Villarreal v. City of Laredo

Case: 20-40359 Document: 00517042176 Page: 1 Date Filed: 01/23/2024

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

____________

January 23, 2024

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 Jones, Smith, Stewart,

Elrod, Southwick, Haynes, Graves, Higginson, Willett,

Ho, Duncan, Engelhardt, Oldham, Wilson and Douglas,

Circuit Judges.*

Edith H. Jones, Circuit Judge:

_____________________

*

Judge Ramirez joined the court recently and elected not to participate in this

case.

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No. 20-40359

Priscilla Villarreal alleged First and Fourth Amendment § 1983 claims

arising from her brief arrest for publicly disseminating nonpublic law

enforcement information, including the identities of a suicide and deceased

motor vehicle accident victims. The district court dismissed pursuant to

Federal Rule of Civil Procedure 12(b)(6) because the officials involved were

entitled to qualified immunity.

Villarreal was arrested for illegally soliciting information that had not

yet been officially made public “with intent to obtain a benefit.” Tex.

Penal Code § 39.06(c), (d). The arrest warrants were approved by the

Webb County District Attorney’s office and by a magistrate. We do not

reach the ultimate question of this facially valid statute’s constitutionality as

applied to this citizen-journalist. Federal courts do not charge law

enforcement officers with predicting the constitutionality of statutes because

the Fourth Amendment’s benchmark is reasonableness, and “[t]o be

reasonable is not to be perfect.” Heien v. North Carolina, 574 U.S. 54, 60,

135 S. Ct. 530, 536 (2014). Moreover, the statute is not “obviously

unconstitutional” as applied here.

Villarreal and others portray her as a martyr for the sake of journalism.

That is inappropriate. She could have followed Texas law, or challenged that

law in court, before reporting nonpublic information from the backchannel

source. By skirting Texas law, Villarreal revealed information that could

have severely emotionally harmed the families of decedents and interfered

with ongoing investigations. Mainstream, legitimate media outlets routinely

withhold the identity of accident victims or those who committed suicide

until public officials or family members release that information publicly.

Villarreal sought to capitalize on others’ tragedies to propel her reputation

and career.

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For a number of reasons, the officials were entitled to qualified

immunity and the district court’s judgment is AFFIRMED.

I. Background

Villarreal is a well-known Laredo citizen-journalist (a/k/a

“Lagordiloca”) who publishes to over a hundred thousand followers on

Facebook.1 She frequently posts about local police activity, including content

unfavorable to the Laredo Police Department (“LPD” or “Department”),

the district attorney, and other local officials.

Her complaint alleges that, as a result of her “gritty style of journalism

and often colorful commentary,” Villarreal has critics as well as admirers.

The admirers treat her to occasional free meals, and she occasionally receives

fees for promoting local businesses. She has used her Facebook page to ask

for and obtain donations for new equipment to support her journalistic

efforts. But, she alleges, officials in Laredo city government and the LPD

engaged in a campaign to harass and intimidate her and stifle her work.

The events before us began on April 11, 2017, when Villarreal

published, as a likely suicide, the name and occupation of a U.S. Border Patrol

employee who jumped off a Laredo public overpass to his death. She had

corroborated this information with LPD Officer Barbara Goodman, her

back-channel source, who was not an official city or LPD information officer.

Then, on May 6, she posted a live feed of a fatal traffic accident, including

the location and last name of a decedent in a family from Houston.

Officer Goodman also corroborated the information on this tragic event. In

each instance, Villarreal went behind the official information channel and

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1

See Simon Romero, La Gordiloca: The Swearing Muckraker Upending Border

Journalism, N.Y. Times, Mar. 10, 2019, https://tinyurl.com/4ntwktwy.

3

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published while the incident was being investigated. She acknowledges that

for several years she had published information obtained unofficially.

Villarreal alleges that several named Appellees conspired to suppress

her speech and arrest her for violating a law they had to know was

unconstitutionally applied to her. Facts revealed by publicly available

documents and incorporated by reference in Villarreal’s complaint complete

the picture.2

LPD investigator Deyanira Villarreal (“DV” or “investigator”)3 is

tasked with upholding the Department’s professional standards. She

received a tip from her colleagues on July 10, 2017, that Officer Barbara

Goodman was secretly communicating with Villarreal.4 Along with the tip,

DV noticed that some of the content posted to Villarreal’s Facebook page

was not otherwise publicly available information.

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2

“[W]hen ruling on a Rule 12 motion, a court may consider “documents that are

referred to in the plaintiff’s complaint and are central to the plaintiff’s claim.” Armstrong

v. Ashley, 60 F.4th 262, 272 n.10 (5th Cir. 2023) (quoting Scanlan v. Tex. A&M Univ.,

343 F.3d 533, 536 (5th Cir. 2003)); see also Lormand v. US Unwired, Inc., 565 F.3d 228, 251

(5th Cir. 2009). Villarreal’s complaint relies on, and references, criminal complaints, a

search warrant affidavit and magistrate approval, and arrest warrant affidavits and

approvals. Those documents were not attached to the complaint, but they are publicly

available documents Villarreal incorporated in her complaint by reference and are central

to her claims. Villarreal does not deny the information in those documents, although she

alleges the documents were “manufacture[d].” Her conclusory allegation is insufficient to

dispute all the information in the incorporated documents. “[C]onclusory statements,

naked assertions, and threadbare recitals fail to plausibly show violations . . . [of] clearly

established constitutional rights.” Armstrong, 60 F.4th at 269.

3

Officer Deyanira Villarreal shares Plaintiff-Appellant’s last name. We are aware

of no familial relationship between them.

4

Villarreal alleges Does 1 and 2 tipped DV. Does 1 and 2 are allegedly employees

of either Laredo or Webb County.

4

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Two weeks later, DV assigned Officer Juan Ruiz to investigate. Ruiz

prepared two grand jury subpoenas for phone records from cellphones

belonging to Officer Goodman, Officer Goodman’s husband, and Priscilla

Villarreal. Webb County Assistant District Attorney Marisela Jacaman

approved the subpoenas.

The phone records revealed that Officer Goodman and Villarreal

communicated with each other regularly and at specific times coinciding with

law enforcement activities.5 Ruiz presented to a Webb County magistrate an

affidavit in support of a warrant to search Officer Goodman’s cellphones.

The court approved that search. Officers performed forensic extractions on

the phones and sent additional subpoenas for call logs. As a result of the

investigation, Goodman was suspended for twenty days.

With evidence in hand, Ruiz prepared two probable cause affidavits to

arrest Villarreal for her conversations with Officer Goodman that were

uncovered during the investigation. In the first conversation, Villarreal

texted Officer Goodman about the man who committed suicide by jumping

from a highway overpass. She asked about the deceased’s age, name, and

whether he was employed by U.S. Customs and Border Protection.

Goodman answered her questions.6

The second conversation involved a fatal car accident. On the date of

the accident, Villarreal sent dozens of text messages to Officer Goodman.

Villarreal then posted on Facebook that one person, whom she named, died

in the accident. She also disclosed that a family from Houston was in the car

_____________________

5

The document indicates about 72 calls per month between Villarreal and Officer

Goodman occurring from January 1 to July 26, 2017.

6

Officer Goodman deleted these messages, but LPD software retrieved them.

5

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and that three children had been med-evac’d to San Antonio. Villarreal’s

text messages asked Goodman about those precise details.

Ruiz’s affidavits stated that the information Villarreal requested, and

Goodman provided, “was not available to the public at that time.” The

affidavits further stated that by posting this information on her Facebook

page “before the official release by the Laredo Police Department Public

Information Officer” and ahead of the official news media, Villarreal gained

“popularity in ‘Facebook.’”

Attorney Jacaman approved the two affidavits and submitted them to

the Webb County Justice of the Peace. The judge, finding probable cause,

issued two warrants for Villarreal’s arrest for misuse of official information

in violation of section 39.06(c) of the Texas Penal Code. Section 39.06(c)

prohibits individuals from soliciting or receiving nonpublic information from

a public servant who has access to that information by virtue of her position

with the intent to obtain a benefit.

Villarreal voluntarily surrendered. She alleges that she was detained,

not that she was “jailed,” and she was released on bond the same day.

Villarreal alleges that when she surrendered, many LPD officers and

employees, including Enedina Martinez, Laura Montemayor, and Alfredo

Guerrero, surrounded her, laughed at her, took pictures with their cell

phones, and “otherwise show[ed] their animus toward Villarreal with an

intent to humiliate and embarrass her.”

Villarreal petitioned for a writ of habeas corpus. A Texas district court

judge granted her petition and, in a bench ruling, held section 39.06(c)

unconstitutionally vague. The state did not appeal.

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II. Procedural Background

In April 2019, Villarreal sued Laredo police officers, the Doe

defendants, the Laredo Chief of Police (Claudio Treviño, Jr.), Webb County

prosecutors, the county, and the city in federal court under § 1983 for

violating the First, Fourth, and Fourteenth Amendments. She alleged

multiple counts, including direct and retaliatory violations of free speech and

freedom of the press, wrongful arrest and detention, selective enforcement

in violation of equal protection, civil conspiracy, and supervisory and

municipal liability.

The defendants moved to dismiss under Rule 12(b)(6) on the basis of

their qualified immunity and for failure to state a claim. The district court

dismissed all claims. Villarreal appealed, excepting her claims against Laredo

and Webb County.

Initially, a panel of this court reversed in part and held principally that

the defendants were not entitled to qualified immunity because the arrest was

“obviously” unconstitutional. Villarreal v. City of Laredo, 17 F.4th 532, 541

(5th Cir. 2021). Later, the panel replaced its opinion with a new one but

reached the same result. Villarreal v. City of Laredo, 44 F.4th 363, 372 (5th

Cir. 2022) (opinion on rehearing). Chief Judge Richman concurred in part

and dissented in part.7 Id. at 382. The panel opinion was vacated and ordered

to be reheard en banc. Villarreal v. City of Laredo, 52 F.4th 265, 265 (5th Cir.

2022).

This court reviews the district court’s order granting a Rule 12(b)(6)

motion de novo to determine whether the facts pled state plausible claims

cognizable in law. NiGen Biotech, LLC v. Paxton, 804 F.3d 389, 393 (5th Cir.

_____________________

7

The Chief Judge concurred to the extent that the panel majority affirmed

dismissal of Villarreal’s First Amendment retaliation and municipal liability claims.

7

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2015) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,

1974 (2007)).

III. Discussion

A. Fourth Amendment Arrest Claim

We first address Villarreal’s Fourth Amendment and First

Amendment claims against Ruiz for the search warrant affidavits; DV, for

her role in the investigation; Does 1 and 2, who tipped off DV; Treviño, who

supervises LPD officers; Jacaman, the prosecutor who signed off on the

subpoenas and warrant affidavits; and Alaniz, another prosecutor who

allegedly endorsed the subpoenas and warrant affidavits. Villarreal alleges

each of these defendants caused a warrant to issue without probable cause for

conduct protected by the First Amendment. Because Villarreal’s First

Amendment free speech claim arises from her arrest and is inextricable from

her Fourth Amendment claim, liability for both rises and falls on whether the

officers violated clearly established law under the Fourth Amendment. See

Sause v. Bauer, 585 U.S. __, 138 S. Ct. 2561, 2563 (2018) (“When an

officer’s order to stop praying is alleged to have occurred during the course

of investigative conduct that implicates Fourth Amendment rights, the First

and Fourth Amendment issues may be inextricable.”).

To obtain money damages against the defendants, Villarreal must

overcome their qualified immunity by showing that (a) each defendant

violated a constitutional right, and (b) the right at issue was “clearly

established” at the time of the alleged misconduct. Pearson v. Callahan,

555 U.S. 223, 232, 129 S. Ct. 808, 816 (2009). To be clearly established

means that “[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that

right.” Anderson v. Creighton, 583 U.S. 635, 639, 107 S. Ct. 3034, 3039

8

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(1987). Accordingly, qualified immunity shields from suit “all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs,

475 U.S. 335, 341, 106 S. Ct. 1092, 1096 (1986).8

Villarreal fails to satisfy her burden on either prong. This is not a case

about a “citizen journalist just asking questions.” That clever but misleading

phrase cannot relieve this court of our obligation to evaluate Villarreal’s

conduct against the standards of Texas law. Villarreal was arrested on the

defendants’ reasonable belief, confirmed by a neutral magistrate, that

probable cause existed based on her conduct in violation of a Texas criminal

statute that had not been declared unconstitutional. We need not speculate

whether section 39.06(c) allegedly violates the First Amendment as applied

to citizen journalists who solicit and receive nonpublic information through

unofficial channels. No controlling precedent gave the defendants fair notice

that their conduct, or this statute, violates the Constitution facially or as

applied to Villarreal. Each defendant9 is entitled to qualified immunity from

suit.

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8

Ordinarily, a plaintiff must explain why each individual defendant is not entitled

to qualified immunity based on that defendant’s actions and the corresponding applicable

law. See Ashcroft v. Iqbal, 556 U.S. 662, 577, 129 S. Ct. 1937, 1948 (2009) (“[A] plaintiff

must plead that each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.”); Meadours v. Ermel, 483 F.3d 417, 421 (5th Cir.

2007). Plaintiff failed to plead properly. However, the district court opinion, in concluding

that the statute did not facially violate clearly established law and probable cause existed

for the arrest, correctly found all defendants protected by qualified immunity.

9

We assume arguendo that Jacaman and Alaniz, Assistant District Attorneys, are

counted among defendant officers despite their positions as prosecutors. Participating in

the issuance of the warrants here was arguably outside their absolute prosecutorial

immunity. See Richard H. Fallon Jr., et al., Hart and Wechsler’s The

Federal Courts and the Federal System 1044 (7th ed. 2015)

(“[P]rosecutorial immunity extends only to prosecutorial functions related to courtroom

9

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1. The Officials Reasonably Believed They Had Probable Cause

Probable cause to arrest “is not a high bar.” Kaley v. United States,

571 U.S. 320, 338, 134 S. Ct. 1090, 1103 (2014). It “requires only a

probability or substantial chance of criminal activity, not an actual showing

of such activity.” Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 S. Ct. 2317,

2335 n.13 (1983). And in the qualified immunity context, “[e]ven law

enforcement officials who ‘reasonably but mistakenly conclude that probable

cause is present’ are entitled to immunity.” Mendenhall v. Riser, 213 F.3d

226, 230 (5th Cir. 2000) (quoting Hunter v. Bryant, 502 U.S. 224, 227,

112 S. Ct. 534, 536 (1991)).

We begin with the text of the statute officers believed Villarreal

violated. A person violates section 39.06(c) of the Texas Penal Code

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.10

Section 39.06(d) defines “information that has not been made public”

as “any information to which the public does not generally have access, and

that is prohibited from disclosure under” the Texas Public Information Act

(“TPIA”), Tex. Gov’t Code §§ 552.001–.353.

The Texas Penal Code further defines a “benefit” as “anything

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

_____________________

advocacy[.]”). Under this assumption, they are entitled to qualified immunity along with

the police officer defendants. See id.

10

A similar provision restricts public servants: “A public servant commits an

offense if with intent to obtain a benefit or with intent to harm or defraud another, he

discloses or uses information for a nongovernmental purpose that: (1) he has access to by

means of his office or employment; and (2) has not been made public.” Tex. Penal

Code § 39.06(b).

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other person in whose welfare the beneficiary is interested.” Tex. Penal

Code § 1.07(a)(7).

The TPIA, expressly referenced in section 39.06(c), governs the

overall availability of public records.11 This Act, formerly known as the Open

Records Act, states as its policy “that each person is entitled, unless

otherwise expressly provided by law, at all times to complete information

about the affairs of government.” Tex. Gov’t Code § 552.001. But to

protect important governmental interests, and ensure that some categories of

nonpublic information are not unwisely disclosed, the TPIA lists various

exceptions from required public disclosure. Id. §§ 552.101–.163.12 Officials

lack discretion to disclose some information. For example, “information

considered to be confidential by law, either constitutional, statutory, or by

judicial decision,” is protected from disclosure. Id. § 552.101; see also id.

§ 552.007(a) (allowing voluntary disclosure “unless the disclosure is

expressly prohibited by law or the information is confidential under law”).

For a small subset of the categories of excepted information, improper

disclosure may result in criminal penalties. See Tex. Att’y Gen. Op.

ORD 676, 2002 WL 31827950, at *2 (2002) (citing Tex. Gov’t Code

§§ 552.007, 552.101, 552.352). Further, certain information pertinent to the

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11

The TPIA requires agencies promptly to respond to requests for information,

with appeal available to the state Attorney General and state courts. Tex. Gov’t Code

§§ 552.221(a), 552.234(a), 552.305(b), 552.325. In addition, the LPD employed a public

information officer entrusted with reporting to the press and public.

12

Texas courts have held that the distinction between exceptions and outright

prohibitions on disclosing information is irrelevant for purposes of section 39.06(c). See

State v. Newton, 179 S.W.3d 104, 109 (Tex. App.—San Antonio 2005) (holding “the phrase

‘prohibited from disclosure’ in § 39.06(d)” means “the set of exceptions to disclosure

listed in Subchapter C” of the TPIA); Texas v. Ford, 179 S.W.3d 117, 123 (Tex. App.—San

Antonio 2005) (same); Tidwell v. State, No. 08-11-00322-CR, 2013 WL 6405498, at *12

(Tex. App.—El Paso 2013) (same).

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detection, investigation, or prosecution of crime is excluded from disclosure.

See 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 detention, investigation, or

prosecution of crime”).

The Supreme Court of Texas has held that statutes like section 39.06

permissibly shield from public disclosure certain sensitive “information that

has not been made public.” See Hous. Chron. Pub. Co. v. City of Houston,

536 S.W.2d 559, 561 (Tex. 1976) (upholding provisions of the Texas Open

Records Act, predecessor to the TPIA, that excepted certain police records

from disclosure), aff’g Hous. Chronicle Pub. Co. v. City of Houston, 531 S.W.2d

177 (Tex. Civ. App.—Houston [14th Dist.] 1975).

The state has a longstanding policy to protect individual privacy in law

enforcement situations that appear to involve suicide or vehicular accidents.

In 1976, the Texas Attorney General authoritatively interpreted the Open

Records Provision dealing with criminal investigation, and stated:

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 . . . insuring

the privacy and safety of witnesses willing to cooperate with

law enforcement officers.

Tex. Att’y Gen. Op. ORD 127 at 7 (1976); see also Indus. Found. of the S. v.

Tex. Indus. Accident Bd., 540 S.W.2d 668, 678–85 (Tex. 1976) (recognizing

both a federal constitutional right and a separate common-law right to

privacy); id. at 685 (“[I]nformation [is] deemed confidential by law if (1) the

information contains highly intimate or embarrassing facts the publication of

which would be highly objectionable to a reasonable person, and (2) the

information is not of legitimate concern to the public.”).

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Recently, the Texas Attorney General has stated that under the Texas

Constitution, “surviving family members can have a privacy interest in

information relating to their deceased relatives.” Tex. Att’y Gen. OR2022-

36798, 2022 WL 17552725, at *2 (2022) (citing Nat’l Archives & Recs. Admin.

v. Favish, 541 U.S. 157, 168, 124 S. Ct. 1570, 1578 (2004)). This right extends

at least until the government has notified the deceased’s family. See Office

of the Texas Attorney General, Public Information Act Handbook 76 & n.363

(2022), https://perma.cc/6NJB-X5NM (citing Tex. Gov’t Code

§ 552.304). Thus, because Texas law protects the privacy of the bereaved

family, the identity of a suicide or a deceased car accident victim may be

considered confidential, especially when a law enforcement investigation has

just begun or is ongoing.

Finally, Texas law prevents the disclosure of certain personal

identifying information of victims in accident reports and exempts disclosure

of information related to ongoing criminal investigations. See Tex.

Transp. Code § 550.065(f)(2)(A) (requiring the Texas Department of

Transportation to withhold or redact “the first, middle, and last name of any

person listed in a collision report”); Tex. Gov’t Code § 552.108(a)(1)–

(2) (exempting from disclosure information dealing with the investigation of

a crime).

Moving from Texas law to the objective facts available to the

defendant officers, there was abundant evidence for a reasonable belief that

Villarreal’s conduct matched the elements of a section 39.06(c) violation.

Officer Ruiz attested in support of a warrant for misuse of official information

that Villarreal “had received or solicited the name and condition of a traffic

accident victim and the name and identification of a suicide victim” from

Officer Goodman while their deaths were under investigation. The affidavit

also states that Villarreal gained popularity through her readership on

Facebook. Officer Goodman was in possession of nonpublic information by

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virtue of her position but was not authorized to provide this information to

Villarreal.

Villarreal disputes none of these facts. Instead, Villarreal denies that

she solicited and received the information with “intent to obtain a benefit,”

and she contends that the information was not “nonpublic.” She also

maintains that the warrants fail because the officers did not identify the

specific TPIA or other exceptions on which they relied. We reject each

contention. In her most extensive argument, which is dealt with in

succeeding sections, Villarreal asserts that section 39.06 was “obviously

unconstitutional” as applied to her conduct as a citizen-journalist.

First, Villarreal claims she could not “benefit” from soliciting

information from Officer Goodman if she already knew the requested

information from tips. In other words, soliciting and receiving information

that she already knew, even though she could not confirm its accuracy,

cannot be a prohibited benefit. But Texas law defines “benefit” broadly as

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

Penal Code § 1.07(a)(7). Scorning to await an official LPD report, and

ignoring other TPIA open records procedures, Villarreal secretly solicited

information from Officer Goodman to bolster her first-to-report reputation.

Her reputation is integral to her local fame and success as a journalist. After

all, if she did not confirm the name and condition of a traffic accident victim

or suicide victim from a back-channel police source, Villarreal would face a

choice: (a) report the raw witness information and run the risk of grotesque

error, or (b) take time to go through local or TPIA channels and sacrifice the

status of getting a scoop.

Villarreal’s federal complaint, in any event, readily admits the

“benefits” of her journalistic style. She boasts over one hundred thousand

Facebook followers and a well-cultivated reputation, which has engendered

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publicity in the New York Times, free meals “from appreciative readers,”

“fees for promoting a local business,” and “donations for new equipment

necessary to her citizen journalism efforts.” Villarreal pleads that she “does

not generate regular revenue or other regular economic gain from her citizen

journalism.” That bald assertion, however, does not contradict the pleadings

showing she benefited from receiving the nonpublic information solicited

through a backchannel.

Further, at the time of her arrest, no Texas court had construed the

meaning of “with intent to obtain a benefit” as used in section 39.06(c) to

exclude the perks available to citizen journalists. Her effort at statutory

construction hardly shows the law was so clearly established that “every

reasonable [law enforcement officer] would have understood” the statute

could not apply to Villarreal. Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5,

142 S. Ct. 4, 7 (2021).

Second, Villarreal maintains that information already known to her

cannot be nonpublic. More precisely, her complaint alleges that, because she

initially received information from two non-government witnesses, that

information was “generally accessible by the public.” She also asserts that

Officer Goodman simply corroborated the information she had

independently ascertained. But whether information is nonpublic is

determined by the terms of the statute. There is no “corroboration”

exclusion to the provision. What matters under section 39.06 is whether the

information qualifies for a TPIA exception or is prohibited from disclosure

under the Texas Constitution, a statute, or a judicial decision. As Chief Judge

Richman explained in her panel dissent,

[u]nder Villar[r]eal’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

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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.

Villarreal, 44 F.4th at 388 (Richman, C.J., dissenting). That a private third-

party knows some information does not change whether the information is

nonpublic under the statute.

Further undermining this (unconvincing) interpretation of the

statute, Villarreal never alleges that any defendant actually knew “that she

had obtained the identities of the victims before she approached her

backchannel source.” Id. at 387. But if the officers did not know she had

obtained information first from non-government sources, then they could not

have been unreasonable in inferring that she obtained the information

illegally from Officer Goodman.

Third, Villarreal contends that probable cause was defeated because

the affidavits fail to identify a specific TPIA exception. But an arrest warrant

affidavit is not required to paraphrase the elements of the law the defendant

allegedly violated. See Adams v. Williams, 407 U.S. 143, 149, 92 S. Ct. 1921,

1924 (1972) (“Probable cause does not require the same type of specific

evidence of each element of the offense as would be needed to support a

conviction.”). The whole point of a probable cause affidavit is to present

relevant “facts and circumstances” so that a judge can independently

determine the legal question—whether probable cause exists that a law was

violated. United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992). The

judge looks to the “totality of the circumstances” and decides “whether

these historical facts, viewed from the standpoint of an objectively reasonable

police officer,” demonstrate “a probability or substantial chance of criminal

16

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activity.” District of Columbia v. Wesby, 583 U.S. 48, 56–57, 138 S. Ct. 577,

586 (2018) (quotations and citations omitted).

Here, the affidavits clearly and expressly allege that Villarreal sought

and obtained nonpublic information from an unofficial source in violation of

section 39.06(c). They describe the information, the benefit obtained, and

the circumstances surrounding how she used an illicit backchannel to obtain

the nonpublic information. In reporting the identity of victims, the employer

of one victim, and the victims’ possible causes of death while those matters

remained under investigation, the conduct alleged in the affidavits sufficed

to establish probable cause.13 We reiterate: probable cause is a “practical,

nontechnical conception that deals with the factual and practical

considerations of everyday life on which reasonable and prudent men, not

legal technicians, act.” Maryland v. Pringle, 540 U.S. 366, 370, 124 S. Ct.

795, 799 (2003) (internal citations and quotations omitted). It turns “on the

assessment of probabilities in particular factual context—not readily, or even

usefully, reduced to a neat set of legal rules.” Id. at 371, 124 S. Ct. at 800

(internal citation omitted).

It is not this court’s task to say whether Villarreal would have been

convicted under the statute. But applicable state law confirms that all of the

officers involved here reasonably believed they had probable cause to seek

her arrest.14

_____________________

13

See also Tex. Gov’t Code § 552.108(a)(1)–(2) (exempting such information

from disclosure).

14

Villarreal repeatedly alleges that the officials were motivated by animus toward

her style of journalism and past criticism of LPD. We need not discuss this point, because

it is well established that the motivation for an arrest is not relevant to its constitutionality.

See Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996). The extent to

17

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2. No “Obvious Unconstitutionality”

The crux of Villarreal’s argument is that even if probable cause

existed, she was unlawfully arrested because as applied to her,

section 39.06(c) “obviously” violates the First Amendment. The panel

majority initially agreed with her, but on rehearing, it retreated from

proclaiming section 39.06(c) “obviously” unconstitutional. See Villarreal,

44 F.4th at 384 (5th Cir. 2022) (opinion on rehearing) (“On its face, Texas

Penal Code § 39.06(c) is not one of those ‘obviously unconstitutional’

statutes.”). As that turnabout suggests, Villarreal’s contention fails to

surpass three high hurdles. First, no final decision of a state court had held

the law unconstitutional at the time of the arrest. Thus, even if the law were

ultimately held to violate the First Amendment as applied to Villarreal’s

conduct, probable cause would continue to shield the officers from liability.

Second, the Supreme Court and lower courts have not relevantly defined the

contours of an “obviously unconstitutional” statute. Third, the independent

intermediary rule affords qualified immunity to the officers because a neutral

magistrate issued the warrants for Villarreal’s arrest.

a. Enacted Statutes Are Presumptively Constitutional

Courts do not charge officers with predicting the constitutionality of

statutes because the Fourth Amendment’s benchmark is reasonableness.

Heien, 574 U.S. at 60, 135 S. Ct. at 536. Accordingly, the law affords officers

“fair leeway” to make reasonable mistakes of law and fact. Id. at 61,

135 S. Ct. at 536 (quoting Brinegar v. United States, 338 U.S. 160, 176,

69 S. Ct. 1302, 1311 (1949)). In the end, “[w]hether the facts turn out to be

_____________________

which motivation may affect Villarreal’s retaliatory First Amendment prosecution claim is

discussed in Section C.1 below.

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not what was thought, or the law turns out to be not what was thought, the

result is the same: The facts are outside the scope of the law.” Id. Thus,

when a grand jury fails to indict, or charges are later dismissed, officers

cannot be held liable solely for arrests made reasonably but without probable

cause.15 Whether section 39.06 ultimately violates First Amendment

principles as applied here, “the officers’ assumption that the law was valid

was reasonable.” Id. at 64, 135 S. Ct. at 538.16

This principle defeats Villarreal’s contention. At the time of

Villarreal’s arrest, no final decision of a state court had held section 39.06(c)

unconstitutional. When Villarreal petitioned for a writ of habeas corpus after

posting bail, the Texas district court orally granted the writ and ruled

section 39.06 unconstitutionally vague. But that decision is irrelevant. First,

courts only take account of what notice officers had at the time of arrest. As

just noted, police officers are not “expected to predict the future course of

constitutional law.” Wilson v. Layne, 526 U.S. 603, 617, 119 S. Ct. 1692, 1701

(1999) (quoting Procunier v. Navarette, 434 U.S. 555, 562, 98 S. Ct. 855, 860

(1978)). Second, the state habeas court declined to apply section 39.06 to

Villarreal not because its application violated the First Amendment, but

because the law was unconstitutionally vague. (Villarreal does not contend

the statute is unconstitutionally vague.)

Prior to Villarreal’s arrest, one Texas intermediate appellate court

explicitly left open the question of this statute’s vagueness, while distancing

_____________________

15

The Supreme Court’s recent decision in Thompson v. Clark, 596 U.S. __,

142 S. Ct. 1332 (2022), is not to the contrary. That decision held only that actual innocence

is not required as an element of a Fourth Amendment malicious prosecution claim. Id. at

1335.

16

Chief Justice Roberts’s opinion for the Court in Heien traces this sort of

immunity for reasonable mistakes of law back to Chief Justice John Marshall in United

States v. Riddle, 9 U.S. (5 Cranch) 311 (1809). 574 U.S. at 62, 135 S. Ct. at 537.

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itself from the trial court’s holding of unconstitutionality. State v. Newton,

179 S.W.3d 104, 111 (Tex. App.—San Antonio 2005) (“[W]e do not address

the remaining issues raised on appeal, including the constitutionality of

§ 39.06(c) and (d) of the Penal Code.”).17 Moreover, Newton was a

companion case to another prosecution initiated under section 39.06(c). See

State v. Ford, 179 S.W.3d 117, 125 (Tex. App.—San Antonio 2005)

(dismissing indictment because the TPIA does not apply to judicial

information); see also Matter of J.B.K., 931 S.W.2d 581, 584 (Tex. App.—El

Paso 1996) (referring to a potential violation of section 39.06(c) in an attorney

discipline proceeding). Several other prosecutions have been brought under

the companion section 39.06(b), which prohibits a public servant from

disclosing nonpublic information. See Patel v. Trevino, No. 01-20-00445-CV,

2022 WL 3720135 (Tex. App.—Houston Aug. 30, 2022); Tidwell v. State,

No. XX-XXXXXXX-CR, 2013 WL 6405498 (Tex. App.—El Paso Dec. 4, 2013);

Reyna v. State, No. 13-02-499-CR, 2006 WL 20772 (Tex. App.—Corpus

Christi Jan. 5, 2006). These cases reinforce that the officers had no need to

predict the future exegesis of a presumptively constitutional law.

b. Section 39.06(c) Is Not Grossly and Flagrantly Unconstitutional as Applied

Villarreal characterizes her First Amendment claims as invoking her

rights “to peaceably ask officials questions and to engage in routine

newsgathering and reporting.” These rights, she asserts, are “obvious to

_____________________

17

The dissents inaccurately trumpet that district court decisions in Newton and

Ford held sections 39.06(c) and (d) unconstitutionally vague. Even so, such rulings were

abrogated by the court of appeals, which did not endorse the lower court’s constitutional

ruling when dismissing indictments on the statutory analysis that grand jury testimony is

not included in the Open Records Act. It would have been judicially improper for the

appellate court to rule on a constitutional ground when the statutory basis was not even

applicable to the defendants. Moreover, these companion cases arose out of the same

transaction, so they can hardly be disaggregated into two separate constitutional rulings.

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every reasonable official.” If probable cause turned on a defendant’s self-

serving rationales for her conduct, very little law enforcement could take

place. But under existing caselaw, officers are almost always entitled to

qualified immunity when enforcing even an unconstitutional law, so long as

they have probable cause. Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S. Ct.

2627, 2632 (1979). DeFillippo explained the rule and a possible exception for

“a law so grossly and flagrantly unconstitutional that any person of

reasonable prudence would be bound to see its flaws.” Id. (emphasis

added).18 The Court in Heien paraphrased this language when summarizing

DeFillippo. See Heien, 574 U.S. at 64, 135 S. Ct. at 538 (“Acknowledging that

the outcome might have been different had the ordinance been ‘grossly and

flagrantly unconstitutional,’ we concluded that under the circumstances,

‘there was abundant probable cause to satisfy the constitutional prerequisite

for an arrest.’” (quoting DeFillippo, 443 U.S. at 37–38, 99 S. Ct. at 2632)).19

Both DeFillippo and Heien note no more than a possible exception—which the

Supreme Court has not further developed in the forty-three years since

DeFillippo was decided. Although a few circuit court decisions before and

after DeFillippo have rested on the idea of “obvious unconstitutionality,”

none is apposite here, and this case presents no occasion to deviate from the

broad proposition that “[t]he enactment of a law forecloses speculation by

_____________________

18

Cf. Myers v. Anderson, 238 U.S. 368, 382, 35 S. Ct. 932, 936 (1915) (rejecting

immunity of officials against § 1983 liability for refusing to register black citizens to vote in

plain violation of the Fifteenth Amendment). Myers, of course, does not deal with probable

cause.

19

DeFillippo, it bears emphasis, is not limited to the exclusionary rule remedy for a

constitutional violation—it applies to the determination of a Fourth Amendment violation

itself. See Heien, 574 U.S. at 66, 135 S. Ct. at 539.

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enforcement officers concerning its constitutionality.” DeFillippo, 443 U.S.

at 38, 99 S. Ct. at 2632.20

Villarreal analogizes her conduct to that in Sause v. Bauer, in which,

she alleges, the Supreme Court held it is “obvious” that the right to pray is

protected by the First Amendment, and that an arrest of someone praying

was an obvious constitutional violation. She misconstrues Sause. The

Supreme Court reversed and remanded for further proceedings because

there were not enough facts to determine whether “circumstances [existed]

in which a police officer may lawfully prevent a person from praying at a

particular time and place.” Sause, 138 S. Ct. at 2562.

For example, if an officer places a suspect under arrest and

orders the suspect to enter a police vehicle for transportation

to jail, the suspect does not have a right to delay that trip by

insisting on first engaging in conduct that, at another time,

would be protected by the First Amendment.

Id. at 2562–63. Sause made no holding that the “obvious” violation

exception applies broadly to arrests that may impinge on First Amendment

rights; indeed, the court’s hypothetical example suggests the opposite

proposition.

_____________________

20

A handful of circuit court decisions that predate Heien denied qualified immunity

where the courts held the underlying statutes or ordinances were “obviously

unconstitutional.” None is remotely similar to the case before us. See Leonard v. Robinson,

477 F.3d 347, 359 (6th Cir. 2007) (disruption of a public assembly with profanity); Lawrence

v. Reed, 406 F.3d 1224, 1233 (10th Cir. 2005) (denial of due process); Carey v. Nev. Gaming

Control Bd., 279 F.3d 873, 881 (9th Cir. 2002) (failure to provide ID to police).

Two more recent decisions are no more apposite because they involve quite

different First Amendment issues. Ballentine v. Tucker, 28 F.4th 54, 66 (9th Cir. 2022)

(retaliatory arrest for “chalking” anti-police messages); Thompson v. Ragland, 23 F.4th

1252, 1255-56 (10th Cir. 2022) (discipline against college student exercising speech).

22

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Closer on point is DeFillippo, where the Court upheld an officer’s

arrest of a suspect for failing to identify himself in violation of Michigan law,

even though a state court later held that law unconstitutionally vague.

DeFillippo, 443 U.S. at 34–35, 99 S. Ct. at 2631 (noting that DeFillippo was

ultimately charged with possession of a controlled substance). The law on its

face raised an issue of compelled speech in violation of the First Amendment.

Yet at the time of DeFillippo’s arrest, “there was no controlling precedent

that this statute was or was not constitutional, and hence the conduct violated

a presumptively valid ordinance.” Id. at 37, 99 S. Ct. at 2632. Even if

Villarreal’s arrest implicated her First Amendment rights, this case is

substantially similar to DeFillippo because there was certainly no “obvious”

constitutional violation.

If more were needed, in Vives v. City of New York, 405 F.3d 115, 116–

17 (2d Cir. 2004), the court held that officers were entitled to qualified

immunity for arresting a defendant under an “aggravated harassment”

statute on account of his harassing letter to a candidate for state office. The

statute had never before been declared unconstitutional, and state courts had

declined to find it unconstitutional. Consequently, the statute was far from

being “so grossly and flagrantly unconstitutional that any person of

reasonable prudence would be bound to see its flaws.” Id. at 117 (quoting

Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 103 (2d Cir. 2003)).

Because Villarreal’s conduct fell within the elements of a violation of

section 39.06(c), a statute that is not “grossly and flagrantly

unconstitutional,” the officials could rely on the presumptively valid law.

c. The Independent Intermediary Rule Shields the Officers

The third basis for sustaining the Appellees’ qualified immunity is

that a neutral magistrate issued the warrants for Villarreal’s arrest. A warrant

secured from a judicial officer typically insulates law enforcement personnel

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who rely on it. See Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988); see also

Buehler v. City of Austin/Austin Police Dep’t, 824 F.3d 548, 553–54 (5th Cir.

2016) (applying independent intermediary doctrine to false arrest claims

under First and Fourth Amendment). Villarreal argues her claim can be

shoehorned into the independent intermediary rule’s single, narrow

exception, which arises “when ‘it is obvious that no reasonably competent

officer would have concluded that a warrant should issue.’” Messerschmidt

v. Millender, 565 U.S. 535, 547, 132 S. Ct. 1235, 1245 (2012) (emphasis added)

(quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096 (1986)).

Further, the magistrate’s mistake in issuing the arrest warrant must be “not

just a reasonable mistake, but an unacceptable error indicating gross

incompetence or neglect of duty.” Malley, 475 U.S. at 346 n.9, 106 S. Ct. at

1098 n.9.

That is a high bar. The Supreme Court puts such weight on a

magistrate’s determination because

[i]t is the magistrate’s responsibility to determine whether the

officer’s allegations establish probable cause and, if so, to issue

a warrant comporting in form with the requirements of the

Fourth Amendment. In the ordinary case, an officer cannot be

expected to question the magistrate’s probable-cause

determination or his judgment that the form of the warrant is

technically sufficient.

United States v. Leon, 468 U.S. 897, 921, 104 S. Ct. 3405, 3419 (1984). “It is

a sound presumption that the magistrate is more qualified than the police

officer to make a probable cause determination.” Malley, 475 U.S. at 346 n.9,

106 S. Ct. at 1098 n.9.

It cannot be said no reasonable officer would think warrants should

have issued here. The warrant affidavits were not mere “barebones”

affidavits without any factual support. Spencer v. Staton, 489 F.3d 658, 661

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(5th Cir. 2007), modified on other grounds on reh’g, 489 F.3d 666 (5th Cir.

2007). Nor has Villarreal alleged anything beyond conclusional assertions

that defendants tainted the intermediary’s decision-making process by

“maliciously withh[olding] relevant information or otherwise misdirect[ing]

the intermediary.” Shaw v. Villanueva, 918 F.3d 414, 417 (5th Cir. 2019).

Each arrest warrant affidavit is eight pages long and each one quotes

conversations between Villarreal and Officer Goodman about information

not yet made public and later posted on Villarreal’s Facebook page to the

benefit of her journalism activity. Villarreal’s conduct more than arguably

matches what is forbidden by the text of section 39.06(c).

The reasoning of DeFillippo and Heien concerning mistakes of law is

also relevant to the independent intermediary rule. Suppose the officers were

unsure whether section 39.06(c) applied to Villarreal. They had every right

to rely on the legal experience of the District Attorney and neutral magistrate

judge. It is one thing to hold the DA, assistant DA, and the officers

responsible under Malley and its progeny for known mistakes of fact

(although Villarreal identifies no specific factual mistakes in the warrant

affidavits). It is entirely different and unreasonable to say the officers’

reliance on a neutral magistrate’s application of the law is outside the

boundary of reasonableness for qualified immunity.21 To hold otherwise, as

_____________________

21

Villarreal makes conclusory allegations that Officer Ruiz “knew or should have

known” that the information she published was not subject to a TPIA exception, and that

Villarreal did not use her Facebook page “as a means of economic gain.” These allegations

ask for conclusions of law, precisely the domain of the magistrate who oversaw issuance of

the warrants. Yet Judge Higginson’s dissent asserts these statements amounted to material

misstatements and omissions that tainted the magistrate’s neutral decisional process. How

can that be? The terms of the statute and the TPIA regarding “nonpublic information”

and “benefit” were exactly what the magistrate was called upon to apply to the facts before

him. Any error about “benefit,” it must also be recalled, is harmless because Villarreal’s

own pleadings admit she received “benefits” from her citizen journalism.

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Chief Judge Richman’s dissent urged, would “shred[] the independent

intermediary doctrine.” Villarreal, 44 F.4th at 380 (opinion on rehearing).

* * *

Probable cause existed to arrest Villarreal for allegedly violating a

presumptively valid Texas law that had not previously been overturned. On

its face, the law was not grossly and flagrantly unconstitutional, and the arrest

warrants were approved by a neutral magistrate. Since there was no Fourth

Amendment violation, the officers have qualified immunity on these grounds

alone from Villarreal’s First Amendment claims.

B. No Clearly Established Right

Nonetheless, because Villarreal rests her case on the “obviousness”

of her First Amendment rights to “ask questions of a government official”

and “pursue her work as a journalist,” we proceed to the second step of the

qualified immunity analysis and consider whether the asserted constitutional

rights were “clearly established” at the time of the alleged violation. Thus,

even if the arrests were constitutionally infirm, the officers are entitled to

qualified immunity unless Villarreal can identify binding precedent that

“placed the statutory or constitutional question beyond debate,” so that

“every reasonable official would have understood that what he is doing

violates that right.” Rivas-Villegas, 595 U.S. at 5, 142 S. Ct. at 7–8 (internal

quotations and citations omitted). “That is because qualified immunity is

inappropriate only where the officer had fair notice—in light of the specific

context of the case, not as a broad general proposition—that his particular

conduct was unlawful.” Craig v. Martin, 49 F.4th 404, 417 (5th Cir. 2022)

(internal quotation marks and citation omitted). In other words, “police

officers are entitled to qualified immunity unless existing precedent squarely

governs the specific facts at issue.” Kisela v. Hughes, 584 U.S. __, 138 S. Ct.

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1148, 1153 (2018) (per curiam) (internal quotation marks and citation

omitted).

Villarreal cites no case, nor are we aware of one, where the Supreme

Court, or any other court, has held that it is unconstitutional to arrest a

person, even a journalist, upon probable cause for violating a statute that

prohibits solicitation and receipt of nonpublic information from the

government for personal benefit. Under the normal standards of qualified

immunity, no “clearly established law” placed the officers on notice of

Villarreal’s First Amendment right not to be arrested. Villarreal, however,

relies on Eighth Amendment cases where the Supreme Court denied

qualified immunity for deliberate indifference to unconstitutional prison

conditions and declined to scrutinize the cases fact-specifically. See Hope v.

Pelzer, 536 U.S. 730, 738–39, 122 S. Ct. 2508, 2514–15 (2002) (“[T]he risk of

harm [to the prisoners] is obvious.”); Taylor v. Riojas, 592 U.S. __, 141 S. Ct.

52, 54 (2020)(per curiam) (“Confronted with the particularly egregious facts

of this case, any reasonable officer should have realized that Taylor’s

conditions of confinement offended the Constitution.”) (footnote omitted));

McCoy v. Alamu, 141 S. Ct. 1364 (2021) (instructing the court to reconsider

an Eighth Amendment case “in light of Taylor”).

Hope and its progeny express a general, but decidedly narrow,

obviousness exception to the requirement that “clearly established law” be

founded on materially identical facts. In any event, those cases are

inappropriate templates for describing “clearly established” law in this

context. In Morgan v. Swanson, 659 F.3d 359, 373 (5th Cir. 2011) (en banc), a

case involving First Amendment free exercise rights, this court noted that

Hope does not stand for the broad proposition that plaintiffs need not offer

any similar cases to prove that an officer should have been on notice that his

conduct violated the Constitution. Hope does not excuse plaintiffs from

proving that every reasonable official would know the conduct at issue

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violates the Constitution. And Sause, if anything, also strongly implies that

an individual’s claimed First Amendment rights must be closely analyzed

when the question involves probable cause for an arrest, or an officer’s

qualified immunity. 142 S. Ct. at 2562–63.

Consequently, we adhere to the general rule that for an asserted right

to be clearly established for purposes of qualified immunity, it must “have a

sufficiently clear foundation in then-existing precedent” that it is “settled

law.” Wesby, 583 U.S. at 63, 138 S. Ct. at 589 (citation omitted). “The

precedent must be clear enough that every reasonable official would interpret

it to establish the particular rule the plaintiff seeks to apply.” Id., 138 S. Ct.

at 590 (emphasis added). The law is not clearly established if referenced

cases are “materially distinguishable and thus do[] not govern the facts of this

case.” Rivas-Villegas, 595 U.S. at 6, 142 S. Ct. at 8.

Villarreal identifies a general First Amendment principle—that a

third party may publish sensitive government information already in the

public domain—as evidence that the officer defendants violated clearly

established law by arresting her with a warrant upon probable cause for

violating section 39.06. But the alleged unlawfulness of the defendants’

conduct here “does not follow immediately,” or even secondarily, from the

cases Villarreal cites. Wesby, 583 U.S. at 64, 138 S. Ct. at 590 (quoting

Creighton, 483 U.S. at 641, 107 S. Ct. at 3039).

The principal cases Villarreal relies on involve publication of certain

information already in the public domain. See N.Y. Times Co. v. United States,

403 U.S. 713, 714, 91 S. Ct. 2140, 2141 (1971) (per curiam) (vacating an

injunction against publishing the Pentagon Papers, a classified study of

United States involvement in Vietnam, obtained without illegal action by the

press); Fla. Star v. B.J.F., 491 U.S. 524, 538, 109 S. Ct. 2603, 2611 (1989)

(stating that, when the government inadvertently places an incident report in

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the pressroom, “it is clear . . . that the imposition of damages against the press

for its subsequent publication can hardly be said to be a narrowly tailored

means of safeguarding anonymity”). A right to publish information that is no

longer within the government’s control is different from what Villarreal did:

she solicited and received nonpublic information from a public official for

personal gain.

Moreover, Villarreal correctly asserts that journalists have an

undoubted right to gather news “from any source by means within the law,”

but “[i]t has generally been held that the First Amendment does not

guarantee the press a constitutional right of special access to information not

available to the public generally.” Branzburg v. Hayes, 408 U.S. 665, 681–82,

684, 92 S. Ct. 2646, 2657–58 (1972) (citing cases); see also Houchins v.

KQED, Inc., 438 U.S. 1, 15, 98 S. Ct. 2588, 2597 (1978) (plurality opinion)

(“Neither the First Amendment nor the Fourteenth Amendment mandates

a right of access to government information or sources of information within

the government’s control.”). “Newsmen have no constitutional right of

access to the scenes of crime or disaster when the general public is excluded,

and they may be prohibited from attending or publishing information about

trials if such restrictions are necessary to assure a defendant a fair trial before

an impartial tribunal.” Branzburg, 408 U.S. at 684–85, 92 S. Ct. at 2658.

Further, “[t]he Court has emphasized that ‘(t)he publisher of a newspaper

has no special immunity from the application of general laws. He has no

special privilege to invade the rights and liberties of others.’” Id. at 683,

92 S. Ct. at 2657 (quoting Associated Press v. NLRB, 301 U.S. 103, 132–33,

57 S. Ct. 650, 656 (1937)). And the Court has been unequivocal that there is

no journalist privilege or immunity from prosecution under generally

applicable law. Nor is a journalist “free to publish with impunity everything

and anything [he] desires to publish.” Id., 92 S. Ct. at 2658 (citing cases).

Villarreal’s First Amendment rights as a citizen journalist are therefore based

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on news gathering by “means within the law.” Far from supporting the

“obviousness” of her claims, these authorities require further careful

analysis before any constitutional violation can be ascribed to her arrest.

The First Amendment also does not prevent the elected political

branches from protecting “nonpublic” information. L.A. Police Dep’t v.

United Reporting Pub. Corp., 528 U.S. 32, 40, 120 S. Ct. 483, 489 (1999)

(“[W]hat we have before us is nothing more than a governmental denial of

access to information in its possession. California could decide not to give

out arrestee information at all without violating the First Amendment.”).

The State of Texas chose to protect certain information from immediate

disclosure in order to ensure that the government can function. If citizens

possessed some overarching constitutional right to obtain information from

the government, laws like the TPIA and the Freedom of Information Act

would be superfluous. We do not presume the Texas legislature or Congress

performed meaningless acts in protecting public access to information that

was already required to be in the public domain under the First Amendment.

To the contrary, “[t]he Constitution itself is neither a Freedom of

Information Act nor an Official Secrets Act.” Houchins, 438 U.S. at 14,

98 S. Ct. at 2596 (plurality opinion).22 Whatever the outcome of particular

challenges to denials of access to nonpublic information, Villarreal cannot

sustain the proposition that Texas “obviously” had no authority to outlaw

disclosure (at least temporarily, e.g., pending notification of next of kin) of

the information she sought or to prohibit her from soliciting unlawful

disclosure for her benefit.

_____________________

22

The Court examined the history of Freedom of Information Act laws and noted

they “are of relatively recent vintage.” McBurney v. Young, 569 U.S. 221, 234, 133 S. Ct.

1709, 1719 (2013) (holding the Virginia Freedom of Information Act did not violate the

Privileges and Immunities Clause).

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An addendum to Villarreal’s position is her claim that the First

Amendment “right to petition for a redress of grievances” was “obviously”

violated by her arrest. “The right to petition allows citizens to express their

ideas, hopes, and concerns to their government and their elected

representatives.” Borough of Duryea v. Guarnieri, 564 U.S. 379, 388,

131 S. Ct. 2488, 2495 (2011). The Petition Clause is plainly not relevant to

establish the right she promotes. Soliciting nonpublic information for

personal benefit is neither an act of “petition” nor “for a redress of

grievances.”

No case would have given these officers “fair notice” that their

conduct in arresting Villarreal would run afoul of the First Amendment.

Consequently, she has not met her burden on the second prong of the

qualified immunity standard. Brosseau v. Haugen, 543 U.S. 194, 198,

125 S. Ct. 596, 599 (2004).

C. Additional Claims

Each defendant is entitled to qualified immunity on Villarreal’s

remaining claims because she fails to allege any plausible constitutional

violations.

1. First Amendment Retaliation

Villarreal fails to state a First Amendment retaliation claim. “The

First Amendment prohibits not only direct limits on individual speech but

also adverse governmental action against an individual in retaliation for the

exercise of protected speech activities.” Keenan v. Tejeda, 290 F.3d 252, 258

(5th Cir. 2002). To establish such a claim against the defendants, Villarreal

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

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defendants’ adverse actions were substantially motivated

against [her] exercise of constitutionally protected conduct.

Id. (citations omitted).

Villarreal fails to adequately plead a First Amendment retaliation

claim because the officers had probable cause under section 39.06, and she

does not allege that defendants curtailed her exercise of free speech. Nor

does Villarreal have an actionable retaliatory investigation claim, because this

court does not recognize such a claim. See Colson v. Grohman, 174 F.3d 498,

512 (5th Cir. 1999) (holding that “criticism, an investigation (or an attempt

to start one), and false accusations” are “all harms that . . . are not actionable

under our First Amendment retaliation jurisprudence”).

Further, the Supreme Court maintains that probable cause “generally

defeat[s] a First Amendment retaliatory arrest claim.” Nieves v. Bartlett,

587 U.S. __, 139 S. Ct. 1715, 1726 (2019). The Court articulated a narrow

exception “where officers have probable cause to make arrests, but typically

exercise their discretion not to do so.” Id. at 1727. To benefit from this

exception, Villarreal must “present[] objective evidence that [s]he was

arrested when otherwise similarly situated individuals not engaged in the

same sort of protected speech had not been.” Id. Villarreal does not offer

evidence of other similarly situated individuals who engaged in the same

conduct in violation of section 39.06(c) yet were not arrested.

Judge Higginson suggests the Nieves exception has been met here

because, allegedly, no one has ever been prosecuted for violating section

39.06(c). There have been prosecutions under other related statutory

sections, of course. By the same token, Judge Higginson’s analysis does not

identify “similarly situated individuals” who solicited or received nonpublic

information to obtain a benefit but were not prosecuted; he merely assumes

the conclusion. But more to the point, plaintiff offered no evidence of

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similarly situated individuals, perhaps because others are not in the habit of

obtaining backchannel information about ongoing criminal investigations,

like Villarreal.

2. Fourteenth Amendment Selective Enforcement

Villarreal’s Fourteenth Amendment selective enforcement claim

likewise required her to identify “examples” of similarly situated individuals

who were nonetheless treated differently. Tex. Ent. Ass’n, Inc. v. Hegar,

10 F.4th 495, 514 (5th Cir. 2021). “‘Similarly situated’ means ‘in all relevant

respects alike.’” Golden Glow Tanning Salon, Inc. v. City of Columbus,

52 F.4th 974, 978 (5th Cir. 2022) (quoting Tex. Ent. Ass’n, 10 F.4th at 513).

Villarreal did not provide even one example of an individual similarly situated

to her in all relevant respects who was not arrested for his conduct. This

claim fails.

3. Conspiracy

Last, Villarreal cannot maintain a § 1983 conspiracy claim because

each officer is immune from suit. “To support a conspiracy claim under

§ 1983, the plaintiff must allege facts that suggest ‘an agreement between

the . . . defendants to commit an illegal act’ and ‘an actual deprivation of

constitutional rights.’” Terwilliger v. Reyna, 4 F.4th 270, 285 (5th Cir. 2021)

(quoting Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994)). If all the “acts

fall under qualified immunity, there can be no § 1983 conspiracy claim.”

Mowbray v. Cameron County, 274 F.3d 269, 279 (5th Cir. 2001). The

conspiracy claim was correctly dismissed.

IV. Conclusion

For the foregoing reasons, we AFFIRM the district court’s

judgment.

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James E. Graves, Jr., Circuit Judge, joined by Elrod, Higginson,

Willett, Ho, and Douglas, Circuit Judges, dissenting:

I agree with the persuasive opinions from my dissenting colleagues. I

agree with Judge Higginson that the majority errs by failing to credit

Villarreal’s allegations as true; with Judge Willett that qualified immunity is

not appropriate here, where no official was compelled to make a “split-

second judgment”; and with Judge Ho that, among other things, the majority

opinion will permit government officials to retaliate against speech while

hiding behind cherry-picked state statutes.

As Judge Ho notes, the majority is also wrong to disparage Villarreal

for, as it writes, “capitaliz[ing] on others’ tragedies to propel her reputation

and career.” Ante at 2. Not only is that characterization of Villarreal’s

enterprise unfair—as the majority writes, her journalistic endeavor survives

off the solicitude of fans and “occasional” advertising, id. at 3—but it

insinuates that Villarreal’s First Amendment rights are somehow diminished

because she makes a modest living while exercising them.

I write separately to emphasize the importance of gathering and

reporting news. Villarreal is a journalist.1 A journalist is someone who, on a

professional or even semi-professional basis, acts as an agent for the people,

representing what the Supreme Court has called the “public interest,

secured by the Constitution, in the dissemination of truth,” The Fla. Star v.

B.J.F., 491 U.S. 524, 533 (1989). The right to gather and report news could

not be more firmly embedded in the Constitution. The text of the First

_____________________

1

Villarreal’s appeal is supported by, among other amici, the Texas Press

Association, the Texas Association of Broadcasters, the Freedom of Information

Foundation of Texas, the Reporters Committee for Freedom of the Press, the Texas

Tribune, the Dallas Morning News, the National Association of Hispanic Journalists, and

the Society of Professional Journalists. Together, they write that “Villarreal is a citizen

journalist” who “provides a valued source of information for over 120,000 followers on

local news and events, at a time when mainstream news organizations are increasingly

stretched thin to cover community news.”

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Amendment itself forbids the government from “abridging the freedom . . .

of the press.” U.S. Const. amend. I.

There is simply no way such freedom can meaningfully exist unless

journalists are allowed to seek non-public information from the government.

Today’s majority opinion overlooks that protection all too cavalierly. But in

fact, the right to “newsgathering” has long been protected in American

jurisprudence. See Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (“[W]ithout

some protection for seeking out the news, freedom of the press could be

eviscerated.”). The Supreme Court has made clear that the First

Amendment protects the publication of information obtained via “routine

newspaper reporting techniques”—which include asking for the name of a

crime victim from government workers not clearly authorized to share such

information. Smith v. Daily Mail Pub. Co., 443 U.S. 97, 99, 103-04 (1979).

The majority at times conflates that right with the government’s

prerogative to “guard against the dissemination of private facts.” Fla. Star,

491 U.S. at 534. But those two principles are not mutually exclusive—the

government’s power to protect certain information has little to do with a

person’s right to ask for it. This case does not concern the rights of the officer

who furnished Villarreal with information, or what means a local government

may use to prevent employees from exposing sensitive information. It

concerns only the rights of a third party who did nothing more than ask.

Moreover, the Supreme Court has held that restraints on the

publication of lawfully obtained, truthful information are only allowed when

they further “a state interest of the highest order.” Fla. Star, 491 U.S. at 541.

And the Court has already explained that preserving the anonymity of a

juvenile offender did not meet that standard—so it seems unlikely that

preserving the anonymity of automobile accident victims, or victims of

suicide, as in this case, would fare any better. Smith, 443 U.S. at 104. Nor did

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anything make it unlawful for Villarreal to obtain that information, except for

the law that she now argues is unconstitutional.

While I agree with Judge Ho that the enforcement of Texas Penal

Code § 39.06(c) against Villarreal was obviously unconstitutional in light of

the broad right of each person to ask questions of the government, it is also

obviously unconstitutional in light of the related and equally well-established

right of journalists to engage in routine newsgathering. That right, arising out

of the plain language of the Constitution, acknowledges that journalists play

a special role in our society as agents of the people. They are individuals who

take on a civic and professional responsibility to keep the public informed,

and thereby provide a crucial check on the power of the government. That is

not to say that press possess any right of access to information that is

unavailable to the general public, see Branzburg, 408 U.S. at 684—only that,

more often than not, it is the press to which we delegate the responsibility of

asking for that information.

Today’s decision has profound practical implications. As amici note,

American society has often benefitted when journalists have acquired non-

public information from unofficial sources. Americans only learned about the

horrific My Lai Massacre, during the Vietnam War, because a journalist

asked a backchannel Pentagon source about it.2 Many years later, that same

journalist reported details of prisoner abuse at the Abu Ghraib prison after

gleaning them from a non-public military report.3 Confidential sources have

_____________________

2

Ian Shapira, ‘It was insanity’: At My Lai, U.S. soldiers slaughtered hundreds of

Vietnamese women and kids, The Washington Post (March 16, 2018),

https://www.washingtonpost.com/news/retropolis/wp/2018/03/16/it-was-insanity-at-

my-lai-u-s-soldiers-slaughtered-hundreds-of-vietnamese-women-and-kids.

3

Seymour M. Hersh, Torture at Abu Ghraib, The New Yorker (April 30,

2004), https://www.newyorker.com/magazine/2004/05/10/torture-at-abu-ghraib.

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also played an important role in exposing police abuses.4 And in one

particularly noteworthy example, an unauthorized source provided a

classified study on war policy to American news outlets—and the ensuing

legal case made it to the Supreme Court, which rejected efforts to suppress

the study’s publication. See New York Times Co. v. United States, 403 U.S.

713, 714 (1971).

But now, the majority would limit journalists who work the

government beat to publicly disclosed documents and official press

conferences, meaning they will only be able to report information the

government chooses to share. That outcome is unfortunate, unfair, and

unconstitutional. It is unfortunate because a democracy functions properly

only when the citizenry is informed. It is unfair because it restricts the

journalistic freedom to gather information. And it is unconstitutional, for

“[a] free press cannot be made to rely solely upon the sufferance of

government to supply it with information.” Smith, 443 U.S. at 104. Indeed,

it is not even clear whether the majority’s opinion would allow journalists to

request information in good faith from official channels without fear of

reprisal.

I respectfully dissent.

_____________________

4

Los Angeles Sheriff's deputies say gangs targeting “young Latinos” operate within

department, CBS News (February 25, 2021), https://www.cbsnews.com/news/los-

angeles-sheriffs-deputies-gangs-young-latinos.

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Stephen A. Higginson, Circuit Judge, joined by Elrod, Graves,

Willett, Ho, Oldham, and Douglas, Circuit Judges, dissenting:

Few constitutional progenitors are more celebrated by our Founding

Fathers than Thomas Paine, the citizen-journalist who published Common

Sense, the pro-independence pamphlet that historian Gordon Wood

describes as “the most incendiary and popular pamphlet of the entire

revolutionary era.” Gordon S. Wood, THE AMERICAN REVOLUTION: A

HISTORY 55 (Modern Library, 2002). To safeguard both the text of the

Constitution, as well as the values and history that it reflects, the Supreme

Court guarantees the First Amendment right of engaged citizen-journalists,

like Paine, to interrogate the government. Judge Ho forcefully describes the

obviousness of that guarantee, and I am confident all judges share the late

Judge Silberman’s similar, cautionary sentiment “that the most heinous act

in which a democratic government can engage is to use its law enforcement

machinery for political ends.”1

Priscilla Villarreal alleges that law enforcement officials in Laredo,

Texas did precisely this: They arrested her because her newsgathering and

reporting activities annoyed them. To silence her as a critic and gadfly, she

claims, they arrested her.

Villarreal is entitled to have the district court resolve her plausible

allegation that the government officers who arrested her lacked probable

cause, and misled the magistrate whose warrants they now claim should

insulate them from liability for their unconstitutional actions. And even if

these officers had probable cause to arrest her, the Supreme Court in

Nieves v. Bartlett, 139 S.Ct. 1715 (2019) has instructed courts on how to

_____________________

1

Laurence H. Silberman, Hoover’s Institution, WALL ST. J. (July 20, 2005),

https://www.wsj.com/articles/SB112182505647390371.

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respond when an individual brings a complaint against the government for

First Amendment retaliation. Because that instruction was not applied, I

would vacate and remand.

I. Villarreal alleges that her arresting officers lacked probable cause and

misled the magistrate who issued her arrest warrants.

Even if the majority is correct that Villarreal is obliged to plead no

probable cause as to a crime that does not exist, see Trevino v. Iden, 79 F.4th

524, 531 (5th Cir. 2023), she did. In the light most favorable to her, her

allegation is that Defendant Ruiz, supervised and directed by the other

named Defendants, tainted evidence to mislead and obtain warrants to arrest

and silence her:

90. Ruiz knew or should have known that the Statute

required a showing that the information at issue not be

generally available to the public and that it be excepted from

disclosure under the TPIA. And 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.

…

92. Ruiz also knew or should have known that the

Statute required a showing that Villarreal intended to enjoy an

economic advantage or gain from the request for or receipt of

the information in the Targeted Publications. But Ruiz failed to

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recite this essential element of the Statute in the Arrest

Warrant Affidavits, and failed to state how or why Villarreal

intended to enjoy an economic gain or advantage from the

information. Ruiz alleged only that Villarreal’s release of the

information before other news outlets gained her popularity in

Facebook. On information and belief, Ruiz’s

misrepresentations and omissions were deliberate.

93. Defendants Alaniz, Jacaman, Treviño, Ruiz, DV,

and the Doe Defendants were aware or should have been aware

that at all times leading up to Villarreal’s arrest, Villarreal did

not use her Facebook page as a means of economic gain.

94. Ruiz’s statements in the Arrest Warrant Affidavits

did not address Villarreal’s intent or knowledge in receiving or

using the information, despite this being required by the

statute. The affidavits also did not address whether Villarreal

knew she was asking for or receiving non-publicly accessible

information from an official source. On information and belief,

Ruiz’s omissions were deliberate.

95. Two warrants for Villarreal’s arrest—for each of the

Targeted Publications—were issued on December 5, 2017

(“Arrest Warrants”). The Arrest Warrant issued as a result of

the knowing or reckless misrepresentations and omissions of

key elements and facts Arrest Warrant Affidavits.

…

165. Lacking a valid basis to arrest Villarreal,

Defendants Alaniz, Jacaman, Treviño, Ruiz, DV, and the Doe

Defendants (a) knowingly manufactured allegations under a

pretextual application of Texas Penal Code § 39.06, upon

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which no reasonable official would have relied under the

circumstances; (b) knowingly prepared and obtained a warrant

for Villarreal’s arrest under false pretenses; and (c) knowingly

arrested and detained her and/or caused her arrest and

detention without probable cause and against her will, based on

a knowing or deliberately indifferent wrongful application of

TEXAS PENAL CODE § 39.06.

This extensive allegation is detailed. It is a plausible allegation that law

enforcement knew, but did not disclose to the court they approached for the

authority to arrest Villarreal, that she had sought no benefit from her

sourcing, and that she had obtained no non-public information. It is an

allegation that exculpatory facts were obscured by the Defendants in their

affidavits so that they could mislead a magistrate to confirm probable cause

for them to arrest Villarreal.

Despite this specific allegation of law enforcement

“misrepresentations and omissions”—and despite significant reiteration of

this allegation in the motion to dismiss hearing—the district court failed to

address, much less credit, the contention that Defendants misled the

magistrate whom they now offer, and our court majority accepts, as a shield

behind whose probable cause finding they can hide.2

_____________________

2

Compare Transcript of Hearing on Defendant’s Motion to Dismiss at 25,

Villarreal v. City of Laredo, No. 5:19-00048 (S.D. Tex. Sep. 9, 2019), ECF No. 58

(“[I]mmunity doesn’t apply if the allegations are sufficient to show. . . taint[] [a]nd that’s

exactly what happened with – Ms. Villarreal has alleged here, Your Honor.”), and id. at 80

(“[T]hey selected a statute, applied it to her to arrest her knowing there was no probable

cause” in order to “try[] to manufacture an arrest warrant affidavit[] to give the false

impression that there was.”), and id. at 98 (“[E]ven though there’s an intervening, you

know, independent judicial officer where the defendants engage in acts that lead to

omissions, lead to misstatements in the affidavit presented to the officer, that upsets that

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Of course, the manipulation of a magistrate who issues an arrest

warrant, accomplished by malicious law enforcement, remains an untested

allegation. But at the dismissal stage—before we, as judicial government

officers, confer immunity as a matter of law on executive government

officers—a comprehensive complaint that law enforcement misled a court

must be taken not just as true, but in the light most favorable to the citizen-

complainant. See McLin v. Ard, 866 F.3d 682, 689–90 & n.3 (5th Cir. 2017).

Otherwise, the “independent intermediary doctrine” would over-

protect police misconduct, and even reward it. Indeed, the heart of the

independent intermediary doctrine—which has strong critics, such as the

Cato Institute, appearing before us here as amicus curiae3—depends on the

assumption in its title. A judicial “intermediary,” whose post-hoc

determination will operate legally to shield police from liability for

unconstitutional action, must of course be “independent” from the

underlying illegality. Thus, “if facts supporting an arrest are placed before an

independent intermediary such as a magistrate or grand jury, the

intermediary’s decision breaks the chain of causation’ for the Fourth

Amendment violation.” Jennings v. Patton, 644 F.3d 297, 300–01 (5th Cir.

2011) (quoting Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808, 813 (5th Cir.

2010)). But this is true only “whe[n] all the facts are presented to the grand

jury, or other independent intermediary[,] where the malicious motive of the

law enforcement officials does not lead them to withhold any relevant

information from the independent intermediary.” Cuadra, 626 F.3d at 813

_____________________

intervening authority. And you can’t have qualified immunity as a result.”), with

Memorandum and Order at 14-15, Villarreal v. City of Laredo, No. 5:19-00048 (S.D. Tex.

May 8, 2020), ECF No. 51 (paraphrasing paragraphs 90-93 of the first amended complaint,

yet overlooking the taint allegation in paragraph 91).

3

See also generally Amanda Peters, The Case for Replacing the Independent

Intermediary Doctrine with Proximate Cause and Fourth Amendment Review in § 1983 Civil

Rights Cases, 48 PEPP. L. REV. 1 (2021).

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(citation omitted) (emphasis added). Otherwise, a malicious officer seeking

to obtain a facially valid arrest warrant would “be absolved of liability simply

because he succeeded.” Thomas v. Sams, 734 F.2d 185, 191 (5th Cir. 1984)

(citation omitted); see also Wilson v. Stroman, 33 F.4th 202, 208 (5th Cir.

2022).

This is our court’s settled “taint” exception critical to our

independent intermediary doctrine—in the vernacular, preventing “garbage

in, garbage out”—which we have restated for over thirty years. See Hand v

Gary, 838 F.2d 1420, 1427-28 (5th Cir. 1988) (“[T]he chain of causation is

broken only where all the facts are presented to the grand jury, where the

malicious motive of the law enforcement officials does not lead them to

withhold any relevant information . . . from the independent intermediary.

Any misdirection of the magistrate or the grand jury by omission or

commission perpetuates the taint of the original official behavior.”)

(emphases added); Winfrey v. Rogers, 901 F.3d 483, 497 (5th Cir. 2018)

(same); see also Morris v. Dearborne, 181 F.3d 657, 673 (5th Cir. 1999) (“[T]he

question of causation is ‘intensely factual’ . . . A fact issue exists regarding

the extent to which (if at all) Dearborne subverted the ability of the court to

conduct independent decision making by providing false information, and in

so doing, withholding true information.”).

It is important to emphasize, again, that Villarreal may be wrong in her

accusation of malice and law enforcement abuse of office. The Defendants

may not have misled anyone to secure their warrants to arrest her. But when

there is uncertainty, especially at the dismissal stage, see McLin, 866 F.3d at

689-690 & n.3, we are explicit that this judicially-created shield from liability

for a false arrest “does not apply,” Winfrey, 901 F.3d at 497. And we are

equally clear that at the dismissal stage, “it is [the defendant’s] burden to

prove the omitted material information was presented to the [intermediary

that found probable cause].” Winfrey v. Johnson, 766 F. App’x 66, 71 (5th

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Cir. 2019) (applying Winfrey, 901 F.3d at 497). Otherwise, police immunity

would mean police impunity. See Bledsoe v. Willis, No. 23-30238, 2023 WL

8184814, at *4–5 (5th Cir. Nov. 27, 2023) (unpublished).

II. Because Villarreal alleges her arrest was atypical, her arrestors do not

get immunity without inquiry even if they had probable cause to arrest

her.

When a plaintiff alleges that she was arrested in retaliation for First

Amendment activity, “probable cause should generally defeat a retaliatory

arrest claim.” Nieves, 139 S. Ct. at 1727. But “when a plaintiff presents

objective evidence that [s]he was arrested when otherwise similarly situated

individuals not engaged in the same sort of protected speech had not been,”

she can prevail even if the arresting officer had probable cause. Id.

Villarreal’s first amended complaint alleges that “[Officer

Defendants] selected the Statute as a pretext to target Villarreal. They did so

despite knowing that LPD, WDCA, and the Webb County Sheriff had never

arrested, detained, or prosecuted any person before under the Statute.” This

conduct falls squarely within the Nieves exception. In fact, there could be no

better example of a crime never enforced than this one. Texas has never

prosecuted it to conviction, ever. At no point in their district or appellate

court briefing did Defendants contest Villarreal’s allegation that law

enforcement in Laredo and Webb County, or indeed, any prosecutor

anywhere in Texas, had pursued anyone besides her under § 39.06(c). That

fact alone—putting to the side Villarreal’s detailed and so-far-untested

allegations of police animus, as well as Texas courts’ invalidation of the

criminal offense used to arrest her4—means that seizing and jailing Villarreal

_____________________

4

Judge Ho sets forth this state law in his dissent. See also State v. Newton, 179

S.W.3d 104, 107, 111 (Tex. App. 2005) (affirming the trial court’s decision, which had held

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should trigger the Nieves atypical-arrest exception and defeat, at the motion

to dismiss stage, any probable cause the majority imagines conferred

immunity on Defendants.

In lieu of countering Villarreal’s actual allegation, Defendants cite two

cases in their briefing to us for the proposition that Texas juries in other

counties had returned convictions under § 39.06, generally. However,

neither of these cases concerned the solicitation subsection, § 39.06(c), under

which Villareal was charged. Rather, both of those cases involved public

corruption convictions of public servants under § 39.06(a) and (b).

Moreover, neither implicated First Amendment concerns. See Reyna v. State,

No. 13-02-00499-CR, 2006 WL 20772 (Tex. App. Jan. 5, 2006)

(unpublished); Tidwell v. State, No. 08-11-00322-CR, 2013 WL 6405498

(Tex. App. Dec. 4, 2013) (unpublished). In Reyna, the defendant was a city

administrator in Los Fresnos, Cameron County, who used private

information about bidding processes to award construction contracts to his

affiliates, Reyna, 2006 WL 20772, at *1–2; Tidwell involved the Winkler

County Attorney using confidential, anonymous complaints to the Texas

Medical Board regarding a doctor’s unethical behavior to initiate a malicious

prosecution of the two nurses who blew the whistle on that behavior, Tidwell,

2013 WL 6405498, at *14. Neither instance contradicts Villarreal’s

contention that her offense has never been prosecuted successfully in Texas,

much less in Webb County, nor certainly against a journalist—exactly the

kind of “circumstance[] where officers have probable cause to make arrests,

_____________________

§ 39.06(c) and (d) “void for vagueness,” on statutory grounds, and not addressing

constitutional ruling); State v. Ford, 179 S.W.3d 117, 120, 125 (Tex. App. 2005) (same).

Villarreal alleges in her complaint that she filed a habeas petition on February 14, 2018,

arguing that § 39.06(c) was unconstitutionally vague and violated the First Amendment,

and that on March 28, 2018, Judge Monica Z. Notzon of the 111th Judicial District of Texas

granted Villarreal’s motion, holding from the bench that the statute was unconstitutionally

vague.

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but typically exercise their discretion not to do so” that requires an exception

to the probable-cause rule. Nieves, 139 S. Ct. at 1727.

Despite Nieves’s applicability here, the district court dismissed in a

footnote Villarreal’s argument that law enforcement did not prosecute

anyone under Texas Penal Code § 39.06(c) before her. The district court

held that Villarreal’s description in her pleading of “similarly-situated

persons” as those persons who (a) “asked for or received information from

local law enforcement officials” and (b) “published truthful and publicly-

accessible information on a newsworthy matter” was “conclusory.” Further,

the district court held that she did not “appropriately define similarly

situated individuals” because her description might have included people

“who obtained information from LPD’s public spokesperson.” Therefore,

the district court determined, Villarreal’s complaint did not establish that she

fit within the Nieves exception.

But the district court erred in holding that a pure factual allegation—

that “LPD and WCDA had never before arrested, detained, or prosecuted

any other person under TEXAS PENAL CODE § 39.06, let alone any person

similarly-situated to Villarreal, during the 23 years the operative version of

the statute had been in effect”—was “conclusory” and too broad. The

district court’s holding that “similarly-situated persons” was not narrowly

construed enough for Villarreal to state a claim sets up an unreasonable and

needless hoop for a plaintiff to jump through. Her allegation is that neither

the LPD nor the WCDA—nor indeed, any police officer or prosecutor in

Texas—has ever arrested or charged anyone, including newsgatherers, for

this offense. Such a contention surely encompasses those who “lawfully”

obtained information from a press official as well as those who did not, unless

we presuppose that no journalist has ever before relied on a back-channel

government source to obtain information. Black’s Law Dictionary defines

“conclusory” as “expressing a factual inference without stating the

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underlying facts on which the inference is based.” Conclusory, BLACK’S LAW

DICTIONARY (11th ed. 2019). That Villarreal’s factual allegation was that

something had never happened—resulting in a null set of individuals never

arrested or charged and cases never prosecuted—does not transform her

factual allegation into an inference.5

This case is straightforward. Villarreal alleged in her complaint that

her arrest for violating § 39.06(c) constituted a “circumstance[] where

officers have probable cause to make arrests, but typically exercise their

discretion not to do so.” Nieves, 139 S. Ct. at 1727. Hence, her allegation of

retaliatory police arrest falls under the exception to the probable-cause rule

and survives dismissal. By continuing to overlook this law, our court

compounds a constitutional error that countenances, with neither inquiry nor

discovery, dismissal of an American citizen-journalist’s complaint that her

newsgathering led to arrest for something that Texas courts have confirmed

is not a crime.

Conclusion

For the reasons discussed above, I would vacate the district court’s

dismissal of Villarreal’s complaint. Our court errs in holding that these

_____________________

5

Although the panel majority in Gonzalez v. Trevino, 42 F.4th 487, 494 (5th Cir.

2022), distinguishes Villarreal on the ground that Priscilla Villarreal’s arrest was a clear

violation of the First Amendment, I acknowledge that I sharply differ from that majority in

my interpretation of Nieves. Were Gonzalez not already before the Supreme Court, I would

urge that we revisit its holding here en banc because the “comparative evidence” standard

would raise an impossible bar—which is not required by the text of the Nieves decision—

for plaintiffs. See Gonzalez, 42 F.4th at 503 (Oldham, J., dissenting) (“It's not clear that

there will always (or ever) be available comparative evidence of jaywalkers that weren't

arrested. Rather, the retaliatory-arrest-jaywalking plaintiff always (or almost always) must

appeal to the commonsense proposition that jaywalking happens all the time, and

jaywalking arrests happen virtually never (or never).”)

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Defendants had probable cause to arrest her without testing the factual

allegation that the magistrate who issued her arrest warrants was tainted by

“misrepresentations and omissions” from her alleged antagonists. Our court

further errs in failing to apply Nieves to test whether, even if Laredo law

enforcement had probable cause to arrest her, they did so in retaliation for

her news reporting. In short, Villarreal’s complaint requires discovery and

fact-assessment, applying settled law. This court should not countenance the

erosion of the First Amendment’s protection of citizen-journalists from

intimidation by the government officials they seek to hold accountable in

their reporting.

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Don R. Willett, Circuit Judge, joined by Elrod, Graves,

Higginson, Ho, and Douglas, Circuit Judges, dissenting:

For many of the reasons persuasively penned by my dissenting

colleagues, I agree that the district court erred by dismissing Villarreal’s

claims on qualified-immunity grounds. I write separately to underscore three

brief points.

First, one of the justifications so frequently invoked in defense of

qualified immunity—that law enforcement officers need “breathing room”

to make “split-second judgments”—is altogether absent in this case.1 This

was no fast-moving, high-pressure, life-and-death situation. Those who

arrested, handcuffed, jailed, mocked, and prosecuted Priscilla Villarreal, far

from having to make a snap decision or heat-of-the-moment gut call, spent

several months plotting Villarreal’s takedown, dusting off and weaponizing a

dormant Texas statute never successfully wielded in the statute’s near-

quarter-century of existence. This was not the hot pursuit of a presumed

criminal; it was the premeditated pursuit of a confirmed critic.2 Also, while

the majority says the officers could not have “predicted” that their thought-

out plan to lock up a citizen-journalist for asking questions would violate the

First Amendment3—a plan cooked up with legal advice from the Webb

County District Attorney’s Office, mind you—the majority simultaneously

_____________________

1

E.g., Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (“breathing room”); Plumhoff v.

Rickard, 572 U.S. 765, 775 (2014) (“split-second judgments”).

2

Qualified immunity’s presumed purpose, to ensure “fair notice” before imposing

liability, seems mislaid in slow-moving First Amendment situations where government

officials can obtain legal counsel. See Hoggard v. Rhodes, 141 S. Ct. 2421, 2422 (2021)

(Thomas, J., statement respecting denial of certiorari) (“[W]hy 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 spit-second decision

to use force in a dangerous setting?”).

3

See ante, at 2, 19, 20, 21.

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indulges the notion that Villarreal had zero excuse for not knowing that her

actions might implicate an obscure, never-used provision of the Texas Penal

Code.4 In other words, encyclopedic jurisprudential knowledge is imputed to

Villarreal, but the government agents targeting her are free to plead (or feign)

ignorance of bedrock constitutional guarantees. In the upside-down world of

qualified immunity, everyday citizens are demanded to know the law’s every

jot and tittle, but those charged with enforcing the law are only expected to

know the “clearly established” ones. Turns out, ignorance of the law is an

excuse—for government officials.5 Such blithe “rules for thee but not for

me” nonchalance is less qualified immunity than unqualified impunity. The

irony would be sweet if Villarreal’s resulting jailtime were not so bitter, and

it lays bare the “fair warning” fiction that has become the touchstone of what

counts as “clearly established law.”6

Second, just as officers can be liable for enforcing an obviously

unconstitutional statute,7 they can also be liable for enforcing a statute in an

obviously unconstitutional way.8 The majority opinion seems to rest its

_____________________

4

See ante, at 2 (“Villarreal and others portray her as a martyr for journalism. That

is inappropriate. She could have followed Texas law . . . .”).

5

Then again, in fairness, who among us has not *checks notes* contrived a

premeditated, retributive, slow-motion plan—over several months and with the benefit of

24/7 legal counsel—to criminalize free speech and routine newsgathering by imprisoning

those who ask uncomfortable, truth-seeking questions of government officials?

6

See, e.g., Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (“The central

concept of [qualified immunity] is that of ‘fair warning’ . . . .” (quoting Hope v. Pelzer, 536

U.S. 730, 740 (2002)).

7

See, e.g., Lawrence v. Reed, 406 F.3d 1224, 1233 (10th Cir. 2005) (“[S]ome statutes

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

legislature and refuse to enforce the unconstitutional statute—or face a suit for damages if

they don’t.”).

8

See id. at 1232 (“[T]he overarching inquiry is whether, in spite of the existence of

the statute, a reasonable officer should have known that his conduct was unlawful.”); see

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holding on the principle that the officers reasonably presumed that Penal

Code § 39.06 was constitutional.9 Whatever one might think of that principle

or the majority’s application of it, ending the analysis there stops a half-step

short. It does not account for the possibility—indeed, the real-world

certainty—that government officials can wield facially constitutional statutes

as blunt cudgels to silence speech (and to punish speakers) they dislike, here

in a vengeful, calculated fashion, including months to consult legal counsel.10

So while we may not impute to officers the foreknowledge of what a federal

court may later say, neither should we impute to officers the ignorance of

what the First Amendment already says.

Third, this case illustrates (again) the one-sidedness of the modern

immunity regime. The plain text of § 1983 declares that government officials

“shall be liable” for violating the Constitution if they were acting “under

color of any [state] statute.”11 But in the majority’s view, the officers evade

liability under § 1983 precisely because they were acting pursuant to a state

statute.12 However erroneous that holding might be under Monroe v. Pape,13

it would not be quite so discomfiting were it not for the fact that courts have

also engrafted onto § 1983 assorted made-up defenses that cannot possibly be

_____________________

also Mink v. Knox, 613 F.3d 995, 1009–10 (10th Cir. 2010) (officer could not rely on

criminal-libel statute to arrest a student blogger).

9

See ante, at 19 (noting the officers’ assumption that § 39.06, despite previously

being invalidated, was constitutional and holding that “[t]his principle defeats Villarreal’s

contention”). My view is different: If a news-gathering citizen asks questions of her

government—no force, no coercion, no deception—and if a government employee answers

those questions outside of formal channels, the government can take it up with the

employee. It cannot imprison the citizen for asking.

10

See, e.g., Nieves v. Bartlett, 587 U.S. __, 139 S. Ct. 1715, 1727 (2019).

11

42 U.S.C. § 1983.

12

Ante, at 24.

13

365 U.S. 167 (1961).

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squared with the statutory text.14 If nothing else, today’s decision

underscores a striking statutory double standard: Judges read out text that is

plainly there, and read in text that is plainly not—both for the benefit of

rights-violating officials. Whatever the operative language of § 1983 says, or

does not say, current judge-invented immunity doctrine seems hardwired—

relentlessly so—to resolve these questions in one direction and one direction

only. Counter-textual immunity is a one-way ratchet, and regrettably, today’s

decision inflicts yet another wrong turn.

_____________________

14

The most glaring made-up defense is the “clearly established law” test, which

collides head-on with § 1983’s broad and unqualified textual command. Even those who

argue for some version of qualified immunity nevertheless disavow the clearly-established-

law requirement. See, e.g., Scott Keller, Qualified and Absolute Immunity at Common Law, 73

Stan. L. Rev. 1337, 1345 (2021) (“[T]he common law test for overcoming [qualified]

immunity looked quite different from the Supreme Court’s modern clearly-established-law

doctrine.”). Other recent scholarship casts doubt on qualified immunity’s entire historical

underpinning. Alexander A. Reinert, Qualified Immunity’s Flawed Foundation, 111 Cal. L.

Rev. 201 (2023) (noting that § 1983’s originally passed language contained a

“notwithstanding clause,” now missing for unknown reasons, that explicitly negated all

state-law defenses, making clear that § 1983 claims are viable notwithstanding “any such

law, statute, ordinance, regulation, custom, or usage of the State to the contrary”). Not all

scholars are convinced, however, including a prominent academic critic of qualified

immunity who suggests that the repeal of the “notwithstanding clause” was a codifier’s

error that Congress nevertheless “passed into law” as part of the Revised Statutes of 1874.

See William Baude, Codifiers’ Errors and 42 U.S.C. § 1983, VOLOKH CONSPIRACY (June

6, 2023), https://reason.com/volokh/2023/06/12/codifers-errors-and-42-u-s-c-1983/

(“This is a case where Congress itself passed a law that probably made a mistake, making

substantive changes to the text when the revision was not supposed to.”); cf. Maine v.

Thiboutot, 448 U.S. 1, 4–5 (1980) (holding that § 1983 can be used to enforce federal

statutory rights because of its inclusion of “and laws,” a phrase that might have been

accidentally added through a codifier’s error). But no matter where one falls on the

scholarly debate surrounding the “notwithstanding clause,” there really is no debate on

the fundamental point that the “clearly established law” test is untethered from § 1983’s

text and history and nigh impossible to defend. See Horvath v. City of Leander, 946 F.3d 787,

800 (5th Cir. 2020) (Ho, J., concurring in the judgment in part and dissenting in part)

(“Nothing in the text of § 1983—either as originally enacted in 1871 or as it is codified

today—supports the imposition of a ‘clearly established’ requirement.”).

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I respectfully dissent.

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James C. Ho, Circuit Judge, joined by Elrod, Graves, Higginson,

Willett, and Douglas, Circuit Judges, dissenting:

If the First Amendment means anything, surely it means that citizens

have the right to question or criticize public officials without fear of

imprisonment. The Constitution doesn’t mean much if you can only ask

questions approved by the state. Freedom of speech is worthless if you can

only express opinions favored by the authorities. The government may not

answer or agree—but the citizen gets to ask and to speak.

As the Supreme Court has long recognized, “[t]he right to speak

freely and to promote diversity of ideas and programs is . . . one of the chief

distinctions that sets us apart from totalitarian regimes.” Ashton v. Kentucky,

384 U.S. 195, 199 (1966) (quoting Terminiello v. City of Chicago, 337 U.S. 1, 4

(1949)). “The right of citizens to inquire . . . is a precondition to enlightened

self-government and a necessary means to protect it.” Citizens United v.

FEC, 558 U.S. 310, 339 (2010).

The right to speak freely and to inquire is precisely what’s at stake in

this case.

Like every American, Priscilla Villarreal holds views that are shared

by some—and disliked by others. But a group of police officers and

prosecutors in Laredo weren’t content to simply disagree with her. They had

to weaponize the coercive powers of the criminal justice system against her.

So they charged her and jailed her for asking a police officer a question.

The majority bristles at this short-hand description. But facts are

stubborn things. Just look at the majority’s own recitation of the facts

presented in this case:

Defendants don’t like that Villarreal “frequently posts . . . content

unfavorable to the Laredo Police Department, . . . the district attorney, and

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other local officials.” Ante, at 3. So they “engaged in a campaign to harass

and intimidate her and stifle her work.” Id. After a months-long

investigation, they settled on a strategy to “arrest Villarreal for [having]

conversations with” a police officer. Id. at 5. They chose that strategy

because, during those conversations, the officer voluntarily answered her

request for the names of two decedents—one involving a traffic accident, the

other, a suicide. Id. at 5–6. So they charged her with “soliciting information

that had not yet been officially made public”—namely, “the name and

condition of a traffic accident victim and the name and identification of a

suicide victim.” Id. at 2, 14. All they could find to charge her was a statute

that had previously been held unconstitutional, and by all accounts has never

been the basis of a successful prosecution. Id. at 20. But that was fine with

them, because their real objective was not to convict, but to humiliate. And

that’s exactly how Defendants used Villarreal’s time in county jail: “[M]any

LPD officers . . . surrounded her, laughed at her, took pictures with their cell

phones, and otherwise showed their animus toward Villarreal with an intent

to humiliate and embarrass her.” Id. at 6 (cleaned up).

So in sum, Villarreal politely asked a question—and an officer

voluntarily answered. No one forced the officer to answer. Villarreal did

nothing to warrant an aggressive, coercive response by law enforcement. The

actions taken here were not split-second judgments calls. No innocent lives

were at stake. No violent armed criminal was at large. Contrast, e.g., Winzer

v. Kaufman County, 940 F.3d 900 (5th Cir. 2019). Instead, this was a months-

long effort to come up with something—anything—to make a popular local

citizen-journalist pay for her unfavorable coverage of local police and

prosecutors.

All that Villarreal seeks from us is the dignity of presenting her

powerful allegations to a jury of her peers. We should’ve granted her

request—or at least resolved her appeal in timely fashion (panel argument

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took place in February 2021, nearly three years ago). Because Villarreal

convincingly alleges not one but multiple violations of our Constitution.

To begin with, the operative complaint presents two distinct theories

of First Amendment liability—Villarreal alleges both a direct violation and

unconstitutional retaliation. As our court has observed, “the First

Amendment prohibits not only direct limitations on speech but also . . .

retaliation against the exercise of First Amendment rights.” Colson v.

Grohman, 174 F.3d 498, 508–9 (5th Cir. 1999). The government can’t arrest

you for engaging in protected speech. That would constitute a direct

violation of your First Amendment rights. In addition, the First Amendment

also prohibits the government from arresting you because it dislikes your

views. That would be unconstitutional retaliation under the First

Amendment.

Villarreal presents both theories. She alleges that Defendants directly

interfered with her First Amendment rights by arresting her for asking

questions. And she further alleges that Defendants retaliated against her

because they dislike her criticisms of Laredo police and prosecutors. These

are distinct theories of liability. We should examine them both. See, e.g.,

Davidson v. City of Stafford, 848 F.3d 384, 398 (5th Cir. 2017) (noting that

“[t]he district court appears to have addressed only [the plaintiff’s] First

Amendment claim in the context of § 1983 retaliation,” and failed to address

his separate claim that his “arrest resulted in an as-applied violation of [his]

First Amendment rights”). And she should be allowed to proceed on both.

Furthermore, Villarreal contends that this blatant misuse of law

enforcement resources against a disfavored citizen presents Fourth

Amendment as well as other claims that warrant trial.

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In response, Defendants claim that Texas Penal Code § 39.06(c)

justifies their campaign against Villarreal. But this statutory defense to

liability under § 1983 is deficient in several obvious respects.

To start, there’s the Supremacy Clause. U.S. Const. art. VI, cl. 2.

Federal constitutional rights obviously trump state statutes. And courts have

repeatedly held § 39.06(c) unconstitutional—whether facially or as

applied—both before and after Villarreal’s arrest. See State v. Newton, 179

S.W.3d 104, 107, 111 (Tex. App.—San Antonio 2005) (observing that “[t]he

trial court . . . held that subsections (c) and (d) of § 39.06 are

unconstitutionally void for vagueness,” and affirming on statutory grounds,

while expressly reserving the constitutional question); State v. Ford, 179

S.W.3d 117, 120, 125 (Tex. App.—San Antonio 2005) (same). That

presumably explains why no one has been able to identify a single successful

prosecution ever brought under § 39.06(c)—and certainly never against a

citizen for asking a government official for basic information of public interest

so that she can accurately report to her fellow citizens.

It should be obvious why public officials can’t enforce state laws in an

obviously unconstitutional manner. The plain text of § 1983 expressly

imposes liability on state actors who violate the Constitution “under color of

[state law].” 42 U.S.C. § 1983. The Supreme Court has applied § 1983

accordingly. See, e.g., Myers v. Anderson, 238 U.S. 368, 382 (1915) (“the new

statute did not relieve the new officers of their duty, nor did it interpose a

shield to prevent the operation upon them of the provisions of the

Constitution”) (construing predecessor to § 1983); Tanzin v. Tanvir, 592

U.S. 43, 50 (2020) (section 1983 “impos[es] liability on any person who,

under color of state law, deprived another of a constitutional right”) (citing

Myers, 238 U.S. at 379, 383). There’s also broad consensus across the circuits

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

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

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

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

Tellingly, none of the parties disputes this principle. Only the

majority flirts with the extreme notion that public officials are categorically

immune from § 1983 liability, no matter how obvious the depredation, so long

as they can recite some statute to justify it. See ante, at 21–22 (rejecting “the

idea of ‘obvious unconstitutionality’” as a basis for § 1983 liability). It’s a

recipe for public officials to combine forces with state or local legislators to

do—whatever they want to do. It’s a level of blind deference and trust in

government power our Founders would not recognize.

What’s worse, in addition to the obvious constitutional problems,

Defendants fail to show that Villarreal violated § 39.06(c) in the first place.

Section 39.06(c) purports to prohibit citizens from asking a public

servant for certain non-public information. It’s only a crime, however, if the

information meets the criterion specified by subsection (d).

Yet by all indications, Defendants were entirely unaware of subsection

(d) when they used § 39.06(c) to justify Villarreal’s arrest. Subsection (d)

makes clear that a citizen violates § 39.06(c) only when she asks for non-

public information that is “prohibited from disclosure under” the Texas

Public Information Act. But nowhere in their arrest warrant affidavits or

charging documents do Defendants ever mention subsection (d) or its

requirements—let alone identify which prohibition on disclosure Villarreal

violated.

And if all that weren’t enough, even counsel’s belated post hoc efforts

fail to identify a relevant prohibition on disclosure. Villarreal is charged with

nothing more than seeking “the name and condition of a traffic accident

victim and the name and identification of a suicide victim.” Ante, at 14. The

majority claims this is sensitive information about a pending criminal

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investigation, and therefore shielded from disclosure under § 552.108 of the

Texas Government Code. But that’s wrong for several reasons, the most

simple of which is this: Subsection (c) of that provision requires the release

of “basic information about an arrested person, an arrest, or a crime.” It’s

hard to imagine anything more “basic” than a person’s name. Every

authority cited by the majority supports that view. See, e.g., Tex. Att’y Gen.

Op. ORD–127, at 9 (1976) (“the press and the public have a right of access to

information concerning crime in the community and to information relating

to activities of law enforcement agencies,” including, among other things,

“the name and age of the victim”) (citing Houston Chron. v. City of Houston,

536 S.W.2d 559 (Tex. 1976)); Indus. Found. of the South v. Texas Indus.

Accident Bd., 540 S.W.2d 668, 685, 686 (Tex. 1976) (a person’s “name” and

“identity” does not constitute “highly intimate or embarrassing facts”

whose release would be “highly objectionable to a reasonable person” and

thus must be disclosed); see also Tex. Att’y Gen. Op. OR2022–36798 (2022)

(citing Indus. Found., 540 S.W. at 685).

So even if I accepted the majority’s extreme vision where public

officials and legislators can overturn federal constitutional rights at their

whim—and make no mistake, I don’t—Defendants fail to present a valid

statutory basis for infringing on Villarreal’s fundamental right to freedom of

speech without fear of incarceration.

***

That’s the executive summary. Further details are provided below.

But the most important point is this: If any principle of constitutional law

ought to unite all of us as Americans, it’s that the government has no business

imprisoning citizens for the views they hold or the questions they ask.

So it’s gratifying that a diverse amicus coalition of nationally

recognized public interest groups organized by the Foundation for Individual

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Rights and Expression—including Alliance Defending Freedom, Americans

for Prosperity Foundation, the Cato Institute, the Constitutional

Accountability Center, the Electronic Freedom Foundation, the First

Liberty Institute, the Institute for Justice, and Project Veritas—stands firmly

behind Villarreal.

I’m sure that a number of these amici disagree with Villarreal on a

wide range of issues. But although they may detest what she says, they all

vigorously defend her right to say it. These organizations no doubt have

many pressing matters—and limited resources. Yet they each decided that

standing up to defend the Constitution in this case was worth the squeeze.

This united front gives me hope that, even in these divided times,

Americans can still stand up and defend the constitutional rights of others—

including even those they passionately disagree with. We all should have

joined them in this cause. Because my colleagues in the majority decline to

do so, I must dissent.

I.

This should’ve been an easy case for denying qualified immunity. The

First Amendment obviously protects the freedom of speech. That protection

has long been incorporated against state and local governments under the

Due Process Clause. And it should go without saying that the freedom of

speech includes not only the right to speak, but also the right to criticize as

well as the right to ask questions.

Indeed, the First Amendment expressly protects not only “the

freedom of speech” but also “the right . . . to petition the Government for a

redress of grievances.” U.S. Const. amend. I. It would make no sense for

the First Amendment to protect the right to speak, but not to ask questions—

or the right to petition the government for a redress of grievances, but not for

information.

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It should be obvious, then, that citizens have the right to ask questions

and seek information. See, e.g., Citizens United, 558 U.S. at 339 (recognizing

the First Amendment “right of citizens to inquire, to hear, to speak, and to

use information”); Smith v. Daily Mail Pub. Co., 443 U.S. 97, 99, 103 (1979)

(“The reporters . . . obtained the name of the alleged assailant simply by

asking various witnesses, the police, and an assistant prosecuting

attorney”—which are all “routine newspaper reporting techniques”

protected by the First Amendment); see also Villarreal v. City of Laredo, 44

F.4th 363, 371 (5th Cir. 2022) (collecting other cases and examples).

The fact that the question or request for information happens to be

directed to a police officer does not change the equation. The Supreme Court

has long made clear that “[t]he freedom of individuals verbally to oppose or

challenge police action without thereby risking arrest is one of the principal

characteristics by which we distinguish a free nation from a police state.”

City of Houston v. Hill, 482 U.S. 451, 462–63 (1987). So a law that purports

to prohibit speech that “interrupts an officer” would plainly violate the First

Amendment. Id. at 462 (cleaned up). As the Court put it, “[t]he

Constitution does not allow such speech to be made a crime.” Id. And if it’s

unconstitutional to prohibit a citizen from interrupting a police officer, it’s a

fortiori unconstitutional to prohibit a citizen from politely asking a police

officer a question.

It should have been obvious to Defendants, then, that they were

violating Villarreal’s First Amendment rights when they arrested and jailed

her for asking a police officer for information. And that should be devastating

to their claim of qualified immunity.

The Supreme Court has made clear that public officials who commit

obvious constitutional violations are not entitled to qualified immunity. In

fact, the Court has repeatedly reversed circuits, including ours, for granting

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qualified immunity for obvious violations of constitutional rights. See, e.g.,

Hope v. Pelzer, 536 U.S. 730, 741 (2002); Taylor v. Riojas, 592 U.S. 7, 9 (2020).

The majority responds that the standard articulated in Hope and

Taylor doesn’t apply here, because those cases arose under the Eighth

Amendment, not the First Amendment. Ante, at 27.

But that would treat the First Amendment as a second-class right.

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

rights of convicted criminals over the First Amendment rights of law-abiding

citizens. Nothing in Hope or Taylor indicates that those decisions apply only

to prison conditions. And no other circuit takes the approach urged by our

colleagues in the majority. To the contrary, nine circuits have indicated that

the standards articulated in Hope apply specifically in the First Amendment

context. See, e.g., Diaz-Bigio v. Santini, 652 F.3d 45, 50 (1st Cir. 2011); Nagle

v. Marron, 663 F.3d 100, 115–116 (2nd Cir. 2011); McGreevy v. Stroup, 413

F.3d 359, 366 (3rd Cir. 2005); Tobey v. Jones, 706 F.3d 379, 391 n.6 (4th Cir.

2013); MacIntosh v. Clous, 69 F.4th 309, 399 (6th Cir. 2023); Kristofek v. Vill.

of Orland Hills, 832 F.3d 785, 798 (7th Cir. 2016); Galvin v. Hay, 374 F.3d

739, 746–47 (9th Cir. 2004); Frasier v. Evans, 992 F.3d 1003, 1021–22 (10th

Cir. 2021); Leslie v. Hancock Cnty. Bd. of Educ., 720 F.3d 1338, 1345–46 (11th

Cir. 2013). See also Cheeks v. Belmar, 80 F.4th 872, 877 (8th Cir. 2023)

(applying Hope to the Fourteenth Amendment); Atherton v. Dist. of Columbia

Off. of the Mayor, 706 F.3d 512, 515 (D.C. Cir. 2013) (applying Hope to the

Fifth Amendment).

So I would apply Hope and Taylor in the First Amendment context.

See also Morgan v. Swanson, 659 F.3d 359, 412, 414 n.30 (5th Cir. 2011) (en

banc) (Elrod, J., dissenting in part) (concluding that Hope applies to obvious

First Amendment violations).

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That’s what the Supreme Court did in Sause v. Bauer, 138 S. Ct. 2561

(2018). Two police officers entered a woman’s living room in response to a

noise complaint. When she knelt down to pray, the officers ordered her to

stop, despite the lack of any apparent law enforcement need. Id. at 2562. The

Tenth Circuit granted qualified immunity on the ground that Sause couldn’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). But the Supreme Court summarily reversed,

holding that “there can be no doubt that the First Amendment protects the

right to pray.” Sause, 138 S. Ct. at 2562.1

Sause readily applies here. Just as it’s obvious that Sause has the right

to pray, it’s equally obvious that Villarreal has the right to ask questions.

A.

I suppose it’s understandable, given the obvious First Amendment

violation alleged in this case, why the majority would like to avoid the First

Amendment inquiry altogether. It opens by claiming that Defendants don’t

have to comply with the First Amendment at all. Ante, at 8.

The theory appears to go something like this: Villarreal is challenging

an arrest. So she can’t state a First Amendment claim unless she first

establishes a Fourth Amendment claim. To quote the majority: “Because

Villarreal’s First Amendment free speech claim arises from her arrest,” it’s

“inextricable from her Fourth Amendment claim”—so “liability for both

_____________________

1

The majority suggests I’m overreading Sause. It claims that the decision merely

“remanded for further proceedings.” Ante, at 22. But in fact, Sause “revers[ed] [the] grant

of qualified immunity in a case seeking damages under § 1983 based on alleged violations

of free exercise rights.” Tanzin, 592 U.S. at 50.

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[claims] rises and falls on whether the officers violated clearly established law

under the Fourth Amendment.” Id. See also id. at 26 (“Since there was no

Fourth Amendment violation, the officers have qualified immunity on these

grounds alone from Villarreal’s First Amendment claims.”).

There are a number of problems with the majority’s theory, but the

simplest is this: It spells the end of the First Amendment. All the

government would have to do is to enact some state statute or local ordinance

forbidding some disfavored viewpoint—and then wait for a citizen to engage

in that protected-yet-prohibited speech. The police would have ample

probable cause for arrest under the Fourth Amendment. But it would be an

indisputable violation of the First Amendment. Yet the majority would

conclude that there is no First Amendment liability.

This makes no sense. It’s a roadmap for destroying the First

Amendment. And unsurprisingly, there is no case law to support it.

In fact, the only authority the majority cites for this proposition is,

curiously, Sause. That’s a problem for the majority, because its theory gets

Sause backward: The whole point of Sause is that police actions like arrests

are subject to First Amendment as well as Fourth Amendment scrutiny. As

the Supreme Court has explained, Sause shows that “[t]here is no doubt that

damages claims have always been available under § 1983 for clearly

established violations of the First Amendment.” Tanzin, 592 U.S. at 50

(citing Sause).

The majority cites no authority that construes Sause to supplant the

First Amendment in favor of the Fourth Amendment whenever an arrest is

involved. To the contrary, the majority’s theory contradicts not only Tanzin

but also other Supreme Court decisions that subject arrests to First

Amendment scrutiny. For example, both Lozman v. City of Riviera Beach, 138

S. Ct. 1945 (2018), and Nieves v. Bartlett, 139 S. Ct. 1715 (2019), hold that,

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even where there is probable cause to arrest under the Fourth Amendment,

the First Amendment forbids a police officer from retaliating against a citizen

for engaging in protected speech. See Lozman, 138 S. Ct. at 1949 (“the First

Amendment prohibits government officials from retaliating against

individuals for engaging in protected speech”); Nieves, 139 S. Ct. at 1727 (“it

would seem insufficiently protective of First Amendment rights to

dismiss . . . on the ground that there was undoubted probable cause for the

arrest”).2

The majority’s misreading of Sause also places us in square conflict

with countless circuit decisions around the country that subject police arrests

to First Amendment analysis—such as cases involving peaceful protestors.

In Davidson, for example, the plaintiff was arrested while protesting

an abortion clinic and expressing his pro-life views there. 848 F.3d at 388.

Our colleagues on that panel agreed that individuals arrested while peacefully

protesting are obviously “protected under the First Amendment.” Id. at 391.

Notably, it didn’t matter that the officers claimed a statutory basis for

arresting the plaintiff. “Reasonable officers . . . must . . . consider the

balance between [the protestor’s] First Amendment rights and the right of

the public to have access to the Clinic.” Id. at 393.

Similarly, consider a recent ruling by the same circuit reversed in

Sause. See Jordan v. Jenkins, 73 F.4th 1162 (10th Cir. 2023). The facts of

Jordan are remarkably analogous to those presented here: A citizen verbally

criticizes a police officer. The police officer is upset by the criticism. So he

(wrongly) arrests the citizen, and finds some statute to justify the arrest. The

_____________________

2

Lozman and Nieves also rebut the majority’s curious claim that “the motivation

for an arrest is not relevant to its constitutionality.” Ante, at 18 n.14.

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Tenth Circuit held that the citizen’s “verbal criticism was clearly protected

by the First Amendment.” Id. at 1168.3

B.

Forced to confront the obvious First Amendment violation presented

in this case, the majority counters that a public official can’t be held liable so

long as the official can invoke some statutory justification—no matter how

obvious the constitutional deprivation. See ante, at 21–23.

That’s wrong on several levels. To begin with, it turns the plain text

of § 1983 on its head. The whole point of § 1983 is to hold public officials

accountable if they violate the Constitution “under color of any statute,

ordinance, regulation, custom, or usage, of any State.” To be sure, the

presence of a state statute is no longer a requirement for § 1983 liability after

Monroe v. Pape, 365 U.S. 167 (1961). But it would get § 1983 entirely

backward if the existence of a state statute is not only no longer a required

element of liability, but a defense to liability altogether.

Not surprisingly, then, none of the parties dispute that public officials

are liable if they’ve committed an obvious violation of a person’s

constitutional rights, regardless of whether a state statute authorizes the

official’s actions. A mountain of Supreme Court and circuit precedent

reinforces this principle. See, e.g., Myers, 238 U.S. at 382 (“the new statute

did not relieve the new officers of their duty, nor did it interpose a shield to

prevent the operation upon them of the provisions of the Constitution”)

(construing predecessor to § 1983); Tanzin, 592 U.S. at 50 (section 1983

_____________________

3

See also, e.g., Glik v. Cunniffe, 655 F.3d 78, 79 (1st Cir. 2011); Abraham v. Nagle,

116 F.3d 11, 15 (1st Cir. 1997); Gulliford v. Pierce, 136 F.3d 1345, 1348–1350 (9th Cir. 1998);

Mackinney v. Nielsen, 69 F.3d 1002, 1007 (9th Cir. 1995); Duran v. City of Douglas, 904 F.2d

1372, 1376–77 (9th Cir. 1990).

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“impos[es] liability on any person who, under color of state law, deprived

another of a constitutional right”) (citing Myers, 238 U.S. at 379, 383);

Lawrence, 406 F.3d at 1233 (“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”); see also Guillemard-Ginorio v. Contreras-Gomez, 490 F.3d 31, 40–41

(1st Cir. 2007); Vives v. City of New York, 405 F.3d 115, 118 (2nd Cir. 2005);

Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 103 (2nd Cir. 2003);

Leonard v. Robinson, 477 F.3d 347, 359 (6th Cir. 2007); Ballentine v. Tucker,

28 F.4th 54, 66 (9th Cir. 2022); Carey v. Nevada Gaming Control Bd., 279

F.3d 873, 881 (9th Cir. 2002); Jordan, 73 F.4th 1162; Thompson v. Ragland,

23 F.4th 1252, 1255–56 (10th Cir. 2022); Lederman v. United States, 291 F.3d

36, 47 (D.C. Cir. 2002).

The majority ignores all of this and instead claims that there is, at

most, only “a possible exception for ‘a law so grossly and flagrantly

unconstitutional that any person of reasonable prudence would be bound to

see its flaws.’” Ante, at 21 (quoting Michigan v. DeFillippo, 443 U.S. 31, 38

(1979)). None of the parties make this argument, or cite DeFillippo anywhere

in their briefs to support it.

So what does the majority’s theory mean for this circuit? It means

that public officials can engage in “obviously unconstitutional” violations all

they want. They just can’t commit “grossly and flagrantly unconstitutional”

ones. Maybe.

Under today’s ruling, then, citizens in future cases within the Fifth

Circuit will have to litigate not only whether their rights have been violated,

but whether the violation is merely “obvious” (and thus not actionable) or

“gross and flagrant” (and therefore might be actionable).

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But as for this case, it ought to be enough that arresting citizens for

“speak[ing] freely” is exactly how “totalitarian regimes” behave. Ashton,

384 U.S. at 199. I’ll leave it to the majority to explain why a totalitarian

government is not as bad as a grossly and flagrantly unconstitutional one.

C.

So Defendants cannot avoid liability for obvious constitutional

violations by invoking a state statute. Moreover, § 39.06(c) of the Texas

Penal Code is a particularly weak justification.

To begin with, courts have repeatedly held § 39.06(c)

unconstitutional, whether facially or as applied, both before as well as after

Villarreal’s arrest. See Newton, 179 S.W.3d at 107, 111 (observing that “[t]he

trial court . . . held that subsections (c) and (d) of § 39.06 are

unconstitutionally void for vagueness,” and affirming on statutory grounds,

while expressly reserving the constitutional question); Ford, 179 S.W.3d at

120, 125 (same).4

Not surprisingly, then, no one has identified a single prosecution ever

successfully brought under § 39.06(c)—and certainly not one against a

_____________________

4

The majority responds that Villarreal doesn’t argue that § 39.06(c) is

unconstitutionally vague under the First Amendment. Ante, at 20. But her complaint

repeatedly alleges that Defendants arrested her under an “unconstitutionally vague”

statute on which “no reasonable official would have relied,” and that the statute was

“vague to the average reader, and contrary to [] clearly established First Amendment

right[s].” See ROA.154 at ¶ 4; 169 at ¶ 82; 178 at ¶ 124; 202 at ¶ 256. The First

Amendment prohibits unconstitutionally vague laws—indeed, we apply “stricter standards

of permissible statutory vagueness” to a statute that has a “potentially inhibiting effect on

speech.” Smith v. California, 361 U.S. 147, 151 (1959) (emphasis added).

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citizen for requesting basic information of public interest so that she can

report the information to fellow citizens.5

But what’s more, Defendants have never been able to explain how

Villarreal violated § 39.06(c) to begin with.

Section 39.06(c) makes it a crime for any citizen to ask a public servant

for certain non-public information. But it’s only a crime if the information

meets the criterion specified by subsection (d).

Subsection (d) makes clear that a citizen violates § 39.06(c) only when

she asks for non-public information that is “prohibited from disclosure

under” the Texas Public Information Act. But nowhere in their arrest

warrant affidavits or charging documents do Defendants ever mention

subsection (d) or its requirements—let alone identify which prohibition on

disclosure Villarreal violated.

By all indications, Defendants were simply unaware of subsection (d)

when they used § 39.06(c) to justify Villarreal’s arrest.

Moreover, even after the fact, counsel has been unable to identify a

relevant prohibition on disclosure.

Villarreal is charged with requesting “the name and condition of a

traffic accident victim and the name and identification of a suicide victim.”

Ante, at 14. The majority contends that this is sensitive information about a

pending criminal investigation and therefore shielded from disclosure under

§ 552.108 of the Texas Government Code. Ante, at 12. But subsection (c) of

_____________________

5

The majority claims that Villarreal is not the first to be prosecuted under

§ 39.06(c). But the very example the majority cites is the one that led to § 39.06(c) and (d)

being held unconstitutional. See Ford, 179 S.W.3d at 120. The majority also notes that

prosecutions have been brought against public servants under a different provision,

§ 39.06(b). It’s not clear why the majority thinks this helps its cause.

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that same provision requires the release of “basic information about an

arrested person, an arrest, or a crime.”

In the absence of a statutory prohibition on disclosure, the majority

scrambles and identifies a small handful of other authorities. But none of the

majority’s authorities establish a crime by Villarreal. Ante, at 12–14. To the

contrary, every authority cited by the majority undermines its claims.

The majority cites Houston Chronicle. But there the city was required

to release a broad range of basic information—including “the offense

committed, location of the crime, identification and description of the

complainant, the premises involved, the time of the occurrence, description

of the weather, a detailed description of the offense in question, and the

names of the investigating officers,” 536 S.W.2d at 561, as well as the

property and vehicles involved. See Houston Chron. Pub’g Co. v. City of

Houston, 531 S.W.2d 177, 187 (Tex. App.—Houston [14th Dist.] 1975).

Next, the majority cites a 1976 Texas Attorney General opinion, Tex.

Att’y Gen. Op. ORD–127. But that opinion construes Houston Chronicle to

hold that “the press and the public have a right of access to information

concerning crime in the community and to information relating to activities

of law enforcement agencies”—including, among other things, “the name

and age of the victim.” Id. at 9.

The majority also cites Industrial Foundation. But that decision holds

only that “highly intimate or embarrassing facts” may be excluded from

disclosure under certain circumstances. 540 S.W.2d at 685. What’s more, it

also holds that the release of a person’s “name” and “identity” would not be

“highly objectionable to a reasonable person,” and therefore must be

disclosed. Id. at 686.

Finally, the majority cites a 2022 Texas Attorney General opinion,

Tex. Att’y Gen. Op. OR2022–36798. But that opinion observes that “the

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right to privacy is a personal right that lapses at death,” and therefore,

“information relate[d] to deceased individuals . . . may not be withheld from

disclosure.” Id. at 2-3. To be sure, the opinion also suggests that “surviving

family members can have a privacy interest in information relating to their

deceased relatives.” Id. at 3 (citing Nat’l Archives & Records Admin. v. Favish,

541 U.S. 157 (2004)). But that interest would not extend to basic information

such as the name of the decedent. Family members have a weaker interest in

privacy than the decedent. See 541 U.S. at 167 (family members are

“not . . . in the same position as” decedent). The family’s privacy right is

confined to only the most sensitive matters—namely, “the right of family

members to direct and control disposition of the body of the deceased and to

limit attempts to exploit pictures of the de

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