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A federal appeals court has revived a lawsuit against a prosecutor brought by a college student whose online column irked a professor and led to an unlawful search of the student's home.
Reversing a lower court, the 10th U.S. Circuit Court of Appeals held that Susan Knox, now a prosecutor in the U.S. Attorney's Office in Denver, was not entitled to qualified immunity when as a deputy district attorney in Colorado she approved a search warrant of the student's house.
The appeals panel determined on Monday that the prosecutor's conduct was sufficiently connected to the unlawful search of the student's home to defeat immunity. The action, filed by the American Civil Liberties Union Foundation of Colorado on behalf of the student, sued Knox in her individual capacity.
"[H]er approval set in motion a series of events that she knew or reasonably should have known would cause others to deprive [the plaintiff] of his constitutional rights," the court said.
The decision stemmed from the March 2004 search by Greeley, Colo., police of the home of Thomas Mink, then a University of Northern Colorado student and an editor of The Howling Pig, an irreverent online publication that covers the University of Northern Colorado community. It is not sponsored by the university.
Mink was the author of an editorial column ostensibly written by "Junius Puke," a fictional character that parodied Junius Peake, a professor at the university. The column included altered photographs of Peake with a "Hitler-like" mustache, according to the decision. It covered topics that Peake was unlikely to write about and asserted views in language Peake was unlikely to use that were "diametrically opposed" to those of Peake, according to the ruling.
After reading the column, Peake contacted the police, who began investigating the student for potentially violating the state's criminal libel statute. The detective in charge of the case prepared a search warrant affidavit and submitted it to the district attorney's office. Knox reviewed and approved the affidavit. A magistrate judge approved the warrant, and police searched the home where Mink lived with his mother. Officers took the family's personal computer and materials that referenced The Howling Pig.
Mink and his mother then filed a lawsuit in the U.S. District Court for the District of Colorado against the City of Greeley, the district attorney, the detective and Knox. The court granted a temporary restraining order that required the defendants to return the computer and the other materials seized. The district attorney's office later issued a report saying that it could not prosecute the case because the libel statute did not apply to the speech. Mink's mother dropped out of the lawsuit.
Monday's decision marked the second time that the 10th Circuit has ruled on the case. After the district court determined that Knox was protected by absolute immunity, the appeals court held that such immunity applied only for prosecutors acting as advocates, not as investigators. The court concluded in April 2007 that, in this case, Knox was not "wearing the hat of an advocate." In the same decision, the appeals court ruled that qualified immunity might have applied had Knox reasonably concluded that probable cause existed to support to warrant application. The case went back to U.S. District Judge Lewis Babcock, who found that a "reasonable official in Knox's position could believe that the statements in The Howling Pig were not protected statements under the First Amendment."
He also ruled that although the search violated the Fourth Amendment's particularity requirement, it wasn't clear that her authorization of it violated the Fourth Amendment.
In reversing the district court for a second time, the appeals panel found that the law was clearly established at the time of Knox's review of the warrant that Mink's speech was protected as parody. It also determined that the warrant lacked the probable cause element establishing that a crime had occurred and lacked particularity in designating the scope of the search as related to the alleged crime.
Knox did not return a telephone call seeking comment. Jeff Dorschner, a spokesman for the U.S. Attorney's Office in Colorado, said that Knox was reviewing the decision.
The ACLU originally filed the action to overturn the state's "ancient" criminal libel statute, said Marcy Glenn, a partner with Holland & Hart in Denver who served as appellate counsel for the ACLU. Although the ruling did not exactly address that point, she was encouraged that the court found that Mink's speech was protected. Mink has graduated from college, Glenn said.
Writing for the court was Judge Stephanie Seymour. Also on the panel were judges Terrence O'Brien and Neil Gorsuch.
The Howling Pig now carries a disclaimer stating that Junius Peake is a valued professor, community leader and family man. "Junius Puke is none of those things and a loudmouth know-it-all to boot, but luckily he's frequently right and so is a true asset to this publication." The character, Junius Puke, has died, according to the website. The site now lists one "Rainbow Brite" as its editor in chief.
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