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

Supreme Court briefAug 6, 2025

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No. 25-29

In The

Supreme Court of the United States

PRISCILLA VILLARREAL,

Petitioner,

ISIDRO R. ALANIZ, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE INSTITUTE FOR JUSTICE AS

AMICUS CURIAE SUPPORTING PETITIONER

CAROLINE GRACE BROTHERS

Counsel of Record

JABA TSITSUASHVILI

PATRICK JAICOMO

ANYA BIDWELL

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

cgbrothers@ij.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

Pages

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

SUMMARY OF ARGUMENT.................................... 1

ARGUMENT .............................................................. 5

I. The Fifth Circuit’s decision is inconsistent

with the plain text and original meaning of

Section 1983, which abrogates reliance on

state laws or immunities to evade liability. ........ 5

A. Section 1983 creates a remedy for

constitutional violations committed

“under color of” state laws like Section

39.06(c). ............................................................ 5

B. Historical textual evidence shows that

Section

1983

creates

liability

“notwithstanding” state statutes and

common law immunities. ................................ 6

II. The Fifth Circuit’s decision warrants review

and reversal because it breaks with this

Court’s conclusion that qualified immunity

excuses neither obvious constitutional

violations nor using a statute in an

obviously unconstitutional manner. .................. 11

A. Qualified immunity is not available for

obvious constitutional violations. ................. 11

B. Using a statute in an obviously

unconstitutional manner is obviously

unconstitutional. ........................................... 14

C. The obviousness standard is easy to

apply where, as here, government

officials spent months concocting a plan. ..... 19

III.Certiorari is necessary because the Fifth

Circuit’s decision is dangerous to a free

society and disserves qualified immunity’s

prudential considerations. .................................. 20

A. The Fifth Circuit’s decision hands the

government power to decide what is and

is not newsworthy, while preventing the

press and citizens from learning

information the government decides to

conceal. ........................................................... 21

B. By granting qualified immunity to the

officials, the Fifth Circuit charges

Villarreal with internalizing obscure

statutory knowledge while permitting

government officials to plead ignorance

of the First Amendment. ............................... 23

C. Allowing officials to duck accountability

here is especially concerning because it

removes a remedy while empowering

officials to use the innumerable laws at

their disposal to suppress speech. ................ 24

CONCLUSION ......................................................... 26

iii

TABLE OF AUTHORITIES

Cases

Pages

Anderson v. Myers,

182 F. 223 (C.C.D. Md. 1910) .............................. 10

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ............................................. 19

Branzburg v. Hayes,

408 U.S. 665 (1972) ....................................... 14, 22

Brownback v. King,

592 U.S. 209 (2021) ............................................... 1

Carey v. Nev. Gaming Control Bd.,

279 F.3d 873 (9th Cir. 2002) ............................... 15

Civil Rights Cases,

109 U.S. 3 (1883) ................................................... 9

Cooper v. Dillon,

403 F.3d 1208 (11th Cir. 2005) ........................... 15

Dep’t of Commerce v. New York,

139 S. Ct. 2551 (2019) ......................................... 11

Devillier v. Texas,

144 S. Ct. 938 (2024) ............................................. 1

Felder v. Casey,

487 U.S. 131 (1988) ............................................. 10

First Nat’l Bank of Bos. v. Bellotti,

435 U.S. 765 (1978) ............................................. 14

Fla. Star v. B.J.F.,

491 U.S. 524 (1989) ............................................. 14

Gonzaga Univ. v. Doe,

536 U.S. 273 (2002) ............................................... 7

Gonzalez v. Trevino,

602 U.S. 653 (2024) ............................... 1, 2, 18, 20

Grossman v. City of Portland,

33 F.3d 1200 (9th Cir. 1994) ............................... 16

Guillemard-Ginorio v. Contreras-Gómez,

490 F.3d 31 (1st Cir. 2007) .................................. 15

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ........... 4, 12, 17, 20, 22, 23, 25

Hartford Underwriters Ins. Co. v. Union

Planters Bank, N.A.,

530 U.S. 1 (2000) ................................................... 5

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021) ......................................... 19

Hope v. Pelzer,

536 U.S. 730 (2002) ................................... 3, 12, 14

Houchins v. KQED, Inc.,

438 U.S. 1 (1978) ................................................. 14

Lane v. Wilson,

307 U.S. 268 (1939) ............................................. 11

Lawrence v. Reed,

406 F.3d 1224 (10th Cir. 2005) ..................... 15, 16

Lederman v. United States,

291 F.3d 36 (D.C. Cir. 2002)................................ 15

Leonard v. Robinson,

477 F.3d 347 (6th Cir. 2007) ............................... 15

Maine v. Thiboutot,

448 U.S. 1 (1980) ................................................... 7

Martin v. United States,

145 S. Ct. 1702 (2025) ........................................... 1

McCoy v. Alamu,

141 S. Ct. 1364 (2021) ......................................... 12

McCoy v. Alamu,

950 F.3d 226 (5th Cir. 2020) ............................... 12

Michigan v. DeFillippo,

443 U.S. 31 (1979) ............................................... 15

Myers v. Anderson,

238 U.S. 368 (1915) ....................................... 10, 15

Nieves v. Bartlett,

587 U.S. 391 (2019) ................................... 3, 17, 24

Nixon v. Herndon,

273 U.S. 536 (1927) ............................................. 11

NLRB v. SW Gen., Inc.,

580 U.S. 288 (2017) ............................................... 8

NRA v. Vullo,

--- F.4th ----, 2025 WL 1966596

(2d Cir. July 17, 2025) .........................................25

O’Connor v. Eubanks,

83 F.4th 1018 (6th Cir. 2023) .............................. 18

Reichle v. Howards,

566 U.S. 658 (2012) ............................................. 17

Sause v. Bauer,

585 U.S. 957 (2018) ................................. 12, 13, 14

Sause v. Bauer,

859 F.3d 1270 (10th Cir. 2017) ........................... 13

Smith v. Allwright,

321 U.S. 649 (1944) ............................................. 11

Smith v. Daily Mail Pub. Co.,

443 U.S. 97 (1979) ............................................... 14

Taylor v. Riojas,

592 U.S. 7 (2020) ................................................. 12

Turner v. Driver,

848 F.3d 678 (5th Cir. 2017) ............................... 14

vii

Vives v. City of New York,

405 F.3d 115 (2d Cir. 2005) ................................. 15

Statutes, Regulations, and Codes

42 U.S.C. § 1983 .......................... 5, 6, 8, 10, 11, 17, 18

2 Cong. Rec. (1874) ...................................................... 8

Ku Klux Klan Act of 1871, ch. 22, § 1, 17

Stat. 18 (1871) ........................................................ 7

Texas Penal Code § 39.06(c) ............. 2, 3, 5, 14, 16, 22

Rules

Sup. Ct. R. 37.6 ........................................................... 1

Other Authorities

Alexander A. Reinert, Qualified Immunity’s

Flawed Foundation, 111 Calif. L. Rev. 201

(2023) .....................................................................7

Bryan A. Garner, Garner's Modern English

Usage (4th Ed. 2016) .............................................8

Erik

Luna,

The

Overcriminalization

Phenomenon, 54 Am. U. L. Rev. 703 (2005) .......24

Jason Tiezzi et al., Unaccountable: How

Qualified Immunity Shields A Wide Range

of Government Abuses, Arbitrarily Thwarts

Civil Rights, and Fails to Fulfill Its

Promises, Institute for Justice (Feb. 2024),

viii

https://ij.org/wp-content/uploads/2023/11/

Unaccountable-qualified-immunity-web.pdf ......19

Patrick Jaicomo & Daniel Nelson, Section 1983

(Still) Displaces Qualified Immunity, 49

Harv. J.L. & Pub. Pol’y ___ (2026) (forthcoming),

available

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=

5124275 ..................................................................8

Paul Farhi & Elahe Izadi, Journalists Are

Reexamining Their Reliance on a Longtime

Source: The Police, Wash. Post (June 30,

2020), https://wapo.st/2ECJ1la ...........................22

Paul J. Larkin, Public Choice Theory and

Overcriminalization, 36 Harv. J. L. Pub.

Pol’y 715 (2013).................................................... 25

Rebecca Neusteter & Megan O’Toole, Vera Inst.

of Justice, Every Three Seconds (Jan. 2019),

https://www.vera.org/publications/

arrest-trends-every-three-seconds-landing/

arrest-trends-every-three-seconds/ .....................25

Richard A. Matasar, Personal Immunities

Under Section 1983: The Limits of the

Court’s Historical Analysis, 40 Ark. L. Rev.

741 (1987)...............................................................9

Webster’s Complete Dictionary of the English

Language (1886) ....................................................8

William Baude, Is Qualified Immunity

Unlawful?, 106 Calif. L. Rev. 45 (2018) ..............10

INTEREST OF AMICUS CURIAE 1

The Institute for Justice (IJ) is a nonprofit public interest law firm committed to defending the essential foundations of a free society by securing

greater protection for individual liberty. Central to

that mission is promoting accountability for constitutional violations by government actors. IJ pursues

these goals in part through its Project on Immunity

and Accountability, which argues against the imposition of immunity and other doctrines that inhibit the

vindication of constitutional rights. IJ has recently argued before this Court regarding issues of constitutional accountability in Brownback v. King (19-546),

Devillier v. Texas (22-913), and Martin v. United

States (24-362). In fact, IJ argued Gonzalez v. Trevino

(22-1025), the case this Court instructed the Fifth Circuit to consider after granting certiorari, vacating,

and remanding this case last year. See Pet. App. 22a.

SUMMARY OF ARGUMENT

After investigating and deliberating for six

months, Respondents arrested Petitioner Priscilla

Villarreal—a citizen-journalist and known critic of

law enforcement—in 2017.

Her crime: Peacefully asking a police officer to corroborate information for two developing stories—a

1 No counsel for a party authored this amicus brief in whole

or in part. No person other than Amicus has made any monetary

contributions intended to fund the preparation or submission of

this brief. Amicus timely notified the parties that it intended to

file this brief. See Sup. Ct. R. 37.6.

routine newsgathering practice used by journalists

across the country.

Villarreal sued the officials who coordinated and

executed her arrest in 2019. Despite the officials’ obvious violation of the First and Fourth Amendments,

in 2024 the Fifth Circuit, sitting en banc, granted

those officials qualified immunity.

The officials’ get out of jail free card: using an obscure, rarely-enforced Texas law that prohibits soliciting or receiving nonpublic information from a government official with the intent to receive a benefit—

Texas Penal Code Section 39.06(c)—as a laundering

mechanism for the violation of Villarreal’s rights.

This Court then granted certiorari, vacated, and

remanded the case for further consideration in light

of Gonzalez v. Trevino, 602 U.S. 653 (2024) (per curiam). On remand in April 2025, a majority of the en

banc Fifth Circuit again granted qualified immunity

to the officials, “despite nearly six years of tenacious

First Amendment litigation that culminated successfully in [this Court].” Pet. App. 19a (Higginson, J., dissenting). Almost all the reasoning of the majority’s

2024 decision remains in full force: its previous opinion was superseded “only to th[e] extent” it addressed

Gonzalez. Id. 4a. In other words, it simply “reinstate[d]” its first opinion, “just in different packaging.” Id. 21a (Higginson, J., dissenting).

Just as it did the first time, the Fifth Circuit’s reinstated decision warrants review and reversal for

several reasons. First, it undermines the text and

original meaning of Section 1983. The text plainly imposes

liability

for

constitutional

violations

perpetrated “under color of” state laws like Section

39.06(c). And the original meaning is manifested by

both the 1871 Congressional debates and the original

text of the Ku Klux Klan Act, which stated that its

remedies apply “notwithstanding” any state laws or

immunities to the contrary. Allowing government officials to flout the guarantees of the First and Fourth

Amendments precisely because they dug up and

dusted off a state law to do so subverts Section 1983’s

text and purpose.

Second, Villarreal’s arrest obviously violated the

Constitution. No reasonable official would think the

First Amendment permits criminalizing plain speech

or routine journalism. See Hope v. Pelzer, 536 U.S.

730, 741–42 (2002). Nor does qualified immunity permit officials to use a state law in an obviously unconstitutional manner, especially when they had months

to consider the constitutionality of their plan.

And regarding Villarreal’s retaliation claim, the

violation of her First Amendment right is no less obvious because her remedy for that violation was unclear at the time of her arrest. The majority granted

qualified immunity to the officials because they arrested Villarreal before this Court clarified the contours of the no-probable-cause rule for retaliatory-arrest claims in Nieves v. Bartlett, 587 U.S. 391 (2019).

But it does not matter to the qualified immunity analysis whether the remedy is clearly established, so long

as the constitutional right is.

Third, the Fifth Circuit’s decision is inconsistent

with the prudential rationale underlying qualified immunity: the carefully calibrated balancing of government and individual interests. See Harlow v.

Fitzgerald, 457 U.S. 800, 813–20 (1982). That balance

was skewed heavily in favor of the government here

in at least three ways:

1. The Fifth Circuit’s decision allows the government to be gatekeeper and arbiter of newsworthy information, while preventing the press and everyone

else from accessing information the government

chooses not to share.

2. It places a heavier burden on citizens to know

and follow the law than it does on government officials. While Villarreal was expected to know that routine journalistic practices violated a rarely-enforced

provision of the Texas Penal Code, the officials sworn

to uphold the Constitution were allowed to plead ignorance of basic First Amendment principles.

3. Finally, by granting qualified immunity to officials for using a statute in an obviously unconstitutional manner, the Fifth Circuit took away any possibility of a remedy in those circumstances. At the same

time, it cemented officials’ power to use an arsenal of

statutes, ordinances, and regulations to punish their

critics. That provides precisely the “license to lawless

conduct” for government officials on one hand—with

no recourse for victims on the other—that qualified

immunity was meant to avoid. Harlow, 457 U.S. at

819.

ARGUMENT

I. The Fifth Circuit’s decision is inconsistent

with the plain text and original meaning of

Section 1983, which abrogate reliance on

state laws or immunities to evade liability.

Based on the Fifth Circuit’s ruling, officials in

Texas, Louisiana, and Mississippi who arrest someone based on protected speech are now “categorically

immune from § 1983 liability, no matter how obvious

the depredation, so long as they can recite some statute to justify it.” Pet. App. 94a (Ho, J., dissenting).

That rule cannot be squared with the text or original

meaning of 42 U.S.C. 1983.

A. Section 1983 creates a remedy for constitutional violations committed “under

color of” state laws like Section 39.06(c).

A rule that officials cannot be liable for constitutional violations—if they were enforcing a law that

had not yet been held unconstitutional—clashes with

the plain text of Section 1983. When interpreting and

applying a statute, courts must “begin with the understanding that Congress ‘says in a statute what it

means and means in a statute what it says there.’”

Hartford Underwriters Ins. Co. v. Union Planters

Bank, N.A., 530 U.S. 1, 6 (2000) (citation omitted).

And “when the statute’s language is plain, the sole

function of the courts—at least where the disposition

required by the text is not absurd—is to enforce it according to its terms.” Id. (cleaned up).

Section 1983’s language is clear: It imposes liability when officers violate the Constitution “under color

of any statute, ordinance, regulation, custom, or usage, of any State.” 42 U.S.C. § 1983.

But the Fifth Circuit’s rule allows the officials who

coordinated and executed Villarreal’s arrest to escape

liability precisely because they were acting “under

color of” a Texas law. See Pet. App. 44a–50a. Never

mind that enforcing that law meant arresting a journalist for simply asking questions—an obvious violation of the First Amendment. See Section II.A, infra.

And never mind that the officers weaponized the law

to “harass and intimidate” a known law enforcement

critic. Pet. App. 26a. Permitting officials to launder

their constitutional violations by acting “under color

of” state law gets the plain text of Section 1983 exactly

backwards.

B. Historical textual evidence shows that

Section 1983 creates liability “notwithstanding” state statutes and common law

immunities.

In fact, the original (and unchanged) meaning of

Section 1983 confirms not just that the text meant

what it said, but also that Congress abrogated reliance on state laws and immunities to commit or excuse federal constitutional violations.

1. The 42nd Congress enacted the Ku Klux Klan

Act in 1871 to provide federal remedies for rampant

abuses by southern states. Its familiar text now appears in the U.S. Code at 42 U.S.C. 1983:

Every 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 * * * .

This broad language creates a “mechanism for enforcing individual rights.” Gonzaga Univ. v. Doe, 536 U.S.

273, 285 (2002); see also Maine v. Thiboutot, 448 U.S.

1, 5 (1980).

Importantly, the Act contained “additional significant text” “[i]n between the words ‘shall’ and ‘be liable.’” Alexander A. Reinert, Qualified Immunity’s

Flawed Foundation, 111 Calif. L. Rev. 201, 235

(2023). It directed that officials “shall, any such law,

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

State to the contrary notwithstanding, be liable.” Ku

Klux Klan Act of 1871, ch. 22, § 1, 17 Stat. 18 (1871)

(emphases added).

This additional clause demonstrates that Congress never intended to enable State officials to escape liability under Section 1983 by hiding behind

state laws, including positive statutory laws or common law immunities. “[A]ny law, statute, ordinance,

[or] regulation” has the same meaning that it would

today: any laws enacted by the State. And the 1871

Congress would have understood “custom[] or usage”

to mean “common law,” which was the source of “the

vast majority of immunity doctrine available to state

actors.” Reinert, supra, at 235–36.

Finally, “notwithstanding” means “[w]ithout opposition, prevention, or obstruction from,” or “in spite

of.” Webster’s Complete Dictionary of the English

Language 894 (1886); NLRB v. SW Gen., Inc., 580

U.S. 288, 301 (2017) (ordinary meaning of “notwithstanding” is “in spite of” or “without prevention or obstruction from or by”); Bryan A. Garner, Garner’s

Modern English Usage 635 (4th ed. 2016) (“This usage [of notwithstanding] has been constant from the

1300s to the present day.”).

So the inclusion of the “Notwithstanding Clause”

means the liability created by Section 1983 applied

despite the operation of state laws, including state

statutes and common law immunities.

2. And Congress intended to preserve the meaning of that text when it purposefully omitted the

clause.

It was dropped three years later when Congress

gathered federal laws in one place for the first time in

compiling the Revised Statutes of 1874. Historical evidence shows Congress did not intend to make any

substantive change to Section 1983—or any other

statute—in the process of codification. See Patrick

Jaicomo & Daniel Nelson, Section 1983 (Still) Displaces Qualified Immunity, 49 Harv. J.L. & Pub. Pol’y

___ (2026) (forthcoming), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5124275.

Instead, because codification required condensing

seventeen volumes into one while “preserv[ing] absolute identity of meaning in the law,” 2 Cong. Rec. 4220

(1874) (Sen. Conkling), the Notwithstanding Clause

was omitted merely for “[b]revity,” Jaicomo & Nelson,

supra, at 62.

Indeed, less than a decade after codification, this

Court concluded that the decision to remove similar

notwithstanding clauses in Reconstruction-era civilrights statutes did not change their meaning. In the

Civil Rights Cases, it explained that the purpose of

this “very important clause” was to underscore the

statute’s “point and effect.” 109 U.S. 3, 16 (1883). And

it observed that although the Revised Statutes “omitted” the clause, they retained “the effective part of the

law * * * thus preserving the corrective character of

the legislation.” Id. at 16–17.

3. The 1871 Congressional debates reinforce the

conclusion that Congress never intended state statutes or immunities to shelter officials from the consequences of violating federal rights:

[F]ar from being silent about immunities, the debates on [Section 1983] are

replete with statements of the opponents of civil rights statutes that the

legislation was overriding those immunities. Furthermore, nothing in the

legislative history is said to assuage

the fears of these opponents. Thus,

Congress was not silent about immunities; it was only silent about retaining

immunities.

Richard A. Matasar, Personal Immunities Under Section 1983: The Limits of the Court’s Historical Analysis, 40 Ark. L. Rev. 741, 771 (1987).

That makes perfect sense, as “the central objective of the Reconstruction-Era civil rights statutes * * * is to ensure that individuals whose federal

constitutional or statutory rights are abridged may

recover damages or secure injunctive relief.” Felder v.

Casey, 487 U.S. 131, 139 (1988) (citation omitted).

Because Section 1983 “provides a uniquely federal

remedy against incursions upon rights secured by the

Constitution and laws of the Nation,” id. (cleaned up),

allowing the enforcement of state law to nullify that

federal remedy subverts the statute’s purpose.

4. In fact, since 1871, this Court has repeatedly

held officials liable for violating constitutional rights,

notwithstanding the use of state laws to do so.

In Myers v. Anderson, 238 U.S. 368 (1915), for example, this Court affirmed a Section 1983 judgment

against Maryland election officials who prevented

three Black men from voting pursuant to an unconstitutional statute. Id. at 377–78. The officials argued

they should not be liable because they believed, in

good faith, that the statute was constitutional. See

William Baude, Is Qualified Immunity Unlawful?,

106 Calif. L. Rev. 45, 57 (2018) (citing officials’ briefing). But the Court rejected that argument. Myers,

238 U.S. at 378. Instead, it affirmed the lower court’s

holding that anyone enforcing an unconstitutional

law “does so at his own peril and is made liable to an

action for damages.” Anderson v. Myers, 182 F. 223,

230 (C.C.D. Md. 1910).

And in a trio of cases in the first half of the twentieth century, this Court reversed the dismissal of

Section 1983 actions against state officials who enforced state laws to prevent Black citizens from voting, in violation of the Fourteenth and Fifteenth

Amendments. In none of those three cases did this

Court discuss whether the officials were immune from

suit, notwithstanding the fact they enforced state

laws that abridged the plaintiffs’ federal constitutional rights. See Smith v. Allwright, 321 U.S. 649,

650–52 (1944) (election officials denied petitioner permission to vote based on state party resolution); Lane

v. Wilson, 307 U.S. 268, 269 (1939) (election officials

prevented petitioner from registering to vote based on

state legislation); Nixon v. Herndon, 273 U.S. 536,

539–41 (1927) (election officials prevented petitioner

from voting based on state legislation).

II. The Fifth Circuit’s decision warrants review

and reversal because it breaks with this

Court’s conclusion that qualified immunity

excuses neither obvious constitutional violations nor using a statute in an obviously unconstitutional manner.

Qualified immunity undermines Section 1983’s

purpose to hold officials accountable “notwithstanding” common-law immunities.

But even modern qualified-immunity doctrine has

its limits. As this Court has recognized, qualified immunity does not allow government officials to escape

liability for obvious constitutional violations. Nor

does it allow officials to launder their obvious constitutional violations through state law, especially when

those violations are premeditated.

A. Qualified immunity is not available for

obvious constitutional violations.

1. In assessing government conduct, judges do not

“exhibit a naiveté from which ordinary citizens are

free.” Dep’t of Commerce v. New York, 139 S. Ct. 2551,

2575 (2019) (citation omitted). For all its flaws,

qualified immunity is not a “license to lawless conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).

“Where an official could be expected to know that certain conduct would violate * * * constitutional rights,

he should be made to hesitate.” Id. (emphases added).

As this Court has recognized, then, the “salient question” is “fair warning,” not “danger[ously] * * * rigid[]

overreliance on factual similarity” to past cases. Hope

v. Pelzer, 536 U.S. 730, 741–42 (2002).

So—even when no factually-identical caselaw exists—this Court “has made clear that public officials

who commit obvious constitutional violations are not

entitled to qualified immunity.” Pet. App. 99a (Ho, J.,

dissenting). That is because “a general constitutional

rule already identified in the decisional law may apply with obvious clarity to the specific conduct in

question” without on-point caselaw. Hope, 536 U.S. at

741 (citations omitted).

In recent years, this Court has reinforced that

principle by reversing grants of qualified immunity

for obvious violations of constitutional rights. See

Hope, 536 U.S. at 745–46 (defendants tied plaintiff to

a painful “hitching post” as punishment); Taylor v. Riojas, 592 U.S. 7, 8–9 (2020) (defendants put plaintiff

in “deplorably unsanitary conditions for * * * extended period”); McCoy v. Alamu, 141 S. Ct. 1364

(2021) (defendant pepper-sprayed plaintiff “for no

reason,” see 950 F.3d 226, 234-37 (5th Cir. 2020)

(Costa, J., dissenting in part)).

And in Sause v. Bauer, 585 U.S. 957 (2018) this

Court applied that “obviousness” standard in the

First Amendment context. In that case, the Tenth Circuit granted two police officers qualified immunity

after they entered a woman’s living room in response

to a noise complaint, she knelt down to pray, and the

officers ordered her to stop. Sause v. Bauer, 859 F.3d

1270, 1275 (10th Cir. 2017). The Tenth Circuit reasoned that Ms. Sause couldn’t “identify a single case

in which this court, or any other court for that matter,

had found a First Amendment violation based on a

factual scenario even remotely resembling the one we

encounter here.” Id. But this Court reversed the grant

of qualified immunity, despite “the absence of a prior

case involving the unusual situation alleged,” because

“[t]here can be no doubt that the First Amendment

protects the right to pray.” Sause, 585 U.S. at 959.

2. The same obviousness standard applies here.

As recounted by the Fifth Circuit: (1) Villarreal asked

an officer to corroborate information about a suicide

and a car accident; (2) the officer answered; (3) six

months later, the defendants arrested and prosecuted

Villarreal because she “solicited or received” that

“nonpublic” information and “benefitted” (in the form

of journalistic scoops, Facebook followers, and some

free meals). Pet. App. 26a–30a.

In other words, Villarreal did what journalists do

every day—uncover information from government

sources to publish scoops and benefit from their efforts—and the defendants arrested and prosecuted

her (and only her) for it, after ruminating for months.

Reasonable officials would have had fair warning

that arresting Villarreal for asking questions of a public official would violate the First and Fourth Amendments. To reach that conclusion, passing familiarity

with the phrase “abridging the freedom of speech, or

of the press” (see Amendment I) and our national

culture should have sufficed. But “general constitutional rule[s] already identified in the decisional law”

also made it obvious. Hope, 536 U.S. at 741. It is axiomatic that “there is ‘an undoubted right to gather

news from any source by means within the law.’”

Turner v. Driver, 848 F.3d 678, 688 (5th Cir. 2017)

(emphases added) (quoting Houchins v. KQED, Inc.,

438 U.S. 1, 11 (1978)).

Indeed, this Court “has made clear that the First

Amendment protects the publication of information

obtained via ‘routine newspaper reporting techniques’—which include asking for the name of a crime

victim from government workers not clearly authorized to share such information.” Pet. App. 65a

(Graves, J., dissenting) (citing Smith v. Daily Mail

Pub. Co., 443 U.S. 97, 99, 99–104 (1979)); see also Fla.

Star v. B.J.F., 491 U.S. 524, 534 (1989); First Nat’l

Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978);

Branzburg v. Hayes, 408 U.S. 665, 681–82 (1972).

So, “[j]ust as it’s obvious that Sause has the right

to pray, it’s equally obvious that Villarreal has the

right to ask questions.” Pet. App. 101a (Ho, J., dissenting). Any reasonable official would have had fair

warning that the Constitution prohibits arresting a

person for asking questions of a government employee.

B. Using a statute in an obviously unconstitutional manner is obviously unconstitutional.

Nor does the fact that Respondents wielded a state

statute—Texas Penal Code § 39.06(c)—to violate

Villarreal’s rights erase that fair warning or make her

arrest less obviously unconstitutional.

1. This Court has explained (under the exclusionary rule) that officials cannot avoid the consequences

of constitutional violations by asserting reliance on a

statute “so grossly and flagrantly unconstitutional

that any person of reasonable prudence would be

bound to see its flaws.” Michigan v. DeFillippo, 443

U.S. 31, 38 (1979).

The Fifth Circuit contends that DeFillippo provides, at most, “a possible exception” to immunity for

officials who enforce “grossly and flagrantly unconstitutional” laws. Pet. App. 47a–48a.

But in doing so, it breaks with “[a] mountain of Supreme Court and circuit precedent.” Pet. App. 105a

(Ho, J., dissenting) (collecting cases); see Myers, 238

U.S. at 382 (“the new statute did not relieve the new

officers of their duty, nor did it impose a shield to prevent the operation upon them of the provisions of the

Constitution”). At least seven circuits agree that reliance on “a statute [that] authorizes conduct that is

patently violative of fundamental constitutional principles * * * does not immunize” misconduct. Lawrence

v. Reed, 406 F.3d 1224, 1232 (10th Cir. 2005) (cleaned

up). See Guillemard-Ginorio v. Contreras-Gómez, 490

F.3d 31, 40–41 (1st Cir. 2007); Vives v. City of New

York, 405 F.3d 115, 117–19 (2d Cir. 2005); Leonard v.

Robinson, 477 F.3d 347, 359, 361 (6th Cir. 2007);

Carey v. Nev. Gaming Control Bd., 279 F.3d 873, 881

(9th Cir. 2002); Cooper v. Dillon, 403 F.3d 1208, 1220–

21 (11th Cir. 2005); Lederman v. United States, 291

F.3d 36, 47 (D.C. Cir. 2002).

Stated differently: “[O]fficers are not always entitled to rely on the legislature’s judgment that a statute is constitutional” because “some statutes are so

obviously unconstitutional that we will require officials to second-guess the legislature and refuse to enforce an unconstitutional statute—or face a suit for

damages.” Lawrence, 406 F.3d at 1232–33.

2. It follows, then, that “just as officers can be liable for enforcing an obviously unconstitutional statute, they can also be liable for enforcing a statute in

an obviously unconstitutional way.” Pet. App. 85a

(Willett, J., dissenting). If—as this Court and seven

circuits agree—government officials should know that

a statute is facially unconstitutional, they surely

should know that its use in a particular circumstance

is unconstitutional. See Grossman v. City of Portland,

33 F.3d 1200, 1210 (9th Cir. 1994) (no immunity for

“egregious manner” of enforcement, or “exceed[ing]

the bounds of the ordinance”).

The question is not limited, as the Fifth Circuit

would have it, to merely whether the officers had

probable cause to arrest under the statute. See, e.g.,

Pet. App. 3a, 44a. Instead, “the overarching inquiry is

whether, in spite of the existence of the statute, a reasonable officer should have known that his conduct”

violated the Constitution. Lawrence, 406 F.3d at

1232.

And here, any reasonable officer should have

known that applying Section 39.06(c) to Villarreal’s

circumstances was an “egregious manner” of enforcement or “exceed[ed] the bounds of the [statute]” because it allowed them to jail her for asking a police

officer for information. Grossman, 33 F.3d at 1210.

These are precisely the circumstances in which officers “could be expected to know that certain conduct

would violate * * * constitutional rights” and therefore “be made to hesitate.” Harlow, 457 U.S. at 819.

“And that should be devastating to [Respondents’]

claim of qualified immunity.” Pet. App. 99a (Ho, J.,

dissenting).

3. This standard applies with equal force even

when an obvious constitutional violation might not

have an obvious remedy.

On remand from this Court, the Fifth Circuit

again granted qualified immunity to the officials on

Villarreal’s First Amendment retaliation claim (without addressing her direct violation claim). See Pet.

App. 2a–4a. Because Villarreal was arrested before

this Court carved out an exception to the no-probablecause rule for Section 1983 retaliatory-arrest claims

in Nieves, the majority concluded that she had no

clearly-established “‘right to be free from a retaliatory

arrest that is supported by probable cause[.]’” Pet.

App. 3a (quoting Reichle v. Howards, 566 U.S. 658,

664–65 (2012)).

But whether and how the no-probable-cause rule

applied at the time of Villarreal’s arrest is a separate

question from whether her underlying right was

clearly established. Although Reichle concluded there

was no “clearly established” “right to be free from retaliatory arrest” if the officers had probable cause, 566

U.S. at 664–65, this Court has since “clarified” that

“the no-probable-cause rule concerns only remedies,

not rights,” Pet. App. 8a (Oldham, J., concurring). In

other words, it is “an element of the cause of action

[for a retaliatory-arrest claim], rather than part of the

underlying constitutional right[.]” Id. 11a; see also

O’Connor v. Eubanks, 83 F.4th 1018, 1025 (6th Cir.

2023) (Thapar, J., concurring) (“We should first ask

whether a cause of action exists against the official.

Then, we should ask if that official’s conduct violated

clearly established law.”) The United States took the

same position in the amicus brief it submitted in Gonzalez, explaining that the no-probable-cause rule “is a

requirement for a damages claim under Section 1983,

not a limitation on the First Amendment itself[.]”

Brief for the United States as Amicus Curiae Supporting Neither Party at 11, Gonzalez v. Trevino, 602 U.S.

653 (2024) (No. 22-1025).

Qualified immunity is concerned with the definition of the constitutional right at stake, not the definition of the remedy for violations of that right. Because the only question is whether an officer had “fair

notice” that her conduct was unconstitutional, it is “irrelevant whether [she] should have known about the

existence and nature of a cause of action to remedy

that unlawful conduct.” Pet. App. 11a (Oldham, J.,

concurring).

Here, the officers’ violation of Villarreal’s First

Amendment rights is no less obvious because they

happened to arrest her before this Court clarified how

she could later sue them. “[W]hether the contours of

the no-probable-cause rule have been clearly established” should not matter to the qualified-immunity

analysis. Id. 13a.

C. The obviousness standard is easy to apply

where, as here, government officials spent

months concocting a plan.

The unlawfulness of the officers’ conduct is underscored by the six months they spent planning Villarreal’s arrest.

To be sure, courts sometimes justify granting qualified immunity in dangerous scenarios where officials

might need “breathing room” to “make reasonable but

mistaken judgments.” Ashcroft v. al-Kidd, 563 U.S.

731, 743 (2011); see also Pet. App. 14a–15a (Oldham,

J., concurring).

But it makes no sense to provide “the same protection” to officials “who have time to make calculated

choices about enacting or enforcing unconstitutional

policies” as officials compelled to make “a split-second

decision to use force in a dangerous setting.” Hoggard

v. Rhodes, 141 S. Ct. 2421, 2422 (2021) (Thomas, J.,

statement regarding denial of certiorari). 2

The officials who arrested Villarreal certainly had

time to examine the lawfulness of their actions, yet

they chose to forge ahead anyway. This was no “snap

decision or heat-of-the-moment gut call.” Pet. App.

83a (Willett, J., dissenting). They had time to “read

2 Calculated retaliation is all too common. According to a re-

cent study that analyzed over 5,500 federal qualified immunity

appeals, nearly 1 in 5 cases included a First Amendment claim.

And most of those alleged premeditated retaliation. See Jason

Tiezzi et al., Unaccountable: How Qualified Immunity Shields A

Wide Range of Government Abuses, Arbitrarily Thwarts Civil

Rights, and Fails to Fulfill Its Promises, 23–24, Institute for Justice (Feb. 2024), https://ij.org/wp-content/uploads/2023/11/Unaccountable-qualified-immunity-web.pdf.

Supreme Court precedent, stud[y] the history of the

First Amendment, or even consult[] counsel.” Id. 16a

(Oldham, J., concurring). But they didn’t. Instead, the

officers “dust[ed] off and weaponiz[ed] a dormant

Texas statute never successfully wielded in the statute’s near-quarter-century of existence. This * * * was

the premeditated pursuit of a confirmed critic.” Id.

83a (Willett, J., dissenting).

In such circumstances, qualified immunity does

not serve even its ostensible purpose. Its purported

goal is preventing litigation from “‘dampen[ing]’ the

‘ardor’” of well-meaning officials, but “when it comes

to at least some retaliatory-arrest defendants, perhaps that ardor should be dampened.” Id. 16a. (Oldham, J., concurring) (quoting Harlow, 457 U.S. at 814

and citing Gonzalez, 602 U.S. at 658).

III. Certiorari is necessary because the Fifth

Circuit’s decision is dangerous to a free society and disserves qualified immunity’s

prudential considerations.

The Fifth Circuit’s reasoning is not only inconsistent with history and precedent, it also undermines

this Court’s purported prudential justification for

qualified immunity: balancing the need to avoid “excessive disruption of government” on the one hand

with the need to ensure “deterrence of unlawful conduct and [] compensation of victims” on the other.

Harlow, 457 U.S. at 813–20.

The en banc majority threw off that balance by

placing a thumb on the government’s side of the scale

in three ways. First, by justifying Villarreal’s arrest

because she used a “backchannel” source to seek

information rather than the police department’s official spokesperson, see, e.g., Pet. App. 25a, the Fifth

Circuit subverted citizens’ and journalists’ interest in

discovering information while empowering the government to decide what is and is not newsworthy. Second, the grant of qualified immunity here tells government officials that they need not understand basic

constitutional principles while burdening citizens like

Villarreal with the responsibility to adhere to obscure,

rarely enforced statutes. And third, the Fifth Circuit’s

decision takes away a citizen’s remedy when an official enforces a law against them in an unconstitutional way, but allows motivated officials to use the

innumerable laws, statutes, regulations, and ordinances on the books to find probable cause to arrest

almost anyone.

A. The Fifth Circuit’s decision hands the

government power to decide what is and

is not newsworthy, while preventing the

press and citizens from learning information the government decides to conceal.

The Fifth Circuit justified the officers’ decision to

arrest Villarreal based on her choice to use an “illicit,”

“backchannel source”—a police officer she knew—to

corroborate her information. See Pet. App. 2a, 25a,

40a, 43a, 62a. But that reasoning resulted in a dangerous conclusion: if a person asks for and receives information from a government official—outside official

“information officer[s]” or the Public Information Act

process—she can be arrested and prosecuted. Id. 26a.

And because the Fifth Circuit declined to decide

whether section 39.06(c) violates the First Amendment as applied to journalists who obtain “nonpublic

information through unofficial channels,” id. 33a, officials across Texas are free to keep using Respondents’ playbook with no accountability.

That decision comes with a huge “social cost[].”

Harlow, 457 U.S. at 814. It allows the government to

become the arbiter of newsworthiness, while

“limit[ing] journalists who work the government beat

to publicly disclosed documents and official press conferences, meaning they will only be able to report information the government chooses to share.” Pet.

App. 68a (Graves, J., dissenting). And it erodes the

ability of the press—and everyone else—to learn facts

that some government officials may not want us to

know. See Branzburg, 408 U.S. at 681–82 (“The use of

confidential sources by the press is not forbidden or

restricted; reporters remain free to seek news from

any source by means within the law.” (emphasis

added)).

At a time when Americans are expressing increased skepticism and doubt about the credibility

and reliability of official police accounts and reports,

see generally Paul Farhi & Elahe Izadi, Journalists

Are Reexamining Their Reliance on a Longtime

Source: The Police, Wash. Post (June 30, 2020),

https://wapo.st/2ECJ1la, the Fifth Circuit’s decision

threatens to make us all less knowledgeable.

Worse, it’s unconstitutional. “There is simply no

way [freedom of the press] can meaningfully exist unless journalists are allowed to seek non-public information from the government.” Pet. App. 65a (Graves,

J., dissenting).

B. By granting qualified immunity to the officials, the Fifth Circuit charges Villarreal

with internalizing obscure statutory

knowledge while permitting government

officials to plead ignorance of the First

Amendment.

Although qualified immunity was supposed to ensure that officers are only shielded from liability if

they could not “be expected to know that [their] conduct would violate statutory or constitutional rights,”

Harlow, 457 U.S. at 819, the decision here places a

much heavier burden on everyday citizens to know

and follow the law than it does on government officials.

The Fifth Circuit insisted that none of this would

have happened if Villarreal had “followed Texas law,

or challenged that law in court, before reporting nonpublic information from [her] backchannel source.”

Pet. App. 25a. So Villarreal was required to know that

(1) she was asking for information that obscure sections of the Texas Government Code and Transportation Code might have prohibited some officers from

disclosing, and (2) that Officer Goodman, her source,

was not one of the officials authorized to disclose that

information. See id. 34a–39a.

On the other hand, under the Fifth Circuit’s reasoning, the officers who arrested Villarreal—the ones

charged with enforcement of the law and sworn to uphold the Constitution—were not expected to know

that basic First Amendment law and decades of jurisprudence prohibited them from arresting a journalist

for seeking information. See, e.g., id. 24a, 44a, 47a

(reasoning that the officers could not have

“predict[ed]” that arresting Villarreal was unconstitutional).

“In other words, encyclopedic jurisprudential

knowledge is imputed to Villarreal, but the government agents targeting her are free to plead (or feign)

ignorance of bedrock constitutional guarantees.” Id.

84a (Willett, J., dissenting). The balance of interests

underpinning qualified immunity is lopsided when

“ignorance of the law is an excuse—for government

officials.” Id.

C. Allowing officials to duck accountability

here is especially concerning because it

removes a remedy while empowering officials to use the innumerable laws at their

disposal to suppress speech.

Finally, granting Respondents qualified immunity

because they enforced a state law also tips the scales

in favor of the government. The decision below “categorically” denies a remedy to any Texan, Mississippian, or Louisianan whose rights are violated if the

official “can recite some statute to justify” the violation, id. 94a (Ho, J., dissenting), making it all too easy

for officials to find and use a law—any law—to punish

their critics.

The public interest in ensuring accountability here

is especially strong because “criminal laws have

grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be

arrested for something.” Nieves, 587 U.S. at 412 (Gorsuch, J., concurring in part and dissenting in part).

And “innumerable local ordinances carry the possibility of criminal consequences,” including jailtime. Erik

Luna, The Overcriminalization Phenomenon, 54 Am.

U. L. Rev. 703, 704 (2005).

Because “the police almost always will have probable cause to arrest someone for something,” Paul J.

Larkin, Public Choice Theory and Overcriminalization, 36 Harv. J. L. Pub. Pol’y 715, 720 (2013), granting immunity based on mechanic invocations of local

or state laws would allow officials to “wield facially

constitutional statutes as blunt cudgels to silence

speech (and to punish speakers) they dislike,” Pet.

App. 86a (Willett, J., dissenting); see also, e.g., NRA v.

Vullo, --- F.4th ----, 2025 WL 1966596, at *8, *13–14

(2d Cir. July 17, 2025) (granting Vullo qualified immunity for coercive and retaliatory enforcement of

state laws against NRA’s business partners).

That carries real consequences. Even without a

conviction, arrest or jailing is life-altering: it harms

employment, housing, children, and health. See Rebecca Neusteter & Megan O’Toole, Vera Inst. of Justice,

Every

Three

Seconds

(Jan.

2019),

https://www.vera.org/publications/arrest-trendsevery-three-seconds-landing/arrest-trends-everythree-seconds/.

Allowing government officials to wield those

“blunt cudgels” with impunity provides precisely the

“license to lawless conduct”—without a remedy—that

qualified immunity was designed to avoid. Harlow,

457 U.S. at 819.

***

In short: the Fifth Circuit’s decision turns the

First Amendment on its head by permitting officials

to spend months cooking up a plan to punish a

journalist by arresting her—for doing something journalists do every day—and then launder their misconduct by mechanically invoking a state law. Countenance what it may, the qualified immunity regime

does not (and cannot) countenance that.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,