When Richard Hershey stood on a public sidewalk outside the Brookshire Grocery Arena in Bossier City, Louisiana, to hand out pamphlets promoting the Chirstian Vegetarian Association outside a Christian rock concert, he was doing what many generations of Americans have done before him: peacefully exercising his First Amendment rights in a traditional public forum. Yet, local police and arena security officers threatened him with arrest and forced him to leave, even as they left a nearby representative of a commercial radio station entirely unbothered. Seeking justice for this blatant display of viewpoint discrimination, Mr. Hershey filed a federal civil rights lawsuit under a statute commonly known as Section 1983. But rather than vindicate his rights, the federal district court granted the officers qualified immunity, and the US Court of Appeals for the Fifth Circuit affirmed.
The Fifth Circuit reached this conclusion through a highly restrictive and isolated reading of Supreme Court precedent. Specifically, the appellate court held that the Supreme Court’s landmark 2002 decision in Hope v. Pelzer applies only to Eighth Amendment cases. Under Hope, the Supreme Court held that government officials can be held liable for obvious constitutional violations even without the plaintiff pointing to a nearly identical, earlier case. By cabining this common-sense rule to the prison conditions context, the Fifth Circuit held that because Mr. Hershey’s claim arose under the First Amendment rather than the Eighth Amendment, the officers who shut down his peaceful advocacy were immune from liability.
No other federal appellate court limits the obviousness exception in this way. The Fifth Circuit’s outlier decision continues a troubling pattern of circuit judges inventing arbitrary, atextual frameworks to narrow the Supreme Court’s rulings—a practice the Supreme Court has repeatedly and explicitly rejected.
The Cato Institute, joined by the Law Enforcement Action Partnership, filed an amicus brief urging the Supreme Court to grant certiorari and reverse the Fifth Circuit’s decision. The brief emphasizes that Section 1983 was originally enacted during the Reconstruction era to provide a robust federal remedy for Americans whose constitutional rights are violated by state and local officials. In fashioning an artificial loophole that shields blatant First Amendment abuses, the Fifth Circuit’s ruling rewards bad-faith government actors and insulates egregious misconduct from civil liability. Peaceful expression on a public sidewalk is a bedrock First Amendment practice, and when public officials intentionally abuse their authority to suppress it, federal courts must remain open to provide a remedy.
