Colorado Anti-Criminal Libel Suit Advances

The civil rights suit of a Colorado man who faced a criminal libel prosecution in connection with a parody of a professor, brought against the Deputy District Attorney Susan Knox who reviewed and approved a search warrant in the case has been allowed to move forward by the 10th Circuit Court of Appeals. Binding precedents in the 10th Circuit Court of Appeals makes it even less favorable to civil or criminal suits based on parodies than U.S. Supreme Court precedent. The court held that if the facts alleged were established at trial that the plaintiff would prevail in the suit.

A search warrant was issued and carried out in connection with the criminal libel prosecution, although a criminal case charging the defendant was never brought. The search warrant also didn't allege a specific offense, although it was actually prepared in connection with an intent to investigate the parody as a criminal libel case. According to the Court: "The Greeley police then searched the home where Mr. Mink lived with his mother and confiscated their personal computer, as well as written materials referencing The Howling Pig [an online journal]."

The United States District Court for the District of Colorado had quashed the suit on the ground that the Deputy District Attorney was entitled to qualified governmental immunity. The 10th Circuit Court of Appeals disagreed.

An earlier 10th Circuit ruling in the same case held that a prosecutor was not entitled to absolute immunity, as prosecutors are in most circumstances, because review of an affidavit in support of a search warrant is an activity involving the investigative or administrative duties of a prosecutor, rather than a prosecutor's rule as an advocate in a commenced case.

The pair of rulings establishes a template for suing prosecutors who are involved in the issuance of search warrants in cases where a clearly established constitutional right makes it unconstitutional to do so. In particular, it strongly discourages prosecutors from bringing questionable criminal libel lawsuits in Colorado.

Since, in this case, most of the defenses to the plaintiff's case were questions of law, rather than claims that assertions that the facts alleged in the case were not true, the ruling makes the plaintiff's case much stronger.

In a case like this one, the stakes aren't particularly high. The damages suffered by the Plaintiff, Mr. Mink, in having his computer seized by police, were probably modest in economic terms. He was not wrongfully imprisoned. He could win an award for non-economic damages, but is unlikely to win that kind of large award that juries sometimes hand down in police brutality and racial bias cases. In theory, the prosecutor is personally liable for the suit, but in practice, the government or its insurance pool, is likely to pay any damage award on her behalf. From a professional reputation perspective, this is probably not a career ending event, despite the fact that it is very rare for prosecutors to be found legally liable for violating someone's civil rights.

But, the stakes could have been much higher if the damages had been greater, for example, if someone had been physically injured or killed in the police search of the house.

To be clear, this ruling does not find that Colorado's criminal libel statute is unconstitutional. Instead, it holds that participating in the issuance a search warrant in a criminal libel case that clearly has no legal basis is unconstitutional and gives rise to a right to seek money damages.

One practical result of this case in Colorado politics may be to discourage the criminalization of campaign conduct. Almost every election year, someone asks some prosecutor to press charges against a candidate under one of the Colorado statutes that makes it illegal to make false statements of fact about an opponent. Almost invariably, prosecutors say no, but the temptation is always there, particularly in light of the fact that Colorado's prosecutors are partisan elected officials. This ruling gives Colorado prosecutors cover to say that they won't enforce these criminal libel laws and similar election laws.

The outcome also encourages prosecutors to bring charges without conducting searches and seizures, effectively subjecting their discretion to supervision by a judge hearing lawyers for both sides of case, in cases that are constitutional close calls.

Lawyers have higher ethical obligations in requests for search warrants and other "ex parte" proceedings where the lawyer for the other side is not present when a judge is asked to take action, than in contested adversarial proceedings. In an ex parte proceeding, the lawyer before the court must inform the court of all material facts, even those that hurt the lawyer's case, and prosecutors also have an ethical duty to refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.