Mink v. Knox

Thomas Mink appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint against Susan Knox, a deputy district attorney, on qualified immunity grounds. We reverse.

I.

Mr. Mink, a student at the University of Northern Colorado (“UNC”), created a fictional character, “Junius Puke,” for the editorial column of his internet-based journal, The Howling Pig.1 Mink v. Suthers, 482 F.3d 1244, 1249 (10th Cir.2007), cert. denied, 552 U.S. 1165, 128 S.Ct. 1122, 169 L.Ed.2d 949 (2008) (“Mink I”). The editorial column displayed altered photographs of Junius Peake, a UNC professor, wearing dark sunglasses and a Hitler-like mustache. Id. at 1249. Junius Puke’s editorial column addressed subjects on which Mr. Peake would be unlikely to write, in language he would be unlikely to use, asserting views that were diametrically opposed to Mr. Peake’s. See id.

Mr. Peake, who was not amused, contacted the Greeley police, who started investigating a potential violation of Colorado’s criminal libel statute, Colo.Rev.Stat. § 18-13-105. See Mink v. Knox, 566 F.Supp.2d 1217, 1220 (D.Colo.2008) (“Mink II”). In conformance with Colorado Re*999vised Statute § 20-1-106.1, the detective in charge prepared a search warrant affidavit to submit to the office of the district attorney for legal review. The deputy district attorney, Susan Knox, reviewed and approved the search warrant affidavit, which was identical to the warrant with respect to the eleven paragraphs listing the items to be seized. The search warrant and affidavit were both attached to Mr. Mink’s amended complaint, and are attached to this opinion as Exhibits A and B.2 The affidavit and warrant were presented to and approved by a magistrate judge. The Greeley police then searched the home where Mr. Mink lived with his mother and confiscated their personal computer, as well as written materials referencing The Howling Pig. See Mink I, 482 F.3d at 1249.

Mr. Mink and his mother subsequently filed suit in federal district court against the City of Greeley, Colorado, the district attorney, Detective Ken Warren, and a “John Doe” assistant district attorney, seeking damages for the search and seizure, among other things. The district court granted Mr. Mink’s motion for a temporary restraining order and ordered the City of Greeley to return “to the Plaintiffs the computer, and all contents thereof, seized following the search of Plaintiffs’ home.” Id. at 1250 (quoting Dist. Ct. Order, Jan. 9, 2004, at 1). Thereafter, the district attorney issued a written “No File” decision, concluding that the statements contained in The Howling Pig could not be prosecuted under the Colorado criminal libel statute.

Mr. Mink then amended his complaint, removing his mother as a plaintiff and adding Ms. Knox as a defendant.3 The district court granted Ms. Knox’s motion to dismiss the suit in its entirety, holding in part that Mr. Mink’s constitutional claims against Ms. Knox were barred by absolute immunity. We reversed, determining that

a prosecutor is entitled to absolute immunity for those actions that cast him in the role of an advocate initiating and presenting the government’s case. Absolute immunity, however, does not extend to those actions that are investigative or administrative in nature, including the provision of legal advice outside the setting of a prosecution.

Id. at 1261-62. We concluded that Ms. Knox “was not wearing the hat of an advocate,” id. at 1262, when she reviewed the affidavit in support of the warrant, and “thus, is not entitled to absolute prosecutorial immunity.” Id. at 1263. Nevertheless, we noted that Ms. Knox “may be entitled to qualified immunity if she reasonably concluded probable cause existed to support the warrant application, or that the application of the Supreme Court’s First Amendment cases to the criminal libel statute was not clearly established under the circumstances here.” Id.

On remand the district court granted Ms. Knox’s motion to dismiss the amended complaint, holding that (1) “a reasonable official in Knox’s position could believe that the statements in The Howling Pig were not protected statements under the First Amendment — and, accordingly, that Plaintiffs actions in publishing such statements could subject him to criminal prosecution under the Colorado libel statute,” and (2) although the search warrant violated the Fourth Amendment’s particularity *1000requirement, it was not clearly established that Ms. Knox’s authorization of the search warrant affidavit lacking particularity violated the Fourth Amendment. Mink II, 566 F.Supp.2d 1217, 1223-24, 1228-29. The district court concluded that Ms. Knox was entitled to qualified immunity.

On appeal, Mr. Mink asks us to decide whether the district court erred when it dismissed,

on the basis of qualified immunity, Mr. Mink’s claim alleging an unlawful search and seizure in violation of the Fourth Amendment, where the search lacked probable cause because clearly-established First Amendment law protected Mr. Mink’s speech, and because the overbroad affidavit and warrant violated clearly-established Fourth Amendment law[.]

Aplt. Br. at 2.

II.

“[F]ederal courts engage in de novo review when mulling defamation issues that are tinged with constitutional implications.” Levinsky’s, Inc. v. WalMart Stores, Inc., 127 F.3d 122, 127 (1st Cir.1997). “This requirement of independent appellate review is not a procedural directive, but, rather, ‘a rule of federal constitutional law’ that ‘reflects a deeply held conviction that judges ... must exercise such review in order to preserve the precious liberties established and ordained by the Constitution.’ ” Id. (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 510-11, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)).

To determine whether a motion to dismiss was properly granted, we apply a plausibility standard to ascertain whether the complaint includes enough facts that, if assumed to be true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, - U.S. -, -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). See also Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223-1224 (10th Cir.2009). We accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the nonmoving party, here the plaintiff. See Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir.2008); Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1284 (10th Cir.2008).

We also review de novo the district court’s decision regarding qualified immunity. Archuleta, 523 F.3d at 1282. “[Government officials performing discretionary functions generally are granted a qualified immunity and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 1282-83 (quoting Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). “Once the qualified immunity defense is asserted, ... the plaintiff must demonstrate that the defendant’s actions violated a constitutional or statutory right” and that “the constitutional or statutory rights the defendant allegedly violated were clearly established at the time of the conduct at issue.”4 Id. In determining whether a constitutional right was clearly established, we look at the specific context of the case. Bowling v. Rector, 584 F.3d 956, 964 (10th Cir.2009).

*1001A plaintiff can demonstrate that a constitutional right is clearly established by reference to cases from the Supreme Court, the Tenth Circuit, or the weight of authority from other circuits. There need not be precise factual correspondence between earlier cases and the case at hand, because general statements of the law are not inherently incapable of giving fair and clear warning. The right must only be sufficiently clear that a reasonable official would understand that what he is doing violates that right.

Archuleta, 523 F.3d at 1283 (internal citations, quotation marks, and alterations omitted).

In dismissing Mr. Mink’s amended complaint, the district court considered whether: (1) there was a causal connection between Ms. Knox’s actions and the alleged violation of Mr. Mink’s constitutional rights; (2) Mr. Mink’s constitutional rights were violated; and (3) the violated constitutional rights were clearly established at the time the violation occurred. We address each of these questions in turn.

A.

The Causal Connection

Mr. Mink alleged that Ms. Knox caused the issuance of a search warrant that lacked probable cause and particularity, thereby causing a violation of his Fourth Amendment rights. The district court held that in order to recover on this claim, Mr. Mink was required to allege Ms. Knox’s direct participation in the constitutional violation, and that he had failed to do so:

Plaintiff does not, however, allege that Knox issued the warrant, nor that she reviewed the warrant, nor that she participated in the search and seizure executed pursuant to the warrant. The question here, therefore, is whether — • taken in the light most favorable to Plaintiff — the complaint alleges sufficient facts to show Knox — solely by reviewing and approving the affidavit submitted in support of the search warrant — violated Plaintiffs constitutional rights.

Mink II, 566 F.Supp.2d at 1229. In so construing the amended complaint, the district court erred.

Title 42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Id. (emphasis added). “The requisite causal connection is satisfied if the defendant set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights.” Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir.1990). Thus, “[f]or liability under Section 1983, direct participation is not necessary.” Id. (quotation omitted); see also Buck v. City of Albuquerque, 549 F.3d 1269, 1279-80 (10th Cir.2008). “Any official who ‘causes’ a citizen to be deprived of her constitutional rights can also be held liable.” Snell, 920 F.2d at 700 (quotation omitted). The plaintiff may demonstrate causation by showing an affirmative link between the constitutional deprivation and the officer’s exercise of control or direction. See Poolaw v. Marcantel, 565 F.3d 721, 732 (10th Cir.2009) (presence during search held unnecessary for § 1983 *1002liability for unconstitutional search where one defendant officer authorized search and second defendant officer drafted affidavit for search warrant);5 Wulf v. City of Wichita, 883 F.2d 842, 864 (10th Cir.1989) (concluding defendant was sufficiently involved in entire decision-making process and thus personally liable where Personnel Advisory Board listened to defendant’s recommendation and, to some extent, relied on it).

On appeal, Ms. Knox urges us to affirm the district court’s sua sponte conclusion that the complaint should be dismissed because it did not specifically allege that Ms. Knox reviewed the warrant as well as the affidavit. We decline to do so. Notably, as Mr. Mink points out, both the affidavit and search warrant were attached to the amended complaint, and Ms. Knox’s own affidavit subsequently indicated that the warrant was one of the documents she reviewed, in accordance with Colo.Rev. Stat. § 20-1-106.1.6 Being well aware that she had reviewed the warrant no doubt explains why Ms. Knox never moved to dismiss the complaint on this basis.

More importantly, taking Mr. Mink’s allegations as true, viewing them in the light most favorable to him, and making all reasonable inferences in his favor, as we are required to do, persuades us that the amended complaint plausibly asserted the requisite casual connection between Ms. Knox’s conduct and the search and seizure that occurred at Mr. Mink’s home. The amended complaint not only alleged that Ms. Knox “reviewed and approved the affidavit submitted to the state district court in support of the warrant to search the Mink’s home,” Aplt.App., vol. I at 117, 119, it also alleged that she “authorized and caused an unlawful seareh[,]” id. at 118, that “[a] reasonable prosecutor would have known that the warrard failed to meet the particularity requirement of the Fourth Amendment,]” id. at 119 (emphasis added), and that “[a] reasonable *1003prosecutor would have known that the affidavit failed to establish probable cause to search and seize the items described in the warrant.” Id. (emphasis added). These allegations, coupled with the attachment of the warrant and affidavit to the complaint, support the reasonable factual inference that Ms. Knox reviewed the warrant as well as the affidavit, and that her approval set in motion a series of events that she knew or reasonably should have known would cause others to deprive Mr. Mink of his constitutional rights.

B.

Mr. Mink’s Allegations, If True, Establish a Constitutional Violation

Mr. Mink alleged that the search and seizure of his property based on an invalid warrant violated his Fourth Amendment rights. Three conditions must be met for searches and seizures pursuant to a warrant to be constitutional.

First, warrants must be issued by neutral, disinterested magistrates. Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense. Finally, warrants must particularly describe the things to be seized, as well as the place to be searched.

Dalia v. United States, 441 U.S. 238, 255, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979) (internal citations and quotation marks omitted). These requirements ensure “that no intrusion in the way of search or seizure occurs without a careful prior determination of necessity, and preventing the specific evil of the general warrant abhorred by the colonists.” Bolding, 584 F.3d at 967; see also Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Cassady v. Goering, 567 F.3d 628, 634-35 (10th Cir.2009). Mr. Mink alleged that the warrant used to search and seize his property lacked both probable cause and particularity.

1. Probable Cause

The first question is whether there was probable cause to believe that Mr. Mink’s publication of The Howling Pig violated the Colorado criminal libel statute. “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (internal quotation marks omitted). “Probable cause exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Grubbs, 547 U.S. 90, 95, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006). Mr. Mink alleged that the warrant lacked probable cause because no reasonable prosecutor could have believed that publishing The Howling Pig constituted a crime.

Probable cause exists if “facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Bowling, 584 F.3d at 969 (quoting Brinegar, 338 U.S. at 175-76, 69 S.Ct. 1302 (internal quotation marks omitted)); see also York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir.2008). The question therefore becomes whether a government official of reasonable caution, having reviewed the affidavit and the editorial column of The Howling Pig, would believe that this publication was libelous.

It goes without saying that a government official may not base her probable cause determination on an “unjustifiable *1004standard,” such as speech protected by the First Amendment. Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) (“the decision to prosecute may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights.”) (internal quotations marks and citations omitted); see also Swiecicki v. Delgado, 463 F.3d 489, 498 (6th Cir.2006) (“an officer may not base his probable-cause determination on speech protected by the First Amendment.”); Sandul v. Larion, 119 F.3d 1250, 1255-56 (6th Cir.1997) (where plaintiffs speech did not constitute fighting words and was thereby protected speech, it could not serve as basis for violation of city ordinances at issue). We thus turn to whether Mr. Mink’s speech was protected by the First Amendment.

a. First Amendment and Defamation

For centuries, the common law has afforded a cause of action to a person whose reputation has been damaged by the publication of false and defamatory statements. Milkovich v. Lorain Journal Co., 497 U.S. 1, 11-12, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (citing L. Eldredge, Law of Defamation 5 (1978)). A passage from Shakespeare’s Othello is often quoted in explanation.

Who steals my purse steals trash ...

But he that filches from me my good name

Robs me of that which not enriches him,

And makes mp poor indeed.

Id. (quoting Act III, scene 3).

Nevertheless, the Supreme Court has recognized a number of constitutional limits on various categories of speech which may be the subject of state defamation actions, see id. at 14-18, 110 S.Ct. 2695, in order to maintain a balance between the protection of one’s individual reputation and the freedom of speech of another person, see id. at 22-23, 110 S.Ct. 2695. After all, “[w]hatever is added to the field of libel is taken from the field of free debate,” New York Times Co. v. Sullivan, 376 U.S. 254, 272, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), as well as from “individual liberty” and “the common quest for truth and the vitality of society as a whole.” Hustler Magazine v. Falwell, 485 U.S. 46, 51, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). Moreover,

[t]he First Amendment is not limited to ideas, statements, or positions which are accepted; which are not outrageous; which are decent and popular; which are constructive or have some redeeming element; or which do not deviate from community standards and norms; or which are within prevailing religious or moral standards.... The First Amendment standards are not adjusted to a particular type of publication or particular subject matter.

Pring v. Penthouse Int’l, Ltd., 695 F.2d 438, 443 (10th Cir.1982).

In balancing individual reputation and freedom of speech, the Court has identified various culpability requirements. See generally Milkovich, 497 U.S. at 14-20, 110 S.Ct. 2695. New York Times recognized the need for “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’— that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 14, 110 S.Ct. 2695 (quoting New York Times, 376 U.S. at 279-280, 84 S.Ct. 710). The Court extended the New York Times rule to “public figures” in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d *10051094 (1967). In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Court held that although “the New York Times malice standard was inappropriate for a private person attempting to prove he was defamed on matters of public interest,” nevertheless states may not “impose liability without requiring some showing of fault,” or “permit recovery of presumed or punitive damages on less than a showing of New York Times malice.” Milkovich, 497 U.S. at 15-16, 110 S.Ct. 2695 (citing Gertz, 418 U.S. at 344-45, 347-48, 350, 94 S.Ct. 2997).

As to the “constitutional limits on the type of speech which may be the subject of state defamation actions,” id. at 16, 110 S.Ct. 2695, “the Bresler-Letter Carriers-Falwell line of cases provides protection for statements,” such as parody, fantasy, rhetorical hyperbole, and imaginative expressions, “that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual,” id. at 20, 110 S.Ct. 2695 (internal citation omitted). Because no reasonable person would take these types of speech as true, they simply cannot impair one’s good name.7 See id. at 16-17, 110 S.Ct. 2695 (discussing Bresler, 398 U.S. at 13, 90 S.Ct. 1537; Letter Carriers, 418 U.S. at 284, 286, 94 S.Ct. 2770; Falwell, 485 U.S. at 50, 108 S.Ct. 876); see also Falwell, 485 U.S. at 57, 108 S.Ct. 876. “This provides assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.” Milkovich, 497 U.S. at 20, 110 S.Ct. 2695.

To determine whether a statement purports to state actual facts about an individual, the Court scrutinizes the meaning of the statement in context. Id. at 16-17, 110 S.Ct. 2695 (“Rejecting a contention that liability could be premised on the notion that the word ‘blackmail’ implied the developer had committed the actual crime of blackmail, we held that ‘the imposition of liability on such a basis was constitutionally impermissible — that as a matter of constitutional law, the word “blackmail” in these circumstances was not slander when spoken, and not libel when reported in the Greenbelt News Review.’ ”) (quoting Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6, 13, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970)); id. at 17, 110 S.Ct. 2695 (“Use of the word ‘traitor’ in literary definition of a union ‘scab’ not basis for a defamation action under federal labor law since used ‘in a loose, figurative sense’ and was ‘merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members.’”) (quoting Letter Carriers v. Austin, 418 U.S. 264, 284, 286, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974)); Falwell, 485 U.S. at 57, 108 S.Ct. 876 (a state emotional distress “claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here.” (emphasis added)). “Context is crucial and can turn what, out of context, appears to be a statement of fact into ‘rhetorical hyperbole,’ which is not actionable.” Ollman v. Evans, 750 F.2d 970, 1000 (D.C.Cir.1984) (en banc) (Bork, J., concurring); see also id. at 983-84.

Even false statements of fact are protected from a defamation claim if any reasonable person would recognize the statements as parody. As the Court held *1006in Falwell, 485 U.S. at 48, 53-57, 108 S.Ct. 876, an ad parody of the Reverend Jerry Falwell, in which he purportedly stated during an interview that his “first time” was during “a drunken incestuous rendezvous with his mother in an outhouse,” constituted a caricature of him which no one reasonably would consider to be true, even though Reverend Falwell could have proved the assertion of an incestuous relationship with his mother to be absolutely false. See also Oilman, 750 F.2d at 1000 (“It is not unusual to protect false statements of fact where, because of the context, they would have been understood as part of a satire or fiction.”) (Bork, J., concurring and citing Pring, 695 F.2d at 443).

Although the Supreme Court has not yet squarely addressed whether fantasy, parody, rhetorical hyperbole, or imaginative expression is actionable in a case where a plaintiff is neither a public figure nor the speech on a matter of pub