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Constitutional Law

Prosecutor Can Be Personally Sued Over Search of Journalist’s Home, 10th Circuit Rules

Posted Jul 21, 2010 2:02 PM CDT
By Martha Neil

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Qualified immunity does not apply to protect a former deputy district attorney from being personally sued for approving a search warrant of a student journalist's home due to a professor's unhappiness over a parody in a University of Northern Colorado community newspaper, a federal appeals court has ruled.

Although the search by Greeley, Colo., police was conducted under color of a criminal libel law, officials overseeing it should have known that the First Amendment protected the "Junius Puke" parody of professor Junius Peake that was published by the Howling Pig from prosecution under the libel law, ruled the 10th U.S. Circuit Court of Appeals, reversing a federal district court.

Hence, the 10th Circuit said, qualified immunity did not apply to prevent former deputy DA Susan Knox from being personally sued over the search of the home that student journalist Thomas Mink shared with his mother, reports the National Law Journal in an article reprinted by New York Lawyer (reg. req).

Among other determinations, the appeals court held in its written opinion that the district court erred in requiring direct participation by Knox in the civil rights deprivation to establish a valid cause of action against her. All that was needed was "an affirmative link between the constitutional deprivation and the officer's exercise of control or direction," explains the 10th Circuit in its written opinion (PDF).

The 10th Circuit previously ruled that absolute immunity didn't apply to Knox because she was acting as an investigator rather than an advocate in the case.

Then an employee of the state's 19th Judicial District, Knox now works as a federal prosecutor in Colorado. She is reviewing the decision, a spokesman for the prosecutor's office tells the National Law Jorunal.

The American Civil Liberties Union Foundation of Colorado filed suit on Mink's behalf in an effort to invalidate the criminal libel law but is pleased to see Mink's rights upheld, says partner Marcy Glenn of Holland & Hart. She served as appellate counsel for the ACLU in the case.

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