Court in First Amendment Case Overrules Prosecutorial Immunity

Eight years ago in Colorado, authorities showed up at the home of Tom Mink with a warrant to search for evidence of “criminal libel.”  Mr. Mink had developed a satiric internet publication, The Howling Pig.  Mr. Mink, then a University of Northern Colorado student, was being prosecuted for libel for what he claimed were protected First Amendment satirical writings.

“This case reaffirms that satire, parody, and expressions of opinion are fully protected by the First Amendment,” said Mark Silverstein, Colorado ACLU Legal Director.  “Prosecutors and police cannot use Colorado’s antiquated 19th-century criminal libel statute to intimidate, threaten, or silence speakers who criticize public officials and spoof community leaders.”

Attorneys for the ACLU had argued that the search and the threatened prosecution violated Mink’s right of free expression and his right to be free of unreasonable searches and seizures.

According to the court’s account of the case, several issues of the online journal included Mr. Mink’s pseudonymous column by “Junius Puke,” which parodied the views of a real UNC professor named Junius Peake, and whose online photograph bore a strong resemblance to the real professor.

Professor Peake complained to the Greeley Police Department, which commenced an investigation of Mink for potential violations of Colorado’s criminal libel statute. The police, in conjunction with the local district attorney’s office, sought and obtained a search warrant which they executed at Mink’s residence, seizing his personal computer and other written materials.

In January, 2004, Judge Lewis Babcock granted the ACLU’s request for an emergency injunction.  He ordered the return of Mink’s computer and prohibited the district attorney from filing the threatened criminal charges.

At that point, Mr. Mink reached an agreement with the city of Greeley, Colorado, and the the city and its detective (who served the search warrant) were dismissed as defendants.  The Howling Pig resumed publication, while the civil legal case continued against the assistant prosecutor, Susan Knox, who had reviewed and approved the request for the search warrant.

What makes this case particularly interesting is that in 2007, the Tenth Circuit Court of Appeals ruled that damages in this case, are “not barred by absolute immunity.”  The court them remanded the case back to the district court to determine whether the prosecutor was correctly granted qualified immunity.

Mr. Mink, in his case, sought “a judgment against the deputy district attorney for her role in reviewing the affidavit in support of the search warrant, which he claims lacked probable cause.”

Wrote the court in 2007, “The most difficult issue in this case is Mink’s claim for damages against the deputy district attorney based on her review of the application for a search warrant. The district attorney argues that this conduct is protected by the doctrine of absolute prosecutorial immunity. The district court agreed, concluding the prosecutor acted as ‘an officer of the court’ in a ‘quasi-judicial’ capacity to which absolute immunity applied.”

In general, the courts have granted absolute immunity for those activities “intimately associated with the judicial phase of the criminal process.”

However, as the Tenth Circuit ruled in 2007, “not every activity of a prosecutor involves initiating and presenting a case. Absolute immunity does not extend to ‘those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate.’ “

That court concluded, “The district court erred in dismissing Mink’s damages claim on the ground that it was barred by the doctrine of absolute immunity.”

They then ruled that “the deputy district attorney, however, may be entitled to qualified immunity if she reasonably concluded probable cause existed to support the warrant application, or that the application of the Supreme Court’s First Amendment cases to the criminal libel statute was not clearly established under the circumstances here.”

It would take another ruling, in 2010, for the court to deny the prosecutor’s bid for “qualified immunity.”

The district court granted the prosecutor’s motion to dismiss on the grounds that: (1) “a reasonable official in Knox’s position could believe that the statements in The Howling Pig were not protected statements under the First Amendment – and, accordingly, that Plaintiff’s actions in publishing such statements could subject him to criminal prosecution under the Colorado libel statute,” and (2) “although the search warrant violated the Fourth Amendment’s particularity requirement, it was not clearly established that Ms. Knox’s authorization of the search warrant affidavit lacking particularity violated the Fourth Amendment.”

Thus, the district court had concluded that the prosecutor was entitled to qualified immunity.

The court argued, “Probable cause exists if ‘facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.’ “

They continued, “It goes without saying that a government official may not base her probable cause determination on an ‘unjustifiable standard,’ such as speech protected by the First Amendment.”

At this point, the question became a matter of whether “a reasonable person would conclude that the statements in The Howling Pig were actual statements of fact about Mr. Peake, or attributable to him, rather than a satirical spoof.”

Writes the appellate court, “The prong of the qualified immunity test requiring that the law be clearly established is easily satisfied here. Ms. Knox’s review of the affidavit and warrant occurred in December 2003. Long before that, it was clearly established in this circuit that speech, such as parody and rhetorical hyperbole, which cannot reasonably be taken as stating actual fact, enjoys the full protection of the First Amendment and therefore cannot constitute the crime of criminal libel for purposes of a probable cause determination.”

They add, “It was also clearly established that warrants must contain probable cause that a specified crime has occurred and meet the particularity requirement of the Fourth Amendment in order to be constitutionally valid.”

Last June, according to a press release from the Colorado ACLU, Judge Babcock finally issued a ruling granting summary judgment to Tom Mink and holding the prosecutor legally responsible for violating Mink’s First and Fourth Amendment rights.  The case moved to the Tenth Circuit for a third time when the prosecutor filed an appeal, which is now mooted by the settlement announced today.

“Judge Babcock’s order granting summary judgment has major legal significance,” Silverstein said.  “It may be the first written ruling that expressly holds a prosecutor legally responsible for her role in approving an application for a search warrant that resulted in an illegal search.   This ruling, and this substantial monetary settlement, sends a forceful message that prosecutors cannot simply rubber-stamp a police officer’s request to invade the privacy of a person’s home.   Prosecutors must carefully review requests for search warrants.  This is especially true, as in this case, when the search seeks evidence of how someone exercised his or her right of free expression.”

From our standpoint, the ruling and subsequent settlement is significant because it represents a clear case where a prosecutor was not granted even qualified immunity in his or her capacity as an investigator.

This is a very rare occasion.  Last spring, the Supreme Court overturned a judgment of $14 million in favor of John Thompson, who was wrongly convicted due to prosecutorial misconduct.

In that case, the Deputy District Attorney destroyed exculpatory evidence, including jeans with blood stains on them and a report that had concluded Mr. Thompson’s blood was inconsistent with the blood of the likely perpetrator.

In a 5-4 ruling, with the court divided along ideological lines, they ruled that the District Attorney could not be held accountable for the actions of one of his employees and only a pattern of misconduct would warrant holding the New Orleans DA Harry Connick accountable for what happened on his watch.

“The role of a prosecutor is to see that justice is done,” Justice Thomas wrote.

“By their own admission the prosecutors who tried Thompson’s armed robbery case failed to carry out this responsibility. But the only issue before us is whether Connick, as the policy maker for the district attorney’s office, was deliberately indifferent to the need to train the attorneys under his authority,” his ruling continued.

Mr. Mink’s attorneys went after the correct target in going after the specific prosecutor, rather than the entire prosecutor’s office.

—David M. Greenwald reporting

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