Criminal Libel Prosecution—Under a Statute Struck Down 30 Years Before

A woman's case against the defendants who arranged the prosecution (a police department captain, who was her ex-husband and the target of her speech, and his friend who was a police investigator) can go forward.

From yesterday's decision in King v. King (M.D. Ga. Sept. 20, 2018), written by Judge Marc T. Treadwell:

On January 15, 2015, Anne King posted on Facebook: "That moment when everyone in your house has the flu and you ask your kid's dad to get them (not me) more Motrin and Tylenol and he refuses." Her post referred to Captain Corey King, the father of Ms. King's children, her ex-husband, and an officer with the Washington County Sheriff's Department.

Later that morning, Captain King, feeling upset and "disrespected" over the post, contacted Washington County's magistrate court about initiating a criminal complaint against Ms. King. Captain King then went to the courthouse office of Washington County Sheriff's Department Investigator Trey Burgamy, his "[p]retty good friend" or "close friend," to begin the process for having Ms. King arrested….

After some twists and turns, and at the suggestion of Washington County Chief Magistrate Ralph Todd, Investigator Burgamy prepared an affidavit, swearing to the following facts:

Personally came INV. TREY BURGAMY, who on oath says that, to the best of his/her knowledge and belief, ANNE MARIE KING did in the County aforesaid, commit the offense of, TO WIT: CRIMINAL DEFAMATION … against LAWS OF THE STATE OF GEORGIA (O.C.G.A. 16-11-40)

Said offense being described as SUBJECT DID, WITHOUT A PRIVILEGE TO DO SO AND WITH INTENT TO DEFAME ANOTHER, COMMUNICATE FALSE MATTER WHICH TENDS TO EXPOSE ONE WHO IS ALIVE TO HATRED, CONTEMPT, OR RIDICULE, AND WHICH TENDS TO PROVOKE A BREACH OF PEACE. SPECIFICALLY, SUBJECT DID MAKE DEROGATORY AND DEGRADING COMMENTS DIRECTED AT AND ABOUT COREY KING, FOR THE PURPOSE OF PROVOKING A BREACH OF THE PEACE.

And thus deponent makes this affidavit that a warrant may issue for [the subject's] arrest….

Ms. King was arrested and put in a holding cell for 5½ hours, until her aunt bailed her out. But, as the court noted,

"Criminal defamation" is not a crime under the laws of Georgia, and it has not been since the Georgia Supreme Court struck it down as unconstitutional in 1982. In fact, the Georgia Law Enforcement Handbook and the Official Code of Georgia that Investigator Burgamy used for his reference specifically stated that the criminal defamation statute "has been held unconstitutional in the case of Williamson versus State 1982." … Not surprisingly, the charges against Ms. King were ultimately dismissed.

Ms. King sued Captain King and Investigator Burgamy; the court concluded that King wasn't liable for violating her First and Fourth Amendment rights because he was acting as a private individual, not a government official, in asking for her to be arrested and prosecuted, but the court allowed the constitutional case to go forward against Burgamy:

Investigator Burgamy … ignores his critical role in the patently absurd, and unconstitutional, decision to arrest Ms. King for criminal defamation. It is a constitutional violation to sign an affidavit for a warrant that a reasonably well-trained officer would have known failed to establish probable cause and that he should not apply for the warrant. Accordingly, when the evidence is construed in the light most favorable to her, Ms. King has shown that Investigator Burgamy violated her constitutional rights by signing the affidavit for her arrest warrant….

Naturally, Investigator Burgamy does not argue that it was not clearly established that an officer could not sign an affidavit seeking an arrest for criminal defamation, nor does he argue that it was not clearly established that he could not swear something was false when he did not know it to be false. Rather, building on his "following orders" argument, he asserts that the issue is whether it was clearly established that it was unconstitutional or illegal for a law enforcement officer to "second guess a [M]agistrate [J]udge's decision" or "refuse to follow the court's order."

As discussed [above], that is not the issue; there is evidence that Investigator Burgamy was not merely following an order. Construing the evidence in the light most favorable to Ms. King, the issues instead are whether it was clearly established that it was unconstitutional for an officer to sign an affidavit swearing that probable cause existed to arrest a person for violation of a statute that the Georgia Supreme Court had held unconstitutional, and for that officer to sign that affidavit when he did not know of "a single fact that supported" the affidavit, and did not even know if the statement he swore was false was, in fact, false. That question is easily answered….

Accordingly, when the evidence is construed in the light most favorable to her, Ms. King has shown that the constitutional rights Investigator Burgamy allegedly violated—signing an affidavit swearing to information that was not "believed or appropriately accepted by the affiant as true" and effecting an arrest without even "arguable probable cause" on a law that had been held unconstitutional by the Georgia Supreme Court over thirty years prior—were clearly established at the time of the incident.

And the court also allowed Ms. King's state law malicious prosecution claim against Captain King as well as Investigator Burgamy to go forward (that state-law claim doesn't require a showing that Captain King was acting in his official capacity):

Captain King set out to have Ms. King arrested for a Facebook post he did not like. A jury could reasonably find Captain King, given his law enforcement background, knew that Ms. King's post did not provide probable cause for her arrest. A jury could reasonably find Captain King enlisted Investigator Burgamy (who was not a licensed attorney) to assist him in his quest. A jury could also reasonably find Investigator Burgamy, after researching the law, knew that posting on Facebook the way Ms. King did was not a crime and most certainly did not constitute criminal defamation. Further, a jury could reasonably find that Investigator Burgamy swore to the truth of facts he did not know to be true. Given this, a jury could reasonably find that the Defendants jointly prosecuted Ms. King without probable cause….

Magistrate Todd's decision to sign a warrant authorizing the arrest of Ms. King for criminal defamation, rather than harassing phone calls, does not absolve the Defendants of the consequences of what they set in motion. Accordingly, the Defendants are not entitled to summary judgment on Ms. King's state law claims for malicious prosecution….

(There couldn't be a successful claim against Magistrate Todd, because judges are immune from civil liability for their official errors.)