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Fifth Circuit: Qualified Immunity for Laredo Police After Arresting Citizen Journalist for Asking a Question

By Joseph Fawbush, Esq. | Last updated on

Back-channel reporting on government practices is as old as journalism itself. Journalists with an inside government source may use that source to paint a picture in direct contrast with the public image a government agency, official, or politician puts forth. Then we, the public, are responsible for deciding which information is the most trustworthy. Even if the inside source is unreliable, the First Amendment is pretty clear that we have the right to a free press, including the right to ask questions of government employees. Right?

Not according to Texas law and the Fifth Circuit. A rarely-invoked Texas law was used to arrest citizen journalist Priscilla Villarreal, who goes by the moniker "La Gordiloca" on social media. Villarreal, who has over a hundred thousand followers, published information about the suicide of a border patrol agent before the information had been released to the public. She obtained this information by asking a source within the Laredo Police Department (LPD). The Texas law prohibits individuals from "soliciting or receiving nonpublic information from a public servant who has access to that information by virtue of her position with the intent to obtain a benefit."

How is this law constitutional as applied here? Well, it almost certainly isn't. However, it's never been contested, probably because it's never been used to arrest a journalist, at least until Villarreal in 2017. The charges against her were dropped, and Villarreal filed a Section 1983 claim against the LPD, among others, for violating her First and Fourth Amendment rights.

Qualified Immunity

The lawsuit was dismissed based on qualified immunity. In short, qualified immunity is a doctrine that protects police officers and other public officials from lawsuits in all situations except for “all but the plainly incompetent or those who knowingly violate the law.”

Villarreal appealed. The question before the Fifth Circuit, therefore, was whether the law so obviously violated the First Amendment that the police, judges, and prosecutors knew it was and acted only in retribution for unflattering stories Villarreal had published about the LPD — and could therefore be sued.

A Divided Fifth Circuit

Initially, a panel of judges on the Fifth Circuit ruled that the law was so plainly a violation of the First Amendment that the public officials involved did not get qualified immunity. However, the Fifth Circuit took up the case en banc, meaning that all Fifth Circuit judges re-heard the case and decided it together. Typically, a federal appellate court will re-hear a case en banc if enough judges disagree with the first ruling to overturn the decision. This is what happened here.

By a vote of 9-7, the Fifth Circuit held that the officers and prosecutors were entitled to qualified immunity since "[n]o controlling precedent gave the defendants fair notice that their conduct, or this statute, violates the Constitution facially or as applied to Villarreal."

Put simply, Villarreal was under notice that asking a question about the death of the border patrol agent violated Texas law. But police and the prosecutor were under no obligation to consider whether they were allowed to arrest a citizen-journalist under the First Amendment for asking that question. Even though, unlike in most qualified immunity cases, this was not a split-second decision made by a police officer under duress, but a premeditated arrest where there was plenty of time to consider the proper course of action.

The Fifth Circuit did not address whether the Texas law was constitutional. Villarreal has pledged to appeal, but it is not clear whether the Supreme Court will take up the case.

The Fifth Circuit decision applies to Texas, Louisiana, and Mississippi.

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