By Britt Houston Lindsey
Chief Appellate Prosecutor in Taylor County
The doctrine of qualified immunity dates back to the Warren Court and the 1967 U.S. Supreme Court case of Pierson v. Ray.[1] In that Civil Rights–era case, 15 Episcopal Priests (three of whom were black) who were taking part in the 1961 Mississippi Freedom Rides had stopped at a bus station before departing for home. They entered a coffee shop for lunch and were asked to leave by police. When they refused, all 15 priests were arrested for breach of the peace under a Mississippi statute that “makes guilty of a misdemeanor anyone who congregates with others in a public place under circumstances such that a breach of the peace may be occasioned thereby, and refuses to move on when ordered to do so by a police officer.” The case was later dismissed by a Mississippi judge on directed verdict, and the priests sued the officers under 42 U.S.C. §1983 for false arrest and imprisonment for exercising their civil rights.
The case eventually reached the U.S. Supreme Court, which held in an 8–1 opinion that although police are not granted absolute and unqualified immunity from damages, they may have qualified immunity “from liability for acting under a statute that [they] reasonably believed to be valid but that was later held unconstitutional, on its face or as applied,”[2] similar to the principle that “a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved.”[3] As the Court put it, “A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted[4] in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.”[5]
More than 50 years later, the doctrine of qualified immunity has come under scrutiny from all sides of the political spectrum. The most recent example is a case from Texas and the U.S. Fifth Circuit Court of Appeals, which dealt with qualified immunity of not only police but potentially prosecutors for activity outside the courtroom.
Background
Priscilla Villarreal (who writes under the pen name “Lagordiloca,” which roughly translates from Spanish to the Crazy Fat Lady) is a Laredo citizen-journalist with a Facebook audience of more than 100,000 followers, frequently posting critically on the activities of local law enforcement, the district attorney, and other local officials. On April 11, 2017, she published the name and occupation of a U.S. Border Patrol employee who had jumped from an overpass in an apparent suicide; the information had been corroborated through a back channel by Laredo Police Department (LPD) Officer Barbara Goodman. On May 6, Villarreal posted a live feed of a fatal traffic wreck, including the location and the last name of the person killed. The information was again corroborated by Officer Goodman, again while the incident was still being investigated.
An LPD investigator received a tip from colleagues that Officer Goodman was secretly communicating with Villarreal and noted that some of Villarreal’s content consisted of information not yet made public. The investigator assigned LPD Officer Juan Ruiz to investigate, and that officer prepared grand jury subpoenas for the phone records of Officer Goodman, her husband, and Priscilla Villarreal. The subpoenas were approved by an assistant district attorney. The records revealed that Officer Goodman communicated with Villarreal frequently, about 72 times a month, and that the communications coincided with law enforcement activities. Warrants were obtained for Officer Goodman’s cell phones, and she was suspended for 20 days.
Officer Goodman’s cell phones showed two conversations with Villarreal. In the first, Villarreal texted Goodman about the April suicide, asking the man’s name and age and whether he was a U.S. Customs and Border Protection employee. In the second conversation, Villarreal sent dozens of text messages asking about the details of the fatal car collision in May, and the precise details that Villarreal asked about appeared in her Facebook posts.
Officer Ruiz prepared two probable cause affidavits to arrest Priscilla Villarreal, which were approved by the same assistant district attorney and submitted to a justice of the peace. The judge issued two warrants for Villarreal’s arrest for misuse of official information under Texas Penal Code §39.06(c), which states:
“(c) A person commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he solicits or receives from a public servant information that:
(1) the public servant has access to by means of his office or employment; and
(2) has not been made public.”
Villarreal petitioned the district court for a pretrial writ of habeas corpus. The court granted the writ and held §39.06(c) unconstitutionally vague. The State did not appeal the ruling.
After the dismissal of the criminal charge, Villarreal filed a 42 U.S.C. §1983 lawsuit alleging the deprivation of her civil rights, naming as defendants various LPD officers, Webb County prosecutors, Webb County, and the City of Laredo. The suit alleged a pattern of harassment and retaliation by various local officials in violation of her First, Fourth, and Fourteenth Amendment rights, which culminated in her arrest. She sought damages as well as injunctive and declaratory relief. The defendants filed to dismiss all her claims under Federal Rule of Civil Procedure 12(b)(6). The named officials argued qualified immunity and failure to state a claim, and the county and city sought dismissal under Monell.[6]
The federal district court granted the motion and dismissed all claims, but on August 12, 2022, a 2–1 panel opinion of the U.S. Fifth Circuit Court of Appeals reversed the judgment of dismissal against the officials as to Villarreal’s First, Fourth, and Fourteenth Amendments claims as well as her civil conspiracy claims, finding that qualified immunity did not apply.[7] The defendants sought an en banc rehearing by all 16 judges of the Fifth Circuit, and it was granted. Many, many press and media organizations and outlets filed amicus briefs in support of Villarreal.
As the Fifth Circuit judges saw it
On January 23, 2024, the en banc Court issued a 77-page opinion, including four written dissents.[8] The majority opinion, authored by Circuit Judge Edith Jones, held that the officials were all entitled to qualified immunity.
Justice Jones observed that Villarreal’s First Amendment free speech claim and her Fourth Amendment arrest claim were inextricably linked, and that overcoming qualified immunity for money damages required a showing that a) each defendant violated a constitutional right, and b) the right at issue was “clearly established” at the time of the alleged misconduct,[9] meaning that “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”[10] The Court found that Villarreal failed to meet either prong: “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 §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.” In a footnote the Court observed that for the sake of argument it was counting the assistant district attorneys here among the defendant officers seeking qualified immunity despite being prosecutors who typically would have absolute prosecutorial immunity. “Participating in the issuance of the warrants here was arguably outside their absolute prosecutorial immunity,” the Court wrote, and it cited a federal law treatise for the proposition that “prosecutorial immunity extends only to prosecutorial functions related to courtroom advocacy.”[11]
Qualified immunity protects law enforcement officials who “reasonably but mistakenly conclude that probable cause is present,” and Judge Jones found that the officials’ beliefs here that they had probable cause was reasonable for many reasons. The Texas Public Information Act (PIA) protects certain information from public disclosure for confidentiality or crime investigation, and it imposes criminal penalties for improper disclosure. The U.S. Supreme Court has long held that statutes such as §39.06 permissibly shield from public disclosure certain sensitive “information that has not been made public.” The Court cited several opinions from the Office of the Texas Attorney General protecting both criminal investigations and individual privacy in law enforcement situations that involve suicide or vehicular wrecks, including a 2022 opinion stating that “surviving family members can have a privacy interest in information relating to their deceased relatives.”
Villarreal did not dispute this but rather argued that she did not solicit the information with “intent to obtain a benefit,” that the information was not “nonpublic,” and that the statute was obviously unconstitutional as applied to her conduct as a citizen-journalist. The Court noted that Texas law defines “benefit” broadly as “anything reasonably regarded as economic gain or advantage,” and found that going through Officer Goodman rather than waiting for an official report or going through PIA procedures “bolster[ed] her first-to-report reputation.” The Court held that Villarreal’s own petition admitted such benefits: She “boasts over 100,000 Facebook followers and a well-cultivated reputation, which has engendered publicity in the New York Times, free meals ‘from appreciative readers,’ ‘fees for promoting a local business,’ and ‘donations for new equipment necessary to her citizen journalism efforts.’” This did not end the analysis, however; Villarreal argued that even had probable cause existed, she was still unlawfully arrested because §39.06(c) “obviously” violates the First Amendment as applied to her. The majority found that Villarreal’s argument as regards “obvious unconstitutionality” failed on three grounds:
1) no final decision of a state court had held the law unconstitutional at the time of the arrest; accordingly, even if the law were ultimately held to violate the First Amendment as applied to Villarreal’s conduct, probable cause would continue to shield the officers from liability;
2) the U.S. Supreme Court and lower courts have not relevantly defined the contours of an “obviously unconstitutional” statute, and
3) the independent intermediary rule affords qualified immunity to the officers because a neutral magistrate issued the warrants for Villarreal’s arrest.
The majority addressed each in turn. First, at the time of Villarreal’s arrest, no state court had held that §39.06(c) was unconstitutional, and law enforcement officers aren’t “expected to predict the future course of constitutional law.”[12] Moreover, the state habeas court had not found the statute’s application to Villarreal violated the First Amendment but rather that it was unconstitutionally vague, and several other prosecutions had been brought under §39.06(b), prohibiting a public servant from disclosing nonpublic information.[13]
Secondly, the majority held that §39.06(c) is not grossly and flagrantly unconstitutional as applied to Villarreal. The court observed that although officers are almost always entitled to qualified immunity, even when enforcing an unconstitutional law, Michigan v. DeFillipo held that there was “a possible exception for ‘a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.’”[14] That exception did not apply here; because there was no judicial indication that the statute was unconstitutional, the officials could rely on the presumptively valid law.
Lastly, a neutral magistrate issued the warrants for Villarreal’s arrest, which shielded the officers under the independent intermediary rule. Villarreal had argued that her claim came under the exception to the intermediary rule that arises “when ‘it is obvious that no reasonably competent officer would have concluded that a warrant should issue.’”[15] The Court observed that this exception generally arises when the intermediary’s decision making is tainted by malicious withholding of information, misdirecting, or mistake of law, none of which applied here.
Although the majority found the above was enough to justify the officials’ qualified immunity claims, it went on to address the second step of the analysis, whether the asserted rights were “clearly established” at the time of the arrest. The Court noted that this assessment required Villarreal to show binding precedent that “‘placed the statutory or constitutional question beyond debate,’ so that ‘every reasonable official would have understood that what he is doing violates that right.’ … In other words, ‘police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.’” Because Villarreal cited no cases to show a “sufficiently clear foundation in then-existing precedent” that it is “settled law,” the right is not clearly established for qualified immunity purposes. The majority distinguished the cases she did cite as involving the publication of information already released to the public, namely N.Y. Times Co. v. United States, vacating an injunction against the release of the Pentagon Papers, and Fla. Star v. B.J.F., which involved an incident report being inadvertently placed in the pressroom by the government. These cases were different because “[a] right to publish information that is no longer within the government’s control is different from what Villarreal did: She solicited and received nonpublic information from a public official for personal gain.”[16]
Four dissents
Circuit Judge Graves wrote the first of the four written dissents, in which he was joined by Judges Elrod, Higginson, Willet, Ho, and Douglas. Judge Graves joined in Judge Ho’s position that the charges against Villarreal were obviously unconstitutional in light of the right of each person to ask questions of the government, but he wished to stress that they were also obviously unconstitutional in light of the right of journalists to gather news. Judge Graves noted several historical examples of American society benefitting when journalists acquired nonpublic information from unofficial sources, giving two famous examples of when American journalist Seymour Hersh learned of the Mai Lai Massacre from a backchannel Pentagon source in 1969 and when he reported in 2004 on prisoner abuse in Abu Ghraib prison after learning of it from a nonpublic military report. He further points out that the U.S. Supreme Court itself denied the government’s efforts to prevent a journalist’s disclosure of classified war documents provided by an unauthorized source in New York Times Co. v. United States,[17] namely the Pentagon Papers, which changed the course of American involvement in the Vietnam War. (The majority distinguished the Pentagon Papers and Abu Ghraib examples because they involved unsolicited government information already in the public’s hands.) In light of these contributions, Judge Graves found the majority opinion unfair to journalists, unfortunate for a functioning democracy, and unconstitutional because “[a] free press cannot be made solely upon the sufferance of government to supply it with information.”
Circuit Judge Higginson also dissented, joined by Judges Elrod, Higginson, Willett, Ho, Oldham, and Douglas. Judge Higginson would remand to the district court for discovery and fact-assessment to test whether the Laredo officials arrested Villarreal in retaliation for her news reporting, arguing that the majority erred in failing to credit Villarreal’s claims as true. He cites the example of Thomas Paine as an example of the First Amendment’s guarantee of the right of “engaged citizen-journalists, like Paine, to interrogate the government,” and quoted the late Judge Laurence Silberman’s warning that “the most heinous act in which a democratic government can engage is to use its law enforcement machinery for political ends.”[18] He argued that Villarreal alleged exactly this, that the Laredo officials “arrested her because her newsgathering and reporting activities annoyed them. To silence her as a critic and gadfly, she claims, they arrested her.” Judge Higginson said that Villarreal had plausibly alleged that the officers who arrested her lacked probable cause and misled the magistrate who issued the warrants, or, alternatively, even if they had probable cause, that U.S. Supreme Court precedent on how to proceed in a retaliatory arrest claim was not followed. In Nieves v. Bartlett,[19] the Court held that probable cause would generally defeat a First Amendment retaliatory arrest claim, except in certain narrow circumstances where officers would typically exercise their discretion not to make an arrest. That’s what Judge Higginson said that Villarreal alleged here: Because her arrest was atypical, the district court erred in dismissing her claim.
The majority opinion responded to Judge Higginson’s argument by pointing out that Nieves requires Villarreal to “present objective evidence that [s]he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech” were not: “Villarreal did not provide even one example of an individual similarly situated to her in all relevant respects who was not arrested for his conduct.”
Circuit Judge Willett also dissented, joined by Judges Elrod, Graves, Higginson, Ho, and Douglas. Judge Willett has long been a critic of the qualified immunity doctrine, referring to its application in a 2018 case as a part of the “kudzu-like[20] creep of the modern immunity regime” and saying, “To some observers, qualified immunity smacks of unqualified impunity.”[21] Judge Willett in that case expressed grave doubts about the “clearly established law” prong of qualified-immunity analysis, in part because there was no agreement in the courts about what degree of factual similarity must exist between the case at bar and precedent, which he says had the Catch-22–like effect of allowing courts to sidestep the question of what is and is not constitutional behavior and leaving important constitutional questions unanswered. As he put it, the clearly established law prong allows “public officials [to] duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”
Unsurprisingly Judge Willett’s blistering dissent in this case focuses on the application of the qualified immunity doctrine. He began by noting that one of the justifications for the qualified immunity doctrine is to protect law enforcement officers who need “breathing room” to make “split second decisions,” which was absent here. He scorched the majority for overlooking the “premeditated” nature of the arrest and prosecution, saying that those involved spent “several months plotting Villarreal’s takedown, dusting off and weaponizing a dormant Texas statute never successfully wielded in the statute’s near quarter-century of existence.” He argued that under the majority’s view that “encyclopedic jurisprudential knowledge is imputed to Villarreal, but the government agents targeting her are free to plead (or feign) ignorance of bedrock constitutional guarantees.” Observing that just as officials can be liable for enforcing an obviously unconstitutional statute,[22] they can equally be liable for enforcing a statute in an unconstitutional way, and he argued that the majority fails to consider the second possibility, which “does not account for the possibility—indeed, the real-world certainty—that government officials can wield facially constitutional statutes as blunt cudgels to silence speech.” He took the majority to task for allowing the officials to claim immunity because they were acting pursuant to state statute, saying that this goes against the plain text of §1983. In other words, the Laredo officials were so clearly in the wrong, so far as Judge Willett was concerned, it did not matter if they were following a facially constitutional statute duly enacted by the legislature.
Judge Ho, who wrote the majority opinion for the original panel, wrote an impassioned dissent focusing on the First Amendment aspect, joined by Judges Elrod, Graves, Higginson, Willett, and Douglas. Judge Ho observed that the Constitution doesn’t mean much if you can ask questions only the authorities allow, and he characterized what’s at stake in this case as no less than the right to speak and inquire freely. He dismissed the Laredo officials’ claim that Texas Penal Code §39.06(c) justifies their actions on both Supremacy Clause grounds and because he does not believe that the defendants showed that Villarreal violated §39.06(c) in the first place, because they failed to make the additional, necessary statutory showing under §39.06(d) that the information was prohibited from disclosure under the Texas Public Information Act. Like Judge Willett, Judge Ho believed this was an easy case for denying qualified immunity, as it should have been obvious to the defendants that they were violating Villarreal’s First Amendment rights and retaliating when they arrested and jailed her for asking a police officer for information. He ended the dissent with a pithy Russian joke about a child coming home from school and telling his father, “Daddy, we had a civics lesson today, and the teacher told us about the Constitution. He told us that we have a Constitution, just like in America. And he told us that our Constitution guarantees freedom of speech, just like in America.” The dad responds: “Well, sure. But the difference is that the American Constitution also guarantees freedom after the speech.”[23]
The takeaway: What’s this mean to the rest of us?
It’s worth mentioning again that the Fifth Circuit wasn’t deciding here whether this was a Constitutional application of Texas Penal Code §39.06(c), whether Priscilla Villarreal could be held criminally liable, or whether the Laredo officials “did the right thing.” The charges against Villarreal were found unconstitutional in the trial court and went no further. The issue before the Court was solely whether the officials should face liability for money damages for depriving Villarreal of her federal rights. For what it’s worth, I believe both the judges in the majority and the dissents were acting out of fidelity to the law and respect for the gravity of the First Amendment principles involved.
It’s also worth mentioning that some information in an investigation really does need to be kept private. While Mayor of San Francisco, Dianne Feinstein nearly derailed the “Night Stalker” serial killer investigation by announcing in a press conference that police had made a ballistics match to the gun used in the killings, had found shoe prints left by the killer, and knew what brand and size he wore. (In her defense, she had not been told that information was not public.) There was immediate concern that the killer would dispose of both the gun and the shoes, leading to the loss of critical evidence. According to a biographer after the press conference, Richard Ramirez walked to the middle of the Golden Gate Bridge and “dropped the size 111⁄2 Avia sneakers into the water.”[24]
Something that doesn’t quite sit well in the dissents is the absolute certainty expressed that the police and prosecution should know when enforcing a validly enacted statute of the state legislature amounts to an “obvious” unconstitutionality—I don’t mean under the facts of this particular case, but as a more general principle. The majority held that qualified immunity applied here in part because the federal courts “do not charge law enforcement officers with predicting the constitutionality of statutes. … Police officers are not ‘expected to predict the future course of constitutional law.’” The dissenting judges find that justification intolerable, for much the same reason Judge Willett articulated in the previous Zadeh v. Robinson dissent: It allows officials to violate constitutional guarantees so long as they are the first to do so.
My concern here is similar to the one I voiced in my November–December 2022 column about the Jefferson v. State case decided by the Court of Criminal Appeals,[25] in which the Court held that defense counsel may have been ineffective because he should have known that the high court would not share the view of an unpublished case of the courts of appeal: “An attorney’s failure to raise a claim is not deficient if the law is unsettled, but an unpublished court-of-appeals opinion in a criminal case does not constitute precedent, so it cannot create an uncertainty when the law is otherwise clear.”[26] The problem is that what is “otherwise clear” to the reviewing court long after the fact may be anything but at the trial level.[27] Generally, we don’t second-guess[28] defense counsel in hindsight when a proposition of law is not clearly settled, or when it’s one on which reasonable minds (or judges) may disagree. As the late Judge Cathy Cochran of the Court of Criminal Appeals put it in another case,
“the existence of an adversary system demonstrates that there always are lawyers who will disagree on almost any issue. Since law is not an exact science, no level of skill or excellence exists at which all differences of opinion or doubts will be removed from the minds of lawyers and judges. Thus, when a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.”[29]
And, “the standard used to judge his past conduct is all too frequently a subsequent judicial decision that has clarified or altered the law under which the attorney had to make his original determination. Those who fail to accurately predict the future course of the law are accused of having been incompetent for following the law that existed—or at least was unsettled—at the time the decision had to be made. But a bar card does not come with a crystal ball attached.”[30]
Again, I am neither defending not condemning the Laredo officials here (or for that matter, defending Mississippi police arresting priests doing nothing at all wrong), but rather expressing concerns about where the road may lead. It’s troubling when either defense counsel or law enforcement is potentially tasked with knowing how a court will rule on an issue because a later reviewing court could declare the law “clear” or “obvious” after the fact. There’s also the matter of recent legislative mandates seeking to limit prosecutorial discretion and subjecting district attorneys to removal for not prosecuting duly enacted statutes, so you potentially have legislators seeking to discipline prosecutors for not enforcing provisions of the Penal Code, and judges who would impose civil liability when they do. “Second-guessing the legislature,” as the Tenth Circuit mandated in Lawrence v. Reed,[31] is potentially risky business.
Villarreal has already expressed an intention to seek review in the U.S. Supreme Court, so it’s possible we haven’t heard the last on this matter. Fortunately for most of us, considering whether we will have to rely on the protection of qualified immunity will only ever be a question in the abstract, but it’s worth considering: What do prosecutors do when we face potential consequences for both enforcing and not enforcing a law? We do the right thing. I’m not saying the prosecutors and officers here did the right thing; I’m saying, “You do the right thing.” Enforce the law as fairly and wisely as you can, and you can look yourself in the mirror no matter the outcome: “Just that you do the right thing. The rest doesn’t matter. Cold or warm. Tired or well-rested. Despised or honored.”[32]
Endnotes
[1] 386 U.S. 547 (1967).
[2] Id. at 555.
[3] Id. (citing Restatement, Second, Torts §121 (1965); 1 Harper & James, The Law of Torts §3.18, at 277-278 (1956); Ward v. Fidelity & Deposit Co. of Maryland, 179 F.2d 327 (C. A. 8th Cir. 1950).
[4] Mulct (v.), to punish by a fine. https://www.merriam-webster.com/dictionary/mulct (retrieved Feb 21. 2024).
[5] Id.
[6] The U.S. Supreme Court held in Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-694 (1978) that a government entity (such as the city and county here) is not liable under §1983 under a theory of respondeat superior, i.e., solely because it employs a tortfeasor. Rather, it must be shown that the entity’s “own violations” of policy or custom were behind the federal violation. Monell, 436 U.S. at 694.
[7] Villarreal v. City of Laredo, 44 F.4th 363 (5th Cir. 2022) (panel op.).
[8] Villarreal v. City of Laredo, No. 20-40359, __ F.4th __, 2024 U.S. App. LEXIS 1533 (5th Cir. 2024) (en banc).
[9] Id. at *12 (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
[10] Id. at *12 (quoting Anderson v. Creighton, 583 U.S. 635, 639 (1987)).
[11] Id. at *13, fn. 9 (quoting Richard H. Fallon Jr., et al., Hart and Wechsler’s The Federal Courts and the Federal System 1044 (7th ed. 2015)).
[12] Id. at *25 (citing Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 1701, 143 L.Ed.2d 818 (1999); Procunier v. Navarette, 434 U.S. 555, 562, 98 S.Ct. 855, 860, 55 L.Ed.2d 24 (1978)).
[13] Id. at * 26 (citing Patel v. Trevino, No. 01-20-00445-CV, 2022 Tex. App. LEXIS 6494, 2022 WL 3720135 (Tex. App.—Houston Aug. 30, 2022); Tidwell v. State, No. 08-11-00322-CR, 2013 Tex. App. LEXIS 14647, 2013 WL 6405498 (Tex. App.—El Paso Dec. 4, 2013); Reyna v. State, No. 13-02-00499-CR, 2006 Tex. App. LEXIS 75, 2006 WL 20772 (Tex. App.—Corpus Christi Jan. 5, 2006)).
[14] 443 U.S. 31, 38, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979).
[15] Villarreal at *30 (citing Messerschmidt v. Millender, 565 U.S. 535, 547, 132 S.Ct.1235, 1245, 182 L.Ed.2d 47 (2012) (emphasis added); Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)).
[16] Villarreal at *36 (emphasis in original).
[17] 403 U.S. 713 (1971).
[18] Judge Silberman’s speech was given while a Deputy Attorney General under President Gerald Ford, describing his experience in the mid-1970s looking into the secret files of FBI Director J. Edgar Hoover: “Accompanied by only one FBI official, I read virtually all these files in three weekends. It was the single worst experience of my long governmental service. I intend to take to my grave nasty bits of information on various political figures, some still active. As bad as the dirt collection business was, perhaps even worse was the evidence that [Hoover] had allowed—even offered—the bureau to be used by presidents for nakedly political purposes. I have always thought that the most heinous act in which a democratic government can engage is to use its law enforcement machinery for political ends.”
[19] Nieves v. Bartlett, 587 U.S. ___ 139 S.Ct. 1715 (2019), 204 L.Ed.2d 1715.
[20] Fun aside here, kudzu is one of Judge Willett’s go-to metaphors. See, e.g. El-Ali v. State, 428 S.W.3d 824, 827 (Tex. 2014) (Willett, J. concurring) (civil forfeiture law “has spread with kudzu-like ferocity in recent years”); In re Reece, 341 S.W.3d 360, 389 (Tex. 2011) (Willett, J. dissenting) (“[d]espite the jurisdictional thicket that has sprouted kudzu-like around us, the path out is rather linear”); Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69, 103 (Tex. 2015) (Willett, J, concurring) (“spurring the House Committee on Government Efficiency and Reform in 2013 to lament the kudzu-like spread of licensure”); Klein v. Hernandez, 315 S.W.3d 1, 11 (Tex. 2010) (Willett, J. concurring) (extratextual analysis “invites jurisprudential kudzu”).
[21] Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J. concurring).
[22] Id. at *63 ((Willett, J. dissenting) (citing Lawrence v. Reed, 406 F.3d 1224, 1233 (10th Cir. 2005) (“Some statutes are so obviously unconstitutional that we will require officials to second-guess the legislature and refuse to enforce the unconstitutional statute—or face a suit for damages if they don’t”).
[23] Id. at *99 (Ho, J. dissenting).
[24] Carlo, Phillip: Night Stalker: The Life and Crimes of Richard Ramirez, (Pinnacle, 1997).
[25] Online at www.tdcaa.com/journal/jefferson-v-state-presents-problems-for-the-state-and-defense-counsel-alike.
[26] Jefferson v. State, 663 S.W.3d 758, 762 (Tex. Crim. App. 2022).
[27] The Court’s opinion there also contradicts the court’s case law in place at the time of trial; Ex Parte Rhoemer, 215 S.W.3d 887 (Tex. Crim. App. 2007), which held that defense counsel is not ineffective when he relies on unpublished case law.
[28] “It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.” Strickland v. Washington, 466 U.S. 668, 689 (1984).
[29] Ex parte Chandler, 182 S.W.3d 350, 354 (Tex. Crim. App. 2005).
[30] Id. at 359.
[31] 406 F.3d 1224, 1233 (10th Cir. 2005).
[32] Marcus Aurelius, Meditations 6.2.