Fifth Circuit Appeals Court Strips Immunity For Officers Who Arrested A Journalist For Asking Questions

Free Speech

from the and-that's-why-they-play-the-courtroom-games dept

The Fifth Circuit Court of Appeals has finally found some law enforcement officers not worthy of qualified immunity. The First and Fourth Amendment violations were too egregious to be ignored, even with a lack of precedential decisions on point to work with.

In January 2018, Laredo (Texas) police officers arrested a local journalist — Priscilla Villareal, a.k.a. Lagordiloca — for asking a couple of questions of (and receiving a couple of answers from) another Laredo PD officer. Villareal doesn’t work for any local press outlet. Instead, she broadcasts directly to 120,000 Facebook followers, often adding commentary to ongoing events.

The local cops don’t like her. So, they decided to have her arrested under Texas Penal Code §39.06(c), which says:

A person commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he solicits or receives from a public servant information that:

(1) the public servant has access to by means of his office or employment;  and

(2) has not been made public.

Here’s what happened, as recounted by the Fifth Circuit opinion [PDF]:

In April 2017, Villarreal published a story about a man who committed suicide. The story identified the man by name and revealed that he was an agent with the U.S. Border Patrol. Villarreal first uncovered this information from talking to a janitor who worked near the scene of the suicide. She then contacted LPD Officer Barbara Goodman, who confirmed the man’s identity.

The following month, Villarreal published the last name of a family involved in a fatal car accident in Laredo. She first learned the family’s identity from a relative of the family who saw a video that Villarreal had posted. Again, Villarreal contacted Officer Goodman, and again, the officer verified this information.

Rather than deal with the loose-lipped employee, the Laredo PD secured two arrest warrants six months after the second publication, alleging two separate violations of this law. Supposedly Villareal had violated this law by “gaining more followers” after publication of this info. Yes, the Laredo PD alleged she did it for the clicks. Villareal found out about these warrants and turned herself in. She was detained at the county jail following this additional indignity:

During the booking process, Villarreal saw LPD officers taking pictures of her in handcuffs with their cell phones. The officers mocked and laughed at her.

The charges were tossed two months later.

Villarreal filed a petition for a writ of habeas corpus in the Webb County district court. In March 2018, a judge granted her petition and held that § 39.06(c) was unconstitutionally vague. The government did not appeal.

Villareal sued the officers who arrested her. The lower court said it looked like some rights may have been violated but not in a way any officer had tried before. Qualified immunity was awarded even though the law used to arrest her had been rejected as unconstitutional by a judge. The lower court believed the cops had no way of knowing they shouldn’t use a bad law to punish a journalist they didn’t like.

The Appeals Court sees it differently. This was such a clear violation of rights it doesn’t even matter that there’s no on-point precedent.

After discussing precedent (and precedent involving clear rights violations that also lacked courtroom precedent), the Fifth Circuit arrives at this conclusion:

The point is this: The doctrine of qualified immunity does not always require the plaintiff to cite binding case law involving identical facts. An official who commits a patently “obvious” violation of the Constitution is not entitled to qualified immunity.

That principle should have precluded dismissal of the various constitutional claims presented here. Just as it is obvious that Mary Anne Sause has a constitutional right to pray, it is likewise obvious that Priscilla Villarreal has a constitutional right to ask questions of public officials. Yet according to her complaint, Defendants arrested and sought to prosecute Villarreal for doing precisely that—asking questions of public officials.

This is not just an obvious constitutional infringement—it’s hard to imagine a more textbook violation of the First Amendment.

The Court hammers this point home:

If the freedom of speech secured by the First Amendment includes the right to curse at a public official, then it surely includes the right to politely ask that official a few questions as well.

[…]

If freedom of the press guarantees the right to publish information from the government, then it surely guarantees the right to ask the government for that information in the first place.

[…]

Put simply: If the government cannot punish someone for publishing the Pentagon Papers, how can it punish someone for simply asking for them? See New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).

The Appeals Court wonders what the Laredo police officers were thinking, which means it also wonders what the lower court was thinking when it chose to award them qualified immunity.

So it should be patently obvious to any reasonable police officer that the conduct alleged in the complaint constitutes a blatant violation of Villarreal’s constitutional rights. And that should be enough to defeat qualified immunity.

But but but but but we used a law, said the officers. Oh my no, says the court. It’s a terrible law. Doesn’t count.

We do not grant qualified immunity where the official attempts to hide behind a statute that is “‘so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.’”

Cue pop culture reference from an underwhelming sequel:

It should be obvious to any reasonable police officer that locking up a journalist for asking a question violates the First Amendment. Indeed, even Captain Lorenzo, the stubborn police chief in Die Hard 2, acknowledged: “Now personally, I’d like to lock every [expletive] reporter out of the airport. But then they’d just pull that ‘freedom of speech’ [expletive] on us and the ACLU would be all over us.” Die Hard 2 (1990).

Captain Lorenzo understood this. The officers in Laredo should have, too.

If the law was so bad it resulted in a First Amendment violation, arresting Villareal using the law was obviously (altogether now, officers) also a Fourth Amendment violation.

As explained above, a reasonably well-trained officer would have understood that arresting a journalist for merely asking a question clearly violates the First Amendment. “A government official may not base her probable cause determination on an ‘unjustifiable standard,’ such as speech protected by the First Amendment.” Mink v. Knox, 613 F.3d 995, 1003–04 (10th Cir. 2010) (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)). See also Swiecicki v. Delgado, 463 F.3d 489, 498 (6th Cir. 2006) (“[A]n officer may not base his probable-cause determination on speech protected by the First Amendment.”).

The same goes for the Fourteenth Amendment claim. Villareal pointed out no other journalists have been arrested under this law for asking questions and receiving answers from police officers or PD employees. Just because other journalists may have approached the PD’s spokesperson rather than speaking directly to their PD source doesn’t make any difference. That claim can move forward as well.

No qualified immunity for the officers. They will have to face these claims, as well as conspiracy claims. And, as a bonus, the Texas State Attorney has been notified the state has an unconstitutional law on the books and will need to get that fixed ASAP.

Sometimes you don’t need precedent to strip immunity. Sometimes — even in the Fifth Circuit — the facts are so obvious even a bunch of petty police officers should have recognized that targeting a critic with a terrible law would be unconstitutional. These officers chose to seek warrants anyway, possibly under the presumption that abusing their power would be greeted with sustained claims of qualified immunity. And that plan worked… right up until it didn’t.

Filed Under: 1st amendment, 4th amendment, 5th circuit, asking questions, citizen journalism, journalism, laredo, law enforcement, police, priscilla villareal, qualified immunity, texas