CA5 (en banc): Arrest of “citizen journalist” under a statute never declared unconstitutional was with QI

“Villarreal fails to satisfy her burden on either [qualified immunity] prong. This is not a case about a ‘citizen journalist just asking questions.’ That clever but misleading phrase cannot relieve this court of our obligation to evaluate Villarreal’s conduct against the standards of Texas law. Villarreal was arrested on the defendants’ reasonable belief, confirmed by a neutral magistrate, that probable cause existed based on her conduct in violation of a Texas criminal statute that had not been declared unconstitutional. We need not speculate whether section 39.06(c) allegedly violates the First Amendment as applied to citizen journalists who solicit and receive nonpublic information through unofficial channels. No controlling precedent gave the defendants fair notice that their conduct, or this statute, violates the Constitution facially or as applied to Villarreal. Each defendant is entitled to qualified immunity from suit.” Villarreal v. City of Laredo, 2024 U.S. App. LEXIS 1533 (5th Cir. Jan. 23, 2024) (en banc, 9-7).

Officers had probable cause to arrest plaintiff as a shoplifter outside a store in Manhattan where he “indisputably” matched the description given by the shopkeeper. Harry v. City of N.Y., 2024 U.S. App. LEXIS 1618 (2d Cir. Jan. 24, 2024).*

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