Fifth Circuit Passes Up Opportunity To Correct Ruling That Said Gov’t Retaliation Against Protected Speech Is Fine

We’ve known for a while that the Fifth Circuit is staunchly pro-cop. But, in recent months, it’s also shown itself to be no friend of the First Amendment.

In September, it suddenly decided the First Amendment doesn’t have anything to do with online speech. It refused to block a Texas law targeting social media services — a law that would force private companies to host speech they (or a majority of their users) didn’t care for. Compelled speech is always unconstitutional, but Fifth Circuit judge Andy Oldham said otherwise in an incomprehensible ruling that ran contrary to more than a century of Supreme Court precedent.

Then, in December, it clawed back a very solid First Amendment ruling, announcing it would be rehearing the case en banc after an (unnamed) judge asked that the case be reheard by the entire court. This was a clear First Amendment retaliation case. Officers arrested a local journalist for asking another cop some questions. The independent journalist had done nothing more than ask a Laredo police employee for confirmation of facts about a Border Patrol officer’s suicide. For this, she was arrested for allegedly “misusing official information.”

As the court noted in the decision it later pulled, there was no question this arrest violated the First Amendment.

Put simply: If the government cannot punish someone for publishing the Pentagon Papers, how can it punish someone for simply asking for them? See New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).

So, this case — where the person suing was so firmly in the right local prosecutors were unwilling immediately dropped the charges — gets a rehearing. But a blown call on the First Amendment — one issued by the Appeals Court last July — won’t get a second chance.

The request for an en banc hearing of this case has been denied. Fortunately, this denial [PDF] comes with a lengthy dissent from Judge James Ho attached — one that points out everything that’s wrong with the original decision.

Here’s the background. Sylvia Gonzalez, a retiree residing in Castle Hills, Texas, was unhappy with her local government. So, she chose to do something about it. She ran for office, securing a spot on the city council after winning her election run against a well-connected incumbent.

But her efforts didn’t end there. She organized a petition to unseat the current city manager and reinstate the previous city manager who she and petition signers felt would do a better job making sure the town’s streets were repaired in a timely manner. She presented this petition containing 300 signatures to the mayor during her first city council meeting. This resulted in a “contentious debate,” one that extended past the evening’s meeting and into the next day.

At the end of the second meeting, she was summoned to the mayor’s office by the police captain. The mayor asked where the petition was. Gonzalez responded by saying she turned it in to the mayor the day before. The mayor prompted her to look for it. Gonzalez did, finding it in her binder. The mayor said “You probably picked it up by mistake.” She gave him the petition.

So far, so banal.

BUT WAIT. This is from Judge Ho’s dissent:

The mayor, the police chief, and a special detective then hatched a plan to charge Sylvia with a crime in order to remove her from office. The police chief deputized his close friend, a private attorney, as a special detective to investigate Gonzalez. Following the investigation, the special detective filed an arrest affidavit alleging that Gonzalez had committed the crime of “intentionally destroy[ing], conceal[ing], remov[ing], or otherwise impair[ing] the verity, legibility, or availability of a governmental record.” Tex. Pen. Code Ann. § 37.10(a)(3).

Basically, the three conspired to criminally charge Gonzalez (who apparently wasn’t liked by the mayor) for mistakenly putting her own petition in her own folder, rather than turning it over to the mayor like she had thought she did. This would be the criminal “concealing or removing” of a government record. This happened after the first police officer Mayor Edward Trevino approached investigated and said no criminal activity had taken place.

Normally, this violation would be handled with a criminal citation and a summons to appear before a judge. It does not (normally!) result in an arrest. But nothing about this was normal. The intent was to intimidate and humiliate the feisty newcomer. Here’s what happened:

First, the special detective got a warrant rather than a summons. […] Second, the special detective circumvented the district attorney by using a procedure normally reserved for emergencies or violent felonies: He walked the warrant directly to a magistrate. Third, the special detective prevented Gonzalez from using the satellite booking function, which facilitates booking, processing, and releasing nonviolent offenders without jailtime. Gonzalez’s warrant did not go through any of the traditional channels, so it wasn’t in the satellite booking system.

Thanks to these machinations, Gonzalez spent a day in jail handcuffed to a bench and forced to forgo the use of a restroom. Jailers also refused to let her stand up to stretch her legs. The district attorney finally managed to step in and drop the charges, but not before Gonzalez’s name and criminal charges made headlines for several days.

Gonzalez sued. Somehow, the Fifth Circuit granted immunity to everyone involved in these clearly retaliatory actions — retaliation provoked by Gonzalez’s speech, her words to the council and the mayor, and the petition she had organized. Since no one else in the circuit had been quite so brazenly retaliatory in a similar situation, the Appeals Court decided there was no way these city officials would have known their abject fuckery was unconstitutional.

And that’s how it’s going to stand, now that a majority of Fifth Circuit judges have voted not to reexamine this blight on their records. At least Judge James Ho isn’t going to let this travesty pass unremarked:

The First Amendment is supposed to stop public officials from punishing citizens for expressing unpopular views. In America, we don’t allow the police to arrest and jail our citizens for having the temerity to criticize or question the government.

But it falls on the judiciary to ensure that the First Amendment is not reduced to a parchment promise. Few officials will admit that they abuse the coercive powers of government to punish and silence their critics. They’re often able to invent some reason to justify their actions. So courts must be vigilant in preventing officers from concocting legal theories to arrest citizens for stating unpopular viewpoints.

Judge Ho says the court utterly failed to do that here. Not only is it failing the First Amendment, it’s fucking up qualified immunity as well.

Even worse, we’re not just getting the First Amendment backwards. We’re also getting qualified immunity backwards. Just compare the denial of en banc rehearing here with some of our other recent en banc decisions.

We grant qualified immunity to officials who trample on basic First Amendment rights—but deny qualified immunity to officers who act in good faith to stop mass shooters and other violent criminals. Compare, e.g., Gonzalez, 42 F.4th 487; Morgan, 659 F.3d 359 (granting qualified immunity to principal who prohibited students from expressing their faith while at school), with Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) (en banc) (denying qualified immunity to police officers who took lethal action against a student who was about to shoot up his high school); Winzer v. Kaufman County, 940 F.3d 900 (5th Cir. 2019) (denying rehearing en banc in case against police department for lethal actions taken during active shooting incident).

Accordingly, officers who punish innocent citizens are immune—but officers who protect innocent citizens are forced to stand trial. Officers who deliberately target citizens who hold disfavored political views face no accountability—but officers who make split-second, life-and-death decisions to stop violent criminals must put their careers on the line for their heroism.

When even the Fifth Circuit is under-delivering on immunity, something is clearly wrong. And the original decision here — which says government officials can retaliate against speech they don’t like as long as they’re creative about it — is undeniably wrong. But it will remain in place, thanks to the inaction of a majority of the judges that call this appellate court home. And that doesn’t exactly bode well for the First Amendment retaliation cases they have chosen to re-hear.