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DENVER – Issuing a decision in a longstanding ACLU of Colorado case, the Tenth Circuit Court of Appeals ruled today that a Weld County assistant prosecutor can be held legally responsible for an illegal search of the home of Thomas Mink and the illegal seizure of his computer. The search was carried out pursuant to a warrant issued in late 2003 as part of a Greeley Police Department investigation of supposed "criminal libel" for Mink's role in publishing "The Howling Pig," an online publication featuring satiric commentary on issues of public concern to the University of Northern Colorado (UNC) community.
The investigation and the warrant were based solely on the first three issues of "The Howling Pig." The prosecutor, Susan Knox, reviewed the publications, the application for search warrant, and the draft of the warrant itself. Although Knox did not personally participate in the illegal search, the court held that her approval of the warrant application set the illegal search in motion.
"Today's decision is a major victory for the protection of free expression and the protection of the public from unreasonable searches and seizures," said Mark Silverstein, ACLU Legal Director. "The court held that our client's publication was clearly protected by the First Amendment and that no reasonable prosecutor could have believed otherwise. The court also held that no reasonable prosecutor could have believed that the search warrant—which authorized seizure of any and all papers in the home—was specific enough to comply with the Fourth Amendment."
The ACLU filed the lawsuit in early 2004 and quickly obtained a restraining order forbidding the threatened "criminal libel" prosecution and securing the return of Mr. Mink's computer. The ACLU also sought an order declaring the "criminal libel" statute unconstitutional, but the Tenth Circuit, in a 2007 ruling, held that Mr. Mink could not challenge the statute because he was no longer threatened with prosecution. Today's ruling, on the case's second trip to the federal court of appeals, held that Ms. Knox is not entitled to invoke the defense of "qualified immunity."
In addition to Silverstein, Mink is represented by ACLU Cooperating Attorneys Marcy Glenn and Bruce Jones, of Holland & Hart.
More case information and court documents available online at: www.aclu-co.org/docket/200320/200320_description.htm