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No qualified immunity for arrest of citizen journalist asking questions

The court denies law enforcement officers qualified immunity for the arrest of a local journalist in a recent case

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VILLARREAL V. CITY OF LAREDO, 2021 WL 5049281 (5th Cir. 2021)

“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.” I don’t get my news from Facebook; I read the New York Times every morning. Even so, we live in a new world where the woman next door with a Facebook account “reports” on local issues and has just the same rights as the most experienced New York Times professional journalist. This case reminds officers what that means. The court described the officers’ actions as “not just an obvious constitutional infringement – it’s hard to imagine a more textbook violation of the First Amendment.”

Priscilla Villarreal is a self-designated journalist in Laredo, Texas, who posts stories on her Facebook page. She writes about local crime, missing persons, community events, traffic and local government affairs. Occasionally, Villarreal uses a mobile phone to livestream from crime scenes and traffic accidents.

Villarreal had previously been publicly critical of a local prosecutor and the local police. In one of her stories, she named a law enforcement officer and reported that he died by suicide. She got the details of the suicide information from a janitor working nearby and a local police officer confirmed the victim’s identity. Villarreal also published the name of a family involved in a fatal car crash that she first learned from a relative of the victims’ family who saw one of Villarreal’s Facebook videos of the crash scene.

A state law states that “a person commits an offense if, with intent to obtain a benefit …, 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.” A local prosecutor obtained two arrest warrants for Villarreal, asserting she solicited or received the names of the suicide victim and the traffic accident victims and that the information was “nonpublic” information.

Villarreal was arrested and jailed. While she was in jail, officers took photos of her and mocked her. Villarreal was released after seeking a writ of habeas corpus, then sued the city, police officers, prosecutors and county, alleging a pattern of harassment and retaliation. A trial judge granted qualified immunity and Villarreal appealed.

To counter a motion to grant qualified immunity, a plaintiff typically shows prior cases that demonstrate the officers’ conduct violated “clearly established” law. However, the court cited another method, less commonly applied, to defeat qualified immunity: “Although earlier cases involving ‘fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.”

The court observed that officers “can still be on notice that their conduct violates established law even in novel factual circumstances.” The court cited examples where qualified immunity could not apply even where there were no cases showing a constitutional right was clearly established. In the first case, Taylor v. Riojas (141 S. Ct. 52 (2020) (per curiam)), massive amounts of human feces built up in an inmate’s jail cell over a period of six days. The Supreme Court held that qualified immunity could not apply, reasoning that “no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.”

In the second case, Hope v. Pelzer (536 U.S. 730 (2002)), guards handcuffed an inmate to a hitching post for seven hours in the sun with little water: “They taunted him about his thirst, giving water to some dogs, before bringing the water cooler closer to the prisoner and kicking the cooler over, spilling the water onto the ground.” The guards also refused to allow him to use a restroom. The Supreme Court acknowledged that there was no “materially similar” case to suggest the constitutional right was clearly established. Nonetheless, the Court denied qualified immunity because of the prison guards’ “obvious cruelty.”

In Villarreal’s case, the Court of Appeals held: “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 … There is a big difference between ‘split-second decisions’ by police officers and ‘premeditated plans to arrest a person for her journalism, especially by local officials who have a history of targeting her because of her journalism.’” The lesson of this case reminds me of an old maxim from Verbal Judo, “If it feels good, it’s no good.” The brief enjoyment of arresting Villarreal was soon lost in the costs of defending against the lawsuit and paying the resulting money damages.

NEXT: With 2 rulings, SCOTUS rebukes lower courts and doubles down on qualified immunity guidance

A police officer and former prosecutor, Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General. Traffic detentions and passenger issues are discussed in his new book, Street Legal: A Guide to Pre-trial Criminal Procedure for Police, Prosecutors, and Defenders, published by the American Bar Association Press.