from the how-could-they-have-known-this-would-be-unlawful dept
Back in early 2016, Parma, Ohio resident Anthony Novak decided to have a little fun. He created a parody of the Parma Police Department’s Facebook page and began posting obviously satirical announcements, like the following:
The Parma Civil Service Commission will conduct a written exam for basic Police Officer for the City of Parma to establish an eligibility list. The exam will be held on March 12, 2016. Applications are available February 14, 2016, through March 2, 2016. Parma is an equal opportunity employer but is strongly encouraging minorities to not apply.
The test will consist of a 15 question multiple choice definition test followed by a hearing test. Should you pass you will be accepted as an officer of the Parma Police Department.
Other content included announcements for the PD’s “roving abortion van,” a “pedophile reform event,” and plans to arrest anyone caught outside between noon and 9 pm.
The Parma PD couldn’t take a joke. Instead, it took action. It launched a full-blown investigation that involved seven officers, secured three search warrants, and raided Novak’s apartment to seize multiple electronic devices. Novak was charged with multiple felonies before the prosecutor’s office decided that might be a bad idea and offered a plea to reduce the charge to an unspecified misdemeanor. Novak rejected the offer. The police and prosecutor screwed around for awhile before finally deciding to charge him with disrupting police service by causing the department to be… um… mildly inconvenienced by calls about the parody page: a grand total of 10 calls in 12 hours.
Novak sued. The district court somehow found a way to award immunity to all of the involved officers. Novak appealed and the Sixth Circuit Court rolled back part of the lower court’s decision, pointing out the arrest clearly targeted protected speech. Just because the Parma PD didn’t like the parody page’s content didn’t justify the arrest, search, and criminal charges.
Novak’s page delighted, disgusted, and confused. Not everyone understood it. But when it comes to parody, the law requires a reasonable reader standard, not a “most gullible person on Facebook” standard. The First Amendment does not depend on whether everyone is in on the joke. Neither is it bothered by public disapproval, whether tepid or red-hot.
It asked the district court to take a second look at the officers’ immunity claims, especially in light of their use of a law the Appeals Court found extremely questionable.
Taken at face value, the Ohio law seems to criminalize speech well in the heartland of First Amendment protection. This broad reach gives the police cover to retaliate against all kinds of speech under the banner of probable cause. Critical online comments, mail-in or phone bank campaigns, or even informational websites that incite others to “disrupt” or “interrupt” police operations could violate the law.
Novak’s return trip to the district court went just as poorly as his initial trip. Five years after his arrest, the district court again awarded qualified immunity to the officers. It said the cops were reasonable to assume the parody page “disrupted police operations,” even if the facts on the record showed disruption was almost nonexistent and the content of the parody page was likely protected First Amendment expression. If the officers had probable cause to pursue an arrest, the lower court saw no reason to determine whether or not the page’s content was protected speech.
The case returned to the Sixth Circuit Appeals Court. This time around, the Sixth Circuit agrees [PDF] with the lower court: qualified immunity protects these officers from being sued over what is almost certainly a violation of Novak’s First Amendment rights. If there’s probable cause, there’s no reason to discuss the underlying rights violations.
No one contests that Novak used a computer and the Internet to create his knockoff page. And the officers believed that Novak’s page had “disrupted” their operations. They knew the call center had received multiple calls about the page, and the statute imposes no lower bound on how much disruption is required. So the officers could reasonably believe that the calls constituted a disruption. As to the knowledge element, the officers were permitted to rely on inferences. Here, the officers inferred that Novak knew he was disrupting operations from his decisions to repost the Department’s warning post on his own page and to delete comments that explained the page was fake.
The Appeals Court notes that protected speech can’t serve as the basis for probable cause. But it explains this apparent contradiction away by saying that because probable cause existed, the officers were free to assume (in an absence of case law) Novak’s speech was unprotected.
But while probable cause here may be difficult, qualified immunity is not. That’s because qualified immunity protects officers who “reasonably pick one side or the other” in a debate where judges could “reasonably disagree.” Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 443 (6th Cir. 2016). That’s just what the officers did—they reasonably found probable cause in an unsettled case judges can debate. Indeed, Novak has not identified a case that clearly establishes deleting comments or copying the official warning is protected speech. So even with Leonard’s protected-speech rule on the books, the officers could reasonably believe that some of Novak’s Facebook activity was not parody, not protected, and fair grounds for probable cause.
What’s more, the officers had good reason to believe they had probable cause. Both the City’s Law Director and the judges who issued the warrants agreed with them. Reassurance from no fewer than three other officials further supports finding that the officers “reasonably,” even if “mistakenly,” concluded that probable cause existed. Wesby, 138 S. Ct. at 591 (cleaned up). That’s enough to shield Riley and Connor from liability.
At the very end of the decision, the Appeals Court tacks on a very minimal, in-word-only wrist slap for the officers who felt being parodied justified an arrest. It’s not enough.
But granting the officers qualified immunity does not mean their actions were justified or should be condoned. Indeed, it is cases like these when government officials have a particular obligation to act reasonably. Was Novak’s Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak’s and the government’s time? We have our doubts. And from the beginning, any one of the officials involved could have allowed “the entire story to turn out differently,” simply by saying “No.” Bari Weiss, Some Thoughts About Courage, Common Sense (Oct. 19, 2021). Unfortunately, no one did.
That’s the problem with qualified immunity. If no one in power steps up to be the adult in the room, every government adult behaving like a child gets rewarded with immunity simply because their childish behavior hasn’t generated courtroom precedent. And when the discussion of rights violations gets short-circuited by qualified immunity questions, no new precedent is erected, allowing the vicious cycle to continue until one court finally decides the cops have gone too far.