Amicus Curiae Brief — Priscilla Villarreal, Petitioner v. Isidro R. Alaniz, et al.

No. 23-1155

IN THE

Supreme Court of the United States

________________

PRISCILLA VILLARREAL,

Petitioner,

v.

ISIDRO R. ALANIZ, et al.,

Respondents.

____________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

____________________

BRIEF OF FIRST LIBERTY INSTITUTE

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

KELLY SHACKELFORD

JEFF MATEER

HIRAM SASSER

DAVID HACKER

ROGER BYRON

FIRST LIBERTY INSTITUTE

2001 W. PLANO PARKWAY,

SUITE 1600

PLANO, TX 75075

APRIL A. WIMBERG

Counsel of Record

RYNE E. TIPTON

DENTONS BINGHAM

GREENEBAUM LLP

101 SOUTH FIFTH STREET,

SUITE 3500

LOUISVILLE, KY 40202

(502) 587-3719

APRIL.WIMBERG@DENTONS.COM

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

IDENTITY AND INTEREST OF AMICUS

CURIAE………………………………………………….. 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 3

I. Villarreal’s First Amendment Right Was so Obvious

That the Officers Had To Be on Notice That Arresting

Her Under the Color of Law Was a Clear Violation of

the Constitution. ......................................................... 3

A. Texas Penal Code § 39.06, As Applied to

Newsgathering, Plainly Violates the First

Amendment. .....................................................4

B. Villarreal’s First Amendment Right to Engage

in Newsgathering Was Clearly Established. ..8

II. Qualified Immunity Is a Judicial Fiction That

Fails to Serve Even Its Phantom Goals .................... 11

A. The Qualified Immunity Doctrine Does Not

Have a Textual Basis in Section 1983. ..........12

B. The Policy Reasons Behind Qualified

Immunity in a Case Such as This Are

Unconvincing. .................................................14

CONCLUSION .......................................................... 18

ii

TABLE OF AUTHORITIES

CASES

Anderson v. Creighton,

483 U.S. 635 (1987)..............................................16

Ashcroft v. al-Kidd,

563 U.S. 731 (2011)................................................9

Barlow v. United States,

32 U.S. 404 (1833) ................................................17

Baxter v. Bracey,

751 F. App’x 869 (6th Cir. 2018) .........................18

BedRoc Ltd., LLC v. United States,

541 U.S. 176 (2004) ..............................................13

Cheek v. United States,

498 U.S. 192 (1991) ..............................................17

Citizens United v. FEC,

558 U.S. 310 (2010) ................................................5

City of Houston v. Hill,

482 U.S. 451 (1987) ..........................................9, 18

Cole v. Carson,

935 F.3d 444 (5th Cir. 2019)................................15

Connick v. Myers,

461 U.S. 138 (1983) ................................................5

Connecticut Nat. Bank v. Germain,

503 U.S. 249 (1992) ..............................................10

iii

Cox Broad. Corp. v. Cohn,

420 U.S. 469 (1975) ................................................7

Crawford-El v. Britton,

523 U.S. 574 (1998) ........................................13, 14

Diaz-Bigio v. Santini,

652 F.3d 45 (1st Cir. 2011) ..................................10

Frasier v. Evans,

992 F.3d 1003 (10th Cir. 2021)............................10

Galvin v. Hay,

374 F.3d 739 (9th Cir. 2004)................................10

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ........................................15, 16

Hartford Underwriters Ins. Co. v. Union Planters

Bank, N.A.,

530 U.S. 1 (2000)..................................................13

Hope v. Pelzer,

536 U.S. 730 (2002) ......................................2, 3, 10

Horvath v. City of Leander,

946 F.3d 787 (5th Cir. 2020)................................12

Hughes Aircraft Co. v. Jacobson,

525 U.S. 432 (1999) ..............................................13

Jessop v. City of Fresno,

936 F.3d 937 (9th Cir. 2019)................................18

iv

Kisela v. Huges,

584 U.S. 100 (2018) ................................ 11—12, 15

Kristofek v. Vill. of Orland Hills,

832 F.3d 785 (7th Cir. 2016)................................10

Lamie v. United States Trustee,

540 U.S. 526 (2004) ..............................................13

Leslie v. Hancock Cnty. Bd. of Educ.,

720 F.3d 1338 (11th Cir. 2013)............................10

MacIntosh v. Clous,

69 F.4th 309 (6th Cir. 2023) ................................10

Malley v. Briggs,

475 U.S. 335 (1986)..............................................12

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ....................... 18—19

McFadden v. United States,

576 U.S. 186 (2015) ..............................................17

McGreevy v. Stroup,

413 F.3d 359 (3d. Cir. 2005) ................................10

Monroe v. Pape,

365 U.S. 167 (1961) ........................................14, 15

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) ................................................7

Nagle v. Marron,

663 F.3d 100 (2d. Cir. 2011) ................................10

v

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) ................................................7

Sause v. Bower,

585 U.S. 957 (2018)..........................................2, 10

Schenck v. United States,

249 U.S. 47 (1919) ................................................11

Screws v. United States,

325 U.S. 91 (1945) ........................................ 17—18

Smith v. Daily Mail Pub. Co.,

443 U.S. 97 (1979) ............................................ 5—6

Snyder v. Phelps,

562 U.S. 443 (2011) .......................................... 6—7

State v. Ford,

179 S.W.3d 117 (Tex. App. 2005) ..........................8

State v. Newton,

179 S.W.3d 104 (Tex. App. 2005) ..........................8

The Florida Star v. B.J.F.,

491 U.S. 524 (1989) ................................................7

Tobey v. Jones,

706 F.3d 379 (4th Cir. 2013)................................10

Virginia State Bd. of Pharmacy v. Virginia Citizens

Consumer Council, Inc.,

425 U.S. 748 (1976) ................................................6

West v. Atkins,

487 U.S. 42 (1988) ................................................14

vi

CONSTITUTION

U.S. CONST. amend. I ..................................................5

STATUTES

42 U.S.C. § 1983 ........................................................15

TEX. GOV’T CODE § 552.124 .........................................5

TEX. GOV’T CODE § 552.126 .........................................5

TEX. PENAL CODE § 39.06 ............................................4

Texas Public Information Act, TEX. GOV’T CODE §§

552.001–.376 ..........................................................4

RULES

Supreme Court Rule 37 ..............................................1

OTHER AUTHORITIES

Alexander Hamilton, Federalist No. 78, THE

FEDERALIST PAPERS (J. Cooke ed. 1961) .............19

Joanna C. Schwartz, Police Indemnification, 89

N.Y.U. L. REV. 885, 887 (2014) .................... 16—17

THE PAPERS OF THOMAS JEFFERSON VOL. 12 (Julian

P. Boyd, ed., 1955) ...............................................17

OPINIONS BELOW

Villarreal v. City of Laredo, No. 20-40359

(5th Cir. Jan. 23, 2024) .............................. 5—8, 15

1

IDENTITY AND INTEREST OF AMICUS

CURIAE

Pursuant to Supreme Court Rule 37, the First

Liberty Institute (First Liberty) respectfully submits

this brief amicus curiae in support of Petitioner

Priscilla Villarreal.1

Protecting religious liberty for all Americans since

1997, First Liberty is the largest, non-profit, legal

organization in the nation dedicated exclusively to

defending religious liberty for all Americans. First

Liberty believes that every American of any faith—or

no faith at all—has a fundamental right to follow

their conscience and live according to their beliefs.

Religious freedom is the first freedom outlined in

the First Amendment of the Constitution, and for

good reason: it is the foundational right that all others

are built upon. And if this cornerstone freedom ever

falls, all other freedoms would be at risk of tumbling

as well. That’s why protecting and defending it is so

important—because to fight for religious freedom is to

fight for the future of all freedoms.

First Liberty files this brief amicus curiae to

communicate the broad interest in this case for

protecting the First Amendment.

1 Under this Court’s Rule 37, amicus states that no counsel

for any party authored this brief in whole or in part, and no

person or entity other than the amicus and respective

counsel made any monetary contributions to the preparation

or submission of this brief. Amicus further states this brief

is filed more than 10 days before the filing deadline.

2

SUMMARY OF ARGUMENT

This case involves an obvious constitutional

violation. The government arresting a journalist for

asking questions so obviously violates the First

Amendment that no reasonable official would

sanction such an action. It comes as no surprise that

there is no case directly on point with the facts here,

just like there was no case directly on point in Hope v.

Pelzer, 536 U.S. 730 (2002) or Sause v. Bauer, 585

U.S. 957 (2018). These sorts of outrageous fact

patterns are more frequently found in law school

exams than in real life.

There is no credible argument that Texas Penal

Code § 39.06 constitutionally applies to journalists

asking government officials questions. Furthermore,

it is difficult to fathom that there are very many

rights more clearly established than the right for a

journalist to ask a government official questions.

Requiring a case with a similar fact pattern would

pre-suppose that at some point not long ago, some

other government officials had the temerity to arrest

a journalist for asking questions. No official would do

so because everyone knows that such an action clearly

violates the First Amendment.

Moreover, qualified immunity is a judicial

invention that has no basis in the text of Section 1983

and runs contrary to basic American legal principles.

It provides a shield for government officials who will

never have to pay a dime for their own defense or

damages adjudicated against them under the false

pretense that such personal liability may come from

their own pockets. The government here can no more

3

produce a case in which a government official paid

actual money out of the official’s own pocket as a

result of a Section 1983 suit than Ms. Villarreal can

produce a case in which government officials thought

it was legal to engage in such egregious conduct. The

Court should grant review in this case and reverse the

decision below.

ARGUMENT

I. Villarreal’s First Amendment Right Was

so Obvious That the Officers Had to Be on

Notice That Arresting Her Under the

Color of Law Was a Clear Violation of the

Constitution.

The application of qualified immunity is

compelling when it shields officers from reasonable,

split-second decisions undertaken in the line of duty.

However, here, Texas Penal Code § 39.06 was dredged

up as part of an effort to punish newsgathering and

silence citizen journalism. As this Court has already

reflected, “officials can still be on notice that their

conduct violates established law even in novel factual

circumstances.” Hope, 536 U.S. at 741. Certainly,

officials should be on notice that they cannot use novel

law to impinge upon obvious constitutional freedoms.

Because the Fifth Circuit decision legitimized obvious

violations of First Amendment rights, this Court

should take up this case and reverse the Fifth

Circuit’s grant of qualified immunity.

4

A. Texas Penal Code § 39.06, As Applied to

Newsgathering, Plainly Violates the

First Amendment.

Texas Penal Code § 39.06 purports to prohibit

citizens from asking public servants for nonpublic

information:

(c) A person commits an

offense if, with intent to

obtain a benefit or with

intent to harm or defraud

another, he solicits or

receives from a public

servant information that:

(1) the public servant

has access to by means

of

his

office

or

employment; and

(2) has not been made

public.

TEX. PENAL CODE § 39.06(c). The statute further

defines nonpublic information as “any information to

which the public does not generally have access, and

that is prohibited from disclosure under [the Texas

Public Information Act, TEX. GOV’T CODE §§ 552.001–

.376].” TEX. PENAL CODE § 39.06(d). Consequently,

under TEX. PENAL CODE § 39.06, one is prohibited

from soliciting or receiving only certain categories of

nonpublic information.

However, this array of

categories is quite large and diverse. It includes, for

example, not only the names of traffic accident and

suicide victims but also the identities of library users

5

(see TEX. GOV’T CODE § 552.124) and the names of

applicants for the position of school district

superintendent (see TEX. GOV’T CODE § 552.126).

Of course, this statute had never been applied to

anyone prior to Villarreal, and certainly not a

journalist. Indeed, the application of TEX. PENAL

CODE § 39.06 to a citizen-journalist who even slightly

profits from their reporting leads to absurd results.

Equally absurd is the notion that one can be punished

simply for seeking records of library users or the

name of a school district superintendent applicant.

See Villarreal v. City of Laredo, No. 20-40359, at 78

(5th Cir. Jan. 23, 2024) (Ho, J., dissenting) (discussing

how the Texas Attorney General’s Office took the

position that asking the name of a superintendent

applicant would be a crime).

Even an individual with the most rudimentary

understanding of, and respect for, the First

Amendment, let alone common sense, should recoil at

such a proposition. Cf. Connick v. Myers, 461 U.S.

138, 145 (1983) (stating that speech occupies the

“highest rung of the hierarchy of First Amendment

values.”).

As an obvious matter, the First

Amendment expressly protects “freedom of speech”

and “the right of the people . . . to petition the

Government for a redress of grievances.” U.S. CONST.

amend. I. A corollary that flows from these two

protections is the right of citizens to solicit

information from government officials using routine

news reporting techniques. See Citizens United v.

FEC, 558 U.S. 310, 339 (2010) (recognizing the First

Amendment “right of citizens to inquire, to hear, to

speak, and to use information”); Smith v. Daily Mail

6

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).

Thus, TEX. PENAL CODE § 39.06 directly collides

with the First Amendment rights of citizen

journalists, such as Villarreal. And the fact that TEX.

PENAL CODE § 39.06 confines its prohibition on the

“solicit[ation] or rece[ption]” of information from

public servants to, inter alia, speech made with

“intent to obtain a benefit” and nonpublic

information, is of no import.

Requests for

information, even with these caveats, are still

protected under the aegis of the First Amendment.

For instance, newsgathering is protected by the

First Amendment, even if its ultimate purpose is for

pecuniary gain. Cf. Virginia State Bd. of Pharmacy v.

Virginia Citizens Consumer Council, Inc., 425 U.S.

748, 761 (1976) (“It is clear, for example, that speech

does not lose its First Amendment protection because

money is spent to project it . . . Speech likewise is

protected even though . . . it may involve a solicitation

to purchase or otherwise pay or contribute money.”)

Further, this Court has never determined that

competing interests—such as privacy, the protection

of identity, or a family’s emotional distress—are

sufficiently compelling to enable the state to curtail

freedom of speech. Compare Villarreal, No. 20-40359,

at 12—13, with Snyder v. Phelps, 562 U.S. 443 (2011)

(holding that severe emotional distress experienced

7

by father of a fallen soldier did not overcome

protesters’ right to freedom of speech); The Florida

Star v. B.J.F., 491 U.S. 524 (1989) (holding that

criminal penalty could not be imposed for publication

of the name of a rape victim legitimately obtained);

and Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975)

(case similar to The Florida Star in which privacy

interests did not overcome the right to publish the

name of a deceased rape victim).

What is more, even if the solicitation of nonpublic

information is somehow less deserving of First

Amendment protection than other forms of speech,

the government cannot content-discriminate within

that lesser-protected category as TEX. PENAL CODE §

39.06(d) necessarily requires. Cf. R.A.V. v. City of St.

Paul, 505 U.S. 377, 391 (1992) (Scalia, J.) (holding

unconstitutional an ordinance that content and

viewpoint-discriminated within the otherwise

unprotected category of “fighting words.”).

And even if solicitation of nonpublic information is

less deserving of First Amendment protection, surely

it must be granted some protection to give “breathing

space” for other First Amendment protected-activity,

namely, news reporting. See Villarreal, No. 20-40359,

at 75-76 (Ho, J., dissenting) (citing a Politico article in

support of the proposition that “backchannel” sources

are

important

for

determining

substantive

information); cf. N.Y. Times Co. v. Sullivan, 376 U.S.

254, 271—72 (1964) (famous application of the

“breathing space” principle, in which the Court

determined that another, arguably less-protected

category of speech—erroneous or false speech—must

be given a degree of protection to enable free debate).

8

And surely this “breathing space” must be extensive

enough to prohibit punishment for merely asking the

names of traffic accident and suicide victims, library

users, or superintendent applicants.

B. Villarreal’s First Amendment Right to

Engage in Newsgathering Was Clearly

Established.

The preposterous arrests and First Amendment

infringements that would continue under the

application of TEX. PENAL CODE § 39.06 begs the

question—how did the Fifth Circuit fail to reach a

decision on whether the Texas statute, as applied to

citizen journalists, violates the First Amendment?

Simply, the Fifth Circuit majority relies on a

dubious proposition that a never utilized statute can

undermine a clearly established First Amendment

right of journalist to engage in newsgathering. The

crux of this position is that “[n]o controlling precedent

gave the defendants fair notice that their conduct, or

[TEX. PENAL CODE § 39.06], violates the Constitution

facially or as applied to Villarreal.” Villarreal, No. 2040359, at 9. Now, under the law in the Fifth Circuit,

so long as the government can point to an allegedly

facially valid,2 yet unlitigated, statute as the basis for

their authority, they can effectively repress citizens’

There is also good reason to believe that the statute is not

only invalid as applied but also facially invalid on vagueness

grounds. See State v. Newton, 179 S.W.3d 104, 107, 111 (Tex.

App. 2005) (noting that “[t]he trial court . . . held that

subsections (c) and (d) of §39.06 are unconstitutionally void

for vagueness,” while reserving the constitutional question);

State v. Ford, 179 S.W.3d 117, 120, 125 (Tex. App. 2005)

(same).

2

9

First Amendment rights as much as they like. See id.

at 21—23. The law now is that officials cannot know

that a First Amendment right is “clearly established”

in contravention of any statute until the courts regard

that particular statute, or one like it, as violative of

the First Amendment.

Such a view defies common sense and undermines

the ability to find any officer “plainly incompetent” or

in “knowing[] violati[on of] the law.” Ashcroft v. alKidd, 563 U.S. 731, 743 (2011) (quotation omitted).

Any reasonably competent public official is aware of

the rights protected under First Amendment. As

discussed above, if one can speak freely, and one can

request a change in government policy, it follows that

one can also ask government officials questions. A

public official can deduce this corollary principle

without knowing a factually similar case that states

the same.

Moreover, if the Respondents needed cases

indicating that solicitation of information from the

government is First Amendment protected activity,

they had others to choose from. Besides the bevy of

cases mentioned above, the 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 principle characteristics by which

we distinguish a free nation from a police state.” City

of Houston v. Hill, 482 U.S. 451, 462—63 (1987). If a

law that prohibits “interrupt[ing] an officer” violates

the First Amendment, id. at 462, surely a law that

prohibits politely asking a police officer a question is

necessarily unconstitutional as well.

10

The approach taken by the Fifth Circuit towards

qualified immunity is exactly the kind of approach

this Court castigated in Hope and its progeny. In

Hope, this Court indicated that public officials who

commit obvious constitutional violations are not

entitled to qualified immunity. See 536 U.S. at 740—

42, 745—46.

Although this principle was first

articulated in the Eighth Amendment context, it has

been extended to cases involving the First

Amendment, by this Court and nine circuits. See, e.g.,

Sause v. Bower, 585 U.S. 957, 959—960 (2018); DiazBigio v. Santini, 652 F.3d 45, 50 (1st Cir. 2011); Nagle

v. Marron, 663 F.3d 100, 115—116 (2d. Cir. 2011);

McGreevy v. Stroup, 413 F.3d 359, 366 (3d. Cir. 2005);

Tobey v. Jones, 706 F.3d 379, 391 n.6 (4th Cir. 2013);

MacIntosh v. Clous, 69 F.4th 309, 319 (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).

Simply put, just as it is patently ridiculous for the

government to assert that its officials were unaware

that the use of a hitching post constituted cruel and

unusual punishment (Hope, 536 U.S. at 745), or that

preventing prayer for no apparent law enforcement

need violated freedom of religious expression (Sause,

585 U.S. at 959—960), it is equally ridiculous for the

government to assert that its officials were unaware

that asking officials questions regarding nonpublic

information constitutes protected First Amendment

activity.

11

The approach taken has an insidious quality. Not

only does it legitimate the ability of public officials to

pluck archaic, unused, and unconstitutional statutes

out of thin air and use them to punish dissent, it also

presupposes that the public cannot understand the

plain language of the Constitution or basic First

Amendment law.

In effect, the Fifth Circuit

presupposes that without hitting officials over the

head with the statement, “TEX. PENAL CODE § 39.06

violates the First Amendment,” those officials cannot

know the same is true. Until Schenck v. United

States, 249 U.S. 47 (1919), the First Amendment was

relatively unlitigated in this country, yet Americans

then, just as now, understood the protections it gave

them. Continued republican self-government would

have been impossible without a shared public

understanding of the constitutional framework in

which we live, including the implications of the First

Amendment. Whatever value qualified immunity

has, it cannot be predicated on the distinctly unAmerican notion that our freedoms are only

cognizable in the light of judicial pronouncements

cast down from on high.

II. Qualified Immunity Is a Judicial Fiction

That Fails to Serve Even Its Phantom

Goals.

There is another reason why the Court should take

up the case: to end, or at least narrowly constrain, the

doctrine of qualified immunity. When public officials,

particularly police officers, face life-threatening, splitsecond decisions in the line of duty, there is a merited

argument they should be absolved from liability. See

Kisela v. Huges, 584 U.S. 100, 104 (2018) (stating that

12

“the Court has recognized that it is sometimes

difficult for an officer to determine how the relevant

legal doctrine, here excessive force, will apply to the

factual situation the officer confronts.”). However,

government officials jailing journalists for asking

questions does not give rise to life or death split

second decision-making. On the contrary, this absurd

line of attack against Ms. Villarreal was so bizarre, it

must have taken a substantial amount of time to

formulate and execute. Allowing government officials

to violate the First Amendment rights of citizens in

order to protect police officers involved in life and

death split-second decisions is using a hammer to kill

a fly.

A. The Qualified Immunity Doctrine Does

Not Have a Textual Basis in Section

1983.

Few defend modern qualified immunity doctrine

as a historically faithful, textualist interpretation of

Section 1983, which “on its face does not provide for

any immunities.” Malley v. Briggs, 475 U.S. 335, 342

(1986) (emphasis in original). See also Horvath v. City

of Leander, 946 F.3d 787, 800 (5th Cir. 2020), as

revised (Jan. 13, 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.”).

As Justices Scalia and Thomas bluntly put it, “our

treatment of qualified immunity under 42 U.S.C. §

1983 has not purported to be faithful to the commonlaw immunities that existed when § 1983 was

enacted, and that the statute presumably intended to

13

subsume.” Crawford-El v. Britton, 523 U.S. 574, 611

(1998) (Scalia, J., dissenting).

The lack of a textual foundation for qualified

immunity is problematic to say the least. Statutory

text is the sine qua non of statutory interpretation.

Accordingly, interpretation should begin and end

with the statutory text, and not take into account

extraneous considerations. See BedRoc Ltd., LLC v.

United States, 541 U.S. 176, 183 (2004) (“The

preeminent cannon of statutory interpretation

requires us to ‘presume that [the] legislature says in

a statute what it means and means in a statute what

it says there’ . . . Thus, our inquiry begins with the

statutory text, and ends there as well if the text is

unambiguous.”) (quoting Connecticut Nat. Bank v.

Germain, 503 U.S. 249, 253—54 (1992)). See also

Lamie v. United States Trustee, 540 U.S. 526, 534

(2004); Hartford Underwriters Ins. Co. v. Union

Planters Bank, N.A., 530 U.S. 1, 6 (2000); Hughes

Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999).

As the text of Section 1983 does not include any

discussion of qualified immunity, a sound statutory

interpretation of the same should conclude that the

doctrine has no place in Section 1983 jurisprudence.

And, thus, that government officials, such as the

Respondents, cannot be immunized from liability

when they deny the obvious constitutional rights of

litigants such as Villarreal.

14

B. The Policy Reasons Behind Qualified

Immunity in a Case Such as This Are

Unconvincing.

Even as the Court has increasingly made statutory

text, structure, and historical context the focus of

statutory interpretation, it has held fast to qualified

immunity’s judicial gloss on Section 1983. The

hesitancy to ditch this judge-made doctrine has, at

least in part, been driven by the desire to

counterbalance the Court’s modern expansion of

Section 1983 liability, which originated with Monroe

v. Pape, 365 U.S. 167 (1961). See Crawford-El, 523

U.S. at 611—12 (Scalia, J., dissenting) (stating that

“[t]he § 1983 that the Court created in [Monroe] bears

scant resemblance to what Congress enacted a

century earlier,” but that it is “just as well” that the

Court continue “the essentially legislative activity of

crafting a sensible scheme of qualified immunities for

the statute we have invented . . . .”).

Prior to Monroe, it was assumed that Section 1983

made government officials liable only for state law

authorized deprivations of federal rights. Thus, to

prevail on a Section 1983 claim, litigants were

required to point to a specific source of state law that

had enabled unconstitutional behavior—for instance,

a statute. Monroe did away with this understanding.

Instead, under Monroe and its progeny, Section 1983

imposes liability even for deprivations not expressly

authorized by state law. See West v. Atkins, 487 U.S.

42, 49—50 (1988) (noting, inter alia, that “[i]t is firmly

established that a defendant in a § 1983 suit acts

under the color of state law when he abuses the

position given to him by the State.”). This

15

indisputably gave way to “a deluge of litigation.” Cole

v. Carson, 935 F.3d 444, 461 (5th Cir. 2019) (Jones, J.,

dissenting).

Protecting government officials against such a

“deluge” is understandable when their conduct is the

product of consequential split-second decisions.

Again, see Kisela, supra. However, this case—and

others like it—present an entirely different set of

circumstances. Here, government officials engaged in

a premediated, conspiratorial effort to deny Villarreal

her First Amendment rights based on an

unconstitutional statute. TEX. PENAL CODE § 39.06

serves as the entire basis for the Respondents’

conduct. Thus, limiting or eliminating qualified

immunity in this context is consistent with the

understanding of Section 1983 liability that existed

prior to Monroe and prior to the Court’s subsequent

creation of the qualified immunity doctrine in Harlow

v. Fitzgerald, 457 U.S. 800 (1982): that state officials

answer for their conduct when “they act in accordance

with their authority” rather than when they simply

“misuse it.”3 Monroe, 365 U.S. at 172.

Moreover, as opponents of qualified immunity

have previously noted, many of the concerns

motivating application of the doctrine are simply

3 What makes the decision so bizarre is that it “turns the

plain text of § 1983 on its head.” Villarreal, No. 20-40359, at

66 (Ho, J., dissenting). Although a state statute is no longer

a requirement for Section 1983 liability, it cannot, in the

words of Judge Ho’s dissent, serve as a “defense to liability

altogether.” Id; see 42 U.S.C. § 1983 (imposing liability for

violations of the Constitution undertaken “under color of any

statute, ordinance, regulation, custom, or usage, of any

State.”) (emphasis added).

16

unfounded. For instance, much of this Court’s

qualified immunity jurisprudence is driven by an

assumption that government officials, including

police officers, will necessarily bear individual

responsibility for the payment of litigation costs. As

the Court recently stated in Ziglar v. Abassi—

The qualified immunity

rule seeks a proper balance

between two competing

interests. On the one hand,

damages suits “may offer

the only realistic avenue

for

vindication

of

constitutional guarantees”

. . . “On the other hand,

permitting damages suits

against

government

officials

can

entail

substantial social costs,

including the risk that fear

of

personal

monetary

liability . . . will unduly

inhibit officials in the

discharge of their duties.”

582 U.S. 120, 150 (2017) (quoting Harlow, 457 U.S. at

814 and Anderson v. Creighton, 483 U.S. 635, 638

(1987)). Empirical evidence does not support this

proposition.

See Joanna C. Schwartz, Police

Indemnification, 89 N.Y.U. L. REV. 885, 890 (2014)

(emphasizing that between 2006 and 2011, in fortyfour of the country’s largest jurisdictions, officers

contributed only 0.02% of the over $730 million spent

by states, cities, and counties defending cases). If

17

officials are nearly always indemnified, the

overdeterrence concern motivating continuation of

the

qualified

immunity

doctrine

dissolves

considerably. Especially, such as here, where officials

had ample opportunity to assess the consequences of

their actions before depriving the complainant of her

rights.

What is more is that qualified immunity is entirely

incongruous with a fundamental policy that underlies

much of American law: ignorantia juris non excusat—

ignorance of the law is no excuse. See McFadden v.

United States, 576 U.S. 186, 192 (2015) (recent case

applying the principle in a criminal context); Cheek v.

United States, 498 U.S. 192, 199 (1991) (indicating

that the principle is “deeply rooted in the American

legal system.”); Barlow v. United States, 32 U.S. 404,

411 (1833) (noting that this maxim applies either

“civilly or criminally”).

In any country, but

particularly in a democratic republic based upon

popular self-governance, it is expected that citizens

know and understand the state of the law to a

comprehensive degree. See Letter from Thomas

Jefferson to André Limozin (Dec. 22, 1787), in THE

PAPERS OF THOMAS JEFFERSON VOL. 12, pp. 450-451

(Julian P. Boyd, ed., 1955) (“[I]gnorance of the law is

no excuse in any country. If it were, laws would lose

their effect, because it can be always pretended.”). If

this is so, it only makes sense that those entrusted

with enforcing the law possess just as much

knowledge as the rest of citizenry. See Screws v.

United States, 325 U.S. 91, 129—30 (1945) (Rutledge,

J., concurring in the result) (“Ignorance of the law is

no excuse for men in general. It is less an excuse for

18

men whose special duty is to apply it, and therefore to

know and observe it.”).

However, the doctrine of qualified immunity—

particularly its “clearly established” prong—has

legitimated law enforcement ignorance of the highest

order. For example, an official may be aware that it

is unconstitutional to release a police dog on a suspect

who is laying down but not a suspect who is sitting

down with his hands in the air. See Baxter v. Bracey,

751 F. App’x 869 (6th Cir. 2018). Or, an official may

be aware that it is unconstitutional to effectively steal

a defendant’s vehicle but not their cash and rare

coins. See Jessop v. City of Fresno, 936 F.3d 937 (9th

Cir. 2019). And here, officials may be aware that

citizens have the right to challenge police officers,

even aggressively (see City of Houston, supra), but not

that they can politely ask those same police officers

questions. This case serves as yet another example of

the inverted and absurd world of qualified immunity

jurisprudence—where those we entrust with

enforcing the law are presumed to be ignorant of it,

save for the rare instance where present facts and

prior law perfectly overlap.

CONCLUSION

The

Constitution

protects

speech

from

government overreach and suppression. This Court is

the arbiter of those protections.4

4

“It is emphatically the province and duty of the judicial

department to say what the law is. Those who apply the rule

to particular cases, must of necessity expound and interpret

19

When the government, like Texas officials here,

aggressively and arbitrarily apply their legislation in

a way that clearly impedes on our most sacred

freedoms captured in the First Amendment, it is

incumbent on this Court to intervene, and not to allow

a judicial doctrine to slowly erode its solidity.

The Fifth Circuit approach to qualified immunity

must be stopped before it spreads.

Respectfully submitted,

KELLY SHACKELFORD

JEFF MATEER

HIRAM SASSER

DAVID HACKER

ROGER BYRON

FIRST LIBERTY INSTITUTE

2001 W. PLANO PARKWAY,

SUITE 1600

PLANO, TX 75075

APRIL A. WIMBERG

Counsel of Record

RYNE E. TIPTON

DENTONS BINGHAM

GREENEBAUM LLP

101 SOUTH FIFTH STREET,

SUITE 3500

LOUISVILLE, KY 40202

(502) 587-3719

APRIL.WIMBERG@DENTONS.COM

Counsel for Amicus Curiae

May 3, 2024

that rule. If two laws conflict with each other, the courts

must decide on the operation of each.” Marbury v. Madison,

5 U.S. (1 Cranch) 137, 177 (1803); see also Alexander

Hamilton, Federalist No. 78, THE FEDERALIST PAPERS (J.

Cooke ed. 1961) at 525 (“The interpretation of the laws is the

proper and peculiar province of the courts. A constitution is,

in fact, and must be regarded by the judges, as a

fundamental law. It therefore belongs to them to ascertain

its meaning….”).