In a splintered panel decision in Hershey v. City of Bossier City, the Fifth Circuit considered the First Amendment’s application to an individual distributing religious leaflets on a public sidewalk, shedding additional light on its understanding of qualified immunity for public officials and municipalities.

Factual and Procedural Background

Richard Hershey alleged that he wanted to distribute religious pamphlets on a public sidewalk while a concert was being held at a city-owned center nearby, but that a group of police officers and security guards threatened to arrest him if he did so. Simultaneously, another person handed out commercial advertisement cards for an internet radio station. A private security guard informed Hershey that the commercial cards were “approved” by the center, whereas Hershey’s had not been. Hershey left without handing out more literature and did not return because he feared arrest and jail. The officers did not remove the other leafleteer.

Basis of Alleged Liability and District Court Decision

Hershey brought claims for violation of his First Amendment rights against the City, the officers, and security guards. The district court dismissed his claims at the Federal Rule of Civil Procedure 12(b)(6) stage, ruling that:

1. the officers were entitled to qualified immunity because Hershey failed to show that the law clearly established his right to distribute literature free from viewpoint discrimination in a traditional public forum;
2. the security guards did not qualify as state actors under 42 U.S.C. § 1983; and
3. Hershey did not allege a municipal policy or custom that could make the City liable under Monell.

Primary Issue on Appeal and Fifth Circuit’s Analysis

Hershey appealed, arguing that his claims under each theory should proceed.

In a per curiam opinion, the panel:

1. reversed the district court’s dismissal of the Monell claim against Bossier city for failure to train;
2. affirmed the grant of qualified immunity for the police officers; and
3. affirmed dismissal for the security guards.

Each of the three judges on the panel then wrote separately, shedding light on the differing jurisprudential approaches to the doctrine of qualified immunity in Constitutional rights cases.

First, Judge Ho formed part of the consensus reversing the Monell claims under controlling Fifth Circuit precedent. Underlying Judge Ho’s rationale was the principal that the right to the free exercise of religion “plainly encompasses the distribution of religious pamphlets.” However, under Fifth Circuit precedent, in order to overcome qualified immunity on a First Amendment claim, the plaintiff must satisfy “the requirement that ‘clearly established law’ be founded on materially identical facts.” And, where no favorable precedent existed, the Court was bound to reverse the failure to train claim.

Judge Ho’s reluctant concurrence pointed out that, in the Eighth Amendment context specifically, “obvious” Constitutional violations do not require factually indistinguishable case law to establish a claim, but that precedent has not been extended to claims under the First Amendment. Judge Ho further opined, in a concurrence, that under his view of First Amendment jurisprudence, the district court’s order dismissing the claims against the individual police officers and security guards should likewise be reversed, but that Fifth Circuit precedent compelled their dismissal.

Next, Judge Dennis explained his position (joined by Judge Ho) that the District Court erred in dismissing the Monell failure to train claim. In his view, Hershey sufficiently pleaded facts to show the City was deliberately indifferent to the violation of his First Amendment rights when it provided no training whatsoever as to an officer’s duties under the First Amendment.

Judge Dennis further dissented from the affirmance of the dismissal of claims against the individual police and security guards. He reasoned that Hershey’s allegations that the sidewalk was a public street in a public park, and thus subject to analysis under the public forum standard for viewpoint discrimination. Because Hershey alleged both a constitutional violation and the violation of a clearly established right, reversal of the district court’s grant of qualified immunity was warranted under Judge Dennis’s view.

Finally, Judge Richman dissented from the reversal of the Monell failure to train claims. She explained that there was no allegation that viewpoint discrimination by a Bossier City law enforcement officer against someone engaging in free exercise of religion or free speech has ever previously occurred, nor was it highly predictable that law enforcement officers would have recurring encounters with individuals paid to distribute literature outside a large, ticketed event.

Accordingly, absent indications in the record regarding the officers’ training about what is “public” versus “private” property, and viewpoint discrimination, the Court effectively imposed a strict liability for failure to train.

Further, Judge Richman criticized the panel opinion where it would allow this claim to proceed on the basis that it was obvious Bossier City needed to train security guards hired by a third party, even though the law is far from clear that a city had a duty to train private security guards.

Takeaways

The Court’s fractured decision illustrates the various policy considerations that can impact the qualified immunity analysis in the First Amendment context specifically, and more broadly in other claims involving alleged constitutional violations.

With respect to claims against individuals, practitioners and governmental entities should be aware that, under the controlling rationale of Hershey, municipalities may be liable for failure to train private third-party entities like the security guards, particularly where no training on a particular violation is evident. Careful review of training standards and procedures, and ongoing monitoring of federal court decisions regarding potential violations, is therefore crucial to insulate against potential Monell liability.

Additionally, practitioners defending against failure to train claims should ensure that they have conducted a thorough review of similar cases to determine whether any case involving a factually indistinguishable scenario exists. Even if it does not, practitioners should be mindful to submit arguments to establish that the alleged constitutional violation also is not “obvious”, regardless of whether the claim involves the Eighth Amendment or not.

Hershey v. City of Bossier City, No. 21-30754 (5th Cir. Oct. 7, 2025)

Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978)