Criminal Libel Arrest for Criticism of Police Officer Was Unconstitutional

Louisiana’s criminal Libel Law was repealed by the state in 2021. However, it was held constitutional for prosecutions for public officials libels and for prosecutions on public concerns libels. The opinion of Judge Jane Triche Milazzo yesterday Rogers against Smith (E.D. La.) La.)

The case stems from the criminal defamation arrest of Jerry Rogers. St. Tammany Parish Sheriff Randy Smith, Chief Danny Culpeper and Sergeant Keith Canizaro are the accused in both their personal and official capacity. Plaintiff claims that he was employed by the St. Tammany Parish Sheriff’s Office (“STPSO”) between 1998 and 2009, before moving on to other jobs. Nanette Krentel was shot to death in St. Tammany Parish. Her murder is still unsolved. Following the coverage on the murder investigation, Plaintiff became dissatisfied with some actions of the STPSO based upon his own experience. He started emailing Krentel’s relatives to express his concern. Plaintiff had a particular criticism of Detective Daniel Buckner, the chief investigator.

The STPSO was made aware of the emails by the STPSO and started investigating the source. Plaintiff alleges that upon discovering that Plaintiff was the author of the emails, the STPSO sought the advice from the district attorney’s office (“the DA”) and was advised that Louisiana’s criminal defamation law, Louisiana Revised Statutes § 14:47, had been declared unconstitutional as to public officials and therefore charges against Plaintiff would be unconstitutional. Plaintiff was nevertheless arrested for criminal defamation by the defendants.

On September 16, 2019, Canizaro was granted an arrest warrant for Plaintiff for violation of Louisiana Revised Statutes § 14:47. Canizaro certify that Rogers’s email referred to Rogers as “clueless”, gave false information concerning the investigator’s abilities and experiences, and made derogatory comments about Rogers. Plaintiff claims the affidavit falsely claimed that Krentel’s relatives requested help in identifying who wrote the emails. The affidavit didn’t include the DA’s admonition.

Plaintiff was detained on September 16, 2019, and was released under bail that same day. Ultimately, the Louisiana Department of Justice declined to prosecute the criminal charge against him….

In the context of criticizing public officials’ official conduct, the defendants acknowledge that Louisiana’s criminal defamation statute was found unconstitutional. Garrison v. State of La. (1964) (“[W]You can hold the Louisiana [criminal defamation]The Supreme Court of Louisiana has interpreted statute as it should be. This includes constitutionally invalid standards that are used to criticize the public’s conduct.”); State v. Snyder (La. 1972. “We believe that R.S. We hold the R.S. They argue, however, that because the defamed party in this case was STPSO Deputy Detective Buckner—who they argue is not a public official—the case law declaring the statute unconstitutional is inapplicable and the right was not clearly established….

[But]Both the Fifth Circuit and the Louisiana Supreme Court have ruled that police officers are public officials. The defendants claim that the constitutional right to determine whether a police officers is a public officer in Louisiana’s context of the criminal defamation statute is not clear because there are no cases directly dealing with the issue. However, the Supreme Court held that “no case direct on this point” was necessary. Instead, the Supreme Court ruled that “existing precedent should have made it impossible to debate the constitutional or statutory question.” It is clear that the law of Louisiana states that both a police officer and a public official are public officials. The Louisiana criminal defamation statute, however, is not constitutional as it applies to public officials. Indeed, prior to its repeal in 2021, the law was included in the Unconstitutional Statutes Biennial Report to the Legislature in 2016, 2018, and 2020….

Plaintiff presents additional evidence, stating that the DA explicitly told Defendants that a cop officer is a public servant and that Plaintiff would not be arrested. Defendant Culpeper said that he was told specifically by the DA’s Office that Plaintiff’s arrest would be against the Constitution. STPSO Captain Gaudet also testified that Plaintiff was arrested after being told by the DA that the criminal defamation statute was not constitutional.

The issuance of warrants does not grant qualified immunity in cases where it is evident that “on an objective base, it would be obvious that no reasonably competent officers would have decided that a warrant should be issued.” This Court finds that no reasonable officer could have believed that probable cause existed where the unconstitutionality of Louisiana’s criminal defamation statute as applied to public officials has long been clearly established and where the officers had been specifically warned that the arrest would be unconstitutional….

The warrant application for Plaintiff’s arrest omitted crucial information because it did not inform the judge about the DA’s position that Plaintiff’s arrest was unconstitutional. Sheriff Smith and the judge both testified that Sheriff Smith should have included the affidavit supporting the warrant arrest. Accordingly, the fact that Defendants arrested Plaintiff pursuant to a warrant does not protect them from liability….

Plaintiff correctly asserts that there was no probable cause to his arrest. Therefore, plaintiff is entitled to summary judgement on the false arrest and false imprisonment claims he made under federal and state law.

A properly written criminal libel statute, such as one that is limited to knowledge of lies or statements that are likely to be false, would probably be legal. It could also apply to speech regarding government officials. Louisiana’s law was not modified to conform with the First Amendment requirements. New York Times v. SullivanThe decision was deemed unconstitutionally broad, at the least in relation to speech about public officials and speech concerning matters of public concern.

Congratulations to lawyers William Most, Hope Phelps & David Lanser on the victory.