I Guess A Bunch Of Sixth Circuit Judges Think The Public Shouldn’t Be Allowed To Outlaw Qualified Immunity

[screaming at my mute laptop screen]: WHO GOT TO YOU

This isn’t the first time I’ve felt this way. In 2022, the Fifth Circuit got a decision very right. It said it was very fucking definitely a rights violation to arrest a journalist for publishing information she had received from a law enforcement source.

Rather than limit its investigation to the leaker on the law enforcement side, Laredo PD officers went after Priscilla Villarreal, a local independent journalist with a large Facebook following. Using some very sketchy assertions about “misuse of official information,” officers issued an arrest warrant for Villarreal, better known as “Logordiloca” online. Villarreal turned herself in, got jailed, and then filed a lawsuit.

The original Fifth Circuit decision made things crystal clear: the government cannot do this sort of thing.

If the First Amendment means anything, it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned. Yet that is exactly what happened here: Priscilla Villarreal 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.

That seemed to be a closed case. But somehow it wasn’t. A few Fifth Circuit judges who felt the Constitution restrained cops too much asked for the court to take another look. After some polling, the Fifth Circuit decided to review its decision. This one went the other way.

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.

That’s the existential threat in our nation’s appellate courts. Some judges will just decide they don’t like the opinion handed down by the majority. Rather than settle for writing a dissent, they’ll ask the judges to take another look. If enough judges agree, the first decision is wiped from existence.

Somehow, this seems to happen most frequently when decisions go against cops. Such is the case here.

Earlier this month, the Sixth Circuit Appeals Court ruled that the Ohio Attorney General could not prevent a ballot initiative from being opened up to a public vote. The ballot measure — one that followed all the stipulations of Ohio law — proposed ridding the state of qualified immunity.

Now, it’s clear why the AG would be against it. It was a limitation of government power — one proposed by the governed. So, AG David Yost did everything he could to prevent it from being placed on a ballot. He rejected it at least six times for extremely specious reasons.

The decision by the Sixth Circuit pointed out just how capricious this very personal intervention in the democratic process was.

Yost’s argument turns Ohio’s law on its head. Rather than provide limited discretion to the Attorney General, in this case Yost has issued multiple denials—six based on the fair and-truthful determination—without any review by an administrative body or court. And, although Yost is correct that § 3519.01(C) provides for original jurisdiction in the Supreme Court of Ohio, it does not require that court to review the case within a reasonable time, in light of the election deadlines. Instead, because Plaintiffs must submit their approximately 400,000 signatures 125 days before the election and the Supreme Court of Ohio’s mandatory-expedited review applies only to cases filed within ninety days of the election, the mandatory-expedited review will never apply.

Following this scathing take on AG Yost’s actions, the Sixth Circuit hit his office with an injunction that forbade him from rejecting this ballot proposal… at least until the lower court had issued a final decision.

That has apparently upset some of the Sixth Circuit judges. For reasons left unexplained (at this point), the Sixth Circuit has vacated [PDF] this decision and will take another look at what appears to have been the correct decision the first time around.

A majority of the Judges of this Court in regular active service has voted for rehearing en banc of this case. Sixth Circuit Rule 35(b) provides as follows:

A decision to grant rehearing en banc vacates the previous opinion and judgment of the court, stays the mandate, and restores the case on the docket as a pending appeal.

Accordingly, it is ORDERED that the previous decision and judgment of this court are vacated, the mandate is stayed, and this case is restored to the docket as a pending appeal. It is further ORDERED that the pending Motion to Compel Defendant-Appellee to Comply with the Court’s Order (Dkt. 35) and Motion to Stay Judgment and Issuance of the Mandate (Dkt. 36) are denied as moot.

The injunction has been hit with an injunction, prevented from taking force until the (new!) final review takes place. The AG can continue to block this ballot initiative until this issue is resolved, even though it appeared to be pretty damn resolved the first time around.

We’ll have to see what details roll in or what’s inadvertently exposed in the next decision to see what prompted this unneeded review. But chances are, it’s either judges worried that eliminating qualified immunity in Ohio will make resolving litigation a bit more difficult on appeal or its judges unhappy that cops won’t be given extra rights when being sued in Ohio.

Either way, it’s a disappointing turn of events. While appellate courts are more than happy to say things about federalism while punting on issues involving state law, this appellate court (at least those voting for a rehearing) think the Appeals Court should be able to weigh in more heavily when it might mean more government employees will lose access to litigation EASY button.