City Of Peoria Claims No Rights Were Violated When Police And Mayor Shut Down Parody Twitter Account

from the 'because-we-all-thought-we-were-doing-the-right-thing' dept

Back in April, humble Peoria, Illinois, made national news when its mayor and police department combined forces to shut down a parody Twitter account. The account, named after Mayor Jim Ardis, sent out a few days worth of sex-and-drugs tweets, something that very obviously would not have come from a mayor's actual Twitter account (exception: Rob Ford).

This very public display of stupidity may cost the City of Peoria, along with the many other defendants named in the lawsuit filed on behalf of the Twitter account owner (Jon Daniel) by the ACLU. Obviously, the First Amendment was all but forgotten in the mayor's quest to make this account -- one that was only seen by Mayor Jim Ardis and a handful of others -- disappear.

As is to be expected in responses to allegations, almost everything damning is denied. The only allegations the city's lawyers affirm are those that can't be refuted. Freedom of Information requests by Matt Buedel of the Peoria Journal Star brought the warrant application and email conversations between the police department and Mayor Ardis into the public eye. As a result, the city's plausible deniability options are extremely limited. But that hasn't stopped the city from making some very questionable denials. (via Ars Technica)
Defendants admit that from March 9 through March 19, 2014, Plaintiff tweeted from a twitter account, @peoriamayor, which used a picture of Defendant Ardis, the mayor of Peoria, as the account’s avatar. Defendants further admit that they pursued available legal means to shut down the account and to identify and pursue legal action against its creator. Defendants deny that they embarked on a plan to violate Plaintiff’s constitutional rights. Defendants admit that, after obtaining appropriate warrants, Peoria Police Department officers searched Plaintiff’s residence and seized certain of his personal property, and imaged certain personal information as a result. Defendants deny that they arrested, detained and interrogated Plaintiff for the crime of false personation of a public official.
While there's no record that indicates the defendants "embarked on a plan" to violate Daniel's First Amendment rights, his rights were violated all the same. But the last sentence skirts the edges of plausibility. While it's true that the police never issued an arrest warrant for the charge of false personation, it did use that charge to obtain a search warrant of Jon Daniel's home. Daniel was picked up by the police and questioned about his involvement with the Twitter account, but he was never truly arrested. Instead, he was detained -- the sort of thing that can turn indefinite while simultaneously freeing the police from having to file any possibly damning paperwork. So, the first part ("arrest") didn't happen. But the last two ("detained," "interrogated") did.

The claim that the city used "legal means" to pursue the Twitter user is also dodgy. While all the appropriate paperwork was indeed legal, the charge under which they were acquired was bogus, as became completely apparent when the State's Attorney's office refused to prosecute.

While still in full denial mode, the city also takes issue with certain characterizations made by the plaintiff.
28. On March 20, 2014, Ardis and the City, in a letter to Twitter written by the Interim Corporation Counsel for the City, threatened to file a federal lawsuit seeking an injunction against Twitter to terminate the Twitter account. Twitter suspended the Twitter account that same day.

ANSWER:
Defendants admit the allegations contained in paragraph 28, except Defendants deny the characterization of the letter as “threatening.”
A letter that informs a party that efforts will escalate if cooperation isn't forthcoming is, by definition, a "threatening" letter. There's no way around it. The only way the city counsel's letter wouldn't have been threatening is if it hadn't been written at all. The defendants may not like the characterization (which, it should be noted, is a characterization the plaintiff never makes in the allegations), but that's an inarguable point. Friendly letters don't contain warnings about potential legal actions.

Further on, the city's lawyers attempt to deny the plaintiff felt the way he claims to have felt.
At the police station, Mr. Daniel was told he had to take everything out of his pockets before entering an interrogation room. Mr. Daniel emptied the contents of his pockets, which included his cellular telephone, and placed the items on a chair in the station. He was then taken into an interrogation room. Mr. Daniel reasonably believed he was not free to leave the interrogation room or the police station.

ANSWER:
Defendants admit the allegations contained in paragraph 37, except Defendants deny Plaintiff’s characterization of the interview room as an interrogation room, and further deny that Plaintiff reasonably believed he was not free to leave when he was at the police station.
I'm not sure how a defendant can claim a plaintiff is wrong about their beliefs. We're not talking about creation vs. evolution or round earth vs. flat earth but whether Daniel felt he could just get up and walk out of the interrogation/interview room. Most people -- many of them "reasonable" -- feel that being detained by police officers only ends when the officers say it ends. They may be able to force the issue by asking (repeatedly) "Am I free to go?" but it's a nearly universal feeling that one does not simply leave an interview room -- especially when a police officer or two are standing in it.

Not only is it a terrible claim to make in general, but it's an awful thing to say in a court document. This is the City of Peoria telling the judge that it knows how Daniel felt when he was detained and he didn't feel the way he says he felt in his allegations. That's a pretty audacious statement even if it is the sort of thing that routinely graces defendants' response filings.

And, finally, the city asks everyone to trust that it hasn't dug through the contents of the numerous electronic devices that were seized.
Defendants deny that Defendant Hughes searched Plaintiff’s electronic devices. Defendants admit that Defendant Feehan imaged Plaintiff’s cell phone, and that other electronic devices which may have belonged to Plaintiff may also have been imaged for subsequent review by detectives, but state affirmatively that the State’s Attorney’s Office indicated it would not be pursuing charges against Plaintiff before any such data was reviewed and that, as a result, it was determined that the data would not be reviewed.
First off, we're expected to believe no searching occurred (or will occur) despite the fact that the electronics were imaged by the Peoria police. At the very latest, the police secured warrants to search the electronics by April 17th. It wasn't until April 23rd that it was announced that the State Attorney was dropping the charges. That's nearly an entire week. (Daniel's phone -- seized during his "interview" with the Peoria PD -- wasn't returned until May 2nd, and only after he non-threateningly threatened legal action.) The investigation was still open during the intervening six days and the police had secured warrants, so it seems highly unlikely no one took at look at the data obtained. And unless someone specifies otherwise during the course of this lawsuit, the police still have the imaged content.

The denials are followed by a three-page list of affirmative defenses that states the rest of the defendants are either entitled to qualified immunity or not directly liable for these actions. The most ridiculous claim here is that shutting down a parody Twitter account (one that was marked as a parody before most of the legal action took place) wasn't a violation of Daniel's First Amendment rights.
With regard to Plaintiff’s First Amendment claim, Defendants have qualified immunity from liability for the damages claimed by Plaintiff because Defendants did not violate any clearly established constitutional rights of which a reasonable person would have known.
So, the city's lawyers feel Jon Daniel "reasonably" should have known he could just walk out of a police interview room at any time, but that shutting down a Twitter account and searching a house for electronics related to it wasn't the sort of thing that any "reasonable person" might find to be a violation of their First Amendment rights.

I realize a lot of this is just normal defensive legalese, but it doesn't make some of these assertions any less ridiculous, especially considering the events leading to this litigation -- namely, a mayor's offense at a clearly parodic Twitter account culminating in the seizure of every electronic device in Daniel's house. The fact that internal emails show that the police knew they had no solid legal footing to pursue this case is going to hurt the city's claims that everything about this debacle was lawful and reasonable.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    S. T. Stone, Aug 19th, 2014 @ 11:35am

    Holy shit, they're going to lose this lawsuit so badly that even the Prenda Players will feel sorry for them.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 11:49am

    I'm just going to put this here: Am I the only one who periodically gets hit with redirects to Cloudflare? Now Cloudflare is demanding I turn on javascript. Ain't gonna happen. I'm sure this has something to do with the fact that I use TOR. I'm guessing someone is using TOR to, what, try to DOS Techdirt and then I wind up using the same exit node and then I get fucked. I'm sure there must be more intelligent solutions than IP blocking, especially since exit nodes are detectable, and because packets used in DOS attacks are usually malformed in some way. Please tell me you guys are at least working on this

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Digger, Aug 19th, 2014 @ 11:55am

    New Constitutional Ammendment needed

    What we need, since the retards in office seem to think that there's actually any freedom to interpret what the original bill of rights means, is a clearly worded amendment that closes all of those pesky loopholes.

    Terminology would be something like this.

    The rights outlined in the previous, and any later amendments are hereby formally granted in perpetuity.

    These rights can NEVER be abridged by any person, corporation, government entity, up to and including any form of non-corporeal omnipotent being.

    Any attempts by anyone, any person, any entity, any government agency, any court, any corporation to abridge these rights at any time, including time of war, will be considered the highest of treason with summary execution as the only REQUIRED punishment.

    Said execution will be public, and take a minimum of 2 weeks for the miscreant to die in as horrible and painful method as can be devised.

    If it's a non-person (ie, Government Agency or Corporation) - the top 10 people in charge of the Agency or Corporation will be substituted for the non-person entity for the summary execution. There are no loopholes, no stays, no presidential pardons allowed.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 12:14pm

    Re: New Constitutional Ammendment needed

    Said execution will be public, and take a minimum of 2 weeks for the miscreant to die in as horrible and painful method as can be devised.


    "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    mcinsand, Aug 19th, 2014 @ 12:14pm

    Re: New Constitutional Ammendment needed

    I don't know that we need a Constitutional Amendment so much as to criminalize government officials' acts that undermine the Constitution. Perhaps we could have a couple of tiers of severity, depending on the damage scope to the country.

    Let's say a municipal or state offical abrogates a key amendment, such as first, second, fourth, whichever without due diligence. By 'diligence,' I mean that the official consulted with legal experts to make a good faith effort to avoid going against the constitution. To go directly against the Constitution without some effort to avoid going against the Constitution would then constitute a felony.

    On the federal level, we up this to an uber felony. Say a senator does something ridiculous, such as supporting warrantless wiretapping, this official is then convicted with measures beyond that of just a simple felony. Maybe they are also not allowed to ride in or operate a motor vehicle ever again. Voting or running for office is out of the question. And maybe we can impose some visible mark to note them as a pariah in polite company (forever required to wear flourescent paisley?).

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 12:16pm

    The balls on these fuckin' guys! 'Cause, yeah, I always walk out of a police station whenever I fucking feel like it.

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    GMacGuffin (profile), Aug 19th, 2014 @ 12:19pm

    At least we have a good idea how "Parody vs. First Amendment" will play in Peoria.

    (Sorry, couldn't help myself.)

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Baron von Robber, Aug 19th, 2014 @ 12:20pm

    Somebody needs to take Mayor Ardis's GOP card, tear it up and throw it in his face.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 12:27pm

    this is just the same sort of thing as the EU 'right to be forgotten' fiasco is about. the mayor and police involved in the case want this all to disappear. they have made plums of themselves over everything and are trying to get it all washed away. in the EU, it may be possible, after any court action i presume, to 'disappear' an embarrassing incident, but i doubt not in Peoria, USA. hopefully, Jon Daniel will get complete vindication and a nice fat cheque!!

     

    reply to this | link to this | view in thread ]

  10.  
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    limbodog (profile), Aug 19th, 2014 @ 1:02pm

    I'm hoping new parody accounts have already cropped up to replace the one illegally removed by corrupt politicians and police.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 1:14pm

    Damn....

    This mayor really is "Trill as fuck"

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 1:16pm

    Re:

    I run ff w/noscript... not getting any of that nonsense. I never allow scripts unless necessary.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 1:20pm

    Re: New Constitutional Ammendment needed

    Another Citizen out to lunch.

    Its called vote out the idiots... and if that is not possible, you do it by force... they will not leave peacefully and they have an Army to back them up.

    They are already blatantly ignoring every damn law as it is when it suits them... another will not make a damn bit of difference!

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Whoever, Aug 19th, 2014 @ 1:29pm

    "Detained"?

    Where did the concept that you can be forcibly "detained" without arrest come from? Have courts ruled on the validity of this?

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 2:39pm

    Re:

    https://twitter.com/NotPeoriaMayor

    Except it is focusing on Ferguson right now

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    connermac725 (profile), Aug 19th, 2014 @ 2:43pm

    mayor is an id10t

    now everyone knows what a moron he is and his keystone cops

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    John Fenderson (profile), Aug 19th, 2014 @ 2:57pm

    Re: "Detained"?

    The concept has been around for pretty much as long as the concept of "arrest" has, and has been upheld (with various limits and clarifications) multiple times by the Supreme Court. A reasonable (but necessarily imprecise) summary is found here: http://criminal-law.freeadvice.com/criminal-law/arrests_and_searches/arrest-detention.htm

    The differences between a detention and an arrest are important because your rights change drastically from one to the other. In a detention, the police only need reasonable suspicion to stop an individual, and a reasonable person would feel as though they could leave in a short amount of time. This timeframe can vary a bit based on the circumstances, but the U.S. Supreme Court has held that 20 minutes or so is a reasonable timeframe for detaining someone. Reasonable suspicion means that there were objectively reasonable circumstances to suspect that the detained individual was involved in, or was about to be involved in a crime.


    That summary brings up a 20 minute time limit, but in other rulings, the SC has upheld longer limits in other circumstances. Also, you can be restrained (handcuffed, locked in a cell, etc.) and have it still be considered a "detention".

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 3:26pm

    Re: Re: New Constitutional Ammendment needed

    He's proposing an amendment, so that isn't an obstacle (even if those pesky human rights treaties are, or at least would be if the US obeyed any or complied with the sanctions in them).

     

    reply to this | link to this | view in thread ]

  19.  
    icon
    nasch (profile), Aug 19th, 2014 @ 3:27pm

    Feelings

    Further on, the city's lawyers attempt to deny the plaintiff felt the way he claims to have felt.

    No, they didn't. They deny that he reasonably believed he was not free to leave. They're arguing that his belief wasn't reasonable, not that he didn't hold it. It's stupid, and I hope the court will disagree, but it's not quite as ridiculous as you make it seem.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 4:04pm

    Re:

    I don't think this has to do with TechDirt; I think this has to do with your TOR exit node choice.

    Either way, DON'T turn on javascript. The TLAs have been known to host exit nodes that attempt to send a little bit extra down the pipe along with the HTTPS stream.

    So; not a TechDirt DOS most likely, more of a probe to see who you are and what you're doing on Tor.

    I presume you know who Cloudflare is and what they do, other than offer DOS protection.

    Unless I'm wrong, and TechDirt is using Cloudflare to act as intermediary for known dodgy IPs?

    I've always thought that you should be able to prevent selected IP blocks from being used as your exit node, but I haven't quite worked through all the security implications of implementing that.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Aug 19th, 2014 @ 5:51pm

    "City Of Peoria Claims No Rights Were Violated When Police And Mayor Shut Down Parody Twitter Account"

    That's because you have no rights.

     

    reply to this | link to this | view in thread ]


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