“general statements of the law . . . may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful”
How later courts described this case
- “general statements of the law . . . may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful”
- “[T]he risk of harm [to the prisoners] is obvious.”
- street preacher prevented from evangelizing on the streets of Houston
- Monell liability available under the Fourth Amendment where “the government actor was provided no training whatsoever”
Written by the judges who cited it.
The opinion
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 21-30754 December 18, 2025
____________ Lyle W. Cayce
Clerk
Richard Hershey,
Plaintiff—Appellant,
versus
City of Bossier City; Bobby Gilbert, Individually and in his
Capacity as Deputy Marshal; Daniel Stoll; David Smith;
Tyshon Harvey; Eugene Tucker,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:21-CV-460
______________________________
ON PETITION FOR REHEARING EN BANC
Before Dennis, Richman, and Ho, Circuit Judges.
Per Curiam:
The petition for rehearing en banc is DENIED. At the request of one
of its members, the court was polled, and a majority did not vote in favor of
rehearing (Fed. R. App. P. 40 and 5th Cir. R. 40).
No. 21-30754
In the en banc poll, seven judges voted in favor of rehearing (Judges
Jones, Smith, Richman, Duncan, Engelhardt, Oldham, and
Wilson), and ten judges voted against rehearing (Chief Judge Elrod,
and Judges Stewart, Southwick, Haynes, Graves,
Higginson, Willett, Ho, Douglas, and Ramirez).
2
No. 21-30754
James C. Ho, Circuit Judge, concurring in the denial of rehearing en banc:
Popular speech doesn’t need protection. It’s only when speech is
unpopular that you need the First Amendment.
That’s why the devout look to the judiciary for protection. Religious
speech is often unpopular speech, as people of faith have known for
thousands of years. See, e.g., John 15:18–19 (“If the world hates you, you
know that it has hated Me before it hated you. If you were of the world, the
world would love you as its own; but because you are not of the world, but I
chose you out of the world, because of this the world hates you.”).
It should go without saying, then, that the freedom of speech secured
by the First Amendment includes religious speech. It protects not only the
right to pray, but to preach—not just to worship, but to witness—to exercise
your faith by evangelizing your faith. Our Founders secured these rights even
if—indeed, especially if—the government doesn’t want you to exercise them.
So it should be obvious that believers have the right to share the good
news with others. And the obviousness of that right should have been enough
to defeat qualified immunity in this case, without the need for a factually
identical case saying so.
Our now-Chief Judge made this point in Morgan v. Swanson, 659 F.3d
359, 414 n.30 (5th Cir. 2011) (Elrod, J., dissenting in part). But a majority of
our en banc court refused that view in Morgan. And a majority of our en banc
court affirmatively rejected it in Villarreal v. City of Laredo, 94 F.4th 374, 395
(5th Cir. 2024). I detailed all of this in my dissent in Villarreal, 94 F.4th at
413–14, and again in McMurry v. Weaver, 142 F.4th 292, 304–07 (5th Cir.
2025) (Ho, J., concurring), and Hershey v. City of Bossier City, 156 F.4th 555,
557, 558–60 (5th Cir. 2025) (Ho, J., concurring). But I’m duty-bound to
follow our en banc precedents, whether I agree with them or not.
3
No. 21-30754
Governing precedent does not, however, foreclose municipal liability
under Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978). To
the contrary, the Supreme Court has unanimously held that “the need to
train officers . . . can be said to be ‘so obvious,’ that failure to do so could
properly be characterized as ‘deliberate indifference’ to constitutional
rights.” City of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989). 1 “[I]n the
absence of training, there is no way for novice officers to obtain the legal
knowledge they require. Under those circumstances there is an obvious need
for some form of training.” Connick v. Thompson, 563 U.S. 51, 64 (2011).
The petition for rehearing en banc asks us to shield obvious violations
of religious liberty under Monell. What’s more, it would allow municipalities
to trample on religious liberty simply by deputizing private actors to do their
dirty work. But see NRA v. Vullo, 602 U.S. 175, 198 (2024) (“the First
Amendment prohibits government officials from wielding their power
selectively to punish or suppress speech, directly or (as alleged here) through
private intermediaries”); Marsh v. Alabama, 326 U.S. 501 (1946); Murthy v.
Missouri, 603 U.S. 43, 79–80, 99 (2024) (Alito, J., dissenting).
That’s wrong, and I’m glad we’re not going along with it. I concur in
the denial of the petition for rehearing en banc.
***
My dissenting colleagues would grant the petition for rehearing en
banc. In doing so, they claim that I’m wrong on three fronts. I’m wrong
about our court’s qualified immunity jurisprudence. I’m wrong about our
_____________________
1
Harris refers to “fleeing felons,” but nothing in § 1983 suggests that courts should
favor the rights of criminals over the rights of law-abiding citizens. We made that mistake
as to qualified immunity, see Villarreal v. City of Laredo, 94 F.4th 374, 413 (5th Cir. 2024)
(Ho, J., dissenting), and I’m grateful that we won’t be repeating that mistake here as to
municipal liability.
4
No. 21-30754
approach to municipal liability under Monell. And most importantly, I’m
wrong that there’s a sincere concern about religious liberty presented here.
I’ll begin by responding to the two procedural justifications for
shielding even obvious First Amendment violations from judicial review,
before addressing my colleagues’ curious skepticism about the legitimate
religious liberty concerns implicated in this case (which should be resolved in
the first instance at trial in any event).
In doing so, I note that it’s become a regrettable but unfortunately
common practice of judges to invent reasons to avoid addressing sensitive
matters of conscience on the merits—whether it’s by concocting procedural
problems or distorting the facts. I’m not the only one to notice this tactic.2
But I note it here because this case is Exhibit A in the use of these stratagems.
I.
Let’s start with qualified immunity. For any citizen who seeks
damages from a public official for violating their rights, it’s not enough that
their rights have been violated. Their rights must also be “clearly
established” at the time of the violation. One way to make this showing is to
_____________________
2
See, e.g., Christian Legal Society v. Martinez, 561 U.S. 661, 707–18 (2010) (Alito,
J., dissenting) (detailing the numerous ways in which “[t]he Court provides a misleading
portrayal of this [religious liberty] case”); Parents Protecting Our Children v. Eau Claire Area
Sch. Dist., 145 S. Ct. 14, 14–15 (2024) (Alito, J., dissenting from the denial of certiorari) (“I
am concerned that some federal courts are succumbing to the temptation to use the
doctrine of Article III standing as a way of avoiding some particularly contentious
constitutional questions.”); see also Tucker v. Gaddis, 40 F.4th 289, 293–97 (5th Cir. 2022)
(Ho, J., concurring) (collecting examples from other circuits about misuse of procedural
doctrines to avoid deciding religious liberty claims); U.S. Navy SEALs 1-26 v. Biden, 72
F.4th 666, 677–78 (5th Cir. 2023) (Ho, J., dissenting) (misuse of mootness to avoid deciding
religious liberty challenge to vaccine mandate); Neese v. Becerra, 127 F.4th 601, 603–06 &
n.1 (5th Cir. 2025) (Ho, J., dissenting from the denial of rehearing en banc) (misuse of
standing and mischaracterization of facts to avoid addressing conscience objections to
gender ideology mandate).
5
No. 21-30754
identify binding precedent with sufficiently similar facts that the violation
should have been clear to the public official at the time of the incident.
But that’s not supposed to be the only way to do it. Under Hope v.
Pelzer, 536 U.S. 730 (2002), and Taylor v. Riojas, 592 U.S. 7 (2020), a plaintiff
can also overcome qualified immunity if the violation is so egregious that it
should’ve been obvious to the official, without the need for a materially
similar case. See Hope, 536 U.S. at 741 (“general statements of the law . . .
may apply with obvious clarity to the specific conduct in question, even
though 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)); Taylor, 592 U.S. at 8–9
& n.2 (summarily reversing our court’s grant of qualified immunity due to
the “obviousness” of the constitutional violation) (citing Hope and Lanier).
Unfortunately, we didn’t follow this principle in Villarreal v. City of
Laredo, 94 F.4th 374 (5th Cir. 2024). The en banc majority held that Hope
and Taylor are Eighth Amendment cases that do not apply in other contexts,
such as the First Amendment. Id. at 395. I dissented, noting the oddity of
treating claims from incarcerated criminals more favorably than law-abiding
citizens. Id. at 413–14 (Ho, J., dissenting). 3
Naturally, I wish my views had prevailed in Villarreal. But they
didn’t, and I’m bound to acknowledge that fact in all intellectual honesty.
What I could not have fathomed is what my colleagues are saying
about Villarreal today. Having won in Villarreal, they now dispute what it is
_____________________
3
The Supreme Court vacated our en banc decision in Villarreal. 145 S. Ct. 368
(2024). But on remand, our court reinstated its earlier en banc decision. 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).
6
No. 21-30754
that they won. They deny that they held in Villarreal that “the obviousness
exception does not apply in First Amendment cases.” Post, at 29.
So let’s just roll the tape. Here’s verbatim what the Villarreal en banc
majority said about qualified immunity, Hope, Taylor, and obvious violations:
Villarreal cites no case, nor are we aware of one, where
the Supreme Court, or any other court, has held that it is
unconstitutional to arrest a person, even a journalist, upon
probable cause for violating a statute that prohibits solicitation
and receipt of nonpublic information from the government for
personal benefit. Under the normal standards of qualified
immunity, no “clearly established law” placed the officers on
notice of Villarreal’s First Amendment right not to be arrested.
Villarreal, however, relies on Eighth Amendment cases where
the Supreme Court denied qualified immunity for deliberate
indifference to unconstitutional prison conditions and declined
to scrutinize the cases fact-specifically. See Hope v. Pelzer, 536
U.S. 730, 738–39 (2002) (“[T]he risk of harm [to the
prisoners] is obvious.”); Taylor v. Riojas, 592 U.S. 7, 9 (2020)
(per curiam) (“Confronted with the particularly egregious
facts of this case, any reasonable officer should have realized
that Taylor’s conditions of confinement offended the
Constitution.”) (footnote omitted)); McCoy v. Alamu, 141 S.
Ct. 1364 (2021) (instructing the court to reconsider an Eighth
Amendment case “in light of Taylor”).
Hope and its progeny express a general, but decidedly
narrow, obviousness exception to the requirement that
“clearly established law” be founded on materially identical
facts. In any event, those cases are inappropriate templates for
describing “clearly established” law in this context. In Morgan
v. Swanson, 659 F.3d 359, 373 (5th Cir. 2011) (en banc), a case
involving First Amendment free exercise rights, this court
noted that Hope does not stand for the broad proposition that
plaintiffs need not offer any similar cases to prove that an
7
No. 21-30754
officer should have been on notice that his conduct violated the
Constitution. . . .
Consequently, we adhere to the general rule that for an
asserted right to be clearly established for purposes of qualified
immunity, it must “have a sufficiently clear foundation in then-
existing precedent” that it is “settled law.” Wesby, 583 U.S. at
63 (citation omitted). “The precedent must be clear enough
that every reasonable official would interpret it to establish the
particular rule the plaintiff seeks to apply.” Id. (emphasis
added). The law is not clearly established if referenced cases
are “materially distinguishable and thus do[] not govern the
facts of this case.” Rivas-Villegas, 595 U.S. at 6.
94 F.4th at 395 (cleaned up).
It’s hard to misread this passage. Villarreal reads Hope and Taylor to
apply only to “Eighth Amendment cases.” Id. Hope and Taylor don’t apply
in cases “involving First Amendment free exercise rights.” Id. And the
court justifies this result by citing our earlier en banc decision in Morgan. Id.
Now I’ll quote verbatim what I said in response in my dissent:
The Supreme Court has made clear that public officials
who commit obvious constitutional violations are not entitled
to qualified immunity. In fact, the Court has repeatedly
reversed circuits, including ours, for granting qualified
immunity for obvious violations of constitutional rights. See,
e.g., Hope v. Pelzer, 536 U.S. 730, 741 (2002); Taylor v. Riojas,
592 U.S. 7, 9 (2020).
The majority responds that the standard articulated in
Hope and Taylor doesn’t apply here, because those cases arose
under the Eighth Amendment, not the First Amendment.
Ante, at 395.
But that would treat the First Amendment as a second-
class right. Nothing in § 1983 suggests that courts should favor
the Eighth Amendment rights of convicted criminals over the
8
No. 21-30754
First Amendment rights of law-abiding citizens. Nothing in
Hope or Taylor indicates that those decisions apply only to
prison conditions. And no other circuit takes the approach
urged by our colleagues in the majority. To the contrary, nine
circuits have indicated that the standards articulated in Hope
apply specifically in the First Amendment context. See, e.g.,
Diaz-Bigio v. Santini, 652 F.3d 45, 50 (1st Cir. 2011); Nagle v.
Marron, 663 F.3d 100, 115–116 (2nd Cir. 2011); McGreevy v.
Stroup, 413 F.3d 359, 366 (3rd Cir. 2005); Tobey v. Jones, 706
F.3d 379, 391 n.6 (4th Cir. 2013); MacIntosh v. Clous, 69 F.4th
309, 399 (6th Cir. 2023); Kristofek v. Vill. of Orland Hills, 832
F.3d 785, 798 (7th Cir. 2016); Galvin v. Hay, 374 F.3d 739, 746–
47 (9th Cir. 2004); Frasier v. Evans, 992 F.3d 1003, 1021–22
(10th Cir. 2021); Leslie v. Hancock Cnty. Bd. of Educ., 720 F.3d
1338, 1345–46 (11th Cir. 2013). See also Cheeks v. Belmar, 80
F.4th 872, 877 (8th Cir. 2023) (applying Hope to the
Fourteenth Amendment); Atherton v. Dist. of Columbia Off. of
the Mayor, 706 F.3d 512, 515 (D.C. Cir. 2013) (applying Hope to
the Fifth Amendment).
So I would apply Hope and Taylor in the First
Amendment context. See also Morgan v. Swanson, 659 F.3d 359,
412, 414 n.30 (5th Cir. 2011) (en banc) (Elrod, J., dissenting in
part) (concluding that Hope applies to obvious First
Amendment violations).
Id. at 413–14 (Ho, J., dissenting) (cleaned up).
If my dissent mischaracterized the majority’s ruling, surely they
would’ve taken me to task. But they didn’t. Because I didn’t. (Put it another
way: If our colleagues agreed with my dissent that Hope and Taylor apply to
the First Amendment, why did they vote against Priscilla Villarreal?)
People can debate, of course, who’s right about qualified immunity,
Hope, and Taylor—the en banc majority or my dissent. But we should be
candid about what our opinions do and don’t say.
9
No. 21-30754
Numerous religious liberty organizations and other public interest
groups have filed amicus briefs criticizing Villarreal for refusing to apply the
obviousness exception to the First Amendment.
Start with the Alliance Defending Freedom and the Dhillon Law
Group, and their amicus brief on behalf of the Young America’s Foundation
and the Manhattan Institute. Here’s what they said:
Some applications of laws are so “obvious[ly]”
unconstitutional, Rivas-Villegas, 595 U.S. at 6, or “egregious,”
Taylor, 592 U.S. at 9, that qualified immunity dissolves without
a factually analogous case on the books. Often this principle is
associated with Hope v. Pelzer, 536 U.S. at 741, where this Court
said “a general constitutional rule already identified in the
decisional law may apply with obvious clarity to the specific
conduct in question.” Accord, e.g., Anderson, 483 U.S. at 640
(rejecting the notion “that an official action is protected by
qualified immunity unless the very action in question has
previously been held unlawful”).
The Fifth Circuit en banc majority avoided this
conclusion by throwing out the obviousness exception to
“normal” qualified-immunity rules in the free-speech and
free-exercise context. Villarreal, 94 F.4th at 395. It refused to
accept that “the ‘obvious’ violation exception applies broadly
to arrests that may impinge on First Amendment rights.” Id. at
392. Obviousness, the majority said, is “no more than a possible
exception,” ibid., or one narrowly confined to “Eighth
Amendment cases,” id. at 395.
This dispelling of the obviousness exception is
mistaken. Eighth Amendment precedent has its oddities but
qualified immunity isn’t one of them. Nothing in Hope or
Taylor suggests that the exception applies only to claims of
cruel and unusual punishment. Nor does confining the
obviousness exception to that narrow context make sense.
Freedoms of speech, press, and religion are among our
10
No. 21-30754
proudest liberties, not “second-class right[s].” Villarreal, 94
F.4th at 413 (Ho, J., dissenting).
Brief for Young America’s Foundation and Manhattan Institute as Amici
Curiae Supporting Petitioner, Villarreal v. Alaniz, 145 S. Ct. 368 (2024) (No.
23-1155), 2024 WL 2786483, *9–10.
According to ADF, Dhillon, and company, Villarreal is “dangerous”
for religious liberty: “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.” Id. at *12.
Consider also what the First Liberty Institute wrote:
The approach taken by the Fifth Circuit towards
qualified immunity is exactly the kind of approach this Court
castigated in Hope and its progeny. In Hope, this Court
indicated that public officials who commit obvious
constitutional violations are not entitled to qualified immunity.
See 536 U.S. at 740–42, 745–46. Although this principle was
first articulated in the Eighth Amendment context, it has been
extended to cases involving the First Amendment, by [the
Supreme] Court and nine circuits.”
Brief of First Liberty Institute as Amicus Curiae in Support of Petitioner,
Villarreal v. Alaniz, 145 S. Ct. 368 (2024) (No. 23-1155), 2024 WL 2058693,
*10.
The First Liberty Institute concluded that Villarreal is an “insidious”
ruling for religious liberty: “Whatever value qualified immunity has, it cannot
be predicated on the distinctly un-American notion that our freedoms are
only cognizable in the light of judicial pronouncements cast down from on
high.” Id. at *11.
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No. 21-30754
These are the views of the Nation’s most respected religious liberty
law firms. And they aren’t alone. A number of other organizations have also
filed Supreme Court amicus briefs protesting our court’s elimination of the
obviousness exception in First Amendment cases. See Docket, Villarreal v.
Alaniz, No. 23-1155 (U.S.); Docket, Villarreal v. Alaniz, No. 25-29 (U.S.); see
also McMurry, 142 F.4th at 305–06 (Ho, J., concurring) (citing amici).
So they may be surprised to see what our colleagues have to say today.
***
One possible explanation for their dissent is that our colleagues regret
what they did in Villarreal (and before that in Morgan). But if that is so, I just
wish they had expressed this regret to the rest of us earlier, when we could’ve
done something about it. Because it’s not what they’ve ever said before
today. It’s not what our dissenting colleague said in her opinion at the panel
stage. And it’s certainly not what Defendants have urged in their petition for
rehearing en banc. They said none of this until today’s dissent.
And notably, Hershey himself did not file an en banc rehearing
petition asking us to overturn Villarreal—presumably because he and his
counsel know how to read opinions and count votes.
But make no mistake: Now that everyone’s on record, I’d welcome
an en banc petition from Hershey asking us to overturn the mistaken
principles of Morgan and Villarreal, deny qualified immunity, and grant
Hershey the opportunity to go to trial. Because it sounds like there are now
the votes to do it.
That said, Hershey may prefer to preserve his Monell win, and leave it
to someone else to invoke today’s surprising developments to try to overturn
Villarreal. And that leads me to my final point on Villarreal. I’m beyond
delighted by this surprising turn of events, to be sure. But it bears noting that
12
No. 21-30754
this is precisely the kind of “surprise switcheroo” that members of our court
have criticized federal agencies for doing. Wages and White Lion Investments,
L.L.C. v. FDA, 90 F.4th 357, 386 (5th Cir. 2024), rev’d, 604 U.S. 542 (2025).
I’d hold us to the same standard that we apply to others. As imperfect
human beings, we’re allowed to change our mind, of course. But we should
be candid, not caustic, when we do so. “When an agency changes its existing
position, it . . . must at least display awareness that it is changing position.”
Id. at 381 (quotations omitted). At least one influential scholar has suggested
the same. See Josh Blackman, A Fifth Circuit Disgrantle in the Alien Enemies
Act Case, Reason.com, Oct. 1, 2025 (comparing the dueling en banc
opinions in United States v. Abbott, 110 F.4th 700 (5th Cir. 2024), with later
developments). 4
Finally, the dissent asks a question that deserves a fulsome response:
“Why say ‘We are bound by this terrible opinion,’” but “oppose rehearing
to fix the purportedly terrible opinion?” Post, at 32. “Wouldn’t it be easier
to do the right thing and vote for rehearing now?” Id.
My two responses to their question/offer: It’s deeply disingenuous.
But I happily accept.
First, it’s disingenuous. Defendants’ petition for rehearing en banc
(obviously) doesn’t ask the court to reverse its qualified immunity win by
_____________________
4
My colleagues deny the surprise switcheroo, and insist that we must read
Villarreal “in the context in which it was decided.” Post, at 31. In their view, Villarreal
wasn’t about refusing Hope and Taylor at all—it was about the “concededly untainted
intermediary and the valid arrest warrant.” Post, at 30. But that’s wrong on both fronts.
It’s wrong because it can’t be squared with the verbatim language from Villarreal that I
quoted earlier. And it’s wrong because the intermediary and warrant issues weren’t
“conceded” at all—to the contrary, multiple dissents in Villarreal discussed in detail the
tainted intermediary and invalid warrant. See, e.g., 94 F.4th at 403–04 (Higginson, J.,
dissenting); id. at 418–19 (Ho, J., dissenting).
13
No. 21-30754
revisiting Villarreal. Their petition is solely about Monell. The en banc poll
is solely about Monell. And the poll closed long ago in any event—well before
any of them ever told me (or anyone else, from what I can tell) that they
suddenly share my opposition to Villarreal.
So they can theorize all they want that I somehow secretly like what
happened in Villarreal. But personally, I don’t think it passes the laugh test.
See, e.g., Villarreal, 94 F.4th at 409 (Ho, J., dissenting) (opposing the en banc
decision in Villarreal); McMurry, 142 F.4th at 302 (Ho, J., concurring)
(opposing the en banc decision in Villarreal); Hershey, 156 F.4th at 557 (Ho,
J., concurring) (opposing the en banc decision in Villarreal); see also Oliver v.
Arnold, 19 F.4th 843, 843 (5th Cir. 2021) (Ho, J., concurring in the denial of
rehearing en banc) (supporting relief in Villarreal); Mayfield v. Butler Snow,
78 F.4th 796, 797 (5th Cir. 2023) (Ho, J., dissenting from the denial of
rehearing en banc) (supporting relief in Villarreal); Gonzalez v. Trevino, 60
F.4th 906, 907 (5th Cir. 2023) (Ho, J., dissenting from the denial of rehearing
en banc) (supporting relief in Villarreal). I regret the increasing lack of
candor that has come to pervade our court’s en banc proceedings of late.
But no matter. I vote for rehearing.
I’m happy to let bygones be bygones, and ignore from here on out what
my colleagues may or may not have said before, in either Morgan or Villarreal.
I’m delighted to go back to what we said in my original panel majority opinion
in Villarreal: Of course the obviousness exception of Hope and Taylor applies
to the First Amendment.
So as a member of the panel, I vote for the panel to rehear this case.
After today’s order is out, I’m sure that the panel will deny qualified
immunity in this case. And that will be that.
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No. 21-30754
II.
Next, municipal liability. It’s established law that, to obtain liability
under Monell, an extensive pattern of past violations by municipal employees
is sufficient—but it’s not necessary. A single incident can also trigger
liability, but only if there’s an obvious risk of a constitutional violation if the
municipality provides “no training whatsoever.”
Our dissenting colleagues insist that that’s wrong. Indeed, they claim
that it’s “a sea change from our court’s prior approach” to contend that “a
political subdivision is liable under Monell when it provides ‘no training
whatsoever’ on the First Amendment.” Post, at 27-28 (emphasis added).
But virtually every member of the dissent has previously agreed that
“a political subdivision is liable under Monell when it provides ‘no training
whatsoever’”—at least in other constitutional contexts. Id. See, e.g.,
Henderson v. Harris Cnty, 51 F.4th 125, 131 (5th Cir. 2022) (Monell liability
available under the Fourth Amendment where “the government actor was
provided no training whatsoever”) (quotations omitted); York v. Welch, 2024
WL 775179, *5 (5th Cir.) (again, Monell liability available under the Fourth
Amendment where “the government actor was provided no training
whatsoever”) (quotations omitted); Covington v. City of Madisonville, 812 F.
App’x 219, 225 (5th Cir. 2020) (Monell liability available where “it should
have been apparent” that the complete “failure to train” would result in a
Fourteenth Amendment violation) (quotations omitted); Peterson v. City of
Fort Worth, 588 F.3d 838, 849 (5th Cir. 2009) (Monell liability available under
the Fourth Amendment based on “a complete failure to train”).
None of these cases suggest a different rule for the First Amendment.
To the contrary, a municipality is liable if it provides “‘no training
whatsoever’ with respect to the relevant constitutional duty.” Littell v. Houston
Indep. Sch. Dist., 894 F.3d 616, 625 n.5 (5th Cir. 2018) (emphasis added).
15
No. 21-30754
So I don’t see a “sea change”—I see equal respect for religious liberty
when we apply Monell liability to a municipality that “provides ‘no training
whatsoever’ on the First Amendment.” Post, at 28 (emphasis added).
The dissenters wonder what might happen if we apply our established
law to the First Amendment. They worry, for example, that federal judges
might start forcing cities to train all of their employees on “the intricacies of
commercial speech.” Post, at 28. Rest assured that no one is saying that.
Nor is anyone ordering municipal waste workers to be taught about
Obergefell, or insisting that firefighters be instructed on tax law.
We’re only saying what the law already says—and what the dissenters
once agreed: a municipality is liable if it provides “‘no training whatsoever’
with respect to the relevant constitutional duty.” Littell, 894 F.3d at 625 n.5
(emphasis added). If the training isn’t relevant, then it isn’t required.
And that gets us to what I believe is the heart of the dispute. The
dissent seems to think that the problem with this case is that the “risk of a
constitutional violation was infinitesimal.” Post, at 26.
I have a different view. Street preaching is not some infinitesimally
rare and obscure practice. Nor is it one that municipalities never bother with.
People of faith have long sought opportunities to spread the gospel in
the public square. Nearly a century ago, the Supreme Court observed that
“[t]he hand distribution of religious tracts is an age-old form of missionary
evangelism—as old as the history of printing presses.” Murdock v.
Pennsylvania, 319 U.S. 105, 108 (1943). “It has been a potent force in various
religious movements down through the years,” as people of faith “carry the
Gospel to thousands upon thousands of homes and seek through personal
visitations to win adherents.” Id. at 108–9. So anyone who is “rightfully on
a street which the state has left open to the public carries with him there as
elsewhere the constitutional right to express his views in an orderly fashion.”
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Jamison v. Texas, 318 U.S. 413, 416 (1943). “This right extends to the
communication of ideas by handbills and literature as well as by the spoken
word.” Id.
It’s a religious practice that dates back thousands of years. The Bible
speaks of the Great Commission, in which Jesus calls on the disciples to go
forth and spread the word to others in every nation. Matthew 28:16–20.
“[O]pen-air preaching was a preferred method of Jonah, Jeremiah, the
apostle Paul, and many others.” Ryan Denton, Into the Highways and Hedges:
A Primer for Open-Air Preaching, Desiring God, Feb. 4, 2024, available at
www.desiringgod.org/articles/into-the-highways-and-hedges. “They went
to the people and preached God’s word.” Id. After all, “Jesus went into the
boat or up on the mountainside to preach the good news.” Id.
My dissenting colleagues question why I invoke “thousands of years”
of religious tradition. Post, at 24. But they invoked millennia of legal tradition
in Environment Texas Citizen Lobby, Inc. v. ExxonMobil Corp., 123 F.4th 309
(5th Cir. 2024)—even where it didn’t seem relevant. 5 So if we’re going to
consider millennia of legal tradition since at least the time of Roman rule,
then we ought to consider millennia of religious tradition since Roman times
as well—particularly where it’s actually relevant to the issues presented.
The Harvard Religious Freedom Clinic certainly thinks it relevant.
Just this year, they briefed the U.S. Supreme Court that street preaching is
an “ancient tradition” with “deep historical roots.” Brief of Stephen Nylen
et al. as Amici Curiae Supporting Petitioner, Olivier v. City of Brandon, No.
_____________________
5
In that case, I questioned the relevance of Roman law to the established practice
of American courts on dismissing appeals as improvidently granted. I’m grateful that my
colleagues stepped away from the point shortly thereafter. See, e.g., Silverthorne Seismic v.
Sterling Seismic Srvs., 125 F.4th 593, 598 & n.5 (5th Cir. 2025) (discussing practice of
dismissing discretionary appeals as improvidently granted).
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No. 21-30754
24-993 (U.S.), 2025 WL 2676057, *4. I agree that it’s relevant in cases like
this that the devout have sought to spread the gospel to others as an essential
part of their faith for millennia.
The most effective way to spread the word to others, of course, is to
go where lots of people congregate. “The First Amendment protects the
right of every citizen to reach the minds of willing listeners and to do so there
must be opportunity to win their attention.” Heffron v. Int’l Soc. for Krishna
Consciousness, Inc., 452 U.S. 640, 655 (1981) (cleaned up, emphasis added).
Concert venues are an ideal forum for the street preacher. As one of
the most famous street preachers has observed, “music venues” are a “good
open-air setting” for street preaching because it’s a “public location where
people gather where they’re not in a hurry and can take time to listen.” Ray
Comfort, Fifty Years Of Open-Air Preaching 50 (2024). See
also Denton, Into the Highways (“open-air preaching is especially useful . . .
outside a sporting event”).
Municipalities are not only well aware of this—a number of them
don’t like it, and endeavor to stop it.
In fact, municipalities are so actively opposed to street preaching that
our court has had to adjudicate constitutional objections to their restrictive
policies in case after case. See, e.g., Siders v. City of Brandon, 123 F.4th 293
(5th Cir. 2024) (Christian advocate prevented from evangelizing outside
public amphitheater); Herridge v. Montgomery Cnty., No. 21-20264, 2022 WL
989421 (5th Cir. Apr. 1, 2022) (Christian advocate prevented from
distributing pamphlets near outdoor pavilion in Houston); Olivier v. City of
Brandon, 2023 WL 5500223 (5th Cir.) (street preacher prevented from
evangelizing outside public amphitheater), cert. granted, 145 S. Ct. 2871
(2025); Denton v. City of El Paso, 861 F. App’x 836 (5th Cir. 2021) (Christian
advocate prevented from evangelizing at an outdoor farmer’s market); Roy v.
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No. 21-30754
City of Monroe, 950 F.3d 245 (5th Cir. 2020) (street preacher prevented from
evangelizing on the sidewalk outside of a local bar); Allen v. Cisneros, 815 F.3d
239 (5th Cir. 2016) (street preacher prevented from evangelizing on the
streets of Houston); Grisham v. City of Fort Worth, 837 F.3d 564 (5th Cir.
2016) (Christian advocate prevented from distributing literature on public
sidewalks).
Our dissenting colleagues know this. Take Siders, for example, about
a “Christian who seeks to evangelize and share the gospel with others.” 123
F.4th at 298. She “particularly likes to share the gospel on public ways near
and outside of public events . . . because such occasions offer her an
opportunity to reach a meaningful number of people with her message.” Id.
She likes preaching at music venues because “she can find meaningful
pedestrian traffic flow on days of amphitheater events as attendees walk
toward the amphitheater.” Id.
Our colleagues have acknowledged that this is no obscure exercise of
faith—to the contrary, they’ve suggested that there’s so much of it that they
worry about obstructing traffic. See Siders v. Mississippi, 130 F.4th 188, 190
(5th Cir. 2025) (noting concerns about “congestion,” “interference with
ingress or egress,” “ensuring public safety and order,” and “promoting the
free flow of traffic on streets and sidewalks” to justify shutting down street
preachers).
In sum: In Hershey, the activity is rare, so there’s no liability. In
Siders, the activity occurs far too much, so there’s no liability.
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No. 21-30754
I would not treat these conflicts as infinitesimally rare. I would
suggest that we’re all just making a judgment call as to whether we think this
is a First Amendment right worth protecting—or not. 6
III.
That brings us to the main event—religious liberty. As I noted at the
outset, the First Amendment violation presented here should be obvious. Of
course people have the right to spread the gospel in public spaces. Yet our
colleagues deny that this case presents a legitimate religious liberty issue.
Richard Hershey claims the right to share religious materials in public
spaces. But our colleagues deny that his claim has anything to do with
religious liberty.
To begin with, their challenge to Hershey’s sincerity is ultimately a
red herring. Because the rule of liability they propose would govern the most
faithful as well as the most imperfect (which is to say, all of us).
_____________________
6
Our dissenting colleagues highlight the amicus brief filed by the states in our
circuit. It’s not surprising, of course, that the states would oppose litigants who seek to
hold government officials liable. Counsel for government always argues against liability for
government. That’s their job. It’s our job to enforce the Constitution.
The states are concerned about being flooded with frivolous prisoner complaints.
So am I. Of course, they’re already flooded with such suits—since well before Hershey.
We can—and we must—protect the First Amendment rights of law-abiding
citizens, even as we work to shield prison officials from frivolous prisoner complaints. We
can walk and chew gum at the same time. As federal judges, we’re paid to do so.
And that leads me to the question we should really be asking. Why acknowledge
only the government amici? Why not also acknowledge the numerous amici who have filed
brief after brief after brief expressing grave concerns about the state of freedom of speech
and religious liberty in our circuit? See, e.g., McMurry, 142 F.4th at 305–06 (Ho, J.,
concurring) (noting broad range of amici and religious liberty experts who have criticized
our decisions in Morgan and Villarreal); Gonzalez v. Trevino, 60 F.4th 906, 913 & n.4 (5th
Cir. 2023) (Ho, J., dissenting from the denial of rehearing en banc) (same).
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No. 21-30754
It’s also an issue to be resolved by a jury—not appellate judges. The
amended complaint makes clear that “Hershey was distributing free,
educational, noncommercial, religious booklets on behalf of a nonprofit
organization named the Christian Vegetarian Association.” ROA.75. It’s a
message that Hershey has made clear he “feels compelled to share with
others.” ROA.192. My colleagues question Hershey’s bona fides as a
Christian. But that strikes me as (among other things) beyond our province
at this stage of the proceedings.
Hershey’s sincerity was not doubted by the district court. And even
at the panel stage, one of our dissenting colleagues doubted only whether
Defendants had ever “previously” targeted “someone engaging in free
exercise of religion or free speech.” Hershey, 156 F.4th at 577–78 (Richman,
J., concurring in part and dissenting in part). Defendants themselves have
acknowledged on appeal that Hershey “travels around the country spreading
his Christian vegetarian message on college campuses, at event centers, and
other forums.” Brief for Defendants, Hershey v. City of Bossier, 156 F.4th 555
(2025) (No. 21-30754), 2022 WL 1136998, *3 (quotations omitted).
But our dissenting colleagues now question “what [the Christian
Vegetarian Association] has to do with Christianity.” Post, at 24.
Paul’s epistle to the Romans acknowledges that some people of faith
will only eat vegetables. Paul warns believers to respect such views. “The
one who eats everything must not treat with contempt the one who does not,
and the one who does not eat everything must not judge the one who does,
for God has accepted them. Who are you to judge someone else’s servant?
To their own master, servants stand or fall. And they will stand, for the Lord
is able to make them stand.” Romans 14:3-4.
Our colleagues also highlight the fact that “Hershey gets paid” for
spreading these religious views. Post, at 24. But recall Paul’s first epistle to
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No. 21-30754
the church in Corinth. See 1 Corinthians 9:3–14. Paul observes that
“those who preach the gospel should receive their living from the gospel.” 1
Corinthians 9:14 (emphasis added). See also Va. State Bd. of Pharmacy
v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976) (“Speech . . .
is protected even though it is . . . ‘sold’ for profit.”); Villarreal, 94 F.4th at
420 (Ho, J., dissenting) (“There is no pro bono requirement to the freedom
of speech.”).
So I would not question the sincerity of Hershey’s faith (and
especially not at this early stage of the proceedings, on review of a motion to
dismiss). Nor is this the first time we’ve seen unwarranted skepticism when
it comes to religious liberty. In Siders, our colleagues argued that the
ordinance challenged there did not prevent citizens from evangelizing on
public grounds. See, e.g., 130 F.4th at 189 (Oldham, J., concurring in the
denial of rehearing en banc) (“[T]he ordinance does not purport to regulate
prayer, conversation, t-shirts, evangelism, or tracts.”). But in Olivier, by
contrast, they condemned the same ordinance at the same amphitheater
because it prevents “an evangelical Christian who feels called to share the
good news with his fellow citizens . . . from doing so outside the city’s public
amphitheater.” 121 F.4th 511, 512 (5th Cir. 2024) (Ho, J., dissenting from
denial of rehearing en banc, joined by five members of the court). 7
_____________________
7
Finally, the dissent suggests that I am violating party presentation by treating this
as a religious liberty case, rather than as a free speech case. Post, at 33–34. My colleagues
made the same point in Siders. And my response is the same: “religious expression is, of
course, protected under the Freedom of Speech Clause.” Siders, 130 F.4th at 192 (Ho, J.,
dissenting from the denial of rehearing en banc). The Supreme Court’s recent decision in
303 Creative LLC v. Elenis, 600 U.S. 570 (2023), was based on the Free Speech Clause.
Would the dissenters be horrified if anyone called that decision a win for religious liberty?
Surely not. As the Supreme Court recently reminded us, “the Free Speech Clause
provides overlapping protection for expressive religious activities.” Kennedy v. Bremerton
Sch. Dist., 597 U.S. 507, 523 (2022). “That the First Amendment doubly protects religious
speech is no accident. It is a natural outgrowth of the framers’ distrust of government
22
No. 21-30754
***
Judicial opinions should be read charitably. But I struggle to see how
our dissenting colleagues haven’t reversed themselves on qualified immunity
under Villarreal and Morgan—or on whether Monell applies when there’s
been no training whatsoever—or on what government actions threaten
religious liberty. If I was one of the religious liberty groups who devotes their
God-given talents, time, and treasure to advocating for folks like Spring
Siders, Gabriel Olivier, Richard Hershey, and Priscilla Villarreal, I’d wonder
why they’re being accused of misrepresenting this court’s precedents and
fabricating religious liberty threats out of thin air. I’d also wonder about the
unexplained changes of position that they’ve seen from this court. I’d
“wonder what’s driving all of these gymnastics.” Post, at 35.
_____________________
attempts to regulate religion and suppress dissent. In Anglo–American history,
government suppression of speech has so commonly been directed precisely at religious
speech that a free-speech clause without religion would be Hamlet without the prince.” Id.
(cleaned up).
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No. 21-30754
Andrew S. Oldham, Circuit Judge, joined by Jones, Smith,
Richman, Duncan, Engelhardt, and Wilson, Circuit Judges,
dissenting from the denial of rehearing en banc:
Richard Hershey is a “vegetarian advocate whose ethical beliefs
compel him to share his message with others.” ROA.75. When security
officers told Hershey to stop distributing his leaflets, he sued for
“deprivation of his rights of speech.” ROA.85, 86–87. Hershey does not
allege that the officers even knew of the content of his vegetarianism
leaflets—let alone targeted him for his vegetarian views. See ROA.75–79.
Nor does Hershey allege anything about his religion. You’ll look in vain for
any mention in Hershey’s complaint about faith, religiosity, the First
Amendment’s Religion Clauses, or evangelism. The closest he gets is to
allege that he distributed leaflets from “the Christian Vegetarian
Association”—without any allegation about what that organization is, what
it has to do with Christianity, what it has to do with Hershey’s faith, or
whether Hershey is even a man of any faith. ROA.75. To the contrary, the
complaint alleges that Hershey gets paid to distribute leaflets “by various
nonprofit organizations”—without regard to religion of any kind. Ibid.
But you would not know that from the opinion concurring in the denial
of rehearing en banc. In that opinion, this case about vegetarian ethics
somehow transforms into a battle over street preaching, the Great
Commission, hatred of Christians, and religious persecution dating back
“thousands of years.” Ante, at 17 (Ho, J., concurring); see also Siders v.
Mississippi, 130 F.4th 188, 191 (Ho, J., dissenting from the denial of
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No. 21-30754
rehearing en banc) (5th Cir. 2025) (doing the same thing). This quixotic
effort does nothing to justify the panel’s badly splintered, three-judge-four-
opinion approach to this case. And while it tilts at windmills that appear
nowhere in this case, it does nothing to justify our court’s refusal to
reconsider the matter en banc.
At the panel stage, the three-judge panel issued four opinions. The per
curiam opinion recognized that the panel was (to put it mildly) “splintered.”
Hershey v. City of Bossier City, 156 F.4th 555, 556 (5th Cir. 2025) (per curiam).
Then all three judges issued their own opinions. Judges Richman and Ho
wrote the controlling rule on qualified immunity. Judge Ho declared that he
would have sided with Judge Dennis on qualified immunity had circuit
precedent not prevented him. Then Judges Dennis and Ho wrote the
controlling rule on the City’s liability under Monell v. Department of Social
Services of City of New York, 436 U.S. 658 (1978). Given the far-reaching
implications of the qualified immunity rule embraced by Judge Ho, given the
Monell holding embraced by Judges Dennis and Ho, and given that future
parties will need Venn diagrams to understand what this deeply fractured
panel held, we should have taken the case en banc.
I begin with (I) the panel’s Monell holding, because it’s the most
egregious. Then I address (II) the panel’s qualified-immunity holding.
Finally, I address the hyperbolic assertion that (III) rehearing this case would
have been comparable to throwing Christians to the lions.
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No. 21-30754
I
First, Monell. I begin with (A) the Monell rule announced by Judges
Dennis and Ho and then turn to (B) its anomalies.
A
Judges Dennis and Ho turn the world upside down. See Hershey, 156
F.4th at 561 (Ho, J., concurring); id. at 563–64 (Dennis, J., concurring in
relevant part). Before the panel’s decision, plaintiffs could allege a Monell
claim based on a single incident only if a municipality “fail[ed] to train its
employees concerning a clear constitutional duty implicated in recurrent
situations that a particular employee is certain to face.” Littell v. Houston
Indep. Sch. Dist., 894 F.3d 616, 624–25 (5th Cir. 2018) (quoting City of Canton
v. Harris, 489 U.S. 378, 396 (1989) (O’Connor, J., concurring in part and
dissenting in part)). Such circumstances were “very narrow.” Id. at 624. The
classic example: if a city gave its officers guns but no training on when to use
them. See Canton, 498 U.S. at 390 n.10.
Under the rule embraced by Judges Dennis and Ho, however,
plaintiffs need only allege that defendants lacked training to handle plaintiff’s
case—even if the ex ante risk of a constitutional violation was infinitesimal.
ROA.86; see also Hershey, 156 F.4th at 561 (Ho, J., concurring); id. at 563–
64 (Dennis, J., concurring in relevant part). This doctrinal Calvinball will
have predictable effect: As Judge Richman ably explained, plaintiffs can
always “granulate allegations so finely that they arrive at a ‘complete failure
to train,’” so they will be able to allege municipal liability in “virtually every
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No. 21-30754
instance.” Id. at 578 (Richman, J., dissenting in relevant part) (quotation
omitted).
That might be a good rule; it might be a bad one. But either way, it’s a
sea change from our court’s prior approach. See Pineda v. City of Houston, 291
F.3d 325, 334 (5th Cir. 2002) (emphasizing that this court has “necessarily
[] been wary of finding municipal liability” based on a single incident). And
it’s the sort of thing that our en banc court should announce with clarity—
not the sort of thing we should sort-of say in a four-way fractured decision
that has all the precision of a cubist painting.
B
The controlling Monell rule creates a host of anomalies. Three bear
emphasis.
First, Monell liability is generally derivative of an underlying
constitutional tort committed by an officer. “As is well established, every
Monell claim requires an underlying constitutional violation.” Hicks-Fields v.
Harris County, 860 F.3d 803, 808 (5th Cir. 2017) (quotation omitted).
Consequently, we routinely dismiss Monell claims against political
subdivisions where the plaintiff fails to establish a § 1983 claim against an
individual officer. But one of the panel opinions does the opposite: It says no
individual officer ever can be held liable—even for the most obvious First
Amendment violation—but every political subdivision can always be held
liable for any failure to train—even for potentialities that could not
reasonably be foreseen. See Hershey, 156 F.4th at 561 (Ho, J., concurring).
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No. 21-30754
Second, the panel’s Monell rule proves both too much and too little.
The rule provides that a political subdivision is liable under Monell when it
provides “no training whatsoever” on the First Amendment. Hershey, 156
F.4th at 561 (Ho, J., concurring); id. at 563–64 (Dennis, J., concurring in
relevant part). That proves far too much because if Bossier City had provided
training on say, the intricacies of commercial speech, then presumably this
case would have come out differently? It also proves far too little because
Hershey provided no evidence whatsoever of a failure to train. Nor did
Hershey do anything to show that officers ever faced another vegetarian-
ethicist pamphleteer (or any other pamphleteer, or any other speech problem
for that matter). See ROA.85–86. So even if Bossier City did not provide any
training, that fact does not save Hershey’s deficient pleadings.
Third, the Monell rule is equally applicable to failure-to-train cases
under the Fourth or Eighth Amendments. Plaintiffs need only allege that
officers were not trained the specific situation at hand and, voila, the plaintiff
has a Monell claim. That is why every State in our circuit urged us to rehear
this case—and warned us that lawsuits will proliferate, discovery costs will
soar, and municipalities will be forced to re-allocate precious time and
resources. Br. for the States of Louisiana, Mississippi, and Texas as Amici
Curiae, at 6–10. This burden will weigh most heavily on prisons and jails,
which face constant failure-to-train allegations. See id. at 8. And it will
embolden judges to find Monell violations in such contexts. See, e.g., Alvarez
v. City of Brownsville, 904 F.3d 382, 402 (5th Cir. 2018) (en banc) (Dennis,
J., dissenting) (dissenting from court’s rejection of Monell claim that city
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No. 21-30754
failed to disclose exculpatory evidence); see also Bond v. Nueces County, No.
20-40050, 2022 WL 4595000, at *9 (5th Cir. Sept. 30, 2022) (opinion of
Dennis., J.) (vacating district court’s rejection of plaintiff’s Monell claim
based on alleged constitutional violations by a prison).
The predictable consequences of the panel’s flawed Monell holding
further underscore why we should have taken this case en banc.
II
Next, qualified immunity. According to Judge Ho, our court’s
approach to qualified immunity in First Amendment cases is deeply flawed.
So flawed that it has garnered scathing criticism from the Alliance Defending
Freedom, the First Liberty Institute, and other religious-liberty
organizations. If our precedent is that bad, however, we should obviously go
en banc to overturn it. It’s surpassing strange to say, “our precedent requires
persecution of Christians,” and then say, “we should not go en banc to fix
it!” See ante, at 3 (Ho, J., concurring) (saying that).
I explain (A) Fifth Circuit precedent and (B) the puzzling decision to
recognize an error, refuse to overturn it, and then complain about it anyway.
A
At the panel stage in this case, two judges would have denied qualified
immunity. See Hershey, 156 F.4th at 558–59 (Ho, J., concurring); id. at 564
(Dennis, J., dissenting in relevant part). But one of these panel members
opted to grant qualified immunity because, apparently, our court has held
that the obviousness exception does not apply in First Amendment cases. See
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No. 21-30754
id. at 560 (Ho, J., concurring) (citing Villarreal v. City of Laredo, 94 F.4th
374, 395 (5th Cir. 2024) (en banc) (Villarreal II); see also ante, at 3 (same).
I do not read Villarreal II that way. In that case, the panel itself held
the state statute at issue was “not one of those ‘obviously unconstitutional’
statutes” on its face. Villarreal v. City of Laredo, 44 F.4th 363, 372 (5th Cir.
2022) (opinion of Ho, J.) (Villarreal I). So the question for the en banc court
in Villarreal II was whether officers unconstitutionally applied that valid
statute to a “citizen journalist”—even after an independent intermediary
found probable cause for the citizen’s arrest and issued a valid warrant. 94
F.4th at 393–94; see also id. at 394 (noting Villarreal alleged nothing to say the
independent intermediary was somehow tainted). “[I]n this context,” the
court held, cases discussing “obvious” constitutional violations like Hope v.
Pelzer, 536 U.S. 730 (2002), and Taylor v. Riojas, 592 U.S. 7 (2020), were
“inappropriate templates” for the qualified-immunity inquiry. Villarreal II,
94 F.4th at 395. That does not forever and for all reasons reject obviousness
as a ground for denying qualified immunity. It simply holds that, in the
context of the particular circumstances of the concededly untainted
intermediary and the valid arrest warrant in Villarreal’s case, the officers did
not obviously violate the Constitution by arresting her. See id. at 397 (holding
Villarreal failed to show an “obvious” constitutional violation—not that
“obviousness” is no longer a cognizable claim in our circuit (quotation
omitted)).
Judge Ho’s contrary reading of Villarreal II is the opposite of
“charitabl[e].” Ante, at 23. Both because it requires reading lines in Villarreal
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II out of context, and because it pits Villarreal II against binding Supreme
Court precedent. As the Supreme Court has said, “[t]here can be no doubt
that the First Amendment protects the right to pray”—even in the absence
of a case so holding. Sause v. Bauer, 585 U.S. 957, 959 (2018) (per curiam).
Indeed, the entire point of § 1983 liability in First Amendment cases is that
plaintiffs can prevail without pointing to earlier, on-point cases. See, e.g.,
Gonzalez v. Trevino, 602 U.S. 653, 658 (2024) (per curiam). Our sister
circuits agree. Some have denied qualified immunity in the First Amendment
context on obviousness grounds. See MacIntosh v. Clous, 69 F.4th 309, 320
(6th Cir. 2023); Tobey v. Jones, 706 F.3d 379, 392 (4th Cir. 2013). Many have
granted qualified immunity in the First Amendment context while
acknowledging that alleged facts did not fall within the obviousness
exception. See Diaz-Bigio v. Santini, 652 F.3d 45, 50 (1st Cir. 2011); Nagle v.
Marron, 663 F.3d 100, 115–16 (2d. Cir. 2011); Kristofek v. Vill. of Orland Hills,
832 F.3d 785, 798 (7th Cir. 2016); Galvin v. Hay, 374 F.3d 739, 746–47 (9th
Cir. 2004); Frasier v. Evans, 992 F.3d 1003, 1021–22 (10th Cir. 2021); Leslie
v. Hancock Cnty. Bd. of Educ., 720 F.3d 1338, 1346 (11th Cir. 2013). We should
not lightly presume that Villarreal II meant to break with all these
authorities—especially when a more plausible and narrower reading of the
precedent is readily available.
That is not a “surprise switcheroo.” Ante, at 13 (Ho, J., concurring).
That is simply reading an opinion in the context in which it was decided.
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B
But insofar as Villarreal II held what Judge Ho says it held, that is all
the more reason to go en banc and to do so immediately. “This is terrible, so
please do not fix it” is an incoherent basis for voting against rehearing. It is
even more incoherent to deny rehearing, end the case in this court, and then
invite the parties to continue litigating. See ante, at 14 (Ho, J., concurring).
Why say “We are bound by this terrible opinion,” oppose rehearing to fix the
purportedly terrible opinion, celebrate the order preserving the purportedly
terrible opinion, and then invite additional litigation to, what, remain bound
by the purportedly terrible opinion? Wouldn’t it be easier to do the right thing
and vote for rehearing now? Unless the point of all of this is to imagine a
horrible rule for the purpose of inveighing against it? Whatever the point, a
vote to deny en banc rehearing here protects a precedent that Judge Ho reads
to “treat[] claims from incarcerated criminals more favorably than law-
abiding citizens.” Ante, at 6. An “oddity” for sure. Ibid.
III
Finally, a word about the religious-liberty implications of this case.
Judge Ho says the court was correct to deny rehearing in this case because
doing so protects “the right to spread the gospel in public spaces.” Ante, at
20. Again, this assertion is bizarre.
Perhaps it’s true that the rules announced in the panel’s four-way,
deeply fractured opinions implicate religious liberty. That is all the more
reason to rehear this case en banc rather than rely on future parties and panels
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to decipher the relevant holding in the short per curiam opinion—which is
the only opinion that garnered a majority vote. That is especially true if the
premise of this entire mess was a reading of Villarreal II that conflicts with
Supreme Court precedent, splits from every other circuit to consider the
question, and portends disastrous consequences for people of faith. See Part
II, supra.
But even if it’s true that this case has implications for Christian
evangelism, that does not mean that Richard Hershey is himself a Christian
evangelist. If Hershey alleged something—anything—about his faith, we’d
obviously be bound to accept it. Courts have “no license to
declare . . . whether an adherent has ‘correctly perceived’ the commands of
his religion.” Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617,
651 (2018) (Gorsuch, J., concurring). We take a plaintiff’s religious
claims as they come, since it is “not for us to say that [a plaintiff’s] religious
beliefs are mistaken or insubstantial.” Burwell v. Hobby Lobby Stores, Inc., 573
U.S. 682, 725 (2014). The problem is that Hershey himself alleges nothing
about Rome, persecuted Christians, street preaching, the Great Commission,
religious liberty, or anything that implicates the First Amendment’s Religion
Clauses in any way. But see ante, at 22 (Ho, J., concurring) (invoking 1
Corinthians 9:3–14 for the proposition that Richard Hershey is a
Christian pastor?). Observing that fact says nothing about the sincerity of
Hershey’s belief. In fact, it does the opposite: it recognizes and honors the
belief that Hershey chose to identify in his court filings—namely, the belief
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that he has a free speech right to hand out vegetarianism pamphlets for
money.
In other circumstances, members of our court care about party
presentation:
In our adversarial system of adjudication, we follow the
principle of party presentation. We rely on the parties to frame
the issues for decision and assign to courts the role of neutral
arbiter of matters the parties present. Our system is designed
around the premise that parties represented by competent
counsel know what is best for them, and are responsible for
advancing the facts and argument entitling them to relief. In
short: Courts are essentially passive instruments of
government. They do not sally forth each day looking for
wrongs to right. They wait for cases to come to them, and when
cases arise, courts normally decide only questions presented by
the parties.
Gonzalez v. CoreCivic, Inc., 986 F.3d 536, 540 (5th Cir. 2021) (Ho, J.,
concurring) (quotations omitted). But in this case, the court apparently is an
active instrument of government that can sally forth and right wrongs that
Richard Hershey and his able counsel never imagined.
* * *
At the end of the day, my concurring colleague presents an imaginary
case that implicates persecuted Christians in Rome, “religious liberty,” and
the “ancient tradition” of street preaching, ante, at 17, 4 (Ho, J.,
concurring)—rather than the facts of this case. He reads our precedent to
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No. 21-30754
create catastrophic consequences for religious liberty—and then says we
should retain that horrible precedent and embrace the horrible consequences.
And then he turns Monell upside down and celebrates a new failure-to-train
theory that will benefit hardened criminals and saddle political subdivisions
in every § 1983 case. You have to wonder what’s driving all of these
gymnastics. I would have granted en banc rehearing to figure it out.
I respectfully dissent.
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