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, SUED IN HIS INDIVIDUAL CAPACITY,

et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF THE LAW ENFORCEMENT ACTION

PARTNERSHIP AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

APRATIM VIDYARTHI

GIBSON, DUNN & CRUTCHER LLP

200 Park Ave.

New York, N.Y. 10166

DAVID DEBOLD

Counsel of Record

JEFF LIU

CHRISTIAN DIBBLEE

ANDREW EBRAHEM

JESSE SCHUPACK

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 955-8500

DDebold@gibsondunn.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................... 2

ARGUMENT ............................................................... 4

I.

QUALIFIED IMMUNITY IS UNAVAILABLE FOR

OBVIOUS CONSTITUTIONAL VIOLATIONS................. 4

II. THE POLICY CONSIDERATIONS USED TO JUSTIFY

QUALIFIED IMMUNITY DO NOT APPLY HERE. ....... 11

III. THE FIFTH CIRCUIT’S RULE WOULD NEGATIVELY

AFFECT LAW ENFORCEMENT AND THE PUBLIC. ... 13

A. Barring Civil Liability Will Deprive The

Public Of A Key Deterrent Against The

Growing Threat Of Retaliatory Arrests. .....14

B. The Fifth Circuit’s Decision Will

Undermine Trust In The Police And

Interfere With Public Safety ........................17

C. Failing To Prohibit Premeditated

Retaliatory Arrests Will Chill First

Amendment-Protected Activity. ..................20

CONCLUSION .......................................................... 21

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) .......................................... 5, 11

Bennett v. Hendrix,

423 F.3d 1247 (11th Cir. 2005) .......................... 7, 8

City of Tahlequah v. Bond,

595 U.S. 9 (2021) .................................................. 12

Crouse v. Town of Moncks Corner,

848 F.3d 576 (4th Cir. 2017) .......................... 17, 18

Duncan v. Becerra,

970 F.3d 1133 (9th Cir. 2020) .............................. 18

Gilbert v. Homar,

520 U.S. 924 (1997) .............................................. 17

Gonzalez v. Trevino,

60 F.4th 906 (5th Cir. 2023) .......................... 14, 21

Grosjean v. Am. Press Co.,

297 U.S. 233 (1936) .............................................. 15

Harlow v. Fitzgerald,

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

Harris v. Pittman,

927 F.3d 266 (4th Cir. 2019) .......................... 16, 18

Hernandez v. City of Phoenix,

43 F.4th 966 (9th Cir. 2022) ................................ 18

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021) .......................................... 12

iii

Hope v. Pelzer,

536 U.S. 730 (2002) .................................... 5, 6, 7, 9

Intervarsity Christian Fellowship/USA

v. Univ. of Iowa,

5 F.4th 855 (8th Cir. 2021) .................................. 12

Irizarry v. Yehia,

38 F.4th 1282 (10th Cir. 2022) .............................. 8

Kingsley v. Hendrickson,

576 U.S. 389 (2015) .............................................. 11

Kisela v. Hughes,

138 S. Ct. 1148 (2018) ............................................ 9

Lacey v. Maricopa Cnty.,

693 F.3d 896 (9th Cir. 2012) ................................ 20

Lozman v. City of Riviera Beach,

585 U.S. 87 (2018) ................................ 3, 11, 14, 19

Matal v. Tam,

582 U.S. 218 (2017) .............................................. 21

Messerschmidt v. Millender,

565 U.S. 535 (2012) .............................................. 12

Myers v. Anderson,

238 U.S. 368 (1915) .............................................. 10

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) .............................................. 16

Nieves v. Bartlett,

139 S. Ct. 1715 (2019) .................................... 13, 15

Pasco ex rel. Pasco v. Knoblauch,

566 F.3d 572 (5th Cir. 2009) ................................ 11

iv

Pearson v. Callahan,

555 U.S. 223 (2009) .............................................. 16

Perry v. Sindermann,

408 U.S. 593 (1972) .............................................. 20

Plumhoff v. Rickard,

572 U.S. 765 (2014) .......................................... 3, 11

Reedy v. Evanson,

615 F.3d 197 (3d Cir. 2010) ................................. 12

Reynolds v. City of Chicago,

296 F.3d 524 (7th Cir. 2002) ................................ 18

Sause v. Bauer,

138 S. Ct. 2561 (2018) ............................................ 7

Stanton v. Sims,

571 U.S. 3 (2013) .................................................. 11

Stromberg v. California,

283 U.S. 359 (1931) .............................................. 20

Taylor v. Riojas,

141 S. Ct. 52 (2020) ................................................ 7

Taylor v. Stevens,

946 F.3d 211 (5th Cir. 2019) .................................. 7

United States v. Lanier,

520 U.S. 259 (1997) ........................................ 5, 6, 8

Wearry v. Foster,

52 F.4th 258 (5th Cir. 2022) ................................ 12

v

Other Authorities

Amanda D’Souza et al., Federal

Investigations of Police Misconduct: A

Multi-City Comparison, 71 Crime, L., &

Soc. Change 461 (2019) ........................................ 14

Giffords L. Ctr. to Prevent Gun Violence, In

Pursuit of Peace: Building PoliceCommunity Trust to Break the Cycle of

Violence (Sept. 9, 2021), bit.ly/4bFbD80 ............. 19

Andrew Goldsmith, Police Reform and the

Problem of Trust, 9 Theoretical

Criminology 443 (2005) ........................................ 19

David S. Kirk et. al., The Paradox of Law

Enforcement in Immigrant Communities:

Does Tough Immigration Enforcement

Undermine Public Safety?, 641 Annals of

Am. Acad. of Pol. & Soc. Sci. 79 (2012) ............... 19

Ellen S. Podgor, The Dichotomy Between

Overcriminalization and Underregulation,

70 Am. Univ. L. Rev. 1061 (2021) ....................... 15

Emily Washburn, America Less Confident In

Police Than Ever Before: A Look At The

Numbers, Forbes (Feb. 3, 2023),

bit.ly/3UJci1j ........................................................ 17

GianCarlo Canaparo et al., Count the Code:

Quantifying Federalization of Criminal

Statutes, Heritage Found. (Jan. 7, 2022),

bit.ly/3Lcpve2 ....................................................... 14

vi

James R. Copland & Rafael A. Mangual,

Manhattan Inst., Overcriminalizing

America (2018), bit.ly/41CLNfT .......................... 14

Joanna C. Schwartz, After Qualified Immunity,

120 Colum. L. Rev. 309 (2020)............................. 16

Joanna C. Schwartz, What Police Learn from

Lawsuits, 33 Cardozo L. Rev. 841 (2012) ............ 17

U.S. Dep’t of Justice, Building Trust Between

the Police and the Citizens They Serve

(2009), bit.ly/3LwqCGS ........................................ 19

1

INTEREST OF AMICUS CURIAE 1

The Law Enforcement Action Partnership

(“LEAP”) is a nonprofit organization whose members

include police, prosecutors, judges, corrections officials, and other law enforcement officials advocating

for criminal justice and drug policy reforms that will

make our communities safer and more just. Founded

by five police officers in 2002 with a sole focus on drug

policy, LEAP’s speaker’s bureau today numbers more

than 300 criminal justice professionals advising on police-community relations, incarceration, harm reduction, drug policy, and global issues. Through speaking

engagements, media appearances, testimony, and

support of allied efforts, LEAP reaches audiences

across a wide spectrum of affiliations and beliefs, calling for more practical and ethical policies from a public safety perspective.

This case presents an important opportunity to

ensure that officers who abuse their power to engage

in premeditated retaliatory arrests are held accountable. That accountability is essential to maintaining

the integrity of law enforcement, building trust in the

police, and ultimately keeping the public safe. LEAP

and its members thus have an interest in ensuring

that remedies are available to victims of police misconduct and that individuals enjoy robust protections

against retaliation for exercising their constitutional

rights.

1

Pursuant to Supreme Court Rule 37.2, Amicus provided

timely notice to all parties of its intent to file this amicus brief.

Pursuant to Supreme Court Rule 37.6, no counsel for a party authored this brief in whole or in part, and no person or entity other

than Amicus or its counsel made a monetary contribution to this

brief ’s preparation.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Priscilla Villarreal is a well-known citizen-journalist who has critically examined local affairs in the

border city of Laredo, Texas. Like any journalist, she

developed her own sources in local government and

published information provided by those sources. But

her journalistic activities embarrassed local prosecutors and police officers. To punish her, those officials

conspired to arrest and jail her under a public-disclosure statute never before enforced in its twenty-threeyear history—a statute that, as applied here, criminalized a citizen-journalist’s mere request of a police

officer for information. That is a blatant violation of

the First Amendment. Yet a slim majority of the en

banc Fifth Circuit—over seven dissenting votes—held

that the local officials were entitled to qualified immunity and dismissed Villarreal’s complaint at the

threshold.

This Court has consistently held that obvious violations of bedrock constitutional guarantees are not

protected by qualified immunity. And it “should have

been obvious to Defendants … that they were violating Villarreal’s First Amendment rights when they arrested and jailed her for asking a police officer for information.” Pet. App. 77a (Ho, J., dissenting). The

Fifth Circuit nonetheless granted the defendants here

qualified immunity because Villarreal had failed to

cite a judicial precedent identifying the First Amendment violation on “materially identical facts.” Id. at

33a. As Petitioner explains, that holding flouts this

Court’s precedent and conflicts with the decisions of

other federal courts of appeals.

The Fifth Circuit’s imposition of an on-point-precedent requirement is particularly perplexing under

3

the circumstances of this case. Qualified immunity

gives officers breathing room to make “split-second

judgments” free from fear of liability. Plumhoff v.

Rickard, 572 U.S. 765, 775 (2014). But that justification for immunity disappears when government officials act under a plainly “premeditated plan to intimidate” a plaintiff in retaliation for her First Amendment activities. Lozman v. City of Riviera Beach, 585

U.S. 87, 100 (2018). Here, Laredo officials engaged in

a months-long campaign to find a way to arrest Villarreal and send her to jail—simply for asking her

sources to provide information. “This was not the hot

pursuit of a presumed criminal” or any similar scenario where officials were presented with split-second

judgments. Pet. App. 61a (Willett, J., dissenting). Instead, officials deliberately targeted Villarreal for

punishment, all for engaging in activities that are obviously protected by the First Amendment. There is

no justification for granting qualified immunity in

these circumstances.2

Finally, the implications of the Fifth Circuit’s

qualified immunity holding are stark. Thanks to an

ever-growing list of criminal offenses, government officials have great flexibility to arrest anyone engaged

in First Amendment activities. That arresting discretion is particularly dangerous to disfavored speak-

2

Amicus agrees with Petitioner that this Court should grant

review to address whether asking government officials questions

and publishing the information they volunteer violates the First

Amendment. Pet. i. But Amicus focuses on the second, equally

important question presented here: whether qualified immunity

is available for obvious First Amendment violations, regardless

of whether there exists a state statute purporting to authorize

the violation or a Supreme Court precedent identifying the First

Amendment violation on materially identical facts.

4

ers—like citizen-journalists—and members of minority communities, who are especially likely to face official retaliation. Because two cases will rarely involve

pretextual enforcement of similar state statutes, the

Fifth Circuit’s requirement of a materially identical

case will routinely immunize defendants from liability—and leave victims of First Amendment retaliation

without a remedy. See Pet. App. 33a (demanding that

Villarreal identify a case finding a First Amendment

violation where officers were enforcing “a statute that

prohibits solicitation and receipt of nonpublic information from the government for personal benefit”).

Depriving victims of a valuable tool to hold bad actors

accountable will, in turn, decrease public trust in law

enforcement, undercut police-community relationships, and harm public safety. And it will chill First

Amendment activity, as individuals will think twice

before exercising their rights out of fear that vindictive government officials will throw them in jail.

These dangers underscore that the judiciary must

prevent government actors from using moribund statutes “as blunt cudgels to silence speech (and to punish

speakers) they dislike.” Pet. App. 64a (Willett, J., dissenting). This Court should grant certiorari and reverse.

ARGUMENT

I.

QUALIFIED IMMUNITY IS UNAVAILABLE FOR

OBVIOUS CONSTITUTIONAL VIOLATIONS.

The Fifth Circuit held that Villarreal could defeat

qualified immunity only by citing a case that has

found a First Amendment violation “on materially

identical facts”—meaning one that has held it unconstitutional “to arrest a person … upon probable cause

for violating a statute that prohibits solicitation and

5

receipt of nonpublic information from the government

for personal benefit.” Pet. App. 33a. The Fifth Circuit

acknowledged this Court’s cases holding that qualified immunity does not apply to “obvious” constitutional violations, but brushed them aside as offering

only a “narrow … exception” to the materially-identical-facts rule for “Eighth Amendment cases” involving

“deliberate indifference to unconstitutional prison

conditions.” Ibid. (distinguishing Hope v. Pelzer, 536

U.S. 730 (2002), and Taylor v. Riojas, 141 S. Ct. 52

(2020) (per curiam)).

The Fifth Circuit’s qualified immunity holding directly flouts this Court’s precedents, creates an open

conflict in the courts of appeals, and relegates the

First Amendment to second-class status. And if left

intact, the Fifth Circuit’s holding would substantially

diminish the constitutional protections properly afforded journalists and other concerned citizens.

1. State actors are entitled to qualified immunity

if the allegedly violated right was not “‘clearly established’ at the time of the [violation].” Ashcroft v. alKidd, 563 U.S. 731, 735 (2011). Qualified immunity,

however, does not lie if the law gives the defendants

“fair warning that their alleged treatment of [the

plaintiff] was unconstitutional.” Hope, 536 U.S. at

741. Although qualified immunity insulates officials

from liability for reasonable mistakes, it does not protect officials who commit “obvious” constitutional violations. Ibid. And constitutional violations can be obvious without any “case directly on point.” al-Kidd,

563 U.S. at 741.

This Court settled that issue almost three decades

ago in United States v. Lanier, 520 U.S. 259 (1997).

There, a state judge sexually assaulted five women,

some of whose cases were before him. Id. at 261-262.

6

The judge was convicted under 18 U.S.C. § 242 for violating the women’s constitutional rights, but “[t]he

Sixth Circuit reversed his convictions on the ground

that the constitutional right in issue had not previously been identified by [the Supreme Court] in a case

with fundamentally similar facts.” Id. at 261.

This Court reversed. The Court held that “this

standard of notice” was unwarranted, and that the

proper standard under § 242 should be the same as

“the ‘clearly established [law]’ immunity standard” for

§ 1983 liability—a standard that can be met without

any “case with fundamentally similar facts.” 520 U.S.

at 261, 270-271. The Court underscored that “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though ‘the very action

in question has [not] previously been held unlawful.’”

Id. at 271.

The Court applied the Lanier standard in a § 1983

case in Hope. There, prison guards handcuffed an inmate shirtless to a hitching post in the sweltering Alabama sun for eight hours. 536 U.S. at 733-735. The

guards did not provide bathroom breaks and offered

water only once or twice. Ibid. The Eleventh Circuit

granted the guards qualified immunity because the

inmate could not adduce “earlier cases with ‘materially similar’ facts.” Id. at 733.

But this Court reversed. The Court reasoned that

the “Eighth Amendment violation is obvious,” and the

“cruelty inherent in this practice should have provided respondents with some notice” of the constitutional violation. 536 U.S. at 738, 745. In so holding,

the Hope Court explained that Lanier “makes clear

that officials can still be on notice that their conduct

7

violates established law even in novel factual circumstances.” Id. at 741. Neither “fundamentally similar”

nor “materially similar” facts are “necessary.” Ibid.

Most recently, in Taylor, 141 S. Ct. at 53, the Court

confronted a case involving a prison inmate who had

been confined to an unsanitary cell with fecal matter,

no place to sleep, no toilets, and no insulation for six

days. The Fifth Circuit held that the defendant prison

officials were entitled to qualified immunity because

no case had “held that a time period so short [six days]

violated the Constitution.” Taylor v. Stevens, 946 F.3d

211, 222 (5th Cir. 2019). This Court summarily reversed. Citing no on-point precedent, the Court reasoned that “[c]onfronted with the particularly egregious facts of this case, any reasonable officer should

have realized that Taylor’s conditions of confinement

offended the Constitution.” 141 S. Ct. at 54.

This Court has applied the same standard in the

First Amendment context. See Sause v. Bauer, 138 S.

Ct. 2561, 2562 (2018) (reversing grant of qualified immunity on First Amendment claim in absence of comparable case because “[t]here can be no doubt that the

First Amendment protects the right to pray”). And

before the decision below, the courts of appeals had

uniformly done the same.

In Bennett v. Hendrix, for example, plaintiffs alleged that defendant police officers carried out a campaign of police harassment and retaliation after plaintiffs supported a county referendum opposed by the

sheriff. 423 F.3d 1247, 1248 (11th Cir. 2005), cert denied, 549 U.S. 809 (2006). Denying qualified immunity, the Eleventh Circuit noted that the principle that

“state officials may not retaliate against private citizens because of the exercise of their First Amendment

rights” provided “obvious clarity” and adequately

8

served as fair warning for the officers. Id. at 12551256.

Similarly, in Irizarry v. Yehia, the Tenth Circuit

held that a police officer violated a clearly established

First Amendment right by driving his car at a person

for “filming police conduct in public.” 38 F.4th 1282,

1297 (10th Cir. 2022). The court reasoned that it is

“obvious to a reasonable officer” that “driving a police

car at [the plaintiff] in response to that filming would

infringe First Amendment protected activity and chill

its exercise.” Ibid. (emphasis added); see also Pet.

App. 77a-80a (Ho, J., dissenting) (collecting cases and

noting that “nine circuits have indicated that the

standards articulated in Hope apply specifically in the

First Amendment context”).

At bottom, qualified immunity is not a shield from

liability for conduct so patently unconstitutional that

no court has yet had an opportunity to address it. Lanier, 520 U.S. at 271 (“The easiest cases don’t even

arise. There has never been ... a section 1983 case accusing welfare officials of selling foster children into

slavery; it does not follow that if such a case arose, the

officials would be immune from damages … liability.”).

2. The Fifth Circuit’s qualified immunity holding

disregards these precedents and makes no sense on its

own terms.

The court below began by reciting the purported

principle that “existing precedent” must “squarely

gover[n] the specific facts at issue.” Pet. App. 32a

(quoting Kisela v. Hughes, 138 S. Ct. 1148, 1153

(2018) (per curiam)). The Fifth Circuit thus inferred

a “requirement that ‘clearly established law’ be

founded on materially identical facts.” Id. at 33a (emphasis added). And “Villarreal cites no case, nor are

9

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.” Ibid.

The Fifth Circuit acknowledged this Court’s decisions in Hope and Taylor, but held that those decisions

established only a “decidedly narrow, obviousness exception” for “Eighth Amendment cases … for deliberate indifference to unconstitutional prison conditions.” Pet. App. 33a. “[I]n this context”—i.e., cases

involving “First Amendment free exercise rights”—

the Fifth Circuit asserted that Hope is an “inappropriate templat[e],” and the plaintiff must “offer … similar

cases to prove that an officer should have been on notice that his conduct violated the Constitution.” Id. at

34a.

That rationale revives the very rule that Hope and

its progeny laid to rest. By requiring Villarreal to

show a case with “materially identical facts,” the Fifth

Circuit repeated the exact same error Hope condemned: “requir[ing] that the facts of previous cases

be ‘ “materially similar” to [the plaintiff’s] situation.’ ”

536 U.S. at 739. And “[n]othing in Hope or Taylor indicates that those decisions apply only to prison conditions.” Pet. App. 77a (Ho, J., dissenting).3

The Fifth Circuit’s rationale is also unsupportable

as a matter of first principles and common sense. As

Judge Ho persuasively explained, limiting the Hope

3

The Fifth Circuit misread this Court’s decision in Kisela to require “[p]recedent involving similar facts,” when Kisela instead

reinforces the point that such a showing is necessary only “outside an obvious case.” 138 S. Ct. at 1153 (emphasis added)

(cleaned up).

10

standard to the Eighth Amendment context “would

treat the First Amendment as a second-class right.”

Pet. App. 77a. And “[n]othing in § 1983 suggests that

courts should favor the Eighth Amendment rights of

convicted criminals over the First Amendment rights

of law-abiding citizens.” Ibid. Unsurprisingly, therefore, the Fifth Circuit’s holding conflicts with every

other court of appeals to consider the issue. See supra

7-8; see Pet. 28-32; Pet. App. 77a (Ho, J., dissenting)

(explaining that court’s ruling conflicts with holdings

of “nine circuits”).

For the reasons Petitioner and the dissenting opinions below explain, that error was dispositive in this

case because Laredo officials blatantly violated Villarreal’s First Amendment rights. Pet. 21-24; Pet. App.

43a-46a (Graves, J., dissenting) (right to newsgathering); id. at 57a-59a (Higginson, J., dissenting) (focusing on First Amendment retaliation claim); id. at 75a77a (Ho, J., dissenting). The analysis does not change

merely because a state statute purports to authorize

the unconstitutional conduct. Pet. 28-32 (collecting

cases in First Amendment context); Pet. App. 83a (Ho,

J., dissenting) (collecting “[a] mountain of Supreme

Court and circuit precedent” for this principle); e.g.,

Myers v. Anderson, 238 U.S. 368, 382 (1915) (“the new

statute did not … interpose a shield to prevent the operation upon [the state officers] of the provisions of the

Constitution of the United States”).

Ultimately, “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.”

Pet. App. 64a (Willett, J., dissenting). The Fifth Cir-

11

cuit’s error in expanding the scope of qualified immunity alone is reason to grant certiorari or summarily reverse.

II. THE POLICY CONSIDERATIONS USED TO

JUSTIFY QUALIFIED IMMUNITY DO NOT APPLY

HERE.

The Fifth Circuit’s grant of qualified immunity—

and its requirement of a “materially identical” case—

was especially improper here, where officials undertook a deliberate, months-long campaign to violate the

First Amendment rights of a journalist.

The policy behind qualified immunity is that officers who must make judgments “in circumstances that

are tense, uncertain, and rapidly evolving” should not

be subject to liability for reasonable mistakes. Kingsley v. Hendrickson, 576 U.S. 389, 399 (2015) (cleaned

up). So qualified immunity offers “officials breathing

room” to make “split-second judgments.” Ashcroft v.

al-Kidd, 563 U.S. 731, 743 (2011) (“breathing room”);

Plumhoff v. Rickard, 572 U.S. 765, 775 (2014) (“splitsecond judgments”). Where officers must make onthe-spot judgments “without clear guidance from legal

rulings,” they are immune from damages under

§ 1983. Pasco ex rel. Pasco v. Knoblauch, 566 F.3d

572, 582 (5th Cir. 2009); see also, e.g., Stanton v. Sims,

571 U.S. 3, 10 (2013) (per curiam) (granting qualified

immunity to an officer who “made his split-second decision” when the law was not clearly established).

But that rationale evaporates when a defendant

undertakes a “premeditated plan to intimidate [the

plaintiff] in retaliation for his criticisms of city officials.” Lozman v. City of Riviera Beach, 585 U.S. 87,

100 (2018). When officers “make the deliberate and

12

considered decision to trample on a citizen’s constitutional rights, they deserve to be held accountable.”

Wearry v. Foster, 52 F.4th 258, 259 (5th Cir. 2022)

(Ho, J., concurring in denial of rehearing en banc).

Qualified immunity is meant to protect only officials

who make “mistaken judgments,” Messerschmidt v.

Millender, 565 U.S. 535, 553 (2012), not officials “who

knowingly violate the law,” City of Tahlequah v. Bond,

595 U.S. 9, 12 (2021).

Courts therefore routinely deny qualified immunity when “no ‘split-second’ decisions [were] made.”

Reedy v. Evanson, 615 F.3d 197, 224 n.37 (3d Cir.

2010); e.g., Intervarsity Christian Fellowship/USA v.

Univ. of Iowa, 5 F.4th 855, 867 (8th Cir. 2021) (refusing to extend qualified immunity because university

officers had time to make calculated choices about infringing on the First Amendment rights of religious

student organizations). As Justice Thomas recently

asked, “why should … officers, who [had] time to make

calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a

police officer who makes a split-second decision to use

force in a dangerous setting?” Hoggard v. Rhodes, 141

S. Ct. 2421, 2421-2422 (2021) (Thomas, J., statement

respecting the denial of certiorari). There is no logic

to that “one-size-fits-all” approach. Ibid.

Here, Villarreal’s arrest was a result of deliberate

planning, “cooked up with legal advice from the Webb

County District Attorney’s Office.” Pet. App. 62a (Willett, J., dissenting). For months, the Laredo officials

looked for an excuse to arrest Villarreal because of her

journalism criticizing local government affairs. And

they found one: arresting Villarreal under a Texas

statute that had never been used once in the 23 years

of its existence. Why? Because she asked a Laredo

13

officer to verify one of her stories, and the officer provided her with information. The underlying retaliatory purpose was clear, as Villarreal was arrested for

routine newsgathering months after she had published the articles at issue. This was not an arrest

that required “quick decisions in circumstances that

are tense, uncertain, and rapidly evolving.” Nieves v.

Bartlett, 139 S. Ct. 1715, 1725 (2019) (internal quotation marks omitted).

Given the ample time Respondents had to reflect

on whether to engage in conduct that obviously violated the First Amendment, qualified immunity is unwarranted. This case is an ideal vehicle for the Court

to reconsider its one-size-fits-all approach to qualified

immunity.

III. THE

FIFTH

CIRCUIT’S

RULE

WOULD

NEGATIVELY AFFECT LAW ENFORCEMENT AND

THE PUBLIC.

The dramatic expansion of criminal codes across

the country has made it easier than ever for a law enforcement officer who wishes to punish a person for

engaging in protected First Amendment activity to

find probable cause for some criminal violation on

which to base an arrest. Civil lawsuits against officers

who are engaged in premeditated, retaliatory arrests

serve as a critical check on this kind of misconduct.

Unless this Court intervenes, however, the Fifth

Circuit’s decision will insulate officers from accountability in many cases of deliberate, premeditated retaliation. Allowing that shield to stand will in turn undermine public trust in law enforcement, making it

harder for the vast majority of honest officers to do

their job and keep their communities safe. It will also

chill First Amendment-protected speech and activity,

14

especially among journalists and those who hold

views disfavored by government actors. These dangers underscore why the decision below cannot stand.

A. Barring Civil Liability Will Deprive

The Public Of A Key Deterrent Against

The Growing Threat Of Retaliatory

Arrests.

Retaliatory arrests have become an increasingly

common occurrence. See Gonzalez v. Trevino, 60

F.4th 906, 907 (5th Cir. 2023) (Ho, J., dissenting from

denial of rehearing en banc) (the risk of retaliatory arrests “has never been more prevalent than today”);

Amanda D’Souza et al., Federal Investigations of Police Misconduct: A Multi-City Comparison, 71 Crime,

L., & Soc. Change 461, 474 (2019) (“[a] troublesome

finding in all [federal investigations over the past two

decades] was officers’ retaliatory actions against citizens”). This trend is a byproduct of the ever-growing

size of modern criminal codes.

See GianCarlo

Canaparo et al., Heritage Found., Count the Code:

Quantifying Federalization of Criminal Statutes 3

(2022), bit.ly/3Lcpve2 (showing that the number of

statutory provisions creating a federal crime increased by 36% between 1994 and 2019); James R.

Copland & Rafael A. Mangual, Manhattan Inst., Overcriminalizing America 4 (2018), bit.ly/41CLNfT (“common problems in state criminal law” include “[t]oo

many crimes on the books”); see generally @CrimeADay, Twitter.

An officer who may be inclined to punish a disfavored speaker—such as a journalist, as here—can

therefore readily find a minor offense they committed

and use that to justify an arrest. See Lozman v. City

of Riviera Beach, 585 U.S. 87, 99 (2018) (“[T]here is a

risk that some police officers may exploit the arrest

15

power as a means of suppressing speech.”). For instance, this Court recently observed that jaywalking

is “endemic but rarely results in arrest.” Nieves v.

Bartlett, 139 S. Ct. 1715, 1727 (2019). But an officer

seeking to punish, for example, “an individual who

has been vocally complaining about police conduct”

can exercise his discretion and arrest that person if

they jaywalk. Ibid.

Broad arresting powers in the wrong hands can be

used to disproportionately burden disfavored groups.

Public officials acting in bad faith can use their lawenforcement discretion to arrest a journalist because

“her newsgathering and reporting activities annoyed

them,” Pet. App. 47a (Higginson, J., dissenting), or a

citizen who merely “ask[s] for a person’s name,” id. at

89a (Ho, J., dissenting) —even though “informed public opinion is the most potent of all restraints upon

misgovernment,” Grosjean v. Am. Press Co., 297 U.S.

233, 250 (1936). See also Pet. App. 46a (Graves, J.,

dissenting) (“a democracy functions properly only

when the citizenry is informed”). As Petitioner highlights, these dangers are far from hypothetical—and

Priscilla Villarreal’s experience is hardly an outlier.

See Pet. 33-34 (collecting real-world examples). And

the ill effects of retaliatory arrests are especially likely

to fall on individuals in minority communities. See

Ellen S. Podgor, The Dichotomy Between Overcriminalization and Underregulation, 70 Am. Univ. L. Rev.

1061, 1065 (2021) (observing that overcriminalization

“provides increased choices to prosecutors,” which

“can result in disparities, especially to poor and minority members of society”).

Civil lawsuits are a vital check against police officers engaging in premeditated retaliatory arrests.

Indeed, this Court has repeatedly recognized that civil

16

suits help “to hold public officials accountable when

they exercise power irresponsibly.” Pearson v. Callahan, 555 U.S. 223, 231 (2009); accord Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (acknowledging “the

importance of a damages remedy to protect the rights

of citizens”). This element of accountability ensures

that the “government will respond to the will of the

people.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 301

(1964) (Goldberg, J., concurring in the result); cf. Harris v. Pittman, 927 F.3d 266, 282-283 (4th Cir. 2019)

(Wilkinson, J., dissenting) (“Police officers do overreach. And when they do, the law must hold them to

account.”).

The Fifth Circuit’s rule would close the courthouse

doors on many deserving plaintiffs who are deliberately punished for exercising their First Amendment

rights by officers who—despite having probable cause

for an arrest—clearly acted on retaliatory animus. By

requiring that the plaintiff show even a prior case violating First Amendment rights through enforcement

of a similar state law, Pet. App. 33a, the Fifth Circuit

effectively makes qualified immunity “unqualified impunity,” id. at 62a (Willett, J., dissenting). Given the

variety of state criminal codes, rarely will different

plaintiffs be subject to retaliatory enforcement under

similar laws.

That result will only further contribute “to the

deep deficit in police accountability throughout our

country.” Joanna C. Schwartz, After Qualified Immunity, 120 Colum. L. Rev. 309, 312 n.8, 313 (2020).

And the lack of accountability would harm police departments, too: Exposure to civil liability provides incentives to improve police performance and reduce

constitutional violations; allows departments to

gather information about misconduct and illegal uses

17

of force; and helps gather data that fills gaps in internal reporting systems, such as unearthing more conclusive evidence in excessive-force lawsuits. Joanna

C. Schwartz, What Police Learn from Lawsuits, 33

Cardozo L. Rev. 841, 845-846 (2012).

Other consequences for rogue officers—such as internal discipline—are inadequate alone to stamp out

bad-faith, unconstitutional behavior. See Schwartz,

33 Cardozo L. Rev. at 862-874; Crouse v. Town of

Moncks Corner, 848 F.3d 576, 589 (4th Cir. 2017)

(Motz, J., concurring in the judgment) (“Serious allegations of misconduct sometimes go unanswered, and

officers who abuse their power sometimes go undisciplined.”). Allowing the Fifth Circuit’s ruling to stand

would deprive many individuals of a crucial way to

hold accountable officers who retaliate against them

for engaging in constitutionally protected behavior.

B. The Fifth Circuit’s Decision Will

Undermine Trust In The Police And

Interfere With Public Safety.

Allowing officers who carry out deliberate, premeditated retaliatory arrests to avoid liability will diminish the public’s trust in and cooperation with goodfaith law enforcement efforts. Trust in the police has

declined over the past two decades, reaching its lowest

level in recent years, especially in minority communities. See Emily Washburn, America Less Confident In

Police Than Ever Before: A Look At The Numbers,

Forbes (Feb. 3, 2023), bit.ly/3UJci1j. But police officers are supposed to “occupy positions of great public

trust and high public visibility.” Gilbert v. Homar,

520 U.S. 924, 932 (1997). If those who violate that

trust are not held responsible, that will only exacerbate existing tensions between law-abiding police officers and their communities. Rising tensions, in

18

turn, will undermine law enforcement’s ability to

maintain public safety. This case presents that concern in sharp relief, because Respondents ginned up

prosecution of a private journalist who simply asked

for governmental information while taking no action

against the officer who supposedly violated the law by

giving that information to her.

“Effective police work, including the detection and

apprehension of criminals, requires that the police

have the trust of [their] community” and that the public believes that police departments “will use [their]

powers responsibly and adequately discipline officers

who do not.” Reynolds v. City of Chicago, 296 F.3d

524, 530 (7th Cir. 2002) (Posner, J.); Crouse, 848 F.3d

at 589 (Motz, J., concurring in the judgment). Members of the public need to believe in the good faith of

officers so they feel comfortable calling on law enforcement to help in emergencies and aiding police investigations. See Duncan v. Becerra, 970 F.3d 1133, 1161

(9th Cir. 2020) (noting that “some people, especially in

communities of color, do not trust law enforcement

and are less likely ... to call 911 even during emergencies”). And to effectively do their job, police officers

need to feel trusted by the people they serve. See Hernandez v. City of Phoenix, 43 F.4th 966, 981 (9th Cir.

2022) (“Police departments also have a strong interest

in maintaining a relationship of trust and confidence

with the communities they serve”); Harris, 927 F.3d

at 286-287 (Wilkinson, J., dissenting).

Those police-community relations fray, however—

and the public’s trust is diminished—when officers engage in misconduct without facing any consequences.

Even the bad acts of a small number of officers will

hinder community trust in the police, the vast majority of whom carry out their jobs with dignity and

19

honor. U.S. Dep’t of Just., Building Trust Between the

Police and the Citizens They Serve 17 (2009),

bit.ly/3LwqCGS. By shielding from liability officers

who “exploit the arrest power as a means of suppressing [First Amendment conduct],” Lozman, 585 U.S. at

99, the Fifth Circuit’s rule will further undermine

trust in the police and officers’ ability to fulfill their

duties to the public.

This loss of trust will have major downstream effects. If people do not feel comfortable calling on the

police in a crisis, that will threaten public safety. Andrew Goldsmith, Police Reform and the Problem of

Trust, 9 Theoretical Criminology 443, 443 (2005)

(“Without public trust in police, ‘policing by consent’

is difficult or impossible and public safety suffers.”).

And if community members are less likely to cooperate in police investigations, police officers will find it

harder to conduct their duties in the future. See, e.g.,

David S. Kirk et al., The Paradox of Law Enforcement

in Immigrant Communities: Does Tough Immigration

Enforcement Undermine Public Safety?, 641 Annals of

Am. Acad. of Pol. & Soc. Sci. 79, 79 (2012) (lawless actions by officers “undermine[] individuals’ willingness

to cooperate with the police and engage in the collective actions necessary to socially control crime”).

These costs are likely to be significant: A lack of trust

in the police is correlated with an increase in gun violence, which in turn fuels a cycle of over-enforcement

of minor misdemeanors, further eroding trust in the

police and fueling violence. See In Pursuit of Peace:

Building Police-Community Trust to Break the Cycle

of Violence, Giffords L. Ctr. to Prevent Gun Violence

(Sept. 9, 2021), bit.ly/4bFbD80. A qualified immunity

rule that promotes accountability for the minority of

20

bad-faith actors in law enforcement, by contrast, promotes public confidence in the integrity of the criminal justice system.

C. Failing To Prohibit Premeditated

Retaliatory Arrests Will Chill First

Amendment-Protected Activity.

The Fifth Circuit’s holding is likely to have a

chilling effect on activity protected by the First

Amendment. Individuals may choose to abstain from

conducting newsgathering activities—or speaking,

petitioning the government, or engaging in religious

exercise—if they fear that law enforcement may punish them with impunity for exercising their constitutional rights.

When the government takes adverse action based

on an individual’s First Amendment activity, their

“exercise of [protected] freedoms” is “in effect ... penalized and inhibited.” Perry v. Sindermann, 408 U.S.

593, 597 (1972). And “[t]o state that arresting someone in retaliation for their exercise of free speech

rights is sufficient to chill speech is an understatement.” Lacey v. Maricopa Cnty., 693 F.3d 896, 917

(9th Cir. 2012) (en banc) (cleaned up) (citations omitted); see also Pet. App. 100a (Ho, J., dissenting)

(“[T]he American Constitution also guarantees freedom after the speech.”).

The free exchange of ideas will also be hampered

unless individuals know they can exercise their First

Amendment rights free from government penalty—

and that if they are punished, they will have legal recourse against it. Open and active discussion of matters of public import is “a fundamental principle of our

constitutional system,” Stromberg v. California, 283

21

U.S. 359, 369 (1931), but it cannot flourish if government actors can stomp out disfavored voices, see

Matal v. Tam, 582 U.S. 218, 253-254 (2017) (Kennedy,

J., concurring in part and concurring in the judgment)

(“A law that ... can be turned against minority and dissenting views” works “to the detriment of all.”).

It therefore “falls on the judiciary” to “make certain that law enforcement officials exercise their significant coercive powers to combat crime—not to police political discourse.” Gonzalez, 60 F.4th at 907-908

(Ho, J., dissenting from denial of rehearing en banc).

The First Amendment demands nothing less.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

APRATIM VIDYARTHI

GIBSON, DUNN & CRUTCHER LLP

200 Park Ave.

New York, N.Y. 10166

DAVID DEBOLD

Counsel of Record

JEFF LIU

CHRISTIAN DIBBLEE

ANDREW EBRAHEM

JESSE SCHUPACK

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 955-8500

DDebold@gibsondunn.com

Counsel for Amicus Curiae

May 23, 2024