Villarreal v. City of Laredo

Case: 20-40359 Document: 00516431109 Page: 1 Date Filed: 08/12/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

August 12, 2022

No. 20-40359 Lyle W. Cayce

Clerk

Priscilla Villarreal,

Plaintiff—Appellant,

versus

The City of Laredo, Texas; Webb County, Texas; Isidro

R. Alaniz; Marisela Jacaman; Claudio Trevino, Jr.; Juan

L. Ruiz; Deyanria Villarreal; Enedina Martinez;

Alfredo Guerrero; Laura Montemayor; Does 1-2,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:19-CV-48

Before Richman, Chief Judge, and Graves and Ho, Circuit Judges.

James C. Ho, Circuit Judge:

We previously issued an opinion in this case and noted that a

dissenting opinion was forthcoming. See Villarreal v. City of Laredo, 17 F.4th

532, 536 n.* (5th Cir. 2021). We now withdraw our prior opinion and

substitute the following in its place.

***

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If the First Amendment means anything, it surely means that a citizen

journalist has the right to ask a public official a question, without fear of being

imprisoned. Yet that is exactly what happened here: Priscilla Villarreal was

put in jail for asking a police officer a question.

If that is not an obvious violation of the Constitution, it’s hard to

imagine what would be. And as the Supreme Court has repeatedly held,

public officials are not entitled to qualified immunity for obvious violations

of the Constitution.

The district court accordingly erred in dismissing Villarreal’s First

and Fourth Amendment claims on qualified immunity grounds. The district

court also erred in dismissing her Fourteenth Amendment claim for failure

to state a claim. We reverse in part and affirm in part and remand for further

proceedings.

I.

For purposes of this appeal, we accept the factual allegations stated in

Villarreal’s complaint as true. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

A.

Priscilla Villarreal is a journalist in Laredo, Texas. She regularly

reports on local crime, missing persons, community events, traffic, and local

government. But Villarreal is not a traditional journalist. Instead of

publishing her stories in the newspaper, she posts them on her Facebook

page. Instead of using a tape recorder to conduct interviews, she uses her cell

phone to live-stream video footage of crime scenes and traffic accidents. Her

reporting frequently includes colorful—and often unfiltered—commentary.

Perhaps because of this, she is one of Laredo’s most popular news sources,

with more than 120,000 Facebook followers. See, e.g., Simon Romero, La

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Gordiloca: The Swearing Muckraker Upending Border Journalism, N.Y.

Times (Mar. 10, 2019), https://www.nytimes.com/2019/03/10/us

/gordiloca-laredo-priscilla-villarreal.html (“[Villarreal] is arguably the most

influential journalist in Laredo, a border city of 260,000.”).

Villarreal is not shy about criticizing law enforcement. For example,

in 2015, law enforcement uncovered evidence of animal abuse on the

property of a relative of Marisela Jacaman, Webb County’s Chief Assistant

District Attorney. Villarreal vocally denounced the district attorney’s

decision to recall the arrest warrant for Jacaman’s relative on animal cruelty

charges and instead pursue a civil settlement. On another occasion, Villarreal

live-streamed Laredo Police Department (LPD) officers choking an arrestee

during a traffic stop.

Not surprisingly, local law enforcement officials were less than

enthused with Villarreal’s reporting. During a meeting with Villarreal, Webb

County District Attorney Isidro Alaniz told her that he did not appreciate her

criticism of the decision to withdraw the arrest warrant for Chief Assistant

District Attorney Jacaman’s relative. On another occasion, an officer

threatened to take Villarreal’s cell phone when she was recording a crime

scene from behind a barricade—while saying nothing to the other members

of the media standing next to her.

B.

In April 2017, Villarreal published a story about a man who committed

suicide. The story identified the man by name and revealed that he was an

agent with the U.S. Border Patrol. Villarreal first uncovered this information

from talking to a janitor who worked near the scene of the suicide. She then

contacted LPD Officer Barbara Goodman, who confirmed the man’s

identity.

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The following month, Villarreal published the last name of a family

involved in a fatal car accident in Laredo. She first learned the family’s

identity from a relative of the family who saw a video that Villarreal had

posted. Again, Villarreal contacted Officer Goodman, and again, the officer

verified this information.

Six months later, two arrest warrants were issued for Villarreal for

violating Texas Penal Code § 39.06(c). According to Villarreal, local officials

have never brought a prosecution under § 39.06(c) in the nearly three-decade

history of that provision—and Defendants do not contend otherwise.

Section 39.06(c) states that “[a] person commits an offense if, with

intent to obtain a benefit . . . , he solicits or receives from a public servant

information that: (1) the public servant has access to by means of his office or

employment; and (2) has not been made public.” Tex. Penal Code

§ 39.06(c). According to the affidavit in support of the arrest warrants,

Villarreal solicited or received the names of the suicide victim and the traffic

accident victims (which, according to the affidavit, was “nonpublic”

information). The affidavit further alleged that Villarreal benefitted from

publishing this information before other news outlets, by gaining additional

followers on her Facebook page. Chief Assistant District Attorney Jacaman

approved the arrest warrant application.

After learning about the warrant, Villarreal turned herself in. During

the booking process, Villarreal saw LPD officers taking pictures of her in

handcuffs with their cell phones. The officers mocked and laughed at her.

Villarreal was then detained at the Webb County Jail.

Villarreal filed a petition for a writ of habeas corpus in the Webb

County district court. In March 2018, a judge granted her petition and held

that § 39.06(c) was unconstitutionally vague. The government did not

appeal.

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She subsequently brought suit under 42 U.S.C. § 1983 against various

LPD officers, Webb County prosecutors, Webb County, and the City of

Laredo. The suit alleged a pattern of harassment and retaliation by various

local officials, culminating in her arrest, in violation of her First, Fourth, and

Fourteenth Amendment rights. She sought damages as well as injunctive and

declaratory relief.

Defendants moved to dismiss all of her claims under Federal Rule of

Civil Procedure 12(b)(6). The officials sought dismissal on grounds of

qualified immunity and failure to state a claim, and the county and city sought

dismissal under Monell. The district court granted the motion and dismissed

all claims accordingly.

Villarreal appeals the dismissal of her claims against the officials under

the First, Fourth, and Fourteenth Amendments. She also appeals the

dismissal of her municipal liability claims against the City of Laredo, but not

her claims against Webb County.

We review de novo a district court’s dismissal under Federal Rule of

Civil Procedure 12(b)(6). Sw. Bell Tel., LP v. City of Houston, 529 F.3d 257,

260 (5th Cir. 2008). To survive a Rule 12(b)(6) motion to dismiss, Villarreal

must plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). With respect to

the defense of qualified immunity, Villarreal must plead specific facts that

defeat that defense with equal specificity. Backe v. LeBlanc, 691 F.3d 645, 648

(5th Cir. 2012).

II.

Villarreal alleges that Defendants violated her First Amendment

rights in two ways—first, by infringing on her constitutional right to ask

questions of public officials, and second, by arresting her in retaliation for her

exercise of First Amendment rights. We address each in turn.

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A.

The district court dismissed her First Amendment infringement claim

against various officials on qualified immunity grounds, finding that any

violation was not clearly established at the time. We disagree.

To defeat qualified immunity at the motion to dismiss stage, Villarreal

must allege, first, that the officials violated her First Amendment rights, and

second, that their actions were objectively unreasonable in light of clearly

established law. See, e.g., Powers v. Northside Indep. Sch. Dist., 951 F.3d 298,

305–06 (5th Cir. 2020). The crucial question in this inquiry is whether “a

reasonable official would understand that what he is doing violates [a

constitutional] right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

“The central concept is that of ‘fair warning.’” Kinney v. Weaver, 367 F.3d

337, 350 (5th Cir. 2004) (en banc) (quoting Hope v. Pelzer, 536 U.S. 730, 740

(2002)).

Ordinarily, a plaintiff defeats qualified immunity by citing governing

case law finding a violation under factually similar circumstances. But that is

not the only way to defeat qualified immunity. “Although earlier cases

involving ‘fundamentally similar’ facts can provide especially strong support

for a conclusion that the law is clearly established, they are not necessary to

such a finding.” Hope, 536 U.S. at 741.

“[O]fficials can still be on notice that their conduct violates

established law even in novel factual circumstances.” Id. “‘[A] general

constitutional rule already identified in the decisional 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.’” Id. (second

alteration in original) (quoting Anderson, 483 U.S. at 640).

In Hope, prison guards handcuffed a prisoner to a hitching post for

seven hours in the sun with little water. Id. at 734–35. They taunted him

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about his thirst, giving water to some dogs, before bringing the water cooler

closer to the prisoner and kicking the cooler over, spilling the water onto the

ground. Id. at 735. The guards also refused to allow him to use a restroom.

Id.

The Court acknowledged that there was no “materially similar” case

finding an Eighth Amendment violation under those particular

circumstances. Id. at 739–41. But the Court denied qualified immunity

anyway, based on “[t]he obvious cruelty inherent” in the guards’ conduct.

Id. at 745.

Similarly, in Taylor v. Riojas, 141 S. Ct. 52 (2020) (per curiam), two

prison cells contained massive amounts of feces over a period of six days. Id.

at 53. Again, there was no binding case on point involving those particular

factual circumstances. But the Court nevertheless denied qualified

immunity, reasoning that “no reasonable correctional officer could have

concluded that, under the extreme circumstances of this case, it was

constitutionally permissible to house Taylor in such deplorably unsanitary

conditions for such an extended period of time.” Id.

Perhaps the decision most analogous to this appeal is Sause v. Bauer,

138 S. Ct. 2561 (2018) (per curiam). There, police officers entered a

woman’s living room in response to a noise complaint. When she knelt down

to pray, they ordered her to stop, despite the lack of any apparent law

enforcement need. Id. at 2562. She brought suit against the officers alleging,

inter alia, a violation of the Free Exercise Clause. Id. The Tenth Circuit

granted qualified immunity, reasoning that any violation was not clearly

established because “Sause d[id]n’t identify a single case in which this court,

or any other court for that matter, has found a First Amendment violation

based on a factual scenario even remotely resembling the one we encounter

here.” Sause v. Bauer, 859 F.3d 1270, 1275 (10th Cir. 2017).

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The Court reversed the Tenth Circuit’s grant of qualified immunity

and remanded for further proceedings, holding that “[t]here can be no doubt

that the First Amendment protects the right to pray,” and that “[p]rayer

unquestionably constitutes the ‘exercise’ of religion.” Sause, 138 S. Ct. at

2562.

The point is this: The doctrine of qualified immunity does not always

require the plaintiff to cite binding case law involving identical facts. An

official who commits a patently “obvious” violation of the Constitution is

not entitled to qualified immunity. Hope, 536 U.S. at 745.

That principle should have precluded dismissal of the various

constitutional claims presented here. Just as it is obvious that Mary Anne

Sause has a constitutional right to pray, it is likewise obvious that Priscilla

Villarreal has a constitutional right to ask questions of public officials. Yet

according to her complaint, Defendants arrested and sought to prosecute

Villarreal for doing precisely that—asking questions of public officials.

If the freedom of speech secured by the First Amendment includes

the right to curse at a public official, then it surely includes the right to

politely ask that official a few questions as well. See, e.g., Chaplinsky v. New

Hampshire, 315 U.S. 568, 569 (1942) (“‘You are a God damned racketeer’

and ‘a damned Fascist’”); Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir.

1997) (“In 1990 when [the defendant] was arrested for his use of the ‘f-

word,’ it was clearly established that speech is entitled to First Amendment

protection.”); Buffkins v. City of Omaha, 922 F.2d 465, 467 (8th Cir. 1990)

(“I will have a nice day, asshole.”).

If freedom of the press guarantees the right to publish information

from the government, then it surely guarantees the right to ask the

government for that information in the first place. See, e.g., In re Express-News

Corp., 695 F.2d 807, 808 (5th Cir. 1982) (“news-gathering is entitled to

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[F]irst [A]mendment protection, for ‘without some protection for seeking

out the news, freedom of the press could be eviscerated’”) (quoting

Branzburg v. Hayes, 408 U.S. 665, 681 (1972)); The Florida Star v. B.J.F., 491

U.S. 524, 538 (1989) (“That appellant gained access to the information in

question through a government news release makes it especially likely that, if

liability were to be imposed, self-censorship would result.”).

Put simply: If the government cannot punish someone for publishing

the Pentagon Papers, how can it punish someone for simply asking for them?

See New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).

Finally, if the First Amendment safeguards the right to petition the

government for a redress of grievances, then it surely safeguards the right to

petition the government for information. As one of our colleagues once

noted, “[t]he original design of the First Amendment petition clause . . .

included a governmental duty to consider petitioners’ grievances”—not the

right to detain the petitioner. Stephen A. Higginson, Note, A Short History

of the Right to Petition Government for the Redress of Grievances, 96 Yale L.J.

142, 142–43 (1986).

So it should be patently obvious to any reasonable police officer that

the conduct alleged in the complaint constitutes a blatant violation of

Villarreal’s constitutional rights. And that should be enough to defeat

qualified immunity. The Institute for Justice, a respected national public

interest law firm, puts the point well in its amicus brief: There is a big

difference between “split-second decisions” by police officers and

“premeditated plans to arrest a person for her journalism, especially by local

officials who have a history of targeting her because of her journalism.” We

agree that the facts alleged here present an especially weak basis for invoking

qualified immunity. For “[w]hen it comes to the First Amendment, . . . we

are concerned about government chilling the citizen—not the other way

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around.” Horvath v. City of Leander, 946 F.3d 787, 802 (5th Cir. 2020) (Ho,

J., concurring in the judgment in part and dissenting in part). Cf. Hoggard v.

Rhodes, 141 S. Ct. 2421, 2422 (2021) (Thomas, J., respecting denial of cert.)

(“But why should university officers, 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?”).

Defendants respond that the officials were simply enforcing a statute.

But “some statutes are so obviously unconstitutional that we will require

officials to second-guess the legislature and refuse to enforce an

unconstitutional statute—or face a suit for damages if they don’t.” Lawrence

v. Reed, 406 F.3d 1224, 1233 (10th Cir. 2005). We agree with Judge

McConnell and our other sister circuits that police officers can invoke

qualified immunity by “rely[ing] on statutes that authorize their conduct—

but not if the statute is obviously unconstitutional.” Id. at 1232. We do not

grant qualified immunity where the official attempts to hide behind a statute

that is “‘so grossly and flagrantly unconstitutional that any person of

reasonable prudence would be bound to see its flaws.’” Carey v. Nevada

Gaming Control Bd., 279 F.3d 873, 881 (9th Cir. 2002) (quoting Michigan v.

DeFillippo, 443 U.S. 31, 38 (1979)). See also, e.g., Guillemard-Ginorio v.

Contreras-Gómez, 490 F.3d 31, 40–41 (1st Cir. 2007) (denying qualified

immunity where statute allowed officials to suspend a professional license

without a hearing in violation of the Due Process Clause); Leonard v.

Robinson, 477 F.3d 347, 359, 361 (6th Cir. 2007) (denying qualified immunity

where statute criminalized cursing by the name of God and indecent language

in front of women or children); Lawrence, 406 F.3d at 1233 (denying qualified

immunity where derelict vehicle ordinance provided “no hearing

whatsoever” because that was a “sufficiently obvious” violation of due

process); Vives v. City of New York, 405 F.3d 115, 118 (2nd Cir. 2005) (no

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qualified immunity where official relies on a law “so grossly and flagrantly

unconstitutional that any person of reasonable prudence would be bound to

see its flaws”) (quoting Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84,

103 (2nd Cir. 2003)); Lederman v. United States, 291 F.3d 36, 47 (D.C. Cir.

2002) (similar); Aubin v. Columbia Cas. Co., 272 F. Supp. 3d 828, 839 (M.D.

La. 2017) (“[N]o reasonable officer could rely on Louisiana’s public

intimidation statute to arrest a person who threatens to have them fired.”).

On its face, Texas Penal Code § 39.06(c) is not one of those

“obviously unconstitutional” statutes. Villarreal nevertheless prevails

because it is far from clear that the officers can even state a plausible case

against Villarreal under § 39.06(c) in the first place.

Section 39.06(c) only applies if Villarreal solicited or received non-

public information from a public servant “with intent to obtain a benefit.”

Tex. Penal Code § 39.06(c). And Texas law defines “benefit” to mean

“anything reasonably regarded as economic gain or advantage.” Tex.

Penal Code § 1.07(a)(7).

That is plainly not this case. Villarreal maintains that she acted not to

obtain economic gain, but to be a good journalist. Indeed, all she sought here

was “corroborating information” to confirm what she had already received

from other sources. So Villarreal wasn’t even soliciting information she did

not already have. She only wanted further confirmation before publication—

what a purely economically motivated actor wouldn’t need, but precisely

what a good journalist would require.

Moreover, Villarreal alleges in her complaint that she “does not

generate regular revenue or other economic gain from her citizen

journalism.” What’s more, according to her complaint, the arrest warrant

affidavits signed by the officers contained just one single theory of unlawful

“benefit” under § 39.06(c)—her alleged desire to gain “popularity [o]n

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Facebook” by reporting “the information before other news outlets.” But

by that token, soliciting confirmation from public officials only slowed

Villarreal down—the very opposite of the benefit alleged by the officers,

namely, the reporting of information “before other news outlets.”

Accepting these allegations as true as we must, we conclude that no

reasonable officer could have found probable cause under § 39.06(c)—

separate and apart from whether § 39.06(c) could constitutionally apply to a

person motivated by journalism rather than by profits. “At this stage, we do

not determine what actually is or is not true; we only ask whether

[Villarreal’s] plausible allegations state a claim.” Converse v. City of Kemah,

961 F.3d 771, 780 (5th Cir. 2020). Villarreal “has pleaded the violation of a

clearly established right.” Anderson v. Valdez, 845 F.3d 580, 602 (5th Cir.

2016). Nothing more is required at this stage to avoid dismissal. To the

extent Defendants dispute Villarreal’s version of the facts, they can present

their evidence on remand. See Joseph v. Bartlett, 981 F.3d 319, 330–31 (5th

Cir. 2020) (an “official can raise qualified immunity at any stage in the

litigation . . . and continue to raise it at each successive stage”).

***

It should be obvious to any reasonable police officer that locking up a

journalist for asking a question violates the First Amendment. Indeed, even

Captain Lorenzo, the stubborn police chief in Die Hard 2, acknowledged:

“Now personally, I’d like to lock every [expletive] reporter out of the airport.

But then they’d just pull that ‘freedom of speech’ [expletive] on us and the

ACLU would be all over us.” Die Hard 2 (1990).

Captain Lorenzo understood this. The officers in Laredo should have,

too. Cf. Dickerson v. United States, 530 U.S. 428, 443 (2000) (“Miranda has

become embedded in routine police practice to the point where the warnings

have become part of our national culture.”). The complaint here alleges an

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obvious violation of the First Amendment. The district court erred in

holding otherwise.

B.

Turning to Villarreal’s First Amendment retaliation theory: To

establish such a claim, she “must show that (1) [she] w[as] engaged in

constitutionally protected activity, (2) the defendants’ actions caused [her]

to suffer an injury that would chill a person of ordinary firmness from

continuing to engage in that activity, and (3) the defendants’ adverse actions

were substantially motivated against [her] exercise of constitutionally

protected conduct.” Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002)

(citations omitted).

Notwithstanding that the second element turns on “a person of

ordinary firmness,” this court has held that “a retaliation claim requires

some showing that the plaintiffs’ exercise of free speech has been curtailed.”

Id. at 259 (emphasis added) (citing cases). The court found that the plaintiffs

there demonstrated curtailment when they asserted that they “backed off

from direct involvement in helping expose unlawful practices in the

constable’s office.” Id. at 260. See also McLin v. Ard, 866 F.3d 682, 697 (5th

Cir. 2017) (holding that plaintiff’s “allegation of ‘great personal damage[]’

. . . d[id] not demonstrate that he reduced or changed his exercise of free

speech in any way.”).

Villarreal fails to allege that her own “exercise of free speech has been

curtailed.” Keenan, 290 F.3d at 259. She alleges that she lost sleep, suffered

reputational damage, became physically ill, was detained, and feared future

interference from officials. But these allegations do not show that Villarreal

curtailed her speech. To the contrary, as Defendants point out, Villarreal has

continued reporting since her arrest—consistent with the highest traditions

of fearless journalism.

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In response, Villarreal contends that “a chilling injury does not

require the injured party to stop exercising her First Amendment rights.”

That is the law in other circuits—and perhaps for good reason—but it is not

the law of this circuit. Compare Keenan, 290 F.3d at 259 (“[A] retaliation

claim requires some showing that the plaintiffs’ exercise of free speech has

been curtailed.”), with Smith v. Plati, 258 F.3d 1167, 1177 (10th Cir. 2001)

(“The focus . . . is upon whether a person of ordinary firmness would be chilled,

rather than whether the particular plaintiff is chilled.”), and Mendocino Env’t

Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999) (“[I]t would be

unjust to allow a defendant to escape liability for a First Amendment violation

merely because an unusually determined plaintiff persists in his protected

activity.”).

We are duty-bound to follow our circuit precedent. Accordingly, we

must hold that Villarreal has failed to sufficiently plead a First Amendment

retaliation claim. 1

***

Although Villarreal has not pleaded an actionable First Amendment

retaliation claim under the standards set forth in our circuit precedent, she

has articulated a viable First Amendment theory based on the officers’

infringement of her constitutional right to ask questions of public officials.

The district court accordingly erred in dismissing her First Amendment

claim.

1

Villarreal also brings a retaliatory investigation claim. But this circuit does not

recognize such a claim. See Colson v. Grohman, 174 F.3d 498, 512 (5th Cir. 1999) (“[The

plaintiff] has alleged only that she was the victim of criticism, an investigation (or an attempt

to start one), and false accusations: all harms that, while they may chill speech, are not

actionable under our First Amendment retaliation jurisprudence.”) (emphasis added).

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Villarreal seeks not only damages but also injunctive and declaratory

relief for her First Amendment claim. We agree with the district court that

she fails to allege a risk of future injury as required to establish standing for

injunctive and declaratory relief. To the contrary, Defendants have not

appealed the grant of Villarreal’s petition for a writ of habeas corpus by the

Webb County district court. Nor have they sought to arrest or investigate

her in the two years since that ruling.

III.

We turn to Villarreal’s Fourth Amendment wrongful arrest claim. To

prevail on this claim, Villarreal must show that she was seized and that the

seizure was unreasonable because it lacked probable cause. See, e.g., Brown

v. Lyford, 243 F.3d 185, 189 (5th Cir. 2001) (“The ‘constitutional tort[ ]’ of

false arrest . . . require[s] a showing of no probable cause.”). Defendants do

not dispute that Villarreal’s surrender in response to the arrest warrants was

a seizure. See McLin, 866 F.3d at 694 (“McLin’s seizure occurred when he

surrendered to the arrest warrants and [the sheriff’s office] exercised

authority consistent with the warrants.”).

“Probable cause exists when all of the facts known by a police officer

‘are sufficient for a reasonable person to conclude that the suspect had

committed, or was in the process of committing, an offense.’” Texas v.

Kleinert, 855 F.3d 305, 316 (5th Cir. 2017) (quoting United States v. Castro,

166 F.3d 728, 733 (5th Cir. 1999) (en banc)). Defendants argue they are

entitled to qualified immunity because their arrest warrant sufficiently alleges

a violation of § 39.06(c), which they obtained from a magistrate judge.

But “the fact that a neutral magistrate has issued a warrant

authorizing the allegedly unconstitutional search or seizure does not end the

inquiry into objective reasonableness.” Messerschmidt v. Millender, 565 U.S.

535, 547 (2012). Even when officers obtain an arrest warrant from a

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magistrate, we ask “whether a reasonably well-trained officer in [the

defendants’] position would have known that his affidavit failed to establish

probable cause and that he should not have applied for a warrant.” Jennings

v. Joshua Indep. Sch. Dist., 877 F.2d 313, 317 (5th Cir. 1989) (quoting Malley

v. Briggs, 475 U.S. 335, 345 (1986)). “Defendants will not be immune if, on

an objective basis, it is obvious that no reasonably competent officer would

have concluded that a warrant should issue.” Malley, 475 U.S. at 341.

As explained above, a reasonably well-trained officer would have

understood that arresting a journalist for merely asking a question clearly

violates the First Amendment. “A government official may not base her

probable cause determination on an ‘unjustifiable standard,’ such as speech

protected by the First Amendment.” Mink v. Knox, 613 F.3d 995, 1003–04

(10th Cir. 2010) (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)).

See also Swiecicki v. Delgado, 463 F.3d 489, 498 (6th Cir. 2006) (“[A]n officer

may not base his probable-cause determination on speech protected by the

First Amendment.”). And no reasonable officer could have found probable

cause under § 39.06(c) in any event, for the reasons we explained above.

Just as the First Amendment violation alleged in the complaint was

obvious for purposes of qualified immunity, so too the Fourth Amendment

violation alleged here. The district court therefore erred in dismissing

Villarreal’s Fourth Amendment claim.

IV.

Next, we address Villarreal’s selective enforcement claim under the

Equal Protection Clause of the Fourteenth Amendment. “[T]o successfully

bring a selective . . . enforcement claim, a plaintiff must prove that the

government official’s acts were motivated by improper considerations, such

as race, religion, or the desire to prevent the exercise of a constitutional

right.” Bryan v. City of Madison, 213 F.3d 267, 277 (5th Cir. 2000).

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“[R]etaliation for an attempt to exercise one’s religion or right to free speech

would be expected to qualify.” Id. at 277 n.5.

“As a prerequisite to such a claim, the plaintiff must prove that

similarly situated individuals were treated differently.” Id. at 276 (citing

Wheeler v. Miller, 168 F.3d 241, 252 (5th Cir. 1999)). The district court here

dismissed Villarreal’s selective enforcement claim for failure to identify

similarly situated individuals that could have been arrested, but were not. So

we begin our analysis there.

Defining the universe of similarly situated individuals is a “case

specific” inquiry—one that “requires us to consider ‘the full variety of

factors that an objectively reasonable . . . decisionmaker would have found

relevant in making the challenged decision.’” Lindquist v. City of Pasadena,

669 F.3d 225, 234 (5th Cir. 2012) (alteration in original) (quoting Griffin

Indus., Inc. v. Irvin, 496 F.3d 1189, 1203 (11th Cir. 2007)). In Lindquist, we

explained that, when a case “involves the application of an ordinance or

statute, the plaintiff’s and comparators’ relationships with the ordinance at

issue will generally be a relevant characteristic for purposes of the similarly-

situated analysis.” 669 F.3d at 234. So, for example, in Beeler v. Rounsavall,

328 F.3d 813 (5th Cir. 2003), a store alleged that it was treated differently

than another store located nearby. Id. at 816. The court held that “the

relevant question [was] whether the two stores were similarly situated under

[the relevant provision of] the Code,” not whether they were geographically

proximate. Id. at 817.

Under Defendants’ interpretation of § 39.06(c), any journalist who

asks a public official a question regarding nonpublic information commits a

crime. Villarreal’s complaint sufficiently alleges that countless journalists

have asked LPD officers all kinds of questions about nonpublic information.

Yet they were never arrested.

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Specifically, she alleges a similarly situated group that includes: “(a)

those who had asked for or received information from local law enforcement

officials, and (b) persons who published truthful and publicly-accessible

information on a newsworthy matter.” She points to “local professional

newspaper journalists, local professional broadcast journalists, and citizens

who published on matters of local public concern.” She further alleges that

Defendants “also knew that members of the local media regularly asked for

and received information from LPD officials relating to crime scenes and

investigations, traffic accidents, and other LPD matters.” Finally, Villarreal

alleges, and Defendants concede, that LPD had never before arrested any

person under § 39.06(c).

It is true that Villarreal did not name a specific journalist who solicited

or received nonpublic information from the LPD in her complaint. When

evaluating whether Villarreal survives a motion to dismiss under Rule

12(b)(6), however, we must draw all reasonable inferences in favor of

Villarreal. See, e.g., Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005)

(“The complaint must be liberally construed, with all reasonable inferences

drawn in the light most favorable to the plaintiff.”).

We have no difficulty observing that journalists commonly ask for

nonpublic information from public officials, and that Villarreal was therefore

entitled to make that same reasonable inference. Yet Defendants chose to

arrest Villarreal—and only Villarreal—for violating § 39.06(c). We

accordingly conclude that Villarreal has sufficiently pled the existence of

similarly situated journalists who were not arrested for violating § 39.06(c).

The district court reached the opposite conclusion, holding that

Villarreal “fail[ed] to allege any facts indicating that Defendants failed to

enforce § 39.06(c) against any other person where a similar situation

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existed.” The court offered various rationales to justify its conclusion. None

of them are plausible.

First, the district court reiterated that the officers had “probable cause

to arrest [her],” because they had “objectively reasonable grounds to find

probable cause that [Villarreal] violated § 39.06(c).” But probable cause is

not a bar to a selective enforcement claim. “The courts have long held that

a selective enforcement claim may be available even where there is probable

cause for prosecution.” Stemler v. City of Florence, 126 F.3d 856, 872 (6th

Cir. 1997) (citing Wayte, 470 U.S. at 607; Oyler v. Boles, 368 U.S. 448, 455–

56 (1962)). See also Bradley v. United States, 299 F.3d 197, 205 (3rd Cir. 2002)

(“The fact that there was no Fourth Amendment violation does not mean

that one was not discriminatorily selected for a search.”).

Second, the district court found that local journalists were not

similarly situated to Villarreal because she was arrested for communicating

with Officer Goodman—and not with Jose Beza, LPD’s official spokesman.

The district court reasoned that local journalists are similarly situated to

Villarreal only if they too “solicited or received information from

Goodman”—or at least from “some other unofficial or unsanctioned source

of information within the police department”—but not if they solicited

information from LPD’s designated spokesman. But of course, LPD has

never claimed that it has a policy of arresting every journalist who asks

questions about nonpublic information from LPD officials other than the

department’s designated spokesmen. Nor is there anything in § 39.06(c) to

justify such a distinction.

Finally, the district court found that Villarreal’s allegations could not

establish a discriminatory effect because “it would be equally plausible to

infer that Defendants had never before encountered circumstances giving

rise to potential prosecution under the statute.” That is implausible on its

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face. Defendants’ interpretation of § 39.06(c) criminalizes routine reporting.

It is not “equally plausible” that the only journalist to ever ask questions of

Laredo public officials was Villarreal.

The district court accordingly erred in dismissing Villarreal’s

selective enforcement claim for failure to identify similarly situated

individuals. We of course make no comment on whether Villarreal will

ultimately prevail on her selective enforcement claim—that is for the district

court to decide in the first instance on remand.

V.

As for Villarreal’s remaining claims: She also brings a claim for

conspiracy to violate her constitutional rights under § 1983. Given our

conclusion that the district court erred in dismissing her First, Fourth, and

Fourteenth Amendment claims, we remand her conspiracy claim as well.

Finally, we address Villarreal’s municipal liability claim against the

City of Laredo. “[M]unicipal liability under section 1983 requires proof of

three elements: a policymaker; an official policy [or custom]; and a violation

of constitutional rights whose ‘moving force’ is th[at] policy or custom.”

Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (quoting

Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978)). The district court

held that Villarreal failed to identify an official policy or custom made by a

final policymaker. We agree. Although Villarreal repeatedly refers to an

“official city policy or custom” of retaliating against her for her reporting,

she fails to sufficiently allege either. Villarreal does not point to any

ordinance, statute, statement, or regulation directing city employees to

retaliate against her. See Doe v. United States, 831 F.3d 309, 318 (5th Cir.

2016) (noting that “[a]n official policy is usually evidenced by ‘duly

promulgated policy statements, ordinances or regulations’”) (quoting

Piotrowski, 237 F.3d at 579). Nor does Villarreal sufficiently allege a

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“custom.” Although she alleges “a persistent and widespread practice of

City officials and employees engaging in retaliatory acts against [her],” such

a “persistent, widespread practice” must be “so common and well settled as

to constitute a custom that fairly represents municipal policy.” Webster v.

City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc). Villarreal does

not allege that city employees retaliated against, investigated, or arrested

anyone else because of their speech. See Culbertson v. Lykos, 790 F.3d 608,

628 (5th Cir. 2015) (holding that the plaintiffs failed to allege a “widespread

practice” of retaliation because they “offered no evidence that similar

retaliation had victimized others.”). We affirm the district court’s judgment

dismissing Villarreal’s municipal liability claim against the City of Laredo. 2

***

It is not a crime to be a journalist. As the Institute for Justice rightly

observes, the position urged by the City of Laredo in this case is “dangerous

to a free society,” for “[i]t assumes that the government can choose proper

and improper channels for newsgathering—indeed, that the government can

decide what is and is not newsworthy.” See also Jobe v. Nat’l Transp. Safety

Bd., 1 F.4th 396, 410 (5th Cir. 2021) (Ho, J., dissenting) (“Open government

is a founding principle of our country.”).

We reverse the judgment of the district court dismissing Villarreal’s

First, Fourth, and Fourteenth Amendments claims, as well as her civil

conspiracy claims. We affirm the district court’s judgment dismissing

Villarreal’s municipal liability claims against the City of Laredo. We remand

the case for further proceedings consistent with this opinion.

2

Villarreal also appeals the district court’s denial of her request for a declaratory

judgment on her claim against the City of Laredo. Because she fails to establish municipal

liability, she is not entitled to a declaratory judgment.

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James C. Ho, Circuit Judge, concurring:

If any principle of constitutional law ought to unite all of us as

Americans, it’s that government has no business telling citizens what views

they may not hold, and what questions they may not ask. “If there is any

fixed star in our constitutional constellation, it is that no official . . . can

prescribe what shall be orthodox in politics, nationalism, religion, or other

matters of opinion or force citizens to confess by word or act their faith

therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

But this principle does not appear to even unite the judiciary, never

mind the citizenry at large. See, e.g., Dr. A. v. Hochul, 595 U.S. _, _, (2021)

(Gorsuch, J., dissenting from the denial of application for injunctive relief)

(Barnette ranks “among our Nation’s proudest boasts,” but as “today’s case

shows, however, sometimes our promises outrun our actions”); Oliver v.

Arnold, 19 F.4th 843, 852 n.7 (5th Cir. 2021) (Ho, J., concurring in denial of

rehearing en banc) (noting disagreement over whether Barnette is a

sufficiently “fixed star” to overcome qualified immunity).

Our split decision today further illustrates this unfortunate trend. I

write separately to offer a few additional thoughts in light of the dissenting

opinion by our learned colleague.

I.

Assuming, as we must at this stage, that the allegations presented in

this case are true, a group of police officers arrested Priscilla Villarreal for no

other reason than that she asked questions they didn’t like. They didn’t like

that, as a citizen journalist, she reported on corruption and abuse in local law

enforcement.

So they jailed her. They took pictures of her in handcuffs with their

cell phones. And they mocked and laughed at her while they did it.

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The dissent responds that the police officers were just dutifully

enforcing a Texas statute. See Tex. Penal Code § 39.06(c).

But no statute may be enforced that violates the Constitution.

Likewise, no officer of the law may hide behind an obviously unconstitutional

statute to justify trampling on a citizen’s fundamental liberties.

As our sister circuits have repeatedly recognized, “some statutes are

so obviously unconstitutional that we will require officials to second-guess

the legislature and refuse to enforce an unconstitutional statute—or face a

suit for damages if they don’t.” Lawrence v. Reed, 406 F.3d 1224, 1233 (10th

Cir. 2005). We don’t grant qualified immunity when an officer claims his

misconduct is authorized by a law “‘so grossly and flagrantly

unconstitutional that any person of reasonable prudence would be bound to

see its flaws.’” Carey v. Nevada Gaming Control Bd., 279 F.3d 873, 881 (9th

Cir. 2002) (quoting Michigan v. DeFillippo, 443 U.S. 31, 38 (1979)).

To its credit, the dissent does not dispute this principle. And for good

reason. Surely none of us would excuse a police officer for enforcing a statute

that blatantly discriminated on the basis of race. By the same token, we

wouldn’t excuse an officer for enforcing a statute that blatantly violated other

constitutional rights, either. 1

1

See, e.g., Guillemard-Ginorio v. Contreras-Gómez, 490 F.3d 31, 40–41 (1st Cir.

2007) (denying qualified immunity where statute allowed officials to suspend a professional

license without a hearing in violation of the Due Process Clause); Leonard v. Robinson, 477

F.3d 347, 359, 361 (6th Cir. 2007) (denying qualified immunity where statute criminalized

cursing by the name of God and indecent language in front of women or children);

Lawrence, 406 F.3d at 1233 (denying qualified immunity where derelict vehicle ordinance

provided “no hearing whatsoever” because that was a “sufficiently obvious” violation of

due process); Vives v. City of New York, 405 F.3d 115, 118 (2nd Cir. 2005) (no qualified

immunity where official relies on a law “so grossly and flagrantly unconstitutional that any

person of reasonable prudence would be bound to see its flaws”) (quoting Connecticut ex

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II.

Moreover, there’s an even simpler principle that we can invoke to

decide this case. Rather than treat § 39.06 as obviously unconstitutional, we

can construe it to avoid unconstitutionality altogether.

In fact, that’s what we’re duty bound to do. Under the canon of

constitutional avoidance, courts must construe statutes reasonably to avoid

unconstitutionality. See, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) (discussing “the

elementary rule” that “every reasonable construction must be resorted to, in

order to save a statute from unconstitutionality”) (cleaned up).

And that’s precisely what the majority does here. As the majority

explains, § 39.06(c) applies only when a person solicits or receives non-public

information from a public servant “with intent to obtain a benefit.” Tex.

Penal Code § 39.06(c). Texas law defines “benefit” to mean “anything

reasonably regarded as economic gain or advantage.” Tex. Penal Code

§ 1.07(a)(7). And there’s no need to construe these provisions to apply here.

It isn’t difficult to come up with plausible interpretations of § 39.06(c)

that pass constitutional muster. For example, imagine a citizen who tries to

obtain non-public information from a public official about a confidential

investigation into a major company, with the intent of turning a profit by

selling that company’s stock short once the investigation becomes public. A

state might very well enact a statute like § 39.06(c) to stop that citizen. And

nothing in the First Amendment prevents the state from doing so.

rel. Blumenthal v. Crotty, 346 F.3d 84, 103 (2nd Cir. 2003)); Lederman v. United States, 291

F.3d 36, 47 (D.C. Cir. 2002) (similar); Aubin v. Columbia Cas. Co., 272 F. Supp. 3d 828,

839 (M.D. La. 2017) (“[N]o reasonable officer could rely on Louisiana’s public

intimidation statute to arrest a person who threatens to have them fired.”).

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That’s a far cry from this case. As the majority explains, “Villarreal

maintains that she acted not to obtain economic gain, but to be a good

journalist.” Ante, at 11.

The dissent responds by claiming that Villarreal acted with the intent

to obtain economic gain. For example, Villarreal “sometimes enjoys a free

meal from appreciative readers.” Post, at 33. It’s not clear why the dissent

finds those free meals fatal. Other journalists are paid full salaries by their

media outlets. And they talk to government sources about non-public

information, too. Should they be arrested, too? Surely not.

Yet that’s precisely (if alarmingly) what the dissent seems to have in

mind. To quote the dissent, “the statute does not exclude journalists.” Post,

at 32. “The Texas Penal Code defines ‘benefit’ as ‘anything reasonably

regarded as economic gain or advantage.’” Id. (cleaned up). And

“[j]ournalists generally gather information ‘with intent to benefit’, for

example, to sell newspapers or magazines, or to attract viewers on television,

computer, iPad or smart-phone screens.” Id.

In sum, it is a crime to be a journalist in Texas, thanks to the dissent’s

reading of § 39.06(c).

There are a number of flaws with the dissent’s approach. But perhaps

the simplest is this: Even if we were to set aside the canon of constitutional

avoidance and accept the dissent’s theory of interpretation of § 39.06(c), the

result is an obvious violation of the First Amendment.

If a statute can’t be reasonably construed to avoid a constitutional

violation, that just means there’s no avoiding the constitutional violation.

III.

Finally, the dissent makes some additional points that warrant a brief

response.

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1. The dissent claims that this concurring opinion “directly

conflicts with the majority opinion’s holding.” Post, at 35.

I don’t see how. There are two separate and independently

compelling reasons why reversal is warranted. And they’re entirely

compatible with one another. First, § 39.06(c) can and should be construed

not to prohibit Villarreal’s acts as a journalist. Second, if that’s wrong, and

the statute does in fact criminalize Villarreal’s acts as a journalist, then §

39.06(c) is obviously unconstitutional.

These are alternative holdings, not contradictory ones. The majority

expressly adopts the former holding. So does the concurrence. The

concurrence simply provides an additional, second holding, in hopes of

offering a coherent and complete intellectual response to the dissent.

2. The dissent contends that our holding today “shreds the

independent intermediary doctrine.” Post, at 36. In essence, the dissent says

that a magistrate issued a warrant, so the officers were entitled to rely on it.

But that’s not how the doctrine works. As the majority already

explains (ante, at 15–16), “the fact that a neutral magistrate has issued a

warrant authorizing the allegedly unconstitutional search or seizure does not

end the inquiry into objective reasonableness.” Messerschmidt v. Millender,

565 U.S. 535, 547 (2012). We deny qualified immunity if “it is obvious that

no reasonably competent officer would have concluded that a warrant should

issue.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

Similarly, the dissent argues that, just as we can’t question the officers

because a magistrate issued a warrant, we likewise can’t question the officers

because a federal district court granted them qualified immunity. To quote

the dissent, “[w]hat does [our majority opinion] say about . . . the United

States Magistrate Judge . . . who decided the motion to dismiss on its merits

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and concluded that the defendants had reason to find probable cause to arrest

Villarreal under the Texas statute?” Post, at 31.

My answer is simple: It says that the federal magistrate judge got it

wrong. So we reverse.

If I understand the dissent’s theory, however, it’s that it’s just too

insulting for us to deny qualified immunity, when a fellow member of the

federal judiciary has already voted to grant such immunity. But that would

mean that, if one member of the judiciary would grant qualified immunity,

the rest of us have no choice but to go along. That can’t be right. That not

only misunderstands qualified immunity—it’s an alarming theory of our role

under the Constitution.

Finally, the dissent asserts that “[i]t is asking a lot of law enforcement

officers to know about and then apply the doctrine of constitutional

avoidance.” Post, at 43.

I profoundly disagree. We don’t just ask—we require—every

member of law enforcement to avoid violations of our Constitution. As well

we should, given the considerable coercive powers that we vest in police

officers. See Aucoin v. Cupil, 958 F.3d 379, 380 (5th Cir. 2020) (“Police

officers . . . sometimes must use physical force to enforce our laws and keep

people safe. But as with any use of government power, the law places

important limits on the use of such force.”). And when the violation is as

obvious as it is here, we don’t grant qualified immunity.

3. Lastly, the dissent accuses the majority of “employ[ing] blunt

force rather than careful analysis,” by “cast[ing] aside every individual

defendant’s qualified immunity in connection with the Fourth and First

Amendment claims without regard to the role each was alleged to have

played.” Post, at 36.

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That overreads the majority opinion. The district court categorically

granted qualified immunity to all of the individual defendants, on the ground

that § 39.06(c) gives each defendant a complete defense to the various claims

presented in this case. The majority simply rejects that rationale, and

remands for further proceedings, as we typically do under these

circumstances.

It goes without saying, of course, that if individual defendants have

particular reasons why they should be entitled to qualified immunity,

including the reasons intimated by the dissent, they are welcome to present

those claims on remand.

***

The dissent’s interpretation and defense of § 39.06(c), if accepted,

would undoubtedly condemn countless other journalists besides Villarreal,

as the dissent fully acknowledges. See post, at 32. Yet local officials have never

brought a § 39.06(c) prosecution against any other individual in the nearly

three-decade history of that provision. See ante, at 4.

So make no mistake: There’s no way the police officers here would

have ever enforced § 39.06(c) against a citizen whose views they agreed with,

and whose questions they welcomed.

And that’s what disturbs me most about this case—the unabashedly

selective behavior of the law enforcement officials here.

It is the unfortunate reality of modern American life that more and

more citizens are increasingly unable or unwilling to live amicably with those

we disagree with. Rather than debate, we would destroy. Instead of engaging

opponents in the political arena, we expel them from economic and social life,

using every resource available to us. “Our society . . . once embraced the

quintessentially American maxim: ‘I disapprove of what you say, but I will

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defend to the death your right to say it.’ But our culture . . . increasingly

send[s] citizens . . . the opposite message: I disapprove of what you say, and

I will use every means at my disposal to stop you from saying it.” Oliver, 19

F.4th at 854 (Ho, J., concurring in denial of rehearing en banc).

In these already troubling times, this is an exceedingly troubling case.

It’s bad enough when private citizens mistreat others because of their

political views. It’s beyond the pale when law enforcement officials

weaponize the justice system to punish their political opponents. One is

terrible. But the other is totalitarian.

I’m grateful that the majority of our court will not stand for that here.

I just wish we were unanimous in this regard. I concur.

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Priscilla Richman, Chief Judge, concurring in part and dissenting in

part:

The district court faithfully applied the law in holding that the

defendants were entitled to qualified immunity and in granting a motion to

dismiss. I would affirm that court’s judgment across the board. Accordingly,

I concur only to the extent the panel’s majority opinion affirms the dismissal

of Priscilla Villareal’s First Amendment retaliation and municipal liability

claims. I otherwise dissent. The principal disagreements I have with the

majority opinion are that 1) it is likely to confuse the bench and the bar as to

when a First Amendment violation is “obvious” for purposes of qualified

immunity; 2) it misapplies the law in concluding that even though a

magistrate issued arrest warrants for Villareal, a reasonably well-trained law

enforcement officer should not have applied for the warrants because he

would have known that Villareal, whose Complaint describes herself as

having over 120,000 Facebook followers and recounts that the New York

Times has dubbed her as “arguably the most influential journalist in

Laredo,” 1 did not act “with intent to obtain a benefit” within the meaning of

a Texas criminal statute 2 when Villareal obtained and published nonpublic

information from a public servant about two fatalities that were then under

investigation; and 3) the majority opinion misapplies the law governing

selective enforcement claims brought under the Equal Protection Clause of

the Fourteenth Amendment.

The majority opinion trumpets, repeatedly, that “Priscilla Villareal

was put in jail for asking a police officer a question.” 3 One would think in

1

First Amended Complaint ¶ 3 at ROA.153.

2

Tex. Penal Code § 39.06(c) and (d).

3

Ante, at 2.

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reading the first ten pages of the opinion (in its slip opinion form) that none

of the defendants had any basis, whatsoever, for arresting Villareal—that

they arrested her solely because she “politely ask[ed] [a police officer] a few

questions.” 4 But in order to make the jarring assertions that it does, the

majority opinion has to conclude that no reasonably competent law

enforcement officer could objectively have had a basis for seeking to arrest

Villareal under Texas Penal Code § 39.06(c) and (d). That means the

opinion necessarily concludes that the action of the state magistrate in issuing

the arrest warrants “is not just a reasonable mistake, but an unacceptable

error indicating gross incompetence or neglect of duty.” 5 What does that say

about the decision of the United States Magistrate Judge, in this case Judge

John Kazen, who decided the motion to dismiss on its merits and

concluded that the defendants had reason to find probable cause to arrest

Villareal under the Texas statute? 6 Is the federal Magistrate Judge, and for

that matter the undersigned Circuit Judge, “grossly incompeten[t] or

neglect[ful] of duty”?

I do not suggest that each time a magistrate issues an arrest warrant

and a federal district court grants qualified immunity to a state actor based on

the independent intermediary doctrine, a court of appeals cannot have a

4

Ante, at 8.

5

Malley v. Briggs, 475 U.S. 335, 346 n.9 (1986).

6

See ROA.437 (holding “the Court is unable to find that no reasonable officer

would have believed Plaintiff intended to gain economically from the receipt of information

from [police officer] Goodman. Accordingly, the Court finds Plaintiff has not alleged

plausible facts to support an inference that no reasonable officer could have found probable

cause as to the benefit element of the statute.”); see also ROA.453 (concluding that

“Defendants had objectively reasonable grounds to find probable cause that Plaintiff

violated § 39.06(c)”).

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different view. 7 I ask a rhetorical question, intimating that in the present

case, there is room for reasonable disagreement, even among federal judges,

as to the application of Texas Penal Code § 39.06(c).

Pertinent here, section 39.06(c) provides that “[a] person commits an

offense if, with intent to obtain a benefit . . . he solicits or receives from a

public servant information that . . . the public servant has access to by means

of his office or employment . . . and has not been made public.” 8 Subsection

39.06(d) defines “information that has not been made public” to mean “any

information to which the public does not generally have access, and that is

prohibited from disclosure under Chapter 552, Government Code.” 9 There

are elements to the offense other than “asking a question.”

Without citing any case law whatsoever construing the Texas law at

issue, the majority opinion holds that every reasonably competent law

enforcement officer would have understood that a “benefit” as used in Texas

Penal Code § 39.06(c) does not include a “good journalist” 10 gathering

information. But the statute does not exclude journalists, “good” or

otherwise. The Texas Penal Code defines “[b]enefit” as “anything

reasonably regarded as economic gain or advantage, including benefit to any

other person in whose welfare the beneficiary is interested.” 11 Journalists

generally gather information “with intent to benefit”, for example, to sell

newspapers or magazines, or to attract viewers on television, computer, iPad

or smart-phone screens. No allegations in Villareal’s Complaint plausibly

7

See ante, at 26-27.

8

Tex. Penal Code § 39.06(c).

9

Id. § 39.06(d).

10

Ante, at 11.

11

Tex. Penal Code § 1.07(a)(7).

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allege that the defendants had reason to believe that Villareal, as a “citizen”

journalist, as opposed to some other variety of journalist, or as a uniquely

situated journalist, had no intent to obtain an economic gain or advantage.

To the contrary, Villareal’s Complaint alleges that the affidavits supporting

the arrest warrants asserted that “Villarreal’s release of the information

before other news outlets gained her popularity in Facebook.” 12 This is what

journalists, including “good” journalists, do. They often attempt to

“scoop” other news sources to increase readership or listeners. It would be

reasonable for a law enforcement officer to think that there was an economic

benefit to attracting readers or viewers. As a general proposition, it is

necessary to draw readers or viewers to sustain the journalistic undertaking.

In fact, Villareal’s Complaint says that she “sometimes enjoys a free meal

from appreciative readers, . . . occasionally receives fees for promoting a local

business [and] has used her Facebook page [where all of her reporting is

published] to ask for donations for new equipment necessary to continue her

citizen journalism efforts.” 13 With great respect, the majority opinion is off

base in holding that no reasonably competent officer could objectively have

thought that Villareal obtained information from her back-door source within

the Laredo Police Department with an “intent to benefit.”

Texas courts, including the Supreme Court of Texas, have held that

statutes defining “information that has not been made public,” 14 as used in

section 39.06, constitutionally shield certain categories of sensitive

12

First Amended Complaint ¶ 92 at ROA.171.

13

First Amended Complaint ¶ 35 at ROA.159.

14

See generally Tex. Gov’t Code ch. 52; id. §§ 552.001, 552.101, 552.108.

33

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information from public disclosure. 15 Villareal’s Complaint recounts that

after she was arrested, she sought a writ of habeas corpus, and a Texas state

trial court ruled orally from the bench that Texas Penal Code § 39.06 was

unconstitutionally vague. 16 That decision was not appealed. But none of the

defendants in the present case had the benefit of the state court’s ruling at

the time they sought warrants for Villareal’s arrest.

There are certainly valid questions as to whether Texas Penal Code

§ 39.06(c) would violate the Constitution if applied in certain scenarios.

However, we do not need to resolve and do not resolve those questions. Our

focus in this case is on qualified immunity, and the majority opinion correctly

holds that “[o]n its face, Texas Penal Code § 39.06(c) is not [an] ‘obviously

unconstitutional statute.’” 17 But at the same time, the opinion vociferously

and insistently declares that “[j]ust as it is obvious that Mary Anne Sause has

a constitutional right to pray [referring to Sause v. Bauer 18], it is likewise

obvious that Priscilla Villarreal has a constitutional right to ask questions of

public officials”19; “[i]f the freedom of speech secured by the First

Amendment includes the right to curse at a public official, then it surely

includes the right to politely ask that official a few questions” 20; “[i]t should

be obvious to any reasonable police officer that locking up a journalist for

15

See Houston Chronicle Publ’g Co. v. City of Houston, 536 S.W.2d 559 (Tex. 1976),

aff’g Houston Chronicle Publ’g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.—

Houston [1st] 1975).

16

First Amended Complaint ¶ 127 at ROA.179.

17

Ante, at 11.

18

__ U.S. __, 138 S. Ct. 2561 (2018).

19

Ante, at 8.

20

Ante, at 8 (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 569 (1942); Sandul

v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997); and Buffkins v. City of Omaha, 922 F.2d 465,

467 (8th Cir. 1990)).

34

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asking a question violates the First Amendment” 21; “[t]he complaint here

alleges an obvious violation of the First Amendment. The district court erred

in holding otherwise” 22; “[i]f freedom of the press guarantees the right to

publish information from the government, then it surely guarantees the right

to ask the government for that information in the first place” 23; “[p]ut

simply: If the government cannot punish someone for publishing the Pentagon

Papers, how can it punish someone for simply asking for them?”. 24

What are the bench and bar to make of this? Similarly, what are the

bench and bar to make of the passages in the majority opinion cataloging cases

in which qualified immunity was denied because law enforcement officials

attempted to enforce “obviously unconstitutional statutes”? 25 That

discussion is followed by a single sentence, which is an actual holding of the

majority opinion: “[o]n its face, Texas Penal Code § 39.06(c) is not one of

those ‘obviously unconstitutional’ statutes.” 26 That holding, though a

grudging one, correctly resolves the issue of whether section 39.06(c) is

“obviously” unconstitutional. That holding should not be lost or overlooked

due to its brevity or obfuscated by preceding or succeeding passages in the

majority opinion.

Nor should Judge Ho’s concurring opinion muddy the water. It

directly conflicts with the majority opinion’s holding. The concurring

21

Ante, at 12.

22

Ante, at 12-13.

23

Ante, at 8-9 (citing In re Express-News Corp., 695 F.2d 807, 808 (5th Cir. 1982);

then citing The Florida Star v. BJF, 491 U.S. 524, 538 (1989)).

24

Ante, at 9 (emphasis in original) (citing New York Times Co. v. United States, 403

U.S. 713 (1971) (per curiam)).

25

Ante, at 10.

26

Ante, at 11.

35

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opinion leads off its discussion of Texas Penal Code § 39.06(c) saying, “no

statute may be enforced that violates the Constitution” and “[l]ikewise, no

officer of the law may hide behind an obviously unconstitutional statute to

justify trampling on a citizen’s fundamental liberties.” 27 This and the

discussion that follows would validate Villareal’s insistence that

section 39.06(c) is obviously unconstitutional.

None of the impassioned observations about the First Amendment in

the majority opinion or Judge Ho’s concurring opinion would be relevant

to the case before us if a reasonably competent officer could objectively have

concluded there was cause to arrest Villareal for suspected violations of

Texas Penal Code § 39.06. This is the core disagreement I have with the

majority opinion; that, and the fact that it shreds the independent

intermediary doctrine.

The majority opinion also employs blunt force rather than careful

analysis. It casts aside every individual defendant’s qualified immunity in

connection with the Fourth and First Amendment claims without regard to

the role each was alleged to have played. For example, it concludes that every

individual defendant violated the Fourth Amendment because there was no

probable cause to arrest Villareal. Yet, not every defendant was alleged to

have participated in preparing and presenting arrest warrant affidavits. This

exemplifies the rush to judgment in this case, heaping condemnation on all.

I

A

Villareal obtained then published the name of a person who

committed suicide and the identity of his employer, which was, according to

27

Ante, at 23.

36

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Villareal’s Complaint, the United States Customs and Border Protection

agency, while that death was being investigated. On another occasion she

obtained and published the name of a family involved in a fatal vehicular

accident while the crash was under investigation. The identities of the

suicide and vehicular crash victims had not been made public by law

enforcement authorities when Villareal posted the information on her

Facebook page. The City of Laredo had an established means of providing

information to the public and the press, of which Villareal was aware, and the

information that Villareal publicized did not come from that source. Villareal

instead reached out to an employee of the Laredo Police Department (LPD)

who was her back-channel contact.

Villareal’s arrest was based on Texas Penal Code § 39.06. That Texas

statute provides in pertinent part:

(c) A person commits an offense if, with intent to obtain

a benefit or with intent to harm or defraud another, he solicits

or receives from a public servant information that:

(1) the public servant has access to by means of

his office or employment; and

(2) has not been made public.

(d) In this section, “information that has not been made

public” means any information to which the public does not

generally have access, and that is prohibited from disclosure

under Chapter 552, Government Code. 28

Chapter 552 of the Texas Government Code, 29 expressly referenced

in section 39.06(d), is known as the Texas Public Information Act and was

28

Tex. Penal Code § 39.06(c).

29

TEX. GOV’T CODE ANN. §§ 552.001-.353 (West 2012).

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formerly known as the Open Records Act. 30 Chapter 552 excludes certain

categories of information from public disclosure, including certain

information pertaining to the detection, investigation or prosecution of a

crime. 31 A Texas court has confirmed that the reference in section 39.06(d)

to “any information . . . that is prohibited from disclosure under Chapter 552,

Government Code” means “the set of exceptions to disclosure listed in

Subchapter C” of the Texas Public Information Act. 32

The Attorney General of Texas in 1976, John Hill, who later became

the Chief Justice of the Supreme Court of Texas, explained more than forty

years ago why investigations regarding a death, even if it may appear to be a

suicide or caused by a vehicular accident, can come within the exception to

public disclosure while an investigation remains open:

30

See Act of May 29, 1995, 74th Leg., R.S., ch. 1035, § 29, 1995 Tex. Gen. Laws

5127, 5142 (effective Sept. 1, 1995).

31

See Tex. Gov’t Code § 552.108, which provides in relevant part:

Sec. 552.108. EXCEPTION: CERTAIN LAW

ENFORCEMENT, CORRECTIONS, AND PROSECUTORIAL

INFORMATION. (a) Information held by a law enforcement agency or

prosecutor that deals with the detection, investigation, or prosecution of

crime is excepted from the requirements of Section 552.021 if:

(1) release of the information would interfere with the detection,

investigation, or prosecution of crime; [or]

(2) it is information that deals with the detection, investigation,

or prosecution of crime only in relation to an investigation that did not

result in conviction or deferred adjudication. . . .

32

See Texas v. Ford, 179 S.W.3d 117, 123 (Tex. App.—San Antonio 2005, no pet.)

(holding that “prohibited from disclosure” under § 39.06(d) means “the set of exceptions

to disclosure listed in Subchapter C” of the TPIA); Tex. Gov’t Code § 552.108

(requiring the release of “basic information about an arrested person, an arrest, or a crime”

but not other information if it would “interfere with the detection, investigation, or

prosecution of crime”).

38

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Police investigations of incidents such as this death by other

than natural causes are rarely closed completely, and what

initially appears to be an accident may later be found to have

involved a criminal act. Cases are not always closed by

prosecution or a determination that no crime was involved.

The Open Records Act excepts from required public disclosure

records of law enforcement agencies “that deal with the

detection and investigation of a crime.” We do not believe that

this exception was intended to be read so narrowly that it only

applies to those investigative records which in fact lead to

prosecution. We believe that it was also intended to protect

other valid interests such as maintaining as confidential the

investigative techniques and procedures used in law

enforcement and insuring the privacy and safety of witnesses

willing to cooperate with law enforcement officers. These

interests in non-disclosure remain even though there is no

prosecution in a particular case. 33

Mainstream, legitimate media outlets routinely withhold the identity

of accident victims until public officials or family members release that

information publicly. Similarly, the identity of those who commit suicide is

generally not released by legitimate, mainstream media until a family

spokesperson or public officials provide that information. The identities of

victims are often withheld by public officials to ensure there is no interference

with an ongoing investigation.

The majority opinion asserts that Villareal had already obtained the

identities of the victims from a witness at or near each of the scenes of the

fatalities before she “confirmed” each of the victims’ identities with the LPD

employee who was her source. While that assertion may be true, it is beside

the point, not to mention misleading, because Villareal has not plausibly

33

Tex. Att’y Gen. ORD-127 at 7 (1976).

39

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alleged that any defendant she sued knew that she had obtained the identities

of the victims before she approached her back-channel LPD source. Nor has

Villareal plausibly alleged that any defendant had a basis to believe or even

suspect that the original sources of Villareal’s information were witnesses at

or near the scenes of the deaths.

Villareal did assert in her Complaint that the defendants knew or

should have known that the information she published “was generally

accessible by the public,” 34 but those allegations are conclusory and

unsupported by any specific facts. Villareal asserts only that her “initial

receipt of the information from two non-government individuals

demonstrates” that the information “was generally accessible by the

public.” 35 This is not a plausible construction of what section 39.06(c)(2)

means when it refers to “information that . . . has not been made public” or

34

See, e.g., First Amended Complaint ¶ 90 at ROA.171 (alleging that “Ruiz knew

or should have known that the information Villarreal published was not subject to a TPIA

exception and was generally accessible to the public. But Ruiz failed to mention or discuss

these essential elements of the Statute in the Arrest Warrant Affidavits. He also failed to

disclose that the information Villarreal received or published was generally accessible to

the public and not subject to a TPIA exception. On information and belief, Ruiz’s

misrepresentations and omissions were deliberate”); First Amended Complaint ¶ 91 at

ROA.171 (alleging “[d]espite knowing that the information in the Targeted Publications

was publicly accessible information, Defendants Alaniz, Jacaman, Treviño, Ruiz, DV, and

the Doe Defendants deliberately did not question or attempt to question Villarreal about

the circumstances of her access to the information in Targeted Publications, in furtherance

of their efforts to manufacture the Arrest Warrant Affidavits and cause the arrest of

Villarreal without probable cause”).

35

See First Amended Complaint ¶ 77 at ROA.168 (alleging “[t]here also was no

probable cause because the information Villarreal received and published in the Targeted

Publications was generally accessible by the public, as Villarreal’s initial receipt of the

information from two non-government individuals demonstrates. Any reasonable official

would have understood the Statute required a showing that the information at issue be that

to which public does not generally have access. And any reasonable official would have

understood that the information in the Targeted Publications did not meet this element”).

40

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of what section 39.06(d) means when it refers to “any information to which

the public does not generally have access.” Under Villareal’s reading of the

statute, information would rarely if ever be nonpublic because in virtually

every scenario, a person who is not a “public servant” would have some

knowledge of the event or incident. The fact that there are witnesses to a

crime, for example, does not mean that information the witnesses have or

may have related to other individuals is publicly accessible. Information

individual witnesses have is not commonly thought of as generally accessible

to the public.

Nor is the law well-established that before an arrest can be made, law

enforcement officers must question the suspect to ascertain whether

information the officers believe has been obtained in violation of a statute

such as Texas Penal Code § 39.06 was instead obtained from a source other

than a public servant. Villareal has not pointed to any authority for such a

proposition.

Villareal’s conclusory allegations that one or more defendants knew

or should have known that she first acquired the information she published

from a source other than a public servant do not raise a material fact question

regarding the qualified immunity analysis.

Each of the defendants could have reasonably believed there was

probable cause to arrest Villareal. Villareal’s First Amendment claim stems

from her arrest under section 39.06. If there was no Fourth Amendment

violation, the defendants are also entitled to qualified immunity as to

Villareal’s First Amendment claims. Villareal’s First Amendment claim is

inextricably intertwined with, tethered to, and inseparable from the facts that

gave rise to her Fourth Amendment claim. The Texas statute is not

41

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“obviously” unconstitutional. It does not purport to criminalize “asking

questions of public officials.” 36

B

Perhaps in recognition that its conclusion regarding the obviousness

of a First Amendment claim has no legs, the majority opinion proffers what

it says is an alternative basis for finding a First Amendment violation, which

is that “it is far from clear that the officers can even state a plausible case

against Villareal under § 39.06(c) in the first place.” 37 The opinion reasons

that Villareal did not seek non-public information from her police-

department source “with intent to obtain a benefit” 38 and that “no

reasonable officer could have found probable cause under § 39.06(c)—

separate and apart from whether § 39.06(c) could constitutionally apply to a

person motivated by journalism rather than by profits.” 39 The majority

opinion concludes that Villarreal acted out of a desire to be a “good

journalist,” not out of a “purely” economic calculation. 40

The statute’s text does not require pure economic motivation, only

solicitation or receipt “with intent to obtain a benefit.” 41 The Texas Penal

Code defines “[b]enefit” as “anything reasonably regarded as economic gain

or advantage, including benefit to any other person in whose welfare the

beneficiary is interested.” 42 As discussed above, section 39.06(c) and (d) do

36

Ante, at 8.

37

Ante, at 11.

38

Ante, at 11.

39

Ante, at 12.

40

Ante, at 11.

41

See Tex. Penal Code § 39.06(d).

42

Id. § 1.07(a)(7).

42

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not exclude journalists, and as a general proposition, journalists are engaged

in an economic enterprise when they gather information that they intend or

hope to publish or disseminate.

Judge Ho’s concurring opinion concludes that, because of the

doctrine of constitutional avoidance, section 39.06(c) must be construed to

exclude journalists or else it would be unconstitutional. It is asking a lot of

law enforcement officers to know about and then apply the doctrine of

constitutional avoidance.

It is also far from clear that journalists must be categorically excluded

from the reach of section 39.06(c) or else that statute is unconstitutional.

Suppose that a national media outlet authorizes one of its journalists to pay a

police officer to obtain a copy of a nonpublic witness statement in a high-

profile criminal case. The media company then publishes that statement, in

the hopes that its scoop will boost ratings and therefore advertising revenue.

The witness is murdered shortly after her statement is publicized. It is at

least debatable whether applying section 39.06(c) to such facts would violate

the First Amendment.

A reasonably well-trained law enforcement officer could have

concluded that Villareal sought non-public information from her LPD source

“with intent to obtain a benefit.” Moreover, Villareal’s brand of journalism

and economic benefit are two sides of the same coin: through “scooping”

traditional news sources and sensationalizing tragedies such as a suicide and

a fatal vehicular crash, the popularity of Villarreal’s Facebook page might (or

arguably would likely) increase and, in turn, the likelihood of fees, donations,

and free meals would increase. Even though Villarreal “does not generate

regular revenue” from her Facebook page, 43 it would have been reasonable

43

ROA.159.

43

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for a law enforcement officer to think that she intended to gain at least some

economic benefit by solicitating and receiving non-public information. As

noted above, Villarreal admitted in her Complaint that she “sometimes

enjoys a free meal from appreciative readers, and occasionally receives fees

for promoting a local business” and that she has “used her Facebook page to

ask for donations for new equipment necessary to continue her citizen

journalism efforts.” 44

The majority opinion maintains that Villareal sought only

“‘corroborating information’ to confirm what she had already received from

other sources.” 45 But as already discussed, Villareal did not plausibly allege

that any defendant knew she had obtained the information from another

source before or even after she made inquiry of the LPD officer.

No court had construed the meaning of “with intent to obtain a

benefit” as used in Texas Penal Code § 39.06 when Villareal was arrested.

There was no clearly established law that there was no probable cause for

arresting Villareal, and there was no clearly established law that in arresting

Villareal based on section 39.06, the defendants were violating her First

Amendment rights.

II

The majority opinion denies the defendants qualified immunity on the

First and Fourth Amendment claims in spite of the fact that a neutral

magistrate issued the warrants for Villareal’s arrest. “[W]hether an official

protected by qualified immunity may be held personally liable for an allegedly

44

ROA.159.

45

Ante, at 11.

44

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unlawful official action generally turns on the ‘objective legal reasonableness’

of the action, assessed in light of the legal rules that were ‘clearly established’

at the time it was taken.” 46 The Supreme Court has explained that under the

independent intermediary doctrine, when an officer seizes someone pursuant

to a warrant, “the fact that a neutral magistrate has issued a warrant is the

clearest indication that the officers acted in an objectively reasonable manner

or, as we have sometimes put it, in ‘objective good faith.’” 47

The independent intermediary doctrine applies to First and Fourth

Amendment violations. 48 Though issuance of a warrant by a magistrate

“does not end the inquiry into objective reasonableness” of an officer’s

actions, there can be liability “when ‘it is obvious that no reasonably

competent officer would have concluded that a warrant should issue.’” 49

The “threshold for establishing this exception is a high one, and it should

be.” 50 That is because “‘[i]t is a sound presumption that the magistrate is

more qualified than the police officer to make a probable cause

determination, and it goes without saying that where a magistrate acts

mistakenly in issuing a warrant but within the range of professional

competence of a magistrate, the officer who requested the warrant cannot be

held liable.’” 51

46

Anderson v. Creighton, 483 U.S. 635, 639 (1987) (internal citation omitted)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)).

47

Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quoting United States v.

Leon, 468 U.S. 897, 922-23 (1984)).

48

Buehler v. City of Austin/Austin Police Dep’t, 824 F.3d 548, 553-54 (5th Cir. 2016).

49

Messerschmidt, 565 U.S. at 547 (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)).

50

Id.

51

Id. 547-48 (quoting Malley, 475 U.S. at 346 n.9).

45

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Whether the facts set forth in the affidavits supporting the request for

warrants for Villareal’s arrest under Texas Penal Code § 39.06(c) gave rise

to probable cause was within the range of professional competence of a

magistrate. The defendants were entitled to qualified immunity.

In brushing aside the intermediary doctrine, the majority opinion

builds on its mischaracterization of Villareal’s claims. The opinion musters

its talismanic recitation that “a reasonably well-trained officer would have

understood that arresting a journalist for merely asking a question clearly

violates the First Amendment.” 52 The opinion then extends this rationale to

justify its finding of a Fourth Amendment violation. 53 The opinion’s ultimate

conclusion is that “[j]ust as the First Amendment violation alleged in the

Complaint was obvious for purposes of qualified immunity, so too the Fourth

Amendment violation alleged here.” 54 But it cannot be overemphasized:

Villareal did not plausibly allege that she was arrested for “merely asking a

question” and the majority opinion has not identified any basis for concluding

that Villareal has stated a claim that she was arrested for simply asking a

question.

The majority opinion dashes off a statement that officers may not find

probable cause using “an unjustifiable standard, such as speech protected by

the First Amendment.” 55 But Villareal’s arrest was not based on protected

speech. It was based on allegations that she solicited and received nonpublic

information from a government official with the intent to obtain a benefit in

52

Ante, at 16.

53

Ante, at 16.

54

Ante, at 16.

55

Ante, at 15 (internal quotation marks omitted) (quoting Mink v. Knox, 613 F.3d

995, 1003-04 (10th Cir. 2010)).

46

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violation of a statute that the majority opinion correctly recognizes is not

“obviously unconstitutional.” 56

To resolve the independent intermediary doctrine issue in Villareal’s

favor, it must be “obvious that no reasonably competent officer would have

concluded that a warrant should issue.” 57 The discussions above regarding

the elements of Texas Penal Code § 39.06(c) and (d), and probable cause to

arrest Villareal under that statute apply equally to the inquiry of whether the

intermediary doctrine applies. The standard for liability has not been met

here.

This is not a case in which the defendants tainted the intermediary’s

decision-making process, such as “maliciously withh[olding] relevant

information or otherwise misdirect[ing] the intermediary,” 58 and the

majority opinion does not conclude otherwise. Villarreal’s Complaint did

assert that Ruiz failed to disclose in the arrest affidavits that the information

Villareal received or published was accessible to the public and was not

subject to an exception under the Texas Public Information Act. 59 But she

failed to raise this issue on appeal 60 and has therefore forfeited any potential

taint exception argument. 61

56

See Tex. Penal Code §§ 39.06(c)-(d); ante, at 11.

57

Messerschmidt v. Millender, 565 U.S. 535, 547 (2012) (quoting Malley v. Briggs, 475

U.S. 335, 341 (1986)).

58

Shaw v. Villanueva, 918 F.3d 414, 417 (5th Cir. 2019).

59

See First Amended Complaint ¶ 90 at ROA.171.

60

See Villarreal Br. at 42-44.

61

See Rollins v. Home Depot USA, 8 F.4th 393, 397 & n.1 (5th Cir. 2021).

47

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III

As for the selective enforcement claim, Villareal has not made the

“prerequisite” showing “that similarly situated individuals were treated

differently.” 62 Villareal has not alleged that one person, ever, solicited and

received nonpublic information in a facial violation of § 39.06(c). 63 Instead,

her Complaint refers vaguely to “those who had asked for or received

information from local law enforcement officials, and . . . persons who

published truthful and publicly-accessible information on a newsworthy

matter,” such as “local professional newspaper journalists, local professional

broadcast journalists, and citizens who published on matters of local public

concern.” 64

The majority opinion concludes that because “we must draw all

reasonable inferences in favor of Villareal,” we should “have no difficulty

observing that journalists commonly ask for nonpublic information from

public officials,” even though “Villareal did not name a specific journalist

who solicited or received nonpublic information from the LPD in her

Complaint.” 65 The majority opinion’s approach, which allows courts to

speculate and draw inferences when no facts are alleged, departs from our

law in this area. Under our precedent, to allege selective enforcement

adequately, plaintiffs must identify “an example” of a similarly situated

62

Bryan v. City of Madison, 213 F.3d 267, 276 (5th Cir. 2000).

63

See ante, at 17 (conceding this point); ROA.187.

64

ROA.187.

65

Ante, at 18.

48

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comparator who was nonetheless treated differently. 66 Villareal’s failure to

do so dooms her selective enforcement claim.

IV

Finally, Villareal cannot maintain a § 1983 conspiracy claim. Such

claims require an underlying constitutional violation and are “not

actionable” against officials entitled to qualified immunity. 67 Accordingly,

Villareal’s civil conspiracy claim fails in tandem with her First, Fourth, and

Fourteenth Amendment claims.

V

Villareal sued eight individuals by name and two other individuals as

John Does. Her Complaint identifies only “Alaniz, Jacaman, Treviño, Ruiz,

DV, and the Doe Defendants” as being involved in the decision to arrest

Villareal and preparing the affidavits supporting the arrest warrants. There

are no colorable allegations against the other defendants, yet the majority

opinion holds that none of the defendants have qualified immunity.

It also unclear from the majority opinion precisely what actions the

defendants took that violated Villareal’s Fourth or First Amendment rights

and which of the ten individual defendants may be liable for each of those

violations. Is “threaten[ing] to take Villreal’s cell phone when she was

66

Bryan, 213 F.3d at 276-77; see Rountree v. Dyson, 892 F.3d 681, 685 (5th Cir. 2018)

(holding that a plaintiff “did not sufficiently allege that he ha[d] been treated differently

from others similarly situated” when “[h]is complaint generally allege[d] that other

similarly situated individuals were treated differently, but he point[ed] to no specific person

or persons and provide[d] no specifics as to their violations”); Lindquist v. City of Pasadena,

669 F.3d 225, 234 (5th Cir. 2012) (“The Lindquists have not satisfied their burden of

pointing to similarly situated comparators” (emphasis added)).

67

Hale v. Townley, 45 F.3d 914, 921 (5th Cir. 1995); see Shaw v. Villanueva, 918 F.3d

414, 419 (5th Cir. 2019).

49

Case: 20-40359 Document: 00516431109 Page: 50 Date Filed: 08/12/2022

No. 20-40359

recording a crime scene from behind a barricade—while saying nothing to the

other members of the media standing next to her” 68 a violation for which one

or more defendants may be liable? If so, which defendants?

Judge Ho’s concurring opinion says, “They took pictures of her

[Villareal] in handcuffs with their cell phones. And they mocked and laughed

at her while they did it.” 69 The majority opinion also refers to these

allegations in Villareal’s Complaint. 70 Does the alleged conduct constitute

inappropriate, unprofessional, shameful, disgraceful, dishonorable conduct?

Yes, absolutely. Does it amount to a constitutional violation? The majority

opinion does not say.

An equally important question is, who is “they”? Villareal’s

Complaint identifies only “Martinez, Montemayor and Guerrero” as having

been present when she was photographed in handcuffs and mocked. Are all

of the defendants nevertheless potentially liable?

The majority opinion paints with a broad brush, as does Judge Ho’s

concurring opinion. They make no effort to consider the particular

allegations as to each individual defendant. All are denied qualified

immunity. At the very least, there are no plausible allegations of

constitutional violations by Martinez, Montemayor and Guerrero. They are

entitled to qualified immunity. Each of the other defendants is entitled to

know what they must defend against in the district court.

* * *

I would affirm the district court’s dismissal of all of Villareal’s claims.

68

Ante, at 3.

69

Ante, at 22.

70

Ante, at 4.

50