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

Supreme Court briefAug 5, 2025

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No. 25-29

IN THE

Supreme Court of the United States

PRISCILLA VILLARREAL,

Petitioner,

ISIDRO R. ALANIZ, SUED IN HIS INDIVIDUAL CAPACITY,

et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF THE LAW ENFORCEMENT ACTION

PARTNERSHIP AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

DAVID DEBOLD

Counsel of Record

JESSE SCHUPACK

HUNTER MASON

LUKE J.P. WEARDEN

GIBSON, DUNN & CRUTCHER LLP

1700 M St., N.W.

Washington, D.C. 20036

(202) 955-8500

DDebold@gibsondunn.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

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

INTRODUCTION AND SUMMARY OF

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

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

QUALIFIED IMMUNITY IS UNAVAILABLE FOR

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

II. THE POLICY CONSIDERATIONS USED TO JUSTIFY

QUALIFIED IMMUNITY DO NOT APPLY HERE. ....... 13

III. THE FIFTH CIRCUIT’S RULE WOULD NEGATIVELY

AFFECT LAW ENFORCEMENT AND THE PUBLIC. ... 16

A. Barring Civil Liability Will Deprive The

Public Of A Key Deterrent Against The

Growing Threat Of Retaliatory Arrests. .....17

B. The Fifth Circuit’s Decision Will

Undermine Trust In The Police And

Interfere With Public Safety. .......................20

C. Failing To Prohibit Premeditated

Retaliatory Arrests Will Chill First

Amendment-Protected Activity. ..................22

CONCLUSION .......................................................... 23

TABLE OF AUTHORITIES

Page(s)

Cases

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ............................................ 5, 3

Bennett v. Hendrix,

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

Browder v. City of Albuquerque,

787 F.3d 1076 (10th Cir. 2015) ............................. 8

City of Tahlequah v. Bond,

595 U.S. 9 (2021) .................................................... 4

Crouse v. Town of Moncks Corner,

848 F.3d 576 (4th Cir. 2017) .......................... 19, 20

Degenhardt v. Bintliff,

117 F.4th 747 (5th Cir. 2024) ................................ 9

Duncan v. Becerra,

970 F.3d 1133 (9th Cir. 2020) .............................. 20

Gilbert v. Homar,

520 U.S. 924 (1997) .............................................. 20

Gonzalez v. Trevino,

60 F.4th 906 (5th Cir. 2023) ................................ 23

Grosjean v. Am. Press Co.,

297 U.S. 233 (1936) .............................................. 18

Guerra v. Castillo,

82 F.4th 278 (5th Cir. 2023) ................................ 10

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .............................................. 18

iii

Harris v. Pittman,

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

Hernandez v. City of Phoenix,

43 F.4th 966 (9th Cir. 2022) ................................ 21

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021) .......................................... 14

Hope v. Pelzer,

536 U.S. 730 (2002) ...................................... 5, 6, 11

Intervarsity Christian Fellowship/USA

v. Univ. of Iowa,

5 F.4th 855 (8th Cir. 2021) .................................. 14

Irizarry v. Yehia,

38 F.4th 1282 (10th Cir. 2022) .............................. 7

K.H. ex rel. Murphy v. Morgan,

914 F.2d 846 (7th Cir. 1990) ................................ 12

Kingsley v. Hendrickson,

576 U.S. 389 (2015) .............................................. 13

Lacey v. Maricopa Cnty.,

693 F.3d 896 (9th Cir. 2012) ................................ 22

Lozman v. City of Riviera Beach,

585 U.S. 87 (2018) ................................ 3, 13, 17, 21

Lund v. City of Rockford,

956 F.3d 938 (7th Cir. 2020) ................................ 10

Matal v. Tam,

582 U.S. 218 (2017) .............................................. 23

McCoy v. Alamu,

950 F.3d 226 (5th Cir. 2020) ................................ 11

McMurry v. Weaver,

142 F.4th 292 (5th Cir. 2025) ........................ 11, 12

Messerschmidt v. Millender,

565 U.S. 535 (2012) .............................................. 14

Mullenix v. Luna,

577 U.S. 7 (2015) .................................................. 15

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) .............................................. 18

Nieves v. Bartlett,

587 U.S. 391 (2019) ........................................ 15, 17

Novak v. City of Parma,

33 F.4th 296 (6th Cir. 2022) ................................ 10

Pasco ex rel. Pasco v. Knoblauch,

566 F.3d 572 (5th Cir. 2009) ................................ 13

Pearson v. Callahan,

555 U.S. 223 (2009) .............................................. 18

Perry v. Sindermann,

408 U.S. 593 (1972) .............................................. 22

Plumhoff v. Rickard,

572 U.S. 765 (2014) .......................................... 3, 13

Reedy v. Evanson,

615 F.3d 197 (3d Cir. 2010) ................................. 14

Reichle v. Howards,

566 U.S. 658 (2012) ...................................... 8, 9, 15

Reynolds v. City of Chicago,

296 F.3d 524 (7th Cir. 2002) ................................ 20

Roy v. City of Monroe,

950 F.3d 245 (5th Cir. 2020) ................................ 10

Sause v. Bauer,

585 U.S. 957 (2018) ................................................ 7

Smith v. Daily Mail Pub. Co.,

443 U.S. 97, 103 (1979) .......................................... 9

Stanton v. Sims,

571 U.S. 3 (2013) .................................................. 13

Stromberg v. California,

283 U.S. 359 (1931) .............................................. 23

Taylor v. Riojas,

592 U.S. 7 (2020) .................................................... 5

Taylor v. Stevens,

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

Trevino v. Iden,

79 F.4th 524 (5th Cir. 2023) ............................... 10

United States v. Lanier,

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

Wearry v. Foster,

52 F.4th 258 (5th Cir. 2022) ................................ 14

Other Authorities

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

Comparison, 71 Crime, L., & Soc. Change

461 (2019) ............................................................. 17

Giffords L. Ctr. to Prevent Gun Violence, In

Pursuit of Peace: Building Police-Community Trust to Break the Cycle of Violence

(Sept. 9, 2021), bit.ly/4bFbD80 ............................ 22

Andrew Goldsmith, Police Reform and the

Problem of Trust, 9 Theoretical Criminology 443 (2005) ...................................................... 20

Bailey D. Barnes, The Obvious Violation Exception to Qualified Immunity: An Empirical Study, 99 Wash. L. Rev. 725 (2024) ............. 11

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

Enforcement in Immigrant Communities:

Does Tough Immigration Enforcement

Undermine Public Safety?, 641 Annals of

Am. Acad. of Pol. & Soc. Sci. 79 (2012) ............... 20

Ellen S. Podgor, The Dichotomy Between

Overcriminalization and Underregulation,

70 Am. Univ. L. Rev. 1061 (2021) ....................... 18

Emily Washburn, America Less Confident In

Police Than Ever Before: A Look At The

Numbers, Forbes (Feb. 3, 2023),

bit.ly/3UJci1j ........................................................ 20

GianCarlo Canaparo et al., Count the Code:

Quantifying Federalization of Criminal

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

bit.ly/3Lcpve2 ....................................................... 17

James R. Copland & Rafael A. Mangual,

Manhattan Inst., Overcriminalizing

America (2018), bit.ly/41CLNfT .......................... 17

Joanna C. Schwartz, After Qualified Immunity,

120 Colum. L. Rev. 309 (2020)............................. 19

Joanna C. Schwartz, What Police Learn from

Lawsuits, 33 Cardozo L. Rev. 841 (2012) ............ 19

vii

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

the Police and the Citizens They Serve

(2009), bit.ly/3LwqCGS ........................................ 21

INTEREST OF AMICUS CURIAE 1

The Law Enforcement Action Partnership

(“LEAP”) is a nonprofit organization whose members

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

for criminal justice and drug policy reforms that will

make our communities safer and more just. Founded

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

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

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

engagements, media appearances, testimony, and

support of allied efforts, LEAP reaches audiences

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

This case presents an important opportunity to

ensure that officers who abuse their power to engage

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

the integrity of law enforcement, building trust in the

police, and ultimately keeping the public safe. LEAP

and its members thus have an interest in ensuring

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

against retaliation for exercising their constitutional

rights.

Pursuant to Supreme Court Rule 37.2, Amicus provided timely

notice to all parties of its intent to file this amicus brief. Pursuant to Supreme Court Rule 37.6, no counsel for a party authored

this brief in whole or in part, and no person or entity other than

Amicus or its counsel made a monetary contribution to this

brief ’s preparation.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Priscilla Villarreal, a well-known citizen-journalist, has critically examined local affairs in the border

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

developed sources in local government and published

information they provided. But her journalistic activities embarrassed local prosecutors and police officers.

To punish her, those officials conspired to arrest and

jail her under a public-disclosure statute never before

enforced in its twenty-three-year history—a statute

they used to criminalize a citizen-journalist’s mere request of a police officer for information. That blatantly violated the First Amendment. Yet a majority

of the en banc Fifth Circuit—over five dissenting

votes—held that the local officials were entitled to

qualified immunity and dismissed Villarreal’s complaint at the threshold.

This Court has consistently held that qualified immunity does not shield obvious violations of bedrock

constitutional guarantees. And it “should have been

obvious to Defendants … that they were violating Villarreal’s First Amendment rights when they arrested

and jailed her for asking a police officer for information.” Pet. App. 99a (Ho, J., dissenting). The Fifth

Circuit nonetheless granted the defendants here qualified immunity the first time it took up this case because Villarreal had failed to cite a judicial precedent

identifying the First Amendment violation on “materially identical facts.” Id. at 55a. As Petitioner explains, that holding—reinstated on remand—flouts

this Court’s precedent and conflicts with the decisions

of other federal courts of appeals.

The Fifth Circuit’s reinstatement of its prior decision is particularly perplexing under the circumstances here. Qualified immunity gives officers

breathing room to make “split-second judgments” free

from fear of liability, Plumhoff v. Rickard, 572 U.S.

765, 775 (2014)—a justification that disappears when

government officials act under a plainly “premeditated plan to intimidate” a plaintiff in retaliation for

her First Amendment activities, Lozman v. City of

Riviera Beach, 585 U.S. 87, 100 (2018). Here, Laredo

officials engaged in a months-long campaign to find a

way to arrest Villarreal and send her to jail—simply

for asking her sources to provide information. “This

was not the hot pursuit of a presumed criminal” or any

similar scenario of officials presented with split-second judgments. Pet. App. 83a (Willett, J., dissenting).

Instead, officials deliberately targeted Villarreal for

punishment, all for engaging in activities obviously

protected by the First Amendment. There is no justification for granting qualified immunity in these circumstances.2

Finally, that ruling’s implications are stark.

Thanks to an ever-growing list of criminal offenses,

government officials have great flexibility to arrest

those engaged in First Amendment activities. That

arresting discretion is particularly dangerous to disfavored speakers, who are especially likely to face official retaliation. Because two cases will rarely involve pretextual enforcement of similar state statutes,

This brief focuses on the second question presented: whether

qualified immunity is available for obvious First Amendment violations, regardless of whether there exists a state statute purporting to authorize the violation or a Supreme Court precedent

identifying the First Amendment violation on materially identical facts.

the Fifth Circuit’s requirement of a materially identical case will routinely immunize defendants from liability, leaving victims of First Amendment retaliation

without a remedy. See Pet. App. 55a (demanding that

Villarreal identify a case finding a First Amendment

violation where officers were enforcing “a statute that

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

at 4a (affirming prior judgment). Depriving victims of

a valuable tool to hold bad actors accountable will, in

turn, decrease public trust in law enforcement, undercut police-community relationships, and harm public

safety. And it will chill First Amendment activity,

making individuals think twice before exercising their

rights for fear that vindictive government officials will

throw them in jail.

These dangers underscore why the judiciary must

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

speakers) they dislike.” Pet. App. 86a (Willett, J., dissenting). This Court should grant certiorari and reverse.

ARGUMENT

QUALIFIED IMMUNITY IS UNAVAILABLE FOR

OBVIOUS CONSTITUTIONAL VIOLATIONS.

In its initial en banc decision, the Fifth Circuit

held that Villarreal could defeat qualified immunity

only by citing a case that has found a First Amendment violation “on materially identical facts”—meaning one that has held it unconstitutional “to arrest a

person … upon probable cause for violating a statute

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

Pet. App. 55a. The Fifth Circuit brushed aside this

Court’s cases holding that qualified immunity does

not apply to “obvious” constitutional violations, calling them only a “narrow … exception” for “Eighth

Amendment cases” involving “deliberate indifference

to unconstitutional prison conditions.” Ibid. (distinguishing Hope v. Pelzer, 536 U.S. 730 (2002), and Taylor v. Riojas, 592 U.S. 7 (2020) (per curiam)).

On remand, the Fifth Circuit saw fit “sole[ly] … to

reconsider” Petitioner’s First Amendment retaliation

claim, otherwise leaving its earlier opinion in place.

Pet. App. 2a. The Fifth Circuit’s qualified immunity

holding directly flouts this Court’s precedents, creates

an open conflict in the courts of appeals, and relegates

the First Amendment to second-class status by substantially diminishing the constitutional protections

properly afforded journalists and other concerned citizens.

1. State actors are entitled to qualified immunity

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

not lie, however, if the law gives the defendants “fair

warning that their alleged treatment of [the plaintiff]

was unconstitutional.” Hope, 536 U.S. at 741. Thus,

qualified immunity does not protect officials who commit “obvious” constitutional violations. Ibid. And constitutional violations can be obvious even without any

“case directly on point.” al-Kidd, 563 U.S. at 741.

This Court settled that issue almost three decades

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

There, a state judge sexually assaulted five women,

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

The Sixth Circuit reversed the judge’s convictions under 18 U.S.C. § 242 “on the ground that the constitutional right in issue had not previously been identified

by [the Supreme Court] in a case with fundamentally

similar facts.” Id. at 261.

This Court reversed, holding that the proper

“standard of notice” under § 242 is the same as “the

‘clearly established [law]’ immunity standard” for

§ 1983 liability—a standard that can be met without

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

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

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

Id. at 271.

The Court applied that same standard in Hope, a

§ 1983 case in which prison guards handcuffed an inmate shirtless to a hitching post in the sweltering Alabama sun for eight hours. 536 U.S. at 733-735. The

guards provided no bathroom breaks and offered water only once or twice. Ibid. The Eleventh Circuit

granted the guards qualified immunity because the

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

This Court reversed, because the “Eighth Amendment violation is obvious,” and the “cruelty inherent

in this practice should have provided respondents

with some notice” of the constitutional violation. 536

U.S. at 738, 745. The Court explained that Lanier

“makes clear that officials can still be on notice that

their conduct violates established law even in novel

factual circumstances.” Id. at 741. Neither “fundamentally similar” nor “materially similar” facts are

“necessary.” Ibid.

Most recently, in Taylor, 592 U.S. at 7, a prison inmate had been confined to an unsanitary cell with fe-

cal matter, no place to sleep, no toilets, and no insulation for six days. The Fifth Circuit found qualified immunity because no case had “held that a time period

so short [six days] violated the Constitution.” Taylor

v. Stevens, 946 F.3d 211, 222 (5th Cir. 2019). This

Court summarily reversed despite no on-point precedent, reasoning that “[c]onfronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of

confinement offended the Constitution.” 592 U.S. at

This Court has applied the same standard in the

First Amendment context. See Sause v. Bauer, 585

U.S. 957, 959 (2018) (reversing grant of qualified immunity on First Amendment claim in absence of comparable case because “[t]here can be no doubt that the

First Amendment protects the right to pray”). And

until the decision below, the courts of appeals had uniformly done the same. In Bennett v. Hendrix, for example, plaintiffs sued officers for a campaign of police

harassment and retaliation after plaintiffs supported

a county referendum opposed by the sheriff. 423 F.3d

1247, 1248 (11th Cir. 2005), cert. denied, 549 U.S. 809

(2006). Denying qualified immunity, the Eleventh

Circuit noted that the principle that “state officials

may not retaliate against private citizens because of

the exercise of their First Amendment rights” provided “obvious clarity.” Id. at 1255-1256.

Similarly, in Irizarry v. Yehia, the Tenth Circuit

held that a police officer violated a clearly established

First Amendment right by driving his car at a person

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

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

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

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

infringe First Amendment protected activity and chill

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

App. 99a–100a (Ho, J., dissenting) (collecting cases

and noting that “nine circuits have indicated that the

standards articulated in Hope apply specifically in the

First Amendment context”).

At bottom, qualified immunity does not shield conduct so patently unconstitutional that no court has yet

had an opportunity to address it. Lanier, 520 U.S. at

271 (“The easiest cases don’t even arise. There has

never been ... a section 1983 case accusing welfare officials of selling foster children into slavery; it does not

follow that if such a case arose, the officials would be

immune from damages … liability.”); see also Browder

v. City of Albuquerque, 787 F.3d 1076, 1082–1083

(10th Cir. 2015) (Gorsuch, J.) (“[I]t 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.”).

2. The Fifth Circuit’s qualified immunity holding

disregards these precedents and makes no sense on its

own terms.

The court below treated the Court’s reference to

Gonzalez in its vacatur order to mean that “First

Amendment retaliation … is the sole claim” for consideration on remand. Pet. App. 2a. It then quickly

concluded that because the events in this case took

place before Nieves and Gonzalez, the qualified immunity analysis for the retaliation claim was directly

controlled by Reichle v. Howards, 566 U.S. 658 (2012).

Pet. App. 2a. The majority then stated that under

Reichle, Defendants’ entitlement to qualified immunity in this case “is easily shown.” Id. at 3a. But the

Fifth Circuit’s cursory two-paragraph analysis sidesteps critical differences in Reichle that bring this

case well within the obviousness exception established by Lanier, Hope, and Taylor.

In Reichle, the plaintiff alleged a retaliatory arrest

for views he had expressed when speaking to the Vice

President. But the basis for the plaintiff’s arrest was

separate non-speech conduct: unlawfully touching

the Vice President’s shoulder and later lying to a federal official as to whether he had done so, in violation

of 18 U.S.C. § 1001. 566 U.S. at 660–662.

The Court in Reichle stated only that there was no

clearly established right not to be subject to an otherwise valid arrest in retaliation for separate First

Amendment activity. Here, by contrast, Villarreal’s

protected First Amendment activity—seeking information from a government official—was the very basis for her arrest under a never-before-enforced Texas

statute. Whereas the plaintiff’s conduct in Reichle—

touching the Vice President and lying about it to an

official afterward—was unlawful under a legitimate

federal statute, the Constitution expressly protects

Villarreal’s conduct. See Smith v. Daily Mail Publ’g

Co., 443 U.S. 97, 99, 103 (1979) (a reporter engaged in

protected conduct when using “routine newspaper reporting techniques” such as “obtain[ing] the name of

the alleged assailant simply by asking various witnesses, the police, and an assistant prosecuting attorney”). The constitutional violation here was thus obvious.

These differences also distinguish this case from

every other case the Fifth Circuit cited on remand as

its basis for breezing past this Court’s directive to reconsider the grant of qualified immunity in light of

Gonzalez. See Degenhardt v. Bintliff, 117 F.4th 747,

759 (5th Cir. 2024) (arrest for reckless driving and

possessing alcohol as a minor); Guerra v. Castillo, 82

F.4th 278, 289 (5th Cir. 2023) (plaintiff failed to allege

that retaliation was directed at First Amendment-protected speech); Roy v. City of Monroe, 950 F.3d 245,

248–249, 253–254 (5th Cir. 2020) (issuance of disturbing-the-peace summons to man alleged to have followed and harassed woman outside of nightclub); Trevino v. Iden, 79 F.4th 524, 533 (5th Cir. 2023) (signing

application for Texas Title without proper authorization); Lund v. City of Rockford, 956 F.3d 938, 947 (7th

Cir. 2020) (obstruction of justice); Novak v. City of

Parma, 33 F.4th 296, 303 (6th Cir. 2022) (disrupting

or impairing police functions by creating fake Department web page).

In its original analysis, the Fifth Circuit reasoned

that this Court’s decisions in Hope and Taylor established only a “decidedly narrow, obviousness exception” for “Eighth Amendment cases … for deliberate

indifference to unconstitutional prison conditions.”

Pet. App. 55a. “[I]n this context”—i.e., cases involving

“First Amendment free exercise rights”—the Fifth

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

to prove that an officer should have been on notice

that his conduct violated the Constitution.” Id. at

55a–56a.

That rationale revives the very rule that Hope and

its progeny laid to rest. By requiring Villarreal to

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

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

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

536 U.S. at 739. And “[n]othing in Hope or Taylor indicates that those decisions apply only to prison conditions.” Pet. App. 99a (Ho, J., dissenting).3

The Fifth Circuit’s rationale also fails under first

principles and common sense. First, as Judge Ho persuasively explained in this very case, limiting the

Hope standard to the Eighth Amendment context

“would treat the First Amendment as a second-class

right.” Pet. App. 99a. And “[n]othing in § 1983 suggests that courts should favor the Eighth Amendment

rights of convicted criminals over the First Amendment rights of law-abiding citizens.” Ibid; see also

McMurry v. Weaver, 142 F.4th 292, 305 (5th Cir. 2025)

(Ho, J., concurring) (“Why the en banc majority [in

Villarreal] chose to disfavor the First Amendment in

contrast to the Eighth Amendment—or law-abiding

citizens in favor of incarcerated criminals—it did not

explain.”); Bailey D. Barnes, The Obvious Violation

Exception to Qualified Immunity: An Empirical

Study, 99 Wash. L. Rev. 725, 750 (2024) (finding that

Courts of Appeals have applied the obviousness exception following Taylor “to seven distinct constitutional

or statutory rights”).

Second, the logic underlying the obviousness exception applies equally outside the Eight Amendment.

Without an exception for obvious and egregious constitutional violations, the qualified immunity analysis

would lead to “perverse results,” McCoy v. Alamu,

950 F.3d 226, 236 (5th Cir. 2020) (Costa, J., dissenting

in part), vacated, 141 S. Ct. 1364 (2021), because “[t]he

The Fifth Circuit also misread this Court’s decision in Kisela v.

Hughes to require “[p]recedent involving similar facts,” when

Kisela instead reinforces the point that such a showing is necessary only “outside an obvious case.” 584 U.S. 100, 105 (2018) (per

curiam) (emphasis added) (cleaned up).

easiest cases don’t even arise,” so it will be difficult if

not impossible for a Section 1983 plaintiff to point to

a case with closely analogous facts, K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (Posner, J.). See also McMurry, 142 F.4th at 304 (Ho, J.,

concurring) (“It seems absurd to suggest that the most

egregious constitutional violations imaginable are

somehow immune from liability precisely because

they're so egregious.”).

Recognizing that logic, numerous circuits have

found that the obviousness standard makes as much

good sense when applied to rights other than those

protected by the Eighth Amendment. See supra 7-8;

see also Pet. 31-36; Pet. App. 99a-100a (Ho, J., dissenting) (explaining that court’s ruling conflicts with

holdings of “nine circuits”).

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

case because Laredo officials blatantly violated Villarreal’s First Amendment rights. Pet. 23-27; Pet. App.

65a-67a (Graves, J., dissenting) (right to newsgathering); id. at 79a-81a (Higginson, J., dissenting) (focusing on First Amendment retaliation claim); id. at 97a99a (Ho, J., dissenting). The analysis does not change

merely because a state statute purports to authorize

the unconstitutional conduct. Pet. 32–36 (collecting

cases in First Amendment context); Pet. App. 105a

(Ho, J., dissenting) (collecting “[a] mountain of Supreme Court and circuit precedent” for this principle).

Ultimately, “while we may not impute to officers

the foreknowledge of what a federal court may later

say, neither should we impute to officers the ignorance of what the First Amendment already says.”

Pet. App. 86a (Willett, J., dissenting). The Fifth Cir-

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

reverse.

II. THE POLICY CONSIDERATIONS USED TO

JUSTIFY QUALIFIED IMMUNITY DO NOT APPLY

HERE.

The Fifth Circuit’s renewed grant of qualified immunity—and its requirement, undisturbed on remand, of a “materially identical” case—is especially

improper for officials who undertook a deliberate,

months-long campaign to violate the First Amendment rights of a journalist.

The policy behind qualified immunity is to protect

officers who must make judgments “in circumstances

that are tense, uncertain, and rapidly evolving” from

liability for reasonable mistakes. Kingsley v. Hendrickson, 576 U.S. 389, 399 (2015) (cleaned up). So

qualified immunity offers “officials breathing room” to

make “split-second judgments.” al-Kidd, 563 U.S. at

743 (“breathing room”); Plumhoff v. Rickard, 572 U.S.

765, 775 (2014) (“split-second judgments”); Pasco ex

rel. Pasco v. Knoblauch, 566 F.3d 572, 582 (5th Cir.

2009) (on-the-spot judgments “without clear guidance

from legal rulings”); see also, e.g., Stanton v. Sims, 571

U.S. 3, 10 (2013) (per curiam) (granting qualified immunity to an officer who “made his split-second decision” when the law was not clearly established).

That rationale evaporates when a defendant undertakes a “premeditated plan to intimidate [the

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

100. When officers “make the deliberate and considered decision to trample on a citizen’s constitutional

rights, they deserve to be held accountable.” Wearry

v. Foster, 52 F.4th 258, 259 (5th Cir. 2022) (Ho, J., concurring in denial of rehearing en banc). Qualified immunity is meant to protect only officials who make

“mistaken judgments,” Messerschmidt v. Millender,

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

violate the law,” City of Tahlequah v. Bond, 595 U.S.

9, 12 (2021) (per curiam).

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

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

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

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

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

student organizations). As Justice Thomas recently

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

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

police officer who makes a split-second decision to use

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

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

the denial of certiorari). There is no logic to that “onesize-fits-all” approach. Ibid.

Here, Villarreal’s arrest was a result of deliberate

planning, “cooked up with legal advice from the Webb

County District Attorney’s Office.” Pet. App. 84a (Willett, J., dissenting). For months, the Laredo officials

looked for an excuse to arrest Villarreal because of her

journalism criticizing local government. And they

found one: arresting Villarreal under a Texas statute

that had never been used once in the 23 years of its

existence, because she asked a Laredo officer to verify

one of her stories, and the officer provided her with

information. The underlying retaliatory purpose was

clear, as Villarreal was arrested for routine newsgathering months after she had published the articles at

issue. This was not an arrest that required “quick decisions in circumstances that are tense, uncertain,

and rapidly evolving.” Nieves v. Bartlett, 587 U.S.

391, 403 (2019) (internal quotation marks omitted).

Judge Oldham made these very points after this

Court vacated the Fifth Circuit’s original judgment.

See Pet. App. 13a–18a (Oldham, J., concurring). He

observed that courts typically “use qualified immunity

to provide some breathing room for mistakes … that

are made in the fog of darkness and danger.” Id. at

15a. But he questioned “what purpose qualified immunity should serve in” cases—like “this case”—that

do not involve a “‘fast-moving, high-pressure, life-anddeath situation.’” Id. at 15a–16a. In such cases—

where “officials could have read Supreme Court precedent, studied the history of the First Amendment, or

even consulted counsel”—qualified immunity is inappropriate because the officials “had or should have

had ample ‘fair notice’ of the lawfulness vel non of

their conduct.” Id. at 16a.4

This Court, Judge Oldham noted, applies a “granularity requirement”—showing the particular conduct

at issue is clearly unlawful—to overcome qualified immunity in “cases involving … split-second decisionmaking.” Pet. App. 17a (citing, e.g., Mullenix v. Luna,

Judge Oldham joined the en banc majority on remand in reaffirming dismissal of Petitioner’s First Amendment claims only

because he believed that “Reichle v. Howards, 566 U.S. 658

(2012), controls this case.” Pet. App. 4a. Even were Reichle controlling—but see supra at 9—it does not foreclose the direct-violation claim based on the obvious First Amendment rights infringement. The Fifth Circuit majority erred in uncritically reinstating that aspect of its vacated judgment.

577 U.S. 7 (2015)). But in “other cases” where no such

pressure existed, “the standard has been more lenient.” Ibid. (citing Taylor, 592 U.S. 7). Specifically,

where officials have time to contemplate the legality

of their choices, “[i]t d[oes] not matter that no factually similar case c[an] be found.” Ibid. The law may

still be “sufficiently clear” to defeat qualified immunity. Ibid.

Such was the case here. Given the ample time Respondents had to reflect on whether to engage in conduct that obviously violated the First Amendment,

qualified immunity is unwarranted. This case is an

ideal vehicle for the Court to formally renounce the

one-size-fits-all approach to qualified immunity.

III. THE

FIFTH

CIRCUIT’S

RULE

WOULD

NEGATIVELY AFFECT LAW ENFORCEMENT AND

THE PUBLIC.

The dramatic expansion of criminal codes across

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

engaging in protected First Amendment activity to

find probable cause for some criminal violation on

which to base an arrest. Civil lawsuits against officers

who are engaged in premeditated, retaliatory arrests

serve as a critical check on this kind of misconduct.

Unless this Court intervenes, however, the Fifth

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

harder for the vast majority of honest officers to do

their job and keep their communities safe. It will also

chill First Amendment-protected speech and activity,

especially among journalists and those who hold

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

A. Barring Civil Liability Will Deprive The

Public Of A Key Deterrent Against The

Growing Threat Of Retaliatory Arrests.

Retaliatory arrests have become increasingly

common. See Amanda D’Souza et al., Federal Investigations of Police Misconduct: A Multi-City Comparison, 71 Crime, L., & Soc. Change 461, 474 (2019) (“[a]

troublesome finding in all [federal investigations over

the past two decades] was officers’ retaliatory actions

against citizens”). This trend is a byproduct of the

ever-growing size of modern criminal codes. See

GianCarlo Canaparo et al., Heritage Found., Count

the Code: Quantifying Federalization of Criminal

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

number of statutory provisions creating a federal

crime increased by 36% between 1994 and 2019);

James R. Copland & Rafael A. Mangual, Manhattan

Inst.,

Overcriminalizing

America

(2018),

bit.ly/41CLNfT (“common problems in state criminal

law” include “[t]oo many crimes on the books”).

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

readily find a minor offense they committed and use

that to justify an arrest. See Lozman, 585 U.S. at 99

(“[T]here is a risk that some police officers may exploit

the arrest power as a means of suppressing speech.”).

For instance, this Court recently observed that jaywalking is “endemic but rarely results in arrest.”

Nieves, 587 U.S. at 407. But an officer seeking to punish, for example, “an individual who has been vocally

complaining about police conduct” can exercise his

discretion and arrest that person if they jaywalk.

Ibid.

Broad arresting powers in the wrong hands can be

used to disproportionately burden disfavored groups.

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

“her newsgathering and reporting activities annoyed

them,” Pet. App. 69a (Higginson, J., dissenting), or a

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

111a (Ho, J., dissenting)—even though “informed public opinion is the most potent of all restraints upon

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

233, 250 (1936). And the ill effects of retaliatory arrests are especially likely to fall on poor and disadvantaged communities. See Ellen S. Podgor, The Dichotomy Between Overcriminalization and Underregulation, 70 Am. Univ. L. Rev. 1061, 1065 (2021).

Civil lawsuits are a vital check against police officers engaging in premeditated retaliatory arrests because they help “to hold public officials accountable

when they exercise power irresponsibly.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009); accord Harlow v.

Fitzgerald, 457 U.S. 800, 807 (1982) (acknowledging

“the importance of a damages remedy to protect the

rights of citizens”). This element of accountability ensures that the “government will respond to the will of

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

301 (1964) (Goldberg, J., concurring in the result); cf.

Harris v. Pittman, 927 F.3d 266, 282-283 (4th Cir.

2019) (Wilkinson, J., dissenting) (“Police officers do

overreach. And when they do, the law must hold them

to account.”).

The Fifth Circuit’s rule would close the courthouse

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

rights by officers who—despite having probable cause

for an arrest—clearly acted on retaliatory animus. By

requiring that the plaintiff show a prior case where

enforcement of a similar state law violated constitutional rights, Pet. App. 55a, the Fifth Circuit effectively makes qualified immunity “unqualified impunity,” id. at 84a (Willett, J., dissenting). Given the variety of state criminal codes, rarely will different

plaintiffs be subject to retaliatory enforcement under

similar laws.

That result will only further contribute “to the

deep deficit in police accountability throughout our

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

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

constitutional violations; allows departments to

gather information about misconduct and illegal uses

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

C. Schwartz, What Police Learn from Lawsuits, 33

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

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

bad-faith, unconstitutional behavior. See Schwartz,

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

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

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

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

would deprive many individuals of a crucial way to

hold accountable officers who retaliate against them

for engaging in constitutionally protected behavior.

B. The Fifth Circuit’s Decision Will

Undermine Trust In The Police And

Interfere With Public Safety.

Allowing officers who carry out deliberate, premeditated retaliatory arrests to avoid liability will diminish the public’s trust in, and cooperation with,

good-faith law enforcement efforts. Trust in the police

has declined over the past two decades, reaching its

lowest level in recent years, especially in minority

communities. See Emily Washburn, America Less

Confident in Police Than Ever Before: A Look at the

Numbers, Forbes (Feb. 3, 2023), bit.ly/3UJci1j. But

police officers are supposed to “occupy positions of

great public trust and high public visibility.” Gilbert

v. Homar, 520 U.S. 924, 932 (1997). If officers violating that trust are not held responsible, it will only exacerbate existing tensions between law-abiding police

officers and their communities and undermine law enforcement’s ability to maintain public safety.

“Effective police work, including the detection and

apprehension of criminals, requires that the police

have the trust of [their] community,” Reynolds v. City

of Chicago, 296 F.3d 524, 530 (7th Cir. 2002) (Posner,

J.), and that the public believes that police departments “will use [their] powers responsibly and adequately discipline officers who do not.” Crouse, 848

F.3d at 589 (Motz, J., concurring). Members of the

public need to believe in the good faith of officers so

they feel comfortable calling on law enforcement to

help in emergencies and aiding police investigations.

See Duncan v. Becerra, 970 F.3d 1133, 1161 (9th Cir.

2020) (noting that “some people, especially in communities of color, do not trust law enforcement and are

less likely ... to call 911 even during emergencies”).

And to do their job effectively, police officers need to

feel trusted by the people they serve. See Hernandez

v. City of Phoenix, 43 F.4th 966, 981 (9th Cir. 2022)

(“Police departments also have a strong interest in

maintaining a relationship of trust and confidence

with the communities they serve”).

Those police-community relations fray, and the

public’s trust is diminished, when officers engage in

misconduct without facing any consequences. Even

the bad acts of a small number of officers will hinder

community trust in the police, the vast majority of

whom carry out their jobs with dignity and honor.

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

and the Citizens They Serve 17 (2009),

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

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

99, the Fifth Circuit’s rule will further undermine

trust in the police and officers’ ability to fulfill their

duties to the public.

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

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

Trust, 9 Theoretical Criminology 443, 443 (2005)

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

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

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

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

S. Kirk et al., The Paradox of Law Enforcement in Immigrant Communities: Does Tough Immigration Enforcement Undermine Public Safety?, 641 Annals of

Am. Acad. of Pol. & Soc. Sci. 79, 79 (2012). These costs

are likely to be significant: A lack of trust in the police

is correlated with an increase in gun violence, which

in turn fuels a cycle of over-enforcement of minor misdemeanors, further eroding trust in the police and

fueling violence. See In Pursuit of Peace: Building Police-Community Trust to Break the Cycle of Violence,

Giffords L. Ctr. to Prevent Gun Violence (Sept. 9,

2021), bit.ly/4bFbD80. A qualified immunity rule that

promotes accountability for the minority of bad-faith

actors in law enforcement, by contrast, promotes public confidence in the integrity of the criminal justice

system.

C. Failing To Prohibit Premeditated

Retaliatory Arrests Will Chill First

Amendment-Protected Activity.

The Fifth Circuit’s holding is likely to chill activity

protected by the First Amendment. Individuals may

choose to abstain from newsgathering activities—or

speaking, petitioning the government, or engaging in

religious exercise—if they fear that law enforcement

may punish them with impunity for exercising their

constitutional rights.

When the government takes adverse action based

on an individual’s First Amendment activity, the “exercise of [protected] freedoms” is “in effect ... penalized

and inhibited.” Perry v. Sindermann, 408 U.S. 593,

597 (1972). And “to state that arresting someone in

retaliation for their exercise of free speech rights is

sufficient to chill speech is an understatement.” Lacey

v. Maricopa Cnty., 693 F.3d 896, 917 (9th Cir. 2012)

(en banc) (cleaned up) (citations omitted); see also Pet.

App. 122a (Ho, J., dissenting) (“[T]he American Constitution also guarantees freedom after the speech.”).

The free exchange of ideas will also be hampered

unless individuals know they can exercise their First

Amendment rights free from government penalty—

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

constitutional system,” Stromberg v. California, 283

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

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

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

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

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

906, 907-908 (5th Cir. 2023) (Ho, J., dissenting from

denial of rehearing en banc). The First Amendment

demands nothing less.

CONCLUSION

The petition should be granted.

Respectfully submitted.