The opinion
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
_____________
FILED
February 5, 2026
No. 21-30754
_____________ 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
________________________________
PUBLISHED ORDER
The order withholding issuance of the mandate in this appeal is
VACATED.
LYLE W. CAYCE, CLERK
United States Court of Appeals
for the Fifth Circuit
/s/ Lyle W. Cayce
ENTERED AT THE DIRECTION OF THE COURT
No. 21-30754
James C. Ho, Circuit Judge, respecting the issuance of the mandate:
Our en banc court has issued a series of regrettable rulings that should
deeply trouble every person of faith. See Morgan v. Swanson, 659 F.3d 359
(5th Cir. 2011); Villarreal v. City of Laredo, 94 F.4th 374 (5th Cir. 2024);
Villarreal v. City of Laredo, 134 F.4th 273 (5th Cir. 2025). Those rulings
disregarded the Supreme Court’s precedents in Hope v. Pelzer, 536 U.S. 730
(2002), and Taylor v. Riojas, 592 U.S. 7 (2020), and instead held that
government officials are entitled to qualified immunity—no matter how
extreme, egregious, or obvious the violation of religious liberty—unless there
is a factually identical decision already on the books establishing the violation.
The nation’s leading religious liberty organizations have voiced their strong
objections to our precedents, and I’ve expressed my own objections as well.
See, e.g., Villarreal, 94 F.4th at 409 (Ho, J., dissenting); McMurry v. Weaver,
142 F.4th 292, 304–07 (5th Cir. 2025) (Ho, J., concurring); Hershey v. Bossier
City, 156 F.4th 555, 557, 558–60 (5th Cir. 2025) (Ho, J., concurring).
So it was striking when members of the court who voted for these
rulings in Morgan and Villarreal suddenly announced that they would
welcome an opportunity to revisit and reconsider those precedents. See
Hershey v. Bossier City, _ F.4th _, 2025 WL 3684338 (5th Cir. Dec. 18, 2025).
Naturally, Richard Hershey took the en banc dissental at its word, and
jumped at the chance to brief the religious liberty and qualified immunity
issues that the dissental purportedly invited him to present.
Yet the court today has now denied his request. So we’ve now
declined multiple opportunities to do what was promised. Hershey sought
leave to file a petition for rehearing en banc. But that’s been denied.
Members of the court can also seek rehearing sua sponte—as I did. But that
was denied, too. See Hershey v. Bossier City, _ F.4th _, 2026 WL 98116 (5th
Cir. Jan. 13, 2026).
2
No. 21-30754
I regret that things have come to this. The judiciary possesses neither
the sword nor the purse. All we have is our word.
3