When Jerry Rogers sent emails criticizing the “clueless” lead detective in a homicide case, the detective’s colleagues in the St. Tammany Parish Sheriff’s Office came to his defense — by violating the law. When they asked a judge for a warrant to arrest Rogers under Louisiana’s criminal defamation statute, they failed to tell the judge that Louisiana’s Supreme Court had long since ruled that the criminal defamation statute is unconstitutional when it comes to speech about public officials — like the police detective Rogers criticized. The officers also failed to tell the judge that when they discussed the case with the district attorney’s office, they were told that the law was unconstitutional.
They arrested Rogers anyway.
After prosecutors declined to pursue the case, Rogers sued the police officers in federal court for false arrest and for violating his First Amendment rights.
Often, a police officer is entitled to qualified immunity — that is, immunity from civil liability — if they act reasonably when asking for a warrant from a neutral, detached judge.
The police lacked probable cause to arrest Rogers, and the issuance of a warrant should not shield them from liability.
But what happens when police know that the Constitution prohibits an arrest, yet choose to ask for an arrest warrant anyway? Not only should these police have known that the statute is unconstitutional — per the state Supreme Court’s holding — but they did know it was unconstitutional, because the district attorney’s office explained it to them.
The district court saw through the officers’ ruse and refused to grant them qualified immunity, highlighting the information the officers omitted from their warrant application:
Notably, the warrant application for [Rogers’s] arrest omitted key information when it failed to advise the judge regarding the DA’s position that the arrest would be unconstitutional. Both the judge and Sheriff Smith testified that the information provided by the DA should have been included in the affidavit in support of the arrest warrant. Accordingly, the fact that Defendants arrested [Rogers] pursuant to a warrant does not protect them from liability. Defendants’ argument that there was no clearly established constitutional right of which they should have known prior to [Rogers’s] arrest for criminal defamation does not pass muster, and they are not entitled to qualified immunity.
On Jan. 27, 2023, FIRE filed an amicus brief principally authored by professor Eugene Volokh, arguing that the district court is correct to refuse to grant qualified immunity. As our brief explains, the police lacked probable cause to arrest Rogers, and the issuance of a warrant should not shield them from liability.
We're joined by First Amendment attorney Marc Randazza and British journalist Brendan O'Neill to discuss the state of free speech in the United States and Europe. Randazza is a First Amendment attorney and the managing partner at Randazza...