Take the Fifth

Designated for publication

• Villarreal v. City of Laredo, 20-40359, appeal from S.D. Tex.
  • Jones, J. (joined by Richman, Smith, Stewart, Southwick, Haynes, Duncan, Engelhardt, Wilson, JJ.); Graves, J., dissenting (joined by Elrod, Higginson, Willett, Ho, Douglas, JJ.); Higginson, J., dissenting (joined by Elrod, Graves, Willett, Ho, Oldham, Douglas, JJ.); Willett, J., dissenting (joined by Elrod, Graves, Higginson, Ho, Douglas, JJ.); Ho, J., dissenting (joined by Elrod, Graves, Higginson, Willett, Douglas, JJ.); First Amendment, qualified immunity, Fourth Amendment
  • Affirming district court’s 12(b)(6) dismissal on qualified immunity grounds of citizen-journalist’s First and Fourth Amendment claims arising from arrest for soliciting non-public information for use in her Facebook posts about local police and crime activities; reversing course from two prior panel opinions.
  • Before getting to the issues, some observations on the interesting makeup of the 9-7 decision. Recent years have shown that the typical “conservative-liberal” division of the courts breaks down when applied to the Fifth Circuit’s opinions on two issues: qualified immunity and the First Amendment, and both issues are present here. Interestingly, Judge Jones’s opinion is only the majority opinion here because Judges Stewart and Haynes (respectively, appointed by Presidents Clinton and G.W. Bush) joined in that majority, voting to uphold the qualified immunity defense and diminish the importance of the First Amendment implications. Those are not typical for either of those two judges; it would have been revealing to have seen concurring opinions to flesh out the “why” of that, particularly in light of the four strong dissentin opinions put out by the seven dissenters. Joining the other three Democratic appointees in dissent (Judges Graves, Higginson, and Douglas–Judge Ramirez did not participate in the decision) were G.W. Bush-appointee Judge Elrod and Trump-appointees Judges Willett, Ho, and Oldham. Notably, Judge Oldham only joined in Judge Higginson’s dissent, and not in the dissents of Judges Graves, Willett, or Ho, suggesting that if either Judge Haynes or Stewart had switched sides, then Judge Higginson’s opinion would have been the opinion for the Court (if just one had switched sides, the resulting 8-8 decision would have left the panel opinion vacating the 12(b)(6) dismissal in place). On to the opinions …
  • The plaintiff operates a Facebook page with more than 100,000 followers, reporting (often unfavorably) on local police and district attorney activity, as well as breaking crime and public safety events; she relies at least for some of her reporting on corroboration obtained through back-channels, getting confirmation not from official police public-information officers but from other police personnel not authorized to provide information to the press or the public. In conjunction with this reporting, she posted the identity of a police detective who apparently committed suicide by jumping off a highway overpass; and the identities of people involved in a fatal highway accident, reporting in real-time on the events; both with the corroboration of her back-channel contact at the police department. She was later arrested based on these two incidents for violation of a Texas statute making it illegal to solicit non-public information “with intent to obtain a benefit.” While she was detained, police officers surrounded her, jeered at her, and took cell phone photographs to post and ridicule her. She then brought a § 1983 suit alleging violations of her First and Fourth Amendment rights (a facial First Amendment violation, a First Amendment retaliation violation, and a false arrest claim). The district court granted the defendants’ qualified immunity 12(b)(6) motions on holding there was insufficient allegation of the violation of a clearly established constitutional protection. After a February 2021 oral argument, a Fifth Circuit panel vacated the dismissal, then subsequently modified its opinion though still vacating the dismissal.
  • Judge Jones, writing for the majority, noted, “Villarreal and others portray her as a martyr for the sake of journalism. That is inappropriate. She could have followed Texas law, or challenged that law in court, before reporting nonpublic information from the backchannel source. By skirting Texas law, Villarreal revealed information that could have severely emotionally harmed the families of decedents and interfered with ongoing investigations. Mainstream, legitimate media outlets routinely withhold the identity of accident victims or those who committed suicide until public officials or family members release that information publicly. Villarreal sought to capitalize on others’ tragedies to propel her reputation and career.” The “benefit” that Judge Jones found that the plaintiff received was the promotion of her Facebook page, the gaining of followers, the receipt of occasional free meals in recognition of her work, and the occasional receipt of fees for promoting other services on her Facebook page.
  • Judge Jones held, “This is not a case about a ‘citizen journalist just asking questions.’ That clever but misleading phrase cannot relieve this court of our obligation to evaluate Villarreal’s conduct against the standards of Texas law. Villarreal was arrested on the defendants’ reasonable belief, confirmed by a neutral magistrate, that probable cause existed based on her conduct in violation of a Texas criminal statute that had not been declared unconstitutional. We need not speculate whether section 39.06(c) allegedly violates the First Amendment as applied to citizen journalists who solicit and receive nonpublic information through unofficial channels. No controlling precedent gave the defendants fair notice that their conduct, or this statute, violates the Constitution facially or as applied to Villarreal. Each defendant is entitled to qualified immunity from suit.”
  • Judge Jones held that the arresting officers reasonably believed they had probable cause to make the arrest under the Texas statute, analyzing the elements of the statute to find that the plaintiff’s activities could objectively reasonably be seen as meeting them. She then noted that “no final decision of a state court had held the law unconstitutional at the time of the arrest.” She observed, “Villarreal 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. Under the normal standards of qualified immunity, no ‘clearly established law’ placed the officers on notice of Villarreal’s First Amendment right not to be arrested.”
  • Addressing the obvious-unconstitutionality alternative to the “clearly established” element of qualified immunity, Judge Jones held that a presumption of constitutionality should apply to the Texas statute. She then held that the approval of the officers’ affidavit for an arrest warrant by a magistrate judge protected them through the independent intermediary rule. She placed the burden on the plaintiff to understand her rights under the Texas law: “A right to publish information that is no longer within the government’s control is different from what Villarreal did: she solicited and received nonpublic information from a public official for personal gain. Moreover, Villarreal correctly asserts that journalists have an undoubted right to gather news ‘from any source by means within the law,’ but ‘[i]t has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.'” (Quoting Branzburg v. Hayes, 408 U.S. 665, 681–82, 684, 92 S. Ct. 2646, 2657–58 (1972)). She also held that the First Amendment does not prevent state laws that protect nonpublic information.
  • As to First Amendment retaliation, Judge Jones held that the officers had probable cause to make the arrest, and that the arrest couldn’t fit into the “narrow exception” from protection by the probable cause finding for situations where the probable cause is used to effect an arrest where similarly situated individuals have not been prosecuted under the same law. Judge Jones held that the plaintiff failed to provide evidence of similarly situated individuals, such that her allegations on this element were “conclusory.”
  • Judge Graves’s dissent focused on the importance of news-gathering to the First Amendment. “There is simply no way such freedom [of the press] can meaningfully exist unless journalists are allowed to seek non-public information from the government. Today’s majority opinion overlooks that protection all too cavalierly. But in fact, the right to ‘newsgathering’ has long been protected in American jurisprudence. … The majority at times conflates that right with the government’s prerogative to guard against the dissemination of private facts. But those two principles are not mutually exclusive—the government’s power to protect certain information has little to do with a person’s right to ask for it. This case does not concern the rights of the officer who furnished Villarreal with information, or what means a local government may use to prevent employees from exposing sensitive information. It concerns only the rights of a third party who did nothing more than ask.” (Internal citation and quotation marks omitted). Judge Graves emphasized the “well-established right of journalists to engage in routine newsgathering. That right, arising out of the plain language of the Constitution, acknowledges that journalists play a special role in our society as agents of the people. They are individuals who take on a civic and professional responsibility to keep the public informed, and thereby provide a crucial check on the power of the government. That is not to say that press possess any right of access to information that is unavailable to the general public, see Branzburg, 408 U.S. at 684—only that, more often than not, it is the press to which we delegate the responsibility of asking for that information.” Considering the practical implications of the majority’s decision, Judge Graves wrote, “[T]he majority would limit journalists who work the government beat to publicly disclosed documents and official press conferences, meaning they will only be able to report information the government chooses to share. That outcome is unfortunate, unfair, and unconstitutional. It is unfortunate because a democracy functions properly only when the citizenry is informed. It is unfair because it restricts the journalistic freedom to gather information. And it is unconstitutional, for ‘[a] free press cannot be made to rely solely upon the sufferance of government to supply it with information.’ Indeed, it is not even clear whether the majority’s opinion would allow journalists to request information in good faith from official channels without fear of reprisal.”
  • Judge Higginson’s dissent emphasized the fragility of the majority’s analysis on the selective enforcement claim and on the independent intermediary rule. “Priscilla Villarreal alleges that law enforcement officials in Laredo, Texas did precisely this: They arrested her because her newsgathering and reporting activities annoyed them. To silence her as a critic and gadfly, she claims, they arrested her. Villarreal is entitled to have the district court resolve her plausible allegation that the government officers who arrested her lacked probable cause, and misled the magistrate whose warrants they now claim should insulate them from liability for their unconstitutional actions.” He would hold that the plaintiff’s allegations sufficiently addressed these issues to allow them to survive 12(b)(6) dismissal and proceed to summary judgment and perhaps later stages of litigation. On the independent intermediary rule, Judge Higginson observed, “Of course, the manipulation of a magistrate who issues an arrest warrant, accomplished by malicious law enforcement, remains an untested allegation. But at the dismissal stage—before we, as judicial government officers, confer immunity as a matter of law on executive government officers—a comprehensive complaint that law enforcement misled a court must be taken not just as true, but in the light most favorable to the citizen complainant. Otherwise, the ‘independent intermediary doctrine’ would over-protect police misconduct, and even reward it. Indeed, the heart of the independent intermediary doctrine … depends on the assumption in its title. … Otherwise, a malicious officer seeking to obtain a facially valid arrest warrant would be absolved of liability simply because he succeeded.” (Internal quotation marks and citation omitted). Judge Higginson also pointed out the absurdity of the application of the similarly-situated test to the selective enforcement claim: “The district court’s holding that ‘similarly-situated persons’ was not narrowly construed enough for Villarreal to state a claim sets up an unreasonable and needless hoop for a plaintiff to jump through. Her allegation is that neither the LPD nor the WCDA—nor indeed, any police officer or prosecutor in Texas—has ever arrested or charged anyone, including newsgatherers, for this offense. Such a contention surely encompasses those who ‘lawfully’ obtained information from a press official as well as those who did not, unless we presuppose that no journalist has ever before relied on a back-channel government source to obtain information. Black’s Law Dictionary defines ‘conclusory’ as ‘expressing a factual inference without stating the underlying facts on which the inference is based.’ Conclusory, BLACK’S LAW DICTIONARY (11th ed. 2019). That Villarreal’s factual allegation was that something had never happened—resulting in a null set of individuals never arrested or charged and cases never prosecuted—does not transform her factual allegation into an inference.”
  • Judge Willett’s dissent raised more broad-scale objections to the development of qualified immunity jurisprudence. “[O]ne of the justifications so frequently invoked in defense of qualified immunity—that law enforcement officers need ‘breathing room’ to make ‘split-second judgments’—is altogether absent in this case. This was no fast-moving, high-pressure, life-and-death situation. Those who arrested, handcuffed, jailed, mocked, and prosecuted Priscilla Villarreal, far from having to make a snap decision or heat-of-the-moment gut call, spent several months plotting Villarreal’s takedown, dusting off and weaponizing a dormant Texas statute never successfully wielded in the statute’s near-quarter-century of existence. This was not the hot pursuit of a presumed criminal; it was the premeditated pursuit of a confirmed critic.” Judge Willett criticized the evolution of the “clearly established” prong of the qualified immunity analysis: “[E]ncyclopedic jurisprudential knowledge is imputed to Villarreal, but the government agents targeting her are free to plead (or feign) ignorance of bedrock constitutional guarantees. In the upside-down world of qualified immunity, everyday citizens are demanded to know the law’s every jot and tittle, but those charged with enforcing the law are only expected to know the ‘clearly established’ ones. Turns out, ignorance of the law is an excuse—for government officials. Such blithe ‘rules for thee but not for me’ nonchalance is less qualified immunity than unqualified impunity. The irony would be sweet if Villarreal’s resulting jailtime were not so bitter, and it lays bare the ‘fair warning’ fiction that has become the touchstone of what counts as ‘clearly established law.'” He then critiqued the qualified immunity doctrine more broadly: “If nothing else, today’s decision underscores a striking statutory double standard: Judges read out text that is plainly there, and read in text that is plainly not—both for the benefit of rights-violating officials. Whatever the operative language of § 1983 says, or does not say, current judge-invented immunity doctrine seems hardwired—relentlessly so—to resolve these questions in one direction and one direction only. Counter-textual immunity is a one-way ratchet, and regrettably, today’s decision inflicts yet another wrong turn.”
  • Judge Ho turned back to underscoring the sanctity of the First Amendment rights at issue. “If the First Amendment means anything, surely it means that citizens have the right to question or criticize public officials without fear of imprisonment. The Constitution doesn’t mean much if you can only ask questions approved by the state. Freedom of speech is worthless if you can only express opinions favored by the authorities. The government may not answer or agree—but the citizen gets to ask and to speak.” He was particularly irked by the interplay of the qualified immunity analysis as to probable cause resting on a First Amendment-violative statute as a shield to constitutional claims: “Only the majority flirts with the extreme notion that public officials are categorically immune from § 1983 liability, no matter how obvious the depredation, so long as they can recite some statute to justify it. See ante, at 21–22 (rejecting ‘the idea of ‘obvious unconstitutionality’’ as a basis for § 1983 liability). It’s a recipe for public officials to combine forces with state or local legislators to do—whatever they want to do. It’s a level of blind deference and trust in government power our Founders would not recognize.” He then noted the range of amici arrayed on the side of the plaintiff, and observed, “But the most important point is this: If any principle of constitutional law ought to unite all of us as Americans, it’s that the government has no business imprisoning citizens for the views they hold or the questions they ask. … This united front gives me hope that, even in these divided times, Americans can still stand up and defend the constitutional rights of others—including even those they passionately disagree with. We all should have joined them in this cause.” Judge Ho also specifically noted that the Texas statute’s element that an offending person have gained a “benefit” from soliciting the nonpublic information did not insulate the statute from the First Amendment: “The Constitution is premised on the right to ask, not the need to ask. The First Amendment doesn’t distinguish between altruistic and self-interested questions. There is no pro bono requirement to the freedom of speech.” Judge Ho concluded, “According to an old Russian joke, a kid comes home from school and says: ‘Daddy, we had a civics lesson today, and the teacher told us about the Constitution. He told us that we have a Constitution, too—just like in America. And he told us that our Constitution guarantees freedom of speech, too—just like in America.’ The dad responds: ‘Well, sure. But the difference is that the American Constitution also guarantees freedom after the speech.’ I agree. Our Constitution guarantees Villarreal’s freedom after her speech. We should have, too.”

• Barnes v. Felix, 22-20519, appeal from S.D. Tex.
  • Higginbotham, J. (Higginbotham, Smith, Elrod), Higginbotham, J., concurring; excessive force, qualified immunity
  • Affirming summary judgment finding no constitutional violation under the moment of threat doctrine in plaintiffs’ claims arising from fatal shooting during a traffic stop.
  • The Court held, “Bound by this Circuit’s precedent, we affirm the district court’s order holding that there is no genuine dispute of material fact as to constitutional injury. As the district court explained, we may only ask whether Officer Felix was in danger at the moment of the threat that caused him to use deadly force against Barnes. In this circuit, it is well-established that the excessive-force inquiry is confined to whether the officers or other persons were in danger at the moment of the threat that resulted in the officers use of deadly force.” (Internal quotation marks and citations omitted). The Court affirmed the district court’s finding that the “moment of threat” was the two seconds before the officer shot into the vehicle, which had started to move away and which he was hanging onto, not any other point prior to that threat moment.
  • Judge Higginbotham concurred with his own majority opinion, to critique the Circuit’s moment-of-threat precedent. “A routine traffic stop has again ended in the death of an unarmed black man, and again we cloak a police officer with qualified immunity, shielding his liability. … To these eyes, blinding an officer’s role in bringing about the ‘threat’ precipitating the use of deadly force lessens the Fourth Amendment’s protection of the American public, devalues human life, and frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment.” (Internal quotation marks and citation omitted).

Unpublished

• U.S. v. Carrasco, 22-11229, appeal from N.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal
  • Affirming conviction of conspiracy to distribute and possess with intent to distribute methamphetamine, possession with intent to distribute methamphetamine, and possession of a firearm by a convicted felon.

• U.S. v. Taylor, 23-10345, appeal from N.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Ochoa-Leyva, 23-10763, appeal from N.D. Tex.
  • per curiam (Jones, Southwick, Ho), criminal, sentencing
  • Affirming sentence for illegal reentry.

• U.S. v. Bartolomei, 23-20196, appeal from S.D. Tex.
  • per curiam (Elrod, Oldham, Wilson), criminal
  • Affirming constitutionality of conviction of possession of a firearm by a felon.

• U.S. v. Cloud, 23-30342, appeal from W.D. La.
  • per curiam (Higginbotham, Stewart, Southwick), criminal, sentencing
  • Affirming 36-month sentence on revocation of supervised release.

• U.S. v. Herrera, 23-40130, appeal from S.D. Tex.
  • per curiam (Elrod, Oldham, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Children’s Health Defense v. Food & Drug Administration, 23-50167, appeal from W.D. Tex.
  • per curiam (Jones, Haynes, Douglas), COVID-19, standing
  • Affirming dismissal for lack of standing of plaintiffs’ claims challenging emergency use authorizations for COVID-19 vaccines for children.

• U.S. v. Lopez, 23-50404, appeal from W.D. Tex.
  • per curiam (Higginbotham, Stewart, Southwick), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• U.S. v. Rodriguez, 23-50432, appeal from W.D. Tex.
  • per curiam (Willett, Duncan, Ramirez), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• Castellano-Mercado v. Garland, 23-60356, petition for review of BIA order
  • per curiam (Elrod, Oldham, Wilson), immigration
  • Denying in part and dismissing in part Honduran citizen’s petition for review of BIA order denying his motion to remand and his second motion to reopen.