Aug 292016
 
Owen Courrèges

Owen Courrèges

It’s almost as though Terrebonne Parish Sheriff Jerry Larpenter were spat out of central casting.  The portly, arrogant, hot-headed lawman is the archetype of the corrupt Southern sheriff.  “You ain’t from ‘round here, boy,” might as well be tattooed on his forehead.

Playing to form, Larpenter doesn’t appreciate being criticized.  His thin skin was certainly on display when a local muckraking blog called “Exposedat” suggested that Larpenter had misused public funds due to a conflict of interest.

Writing under the pseudonym “John Turner,” the blogger reported that Larpenter’s wife works for an insurance agency that also bills the Sheriff’s Department. In turn, the same agency had written a policy for parish government that neither went through public bidding nor was properly implemented through an authorizing ordinance, according to media accounts.

Mrs. Larpenter disputed this characterization, noting that she does not work for the agency-of-record for the Sheriff’s Department. Turner responded that a partnership between the agencies rendered that defense moot.

However, instead of simply letting the matter lie like any normal, sane person would do, Larpenter recklessly abused his authority to root out the man behind the blog. He applied for multiple search warrants to discover the source, culminating in a raid earlier this month of the home of another police officer, Wayne Anderson of the Houma Police Department.

Six deputies invaded Officer Anderson’s home, seizing several cell phones and two laptops. Solidifying this nexus of unfathomable evil, reportedly one of the computers belonged to Anderson’s child.

“If you’re gonna lie about me and make it under a fictitious name, I’m gonna come after you,” Larpenter later told WWL-TV. It sounded more akin to a drunken boast than a serious statement from the chief law enforcement officer of a Louisiana parish.

The legal hook that Larpenter exploited was Louisiana’s antiquated criminal defamation statute, La. Rev. Stat. 14:47. This statute, seldom-used and long overdue for repeal, makes a misdemeanor of the following:

The malicious publication or expression in any manner, to anyone other than the party defamed, of anything which tends:

(1) To expose any person to hatred, contempt, or ridicule, or to deprive him of the benefit of public confidence or social intercourse; or

(2) To expose the memory of one deceased to hatred, contempt, or ridicule; or

(3) To injure any person, corporation, or association of persons in his or their business or occupation.

Criminal defamation statutes used to be commonplace, but courts have severely limited their application and today they are generally regarded as mere curiosities. Any competent lawyer knows that they are practically dead letter.

Our own fair city of New Orleans was actually at the center of the case that specifically ruled criminal defamation laws cannot apply to public figures or matters of public concern.

You’ll recall that former Orleans District Attorney Jim Garrison was notorious for his Kennedy assassination conspiracy theories (as depicted in the Oliver Stone Movie J.F.K.). However, you may not recall that Garrison was also noteworthy for fighting a conviction for criminal defamation all the way to the U.S. Supreme Court.

Garrison had accused Orleans Criminal District Court judges of being lazy and hindering his efforts to enforce vice laws. He was convicted under Louisiana’s criminal defamation law, the same one cited above, and appealed all the way to the U.S. Supreme Court.

In unanimously reversing his conviction, the Supreme Court applied its earlier decision in New York Times v. Sullivan for civil defamation involving public figures. In Sullivan, the Court had held that only those statements that are knowingly false or made with a reckless disregard for their truth or falsity can qualify as defamation.

This high standard makes it virtually impossible to prove a case for defamation involving a public figure. Essentially, so long as the accused can give a some vaguely credible reason for their stated belief, it’s protected speech under the First Amendment.

Given that the U.S. Supreme Court had dealt squarely with this issue over 50 years ago, legal experts were shocked and appalled that Larpenter had been getting away with this. In particular, Loyola Law Professor and ethics attorney Dane Ciolino opined that Larpenter’s actions were “absolutely extraordinary.”

“It’s amazing we’re having this conversation in Louisiana rather than in Iran,” Ciolino told WWL-TV, without a hint of understatement.

Digging himself further into a hole, Larpenter responded to Ciolino’s comments in the manner of a drooling Neanderthal with poor impulse control.

“Now, if this so-called professor they got out of whatever college he’s from, and you know, I hate to criticize anybody, but apparently he didn’t look at the West criminal code book to find out there is a statute in Louisiana you can go by criminally,” Larpenter later said on a local TV talk show.

Of course, simply because a law is on the books doesn’t mean it is enforceable. A sheriff has to know that. Predictably, the First Circuit Court of appeal overturned the warrant in a decision released this past week, holding that the “search warrant lacks probable cause because the conduct complained of is not a criminally actionable offense.”

You may think that here in New Orleans we’d be spared this kind of thing, but you’d be wrong. Current New Orleans District Attorney Leon Cannizzaro pursued a baseless criminal defamation charge against a client of mine for several months. The charges were eventually dismissed with an acknowledgement that the law was “effectively unconstitutional.”

Unfortunately, prosecutors and judges have near absolute immunity for their charging decisions, even if the decision was malicious. Even Larpenter may ultimately get off scot free, allowing him to indulge his next personal beef on the public dime.

Ultimately, we need better checks in law enforcement and our criminal justice system as a whole. Larpenter should never have been able to indulge this personal crusade of his based on an unenforceable law, but it happened. It could happen anywhere. That should be disturbing to fair-minded citizens of every political stripe.

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.

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