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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 27, 2025
No. 24-50571 Lyle W. Cayce
____________ Clerk
Megan Marie McMurry, Individually and as next friend of J.M.;
Adam Seth McMurry, Individually and as next friend of J.M.;
Alesia Jade McMurry,
Plaintiffs—Appellees,
versus
Alexandra Weaver,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CV-242
______________________________
Before King, Ho, and Ramirez, Circuit Judges.
King, Circuit Judge:
Officer Alexandra Weaver took a fourteen-year-old child from her
home during a child welfare investigation. The child and her parents sued,
claiming Weaver searched the apartment and seized the child in violation of
their Fourth and Fourteenth Amendment rights. Weaver now brings an
interlocutory appeal of the district court’s order denying her motion for
summary judgment on the basis of qualified immunity. We AFFIRM.
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I.
The following are the facts the district court found sufficiently
supported by the summary judgment record.
In October 2018, Plaintiff-Appellee Megan McMurry resided in a
gated apartment complex in Midland, Texas with her daughter, Plaintiff-Appellee J.M., (then age fourteen) and son C.M. (then age twelve). J.M. took
classes virtually from home, C.M. attended Abell Junior High School (Abell),
part of the Midland Independent School District (MISD), and Ms. McMurry
taught at Abell. Ms. McMurry’s husband and the children’s father, Plaintiff-Appellee Seth Adam McMurry, was deployed to the Middle East with the
National Guard. To explore a job opportunity that would allow the family to
move closer to Mr. McMurry, Ms. McMurry planned a trip to Kuwait from
Thursday, October 25 to Tuesday, October 30.
Before leaving, Ms. McMurry arranged for a neighbor, Vanessa
Vallejos, to check in on J.M. and C.M., and for coworkers to take C.M. to
school. J.M. often babysat Ms. Vallejos’s son, and Ms. McMurry had
arranged for Ms. Vallejos to watch J.M. and C.M. while she was out of town
in the past.
On the morning of October 26, 2018, Defendant-Appellant Alexandra
Weaver, a police officer with MISD, received a text from a counselor who
was supposed to take C.M. to school that day. Weaver already knew that Ms.
McMurry was out of the country because Ms. McMurry had emailed all Abell
campus employees including Weaver a few days earlier. Upon receiving the
text, she became concerned that J.M. and C.M. were without adult
supervision, and informed her supervisor, Officer Kevin Brunner, of her
concerns.
Weaver and Brunner then proceeded to meet with three of Ms.
McMurry’s coworkers and learned that (1) Ms. McMurry was traveling for a
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job interview; (2) C.M. was at school; (3) a neighbor, whose son J.M. often
babysat, was checking on the children daily; and (4) J.M. was homeschooled.
Weaver and Brunner then went to the McMurrys’ apartment to conduct a
welfare check on J.M.
Weaver and Brunner arrived at the apartment at around 10 a.m. that
morning. J.M. answered the door and confirmed that her mother was
overseas, and a neighbor was checking on her and C.M. J.M. also told the
officers that the neighbor had last checked on her that morning and offered
to share the neighbor’s phone number for the officers to call. Brunner then
instructed J.M. to “go get some warm clothes on . . . then come visit with me
outside.” Brunner asked if Weaver could accompany her into the apartment
while she did so. J.M. responded “Mm-hmm,” then burst into tears and said
“I’m scared.”
Inside the apartment, Weaver told J.M. not to contact her mother.
While J.M. changed clothes in her room, Weaver “looked around the living
room and kitchen, peeking into the pantry and opening the refrigerator and
freezer doors.” The pantry was “stocked with food.” “Weaver’s body
camera footage reveals no signs of a dangerous or abusive environment or any
other exigent circumstances.” Nor does the footage reveal anything “that
sounds or looks like” J.M. giving Weaver consent to search the apartment.
The interaction lasted about five minutes.
Weaver and Brunner then questioned J.M. in the apartment
complex’s conference room. “J.M. asked to call her father but was not
allowed to do so.” After about fifteen minutes, Weaver and Brunner drove
to Abell, with J.M. in the backseat of their police car. Brunner instructed J.M.
not to respond to her father’s attempts to contact her and “recommended”
she not contact Ms. Vallejos. Brunner also called CPS to tell them he was
taking the children to Abell around this time.
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At the school, Brunner placed J.M. in a private office. When Ms.
Vallejos and her husband arrived, they told Brunner they were checking on
C.M. and J.M. and had last seen the children the night before. Ms. Vallejos
was then permitted to see J.M. and the two FaceTimed Mr. McMurry. By
that afternoon, CPS had concluded that the situation did not meet the criteria
for abuse and neglect and sent the children home with Ms. Vallejos and her
husband.
Afterward, Brunner continued criminally investigating Ms.
McMurry, and ultimately filed two probable cause affidavits to arrest and
charge Ms. McMurry with abandoning or endangering her children. In
January 2020, a jury acquitted Ms. McMurry of all charges.
After the acquittal, the McMurrys and J.M. sued Weaver, asserting
constitutional claims under § 1983 and state law claims arising from these
events. Weaver moved for summary judgment, asserting qualified immunity.
The district court concluded Weaver was not entitled to qualified immunity
and denied summary judgment on three claims: (1) the McMurrys’ Fourth
Amendment claim for unreasonable search of the apartment; (2) J.M.’s
Fourth Amendment claim for unreasonable seizure, and (3) the McMurrys’
Fourteenth Amendment claim for procedural due process. Weaver timely
appealed.
II.
“A district court’s denial of a motion for summary judgment on the
basis of qualified immunity is immediately appealable under the collateral
order doctrine, to the extent that the order turns on a matter of law.” Trent
v. Wade, 776 F.3d 368, 376 (5th Cir. 2015). But our jurisdiction is limited.
Kinney v. Weaver,
367 F.3d 337, 346–47 (5th Cir.2004) (en banc). “[I]n an
interlocutory appeal we cannot challenge the district court’s assessments
regarding the sufficiency of the evidence—that is, the question whether there
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is enough evidence in the record for a jury to conclude that certain facts are
true.” Id. at 347. Instead, “we have jurisdiction only to decide whether the
district court erred in concluding as a matter of law that officials are not
entitled to qualified immunity on a given set of facts.”
Id. This limitation on
our jurisdiction is often described as allowing us to “review the materiality of
any factual disputes, but not their genuineness.”
Id. (quoting Wagner v. Bay
City,
227 F.3d 316, 320 (5th Cir. 2000)).
Summary judgment is required when “the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). Given our limited
jurisdiction, we do not apply the same Rule 56 standard de novo. Kinney, 367
F.3d at 348. Instead, we “consider only whether the district court erred in
assessing the legal significance of the conduct that the district court deemed
sufficiently supported for purposes of summary judgment.”
Id. “Our review
of the legal significance of the facts is de novo.” Cantrell v. City of Murphy,
666 F.3d 911, 922 (5th Cir. 2012).
III.
On appeal, Weaver contends the district court erred in denying
qualified immunity at summary judgment on the unreasonable search,
unreasonable seizure, and procedural due process claims. 1 “The doctrine of
qualified immunity protects public officials from liability for civil damages
_____________________
1
Plaintiffs-Appellees assert that we lack jurisdiction over this appeal because
Weaver’s arguments challenge the genuineness of factual disputes. “We do have
jurisdiction, but only to the extent that the appeal concerns the purely legal question
whether the defendants are entitled to qualified immunity on the facts that the district court
found sufficiently supported in the summary judgment record.” Kinney, 367 F.3d at 347.
We lack jurisdiction, and therefore do not address, Weaver’s arguments to the extent they
challenge the district court’s assessment of the sufficiency of the evidence (e.g., whether
Weaver or Brunner contacted CPS).
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‘insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’”
Jennings v. Patton, 644 F.3d 297, 300 (5th Cir. 2011) (quoting Pearson v.
Callahan,
555 U.S. 223, 231 (2009)). “This analysis involves two steps: (1)
we must determine whether the plaintiffs suffered a violation of their rights
as a matter of law, and then (2) we must decide whether the right at issue was
clearly established at the time of the alleged misconduct.” Banks v. Herbrich,
90 F.4th 407, 412 (5th Cir. 2024). Courts “exercise their sound discretion in
deciding which of the two prongs of the qualified immunity analysis should
be addressed first.” Guerra v. Castillo,
82 F.4th 278, 285 (5th Cir. 2023)
(quoting Pearson,
555 U.S. at 236). Where, as here, a defendant asserts the
defense of qualified immunity, “the burden shifts to the plaintiff to show that
the defense is not available.” Trent,
776 F.3d at 376.
A.
Weaver first challenges the district court’s denial of qualified
immunity on the Fourth Amendment unreasonable search claim. “It is a
‘basic principle of Fourth Amendment law that searches and seizures inside
a home without a warrant are presumptively unreasonable.’” Brigham City v.
Stuart, 547 U.S. 398, 403 (2006) (quoting Groh v. Ramirez,
540 U.S. 551, 559
(2004)). “[B]ecause the ultimate touchstone of the Fourth Amendment is
‘reasonableness,’ the warrant requirement is subject to certain exceptions.”
Id. The well-recognized exception for exigent circumstances “applies when
the exigencies of the situation make the needs of law enforcement so
compelling that a warrantless search is objectively reasonable under the
Fourth Amendment.” Missouri v. McNeely,
569 U.S. 141, 148–149 (2013)
(quoting Kentucky v. King,
563 U.S. 452, 460 (2011)). In the context of child
welfare investigations, this court has explained that “the typical Fourth
Amendment standards of a court order, consent, or exigent circumstances
apply.” Gates v. Texas Dept. of Protective and Reg. Services,
537 F.3d 404, 424
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(5th Cir. 2008). Exigent circumstances exist when a child faces “immediate
danger.” Id. at 423.
Here, the parties do not dispute that Weaver searched the refrigerator
without a court order or consent. 2 To comply with the Fourth Amendment,
the search must be justified by exigent circumstances. Gates, 537 F.3d at 422–
24. But Weaver does not argue that there were exigent circumstances, and
the district court found that there were none. Instead, Weaver relies on a
“special needs” or “community caretaking” exception to the warrant
requirement. Neither applies here.
A warrant may not be required where there is a “special need” that is
“divorced from the State’s general interest in law enforcement,” such as a
principal’s search of a student’s purse for drugs in school. Roe v. Texas Dept.
of Protective and Reg. Services, 299 F.3d 395, 404 (5th Cir. 2002) (quoting
Ferguson v. City of Charleston,
532 U.S. 67, 79 (2001)). Similarly, different
standards may apply when the police perform “community caretaking
functions” that are “totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal statute.” Bakutis
v. Dean,
129 F.4th 299, 303 (5th Cir. 2025) (quoting United States v. York,
895 F.2d 1026, 1030 (5th Cir. 1990)). Child welfare investigations are not
sufficiently divorced from general law enforcement, or the violation of a
criminal statute, to support the application of either exception. See Gates,
537
F.3d at 424 (holding that because a home visit “to investigate possible child
abuse was not separate from general law enforcement, the special needs
doctrine cannot be used to justify the warrantless entry”); Roe, 299 F.3d at
406–07 (explaining that “the goal of protecting a child’s welfare” is not
_____________________
2
The district court found that J.M. consented to Weaver entering the apartment
and dismissed the unreasonable search claim to the extent it relied on Weaver’s entry. That
ruling is not challenged on appeal.
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easily disentangled “from general law enforcement purposes”). That is
particularly evident here, where criminal charges were ultimately brought
against Ms. McMurry.
To the extent Weaver intended to argue the search was justified by
exigent circumstances, the summary judgment evidence does not establish
that J.M. faced any “immediate danger.” Gates, 537 F.3d at 422–23 (finding
no exigent circumstances to justify entry into a home where the stated
purpose was to “interview the children” rather than “guard them against
some sort of immediate danger” and the alleged abuser was not home).
Moreover, it is difficult to see how viewing a refrigerator’s contents could
guard against any immediate danger, especially given Weaver could see food
in the pantry. See Mincey v. Arizona, 437 U.S. 385, 393 (1978) (explaining “a
warrantless search must be strictly circumscribed by the exigencies which
justify its initiation” (internal quotations omitted)).
Because a jury could find that the warrantless search here was not
justified by exigent circumstances, and no other exception justifies the
search, the McMurrys have asserted a constitutional violation of their Fourth
Amendment right to be free from unreasonable searches. To survive
summary judgment, the McMurrys must also show that the constitutional
violation was clearly established as of October 2018.
By 2018, Gates had held that government officials conducting home
visits “to investigate possible child abuse” must satisfy “the typical Fourth
Amendment standards of a court order, consent, or exigent circumstances.”
Gates, 537 F.3d at 424. Gates had defined exigent circumstances in this
context as “immediate danger” to the children.
Id. at 422–23. And Wernecke
applied Gates’ standard to the child endangerment, rather than child abuse,
context. Wernecke v. Garcia,
591 F.3d 386, 397 (5th Cir. 2009). This is
sufficient to put Weaver on notice that she would be committing a
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constitutional violation if she opened the refrigerator without a court order,
consent, or a reasonable belief of immediate danger to the children. See
Delaughter v. Woodall, 909 F.3d 130, 140 (5th Cir. 2018) (explaining the
“central concern is whether the official has fair warning”).
Contrary to Weaver’s arguments, the community caretaking
exception does not undermine the clarity of this established law. By holding
that the typical Fourth Amendment standards apply in this context, Gates
foreclosed the possibility of a lower standard justified by community
caretaking. 537 F.3d at 424. Moreover, the rationale behind Gates’ explicit
rejection of the special needs exception applies with equal force to
community caretaking: The home entry “was not divorced from the state’s
general interest in law enforcement.”
Id. Based on the facts supported by the
summary judgment record, the McMurrys have established that Weaver’s
search was a constitutional violation of clearly established law that defeats
qualified immunity.
B.
Weaver next challenges the district court’s denial of qualified
immunity on J.M.’s Fourth Amendment unreasonable seizure claim. “[T]he
Fourth Amendment . . . applies to the seizure of children from their homes.”
Gates, 537 F.3d at 427. The same standard governs: “[T]he government may
not seize a child from his or her parents absent a court order, parental
consent, or exigent circumstances.”
Id. at 429. “Exigent circumstances in
this context means that, based on the totality of the circumstances, there is
reasonable cause to believe that the child is in imminent danger . . . if [s]he
remains in h[er] home.” Gates,
537 F.3d at 429.
J.M. was seized from her home without a court order or parental
consent. See McMurry v. Brunner, No. 21-50888, 2022 WL 17493708, at *2
(5th Cir. Dec. 7, 2022) (explaining “a reasonable fourteen-year-old would not
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have believed she was free to leave”). Like the search, the seizure requires
exigent circumstances to comply with the Fourth Amendment. Again,
Weaver does not argue there were exigent circumstances, and a jury could
find that Weaver did not have reasonable cause to believe that fourteen-yearold J.M. faced any “immediate danger” at home alone in a gated apartment
complex in the middle of the day. 3
Furthermore, at the time of the alleged violation, Gates and Wernecke
“had clearly established that an officer could not reasonably remove a child
from their home absent a court order, parental consent, or exigent
circumstances.” Brunner, 2022 WL 17493708, at *2 (citing Gates, 537 F.3d
at 427–29; Wernecke,
591 F.3d at 398). Weaver’s arguments to the contrary
are unavailing. Her reliance on the community caretaking exception fares no
better here. And it is not reasonable to believe that J.M. transformed her
family’s apartment into the constitutional equivalent of a public school
merely by attending virtual classes from home. See Payton v. New York,
445
U.S. 573, 590 (1980) (“[T]he Fourth Amendment has drawn a firm line at
the entrance to the house.”). Because the summary judgment evidence
supports a violation of J.M.’s clearly established Fourth Amendment right to
be free from unreasonable seizure, Weaver is not entitled to qualified
immunity.
C.
Finally, Weaver challenges the district court’s denial of qualified
immunity on the McMurrys’ procedural due process claim. The Due Process
Clause of the Fourteenth Amendment “does not just provide parents with
_____________________
3
Weaver does argue that she was merely following Brunner’s lead, but the district
court found the evidence sufficient to show the officers acted collaboratively. We lack
jurisdiction to review that finding. Kinney, 367 F.3d at 346–47.
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substantive protection from interference with their liberty interest in the
care, custody, and management of their children.” Romero v. Brown, 937 F.3d
514, 521 (5th Cir. 2019). “It also requires that the state follow certain
procedures before encroaching on those parental rights.”
Id. A parent’s
procedural due process claim premised on the seizure of her child is governed
by the same standard that governs the child’s underlying Fourth Amendment
claim for unreasonable seizure.
Id. at 521. “The rule is this: A child cannot be
removed ‘without a court order or exigent circumstances.’”
Id. (quoting
Gates,
537 F.3d at 434).
Here, the McMurrys’ Fourteenth Amendment claim for procedural
due process is premised on J.M.’s Fourth Amendment claim for
unreasonable seizure. Accordingly, the McMurrys have established a
constitutional violation sufficient to survive summary judgment for the same
reasons: J.M. was seized without a court order or exigent circumstances. And
that violation was equally clearly established by Gates and Wernecke. Romero,
937 F.3d at 522–23 (denying qualified immunity on procedural due process
claim in part because Gates and Wernecke clearly established the violation);
Gates, 537 F.3d at 435; Wernecke,
591 F.3d at 391 n.7. The district court did
not err in denying qualified immunity on the McMurrys’ procedural due
process claim.
IV.
Finding no reversible error in the district court’s proceedings, we
AFFIRM.
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James C. Ho, Circuit Judge, concurring:
It seems obvious that parents don’t forfeit their constitutional rights
just because they choose to educate their children at home, rather than at a
public school. Yet that’s exactly what defense counsel contends here.
Counsel theorizes that parents who choose to homeschool convert
their private homes into public schools for Fourth Amendment purposes. As
a result, police officers can take children away from their home, and prevent
their parents from communicating with them, if they’re homeschooled.
This is obviously wrong as a matter of law—and offensive to parental
rights. Yet counsel claims that, because “there’s no case law” specifically
rejecting this defense theory, families who homeschool can’t claim any
“clearly established” rights, so qualified immunity must be granted.
It’s an argument that warrants swift repudiation. And that’s precisely
what our court does today. See ante, at 11. I concur but write separately
because I’m troubled that counsel felt comfortable attempting the argument.
I’m especially troubled because it’s not counsel’s fault—it’s our own
fault. It’s our own decisions that invite arguments like this—in conflict with
Supreme Court precedent, separate opinions by Justices Thomas and
Gorsuch, and the precedents of every other court of appeals in the country.
I.
During oral argument, defense counsel put forth a remarkable legal
theory that should alarm anyone who believes in the privacy of the home—
as well as the basic right of every parent to raise their own children:
There’s . . . another area where the law isn’t clearly
established. And that is: Was she taken from an apartment or
was she taken from her school?
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The reason I say that is because she was attending virtual
school at the time . . . she was in class, so to speak, doing her
work on her computer.
There’s no case law whatsoever that establishes that an
apartment stays an apartment when you’re going to school.
We have a whole new area of law that’s going to emerge
because we have homeschooling. . . . We don’t have any cases
whatsoever. . . .
There was no clearly established law to violate. . . . Because it’s
not clear that a home is a home . . . when it’s being used at the
time for virtual school.
Oral Arg. at 9:10–10:27.
This is obviously wrong as a matter of rudimentary constitutional
principle. The Fourth Amendment expressly assures every one of us—
including families who homeschool—that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” U.S. Const. amend. IV. It
seems obvious that “physical entry of the home is the chief evil against which
the wording of the Fourth Amendment is directed.” United States v. United
States Dist. Ct. for E. Dist. of Mich., 407 U.S. 297, 313 (1972). See also Payton
v. New York,
445 U.S. 573, 585 (1980) (same).
To justify intrusions on this bedrock liberty based on the educational
choices parents make for their children does not evade the constitutional
objection—it exacerbates it. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 213–
14 (1972) (“the values of parental direction of the religious upbringing and
education of their children in their early and formative years have a high place
in our society,” and implicates “fundamental rights and interests, such as
those specifically protected by the Free Exercise Clause of the First
Amendment, and the traditional interest of parents with respect to the
religious upbringing of their children”);
id. at 232 (“The history and culture
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of Western civilization reflect a strong tradition of parental concern for the
nurture and upbringing of their children,” and the “primary role of the
parents in the upbringing of their children is now established beyond debate
as an enduring American tradition.”); Troxel v. Granville, 530 U.S. 57, 65
(2000) (plurality op. of O’Connor, J.) (“the interest of parents in the care,
custody, and control of their children” is “perhaps the oldest of the
fundamental liberty interests recognized”); Dobbs v. Jackson Women’s Health
Org.,
597 U.S. 215, 256 (2022) (noting “the right to make decisions about the
education of one’s children”) (citing Pierce v. Soc’y of Sisters,
268 U.S. 510
(1925), and Meyer v. Nebraska,
262 U.S. 390 (1923)); Michael E. Lechliter,
The Free Exercise of Religion and Public Schools: The Implications of Hybrid
Rights on the Religious Upbringing of Children,
103 Mich. L. Rev. 2209,
2215 (2005) (“parents have a fundamental right under the U.S. Constitution
to direct the religious upbringing of their children”); Darryn Cathryn
Beckstrom, Balancing Civic Values and Parents’ Free Exercise Rights,
45
Gonz. L. Rev. 149, 165 (2010) (“[P]arents have rights under the First
Amendment’s Free Exercise Clause . . . to protect their ability to control the
upbringing of their children.”).
II.
So I’m grateful that the majority denies qualified immunity—and does
so by summarily dismissing counsel’s defense theory. After all, it’s precisely
because counsel’s theory is so obviously wrong that the McMurrys shouldn’t
have to identify specific governing precedent to avoid qualified immunity.
The Supreme Court has repeatedly denied qualified immunity where
it found the constitutional violation so “obvious” that it didn’t require the
plaintiff to identify factually indistinguishable case law. See, e.g., Hope v.
Pelzer, 536 U.S. 730, 741 (2002) (“general statements of the law . . . may
apply with obvious clarity to the specific conduct in question, even though
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the very action in question has not previously been held unlawful”) (cleaned
up) (quoting United States v. Lanier, 520 U.S. 259, 270–71 (1997), and
Anderson v. Creighton,
483 U.S. 635, 640 (1987)); see also Taylor v. Riojas,
592
U.S. 7, 8–9 & n.2 (2020) (summarily reversing our court’s grant of qualified
immunity due to the “obviousness” of the constitutional violation) (citing
Hope and Lanier).
The “obviousness” principle recognized in cases like Hope and Taylor
should be intuitive to all who cherish our constitutional liberties. Then-Judge
Gorsuch captured it well: “[S]ome things are so obviously unlawful that they
don’t require detailed explanation.” Browder v. City of Albuquerque, 787 F.3d
1076, 1082 (10th Cir. 2015). “[S]ometimes the most obviously unlawful
things happen so rarely that a case on point is itself an unusual thing.”
Id.
“[I]t would be remarkable if the most obviously unconstitutional conduct
should be the most immune from liability only because it is so flagrantly
unlawful that few dare its attempt.”
Id. at 1082–83.
And that’s precisely the point. It seems absurd to suggest that the
most egregious constitutional violations imaginable are somehow immune
from liability precisely because they’re so egregious. It would make a
mockery of our rights to grant qualified immunity just because no one in
government has yet to be abusive enough to commit that particular
violation—and then stubborn enough to litigate it, not only before a district
court, but also in the court of appeals (or the Supreme Court).
III.
But although it should be easy to dismiss counsel’s plainly erroneous
defense, it’s profoundly disquieting that the defense finds so much support
in our court’s precedents. An enduring en banc majority has repeatedly held
that Hope and Taylor apply only to the Eighth Amendment—and not, for
example, to obvious violations of the First Amendment.
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In Villarreal v. City of Laredo, 94 F.4th 374 (5th Cir. 2024), the en banc
majority admitted that Hope and Taylor denied qualified immunity based on
“obvious” and “particularly egregious” constitutional violations—and did
so without requiring a “fact-specific[]” presentation of case law.
Id. at 395.
But the majority waved away those decisions on the ground that
they’re “Eighth Amendment cases”—and that they establish only a
“narrow[] obviousness exception” that should not apply to obvious
violations of the First Amendment. Id.
Why the en banc majority 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. It simply claimed support in our
earlier en banc decision in Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011).
Id. Contra Morgan,
659 F.3d at 412, 414 n.30 (Elrod, J., dissenting in part)
(concluding that Hope applies to obvious First Amendment violations).
Fortunately, the Supreme Court subsequently vacated our en banc
decision in Villarreal. See Villarreal v. Alaniz, 145 S. Ct. 368 (2024).
But our en banc majority has now responded by reinstating its
previous statements on Hope and Taylor. See Villarreal v. City of Laredo, 134
F.4th 273, 276 (5th Cir. 2025) (“[o]ur previous en banc majority opinion is
superseded only to th[e] extent” necessary to respond to the Supreme
Court’s vacatur regarding the substantive requirements of a First
Amendment retaliation claim). So I must confront Morgan and Villarreal.
A.
Our decisions in Morgan and Villarreal have been widely disparaged
as troubling rulings that badly undermine First Amendment rights, and thus
warrant swift reversal by the Supreme Court—consistent with the Court’s
summary reversal of our circuit in Taylor.
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Morgan has been sharply criticized by religious liberty experts as a
terrible “mistake” that makes it “so difficult to establish fair warning for
unconstitutional actions that qualified immunity will cease to be
‘qualified.’” 4
Villarreal further compounds the error we made in Morgan. A broad
coalition of leading civil rights and religious liberty organizations—including
but not limited to Alliance Defending Freedom, Constitutional
Accountability Center, First Liberty Institute, and Project for Privacy and
Surveillance Accountability—have called our en banc decision in Villarreal
“insidious” and “dangerous.” See, e.g., Brief of First Liberty Institute as
Amicus Curiae in Support of Petitioner, Villarreal v. Alaniz, No. 23-1155
(U.S.), 2024 WL 2058693, at *10–11 (“The approach taken by the Fifth
Circuit towards qualified immunity is exactly the kind of approach this Court
castigated in Hope and its progeny” and “has an insidious quality.”); Brief of
Young America’s Foundation and Manhattan Institute as Amici Curiae in
Support of Petitioner, Villarreal v. Alaniz, No. 23-1155 (U.S.),
2024 WL
2786483, at *12 (“Left undisturbed, the Fifth Circuit’s ruling provides
dangerous license for government actors to flagrantly violate the
Constitution without recourse, even against the most established rights,
simply because they invoke a novel factual situation never before specifically
addressed by the courts.”); Brief of Project for Privacy and Surveillance
Accountability as Amicus Curiae in Support of Petitioner, Villarreal v.
Alaniz, No. 23-1155 (U.S.),
2024 WL 2786482, at *1–2 (en banc decision
“will have serious adverse consequences throughout the Fifth Circuit and in
_____________________
4
See Hiram Sasser, Fifth Circuit Gets It Right in Arnold Decision, Federalist
Soc’y (Dec. 20, 2021), https://fedsoc.org/commentary/fedsoc-blog/fifth-circuit-gets-itright-in-arnold-decision; Ilya Shapiro, Morgan v. Swanson, Cato Institute (Jan. 26,
2012), https://www.cato.org/legal-briefs/morgan-v-swanson-0.
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any other jurisdictions that follow that Circuit’s analysis”); Brief for Amicus
Curiae Americans for Prosperity Foundation in Support of Petitioner,
Villarreal v. Alaniz, No. 23-1155 (U.S.), 2024 WL 2058690; Brief of Amicus
Curiae Center for American Liberty in Support of the Petitioner, Villarreal v.
Alaniz, No. 23-1155 (U.S.),
2024 WL 2786477; Brief of the Institute for
Justice as Amicus Curiae Supporting Petitioner, Villarreal v. Alaniz, No. 23-
1155 (U.S.),
2024 WL 2786491; Brief of Constitutional Accountability
Center as Amicus Curiae in Support of Petitioner, Villarreal v. Alaniz, No.
23-1155 (U.S.),
2024 WL 2786494.
B.
This chorus of criticism of Morgan and Villarreal is sadly warranted.
“Nothing in § 1983 suggests that courts should favor the Eighth
Amendment rights of convicted criminals over the First Amendment rights
of law-abiding citizens.” Villarreal, 94 F.4th at 413 (Ho, J., dissenting). Yet
that’s precisely what Morgan and Villarreal require. They make the qualified
immunity analysis in Hope and Taylor available to incarcerated prisoners—
and no one else. They apply those principles to the Eighth Amendment, but
for some unexplained reason, not the First. In sum, they “treat the First
Amendment as a second-class right.”
Id.
Not surprisingly, that plainly misreads Supreme Court precedent.
Nothing in Hope and Taylor indicate that its qualified immunity analysis turns
on which provision of the Constitution is at issue. See also, e.g., id. at 414
(discussing Sause v. Bauer,
585 U.S. 957 (2018)). Nor does the wisdom
expressed by then-Judge Gorsuch in Browder—a case that does not involve
the Eighth Amendment at all.
787 F.3d 1076.
So it’s not surprising that every other circuit in America rejects our
court’s counterintuitive vision of qualified immunity. Every other federal
court of appeals across the country has held that “the standards articulated
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in Hope apply specifically in the First Amendment” or in other constitutional
contexts. Villarreal, 94 F.4th at 413 (Ho, J., dissenting). See
id. at 413–14
(collecting First Amendment cases from the First, Second, Third, Fourth,
Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits, and non-First
Amendment cases from the Eighth and D.C. Circuits). See also Morgan,
659
F.3d at 412, 414 n.30 (Elrod, J., dissenting in part)).
C.
There’s another reason why Morgan and Villarreal should be rejected,
as noted by Justice Thomas in Hoggard v. Rhodes, 141 S. Ct. 2421 (2021).
It’s one thing to grant qualified immunity when it comes to police
officers who are forced to make split-second judgment calls in life-and-death
situations. It’s quite another thing to immunize public officials who make a
deliberate and calculated decision to violate one’s constitutional rights. As
Justice Thomas put it, “why should [public officials] who have time to make
calculated choices about enacting or enforcing unconstitutional policies,
receive the same protection as a police officer who makes a split-second
decision to use force in a dangerous setting?” Id. at 2422 (Thomas, J.,
respecting denial of certiorari).
I’ve long agreed with that vision of qualified immunity, beginning with
my partial dissent in Horvath v. City of Leander, 946 F.3d 787, 801–3 (5th Cir.
2020) (distinguishing between “police officers who put their lives on the
line” and public officials who make a considered decision to infringe on
religious liberties). “When public officials are forced to make split-second,
life-and-death decisions in a good-faith effort to save innocent lives, they
deserve some measure of deference.” Wearry v. Foster,
52 F.4th 258, 259
(5th Cir. 2022) (Ho, J., concurring in denial of rehearing en banc). But
“when public officials make the deliberate and considered decision to
trample on a citizen’s constitutional rights, they deserve to be held
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accountable.” Id. See also, e.g., Villarreal v. City of Laredo,
17 F.4th 532, 540–
41 (5th Cir. 2021) (“There is a big difference between split-second decisions
by police officers and premeditated plans to arrest a person for her
journalism.”) (quotations omitted), superseded by
44 F.4th 363, 371 (5th Cir.
2022) (same), vacated on reh’g en banc,
52 F.4th 265 (5th Cir. 2022); Oliver v.
Arnold,
19 F.4th 843, 852 (5th Cir. 2021) (Ho, J., concurring in denial of
rehearing en banc) (“[I]magine we denied qualified immunity to a police
officer for making a split-second, life-or-death decision to protect innocent
citizens against violent criminals—but granted qualified immunity to a public
school teacher who deliberately punished a student for exercising her
freedom of conscience on one of the most sensitive issues dividing our
Nation. To my mind, that would turn the law upside down.”); Gonzalez v.
Trevino,
60 F.4th 906, 912 (5th Cir. 2023) (Ho, J., dissenting from denial of
rehearing en banc) (“We’re . . . getting qualified immunity backwards” if
“[o]fficers who deliberately target citizens who hold disfavored political
views face no accountability—but officers who make split-second, life-anddeath decisions to stop violent criminals must put their careers on the line for
their heroism.”).
So I’m grateful that six members of our court embraced these
principles in three different en banc dissents in Villarreal. See 94 F.4th at 399
(Graves, J., dissenting);
id. at 406–7 (Willett, J., dissenting);
id. at 410 (Ho,
J., dissenting). And I’m regretful that the majority rejected these views, and
instead granted qualified immunity, both before and after the Supreme Court
vacated our first en banc decision in Villarreal.
IV.
But just because counsel’s argument finds support in Morgan and
Villarreal doesn’t mean I have to go along with it.
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As a member of this panel, I’m of course duty bound to follow en banc
precedent—whether I agree with it or not. But I’m not obliged to extend it.
See, e.g., Neese v. Becerra, 127 F.4th 601, 603 (5th Cir. 2025) (Ho, J.,
dissenting from denial of rehearing en banc) (“[W]e are duty-bound to
faithfully apply [binding precedent] as an inferior court, regardless of one’s
views on the matter. But we are not required to extend it.”) (citation
omitted).
So I won’t. It’s unfortunate that Morgan and Villarreal decline to
protect citizens from obvious violations of the First Amendment. It’s
unsurprising that Morgan and Villarreal have been sharply criticized by a
diverse range of leading legal voices as a result. I will not make things worse
by extending this mistaken body of precedent and refusing to protect citizens
from obvious violations of the Fourth Amendment as well as the First.
…
I agree with the denial of summary judgment based on qualified
immunity, and accordingly concur.
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