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