Laredo-based citizen-journalist Priscilla Villarreal was disliked by local law enforcement officials for her reporting on perceived police and prosecutorial misconduct. She alleges that these officials, with the goal of intimidating her into silence, dug up an obscure Texas statute that bars “solicit[ing] or receiv[ing] from a public servant information that: (1) the public servant has access to by means of his office or employment; and (2) has not been made public” with “intent to obtain a benefit,” and arrested her thereunder. Her crime: simply asking a police officer to confirm the identities of two individuals mentioned in news stories posted on her Facebook page.

After Villarreal learned of the warrant for her arrest, she turned herself in, at which point police officers took pictures of her in handcuffs and laughed at her. A state court then granted Villarreal a writ of habeas corpus, and the state dropped the case against her. Villarreal subsequently sued various state and county officials under 42 U.S.C. § 1983, alleging that they violated her rights guaranteed by the First Amendment, as well as other constitutional provisions. The Defendants moved to dismiss all of Villarreal’s claims on the ground that they were entitled to qualified immunity, and the district court granted their motion.

Villarreal appealed to the United States Court of Appeals for the Fifth Circuit, which reversed the district court’s dismissal of most of Villarreal’s claims, with one judge dissenting from the panel’s decision. Defendants then petitioned for rehearing, and the Fifth Circuit agreed to hear the case en banc.

On December 12, 2022, CAC filed an amicus curiae brief in support of Villarreal before the en banc court. On January 23, 2024, the full Fifth Circuit issued a closely divided (9-7) opinion, holding that Villarreal’s arrest was not “obviously unconstitutional” and thus that the Laredo officials are shielded from suit by qualified immunity. Four judges penned dissents, and Judge Ho’s dissent directly cites CAC for the point that “the government has no business imprisoning citizens for the views they hold or the questions they ask.”

A few months later, Villarreal filed a petition for certiorari asking the Supreme Court to overturn the Fifth Circuit’s decision. CAC filed an amicus brief in support of Villarreal’s petition, urging the Court to grant cert and summarily reverse. Our brief makes two main points.

First, our brief explains that Section 1983 was enacted, in part, to make real the First Amendment’s promise to protect the speech of all people, even those who criticize authorities. The law was passed during Reconstruction when state and local officials across the South were retaliating against those who exercised their freedom of speech to denounce the Confederacy, slavery, and its vestiges. Rather than protecting those individuals, state and local officials were instead targeting them for baseless prosecutions and arrests. Our brief explains that Villarreal’s claim for infringement on her freedom of speech through retaliatory arrest and prosecution thus falls in the heartland of the types of rights Section 1983 was enacted to protect. Moreover, given the obviousness of the constitutional violation—arresting a journalist merely for asking a police officer a question—the Defendants should have known that their actions violated Villarreal’s constitutional rights, even though they relied on a warrant and a state statute purportedly authorizing the arrest.

The second point of focus of our brief is on the Fifth Circuit’s conclusion to the contrary—that is, that reliance on a warrant or a state statute should shield officials from liability. As we explain, that not only contradicts modern immunity doctrine, but also is contrary to the nineteenth-century tort law backdrop that informs analysis of Section 1983 claims. Court decisions from around the time Section 1983 was enacted reveal that government officials who deprived individuals of their legal rights were held strictly liable for damages in tort. That was so even in cases where, like the Defendants here, officials committed torts in reliance on the orders of a superior, or based on the misconstruction of a governing statute, or even based on an unconstitutional statute.