concluded Weaver was not entitled to qualified immunity

and denied summary judgment on three claims: (1) the McMurrys’ Fourth

Amendment claim for unreasonable search of the apartment; (2) J.M.’s

Fourth Amendment claim for unreasonable seizure, and (3) the McMurrys’

Fourteenth Amendment claim for procedural due process. Weaver timely

appealed.

II.

“A district court’s denial of a motion for summary judgment on the

basis of qualified immunity is immediately appealable under the collateral

order doctrine, to the extent that the order turns on a matter of law.” Trent

v. Wade, 776 F.3d 368, 376 (5th Cir. 2015). But our jurisdiction is limited.

Kinney v. Weaver, 367 F.3d 337, 346–47 (5th Cir.2004) (en banc). “[I]n an

interlocutory appeal we cannot challenge the district court’s assessments

regarding the sufficiency of the evidence—that is, the question whether there

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is enough evidence in the record for a jury to conclude that certain facts are

true.” Id. at 347. Instead, “we have jurisdiction only to decide whether the

district court erred in concluding as a matter of law that officials are not

entitled to qualified immunity on a given set of facts.” Id. This limitation on

our jurisdiction is often described as allowing us to “review the materiality of

any factual disputes, but not their genuineness.” Id. (quoting Wagner v. Bay

City, 227 F.3d 316, 320 (5th Cir. 2000)).

Summary judgment is required when “the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Given our limited

jurisdiction, we do not apply the same Rule 56 standard de novo. Kinney, 367

F.3d at 348. Instead, we “consider only whether the district court erred in

assessing the legal significance of the conduct that the district court deemed

sufficiently supported for purposes of summary judgment.” Id. “Our review

of the legal significance of the facts is de novo.” Cantrell v. City of Murphy,

666 F.3d 911, 922 (5th Cir. 2012).

III.

On appeal, Weaver contends the district court erred in denying

qualified immunity at summary judgment on the unreasonable search,

unreasonable seizure, and procedural due process claims. 1 “The doctrine of

qualified immunity protects public officials from liability for civil damages

_____________________

1

Plaintiffs-Appellees assert that we lack jurisdiction over this appeal because

Weaver’s arguments challenge the genuineness of factual disputes. “We do have

jurisdiction, but only to the extent that the appeal concerns the purely legal question

whether the defendants are entitled to qualified immunity on the facts that the district court

found sufficiently supported in the summary judgment record.” Kinney, 367 F.3d at 347.

We lack jurisdiction, and therefore do not address, Weaver’s arguments to the extent they

challenge the district court’s assessment of the sufficiency of the evidence (e.g., whether

Weaver or Brunner contacted CPS).

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‘insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’”

Jennings v. Patton, 644 F.3d 297, 300 (5th Cir. 2011) (quoting Pearson v.

Callahan, 555 U.S. 223, 231 (2009)). “This analysis involves two steps: (1)

we must determine whether the plaintiffs suffered a violation of their rights

as a matter of law, and then (2) we must decide whether the right at issue was

clearly established at the time of the alleged misconduct.” Banks v. Herbrich,

90 F.4th 407, 412 (5th Cir. 2024). Courts “exercise their sound discretion in

deciding which of the two prongs of the qualified immunity analysis should

be addressed first.” Guerra v. Castillo, 82 F.4th 278, 285 (5th Cir. 2023)

(quoting Pearson, 555 U.S. at 236). Where, as here, a defendant asserts the

defense of qualified immunity, “the burden shifts to the plaintiff to show that

the defense is not available.” Trent, 776 F.3d at 376.

A.

Weaver first challenges the district court’s denial of qualified

immunity on the Fourth Amendment unreasonable search claim. “It is a

‘basic principle of Fourth Amendment law that searches and seizures inside

a home without a warrant are presumptively unreasonable.’” Brigham City v.

Stuart, 547 U.S. 398, 403 (2006) (quoting Groh v. Ramirez, 540 U.S. 551, 559

(2004)). “[B]ecause the ultimate touchstone of the Fourth Amendment is

‘reasonableness,’ the warrant requirement is subject to certain exceptions.”

Id. The well-recognized exception for exigent circumstances “applies when

the exigencies of the situation make the needs of law enforcement so

compelling that a warrantless search is objectively reasonable under the

Fourth Amendment.” Missouri v. McNeely, 569 U.S. 141, 148–149 (2013)

(quoting Kentucky v. King, 563 U.S. 452, 460 (2011)). In the context of child

welfare investigations, this court has explained that “the typical Fourth

Amendment standards of a court order, consent, or exigent circumstances

apply.” Gates v. Texas Dept. of Protective and Reg. Services, 537 F.3d 404, 424

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(5th Cir. 2008). Exigent circumstances exist when a child faces “immediate

danger.” Id. at 423.

Here, the parties do not dispute that Weaver searched the refrigerator

without a court order or consent. 2 To comply with the Fourth Amendment,

the search must be justified by exigent circumstances. Gates, 537 F.3d at 422–

24. But Weaver does not argue that there were exigent circumstances, and

the district court found that there were none. Instead, Weaver relies on a

“special needs” or “community caretaking” exception to the warrant

requirement. Neither applies here.

A warrant may not be required where there is a “special need” that is

“divorced from the State’s general interest in law enforcement,” such as a

principal’s search of a student’s purse for drugs in school. Roe v. Texas Dept.

of Protective and Reg. Services, 299 F.3d 395, 404 (5th Cir. 2002) (quoting

Ferguson v. City of Charleston, 532 U.S. 67, 79 (2001)). Similarly, different

standards may apply when the police perform “community caretaking

functions” that are “totally divorced from the detection, investigation, or

acquisition of evidence relating to the violation of a criminal statute.” Bakutis

v. Dean, 129 F.4th 299, 303 (5th Cir. 2025) (quoting United States v. York,

895 F.2d 1026, 1030 (5th Cir. 1990)). Child welfare investigations are not

sufficiently divorced from general law enforcement, or the violation of a

criminal statute, to support the application of either exception. See Gates, 537

F.3d at 424 (holding that because a home visit “to investigate possible child

abuse was not separate from general law enforcement, the special needs

doctrine cannot be used to justify the warrantless entry”); Roe, 299 F.3d at

406–07 (explaining that “the goal of protecting a child’s welfare” is not

_____________________

2

The district court found that J.M. consented to Weaver entering the apartment

and dismissed the unreasonable search claim to the extent it relied on Weaver’s entry. That

ruling is not challenged on appeal.

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easily disentangled “from general law enforcement purposes”). That is

particularly evident here, where criminal charges were ultimately brought

against Ms. McMurry.

To the extent Weaver intended to argue the search was justified by

exigent circumstances, the summary judgment evidence does not establish

that J.M. faced any “immediate danger.” Gates, 537 F.3d at 422–23 (finding

no exigent circumstances to justify entry into a home where the stated

purpose was to “interview the children” rather than “guard them against

some sort of immediate danger” and the alleged abuser was not home).

Moreover, it is difficult to see how viewing a refrigerator’s contents could

guard against any immediate danger, especially given Weaver could see food

in the pantry. See Mincey v. Arizona, 437 U.S. 385, 393 (1978) (explaining “a

warrantless search must be strictly circumscribed by the exigencies which

justify its initiation” (internal quotations omitted)).

Because a jury could find that the warrantless search here was not

justified by exigent circumstances, and no other exception justifies the

search, the McMurrys have asserted a constitutional violation of their Fourth

Amendment right to be free from unreasonable searches. To survive

summary judgment, the McMurrys must also show that the constitutional

violation was clearly established as of October 2018.

By 2018, Gates had held that government officials conducting home

visits “to investigate possible child abuse” must satisfy “the typical Fourth

Amendment standards of a court order, consent, or exigent circumstances.”

Gates, 537 F.3d at 424. Gates had defined exigent circumstances in this

context as “immediate danger” to the children. Id. at 422–23. And Wernecke

applied Gates’ standard to the child endangerment, rather than child abuse,

context. Wernecke v. Garcia, 591 F.3d 386, 397 (5th Cir. 2009). This is

sufficient to put Weaver on notice that she would be committing a

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constitutional violation if she opened the refrigerator without a court order,

consent, or a reasonable belief of immediate danger to the children. See

Delaughter v. Woodall, 909 F.3d 130, 140 (5th Cir. 2018) (explaining the

“central concern is whether the official has fair warning”).

Contrary to Weaver’s arguments, the community caretaking

exception does not undermine the clarity of this established law. By holding

that the typical Fourth Amendment standards apply in this context, Gates

foreclosed the possibility of a lower standard justified by community

caretaking. 537 F.3d at 424. Moreover, the rationale behind Gates’ explicit

rejection of the special needs exception applies with equal force to

community caretaking: The home entry “was not divorced from the state’s

general interest in law enforcement.” Id. Based on the facts supported by the

summary judgment record, the McMurrys have established that Weaver’s

search was a constitutional violation of clearly established law that defeats

qualified immunity.

B.

Weaver next challenges the district court’s denial of qualified

immunity on J.M.’s Fourth Amendment unreasonable seizure claim. “[T]he

Fourth Amendment . . . applies to the seizure of children from their homes.”

Gates, 537 F.3d at 427. The same standard governs: “[T]he government may

not seize a child from his or her parents absent a court order, parental

consent, or exigent circumstances.” Id. at 429. “Exigent circumstances in

this context means that, based on the totality of the circumstances, there is

reasonable cause to believe that the child is in imminent danger . . . if [s]he

remains in h[er] home.” Gates, 537 F.3d at 429.

J.M. was seized from her home without a court order or parental

consent. See McMurry v. Brunner, No. 21-50888, 2022 WL 17493708, at *2

(5th Cir. Dec. 7, 2022) (explaining “a reasonable fourteen-year-old would not

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have believed she was free to leave”). Like the search, the seizure requires

exigent circumstances to comply with the Fourth Amendment. Again,

Weaver does not argue there were exigent circumstances, and a jury could

find that Weaver did not have reasonable cause to believe that fourteen-year-

old J.M. faced any “immediate danger” at home alone in a gated apartment

complex in the middle of the day. 3

Furthermore, at the time of the alleged violation, Gates and Wernecke

“had clearly established that an officer could not reasonably remove a child

from their home absent a court order, parental consent, or exigent

circumstances.” Brunner, 2022 WL 17493708, at *2 (citing Gates, 537 F.3d

at 427–29; Wernecke, 591 F.3d at 398). Weaver’s arguments to the contrary

are unavailing. Her reliance on the community caretaking exception fares no

better here. And it is not reasonable to believe that J.M. transformed her

family’s apartment into the constitutional equivalent of a public school

merely by attending virtual classes from home. See Payton v. New York, 445

U.S. 573, 590 (1980) (“[T]he Fourth Amendment has drawn a firm line at

the entrance to the house.”). Because the summary judgment evidence

supports a violation of J.M.’s clearly established Fourth Amendment right to

be free from unreasonable seizure, Weaver is not entitled to qualified

immunity.

C.

Finally, Weaver challenges the district court’s denial of qualified

immunity on the McMurrys’ procedural due process claim. The Due Process

Clause of the Fourteenth Amendment “does not just provide parents with

_____________________

3

Weaver does argue that she was merely following Brunner’s lead, but the district

court found the evidence sufficient to show the officers acted collaboratively. We lack

jurisdiction to review that finding. Kinney, 367 F.3d at 346–47.

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substantive protection from interference with their liberty interest in the

care, custody, and management of their children.” Romero v. Brown, 937 F.3d

514, 521 (5th Cir. 2019). “It also requires that the state follow certain

procedures before encroaching on those parental rights.” Id. A parent’s

procedural due process claim premised on the seizure of her child is governed

by the same standard that governs the child’s underlying Fourth Amendment

claim for unreasonable seizure. Id. at 521. “The rule is this: A child cannot be

removed ‘without a court order or exigent circumstances.’” Id. (quoting

Gates, 537 F.3d at 434).

Here, the McMurrys’ Fourteenth Amendment claim for procedural

due process is premised on J.M.’s Fourth Amendment claim for

unreasonable seizure. Accordingly, the McMurrys have established a

constitutional violation sufficient to survive summary judgment for the same

reasons: J.M. was seized without a court order or exigent circumstances. And

that violation was equally clearly established by Gates and Wernecke. Romero,

937 F.3d at 522–23 (denying qualified immunity on procedural due process

claim in part because Gates and Wernecke clearly established the violation);

Gates, 537 F.3d at 435; Wernecke, 591 F.3d at 391 n.7. The district court did

not err in denying qualified immunity on the McMurrys’ procedural due

process claim.

IV.

Finding no reversible error in the district court’s proceedings, we

AFFIRM.

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James C. Ho, Circuit Judge, concurring:

It seems obvious that parents don’t forfeit their constitutional rights

just because they choose to educate their children at home, rather than at a

public school. Yet that’s exactly what defense counsel contends here.

Counsel theorizes that parents who choose to homeschool convert

their private homes into public schools for Fourth Amendment purposes. As

a result, police officers can take children away from their home, and prevent

their parents from communicating with them, if they’re homeschooled.

This is obviously wrong as a matter of law—and offensive to parental

rights. Yet counsel claims that, because “there’s no case law” specifically

rejecting this defense theory, families who homeschool can’t claim any

“clearly established” rights, so qualified immunity must be granted.

It’s an argument that warrants swift repudiation. And that’s precisely

what our court does today. See ante, at 11. I concur but write separately

because I’m troubled that counsel felt comfortable attempting the argument.

I’m especially troubled because it’s not counsel’s fault—it’s our own

fault. It’s our own decisions that invite arguments like this—in conflict with

Supreme Court precedent, separate opinions by Justices Thomas and

Gorsuch, and the precedents of every other court of appeals in the country.

I.

During oral argument, defense counsel put forth a remarkable legal

theory that should alarm anyone who believes in the privacy of the home—

as well as the basic right of every parent to raise their own children:

There’s . . . another area where the law isn’t clearly

established. And that is: Was she taken from an apartment or

was she taken from her school?

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The reason I say that is because she was attending virtual

school at the time . . . she was in class, so to speak, doing her

work on her computer.

There’s no case law whatsoever that establishes that an

apartment stays an apartment when you’re going to school.

We have a whole new area of law that’s going to emerge

because we have homeschooling. . . . We don’t have any cases

whatsoever. . . .

There was no clearly established law to violate. . . . Because it’s

not clear that a home is a home . . . when it’s being used at the

time for virtual school.

Oral Arg. at 9:10–10:27.

This is obviously wrong as a matter of rudimentary constitutional

principle. The Fourth Amendment expressly assures every one of us—

including families who homeschool—that “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” U.S. Const. amend. IV. It

seems obvious that “physical entry of the home is the chief evil against which

the wording of the Fourth Amendment is directed.” United States v. United

States Dist. Ct. for E. Dist. of Mich., 407 U.S. 297, 313 (1972). See also Payton

v. New York, 445 U.S. 573, 585 (1980) (same).

To justify intrusions on this bedrock liberty based on the educational

choices parents make for their children does not evade the constitutional

objection—it exacerbates it. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 213–

14 (1972) (“the values of parental direction of the religious upbringing and

education of their children in their early and formative years have a high place

in our society,” and implicates “fundamental rights and interests, such as

those specifically protected by the Free Exercise Clause of the First

Amendment, and the traditional interest of parents with respect to the

religious upbringing of their children”); id. at 232 (“The history and culture

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of Western civilization reflect a strong tradition of parental concern for the

nurture and upbringing of their children,” and the “primary role of the

parents in the upbringing of their children is now established beyond debate

as an enduring American tradition.”); Troxel v. Granville, 530 U.S. 57, 65

(2000) (plurality op. of O’Connor, J.) (“the interest of parents in the care,

custody, and control of their children” is “perhaps the oldest of the

fundamental liberty interests recognized”); Dobbs v. Jackson Women’s Health

Org., 597 U.S. 215, 256 (2022) (noting “the right to make decisions about the

education of one’s children”) (citing Pierce v. Soc’y of Sisters, 268 U.S. 510

(1925), and Meyer v. Nebraska, 262 U.S. 390 (1923)); Michael E. Lechliter,

The Free Exercise of Religion and Public Schools: The Implications of Hybrid

Rights on the Religious Upbringing of Children, 103 Mich. L. Rev. 2209,

2215 (2005) (“parents have a fundamental right under the U.S. Constitution

to direct the religious upbringing of their children”); Darryn Cathryn

Beckstrom, Balancing Civic Values and Parents’ Free Exercise Rights, 45

Gonz. L. Rev. 149, 165 (2010) (“[P]arents have rights under the First

Amendment’s Free Exercise Clause . . . to protect their ability to control the

upbringing of their children.”).

II.

So I’m grateful that the majority denies qualified immunity—and does

so by summarily dismissing counsel’s defense theory. After all, it’s precisely

because counsel’s theory is so obviously wrong that the McMurrys shouldn’t

have to identify specific governing precedent to avoid qualified immunity.

The Supreme Court has repeatedly denied qualified immunity where

it found the constitutional violation so “obvious” that it didn’t require the

plaintiff to identify factually indistinguishable case law. See, e.g., Hope v.

Pelzer, 536 U.S. 730, 741 (2002) (“general statements of the law . . . may

apply with obvious clarity to the specific conduct in question, even though

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the very action in question has not previously been held unlawful”) (cleaned

up) (quoting United States v. Lanier, 520 U.S. 259, 270–71 (1997), and

Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also Taylor v. Riojas, 592

U.S. 7, 8–9 & n.2 (2020) (summarily reversing our court’s grant of qualified

immunity due to the “obviousness” of the constitutional violation) (citing

Hope and Lanier).

The “obviousness” principle recognized in cases like Hope and Taylor

should be intuitive to all who cherish our constitutional liberties. Then-Judge

Gorsuch captured it well: “[S]ome things are so obviously unlawful that they

don’t require detailed explanation.” Browder v. City of Albuquerque, 787 F.3d

1076, 1082 (10th Cir. 2015). “[S]ometimes the most obviously unlawful

things happen so rarely that a case on point is itself an unusual thing.” Id.

“[I]t would be remarkable if the most obviously unconstitutional conduct

should be the most immune from liability only because it is so flagrantly

unlawful that few dare its attempt.” Id. at 1082–83.

And that’s precisely the point. It seems absurd to suggest that the

most egregious constitutional violations imaginable are somehow immune

from liability precisely because they’re so egregious. It would make a

mockery of our rights to grant qualified immunity just because no one in

government has yet to be abusive enough to commit that particular

violation—and then stubborn enough to litigate it, not only before a district

court, but also in the court of appeals (or the Supreme Court).

III.

But although it should be easy to dismiss counsel’s plainly erroneous

defense, it’s profoundly disquieting that the defense finds so much support

in our court’s precedents. An enduring en banc majority has repeatedly held

that Hope and Taylor apply only to the Eighth Amendment—and not, for

example, to obvious violations of the First Amendment.

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In Villarreal v. City of Laredo, 94 F.4th 374 (5th Cir. 2024), the en banc

majority admitted that Hope and Taylor denied qualified immunity based on

“obvious” and “particularly egregious” constitutional violations—and did

so without requiring a “fact-specific[]” presentation of case law. Id. at 395.

But the majority waved away those decisions on the ground that

they’re “Eighth Amendment cases”—and that they establish only a

“narrow[] obviousness exception” that should not apply to obvious

violations of the First Amendment. Id.

Why the en banc majority chose to disfavor the First Amendment in

contrast to the Eighth Amendment—or law-abiding citizens in favor of

incarcerated criminals—it did not explain. It simply claimed support in our

earlier en banc decision in Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011).

Id. Contra Morgan, 659 F.3d at 412, 414 n.30 (Elrod, J., dissenting in part)

(concluding that Hope applies to obvious First Amendment violations).

Fortunately, the Supreme Court subsequently vacated our en banc

decision in Villarreal. See Villarreal v. Alaniz, 145 S. Ct. 368 (2024).

But our en banc majority has now responded by reinstating its

previous statements on Hope and Taylor. See Villarreal v. City of Laredo, 134

F.4th 273, 276 (5th Cir. 2025) (“[o]ur previous en banc majority opinion is

superseded only to th[e] extent” necessary to respond to the Supreme

Court’s vacatur regarding the substantive requirements of a First

Amendment retaliation claim). So I must confront Morgan and Villarreal.

A.

Our decisions in Morgan and Villarreal have been widely disparaged

as troubling rulings that badly undermine First Amendment rights, and thus

warrant swift reversal by the Supreme Court—consistent with the Court’s

summary reversal of our circuit in Taylor.

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Morgan has been sharply criticized by religious liberty experts as a

terrible “mistake” that makes it “so difficult to establish fair warning for

unconstitutional actions that qualified immunity will cease to be

‘qualified.’” 4

Villarreal further compounds the error we made in Morgan. A broad

coalition of leading civil rights and religious liberty organizations—including

but not limited to Alliance Defending Freedom, Constitutional

Accountability Center, First Liberty Institute, and Project for Privacy and

Surveillance Accountability—have called our en banc decision in Villarreal

“insidious” and “dangerous.” See, e.g., Brief of First Liberty Institute as

Amicus Curiae in Support of Petitioner, Villarreal v. Alaniz, No. 23-1155

(U.S.), 2024 WL 2058693, at *10–11 (“The approach taken by the Fifth

Circuit towards qualified immunity is exactly the kind of approach this Court

castigated in Hope and its progeny” and “has an insidious quality.”); Brief of

Young America’s Foundation and Manhattan Institute as Amici Curiae in

Support of Petitioner, Villarreal v. Alaniz, No. 23-1155 (U.S.), 2024 WL

2786483, at *12 (“Left undisturbed, the Fifth Circuit’s ruling provides

dangerous license for government actors to flagrantly violate the

Constitution without recourse, even against the most established rights,

simply because they invoke a novel factual situation never before specifically

addressed by the courts.”); Brief of Project for Privacy and Surveillance

Accountability as Amicus Curiae in Support of Petitioner, Villarreal v.

Alaniz, No. 23-1155 (U.S.), 2024 WL 2786482, at *1–2 (en banc decision

“will have serious adverse consequences throughout the Fifth Circuit and in

_____________________

4

See Hiram Sasser, Fifth Circuit Gets It Right in Arnold Decision, Federalist

Soc’y (Dec. 20, 2021), https://fedsoc.org/commentary/fedsoc-blog/fifth-circuit-gets-it-

right-in-arnold-decision; Ilya Shapiro, Morgan v. Swanson, Cato Institute (Jan. 26,

2012), https://www.cato.org/legal-briefs/morgan-v-swanson-0.

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any other jurisdictions that follow that Circuit’s analysis”); Brief for Amicus

Curiae Americans for Prosperity Foundation in Support of Petitioner,

Villarreal v. Alaniz, No. 23-1155 (U.S.), 2024 WL 2058690; Brief of Amicus

Curiae Center for American Liberty in Support of the Petitioner, Villarreal v.

Alaniz, No. 23-1155 (U.S.), 2024 WL 2786477; Brief of the Institute for

Justice as Amicus Curiae Supporting Petitioner, Villarreal v. Alaniz, No. 23-

1155 (U.S.), 2024 WL 2786491; Brief of Constitutional Accountability

Center as Amicus Curiae in Support of Petitioner, Villarreal v. Alaniz, No.

23-1155 (U.S.), 2024 WL 2786494.

B.

This chorus of criticism of Morgan and Villarreal is sadly warranted.

“Nothing in § 1983 suggests that courts should favor the Eighth

Amendment rights of convicted criminals over the First Amendment rights

of law-abiding citizens.” Villarreal, 94 F.4th at 413 (Ho, J., dissenting). Yet

that’s precisely what Morgan and Villarreal require. They make the qualified

immunity analysis in Hope and Taylor available to incarcerated prisoners—

and no one else. They apply those principles to the Eighth Amendment, but

for some unexplained reason, not the First. In sum, they “treat the First

Amendment as a second-class right.” Id.

Not surprisingly, that plainly misreads Supreme Court precedent.

Nothing in Hope and Taylor indicate that its qualified immunity analysis turns

on which provision of the Constitution is at issue. See also, e.g., id. at 414

(discussing Sause v. Bauer, 585 U.S. 957 (2018)). Nor does the wisdom

expressed by then-Judge Gorsuch in Browder—a case that does not involve

the Eighth Amendment at all. 787 F.3d 1076.

So it’s not surprising that every other circuit in America rejects our

court’s counterintuitive vision of qualified immunity. Every other federal

court of appeals across the country has held that “the standards articulated

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in Hope apply specifically in the First Amendment” or in other constitutional

contexts. Villarreal, 94 F.4th at 413 (Ho, J., dissenting). See id. at 413–14

(collecting First Amendment cases from the First, Second, Third, Fourth,

Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits, and non-First

Amendment cases from the Eighth and D.C. Circuits). See also Morgan, 659

F.3d at 412, 414 n.30 (Elrod, J., dissenting in part)).

C.

There’s another reason why Morgan and Villarreal should be rejected,

as noted by Justice Thomas in Hoggard v. Rhodes, 141 S. Ct. 2421 (2021).

It’s one thing to grant qualified immunity when it comes to police

officers who are forced to make split-second judgment calls in life-and-death

situations. It’s quite another thing to immunize public officials who make a

deliberate and calculated decision to violate one’s constitutional rights. As

Justice Thomas put it, “why should [public officials] who have time to make

calculated choices about enacting or enforcing unconstitutional policies,

receive the same protection as a police officer who makes a split-second

decision to use force in a dangerous setting?” Id. at 2422 (Thomas, J.,

respecting denial of certiorari).

I’ve long agreed with that vision of qualified immunity, beginning with

my partial dissent in Horvath v. City of Leander, 946 F.3d 787, 801–3 (5th Cir.

2020) (distinguishing between “police officers who put their lives on the

line” and public officials who make a considered decision to infringe on

religious liberties). “When public officials are forced to make split-second,

life-and-death decisions in a good-faith effort to save innocent lives, they

deserve some measure of deference.” Wearry v. Foster, 52 F.4th 258, 259

(5th Cir. 2022) (Ho, J., concurring in denial of rehearing en banc). But

“when public officials make the deliberate and considered decision to

trample on a citizen’s constitutional rights, they deserve to be held

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accountable.” Id. See also, e.g., Villarreal v. City of Laredo, 17 F.4th 532, 540–

41 (5th Cir. 2021) (“There is a big difference between split-second decisions

by police officers and premeditated plans to arrest a person for her

journalism.”) (quotations omitted), superseded by 44 F.4th 363, 371 (5th Cir.

2022) (same), vacated on reh’g en banc, 52 F.4th 265 (5th Cir. 2022); Oliver v.

Arnold, 19 F.4th 843, 852 (5th Cir. 2021) (Ho, J., concurring in denial of

rehearing en banc) (“[I]magine we denied qualified immunity to a police

officer for making a split-second, life-or-death decision to protect innocent

citizens against violent criminals—but granted qualified immunity to a public

school teacher who deliberately punished a student for exercising her

freedom of conscience on one of the most sensitive issues dividing our

Nation. To my mind, that would turn the law upside down.”); Gonzalez v.

Trevino, 60 F.4th 906, 912 (5th Cir. 2023) (Ho, J., dissenting from denial of

rehearing en banc) (“We’re . . . getting qualified immunity backwards” if

“[o]fficers who deliberately target citizens who hold disfavored political

views face no accountability—but officers who make split-second, life-and-

death decisions to stop violent criminals must put their careers on the line for

their heroism.”).

So I’m grateful that six members of our court embraced these

principles in three different en banc dissents in Villarreal. See 94 F.4th at 399

(Graves, J., dissenting); id. at 406–7 (Willett, J., dissenting); id. at 410 (Ho,

J., dissenting). And I’m regretful that the majority rejected these views, and

instead granted qualified immunity, both before and after the Supreme Court

vacated our first en banc decision in Villarreal.

IV.

But just because counsel’s argument finds support in Morgan and

Villarreal doesn’t mean I have to go along with it.

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As a member of this panel, I’m of course duty bound to follow en banc

precedent—whether I agree with it or not. But I’m not obliged to extend it.

See, e.g., Neese v. Becerra, 127 F.4th 601, 603 (5th Cir. 2025) (Ho, J.,

dissenting from denial of rehearing en banc) (“[W]e are duty-bound to

faithfully apply [binding precedent] as an inferior court, regardless of one’s

views on the matter. But we are not required to extend it.”) (citation

omitted).

So I won’t. It’s unfortunate that Morgan and Villarreal decline to

protect citizens from obvious violations of the First Amendment. It’s

unsurprising that Morgan and Villarreal have been sharply criticized by a

diverse range of leading legal voices as a result. I will not make things worse

by extending this mistaken body of precedent and refusing to protect citizens

from obvious violations of the Fourth Amendment as well as the First.

***

I agree with the denial of summary judgment based on qualified

immunity, and accordingly concur.

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