Nahmod Law

In Villarreal v. City of Laredo, Texas, a 2022 Fifth Circuit case, the plaintiff was prosecuted under a never-before used (and subsequently held-unconstitutional) state statute for publishing information she obtained from a police officer. The Fifth Circuit panel explained as follows in denying qualified immunity to the defendant police officers:

“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: [Plaintiff] was put in jail for asking a police officer a question [in 2017].

If that is not an obvious violation of the Constitution, it’s hard to imagine what would be. And as the Supreme Court has repeatedly held, public officials are not entitled to qualified immunity for obvious violations of the Constitution.”

Thereafter, however, the Fifth Circuit granted en banc review, vacated this panel decision and, over various dissents by six judges, issued a superseding opinion that ruled that the defendant officers were protected by qualified immunity. It explained: “[Plaintiff] cites no case, nor are we aware of one, where the Supreme Court, or any other court, has held that it is unconstitutional to arrest a person, even a journalist, upon probable cause for violating a statute that prohibits solicitation and receipt of nonpublic information from the government for personal benefit.”

The en banc Fifth Circuit also rejected the plaintiff’s argument that a general First Amendment principle—that “a third party may publish sensitive government information already in the public domain”—demonstrated that the defendants violated clearly settled law. All of the cases the plaintiff relied on for this principle were distinguishable. Villarreal v. City of Laredo, Texas, 44 F.4th 363, 367 (5th Cir. 2022), reh’g en banc granted, vacated, 52 F.4th 265 (5th Cir. 2022) and superseded on reh’g en banc by, 94 F.4th 374 (5th Cir. 2024).

In the initial panel decision Judge Ho had concurred, 44 F.4th at 378, while Judge Priscilla Richman had concurred in part and dissented in part, 44 F.4th at 382.

Thereafter, the plaintiff filed a petition for certiorari which was summarily granted by the Supreme Court, which vacated and remanded to the Fifth Circuit in light of Gonzalez v. Trevino, 144 S. Ct. 1663 (2024). As discussed in an earlier post, Gonzalez held that First Amendment retaliatory arrest claims do not require comparative evidence, only objective evidence of a retaliatory motive. See https://nahmodlaw.com/2024/06/24/the-supreme-court-rejects-a-too-narrow-nieves-first-amendment-retaliation-claims-exception-gonzalez-v-trevino/

Comment

This decision does not signal a change in Supreme Court qualified immunity jurisprudence even though it is one of those rare asymmetric decisions favoring a section 1983 plaintiff. Rather, it indicates that the Court is giving the Fifth Circuit another chance to get the First Amendment violation issue, and the related qualified immunity issue, right, just as the Fifth Circuit panel initially decided.