In Case You Thought It Only Happened Here

Federal Court Strips immunity from sheriff who tried to silence a critic by having him arrested.
This is a story of a Louisiana Sheriff who shares our County’s disdain for free speech.

“Sheriff Adam Christianson and District Attorney Birgit Fladager using their discretion to punish free speech is indeed standard operating procedure across the country.  Supervisor Jim DeMartini, head of the DeMartini wing of the Republican Party demands and encourages prosecution of free speech he believes to be his duty to punish.” … Former Mayor Carmen Sabatino

Free Speech
by Tim Cushing

Federal Court Strips Immunity from Sheriff Who Tried To Silence A Critic By Having Him Arrested

Late last summer, a Louisiana sheriff decided to use a long-dormant, unconstitutional criminal libel law to track down an online critic and search his home. Not that anyone had really been using the law to criminally charge people for libel, but if you don’t take a bad law off the books, sooner or later someone’s going to abuse it.

Sheriff Jerry Larpenter was the abuser. A blogger who had problems with the parish’s incestuous relationship with its insurance provider — a firm that employed Sheriff Larpenter’s wife — was the target. Larpenter apparently tired of the blog’s well-investigated criticism and found a judge compliant enough to sign a warrant for him. (The sheriff bypassed the on-duty judge and had it signed by the off-duty judge, suggesting he’s engaged in more than one inappropriately-cozy relationship with a government entity.) He went to the blogger’s house and seized five phones and two computers, one of which belonged to the blogger’s children.

The judge who signed the warrant unsurprisingly found the warrant to be valid when challenged by the blogger. A Louisiana appeals court, however saw things differently. In a unanimous ruling, the three judges declared the warrant to be unconstitutional. The ruling said the criminal defamation law could not possibly apply in this situation, as the target of the alleged libel (Tony Alford — parish insurance provider and board commissioner) was a public figure.

This opened the door for a civil rights lawsuit against the sheriff. In a decision handed down late last month, federal judge Lance M. Africk strips Sheriff Larpenter of his qualified immunity. The first sentence makes it clear just how far out of the bounds of constitutionality Sheriff Larpenter has wandered. (via the Volokh Conspiracy)

Some qualified immunity cases are hard. This case is not one of them.

Sheriff Larpenter tried to make the case about town insurance agent Tony Alford, who he maintained filed the original defamation claim. The court doesn’t care for this argument much for two reasons. First, Alford is indeed privately employed by the insurance company, but he is also the president of the local board of commissioners and the company he works for provides insurance coverage for Terrebonne Parish. It points to the Louisiana Appeals Court decision finding the warrant unconstitutional, which directly addresses the issue and finds Tony Alford to be a public figure for the purposes of defamation proceedings.

But that’s merely the procedural part of finding out whether Louisiana’s outdated criminal libel law could possibly apply. The better stuff comes later in the decision.

The Court concludes that the facts and circumstances known to Sheriff Larpenter at the time that he directed Detective Prestenbach to get the search warrant for the Andersons’ home would not have led a prudent person to believe that the items sought by the warrant constituted evidence of a crime, because no prudent person would believe that Jennifer Anderson’s statements about President Alford could constitutionally form the basis of a crime. President Alford is a public official, and Jennifer Anderson’s statements on Exposedat and the John Turner Facebook profile addressed core concerns about his fitness for public office. The complaint shows that Sheriff Larpenter was aware of the specific content of Jennifer Anderson’s statements about President Alford from the very beginnings of the investigation.

Moreover, the complaint shows that the criminal investigation into Jennifer Anderson’s statements did not uncover a scintilla of evidence to suggest that Jennifer Anderson’s speech—regardless of its veracity—was made with actual malice. As such, it is not surprising that Detective Prestenbach’s affidavit in support of the search warrant lacked any factual allegations to support an assertion of actual malice. In fact, Detective Prestenbach’s acknowledgment in the affidavit that Exposedat featured public documents to support the claims made on it suggested just the opposite: even if false, the statements were not made with actual malice.

As the Louisiana Court of Appeal concluded, Jennifer Anderson’s speech “is not a criminally actionable offense”—and any prudent person would have known so. Accepting the factual allegations in the complaint as true and construing them in the light most favorable to the Andersons, Sheriff Larpenter’s directive to Detective Prestenbach to obtain a search warrant for the Andersons’ home resulted in a violation of the Andersons’ Fourth Amendment rights, as the warrant lacked the requisite probable cause.

The sheriff tried to argue that he “reasonably relied” on the magistrate’s judgment in approving the warrant. This attempt to pluck a “good faith” defense out of a bad faith effort goes nowhere.

The Court notes that Detective Prestenbach’s affidavit for the search warrant for the Andersons’ home—a warrant he obtained at the direction of Sheriff Larpenter—failed to mention the material fact that President Alford serves as the head of the Terrebonne Parish Levee and Conservation District Board of Commissioners—and hence is a public official. Notwithstanding, a reasonably well-trained officer in Sheriff Larpenter’s position would have known that Detective Prestenbach’s affidavit would inevitably fail to establish probable cause, because longstanding U.S. Supreme Court and Louisiana Supreme Court case law precluded the application of § 14:47 to Jennifer Anderson’s statements. “[A]s an officer charged with enforcing Louisiana law,” Sheriff Larpenter “can be presumed to know the law” of Louisiana, including the law’s well-established constitutional reach. Rykers v. Alford, 832 F.2d 895, 898 (5th Cir. 1987). More to the point, “Police officers can be expected to have a modicum of knowledge regarding the fundamental rights of citizens.” See also Saldana v. Garza, 684 F.2d 1159, 1165 (5th Cir. 1982). In this instance, a judge’s issuance and affirmance of the search warrant for the Andersons’ home will not shield Sheriff Larpenter from potential civil liability for his conduct.

The sheriff will also have to answer to First Amendment retaliation claims. Larpenter argued the injury suffered by the blogger was minimal, perhaps even nonexistent. Again, the court finds little it likes about the sheriff’s spin.

Sheriff Larpenter attempts to minimize Jennifer Anderson’s injury as a result of his actions. In his view, because the Andersons got their property back and because the property was never searched by law enforcement—the Andersons’ computers and cellphones were impounded and sealed after their seizure while the Andersons challenged the legality of the search warrant—Jennifer Anderson did not suffer an injury sufficient to chill a person of ordinary firmness. However, Sheriff Larpenter is missing the bigger picture: the injury was inflicted at the time of the execution of the search warrant.

By searching the Andersons’ home and seizing the Andersons’ property in the first place, Sheriff Larpenter sent a message to Jennifer Anderson—a message that he also allegedly told a news outlet and broadcast to his community: “If you’re gonna lie about me and make it under a fictitious name, I’m gonna come after you.” To the Court, that message—if you speak ill of the sheriff of your parish, then the sheriff will direct his law enforcement resources toward forcibly entering your home and taking your belongings under the guise of a criminal investigation—is inseparable from the injury and would certainly chill anyone of ordinary firmness from engaging in similar constitutionally protected speech in the future.

Larpenter now must face this legal action on his own, with no shield between him and the allegations. The facts of the case are pretty damning and Larpenter’s best bet now is to find some way to settle before the monetary pain gets worse.

Paying attention Adam?

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