When Judge Ho Feels The Need To Angrily Call Out The Fifth Circuit's Totalitarianism, You Know Things Are Bad

Judge Ho may not be right on many issues, but he nails this one.

Judge James Ho Jim Ho

(via YouTube)

We give a lot of shit to Fifth Circuit federal judge James Ho ’round about these parts. And with good reason. The Trump-appointed jurist appears to have contempt for legal research when it stands in the way of his preferred policy goals and chases clout by dinging conservative law students who just happen to attend the best law school in the country (Yale). And yeah, his jurisprudence leaves a lot to be desired, on most subjects. But broken clocks are right twice a day, and all that, because he’s taking a stand against letting officials jail their political opponents that’s pretty noteworthy.

Now, you probably think that in the United States of America, OF COURSE, you can’t jail political opponents. But… Texas. As Mark Joseph Stern details in Slate, there are a pair of problematic cases working their way through the system that seems to suggest just that. One is Gonzalez v. Trevino:

In 2019, 72-year-old Sylvia Gonzalez ran a successful campaign for city council in Castle Hills, Texas, a town of 5,000. She heard from residents that the current city manager, Ryan Rapelye, was doing a poor job. So, once on the council, Gonzalez launched a nonbinding citizen petition urging the council to replace Rapelye.

After a council hearing on the city manager, Gonzalez briefly placed the petition papers in her binder. When the mayor, Edward Trevino, asked her for the petition, she located the papers and handed them to him. At the time, both Gonzalez and Trevino said that her misplacement of the petition was a mistake. Yet this brief exchange formed the basis of an alleged conspiracy that would eventually place Gonzalez in jail.

Trevino, it turns out, saw Gonzalez as an enemy. As mayor, he had appointed Rapelye to be city manager, and he was infuriated that the new councilmember contested his decision. At this point, the city’s Police Chief John Siemens—whom Trevino had also appointed—deputized a friend, Alex Wright, to investigate Gonzalez. (Wright was not a detective or even a law enforcement officer of any kind.)

Wright’s theory’s that when Gonzalez put the papers in her binder, she violated a Texas law that bars anyone from “conceal[ing]” any “government record.” They procured an arrest warrant, hauled her into jail — refused to allow her to use the bathroom privately — and was handcuffed to a bench for a day. When the district attorney’s office got wind of the banana republic-esque scheme, the charges were dropped. But Gonzalez turned around and sued those behind her arrest, alleging retaliation for her exercise of her First Amendment rights.

The Fifth Circuit rubber-stamped the plot, granting immunity to Trevino, Siemens, and Wright and holding Gonzalez failed to prove “similarly situated individuals” engaged in the same “criminal conduct” without getting arrested. By a 10-6 vote, the full Fifth Circuit refused to rehear the case en banc. Judge Ho was in the minority and he unleashed on his colleagues with a dissenting opinion that castigated the most conservative federal circuit for leaving Americans “vulnerable to public officials who choose to weaponize criminal statutes against citizens whose political views they disfavor.” Ho went on to support Gonzalez’s lawsuit over her “heinous” and “unconstitutional” arrest for “stating unpopular viewpoints.” He harshly criticized the local officials for violating “the most fundamental value in American democracy” and using the “coercive powers of government to punish and silence their critics.”

And this isn’t the first time Judge Ho has railed against local Texas officials that seem to use the law to punish their critics. In Villarreal v. Laredo, Texas’s Priscilla Villarreal is a citizen journalist, reporting on local events of public interest (car crashes, crime scenes, etc) on her Facebook page. She hasn’t made many friends of local officials, like when she uncovered the district attorney dropped an arrest warrant for the relative of a staff member. And, wouldn’t you know it, Villarreal found herself on the wrong side of an obscure Texas law:

In 2017, Villarreal uncovered the name of one local who died by suicide and another who died in a car crash. In both cases, she called a police officer to confirm their identities—a standard reporting practice. When Laredo officials discovered these calls, they secured a warrant for her arrest. Why? Prosecutors cited a provision of Texas law—one they had never before enforced—that criminalizes the act of soliciting or receiving nonpublic information “from a public servant” with “intent to obtain a benefit.” Prosecutors alleged that Villarreal violated this law because she sought the “benefit” of more Facebook followers.

And the district attorney staffer who signed off on Villarreal’s arrest? The same one Villarreal reported helped her relative get out of an arrest warrant. Shocking.

Villarreal also sued for violation of her First Amendment rights. This time, the Fifth Circuit’s wheel of judges was on the First Amendment’s side and Judge Ho penned the majority opinion:

In his majority opinion, Ho framed the case as a simple one: “If the First Amendment means anything,” he wrote, “it surely means that a citizen journalist has the right to ask a public official a question, without fear of being imprisoned.” It should “be patently obvious to any reasonable police officer,” he continued, “that the conduct alleged in the complaint constitutes a blatant violation of Villarreal’s constitutional rights.” He therefore denied the officials immunity.

In a concurrence to his own majority opinion, Ho went further. “This is an exceedingly troubling case,” he opined. “It’s beyond the pale when law enforcement officials weaponize the justice system to punish their political opponents.” It is, in fact, downright “totalitarian.” Prosecutors’ view of Texas law would “condemn countless journalists” to arrest and incarceration. That, Ho concluded, cannot be squared with the First Amendment.

But the story isn’t over yet — the full Fifth Circuit *will* hear this case en banc, which likely means Ho’s majority opinion is about to be overturned.

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All of this is really, really bad — if you enjoy the First Amendment, that is. And when the poster judge for the far-right agenda is the one ringing the alarm bell? It’s truly disturbing.


Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.