Fifth Circuit: It’s Very Fucking Definitely A Rights Violation To Arrest A Journalist For Asking Questions
Four years ago, the Laredo Police Department arrested a citizen journalist for the crime of receiving an answer to a question she asked.
Priscilla Villarreal patrols the streets of Laredo with her camera, reporting on police activity simply by turning on her camera during traffic stops, arrests, and other incidents, and providing commentary. Her reporting has drawn a crowd, albeit one somewhat removed from the printed page. Known by her affectionate nickname of Lagordiloca," Villarreal has amassed nearly 200,000 Facebook followers.
The Laredo PD said Villarreal misused official information," which is a crime. But the fact is she was given this official information by a (perhaps too leaky/friendly) Laredo police officer, who gave her the name of a Border Patrol officer who had recently committed suicide. Rather than keep its investigation of the leak internal, the Laredo PD decided to punish Villarreal for performing journalism by approaching a source (the PD officer) and asking for information about the recent suicide.
If the information was meant to remain confidential, the problem was with the person who gave Lagordiloca the information, rather than Villarreal's publication of the info. But city prosecutors moved ahead with criminal charges, only to see them tossed once a judge got involved.
Nonetheless, the prosecution claimed it was on the right side of the law, if not history. And Webb County DA Isido Alaniz insisted this was the right thing to do despite it never having been done before.
We believe that the law was there, was on our side. We applied the law that was in the books," Alaniz said.
Ah, the law the court said couldn't be enforced this way because it was very likely unconstitutional. That law. Got it.
Well, let's see what else the law has to say about the law that was on your side." Villarreal sued the officers who arrested her and the Fifth Circuit Court of Appeals stripped the immunity awarded to the arresting officers by the lower court. The Fifth often takes kindly to cops but it saw nothing more than a clear violation of rights in this case.
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.
It was a patently obvious" violation, the Fifth Circuit said. How could any cop reasonably believe an arrest was warranted?
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).
That opinion was issued November 1, 2021. The court noted a dissenting opinion was being crafted and promised to revisit its decision when that was completed.
The good news is that the second pass changes nothing. That much is clear from the opening of the Fifth Circuit's second opinion [PDF], published August 12, 2022.
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.
If that is not an obvious violation of the Constitution, it's hard to imagine what would be.
The important parts of this decision remain unchanged. The original opinion ran a brisk 21 pages. The replacement opinion - which now contains a concurrence and a dissent - runs 50 pages.
The concurrence does what it's supposed to. Just because it repeats the findings of the majority, doesn't mean it's not worth reading, though. The violation was patently obvious. And the concurrence (written by Judge James Ho) hammers this point home with its opening sentence.
If any principle of constitutional law ought to unite all of us as Americans, it's that government has no business telling citizens what views they may not hold, and what questions they may not ask.
So, why the republication with additional commentary? If I had to guess, it's because one judge insisted that the public know he was the asshole signing his name to stupid opinions (Bailey v. Cox, 1974).
The dissent is written by Chief Judge Priscilla Richman (get a load of these notable opinions," y'all) , who states she would affirm the district court's dismissal of Villarreal's entire lawsuit simply because Texas state law is vague enough to allow the punishment of First Amendment protected activities and the officers reasonably relied on a judge's inability to determine what rights violations the cops had in mind when they submitted their arrest warrant affidavit.
Judge Ho's concurrence points out just how wrong Judge Richman is:
The dissent claims that this concurring opinion directly conflicts with the majority opinion's holding."
I don't see how. There are two separate and independently compelling reasons why reversal is warranted. And they're entirely compatible with one another. First, 39.06(c) can and should be construed not to prohibit Villarreal's acts as a journalist. Second, if that's wrong, and the statute does in fact criminalize Villarreal's acts as a journalist, then 39.06(c) is obviously unconstitutional.
These are alternative holdings, not contradictory ones. The majority expressly adopts the former holding. So does the concurrence. The concurrence simply provides an additional, second holding, in hopes of offering a coherent and complete intellectual response to the dissent.
The dissent contends that our holding today shreds the independent intermediary doctrine." In essence, the dissent says that a magistrate issued a warrant, so the officers were entitled to rely on it.
But that's not how the doctrine works. As the majority already explains (ante, at 15-16), the fact that a neutral magistrate has issued a warrant authorizing the allegedly unconstitutional search or seizure does not end the inquiry into objective reasonableness." Messerschmidt v. Millender, 565 U.S. 535, 547 (2012). We deny qualified immunity if it is obvious that no reasonably competent officer would have concluded that a warrant should issue." Malley v. Briggs, 475 U.S. 335, 341 (1986).
The opinion remains intact. All that's been added is a very strong concurrence and an incredibly terrible dissent that indicates a federal judge would would rather punish the recipient of leaked (supposedly sensitive information) information than the government employee who leaked it. Punishment of either is extremely questionable but punishing journalists for asking questions (but only because they received answers) is beyond the constitutional pale.