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July 20, 2017
A federal judge in New Orleans says the civil case brought against Terrebonne Parish Sheriff Jerry Larpenter by a Houma blog-writer can continue, maintaining that ample evidence that Jennifer Anderson’s civil rights were violated by seizure of computer equipment in connection with writings critical of local government officials.
Claims of malicious prosecution leveled at Larpenter were dismissed, however.
Larpenter is the last defendant left in a case prompted by the controversial and anonymous “ExposeDat” blog and related Facebook page. Anderson settled claims against Terrebonne Parish President Gordon Dove for $50,000. Claims against Terrebonne Levee and Conservation District President Tony Alford, whose insurance business writes policies for the sheriff’s office and parish government employees, were dropped.
The blogs alleged inappropriate chumminess between Larpenter, Alford, Dove and other officials. Alford made a complaint to Larpenter under Louisiana’s criminal defamation statute and Larpenter ordered a deputy to investigate. A series of search warrants resulted in identification of Wayne and Jennifer Anderson’s residence as the place from which the writings emanated, and electronic equipment was seized.
The warrant, issued by State District Judge Randy Bethancourt, was declared unconstitutional by the Louisiana 1st Circuit Court of Appeal. That’s because as president of the levee district Alford is a public official, thus not protected by the defamation statute. The equipment was returned to the Andersons, but Africk said that wasn’t enough to cure the constitutional violation.
Africk noted that his finding was not conclusive and was only based on arguments he had encountered thus far. A judicial determination on the specific allegations and of a monetary award will require a trial.
“This is one stage in a very complex process,” said attorney William Dodd, who represents Larpenter. “While we certainly did not get the result that we wanted we got some results, and we will make some decisions now about what we want to do. We would begin the discovery process and following that a motion for summary judgement where facts the court was not aware of in this stage will be brought out.”
The result Dodd sought was a declaration of qualified immunity, a legal concept that says a public official cannot be held liable for acts that do not violate the constitutional or statutory rights of an individual.
“Some qualified immunity cases are hard,” Africk wrote. “This case is not one of them.”
The judge, in a careful and detailed analysis, rejected Larpenter’s qualified immunity arguments one by one, after declaring that the blog and related postings fall “squarely within the four corners of the First Amendment,” leaving no doubt of his belief that her work was constitutionally protected.
“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,” Africk wrote. “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.”
John Turner, according to court records, is the false name under which Anderson created a Facebook page which promoted accusations contained in the blog.
“It goes without saying that the Andersons’ right not to be subjected to a search warrant for their home, where the warrant lacks probable cause, is a clearly established constitutional right,” Africk wrote. “Against this clearly established legal backdrop, any reasonable law enforcement official in Sheriff Larpenter’s position would have known—or should have known—that Jennifer Anderson’s online statements about President Alford could not constitute a crime—and therefore could not justify a search warrant.”
As for the question of what harm Larpenter’s alleged violation might have done to Jennifer Anderson, the judge stated that in the court’s view “a person of ordinary firmness” would face a considerable chill— perhaps even to the point of a freeze—if the consequence of speaking up and speaking out about public officials was the search of one’s home and seizure of one’s personal property by law enforcement.”
Larpenter’s arguments, Judge Africk stated were missing a bigger picture.
“The injury was inflicted at the time of the execution of the search warrant,” Africk wrote. “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.”
Although not yet raised in the case, Larpenter has stated to confidantes that the statement attributed to him was only part of his full statement, and therefore lacked context.
The claims that were dismissed by the judge included an allegation that Anderson’s privacy was eroded and that she was damaged because Larpenter spoke publicly about her prior convictions of federal crimes, as elements of malicious prosecution.
“The Andersons cannot satisfy the first element of a state malicious prosecution claim, as no prosecution has been commenced against either of them,” Africk stated. “Under Louisiana law, the execution of a search warrant does not constitute the commencement of an original criminal judicial proceeding for purposes of a malicious prosecution claim.”
