No-Training-Whatsoever Pleading Suffices for Monell Liability in First Amendment Leafletting Cases at City-Owned Venues; Individual Officers and Private Guards Retain Qualified Immunity — Hershey v. City of Bossier City (5th Cir. 2025)

Introduction

In Hershey v. City of Bossier City, the United States Court of Appeals for the Fifth Circuit issued a splintered decision that both advances and constrains First Amendment enforcement in public-forum disputes arising at city-owned venues operated by private entities. Richard Hershey, a religious advocate compensated by nonprofits, alleged that Bossier City officers and private security guards threatened to arrest him for handing out Christian vegetarian pamphlets on a public sidewalk in a city park adjacent to the city’s arena during a ticketed concert. He claimed viewpoint discrimination and sued the City, two officers, and three private security guards under 42 U.S.C. § 1983, also alleging municipal liability under Monell for failure to train.

A majority of the panel reversed the district court’s dismissal of Hershey’s Monell failure-to-train claim against Bossier City, concluding that allegations of “no training whatsoever” about the First Amendment duties implicated here can suffice at the Rule 12(b)(6) stage. A different majority affirmed qualified immunity for the individual police officers and affirmed dismissal of the claims against the private security guards. The opinions expose sharp disagreement within the circuit over qualified immunity in First Amendment cases, the contours of the “single-incident” failure-to-train doctrine, and when private security functions amount to state action.

Summary of the Opinion

Disposition: The Fifth Circuit affirmed in part and reversed in part.
Monell failure-to-train: Reversed. Judges Dennis and Ho formed the majority to revive Hershey’s municipal-liability claim. Taking the complaint’s allegations as true, the City provided “no training whatsoever” to officers (and allegedly to private security personnel) regarding First Amendment rights on the public sidewalks surrounding the arena. At the pleading stage, that sufficed to allege deliberate indifference and causation under Monell.
Qualified immunity (officers): Affirmed. Judges Richman and Ho formed a separate majority to uphold qualified immunity for the police officers. The panel concluded the right asserted was not “clearly established” under Fifth Circuit standards, given forum-status uncertainty and circuit precedent requiring close factual matches in First Amendment QI disputes.
Private security guards: Dismissal affirmed by a separate majority (Judges Richman and Ho), though on differing rationales—Judge Richman would find no state action, while Judge Ho would recognize potential state action but apply qualified immunity to contractors under Filarsky v. Delia.

The panel’s holdings enable Hershey’s municipal claim to proceed to discovery while foreclosing his damages claims against the individual officers and security guards at this stage. The court noted that injunctive relief—unaffected by qualified immunity—was not pursued on appeal.

Analysis

Precedents Cited and How They Shaped the Decision

Monell v. New York City Department of Social Services (436 U.S. 658): Establishes municipal liability for constitutional violations arising from official policy or custom, including failure to train. Central to reviving Hershey’s claim.
City of Canton v. Harris (489 U.S. 378) and Board of County Commissioners v. Brown (520 U.S. 397): Define “deliberate indifference” in failure-to-train claims and the “single-incident” theory—permitting an inference of deliberate indifference without a pattern in narrow circumstances where violations are highly predictable without specific training.
Garza v. City of Donna (922 F.3d 626): Fifth Circuit “single-incident” jurisprudence invoked by both sides. The majority (Dennis and Ho) emphasized the “no training whatsoever” line as sufficient at the pleading stage; Judge Richman read Garza more narrowly, resistant to expanding the “obviousness” inference.
Johnson v. City of Shelby (574 U.S. 10): Pleading standard reinforced—factual allegations that plausibly show deliberate indifference suffice at Rule 12(b)(6).
First Amendment forum and evangelism cases: McDaniel v. Paty (435 U.S. 618); Heffron v. ISKCON (452 U.S. 640); Murdock v. Pennsylvania (319 U.S. 105); Jamison v. Texas (318 U.S. 413). These ground the protection of religious leafletting in public spaces.
Marsh v. Alabama (326 U.S. 501) and Lee v. Katz (9th Cir. 2002): Support that delegating public space management to private entities does not eliminate constitutional protections. Cited by Judge Ho to emphasize that policing public sidewalks via private contractors cannot negate First Amendment rights.
Qualified immunity “obviousness” cases: Hope v. Pelzer (536 U.S. 730); Taylor v. Riojas (592 U.S. 7). Judge Ho argued these should defeat QI for “obvious” First Amendment violations but acknowledged Fifth Circuit precedent forecloses that approach in this context.
Fifth Circuit QI/First Amendment line: Villarreal v. City of Laredo (94 F.4th 374; reinstated in relevant part at 134 F.4th 273); Morgan v. Swanson (659 F.3d 359; 755 F.3d 757). These precedents demand “materially identical” clearly established law in First Amendment QI cases, undermining reliance on general principles like “no viewpoint discrimination.”
Siders v. City of Brandon (123 F.4th 293; rehearing en banc denied, 130 F.4th 188): A recent Fifth Circuit decision skeptical of street evangelism challenges near a public amphitheater—its posture and reasoning weighed against “clearly established” status here.
Forum-status authorities: Minnesota Voters Alliance v. Mansky (585 U.S. 1) (forum distinctions); United States v. Kokinda (497 U.S. 720) (sidewalks not always traditional forums); Brister v. Faulkner (214 F.3d 675) (fact-specific forum analysis). Used to show the forum question is nuanced and fact-bound.
Private security and state action: United States v. Price (383 U.S. 787) (joint engagement with state officials); Filarsky v. Delia (566 U.S. 377) (qualified immunity extends to private individuals temporarily retained by government); Halleck (587 U.S. 802) (narrow “public function” category); Romanski (6th Cir. 2005) and Payton (7th Cir. 1999) (private guards with delegated police powers can be state actors). These underpin the split over whether the guards here acted under color of state law and, if so, whether they enjoy QI.

Legal Reasoning

1) Monell Failure to Train — “No Training Whatsoever” at the Pleading Stage

Judges Dennis and Ho concluded that Hershey plausibly alleged the City provided “no training whatsoever” on officers’ First Amendment duties in the public park/sidewalk areas surrounding the arena. At oral argument, Hershey’s counsel represented the officers “received literally zero training” on First Amendment issues. Under Garza and Canton/Brown, deliberate indifference may be inferred, even absent a prior pattern, where policymakers provide no training at all with respect to a relevant constitutional duty and where a violation is an obvious, highly predictable consequence. At Rule 12(b)(6), those allegations, taken as true, suffice to plead deliberate indifference and causation.

Judge Richman dissented, warning that the majority’s approach converts the “rare” single-incident exception into a broad “gotcha” theory, risks imposing de facto strict liability for failure to train, and lacks the notice that Monell requires. In her view, nothing in the record made it “highly predictable” that officers would repeatedly encounter paid leafletting at large, ticketed events and commit viewpoint discrimination absent training, nor did the City’s alleged omission amount to a deliberate policy choice under Canton/Connick.

2) Qualified Immunity for Officers — Not “Clearly Established” in the Fifth Circuit

A separate majority (Judges Richman and Ho) affirmed qualified immunity for the officers. The lodestar was the Fifth Circuit’s demand for clearly established law with materially similar facts in First Amendment cases (Villarreal; Morgan). Despite general rules against viewpoint discrimination and broad protection for leafletting, the panel found:

Forum status was not clearly established. Sidewalks abutting the arena during a ticketed event might not be traditional public forums, and the case law is nuanced and fact-intensive (Powell; Kokinda; Siders; Ball; Pomicter; Brister).
Even assuming differential treatment (Hershey ejected while a commercial leafleteer was not), “viewpoint discrimination” is a general rule that does not itself answer what counts as viewpoint discrimination on these facts for clearly established purposes (Morgan).

Judge Ho concurred in the result but lamented that circuit precedent cabins the Supreme Court’s “obviousness” qualified-immunity cases (Hope, Taylor) to Eighth Amendment contexts, improperly denying their reach to First Amendment violations. Were it up to him, Hershey’s claims against the officers would proceed.

3) Private Security Guards — Dismissal Affirmed, But No Majority Rationale

The claims against the private guards were dismissed on two divergent theories:

Judge Richman: No state action under the nexus/joint-action test or the public-function test. The guards’ conduct was insufficiently intertwined with state authority; policing outside a city arena during a private event is not per se an exclusive state function under Halleck/Marsh, absent delegated police powers.
Judge Ho: The guards could be state actors when acting jointly with officers (Price), but they are entitled to qualified immunity as contractors performing government functions (Filarsky; Meadows). Hershey’s failure to meet the “clearly established” standard controlled.

Because the two judges reached the same result on different grounds, the panel announced no single controlling rationale on the state-action question. The holding is the outcome (dismissal affirmed), not a precedential rule on which test applies to private security in similar settings.

Impact

Monell Training Exposure for Cities in Texas, Louisiana, and Mississippi

The most consequential doctrinal development is the Fifth Circuit’s recognition that a complaint alleging “no training whatsoever” on a relevant First Amendment duty can state a Monell failure-to-train claim at the pleading stage, without a prior pattern. This raises the litigation risk for municipalities that operate or own public venues—particularly those run by private managers—when their officers confront speech activity in surrounding parks and sidewalks. Cities should expect discovery into training content, frequency, and supervisory knowledge regarding public-forum doctrine and viewpoint neutrality.

High Bar for First Amendment Damages Claims Against Officers

The reaffirmation of qualified immunity’s stringent “clearly established” requirement in the Fifth Circuit—especially in First Amendment disputes—signals that damages actions will continue to face steep odds unless plaintiffs can produce highly analogous precedent. The panel’s reliance on forum complexities and Siders underscores that general First Amendment maxims will not suffice.

Unsettled Law on Private Security as State Actors

Because the panel lacked a common rationale on whether private event security is a state actor, future suits will continue to test the nexus, joint-action, and public-function theories. Contractors co-located with police may still obtain qualified immunity (Filarsky), but the state-action issue remains fact-intensive and doctrinally unsettled within the circuit in this particular venue context.

Strategic Litigation Implications

Consider injunctive relief: Qualified immunity does not bar equitable relief, and several judges suggested injunctive claims were not pressed here. Future plaintiffs should plead and pursue injunctions to change on-the-ground practices, particularly at recurring event sites.
Forum development in discovery: Plaintiffs should build a detailed record on the physical characteristics, access restrictions, management arrangements, and historical use of sidewalks and surrounding areas to support traditional-public-forum status.
Training record focus: Expect discovery battles over curriculum, policies, and whether municipalities train officers (and, where applicable, exercise control over private security) on viewpoint neutrality and public-forum principles.

Complex Concepts Simplified

Monell liability: A city is not vicariously liable for its employees’ acts. It can be liable only if a city “policy or custom” (including failure to train) is the moving force behind a constitutional violation.
Failure to train and “deliberate indifference”: Generally requires a pattern of similar violations putting policymakers on notice. A narrow “single-incident” exception allows liability when the lack of training on a specific, recurring duty makes violations highly predictable—especially where there is “no training whatsoever” on that duty.
Qualified immunity: Shields individual officials from damages unless they violated clearly established law. In the Fifth Circuit, First Amendment plaintiffs typically must identify precedent with materially similar facts; broad statements like “viewpoint discrimination is unconstitutional” rarely suffice.
Clearly established law: The rule must be sufficiently specific that a reasonable officer would know the conduct was unlawful in the situation confronted; general principles are not enough.
Public forum categories: Traditional public forums (streets/parks) carry the strongest protections; limited or nonpublic forums allow reasonable, viewpoint-neutral restrictions. Whether a sidewalk is “traditional” can depend on physical layout, access restrictions, and context (e.g., a state fair).
Viewpoint discrimination: The government may not favor or disfavor speech based on the speaker’s perspective. Even in limited forums, restrictions must be viewpoint neutral, but identifying viewpoint discrimination often requires precise factual development.
State action tests for private parties:
- Nexus/joint action: Is the private actor intertwined with the state such that the conduct is fairly attributable to the state?
- Public function: Is the private actor performing a function traditionally and exclusively reserved to the government (a narrow category)?

Conclusion

Hershey v. City of Bossier City is a nuanced, divided decision that moves the needle in two directions. On the one hand, it meaningfully lowers the pleading threshold for Monell failure-to-train claims when a plaintiff plausibly alleges “no training whatsoever” on the relevant First Amendment duty—an important pathway for municipal accountability in speech cases arising at public venues. On the other hand, it confirms that within the Fifth Circuit, damages claims against individual officials in First Amendment cases remain heavily constrained by qualified immunity’s demanding “clearly established” standard, particularly given forum-analysis complexities and the circuit’s reluctance to apply the Supreme Court’s “obviousness” exception outside the Eighth Amendment context.

The decision also leaves open, in practical terms, how and when private security personnel engaged alongside police at public venues will be treated as state actors—an issue likely to recur. For now, the case returns to the district court with the municipal claim revived, setting the stage for discovery into the City’s training regime (or lack thereof) concerning speech activities in public parks and sidewalks abutting city-owned, privately managed arenas.

The broader takeaway is strategic: plaintiffs should consider pairing damages claims with requests for injunctive relief and invest early in developing a robust record on forum characteristics and municipal training practices. Municipalities, in turn, would be well-advised to implement and document training on public-forum and viewpoint-neutrality principles for officers—and to evaluate the extent of control and instruction given to private security engaged in managing public spaces at city-owned venues.