Villarreal v. City of Laredo

94 F.4th 374

Priscilla VILLARREAL, Plaintiff-Appellant, v. The CITY OF LAREDO, TEXAS; Webb County, Texas; Isidro R. Alaniz; Marisela Jacaman; Claudio Trevino, Jr.; Juan L. Ruiz; Deyanria Villarreal; Enedina Martinez; Alfredo Guerrero; Laura Montemayor; Does 1-2, Defendants-Appellees.

No. 20-40359

United States Court of Appeals, Fifth Circuit

FILED January 23, 2024

Appeal from the United States District Court for the Southern District of Texas, USDC No. 5:19-CV-48, John A. Kazen, U.S. Magistrate Judge

JT Morris (argued), Conor T. Fitzpatrick, Attorney, Foundation for Individual Rights & Expression (FIRE), Washington, DC, Darpana Sheth, Esq., Foundation for Individual Rights & Expression, Philadelphia, PA, for Plaintiff-Appellant.

William Michael McKamie, Esq. (argued), Alicia K. Kreh, Taylor, Olson, Adkins, Sralla & Elam, L.L.P., Fort Worth, TX, for Defendants-Appellees The City of Laredo, Texas, Claudio Trevino, Jr., Juan L. Ruiz, Deyanria Villarreal, Enedina Martinez, Alfredo Guerrero, Laura Montemayor; Does 1-2.

Jason Eric Magee (argued), Allison, Bass & Magee, L.L.P., Austin, TX, for Defendants-Appellees Webb County, Texas, Isidro R. Alaniz, Marisela Jacaman.

Jaba Tsitsuashvili, Anna Bidwell, Attorney, Caroline Grace Brothers, Patrick M. Jaicomo, Institute for Justice, Arlington, VA, Arif Panju, Institute for Justice, Texas Chapter, Austin, TX, for Amicus Curiae Institute for Justice.

Cynthia Fleming Crawford, Senior Counsel, Americans for Prosperity Foundation, Arlington, VA, for Amicus Curiae Americans for Prosperity Foundation.

Kathryn Cherry, Office of the Attorney General, Office of the Solicitor General, Austin, TX, Lanora Christine Pettit, Office of the Texas Attorney General, Solicitor General Division, Austin, TX, for Intervenor State of Texas.

Laura Lee Prather, Counsel, Haynes & Boone, L.L.P., Austin, TX, Paul Christopher Watler, Jackson Walker, L.L.P., Dallas, TX, for Amici Curiae Texas Press Association, Texas Association of Broadcasters, Freedom of Information Foundation of Texas, Society of Professional Journalists.

Brianne Jenna Gorod, Constitutional Accountability Center, Washington, DC, for Amicus Curiae Constitutional Accountability Center.

Rory Thomas Gray, Alliance Defending Freedom, Lawrenceville, GA, John J. Bursch, Alliance Defending Freedom, Washington, DC, for Amicus Curiae Young America's Foundation.

Hiram Stanley Sasser, III, First Liberty Institute, Plano, TX, for Amici Curiae James O'Keefe, Project Veritas, Incorporated.

Laura Lee Prather, Counsel, Haynes & Boone, L.L.P., Austin, TX, for Amici Curiae Brechner Center for Freedom of Information, News Leaders Association.

Thomas S. Leatherbury, Esq., Thomas S. Leatherbury Law, P.L.L.C., Dallas, TX, Garrett Meisman, Attorney, Vinson & Elkins, L.L.P., Houston, TX, Peter Steffensen, Southern Methodist University, Dedman School of Law, Dallas, TX, for Amicus Curiae Journalists.

Jay Remington Schweikert, Cato Institute, Washington, DC, for Amicus Curiae Cato Institute.

Paul Christopher Watler, Jackson Walker, L.L.P., Dallas, TX, for Amici Curiae Reporters Committee for Freedom of the Press, Texas Tribune, Dallas Morning News, National Association of Hispanic Journalists.

Jacob Thomas Crump, Covington & Burling, L.L.P., Washington, DC, for Amici Curiae Electronic Frontier Foundation, National Press Photographers Association, Pelican Institute for Public Policy.

Before Richman, Chief Judge, and Jones, Smith, Stewart, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson and Douglas, Circuit Judges.^*

Edith H. Jones, Circuit Judge, joined by Richman, Chief Judge, and Smith, Stewart, Southwick, Haynes, Duncan, Engelhardt, and Wilson, Circuit Judges:

Priscilla Villarreal alleged First and Fourth Amendment § 1983 claims arising from her brief arrest for publicly disseminating nonpublic law enforcement information, including the identities of a suicide and deceased motor vehicle accident victims. The district court dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because the officials involved were entitled to qualified immunity.

Villarreal was arrested for illegally soliciting information that had not yet been officially made public "with intent to obtain a benefit." TEX. PENAL CODE § 39.06(c), (d). The arrest warrants were approved by the Webb County District Attorney's office and by a magistrate. We do not reach the ultimate question of this facially valid statute's constitutionality as applied to this citizen-journalist. Federal courts do not charge law enforcement officers with predicting the constitutionality of statutes because the Fourth Amendment's benchmark is reasonableness, and "[t]o be reasonable is not to be perfect." Heien v. North Carolina, 574 U.S. 54, 60, 135 S. Ct. 530, 536, 190 L.Ed.2d 475 (2014). Moreover, the statute is not "obviously unconstitutional" as applied here.

Villarreal and others portray her as a martyr for the sake of journalism. That is inappropriate. She could have followed Texas law, or challenged that law in court, before reporting nonpublic information from the backchannel source. By skirting Texas law, Villarreal revealed information that could have severely emotionally harmed the families of decedents and interfered with ongoing investigations. Mainstream, legitimate media outlets routinely withhold the identity of accident victims or those who committed suicide until public officials or family members release that information publicly. Villarreal sought to capitalize on others' tragedies to propel her reputation and career.

For a number of reasons, the officials were entitled to qualified immunity and the district court's judgment is AFFIRMED.

I. BACKGROUND

Villarreal is a well-known Laredo citizen-journalist (a/k/a "Lagordiloca") who publishes to over a hundred thousand followers on Facebook.¹ She frequently posts about local police activity, including content unfavorable to the Laredo Police Department ("LPD" or "Department"), the district attorney, and other local officials.

Her complaint alleges that, as a result of her "gritty style of journalism and often colorful commentary," Villarreal has critics as well as admirers. The admirers treat her to occasional free meals, and she occasionally receives fees for promoting local businesses. She has used her Facebook page to ask for and obtain donations for new equipment to support her journalistic efforts. But, she alleges, officials in Laredo city government and the LPD engaged in a campaign to harass and intimidate her and stifle her work.

The events before us began on April 11, 2017, when Villarreal published, as a likely suicide, the name and occupation of a U.S. Border Patrol employee who jumped off a Laredo public overpass to his death. She had corroborated this information with LPD Officer Barbara Goodman, her backchannel source, who was not an official city or LPD information officer. Then, on May 6, she posted a live feed of a fatal traffic accident, including the location and last name of a decedent in a family from Houston. Officer Goodman also corroborated the information on this tragic event. In each instance, Villarreal went behind the official information channel and published while the incident was being investigated. She acknowledges that for several years she had published information obtained unofficially.

Villarreal alleges that several named Appellees conspired to suppress her speech and arrest her for violating a law they had to know was unconstitutionally applied to her. Facts revealed by publicly available documents and incorporated by reference in Villarreal's complaint complete the picture.²

LPD investigator Deyanira Villarreal ("DV" or "investigator")³ is tasked with upholding the Department's professional standards. She received a tip from her colleagues on July 10, 2017, that Officer Barbara Goodman was secretly communicating with Villarreal.⁴ Along with the tip, DV noticed that some of the content posted to Villarreal's Facebook page was not otherwise publicly available information.

Two weeks later, DV assigned Officer Juan Ruiz to investigate. Ruiz prepared two grand jury subpoenas for phone records from cellphones belonging to Officer Goodman, Officer Goodman's husband, and Priscilla Villarreal. Webb County Assistant District Attorney Marisela Jacaman approved the subpoenas.

The phone records revealed that Officer Goodman and Villarreal communicated with each other regularly and at specific times coinciding with law enforcement activities.⁵ Ruiz presented to a Webb County magistrate an affidavit in support of a warrant to search Officer Goodman's cellphones. The court approved that search. Officers performed forensic extractions on the phones and sent additional subpoenas for call logs. As a result of the investigation, Goodman was suspended for twenty days.

With evidence in hand, Ruiz prepared two probable cause affidavits to arrest Villarreal for her conversations with Officer Goodman that were uncovered during the investigation. In the first conversation, Villarreal texted Officer Goodman about the man who committed suicide by jumping from a highway overpass. She asked about the deceased's age, name, and whether he was employed by U.S. Customs and Border Protection. Goodman answered her questions.⁶

The second conversation involved a fatal car accident. On the date of the accident, Villarreal sent dozens of text messages to Officer Goodman. Villarreal then posted on Facebook that one person, whom she named, died in the accident. She also disclosed that a family from Houston was in the car and that three children had been med-evac'd to San Antonio. Villarreal's text messages asked Goodman about those precise details.

Ruiz's affidavits stated that the information Villarreal requested, and Goodman provided, "was not available to the public at that time." The affidavits further stated that by posting this information on her Facebook page "before the official...