By Michael VerMeulen
In a legal battle between qualified immunity and freedom of the press, which one will come out on top? In the eyes of the Fifth Circuit, the First Amendment bows down to qualified immunity for police officers. [1]
This fight has come to the legal forefront in Villarreal v. City of Laredo.[2] The case concerns independent Facebook-based investigator Priscilla Villarreal who is infamous amongst police officers in the City of Laredo, Texas for filming crime scenes and covering police misconduct.[3] In an apparent act of retaliation, the Laredo Police Department arrested and detained Villarreal for violating Texas Penal Code § 39.06(c), under which a person may not inquire about non-public information that a public official has access to by means of their employment if the person has an intent to “benefit” from the information.[4] The Department based its arrest on Villarreal’s procurement of a deceased Border Patrol officer’s name prior to the Department’s public disclosure of this information. [5] Six months after Villarreal obtained the officer’s name, the Department charged her with the Penal Code violation.[6]
After Villarreal’s release on bail, prosecutors dropped the charges following her successful habeas corpus petition.[7] Subsequently, Villarreal sued the City of Laredo, its police department, and numerous officers in federal district court for unlawful interference with her constitutional rights, most notably her “First Amendment rights as a citizen journalist.”[8]
The district court granted summary judgment to the defendants, and Villarreal appealed its decision to the Fifth Circuit. [9] There, a three-judge panel ruled 2-1 in Villarreal’s favor and held that detaining a journalist for simply asking a question was an “obvious violation of the Constitution.”[10] Citing the Supreme Court’s landmark 1971 decision in New York Times Co. v. United States, Judge Ho’s majority opinion rightfully pondered: “If the government cannot punish someone for publishing the Pentagon Papers, how can it punish someone for simply asking for them?”[11] Nevertheless, the Fifth Circuit decided to convene and rehear the case en banc. [12] And on January 23, 2024, the Court issued a 9-7 decision in favor of the defendants,[13] and four separate judges issued dissenting opinions. [14]
The Fifth Circuit reasoned that the facts of Villarreal’s case did not meet the standard for bypassing police officers’ qualified immunity for work-related behavior, as Villarreal’s asserted constitutional rights had not been “clearly established” at the time of the alleged violation.[15] There is a logic to the majority’s reasoning. Quoting the Supreme Court’s 2018 decision in Kisela v. Hughes, the court stated that “police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.”[16] To that end, the Texas Penal Code § 39.06(c) had not yet been ruled unconstitutional, and no case has previously 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.”[17]
However, the Supreme Court’s reasoning in Kisela explicitly referred to officer immunity concerning potential Fourth Amendment violations–an area of the law “where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.”[18]
In contrast to situations involving excessive force, police officers interacting with reporters do not have to apply complex legal doctrines to specific, split-second situations. [19] Rather, officers know that it is a “fundamental personal right” shared by every American.[20] Further, the Laredo officers in this case could not have believed in good faith that have Villarreal’s questions were “sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.[21] Indeed, no Texas jury had ever returned a guilty verdict for a 39.06(c), and the Laredo Police Department had never even charged a person with an offense under the statute despite having likely been asked questions about confidential matters countless times by journalists.[22]
Under the new standard set by the Fifth Circuit, police officers may arrest any journalist who asks a question about information that is not publicly available. [23] While journalists will almost never by found guilty of investigative crimes, the police can be harass them and take their liberties taken away without having to worry about any potential civil liability. [24]
In his dissenting opinion in Villarreal, Judge Willett stated in frank terms that “encyclopedic jurisprudential knowledge is imputed to Villarreal, but the government agents targeting her are free to plead (or feign) ignorance of bedrock constitutional guarantees.”[25] In his own dissent, Judge Graves criticized the Court’s opinion for the legal implications it may have on journalism as “the 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.”[26] Graves also noted his concern over the potential chilling effects stemming from the court’s decision, as “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.”[27]
Villarreal has already expressed her desire to appeal the case to the Supreme Court[28], which will hopefully grant certiorari to clear up the extent to which qualified immunity overrules First Amendment violations. In the meantime, though, journalists will have to work with uncertainty as to whether they are entitled to their constitutional rights. With the possibility of a legal remedy removed, Texas journalists can only hope that they do not ask the wrong question to the wrong police officer.
[1] See Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024
[2] Id.
[3]Roxanna Asgarian, Appeals court to decide if First Amendment should have protected Laredo’s “big crazy lady” from arrest, The Texas Tribune (Jan. 6, 2023, 5:00 AM), https://www.texastribune.org/2023/01/06/first-amendment-laredo-journalist/.
[4] Tex. Penal Code Ann. § 39.06 (West); see also Id. § 1.07(a)(7) (“’Benefit’ means anything reasonably regarded as economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested.”)
[5] Asgarian, supra note 3.
[6] Id.
[7] Villarreal, supra note 1.
[8] Villarreal v. City of Laredo, Texas, No. 5:19-CV-48, 2020 WL 13517246 (S.D. Tex. May 8, 2020), aff’d in part, rev’d in part and remanded, 17 F.4th 532 (5th Cir. 2021), withdrawn and superseded by 44 F.4th 363 (5th Cir. 2022), reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024), and aff’d in part, rev’d in part and remanded, 44 F.4th 363 (5th Cir. 2022), and reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024)).
[9] Villarreal v. City of Laredo, Texas, 44 F.4th 363 (5th Cir. 2022), reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022), and superseded on reh’g en banc, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024).
[10] Id.
[11] 44 F.4th 363, 371 (citing New York Times Co. v. U.S., 403 U.S. 713 (1971)).
[12] Villarreal v. City of Laredo, Texas, 52 F.4th 265 (5th Cir. 2022).
[13] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024).
[14] Grayson Clary, In Texas, a disastrous ruling for jounralists’ rights, Reporters Committee (Jan. 29, 2024), https://www.rcfp.org/fifth-circuit-qualified-immunity/.
[15] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (citing Rivas-Villegas v. Cortesluna, 595 U.S. 1 (2021))
[16] Kisela v. Hughes, 584 U.S. 100, 104 (2018) (per curium).
[17] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024)
[18] Id. (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) .
[19] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (Willett, J., dissenting).
[20] Branzburg v. Hayes, 408 U.S. 665 (1972).
[21] Brinegar v. United States, 338 U.S. 160, 175 (1949).
[22] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (Higginson, J., dissenting).
[23] Billy Binion, This Court Case Could Make It a Crime to Be a Journalist in Texas, Reason (Nov. 4, 2022, 10:03 AM), https://reason.com/2022/11/04/this-court-case-could-make-it-a-crime-to-be-a-journalist-in-texas/.
[24] Villarreal v. City of Laredo, Texas, No. 20-40359, 2024 WL 244359 (5th Cir. Jan. 23, 2024) (Willett, J., dissenting)
[25] Id. (Willett, J., dissenting).
[26] Id. (Graves, J., dissenting).
[27] Id.
[28] Lagordiloca News LaredoTx, Facebook (Jan. 27, 2024, 4:14PM),
