Man who created fake police Facebook page can’t recover damages for his arrest, 6th Circuit says
A man who created a fake police department page on Facebook can’t obtain damages against officers who arrested him, searched his home and seized his phone and laptop, a federal appeals court has ruled.
The 6th U.S. Circuit Court of Appeals at Cincinnati ruled that police officers in Parma, Ohio, had qualified immunity that protected them from constitutional claims by Anthony Novak.
Novak’s fake police department page claimed that the department was offering free abortions in a police van and a “pedophile reform event” with a “no means no” learning station, the 6th Circuit said in its April 29 opinion.
The fake page also included a job posting that “strongly encourag[ed] minorities to not apply,” according to prior coverage of the case.
Novak deleted comments that made clear that the Facebook page was fake.
Nearly a dozen people called police about the Facebook page, including some who wanted to know whether the page was real. Police then posted a warning about the fake page on their real website, which Novak copied onto his fake Facebook account.
Novak took down his page after police issued a press release and appeared on the nightly news to announce an investigation and warn the public. According to prior coverage, Novak’s fake page had about 100 followers and was up for 12 hours before Novak took it down.
Police learned that Novak was the author of the Facebook page after obtaining a search warrant for Facebook. The law director for Parma, Ohio, told the officers that they had probable cause, spurring the officers to obtain search and arrest warrants. Novak spent four days in jail before he made bond. Novak was indicted for disrupting police functions, but he was acquitted at trial.
Novak sued under Section 1983 of the Civil Rights Act for First Amendment retaliation, Fourth Amendment violations and First Amendment prior restraint.
It was the second time that the case reached the 6th Circuit. In July 2019, the appeals court dismissed some of Novak’s claims on the basis of qualified immunity but allowed others to proceed. At the time, the appeals court said some qualified immunity claims couldn’t be resolved without more factual development.
U.S. Circuit Judge Amul Thapar wrote both opinions. In the new opinion, Thamar said the facts supported qualified immunity—but he went on to question the officers’ judgment.
“Granting the officers qualified immunity does not mean their actions were justified or should be condoned,” Thapar wrote. “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.”
Thapar discussed each of Novak’s claims and why police were entitled to qualified immunity on each one.
On the retaliatory arrest claim, Thapar said there is no recognized right to be free from a retaliatory arrest that is supported by probable cause. Here, the officers could reasonably think that the fake page constituted a disruption that violated the law, Thapar wrote.
Novak had argued that his Facebook page was “parody protected under the First Amendment” that can’t serve as the basis for probable cause. But impersonating police isn’t protected speech, and some of Novak’s actions supported the view that he was doing that, Thapar said.
Those actions included using the same profile picture posted on the police website, deleting comments suggesting that his page wasn’t the department page, and copying the police department’s warning about his fake site word for word.
Whether those actions were protected speech is a difficult question, but qualified immunity is not, Thapar said. The officers “reasonably found probable cause in an unsettled case judges can debate,” Thapar wrote.
The appeals court also ruled for the officers on other claims because:
• On the Fourth Amendment claims, officers relied on a magistrate judge’s search warrant, and there was no evidence that they made false statements or significant omissions to obtain it.
• On the malicious prosecution claim, Novak failed to show that the officers he sued aided in the decision to prosecute.
• On the prior restraint claim, none of the actions by the officers constituted prior restraint.
• On a municipal liability claim, Novak failed to show that his constitutional injury was caused by a city policy or a custom.
• On state law claims, the officers were protected by statutory immunity that is provided, as long as they didn’t act “with malicious purpose, in bad faith or in a wanton or reckless manner.” There was no evidence supporting malicious intent, the appeals court said.
Hat tip to Law.com, which had coverage of the opinion.