Earlier this week, the 5th U.S. Circuit Court of Appeals reversed a lower court’s grant of qualified immunity to police officers who used an unconstitutional law to arrest and prosecute a citizen-journalist. The reversal means the citizen-journalist, Priscilla Villarreal, can now seek justice for her unconstitutional arrest by Laredo, Texas, police.

As part of its Project on Immunity and Accountability, the Institute for Justice (IJ) filed an amicus brief in the case, urging the 5th Circuit to reverse the lower court’s decision and protect Villarreal’s First Amendment rights. The court agreed with IJ’s position that Villarreal’s arrest for asking questions to a police officer—quintessentially protected free speech—represented an “obvious” violation of Villarreal’s First Amendment rights.

“The Fifth Circuit rightly recognized that officers can’t rely on qualified immunity to commit obvious free speech and Fourth Amendment violations with impunity,” said IJ Attorney Jaba Tsitsuashvili. “Crucially, the court also rejected the officers’ insistence that they could skirt accountability by invoking their reliance on an obviously unconstitutional statute.”

The court held that “it should be patently obvious to any reasonable police officer that the conduct alleged in the complaint constitutes a blatant violation of Villarreal’s constitutional rights.” The court explained: “As the Institute for Justice rightly observes, the position urged by the City of Laredo in this case is ‘dangerous to a free society,’ for ‘[i]t assumes that the government can choose proper and improper channels for newsgathering — indeed, that the government can decide what is and is not newsworthy.’”

Again citing IJ’s amicus brief, the court reasoned that, “There is a big difference between ‘split-second decisions’ by police officers and ‘premeditated plans to arrest a person for her journalism, especially by local officials who have a history of targeting her because of her journalism.’”

“The Supreme Court remains inclined to grant qualified immunity in cases they believe present volatile policing scenarios. But their deference to police may finally be giving way in situations where no split-second decision-making is involved. And lower court judges are taking notice,” added IJ Attorney Caroline Grace Brothers.

Known by the nickname “Lagordiloca,” which is Spanish for “the big crazy lady,” Villarreal is a popular journalist in her community. She’s been cruising around Laredo since 2015, seeking stories to cover, ranging from car crashes to immigration raids. When she arrives on the scene of whatever she’s covering, she begins livestreaming on her Facebook page.

Her critical reporting of the police made her a target for retaliation. They started using intimidation tactics to get her to stop reporting. When that didn’t work, the police found an odd state law they used to arrest her. The statute prohibits “misuse of official information,” and police argued that because she had obtained information by asking questions to an unauthorized officer, she was in violation of this seldom-used law. But this basic newsgathering method—asking the police questions—is what journalists do every day. Under these circumstances, the 5th Circuit rejected the officers’ pleas for qualified immunity.

“Qualified immunity still requires a legislative or judicial overhaul to roll back judges’ reflexive deference to police, particularly in excessive force cases. But it’s a welcome development that judges are identifying cracks in the qualified immunity wall,” Brothers said.

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. On November 3, the 5th Circuit is hearing argument in an IJ case presenting First Amendment claims similar to Villarreal’s, in which the lower court denied the officials’ requests for qualified immunity.

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