COLORADO — A federal district court ruled Friday that a former college student whopublished a First Amendment-protected satirical newsletter was deprived of hisright against unreasonable search and seizure when police confiscated hiscomputer.
Thomas Mink, a former student at the Universityof Northern Colorado, published The Howling Pig as an online commentaryon “the issues rampant in Northern Colorado,” according to the newsletter’swebsite.
In 2003, UNC finance professor Junius Peaketold authorities The Howling Pig defamed him by naming its founder “Mr.Junius Puke.” He also claimed the publication violated Colorado’s criminallibel law by publishing a photo of Peake, modified to look like KISS guitaristGene Simmons, labeled as “Mr. Junius Puke.”
Acting on Peake’s complaint, police obtained asearch warrant, signed by deputy district attorney Susan Knox, and confiscatedMink’s computer. He was arrested and spent one week in jail, but prosecutorsdeclined to file charges.
Mink filed a lawsuit in 2004 against Knox, thedistrict attorney’s office and the city of Greeley, Colo. He claimed thestate’s criminal libel law violated the First Amendment and that the taking ofhis computer violated his Fourth Amendment right against unreasonable searchesand seizures.
The 10th U.S. Circuit Court of Appealseventually found that Mink lacked standing to challenge the law because he wasnever charged under it. The court, however, allowed the Fourth Amendment claimagainst Knox to go forward.
The Tenth Circuit, in two different rounds ofappeal, found that deputy district attorney Knox lacked both absolute and qualifiedimmunity for her role in obtaining the search warrant.
Friday’s decision from the district court heldthat Knox should have known the First Amendment protected The Howling Pig and therefore that there was no probable cause to issuethe search warrant.
Judge Lewis Babcock disagreed with Knox’sargument that she should still receive immunity from the lawsuit because shenever reviewed the content of the newsletter.
“[T]he defenseof qualified immunity would be extended beyond all reason if a prosecutor couldavoid liability for an unconstitutional search and seizure by not reviewing thesupporting documents,” Babcock wrote.
Alyssa Yatsko, one of Mink’s attorneys with theHolland & Hart law firm, said decision helps further the protections of theFourth Amendment.
“The significance of this case really isn’t in thisdecision, it’s in the Tenth Circuit decision in the years previous,” she said.
Lawyers David Brougham and Andrew David Ringelof the firm Hall & Evans represent Knox, who is no longer with the districtattorney’s office. Brougham said they are reviewing the decision.
Babcock will decide later what damages he willaward to Mink. Knox is the only remaining defendant in the 8-year legal battle.Any money damages would likely be paid by Knox personally.
THE HOWLING PIG CASE: A TIMELINE
- Nov. 14, 2003: Prof. Peake reports The Howling Pig to the Greeley PoliceDepartment.
- Dec. 12, 2003: Police execute a search warrantat Mink’s home and seize his computer.
- Jan. 14, 2004: Mink files suit in federalcourt, claiming violations of the First and Fourth Amendments.
- Oct. 26, 2004: The district court dismissesMink’s lawsuit, finding he lacked standing to challenge the criminal libel lawand that Knox was protected by “absolute immunity.”
- April 16, 2007: The Tenth Circuit agrees thatMink lacks standing to challenge the law, but finds Knox is not entitled toabsolute immunity as a prosecutor because she was not wearing her “advocate”hat.
- Jan. 22, 2008: The U.S. Supreme Court declinesto hear an appeal by Knox.
- June 12, 2008: On remand, the district courtagain dismisses the suit, finding Knox is entitled to qualified immunitybecause the law protecting Mink was not clearly established at the time of thewarrant.
- July 19, 2010: The Tenth Circuit reverses, finding the law was indeed clearlyestablished and that Knox was not entitled to qualified immunity.
- June3, 2011: On remand, the district court finds in favor of Mink, with damages tobe determined later.