Suing police for no sense of humor

Anthony Novak of Parma, Ohio, parodied the local police department on Facebook. His fake website was online for all of 12 hours.

They were not amused. Cops arrested him, searched his apartment,. seized his laptop and phone, threw him in jail, and prosecuted him for felony disruption of police operations. A jury acquitted him. (Read story here.)

Now Novak wants to sue the city, police department, and D.A. for violating his First and Fourth Amendment rights. The federal civil rights act, at 42 USC §1983, says,

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ….”

Should be slam dunk, right? Not so fast. Novak’s lawsuit collided with police qualified immunity (explained here), so lower federal courts threw it out. He’s appealing to the U.S. Supreme Court.

So which is it? Free speech or immune police? Speech is much less free if cops can arrest you for annoying them, even if the charges they bring against you don’t stick. Unless you can sue them, they can violate your rights all they like. Rights you can’t enforce aren’t rights at all.

This would seem like a no-brainer, but right now it depends on where you live because the federal appellate circuits are split, which makes the issue ripe for Supreme Court review. But the Supreme Court hasn’t decided yet whether to take Novak’s case.

If he’d won below, and the city defendants were appealing, the justices could let the lower ruling stand without danger to the First and Fourth Amendments. But if they don’t take the case, Novak will lose out, and the First Amendment will be weakened.

They should take the case. Free speech is too important not to be strongly protected, and governed by uniform national rules. This isn’t about what is or isn’t protected speech; it’s about whether police immunity from lawsuit trumps the right of free speech. It should not.

If you like to read legal stuff, you can find Novak’s petition for certiorari here.

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