US appeals court again rejects Texas citizen journalist's bid to sue over arrest

By Nate Raymond

April 9 (Reuters) - A divided federal appeals court is sticking with its conclusion that a citizen journalist in Texas cannot sue officials over her arrest for asking a police source questions after the U.S. Supreme Court directed it to take a second look.

The New Orleans-based 5th U.S. Circuit Court of Appeals in a 10-5 ruling on Tuesday held that Priscilla Villarreal cannot sue police officers and other officials for retaliating against her because they enjoyed qualified immunity, a legal defense that can shield government officials from liability in lawsuits over their actions.

That's the same conclusion a majority of the court had reached last year, before the U.S. Supreme Court in October directed it to reconsider the issue in light of a decision in a separate case in which it had faulted the 5th Circuit's approach to assessing when someone can pursue a retaliation claim over an arrest under the U.S. Constitution's First Amendment.

But U.S. Circuit Judge Edith Jones, writing for Tuesday's 5th Circuit majority, said regardless of whether Villarreal stated a plausible claim for unconstitutional retaliation because of her speech, the officials could still properly claim qualified immunity from liability.

Jones, an appointee of Republican President Ronald Reagan, said that was because at the time of Villarreal's arrest, under existing case law on First Amendment retaliation claims, officers reasonably "could have believed that what he or she was doing was perfectly legal."

JT Morris, a lawyer for Villarreal with the Foundation for Individual Rights and Expression, in a statement vowed a second trip to the Supreme Court "to continue Priscilla's fight for her First Amendment freedoms and those of all Americans."

Villarreal, an online citizen journalist in Laredo, has become one of the city's most popular news sources, with 120,000-plus people following her Facebook page where she regularly reports on crime, events and government.

She was charged with two felony counts of misuse of information after she published the identities of suicide and car crash victims on Facebook, using information she verified by speaking to a police officer in Laredo.

The Texas statute she was charged under made it a crime to solicit non-public information from a government official with an intent to obtain a benefit. Prosecutors alleged she used the information to amass more Facebook followers.

A district court judge ruled the officers and prosecutors were entitled to qualified immunity, but a 2-1 panel reversed it in 2021. The full 5th Circuit then voted to rehear the case, leading to the two so-called en banc rulings against her.

The case has splintered the judges who make up the 5th Circuit's conservative majority, with two joining three judges appointed by Democrats to dissent from Tuesday's opinion.

"I do not think it is a proper answer to the High Court to reinstate what we mistakenly said before, just in different packaging," U.S. Circuit Judge Stephen Higginson, an appointee of Democratic President Barack Obama, wrote in dissent.

U.S. Circuit Judge Andrew Oldham, who dissented in the first en banc decision in January 2024, joined the majority in Tuesday's decision.

But in a concurring opinion, he said it was "increasingly unclear" why qualified immunity should apply in a case like Villarreal's where law enforcement is not making split-second decisions but are spending months preparing for an arrest.

The case is Villarreal v. City of Loredo, U.S. Court of Appeals for the 5th Circuit, No. 20-40359

For Villarreal: JT Morris of the Foundation for Individual Rights and Expression

For City of Laredo: William McKamie of Taylor, Olson, Adkins, Sralla & Elam

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