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By Tim Cushing
The Fifth Circuit Court of Appeals has finally found some law enforcement officers not worthy of qualified immunity. The First and Fourth Amendment violations were too egregious to be ignored, even with a lack of precedential decisions on point to work with.
In January 2018, Laredo (Texas) police officers arrested a local journalist -- Priscilla Villareal, a.k.a. Lagordiloca -- for asking a couple of questions of (and receiving a couple of answers from) another Laredo PD officer. Villareal doesn't work for any local press outlet. Instead, she broadcasts directly to 120,000 Facebook followers, often adding commentary to ongoing events.
The local cops don't like her. So, they decided to have her arrested under Texas Penal Code §39.06(c), which says:
A person commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, 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.
Here's what happened, as recounted by the Fifth Circuit opinion [PDF]:
In April 2017, Villarreal published a story about a man who committed suicide. The story identified the man by name and revealed that he was an agent with the U.S. Border Patrol. Villarreal first uncovered this information from talking to a janitor who worked near the scene of the suicide. She then contacted LPD Officer Barbara Goodman, who confirmed the man's identity.
The following month, Villarreal published the last name of a family involved in a fatal car accident in Laredo. She first learned the family's identity from a relative of the family who saw a video that Villarreal had posted. Again, Villarreal contacted Officer Goodman, and again, the officer verified this information.
Rather than deal with the loose-lipped employee, the Laredo PD secured two arrest warrants six months after the second publication, alleging two separate violations of this law. Supposedly Villareal had violated this law by "gaining more followers" after publication of this info. Yes, the Laredo PD alleged she did it for the clicks. Villareal found out about these warrants and turned herself in. She was detained at the county jail following this additional indignity:
During the booking process, Villarreal saw LPD officers taking pictures of her in handcuffs with their cell phones. The officers mocked and laughed at her.
The charges were tossed two months later.
Villarreal filed a petition for a writ of habeas corpus in the Webb County district court. In March 2018, a judge granted her petition and held that § 39.06(c) was unconstitutionally vague. The government did not appeal.
Villareal sued the officers who arrested her. The lower court said it looked like some rights may have been violated but not in a way any officer had tried before. Qualified immunity was awarded even though the law used to arrest her had been rejected as unconstitutional by a judge. The lower court believed the cops had no way of knowing they shouldn't use a bad law to punish a journalist they didn't like.
The Appeals Court sees it differently. This was such a clear violation of rights it doesn't even matter that there's no on-point precedent.