The U.S. Court of Appeals for the Fifth Circuit issued a published order Monday denying a panel rehearing request in *Hershey v. City of Bossier City*, Case No. 21-30754, bringing to a close a federal civil rights lawsuit that has wound through the courts since 2021.
The per curiam order, filed Jan. 13, 2026, rejected plaintiff Richard Hershey's request for panel rehearing in his appeal against the City of Bossier City and five individual defendants: Bobby Gilbert, individually and in his capacity as Deputy Marshal; Daniel Stoll; David Smith; Tyshon Harvey; and Eugene Tucker. The case originated from the U.S. District Court for the Western District of Louisiana under docket number 5:21-CV-460.
Circuit Judges Dennis and Richman joined the majority order denying rehearing, with Judge Dennis noted as not participating in the decision. However, Circuit Judge James Ho issued a pointed dissent, expressing frustration with the court's handling of qualified immunity issues in the case.
"I would have granted panel rehearing, and taken the en banc dissent at its word, regarding its sudden and profoundly surprising change of heart on qualified immunity," Ho wrote in his dissenting opinion. The judge argued that panel rehearing would have provided Hershey with the opportunity to brief qualified immunity issues that a previous dissent had "purportedly welcomed him to present."
Ho's dissent reveals underlying tensions within the circuit regarding qualified immunity doctrine, the legal standard that protects government officials from civil lawsuits unless they violated clearly established law. His reference to a "sudden and profoundly surprising change of heart" suggests the court may have shifted its approach to qualified immunity analysis in ways that affected Hershey's case.
The judge expressed particular concern about assurances apparently given to Hershey during the litigation process. "So whatever assurances Hershey thought he was getting, it turns out that comments in a dissenting [opinion carry no legal force]," Ho wrote, citing *Georgia v. Public.Resource.Org, Inc.*, 590 U.S. 255, 273 (2020).
While the published order provides limited details about the underlying claims, the case involves allegations against municipal officials and law enforcement personnel in Bossier City, Louisiana. The presence of both individual capacity and official capacity claims against Deputy Marshal Gilbert suggests the lawsuit may have involved allegations of constitutional violations, likely under Section 1983 of the Civil Rights Act.
The denial of panel rehearing typically represents the final step in the federal appeals process, though Hershey could potentially seek review by the Supreme Court through a petition for writ of certiorari. However, the high court grants review in only a small percentage of cases, making further appeal unlikely.
Qualified immunity has become an increasingly contentious issue in federal courts, particularly in cases involving law enforcement conduct. The doctrine, developed through Supreme Court precedent, requires plaintiffs to show not only that their constitutional rights were violated, but that the violation was of "clearly established" law that a reasonable official would have known.
Critics argue the standard makes it nearly impossible to hold government officials accountable for misconduct, while supporters contend it protects officials who must make split-second decisions in difficult circumstances. The Supreme Court has faced growing pressure to reconsider or clarify the doctrine, with justices across the ideological spectrum expressing concerns about its current application.
Ho's dissent suggests the Fifth Circuit may be grappling with these broader questions about qualified immunity's scope and application. His reference to an "en banc dissent" indicates the full court may have previously considered related qualified immunity issues, though the specific context remains unclear from the available order.
The case's path through the federal court system reflects the complex procedural landscape facing civil rights plaintiffs. After losing at the district court level, Hershey appealed to the Fifth Circuit, which apparently ruled against him in an earlier decision. His request for panel rehearing—asking the same three-judge panel to reconsider its decision—was the procedural step that the court denied in Monday's order.
For practitioners in the civil rights field, the case highlights ongoing uncertainty around qualified immunity standards and the challenges facing plaintiffs seeking to hold government officials accountable for alleged constitutional violations. Ho's dissent suggests these issues may continue to generate disagreement within the federal judiciary.
The City of Bossier City and individual defendants prevailed in the litigation, though the specific legal theories and factual allegations underlying Hershey's claims remain unclear from the procedural order. The case serves as another example of the difficulty civil rights plaintiffs face in navigating federal court procedures and legal standards when challenging government conduct.