The Volokh Conspiracy
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Police Officer Gets Critic Prosecuted for "Harassment," Based on Critical Online Posts
Now the critic's First Amendment lawsuit over this (and other matters) can go forward.
From Judge Lee Rudofsky's opinion denying summary judgment, yesterday's Long v. Smith (E.D. Ark.); seems quite right to me (for more on criminal harassment statutes and the First Amendment, see this article):
On May 15, 2016, Derrick Long (Grant Long's nephew) filed a personnel complaint against Officer [Darren] Smith. Derrick Long accused Officer Smith of unlawfully entering Derrick Long's house, taking his dog, and stealing $900. In response to this personnel complaint, the Forrest City Police Department conducted an Internal Affairs investigation. During the investigation, Officer Smith told investigators that his bodycam would show that he never ventured beyond the doorway of Derrick Long's home. Officer Smith also said that he never took the dog.
On June 3, 2016, the Internal Affairs investigator informed Officer Smith that a complete review of the investigation resulted in a "finding of true." That is, Derrick Long's complaint about Officer Smith's conduct was confirmed as being accurate. [Details omitted. -EV]
After this incident, Grant Long (our Plaintiff) sent a Freedom of Information Act request to the Forrest City Police Department. [Details omitted. -EV] On January 8, 2018, Mr. Long filed [but later lost] a pro se federal lawsuit against Forrest City, Officer Smith, and numerous other city officials. [Details omitted. -EV] …
The 2018 lawsuit was not the only source of strife between Mr. Long and Officer Smith. At some point, Mr. Long obtained (from Officer Brayboy) a video involving Officer Smith. The video shows footage of a traffic stop conducted by Officers Smith and Brayboy. The video picks up when Officer Smith is administering a portable breathalyzer test to a driver suspected of DWI. [Details omitted. -EV]
There's more to the video than just the stop itself. The video is captured by a bodycam. The timestamp information on the video indicates that the bodycam was assigned to Officer Brayboy. But it is clear that Officer Smith was in fact the person wearing Officer Brayboy's bodycam for a majority of the traffic stop. [Details on this, and on alleged deletions of video, omitted. -EV]
On March 23, 2018, Mr. Long posted the video on Facebook. Above the link to the video, Mr. Long wrote, "Look at the work we pay for just touch the link to play it." Below the link, Mr. Long wrote, "SMITH LETS A DIRTY DWI DRIVER GO." Subsequent to posting the video, Mr. Long also posted a comment in the comments section. That comment read, "But Eric said it clear[ly] show the point level but he couldn't say why the officer deleted the video in the street but this is an officer who say he is missing a whole mo[n]th of video." …
The very next day, Officer Smith drafted and filed an Affidavit of Arrest. [The Affidavit alleged that Long had stolen a document, and that Long's posts constituted harassment; I will focus below on the harassment claim: -EV]
Arkansas State Statu[t]e 5-71-209 defines Harassing communications as communicating with a person, anonymously or otherwise, by telephone, telegraph, mail, email, message delivered to an electronic device (Computer, Cell Phone, ETC,) or any other form of written or electronic communication in a manner likely to harass, annoy, or cause alarm. Mr. Long had full knowledge that I was a Forrest City Police Office[r] at the time of the posts and posted the items and a false claim in an effort to annoy, cause alarm, embarrass and in a manner that was indicative of his malice towards me.
Arkansas State Statu[t]e 5-71-208 defines Harassment as engaging in conduct or repeatedly committing an act that alarms or seriously annoys another person and that serves no legitimate purpose. Mr. Long had full knowledge that I was a Forrest City Police Office[r] at the time of the posts and engaged in conduct that annoyed me and continues to do so, and his actions serve no legitimate purpose and Grant Long did so in a manner that was indicative of his malice towards me….
On the same day (March 27, 2018), the St. Francis County District Court relied on the Affidavit of Arrest to find probable cause to arrest Mr. Long. The district court issued a Warrant of Arrest, directing law enforcement to arrest Mr. Long for the following offenses: harassing communications, harassment, and theft by receiving…. [At trial,] Mr. Long was acquitted on all three charges––harassing communications, harassment, and theft-by receiving.
The Court held that Long's claim against Smith for retaliatory inducement of prosecution could go forward, in part because (under the facts as alleged by Long) there was no probable cause for the charges:
"[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out." Both the United States Supreme Court and the Eighth Circuit have recognized claims for "retaliatory inducement to prosecute." A retaliatory inducement to prosecute occurs when a government official, such as Officer Smith, "influence[s] the prosecutorial decision … in retaliation" for protected speech, and thereby "induce[s] the prosecutor to bring charges that would not have been initiated without [the government official's] urging." …
Mr. Long says Officer Smith intentionally lied about much or all of [the information in his affidavit]. He says Officer Smith did so in retaliation for Mr. Long's public criticism. And he says this intentionally false information led to his prosecution…. The biggest problem for Defendants is that there are genuine and material disputes of fact that preclude summary judgment. The record is replete with genuinely disputed material facts from which a rational juror could find that Officer Smith knowingly lied or recklessly disregarded the truth in multiple portions of the Affidavit of Arrest—including the portions concerning harassment and harassing communications. [Details omitted. -EV]
[Moreover,] there are genuinely disputed material facts that could allow a juror to conclude there was no probable cause for one or both charges [as a matter of law].
Let's start with harassing communications. Arkansas Code Annotated section 5-71-209 provides in pertinent part:
A person commits the offense of harassing communications if, with the purpose to harass, annoy, or alarm another person, the person: (1) Communicates with a person, anonymously or otherwise, by telephone, telegraph, mail, email, message delivered to an electronic device, or any other form of written or electronic communication, in a manner likely to harass, annoy, or cause alarm.
There is nothing in the Affidavit (once it is reconstructed) or in the record that supplies probable cause to believe Mr. Long violated the statute. Mr. Long made his two postings (plus one comment) to the Facebook group, Let's Talk Forrest City. Although it turns out that Officer Smith was part of that group, nothing in the Affidavit of Arrest or the record suggests that Mr. Long knew Officer Smith was part of that group. A rational juror could read the record in a way that establishes Mr. Long did not "communicate[] with [Officer Smith]" as that term is used in the statute. He certainly didn't communicate with Officer Smith "in a manner likely to harass, annoy, or cause alarm" to Officer Smith. Moreover, on this pro-plaintiff read of the record, because Mr. Long did not know that Officer Smith would see his posts, Mr. Long could not have the "purpose to harass, annoy, or alarm" Officer Smith.
The harassment charge is even more far-fetched. Arkansas Code Annotated section 5-71- 208 provides in pertinent part:
(a) A person commits the offense of harassment if, with purpose to harass, annoy, or alarm another person, without good cause, he or she: …
(5) Engages in conduct or repeatedly commits an act that alarms or seriously annoys another person and that serves no legitimate purpose.
The statute explicitly allows conduct that serves a legitimate purpose, even if it does alarm or seriously annoy someone. On the most plaintiff-favorable read of the genuinely disputed material facts, Mr. Long (1) posted a bodycam video of the traffic stop, (2) fairly criticized Officer Smith's handling of the traffic stop on the video, and (3) posted a formal letter detailing the results of an Internal Affairs investigation into Officer Smith. If these postings do not serve a legitimate purpose, nothing does. If these postings do not serve a legitimate purpose, then the statute violates the First Amendment. Accordingly, there's no probable cause for the harassment charge.
The court added:
If Arkansas's harassing communications statute were to be interpreted to prohibit what (on the most pro-plaintiff read of the record) Mr. Long has done here, the statute would clearly violate the First Amendment. A private citizen criticizing a police officer's conduct of a traffic stop and disseminating an Internal Affairs finding of bad behavior by the officer occupies the heartland of protected speech. State statutes can constitutionally encroach on that right to criticize only for very limited reasons. For example, a statute can prevent and punish speech that "by [its] very utterance inflict[s] injury or tend[s] to incite an immediate breach of the peace." (This is why libel and fighting words can be prohibited.) Mr. Long's two postings and one comment on Facebook fall nowhere close to the vicinity of that type of speech. No public official (including Officer Smith) could possibly conclude that Mr. Long's speech was anything other than core political speech protected by the First Amendment.
And the court rejected Smith's qualified immunity argument, because "Mr. Long's right to criticize police without facing a retaliatory criminal prosecution in the absence of probable cause (or even arguable probable cause) was clearly established as of the date Officer Smith filed the Affidavit of Arrest (March 27, 2018)."
There's a lot more in the opinion, which is long but well-written and interesting; check it out. And congratulations to lawyer Robby Golden on defeating summary judgment here.
