Roxanna Asgarian, The Texas Tribune

People came to this place for its sweeping views. The circular gravel turnoff sat alongside the Pacific Coast Highway, just across a small bridge over the tiny Juan Creek in Mendocino County. From its edge you could see the rocky Northern California coastline, its cliffs dotted with native grasses and wild succulents. At low tide, you could see the beach where fishermen used to camp, casting their wide nets to catch the night fish that flung themselves onto the waves during spawning season. On March 26, 2018, a clear blue day, a German tourist stood at this spot, but something alarming marred her view: At the bottom of the steep and jagged cliff, she spotted an SUV flipped on its hood, crumpled, its undercarriage exposed.

Cops called to the scene found Jennifer and Sarah Hart, a married couple, strapped inside, dead. Three bodies of children were scattered near the car, having been ejected from the vehicle in its plunge. At first, emergency response teams thought it might have been an accident. After police officers found identification for the two women in a backpack that had been in the car, they realized there were likely more bodies to be found: The couple, two white women, both 38, had adopted six Black children, ages 12 to 19, from two separate sibling groups, all from Texas. Search teams later found another of the children’s bodies, and a foot inside of a shoe that was believed to belong to another of the children. One child, 15-year-old Devonte, was never found. As firefighters towed the Yukon up the treacherous incline to the overlook where the SUV had gone over the edge, state troopers working the crime scene found no skid marks where the car had left the road.

Jennifer spent her days posting photos to Facebook of the kids adventuring on road trips, meditating in the woods, and at home playing with chickens. But shortly after the SUV was found, news stories started tumbling out that shattered Jennifer’s painstakingly crafted image. Investigators at the scene of the crash determined the car had actually accelerated off of the cliff. It emerged that the crash was intentional, and the kids had been drugged with Benadryl. Child Protective Services in Washington State had been trying to reach the family in the days leading up to the crash; the Harts’ next door neighbors in Woodland, Washington, told reporters that they’d finally called CPS after Devonte had snuck over multiple times late at night asking for food.

It turned out that the Harts, who had lived in Minnesota, Oregon and Washington State during their decade with the children, had been investigated for potential abuse and neglect in each of those states. The children were much too small for their ages — child welfare officials in Oregon pointed out in their investigation that five of the six children were not even on the growth charts for their ages. Still, the children remained with the women, who seemed to move around whenever suspicions became too intense.

Three of the Hart children — Devonte, Jeremiah and Ciera — were born in Houston, to the same mother. They were removed from their family, including an older brother, Dontay, who stayed behind in foster care for most of his childhood. In the media frenzy over the Hart family tragedy, their story got largely overlooked, along with the story of their adoptive siblings — Markis, Hannah and Abigail, whose mother grew up around Corpus Christi. While many of the big stories focused on the white women’s intentions, psychological motivations and personal histories, stories about the Black children — who they were, where they came from, what happened to their birth families — were mostly absent. For the past five years, I’ve been working to uncover those stories.

It was a mild day in Houston, and Dontay Davis had started a fight at school again. His cousin Boogie found him in the halls of the Gregory-Lincoln Education Center, the Fourth Ward school both boys attended. It was December 2006 and Dontay was in fifth grade. Boogie was a couple of years older, but he’d flunked a grade and so was just one year ahead.

Dontay had always been a fighter. Sometimes fights started when a kid would say something to him he didn’t like, but other times he’d pick them himself. He wanted to show the others in his school that he wasn’t a punk, and he told himself that’s why he did it, but really, deep down, he liked the way it felt to exchange punches, even when he lost. It released something in him he was always carrying; for a moment, he felt clear and light. The fight that day, he remembers, had been with another boy over a girl in class. So when Dontay met up with Boogie in the hallways at school, he expected his cousin to talk about that. Instead, Boogie asked him if he knew what was going on at his house.

The lightness vanished and a pit landed in Dontay’s stomach as he heard the words come out of his cousin’s mouth. Before Boogie had even told him what was happening, he knew that it was Child Protective Services, and he knew he was going to have to leave.

During class later, Dontay got called to the office. His CPS caseworker, Tamika Lipsey, was waiting for him. He asked her point-blank if she was going to take him away.

“Why do you always ask me that?” she said.

He didn’t trust her, because he knew what happened when the caseworker showed up. “Every time I see you, you take me away,” he told her.

Tamika assured him that she was only there to visit with him and make sure he was okay. He relaxed a bit, but she still asked him the same questions she always asked, questions he felt uncomfortable answering because he was always afraid of saying the wrong thing and he didn’t want to get his family in trouble. He knew what would happen if they got in trouble — he’d have to leave again, and maybe get split up from his brothers and baby sister again, and if he ended up back at the shelter he’d have to fight the big kids again to prove to the others that they shouldn’t fuck with him, and those kids were not like the kids at Gregory-Lincoln. They were meaner, and they were bigger. And worse, he knew he wouldn’t be able to see his mom, Sherry, anymore, and the family had only just got back to some sort of normal.

Tamika asked him how he liked living at his aunt’s house, where he’d been staying for close to six months. He told her he liked it — he got to play with his brothers Devonte and Jeremiah, with his cousins in the Fourth Ward neighborhood where his mother grew up, and on the computer at his aunt’s house. She asked him if there was anything he didn’t like, and he was careful to say no. She asked him what happened when he got in trouble. He told her he got spankings on his butt from his aunt; he hoped that was the right thing to say. He told his caseworker that on some weekends, they’d go back to Nathaniel Davis’s house, where they last lived before they were taken into foster care, and Nathaniel, whom Dontay referred to as his dad, would cook for them and they’d sleep over.

Tamika left Dontay there at school and went back to the CPS office. She didn’t tell him this, but she had been disconcerted by her visit earlier that day to the apartment where Dontay lived with his two younger brothers and baby sister. Before she had gone to see Dontay at his school, she’d gone to check in with his aunt Priscilla Celestine. Priscilla’s brother Clarence was the father of Dontay’s two youngest siblings, Jeremiah and Ciera, and he had asked her to take the children in when they were removed from their home.

Priscilla was a churchgoing woman, unlike her brother, who was in prison for drugs, and her brother’s girlfriend, Sherry, Dontay’s mom, who had a well-known cocaine problem that had caused her to lose her children. Priscilla worked as a receptionist at a hospital and kept her nose clean — Dontay had told his caseworker, when she asked if they went to church, “That’s the only place we ever go.”

But Priscilla had been struggling with the new family setup, which had formed abruptly months after the kids were taken away from their home. The children had been in foster care at separate placements before they moved in with her. She was growing to love the children, especially her brother’s two, who were the youngest. And she wanted to keep all the siblings together — but four more children in her home, when it used to be just her and her daughter and granddaughter, strained her patience at times.

More than that, it strained her resources. This was 2006, more than a decade before Texas’s Department of Family and Protective Services began issuing a monthly payment of $350 for each child who was placed with relatives. Foster parents had long been given monthly stipends on a sliding scale to care for children, with high-needs children drawing the most money. But kinship placements, in which children were placed with relatives, didn’t qualify for those payments; instead, caregivers received a one-time $1,000 payment for the first child and $495 for each sibling, along with $500 a year for approved expenses.

For Priscilla’s family of seven, it just wasn’t enough, between new beds for the four children, increased grocery bills, clothes and shoes, school supplies, and diapers. The financial strain was exacerbated by the fact that Priscilla, whose two-bedroom apartment did not pass a home inspection because it was too small to accommodate the entire family, had needed to upgrade to a larger, four-bedroom unit in order for the children to be able to stay with her for the long term. She needed her full-time job more than ever, but there was also the matter of finding people to care for the children when she was at work. Dontay, ten years old, was in school, but the younger ones weren’t — Devonte was four, Jeremiah was two, and Ciera had just turned a year old when they moved in. She enlisted her daughter as the chief caretaker when she was away, but sometimes her daughter was busy. And Dontay’s school had been repeatedly calling her to come in, since he was always picking fights and getting into trouble. She needed to keep her job to have a chance in hell of paying for the kids, but she wasn’t sure she would be able to handle the new situation without help.

She’d regularly send the kids to their father figure, Nathaniel Davis — he wasn’t the biological dad of any of the kids, but he had given his last name to all of them. Nathaniel was the much-older partner of Sherry, the kids’ mom. They’d been together for a long time, and even though she was in and out of relationships with other men, he thought of her as his wife and thought of her children as his own. In fact, he’d been the primary parent caring for them since they were born. When Priscilla called, Nathaniel was over the moon to help. He had missed his children terribly since they’d been taken from his home the year before, after Sherry failed a drug test for the second time upon the birth of Ciera. He was hopeful that one day, after all the drama had quieted down, the kids would return to live with him.

And that wasn’t the only support Priscilla had. Sherry was keen to stay involved in her children’s lives. Priscilla had had to call and bother the caseworker multiple times about a clothing stipend for the children, who had badly needed winter clothes. But when Sherry came to visit she brought them the coolest new Nike sneakers and Polo shirts and Tommy Hilfiger jeans, even for the babies, as well as bags full of McDonald’s to fill the kids’ bellies. Sherry told Priscilla that if she ever needed her to watch the kids, she was only a call away. She missed her children, and although she wasn’t able to stay clean, she wanted nothing more than to be in their lives.

The problem was, Sherry had terminated her parental rights — her lawyer had said it was necessary to do so in order for Priscilla to be able to adopt them. This meant that she was no longer supposed to have contact with them at all. It was a condition of the children living with Priscilla that Sherry never be left alone with them. And Priscilla knew she shouldn’t risk it.

But there were times when there really were no better options. And one of those times was the very day Tamika Lipsey visited Dontay at Gregory-Lincoln and told him she wasn’t going to take him away. Before she went to Dontay’s school, Tamika had stopped by Priscilla’s apartment unannounced and found a strange woman in pajamas at the door. She said her name was Sherry, and that she was a “family friend.” Concerned, Tamika asked Sherry if she lived there. She said no, she just spent the night because Priscilla had to be at work early. The kids looked like they had just woken up, and when Tamika went to check their rooms she noticed none of them had any furniture. Sherry explained that the family had only moved into the apartment a couple of weeks before, and showed her which rooms were for which children.

Tamika called her supervisor once she’d arrived back at the office after checking on Dontay at school. Her supervisor told her to remove the kids, based on the potential risk of harm.

Sherry Davis was a Black woman from the Fourth Ward in Houston, Texas. Historically the center of Black life in Houston, the neighborhood was once known as the Mother Ward; before that, it was called Freedmen’s Town. It was where formerly enslaved people from the plantations along the Brazos River settled after news of the Confederacy’s defeat finally reached Galveston and the enslaved people in Texas came to know that they were free.

These newly freed people had settled on the marshy, flood-prone banks of Buffalo Bayou, along the same sludgy river that the brothers Augustus and John Allen had traversed in 1836 when they founded what would become Houston. At the time the freedmen settled the Fourth Ward in the late 1860s, the city didn’t exist much beyond downtown, and the banks of the bayou were considered undesirable property. It was here that the freedmen made and laid their own red- brick roads, carving symbols of hope on each one, and set to building homes and churches for the free Black families.

The Fourth Ward’s story is similar to that of many other freedmen’s towns around the country: In 1950, as cars became widely accessible, the government constructed an interstate highway, ramming it through the ward, and the community, cut in half, began to atrophy. Integration meant that well-to-do Black families, of which there were many in the Fourth Ward, began to settle in suburbs outside the city’s core. The Black community shrank, and those who remained were very poor. In the 1980s, crack cocaine took a firm hold. Then, after decades when the local real estate held barely any monetary value, the neighborhood, next door to downtown, suddenly became hot. Developers bought much of the land, sometimes by force, and renamed a good chunk of it Midtown, redefining its identity and erecting manicured retail centers filled with smoothie shops and chain pizzerias.

Sherry was born in 1970, by which time the Fourth Ward was already in decline. She and her younger siblings, Joshua and Alisia, lived with their mother in a white shotgun house with a gabled roof on the corner of Ruthven and Matthews, three blocks down from Mount Carmel Missionary Baptist Church. Sherry’s mother, Rose Mary Harlan, had herself grown up in the Fourth Ward.

When Sherry was a child, she witnessed her mother get shot and killed by her boyfriend. After that, her life was unstable; she dropped out of school, developed a cocaine addiction, and had and lost three children to the child welfare system.

By the time Dontay came along, Sherry was living with Nathaniel Davis. She’d known him for most of her life; he went by Joe Boy, and he grew up across the street from her mom and aunts back in the day. He was much older — when they reconnected, Sherry was 19 and Nathaniel was 47; he had been married and divorced, and had grown children. He was steady, though. The nature of their relationship was unusual: Nathaniel and Sherry had a partnership that would last decades, but she repeatedly had dalliances and sometimes serious relationships outside of their pairing. Nathaniel never fathered any of Sherry’s children. He did raise and nurture them all, though. He knew that he hadn’t done it right with his own kids the first time — he wasn’t around enough for them, and his one grown biological son wouldn’t talk to him because of it — and he wanted to do right by Sherry’s children. He wanted to be a good father.

When Dontay was born to a man Sherry was not in a serious relationship with, she gave the newborn Nathaniel’s last name, Davis, and the family left the Fourth Ward and settled down near Sunnyside. Sherry worked as a home health aide, leaving for several days at a time to stay in the home of the elderly patients she cared for, and she prided herself on not needing welfare checks to get by.

Dontay was five years old when Devonte was born, and Dontay loved being a big brother. Nathaniel would cook for the boys and clean up after them, and take Devonte to the hospital when his asthma got bad. By all accounts Sherry loved her kids—she kept her boys fed and clothed in fresh new sneakers. But she still had her cocaine habit. She’d get stressed and reach for her pack of cigarettes, slap them against her hand to pack them down, and sprinkle the white powder in the space left at the top. Lighting her primos, as she called them, made her feel good and helped her forget about the drama of the day.

Sherry took up with a new man, Clarence, but the kids stayed with Nathaniel, whom they considered their father.

Nathaniel told people he and Sherry were still together, and they were, in a way — whenever she came to stay, she cooked for her children and cleaned up around the house, and he raised the children when she was out. She’d stay out for days, sometimes for her job but other times for other reasons.

When Jeremiah was born in 2004, Sherry and the baby tested positive for cocaine, and Nathaniel got custody of the children, which really just solidified the relationship they already had in place. The boys got a bunk bed, and Jeremiah’s new crib was rolled in. Nathaniel’s grown daughter Carmenel came most days to help with the baby, and the boys slept in Nathaniel’s bed, all piled in together, while the new bunk bed sat empty in the boys’ room.

Dontay, Devonte, and baby Jeremiah were Nathaniel’s whole life, and he told the CPS caseworker that if he had to choose between Sherry and the children, he’d keep the kids in a heartbeat.

The situation was stable but still tenuous, with the threat of removal always hanging over the family. In 2005, Sherry gave birth to a baby girl she named Ciera. Sherry was still with Clarence Celestine, who was also Jeremiah’s father. In the hospital, Sherry again tested positive for cocaine, although the baby tested negative. She pleaded with the caseworkers, asking them to give her another chance. But her child welfare case was moved from the “reunification” track to the “termination” track, and the kids were taken from Nathaniel’s house, in part because he told them he didn’t know Sherry was using again. He had meant that she was never high around the kids, which is when he spent time with her, but they had seen his response as “enabling” her drug use.

The four kids were first sent to Nathaniel’s brother’s house, but after a caseworker stopped by and found the brother and his wife drunk, baby Ciera was sent to one foster family and the boys were moved to another. Eight-year-old Dontay lasted less than two weeks at the home, where he noticed there was a dog gate erected in the living room, separating the foster children from the foster parents’ biological children. The boys’ meals were strictly portioned, while the couple’s children got to eat what they liked. Dontay became enraged — he was old enough to understand they’d taken him from his family but not old enough to understand why.

The foster mother reported to his caseworker that when he would get angry, his eyes would roll back in his head and he would threaten his siblings and the other children in the home. The caseworker dropped him off at the CPS offices, and as she left, Dontay told her he was going to set her on fire for taking him there.

Dontay was sent to Intracare, one of Houston’s few psychiatric hospitals that accepted Medicaid patients. Intracare was at one time the second-largest psychiatric hospital in Harris County, before it was shut down in 2012 after the Centers for Medicare and Medicaid Services terminated its contract with the hospital for improper use of restraints and seclusion, a practice that posed a danger to patient health. Twice, the hospital was cited for chemically restraining patients without an updated treatment plan. Here, Dontay received a diagnosis of oppositional defiant disorder. Later, he’d be diagnosed with ADHD and bipolar disorder as well.

Dontay spent three weeks at Intracare in 2005, and he saw children there who were like him, children whose emotions were too much for them to handle. It was scary — there was the constant threat of a sedative shot, administered into the flesh of the butt, that would make you fall unconscious. He saw others get the shot, which they called “booty juice,” and he got it, too — more times than he could count.

But people were real in there, he thought. They didn’t pretend that everything was okay, that strangers were family, or that they cared and wanted to help. For the first time since he’d left his family, he felt like people were being honest.

Dontay bounced from the hospital to an emergency shelter to another foster placement before he finally got to reunite with his siblings at their aunt Priscilla’s house in the summer of 2006. That year, almost 348,000 children in Texas had been the subject of child welfare investigations, and 32,000 of those children were in the care of the state.

In 2004, the state comptroller, Carole Keeton Strayhorn, released a scathing report titled “Forgotten Children,” detailing high caseloads of up to 35 children per caseworker; this figure, more than double the recommended amount, resulted in nearly a quarter of the state’s caseworkers vacating their jobs each year. The report found that kids were often moved around from place to place and that some hadn’t seen their caseworker in months. It also showed photographic evidence of the squalor some foster children were living in, with some attending “therapeutic camps” where they had to use primitive outhouses and cook their own food outside, using meat patties that had been packed in coolers with no ice. “I challenge any defender of the status quo to put their child or grandchild in some of the places I’ve seen for one day, much less for a lifetime,” Keeton Strayhorn wrote in a statement issued after her report.

In 2005, the Texas legislature passed a reform bill that aimed to address some of the failures of its child welfare system by reorganizing the Department of Family and Protective Services. The bill would fully privatize its placement services and add $250 million to DFPS’s budget to hire 3,200 more caseworkers. But the move backfired, in a sense — from 2004 to 2006, the number of children removed from their homes increased from about 13,500 to about 17,500. The state had increased funding for CPS investigations but did not allocate additional funding for the foster placements — or for preventive services, like drug treatment and parenting classes, aimed at keeping kids in their homes. With placements at capacity, CPS acknowledged that children had been sleeping in their offices, with nowhere else to go. The privatization of placements was no remedy and had its own complications.

In 2006, when Dontay and his siblings were reunited at their aunt’s house, three children had died in foster care in different Fort Worth-area homes; they had all been placed by the same private agency, Mesa Family Services. The fallout stalled the state’s desired goal of putting its child welfare system, including both placement services and case management, fully in the hands of private providers. Instead, the agency was in limbo, responsible for more children than ever before but with a lack of quality placements to house them. Caseworkers were given far too many children to look after, and, because of that, the best interests of each individual child were subordinated to other concerns — such as the need to check all the boxes and stay out of the news for high-profile failures resulting in deaths of children.

But Dontay didn’t know about any of this. All he knew was that when the caseworker came around, he was in danger of being taken from his family. It had happened before, and he had lived every day with a pit in his stomach, waiting for it to happen again.

That mild December day, his caseworker, Tamika Lipsey, assured him at school that she was just checking up on him, but when he walked up to his apartment after school, she was there again, in front of the apartment, putting his siblings into her car. His mom was standing out there, too, crying, begging Tamika to reconsider.

When Tamika had gotten the go-ahead from her supervisor, she’d driven back to the apartment from the office and found Sherry still there with the three youngest children. She ordered Sherry to dress them, and she told the children to kiss their mother. The children weren’t sure what was happening, but they knew their mom was upset, so they started to cry.

Unlike his siblings, Dontay understood in a split second what was going on. He began to cry, too, and hugged his mother. He told her he would be back; she said, “I hope.” She kissed him on the cheek and told him to look after his brothers and sister.

In the car, Dontay took Devonte’s face into his hands. The 4-year-old Devonte was quiet, observant — he always seemed to the rest of the family to be wiser than his years. Dontay told his brother, “I love you. This ain’t nothing . . . I’ll always be there.”

Because of his behavioral issues, Dontay ended up in one foster home; his siblings went to another. The pit in his stomach spread to his whole body. His biggest fear had come true, and he had a feeling deep down that this time the separation was for good. He knew his mom’s phone number, and as soon as he could, he snuck to the phone in his foster home without his foster mom seeing him. During that phone call, his mom promised him that she was doing everything she could to get them back. “Be calm,” she told him.

But Dontay wasn’t calm. He was sure he would never see his siblings again — and when he had strong feelings like that, he knew they would come true. It was nearly Christmas, and Dontay wanted to be home. He didn’t get to open all his presents from his aunt, and nobody knew him at the place he was staying. He tried his mother again on the phone, but she didn’t pick up.

Dontay, still just ten years old, took his belt, tightened it around his neck, and tied it to the bedpost. “I felt hopeless,” he says more than a decade later about that time in his life. “Ain’t nothing to live for.”

Priscilla Celestine tried hard to get the kids back. She filed for adoption, and when a judge denied her bid, she appealed the decision. Dontay was sent to live in one of the private residential treatment centers that house foster youth in Texas. In June 2008, Devonte, Jeremiah and Ciera were sent to live with Jennifer and Sarah Hart, a white lesbian couple in Minnesota, and by the next January, the three youngest Davis children were formally adopted by the Harts.

It wasn’t until July 15, 2010 — more than a year after the adoption was finalized — that Texas’s First District Court of Appeals affirmed the decision of the lower court against Priscilla, effectively closing the case and dashing her hopes.

A former Harris County judge in CPS cases, Michael Schneider, was not involved in the Davis children’s case, but he reviewed the case details years later. Schneider said that the children’s adoption should have been put on hold as Priscilla’s appeal went through the courts; if the appeal had been successful, the children’s adoption would have been void. “Somebody dropped the ball,” he said.

The family gave up, hoping that one day the children would get back in touch with them. Priscilla tucked away her grief, like she’d done many times throughout her life. “When they took them away, I prayed and thought it must be God’s will, and they must be in a better place,” Priscilla said, more than ten years later, inside her apartment at the same public housing complex where she had lived with the children. “I told myself that.”

Her case pits the First Amendment against qualified immunity, a legal doctrine that shields public officials from being sued individually unless they’ve violated a “clearly established” constitutional right. Although it involves a freelance, untrained citizen journalist, the case has widespread implications for journalism in Texas and beyond. A similar case is already working its way up through the courts in Fort Bend County.

Priscilla Villarreal didn’t set out to piss off powerful people around Laredo. It started one day in 2015 when she heard sirens blaring outside her house. She went outside and saw a hostage situation unfolding; she began recording video on her phone as shots were fired and continued as the victims, two dead girls, were carried out of the house. She uploaded clips to Facebook; almost one million people saw them.

Villarreal’s day job was supervising wrecking crews as they cleaned up tractor-trailer crash scenes, but unedited videos chronicling the dark corners of her city became her calling. Her reach exploded with the release of Facebook Live, and along the way she picked up a moniker: La Gordiloca, or “the big crazy lady.” She now has 200,000 followers watching her livestreamed crime scene videos and listening to her stream-of-consciousness soliloquies, mostly in Spanish, about everything from cooking and local restaurants to well-sourced gossip about corrupt cops and politicians.

It’s the latter that began turning heads around Laredo, a South Texas town of a quarter-million people. In 2017, when a local U.S. Border Patrol agent died by suicide, Villarreal learned his name from a police officer and reported it publicly before the police issued a statement. A month later, she posted the name of a family involved in a deadly car crash, again after verifying it with a Laredo police officer.

Police started harassing her, she says, including in a filmed incident in which a police officer prevented her from being near a crash site where she was working her day job with the cleanup crew. Six months after her initial reports naming the people involved in the two incidents, Laredo police arrested Villarreal for twice breaking a little-known state law — one under which the Webb County district attorney had never before prosecuted anyone — involving soliciting or receiving information from a public servant that “has not been made public” with an intent to obtain a benefit.

“When I would report on whatever it was that was going on that had to do with the cops, they had to stop what they were doing,” Villarreal said. “I’m not saying all of them, but, you know, not being able to beat somebody up or to do something that was gonna get caught on camera — I think that that’s what they didn’t like about what I was doing.”

Villarreal’s charges were dismissed after a judge found them “unconstitutionally vague.” In 2019, she brought a lawsuit against the Laredo Police Department, along with the city of Laredo, Webb County, the local district attorney and others who she said violated her First Amendment rights by arresting her for doing journalism. A district judge threw out the case, ruling that the officials were protected by qualified immunity because they were performing official duties.

On appeal, a three-judge panel of the 5th Circuit disagreed.

“If the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned. Yet that is exactly what happened here: Priscilla Villarreal was put in jail for asking a police officer a question,” Judge James C. Ho wrote in a strongly worded opinion. “If that is not an obvious violation of the Constitution, it’s hard to imagine what would be. And as the Supreme Court has repeatedly held, public officials are not entitled to qualified immunity for obvious violations of the Constitution.”

But what was obvious to Ho, an outspoken and controversial judge appointed by Donald Trump in 2017, may have not been so obvious to other judges on the conservative 5th Circuit.

This month, the court, which usually hears cases with rotating panels of three judges, will convene its entire panel of 16 judges in New Orleans to rehear the case, weighing the right of citizens to ask questions of their public officials. (The court has 17 seats, but one is vacant.)

An “en banc review,” as it’s called, allows the full panel of circuit court judges to potentially overturn a ruling by its own court. It’s used in cases of broader importance in which the court has handed down contradicting opinions or consensus on an issue hasn’t been reached.

The John Minor Wisdom United States Fifth Court of Appeals building in New Orleans, Louisiana. Credit: Jolie McCullough/The Texas Tribune

While the court does not have to make public its reasons for an en banc review, Chief Judge Priscilla Richman wrote a dissenting opinion in Villarreal’s case, stating that Ho’s ruling “is likely to confuse the bench and the bar as to when a First Amendment violation is ‘obvious’ for purposes of qualified immunity.”

Richman argued that there was a basis for a reasonable law enforcement officer to think that Villarreal violated the law because she might stand to benefit from the information’s release. “The majority opinion holds that every reasonably competent law enforcement officer would have understood that a ‘benefit’ … does not include a ‘good journalist’ gathering information. But the statute does not exclude journalists, ‘good’ or otherwise,” Richman wrote. “Journalists generally gather information ‘with intent to benefit,’ for example, to sell newspapers or magazines, or to attract viewers on television, computer, iPad or smart-phone screens.”

That stance — and the fact that the en banc review is taking place — is particularly troubling for First Amendment advocates, who see the statute itself as violating the Constitution. “As a matter of law and policy, qualified immunity does not excuse obvious constitutional violations — even if laundered through state law, and especially if premeditated,” attorneys for the Institute for Justice, a public interest law firm focused on constitutional rights, wrote in an amicus brief in the case.

Another amicus brief, filed by the Texas Press Association and a handful of other journalism organizations and joined by The Texas Tribune and the Dallas Morning News, argues that “the troubling facts of this case and the district court’s alarming application of qualified immunity to them call the legality of basic journalism into question.”

The First Amendment right to “freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances” dates back to the enactment of the Bill of Rights in 1791. Qualified immunity, as a concept, came much later. In 1961, a group of Black and white clergymen were arrested while attempting to integrate a segregated bus terminal waiting room. They sued, and in 1967, the Supreme Court held that the officers who arrested the members of the clergy had immunity from legal liability because it could be reasonably assumed they were acting in good faith when they enforced the law.

In the years since, the concept of qualified immunity has been strengthened to the point that it’s very hard to sue public officials, including police, for violations of rights unless the specific situation has already been litigated and found to violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”

Qualified immunity is supposed to give police and other public officials the legal protection they need to do their jobs in challenging situations and to make important split-second decisions without fear of reprisal. When qualified immunity clashes with the First Amendment, it pits journalists’ right to do their jobs — and, by extension, the public’s right to know about the actions of its officials — against those officials’ right to be protected from lawsuits over their behavior, which may violate those rights.

“This is a developing area of law, how qualified immunity is going to apply to First Amendment cases and, in particular, to instances that don’t involve split-second decision-making,” said Jaba Tsitsuashvili, an attorney at the Institute for Justice.

“When you have these kinds of clear First Amendment violations, what do you do?” Tsitsuashvili added. “Do you do what qualified immunity has told judges to do for a long time, which is essentially, you know, close your eyes and bury your head in the sand to the actual circumstances of what’s happening, or do you engage with the reality of the situation and say, ‘No, this is clearly and obviously unconstitutional conduct’?”

As the en banc review, slated for Jan. 25, nears, the questions raised by Villarreal’s case grow increasingly relevant. In Fort Bend County, another citizen journalist named Justin Pulliam, whose YouTube channel “Corruption Report” has more than 60,000 followers, has run afoul of local authorities for filming their interactions with people in the county.

In December 2021, Pulliam was arrested for trying to record a confrontation between police and a mentally ill man. The man’s mother had attempted to get mental health services for her son, and as the police pulled up, Pulliam filmed himself asking the woman for permission to be on her property, which she gave. Despite that, police arrested Pulliam when he refused to move back across the highway and charged him with interfering with public duties.

Pulliam filed suit last month against Fort Bend County, the county sheriff and other police officers for violating his First Amendment rights. “These unconstitutional attacks on Justin’s journalism are a threat not only to Justin, but also to independent citizen-journalists everywhere who have the free-speech right to cover — and criticize — local-government actions,” the complaint states.

Justin Pulliam was arrested in Fort Bend County after he filmed a confrontation between police and a mentally ill man. He has sued, citing First Amendment violations. Credit: Mark Felix for The Texas Tribune

Pulliam, who was active in conservative politics during college, had his worldview challenged when he began following the police scanners and filming cops interacting with the public. “I think the local governments have an enormous impact on our daily lives, and it’s largely overlooked,” Pulliam said.

“If you film the police or you criticize the government, or even simply just don’t go along with whatever they feel the message should be, then you’re subject to retaliation, harassment and even arrest and criminal prosecution? That just doesn’t happen in a free country,” Pulliam says. “I want everyone to know, across the country, that they can be a citizen journalist. They can go film the police, they can go to city council. They can even criticize the government at city council.”

Villarreal hopes that her lawsuit will help ensure that Laredo police won’t prevent her from doing her job — she’s had scary run-ins with officers since the suit was filed, including a confrontation with an officer who used his car to prevent her from joining a funeral procession she says she had permission to be a part of. She now openly carries a pistol, she says. “The being scared has lessened, but at the end of the day, it is what it is,” Villarreal said. “There’s those few [cops] that don’t like me, but I think that there’s more of those that support what I’ve done.”

As for her case, her attorney JT Morris said he feels confident in the outcome.

“Priscilla was arrested for asking a police officer newsworthy facts as part of reporting the news,” Morris said. “And government officials who violate First Amendment rights like that have to be held accountable.”

Disclosure: Facebook has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/01/06/first-amendment-laredo-journalist/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

Attorney General Ken Paxton is suing the federal government to preserve Texas’ ability to include religious groups that won’t place kids with same-sex couples in the state’s adoption process without losing federal funding.

With his lawsuit filed Monday in federal court in Galveston, Paxton continued a yearslong, cross-country legal fight over anti-discrimination rules for adoption and foster programs drafted under the Obama administration that languished under former President Donald Trump and have never been enforced.

The rule on Sexual Orientation and Gender Identity Discrimination, known as the SOGI rule, prohibits recipients of federal funds for adoption and foster programs from discriminating on the basis of age, disability, sex, race, color, national origin, religion, gender identity, sexual orientation or same-sex marriage status.

A Texas law passed in 2017 allows religious organizations that contract with the state to refuse to work with LGBTQ couples who are seeking to foster or adopt. The law requires the state to ensure there are other providers to work with LBGTQ children or families who are refused help by a religious provider, although there is no specific process for ensuring that happens.

Losing federal funding would be a major blow for Texas’ foster care budget. Federal money accounts for nearly a quarter of the $550 million the state spends on residential care each year, and another $58 million supports case work for foster children who qualify for the funds, according to the attorney general’s complaint.

“There are so many vital religious institutions in Texas and around the country that can aid in making sure foster children are protected and able to find good homes,” Paxton said in a statement. “The SOGI Rule would force them either to adopt a radical woke agenda or surrender their mission of helping children.”

The anti-discrimination rule has been the subject of court battles. In 2019, Texas joined the Archdiocese of Galveston-Houston to sue the federal government over the rule, arguing it would prevent the religious group from becoming a provider of child welfare services. Shortly after the suit was filed, the Trump administration announced a rollback of the rule.

But Paxton is now seeking to have the rule thrown out preemptively as other groups are suing to compel its enforcement.

LGBTQ child welfare service providers have sued the government in two courts seeking to revive the SOGI rule. Earlier this year, a federal district judge in Washington, D.C., vacated the Trump-era guidelines that would rescind the anti-discrimination guidelines. In another case in New York’s Southern District, a judge ruled that LGBTQ service providers lacked standing to sue; that case is on appeal.

Legal advocacy group Democracy Forward represented LGBTQ service providers in both cases. Robin Thurston, the group’s deputy legal director, called the Trump administration’s rollback of the rule “attempts to allow government subsidized discrimination.”

“The bottom line is, all families should be a part of and feel safe in the foster care and adoption system, not just certain families,” Thurston said. “With this lawsuit, Attorney General Paxton is once again showing his true colors by advocating for discrimination.”

The Texas law also allows religious providers to refuse to take in LGBTQ foster children, and for religious organizations operating residential treatment centers for high-risk youth to provide “religious education” to the children they do take in. LGBTQ advocates have argued that this clause opens up LGBTQ children to “conversion therapy” tactics.

“The point isn’t about the political stuff,” state Rep. James Frank, the bill’s author, said at a committee hearing before the bill passed. “It’s about having as many quality homes as possible.”

In recent years, Texas has rolled back protections for LGBTQ children in the child welfare system, including a little-known change in the Foster Care Bill of Rights, a document that informs foster youth of their rights. In 2017, a line requiring fair treatment regardless of a child’s “gender, gender identity, race, ethnicity, religion, national origin, disability, medical problems or sexual orientation” was removed, and in its stead generic language around the right for foster youth to “be treated fairly” and “have their religious needs met” was added.

A Texas Department of Family and Protective Services spokesperson refused to comment, and when asked about policies around finding alternate accommodations for foster youth in nonaffirming placements, sent a link to that bill of rights, which has no specific language around LGBTQ children in care.

Bryan Mares, the government relations director at the National Association of Social Workers Texas, said the state law allowing religious providers to refuse services to LGBTQ couples creates a supply issue for the LGBTQ children in the foster system who need affirming homes.

“It makes it much more difficult to find families who might already identify as part of the LGBTQ community to bring children that are in the system into their home,” Mares said of the law. “It really just impedes our ability to prioritize LGBTQ youth placements into homes where they are being supported in a way that they need.”

A 2018 analysis of Texas licensed child-placing agencies by the Center for American Progress found that nearly half of them had statements of faith listed on their websites, but only 10% had expressed specific willingness to work with LGBTQ foster and adoptive parents. “Given this landscape, and the religious exemptions and lack of legal protections … prospective parents may understandably become discouraged about finding a welcoming agency and choose to abandon their efforts,” the report concluded.

Texas’s carveout for religious providers is part of a broader wave of such bills across the country. Nearly 50 similar bills have been introduced, and 10 have been passed, since 2010, according to the Family Research Council, an Evangelical lobbying group that’s a major supporter of such legislation.

Texas is one of 10 states without any explicit protection for foster youth against discrimination on account of sexual orientation or gender identity in any of its child-welfare statutes or policies, according to a 2017 Lambda Legal report. LGBTQ youth are overrepresented in foster care around the country, and research has shown that LGBTQ youth of color stay in foster care longer and are at higher risk of violence in the system than their peers.

Despite the increased risk of violence for LGBTQ children in the foster system, Texas continues to fight in court to make the state’s child protective services agency investigate the families of trans children receiving gender-affirming care for potential child abuse.

In a statement announcing the suit Monday, Paxton said, “It’s a disgrace that the Biden Administration is playing politics with our foster care and adoption services.”