Judge James C. Ho has raised serious concerns about what he characterized as the status of freedom of speech protections for those living in the Fifth Circuit’s jurisdiction.
“In case after case, citizens present compelling allegations that officials are abusing government power to reward allies and punish adversaries,” he wrote in the six-page dissent from a denial of rehearing en banc. “And we stand by and let it happen.”
The dissent was issued in Mayfield et al. v. Buter Snow et al., a case out of Mississippi where Judge Ho had joined with Chief Judge Priscilla Richman and Judge Kurt D. Engelhardt in the panel’s July 27 per curiam opinion that affirmed dismissal of the lawsuit.
The lawsuit stems from the arrest of Tea Party activist Mark Mayfield, who was accused of being part of a scheme to take a picture of former Sen. Thad Cochran’s wife, Rose Cochran, while she was in the nursing home.
Mayfield, whose mother lived in the same nursing home, declined to take the photo himself but did tell others involved what room Rose Cochran was in.
“Perhaps he shouldn’t have provided the information he was asked,” Judge Ho wrote. “But did he deserve to be arrested, prosecuted, and imprisoned? Did he deserve to be humiliated, even driven to suicide — and his family destroyed? It’s unfathomable that law enforcement officials would’ve devoted scarce police resources to pursuing Mayfield, but for one thing: The people in power disliked his political views.”
Mayfield committed suicide about one month after his arrest. His widow and sons filed suit, alleging Mayfield was subjected to politically motivated prosecution in violation of his constitutional rights, which caused his law practice to close, humiliated him and led to his suicide.
Judge Ho was joined by Judges Jerry E. Smith and Jennifer Walker Elrod in voting in favor of rehearing en banc, according to Wednesday’s opinion. Chief Judge Richman and Judges Edith H. Jones, Carl E. Stewart, Catharina Haynes, James E. Graves Jr., Stephen A. Higginson, Don R. Willett, Stuart Kyle Duncan, Engelhardt, Andrew S. Oldham and Dana M. Douglas voted against rehearing en banc.
Judges Leslie H. Southwick and Cory T. Wilson did not participate in the consideration.
In Wednesday’s dissent, Judge Ho pointed to two cases the court decided in 2022 to illustrate his point: Villarreal v. City of Laredo and Gonzalez v. Trevino.
“At first blush, Mark Mayfield, Priscilla Villarreal, and Sylvia Gonzalez don’t appear to have a lot in common. Mayfield was a Tea Party activist who supported a primary challenger to a U.S. Senator. Villarreal writes stories on Facebook ‘in profanity-laced Spanglish’ criticizing local police and prosecutors in a sprawling border city. Gonzalez is a retiree who wanted to give back to her small bedroom community by running for local office,” he wrote. “If they’d ever met, they likely would’ve disagreed on countless issues.”
“But they share at least one thing in common: They all disagreed with those in power. And they all believe that they were punished for it — that they were charged, arrested, jailed, and humiliated for the crime of criticizing those in office.”
Villarreal, a citizen journalist, is asking the Fifth Circuit to revive her lawsuit against the city of Laredo, alleging she was unlawfully arrested on a charge of violating Texas Penal Code § 39.06(c) and (d), which forbids soliciting information “with intent to obtain a benefit.”
A trial court determined immunity barred her lawsuit.
In an Aug. 12, 2022 opinion, the Fifth Circuit sided with Villarreal 2-1, holding she had been “put in jail for asking a police officer a question.”
Chief Judge Richman dissented from that panel.
In October, the court granted en banc review and vacated the opinion that had revived Villarreal’s lawsuit. Oral arguments were heard in January, and an opinion has not yet been issued.
In the Gonzalez case, the Fifth Circuit issued another 2-1 ruling in July 2022, holding that Gonzalez, a former city councilwoman in Castle Hills, couldn’t bring suit against the city’s police chief and mayor because she didn’t establish a “violation of her constitutional rights.”
Gonzalez alleged she was arrested and jailed in retaliation for circulating a petition to remove the city manager. Judge Oldham authored a lengthy dissent from the panel’s ruling, characterizing the city officials who investigated Gonzalez as “conspirators” and said he believed Gonzalez had “alleged numerous facts to show that the conspirators arrested her for petitioning the government.”
“This is not a case where we must guess about the conspirators’ motives,” Judge Oldham wrote. “It’s also not a case where we must rely on the allegations in the complaint standing alone. Rather, the face of the arrest affidavit itself lists Sylvia’s viewpoints as relevant facts warranting her arrest.”
The other two panel members — Judges Engelhardt and Rhesa H. Barksdale — addressed Judge Oldham’s dissent, writing that he made a “forceful case for why the Constitution ought to provide a claim here, particularly given that Gonzalez’s arrest was allegedly in response to her exercise of her right to petition.”
“Were we writing on a blank slate, we may well agree with our distinguished colleague,” the majority wrote. “But we remain bound by what we consider the better readings of the relevant Supreme Court precedent.”
On Feb. 22 the Fifth Circuit denied rehearing en banc in the case, and on April 20 Gonzalez filed a petition for writ of certiorari with the U.S. Supreme Court. The case will be distributed to the justices for consideration at a Sept. 26 conference, according to the docket.
The allegations Mayfield’s family brought in the lawsuit “should’ve been sufficient to state a First Amendment retaliation claim,” Judge Ho wrote, and so the case should have gone to trial.
“Yet our court’s precedents foreclose that result,” he wrote. “In Gonzalez, we held that a plaintiff may not proceed on a First Amendment retaliation claim unless he presents objective ‘comparator’ evidence that identifies other individuals who engaged in similar conduct yet were not arrested. Our decision in Gonzalez significantly under-protects freedom of speech.”
The court’s ruling in Mayfield, he wrote, reflects that lack of protection. Mayfield’s family had testimony that public officials abused the criminal justice system to punish Cochran’s political opponents.
“But they did so by using obscure theories of law that made it effectively impossible to assemble evidence of comparable scenarios. (Exactly how is Mayfield’s family supposed to track down other scenarios where a citizen provided similar information to another person, but was not arrested — as Gonzalez requires?),” he wrote. “As a result, Gonzalez ties our hands and requires us to deny relief — no matter how obvious it is that these actions would never have been taken against a citizen who held views favored by those in power.”
Judge Ho’s dissent comes less than two weeks after a police raid on a newspaper office in Marion, Kansas, made national news. The officers seized computers, files and cellphones of journalists and according to a search warrant did so based on the belief that those items were used by reporters to commit identity theft.
It has been widely reported that the raid came after reporters used a public database to investigate a tip that a local restaurant owner had been convicted of drunken driving and was driving without a license.
The case number is 21-60733.