Arrest Threat Over Bible Pamphlets—“You’re Going to Jail.”

Close-up of a police officer's uniform with a Seattle Police patch

When police can threaten to jail a man for handing out Christian pamphlets on a sidewalk and still walk away shielded by qualified immunity, every American who cares about the First Amendment should pay attention.

Story Snapshot

A Louisiana man says police threatened to arrest him for peacefully sharing religious pamphlets on a public sidewalk outside a city-owned arena.^[3]
Federal judges agreed his leafletting is protected speech, yet the officers were granted qualified immunity because no “nearly identical” case existed.^[7]
The appeals court revived a claim that Bossier City failed to train its officers on basic First Amendment rights at publicly owned venues.^[6]
The case shows how qualified immunity can block accountability even when religious liberty and free speech are plainly at stake.^[3]

Police Threaten Arrest Over Religious Leaflets On A Sidewalk

Richard Hershey went to a city-owned arena in Bossier City, Louisiana, to hand out free pamphlets about Christian vegetarianism on the public sidewalks outside the venue during a concert.^[3] According to court filings, police officers and private security guards told him he could not pass out his religious material and warned him he would be arrested if he continued.^[3] Another person, however, was allowed to hand out commercial cards advertising an internet radio station at the same time.^[3]

Hershey later said he left the area and did not return because he feared being jailed, and he sued the city, the officers, and the guards for violating his First Amendment rights.^[3] His complaint argued that he was standing on a traditional public sidewalk and that officers singled out his religious message while letting commercial ads slide.^[6] The arena sits in a public park but is run by a private company, with both city police and private guards handling security that night.^[10]

Court: Speech Was Protected, But Officers Get Qualified Immunity

A federal magistrate judge reviewing the case had no trouble recognizing that peaceful leafletting on a sidewalk is protected speech under the First Amendment.^[2] The magistrate wrote there was “no doubt” that peaceful picketing and leafleting count as expressive activity and treated the surrounding park and sidewalks as public areas where speech normally gets the strongest protection.^[2] The complaint also plausibly alleged that Hershey faced viewpoint discrimination, since commercial handouts were allowed while his Christian pamphlets were not.^[4]

The United States Court of Appeals for the Fifth Circuit later stepped in and split the baby.^[7] The panel agreed that Hershey’s allegations described core expressive conduct—religious evangelism on a public sidewalk—but still ruled the officers were entitled to qualified immunity from money damages.^[7] Under that court’s tight standard, Hershey had to cite a past case with “materially identical” facts showing that threatening to arrest a sidewalk leafletter near an arena was clearly unconstitutional.^[7] Because no such near-clone case existed, the officers were shielded, even as the opinion repeated Supreme Court language praising pamphlets and leaflets as “historic weapons in the defense of liberty.”^[1]

City Faces “No Training Whatsoever” Claim On Free Speech Rights

While the individual officers walked for now, Bossier City did not get off so easily.^[6] A different majority on the same Fifth Circuit panel revived Hershey’s claim that the city failed to train its officers—and even private security working with them—on basic First Amendment rules for public sidewalks near city-owned venues.^[6] Taking Hershey’s complaint as true, the court said he plausibly alleged there was “no training whatsoever” on how to handle peaceful leafletting and religious speech in these public areas.^[6]

That ruling means Hershey can keep pushing his case against the city itself, seeking to prove that poor or nonexistent training led officers to threaten arrest where the Constitution protects speech.^[6] Legal analysts note that this part of the decision opens a path to hold cities accountable when they ignore free speech training, even when qualified immunity blocks direct damages against individual officers.^[6] But because Hershey did not pursue forward-looking relief on appeal, the decision so far focuses on past damages and training, not a clear order setting rules for future leafletting at the arena.^[6]

Why This Case Should Alarm Defenders Of The First Amendment

This Louisiana case shows a growing gap between what the Constitution promises on paper and what citizens actually get on the sidewalk.^[2] Courts, including the Fifth Circuit, repeat that the First Amendment protects the free exercise of religion, which includes the right to preach, proselytize, and hand out religious literature in public spaces.^[1] Yet the same courts often let officials escape responsibility by demanding earlier cases with nearly identical facts before a right counts as “clearly established” for qualified immunity purposes.^[7]

Legal scholars warn that this “near twin” rule for prior cases turns qualified immunity into a shield even when violations look obvious to ordinary people.^[9] In Hershey’s case, officers allegedly forced the only religious speaker off a public sidewalk while allowing commercial speech, a mismatch that common sense says should never pass.^[3] Still, because no previous decision had those exact details—city-owned arena, private manager, mixed police and guards—the officers got immunity.^[7] That result sends a troubling message: your right to share your faith in public may exist in theory, yet you may have little real-world remedy when government agents cross the line.^[2]