Wednesday, November 02, 2022 Julie Tappendorf
In Novak v. City of Parma,
the U.S. Court of Appeals for the Sixth Circuit ruled in favor of a municipality and certain police officers in a First Amendment challenge relating to an imposter Facebook page created by a private individual.
Novak created a knockoff
Facebook page that looked
substantially identical to the City of Parma police department ("Department") page. The imposter Facebook page included posts such as offering free abortions in police vans and a
“pedophile reform event” which caused concerned citizens to reach out to the Department to complain. Novak also deleted any comments on his page that stated the page was a fake.
Ultimately, the Department posted a warning on its Facebook
account about the imposter account, which Novak reposted on his imposter page. The Department also issued a press
release and took part in a TV news interview, announcing an investigation of
the Facebook account and warning people about the imposter page. Novak subsequently took down the page for fear of getting in trouble but
was arrested and charged for violating an Ohio law that makes it illegal to use
a computer to disrupt or impair police functions. After being found not
guilty of the charges, Novak filed a lawsuit against the city and
multiple police officers. The district court ruled in favor
of the city and Novak appealed.
On appeal, Novak claimed his arrest was in retaliation for creating the
parody Facebook page, violating his First Amendment rights. The Court of Appeals rejected his argument, stating a reasonable officer would have believed every element of
the Ohio disruption statute was met. The Court pointed to the fact that police
were aware the call center had received multiple calls about the imposter page and the Ohio law created no standard for how much “disruption” had to be
caused. The Court also noted that qualified immunity protects an officer who “reasonably picks one side or the other” in a
debate where judges could “reasonably disagree." Here, the Court determined that the officers reasonably believed that some of
Novak’s Facebook activity was not parody, not protected, and fair grounds for probable cause. The Court also noted that reassurance
from no fewer than three other officials (city law director and the judges who issued arrest warrants) supported a finding that the officers “reasonably,”
even if “mistakenly,” concluded that probable cause existed, which supports qualified immunity for the individual officers.
Novak also sued the city
under the theory of municipal liability for the officers’ actions. For
municipal liability to attach, there must:
- Be an official policy or legislation in place authorizing the
alleged violation.
- A designated decision-maker authorized the activity.
- Failure to train or
supervise employees.
- There is a custom in rights violations.
Novak argued the city law director set the city’s official policy when he determined the police
officers had probable cause to continue investigating him. The Court
disagreed, stating that would mean every city prosecutor would “set policy” for
the municipality several times a day every time they assessed probable cause,
which is not reasonable. The Court stated even if the law director had made
the final municipal determination that the officers had probable cause to
arrest the plaintiff, the judges' independent findings to issue arrest
warrants eliminated the causal connection.
In sum, the Court of Appeals upheld the ruling in favor of the city and police officers.
Note that this case has been appealed to the United States Supreme Court.
Post Authored by Katie Nagy & Julie Tappendorf
