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, in his individual capacity, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE IN SUPPORT OF

PETITIONER

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

May 24, 2024

* Counsel of Record

TABLE OF CONTENTS

Page

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

ii

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

1

INTRODUCTION AND SUMMARY

OF ARGUMENT................................................

1

ARGUMENT .........................................................

4

I.

Section 1983 Was Enacted to Make Real

the First Amendment’s Promise to

Protect the Speech of All People,

Including Those Who Criticize

Authorities ................................................

4

The Reasoning of the Court Below Is

Contrary to the Strict-Liability

Backdrop of Nineteenth-Century Tort

Law, Which Informs Analysis of Section

1983 Claims ..............................................

14

CONCLUSION .....................................................

19

II.

(i)

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Creighton,

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

11

Ashcroft v. al-Kidd,

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

12

Bates v. Clark,

95 U.S. 204 (1877) .......................................

16

Branzburg v. Hayes,

408 U.S. 665 (1972) .....................................

4, 13

Buckley v. Fitzsimmons,

509 U.S. 259 (1993) .....................................

11

Campbell v. Sherman,

35 Wis. 103 (1874) .......................................

17

District of Columbia v. Carter,

409 U.S. 418 (1973) .....................................

10

Dynes v. Hoover,

61 U.S. 65 (1857) .........................................

15

Fisher v. McGirr,

67 Mass. 1 (1854) .........................................

17

Graham v. Connor,

490 U.S. 386 (1989) .....................................

19

Gross v. Rice,

71 Me. 241 (1880) ........................................

17

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

Hoggard v. Rhodes,

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

2

Hope v. Pelzer,

536 U.S. 730 (2002) .....................................

12

Houchins v. KQED, Inc.,

438 U.S. 1 (1978) .........................................

13

Houston v. Hill,

482 U.S. 451 (1987) ..................................... 12, 13

Imbler v. Pachtman,

424 U.S. 409 (1976) .....................................

15

Kelly v. Bemis,

70 Mass. 83 (1855) .......................................

17

Lewis v. City of New Orleans,

415 U.S. 130 (1974) ..................................... 12, 13

Little v. Barreme,

6 U.S. 170 (1804) .........................................

15

Malley v. Briggs,

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

14

McCulloch v. Maryland,

17 U.S. 316 (1819) .........................................

18

McDonald v. Chicago,

561 U.S. 742 (2010) .....................................

8

Messerschmidt v. Millender,

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

14

iv

TABLE OF AUTHORITIES – cont’d

Page(s)

Mitchum v. Foster,

407 U.S. 225 (1972) .....................................

11

Monroe v. Pape,

365 U.S. 167 (1961) .....................................

10

Murray v. The Charming Betsy,

6 U.S. 64 (1804) ...........................................

16

N.Y. Times Co. v. United States,

403 U.S. 713 (1971) .....................................

6

Osborn v. Bank of U.S.,

22 U.S. 738 (1824) ....................................... 17, 18

Patsy v. Bd. of Regents,

457 U.S. 496 (1982) .....................................

3

Roth v. United States,

354 U.S. 476 (1957) .....................................

5

Sause v. Bauer,

585 U.S. 957 (2018) .....................................

12

Shanley v. Wells,

71 Ill. 78 (1873) ............................................ 16, 17

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) .....................................

13

Sumner v. Beeler,

50 Ind. 341 (1875) ........................................

17

Taylor v. Riojas,

592 U.S. 7 (2020) .........................................

12

v

TABLE OF AUTHORITIES – cont’d

Page(s)

Timbs v. Indiana,

139 S. Ct. 682 (2019) ...................................

8

Tower v. Glover,

467 U.S. 914 (1984) .....................................

15

Tracy v. Swartwout,

35 U.S. 80 (1836) ......................................... 15, 18

Wilson v. Garcia,

471 U.S. 261 (1985) .....................................

9, 10

Wise v. Withers,

7 U.S. 331 (1806) .........................................

15

Ziglar v. Abbasi,

582 U.S. 120 (2017) .....................................

3

Statutes, Legislative Materials, and Constitutional

Provisions

An Act to Enforce the Provisions of the

Fourteenth Amendment to the Constitution

of the United States, and for Other

Purposes, Pub. L. No. 42-22, 17 Stat. 13

(1871) ...........................................................

9

Ala. Slave Code § 36 (1833) ...........................

7

1 Annals of Cong. 451 (1789) ........................

5

Cong. Globe, 38th Cong., 1st Sess. (1865) ....

7

Cong. Globe, 39th Cong., 1st Sess. (1866) ....

7, 8

vi

TABLE OF AUTHORITIES – cont’d

Page(s)

Cong. Globe, 42d Cong., 1st Sess. (1871) ...... 3, 9, 10

Report of the Joint Committee on

Reconstruction, 39th Cong., 1st Sess.

(1866) ...........................................................

8, 10

42 U.S.C. § 1983 ............................................ 1, 9, 11

U.S. Const. amend. I .....................................

5

Other Materials

Akhil Reed Amar, The Bill of Rights

(1998) ...........................................................

6

Anthony G. Amsterdam, Criminal

Prosecutions Affecting Federally Guaranteed

Civil Rights: Federal Removal and Habeas

Corpus Jurisdiction to Abort State Court

Trial,

113 U. Pa. L. Rev. 793 (1965)......................

11

David Achtenberg, With Malice Toward

Some: United States v. Kirby, Malicious

Prosecution, and the Fourteenth Amendment,

26 Rutgers L.J. 273 (1995) ..........................

10

Jack M. Balkin, Nine Perspectives on Living

Originalism,

2012 U. Ill. L. Rev. 815 (2012) ....................

5

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

David W. Blight, Frederick Douglass: Prophet

of Freedom (2018) ........................................

6

William M. Carter, Jr., The Second Founding

and the First Amendment,

99 Tex. L. Rev. 1065 (2021) ......................... 6, 7, 8

Frederick Douglass, A Plea for Free Speech in

Boston (Dec. 9, 1860) ...................................

8

Henry Walcott Farnam, Chapters in the

History of Social Legislation in the United

States (2002) ................................................

7

James E. Pfander, Zones of Discretion at

Common Law,

116 Nw. U. L. Rev. Online 148 (2021) ........

18

J. Clay Smith, Jr., Justice and Jurisprudence

and the Black Lawyer,

69 Notre Dame L. Rev. 1077 (1994) ............

7

1

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank and public interest law firm dedicated to

fulfilling the progressive promise of the Constitution’s

text and history. CAC works in our courts, through

our government, and with legal scholars to improve

understanding of the Constitution and preserve the

rights and freedoms it guarantees. CAC has a strong

interest in ensuring meaningful access to the courts,

in accordance with constitutional text and history, and

therefore has an interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In the wake of the Civil War, as Southern state officials continued to trample upon the rights of Black

Americans and their allies, the Forty-Second Congress

enacted Section 1983, providing a right to sue “[e]very

person” who under color of state law deprives another

person of “any rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983. Among

the abuses this landmark statute was enacted to combat was retaliation by state and local officials against

those who exercised their freedom of speech to denounce the Confederacy, slavery, and its vestiges. Rather than protecting those individuals, state and local

officials were instead targeting them for baseless prosecutions and arrests.

1 Counsel for all parties received notice at least 10 days prior

to the due date of amicus’s intention to file this brief. Amicus

states that no counsel for a party authored this brief in whole or

in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amicus or its counsel made a monetary contribution to its preparation or submission.

2

Priscilla Villarreal’s case echoes this history. Reviled by local law enforcement for her unapologetically

candid news reporting, Villarreal alleges that she was

unlawfully arrested and prosecuted for the “crime” of

asking a police officer a question and publishing the

answer. This is the paradigmatic case in which relief

pursuant to Section 1983 should be available—and the

decision of the court below to grant the officers qualified immunity merits summary reversal.

Significantly, Villarreal’s arrest did not arise out

of a high-speed chase or split-second decision. Cf. Hoggard v. Rhodes, 141 S. Ct. 2421, 2422 (2021) (Thomas,

J., dissenting from the 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 split-second decision to use

force in a dangerous setting?”). Rather, officers spent

months digging up a statute to purportedly authorize

her arrest—a statute which had never been enforced

in its twenty-three years of existence, and which was

ultimately held unconstitutional by a state court

judge. Notwithstanding that, the en banc Fifth Circuit

held, in a closely divided decision, that the officials

whom Villarreal sued were entitled to qualified immunity because it was not “clearly established” that

arresting a journalist for asking a question violates the

First Amendment. That decision is at odds with the

text and history of both Section 1983 and the First

Amendment, and it should not stand.

One of Congress’s goals in enacting Section 1983

was to put an end to the stifling of speech inflicted by

unconstitutional state laws and biased state law enforcement. As one of the “crucial ingredients in the

basic alteration of our federal system accomplished

3

during the Reconstruction Era,” Patsy v. Bd. of Regents, 457 U.S. 496, 503 (1982) (quotation marks omitted), the statute was passed, in part, to curb retaliation

by state and local officials against those who spoke out

against slavery, racism, and abuses of authority in the

South. This problem took two forms. First, Southern

officials were selectively withholding the law’s protection from those individuals—particularly Black citizens and Union supporters—while crimes of the Ku

Klux Klan went unpunished. Second, state and local

officials were retaliating against them directly, by instigating prosecutions designed to punish, intimidate,

and bully them into silence. While all this went on,

fresh in the minds of members of Congress were the

pre-war slave codes, which had criminalized abolitionist speech and writing with penalties up to and including death.

To address these attacks on freedom of speech, retaliatory arrests, and other constitutional violations,

Congress empowered the people to seek redress in federal courts through Section 1983, using categorical

language that makes “no mention of defenses or immunities,” Ziglar v. Abbasi, 582 U.S. 120, 157 (2017)

(Thomas, J., concurring in part and concurring in the

judgment). As one member of the Forty-Second Congress put it: “Suppose that . . . every person who dared

to lift his voice in opposition . . . found his life and his

property insecure. . . . In that case I claim that the

power of Congress to intervene is complete and ample.” Cong. Globe, 42d Cong., 1st Sess. 333 (1871).

Given that qualified immunity is at odds with Section 1983’s text and history, courts should be especially careful to respect the limits on the doctrine that

this Court has prescribed to prevent it from acting as

a complete barrier to recovery. The court below did not

do that. Instead, the majority decided that because it

4

could not find a case with “materially identical facts”

barring arrest and prosecution for simply asking a

question, Respondents were entitled to qualified immunity. Pet. App. 33a; see id. at 32a-38a. Even worse,

it went on to craft a sweeping rule that whenever state

officials rely on a state statute and a warrant in effectuating an arrest, their qualified immunity defense is

essentially untouchable. Pet. App. 22a-32a.

That goes far beyond simply misunderstanding

this Court’s qualified immunity jurisprudence; it

transforms a limited exception to Section 1983 into the

rule. And again, the historical backdrop of Section

1983 belies the lower court’s logic. Nineteenth-century

tort law decisions that inform analysis of immunities

under Section 1983 reveal the bedrock rule, inherited

from English common law, that government officials

who deprive individuals of their legal rights should be

held strictly liable for damages in tort. That is so even

in cases where, like Respondents here, officials commit

torts in reliance on the orders of a superior, or based

on the misconstruction of a governing statute, or even

based on an unconstitutional statute. In all three

cases, even good faith is no defense to compensatory

damages.

Given the obviousness of Respondents’ constitutional violations, this Court should grant the petition

for a writ of certiorari and summarily reverse.

ARGUMENT

I.

Section 1983 Was Enacted to Make Real the

First Amendment’s Promise to Protect the

Speech of All People, Including Those Who

Criticize Authorities.

A. As this Court has made clear, “without some

protection for seeking out the news, freedom of the

press could be eviscerated.” Branzburg v. Hayes, 408

5

U.S. 665, 681 (1972). Yet Villarreal alleges that Respondents arrested and sought to prosecute her for doing precisely that—seeking out the news by politely

asking a police officer a question. According to Villarreal, these officials wanted to teach her a lesson: stop

criticizing the Laredo Police Department and local

prosecutor’s office, or face criminal punishment. Despite the obvious nature of this constitutional violation—after all, “[i]f the First Amendment means anything, surely it means that citizens have the right to

question or criticize public officials without fear of imprisonment,” Pet. App. 67a (Ho, J., dissenting)—the

court below held that Respondents were entitled to

qualified immunity, reasoning that the absence of another factually on-point decision doomed Villarreal’s

case before she could even seek discovery. That result

subverts the core purposes of the First Amendment

and undermines the goals of the Congress that enacted

Section 1983 to make real that Amendment’s safeguards.

The First Amendment forbids “abridging the freedom of speech, or of the press; or the right of the people

peaceably to assemble, and to petition the Government

for a redress of grievances.” U.S. Const. amend. I. The

Amendment was “fashioned to assure unfettered interchange of ideas for the bringing about of political and

social changes desired by the people.” Roth v. United

States, 354 U.S. 476, 484 (1957). As reflected in James

Madison’s first draft of the speech and press clauses,

the Framers viewed the people’s “right to speak, to

write, or to publish their sentiments” as “one of the

great bulwarks of liberty.” 1 Annals of Cong. 451

(1789). Those views reflected “developing ideas of popular sovereignty—in contrast to parliamentary sovereignty—[which] made it crucial for ordinary individuals to be able to criticize their government.” Jack M.

6

Balkin, Nine Perspectives on Living Originalism, 2012

U. Ill. L. Rev. 815, 835 (2012). Indeed, “the First

Amendment was adopted against the widespread use

of the common law of seditious libel to punish the dissemination of material that [was] embarrassing to the

powers-that-be,” N.Y. Times Co. v. United States, 403

U.S. 713, 724 (1971) (Douglas, J., concurring)—material not unlike Villarreal’s occasional postings of perceived law enforcement misconduct to her Facebook

page as a citizen-journalist.

At our nation’s Second Founding, the First

Amendment took on newfound importance, as a new

generation of Framers sought to ensure “that the new

constitutional order would protect against the lynchings, murders, and prosecutions inflicted post hoc

upon abolitionists and slaves in retaliation for their

speech and expressive activities denouncing slavery or

resisting the slave regime.” William M. Carter, Jr.,

The Second Founding and the First Amendment, 99

Tex. L. Rev. 1065, 1075 (2021). Before the Civil War,

Congress instituted a gag rule on abolitionist petitions

and banned “incendiary” publications. Akhil Reed

Amar, The Bill of Rights 235 (1998). In at least one

state, writing or publishing abolitionist literature was

punishable by death. Id. at 161. Southern states also

passed laws criminalizing anti-slavery utterances,

even if plainly religious or political in inspiration. Id.

at 160. As Frederick Douglass wrote, these laws reflected the principle that “[o]ne end of the slave’s chain

must be fastened to a padlock in the lips of northern

freemen . . . else the slave himself will become free.”

David W. Blight, Frederick Douglass: Prophet of Freedom 272 (2018) (internal citation omitted).

Slave codes throughout the South also expressly

targeted freedom of speech, undermining the First

Amendment’s promise. Importantly, these laws did

7

not just target disfavored speech itself; rather they

provided a means to prosecute other forms of speech—

even things as simple as praying or interacting with

non-slaves—by disfavored speakers. For example, Alabama’s slave code barred “any slave, without a written permission from the owner, master, or overseer of

said slave,” from “be[ing] found in company with a free

negro or person of color, in the dwelling-house or outhouse of said free negro or person of color.” Ala. Slave

Code § 36 (1833). Georgia’s slave code outlawed “the

assembling of negroes under pretense of divine worship.” J. Clay Smith, Jr., Justice and Jurisprudence

and the Black Lawyer, 69 Notre Dame L. Rev. 1077,

1108 (1994) (quoting statute). And Virginia prohibited

preaching by free or enslaved African Americans altogether. See Henry Walcott Farnam, Chapters in the

History of Social Legislation in the United States 194

(2000). As Representative James Wilson put it during

debates on the Thirteenth Amendment, “[t]he Constitution may declare the right” to “freedom of speech and

press,” but “slavery ever will . . . trample upon the

Constitution and prevent enjoyment of the right.”

Cong. Globe, 38th Cong., 1st Sess. 1202 (1865). Thus,

under the shadow of slavery, “[t]he press has been padlocked, and men’s lips have been sealed. . . . Submission and silence were inexorably exacted.” Id.

On top of these legal measures, private mobs, often

supported by Southern governments, “suppressed and

retaliated against Black and antislavery speech

through violence and other extralegal means.” Carter,

supra, at 1084-85. As one Senator explained, these

acts perpetuated slavery itself, as “[s]lavery cannot exist where its merits can be freely discussed.” Cong.

Globe, 38th Cong., 1st Sess. 1439 (1864); see also Cong.

Globe, 39th Cong., 1st Sess. 1013 (1866) (Rep. Plants)

8

(“[T]he system would not be secure if men . . . were permitted to discuss [slavery] in any form, and hence the

freedom of speech and the press must be suppressed

as the highest of crimes.”); id. at 1066 (Rep. Price)

(“[F]or the last thirty years, a citizen of a free State

dared not express his opinion of slavery in a slave

State.”); Frederick Douglass, A Plea for Free Speech in

Boston (Dec. 9, 1860), https://lawliberty.org/frederickdouglass-plea-for-freedom-of-speech-in-boston/ (“Slavery cannot tolerate free speech.”).

After the Civil War, with these abuses fresh in

memory and with Southern states still refusing to respect individual liberties, Americans ratified the Fourteenth Amendment and “fundamentally altered our

country’s federal system,” Timbs v. Indiana, 139 S. Ct.

682, 687 (2019) (quoting McDonald v. Chicago, 561

U.S. 742, 754 (2010)), adding to the Constitution a new

guarantee of liberty meant to secure “the civil rights

and privileges of all citizens in all parts of the republic,” Report of the Joint Committee on Reconstruction,

39th Cong., 1st Sess. xxi (1866). Those rights and privileges included the freedom of speech. Indeed, during

debates on the Fourteenth Amendment, advocates emphasized that without its protections, “[f]reedom of

speech, as of old, is a mockery.” Cong. Globe, 39th

Cong., 1st Sess. 783 (1866); see also id. at 1617 (without the Fourteenth Amendment, “[t]here is neither

freedom of speech, of the press, or protection to life,

liberty, or property”); Carter, supra, at 1087 (“[C]ongressional Republicans who drafted the Reconstruction Amendments . . . were intimately familiar with

the suppression of the constitutional right of free

speech as a tool to maintain slavery and racial subjugation.”).

But this turned out to be insufficient. Several

years after the Fourteenth Amendment’s ratification,

9

Southern states were still “permit[ting] the rights of

citizens to be systematically trampled upon.” Cong.

Globe, 42d Cong., 1st Sess. 375 (1871). Recognizing

the need for some means of enforcing the rights newly

guaranteed by the Constitution, Congress passed “An

Act to Enforce the Provisions of the Fourteenth

Amendment to the Constitution of the United States,

and for Other Purposes,” Pub. L. No. 42-22, 17 Stat. 13

(1871), the first section of which is codified as 42

U.S.C. § 1983.

The immediate catalyst for this legislation was

Southern government officials’ tacit support of the

reign of terror being carried out by the Ku Klux Klan,

see Wilson v. Garcia, 471 U.S. 261, 276 (1985), which

sought to suppress the speech and association rights of

formerly enslaved people and their allies, retaliating

against those who advocated for equality or supported

federal policies. Congress learned, for example, that

after a citizens’ meeting was called “to protest against

the outrages” being committed in Mississippi, Klan

members sought revenge, and “[a]t their instigation

warrants were issued for the arrest of peaceable and

well-disposed negroes upon the charge of ‘using seditious language.’” Cong. Globe, 42d Cong., 1st Sess.

321; see also id. at 155 (testimony describing attack in

which the Klan “made all the colored men promise

they would never vote the Radical ticket again”); id. at

157 (testimony that Blacks “were killed because they

were summoned as witnesses in the Federal courts”);

id. at 321 (testimony that the Klan “wanted to run

them all off because the principal part of them voted

the Radical ticket” and that the Klan “ha[s] been trying to get us to vote” the other way). As one Congressman put it, “our fellow-citizens are being deprived of

the enjoyment of the fundamental rights of citizens”

10

because of “their opinions on questions of public interest.” Id. at 332.

Section 1983, however, “was not a remedy against

the Klan,” but against “those who represent[ed] a

State in some capacity” and “were unable or unwilling”

to enforce the law with an even hand. District of Columbia v. Carter, 409 U.S. 418, 426 (1973) (quoting

Monroe v. Pape, 365 U.S. 167, 175-76 (1961) (brackets

omitted)). Congress recognized that laws were being

applied selectively across the South to target disfavored groups and their speech and writings in various

forms. While “outrages committed upon loyal people

through the agency of this Ku Klux organization” went

unpunished, one Senator noted, “[v]igorously enough

are the laws enforced against Union people. They only

fail in efficiency when a man of known Union sentiments, white or black, invokes their aid.” Cong. Globe,

42d Cong., 1st Sess. 505. The fundamental problem

was that biased state officials, by systematically tolerating or condoning attacks on people who expressed

unpopular viewpoints, were “denying decent citizens

their civil and political rights.” Wilson, 471 U.S. at

276.

In addition to selectively refusing to protect citizens from private violence, states were also retaliating

against the expression of disfavored views more directly. A significant problem during Reconstruction

was the instigation of “baseless civil and criminal prosecutions to punish and intimidate those who had been

loyal to the Union during the Civil War or who tried to

enforce national policy.” David Achtenberg, With Malice Toward Some: United States v. Kirby, Malicious

Prosecution, and the Fourteenth Amendment, 26 Rutgers L.J. 273, 275 (1995); see Report of the Joint Committee on Reconstruction, 39th Cong., 1st Sess., at

xviii (“prosecutions have been instituted in State

11

courts against Union officers for acts done in the line

of official duty, and similar prosecutions are threatened elsewhere”); Mitchum v. Foster, 407 U.S. 225, 240

(1972) (“state courts were being used to harass and injure”). These groundless suits “had proved potent instruments of harassment” because of the arrests they

triggered, and by 1871, Congress had enacted multiple

new laws responding to the problem by expanding habeas corpus and the ability to remove state prosecutions to federal court. Anthony G. Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil

Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U. Pa. L. Rev. 793,

829 (1965).

Abuses continued, however. To address them and

other violations of fundamental liberties, Congress enacted Section 1983, allowing victims to go to federal

court to vindicate their federal constitutional rights.

In light of the urgent need for this remedy, it is no surprise that Section 1983’s text is broad and categorical.

The statute “on its face admits of no defense of official

immunity,” but rather “subjects to liability ‘[e]very

person’ who, acting under color of state law, commits

the prohibited acts” in violation of federal law. Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (quoting

42 U.S.C. § 1983).

B. Nevertheless, this Court has fashioned limits

on the scope of Section 1983, through the doctrine of

qualified immunity. To defeat qualified immunity, a

plaintiff must plausibly allege that defendants violated his or her constitutional rights, and that their

conduct was objectively unreasonable in light of

clearly established law.

See, e.g., Anderson v.

Creighton, 483 U.S. 635, 638-39 (1987).

12

The crucial issue in this analysis is whether “a reasonable official would understand that what he is doing violates [a constitutional] right.” Id. at 640. In

other words, all that is required to defeat qualified immunity is that the officials responsible for the alleged

infringement had “fair warning that their conduct violated the Constitution.” Hope v. Pelzer, 536 U.S. 730,

741 (2002). This Court has made clear that fair warning “do[es] not require a case directly on point.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Rather, “a

general constitutional rule already identified in the

decisional law may apply with obvious clarity to the

specific conduct in question.” Taylor v. Riojas, 592

U.S. 7, 9 (2020) (quoting Hope, 536 U.S. at 741).2

In this case, that constitutional rule could not be

clearer. This Court has long held that expressive conduct critical of the police is protected by the First

Amendment, including “verbal criticism and challenge

directed at police officers” while they are performing

their duties. Houston v. Hill, 482 U.S. 451, 461 (1987);

see id. at 463 n.12 (tracing this principle to the common law). Even yelling “obscenities and threats” at an

officer who is interacting with a third party has long

been recognized as constitutionally protected activity,

provided that these words do not “by their very utterance inflict injury or tend to incite an immediate

2 The court below seemed to confine the “obviousness exception

to the requirement that ‘clearly established law’ be founded on

materially identical facts” to the Eighth Amendment context of

Hope and Taylor. Pet. App. 33a. But nowhere in those decisions

did this Court so much as suggest that its holdings were limited

to deprivations premised on specific types of constitutional rights.

And in a different case, Sause v. Bauer, 585 U.S. 957 (2018),

which involved a First Amendment claim, this Court summarily

reversed a grant of qualified immunity in the absence of “materially identical facts” because there simply “can be no doubt that

the First Amendment protects the right to pray.” Id. at 959.

13

breach of the peace.” Id. at 461-62 (quoting Lewis v.

City of New Orleans, 415 U.S. 130, 133 (1974)). As long

as that line is not crossed, expression directed at police

officers is “protected against censorship or punishment.” Id. at 461; see, e.g., Lewis, 415 U.S. at 132-33.

Likewise, this Court has also long recognized that

the First Amendment protects the “right to gather

news ‘from any source by means within the law,’”

Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (quoting

Branzburg, 408 U.S. at 681-82), as well as “the creation and dissemination of information” more broadly,

Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011).

As Judge Graves put it in his dissent from the decision

below, “[t]here is simply no way such freedom [of the

press] can meaningfully exist unless journalists are allowed to seek non-public information from the government,” and that right “could not be more firmly embedded in the Constitution.” Pet. App. 43a (Graves, J.,

dissenting).

Because it is well established that the First

Amendment allows individuals to gather information

through lawful means, to disseminate that information, and even to verbally confront police officers, it

should be obvious to any reasonable official that

simply asking a law enforcement officer to confirm a

fact for a news story is “protected against censorship

or punishment.” Houston, 482 U.S. at 461. That is so

even if the person who asks the question happens to be

an individual with disfavored viewpoints—someone

who, like Villarreal, has engaged in criticism of government conduct in the past. Indeed, under those circumstances, the need for robust First Amendment protections is especially salient, given that Section 1983

was passed, in large part, in response to the denial of

that Amendment’s protections to individuals with disfavored viewpoints.

14

II. The Reasoning of the Court Below Is

Contrary to the Strict-Liability Backdrop of

Nineteenth-Century Tort Law, Which

Informs Analysis of Section 1983 Claims.

Despite the obviousness of Respondents’ constitutional violation—arresting and seeking to prosecute a

local journalist for merely asking a police officer a

question—the court below held that their reliance on a

warrant and a statute purportedly authorizing their

conduct should immunize them from liability. This

reasoning is at odds with the Court’s precedents, as

well as long-standing immunity principles.

As this Court has explained, “the fact that a neutral magistrate has issued a warrant authorizing the

allegedly unconstitutional search or seizure does not

end the inquiry into objective reasonableness.” Messerschmidt v. Millender, 565 U.S. 535, 547 (2012). Rather, a court must deny qualified immunity if it is “obvious that no reasonably competent officer would have

concluded that a warrant should issue.” Malley v.

Briggs, 475 U.S. 335, 341 (1986). So too for an unconstitutional statute—or even one that an official misconstrued in good faith. If that misconstruction reflects “plain[] incompeten[ce],” id., or if the official “enforc[es] a statute in an obviously unconstitutional

way,” Pet. App. 63a (Willett, J., dissenting), qualified

immunity is no defense. That is especially so where,

as here, Respondents had months to recognize that

their application of a state statute would result in a

constitutional violation, and where it appears that Respondents used that statute in a pretextual fashion

specifically to punish Villarreal for exercising a constitutional right.

Long-standing immunity principles further undermine the logic of the court below. Indeed, the idea that

the presence of a warrant or statute on its own might

15

preclude liability is at odds with a series of nineteenthcentury decisions reflecting the bedrock rule, inherited

from English common law, that government officials

who deprive individuals of their legal rights may be

held to account for damages in tort. While these decisions are not dispositive, they constitute a crucial part

of the “considered inquiry into the immunity historically accorded the relevant official at common law and

the interests behind it” that this Court has said is critical in deciding Section 1983 cases. Imbler v. Pachtman, 424 U.S. 409, 421 (1976); cf. Tower v. Glover, 467

U.S. 914, 920 (1984) (even “[i]f an official was accorded

immunity from tort actions at common law when the

Civil Rights Act was enacted in 1871,” immunity may

still be inappropriate if “§ 1983’s history or purposes

nonetheless counsel against recognizing the same immunity”).

Much like the officials in this case who claim qualified immunity because of their reliance on a warrant

issued by a magistrate, officers who relied on orders

from superiors were still held accountable for their

torts at common law, as demonstrated in early decisions of this Court. Thus, an officer who wrongly

seized a ship upon the orders of his superiors was “answerable in damages” to the ship’s owner because the

mistaken orders could not “legalize an act which without those instructions would have been a plain trespass.” Little v. Barreme, 6 U.S. 170, 178-79 (1804); accord Tracy v. Swartwout, 35 U.S. 80, 95 (1836). And

in another case, an officer who seized an individual’s

property to satisfy a fine, based on the orders of a court

that lacked jurisdiction over that individual, was liable

in tort for trespass. Wise v. Withers, 7 U.S. 331, 33537 (1806); accord Dynes v. Hoover, 61 U.S. 65, 80-81

(1857).

16

Similarly, much like the officials in this case, who

(at best) misconstrued the Texas statute they sought

to apply to Villarreal’s conduct, nineteenth-century officials who misinterpreted statutes were held strictly

liable for their torts—even if the complained-of conduct was done in good-faith reliance on those misinterpretations. For instance, in Bates v. Clark, 95 U.S. 204

(1877), which involved an action for trespass, the defense turned on whether the whiskey confiscated by

government officials was “seized in Indian country,”

within the meaning of the relevant statute. Id. at 205.

While the Court acknowledged that the definition of

“Indian country” involved a difficult question of law,

and so the officials may have acted reasonably, they

were “utterly without any authority in the premises;

and their honest belief that they had is no defence in

their case more than in any other.” Id. at 209.

So too in Murray v. The Charming Betsy, 6 U.S.

64, 122-26 (1804). There, Chief Justice Marshall construed a complicated federal statute narrowly so as to

comport with international law principles and bar the

seizure of a ship, making the officer who engaged in

the improper seizure liable to the owner for compensatory damages, although his “correct motives” in acting

“according to the best of his judgment” shielded him

from punitive damages, id. at 124; accord Shanley v.

Wells, 71 Ill. 78, 81 (1873) (“If [a] plaintiff was assaulted and beaten, or imprisoned,” by a law enforcement officer, “without authority of law,” the plaintiff

was “entitled to recover, whatever may have been the

defendant’s motives.”).

And time and again, state courts deciding common

law tort claims around the time of Section 1983’s enactment refused to grant immunity to officers who

acted in reliance on an unconstitutional statute—regardless of whether, as here, they should have known

17

better. As one court put it, “[n]o question in law is better settled . . . than that ministerial officers and other

persons are liable for acts done under an act of the legislature which is unconstitutional and void.” Sumner

v. Beeler, 50 Ind. 341, 342 (1875) (permitting recovery

for false arrest, imprisonment, and prosecution under

an unconstitutional law). Thus, a justice of the peace,

who issued a warrant under an unconstitutional statute, was liable for damages to the person arrested.

Kelly v. Bemis, 70 Mass. 83, 83 (1855); see id. (“Under

a government of limited and defined powers, where, by

the provisions of the organic law, the rights and duties

of the several departments of the government are carefully distributed and restricted, if any one of them exceeds the limits of its constitutional power, it acts

wholly without authority itself, and can confer no authority upon others. The defendant could derive no

power or jurisdiction from a void statute.”). So too for

an officer who arrested a citizen pursuant to an unconstitutional vagrancy law, Shanley, 71 Ill. at 83, as well

as officers in countless other analogous situations, see,

e.g., Fisher v. McGirr, 67 Mass. 1, 51 (1854) (officer liable for seizing and destroying liquor under an unconstitutional law); Campbell v. Sherman, 35 Wis. 103,

108 (1874) (officer liable for seizing steamboat under

unconstitutional law); Gross v. Rice, 71 Me. 241, 25758 (1880) (officer liable for holding prisoner pursuant

to unconstitutional law).

This Court quickly adopted this logic when faced

with early suits to enjoin state action. Take, for example, the Court’s approach to a case arising out of Ohio’s

imposition of a tax on a branch of the Second Bank of

the United States in Osborn v. Bank of the United

States, 22 U.S. 738 (1824). The Bank sued in trespass,

seeking remedies at common law against various officers involved in collecting the tax. In resolving the case,

18

this Court began with the premise that the Ohio law

authorizing the tax could not shield the officers from

liability, given that the Court had recently held in

McCulloch v. Maryland, 17 U.S. 316 (1819), that such

state taxes on instrumentalities of the United States

were unconstitutional. This point, the Court noted,

was so self-evident that counsel for the Ohio officials

conceded it. Osborn, 22 U.S. at 868 (“The counsel for

the appellants are too intelligent, and have too much

self respect, to pretend, that a void act can afford any

protection to the officers who execute it. They expressly admit that it cannot.”). In other words, “the

defendants could derive neither authority nor protection from the act which they executed,” id., as the Constitution “set a limit to lawful official action, and officials who exceeded constitutional limits (however wellintentioned) were thought to enjoy no residual discretion within which to act lawfully”—that is, no immunity from suit, James E. Pfander, Zones of Discretion at

Common Law, 116 Nw. U. L. Rev. Online 148, 167

(2021).

In short, whether an officer relied on others’ orders, the misconstruction of a statute, or an unconstitutional statute, they were held strictly liable for conduct that resulted in the deprivation of a legal right,

even if the officer had a good-faith belief in the legality

of his or her actions. As this Court has said, “It would

be a most dangerous principle to establish, that the

acts of a ministerial officer . . . injurious to private

rights, and unsupported by law, should afford no

ground for legal redress.” Tracy, 35 U.S. at 95.

* * *

Qualified immunity is a judge-made doctrine, unmoored from Section 1983’s text and history, yet

grounded in the acknowledgment “that police officers

19

are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly

evolving.” Graham v. Connor, 490 U.S. 386, 397

(1989). But no split-second judgments were involved

here. Officials took their time to dig up an obscure

Texas statute and weaponize it to punish a disfavored

journalist—all for the simple act of asking a police officer a question. If Section 1983 and the First Amendment rights it protects mean anything, this Court

should not allow that conduct to be immunized.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for a writ of certiorari and summarily reverse the judgment of the court below.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

MIRIAM BECKER-COHEN

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

May 24, 2024

* Counsel of Record