In Hershey v. City of Bossier City, (5th Cir., Oct. 7, 2025), the U.S. 5th Circuit Court of Appeals in a splintered decision reversed a Louisiana federal district court's dismissal of a suit against the city by plaintiff who was passing out booklets for the Christian Vegetarian Association outside a concert arena in which a Christian rock concert was taking place. The arena is in a public park, is managed by a private company and was rented out for the concert. Both police and private security guards provided security. They informed plaintiff that he could not hand out his material because he was on private property. Plaintiff sued the officers and guards for violating his 1st Amendment rights and sued the city for failing to train the police and the security guards. The case generated three separate opinions which, when put together reversed the trial court's dismissal of the claim against the city, but affirmed on qualified immunity grounds, the dismissal of claims against the police and security guards.
Judge Ho wrote in part:
“The dissemination of ... religious views and doctrines is protected by the First Amendment.”...
This right plainly encompasses the distribution of religious pamphlets—the activity at issue in this case....
So anyone who is “rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion.”...
Hershey’s right to evangelize on a public sidewalk is not undermined by the fact that the city-owned facility abutting the sidewalk happens to be managed by a private corporation. Nor should it matter that his rights were violated by private security guards working alongside police officers. Municipalities cannot abrogate the constitutional rights of their citizens simply by delegating their coercive governmental powers to private agents.
He also concluded that the city's failure to train amounted to deliberate indifference.
Judge Dennis said in part:
The City’s failure to train officers that the park was a public forum led officers to believe that the park was private property and that citizens could be ejected without violating their First Amendment rights. Hershey also alleged that the officers who removed him from the park held this belief and told him he had to leave the park because it was private property. Hershey has pleaded facts sufficient to show that the City’s complete lack of training was the cause of his injury.
Judge Richman would have upheld the dismissal of the claim against the city, saying in part:
This is a single-incident case in which Hershey relies on his own confrontation with city officers and private security guards to establish municipal liability. This case does not present the “rare” and “narrow and extreme circumstances” that our court and the Supreme Court has said permit “drawing the inference” of “deliberate indifference.”
The court also by a different 2-1 vote upheld dismissal of damage claims against the officers and security guards on qualified immunity grounds. Judge Dennis would have reversed the trial court's dismissal on qualified immunity grounds, saying in part:
Because the law clearly established Hershey’s right to leaflet in a traditional public forum without viewpoint discrimination, qualified immunity is inappropriate.
Judge Richman disagreed, saying in part:
... [G]iven that the Supreme Court has indicated that sidewalks on public property are not automatically public forums and that the district court considered several cases concerning the forum status of spaces surrounding arenas that do not speak in unison, the forum status of the space in question was not clearly established....
Judge Ho reluctantly agreed that precedent required concluding that the right involved was clearly established, but expressed his disagreement with that precedent, saying in part:
“[i]t 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).”
