# United States Court of Appeals **for the Fifth Circuit**

____________ No. 22-40196

____________ Rodney Guerra, Plaintiff—Appellant ,

versus Baudelio Castillo; City of Alamo, Texas, Defendants—Appellees

.

______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 7:20-CV-401

______________________________ Before Richman, Chief Judge , and King and Higginson, Circuit Judges

. Stephen A. Higginson, Circuit Judge : Rodney Guerra, formerly a patrol se rgeant in the Alamo, Texas police department, brought a § 1983 action ag ainst the City of Alamo (the “City”), former chief of police Baudelio Cast illo, and several other officers in connection with an alleged scheme to have Guerra fired and arrested on bogus charges. The distri ct court dismissed the City and the other officers under Federal Rule of Civil Procedur e 12(b)(6), then dismissed Castillo under 12(c). Guerra appeals the dism issals of Castillo and the City. We United States Court of Appeals Fifth Circuit 

### FILED September 7, 2023 Lyle W. Cayce Clerk Case: 22-40196 Document: 00516886520 Page: 1 Date Filed: 09/07/2023No. 22-40196

2 REVERSE the dismissal of Castillo, AFFIRM the dismissal of the City, and REMAND for further proceedings.
I. In reciting the following allegati ons from Guerra’s complaint, we “accept all facts as pleaded and construe them in the light most favorable to [Guerra].” Crane v. City of Arlington , 50 F.4th 453, 461 (5th Cir. 2022); Vardeman v. City of Hous. , 55 F.4th 1045, 1049 (5th Cir. 2022) (“The Rule 12(c) standard is the same as th at applied to Rule 12(b)(6).”). Guerra was promoted to sergeant in the patrol department of the City’s police department in the first half of 2018. In July of 2018, a subordinate patrol officer arrested a su spect for driving while intoxicated and the suspect spat on the officer’s face. But the suspect was a strong political supporter of the City’s mayor (the “Mayor”) who called then-police chief Castillo, Guerra’s direct superior, and urge d that the charges be dropped. Castillo proceeded to call Guerra and ur ged Guerra to tell the officer to drop the charges. But Guerra, “[i]n support of his officer,” refused and, in Guerra’s words, “unwittingly stoked the maliciousness, vengefulness, and ire of Defendant Castillo wh o was furious at Plainti ff [Guerra] for making him appear ‘worthless’ in the eyes of [the] Mayor.” During the same period, a pr obationary patrol officer (the “Probationary Officer”) was released forfailure to meet her probationary goals and “accidentally forgo t a pair of prescription rayban (reading) glasses in her patrol unit.” The glasses were found by an officer who turned them over to former defendant Sergeant Xavier Martinez. Martinez did not place the glasses in the lost and found or the evidence room, but rather on his own desk, in the same area where Guerra’s desk was located. As the complaint then describes: Case: 22-40196 Document: 00516886520 Page: 2 Date Filed: 09/07/2023No. 22-40196

3 After Martinez placed the read ing eyeglasses on his own desk, Plaintiff Guerra saw the reading glasses on Defendant Martinez’s desk, tried them on , and placed them on his own desk. For about the next month, with the knowledge of the other supervisory officer and Se rgeants, Srgt. Martinez and Srgt. Guerra played “tug of war” with the reading eyeglasses, as each would playfully take the reading eyeglasses from the other’s desk and place them on his own desk for use. Soon after, Castillo enlisted an inve stigator and directed him “to ‘find a way to get rid of’” Guerra. The investig ator homed in on the glasses, but at least one officer told the investigator , “we really don’t have anything” on Guerra for merely using the glasses. The inve stigator informed Castillo that the investigation “conclusively esta blished that no crime had been committed” by Guerra, but Castillo allegedly responded, “I don’t care. He can beat the charge, but he can’t beatthe ride. Get me enough to file a warrant!”

Castillo then enlisted an “Internal Affairs Officer” to conduct “an administrative investigation” regarding the glasses, and the Internal Affairs Officer attempted to enlist the assistan ce of the Probationary Officer, the former owner of the glasses, in filing criminal charges. The Probationary Officer initially expressed no interest , saying, “Throw the glasses away.” However, “[a]fter a significant amou nt of cajoling and pressuring, [the Officer] agreed to provid e a statement that she had not authorized anyone to use her glasses.” Subsequently, on October 19, 20 18, the Internal Affairs Officer notified Guerra that “he was being investigated for ‘p roperty that was checked out from the evidence room ’ and allegedly ‘appropriated by [Guerra] without cause or justificat ion,’” months earlier. Castillo immediately placed Guerra on administ rative leave and informed him he was Case: 22-40196 Document: 00516886520 Page: 3 Date Filed: 09/07/2023No. 22-40196

4 required to appear for an interview with the Internal Affairs Officer several days later. Guerra claims he voluntar ily appeared, denied the charges, and explained the situation, but “his explan ation was falling on de af ears,” so he requested “a full and open evidentiary hearing to get to the truth of the allegations.” That hearing would never be provided. Soon after, on October 24, Castillo “resorted to ‘blackmail’ against [Guerra] by expressly informing him that if he did not resign by 5:00 p.m. on that day, he was going to terminate him and file a criminal prosecution.” This was despite the fact Castillo “actually[k]new that no probable cause existed.” Guerra refused to resign. On October 25, Castillo “offi cially suspended [Guerra], recommended his termination, and ordere d him to surrender his weapon and badge,” and an arrest warrant was issued against Guerra for Class B misdemeanor theft. Guerra’s counsel arra nged to voluntarily present Guerra for arraignment at an agreed time and hour on October 26, but when Castillo learned of the timing, he contacted “all of the local television and print media to be present at the arraignment,” “parad[ing]” Guerra before the local media and “effectivel y destroying Plaintiff’s futu re credibility and career as a law enforcement officer.” Guerra immediately posted his bond. On November 2, 2018, Guerra was officially terminated in a letter from former defendant Luciano Ozuna. Plaintiff’s counsel requested an administrative hearing from Ozuna on November 7, “to discuss the false allegations against Plaintiff that had wron gfully resulted in his dismissal[,] but the hearing was never provided.” A few months later, the complain t claims, “Defendant Castillo was completely incensed and enraged” when he learned the district attorney was about to dismiss the theft charge agains t Guerra because the district attorney had found “no evidence of a thef t having been committed.” Castillo, Case: 22-40196 Document: 00516886520 Page: 4 Date Filed: 09/07/2023No. 22-40196

5 therefore, “instructed his investigator . . . to change and draw up some new statements and affidavits to obtain a new arrest warrant, ” this time pushing a “tampering with evidence” charge . In clarification of his complaint, 1 Guerra alleges that Castillo “intenti onally instructed and directed his subordinates to file perjured ‘Probable Cause Affidavits’ with the Alamo Municipal Court for presentment to the di strict attorney’s office despite his actual knowledge that critical sworn ‘facts’ were false and would lead to Plaintiff’s wrongful arrest ” (emphasis in original). Guerra’s counsel again arranged for Guerra to appear at a specific time when a judge was read y and able to set his bo nd. Guerra appeared on January 8, 2019. The media was again present because Castillo “had advised [them] that he would be having a press conference.” Castillo then “stopped” his staff from taking Guerra to the co urthouse because “Castillo decided he was going to make Plaintiff Guerrasit in a jail cell overnight.” The complaint alleges Guerra’s cell was co ld, he was denied a blanket, and Guerra’s counsel was not allowed to see him. All charges against Guerra were di smissed on May 2, 2019, based on insufficient evidence. Guerra timely filed suit under 42 U.S.C. § 1983 against Castillo, the City, and several other involved officers . Relevant here, Guerra’s complaint asserts Fourth Amendment false arrestand malicious prosecution claims, along with a First Amendment retaliati on claim, against Castillo. It also alleges the City is liable under Monell v. Department of Social Services of City of New York , 436 U.S. 658 (1978), citing both Castillo and “the City

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1 The district court invited Guerra to cl arify his complaint and answer several specific inquiries. No party objects to our tr eating this clarification as part of Guerra’s complaint for purposes of 12(b)(6) and 12 (c), as the district court did below. Case: 22-40196 Document: 00516886520 Page: 5 Date Filed: 09/07/2023No. 22-40196

6 Manager,” Ozuna, as polic ymakers on whom the City ’s liability should be based.
The other officers filed a motion to dismiss under 12(b)(6), which the district court granted. Guerra does no t challenge their dismissal on appeal. The City also filed a motion to dismiss under 12(b)(6), which the district court granted. The district cour t found that Guerra had failed to point to any policymaker on whom the City’s Monell liability might plausibly be based. Later, Castillo moved to dismiss un der 12(b)(6) and 12(c). The court denied Castillo’s 12(b)(6) motion becaus e he had already f iled an answer to Guerra’s complaint but gr anted Castillo’s 12(c) moti on based on qualified immunity. It found that Guerra’s Four th Amendment false arrest claim failed to overcome Castillo’s qualified immu nity due to an absence of clearly established law; his Fourth Amendmen t malicious prosecution claim is not cognizable under Fifth Circuit preced ent; and Guerra’s First Amendment retaliation claim fails because Guerra did not identify protected speech that caused Castillo’s retaliatory acts. 2
II. Guerra timely appeals the City’s dismissal under 12(b)(6) and Castillo’s dismissal under 12(c). We have jurisdiction under 28 U.S.C. § 1291. We review a district court’s grant of a 12(b)(6) motion to dismiss de

novo. Clyce v. Butler , 876 F.3d 145, 148 (5th Cir. 2017). “To survive a motion to dismiss, a plaintiff must plead enough facts to state a claim to relief that is

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2 The district court also rejected Guer ra’s Eighth and Fourteenth Amendment claims against Castillo, which G uerra has abando ned on appeal. Case: 22-40196 Document: 00516886520 Page: 6 Date Filed: 09/07/2023No. 22-40196

7 plausible on its face.” Crane , 50 F.4th at 461 (inter nal quotation marks and citation omitted). “When reviewing a moti on to dismiss, we must accept all facts as pleaded and construe them in the light most favorable to the plaintiff.” Id. (internal quotation marks and citation omitted). But “we do not accept as true legal conclusi ons, conclusory statements, or naked assertions devoid of fu rther factual enhancement.” Anokwuru v. City of Hous. , 990 F.3d 956, 962 (5th Cir. 2021 ) (cleaned up). “T o survive a Rule 12(b)(6) motion to dismiss, factual allega tions must be enough to raise a right to relief above the speculative level.” Id. at 963 (internal quotation marks and citation omitted). A 12(c) motion for judgment on the pleadings is also reviewed de novo, and the 12(c) standard “is the sa me as that applied to Rule 12(b)(6).” Vardeman , 55 F.4th at 1049. “To survive a Rule 12(c) motion, a complaint must contain sufficient factual matter, ac cepted as true, to state a claim to relief that is plausible on its face.” Laviage v. Fite , 47 F.4th 402, 405 (2022) (internal quotation marks and citation omitted). “The doctrine of qualified immunityprotects public officials from liability for civil damages ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Jennings v. Patton , 644 F.3d 297, 300 (5th Cir. 2011) (quoting Pearson v. Callahan , 555 U.S. 223, 231 (2009)). We undertake a two-pronged analysis to determine whether a government official is entitled to qualified immunity, inquiring: (1) whether the facts that the pl aintiff has alleged make out a violation of a constitutional right; and (2) whether the right at issue was “clearly established” at the time of the defendant’s alleged misconduct. Case: 22-40196 Document: 00516886520 Page: 7 Date Filed: 09/07/2023No. 22-40196

8 Id . (citing Pearson , 555 U.S. at 232). Courts “e xercise their sound discretion in deciding which of the two prongs of th e qualified immunity analysis should be addressed first.” Pearson , 555 U.S. at 236. “[A] clearly established right is one th at is sufficiently clear that every reasonable official wo uld have understood that what he is doing violates that right.” Melton v. Phillips , 875 F.3d 256, 265 (5th Ci r. 2017) (en banc) (internal quotation marks and citation om itted). The Supreme Court has repeatedly told courts . . . not to define clearly established law at a high level of generality. The dispositive question is whether the violative nature of particular conduct is clearly established. This inquiry must be undertaken in light of the specific context of the case, not as a broa d general proposition. Mullenix v. Luna , 577 U.S. 7, 12 (2015) (int ernal quotations and citations omitted). When confronted with a qualified- immunity defense at the pleadings stage, the plaintiff must plead “fac ts which, if proved, would defeat [the] claim of immunity.” Waller v. Hanlon , 922 F.3d 590, 599 (5th Cir. 2019) (quoting Westfall v. Luna , 903 F.3d 534, 542 (5th Cir. 2018)). The pleading standards remain “the same when a moti on to dismiss is based on qualified immunity. The crucial question is whethe r the complaint pleads facts that, if true, would permit the inference that Defendants are liable under § 1983[,] and would overcome their qua lified immunity defense.” Terwilliger v. Reyna , 4 F.4th 270, 279-80 (5th Cir. 2021) (internal quotations and citations omitted). At the motion to dismiss stage, “[i]t is the plaintiff’s burden to demonstrate that qualified immunity is inappropriate.” Id. at 280 (citing Club Retro, L.L.C. v. Hilton , 568 F.3d 181, 194 (5th Cir. 2009)). Case: 22-40196 Document: 00516886520 Page: 8 Date Filed: 09/07/2023No. 22-40196

9 III.
A. False Arrest We begin with Guerra’s false ar rest claim and whether the facts alleged overcome Castillo’s qualified immunity defense. 3 The Fourth Amendment right to be free from arrest without probable cause is clearly established. Terwilliger , 4 F.4th at 285. Guerra’s argument that Castillo violated his Fourth Amen dment right against false arrest is based on the Supreme Co urt’s decision in Franks v. Delaware , 438 U.S. 154 (1978). Franks liability “addresses the distinct issue of false information in a warrant application.” Melton , 875 F.3d at 264. Clearly established law at the time of Castillo’s actions laid out that under Franks , § 1983 allows claims “against an officer who deliberately or recklessly provides false, material information for use in an affida vit in support of a warrant.” Id. at 262 (cleaned up). An officer is liable under Franks only if the officer “assisted in the preparation of, or otherwise presented or signed a warrant application.” Id. at 263. If an officer does not present or sign the affidavit, liability attaches only if “he helped prepar e the complaint by providing information for use in it.” Id. at 264. The court below thought Castillo’s a lleged actions were relevantly like the actions of Sheriff Dolph Bryan in Hampton v. Oktibbeha County Sheriff Department , 480 F.3d 358 (5th Cir. 2007). In that case, an officer went to a

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3 Guerra argues that the district court e rred when it granted Castillo qualified immunity without first holding him to his burden of establishing that he was acting within the scope of his discretionary authority. But ou r review of the record indicates that Guerra forfeited this argument below by failing to raise it and by, instead, conceding that Guerra can defeat Castillo’s claim to qualified immunity only by showing that Castillo acted objectively unreasonably and violated Guerra’s clearly established constitutional right. Because Guerra forfeited his scope-of-discr etionary-authority argument, we will not consider it now. See Thomas v. Ameritas Life Ins. Corp. , 34 F.4th 395, 402 (5th Cir. 2022). Case: 22-40196 Document: 00516886520 Page: 9 Date Filed: 09/07/2023No. 22-40196

10 school to arrest a student. Id. at 361. The school’s director, Hampton, asked multiple times to see a warrant. Id. The officer was reluctant but eventually capitulated. Id. Before the officer left the premises with the arrested student, two additional officers a rrived and told Hampton th at the Sheriff Department did not permit school personnel to see an arrest warrant for a youth. Id. Apparently upset by what the officers perceived as Hampton’s unwarranted obstruction, the officers returned to the Sheriff Department and “discussed the situation with Sheriff Dolph Bryan, ” who “instructed th em to fill out an affidavit, obtain a warrant, an d place Hampton under arrest.” Id. The officers did just that and arrested Hampton, wh o was later acquitted by a court that used language suggesting the a rrest and charge were dubious. Id. at 361-62. Hampton brought a § 19 83 suit alleging Franks liability against the officers and Sheriff Bryan. Id. at 362. The district court denied qualified immunity to the Sheriff. Id. This court then reversed, finding that Hampton had failed to allege that Bryan violat ed Hampton’s constitutional rights because Hampton did not claim that Brya n himself prepared or presented the
warrant. Id. at 365. Moreover, the court held, the Sheriff “cannot be held liable under § 1983 for the actions of subo rdinates on any th eory of vicarious liability.” Id. (citation omitted). We disagree that Castillo’s allege d actions are relevantly like Sheriff Bryan’s. 4 Guerra’s complaint presents Ca stillo as the sole moving force behind a deliberate, long-term conspiracy to create and file affidavits Castillo knew to be false, with the purpose of ex ploiting the criminal justice system to arrest, detain, and torment Guerra forcrimes Castillo knew he did not commit. Castillo, moreover, ordered the sh am investigations that served as

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4 The district court correctly noted thatthe facts alleged by Guerra imply that Castillo was more involved than the sheriff in Hampton

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11 the bases for the false affidavits and pus hed the investigations forward despite knowing Guerra was innocent. Sheriff Brya n, in contrast, was a bit player in a story driven by subordinate officers who themselves desired revenge against Hampton, and whose own experiences served as the basis for the allegedly false affidavits in that case. 5 Instead, we hold that Terwilliger v. Reyna controls here. 4 F.4th 270. In that case, 177 people were arrested using a form affidavit after a shooting had left 9 dead and at least 20 injured at a May 2015 gathering of motorcycle clubs. Id . at 277-78. After the state failed to convict anyone, 31 of the arrestees filed § 1983 lawsuits alleging, inter alia , Franks liability against multiple defendants, including District Attorney Reyna who had been central to the 2015 arrests. Id . at 279. In a Rule 12 motion to dismiss, Re yna pled both absolute prosecutorial immunity and qualified immunity, but th e district court denied the motion. Id . On appeal, this court agreed with th e district court. Our court rejected Reyna’s absolute immunity claims be cause Reyna had b een “personally investigating the scene of the fracas an d taking photographs,” and therefore acting as an investigator. Id. at 281. We noted that plaintiffs “allege that Reyna was the driving force behind the mass arrests and told Asst. Chief [of Police] Lanning that ‘all bikers wear ing colors’ should be arrested.” Id. at 280. And our court also emphasized that plaintiffs “allege that Reyna was

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5 Even under Hampton’s version of the ev ents, the subordinate officers provided a judge with “false information by stating that Hampton ‘obstructed or resisted by force, or violence, or threats, or in any other manner’ the arrest of the youth.” 480 F.3d at 364 (emphasis added). It is plausible the officers and Sheriff Bryan believed it true, however, that Hampton “obstructed . . . in any othe r manner” the youth’s arrest. In contrast, treating Guerra’s allegations as true, Castillo certainly knew Guerra had not stolen the glasses or taken them from the evidence room, and he knew the investigations were shams, but he pushed his subordinates to continue forward regardless. Case: 22-40196 Document: 00516886520 Page: 11 Date Filed: 09/07/2023No. 22-40196

12 continuously updated . . . as to the stat us of the investigation” and he “had access to video footage . . . that reveal ed many [of the] attendees, including many of those arrested, had no connection to the violence or parties involved in the violence.” Id. We then proceeded to our qualified immunity analysis and asked whether, treating the facts in plainti ffs’ complaint as true, Reyna’s actions fell within the ambit of Franks liability. We said, Reyna . . . neither signed nor swore to the affidavit. Thus, Franks liability can only attach if he provided material information for use in the affidavit. The Plaintiffs plead generally that Reyna, among others, “caused an affidavit against each plaintiff to be presented.” Such conclusory language is insufficient standing alone. In more detail, the Plaintiffs plead that Reyna was provided with evidence both from the scene and interviews of attendees. But, acting contrary to the information provided to him, he stated that “all bikers wearing colors” should be arrested. Accordingly, and treating his function as that of an investigator [subject to qualified immunity, rather than a prosecutor who would be entitled to absolute immunity], Reyna generated the basic facts set out in the probable cause af fidavit. Thus, the Plaintiffs allege that Reyna “knew the ex act wording of the affidavit” and knew or recklessly disregarded the fact that, based on the exculpatory evidence he had le arned, probable cause did not exist to arrest some individuals potentially fitting the warrant’s criteria. These allegations are suff icient to tie him to potential Franks liability. Id. at 284. Notably, our analysis made no mention of any particular false information Reyna provided for use in the affidavits. Instead, we emphasized Reyna’s causal role as the driving force behind the false affidavits and arrests, alongside the fact he was presented with evidence that at least some bikers Case: 22-40196 Document: 00516886520 Page: 12 Date Filed: 09/07/2023No. 22-40196

13 wearing colors should not be arrest ed, but, “acting contrary to the information provided to him,” told hi s subordinates and colleagues that all bikers wearing colors should be arrested. “ Accordingly ,” we said, “Reyna generated the basic facts set out in th e probable cause affidavit.” Id. (emphases added). Our court then made clear that we were deciding both prongs of the qualified immunity anal ysis against Reyna. Id. at 285. Referring back to the analysis quoted above, we found thatReyna’s alleged actions violated the “clearly established right to be free fr om arrest without a good faith showing of probable cause.” Id. Importantly, this holding addresses the state of the law when Reyna acted in 2015. Turning back to the case at bar, we hold that Castillo’s alleged actions are relevantly like Reyna’s for purp oses of evaluating his potential Franks liability at the Rule 12 stage. Castillo was the “driving force” behind the conspiracy, and he was “continuously updated” as to the status of the investigations he had orde red, including the fact th e investigations revealed no criminality or impropriety. See id. at 280. Castillo knew probable cause did not exist to arrest Guerra, but, acting contrary to that information, pushed subordinates to file false affidavits wi th the purpose of having Guerra fired, humiliated, and arrested without probable cause. See id . at 284. And importantly, because Reyna’s actions viol ated clearly established law in 2015, see id. at 285, Castillo’s actions violated cl early established law in 2018 and 2019. To the extent our analysis of Reyna’s alleged actions applies imperfectly to Castillo’s, that is beca use Castillo’s alleged actions are more outrageous. We note, in particular, that Reyna faced a resp onsibility to seek justice in the immediate aftermath of enormous traged y and wrongdoing. Castillo, in contrast, acted on a per sonal vendetta, and he exploited the Case: 22-40196 Document: 00516886520 Page: 13 Date Filed: 09/07/2023No. 22-40196

14 criminal justice system to exact revenge. Moreover, while Reyna overzealously pursued arrests despite knowing that probable cause did not exist for all the arrests, Castillo had only one target, Guerra, whom Castillo knew was innocent. In sum, because Reyna “generated” the basic facts in the probable cause affidavits, such that the district court was correct to deny his Rule 12 motion based on potential Franks liability, see id. at 284, it follows a fortiori that Castillo “generated” the basic facts in the probable cause affidavits and the district court erred by granting his Rule 12 motion. Therefore, we REVERSE the district court’s dismissal of Guerra’s false arrest claim against Castillo and REMAND for further proceedin gs. “We do not opine further on whether [Guerra] may ultimatelyadduce evidence . . . sufficient to prove [his] case.” See id. at 285.
B. Malicious Prosecution Separately, Guerra argues that Cast illo is liable under § 1983 based on a Fourth Amendment “malicious prosecution” theory. The district court rejected this argument on the ground that there “is no Fourth Amendment claim for malicious prosecution.” See Morgan v. Chapman , 969 F.3d 238, 245 (5th Cir. 2020) (The Fifth Circuit “used to recognize . . . [a] constitutional right to be free from malicious prosecu tion. Today, it does not.” (citation omitted)); id. (explaining that “an en banc majority of this court extinguished the constitutional malicious-prosecution theory” in Castellano v. Fragoza , 352 F.3d 939, 954 (5th Cir. 2003) (en banc)); Anokwuru v. City of Hous. , 990 F.3d 956, 964 (5th Cir. 2021) (“Ther e is no freestandin g right under the Constitution to be free from malicious prosecution.”). Guerra argues that the dist rict court erred in light of Thompson v. Clark , 142 S. Ct. 1332 (2022), which pr esupposes the possibility of a Fourth Amendment claim for malicious prosecution. Id. at 1341 (“[A] Fourth Case: 22-40196 Document: 00516886520 Page: 14 Date Filed: 09/07/2023No. 22-40196

15 Amendment claim under § 1983 for malic ious prosecution does not require the plaintiff to show that the cr iminal prosecution ended with some affirmative indication of innocence.”); see Armstrong v. Ashley , 60 F.4th 262, 279 (5th Cir. 2023) (“[ Thompson ] overrul[ed] our precedent in Castellano .”). 6 But Fifth Circuit case law between 2003 ( Castellano ) and 2021 ( Anokwuru ) explicitly denied the possibilit y of a constitutional malicious prosecution claim. When evaluating whether Castillo violated clearly established law for purposes of our qua lified immunity anal ysis, we consider whether the law was clearly establis hed “at the time of the defendant’s alleged misconduct.” Jennings , 644 F.3d at 300 (citing Pearson , 555 U.S. at 232). We AFFIRM the district court’s Rule 12 dismissal of Guerra’s malicious prosecution claim against Ca stillo because this court’s caselaw explicitly disclaimed the existence of a constitutional claim for malicious prosecution at the time of Castillo’s a lleged conduct in 2018 and 2019 and Guerra has identified no Supreme Co urt case law from the same period acknowledging such a claim.
IV.
Guerra also raises a First Am endment retaliation claim against Castillo on the theory that Castillo re taliated against Guerra for protected political speech.
The district court found that Guerra failed to allege sufficient facts to support this theory, which would requ ire that Guerra engaged in First Amendment protected speech and thatthe protected speech motivated Castillo’s retaliatory acts. See Izen v. Catalina , 398 F.3d 363, 367 (5th Cir.

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6 Thompson was published on April 4, 2022, see 142 S. Ct. 1332, less than a month after the district court rejected Guerra’s malic ious prosecution theory on March 8, 2022. Case: 22-40196 Document: 00516886520 Page: 15 Date Filed: 09/07/2023No. 22-40196

16 2005); Sims v. City of Madisonville , 894 F.3d 632, 640-41 (5th Cir. 2018). We agree with the district court. Guerra plausibly alleges that his re fusal to direct his subordinate to drop the DWI charges, despite Castillo ’s urging, was a but-for cause and substantial motivation for Castillo’s retaliatory acts. But Guerra has failed to put forward any law that suggests Guerra’s refusal to do as his direct superior asked, in the context of his employment as a patrol sergeant, constitutes First Amendment protected speech, let alone th at it is First Amendment protected speech under clearly established law. See Garcetti v. Ceballos , 547 U.S. 410, 418-19, 424 (2006). Given that this is a qualified immuni ty context, “[i]t is the plaintiff’s burden to demonstrate that qualified i mmunity is inappropriate,” even at the motion to dismiss stage. Terwilliger, 4 F.4th at 280

. We conclude that Guerra has failed to overcome Castillo’s qua lified immunity because he has put forward no authority relevant to th e question whether his refusal was protected speech. 7
We AFFIRM the district court’s di smissal of Guerra’s First Amendment claim against Castillo.

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7 Separately, Guerra’s briefing sometimes suggests that Castillo retaliated against Guerra due to Guerra’s political associations . But we agree with the district court that this does not accurately reflect his complaint, whic h does not plead facts sufficient to plausibly infer that Castillo retaliated against Guerra fo r his political associations. The complaint does not suggest, for example, that Castillo retaliated because Guerra failed to support the Mayor politically, or because Guerra supported the Mayor’s rival. Guerra’s complaint is clear: Castillo retaliated against him for refusing to do as Castillo asked and making him appear feckless before the Mayor. Even trea ting the complaint’s claims as true and construing them in Guerra’s favor, the comp laint does not plausibly allege that Guerra’s political associations were a but-for cause and motiva tion for Castillo’s actions. Case: 22-40196 Document: 00516886520 Page: 16 Date Filed: 09/07/2023No. 22-40196

17 V. Finally, Guerra raises a § 1983 claim against the City under Monell , 436 U.S. 658. “[M]unicipal liability un der Section 1983 requires proof of three elements: a policymaker; an offi cial policy; and a violation of constitutional rights whose ‘movin g force’ is the policy or custom.” Piotrowski v. City of Hous. , 237 F.3d 567, 578 (5th Cir. 2001) (citation omitted). To be a policymaker, “neither complete discretionary authority nor the unreviewability of such authority” is enou gh; “[t]here must be more.” Zarnow v. City of Wichita Falls , 614 F.3d 161, 168 (5th Cir. 2010). Guerra’s complaint alle ges that both Castillo and the City Manager, Ozuna, were policymakers. We begin with Castillo. Guerra’s complaint states that th e City “permit[ed] its Chief of Police unrestricted control of the police De partment. . . . This abdication of authority as expressly set forth in th eir city charter and as customarily[] practiced by the city and its agents, has resulted in a consistent abuse of due process to aggrieved individuals such as plaintiff and a depriv ation of his right to due process under the 4 th Amendment . . . and under the Monell [s]tandards set forth by the U.S. Supreme Court.” No citati on is made to a particular part of the city charter. In its motion to dismiss below, the City produced parts of the city charter to argue that “all powers of th e City of Alamo [are] vested in [its] Board of Commissioners” and that neither the Chief of Police nor the City Manager has policymaking authority. It also argued, in further briefing, that Guerra failed to “identify any facts to establish the City ever delegated policymaking authority to Castillo.” In reply, Guerra reproduced the same parts of the city charter, bolding the phrase “[The Board] may pass any ordinances theymay desire delegating any part of their authority and duties to any other person, offices or Case: 22-40196 Document: 00516886520 Page: 17 Date Filed: 09/07/2023No. 22-40196

18 employee, not inconsistent with the Constitution or laws of the State of Texas.” Art. III § 6. But he mentione d no ordinance that delegated that authority. Instead, he reproduced a sect ion of the city charter stating, “[t]he chief of police shall be the chief admini strative officer of the department of police,” and “[t]he chief of police shall be responsible for the administration of the police department.” Art. IV § 2.
The above does not allow this court to plausibly infer that Castillo had “more” than either “complete discretionary authority []or the unreviewability of such authority,” as Zarnow requires. 614 F.3d at 168. Next, Guerra argues that Ozuna, the City Manager, had policymaking authority under Monell

. 8 Guerra’s complaint noted th at he was terminated in a letter from Ozuna. The complaint also claims that Guerra’s counsel had requested an administrative hearin g from Ozuna “to discuss the false allegations against Plaintiff that had wron gfully resulted in his dismissal[,] but the hearing was never provided.” Once again, Guerra’s complaint does not identify facts that allow this court to plausibly infer that Ozuna had both complete or unreviewable discretionary authority and also “more.” See id. Therefore, we AFFIRM the district court’s dismissal of the City under 12(b)(6).
VI.
We REVERSE the district court’s dismissal of Guerra’s Fourth Amendment false arrest claim against Castillo and REMAND for further

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8 The district court did not consider th is argument because Guerra’s complaint fails to identify Ozuna as the City Manager, leaving it entirely obscure who the “City Manager” might be and what actions he migh t have taken. We will consider the argument because Guerra was dismissed under Rule 12(c ) and Guerra’s response brief to Castillo’s motion to dismiss identifies Ozuna as the City Manager. Case: 22-40196 Document: 00516886520 Page: 18 Date Filed: 09/07/2023No. 22-40196

19 proceedings. We AFFIRM the district court’s judgments in all other respects. Case: 22-40196 Document: 00516886520 Page: 19 Date Filed: 09/07/2023