The Volokh Conspiracy
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The decision in Anderson v. Larpenter, handed down yesterday by U.S. District Judge Lance M. Africk in Louisiana, starts: "Some qualified immunity cases are hard. This case is not one of them." It then goes on to give the facts as alleged in the complaint, which seem pretty damning:
In the summer of 2016, the Terrebonne Parish sheriff's office executed a search warrant for Jennifer and Deputy Wayne Andersons' home, seizing their computers and other personal electronic devices in the process. The search warrant was issued as part of a criminal defamation investigation into online statements made by Jennifer Anderson. Those "criminally defamatory" statements concerned the use of public funds and nepotism by government officials in Terrebonne Parish. …
According to the second amended complaint …, Jennifer Anderson created a "website/blog" called Exposedat "to highlight and question the closely intertwined business and personal relationships between public officials in Terrebonne Parish[,] particularly as they relate to the awarding of then recent public insurance contracts involving Terrebonne Parish." One of the public officials that Jennifer Anderson discussed on Exposedat was Sheriff Larpenter. Another was Anthony Alford, who serves as President of the Terrebonne Parish Levee and Conservation District Board of Commissioners. (Commissioners are appointed by the Governor of Louisiana, with members of the Louisiana legislature playing a significant role in the appointment process. …)
Using Exposedat and a Facebook profile under the pseudonym "John Turner," Jennifer Anderson publicly questioned the Terrebonne Parish sheriff's office's dealings with President Alford's insurance company, where Sheriff Larpenter's wife worked. Jennifer Anderson supported her claims with court and other public documents that she made publicly available on Exposedat.
Within weeks of Jennifer Anderson's first posts, President Alford found out about the John Turner Facebook page—and the allegations about him posted on it. In response, President Alford called Sheriff Larpenter to complain. After receiving the call, Sheriff Larpenter contacted one of his subordinates, Detective Lieutenant Glynn Prestenbach, and "ordered" him to "investigate the incident." The resulting criminal complaint filed by Detective Prestenbach listed the offense committed against President Alford as criminal defamation in violation of La. R.S. § 14:47.
As the investigation unfolded, Detective Prestenbach was ultimately able to trace the origins of Exposedat and the John Turner Facebook profile to the Andersons' home. After learning about Detective Prestenbach's findings and discussing the matter with Terrebonne Parish District Attorney Joseph Waitz, Sheriff Larpenter directed Detective Prestenbach to request a search warrant for the home. Detective Prestenbach did as Sheriff Larpenter directed.
In his affidavit in support of the search warrant application, Detective Prestenbach swore that Exposedat and the John Turner Facebook profile "made the same claims" and that Exposedat included "copies of court rulings and other documents supporting the[ ] claims."Detective Prestenbach's affidavit also explained that those claims revolved around the relationship between President Alford's insurance company and the Terrebonne Parish sheriff's office, and President Alford and Sheriff Larpenter themselves—namely, that "Sheriff's [sic] Jerry Larpenter is continuing to give Anthony Alford the broker contract for the Sheriff's Office when his wife Priscilla gets paid over six figures to manage Mr. Alford's office." The affidavit made no mention of President's Alford's position on the Terrebonne Parish Levee and Conservation District Board of Commissioners. The judge who reviewed the application issued the search warrant.
Detective Prestenbach then executed it, seizing "all laptops, computers and cell phones" in the Andersons' home. That same day, Deputy Anderson was placed on indefinite administrative leave by his employer, the Houma police department.
The Andersons challenged the constitutionality of the search warrant. While the issuing judge upheld the warrant's legality, the Louisiana Court of Appeal quashed the warrant. The Court of Appeal observed that La. R.S. § 14:47—the offense for criminal defamation that served as the basis to investigate Jennifer Anderson's online statements—"has been declared unconstitutional by both the United States Supreme Court and the Louisiana Supreme Court as it applies to public expression and publication concerning public officials, public figures and private individuals engaged in public affairs." The Court of Appeal pointed out that President Alford was a "public official" given his role on the Terrebonne Parish Levee and Conservation District Board of Commissioners. Therefore, "the search warrant lack[ed] probable cause because the conduct complained of is not a criminally actionable offense."
The Andersons sued, for the obvious reason: Their home was searched for evidence of conduct that, under binding Louisiana court precedents, is not a crime. Here's an excerpt from the federal district court's analysis:
The Andersons argue that the facts and circumstances known to Sheriff Larpenter would not lead any prudent person to believe that the items sought by the search warrant for the Andersons' home "constitute[d] … evidence of a crime," because no prudent person would believe that La. R.S. § 14:47 could constitutionally criminalize Jennifer Anderson's speech about President Alford.
To address this argument, the Court must first answer an antecedent question: was Jennifer Anderson's speech entitled to constitutional protection? …
In Garrison v. Louisiana—a constitutional challenge to Louisiana's criminal defamation statute (La. R.S. §§ 14:47-49)—the U.S. Supreme Court held that the government is constitutionally limited in its power "to impose criminal sanctions for criticism of the official conduct of public officials." … [T]he First Amendment constitutionally bars the government from criminally punishing 1) true speech about the conduct of public officials, regardless of the intent motivating the speech, and 2) false statements about the conduct of public officials unless knowingly false or made with reckless disregard of their falsity (i.e., unless made with actual malice). Where the government brings criminal defamation charges against a speaker based on his speech about a public official, the government bears the burden of proving that the speaker acted with actual malice. [The Court in Garrison held that the statute was unconstitutional as to speech about public officials, because it lacked the required protections.]
Louisiana's highest court then reconsidered §§ 14:47-49 in State v. Snyder, 277 So.2d 660 (La. 1973) (on rehearing). Concluding that "[i]t is for the [state] Legislature to correct [§§ 14:47-49's] constitutional infirmity"—namely, "its overbroad application" as identified in Garrison—the Louisiana Supreme Court held §§ 14:47-49 "to be unconstitutional insofar as they attempt to punish public expression and publication concerning public officials, public figures, and private individuals engaged in public affairs." See also State v. Defley, 395 So.2d 759, 761 (La. 1981) (observing that § 14:47 "is unconstitutional insofar as it punishes public expression about public officials").
Since Snyder, the Louisiana legislature has not revisited §§ 14:47-49. The Louisiana Supreme Court's holding as to the reach of § 14:47 therefore remains the law of the land. …
Sheriff Larpenter … insist[s] … that President Alford is a private figure. In fact, Sheriff Larpenter scarcely mentions President Alford's position on the Terrebonne Levee and Conservation District. … (The Court notes that Sheriff Larpenter nowhere argues that he did not know about President Alford's public position; rather, Sheriff Larpenter simply refrains from acknowledging it at all.)
Sheriff Larpenter seems to draw a sharp and impermeable line between President Alford's role on the Terrebonne Levee and Conservation District and his role as a businessman. As the Court understands Sheriff Larpenter's argument, President Alford is a private figure with respect to his conduct as an insurer, and because Jennifer Anderson's statements addressed the relationship between the Terrebonne Parish sheriff's office and President Alford's insurance company, those statements concerned President Alford as a private figure—and Garrison is therefore inapplicable to this case.
The Louisiana Court of Appeal concluded that President Alford—as his title suggests—is a public official for First Amendment purposes. The Court easily concludes the same. … As a leader of a "political subdivision of the state of Louisiana" with the power to "levy taxes, incur debt, and otherwise raise revenue," President Alford exercises "substantial responsibility" and "control over the conduct of governmental affairs." As far as the First Amendment is concerned, President Alford is a public official.
Further, the Court rejects Sheriff Larpenter's distinction between President Alford's public and private roles. As interpreted in Garrison, the First Amendment's protective umbrella covers "anything which might touch on an official's fitness for office," including "personal attributes" like "dishonesty, malfeasance, or improper motivation." Jennifer Anderson's speech concerned "the closely intertwined business and personal relationships between public officials in Terrebonne Parish[,] particularly as they relate to the awarding of then recent public insurance contracts involving Terrebonne Parish." President Alford's alleged business relationships with public entities and other public officials certainly touch on his "personal attributes"—e.g., his honesty and motivation—and therefore his "fitness for office." …
In a final effort to distinguish Jennifer Anderson's speech from the speech protected by Garrison, Sheriff Larpenter contends that Jennifer Anderson's statements about President Alford are false. Yet nowhere does Sheriff Larpenter even argue, let alone attempt to show, that Jennifer Anderson made her statements "with knowledge of their falsity or in reckless disregard of whether they are true or false"—a requirement to overcome the protections afforded those statements by the First Amendment. …
[As to the Fourth Amendment, t]he Court concludes that the facts and circumstances known to Sheriff Larpenter at the time that he directed Detective Prestenbach to get the search warrant for the Andersons' home would not have led a prudent person to believe that the items sought by the warrant constituted evidence of a crime, because no prudent person would believe that Jennifer Anderson's statements about President Alford could constitutionally form the basis of a crime. President Alford is a public official, and Jennifer Anderson's statements on Exposedat and the John Turner Facebook profile addressed core concerns about his fitness for public office. The complaint shows that Sheriff Larpenter was aware of the specific content of Jennifer Anderson's statements about President Alford from the very beginnings of the investigation. (The complaint also shows that Sheriff Larpenter was aware that those statements included discussion of himself, as well as Terrebonne Parish President Gordon Dove and Terrebonne Parish District Attorney Joseph Waitz.)
Moreover, the complaint shows that the criminal investigation into Jennifer Anderson's statements did not uncover a scintilla of evidence to suggest that Jennifer Anderson's speech—regardless of its veracity—was made with actual malice. As such, it is not surprising that Detective Prestenbach's affidavit in support of the search warrant lacked any factual allegations to support an assertion of actual malice. In fact, Detective Prestenbach's acknowledgment in the affidavit that Exposedat featured public documents to support the claims made on it suggested just the opposite: even if false, the statements were not made with actual malice.
Without any basis to believe that speech about a public official was made with actual malice, the First Amendment bars a criminal defamation action under § 14:47 against the speaker of such speech. The facts and circumstances known to Sheriff Larpenter would not have led a prudent person to believe that the items sought by the search warrant—the Andersons' computers and cell phones—constituted the "fruits, instrumentalities, or evidence of a crime."
Further, the Louisiana Supreme Court has held that § 14:47 in its current form cannot apply to "expression and publication concerning public officials" in any instance—i.e., even where actual malice is present. Snyder…. So even if Sheriff Larpenter's investigation had uncovered evidence that Jennifer Anderson's statements were both false and made with actual malice, the facts and circumstances known to Sheriff Larpenter would still not have led a prudent person to conclude that the search warrant sought evidence of a crime.
Finally, the Louisiana Supreme Court has held that the current iteration of § 14:47 likewise cannot apply to "expression and publication concerning… private individuals who are engaged in public affairs." Jennifer Anderson's statements criticized President Alford's business relationship with the taxpayer-funded Terrebonne Parish Sheriff's Office—a paradigmatic example of speech about an individual engaged in public affairs. Therefore, even accepting Sheriff Larpenter's (unpersuasive) argument that President Alford is a private figure, the facts and circumstances known to Sheriff Larpenter—yet again—would not have led a prudent person to conclude that the items sought by the search warrant constituted evidence of any crime.
As the Louisiana Court of Appeal concluded, Jennifer Anderson's speech "is not a criminally actionable offense"—and any prudent person would have known so. Accepting the factual allegations in the complaint as true and construing them in the light most favorable to the Andersons, Sheriff Larpenter's directive to Detective Prestenbach to obtain a search warrant for the Andersons' home resulted in a violation of the Andersons' Fourth Amendment rights, as the warrant lacked the requisite probable cause. The Andersons have stated Fourth Amendment claims against Sheriff Larpenter. …
[Finally, as to qualified immunity, i]t goes without saying that the Andersons' right not to be subjected to a search warrant for their home, where the warrant lacks probable cause, is a clearly established constitutional right…. In this instance, no law enforcement officer in Sheriff Larpenter's position would have an objectively reasonable belief, in light of clearly established law, that probable cause existed to support a search warrant for the Andersons' home. Over fifty years ago, the U.S. Supreme Court held § 14:47 unconstitutional insofar as it applies to true speech about the conduct of public officials, and false speech about the conduct of public officials unless such speech was made with actual malice. The Louisiana Supreme Court then went one step further, holding over four decades ago that § 14:47 in its current form cannot apply to any "expression and publication concerning public officials, public figures, or private individuals who are engaged in public affairs," regardless of the speaker's veracity or mens rea. …
Against this clearly established legal backdrop, any reasonable law enforcement official in Sheriff Larpenter's position would have known—or should have known—that Jennifer Anderson's online statements about President Alford could not constitute a crime—and therefore could not justify a search warrant. …
Sheriff Larpenter contends that the Andersons "cannot seriously argue that [he] was objectively unreasonable" in his actions, because a judge issued the search warrant for the Andersons' home in the first instance and then upheld it against the Andersons' motion to quash. However, "[t]he fact that a neutral magistrate issues a warrant is not dispositive of whether [Sheriff Larpenter's] underlying actions were objectively reasonable." …
The Court notes that Detective Prestenbach's affidavit for the search warrant for the Andersons' home—a warrant he obtained at the direction of Sheriff Larpenter—failed to mention the material fact that President Alford serves as the head of the Terrebonne Parish Levee and Conservation District Board of Commissioners—and hence is a public official. Notwithstanding, a reasonably well-trained officer in Sheriff Larpenter's position would have known that Detective Prestenbach's affidavit would inevitably fail to establish probable cause, because longstanding U.S. Supreme Court and Louisiana Supreme Court case law precluded the application of § 14:47 to Jennifer Anderson's statements.
"[A]s an officer charged with enforcing Louisiana law," Sheriff Larpenter "can be presumed to know the law" of Louisiana, including the law's well-established constitutional reach. More to the point, "[p]olice officers can be expected to have a modicum of knowledge regarding the fundamental rights of citizens." In this instance, a judge's issuance and affirmance of the search warrant for the Andersons' home will not shield Sheriff Larpenter from potential civil liability for his conduct.
For the same reasons, the court concluded that Jennifer Anderson stated a valid claim under the First Amendment itself and not just under the Fourth Amendment, and that Sheriff Larpenter wasn't entitled to qualified immunity as to that, either. ("The First Amendment bars government officials from 'abridging the freedom of speech,' including taking 'adverse governmental action against an individual in retaliation for the exercise of protected speech activities.' ")