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

from the his-own-worst-enemy dept

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 [PDF] 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 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, "[p]olice 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.


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  • icon
    That One Guy (profile), 8 Aug 2017 @ 1:49am

    A refreshing perspective

    *"[A]s an officer charged with enforcing Louisiana law," Sheriff Larpenter "can be presumed to know the law" ... More to the point, "[p]olice officers can be expected to have a modicum of knowledge regarding the fundamental rights of citizens."

    Now if only more courts were willing to apply such a standard, things would be ever so much better.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Aug 2017 @ 4:37am

      Re: A refreshing perspective

      Now if only more courts were willing to apply such a standard, things would be ever so much better.

      The courts seem inconsistent on that point. It kind of looks like "Police can be presumed to know the law, except when it works against the government. Then not so much."

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Aug 2017 @ 6:59am

      Re: A refreshing perspective

      And if only when your immunity were stripped you could be arrested and tried for what you did as if you had not been a police officer at all. Cop should be charged with things like breaking and entering, theft, and perhaps assault with a deadly weapon if he brandished his gun during the unconstitutional search.

      reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 9 Aug 2017 @ 5:21am

        Re: Re: A refreshing perspective

        Qualified immunity does not provide and never has provided any shield against criminal prosecution. It only protects against civil lawsuits.

        What keeps corrupt cops like Sheriff Larpenter out of jail is that the people in charge of decided whether to arrest him for his violations of the law are his employees, and they don't want to be fired.

        reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 8 Aug 2017 @ 4:29am

    The next question is, what happens to the judge who signed the search warrant. Can Anderson go after him as well?

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 8 Aug 2017 @ 5:06am

      Re:

      Probably not.

      The Judge was presented with material supporting the warrant & didn't ask many questions. The law allegedly has punishments for those who lie to courts, so they assume everything was accurate.

      reply to this | link to this | view in chronology ]

      • icon
        Oblate (profile), 8 Aug 2017 @ 6:34am

        Re: Re:

        So any chance of Sheriff Larpenter or Detective Prestenbach facing charges for presenting false information to the court? Judges usually don't like it when they're lied to.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Aug 2017 @ 10:14am

        Re: Re:

        The Judge was presented with material supporting the warrant & didn't ask many questions.

        1. Tony Alford was already a public figure at the time the warrant was signed.
        2. It is the judge's duty to ask questions if needed.
        3. The same judge who signed the warrant still found it to be valid even when presented with additional information.
        4. A higher court had no problem finding otherwise.

        Sounds to me more like the judge knew what he was doing all along but was confident that he would immune.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Aug 2017 @ 11:25am

      Re:

      Judges have absolute immunity in their judicial capacity.

      0% chance of success.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 8 Aug 2017 @ 5:05am

    I don't have the mental focus to look it over, but does it include charges over screwing over the Officer they suspended for running the blog, when it was clear he told the truth that he didn't run it?

    reply to this | link to this | view in chronology ]

  • icon
    Reima Zadet (profile), 8 Aug 2017 @ 5:11am

    "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."

    I know it probably makes financial sense to settle, but I hope they don't. I would like to see something like this go though the courts and attempt to set a precedent for future cases. Something that would strip him of his ability to be a police office or hold a public position after abusing power like this. And on top of that make sure he is pretty much bankrupted by this, since he wouldn't have had any issues doing that do these people

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Aug 2017 @ 7:44am

      Re:

      I hope he doesn't settle either. Either way it seems that the Louisiana Court of Appeal want's this case to move forward and smack this sheriff around. From what I've read here they've worded it so that any attempted appeal in a higher court is going to be outright refused based on their decision.

      reply to this | link to this | view in chronology ]

    • icon
      stderric (profile), 8 Aug 2017 @ 8:37am

      Re:

      Something that would strip him of his ability to be a police office or hold a public position after abusing power like this

      I don't think that'd play in Peoria.

      reply to this | link to this | view in chronology ]

  • identicon
    jilocain, 8 Aug 2017 @ 5:55am

    Was it Wayne or Jennifer Anderson?

    Was it Wayne or Jennifer Anderson?

    The first story mentions Wayne, and the second starts with; "...search his home..." but all the quotes reference Jennifer.

    reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 8 Aug 2017 @ 6:20am

      Re: Was it Wayne or Jennifer Anderson?

      Because the sheriff went after Wayne, but Jennifer was actually the one writing the blog.

      Actually it is surprising they even had the correct house, given the blog was anonymous. I am still curious as to how the anonymity was stripped enough to find them. (I might guess that it was local gossip rather than a service provider which gave them away.)

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2017 @ 6:00am

    You can beat the rap but you can't beat the illegal search.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2017 @ 6:45am

    Bet he wishes he hadn't done that.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 8 Aug 2017 @ 11:20am

      Re:

      Frankly I doubt he sees a connection. It's like wishing you did not get up in the morning when you've had a traffic accident.

      Sure, not having started a new day of extortion and power abuse would have prevented getting successfully sued by some civilian fuckwad, but if that possibility held you back, you'd never get anything done.

      reply to this | link to this | view in chronology ]

  • icon
    Advocate (profile), 8 Aug 2017 @ 7:28am

    So now you're going to have to prove your "firmness" level if you want to defend yourself against illegal law enforcement activities. That's nice. What if you've been harassed for so long that your firmness level is low?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Aug 2017 @ 8:05am

      Re: Firmness

      No, you need to convince the court that a person of ordinary firmness would be intimidated in these circumstances. It doesn't matter whether the actual victim is a total coward or a fearless career antagonizer. It matters whether the court believes the conduct would intimidate the average person.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2017 @ 8:21am

    "chill a person of ordinary firmness"

    Not sure what this means exactly.

    reply to this | link to this | view in chronology ]

  • identicon
    Thad, 8 Aug 2017 @ 9:58am

    I was talking about this the other day: Joe Arpaio pulled a similar abuse some years back, and had the publishers of the Phoenix New Times arrested (ostensibly for publishing his home address -- in a story about potentially unethical real estate deals, so the addresses of his properties were relevant, plus they were already published on official county websites).

    What Joe was really good at, though, was always having a fall guy ready, always maintaining plausible deniability so that when he got caught, somebody else would go down. So when the arrest story caused massive backlash, he'd made sure his fingerprints weren't anywhere on it; he claimed it was done without his knowledge and consent, and fired the underling who actually signed the order.

    Arpaio got away with that sort of thing for 24 years, until his luck finally ran out. He lost reelection last November by double digits, and a couple of weeks ago he got convicted for criminal contempt for continuing to arrest people under suspicion of immigration violations after a judge told him to stop. But he was trying the "blame it on somebody else" tactic right up until the end; he insisted that his lawyer hadn't explained the judge's order to him.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2017 @ 12:20pm

    Given that it's fairly common for the record of a criminal trial to be used as evidence in a followup civil trial, if the sheriff doesn't settle immediately, how long do you think a jury would actually deliberate upon hearing that three appeals court judges unanimously said that the sheriff literally by law and statute should have known that what he did was wrong?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Aug 2017 @ 12:22pm

      Re:

      Whoops, misread the article, I thought this was an en banc appeal. Still, a federal court judge told the sheriff that it was literally against the law for him not to know that his actions were illegal. That's almost awe inspiring right there.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 8 Aug 2017 @ 2:45pm

    mr cushing, learn the basics of law.

    there was no immunity to take away because by default sheriff had none for civil rights abuse under 42 usc 1983.

    this "qualified immunity" bs is invented by case law and is
    plan b.

    do you have fact checkers at td?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Aug 2017 @ 8:27pm

      Re:

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

      --LANCE M. AFRICK, District Judge.

      So, this case was all about qualified immunity, according to the judge.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 9 Aug 2017 @ 2:11pm

        Re: Re:

        still, the title exposes author's lack of basic knowledge of subject taken. sheriff tried plan b, aka qualified immunity.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Aug 2017 @ 10:41am

    Your top pick of the week is too... disgruntled and misleading. If you want to show your for your favorite movies and actor, see it at the theater because after that, all DVD sales go to the publishers.

    reply to this | link to this | view in chronology ]


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