Why a Trump-Appointed Judge Is Torching His Own Court's Approach to Qualified Immunity

Judge James C. Ho recently described a troubling phenomenon on the 5th Circuit and the government abuse it enables.

Concurrences are underrated. Though they don't serve as the primary explanation for a court's ruling, they can add crucial context to majority opinions and shape how we interpret them—and the law generally. For a reminder of this, we can look to the concurrence in the legal odyssey that is McMurry v. Weaver.

A short primer: In October 2018, Megan McMurry left her two kids—a 14-year-old daughter and 12-year-old son—in her gated apartment complex in Midland, Texas, while she traveled to a job interview in Kuwait. She hoped to relocate the family there to be closer to her husband's deployment in the Middle East. McMurry arranged for a neighbor to check on the children while she was away and for co-workers to take her son to Abell Junior High School, where McMurry was a teacher. (Her daughter was homeschooled.)

When Alexandra Weaver, a school resource officer, was reminded of McMurry's trip, she was dismayed (though it's worth noting that McMurry had previously notified Weaver of the plan). Weaver told her supervisor, Officer Kevin Brunner, after which the two traveled to the McMurry home—which Weaver searched without a warrant—seized McMurry's daughter sans a court order, declined to let her contact her father, and called Child Protective Services. The agency concluded the situation did not meet its threshold for abuse or neglect.

Brunner continued criminally investigating McMurry and had her arrested on charges of abandoning or endangering her children. A jury acquitted her in January 2020.

McMurry sued in October of that same year, alleging violations of the Fourth and 14th Amendments. The government has been fighting the suit since, asserting qualified immunity—the legal doctrine that inoculates state and local employees from having to face such lawsuits unless the plaintiffs can show that the misconduct violated "clearly established" constitutional law at the time. Put more plainly: Even if a court finds that the act was unconstitutional, victims often lose unless a prior court precedent was already on the books outlining the same violation with virtually identical facts. (The doctrine is, for example, the reason why two men were not allowed to sue the police officers who allegedly stole over $225,000 from them during the execution of a search warrant—because no previous ruling explicitly said stealing under such circumstances was illegal.)

Last month the U.S. Court of Appeals for the 5th Circuit rejected that defense in the McMurry case (again).

It was the right decision. But a concurring opinion from Judge James C. Ho, who was appointed in 2018 by President Donald Trump, lays bare both the absurdity of the state's argument and the root, in his view, of why the government felt comfortable making it: the 5th Circuit itself.

Core to the government's argument was the claim that Weaver did not necessarily seize McMurry's daughter from her home—because her daughter was using it as a school. "Counsel theorizes that parents who choose to homeschool convert their private homes into public schools for Fourth Amendment purposes," Ho writes. "As a result, police officers can take children away from their home, and prevent their parents from communicating with them, if they're homeschooled."

It is not unlike the government to make bizarre arguments in an attempt to avoid accountability. The more significant problem is that it often works. "Although it should be easy to dismiss counsel's plainly erroneous defense," Ho writes, "it's profoundly disquieting that the defense finds so much support in our court's precedents."

This is indeed not the 5th Circuit's first rodeo. In Morgan v. Swanson (2011), the court gave qualified immunity to a pair of Texas school officials who censored student speech that conveyed religious messages—like "Jesus loves me, this I know, for the Bible tells me so"—on small Christmas gifts. Despite appearing to some constitutional scholars as an obvious departure from the promises of the First Amendment, the 5th Circuit ruled it was not clearly established that those officials violated the Constitution, because such violations must be carved out in case law with "a high degree of particularity."

That spirit has come to define the 5th Circuit's approach to qualified immunity. The doctrine is controversial as it is and already presents plaintiffs with an uphill battle. But the 5th Circuit, as Ho notes, has made a habit of applying such strict analyses that it has blocked victims from recourse even in cases where the constitutional violation is almost cartoonishly obvious.

One such case, Ho says, is Villarreal v. Alaniz, another legal saga involving the First Amendment. Police arrested and jailed Priscilla Villarreal—a Texas citizen journalist who was often critical of law enforcement—for asking them questions about a Border Patrol agent who had committed suicide and a family involved in a fatal traffic accident. To do so, the government leveraged an obscure Texas law that criminalizes soliciting nonpublic information if the seeker intends to benefit from it. In Villarreal's case, law enforcement said she benefited by getting Facebook followers. That law had never been used before and has not been used since.

"They were just looking for something to arrest me," Villarreal told me. "Because I was exposing the corruption, I was exposing them being cruel to detainees….They were doing things they weren't supposed to."

"If that is not an obvious violation of the Constitution, it's hard to imagine what would be," Ho wrote for the 5th Circuit in an opinion published in 2022. "And as the Supreme Court has repeatedly held, public officials are not entitled to qualified immunity for obvious violations of the Constitution." The court ruled that the law enforcement officials were not entitled to the protection.

That decision would not stay in place for long. The 5th Circuit voted to rehear the case en banc—when the full slate of judges renders a ruling instead of the typical three-judge panel—and narrowly reversed, concluding that law enforcement's actions were not obviously unconstitutional. The officials, therefore, were immune.

Villarreal had attracted an outpouring of transpartisan support—including from the Christian conservative Alliance Defending Freedom, the progressive Constitutional Accountability Center, the libertarian Cato Institute, the civil liberties–oriented Electronic Frontier Foundation, and the right-wing Project Veritas—that agreed, despite their many differences, that such a result very obviously offended the First Amendment.

Her case ultimately made it to the Supreme Court, which in October 2024 threw out the ruling against her and sent the appeal back to the lower court for reconsideration. When the 5th Circuit heard the case again in April of this year, the judges tossed Villarreal's suit once more, giving law enforcement—you guessed it—qualified immunity. Even if those agents violated the Constitution, the court ruled, they would receive the protection anyway because any reasonable officer "could have believed that what he or she was doing was perfectly legal" when law enforcement targeted a journalist for her reporting.

"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," writes Ho. "This chorus of criticism…is sadly warranted."

It is not novel, as it turns out, for the Supreme Court to intervene in the 5th Circuit's qualified immunity jurisprudence, and for good reason. In 2019, the 5th Circuit handed the protection to prison officials who reportedly locked an inmate in cells infested with feces and sewage. Though the court agreed the guards had violated the Eighth Amendment rights of the prisoner, Trent Taylor, it immunized them from recourse, concluding that no prior case with near-identical facts clearly established the misconduct as unlawful, such that the guards would have had notice.

In November 2020, the Supreme Court disagreed. "No reasonable correctional officer," the majority wrote in an unsigned opinion in Taylor v. Riojas, "could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time."

Just a few months later, the high court would weigh in again, reversing the 5th Circuit's decision in McCoy v. Alamu that had given qualified immunity to a prison guard who allegedly pepper-sprayed an inmate without provocation. Again, the 5th Circuit had said the guard—who was placed on a three-month probation after he was found to have violated policy—violated the Eighth Amendment. But then the court came to a familiar conclusion.

"The spraying crossed [the] line," wrote Circuit Judge Jerry E. Smith of the 5th Circuit. "But it was not beyond debate that it did, so the law wasn't clearly established."

In other words, the Supreme Court has repeatedly benchslapped the 5th Circuit for the very reason Ho bemoans today: requiring plaintiffs meet an overexacting threshold to defeat qualified immunity, which is already a tough obstacle as it is. The court has taken a doctrine that makes it hard for victims to get justice and, in some circumstances, ratcheted it up to a standard that can be close to impossible.

So why is the 5th Circuit still proceeding this way, despite the Supreme Court's reprimands? The logic, as seen in the 5th Circuit's 2024 ruling against Villarreal, is very much in keeping with the problem itself.

In that decision, Judge Edith Jones wrote that the Supreme Court's interventions "express a general, but decidedly narrow, obviousness exception to the requirement that 'clearly established law' be founded on materially identical facts." Those were Eighth Amendment cases. Villarreal's, meanwhile, is a First and Fourth Amendment case, so they are not sufficiently analogous, Jones concluded.

"Why the en banc majority chose to disfavor the First Amendment in contrast to the Eighth Amendment," Ho counters, "it did not explain."

Jones' viewpoint is all the more puzzling when considering the Supreme Court weighed in on this debate broadly with a landmark decision more than two decades ago. In Hope v. Pelzer (2002), the justices ruled that a plaintiff can, in fact, overcome qualified immunity without a meticulously similar case on the books, if the constitutional violation is plainly obvious. But that case, too, concerned a prisoner and the Eighth Amendment.

"Nothing in Hope and Taylor indicate that its qualified immunity analysis turns on which provision of the Constitution is at issue," Ho writes. "Every other federal court of appeals across the country has held that 'the standards articulated in Hope apply specifically in the First Amendment' or in other constitutional contexts."

Except the 5th Circuit.