Federal appellate court rules in favor of journalist arrested for reporting unpublished information

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The 5th U.S. Circuit Court of Appeals ruled in favor of an independent reporter who had been arrested for disclosing sensitive information to the public, reversing the decision of the lower court.  

Key Players

Priscilla Villarreal, known for her investigative work as La Gordiloca, a Spanish phrase roughly meaning “Crazy Fat Lady,” independently reports on drug busts and murder scenes in Laredo, Texas. A polarizing figure, she is praised by some as “the face of Laredo,” while others question her community impact, LMT Online reported. The New York Times described her as “arguably the most influential journalist in Laredo.” Her official Facebook page has over 196,000 followers.  

The Laredo Police Department (LPD) employs over 500 officers, serving a metro area of about 261,000 people. 

Further Details

Laredo, a border city on the Rio Grande in southwest Texas, the tenth-largest city in the state, leans moderately liberal.

In 2017, Villarreal reported the name of a U.S. Customs and Border Protection agent who died by suicide. At the time, LPD had not yet disclosed the agent’s name to the public.

On Dec. 12, 2017, after hearing she had two outstanding warrants for her arrest, Villarreal affirmed her innocence in a Facebook video. The next day, she was charged with two counts of misuse of official information, a third-degree felony punishable by up to 10 years in prison, LMT Online reported.

The Texas Misuse of Official Information Statute criminalizes the sharing of official information “with intent to obtain a benefit or with intent to harm or defraud another.” LPD said Villarreal unlawfully obtained and released the dead agent’s name, information related to an ongoing investigation, to benefit her presence on social media. 

An internal investigation revealed that Barbara Goodman, an LPD officer, leaked information to Villarreal about the agent, as well as intelligence about other cases. Goodman was suspended for 20 days, which LPD justified as its “obligation to the protection of a person’s right to privacy as it relates to sensitive information,” The Times reported. Goodman was eventually reassigned.

On March 28, 2018, Texas 111th District Court Judge Monica Zapata Notzon, who had assumed office in 2014, dismissed the charges against Villarreal, ruling that the state criminal code was unconstitutionally vague in describing what constituted a “benefit.” Notzon ruled that Villarreal was denied due process, supporting her attorney’s belief that LPD was “just sitting on the case because they wanted to punish her because they could,” LMT Online reported.

LPD stated it would respect the court’s decision. But on April 10, 2019, LMT Online reported that Villarreal filed a federal lawsuit against the city, alleging her arrest violated her Free Speech rights. 

“Any reasonable official would have understood that publishing truthful information for wider distribution is protected First Amendment activity and not subject to criminal penalty,” the lawsuit read. It alleged LPD targeted Villarreal because of her work as a journalist, pointing out that the statute had never been invoked by LPD in any other arrest. The lawsuit sought damages and an assignment of blame to relevant LPD personnel.

On May 8, 2020, U.S. Magistrate Judge John A. Kazen ruled in favor of Laredo, citing Villarreal’s failure to provide evidence that LPD acted in bad faith and a lack of evidence that she faced “actual present harm or significant possibility of future harm.”

Kazen said that LPD had acted within the constitutional scope of its duties during Villarreal’s arrest and maintained qualified immunity, a legal status that protects police officers from liability in civil lawsuits, unless “a ‘clearly established’ statutory or constitutional right” is violated, per the Legal Information Institute at Cornell University.   

“Qualified immunity applies regardless of whether the government official’s error was a mistake of law,” Kazen wrote on behalf of U.S. District Court for the Southern District of Texas, specifying that the Texas law had not been struck down at the time of the arrest. 

Villarreal appealed the decision. The case drew national attention to the issue of qualified immunity. A November 2020 column by George F. Will in The Washington Post pointed out that “seven of the 13 U.S. circuit courts deny qualified immunity when officials justify their unconstitutional actions by citing a statute, if the statute is ‘patently violative’ of a constitutional right.” 

Will noted the Supreme Court’s 1971 ruling regarding the publication of the Pentagon Papers, classified documents about the history of U.S. involvement in southeast Asia, first published by The Times. The court found in part that journalists may publish classified information, even if their source distributed it unlawfully, defending the First Amendment right of freedom of the press. 

Outcome

Fifth Circuit reverses district court’s decision, remands case for review

On Nov. 1, 2021, the 5th Circuit Court of Appeals reversed nearly all of the lower court’s ruling, The Associated Press reported. The three-judge panel voted 2-1. Circuit Judge James C. Ho, nominated by former President Donald Trump, wrote that “public officials are not entitled to qualified immunity for obvious violations of the Constitution.” 

Although he said Villarreal did not sufficiently prove her arrest was pure retaliation, Ho wrote that she “articulated a viable First Amendment theory based on the officers’ infringement of her constitutional right to ask questions of public officials,” adding she “was put in jail for asking a police officer a question. If that is not an obvious violation of the Constitution, it’s hard to imagine what would be.”

The appellate court ruled that law enforcement personnel were not entitled to qualified immunity, but affirmed the District Court’s dismissal of Villarreal’s liability claim, citing the absence of a requisite “widespread practice” of similar misconduct. 

The court remanded the case back to federal district court for “further proceedings consistent” with its opinion. Judge Priscilla Richman, nominated by former President George W. Bush, dissented, but her views were not included with the original decision.

On Aug. 12, 2022, the appellate court announced the original opinion had been withdrawn for an updated document, which included Richman’s dissent. The opinion of the court remained unchanged. 

Richman’s dissent centered on the notion that eliminating qualified immunity for alleged First Amendment violations deemed “obvious” would “confuse” the courts. She voted to affirm the lower court’s decision in its entirety and accused Ho of applying standards of what constitutes an “obvious” violation and a “reasonably competent law enforcement officer” without supporting legal precedent.

As of Sept. 19, 2022, there were no further developments.