Prosecutor Liable in Raid of ‘Howling Pig’ Paper

     (CN) – A Colorado prosecutor trampled on a former college student’s civil rights when she approved an illegal search of his home and computer based on a professor’s objections to his online newsletter, a federal judge ruled.

     The decision caps eight years of legal wrangling that twice sent the case to the Denver-based 10th Circuit.
     University of Northern Colorado finance professor Junius Peake called the police in 2003 when he saw editions of the Howling Pig, an online newsletter published by then-UNC student Thomas Mink and others. Peake claimed that the newsletter violated Colorado’s criminal libel law by publishing altered photographs of him made up to look like Hitler and a member of the rock band Kiss.
     The editor-in-chief of the Howling Pig was said to be “Mr. Junius Puke,” and the first three issues of the newsletter spoofed the professor with columns, attributed to “Professor Puke,” on various topics of interest to the UNC community and Greeley, Colo., according to court filings.
     Acting on Peake’s complaints, the Greeley police sought a warrant to search the home that Mink shared with his mother. After Weld County prosecutor Susan Knox approved the warrant and a judge signed off, the police seized Mink’s computer.
     Working with the American Civil Liberties Union of Colorado, Mink filed a federal civil rights lawsuit against the city of Greeley, Knox and others in 2004, seeking damages for illegal search and seizure.
     Prosecutors eventually refused to file criminal libel charges against Mink and returned his computer under a court order.
     The District Court initially ruled that Knox had absolute prosecutorial immunity for her role in approving the search warrant, but the 10th Circuit reversed that decision in 2007. U.S. District Judge Lewis Babcock subsequently granted Knox’s motion to dismiss based on qualified immunity, but the 10th Circuit reversed again in 2010, finding that Mink had proved that the prosecutor violated his rights by approving the warrant.
     In that ruling, 10th Circuit Judge Stephanie Seymour offered a succinct description of why the newsletter was not libelous, and why Knox should have known that before approving the warrant.
     “Junius Puke’s editorial column addressed subjects on which Mr. Peake would be unlikely to write, in language he would be unlikely to use, asserting views that were diametrically opposed to Mr. Peake’s,” Seymour wrote.
     Relying largely on the 10th Circuit’s ruling, Judge Babcock granted summary judgment to Mink in an order signed Friday.
     “Mr. Mink has established that Ms. Knox’s alleged conduct violated his Fourth Amendment rights because there was no probable cause to believe that he had committed criminal libel,” Babcock wrote. “Ms. Knox’s argument that she is nonetheless entitled to qualified immunity because she made a reasonable mistake that her actions were constitutional is directly contradicted by the Tenth Circuit’s conclusion, unaffected by the additional facts she presents, that no reasonable prosecutor could have believed that it was probable that publication of [The Howling Pig’s] statements constituted a crime warranting the search and seizure of Mr. Mink’s property.”
     Damages will be determined at a hearing in the near future, Babcock added.
     The ACLU of Colorado did not return a call requesting comment on the victory Monday, but in a statement released last year after the 10th Circuit’s ruling that Knox was not immune from prosecution, legal director Mark Silverstein called the decision a “major victory for the protection of free expression and the protection of the public from unreasonable searches and seizures.”

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