Sheriff Sued After Threatening To Arrest A High School Student Over Her Coronavirus-Related Instagram Posts

from the shouting-'arrest'-in-a-pandemic dept

Law enforcement officers and officials are given a considerable amount of discretion. Too bad they so rarely use it.

The sheriff of Marquette County, Wisconsin decided to exercise his considerable discretion by threatening a teenager's parents with jail over her Instagram posts. And for that misuse of his discretion, Sheriff Joseph Konrath is being sued. (h/t SBWisLaw)

A high school sophomore sued the Marquette County sheriff Thursday after he threatened to take her or her family to jail for her post on Instagram warning that she believed she had been infected with coronavirus.

The student, Amyiah Cohoon, went on a spring break trip with her class to Florida. It was cut short due to coronavirus concerns. Once she returned home, she developed COVID symptoms and went to the doctor. After a couple of hospital trips, she tested negative for the virus but was advised it was possible she had had it earlier but had been tested too late to get a positive result.

As was the style at the time, Cohoon made some social media posts about her health situation that weren't entirely accurate.

She posted three messages on Instagram about her situation — one saying she wouldn't be back for a while because she had coronavirus, one saying she might have to stay in the emergency room and one with her wearing an oxygen mask.

"I am still on breathing treatment but have beaten the coronavirus. Stay home and be safe," she wrote in the last post.

These may have been slightly exaggerated. But they also could have been 100% truthful. The teen probably had no way of knowing. The lawsuit [PDF] quotes a release form from the ER saying Cohoon showed symptoms "consistent with COVID-19." Not only that, but health experts have discovered some infected patients are testing negative for the virus.

Consistent with what the doctors told the Cohoons, some health experts believe that “nearly one in three patients who are infected [with COVID-19] are nevertheless getting a negative test result.” See Christopher Weaver, Questions About Accuracy of Coronavirus Tests Sow Worry, Wall Street Journal (Apr. 2, 2020).

Whether or not the posts were 100% accurate, the response from the Sheriff's Department was 100% idiotic.

During the evening on March 27, Defendant Patrol Sergeant Cameron Klump from the Marquette County Sheriff’s office came to the Cohoons’ home. Amyiah answered the door, and Sergeant Klump said he needed to speak with her father.

After Mr. Cohoon came outside, Sergeant Klump explained that the school “superintendent” had complained to Defendant Sheriff Joseph Konrath about one of Amyiah’s Instagram posts. Sergeant Klump showed Mr. Cohoon a screenshot of Amyiah’s third Instagram post (described in paragraph 33 above). A true and accurate copy of the cropped screenshot Sergeant Klump showed Mr. Cohoon is attached hereto as Exhibit 5.

Sergeant Klump stated that he had direct orders from Sheriff Konrath to demand that Amyiah delete this post, and, if she did not, to cite Amyiah and/or her parents for disorderly conduct and to “start taking people to jail.”

The sergeant also claimed Sheriff Konrath wanted the post removed "because there were no confirmed COVID-19 cases in the county at the time."

The sergeant then told Amyiah directly that the sheriff had ordered him to issue citations for disorderly conduct if her post was not removed. Fearing her parents would be arrested, Amyiah deleted her posts.

Clearly, this conduct violated Amyiah's First Amendment rights. If the best you can offer is something vague about "disorderly conduct," you really have no case. Whether or not the posts were 100% medically accurate is beside the point. And the statements made by the sheriff's deputy suggest the only reason the sheriff was demanding their removal was to keep the county's case numbers at zero. Secondary to that was mollifying the school, which has issued its own stupid statement about Amyiah's posts.

Administrator Meicher’s update stated that, “It was brought to my attention today that there was a rumor floating out there that one of our students contracted Covid-19 while on the band trip to Florida two weeks ago. Let me assure you there is NO truth to this. This was a foolish means to get attention and the source of the rumor has been addressed. This rumor had caught the attention of our Public Health Department and she was involved in putting a stop to this nonsense. In times like this, the last thing we need out there is misinformation…"

The lawyer representing the sheriff has confirmed the actions taken by the sheriff violated Amyiah's rights... if only inadvertently. Not all lawyers are Constitutional experts, but any lawyer engaged in defending someone against First Amendment claims should know better than to say something like this:

Sam Hall, an attorney for the sheriff, said the teenager "caused distress and panic" among other parents by claiming she had contracted the coronavirus despite getting a negative test result. (And the Milwaukee Journal Sentinel -- beneficiary of First Amendment protections -- should definitely know better than to state this refers to speech not protected by the Constitution.)

"This case is nothing more than a 2020 version of screaming fire in a crowded theater," he said, referring to speech that is not protected by the First Amendment.

This is a tell that your litigation opponent is the sucker at the table. That line is pulled from a Supreme Court decision that treated certain anti-war speech as a criminal offense, rather than protected speech. This precedent was walked back in a later Supreme Court decision. And it's notable that everyone who quotes this line to defend their First Amendment violations omits one key word: "falsely." It's not illegal to truthfully scream fire in a crowded theater or even to do so while the existence of an actual fire may still be in dispute. The smell of smoke alone can justify shouts of fire.

If this is the legal defense the sheriff plans to mount ("aggressively," according to his legal rep), he's screwed. The school could have spoken to the student's family directly and expressed its concerns with the post. And that may have been resolved amicably. Or everyone could have done nothing and lived through the apparent panic Amyiah's posts failed to provoke. But everyone got stupid and now there's a Constitutional lawsuit to be dealt with. Discretion is only a positive when it's exercised in a way that's beneficial.

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Filed Under: 1st amendment, amyiah cohoon, covid-19, free speech, high school, marquette, wisconsin


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  • icon
    Stephen T. Stone (profile), 24 Apr 2020 @ 11:00am

    I’d use a certain Simpsons reference here, but I think that lawyer doesn’t even know how a shovel works.

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

  • identicon
    Anonymous Coward, 24 Apr 2020 @ 11:03am

    Not sure I follow the logic behind arresting the parents. I get the fines on parents for vandalism done by offspring but this is not the same.

    Being arrested for speech? That is not cool.

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

    • identicon
      Anonymous Coward, 24 Apr 2020 @ 2:20pm

      Re:

      There was no logic. It was 100% bullshit misuse of power to intimidate and abuse them into removing the post. If they had a legitimate complaint, they would have gone to a judge and or had the post removed directly. Instead, they abused their powers and now are trying to pretend they didn't.

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

  • icon
    Khym Chanur (profile), 24 Apr 2020 @ 11:12am

    Just out of morbid curiosity I'm looking forward to the sheriff trying to justify himself. That even if a person 100% has the coronavirus that it's still illegal for them to share that info, because it could lead to a panic, so every should just shut up? That citizens need to first prove to the government that they're infected before they can publicly share that info?

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

  • icon
    ysth (profile), 24 Apr 2020 @ 11:16am

    hightened stakes

    One important point to remember is that a threat to arrest during a pandemic is a threat to expose the arrestee to illness or even an inadvertent death sentence.

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

  • identicon
    Anonymous Coward, 24 Apr 2020 @ 11:32am

    I would hope there is a way to drag the school administrator into this or another action, as well as "she, the Public Health Department".

    Wow, what a bunch of assholes.

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

  • icon
    PaulT (profile), 24 Apr 2020 @ 11:54am

    There's a simple fix for this, as I understand. There's 2 types of test - antigen and antibody. The former tells you if you currently have the virus. The latter tells you if you have previously had it by detecting the presence of antibodies that would only be present in people who have been exposed. The most common is the former, which is the one she presumably had. She just needs access to the other test.

    That won't fix the authoritarianism problem, but at least they will show the truth of whether she had this particular disease.

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

  • identicon
    Naughty Autie, 24 Apr 2020 @ 12:11pm

    Even if the posts contained 100% inaccurate information, they're still protected opinion. The fact that Amyiah Cohoon having had the virus is a physician's opinion is neither here nor there.

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

  • identicon
    Anonymous Coward, 24 Apr 2020 @ 1:15pm

    She should have....

    Started coughing right on that f*ing deputy and said 'first take me to see that Sheriff Joseph Konrath so I can cough on him, After all, you have nothing to fear if as you say, I don't have the disease.'

    Marquette county idiots office, to threaten and suppress!

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

  • identicon
    Anonymous Coward, 24 Apr 2020 @ 1:20pm

    ATTN: ALL Residents of Marquette County Wisconsin:

    Please use your social media accounts to speculate that you might have COVID-19.

    Streisand the hell out it.

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

  • identicon
    Anonymous Coward, 24 Apr 2020 @ 8:47pm

    Heya, Tim.

    While you called out that the lawyer was being stupid about a Supreme Court argument that doesn't hold, you did not also call out the journalist for failing to point out just that fact.

    Journalists live and die by the first amendment too.

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

    • identicon
      Anonymous Coward, 25 Apr 2020 @ 2:19am

      Re:

      While the journalist/paper has no bearing on the girl's case, they were called out in the quote. What else should there be?

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

    • identicon
      Anonymous Coward, 27 Apr 2020 @ 5:32am

      Re:

      you did not also call out the journalist for failing to point out just that fact.

      Because then the RWNJ's come out of the woodwork and yell "BIAS!!!!!"

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

  • identicon
    dr evil, 25 Apr 2020 @ 4:16am

    immunity

    the loss of immunity should also release the city of the costs of defense and payout.

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

  • identicon
    Anonymous Coward, 25 Apr 2020 @ 12:02pm

    I wish the school could be pargy to the lawsuit, what is with over zealous administrators and law enforcement that seem to think they can od whatever they want? The fact the sheriff was mentioned as directly requesting this will also be interesting.

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

  • identicon
    Anonymous Coward, 26 Apr 2020 @ 8:23am

    This student and her family need to ensure they have no candles or other 'inflammable' items in their house.

    Also no guns. AT ALL. otherwise either the doors will be mysteriously 'blocked' as the house burns down, or there will be a fake 'raid' in which the family is brutally accidentally killed when it looks like one of them has a sawn off shotgun which later turns out to be a Pool Noddle.

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

  • icon
    Wyrm (profile), 27 Apr 2020 @ 4:02pm

    And the Milwaukee Journal Sentinel -- beneficiary of First Amendment protections

    Did this lawyer just try to imply that only journalists have a claim to First Amendment protections? If so, he really needs to go back to school.

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

  • icon
    nasch (profile), 28 Apr 2020 @ 7:18am

    Did this lawyer just try to imply that only journalists have a claim to First Amendment protections?

    That part was actually Tim's editorial aside. It being included in the quote is a formatting error. And I interpreted that as saying a newspaper in particular should be more familiar with First Amendment case law.

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

  • icon
    DigitalEel (profile), 29 Apr 2020 @ 1:58am

    Review

    There's 2 types of test - antigen and antibody. The former tells you if you currently have the virus. The latter tells you if you have previously had it by detecting the presence of https://www.mcdvoice.page/ antibodies that would only be present in people who have been exposed. The most common is the former, which is the one she presumably had. She just needs access to the other test.

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

  • icon
    DigitalEel (profile), 29 Apr 2020 @ 1:59am

    Review

    While you called out that the lawyer was being stupid about a Supreme Court argument that doesn't hold, you did not also call out the journalist for failing to point out just that fact.

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

    • icon
      nasch (profile), 29 Apr 2020 @ 8:08am

      Re: Review

      While you called out that the lawyer was being stupid about a Supreme Court argument that doesn't hold, you did not also call out the journalist for failing to point out just that fact.

      He did. This part:

      (And the Milwaukee Journal Sentinel -- beneficiary of First Amendment protections -- should definitely know better than to state this refers to speech not protected by the Constitution.)

      is not from the source article, which means it is a comment from Tim. It's just badly formatted. Yo Tim, you should fix that. If you read these.

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

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