Andrew Wimer
Andrew Wimer · September 18, 2020

Arlington, Va.—Police officers swear to uphold the U.S. Constitution, but can they be held accountable when they blatantly violate that oath? The 5th U.S. Circuit Court of Appeals will soon consider whether a citizen-journalist in Texas can seek justice after a retaliatory arrest and prosecution. The Institute for Justice (IJ), as part of its recently launched Project on Immunity and Accountability, has filed an amicus brief in Villarreal v. Laredo urging the court to hold officers responsible for violating First Amendment rights.

Since 2015, Priscilla Villarreal has operated as a one-woman news outlet. She cruises around her hometown of Laredo, Texas in her blue pick-up truck, seeking out crime scenes, traffic accidents, and immigration raids. Once she arrives, she livestreams the events to her Facebook page as they unfold, along with commentary that is sometimes critical of local law enforcement. She calls herself “Lagordiloca,” an endearing term that means “the big crazy lady” in Spanish, and she is arguably the most high-profile journalist on the streets of Laredo.

But though she is something of a folk hero in Laredo, her criticisms made her unpopular with the police. They began harassing and intimidating her, and ultimately issued a warrant for her arrest based on an obscure state law against “misuse of official information.” Essentially, they twisted the law to criminalize Villarreal’s routine newsgathering techniques. They cited two instances where she had asked a police officer to confirm information that she had already collected on her own. Pulitzer Prize-winning reporters do the same thing every day.

The law is rarely used to prosecute anyone and a judge tossed her criminal case three months later, ruling that the law was unconstitutionally vague.

But when Villarreal filed a civil lawsuit to remedy the retaliatory, premeditated violations of her constitutional rights, the federal trial court ruled against her relying on a doctrine called “qualified immunity.” Even though the law the police used to arrest her was clearly unconstitutional, the court let the officers off the hook.

Qualified immunity is a judge-made rule, invented by the Supreme Court in 1982. The doctrine shields bad actors from personal responsibility by holding government officials liable only if their specific actions had already been held unconstitutional in an earlier court case.

“Proponents of qualified immunity defend the doctrine by arguing that second-guessing police could have a chilling effect, causing officers to hesitate in life-or-death situations. But that reasoning, although dubious, doesn’t apply here,” said IJ constitutional law fellow Caroline Grace Brothers. “This was not a split-second decision. This was planned. Laredo law enforcement specifically targeted Villarreal for retaliation.”

Throughout the 19th and early 20th centuries, before the doctrine of qualified immunity was created, courts held government officials liable for violating constitutional rights, even when they were enforcing an unconstitutional law. Today, many federal appellate courts have embraced an exception to modern qualified immunity doctrine that echoes that historical rule: if a law is patently unconstitutional, then government officials are not entitled to qualified immunity for enforcing that law.

“No government official should need a federal court to tell them that arresting someone for asking a police officer to corroborate newsworthy information violates the First Amendment,” said IJ attorney Jaba Tsitsuashvili. “If ignorance of the law is no excuse for ordinary people, then officers of the law should be held accountable for violating basic constitutional principles.”

In addition to letting the police violate Villarreal’s constitutional rights without consequences, the trial court’s holding also rested on the premise that if a person asks for and receives newsworthy information from a government official who is not the government’s designated spokesperson, she can be arrested and prosecuted—even if the only thing she did was ask for and receive facts.

“That reasoning is dangerous to a free society because it permits the government to make itself the gatekeeper and arbiter of newsworthiness,” said IJ attorney Anya Bidwell. “It threatens to chill core First Amendment activity and make us all less knowledgeable about government actions. In the brief we filed today, IJ urges the Court of Appeals to repudiate that holding.”

The Institute for Justice’s Project on Immunity and Accountability is devoted to the simple idea that government officials are not above the law; if citizens must follow the law, the government must follow the Constitution. In addition to filing amicus briefs, like this one, IJ has also filed petitions with the Supreme Court on behalf of Americans whose rights were violated by police but were barred from seeking redress due to governmental immunity. One of those cases, Brownback v. King, is scheduled for oral argument in November.