Criminal defamation arrest for criticizing a police officer was unconstitutional

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Louisiana’s criminal defamation law was repealed in 2021, but even before that it had been declared unconstitutional for defamation prosecutions of public officials and, more generally, for defamation prosecutions on matters of public interest. . Judge Jane Triche Milazzo’s opinion yesterday in Rogers v. blacksmith (ED La.) held that an arrest for allegedly defaming a police officer violated the Fourth Amendment (and also allowed a First Amendment retaliation claim and a few other claims to proceed):

This case arose from the arrest of plaintiff Jerry Rogers for criminal defamation. The 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 another job. On July 14, 2017, Nanette Krentel was murdered at St. Tammany Parish and her murder remains unsolved. The actor 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 via email about his concerns. Specifically, Plaintiff criticized the lead investigator, Detective Daniel Buckner.

At some point, the STPSO became aware of the emails and began investigating their origin. Plaintiff alleges that upon discovering that Plaintiff was the author of the emails, the STPSO sought the advice of the district attorney’s office (“the DA”) and was advised that Louisiana criminal defamation law, Revised Statutes of Louisiana § 14:47, had been found unconstitutional as to public officials, and thus the charges against the plaintiff would be unconstitutional. Despite this, the Defendants arrested the Plaintiff for criminal defamation anyway.

On September 16, 2019, Canizaro was served with a warrant for Plaintiff’s arrest for violation of Louisiana Revised Statutes § 14:47. In the arrest warrant affidavit, Canizaro certified that the emails from Rogers referred to the lead investigator as “clueless,” provided false information about the investigator’s experience and ability, and made disparaging comments about him and others. The plaintiff alleges that the affidavit also falsely stated that Krentel’s family requested assistance in identifying the author of the emails. The affidavit did not include the prosecutor’s reprimand.

Plaintiff was arrested on September 16, 2019 and released on bail the same day. Ultimately, the Louisiana Department of Justice refused to prosecute the criminal charge against him….

Defendants admit that Louisiana’s criminal defamation statute has been declared unconstitutional in the context of criticism of the official conduct of public officials. garnish vs. State of. (1964) (“[W]We hold that Louisiana [criminal defamation] law, as authoritatively interpreted by the Louisiana Supreme Court, incorporates constitutionally invalid norms in the context of criticism of the official conduct of public officials”); snyder state (La. 1972) (“We consider RS ​​14:47, 48 and 49 to be unconstitutional insofar as they seek to punish public expression and publication by public officials, public figures and private individuals engaged in public affairs”). . They argue, however, that because the defamed party in this case was Deputy Detective Buckner of STPSO—who they argue is not a public official—the case law declaring the statute unconstitutional is unenforceable 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. The defendants suggest that because there is no case that directly addresses 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 to the point.” Rather, “existing precedent must have placed the statutory or constitutional issue beyond debate.” In this case, it is well established in Louisiana law both that a police officer is a public official and that Louisiana’s criminal defamation statute is unconstitutional when applied to public officials. In fact, prior to its repeal in 2021, the law was included in the Biennial Report of Unconstitutional Statutes to the Legislature in 2016, 2018, and 2020….

In addition, Plaintiff also submits evidence that the district attorney 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 district attorney’s office that it would be unconstitutional to arrest the plaintiff. STPSO Captain Gaudet also testified that the decision to arrest Complainant was made after being informed by the prosecutor’s office that the criminal defamation statute was unconstitutional.

Finally, the issuance of an order does not guarantee qualified immunity when “on an objective basis, it is obvious that no reasonably competent officer would have concluded that an order should be issued.” This Court finds that no reasonable officer could have believed that probable cause existed where the unconstitutionality of Louisiana’s criminal defamation statute applied to public officials has long been clearly established and where officers were specifically warned that arrest would be unconstitutional …

In particular, the plaintiff’s arrest warrant application omitted key information when it failed to inform the judge of the district attorney’s position that the arrest would be unconstitutional. Both the judge and Sheriff Smith found that the information provided by the district attorney should have been included in the affidavit in support of the arrest warrant. Accordingly, the fact that Defendants arrested Plaintiff pursuant to a court order 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 claims of false arrest and false imprisonment under federal and state law.

Keep in mind that a properly crafted criminal law, for example, one that is limited to knowing lies or statements made with the knowledge that they are highly likely to be false (following the “actual malice” standard applicable in civil cases), would probably be constitutional, even applied to speech about government officials. But the Louisiana law had never been revised to meet the First Amendment rules established from New York Times v. Sullivanand thus had been invalidated as unconstitutionally too broad, at least as regards speech about public officials or speech on matters of public concern.

Congratulations to attorneys William Most, Hope Phelps, and David Lanser for the win.

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