Fifth Circuit Asked To Not Fuck Up Solid First Amendment Decision It’s Already Handed Down Twice

This is an unwelcome development. The Fifth Circuit Appeals Court is already the home of Rights Roulette. Everyone is free to take it for a spin, but should be aware the odds heavily favor the house. The government comes out a winner more often than not, no matter how long the odds may seem when the Fifth's judicial croupiers start spinning the wheel.

Given that background, it seems nothing good will come of the Fifth Circuit performing an en banc hearing on a lawsuit it's already ruled on twice.

The case dates back to January 2018. That's when Laredo, Texas police officers arrested local independent journalist Priscilla Villarreal - a.k.a. Lagordiloca - for publishing information the PD felt should have remained secret: the identity of a Border Patrol agent who'd committed suicide.

Villarreal wasn't particularly liked by local law enforcement. And, although the PD already had identified the source of the leak (police officer Barbara Goodman), it decided to arrest a journalist for doing what journalists do: publish leaks. And all Villarreal had done was ask Officer Goodman for verification of information she had already obtained from another Laredo resident.

The charge was misuse of official information." No journalist has ever been arrested in Texas for violating this law. There's a good reason for that. It's an anti-corruption law meant to deter public officials from misusing official information for personal gain. The personal gain" part matters. Without it, the charge can't stick. So, the PD pretended that Villarreal had personally profited" from publishing this leak because... she gained more Facebook followers after publishing it.

Prosecutors dropped the charge after Villarreal challenged it in court. Then she sued. Unbelievably, the district court awarded qualified immunity to the officers. The Fifth swiftly and strongly reversed it. This pretty much sums up the Appeals Court's findings:

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).

It released that decision in November 2021. The court noted that a dissenting opinion somehow finding in favor of arresting journalists for performing journalism was being crafted and the opinion would be reissued when this was completed.

In August 2022, the Appeals Court re-released the opinion with the dissent attached. The dissenting opinion - written by Judge Priscilla Richman - was attached, as was a strong concurrence that excoriated Judge Richman's arguments in favor of extending qualified immunity to the police officers.

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.

[...]

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).

Having twice delivered the same opinion (albeit with the addition of Judge Richman's unconstitutional nonsense), the Appeals Court moved on. Well, most of the court. One judge wasn't going to let this go. The Fifth Circuit sent out this ominous order October 28.

A member of the court having requested a poll on the petitions for rehearing en banc, and a majority of the circuit judges in regular active service and not disqualified having voted in favor,

IT IS ORDERED that this cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed.

It shouldn't take more than one attempt to guess who this unnamed member of the court" is. Only one judge was truly unhappy with the majority decision and it appears Judge Richman managed to wear the rest of them down. Now, either the court is going to do something extremely stupid and head off in her direction. Or the pestered majority is going to deliver a second opinion just to shut her up. Which way that will go is much more difficult to determine.

Fortunately, the Institute for Justice (which was quoted in the Appeals Court's original decision) is back on the case. It has filed an amicus brief [PDF] coming down firmly on the side of all that is good and constitutionally-protected. The opening of the brief doesn't give much space for Judge Richman (and others in the court who may be similarly aligned) to talk around.

Did reasonable officials have fair warning that the First and Fourth Amendments prohibit arresting a person for peacefully asking questions to a government official for quintessential journalistic purposes?

Of course they did. And under both the modern doctrine and the original meaning of Section 1983, qualified immunity does not shield the defendants' obvious constitutional violations, even if laundered through state law, and especially because they were premeditated.

Indeed, granting immunity here would not only reward the knowing punishment of speech and journalism, but also: countenance government control of speech and information; absurdly impute obscure statutory knowledge to ordinary individuals while allowing government officials to plead ignorance of the First Amendment; and tell officials of all stripes that they can weaponize bloated criminal codes to target and upend the lives of disfavored persons, groups, or views.

Given the plethora of obscure laws on the books, any cop with enough time of their hands (and these cops waited six months to effect this arrest) could find something to act as probable cause for an arrest, even if the point of the arrest was to violate someone's rights with enough severity they might think twice before hitting the publish button in the future. Qualified immunity was never meant to protect cops from engaging in bad faith. But that is exactly what the dissenting judge wants: cops who only need to kind of know the laws they want to abuse while remaining free to ignore reams of constitutional court precedent.

In short: Using qualified immunity to launder the defendants' misconduct here through a rote search for identical caselaw or a mechanical probable cause analysis under section 39.06(c) would be to hold that reasonable government officials could-with time to consult Amendment I and the federal reporter posit that the criminalization of journalism was an open constitutional question and plow ahead with the arrest of a muckraking thorn in their side.

I would like to say I can't see how the Fifth Circuit Appeals Court can reverse this. But... well, it's not exactly the most reasonable circuit in the nation. Anything could happen. For now, though, it really doesn't matter. Its original ruling has been vacated. And that means cops can - for the time being - abuse laws to undermine First Amendment rights and still have a slim chance of getting away with it.