Petition for Writ of Certiorari — Richard Hershey, Petitioner v. City of Bossier City, Louisiana, et al.

Supreme Court briefJun 12, 2026

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No. ______

In the

Supreme Court of the United States

________________

RICHARD HERSHEY,

Petitioner,

CITY OF BOSSIER CITY; BOBBY GILBERT,

individually and in his capacity as Deputy

Marshal; DANIEL STOLL; DAVID SMITH; TYSHON

HARVEY; EUGENE TUCKER,

Respondents.

________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

KELLY J. SHACKELFORD PAUL D. CLEMENT

JEFFREY C. MATEER

Counsel of Record

DAVID J. HACKER

JEFFREY C. THALHOFER

NICHOLAS A. AQUART

HIRAM S. SASSER, III

ERIN E. SMITH

ILAN J. POSNER

FIRST LIBERTY

CLEMENT & MURPHY, PLLC

INSTITUTE

706 Duke Street

2001 W. Plano Pkwy.

Alexandria, VA 22314

Ste 1600

(202) 742-8900

Plano, TX 75075

paul.clement@clementmurphy.com

(additional counsel listed on inside cover)

Counsel for Petitioner

June 12, 2026

NATHAN W. KELLUM

FIRST LIBERTY

INSTITUTE

699 Oakleaf Office Lane

Suite 107

Memphis, TN 38117

Sarah Giglio

GILMER & GIGLIO,

L.L.C.

3541 Youree Dr.

Shreveport, LA 71105

QUESTION PRESENTED

Richard Hershey set out to distribute religious

leaflets on a public sidewalk outside of a public arena

hosting a Christian rock concert. Five police and

security officers soon threatened to arrest him, and

forced him to leave—all the while ignoring a nearby

commercial leafleteer for a local radio station.

This was a blatant violation of clearly established

First Amendment law.

Public sidewalks are a

quintessential

public

forum,

and

viewpoint

discrimination ranks among the worst of First

Amendment offenses. Any reasonable officer should

have known this blatant censorship of religious speech

was unconstitutional, and they would not need an onpoint circuit precedent involving the same egregious

conduct to know as much. This Court held as much in

Hope v. Pelzer, 536 U.S. 730, 741 (2002), in rejecting

qualified immunity when bedrock constitutional

prohibitions “apply with obvious clarity to the specific

conduct in question, even though ‘the very action in

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

But the Fifth Circuit, alone among its sister courts,

has inexplicably cabined Hope to Eighth Amendment

claims and extended qualified immunity to protect

conduct that any reasonable officer should have

understood to be unconstitutional.

The question presented is:

Whether the principles of Hope v. Pelzer are

limited to Eighth Amendment claims or extend to Free

Speech and Free Exercise claims such that petitioner’s

constitutional claims should not be barred by qualified

immunity.

PARTIES TO THE PROCEEDING

Petitioner Richard Hershey was the plaintiffappellant below.

Respondents City of Bossier City, Bobby Gilbert,

individually and in his capacity as Deputy Marshal;

Daniel Stoll, David Smith, Tyshon Harvey, and

Eugene Tucker were the defendants-appellees below.

iii

STATEMENT OF RELATED PROCEEDINGS

This case arises from and is directly related to the

following proceedings:

•

Hershey v City of Bossier City, et al., No. 21-cv460 (W.D. La.) (Report and Recommendation

filed on August 23, 2021; judgment entered on

September 24, 2021).

•

Hershey v City of Bossier City, et al., No. 21-cv460 (W.D. La.) (Report and Recommendation

filed on November 1, 2021; judgment entered

on November 17, 2021).

•

Hershey v City of Bossier City, et al., No. 2130754 (5th Cir.) (judgment entered on October

7, 2025).

•

Hershey v City of Bossier City, et al., No. 2130754 (5th Cir.) (denying en banc rehearing on

December 18, 2025).

•

Hershey v City of Bossier City, et al., No. 2130754 (5th Cir.) (denying panel rehearing on

January 13, 2026).

•

City of Bossier City v. Hershey, et al., No. 251323 (U.S.) (petition for certiorari filed May

13, 2026).

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING ........................... ii

STATEMENT OF RELATED PROCEEDINGS ....... iii

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

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 3

JURISDICTION ......................................................... 4

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED...................................... 4

STATEMENT OF THE CASE ................................... 5

A. Factual Background ..................................... 5

B. Procedural History ....................................... 7

REASONS FOR GRANTING THE PETITION....... 13

The Decision Below Is Egregiously Wrong ....... 15

A. Under This Court’s Precedents, the

Officers Are Not Entitled to Qualified

Immunity .................................................... 15

B. The Fifth Circuit’s Ruling Conflicts With

This Court’s Precedents and Core First

Amendment Values .................................... 24

II. The Decision Below Conflicts With Decisions

From Every Other Circuit ................................. 29

III. This Case Is An Ideal Vehicle To Resolve An

Exceptionally Important Question ................... 32

CONCLUSION ......................................................... 37

APPENDIX

Appendix A

Opinion, United States Court of Appeals

for the Fifth Circuit, Hershey v. Bossier

City, No. 21-30754 (Oct. 7, 2025) ................ App-1

Appendix B

Order, United States Court of Appeals for

the Fifth Circuit, Hershey v. Bossier City,

No. 21-30754 (Jan. 13, 2026)..................... App-62

Appendix C

Order, United States Court of Appeals for

the Fifth Circuit, Hershey v. Bossier City,

No. 21-30754 (Dec. 18, 2025)..................... App-64

Appendix D

Judgment, United States District Court

for the Western District of Louisiana,

Hershey v. Bossier City, No. 21-cv-00460

(Nov. 17, 2021) ......................................... App-104

Appendix E

Report and Recommendation, United

States District Court for the Western

District of Louisiana, Hershey v. Bossier

City, No. 21-cv-00460 (Nov. 1, 2021)....... App-106

Appendix F

Judgment, United States District Court

for the Western District of Louisiana,

Hershey v. Bossier City, No. 21-cv-00460

(Sept. 24, 2021) ........................................ App-120

Appendix G

Report and Recommendation, United

States District Court for the Western

District of Louisiana, Hershey v. Bossier

City, No. 21-cv-00460 (Aug. 23, 2021)..... App-122

Appendix H

First Amended Complaint, United States

District Court for the Western District of

Louisiana, Hershey v. Bossier City,

No 21-cv-00460 (May 20, 2021) ............... App-150

Exhibit 1 – Email Exchange Between

R. Bonnevier and K. Wren re: FIOA

– Bossier City (Feb. 2021) ................ App-165

vii

TABLE OF AUTHORITIES

Cases

Amalgamated Food Emp. Union Loc. 590

v. Logan Valley Plaza, Inc.,

391 U.S. 308 (1968) ................................................ 20

Anderson v. Creighton,

483 U.S. 635 (1987) .......................................... 17, 23

Atherton v. D.C. Off. of Mayor,

706 F.3d 512 (D.C. Cir. 2013) ................................ 32

Bailey v. Wheeler,

843 F.3d 473 (11th Cir. 2016).......................... 29, 30

Ball v. City of Lincoln,

870 F.3d 722 (8th Cir. 2017).................................. 21

Brosseau v. Haugen,

543 U.S. 194 (2004) ................................................ 19

Browder v. City of Albuquerque,

787 F.3d 1076 (10th Cir. 2015).......................... 3, 28

Calash v. City of Bridgeport,

788 F.2d 80 (2d Cir. 1986) ..................................... 21

Cantwell v. Connecticut,

310 U.S. 296 (1940) ................................................ 22

Cheeks v. Belmar,

80 F.4th 872 (8th Cir. 2023) .................................. 32

Chiles v. Salazar,

146 S.Ct. 1010 (2026) ............................................. 23

Church of Lukumi Babalu Aye, Inc.

v. City of Hialeah,

508 U.S. 520 (1993) ................................................ 23

City of Bossier City v. Hershey,

No. 25-1323 (U.S. filed May 13, 2026) .................. 13

viii

Díaz-Bigio v. Santini,

652 F.3d 45 (1st Cir. 2011) .................................... 32

Espinoza v. Mont. Dep’t of Revenue,

591 U.S. 464 (2020) .......................................... 22, 28

FEC v. Mass. Citizens for Life, Inc.,

479 U.S. 238 (1986) ................................................ 33

Frasier v. Evans,

992 F.3d 1003 (10th Cir. 2021).............................. 32

Galvin v. Hay,

374 F.3d 739 (9th Cir. 2004).................................. 32

Gonzalez v. Trevino,

602 U.S. 653 (2024) ................................................ 26

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001) .................................................. 23

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ................................................ 17

Hope v. Pelzer,

536 U.S. 730 (2002) ............ 1, 2, 9, 14, 17, 18, 19, 23

Int’l Soc’y for Krishna Consciousness, Inc.

v. Lee,

505 U.S. 672 (1992) ................................................ 20

Jamison v. Texas,

318 U.S. 413 (1943) .......................................... 21, 22

Jimmy Swaggart Ministries

v. Bd. of Equalization,

493 U.S. 378 (1990) ................................................ 22

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) .................................... 22, 28, 32

Kristofek v. Vill. of Orland Hills,

832 F.3d 785 (7th Cir. 2016).................................. 32

MacIntosh v. Clous,

69 F.4th 309 (6th Cir. 2023) .................................. 31

McDaniel v. Paty,

435 U.S. 618 (1978) ................................................ 21

McGreevy v. Stroup,

413 F.3d 359 (3d Cir. 2005) ................................... 31

McMurry v. Weaver,

142 F.4th 292 (5th Cir. 2025) ................................ 33

Minn. Voters All. v. Mansky,

585 U.S. 1 (2018) .................................................... 20

Monell v. Dep’t of Soc. Servs.,

436 U.S. 658 (1978) .................................................. 8

Morgan v. Swanson,

659 F.3d 359 (5th Cir. 2011)............................ 25, 26

Murdock v. Pennsylvania,

319 U.S. 105 (1943) ................................................ 22

Nagle v. Marron,

663 F.3d 100 (2d Cir. 2011) ................................... 31

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) ................................................ 23

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

505 U.S. 377 (1992) ................................................ 23

Ramirez v. Guadarrama,

2 F.4th 506 (5th Cir. 2021) .................................... 27

Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781 (1988) .................................................. 5

Rivas-Villegas v. Cortesluna,

595 U.S. 1 (2021) .............................................. 17, 19

Rosenberger

v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995) ................................................ 22

Sause v. Bauer,

585 U.S. 957 (2018) .......................................... 19, 24

Schenck v. Pro-Choice Network of W. N.Y.,

519 U.S. 357 (1997) ................................................ 20

Shurtleff v. City of Boston,

596 U.S. 243 (2022) ................................................ 23

Siders v. City of Brandon,

123 F.4th 293 (5th Cir. 2024) ................................ 21

Snyder v. Phelps,

562 U.S. 443 (2011) ................................................ 20

Tandon v. Newsom,

593 U.S. 61 (2021) .................................................. 23

Taylor v. Riojas,

592 U.S. 7 (2020) ...................................... 1, 9, 14, 18

Tobey v. Jones,

706 F.3d 379 (4th Cir. 2013).................................. 30

United States v. Grace,

461 U.S. 171 (1983) .......................................... 20, 21

United States v. Lanier,

520 U.S. 259 (1997) ................................................ 19

Villareal v. Alaniz,

145 S.Ct. 368 (2024)............................................... 26

Villarreal v. City of Laredo,

94 F.4th 374 (5th Cir. 2024) ............................ 10, 26

Villarreal v. City of Laredo,

134 F.4th 273 (5th Cir. 2025) ................................ 26

White v. Pauly,

580 U.S. 73 (2017) .................................................. 17

Whole Woman’s Health v. Hellerstedt,

579 U.S. 582 (2016) ................................................ 28

Constitutional Provision

U.S. Const. amend. I .................................................. 4

Statute

42 U.S.C. §1983 .................................................... 4, 33

Other Authorities

Amicus.Br. for Young Am.’s Found. and

Manhattan Inst., Villarreal v. Alaniz, 2024

WL 2786483 (U.S. filed May 24, 2024) ................. 34

Pet., City of Bossier City v. Hershey,

No. 25-1323 (U.S. filed May 13, 2026) ............ 13, 21

Jason Tiezzi et al., Inst. for Just.,

Unaccountable: How Qualified Immunity

Shields a Wide Range of Government

Abuses, Arbitrarily Thwarts Civil Rights,

and Fails to Fulfill Its Promises (Feb.

2024), perma.cc/KSV8-BMCU ............................... 33

U.S.Amicus.Br., Hope v. Pelzer, No. 01-309

(U.S. Feb. 19, 2002) ............................................... 18

PETITION FOR WRIT OF CERTIORARI

The right to evangelize in public, free of

viewpoint-based government suppression, is as clearly

established as any right in the firmament. It is

squarely protected by two separate but overlapping

clauses of the First Amendment—the Free Speech and

Free Exercise Clauses—and by decisions of this Court

underscoring that viewpoint discrimination is

verboten and that discrimination against religious

speech is viewpoint discrimination (im)pure and

simple. No government official should need an onpoint circuit precedent to illustrate what the

Constitution itself and this Court’s cases make clear

beyond cavil. Yet, despite all that, five police and

security officers descended on petitioner and

threatened to arrest him for peacefully distributing

religious leaflets in a traditional public forum—a

public sidewalk in a public park surrounding a public

arena—even as they passed over a nearby leafleteer

who was distributing commercial advertisements for a

radio station.

In any circuit but the Fifth, petitioner could seek

damages for this affront to his bedrock First

Amendment rights—without regard to whether any

officer had previously committed such a blunder and

been chastised in a published opinion. As every other

circuit recognizes—because this Court explained as

much in Hope v. Pelzer—some rights are sufficiently

well established, and some government actions

sufficiently egregious, that qualified immunity

provides no shield even in the absence of on-point

precedent. 536 U.S. 730, 738 (2002); see also Taylor v.

Riojas, 592 U.S. 7, 8-9 & n.2 (2020). When it comes to

constitutional violations, there are no points for

novelty; blatant violations of basic constitutional

guarantees do not require a dead ringer in the Federal

Reporter to merit relief.

Here, any reasonable officer had “fair and clear

warning” that censoring the religious speech of a

leafleteer in a public place, and in viewpointdiscriminatory fashion, is unconstitutional. Hope, 536

U.S. at 741. But the Fifth Circuit has cabined Hope to

the Eighth Amendment context and repeatedly

declined to apply it to First Amendment claims. The

result is that petitioner’s damages claims were barred

at the threshold because circuit precedent had not

applied bedrock constitutional law to a sufficiently

similar fact pattern.

That is as wrong as it sounds. Indeed, despite

supplying the dispositive second vote to grant

qualified immunity, Judge Ho recognized that the

officers’

obviously

unconstitutional

actions

“should have been amply sufficient to defeat qualified

immunity at this preliminary stage of the

proceedings.”

App.7 (Ho, J., concurring).

nonetheless “reluctantly concur[red] in affirming the

grant of qualified immunity, as compelled by [the Fifth

Circuit’s] (mistaken) circuit precedent.” App.4. The

en banc Court declined to grant review to correct that

injustice. As a result, only this Court can reaffirm that

Hope is a transsubstantive rule that safeguards all our

fundamental rights, not an anomalous Eighth

Amendment rule that makes it easier for prisoners to

sue than law-abiding, peaceful religious leafleteers.

There may be some areas of First Amendment law

where government officials face difficult judgment

calls or competing constitutional dictates. This is not

one of them.

Few principles are more clearly

established than the rights to peaceful leafletting on

public sidewalks and to be free from viewpoint

discrimination that disfavors religious speech. There

is no justification for requiring an earlier on-point

blunder before citizens can resort to the statutory

damages remedy provided in §1983. Indeed, the Fifth

Circuit’s anomalous rule means that victims of the

most egregious First Amendment violations are least

likely to recover damages. After all, one would hope

that “the most obviously unlawful things happen so

rarely that a case on point is itself an unusual thing.”

Browder v. City of Albuquerque, 787 F.3d 1076, 1082

(10th Cir. 2015) (Gorsuch, J.). There is simply no

excuse for the government actions alleged in

petitioner’s complaint. In any other circuit—and in

the Fifth Circuit if he were a prisoner asserting

mistreatment—his case could proceed. This Court

should intervene and reaffirm that there is no novelty

exception to the promise of §1983 when it comes to

clearly established constitutional rights.

OPINIONS BELOW

The Fifth Circuit’s opinion is reported at 156

F.4th 555 and reproduced at App.1-61. The Fifth

Circuit’s opinion denying rehearing en banc is

reported at 165 F.4th 292 and reproduced at App.64103. The Fifth Circuit’s order denying panel rehearing

is reported at 163 F.4th 976 and reproduced at App.6263.

The magistrate judge’s Report and

Recommendation recommending granting the motion

to dismiss for Respondents-Defendants City of Bossier

City, Bobby Gilbert, and Daniel Stoll, is reported at

2021 WL 4395056 and reproduced at App. 122-149,

and the district court’s order adopting that Report and

Recommendation is reported at 2021 WL 4395043 and

reproduced at App.150. The magistrate judge’s Report

and Recommendation recommending granting the

motion to dismiss for Respondents-Defendants David

Smith, Tyshon Harvey, and Eugene Tucker is reported

at 2021 WL 5366900 and reproduced at App. 106-119,

and the district court’s order adopting that Report and

Recommendation is reported at 2021 WL 5366971 and

reproduced at App.120.

JURISDICTION

The Fifth Circuit issued its opinion on October 7,

2025. The Fifth Circuit denied rehearing en banc on

December 18, 2025, and the panel then denied panel

rehearing on January 13, 2026. Justice Alito extended

the time to file a petition to June 12, 2026. This Court

has jurisdiction under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment provides that “Congress

shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or

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.

42 U.S.C. §1983 provides, in relevant part, that

“[e]very person who, under color of any statute,

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

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity,

or other proper proceeding for redress.”

STATEMENT OF THE CASE

A. Factual Background.

Petitioner—a senior citizen from Missouri—is a

vegetarian advocate who felt compelled by his ethical

beliefs to share the Christian Vegetarian Association’s

religious message with the world. App.153. February

28, 2020, presented an ideal opportunity for him to do

so.

The Bossier City Arena, currently named

Brookshire Grocery Arena, was hosting a Christian

rock concert (Winter Jam).

App.154; App.123.

Accordingly, petitioner set out to peacefully exercise

his Free Speech and Free Exercise rights by

distributing religious leaflets on the public sidewalk

outside the Arena.1 App.154-55.

Situated in a public park, the Arena is publicly

owned by Bossier City and managed by a private

entity. App.154; App.166. The public park in which

the Arena sits is directly connected to the surrounding

streets, and the park’s sidewalks and streets are all

“open and unrestricted to the public.”

App.14;

App.154. There are no gates or fences barring access

to the park or cordoning off its sidewalks from the

surrounding public area. App.154. Nor is there any

Though Petitioner was compensated for his advocacy, “a

speaker’s rights are not lost merely because compensation is

received; a speaker is no less a speaker because he or she is paid

to speak.” Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S.

781, 801 (1988); see also App.89 (Ho, J., concurring in denial of

rehearing en banc).

formal application process or written policy governing

leafleting on the public sidewalks surrounding the

Arena. App.153. Instead, as the Arena’s manager

explained, any member of the public is “free” to

“engage in … peaceful protests or distribution of

pamphlets … as long as it does not interfere with the

safe ingress or egress of guests.” App.143; App.166.

In short, the park and its sidewalks are fully open to

the public for expressive activities.

Petitioner thus began distributing his Christian

vegetarianism leaflets on these public sidewalks

outside the Arena with little expectation of

confrontation or controversy. App.154-55. Things

began without incident. Petitioner “did not create a

disturbance or interfere with pedestrian or vehicular

traffic.” App.124. Indeed, to ensure his own safety

and that of concert patrons, he kept clear of staircases

and the Arena’s parking lots.

Id.; App.155.

Petitioner’s efforts were accompanied by at least one

other person nearby distributing literature—

commercial advertisement cards for the internet radio

station Power 927 FM. App.155.

Unfortunately, petitioner’s peaceful exercise of

his constitutional rights did not last long. Shortly

after he began peacefully handing out religious

leaflets, petitioner was approached by respondents

Bossier City Deputy Marshal Gilbert, police officer

Stoll, and Arena security officer Harvey. Id. Deputy

Gilbert approached petitioner “from the rear and

made unwanted physical contact with [him],” while

officer Stoll demanded that petitioner leave the public

park. Id. Gilbert brandished handcuffs and told

petitioner that if he did not stop distributing his

religious leaflets in the public park, he would be taken

to jail. App.156. Petitioner tried to explain that he

had a constitutional right to distribute his religious

leaflets on the public sidewalk, but Gilbert was

unmoved. He opined that the open public sidewalk

was actually private property and threatened arrest.

Id.

Fearing imprisonment, petitioner attempted to

leave the area but was blocked by Deputy Gilbert, who

was soon joined by two more security officers—

respondent officers Smith and Tucker. Id. With four

other officers now in tow, Deputy Gilbert again

reproached petitioner for not leaving the sidewalk

immediately. App.156-57. Petitioner replied that he

would leave the premises if Deputy Gilbert stepped

aside, which the officer did shortly thereafter—but

only after threatening that if petitioner ever returned,

he would be promptly arrested and taken to jail.

App.157.

As he was leaving, petitioner asked why he was

being forced to leave while the other leafleteer

remained free to distribute commercial literature

advertising an internet radio station. Id. Officer

Harvey responded that he did not know if that

commercial literature had been approved for

distribution near the Arena, but he knew that

petitioner’s religious literature had not been

approved. Id. Fearing arrest and imprisonment,

petitioner has not returned since. App.158.

B. Procedural History.

Petitioner sued Bossier City, and the five police

and security officers involved, seeking damages

against the officers for the egregious violations of his

First Amendment rights under 42 U.S.C. §1983 and

relief against the City for its failure to train its

employees, see Monell v. Dep’t of Soc. Servs., 436 U.S.

658 (1978). Respondents all moved to dismiss on

various grounds.

1. The case was referred to a magistrate judge,

who issued a report and recommendation advising

that the district court dismiss all of petitioner’s claims.

App.122-23. The magistrate first noted that “[t]here

is no doubt that … peaceful picketing and leafleting

are expressive activities involving ‘speech’ protected

by the First Amendment,” that petitioner’s complaint

demonstrated that the public park and sidewalks

outside the Arena were a traditional public forum

where the government is “strictly limited in its ability

to regulate private speech,” and that the officers had

“engaged in viewpoint discrimination.” App.125;

App.131; App.133.

The magistrate nonetheless

recommended that the district court grant qualified

immunity to the officers because there is not “a single

decision from any court that has held, before or after

the date of this incident, that an officer violated the

rights of a leafleteer who was removed from a similar

arena premises.”

App.136.

The magistrate

recommended dismissal of the Monell claim on the

grounds that petitioner had failed to allege that the

violation was a result of deficient training as opposed

to the officers’ mistake or misbehavior, or that the City

was deliberately indifferent. App.137-47. Separately,

the magistrate recommended dismissal of petitioner’s

claims against the three security officers because their

conduct was not “fairly attributable” to the City.

App.107. The district court adopted the magistrate’s

report and recommendations in full.

App.120.

App.104;

2. In a brief per curiam order, a majority of the

panel below affirmed the district court’s dismissal of

the two police officers and three security guards but

reversed its dismissal of the Monell claim against the

City for failure to train. App.1-2. Each judge issued a

separate opinion concurring in full or concurring in

part and dissenting in part.

Judge Ho was the only judge to concur in both

aspects of the per curiam disposition. He took as an

uncontroversial starting point that “[t]he First

Amendment protects not just the right to pray, but to

preach” and “to witness,” and that the “right to

exercise … religion includes the right to evangelize.”

App.3. As such, the First Amendment “plainly

encompasses the distribution of religious pamphlets—

the activity at issue in this case.” App.4. He then

explained that, normally, a plaintiff seeking to defeat

an assertion of qualified immunity must demonstrate

not only that his rights were violated but that those

rights are “clearly established” by past circuit

precedent with sufficiently similar facts. App.8-9.

However, as Judge Ho detailed, this Court “has

repeatedly denied qualified immunity where it found

the constitutional violation so ‘obvious’ that it didn’t

require

the

plaintiff

identify

factually

indistinguishable case law.” App.7 (citing Hope, 536

U.S. at 741 and Taylor, 592 U.S. at 8-9 & n.2).

Under that precedent, Judge Ho would allow

petitioner’s claims to proceed. After all, petitioner’s

“right to evangelize on a public sidewalk” was so

obvious that, under Hope and Taylor, there was no

need for a precedent involving identical facts. App.58. But, as Judge Ho explained, the Fifth Circuit had

previously held that Hope and Taylor’s “narrow[ ]

obviousness exception” only applies in Eighth

Amendment cases brought by incarcerated criminals

and “should not apply to obvious violations of the First

Amendment.” App.8 (quoting Villarreal v. City of

Laredo, 94 F.4th 374, 395 (5th Cir. 2024)). In the Fifth

Circuit, he lamented, “it doesn’t matter how obvious a

First Amendment violation might be demonstrated at

trial,” there is no defeating qualified immunity

without a factually indistinguishable case. App.9.

And because petitioner could not identify a prior case

involving such an obvious violation of the right to

distribute religious leaflets on a public sidewalk,

Judge Ho “reluctantly concur[red] in affirming the

grant of qualified immunity, as compelled by [the

court’s] (mistaken) circuit precedent.” App.4. Judge

Ho, however, was not similarly constrained by

mistaken circuit precedent on the Monell claim, and

so agreed to “remand Hershey’s claim against the City

of Bossier for failing to train its officers to respect the

constitutional rights of its citizens.” App.3.

Judge Dennis concurred in part and dissented in

part. He agreed with Judge Ho that “the district court

erred in dismissing Hershey’s Monell failure to train

claim” because petitioner “sufficiently pleaded facts to

show the City was deliberately indifferent to the

violation of his First Amendment rights when it

provided no training whatsoever as to an officer’s

duties under the First Amendment.” App.15. Judge

Dennis dissented from the panel’s grant of qualified

immunity to the police and security officers.

According to Judge Dennis, petitioner “plausibly

alleged that the officers engaged in viewpoint

discrimination in violation of the First Amendment,”

and “the law clearly established Hershey’s right to

leaflet in a traditional public forum without viewpoint

discrimination.” App.16; App.21. In short, Judge

Dennis reasoned that “[q]ualified immunity does not

protect blatant viewpoint discrimination,” and “[a]ny

reasonable officer would have understood that ejecting

Hershey while permitting another leafleteer to remain

violated the First Amendment.” App.22.

Finally, Judge Richman took the opposite view of

Judge Dennis on both issues and would have affirmed

the district court across the board. She parted

company with her colleagues on the Monell claim and

voted to affirm the district court’s grant of qualified

immunity because petitioner had “not cited decisions

that clearly establish that the conduct of” the officers

“violated First Amendment rights.” App.44.

3. The City petitioned for rehearing en banc on

the panel majority’s decision to revive petitioner’s

Monell claim, but the en banc Fifth Circuit denied

rehearing by a 10 to 7 vote. App.64-65.

Concurring in the denial of rehearing en banc,

Judge Ho reiterated his view that “the obviousness of

[petitioner’s] right should have been enough to defeat

qualified immunity in this case, without the need for

a factually identical case saying so,” but that the Fifth

Circuit’s erroneous (but binding) precedent cabining

Hope and Taylor’s obviousness exception to Eighth

Amendment cases precluded the panel from reaching

that conclusion. App.66; App.69-79. He highlighted

the “[n]umerous religious liberty organizations and

other public interest groups” that have criticized the

Fifth Circuit’s approach “for refusing to apply the

obviousness exception to the First Amendment.”

App.75. He also dismissed any concerns about the

sincerity of petitioner’s religious beliefs as entirely

inapposite at the motion to dismiss stage. App.87-90.

Judge Oldham, joined by six other judges,

dissented from the denial of rehearing en banc.

App.92. Those judges disagreed with the panel’s

splintered decision to allow petitioner’s Monell claim

to proceed to trial. App.95-97. As to qualified

immunity, the dissenting judges would have granted

en banc review to make clear that Fifth Circuit

precedent does not “forever and for all reasons reject

obviousness as a ground for denying qualified

immunity” in the First Amendment context. App.98.

As the dissenters recognized, such an approach would

conflict with “binding Supreme Court precedent” and

“break” with nearly every other circuit. App.99. The

dissenters chided Judge Ho for proclaiming himself

bound by the Fifth Circuit’s erroneous approach to

qualified immunity but declining to “go en banc to fix

it[.]” App.97. The dissenters would have granted en

banc rehearing “immediately” to settle the circuit’s

application of qualified immunity in the First

Amendment context. App.100.

4. After the City’s en banc petition was denied,

the panel sua sponte considered and denied panel

rehearing. App.62. Judge Ho dissented from that

denial. In his view, “[p]anel rehearing would have

given … Hershey the opportunity to brief the qualified

immunity issues that the [en banc] dissental

purportedly welcomed him to present.” App.63.

Based on the various opinions on qualified

immunity published during the rehearing process

(and additions to petitioner’s legal team), petitioner

moved to file an out-of-time petition for en banc

rehearing on the question whether the Fifth Circuit’s

precedent cabining Hope and Taylor’s obviousness

exception to Eighth Amendment cases should be

reconsidered in light of the fact that “eight judges of

th[e] Circuit … indicated they are interested in

resolving th[e] confusion and specifically in this very

case.” CA5.Dkt.121 at 6. The en banc court denied the

motion without comment. CA5.Dkt.136.

On May 13, 2026, the City petitioned this Court

for certiorari, seeking review of the Fifth Circuit’s

decision to permit petitioner’s Monell claim to proceed.

City of Bossier City v. Hershey, No. 25-1323 (U.S. filed

May 13, 2026). Specifically, the City asks this Court

to decide whether it can be held liable under a singleincident Monell theory even though the Fifth Circuit

granted qualified immunity to the individual officers.2

Id. at I.

REASONS FOR GRANTING THE PETITION

The decision below got an exceptionally important

issue exceptionally wrong. Compelled by erroneous

precedent, a Fifth Circuit panel granted qualified

immunity to police and security officers who violated

2 As petitioner will more fully explain in his brief in opposition

to the City’s petition, the City fundamentally misunderstands the

Fifth Circuit’s decision. Though bound by precedent to grant

qualified immunity based on a lack of any factually

indistinguishable case, a majority of the panel had no trouble

finding that the officers obviously violated petitioner’s

constitutional rights.

First Amendment rights that have been clearly

established for decades. Whatever difficult judgment

calls government officials have to make in settings like

schools or public employment, the dynamic when it

comes to public sidewalks in public parks is

straightforward. Citizens have a clear right to engage

in peaceful leafletting and the prohibition on

viewpoint discrimination, especially disfavoring

religious viewpoints, is pellucidly clear. Government

officials do not need an on-point circuit precedent to

tell them as much. Indeed, one would hope that there

is no on-point circuit precedent precisely because the

constitutional line is so clearly established that no one

has previously crossed it. There is no reason to grant

officers immunity simply because they have gone

where no prior officer ever dared to tread. Not one

word in §1983 suggests that officers should escape

liability in such circumstances, and this Court has

already squarely rejected that anomalous suggestion.

This Court held in Hope that “general statements

of the 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,” 536 U.S. at 741, and reiterated in Taylor,

592 at 8-9 & n.2, that the “obviousness” of a

constitutional violation can defeat qualified immunity

even without factually indistinguishable precedent.

That principle obviously applies here and would apply

if this litigation were filed in any other circuit. The

Fifth Circuit alone has consigned Hope and Taylor to

the narrow remit of facilitating Eighth Amendment

claims. That makes no sense, as Hope and Taylor set

forth a transsubstantive principle that is necessary to

vindicate both common sense and Congress’ judgment

in enacting §1983. Nothing in that statute or this

Court’s precedents provides any support for allowing

the most egregious of constitutional violations to go

unremedied or for elevating Eighth Amendment

claims over our First Amendment freedoms. This

Court should grant certiorari to bring the Fifth Circuit

into line with this Court’s precedents and its sister

circuits.

This case is an excellent vehicle for this Court’s

review. The various opinions issued in denying en

banc review underscore the confusion caused by the

Fifth Circuit’s qualified immunity doctrine. And there

is no denying that the panel’s decision to dismiss

petitioner’s damages claims and affirm the grant of

qualified immunity turned entirely on the view that

Hope does not apply to First Amendment claims. That

decision is wrong and certworthy.

The panel’s

treatment of the Monell claim underscores the

fundamental incoherence of the Fifth Circuit’s

approach. When a constitutional violation is clear

enough to support failure-to-train liability for the

City, it ought to be more than clear enough to support

the damages remedy that the text of §1983 sets forth

unambiguously. As things stand, petitioner’s Monell

claim has been remanded for trial; his claims against

the respondent officers should be part of that trial.

The Decision Below Is Egregiously Wrong.

A. Under This Court’s Precedents, the

Officers Are Not Entitled to Qualified

Immunity.

This case should have been straightforward for

the officers and courts alike. The complaint’s wellpleaded allegations set forth an obvious constitutional

violation.

Petitioner was peacefully distributing

religious literature on a public sidewalk outside a

Christian rock concert. App.153-55. Nearby, another

leafleteer was distributing commercial advertising

material for a local radio station. App.155. None of

this was especially surprising; “[c]oncert venues are

an ideal forum for the street preacher” because they

are a “public location where people gather where

they’re not in a hurry and can take time to listen.”

App.85 (Ho, J., concurring). They are an equally good

venue for promoting a radio station.

When five police and security officers appeared on

this scene, they had no split-second, life-or-death

decision to make, nor any legally nuanced question

where the failure to suppress speech could give rise to

(misguided) claims of endorsement. No one had any

delusion that Bossier City was endorsing religion,

vegetarianism, or Power 927 FM by failing to suppress

peaceful and perfectly lawful leafletting on a public

sidewalk. All the officers had to do to avoid liability

was to do nothing—or at least avoid singling out and

punishing a religious leafleteer while ignoring a

similarly situated, commercial advertiser down the

sidewalk. Instead, the officers needlessly committed

an obvious constitutional violation, threatening to

arrest petitioner, compelling him to leave, and

banishing him indefinitely from a public park on pain

of arrest, all while leaving the commercial leafleteer

alone. Constitutional violations do not come any

plainer than that, and §1983 unambiguously promises

a remedy.

1. Qualified immunity does not feature in the text

of §1983, but this Court has long limited recovery to

situations where government officials violated clearly

established rights. See, e.g., Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). To be clearly established, “[t]he

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is

doing violates that right.” Anderson v. Creighton, 483

U.S. 635, 640 (1987). The classic way of showing a

clearly established right is by identifying a factually

similar case where an official engaging in similar

conduct was held to have violated the Constitution.

See White v. Pauly, 580 U.S. 73, 79 (2017). But that is

not the only way, as some constitutional violations are

as obvious as they are novel. Accordingly, this Court

has emphasized time and again that, to defeat

qualified immunity, a plaintiff need not necessarily

show that “the very action in question has previously

been held unlawful.” Anderson, 483 U.S. at 640. What

ultimately matters is whether “in the light of preexisting law the unlawfulness [is] apparent.” Id.; see

also Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021)

(per curiam) (“[T]his Court’s case law does not require

a case directly on point for a right to be clearly

established.” (quoting White, 580 U.S. at 79)). That

principle applies with especial force in circumstances

where officials commit a constitutional violation that

so clearly crosses a well-established constitutional

line, that no prior case law involves such an obvious

blunder.

Hope exemplified that principle. There, this

Court held that prison guards did not need an on-point

precedent to understand that handcuffing a prisoner

to a “hitching post” violated his Eighth Amendment

rights. 536 U.S. at 733. The lower court had granted

immunity because there was no previous case

“materially similar” to those specific facts. Id. at 739.

But this Court reversed. It explained that under the

alleged facts, “the Eighth Amendment violation is

obvious.” Id. at 738. And because the violation was

“obvious,” the officials were “on notice that their

conduct violates established law even in novel factual

circumstances.” Id. at 741. In those circumstances, a

plaintiff need not identify a previous case involving

“fundamentally similar” or “materially similar” facts.

Id. Instead, “a general constitutional rule” can defeat

qualified immunity when it “appl[ies] with obvious

clarity to the specific conduct in question.” Id. at 741.

Officials are on notice that they may not inflict

“obvious cruelty,” id. at 745, whether that means

cuffing a prisoner to a “hitching post,” chaining him to

a fence, id. at 742, or restraining him in a pillory, see

id. at 737 n.6. Even the United States, with its

obvious interest in invoking qualified immunity in

defending federal officers, recognized that qualified

immunity could be defeated even in the absence of

prior caselaw involving materially similar facts.

U.S.Amicus.Br.11-19, Hope v. Pelzer, No. 01-309 (U.S.

Feb. 19, 2002).

This Court reaffirmed Hope in Taylor, summarily

reversing the Fifth Circuit’s grant of qualified

immunity to corrections officers who confined an

inmate in a pair of “unsanitary cells.” Taylor, 592 U.S.

at 7. This Court again explained that “any reasonable

officer should have realized” that this conduct was

unconstitutional, even without a factually similar

case. Id. at 9-10. Notwithstanding some “ambiguity

in the caselaw,” this Court held that there could be no

“doubt about the obviousness of [the prisoner’s] right.”

Id. at 9 n.2.

Hope and Taylor involved violations of the Eighth

Amendment, but this Court has made clear that the

“obviousness” exception applies to other rights. See

Brosseau v. Haugen, 543 U.S. 194, 199 (2004)

(recognizing, in the Fourth Amendment context, that

“in an obvious case,” general constitutional standards

“can ‘clearly establish’ the answer, even without a

body of relevant case law” (citing Hope, 536 U.S. at

738)); accord Rivas-Villegas, 595 U.S. at 6. The Court

has applied similar principles in the context of

criminal prosecutions under 18 U.S.C. §242. See

United States v. Lanier, 520 U.S. 259, 267-72 (1997).

In fact, this Court has applied these principles in the

First Amendment context, reversing a grant of

qualified immunity to officers who allegedly ordered a

woman to stop praying without any law enforcement

justification. Sause v. Bauer, 585 U.S. 957, 959 (2018)

(per curiam).

The First Amendment obviously

“protects the right to pray,” id., and interference with

that right without a “legitimate law enforcement

interest[],” id. at 960, is not shielded by immunity

even if there is no “prior case involving [that] unusual

situation,” id. at 959.

The upshot of these cases is clear: an officer is not

entitled to qualified immunity for violating an

“obvious” constitutional right even without a factually

similar case saying so.

That principle is a

fundamental transsubstantive component of this

Court’s §1983 jurisprudence. It is not limited to the

Eighth Amendment, and this Court has applied it in a

variety of contexts, including the First Amendment.

2. Hope should have controlled this case.

Petitioner had an obvious First Amendment right to

peacefully distribute religious leaflets to interested

listeners on a public sidewalk without being singled

out for adverse treatment on account of his religious

message. Indeed, that right is triply protected.

First, petitioner had a basic free speech right to

leaflet in a traditional public forum. “There is no

doubt that as a general matter peaceful picketing and

leafletting are expressive activities involving ‘speech’

protected by the First Amendment.” United States v.

Grace, 461 U.S. 171, 176 (1983) (citing cases); Int’l

Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S.

672, 702-03 (1992) (“We have long recognized that the

right to distribute flyers and literature lies at the

heart of the liberties guaranteed by the Speech and

Press Clauses of the First Amendment.” (Kennedy, J.,

concurring)). And there is scarcely any forum where

the right to leaflet is more obviously protected than

the public sidewalk—doubly so when that public

sidewalk is within a public park. Minn. Voters All. v.

Mansky, 585 U.S. 1, 11 (2018) (recognizing both public

parks and sidewalks as “traditional public forum[s]”).

Public sidewalks are the “archetype of a traditional

public forum” which “‘[t]ime out of mind’ … ha[s] been

used for public assembly and debate.” Snyder v.

Phelps, 562 U.S. 443, 456 (2011); accord Amalgamated

Food Emp. Union Loc. 590 v. Logan Valley Plaza, Inc.,

391 U.S. 308, 315 (1968). Petitioner’s “[l]eafletting

and commenting on matters of public concern are

classic forms of speech that lie at the heart of the First

Amendment, and speech in public areas is at its most

protected on public sidewalks, a prototypical example

of a traditional public forum.” Schenck v. Pro-Choice

Network of W. N.Y., 519 U.S. 357, 377 (1997). He

plainly had a “constitutional right to express his views

in an orderly fashion,” including by distributing

“handbills and literature.”3 Jamison v. Texas, 318

U.S. 413, 416 (1943).4 To call that right clearly

established (with or without a factually similar case)

understates things considerably.

Second, petitioner’s right to distribute his

religious leaflets was guaranteed by the Free Exercise

Clause, which “unquestionably encompasses the right

to preach, proselyte, and perform other similar

religious functions.” McDaniel v. Paty, 435 U.S. 618,

626 (1978). That right to proselytize includes the right

to distribute religious literature. Indeed, “[t]he hand

distribution of religious tracts is an age-old form of

missionary evangelism—as old as the history of

3 In their own petition for certiorari, the City argues, as it did

below, that it was not obvious that the public sidewalk where

petitioner distributed his leaflets was a traditional or designated

public forum. See Pet.21-22, City of Bossier City v. Hershey, No.

25-1323 (U.S. filed May 13, 2026). In support, it cites several

irrelevant decisions involving entirely different contexts. Id. at

21 n.2. To be sure, if petitioner had distributed his leaflets in the

Arena itself, see Calash v. City of Bridgeport, 788 F.2d 80, 83-84

(2d Cir. 1986), or in a marked-off plaza, see Ball v. City of Lincoln,

870 F.3d 722, 731-36 (8th Cir. 2017), perhaps that argument

would have some force. But respondents cannot refute the longestablished principle in both this Court and the Fifth Circuit that

public sidewalks in particular “are clearly within those areas of

public property that may be considered, generally without

further inquiry, to be public forum property.” Grace, 461 U.S. at

179; see Siders v. City of Brandon, 123 F.4th 293, 303 (5th Cir.

2024) (“It is axiomatic that ‘public sidewalks are traditional

public fora that time out of mind have facilitated the general

demand for public assembly and discourse.’”).

4 While expressive activity on a public sidewalk may be subject

to reasonable time, place, and manner restrictions, no party has

suggested that any such restriction existed in this case.

printing presses.” Murdock v. Pennsylvania, 319 U.S.

105, 108 (1943). “This form of religious activity

occupies the same high estate under the First

Amendment as do worship in the churches and

preaching from the pulpits.” Id. at 109. It is thus

“beyond controversy” that the state “may not prohibit

the distribution of handbills in the pursuit of a clearly

religious activity.” Jamison, 318 U.S. at 416-17;

accord Jimmy Swaggart Ministries v. Bd. of

Equalization, 493 U.S. 378, 385-86 (1990).

Because petitioner was engaged in “religious

speech,” the First Amendment is “doubly” protective.

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 523

(2022). “Where the Free Exercise Clause protects

religious exercises, whether communicative or not, the

Free Speech Clause provides overlapping protection

for expressive religious activities.” Id. Respondents

here clearly violated those rights. Indeed, when

Officer Harvey advised that “Hershey’s literature had

not been approved,” App.157, he essentially forbade

petitioner to “proselytize … without a license.”

Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 511

(2020) (Gorsuch, J., concurring) (discussing Cantwell

v. Connecticut, 310 U.S. 296, 300-01 (1940)).

Finally, even putting aside those obvious First

Amendment violations, respondents committed the

cardinal

First

Amendment

sin:

viewpoint

discrimination. It is “axiomatic that the government

may not regulate speech based on its substantive

content or the message it conveys.” Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819, 828

(1995). “Viewpoint discrimination … represents an

egregious form of content regulation, and

governments in this country must nearly always

abstain from it.” Chiles v. Salazar, 146 S.Ct. 1010,

1021 (2026). Indeed, even otherwise unprotected

speech may not be regulated on the basis of viewpoint.

R.A.V. v. City of St. Paul, 505 U.S. 377, 392 (1992).

This Court has thus long recognized that viewpointbased restrictions categorically violate the First

Amendment in any forum. See, e.g., Pleasant Grove

City v. Summum, 555 U.S. 460, 469 (2009).

That is all the more true when the government

discriminates “based on ‘religious viewpoint.’”

Shurtleff v. City of Boston, 596 U.S. 243, 258 (2022);

see Good News Club v. Milford Cent. Sch., 533 U.S. 98,

111-12 (2001). Indeed, the government may “not

treat any comparable secular activity more favorably

than religious exercise,” Tandon v. Newsom, 593 U.S.

61, 62 (2021) (per curiam), or prohibit conduct

“because it is undertaken for religious reasons,”

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 532 (1993) (plurality op.). That “general

constitutional rule … appl[ied] with obvious clarity to

the specific conduct in question” here. Hope, 536 U.S.

at 741.

The officers forced petitioner to stop

distributing his religious literature while permitting a

nearby leafleteer to distribute her commercial

material. That is blatantly unconstitutional.

In light of this “pre-existing law,” Anderson, 483

U.S. at 640, petitioner’s First Amendment right to

peacefully proselytize by handing out religious leaflets

free from discrimination was obviously guaranteed

several times over. This is thus a classic case where

the lack of prior precedent does not reflect any judicial

gray areas, but, instead, the simple reality that most

officers most of the time avoid the most egregious

constitutional violations. In other words, sometimes

the absence of prior case law is a direct result of the

constitutional rules being pellucidly clear.

Respondent officers never disputed that the

constitutional prohibition on viewpoint discrimination

is clearly established.

To the contrary, they

acknowledged that it is “likely true” that “viewpoint

discrimination is a clearly established violation of the

First Amendment in any forum.” CA5 Dkt.32 at 1314. But they nonetheless contended that this general

constitutional rule is insufficient to defeat qualified

immunity without “existing precedent ‘squarely

govern[ing]’ the specific facts at issue.” Id. at 12. Not

so; Hope considered and rejected that exact, absurd

argument. Sause, in turn, applied that principle in a

First Amendment case, where there were at least

some justifications for officers to take quick action.

See 585 U.S. at 959. Unlike in Sause, here there was

no disputed law-enforcement exigency, and any

reasonable officer would have understood that

“ejecting [Mr.] Hershey” for his religious leafleting and

threatening him with imprisonment if he ever

returned, all “while permitting another [commercial]

leafleteer to remain,” violated his rights. App.22

(Dennis, J., concurring in part, dissenting in part).

B. The Fifth Circuit’s Ruling Conflicts With

This Court’s Precedents and Core First

Amendment Values.

Under a straightforward application of Hope, the

court of appeals should have made quick work of

respondents’ qualified immunity defense. After all, a

majority of the panel agreed that the officers obviously

violated petitioner’s rights.

See App.5-8 (Ho, J

concurring); App19-22 (Dennis, J. concurring in part

and dissenting in part). But that is not enough in the

Fifth Circuit. As Judge Ho explained, the Fifth

Circuit’s “(mistaken) circuit precedent” does not apply

Hope to First Amendment claims. App.4.

1. The Fifth Circuit’s miserly approach to Hope

can be traced to Morgan v. Swanson, in which the en

banc court affirmed a grant of qualified immunity to

elementary-school principals who prohibited students

from distributing religious materials at school. 659

F.3d 359 (5th Cir. 2011). The court gave lip service to

Hope but dismissed this Court’s “suggestion that

generalizations can sometimes clearly establish the

law” as mere “dicta.” Id. at 373. Even some of the

judges in the majority noted—and disagreed with—

this (mis)treatment of Hope. See id. at 393 (Dennis, J.

concurring) (observing that under Hope, “official

conduct may so obviously fall within the prohibition of

a general or abstract rule of the Constitution that any

reasonable official would have ‘fair warning’ that his

actions are unconstitutional, even absent a prior court

decision to that effect”), as did the judges in the

minority on the qualified-immunity issue. See id. at

414 n.30 (Elrod, J. dissenting).

After this Court reaffirmed Hope and applied it to

summarily reverse the Fifth Circuit in Taylor, the

Fifth Circuit could no longer marginalize the rule as

“dicta.” But it could recast Hope as a ticket good for

one Amendment only. In Villarreal v. City of Laredo,

the en banc Fifth Circuit again faced an assertion of

qualified immunity by government officials against an

“obvious[]” First Amendment violation—this time, a

reporter’s right to ask questions and pursue her work

as a journalist. 94 F.4th at 394.5 The court

characterized Hope and Taylor as “Eighth

Amendment cases where the Supreme Court denied

qualified immunity … and declined to scrutinize the

cases fact-specifically,” and asserted that “those cases

are inappropriate templates for describing ‘clearly

established’ law in this context.” Id. at 395 (citing

Morgan, 659 F.3d at 373).

Rejecting Hope’s

applicability to the First Amendment claims there, the

court “adhere[d] to the general rule” that a law is not

clearly established without a previous controlling case

that is materially indistinguishable. Id. Once again,

several judges dissented from the court’s unduly

narrow reading of Hope. Judge Graves observed that

qualified immunity was inappropriate because the

officials’ conduct was “obviously unconstitutional in

light of the … well-established right of journalists to

engage in routine newsgathering.” Id. at 400. And

Judge Ho lamented that the court’s refusal to extend

Hope and Taylor to the First Amendment “treat[s] the

First Amendment as a second-class right.” Id. at 413.

The decision below is of a piece. Despite what a

majority of the panel recognized to be an obvious

5 This Court later vacated and remanded the case for further

consideration in light of Gonzalez v. Trevino, which held that the

Fifth Circuit had taken “an overly cramped view” of this Court’s

precedent in requiring “very specific comparator evidence” for

First Amendment retaliation claims. 602 U.S. 653, 658 (2024)

(per curiam); Villareal v. Alaniz, 145 S.Ct. 368 (2024). On

remand, the en banc court again held the defendants were

entitled to qualified immunity. 134 F.4th 273, 276 (5th Cir.

2025).

violation of petitioner’s First Amendment rights, the

court affirmed the grant of qualified immunity

because “[i]n [the Fifth] circuit, Hope and Taylor apply

only to the Eighth Amendment claims of incarcerated

criminals. They do not apply to the First Amendment

claims of law-abiding citizens.”

App.8 (Ho, J.,

concurring).

Absent that “(mistaken) circuit

precedent,” the panel would have denied qualified

immunity and allowed petitioner to vindicate his

constitutional rights. App.4; App.3 (Judge Ho noting

that “if it were up to [him], [petitioner’s] claims

against the individual police officers and security

guards would proceed to trial”).

2. The Fifth Circuit’s double standard is

mystifying. The court should have been on notice after

this Court summarily reversed it in Taylor “that the

obviousness principle has vitality and that

egregiousness matters.” Ramirez v. Guadarrama, 2

F.4th 506, 523 (5th Cir. 2021) (Willett, J., dissenting

from denial of rehearing en banc). As one Fifth Circuit

judge warned his colleagues less than a year after

Taylor, that summary reversal “sent the message that

not only were we wrong, we were obviously wrong—

more specifically, we were obviously wrong about an

obvious wrong.” Id.

Yet rather than heed that warning, the Fifth

Circuit doubled down, inexplicably cabining Hope to

the Eighth Amendment context despite nothing in the

decision’s language or reasoning suggesting such a

narrow application. To the contrary, Hope’s logic

necessarily covers all constitutional rights.

Its

“obviousness” principle is critical to protecting

individuals against the most egregious official

conduct. Without it, the only way to defeat qualified

immunity is to identify a factually indistinguishable

case. But as then-judge Gorsuch explained (notably,

in a Fourteenth Amendment case, not an Eighth

Amendment one), “sometimes the most obviously

unlawful things happen so rarely that a case on point

is itself an unusual thing.” Browder, 787 F.3d at 1082.

That makes sense, as there will only be on-point

precedent if an official has committed the same

egregious rights violation and then litigated the

matter to the court of appeals.

It would “be

remarkable if the most obviously unconstitutional

conduct should be the most immune from liability only

because it is so flagrantly unlawful that few dare its

attempt.” Browder, 787 F.3d at 1082-83. When

correctly applied, Hope prevents that unacceptable

result by ensuring that officials may be held liable for

obvious rights violations that are unprecedented in

their egregiousness.

Official accountability for obviously unlawful

conduct should not depend on which constitutional

right an official violates.

“[O]ur Constitution

renounces the notion that some constitutional rights

are more equal than others.” Whole Woman’s Health

v. Hellerstedt, 579 U.S. 582, 643 (2016) (Thomas, J.

dissenting); see Espinoza, 591 U.S. at 496-97 (Thomas,

J., concurring). And relegating First Amendment

rights to second-class treatment makes no sense at all,

especially in a case like this implicating multiple

“overlapping” guarantees of the First Amendment.

Kennedy, 597 U.S. at 523.

II. The

Decision

Below

Conflicts

Decisions From Every Other Circuit.

With

The Fifth Circuit’s approach is not just

irreconcilable with this Court’s precedent; it is a lone

outlier among its sister circuits who have received the

message of Hope and its progeny loud and clear. Every

other circuit has extended Hope beyond the Eighth

Amendment; most have recognized it for First

Amendment claims; and several have applied the

doctrine in denying qualified immunity.

The Eleventh Circuit’s decision in Bailey v.

Wheeler is illustrative. 843 F.3d 473 (11th Cir. 2016).

In Bailey, after reporting that some of his fellow

officers had been racially profiling minority citizens,

Officer Bailey was terminated from his job and became

the subject of a “be-on-the-lookout” advisory that

described him as a “loose cannon” and a “danger” to

law enforcement. Id. at 477-78. Officer Bailey sued

the police chief who issued the advisory for unlawful

retaliation. The Eleventh Circuit held that Officer

Bailey had sufficiently alleged a First Amendment

retaliation claim, and that the chief was not entitled

to qualified immunity. The court explained that in

addition to identifying “a materially similar case from

relevant precedent,” a plaintiff can defeat qualified

immunity when the defendant’s conduct “lies so

obviously at the very core of what the [First

Amendment] prohibits that the unlawfulness of the

conduct was readily apparent to the official,

notwithstanding the lack of case law.” Id. at 484. The

court found that the “conduct alleged in this case is so

egregious that [the police chief] did not need case law

to know what he allegedly did was unlawful.” Id. at

484. The court thus held that “it is certainly obvious,

as a general proposition and without reference to case

law, that issuing the [advisory] in this case, under the

circumstances that existed at the time … clearly

violated Bailey’s First Amendment rights.” Id. at 485.

The Fourth Circuit reached a similar conclusion

in Tobey v. Jones. 706 F.3d 379 (4th Cir. 2013). A

traveler who believed that airport security screening

is unconstitutional printed the text of the Fourth

Amendment on his chest before departing for a trip.

Id. at 383. When the TSA selected him for enhanced

screening, he disrobed to reveal the written protest.

Id. at 384. He was then taken to a police station and

threatened with various criminal sanctions. Id. The

Fourth Circuit held that the officers violated the man’s

First Amendment right “to voice dissent from

government policies” and denied the officers’ request

for qualified immunity. Id. at 391. The officers argued

that “because there is no case on-point detailing what

is a reasonable restriction on speech in an airport

screening area,” the constitutional right is not “clearly

established.” Id. at 392. But the Fourth Circuit

disagreed. Although there was no factually similar

case, the officers should have known that “the First

Amendment prohibits [them] from retaliating against

an individual for speaking critically of the

government.”

Id. at 391.

The Fourth Circuit

concluded

that

because

“peaceful,

silent,

nondisruptive protest is protected in a nonpublic

forum,” the man’s “rights at the time of his arrest were

clearly established.” Id. at 393.

The Second Circuit’s decision in Nagle v. Marron,

provides yet another example. 663 F.3d 100 (2d Cir.

2011). There, the Second Circuit reversed a grant of

qualified immunity to school officials for allegedly

refusing to recommend a teacher for tenure based on

her protected speech from four years prior. Id. at 10305. The officials argued—and the district court

accepted—that it was not clearly established “that

speech protected at one time ‘remains protected when

discovered years later’ in a “geographically remote

community.” Id. at 115. The Second Circuit reversed

because “no reasonable official could think that such

speech-retaliatory conduct was constitutionally

permissible.” Id. The court agreed with the officials

“that no case in our Circuit has specifically held that

First Amendment protection does not grow weaker

over time and space.” Id. But citing Hope, it held that

the officials nevertheless “should have known that

retaliation for protected speech would violate an

employee’s First Amendment rights.” Id. at 115-16.

These circuits are not alone. At least two other

circuits have permitted First Amendment claims to

proceed over assertions of qualified immunity based

on the obvious nature of a violation. See MacIntosh v.

Clous, 69 F.4th 309, 320-21 (6th Cir. 2023) (no

qualified immunity for a county commissioner

brandishing a rifle during a zoom meeting in response

to a resident’s comment even without a factually

similar case); McGreevy v. Stroup, 413 F.3d 359, 36667 (3d Cir. 2005) (no qualified immunity for school

officials retaliating against a school nurse because

“the illegality of the officials’ actions was

‘sufficiently clear that they can fairly be said to have

been on notice of the impropriety of their actions’’’).

Four other circuits have expressly recognized

Hope’s “obviousness” exception in First Amendment

cases, even if they ultimately declined to grant

qualified immunity for various reasons. See DíazBigio v. Santini, 652 F.3d 45, 50 (1st Cir. 2011);

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

(10th Cir. 2021).

And the remaining two non-specialized circuits

have both recognized that Hope is not limited to the

Eighth Amendment context. See Cheeks v. Belmar, 80

F.4th 872 (8th Cir. 2023) (applying Hope’s obviousness

exception to Fourteenth Amendment case); Atherton v.

D.C. Off. of Mayor, 706 F.3d 512, 515-16 (D.C. Cir.

2013) (citing Hope in Fifth Amendment case).

In sum, the Fifth Circuit’s approach is egregiously

wrong and at war with the decisions of this Court and

every other circuit. As shown by the en banc decisions

establishing this aberrant approach (Villareal and

Morgan) and by the Fifth Circuit’s refusal to take the

decision below en banc, only this Court’s review will

resolve the circuit split.

III. This Case Is An Ideal Vehicle To Resolve An

Exceptionally Important Question.

The question presented is undeniably important.

The First Amendment Free Speech and Free Exercise

Clauses are “a natural outgrowth of the framers’

distrust of government attempts to regulate religion

and suppress dissent.” Kennedy, 597 U.S. at 524.

First Amendment rights “play[] a fundamental role in

a democracy”: they are “the matrix, the indispensable

condition, of nearly every other form of freedom.” FEC

v. Mass. Citizens for Life, Inc., 479 U.S. 238, 264

(1986). Congress plainly intended for clear violations

of the First Amendment to be fully remedied. See 42

U.S.C. §1983. The Fifth Circuit has vitiated that

promise precisely when it is most vital—when

government suppression is so flagrant as to be without

precedent. As Judge Ho recognized below, “[i]t would

make a mockery of our rights to grant qualified

immunity just because no one in government has yet

to be abusive enough to commit that particular

violation—and then stubborn enough to litigate it, not

only before a district court, but also in the court of

appeals.” App.8.

The Fifth Circuit’s rule inflicts widespread harm

on law-abiding citizens. According to a recent study,

nearly 20% of qualified-immunity cases include First

Amendment claims. See Jason Tiezzi et al., Inst. for

Just., Unaccountable: How Qualified Immunity

Shields a Wide Range of Government Abuses,

Arbitrarily Thwarts Civil Rights, and Fails to Fulfill

Its Promises, 4, 18 (Feb. 2024), perma.cc/KSV8BMCU. So it is no surprise that organizations and

public interest groups across the ideological spectrum

have sounded the alarm about the Fifth Circuit’s

“insidious” approach. See McMurry v. Weaver, 142

F.4th 292, 306 (5th Cir. 2025) (Ho, J., concurring)

(collecting amici). As one group warned, “[l]eft

undisturbed, the Fifth Circuit’s ruling provides

dangerous license for government actors to flagrantly

violate the Constitution without recourse, even

against the most established rights, simply because

they invoke a novel factual situation never before

specifically addressed by the courts.” App.76 (Ho, J.,

concurring in denial of rehearing en banc) (citing

Amicus.Br. for Young Am.’s Found. and Manhattan

Inst., Villarreal v. Alaniz, 2024 WL 2786483, *9-10

(U.S. filed May 24, 2024)).

This petition also presents an ideal opportunity

for this Court to correct the Fifth Circuit’s upsidedown approach to the obviousness exception. Because

petitioner’s claims were dismissed on the pleadings,

there are no disputed facts complicating this Court’s

review. And on the facts alleged, the five officers’

conduct plainly violated petitioner’s constitutional

rights. See App.21 (Dennis, J., concurring in part and

dissenting in part) (noting that neither party disputes

the district court’s characterization of petitioner’s

allegations as raising an inference of viewpoint

discrimination). The only issue this Court need

address is whether, as a matter of law, a First

Amendment violation can be sufficiently obvious to

defeat qualified immunity without factually analogous

cases. If that issue is resolved in petitioner’s favor, his

individual claims against the officers can proceed to

trial alongside his Monell claims—just as they would

in any other circuit.

To be sure, the opinions respecting rehearing

below suggest some confusion about the exact state of

Fifth Circuit law and some doubts by some judges

about the sincerity of petitioner’s beliefs. But none of

that detracts from this case as a suitable vehicle for

this Court’s review. The latter have no relevance

given the posture of this case, where the plausible

allegations of the complaint must be taken as true.

The former just underscores that the Fifth Circuit is

deeply divided and confused about the scope of Hope

and the proper approach to qualified immunity in the

First Amendment context. That confusion is deepseated and can be traced back to the sharply divided

en banc decision in Morgan. Regardless, the one thing

beyond debate is that the decisive vote on the panel

decision was cast on the view that the constitutional

violations here were obvious but that Fifth Circuit

precedent still commanded the application of qualified

immunity because Hope is limited to the Eighth

Amendment. That decision cannot be allowed to

stand.

Finally, that the Monell claim will go to trial on

remand only underscores that the claims against the

officers should be part of that trial.

When

constitutional violations are so obvious they give rise

to failure-to-train liability, they ought to be obvious

enough to defeat qualified immunity.

When five officers accosted petitioner as he

distributed religious literature on a public sidewalk,

leaving a nearby commercial leafleteer undisturbed,

any reasonable officer should have known that such

viewpoint discrimination was a blatant violation of

petitioner’s First Amendment rights, even without onpoint circuit precedent. Indeed, the most plausible

explanation for the lack of a circuit precedent is that

the combined effect of decades of decisions marking

viewpoint discrimination as the ultimate First

Amendment sin and the powerful remedies Congress

provided in §1983 had deterred any similarly

egregious episodes. If officers nonetheless committed

this novel but egregious blunder anywhere in the

country, save the Fifth Circuit, qualified immunity

would offer them no shield. Only in the Fifth Circuit

are the promise of §1983 and Hope limited to clear but

novel violations of the Eighth Amendment. The Fifth

Circuit’s rule is utterly irreconcilable with this Court’s

precedent and with the law in every other circuit. If

Hope does not apply to First Amendment claims on

these facts, it never will. Whether through plenary

review or summary reversal, this Court should not let

the decision below stand.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition.

Respectfully submitted,

KELLY J. SHACKELFORD PAUL D. CLEMENT

JEFFREY C. MATEER

Counsel of Record

DAVID J. HACKER

JEFFREY C. THALHOFER*

HIRAM S. SASSER, III

NICHOLAS A. AQUART

ERIN E. SMITH

ILAN J. POSNER

FIRST LIBERTY

CLEMENT & MURPHY, PLLC

INSTITUTE

706 Duke Street

2001 W. Plano Pkwy. Alexandria, VA 22314

(202) 742-8900

Suite 1600

paul.clement@clementmurphy.com

Plano, TX 75075

*Supervised by principals of the firm who

NATHAN W. KELLUM

are members of the Virginia bar

FIRST LIBERTY

INSTITUTE

699 Oakleaf Office Lane

Suite 107

Memphis, TN 38117

Sarah Giglio

GILMER & GIGLIO,

L.L.C.

3541 Youree Dr.

Shreveport, LA 71105

Counsel for Petitioner

June 12, 2026

APPENDIX

TABLE OF APPENDICES

Appendix A

Opinion, United States Court of Appeals

for the Fifth Circuit, Hershey v. Bossier

City, No. 21-30754 (Oct. 7, 2025) ................ App-1

Appendix B

Order, United States Court of Appeals for

the Fifth Circuit, Hershey v. Bossier City,

No. 21-30754 (Jan. 13, 2026)..................... App-62

Appendix C

Order, United States Court of Appeals for

the Fifth Circuit, Hershey v. Bossier City,

No. 21-30754 (Dec. 18, 2025)..................... App-64

Appendix D

Judgment, United States District Court

for the Western District of Louisiana,

Hershey v. Bossier City, No. 21-cv-00460

(Nov. 17, 2021) ......................................... App-104

Appendix E

Report and Recommendation, United

States District Court for the Western

District of Louisiana, Hershey v. Bossier

City, No. 21-cv-00460 (Nov. 1, 2021)....... App-106

Appendix F

Judgment, United States District Court

for the Western District of Louisiana,

Hershey v. Bossier City, No. 21-cv-00460

(Sept. 24, 2021) ........................................ App-120

Appendix G

Report and Recommendation, United

States District Court for the Western

District of Louisiana, Hershey v. Bossier

City, No. 21-cv-00460 (Aug. 23, 2021)..... App-122

Appendix H

First Amended Complaint, United States

District Court for the Western District of

Louisiana, Hershey v. Bossier City, No 21cv-00460 (May 20, 2021).......................... App-150

Exhibit 1 – Email Exchange Between

R. Bonnevier and K. Wren re: FIOA –

Bossier City (Feb. 2021) ................... App-165

App-1

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________

No. 21-30754

________________

RICHARD HERSHEY,

Plaintiff-Appellant,

CITY OF BOSSIER CITY; BOBBY GILBERT, Individually

and in his Capacity as Deputy Marshal; DANIEL

STOLL; DAVID SMITH; TYSHON HARVEY;

EUGENE TUCKER,

Defendants-Appellees.

________________

Filed: Oct. 7, 2025

________________

Before Dennis, Richman, and Ho, Circuit Judges.

________________

OPINION

________________

Per Curiam:

This is a splintered panel decision involving an

individual’s First Amendment right to distribute

leaflets on the sidewalk on the grounds of

CenturyLink Center. A majority of the panel (Judges

Dennis and Ho) agrees to reverse the district court’s

App-2

dismissal of the Monell1 claim against Bossier City for

failure to train. A second majority (Judges Richman

and Ho) agrees to affirm the grant of qualified

immunity for the police officers and to affirm the

dismissal of the security guards.

We AFFIRM in part and REVERSE in part the

district court’s judgment.

1 Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658

(1978).

App-3

James C. Ho, Circuit Judge, concurring:

The First Amendment protects not just the right

to pray, but to preach. To not only worship, but to

witness. The right to exercise your religion includes

the right to evangelize your faith.

And that’s what’s at issue in this case. Richard

Hershey alleges that he wanted to distribute religious

pamphlets on a public sidewalk while a concert was

being held nearby—but that a group of police officers

and security guards threatened to arrest him if he did

so.

So I agree that we should remand Hershey’s claim

against the City of Bossier for failing to train its

officers to respect the constitutional rights of its

citizens.

Moreover, if it were up to me, his claims against

the individual police officers and security guards

would proceed to trial as well. Unfortunately, recent

precedents of our court force us to grant qualified

immunity.

To be sure, I strongly disagree with our court’s

approach to qualified immunity as applied in the First

Amendment and other contexts. See, e.g., Villarreal v.

City of Laredo, 94 F.4th 374, 409 (5th Cir. 2024) (Ho,

J., dissenting); see also McMurry v. Weaver, 142 F.4th

292, 304-7 (5th Cir. 2025) (Ho, J., concurring)

(discussing Villarreal and Morgan v. Swanson, 659

F.3d 359 (5th Cir. 2011)). Likewise, I strongly disagree

with our court’s approach to the First Amendment as

applied to acts of evangelism on public sidewalks

outside a public amphitheater. See, e.g., Siders v. City

of Brandon, 130 F.4th 188, 191 (5th Cir. 2025) (Ho, J.,

dissenting from denial of rehearing en banc).

App-4

Our court’s record of protecting First Amendment

rights leaves much to be desired, to say the least. But

as a member of this panel, I’m bound to faithfully

follow our precedents, whether I agree with them or

not. So I reluctantly concur in affirming the grant of

qualified immunity, as compelled by our (mistaken)

circuit precedent.

The First Amendment protects the “free exercise”

of religion, not just the right to “worship.” Horvath v.

City of Leander, 946 F.3d 787, 795-96 (5th Cir. 2020)

(Ho, J., concurring in the judgment in part and

dissenting in part). And “the right to the free exercise

of religion unquestionably encompasses the right to

preach, proselyte, and perform other similar religious

functions.” McDaniel v. Paty, 435 U.S. 618, 626 (1978).

“The dissemination of ... religious views and doctrines

is protected by the First Amendment.” Heffron v. Int’l

Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647

(1981).

This right plainly encompasses the distribution of

religious pamphlets—the activity at issue in this case.

As the Supreme Court observed nearly a century ago,

“[t]he hand distribution of religious tracts is an ageold form of missionary evangelism—as old as the

history of printing presses.” Murdock v. Pennsylvania,

319 U.S. 105, 108 (1943). “It has been a potent force in

various religious movements down through the years,”

as people of faith “carry the Gospel to thousands upon

thousands of homes and seek through personal

visitations to win adherents.” Id. at 108-9. “This form

of religious activity occupies the same high estate

App-5

under the First Amendment as do worship in the

churches and preaching from the pulpits.” Id. at 109.

So anyone who is “rightfully on a street which the

state has left open to the public carries with him there

as elsewhere the constitutional right to express his

views in an orderly fashion.” Jamison v. Texas, 318

U.S. 413, 416 (1943). “This right extends to the

communication of ideas by handbills and literature as

well as by the spoken word.” Id.

II.

Hershey’s right to evangelize on a public sidewalk

is not undermined by the fact that the city-owned

facility abutting the sidewalk happens to be managed

by a private corporation. Nor should it matter that his

rights were violated by private security guards

working alongside police officers. Municipalities

cannot abrogate the constitutional rights of their

citizens simply by delegating their coercive

governmental powers to private agents.

The Supreme Court addressed this very

contention in Marsh v. Alabama, 326 U.S. 501 (1946).

In Marsh, the Court was asked to answer the following

question: “Can th[e] people who live in or come to

Chickasaw be denied freedom of press and religion

simply because a single company has legal title to all

the town?” Id. at 505. “For it is the State’s contention

that the mere fact that all the property interests in the

town are held by a single company is enough to give

that company power, enforceable by a state statute, to

abridge these freedoms.” Id.

The Court made clear that it “cannot accept that

contention.” Id. at 506. “Whether a corporation or a

municipality owns or possesses the town the public in

App-6

either case has an identical interest in the functioning

of the community in such manner that the channels of

communication remain free.” Id. at 507. “The

managers appointed by the corporation cannot curtail

the liberty of press and religion of these people

consistently with the purposes of the Constitutional

guarantees.” Id. at 508. “Many people in the United

States live in company-owned towns. These people,

just as residents of municipalities, are free citizens of

their State and country.” Id. “There is no more reason

for depriving these people of the liberties guaranteed

by the First and Fourteenth Amendments than there

is for curtailing these freedoms with respect to any

other citizen.” Id. at 508-09.

Accordingly, the Court vacated the conviction of a

member of Jehovah’s Witnesses, for her only crime

was leafletting on the sidewalks of the company town.

See id. at 509 (“Insofar as the State has attempted to

impose criminal punishment on appellant for

undertaking to distribute religious literature in a

company town, its action cannot stand.”). See also Lee

v. Katz, 276 F.3d 550, 557 (9th Cir. 2002) (private

lessee of public plaza cannot violate the First

Amendment rights of street preachers).

Like Grace Marsh, Richard Hershey’s First

Amendment rights should not depend on whether he

was ejected by a cop or a contractor. He alleges that

private security guards assisted the police in ejecting

him from the area. So he has stated a cognizable claim

against “[p]rivate persons” who “jointly engaged with

state officials in the prohibited action.” United States

v. Price, 383 U.S. 787, 794 (1966).

App-7

III.

All of this should have been amply sufficient to

defeat qualified immunity at this preliminary stage of

the proceedings—and to allow Hershey to proceed to

trial.

After all, the Supreme Court has repeatedly

denied qualified immunity where it found the

constitutional violation so “obvious” that it didn’t

require

the

plaintiff

identify

factually

indistinguishable case law. See, e.g., Hope v. Pelzer,

536 U.S. 730, 741 (2002) (“general statements of the

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”)

(cleaned up) (quoting United States v. Lanier, 520 U.S.

259, 270-71 (1997), and Anderson v. Creighton, 483

U.S. 635, 640 (1987)); see also Taylor v. Riojas, 592

U.S. 7, 8-9 & n.2 (2020) (citing Hope and Lanier)

(summarily reversing our court’s grant of qualified

immunity due to the “obviousness” of the

constitutional violation).

Under Hope and Taylor, it should be enough to

defeat qualified immunity that the alleged

constitutional violation is obvious. And this

“obviousness” principle should be intuitive to all who

treasure our constitutional rights. As then-Judge

Gorsuch put it, “some things are so obviously unlawful

that they don’t require detailed explanation.” Browder

v. City of Albuquerque, 787 F.3d 1076, 1082 (10th Cir.

2015). “[S]ometimes the most obviously unlawful

things happen so rarely that a case on point is itself

an unusual thing.” Id. “[I]t would be remarkable if the

most obviously unconstitutional conduct should be the

App-8

most immune from liability only because it is so

flagrantly unlawful that few dare its attempt.” Id. at

1082-83.

I most certainly agree. To my mind, “[i]t seems

absurd to suggest that the most egregious

constitutional violations imaginable are somehow

immune from liability precisely because they’re so

egregious. It would make a mockery of our rights to

grant qualified immunity just because no one in

government has yet to be abusive enough to commit

that particular violation—and then stubborn enough

to litigate it, not only before a district court, but also

in the court of appeals (or the Supreme Court).”

McMurry, 142 F.4th at 304 (Ho, J., concurring).

But here’s the problem: In our circuit, Hope and

Taylor apply only to the Eighth Amendment claims of

incarcerated criminals. They do not apply to the First

Amendment claims of law-abiding citizens. That’s

because of our decision in Villarreal.

In Villarreal, the majority acknowledged that

Hope and Taylor denied qualified immunity based on

“obvious” and “particularly egregious” constitutional

violations—and did so without requiring a “factspecific[]” presentation of case law. 94 F.4th at 395.

But the majority distinguished those decisions on the

ground that they’re “Eighth Amendment cases” that

establish only a “narrow[] obviousness exception” that

should not apply to obvious violations of the First

Amendment. Id. It claimed support in our earlier en

banc decision in Morgan, 659 F.3d 359. Contra id. at

412, 414 n.30 (Elrod, J., dissenting in part)

App-9

(concluding that Hope applies to obvious First

Amendment violations).

Villarreal has been widely criticized. See

McMurry, 142 F.4th at 305-06 (Ho, J., concurring)

(surveying criticism). And the Supreme Court has

vacated it. See Villarreal v. Alaniz, 145 S. Ct. 368

(2024). But our court has now reinstated it. See

Villarreal v. City of Laredo, 134 F.4th 273, 276 (5th

Cir. 2025) (“[o]ur previous en banc majority opinion is

superseded only to th[e] extent” necessary to respond

to the Supreme Court’s vacatur regarding the

substantive requirements of a First Amendment

retaliation claim).

So it doesn’t matter how obvious a First

Amendment violation might be demonstrated at trial.

To overcome qualified immunity under Villarreal, the

plaintiff must satisfy “the requirement that ‘clearly

established law’ be founded on materially identical

facts.” 94 F.4th at 395.

Hershey has been unable to identify favorable

precedent with the “materially identical facts”

required by Villarreal. Id.

So I’m forced to conclude that qualified immunity

must be granted—to both cops and contractors alike.

See, e.g., Filarsky v. Delia, 566 U.S. 377, 393-94 (2012)

(holding that private individuals temporarily retained

by the government may invoke qualified immunity);

Meadows v. Rockford Hous. Auth., 861 F.3d 672, 678

(7th Cir. 2017) (extending qualified immunity to

private security guards performing governmental

functions).

App-10

In fact, the closest case in recent years is

profoundly unfavorable to people of faith. In Siders,

we rejected a First Amendment challenge to a local

ordinance that prevented citizens from distributing

religious materials on a sidewalk outside a public

amphitheater. See Siders v. City of Brandon, 123 F.4th

293 (5th Cir. 2024).

I strongly disagree with that ruling. See Siders,

130 F.4th at 191 (Ho, J., dissenting from denial of

rehearing en banc). But our court denied rehearing en

banc in that matter by a lopsided vote.2

So I’m bound by Siders. To be sure, Siders was

decided at the preliminary injunction stage. So in

theory, I suppose that Siders could still prevail on the

merits. But regardless of how Siders is ultimately

decided on the merits, it seems difficult to see how

Hershey has stated a “clearly established” violation in

our circuit, when another panel of our court (wrongly)

2 Several members of the court tried to defend the panel ruling

in Siders by recharacterizing it. That is, they theorized that the

challenged ordinance did not actually prevent any citizen from

evangelizing on public grounds. See, e.g., id. at 189 (Oldham, J.,

concurring in the denial of rehearing en banc) (“the ordinance

does not purport to regulate prayer, conversation, t-shirts,

evangelism, or tracts”).

But this rationalization effort is hard to reconcile with what

several members of the court said in the companion case of

Olivier v. City of Brandon, 121 F.4th 511 (5th Cir. 2024). See, e.g.,

id. at 512 (Ho, J., dissenting from denial of rehearing en banc,

joined by six members of the court) (condemning same local

ordinance at same public amphitheater because it prevents “an

evangelical Christian who feels called to share the good news

with his fellow citizens ... from doing so outside the city’s public

amphitheater”).

App-11

found a similar claim unlikely to succeed on the merits

in Siders. See, e.g., Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011) (to find a “clearly established” violation,

“existing precedent must have placed the statutory or

constitutional question beyond debate”); see also Nat’l

Institutes of Health v. Am. Pub. Health Ass’n, 606

U.S. _, 145 S. Ct. 2658, 2663 (2025) (Gorsuch, J.,

concurring) (“Of course, decisions regarding interim

relief are not necessarily conclusive as to the merits

because further litigation may follow. But regardless

of a decision’s procedural posture, its reasoning—its

ratio decidendi—carries precedential weight in future

cases.”) (cleaned up).

Qualified immunity, of course, only applies to the

damages claim against the individual Defendants.

Qualified immunity does not bar claims for injunctive

relief. But Hershey’s appeal appears to be focused only

on damages, and not injunctive relief.

IV.

I turn now to Hershey’s claim that the City of

Bossier failed to train its officers to respect the

constitutional rights of its citizens.

Under Monell v. New York City Dep’t of Soc.

Servs., 436 U.S. 658 (1978), municipalities may be

held liable for constitutional violations. A failure to

train officers to respect constitutional rights,

including those protected by the First Amendment,

“can without question give rise” to this liability. World

Wide Street Preachers Fellowship v. Town of

Columbia, 591 F.3d 747, 756 (5th Cir. 2009).

App-12

To establish Monell liability on a failure to train

theory, a plaintiff must allege that the municipality

had inadequate training procedures and was

deliberately indifferent in adopting them, and that the

failure to train caused the violation in question. See

id.

Although deliberate indifference is usually

inferred “from a pattern of constitutional violations,”

we will also infer it where “the policymaker provides

no training whatsoever with respect to the relevant

constitutional duty.” Garza v. City of Donna, 922 F.3d

626, 637-38 (5th Cir. 2019) (internal quotation marks

omitted).

That’s exactly what Hershey alleges here. His

complaint contends that Bossier City did not train its

police officers and private security personnel that the

park surrounding the Bossier City Arena is public

property, or that citizens are entitled to exercise their

First Amendment rights there. Moreover, at oral

argument, counsel for Hershey agreed that the officers

“received literally zero training” on First Amendment

issues. Oral Arg. at 13:20-13:26. If these facts are true,

they show that the City provided “no training

whatsoever” regarding the application of the First

Amendment to the park. Garza, 922 F.3d at 638. They

are “facts sufficient to show” that the city acted with

deliberate indifference. Johnson v. City of Shelby, 574

U.S. 10, 12 (2014).

Hershey also alleges that the City’s failure caused

the violations of his rights. He contends that the City’s

failure to inform officers that the park was public

property led officers to believe that the park was

private property, and that citizens could therefore be

App-13

ejected without regard to the First Amendment. He

alleges that the officers who removed him from the

park held this belief, and told him he had to leave the

park because it was private property. In sum, he pled

facts sufficient to show that the City’s complete lack of

training was the cause of his injury.

***

I agree that Hershey’s Monell claim against the

City of Bossier may proceed. I reluctantly concur that,

under our court’s current precedent, qualified

immunity disposes of his claims against the individual

Defendants.

App-14

James L. Dennis, Circuit Judge, concurring in part

and dissenting in part:

Richard Hershey peacefully distributed free

pamphlets about Christian vegetarianism on the

public sidewalks outside the city-owned CenturyLink

Center in Bossier City, Louisiana. The surrounding

streets and sidewalks are part of a public park, open

and unrestricted to the public. At the same time,

another person handed out commercial advertisement

cards for an internet radio station. Two City police

officers—Deputy City Marshal Bobby Gilbert and

Officer Daniel Stoll—and three Center security

guards—David Smith, Tyshon Harvey, and Eugene

Tucker—approached only Hershey and told him to

stop leafletting. They waved handcuffs at Hershey and

warned that if he continued, they would arrest him.

Hershey attempted to explain that he had a legal right

to hand out his literature, but Deputy Marshal Gilbert

cut him off and told him that he was on private

property, he had to leave or face arrest, and he could

not return.

As Hershey was leaving, he inquired about the

commercial literature being distributed by the person

working for the internet radio station. Security guard

Harvey responded that Hershey’s literature had not

been “approved” by the Center, and that Hershey had

to submit his literature in advance. When Hershey

repeated his question, Harvey said he did not know

whether the radio station’s commercial literature had

been approved, but because Hershey’s had not, he

needed to leave. The officers and security guards then

“used their command presence to assist in the removal

of Hershey from the park.” Hershey left without

App-15

handing out more literature and has not returned

because he fears arrest and jail. The officers did not

remove the other leafleteer.

Hershey sued the City, the officers, and security

guards, alleging that they violated his First

Amendment rights by evicting him. The district court

dismissed his claims at the Federal Rule of Civil

Procedure 12(b)(6) stage, ruling that (1) the officers

were entitled to qualified immunity because Hershey

failed to show that the law clearly established his right

to distribute literature free from viewpoint

discrimination in a traditional public forum; (2) the

security guards did not qualify as state actors under

42 U.S.C. § 1983; and (3) Hershey did not allege a

municipal policy or custom that could make the City

liable under Monell.3

In my view, the district court erred in dismissing

Hershey’s Monell failure to train claim. Hershey

sufficiently pleaded facts to show the City was

deliberately indifferent to the violation of his First

Amendment rights when it provided no training

whatsoever as to an officer’s duties under the First

Amendment. We reverse on this claim, described more

fully in Part A below.

For the officers and security guards, Judge

Richman and Judge Ho affirm across the board. Judge

Richman’s opinion (the PR Opinion) reasons that

Hershey failed to meet the clearly established prong of

the qualified immunity analysis against the police

officers and failed to demonstrate the security guards

3 Monnell v. New York City Dep’t of Soc. Servs., 436 U.S. 658

(1978).

App-16

were acting under the color of state law for purposes

of § 1983. I respectfully dissent. Because the law

clearly established Hershey’s right to leaflet in a

traditional

public

forum

without

viewpoint

discrimination, qualified immunity is inappropriate.

See Part B. And Hershey plausibly alleged that the

security guards acted under color of state law when

they exercised the public function of policing. See Part

The district court erred by dismissing Hershey’s

Monell failure to train claim against the City. “A

municipality’s failure to train its police officers can

without question give rise to § 1983 liability.” World

Wide Street Preachers

Fellowship v. Town of Columbia, 591 F.3d 747,

756 (5th Cir. 2009) (citations omitted). To prevail on a

“failure to train theory,” a plaintiff must demonstrate

that (1) the municipality’s training procedures were

inadequate; (2) the municipality was deliberately

indifferent in adopting its training policy; and (3) the

inadequate training policy directly caused the

violations in question. Id.

Hershey has sufficiently alleged the first

element—that the City’s training procedures were

inadequate. The City failed to train its officers that the

Center and its surrounding area were public property,

that the adjacent streets and sidewalks were a

traditional public forum, and, therefore, that citizens

were entitled to exercise their free speech rights there.

Because of this failure to train, the officers mistakenly

believed that the Center was private property. The

first element is satisfied.

App-17

Under the second element, “[d]eliberate

indifference may be inferred either from a pattern of

constitutional violations or, absent proof of a pattern,

from ‘showing a single incident with proof of the

possibility of recurring situations that present an

obvious potential for violation of constitutional

rights.’” Garza v. City of Donna, 922 F.3d 626, 637-38

(5th Cir. 2019) (emphasis added) (citation modified).

“The latter inference ‘is possible only in very narrow

circumstances’ because we have ‘generally reserved

the single-incident method ... for cases in which the

policymaker provides no training whatsoever with

respect to the relevant constitutional duty, as opposed

to training that is inadequate only as to the particular

conduct that gave rise to the plaintiff’s injury.’” Id. at

638 (emphasis added) (citation modified).

Hershey’s allegations fall within the latter

“narrow circumstances” because he alleged the City

completely failed to train officers on their First

Amendment duties. The PR Opinion characterizes the

failure to train claim here as a failure to train “in one

limited area”—the particular conduct giving rise to

the plaintiff’s injury—rather than a complete failure

to train officers on the First Amendment. But this

misconstrues the allegations in Hershey’s complaint.

Hershey alleged the City “did not have any policy ...

regulating speech activities protected by the First

Amendment.” Hershey alleged the City failed to train

its police officers and private security personnel of

citizens’ First Amendment rights on public property,

including the area surrounding the Center. At oral

argument, counsel for Hershey confirmed that the

officers “received literally zero training” on First

Amendment issues. The complaint backs this up.

App-18

Taking these facts as true, the City provided “no

training

whatsoever”

regarding

the

First

Amendment’s application to speech in traditional

public forums. See Garza, 922 F.3d at 638. These are

“facts sufficient to show” that the City was

deliberately indifferent to the deprivation of Hershey’s

First Amendment rights. Johnson v. City of Shelby,

574 U.S. 10, 12 (2014).

The PR Opinion, relying on Garza, argues that the

need for training was not “obvious” because “this is a

case in which only a few individuals violated” First

Amendment rights “on one occasion,” and there is “no

evidence” to infer any subsequent incidents relevant

to the City’s failure to train. But Garza was decided on

summary judgment with the benefit of a developed

record. And the failure to train claim in Garza was

based on a theory of inadequate training in a jail,

rather than a theory of no officer training whatsoever

on the First Amendment. At the motion-to-dismiss

stage, Hershey has alleged that the City’s complete

lack of training directly caused the First Amendment

violation in question. At this stage, entirely failing to

train officers about their duties under the First

Amendment will predictably and obviously result in

recurring violations of citizens’ First Amendment

rights. This is sufficient to allege deliberate

indifference.

Finally, Hershey plausibly alleged that the City’s

failure to train caused the violation at issue. The City’s

failure to train officers that the park was a public

forum led officers to believe that the park was private

property and that citizens could be ejected without

violating their First Amendment rights. Hershey also

App-19

alleged that the officers who removed him from the

park held this belief and told him he had to leave the

park because it was private property. Hershey has

pleaded facts sufficient to show that the City’s

complete lack of training was the cause of his injury.

Hershey has stated a plausible failure to train

claim against the City, and the district court erred in

dismissing his Monell claim.

I depart from the majority on all remaining

issues, beginning with the grant of qualified immunity

to the police officers at the Rule 12(b)(6) stage.

Qualified immunity requires two inquiries: first,

whether the officer violated a constitutional right; and

second, whether that right was clearly established at

the time of the misconduct. Morrow v. Meachum, 917

F.3d 870, 874 (5th Cir. 2019). The PR Opinion

collapses the inquiries to ultimately conclude Hershey

cannot meet the clearly established prong. But taking

the allegations in the complaint as true, as we must,

Hershey

satisfies

both

prongs:

viewpoint

discrimination, regardless of forum, violates the First

Amendment, and the right to be free from viewpoint

discrimination is clearly established.

Because the law governing speech depends on the

forum, the threshold question is whether Hershey

leafletted in a traditional public forum. Public

sidewalks and parks fall squarely into that category.

Minn. Voters Alliance v. Mansky, 585 U.S. 1, 11 (2018).

Courts must assess the property at issue based on its

particular facts. Brister v. Faulkner, 214 F.3d 675,

681-83 (5th Cir. 2000). “The location and purpose of a

publicly owned sidewalk is critical” to forum analysis.

App-20

United States v. Kokinda, 497 U.S. 720, 729-30 (1990).

We also consider whether the property is

“indistinguishable from ... [a] city sidewalk.” Brister,

214 F.3d at 683. Because forum status turns on factual

circumstances, it rarely lends itself to resolution on a

Rule 12(b)(6) motion. See Stewart v. D.C. Armory Bd.,

863 F.2d 1013, 1018 (D.C. Cir. 1988).

The PR Opinion reasons that sidewalk status was

not clearly established, relying on Powell v. Noble, 798

F.3d 690, 700 (8th Cir. 2015), which treated

fairground sidewalks as a limited public forum. But

Powell arose on appeal from a preliminary injunction,

where the court conducted a fact-intensive review of

congestion, signage, police presence, and fencing at

the fair. Id. That context does not exist here. The PR

Opinion nonetheless imports Powell’s fact-finding into

this Rule 12(b)(6) posture, citing contractual

arrangements and event management at the Center.

Hershey, however, distributed literature on a

public sidewalk within a public park, where public

streets and sidewalks led directly to the Center, and

no gates or restrictions blocked access. The district

court agreed those allegations sufficed to plead that

the sidewalk qualifies as a traditional public forum,

and neither party disputes that point. At this stage,

we must take Hershey’s allegations as true. Brister,

214 F.3d at 683. By discounting them, the PR Opinion

departs from our Rule 12(b)(6) standard.

The second step asks what kind of restriction

Hershey faced. The officers stopped him from

distributing religious literature while allowing

another individual to distribute commercial handbills.

Harvey, the security guard, told Hershey that leaflets

App-21

required advance approval, but admitted he did not

know whether the other leafleteer had approval. The

district court correctly recognized that Hershey’s

allegations raised a plausible inference of viewpoint

discrimination. Neither party disputes that

characterization.

The PR Opinion instead faults Hershey for not

alleging what happened after he left—for example,

whether the other leafleteer stayed for a “substantial

period of time.” But Rule 12(b)(6) requires only wellpleaded allegations of unequal treatment, which

Hershey provided. His complaint plausibly alleged

that the officers engaged in viewpoint discrimination

in violation of the First Amendment.

The district court nevertheless held that the right

was not clearly established. That conclusion was error.

The Supreme Court and this court have long

recognized that viewpoint-based restrictions violate

the First Amendment in any forum. See, e.g., Chiu v.

Plano I.S.D., 260 F.3d 330, 350 (5th Cir. 2001); Hobbs

v. Hawkins, 968 F.2d 471, 481 (5th Cir. 1992);

Pleasant Grove City v. Summum, 555 U.S. 460, 469

(2009). We have also refused to grant qualified

immunity at the motion-to-dismiss stage when

plaintiffs plausibly alleged viewpoint discrimination.

See Biggers v. Massingill, No. 23-11023, 2025 WL

429974, at *2-3 (5th Cir. Feb. 7, 2025).

The PR Opinion leans on Morgan v. Swanson, 755

F.3d 757 (5th Cir. 2014), which warned that the

general prohibition against viewpoint discrimination

does not always give officials sufficient notice. But

Morgan involved the interplay of the Establishment

Clause, the Free Speech Clause, and school speech—a

App-22

uniquely complex setting. Id.; see also Morgan v.

Swanson, 659 F.3d 359, 364 (5th Cir. 2011) (en banc).

This case is simpler: Hershey peacefully distributed

free Christian literature on a public sidewalk while

another individual handed out commercial flyers. The

officers forced Hershey to leave but allowed the other

to continue. Construing his allegations in his favor,

Hershey pleaded a straightforward claim of viewpoint

discrimination in a traditional public forum.

Qualified immunity does not protect blatant

viewpoint discrimination. Any reasonable officer

would have understood that ejecting Hershey while

permitting another leafleteer to remain violated the

First Amendment. Anderson v. Creighton, 483 U.S.

635, 640 (1987). Because Hershey has alleged both a

constitutional violation and the violation of a clearly

established right, reversal of the district court’s grant

of qualified immunity is warranted.

I also disagree that security guards Smith,

Harvey, and Tucker were not acting under the color of

state law when they removed Hershey from the public

sidewalks outside the Center. Policing free speech in a

traditional public forum is a traditional and exclusive

function of the state or municipal government—such

that it constitutes state action.

Smith, Harvey, and Tucker were employees of

ASM Global, a private company, not the state.

“[M]ere[] private conduct, no matter how

discriminatory or wrongful,” is generally excluded

from § 1983’s reach, unless the private conduct is

fairly attributable to the state. Richard v. Hoechst

Celanese Chem. Grp., 355 F.3d 345, 352 (5th Cir.

App-23

2003). There are three tests that provide exceptions to

the general rule: the public function test, the nexus

test, and the joint action test. Cornish v. Corr. Servs.

Corp., 402 F.3d 545, 549-50 (5th Cir. 2005). Relevantly

here, “[u]nder the public function test, a ‘private entity

may be deemed a state actor when that entity

performs a function which is traditionally the

exclusive province of the state.’” Bass v. Parkwood

Hosp., 180 F.3d 234, 241-42 (5th Cir. 1999) (quoting

Wong v. Stripling, 881 F.2d 200, 202 (5th Cir. 1989));

Manhattan Cmty. Access Corp. v. Halleck, 587 U.S.

802, 809 (2019) (“[T]o qualify as a traditional,

exclusive public function within the meaning of our

state-action precedents, the government must have

traditionally and exclusively performed the

function.”).

This case involves officers regulating free speech

in a traditional public forum through policing, which

is an exclusive function of the state or municipal

government. If, as in this case, that responsibility is

delegated to a private entity, the private actors’

conduct remains state action. Foley v. Connelie, 435

U.S. 291, 297 (1978) (describing the “police function”

as “a description of one of the basic functions of

government”); Brown v. Maryland, 25 U.S. 419, 443

(1827) (“[P]olice power, which unquestionably

remains, and ought to remain, with the States.”).

Several circuits have determined private security

guards were state actors when delegated exclusive

police powers. Romanski v. Detroit Ent., LLC, 428 F.3d

629, 637 (6th Cir. 2005); see also Payton v. RushPresbyterian, 184 F.3d 623, 630 (7th Cir. 1999).

App-24

The security guards, in overseeing City property,

were for all purposes acting as de facto police officers.

Harvey, Smith, and Tucker surrounded Hershey

during the initial encounter alongside the police

officers, and they used their command presence to

remove Hershey from the scene. Harvey was the one

explaining the allegedly unconstitutional speech

regulations to Hershey as he was ejected, not a police

officer. The actions taken by the police officers and the

security guards were one and the same.

Further, Hershey alleged that the City employs a

policy of allowing their officers and security guards to

“use their unfettered discretion to arbitrarily and

capriciously remove individuals who are peacefully

exercising their First Amendment rights,” because the

Center “does not have any written or official policy

prohibiting, regulating or licensing the distribution of

leaflets on its grounds.” In allowing the security

guards to use their discretion to decide which types of

speech are permissible, the City has empowered

private security guards who patrol its property to

regulate speech with no oversight.

Taking all well-pleaded facts as true and in the

light most favorable to him, Hershey has sufficiently

alleged that the individual security guards were state

actors under the public function test.4 The district

court erred in dismissing Hershey’s § 1983 claims

against Smith, Harvey, and Tucker.

4 A wholly different version of the facts may be presented as the

case progresses to trial. But taking all well-pleaded facts as true

and in the light most favorable to him, Hershey has sufficiently

alleged that the individual security guards were state actors at

this juncture.

App-25

***

In sum, the panel affirms the district court’s

judgment in part and reverses it in part. As to

Hershey’s Monell claim, Judge Ho and I hold that the

district court reversibly erred. Judge Richman

dissents. As to the district court’s dismissal of

Hershey’s claims against the City officers and Center

security guards, Judges Richman and Ho affirm. I

respectfully dissent as to those issues.

App-26

Priscilla Richman, Circuit Judge, concurring in part

and dissenting in part:

With great respect, the panel majority radically

expands Monell1 municipal liability in at least two

unprecedented and unwarranted respects: (1) by

sanctioning a “gotcha” claim based on “failure to train

at all”; and (2) by holding that a municipality is liable

for failure to train security guards hired by a private

entity that leases and operates property owned by the

municipality.

First: This is a single-incident case. It involves

nuanced First Amendment law. Instead of adhering to

the boundaries that limit the “very narrow

circumstances” in which courts will permit an

inference of deliberate indifference to be drawn from

“an obvious potential for violation of constitutional

rights,”2 the separate opinions of Judge Dennis and

Judge Ho open the door to permit a broad swath of

failure-to-train claims to defeat a municipality’s

qualified immunity.

The Supreme Court has made clear that

municipal liability based on Monell requires

deliberate indifference.3 Deliberate indifference may

be inferred in failure-to-train-at-all cases “in a narrow

range of circumstances” if the violation of federal

rights is “a highly predictable consequence of a failure

to equip law enforcement officers with specific tools to

1 Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658

(1978).

2 Garza v. City of Donna, 922 F.3d 626, 637-38 (5th Cir. 2019).

3 City of Canton v. Harris, 489 U.S. 378, 389 (1989).

App-27

handle recurring situations.”4 The Supreme Court

emphasized that whether such a consequence is

“obvious” depends on “[t]he likelihood that the

situation will recur and the predictability that an

officer lacking specific tools to handle that situation

will violate citizens’ rights.”5

There is no allegation in this case that viewpoint

discrimination by a Bossier City law enforcement

officer against someone engaging in free exercise of

religion or free speech has ever previously occurred. It

is not highly predictable that law enforcement officers

would have recurring encounters with individuals

paid to distribute literature outside a large, ticketed

event and that, absent training about what is “public”

versus

“private”

property

and

viewpoint

discrimination, those officers would discriminate

based on the content of the literature being

distributed. Judge Dennis’s and Judge Ho’s opinions

say that if a city fails to train “at all” regarding the

First Amendment, then it is “obvious” that a

constitutional violation will occur. This not only

permits liability for what may be, at most, mere

negligence, it essentially imposes strict liability for a

failure to train.

Second: Perhaps even more remarkably, Judge

Dennis’s and Judge Ho’s opinions say a municipality

can be liable for failure to train private security

guards who are hired by a private entity for an event

at an arena it has leased from the municipality and

4 Bd. of Cnty. Commissioners of Bryan Cnty. v. Brown, 520 U.S.

397, 409-410 (1997).

5 Id.

App-28

operates. Hershey has alleged that Bossier City

should have trained private security personnel who

were engaged for a large concert event and that

Bossier City is liable for that failure to train. The

panel’s majority opinions allow this claim to proceed

on the basis that it was obvious Bossier City needed to

train security guards hired by a third party, even

though the law is far from clear that a city has a duty

to train security guards.

As to the liability of the individual defendants in

this case (Bossier City law enforcement officers and

private security guards), Judge Ho and I agree that

the district court did not err in dismissing the claims

against them, though our views as to why are not

congruent.

I would affirm the district court’s judgment in all

respects. I therefore concur in part and dissent in part.

The City of Bossier City, Louisiana owns a multipurpose arena (which I will call the Center), formerly

known as CenturyLink Center, and also Bossier City

Arena. It is currently known as Brookshire Grocery

Arena. The Center has been the site of sporting events,

such as NBA and NCAA basketball games, and an

NHL hockey game.6 The forum has hosted well-known

entertainers including, but not limited to, Paul

McCartney, Elton John, Taylor Swift, Cher, Carrie

See

Brookshire

Grocery

Arena,

Wikipedia,

https://en.wikipedia.org/wiki/Brookshire_Grocery_Arena

(last

visited October 6, 2025).

App-29

Underwood, Justin Timberlake

Lambert, to name a few.7

and

Miranda

The Center is located in a public park. At the time

relevant to this litigation, the Center was managed by

ASM Global, a private entity. ASM Global leased both

the interior space and outdoor areas of the Center for

events. On February 28, 2020, the Center hosted a

Christian rock concert known as Winter Jam. Guests

paid to attend.

Hershey’s Amended Complaint alleges that he is

a vegetarian and that on the day of the Winter Jam

concert, he was distributing “free, educational,

noncommercial, religious booklets on behalf of a

nonprofit organization named the Christian

Vegetarian Association.” He is paid “by various

nonprofit organizations for his advocacy and

distribution of literature.” He further alleges that he

was peacefully engaging in leafleting activity when he

was approached by Bossier City Deputy Marshal

Bobby Gilbert, Bossier City police officer Daniel Stoll,

and three private security agents (David Smith,

Tyshon Harvey, and Eugene Tucker) employed by

ASM Global.

Hershey’s Amended Complaint asserts he was

told by Deputy Marshal Gilbert that he was on private

property and that “he had to leave, that he would be

arrested if he did not leave.” Hershey alleges that

another person was handing out cards for a radio

station, for a commercial purpose, but that person had

not been asked to leave when Hershey was approached

by the Bossier City officers and ASM Global security

7 Id.

App-30

guards. Hershey says he was told he had to leave the

area because he had not obtained authorization to

distribute booklets ahead of time. Hershey alleges he

inquired about the person distributing cards for a

radio station and was told essentially, “We don’t know

whether he [that other person] has permission.”

Hershey left the premises and was not arrested.

He brought this suit, alleging § 1983 claims

against the City law enforcement officers, the private

security guards, and Bossier City. Hershey asserts in

his briefing that he was subjected to viewpoint

discrimination. He also alleges that each of the ASM

Global security guards was “a willing participant in

joint action with state actors.”

In framing his claims, Hershey repeatedly alleges

that the Center and the areas surrounding it are

public property, or in the alternative, that the

disputed area is a designated public forum. Hershey

asserts in his briefing that he was asked to leave based

on his or the leaflets’ viewpoint. He further alleges

that Bossier City failed to train its officers and ASM

Global’s security guards about the public nature of the

property

and

attendant

First

Amendment

considerations. He asserts that the Bossier City

officers and private security personnel whom he

encountered engaged in viewpoint discrimination and

should be liable because Hershey was on public, not

private, property.

Hershey also alleges that Bossier City “has a longstanding custom of allowing police officers, employees

and/or officials of CenturyLink Center to use their

unfettered discretion to arbitrarily and capriciously

remove individuals who are peacefully exercising their

App-31

First Amendment rights from the CenturyLink

property.” However, he does not allege that Bossier

City officials or officers or private security personnel

have ever removed anyone from the Center or the

surrounding property who was peacefully exercising

their First Amendment rights, other than himself.

Almost a year after the incident in question,

Hershey’s attorney contacted ASM Global and was

told in an email, which is attached as an exhibit to

Hershey’s Amended Complaint, that ASM Global’s

policies regarding the Center are as follows:

If the public would like to engage in a peaceful

protests [sic] or distribution of pamphlets,

they are free to do so as long as it does not

interfere with the safe ingress or egress of

guests. This is especially important when the

facility and property has been exclusively

leased for an event.

In addition, CenturyLink Center has

instituted a CODE OF CONDUCT which

must be adhered to while on the premises.

This Code of Conduct (copy inserted) is posted

on our website under Arena Info.

Hershey’s counsel had also asked for an “incident

report” regarding the day Hershey was told to leave

the area near the Center, which was February 28,

2020. The author of the ASM Global email responded:

I did see an incident report from 2/28/2020,

that states “Security Observed two

individuals handing out pamphlets in the

Parking Lots A & D. The individuals became

argumentative and Security called for Bossier

City Police for assistance.” It further states

App-32

the Pamphleteers then left the property. (It

does not state they were removed.)

I, myself, remember this incident, as I heard

the call over the radio for police assistance

and went to the area. When I arrived, I saw

police talking with two people. I did not

interject. Our security guards (ASM Global

employees) told me that two people with

pamphlets were shouting at our guests in line

that they were going to Hell for attending this

event, and that it made a few “children” cry.

It is my understanding that the Police asked

the pamphleteers to stop upsetting the guests

and that they left of their own accord.

I see no other documentation or incidents

pertaining to the subject of your request.

It is unclear whether the “incident report” in this

email or the events recounted in that email involved

Hershey.

As the magistrate judge’s report reflects, this is

not the first time Hershey has had an encounter that

has given rise to First Amendment litigation.8

Hershey is a serial plaintiff.

8 See ROA.130 n.1, which reflects:

Hershey v. Jasinski et al, United States District Court,

Western District of Missouri, St. Joseph Division,

Docket No. 20-06088-CV-WBP; (2) Hershey v. Turner,

No. CIV-19-344-SPS, 2020 WL 1932911 (E.D. Okla.

Apr. 21, 2020); (3) Hershey v. Kansas City Kansas

Cmty. Coll., No. 2:16-CV-2251-JTM, 2017 WL 661581

(D. Kan. Feb. 17, 2017); (4) Hershey v. Goldstein, 938

F. Supp. 2d 491 (S.D.N.Y. 2013); (5) Hershey v. MultiPurpose Civic Ctr. Facility Bd. for Pulaski Cty.,

App-33

The defendants moved to dismiss the suit. The

magistrate judge prepared a detailed report and

recommendations, recommending dismissal based on

qualified immunity and for failure to state a claim.

The district court agreed with those recommendations

and dismissed the suit.

Hershey’s first contention on appeal is that

Marshal Gilbert and Officer Stoll are not entitled to

qualified immunity because the right to be free from

viewpoint discrimination was clearly established on

February 20, 2020, the date the incident in question

occurred. The magistrate judge concluded otherwise,

Arkansas, No. 4:18-CV- 00476 BSM, 2020 WL 4741900

(E.D. Ark. Aug. 14, 2020);(6) Hershey v. Walker, No.

4:12CV01603 ERW, 2013 WL 657873 (E.D. Mo. Feb.

22, 2013); (7) Hershey v. Thomas et al, United States

District Court, Eastern District of Arkansas, Central

Division, Docket No. 4:20-cv-01397-KGB; (8) Hershey

v. Junior College District of St. Louis-St. Louis County

et al, United States District Court, Eastern District of

Missouri, Docket No. 4:10-cv-1116; (9) Hershey v. The

Curators of University of Missouri et al, United States

District Court, Eastern District of Missouri, Docket

No. 4:16-cv-1229; (10) Hershey v. Junior College

District of Central Southwest Missouri et al, United

States District Court, Western District of Missouri,

Docket No. 6:14-cv-3375; (11) Hershey v. The Curators

of the University of Missouri, et al, United States

District Court, Western District of Missouri, Central

Division, Docket No. 2:20-cv-04239-BCW; (12) Hershey

v. Oldham, et al, United States District Court, Middle

District of Tennessee, Docket No. 2:20-cv-0012; (13)

Hershey v. Oldham, et al, United States District Court,

Middle District of Tennessee, Docket No. 2:20-cv-0264.

App-34

and after a conducting a de novo review, the district

court agreed with the magistrate judge.

Hershey maintains that based on First

Amendment law, the Center is a traditional public

forum or, in the alternative, that it is a designated

public forum. The magistrate judge’s report reasoned

that only the sidewalks outside the arena are at issue,

and that some decisions have held that sidewalks

outside an arena are either nonpublic or limited

forums. Ultimately, the magistrate judge concluded

Plaintiff does not point to a single decision

from any court that has held, before or after

the date of this incident, that an officer

violated the rights of a leafleteer who was

removed from a similar arena premises. The

discussions above demonstrate that there are

many nuances to First Amendment claims of

this nature, beginning with questions about

the category of the forum and continuing

through the reasonableness of various

regulations or restrictions. Very little about

this field of law is clearly established.

I agree with the magistrate judge and the district

court.

The Supreme Court has explained that “[t]he

standards that we apply to determine whether a State

has unconstitutionally excluded a private speaker

from use of a public forum depend on the nature of the

forum.”9 The Eighth Circuit has explained, for

example, that “[l]imited public forums (sometimes

called nonpublic forums) include public properties

9 Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001).

App-35

that are not by tradition or designation public forums

but have been opened by the government for limited

purposes, communicative or otherwise.”10 That court

further explained that “[t]he government, no less than

a private owner of property, has the power to preserve

the property under its control for the use to which it is

lawfully dedicated.”11 “‘[T]he location and purpose of a

publicly owned sidewalk is critical to determining

whether such a sidewalk constitutes a public

forum.’”12 The Eighth Circuit concluded that

sidewalks serving the purpose of admitting thousands

of people to a state fair were a limited public forum.13

It held that restrictions on speech in a limited public

forum must be reasonable and viewpoint neutral.14 It

further held that the plaintiff in that case was not

likely to prevail on his claim that his First

Amendment rights were violated when he was

prohibited from holding a pole with a poster-sized sign

10 Powell v. Noble, 798 F.3d 690, 699 (8th Cir. 1997) (citing

Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802

(1985)).

11 Id. at 699-700 (quoting United States v. Grace, 461 U.S. 171,

178 (1983)).

12 Id. (quoting United States v. Kokinda, 497 U.S. 720, 728-29

(1990) (plurality opinion)).

13 Id. at 700.

14 Id. (citing Christian Legal Soc’y Chapter of the Univ. of Cal.,

Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 679 (2010)

(“Recognizing a State’s right to preserve the property under its

control for the use to which it is lawfully dedicated, the Court has

permitted restrictions on access to a limited public forum ... with

this key caveat: Any access barrier must be reasonable and

viewpoint neutral.”)).

App-36

on it while on sidewalks near entrances to a state

fair.15

Judge Dennis’s opinion notes that the Eighth

Circuit’s decision in Powell was reached only after the

court held a preliminary injunction hearing and

“conducted a fact-intensive review of congestion,

signage, police presence, and fencing at the fair.”16 It

was only then, Judge Dennis’s opinion posits, that the

court was able to conclude that the law was not clearly

established as to the character, for First Amendment

purposes, of the area in which the plaintiff had

displayed his sign.17 But this discussion exemplifies

the whole point of qualified immunity. First, Powell

was, as noted, a preliminary injunction case. Qualified

immunity is not a defense to injunctive relief. The

present case is a suit for damages. Second, we do not

hold officers like the individual defendants in the

present case liable for damages after we conduct a

hearing to determine, in hindsight, whether they

property they were policing was a public forum. Our

inquiry is whether the law was clearly established

when the defendant acted or failed to act. Third, we

cannot expect officers, even those trained in First

Amendment law, to know whether a given area near

an arena being used in a particular way at a given

time is or is not a public forum given the uncertainties

of the law in this area.

Hershey proceeds on the basis that the law was

(and is) clearly established that the sidewalk

15 Id. at 701-02.

16 Ante at 17.

17 Id.

App-37

surrounding the Center was a public forum even

though the city-owned arena was managed by a

private entity and that private entity oversaw the

concert that was ongoing at the time of the incident at

issue. There is evidence, from an exhibit to the

Amended Complaint, that the outside of the Center as

well as the inside can be leased for events. Hershey

alleges that the sidewalks just outside the concert

were public, but he does not consider what contractual

arrangements ASM Global may have had in place with

the concert organizers.

Several courts have recognized that public

property may change its character for purposes of

First Amendment forum analysis based on temporary

uses. In considering the public sidewalks used for the

Iowa State Fair, the Eighth Circuit concluded that the

public property “should be considered a limited public

forum, at least during the 11 days each year when the

Iowa State Fair is underway.”18 The Supreme Court

similarly found that the Minnesota State Fair “is a

limited public forum in that it exists to provide a

means for a great number of exhibitors temporarily.”19

Our court recently addressed a factual situation

that is similar to the one presented in this case. In

Siders v. City of Brandon, Mississippi,20 a Christian

evangelist challenged a city ordinance that restricted

protesting and demonstrating on a sidewalk outside a

city-owned and operated public amphitheater during

18 Powell, 798 F.3d at 700 (emphasis added).

19 Heffron v. Int’l Soc. For Krishna Consciousness, Inc., 452 U.S.

640, 650-51 (1981) (emphasis added).

20 123 F.4th 293 (5th Cir. 2024).

App-38

time periods surrounding a live, ticketed concert

event.21 In that case, we determined the sidewalk

outside the amphitheater to be a traditional public

forum.22 We nevertheless held that the plaintiff was

not likely to succeed on the merits of the claim that the

ordinance violated First Amendment rights. As to

whether the sidewalks at issue were a traditional

public forum, Siders is distinguishable from the

instant case because here a private entity was

involved in managing the Center. Additionally, given

that the Supreme Court has indicated that sidewalks

on public property are not automatically public

forums23 and that the district court considered several

cases concerning the forum status of spaces

surrounding arenas that do not speak in unison,24 the

forum status of the space in question was not clearly

established. Hershey has not overcome the qualified

immunity defense.

21 Id. at 296.

22 Id. at 303.

23 See, e.g., Kokinda, 497 U.S. at 730 (noting it “is not [] settled

doctrine” to “designate all sidewalks open to the public as public

fora”); Burson v. Freeman, 504 U.S. 191, 216 (1992) (Scalia, J.,

concurring) (“‘Streets and sidewalks’ are not public forums in all

places.”) (emphasis omitted).

24 See Ball v. City of Lincoln, 870 F.3d 722, 736 (8th Cir. 2017)

(holding a plaza area outside of a city-owned arena to be a

nonpublic forum); Pomicter v. Luzerne Cnty. Convention Ctr.

Auth., 939 F.3d 534, 537 (3d Cir. 2019) (analyzing concourse

outside of a publicly-owned arena as a nonpublic forum). But see

Brister v. Faulkner, 214 F.3d 675, 683 (5th Cir. 2000) (affirming

that public university property between an arena and a city

sidewalk is a traditional public forum).

App-39

I also note that in the district court, the Bossier

City defendants argued that Hershey had failed to

allege facts to support his claim that the officers

discriminated against him on the basis of viewpoint.

They pointed out that Hershey failed to allege that the

officers looked at the content of his leaflets or

otherwise knew about the content. Nor did he allege

the officers heard any statements Hershey made while

passing out leaflets. As to the alleged differing

treatment accorded the person who was distributing

cards for a radio station, Hershey says he was told he

had to leave the premises because he had not obtained

authorization ahead of time to distribute leaflets

outside of and during a large concert that patrons paid

to attend. Hershey inquired about the person

distributing cards and was told essentially, “We don’t

know whether he has permission.” Hershey left the

premises and does not allege what occurred

thereafter.

Hershey does not allege that the officer or security

guard who asked him to leave subsequently failed to

ascertain whether the other individual had prior

authorization. Hershey does not allege that after he

left, the other person was permitted to continue to

hand out cards for any substantial period of time even

though he did not have prior authorization. The

Amended Complaint depends on speculation to draw

an inference that Hershey was singled out based on

the content of his literature. The Amended Complaint

does not sufficiently allege content or viewpoint

discrimination.

Even assuming Hershey could allege that he was

treated differently from the person distributing cards

App-40

for the radio station, the magistrate judge and district

court correctly concluded that the law regarding

viewpoint discrimination is not clearly established in

circumstances like those in the present case.

“The First Amendment provides that ‘Congress

shall make no law ... abridging the freedom of

speech ....’ There is no doubt that as a general matter

peaceful picketing and leafletting are expressive

activities involving ‘speech’ protected by the First

Amendment.”25 “It is also true that ‘public places’

historically associated with the free exercise of

expressive activities, such as streets, sidewalks, and

parks, are considered, without more, to be ‘public

forums.’”26 “In such places, the government’s ability to

permissibly restrict expressive conduct is very limited:

the government may enforce reasonable time, place,

and manner regulations as long as the restrictions ‘are

content-neutral, are narrowly tailored to serve a

significant government interest, and leave open ample

alternative channels of communication.’”27 However, if

an area is a limited public forum or a nonpublic forum,

“[t]he government can restrict access ... as long as the

restrictions are reasonable and [are] not an effort to

suppress expression merely because public officials

oppose the speaker’s view.”28

25 United States v. Grace, 461 U.S. 171, 176 (1983) (quoting U.S.

Const. amend. I).

26 Id. at 177.

27 Id. (quoting Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n,

460 U.S. 37, 45 (1983)).

28 Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 347 (5th Cir.

2001) (alteration in original) (quoting Ark. Educ. Television

Comm’n v. Forbes, 523 U.S. 666, 677-78 (1998)).

App-41

It is, of course, “axiomatic that the government

may not regulate speech based on its substantive

content or the message it conveys.”29 But that

principle is a very general one. It does not clearly

establish what the First Amendment prohibits or

requires of law enforcement officers when they are

policing an area in circumstances similar to those

existing at the Center during the Winter Jam concert.

Our court’s decision in Morgan v. Swanson30 is

instructive on this point. In Morgan, the plaintiff

argued that “his right to distribute religious material

is clearly established because ‘regardless of forum,

viewpoint discrimination regarding private speech is

unconstitutional.’”31 Our court acknowledged that

while this is “generally true,” that proposition was too

broad to denote a clearly established right.32 The

Morgan decision explained, “such a broad

generalization is exactly the kind of proposition that

will not suffice for the purposes of qualified immunity

analysis, as it simply does not provide the official with

any sense of what is permissible under a certain set of

facts.”33 Our court concluded, “[f]or example, the

nearly universal prohibition against viewpoint

discrimination does not inform an official as to what,

precisely, constitutes viewpoint discrimination.”34 The

29 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,

828 (1995).

30 755 F.3d 757 (5th Cir. 2014).

31 Id. at 761.

32 Id.

33 Id.

34 Id.

App-42

Supreme Court has “repeatedly told courts ... not to

define clearly established law at a high level of

generality.”35

Hershey addresses Morgan in his briefing. He

says: “Morgan ... involved the governmental actors

attempting to balance competing, significant

constitutional

interests,”

making

the

case

“inapplicable” to this one. He characterizes Morgan’s

outcome as the result of the “special First Amendment

context” present in public schools.

But our analysis in Morgan did not turn on the

complexity of the context. Rather than focusing on any

“special First Amendment context,” Morgan hinged on

whether the official was on notice that their conduct

was unconstitutional.36 Under Supreme Court

precedent, “‘[t]he dispositive question’ ... is whether

the violative nature of [the] particular conduct is

clearly established..”37

Hershey relies on the statement in Chiu v. Plano

Independent School District38: “It is well settled that

viewpoint discrimination is a clearly established

violation of the First Amendment in any forum.”39 Our

decision in Morgan considered Chiu “inapposite”

because of factual dissimilarities and concluded:

“[W]hile Chiu may indeed be relevant in discerning

35 Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam) (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).

36 Morgan, 755 F.3d at 760.

37 Cunningham v. Castloo, 983 F.3d 185, 191 (5th Cir. 2020)

(quoting Mullenix, 577 U.S. at 12).

38 260 F.3d 330 (5th Cir. 2001) (per curiam).

39 Id. at 350.

App-43

the nature and extent of Morgan’s rights in the

classroom, the case does not itself establish those

rights. ”40 Just as Morgan eschewed Chiu as clearly

establishing law that governed in that case, we should

do likewise in the present case.

Writing for the Court in Anderson v. Creighton,41

Justice Scalia cogently explained “that the doctrine of

qualified immunity reflects a balance that has been

struck ‘across the board.’”42 The Court recounted the

underpinnings of the doctrine of qualified immunity.43

It then said, “[s]omewhat more concretely, whether an

official protected by qualified immunity may be held

personally liable for an allegedly unlawful official

action generally turns on the ‘objective legal

reasonableness’ of the action ... assessed in light of the

40 Morgan v. Swanson, 755 F.3d 757, 761 (2014).

41 483 U.S. 635 (1987).

42 Id. at 642 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 821

(1982) (Brennan, J., concurring)).

43 See id. at 638:

(“When government officials abuse their offices,

“action[s] for damages 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 and harassing litigation will unduly inhibit

officials in the discharge of their duties. Our cases have

accommodated these conflicting concerns by generally

providing

government

officials

performing

discretionary functions with a qualified immunity,

shielding them from civil damages liability as long as

their actions could reasonably have been thought

consistent with the rights they are alleged to have

violated.” (internal citations omitted).

App-44

legal rules that were ‘clearly established’ at the time

it was taken.”44 The Court continued, “[t]he operation

of this standard, however, depends substantially upon

the level of generality at which the relevant ‘legal rule’

is to be identified.”45 The Court admonished that if the

level of generality at which the legal rule is identified

is too high, “Plaintiffs would be able to convert the rule

of qualified immunity that our cases plainly establish

into a rule of virtually unqualified liability simply by

alleging violation of extremely abstract rights. Harlow

would be transformed from a guarantee of immunity

into a rule of pleading.”46

Hershey has not cited decisions that clearly

establish that the conduct of Marshal Gilbert and

Officer Stoll violated First Amendment rights.

44 Id. at 639 (internal citation omitted).

Id.; see also id. at 639-40 (“It should not be surprising,

therefore, that our cases establish that the right the official is

alleged to have violated must have been ‘clearly established’ in a

more particularized, and hence more relevant, sense: The

contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that

right. This is not to say that an official action is protected by

qualified immunity unless the very action in question has

previously been held unlawful ... but it is to say that in the light

of pre-existing law the unlawfulness must be apparent.”)

(internal citation omitted).

46 Id. at 639; see also id. (“Such an approach, in sum, would

destroy ‘the balance that our cases strike between the interests

in vindication of citizens’ constitutional rights and in public

officials’ effective performance of their duties,’ by making it

impossible for officials ‘reasonably [to] anticipate when their

conduct may give rise to liability for damages.’”) (quoting Davis

v. Scherer, 468 U.S. 183, 195 (1984)).

App-45

III

Hershey’s second contention on appeal is that

Marshal Gilbert and Officer Stoll are not entitled to

qualified immunity because the law was clearly

established that they had to provide Hershey with

ample alternative channels of communication, and

they did not. Hershey asserts in his briefing that if the

officers “were attempting to enforce a time, place and

manner restriction, they must also ‘leave ample

alternative channels of communication.’”

Here again, the law as to how the Center should

be characterized for First Amendment purposes is far

from clear. More pointedly, Hershey has not cited any

authority that would put on notice a law enforcement

officer policing an event like the one at the Center on

the date in question that the officer, personally, was

required to provide an alternate forum for distributing

leaflets.

Hershey’s third contention on appeal is that

Marshal Gilbert and Officer Stoll are not entitled to

qualified immunity because they are either plainly

incompetent or knowingly violated the law. He argues

that if they “genuinely believed that Plaintiff did not

have any First Amendment rights on the Bossier City

Arena property because it was private property, then

they are ‘plainly incompetent.’” Here again, Hershey

cites no decision that would have clearly put the

officers on notice that the Center was not comparable

to “private property” for First Amendment purposes

during the Winter Jam concert, or that their conduct

in asking Hershey to leave the area violated his First

Amendment rights.

App-46

Hershey contends that he has pled a facially

plausible Monell claim based on his allegations that

Bossier City failed to train both its own law

enforcement officers and ASM’s private security

guards “allowed to serve as security personnel” at the

Center. The Supreme Court has made clear that

municipal liability based on Monell47 requires

deliberate indifference.48 With great respect, Judge

Dennis’s and Judge Ho’s opinions in the present case

substantially erode and trivialize that principle.

This is a single-incident case in which Hershey

relies on his own confrontation with city officers and

private security guards to establish municipal

liability. This case does not present the “rare” and

“narrow and extreme circumstances” that our court

and the Supreme Court has said permit “drawing the

inference” of “deliberate indifference.”49

The Supreme Court established in Monell50 that

“municipal liability under section 1983 requires proof

of three elements: a policymaker; an official policy;

and a violation of constitutional rights whose ‘moving

47 Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658

(1978).

48 City of Canton v. Harris, 489 U.S. 378, 389 (1989).

49 Garza v. Donna, 922 F.3d 626, 638 (5th Cir. 2019) (quoting

Littell v. Hous. Indep. Sch. Dist., 894 F.3d 616 (5th Cir. 2018)).

50 Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658

(1978).

App-47

force’ is the policy or custom.”51 A party must

sufficiently allege each element before municipal

liability can attach.52

The Supreme Court explained in City of Canton v.

Harris53 that “[m]unicipal liability under § 1983

attaches where—and only where—a deliberate choice

to follow a course of action is made from among

various alternatives” by city policymakers.”54 The

Supreme Court continued, “Only where a failure to

train reflects a ‘deliberate’ or ‘conscious’ choice by a

municipality—a ‘policy’ as defined by our prior cases—

can a city be liable for such a failure under § 1983.”55

While a failure to train can be a “policy,”56 that

determination usually requires a pattern of

51 Winder v. Gallardo, 118 F.4th 638, 647 (5th Cir. 2024), cert.

denied, 145 S. Ct. 2816 (2025) (quoting Piotrowski v. City of

Hous., 237 F.3d 567, 578 (5th Cir. 2001) (citing Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 694 (1978)).

52 See Brown v. Tarrant County, Tex., 985 F.3d 489, 497 (5th

Cir. 2021) (concluding that this court need not consider whether

the plaintiff sufficiently alleged the policymaker or constitutional

violation element when “he did not link his allegedly

unconstitutional confinement to any county ‘policy or custom’);

Zarnow v. City of Wichita Falls, Tex., 614 F.3d 161, 171 (5th Cir.

2010) (not considering the “moving force factor” because the

plaintiff had “not established a ‘custom or policy’”).

53 489 U.S. 378 (1989).

54 Id. at 389 (citing Oklahoma City v. Tuttle, 471 U.S. 808, 823

(1985) (opinion of Rehnquist, J.)).

55 Id.

56 See Garza, 922 F.3d at 637.

App-48

constitutional violations.57 There is nothing in

Hershey’s Amended Complaint that reflects a

deliberate or conscious choice by Bossier City among

various alternatives regarding the need for training

its law enforcement officers. There had been no prior

incident in which it was even alleged that city officers

had violated the First Amendment by telling

individuals they could not pass out literature without

prior approval, much less allegations of viewpoint

discrimination.

The Supreme Court explained its rationale more

fully in Board of County Commissioners of Bryan

County v. Brown.58 The Court said that in Canton, it

“spoke ... of a deficient training ‘program,’ necessarily

intended to apply over time to multiple employees.”59

The Court reasoned that:

[i]f a program does not prevent constitutional

violations, municipal decisionmakers may

eventually be put on notice that a new

program is called for. Their continued

adherence to an approach that they know or

should know has failed to prevent tortious

conduct by employees may establish the

conscious disregard for the consequences of

their action—the “deliberate indifference”—

necessary to trigger municipal liability.60

57 Harris, 489 U.S. at 397 (O’Connor, J., concurring in part and

dissenting in part); Bd. of Cnty. Comm’rs of Bryan Cnty. v.

Brown, 520 U.S. 397, 409 (1997).

58 520 U.S. 397, 409-410 (1997).

59 Id. at 407.

60 Id.

App-49

The Supreme Court again emphasized in Connick v.

Thompson61 that “[w]ithout notice that a course of

training is deficient in a particular respect,

decisionmakers can hardly be said to have deliberately

chosen a training program that will cause violations of

constitutional rights.”62

The Supreme Court has made clear that in

Monell63 cases, deliberate indifference may be inferred

in failure-to-train-at-all cases “in a narrow range of

circumstances” if the violation of federal rights is “a

highly predictable consequence of a failure to equip

law enforcement officers with specific tools to handle

recurring situations.”64 The Supreme Court

emphasized that whether such a consequence is

“obvious” depends on “[t]he likelihood that the

situation will recur and the predictability that an

officer lacking specific tools to handle that situation

will violate citizens’ rights.”65

There is no allegation that viewpoint

discrimination by a Bossier City law enforcement

officer against someone engaging in free exercise of

religion or free speech has ever previously occurred.66

61 563 U.S. 51 (2011).

62 Id. at 62.

63 Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658

(1978).

64 Bd. of Cty. Commissioners of Bryan Cty. v. Brown, 520 U.S.

397, 409-410 (1997).

65 Id.

66 But see Littell v. Houston Indep. Sch. Dist., 894 F.3d 616, 62425 (5th Cir. 2018) (“The municipal entity must have ‘fail[ed] to

train its employees concerning a clear constitutional duty

implicated in recurrent situations that a particular employee is

App-50

It is not highly predictable that law enforcement

officers would have recurring encounters with

individuals paid to distribute literature outside a

large, pay-to-attend event. Nor is it highly predictable

that, absent specific training about what is “public”

versus

“private”

property

and

viewpoint

discrimination, those officers would discriminate

based on the content of the literature being

distributed.

Judge Dennis’s and Judge Ho’s opinions permit

an outsized path to liability because many plaintiffs

would be able to granulate allegations so finely that

they arrive at a “complete failure to train” as to the

relevant conduct. This ignores the Supreme Court’s

repeated warning: “[I]n virtually every instance where

a person has had his or her constitutional rights

violated by a city employee, a § 1983 plaintiff will be

able to point to something the city could have done to

prevent the unfortunate incident.”67 “[V]irtually every

instance”68 is just the opposite of the “rare”69 and

“extreme”70 circumstances in which the singleincident exception should apply.

Hershey says, and Judge Dennis’s and Ho’s

opinions agree, that if a city fails to train “at all”

regarding the First Amendment, then it is “obvious”

certain to face.’” (emphasis added) (quoting Canton v. Harris, 489

U.S. 378, 396 (1989) (O’Connor, J., concurring)).

67 City of Canton v. Harris, 489 U.S. 378, 392 (1989) (internal

quotation marks omitted).

68 Id.

69 Littell, 894 F.3d at 627.

70 Id.

App-51

that a constitutional violation will occur. This not only

permits liability for what may be, at most, mere

negligence, it essentially imposes strict liability for a

failure to train.71

Our court has said that in some circumstances

“there is a difference between a complete failure to

train ... and a failure to train in one limited area.”72

Hershey alleges the City failed to train its officers on

the public nature of the arena and surrounding park

71 See, e.g., Connick v. Thompson, 563 U.S. 51, 61-62, (2011)

(“[W]hen city policymakers are on actual or constructive notice

that a particular omission in their training program causes city

employees to violate citizens’ constitutional rights, the city may

be deemed deliberately indifferent if the policymakers choose to

retain that program.... A less stringent standard of fault for a

failure-to-train claim ‘would result in de facto respondeat superior

liability on municipalities ...’” (quoting City of Canton v. Harris,

489 U.S. at 392 (1989))); see also Loera v. Kingsville Indep. Sch.

Dist., __ F.4th__, No. 24-40481, 2025 WL 2425186, at *5 (5th Cir.

Aug. 22, 2025) (“Deliberate indifference ‘is a stringent standard,

requiring proof that a municipal actor disregarded a known or

obvious consequence of his action.’ ‘A showing of simple or even

heightened negligence will not suffice.’” (first quoting Brown v.

Bryan County, 219 F.3d 450, 457 (5th Cir. 2000) (quoting Bd. of

Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410

(1997), then quoting Brown, 520 U.S. at 410)).

72 Cozzo v. Tangipahoa Parish Council, 279 F.3d 273 (5th Cir.

2002) (alteration and internal quotation marks omitted) (quoting

McClendon v. City of Columbia, 258 F.3d 432, 442-43 (5th Cir.

2001), vacated for reh’g en banc, 285 F.3d 1078 (5th Cir. 2001),

decision on rehearing en banc, 305 F.3d 314 (5th Cir. 2002)); see

also Peterson v. City of Fort Worth, 588 F.3d 838, 849 (5th Cir.

2009) (“[The] ‘narrow’ single incident exception has applied when

the court finds a complete failure to train, not just a failure to

train in ‘one limited area’” (quoting Estate of Davis ex rel.

McCully v. City of N. Richland Hills, 406 F.3d 375, 383, 386 (5th

Cir. 2005)).

App-52

and

the

corresponding

First

Amendment

implications. In other words, Hershey alleges a

“failure to train in one limited area” and not “a

complete failure to train.”74 But even if Hershey’s

Amended Complaint could be characterized as

alleging a complete failure to train, to say that the

need for training was “obvious” in this case would

undermine virtually every precept of our Monell

jurisprudence.

Our court has refused to allow single-incident

failure-to-train cases to diminish the bedrock concepts

underpinning Monell liability, even when the

plaintiff’s injury was severe and it might seem

“obvious” to a lay person that training likely would

have prevented the injury. Our decision in Garza75 is

just one example. Judge Dennis’s and Judge Ho’s

opinions both rely on Garza, but it completely

undermines the positions espoused in those opinions.

In Garza, Garza’s mother sought help from law

enforcement when she feared her son, who was

intoxicated, would take his own life or would hurt

himself.76 Garza was taken into custody at a detention

center.77 Sometime after 8:00 a.m., he obscured the

lens of the camera that was trained on him in his

cell.78 The person tasked with monitoring the camera

73 See Ante at 25.

74 Peña v. City of Rio Grande City, 879 F.3d 613, 624 (5th Cir.

2018).

75 Garza v. City of Donna, 922 F.3d 626 (5th Cir. 2019).

76 Id. at 630-31.

77 Id.

78 Id. at 631.

App-53

feed, Minerva Perez, said that after 8:00 a.m., when

jailers arrived for their shifts, it was their

responsibility to monitor the jail inmates.79 When the

jailers were on duty, they became occupied putting up

a sarcastic “welcome” sign for inmates and the logo of

a comic-book character, and they “missed that Garza

had hanged himself.”80 ICE agents arrived at 8:40 a.m.

and found Garza dead at 8:49 a.m.81 In the ensuing

litigation, Garza’s survivors claimed that “Perez

displayed ‘utter confusion’ about her responsibility to

monitor the jail’s camera feeds, invoking the failureto-train principles articulated by City of Canton v.

Harris.”82 Our court held that this claim failed because

“[a]s we have emphasized, deliberate indifference may

be inferred this way ‘only in narrow and extreme

circumstances,’ and decisions by our court drawing the

inference are rare.”83 We further explained that “the

record has no evidence about the population that

passes through the City’s jail or about the jail’s

operations from which the possibility of recurring

situations threatening to constitutional rights might

be assessed. It is apparent that this record is

inadequate to support a failure-to-train theory as to

Perez.”84

So too, in this case. There is no allegation as to

how many individuals frequent areas outside the

79 Id.

80 Id.

81 Id.

82 Id. at 637.

83 Id. at 638.

84 Id.

App-54

Center during events in order to distribute literature.

There is no allegation from which the risk of recurring

situations like the one at issue in this case can be

assessed. Again, the Supreme Court has emphasized

that whether a consequence is “obvious” depends on

“[t]he likelihood that the situation will recur and the

predictability that an officer lacking specific tools to

handle that situation will violate citizens’ rights.”85

Saying that the need for training was “obvious” in

this case would call into question the core tenets of our

Monell jurisprudence, for the reasons discussed above.

Even if Hershey’s constitutional rights were violated,

this is a case in which only a few individuals violated

those rights on one occasion. This a not a case for

application of the “obvious” exception. We have

reserved that exception for cases of a far different ilk

than this one.

Judge Dennis’s opinion asserts that Hershey

alleged Bossier City “did not have any

policy ... regulating speech activities protected by the

First Amendment.”86 This implies, if not states, that if

Bossier City had provided at least some training on

any aspect of the First Amendment, there could be no

“complete failure to train” claim, and we would be in

ordinary “failure-to-train” territory. The logic here

escapes me. If Bossier City had trained its law

enforcement officers about how to address an entirely

different First Amendment issue—for instance,

permissible means of policing protestors who shut

85 Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397,

409 (1997).

86 Ante at 15.

App-55

down a highway with their presence—how would that

have affected Hershey’s claim? Such training would

not bear on preventing viewpoint discrimination

against someone handing out leaflets. Yet, it would be

“some” First Amendment training, so the “no training

at all” theory would be inapplicable. This elusive and

slippery nature of a failure-to-train-at-all claim in the

context of this case is apparent from the very next

sentence in Judge Dennis’s opinion, which says,

“Hershey alleged the City failed to train its police

officers and private security personnel of citizens’

First Amendment rights on public property, including

the area surrounding the Center.”87 That is a much

more specific claim, and if Bossier City had notice that

it needed to train for that specific potentiality,

Hershey likely would have stated a claim. So, to be

clear, the failure-to-train-at-all theory in a case like

the present one is nothing more than a “gotcha.”

Providing some First Amendment training, even

though it had no bearing at all on the alleged First

Amendment violation, would foreclose reliance on the

theory. But failure to train “at all” results in strict

liability when there was no notice “at all” of the need

to train for the specific First Amendment violation

alleged.

“A municipality’s culpability for a deprivation of

rights is at its most tenuous where a claim turns on a

failure to train,” and “‘[d]eliberate indifference’ is a

stringent standard of fault.”88 The requisite standard

of fault is not met here and Hershey has therefore

87 [Id.]

88 Connick v. Thompson, 563 U.S. 51, 61 (2011).

App-56

failed to sufficiently plead allegations of liability

under Monell.89

Hershey’s Amended Complaint seeks money

damages from Bossier City for its failure to train not

only its own law enforcement officers but the private

security guards who were hired by ASM Global for a

concert on a particular day. Hershey’s brief cites no

decision whatsoever that holds a municipality liable

for failure to train a private party’s employees.

Nevertheless, Judge Dennis’s and Ho’s opinions

permit Hershey to proceed with his claim that Bossier

City is liable for failing to train security guards ASM

hired. I disagree and would affirm the district court’s

judgment in this regard.

In a fifth issue raised in Hershey’s appeal, he

asserts that ASM Global’s private security guards

worked together with the Bossier City defendants to

eject him from the Center and that he has stated a

cause of action under the “nexus/joint action tests.”

“To state a claim under § 1983, a plaintiff must allege

the violation of a right secured by the Constitution and

laws of the United States, and must show that the

alleged deprivation was committed by a person acting

under color of state law.”90

The nexus test asks “whether the State has

inserted ‘itself into a position of interdependence with

89 Supra note 50 and accompanying text.

90 West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added).

App-57

the [private actor, such] that it was a joint participant

in the enterprise.’”91 In other words, the question is

whether there is a “‘close nexus between the State and

the challenged action’ that seemingly private behavior

‘may be fairly treated as that of the State itself.’”92

Hershey’s complaint alleges virtually no facts

regarding “interdependence” between Bossier City

and ASM Global’s private security guards. The

Amended Complaint alleges that the City “owns and

operates a public facility known as the Bossier City

Arena, which at all times relevant herein was known

as the CenturyLink Center.” It alleges that defendant

security guards were security guards at the

CenturyLink Center. It then alleges: “Defendant the

City has a long-standing custom of allowing police

officers, employees and/or officials of CenturyLink

Center to use their unfettered d

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