Louisiana man arrested for criminal defamation of police chief can press wrongful arrest suit

A U.S. District Court judge ruled that a civil lawsuit can continue against a Louisiana police chief and four officers accused of violating a former officer's constitutional rights. The court declined to dismiss the civil rights case against the officers who arrested the police veteran for criticizing the chief in email messages to a local newspaper.

The officers relied on a criminal defamation statute that was declared unconstitutional "as applied in circumstances nearly identical" to those in the case more than four decades prior to the arrest, the court wrote.

Former police officer Bobby Simmons sued Greg Dupuis, chief of police in Mamou, La. – located about 180 miles northwest of New Orleans – and four officers for wrongful arrest and violating his First and Fourth Amendment rights. According to court documents, Simmons argued that he was unlawfully arrested and charged with criminal defamation for email he sent to the Ville Platte Gazette that questioned the newspaper for not reporting on Dupuis' alleged involvement in an officer's DUI arrest.

"There can be no doubt that the freedom to criticize public officials, including police officers, is unequivocally protected by our Constitution," U.S. District Judge Elizabeth Enry Foote wrote in the court's opinion. "It is likewise well-settled that the First Amendment prohibits government officials from taking action against individuals in retaliation for exercising this protected right."

In a series of email messages sent in May 2008, Simmons probed the Gazette for not running a story about Dupuis' alleged interference with a state police investigation, according to court documents.

One message stated, "who was the mamou police officer (female) that was arrested for DUI, what happened to the arrest of Greg Dupuis last night or early morning by LSP. Why was there no story on Greg locing the state police out of the room at Mamou PD because they would not release his officer [sic]."

According to the opinion, the newspaper did not publish a story on the allegations, but their questioning into the incident and swirling rumors throughout the community led Dupuis to subpoena the paper for its source of information. After receiving the email exchange between Simmons and a newspaper editor, Dupuis obtained an arrest warrant on a criminal defamation charge. Simmons was arrested and held at the Franklin Police Department then transferred to the Mamou Police Department and held overnight before he posted bond.

With help from the American Civil Liberties Union of Louisiana, Simmons filed a civil rights lawsuit against Dupuis and the four arresting officers in April 2009. The police officers sought dismissal of the case due to a claim of qualified immunity, but Judge Foote denied this request.

Qualified immunity is a doctrine that shields government officials from being sued for damages in some situations. In Harlow v. Fitzgerald, the U.S. Supreme Court held that officials are protected from liability "insofar as their conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known."

A qualified immunity analysis involves two questions: first, whether the actions of the official violated the plaintiff's rights, and if so, whether that right was "clearly established" at the time of the violation, the court wrote. The second element is intended to protect officers who make reasonable mistakes.

The court did not believe that the officers made a reasonable mistake, writing that "these Defendants first relied on an unconstitutional statute, withheld relevant facts and evidence … and misrepresented the nature of Plaintiff's communication with the Gazette."

The district court also examined Simmons' unlawful arrest claim, finding that Dupuis and Officer Todd Ortis withheld relevant information to obtain an arrest warrant. The officers relied on Louisiana's criminal defamation statute, which the U.S. Supreme Court largely ruled unconstitutional in the 1964 case Garrison v. State of Louisiana.

"A citizen was handcuffed, arrested and held overnight for sending a private email communication to a local newspaper which informed the paper of possible misconduct of a public official," Foote wrote in the opinion. "There can be no doubt that such communication constitutes protected speech in this country."

Related Reporters Committee resources:

· The First Amendment Handbook: Product Libel — Criminal Libel — Infliction of emotional distress

· Police, Protesters and the Press: The immunity issue

· Dig.J.Leg.Gd.: Using criminal libel to silence online publishers