Mink v. Suthers

• Decision Date: 16 April 2007
• Docket Number: No. 04-1496.,04-1496.
• Citation: 482 F.3d 1244
• Parties: Thomas MINK; The Howling Pig, an unincorporated association, Plaintiffs-Appellants, v. John W. SUTHERS, in his official capacity as Attorney General of the State of Colorado, Kenneth R. Buck, District Attorney for Colorado's 19th Judicial District; Susan Knox, a Chief Deputy District Attorney working for Colorado's 19th Judicial District Attorney's Office, in her individual capacity, Defendants-Appellees, and Student Press Law Center; Silha Center for the Study of Media Ethics; World Press Freedom Committee; Associated Press; Bloomberg News; Colorado Press Association; Dow Jones & Company, Inc.; Media Law Resource Center; the Reporters Committee for Freedom of the Press; Colorado District Attorneys' Council, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

482 F.3d 1244

Thomas MINK; The Howling Pig, an unincorporated association, Plaintiffs-Appellants, v. John W. SUTHERS, in his official capacity as Attorney General of the State of Colorado, Kenneth R. Buck, District Attorney for Colorado's 19th Judicial District; Susan Knox, a Chief Deputy District Attorney working for Colorado's 19th Judicial District Attorney's Office, in her individual capacity, Defendants-Appellees, and Student Press Law Center; Silha Center for the Study of Media Ethics; World Press Freedom Committee; Associated Press; Bloomberg News; Colorado Press Association; Dow Jones & Company, Inc.; Media Law Resource Center; the Reporters Committee for Freedom of the Press; Colorado District Attorneys' Council, Amicus Curiae.

No. 04-1496.

United States Court of Appeals, Tenth Circuit.

April 16, 2007.

A. Bruce Jones, Holland & Hart LLP, Denver, CO (Marcy G. Glenn and Valerie L. Simons, Holland & Hart, and Mark Silverstein, American Civil Liberties Union Foundation of Colorado, Denver, CO, with him on the briefs) for Plaintiffs-Appellants.

William V. Allen, Assistant Attorney General, Litigation Section, Office of the Colorado Attorney General, for Defendant-Appellee John W. Suthers, and David R. Brougham (Gillian Dale with him on the brief), Hall & Evans, L.L.C., Denver, CO, for Defendant-Appellee Susan Knox.

S. Mark Goodman and Adam Goldstein, Student Press Law Center, Arlington, VA, and Jane E. Kirtley, Silha Center for the Study of Media Ethics and Law, Minneapolis, MN, on the brief for Amici Curiae Student Press Law Center and Silha Center for the Study of Media Ethics and Law.

Kevin M. Goldberg, Cohn and Marks LLP, Washington, District of Columbia, on the brief for Amicus Curiae World Press Freedom Committee.

Thomas B. Kelley and Steven D. Zansberg, Faegre & Benson LLP, Denver, CO, on the brief for Amici Curiae Associated Press, Bloomberg News, Colorado Press Association, Dow Jones & Company, Inc., Media Law Resource Center, and The Reporters Committee for Freedom of the Press.

Miles Madorin, Staff Attorney, Colorado District Attorneys' Council, Denver, CO, on the brief for Amicus Curiae Colorado District Attorneys' Council.

Before O'BRIEN, EBEL, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

I. Introduction

Colorado law makes it "criminal libel" to knowingly publish any statement tending to "impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule." Colo.Rev.Stat. § 18-13-105. While a student at the University of Northern Colorado (UNC), Thomas Mink created and published an internet-based journal called The Howling Pig. Several issues of the journal included Mink's pseudonymous column by "Junius Puke," which parodied the views of a real UNC professor named Junius Peake, and whose on-line photograph bore a strong resemblance to the real professor.

Professor Peake complained to the Greeley Police Department who commenced an investigation of Mink for potential violations of Colorado's criminal libel statute. The police, in conjunction with the local district attorney's office, sought and obtained a search warrant, which they executed at Mink's residence, seizing his personal computer and other written materials.

Mink sued for prospective relief and damages under 42 U.S.C. § 1983, and for violations of the Privacy Protection Act, 42 U.S.C. § 2000aa. The district court entered a temporary restraining order against the district attorney's office, but dismissed the case in its entirety after the office disavowed an intent to prosecute Mink. The district court concluded that: (1) Mink's request for declaratory judgment failed for lack of standing, (2) the statutory privacy claim failed to state a claim for relief, and (3) the damages claim against the assistant district attorney arising from the search was barred by absolute prosecutorial immunity.

Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm both the dismissal of Mink's facial challenge to the Colorado criminal libel statute because he lacks standing and his claim is moot, and the dismissal of his statutory damages claim for failure to state a claim. But we reverse the district court's dismissal of the damages claim arising from the search because we conclude it is not barred by absolute immunity. Accordingly, we remand to the district court for further proceedings on the question of qualified immunity.

II. Background

Thomas Mink began releasing issues of The Howling Pig, a student-run, internet-based journal, during his fall 2003 semester as a student at the University of Northern Colorado. The journal, which was created, maintained, and published from the home computer Mink shared with his mother, addressed current events involving the local UNC community. Among other things, it featured a regular column from the editor, a fictional character named "Junius Puke." The column displayed obviously doctored photographs of an actual UNC professor, Junius Peak, wearing dark sunglasses and a Hitler-like mustache. The purpose of the column, according to Mink, was to "spoof[] and parod[y] Professor Peake by addressing subjects on which the real professor would be unlikely to write, or through the assertion of views diametrically opposed to those of Professor Peake." Aplt.App. at 80-81.

After learning of the parody, Professor Peake contacted the local district attorney and swore out a complaint, alleging he was a victim of criminal libel. Colo.Rev.Stat. § 18-13-105. In response to the complaint, a Greeley Police Department detective opened an investigation. The detective reviewed copies of The Howling Pig and concluded that its editor was Mink. Based on this information, the detective prepared a search warrant affidavit according to procedures required by Colorado law. Colo.Rev.Stat. § 16-3-301; Colo. R.Crim. Proc. 41(b), (c). These procedures allow a detective to submit an affidavit to the office of the district attorney for legal review. Colo.Rev.Stat. § 20-1-106.1. Consequently, a deputy district attorney, appellee Susan Knox, reviewed and approved the search warrant affidavit, which was then presented to and approved by a magistrate judge.

With the search warrant in hand, Greeley police searched the home where Mink lived with his mother on December 12, 2003. The police confiscated Mink's personal computer and additional written materials referencing The Howling Pig. According to Mink, during the search one of the detectives told him he was in "big trouble" and led him to believe a criminal complaint had been filed. Mink also claims that a detective warned him that resuming publication of The Howling Pig would only "make things worse for [him]." Aplt.App. at 82-83.

Following the search, Mink obtained counsel who contacted the Greeley police on December 23, 2003. According to Mink's counsel, the investigating officer disclosed his plans to recommend that criminal libel charges be filed against Mink. That same day, Mink's counsel informed a lawyer in the district attorney's office that he believed the criminal libel law could not be applied constitutionally against Mink for statements made in The Howling Pig. On December 30, 2003, Mink's counsel faxed a letter to the district attorney demanding the immediate return of materials seized from Mink's home and explaining Mink's position that prosecuting him under the criminal libel statute would be unconstitutional. The letter requested a reply by January 2, 2004, but the district attorney apparently never responded.

On January 8, 2004, Mink filed suit in federal district court seeking prospective declaratory relief that the Colorado criminal libel statute was unconstitutional under the First Amendment and also requesting damages for the search and seizure conducted pursuant to the statute. With respect to the first claim, the complaint alleged Mink faced "an imminent threat of being charged with a violation of Colorado's Criminal Libel Statute," Aplt.App. at 10, and that the "criminal investigation, the threatened prosecution, and the search and seizure have chilled Mr. Mink from exercising his right to freedom of expression and his right to freedom of speech." Aplt.App. at 15.

Mink also requested a temporary restraining order. On January 9, 2004, the district court ordered:

that the District Attorney for the 19th Judicial District shall not initiate the prosecution of Thomas Mink under Colorado's Criminal Libel Statute, C.R.S. § 18-13-105, and the City of Greeley shall, forthwith, return to the Plaintiffs the computer, and all contents thereof, seized following the search of Plaintiffs' home in Ault, Colorado.

Dist. Ct. Order, Jan. 9, 2004, at 1.

The district court subsequently held a status conference during which it learned the district attorney would not be filing charges against Mink. In addition, the district attorney issued a written "No File" decision, concluding the statements contained in The Howling Pig could not be prosecuted under the statute. Thereafter, pursuant to an agreement of the parties, the court issued an order vacating its temporary restraining order.

Mink filed an amended complaint on February 19, 2004 on behalf of himself and The Howling Pig. The amended complaint repeated his allegations that the Colorado criminal libel statute was unconstitutional, and also named the Colorado Attorney General and the local district attorney as defendants in their official capacities for purposes of seeking prospective relief. Mink also realleged violations of his statutory and constitutional rights based on the search of his residence. He further claimed he had published two new issues of The Howling Pig since the filing of the complaint which contained statements that might be construed as violations of Colorado's criminal libel statute, and said he planned to continue publishing such statements in the future. In addition, he named ...