Qualified Immunity

Cops Who Arrested Man Over Fake Facebook Page Get Qualified Immunity

Anthony Novak's arrest and subsequent lawsuit set up a debate around overcriminalization and free speech.

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In March 2016, Anthony Novak found himself in a jail cell for several days, his phone and computer seized by police. His offense: For 12 hours, he operated a parody Facebook page mocking the police department in Parma, Ohio, advertising fake community-outreach events like a "Pedophile Reform" meeting and a gathering with free abortions out of a police van.

After several people contacted the station, police went on to secure several warrants: a search warrant for Facebook, another for Novak's apartment, and an arrest warrant. He was prosecuted under an obscure Ohio law that prohibits using a computer to hinder police duties.

A jury wasn't convinced. Novak was acquitted, his peers unswayed by the claim that the approximately 10 phone calls the page elicited to the department caused a disruption in operations. "The statute he was charged under was clearly aimed at people who intentionally clog 911 lines or hack an agency's website," Ari Cohn, an attorney who focuses on the nexus between free speech and technology, tells Reason. "If creation of a parodical department page really has that level of effect, the Parma Police Department should do some serious soul searching as to what it's actually doing."

Yet a federal court was similarly not persuaded by a civil suit filed by Novak, who argued that the officers violated his constitutional rights, setting up a debate around overcriminalization and free speech.

"While protected speech can be evidence that a speaker committed a separate crime, the First Amendment bars its use as the sole basis for probable cause," writes Judge Amul Thapar of the U.S. Court of Appeals for the 6th Circuit. Point for Novak. But some of Novak's other actions derailed his claim: "He also modeled his page after the Department's, using the same profile picture. He deleted comments that let on his page wasn't the official one. And when the Department tried to clarify that Novak's page was imitating its own, he copied the official page's clarification post word for word."

Put more plainly, Novak's words were protected speech. But scrubbing words and parroting the department might not have been, according to Thapar.

The decision goes on to grant the officers qualified immunity, which prevents state and local government actors from having to face civil suits for allegedly violating people's rights if there is no prior court precedent clearly litigating the facts of a plaintiff's accusation. His suit was therefore doomed. "Novak has not identified a case that clearly establishes deleting comments or copying the official warning is protected speech," notes Thapar.

Had Novak overcome qualified immunity, he was not guaranteed any monetary damages; he would merely have been given the opportunity to state his case before a jury for their review.

"The 6th Circuit's decision is just the latest exemplar of the absurdity that qualified immunity has wrought, with its unwarranted deference to police who violate constitutional rights," adds Cohn. "The parodical Facebook page is very clearly protected by the First Amendment, and the court's weaseling its way into finding a question about that beggars belief. The power of parody and satire draws in large part from its ability to closely mimic its target while adding absurdist exaggeration."

Though Thapar was not satisfied that the officers acted unreasonably under the law, he appeared skeptical that their actions were sensible. "Granting the officers qualified immunity does not mean their actions were justified or should be condoned…. Was Novak's Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak's and the government's time?" he asks. "We have our doubts."

NEXT: Don't Prosecute the Supreme Court Leaker

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  1. Yet a federal court was similarly not persuaded by a civil suit filed by Novak, who argued that the officers violated his constitutional rights, setting up a debate around overcriminalization and free speech.

    Um...

    police went on to secure several warrants: a search warrant for Facebook, another for Novak's apartment, and an arrest warrant. He was prosecuted under an obscure Ohio law that prohibits using a computer to hinder police duties.

    There are a LOT of moving parts here that went far, far beyond the two uniforms they dispatched to his house to tell him "Yeah, this isn't a social call..."

    1. I mean, he could have sued the Janitor at the local precinct and probably had better chances.

  2. Fake Facebook Page

    Fighting Disinformation.

    1. Hey, the cops were merely doing what the New York Times has been calling for in repeated breathless editorials.

      1. Hey, the cops were merely doing what Reason Magazine has been calling for in repeated breathless editorials.

        FTFY

  3. Like in most of these cases, you single out the cops, but you overlook the prosecutor who filed charges, and hell, even the judge that let it go to a jury trial and didn't throw it out immediately.

    Cops generally aren't very bright or educated. Why should they be the arbiters (and thus sued) and not the lawyers and judges that apparently thought it had enough merit to file charges and actually go to trial?

    1. Shirley the Bar Association will give the prosecutor and judge the punishment they deserve for this travesty of law (not justice)

    2. But what if the cops lied to everyone, including the grand jury? What if the judge was dumber then a bug, and all were in a system of that protected them? What if the system was so bad that nobody cared.

  4. Thanks for your beyond belief blogs stuff. looking for a Accountant Cambridge ? Check out this!

  5. This article is well researched and written and supports 100% the decision to allow qualified immunity. Having 'doubts' doesn't pass the laugh test if that is the standard to decide the issue.

    1. no it wasnt.

  6. Classic opinion from a conservative judge who opines on "religious liberty" but otherwise favors a police state. Who advocates for asset forfeiture to police all his career, but kept a 84 year old nun in pre-trial detention because she was an "imminent national security threat."

    We all know which party keeps nominates these police-state loving judges to the bench, but no one seems to acknowledge it.

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