Novak v. City of Parma

• Decision Date: 24 February 2021
• Docket Number: Case No. 1:17-cv-2148
• Parties: ANTHONY NOVAK, Plaintiff, v. THE CITY OF PARMA, et al. Defendants.
• Court: U.S. District Court — Northern District of Ohio

ANTHONY NOVAK, Plaintiff,
v.
THE CITY OF PARMA, et al. Defendants.

Case No. 1:17-cv-2148

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

February 24, 2021

JUDGE DAN AARON POLSTER

OPINION & ORDER

Before the Court are the following motions:

1. Motion for Summary Judgment filed by Defendant, the City of Parma ("Parma") (ECF Doc. 100);

2. Motion for Summary Judgment filed by Defendants Kevin Riley ("Riley") and Thomas Connor ("Connor") (ECF Doc. 101); and

3. Motion for Partial Summary Judgment filed by Plaintiff Anthony Novak ("Novak") (ECF Doc. 102).

On December 22, 2020, the parties filed oppositions to the motions for summary judgment. ECF Doc. 122, ECF Doc. 123, ECF Doc. 124. On January 12, 2021, they filed replies. ECF Doc. 125, ECF Doc. 126, ECF Doc. 127. For the reasons stated below, the Court GRANTS Defendants' motions for summary judgment (ECF Doc. 100 and ECF Doc. 101) and DENIES Novak's motion for partial summary judgment. ECF Doc. 102.

Page 2

I. Introduction

Plaintiff Anthony Novak ("Novak") created a Facebook page that mimicked the official Parma Police Department's official Facebook page. He used it to post false information about the police department. As he sees it, his page was a parody and was clearly protected by the First Amendment.

The Parma Police Department saw it differently. They started receiving calls from the public about Novak's Facebook page and opened an investigation. Novak portrays this investigation as a hot-headed police pursuit designed to punish him for making fun of them. But the parties' Fed. R. Civ. P. 56 materials do not support Novak's one-sided portrayal.

The Sixth Circuit aptly noted that Novak's Facebook page was "either a protected parody in the great American tradition of ridiculing the government or a disruptive violation of state law. Maybe both." And, in the context of Fed. R. Civ. P. 12, the Sixth Circuit recognized, as did this Court, that Novak's portrayal of the events precluded dismissal, even when qualified immunity was considered. Novak v. City of Parma, 932 F.3d 421, 424 (6th Cir. July 29, 2019).

But the Fed. R. Civ. P. 56 materials have revealed a different picture of the investigation and prosecution of Novak. The evidence does not show that Detective Thomas Connor and his co-defendants were acting as hot-headed police officers seeking revenge against Novak for his "parody." Rather, it shows that they sought advice from multiple sources about the legality of Novak's Facebook page and followed the proper procedures by obtaining warrants before arresting Novak, searching his property, and presenting the facts of their investigation to the County Prosecutor and grand jury.

Novak's Facebook page may very well be protected by the First Amendment. At the very least, there is a genuine dispute of material fact on that issue. Novak, 932 F.3d at 428. But

Page 3

Novak mistakenly believes that his First Amendment right to post a parody on Facebook, if that is what he did, was absolute. It wasn't.

Moreover, determining if Novak's Facebook page was protected by the First Amendment is not the only important issue in this case. Indeed, the Court does not even have to resolve the First Amendment issue to rule on the parties' motions for summary judgment. Because even if the content of Novak's Facebook page was protected, Novak's conduct in confusing the public and disrupting police operations was not. And, if the defendants had probable cause to arrest Novak for knowingly disrupting police operations, they are immune from civil liability. Reichle v. Howards, 566 U.S. 658, 664, 132 S. Ct. 2088, 182 L. Ed. 2d 985; Novak, 932 F.3d at 429.

Nor does the fact that Novak was ultimately acquitted of the crime of disrupting police operations expose defendants to civil liability if they had probable cause to believe that Novak committed that crime. Conviction requires proof beyond a reasonable doubt, but charging someone with a crime requires only probable cause. See Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1952, 138 L. Ed. 2d 342 (2018).

Here, after considering the parties' arguments and the materials submitted pursuant to Fed. R. Civ. P. 56, the Court recognizes that there are no genuine disputes of material fact as to whether the defendants had probable cause to investigate and charge Novak with a violation of Ohio Rev. Code § 2909.04(B). For this reason, the defendants are entitled to summary judgment as further explained below.

II. Statement of Facts

On March 1, 2016, around 11:00 p.m., Novak posted a Facebook page mimicking the official Parma Police Department page. Novak's page purported to be the official police page; it had the same name, cover photo, and profile photo. Novak Depo., ECF Doc. 90 at 106. The

Page 4

only distinguishing features were that small font text identified Novak's page as a "Community" page, and it lacked the "Police Station-Government Organization" designation held by the official department page. Id. Novak's page also lacked the official "blue checkmark" denoting Facebook verification. ECF Doc. 6 at 14.

Novak published six posts on the fake Facebook page. The topics of his posts included: criminalizing assisting the homeless; announcing openings for Parma Police officers (but discouraging minorities from applying); prioritizing a search for an African-American loitering suspect over a search for a white armed robbery suspect; advertising free abortions for teenagers provided by police in the Wal-Mart parking lot; announcing a "pedophile reform" event; and instituting a daytime curfew for families. ECF Doc. 6 at 13.

In the following hours, Novak's Facebook page generated around 50,000 views and numerous posts. Novak Depo., ECF Doc. 90 at 131. Novak deleted comments claiming the page was a hoax. Id. at 104. His roommate later testified that Novak was using the fake Facebook page to "mess with people." Kozelka Depo., ECF Doc. 97-1 at 15-16. Several citizens contacted the Parma Police Department non-emergency dispatch line, the city's Law Department, and Parma City Hall. Connor Depo., ECF Doc. 71-7 at 184. The main reasons for these calls were to alert the city and to verify that Novak's Facebook page was not the official police department page. Riley Depo., ECF Doc. 105-1 at 31-32. Seven of the calls to the Parma Police dispatch line were recorded. Id. at 32.

On March 2, 2016, Captain Kevin Riley, then a lieutenant, assigned Detective Thomas Connor to investigate the page. Connor Depo., ECF Doc. 71-7 at 20-21. Connor looked at Novak's page and determined that the official department page had not been hacked. He then contacted Timothy Dobeck the Law Director and Prosecutor for the City of Parma. Id. Dobeck

Page 5

and Connor reviewed statutes involving impersonation of a police officer and disruption of public services. Id. at 178-179. Dobeck advised Connor that Novak's conduct may have violated Ohio Rev. Code § 2909.04(B), disrupting public service. Id. Ohio Rev. Code §2909.04(B) prohibits "knowingly us[ing] any computer, computer system, computer network, telecommunications device, or other electronic device or system of the internet so as to disrupt, interrupt, or impair the functions of any police . . . . operations."

After seeking advice from Dobeck¹, Detective Connor applied for a search warrant for Novak's IP address from Facebook on March 2, 2016. Dobeck Depo., ECF Doc. 79-3 at 126; Novak Depo., ECF Doc. 90, Exhibit 8. He also subpoenaed Facebook and requested that Novak's page be taken down. Connor Depo., ECF Doc. 71-7 at 336. Connor identified the first Facebook profile to share the fake account as "anthony.h.novak." ECF Doc. 71-7 at 184.

Captain Riley also spoke to Dobeck on March 2, 2016 and received the same advice - to investigate the page as a possible violation of disrupting public services. Riley Depo., ECF Doc. 71-1 at 176. On the official Parma Police Department Facebook, Captain Riley notified the public that Novak's Facebook page was a fake. Id. at 99. But Novak replicated this warning and posted it on the fake page as well. Id. Such conduct went far beyond mere parody or poking fun at the police and was consistent with the testimony of his roommate that Novak was using his Facebook page to "mess with people." Kozelka Depo., ECF Doc. 97-1 at 15-16. It was also evidence that Novak was trying to disrupt police operations. Captain Riley also appeared on Channel 8 warning the public about the fake page. Id. at 223. Cleveland.com also interviewed him about the fake Facebook page. Id. After learning about the Channel 8 broadcast, Novak

Page 6

voluntarily deleted the Facebook page. Novak Depo., ECF Doc. 90 at 125. The page had been viewable on Facebook for 12 hours. Id.

On March 3, 2016, Detective Connor applied for another search warrant, this time seeking all Facebook records related to the now-deleted page. Novak Depo., ECF Doc. 90-1 at 526. Parma Municipal Judge Kenneth Spanagel issued a search warrant around 12:45 p.m. on March 3, 2016. Novak Depo., ECF Doc. 90-1 at 526. On March 18, 2016, Connor reviewed the thousands of pages of documents received from Facebook as a result of the subpoena (Connor Depo., ECF Doc. 71-7 at 289), and shared them with Dobeck. Dobeck Depo., ECF Doc. 79-3 at 52. Detective Connor then sought an arrest warrant for Anthony Novak on March 18, 2016. Id. at 57, 125-26. Magistrate Judge Edward Fink issued the warrant, based on a violation of the disrupting public services statute. Fink Depo. pp. 82-84, ECF Doc. 92-1 at 22.

Novak was arrested on March 25, 2016. Connor Depo., ECF Doc. 71-7 at 308. That same day, Detective Connor applied for a search warrant for Novak's apartment. O'Donnell Depo., ECF Doc. 108-1 at 29-31. Judge Deanna O'Donnell issued the search warrant. Id. On March 28, 2016, Judge O'Donnell issued a second search warrant, granting police authority to search the contents of electronic devices seized from Novak's apartment. Id. at 35, Ex. 8. Because disrupting public services...