On April 30, 2015, William Aubin Jr. was at home with his wife in Livingston Parish, Louisiana when a patrol car from the sheriff’s office pulled onto his street. The deputy, William Durkin, was there to investigate a reckless driving complaint. Aubin wasn’t involved in the incident but he knew about it and went outside of his home to speak with Durkin. During a vulgar and combative conversation, according to Aubin, Durkin repeatedly called Aubin a “pussy.”
“I’m calling your supervisor,” Aubin said. “I’m gonna get you fired.” Aubin took out his cell phone, called the sheriff’s department, and started walking back towards his house. But before he made it inside, Durkin arrested him. The charge: intimidation of a public official — a felony that in Louisiana carries a maximum penalty of five years’ imprisonment.
The 21st Judicial District Attorney’s Office (whose jurisdiction includes Livingston Parish) ultimately declined to prosecute Aubin. But in a lawsuit filed in April 2016 in the U.S. District Court of the Middle District of Louisiana against Durkin and his supervisor, Sheriff Jason Ard, Aubin challenged the constitutionality of the statute that led to his arrest. The statute prohibits “the use of violence, force, or threats … with the intent to influence [an official’s] conduct in relation to his position, employment, or duty.”
The statute’s constitutionality was also called into question in a December 2015 incident in nearby Tangipahoa Parish, when officers pepper sprayed a man named Travis Seals even though he was already in handcuffs. After telling the officers he was going to file a complaint against them, he too was charged with public intimidation. Seals then launched his own lawsuit, also in federal court, challenging the constitutionality of the statute.
Louisiana Attorney General Jeff Landry intervened in both cases to defend it. But in the past year, federal judges in the two cases have called the statute unconstitutional. In a September 2017 ruling, Chief Judge Brian A. Jackson of the United States District Court for the Middle District of Louisiana pilloried the application of the statute in the Aubin case. “The right to criticize the police without risk of arrest distinguishes a democracy from a police state,” he wrote.
In the Seals case, Jane Triche Milazzo, a judge in the United States District Court for the Eastern District Of Louisiana, ruled last July that the statute violates the First Amendment.
“The Attorney General does little in the way of arguing that [the law] is constitutional as written or in overcoming the presumption of unconstitutionality,” Milazzo wrote. She noted that the statute broadly criminalized “threats to engage in lawful conduct such as, criticizing a police officer, writing a letter to the newspaper, filing a lawsuit, voting for an official’s opponent, or filing an ethics complaint.”
Landry has appealed her ruling to the United States Court of Appeals for the Fifth Circuit. His office did not respond to requests for comment.
Kearney Loughlin, the New Orleans-based attorney representing both Aubin and Seals says that the statute has become a “sort of a hammer that the police officers can use” since it was ratified in 1942. “You get a higher bail because it’s a felony,” he said. “It’s a more serious felony than battery on a police officer. You can punch an officer and not face the same ramifications.”
According to Loughlin, higher bail means that often many are jailed simply because they can’t afford to purchase their freedom. Loughlin also says that prosecutors may be using the law against defendants arrested for less serious offenses, such as public intoxication, in order to leverage them into pleading guilty to lesser charges.
In August 2017, the ACLU condemned the statute after it was used in the case of a Northern Louisiana man who raised his middle finger to a state trooper. “Among the freedoms this country provides is the right to criticize the government and public officials, including police officers,” wrote Marjorie Esman, who was then the executive director of the ACLU of Louisiana.
Sheriff Ard, one of the defendants in the Aubin lawsuit, argued in court filings that the statute is necessary to protect public officials from threats and coercion. “The government certainly has a substantial interest in ensuring that such threats are not allowed to influence the behavior of police officers and other officials,” Ard’s office wrote in a memo submitted to court in January 2017.
Not everyone in law enforcement, however, agrees that the statute is necessary to ensure the safety of public officials. Twenty-first Judicial District Attorney Scott Perrilloux recently told the Advocate that there are other laws that his office can use to fulfill the statute’s original aim — protecting public officials from true threats and coercion. Perrilloux did tell the newspaper, however, that he believes that the basis for the statute is sound.
But Seals’ and Aubin’s attorney Loughlin maintains that the statute’s broad reach is a clear violation of constitutional protections. “Ultimately the case is, can you threaten to do something lawful and go to jail for it, or is that protected by the first amendment,” Loughlin said. “That’s what this comes down to.”