Full Transcript - Federal Court Short Circuits Qualified Immunity
Today on Legalese, we are talking about a fantastic ruling out of the fifth circuit in which the court held that a police detective who sought an arrest warrant against an individual for merely criticizing that officer in a private email, based on a law this police detective knew to be unconstitutional, clearly violates a citizens first and fourth amendment rights and as such does not qualify for qualified immunity!
I will also be using his case to discuss on of the most common and most vexing myths in the whole of American jurisprudence, that has to do with the crucial distinction between a Court’s finding that a law is unconstitutional and a Legislature’s decision to repeal a law.
Now, in some ways it is a sad indictment of our system that I find it worth celebrating the fact that a Court said “This police officer clearly violated your constitutionally protected individual rights”…. And didn’t follow that up with “Even though 42 USC §1983 clearly creates a cause of action for deprivation of rights, your undeniable deprivation of rights cannot proceed because you have failed to state a claim for which relief can be granted… too bad… don’t let the door hit you on the way out.”…. But I guess I’ll celebrate a victory wherever I can get them. So lets jump into the fifth circuit’s opinion in Rogers v Smith.
Louisiana's criminal libel law was repealed in 2021, but even before that it had been held unconstitutional as to prosecutions for libels of public officials, and more broadly as to prosecutions for libels on matters of public concern. Judge Jane Triche Milazzo's opinion in Rogers v. Smith (E.D. La.) held that an arrest for allegedly libeling a police officer violated the Fourth Amendment (and also allowed a First Amendment retaliation claim and some other claims to move forward):
This case arises out of the arrest of Plaintiff Jerry Rogers for criminal defamation. Defendants are St. Tammany Parish Sheriff Randy Smith, Chief Danny Culpeper, and Sergeant Keith Canizaro in their individual and official capacities. Plaintiff alleges that he worked for the St. Tammany Parish Sheriff's Office ("STPSO") from 1998 to 2009 before leaving for other employment. On July 14, 2017, Nanette Krentel was murdered in St. Tammany Parish, and her murder remains unsolved. Plaintiff followed the news coverage of the murder investigation and, based on his personal experience, became critical of some of the actions taken by the STPSO. He began communicating with Krentel's family members by email about his concerns. Specifically, Plaintiff was critical of the lead investigator, Detective Daniel Buckner.
At some point, the STPSO became aware of the emails and began investigating their source. Plaintiff alleges that upon discovering that Plaintiff was the author of the emails, the STPSO sought the advice from the district attorney's office ("the DA") and was advised that in Garrison v. Louisiana, the U.S. Supreme Court Louisiana's criminal defamation law, Louisiana Revised Statutes § 14:47, had been declared unconstitutional as to public officials and therefore charges against Plaintiff would be unconstitutional. Despite this, Defendants arrested Plaintiff for criminal defamation anyway.
On September 16, 2019, Canizaro was granted an arrest warrant for Plaintiff for violation of Louisiana Revised Statutes § 14:47. In the affidavit for the arrest warrant, Canizaro certified that Rogers's emails referred to the lead investigator as "clueless," provided false information regarding the investigator's experience and ability, and made derogatory remarks about him and others. Plaintiff alleges that the affidavit also stated falsely that Krentel's family requested assistance in identifying the author of the emails.
What the officers failed to tell the judge in obtaining that warrant is that Louisiana’s Supreme Court ruled decades ago that the criminal defamation law is unconstitutional when it comes to public officials — like the police detective Rogers criticized. The officers also failed to tell the judge that when they discussed the case with the district attorney’s office, police were told that the law was unconstitutional. That meant that the judge had a distorted view of what the officers knew. Although the officers knew their warrant was constitutionally defective, they arrested Rogers anyway.
Plaintiff was arrested on September 16, 2019 and released on bail the same day. Ultimately, the Louisiana Department of Justice declined to prosecute the criminal charge against him….
After prosecutors declined to pursue the case, Rogers sued the police officers in federal court for violating his First Amendment rights and for falsely arresting him. When the district court denied the officers qualified immunity, they appealed.
Defendants admit that Louisiana's criminal defamation statute has been held unconstitutional in the context of criticism of the official conduct of public officials. This goes back to Garrison v Louisiana, in which the Supreme Court held: “{W]e hold that the Louisiana statute, as authoritatively interpreted by the Supreme Court of Louisiana, incorporates constitutionally invalid standards in the context of criticism of the official conduct of public officials. ”1
In State v Snyder, the Louisiana Supreme Court not only enjoined Garrison, but expanded the principles enunciated in Garrison.
We hold R.S. 14:47, 48, and 49 to be unconstitutional insofar as they attempt to punish public expression and publication concerning public officials, public figures, and private individuals who are engaged in public affairs. 2
They argue, however, that because the defamed party in this case was STPSO Deputy Detective Buckner—who they argue is not a public official—the case law declaring the statute unconstitutional is inapplicable and the right was not clearly established….
[But] both the Louisiana Supreme Court and the Fifth Circuit have held that a police officer is a public official. Defendants suggest that because there is no case directly addressing whether a police officer is a public official in the context of Louisiana's criminal defamation statute, then the constitutional right was not clearly established. The Supreme Court has held, however, that there need not be "a case directly on point." Rather, "existing precedent must have placed the statutory or constitutional question beyond debate." Here, it is well-settled in Louisiana law both that a police officer is a public official and that Louisiana's criminal defamation statute is unconstitutional as applied to public officials. Indeed, prior to its repeal in 2021, the law was included in the Unconstitutional Statutes Biennial Report to the Legislature in 2016, 2018, and 2020….3
In addition, Plaintiff also presents evidence that the DA specifically told Defendants that a police officer is a public official and that Plaintiff's arrest would be unconstitutional. In his deposition, Defendant Culpeper admitted that he was specifically told by the DA's office that it would be unconstitutional to arrest Plaintiff. STPSO Captain Gaudet likewise testified that the decision to arrest Plaintiff was made after being informed that the criminal defamation statute was unconstitutional by the DA's office.
Finally, issuance of a warrant does not guarantee qualified immunity where "on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue." This Court finds that no reasonable officer could have believed that probable cause existed where the unconstitutionality of Louisiana's criminal defamation statute as applied to public officials has long been clearly established and where the officers had been specifically warned that the arrest would be unconstitutional….4
Notably, the warrant application for Plaintiff's arrest omitted key information when it failed to advise the judge regarding the DA's position that the arrest would be unconstitutional. Both the judge and Sheriff Smith testified that the information provided by the DA should have been included in the affidavit in support of the arrest warrant. Accordingly, the fact that Defendants arrested Plaintiff pursuant to a warrant does not protect them from liability….
Plaintiff correctly argues that there was no probable cause for his arrest. Accordingly, Plaintiff is entitled to summary judgment on his false arrest and false imprisonment claims under both federal and state law.
Note that a properly crafted criminal libel law, for instance one limited to knowing lies or statements made knowing that they are very likely false (tracking the "actual malice" standard applicable in civil cases), would likely be constitutional, even applied to speech about government officials. But Louisiana law had never been revised to comply with the First Amendment rules set forth starting with New York Times v. Sullivan, and had thus been invalidated as unconstitutionally overbroad, at least as to speech about public officials or speech on matters of public concern.
Writ of Erasure Fallacy
I want to use this opportunity to talk about one of the biggest myths in Constitutional Law: that the power of judicial review is akin to a veto, wherein the Court can “strike down” or render “void” a duly enacted statute. This is a complicated legal doctrine that expresses something that should be an obvious fact. The federal judiciary has no authority to alter or annul a statute. This is separation of powers 101 – If the only way to repeal a standing law is an amendment to that law, and if the only people with the constitutional authority to write, alter or repeal a law is the Legislature, then no judge is ever delegated the power to “strike down” a law in the manner most people imagine they do. It also violates the fundamental common law doctrine of estoppel, which dictates that courts enjoin people, not laws. In The Writ-of-Erasure Fallacy, a fantastic article written by Johnathon Mitchell, that I will link on the show notes page (link in the description) he states:
…[T]he federal judiciary has no authority to alter or annul a statute. The power of judicial review is more limited: It allows a court to decline to enforce a statute, and to enjoin the executive from enforcing that statute. But the judicially disapproved statute continues to exist as a law until it is repealed by the legislature that enacted it, even as it goes unenforced by the judiciary or the executive. And it is always possible that a future court might overrule the decision that declared the statute unconstitutional, thereby liberating the executive to resume enforcing the statute against anyone who has violated it. Judicial review is not a power to suspend or “strike down” legislation; it is a judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute’s enforcement.[1]
This myth has real-world practical consequences. (In an article you will also find a link to on the show notes page) by Howard Wasserman called “A Step Toward a Proper Understanding of Constitutional Litigation” addressing Mitchell’s article, Wasserman highlights why the “myth” led the Supreme Court astray in Plessy v. Ferguson:
Mitchell then illustrates the nefarious effects of the writ-of-erasure fallacy in two doctrines. The first involves the Civil Rights Act of 1875, a late-Reconstruction statute that prohibited race discrimination in places of public accommodation. In The Civil Rights Cases, the Court held that Congress lacked the authority under § 5 of the Fourteenth Amendment to prohibit private racial discrimination, while treating the statute as void for all purposes. By purporting to “erase” the Act, however, the Court disabled its future uses, such as against discrimination on a train traveling in interstate commerce or against state-compelled racial segregation in Plessy v. Ferguson. As to the latter, Mitchell argues that the Court should have held that the 1875 Act, still extant as federal law, preempted the discriminatory state law.[2]
In other words, the Louisiana segregation law should have been preempted by the 1875 Civil Rights Act. However, the Plessy Court rejected that argument, based on the myth that the federal law was indeed “struck down.”
The Civil Rights Act of 1875 guaranteed “the full and equal enjoyment” of “public conveyances on land,” including trains, to “citizens of every race and color.” The Plessy Court found that The Civil Rights Cases held the Act was “unconstitutional and void.” However, recall that The Civil Rights Cases concluded that Congress lacked the power under Section 5 of the 14th Amendment to regulate private businesses.
Given that, is the Civil Rights Act of 1875 still constitutional as applied to state action, such as the Louisiana segregation law? If so, then why does that federal statute not preempt the Louisiana segregation law?
According to Johnathon Mitchell’s research: (“A statute that the Supreme Court has declared unconstitutional is not ‘void’ — even if a prior Supreme Court opinion describes it as ‘void.’ The statute remains a law until it is repealed, and it must be enforced by courts to the extent they can do so consistent with the Constitution. Even if one accepts the Civil Rights Cases’s interpretation of the Constitution, that means only that Congress cannot reach purely private discrimination under its section 5 enforcement powers. It does not excuse courts from enforcing the Civil Rights Act of 1875 in cases involving racial discrimination that is “sanctioned in some way by the State” or ‘done under State authority.’ The Plessy Court fell victim to the writ-of-erasure fallacy: It assumed that the Civil Rights Cases had canceled or ‘voided’ the statutory provisions in the Civil Rights Act of 1875, when the statutes remained on the books and compelled the courts to act against state-mandated racial discrimination in places of public accommodation.”).
Mitchell also rebuts another facet of the “writ-of-erasure” myth: when the Supreme Court declares a law unconstitutional in one state, similar laws nationwide are not removed from the statute books. Indeed, a similar state law that was not challenged remains enforceable until (a) the executive branch voluntarily ceases enforcement because of the Supreme Court precedent or (b) a court enjoins the application of that specific state law.
This is a topic we have discussed before on this channel, though not for quite some time. For Example, in my video on the landmark Supreme Court case of Cooper v Aaron we discussed:
Lawrence v. Texas illustrates this dynamic. While it is perhaps shorthand to say that the Supreme Court “struck down” Texas’s criminal prohibition on sodomy, more precisely the majority opinion issued the following order: the “judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.” Not even the “transcendent dimensions” of Justice Kennedy’s prose could physically remove Section 21.06(a) from the Texas Penal Code. Indeed, the provision remains on the books, albeit appended by a notation from the Texas Legislature that “Section 21.06 was declared unconstitutional by Lawrence v. Texas, 123 S.Ct. 2472.”
As Jonathan Mitchell has explained:
[T]he Supreme Court does not “wield[] a writ of erasure that blots out unconstitutional legislation.” If Texas officials attempted to enforce this prohibition, under the judgment in Lawrence, they would be on the hook for damages under 42 U.S.C. § 1983 in a subsequent suit. Nor did the Court’s judgment in Lawrence directly implicate the laws of any other state. Even after Lawrence, and to this day, Virginia’s code treats as a felon one who “voluntarily submits to such carnal knowledge,” which includes sodomy. Because this law has not been enforced since Lawrence, it remains on the books. But any prosecutor who brought sodomy charges under this section, in conflict with Lawrence’s precedent, would likewise be on the hook for damages.[3]
Furthermore, when we covered the Dobbs case that overturned Roe and Casey I brought up the example of the Massachusetts legislature is expressly repealing its criminal prohibitions on abortion, adultery, and fornication. Such laws would, without question, be declared unconstitutional if challenged in court. After all, a criminal prohibition cannot survive Roe and Casey. And bans on adultery and fornication cannot survive Lawrence and Obergefell. Why then is Massachusetts bothering to repeal them? A great article written by the Boston Globe around the same time I was covering Dobbs explains:
In passing the bill, many lawmakers cited concerns over whether Trump’s most recent nominee to the Supreme Court, Brett Kavanaugh, might eventually tilt the court in favor of overturning its landmark decision on Roe v. Wade, allowing states to outlaw abortion again.
And while a 1981 state high court decision strongly suggests the Massachusetts Constitution protects abortion rights, advocates say it’s not explicit and needed clarification from Beacon Hill.[4]
Ultimately I concluded If Roe is overturned (which I must admit, at the time I did not think would come to be), the criminal prohibition on abortion–which was still on the books–becomes (once again) good law. In this, The Massachusetts legislature had wisely rejected the writ of erasure fallacy and left themselves in a much better positions than most States.
That’s all I got for you guys today. Just a reminder to quick take a few second to trigger al gores rhythm by hitting that like button if you liked this video, hit dislike if you disliked it. Subscribe to the channel, go to LegaleseShow.com top sign up for my newsletter that gives you updates when ANY new articles or videos of mine get posted anywhere. For more information about me or the show go to LegalesePodcast.com and until next time this has been Bob for Legalese.
As always, Carthago Delenda Est
[1] Mitchell, Jonathan F., The Writ-of-Erasure Fallacy (April 6, 2018). 104 Va. L. Rev. 933 (2018), Available at SSRN: https://ssrn.com/abstract=3158038
[2] Howard M. Wasserman, A Step Toward a Proper Understanding of Constitutional Litigation, JOTWELL (July 12, 2018) (reviewing Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. __ (forthcoming 2018), available at SSRN), https://courtslaw.jotwell.com/a-step-toward-a-proper-understanding-of-constitutional-litigation/.
[3] Blackman, Josh, The Irrepressible Myth of Cooper v. Aaron (March 17, 2018). Georgetown Law Journal, Vol. 107, 2019, Available at SSRN: https://ssrn.com/abstract=3142846 or http://dx.doi.org/10.2139/ssrn.3142846
[4] Mass. House OK’s repeal of 19th-century law that criminalized abortion https://www.bostonglobe.com/metro/2018/07/18/mass-house-repeal-century-law-that-criminalized-abortion/U4oPFiiGzrFbonn5Int8wM/story.html?event=event25
Garrison v. Louisiana, 379 U.S. 64, 77 (1964)
State v. Snyder, 277 So. 2d 660 (1972)
Id.