Faceplant on Facebook Farce?

by | May 18, 2022

Novak v. City of Parma, Ohio, 2022 WL 1278981 (6th Cir. 2022)

Anthony Novak created a fake “Parma Police Department” Facebook page. He posted notices for a “Food Drive to benefit teen abortions at which officers will be giving out free abortions to teens using an experimental technique discovered by the Parma Police Department in a police van in the parking lot,” a “temporary law introduced by the Department forbidding residence of Parma from giving ANY HOMELESS person food, money or shelter in our city as an attempt to have the homeless population eventually leave our city due to starvation,” and a Parma Police “Pedophile Reform event,” as well as a patently racist post referring to a Black woman.

About a dozen people who saw the posts called the police department. Dozens more commented on the department’s actual Facebook page about the department’s inability to take a joke. Officers posted a notice on the department’s official page stating it was the official account and warning the fake page was “being investigated.” Novak copied that post onto his fake page “to deepen his satire” and “mocking government officials.” Novak promptly deleted any comments calling out his page as a fake.

A detective served a preservation letter on Facebook and asked Facebook to take down the fake account. A lieutenant issued a press release and appeared on the nightly news to announce an investigation. Novak became worried he’d faceplant with the fake account and quickly deleted the page.

The detective obtained a search warrant for Facebook and learned Novak had created the fake account. After consulting with a city attorney, officers obtained an arrest warrant from one judge and a search warrant from another judge. The warrants were based on a state law prohibiting the use of a computer to “disrupt or impair police functions.” Officers arrested Novak, searched his apartment, and seized his phone and laptop. He spent four days in jail before making bond.

A jury later acquitted him. Novak subsequently sued, raising 59 claims against the lieutenant, the detective and the city.

Novak claimed his arrest was retaliation for creating the fake Facebook page. With several of the claims, including the retaliation claim, the officers raised the defense of qualified immunity. Remember that qualified immunity protects officers from liability for civil rights claims unless an officer (1) violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time of the alleged violation.

Novak asserted that, because his Facebook page was intended to be a parody, it was protected under the First Amendment. True or not, the legal question is whether his arrest was based on probable cause. Only if Novak could show it was clearly established the officers lacked probable cause to arrest him could they be liable. The state statute under which he was arrested barred knowingly using the computer or internet to “disrupt” or “interrupt” police operations. Plainly, Novak knowingly used a computer and the internet to create the fake Facebook page. The officers alleged that he disrupted police operations because the department had received multiple calls about the page.

At the end of the day, the smartest thing the officers did was consult with their legal counsel before searching and arresting.

Thus, it would seem there was probable cause for the arrest. However, the court needed to consider one further question: While speech protected by the First Amendment can be evidence the speaker committed a crime, protected speech cannot form the sole basis of probable cause. So, was the fake page, carefully modeled after the department’s actual page and coupled with deletion of comments identifying it as a fake, protected speech under the First Amendment? Was Novak’s fake page tantamount to impersonating a police officer (which is not protected speech)?

The court said it could leave that question aside. “While probable cause here may be difficult, qualified immunity is not. That’s because qualified immunity protects officers who reasonably pick one side or the other in a debate where judges could reasonably disagree.” The officers could reasonably believe that some of Novak’s Facebook activity was not parody, not protected and fair grounds for probable cause. Moreover, this was a case where judges could reasonably disagree. A city attorney and two judges reviewed the probable cause affidavits before the warrants were issued.

Novak also claimed the search of his apartment and the seizure of his computer and phone violated the Fourth Amendment. The court quickly dealt with this claim, granting qualified immunity. The officers relied on a search warrant issued by a judge. Though Novak claimed the officers presented false information to the magistrate who issued the warrant, the court disagreed.

The court also made short work of Novak’s host of other claims. Nonetheless, the court asked: “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.” Novak and a bevy of attorneys acting for him, and the government attorneys on the other side, spent nearly five years in court, arguing dozens of issues in nearly 50 hearings and written briefs. Whether the fake Facebook page warranted prosecution or not, the officers had to endure the five years of litigation. At the end of the day, the smartest thing the officers did was consult with their legal counsel before searching and arresting.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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