Criminal Justice

Cops Arrested Her for Exercising Her First Amendment Rights. They Got Qualified Immunity—but the Appeals Court Wasn't Having It.

"This is not just an obvious constitutional infringement—it's hard to imagine a more textbook violation of the First Amendment."


Whether you can exercise your First Amendment rights freely depends, in some cases, on where you live and what judges happen to hear your plea, should you try to seek accountability for government reprisal against your civil liberties.

One such case is that of Priscilla Villarreal, a journalist in Laredo, Texas, who in 2017 was arrested after publishing two stories that ruffled feathers in the community: one surrounding a U.S. Border Patrol agent who committed suicide, the other which confirmed the identity of a family who had died in a fatal car crash.

Villarreal was no stranger to breaking stories with sensitive details on her Facebook page, which currently boasts over 190,000 followers. Nor was she cozy with local law enforcement, having cultivated a reputation as a citizen journalist who focuses on police misconduct and the justice system in videos she posts online infused with colorful commentary. She once live-streamed a video of an officer choking someone during a traffic stop, for example, and she drew the ire of a district attorney after publicly rebuking him for dropping an arrest warrant for someone accused of animal abuse.

But Villarreal found herself in a jail cell after breaking those two relatively benign stories concerning deaths in the community, charged with two third-degree felony counts of "misuse of official information" under Texas Penal Code § 39.06(c). That she asked for and obtained the information in typical journalistic fashion—from the Laredo Police Department (LPD) itself—didn't matter to the cops, who zeroed in on Villarreal as the first person they would ever seek to prosecute under that Texas statute.

The charges were eventually dismissed as baseless and the law ruled unconstitutionally vague. But those officers were given qualified immunity for violating her First Amendment, Fourth Amendment, and 14th Amendment rights when they arrested and detained her, thus preventing her from holding them accountable in civil court. The legal doctrine of qualified immunity protects public officials from facing civil suits if the precise way they went about violating your rights was not "clearly established" by the courts at the time.

Yet in a testament to the subjectivity of the decisions surrounding what should be objective liberties, the U.S. Court of Appeals for the 5th Circuit Monday rejected the lower court's reasoning, removing qualified immunity from the cops on the bulk of Villarreal's claims and permitting her to state her case before a jury.

"This is not just an obvious constitutional infringement—it's hard to imagine a more textbook violation of the First Amendment," wrote Judge James C. Ho. "If the freedom of speech secured by the First Amendment includes the right to curse at a public official, then it surely includes the right to politely ask that official a few questions as well." Villarreal asked those questions of LPD Officer Barbara Goodman, who of her own free will provided the journalist with the information she requested.

The 5th Circuit likewise sided with Villarreal on her wrongful arrest claim, as well as her allegation that the cops violated the Equal Protection Clause to selectively enforce the law against her.

Much about the decision is noteworthy. Ho, for one, is by no means known for his opposition to qualified immunity; the judge previously said that police officers must retain the protections in order "to stop mass shootings." So it's significant that Ho emphasized that the 5th Circuit need not find a nearly indistinguishable precedent in order to show that the constitutional right at issue was "clearly established"—which is often the defining element of a qualified immunity case, and the reason why the doctrine has greenlit so much egregious government misconduct, like stealing, assault, and property damage.

To support his position, Ho cited the Supreme Court's 2020 decision in Taylor v. Riojas, which dealt with a group of prison guards who originally received qualified immunity after forcing a naked inmate into two deplorable cells swarming with human feces and raw sewage. The Supreme Court overturned that grant of qualified immunity and rejected the notion that the victim could not sue simply because he couldn't pinpoint a ruling that matched his experience almost identically.

That's not necessary here either, said Ho: The constitutional violation is just that absurdly apparent.

"Crucially, the decision also says that officers can't hide behind obviously unconstitutional statutes," says Jaba Tsitsuashvili, an attorney at the Institute for Justice, a public interest law firm that filed an amicus brief in support of Villarreal. "In other words…'we were just enforcing the law' is not a categorical defense against a civil lawsuit for violating" a constitutional right.

Perhaps ironically, the 5th Circuit's decision Monday coincided with the Supreme Court declining to hear Frasier v. Evans, a case in which a group of Denver police officers received qualified immunity after conducting a warrantless search of a man's tablet in an attempt to delete a video he took of the officers beating a suspect during an arrest for an alleged drug deal.

Put more bluntly, the way you exercise your First Amendment rights may or may not be protected based solely on where you live and which federal circuit court you are subject to. The 1st, 3rd, 5th, 7th, 9th, and 11th Circuits have all confirmed what might be obvious to most: that the government cannot exact revenge on you for filming police on duty, a lever used to hold them to account. In some places, however, they can indeed retaliate and evade accountability for that, too—just as Villarreal almost missed her opportunity to do so, had the 5th Circuit not overturned the lower court's decision.

"It creates this territorially arbitrary vindication of rights, where if you're in one state you may be able to vindicate a constitutional right," says Tsitsuashvili, "but if you happen to be in a neighboring state that sits in a different judicial circuit, you won't have any recourse for essentially the exact same behavior."

NEXT: Are Kids Stealing Because TikTok Made It Seem Cool, or Is the 'Devious Licks' Freakout Yet Another Adult-Led Moral Panic?

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  1. Thankfully SCOTUS won’t punt on QI cases…

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  2. >>said Ho: The constitutional violation is just that absurdly apparent.

    Ho has balls.

  3. The constitutional violation is just that absurdly apparent.

    There are plenty of examples of absurdly apparent constitutional violations, and ones without a certain air of legislative respectability. That seems arbitrary. The fact that this statute is obviously unconstitutional is also in dispute.

    As this article itself demonstrates, constitutionality as far as criminal justice or civil liability are concerned is very much in the eye of the beholder. Constitutionality is so "absurdly" subjective that it creates a huge uneven mess even without tossing qualified immunity into the mix. Perhaps judging the constitutionality of legislation before it's put into practice should be part of any solution.

    1. Maybe we should have all of our elected and appointed officials take some sort of oath to protect and defend the constitution.....

      1. Maybe they should be required to take a test so we can understand what they mean with that oath.

        1. At the least they should be made to repeat the text in their swearing in ceremony. Doubt many have even bothered to read it.

      2. With real penalties for violating said oath? That might be a key ingredient.

    2. Are you claiming its seriously in dispute that asking government officials questions is protected by the 1st amendment? Because the law seems to necessarily disprove of that, if receiving said information is illegal.

      (If the government official shouldn't give you that information, and they do, that's on them, not the person asking, otherwise the 1st amendment is meaningless).

      1. See that's what Sleepy Joe is doing with the press corp, just making sure that they don't violate the Constitution!

        1. While on the other hand he's trying to "subsidize" the press, while trying to pretend that he's not trying to make the press a bought-and-paid-for arm of the state.

      2. There's no way I'm suggesting that those rights don't exist. They very much do. But that the law was passed and defended before the court means its constitutionality was in dispute. Lawmakers pass laws that violated our rights all the time (that fact being the reason for the BoR, of course) and judges uphold those violations. The dispute isn't whether or not they exist, it's whether or not they'll be consistently honored and we know that they won't, obvious or not.

    3. Being taken from your own home in handcuffs and arrested and held in a jail cell without any criminal charges (or bogus ones, even worse) for airing video or stating an opinion is blatantly unconstitutional.

    4. I've often wondered why laws have always enjoyed AN AUTOMATIC ASSUMPTION OF CONSTITUTIONALITY when they're signed into effect.

      I think every last law passed should have to undergo the strictest possible scrutiny before the governor or president can even sign off on it.

      Why should any citizen have to spend their life's savings plus some in order to fight an unconstitutional law and why should they lave to live decades with being done wrong before they can finally have justice?

      It only takes a split instant to be totally screwed by an unjust or unconstitutional law, but it takes decades to finally get justice. And sometimes justice never comes. You just have to live with getting royally screwed.

  4. Fuck Joe Biden.

    1. Yup. And fuck you too. Wow, this 3rd-grade insulting is fun.

  5. Apparently one can only get even in the odd circuit courts.

  6. Good thing we are all focused on making sure everyone uses new pronouns and preventing disagreeable tweets. Otherwise, we the people might notice things like this ...

  7. La dee daaaa....James C. Ho, ANOTHER Republican appointed judge. I mean, when it comes to qualified immunity or any of the other police overreach issues, I can tell you what the court's decision will be simply by looking at who appointed the judge presiding. It's one of the few areas where the Democrat team of the fake duopoly is actually a lot better than the alternative.

  8. While it's a welcome decision I think is correct, it's also likely a unicorn. Ho (and many other judges) will be waving away even more egregious conduct with qualified immunity until either Court or Congress gets rid of it.

    1. This doctrine was created out of thin air by SCOTUS. There is no law to repeal. There's only the need to legislate it out of existence.

  9. Funny how the only boundless right activists like Binion can find is their rights. Modern journolists have no ethics beyond expressions of power so I wouldn't expect him to understand that not all information you can get your hands on should be widely distributed.

    What purpose was served by naming these people, curious absence that bit of "journalism" from the story. Was she doxing a grieving family for ideological purposes, or calling officials to account more directly than other news orgs?

    Should that law be on the books, probably not, but arbitrary enforcement of laws can't be tolerated either. But baseline enforcement of active law is not itself an infringement. Complain all you want if the law is enforced now that it has been voided for vagueness but at the time that wasn't the officers decision to make.

  10. long live the common people

  11. "Crucially, the decision also says that officers can't hide behind obviously unconstitutional statutes...In other words, 'we were just enforcing the law' is not a categorical defense against a civil lawsuit for violating a constitutional right."

    So now, in the 5th judicial circuit, if local law enforcement officers are compelled to enforce the prohibition of cannabis plants because the federal law that inaccurately defines marijuana has been unconstitutionally malformed for 84 years with the same word-for-word, unnecessary and improper features of racism, duplicity, and circumlocution that enabled federal law enforcement officials to self-servingly misconstrue that law to prohibit cannabis plants from citizens, then the officers can no longer rely on qualified immunity to shield them from lawsuits by those citizens whose cannabis plants they confiscated?

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