Supreme Court Tells Fifth Circuit To Undo Its 1st Amendment Fuckery In The Villarreal Case

The Fifth Circuit Appeals Court continues to hand down dumb decisions rewarding law enforcement for rights violations. And the Supreme Court — yes, this Supreme Court — keeps sending those decisions back for a do-over.

In December 2017, Laredo PD officers arrested local independent journalist, Priscilla Villarreal, for the alleged crime of “misusing official information.” That crime was never committed. What actually happened was this: Villarreal obtained information about a Border Patrol officer who had committed suicide from a source inside the Laredo PD. She then published this information. The PD decided it was not satisfactory to simply punish the source of the leak. It decided it needed to arrest the person who — completely legally — published information she had obtained from a government employee.

Five months later, Villarreal’s criminal charges were tossed, with the local judge calling the law wielded against her by the unhappy police department “unconstitutionally vague.” Villarreal then sued the Laredo PD for violating her First and Fourth Amendment rights. Somehow, the district court decided the officers were entitled to qualified immunity.

This decision was reversed — forcefully — by the Fifth Circuit Appeals Court in August 2022, which had this to say about this obviously retaliatory arrest of the journalist:

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.

You would have thought the city would be crafting a settlement offer at this point. But you’d be wrong. Things then got extremely weird at the Fifth Circuit. Two months later, it issued a notice stating it was pulling its earlier opinion because a couple of judges had polled the rest of the judges and found enough of them willing to re-hear the case. Most likely, one of the judges was Chief Judge Priscilla Richman, who not only forced the Fifth Circuit to re-issue its original opinion with her lengthy dissent attached, but has spent most of her judicial career converting her biases into binding precedent.

In her opinions, she has questioned the legal reasoning which legalized abortion, advocated streamlining death penalty cases, invalidated a federal ban on possession of machine guns and advocated toughening bankruptcy laws. In 2006, Chief Judge Jones found that a death row inmate who had filed a pro se motion to drop his appeal while his attorney was abroad could not later reinstate his appeal.^[7] In June 2017, Jones dissented when the court found that a university did not violate the Due Process Clause or Title IX when it expelled a student for committing a campus sexual assault as well as his girlfriend, who had recorded the assault and shared the video on social media.^[8][9] In May 2018, Jones wrote for the court when it found that Texas Senate Bill 4, which prohibits local governments or public employees from criticizing federal immigration enforcement or from praising sanctuary cities, did not violate the First Amendment.^[10][11]

Still, it seemed the original case was open-and-shut. The Laredo PD punished a journalist for annoying it by asking questions and publishing answers. But this is the Fifth Circuit — one apparently reinvigorated by the unexpected opportunity to wrong some rights. And it did exactly that: it handed down a third decision that said just enough probable cause existed in the abused law (the one the trial court said was blatantly unconstitutional) to justify the retaliatory arrest of a journalist police officers didn’t like.

Well, finally there’s some good news to report on this ongoing saga: the Supreme Court is sending this one back to the Fifth Circuit with some added instructions:

VILLARREAL, PRISCILLA V. ALANIZ, ISIDRO R., ET AL.

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. _ (2024) (per curiam).

The en banc decision no longer exists, which will certainly irritate the judges who pushed for this reconsideration even though neither of the parties were asking for a rehearing. Good. And the case cited (Gonzalez v. Trevino) has been a factor in other recent cases we’ve covered here.

Basically, the Trevino factor must be applied in cases where arrests appear to be retaliatory, rather than actually justified by criminal acts. When laws are either routinely handled with citations rather than arrests or simply are never enforced at all, that’s a factor that needs to be considered when making qualified immunity determinations.

In this case, Trevino is clearly on Villarreal’s side. That much was made clear by local prosecutors shortly after the PD arrested the journalist.

The Webb County District Attorney’s Office has never prosecuted a misuse of information case involving a citizen, the office’s spokesperson said Friday.

That’s what the Fifth Circuit will have to factor into its next decision. And with this added, the only thing shoring up its middle-finger-to-the-First-Amendment decision — that the law could reasonably be applied to the alleged “violation” by Villarreal — no longer exists. Without this single factor standing between Villarreal and justice, it’s probably time for the city to pull its settlement checkbook back out of the desk drawer. There’s no coming back from this one.