Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00023-LTB-CBS THOMAS MINK, Plaintiff, v. SUSAN KNOX, a Deputy District Attorney working for the 19th Judicial District Attorney's Office, in her individual capacity, Defendant. ______________________________________________________________________________ DEFENDANT'S REPLY BRIEF IN SUPPORT OF RENEWED MOTION TO DISMISS ______________________________________________________________________________ Defendant Susan Knox, by and through her counsel, David R. Brougham, Esq. and Andrew D. Ringel, Esq. of Hall & Evans, L.L.C., hereby submits this Reply Brief in Support of Renewed Motion to Dismiss, as follows: INTRODUCTION Defendant Susan Knox filed her Renewed Motion to Dismiss ("Motion to Dismiss") on March 25, 2008. Plaintiff filed his Response in Opposition to Defendant Knox's Motion to Dismiss ("Plaintiff's Response") on April 21, 2008. Ms. Knox now respectfully submits this Reply Brief in Support of Renewed Motion to Dismiss. Nothing contained in the Plaintiff's Response alters the propriety of this Court granting qualified immunity to Ms. Knox from the Plaintiff's 42 U.S.C. § 1983 claim against her and therefore dismissing Plaintiff's claims against her as a matter of law.

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ARGUMENT I. DEFENDANT SUSAN KNOX IS ENTITLED TO QUALIFIED IMMUNITY FROM THE PLAINTIFF'S REMAINING 42 U.S.C. § 1983 FOURTH AMENDMENT CLAIM Susan Knox is entitled to qualified immunity from the Plaintiff's 42 U.S.C. § 1983 Fourth Amendment claim against her as a matter of law. First, nothing contained in the Tenth Circuit's mandate precludes this Court from addressing and accepting Ms. Knox's qualified immunity arguments. Second, the qualified immunity precedent cited in Ms. Knox's Motion to Dismiss remains applicable and the Plaintiff's effort to relax the inquiry for what constitutes clearly established law for qualified immunity purposes must be rejected by this Court. Third, Plaintiff has not and cannot demonstrate any violation of his Fourth Amendment constitutional rights by Ms. Knox. Plaintiff's repeated effort to inject First Amendment considerations into this Court's analysis of whether there was probable cause under the Fourth Amendment to support the search warrant is inappropriate and not supported by applicable law. Fourth, no violation of clearly established law exists here. Judged against the appropriate level of specificity required by the qualified immunity inquiry, no basis exists for this Court to conclude any alleged violation of Plaintiff's Fourth Amendment constitutional rights was clearly established for qualified immunity purposes. A. THIS COURT'S ACCEPTANCE OF DEFENDANT SUSAN KNOX'S ARGUMENTS DOES NOT CONFLICT WITH THE TENTH CIRCUIT'S MANDATE Plaintiff argues this Court must comply with the Tenth Circuit's mandate and implies Ms. Knox's qualified immunity arguments are somehow inconsistent with the appellate mandate to this Court. [See Plaintiff's Response, at 3]. Plaintiff appears to argue the Tenth Circuit mandate only authorizes this Court to address the issues raised by the Tenth Circuit in its one-paragraph

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discussion of the qualified immunity issue. However, review of the Tenth Circuit decision as a whole and the specific remand order from the Tenth Circuit demonstrates the appellate court remanded the qualified immunity issue for initial determination by this Court and did not limit the scope of this Court's qualified immunity review. See Mink v. Suthers, 482 F.3d 1244, 1263 (10th Cir. 2007), cert. denied, 128 S.Ct. 1122 (2008). Nothing about the Tenth Circuit's decision suggests, let alone mandates, that this Court's qualified immunity analysis should be somehow limited. Moreover, even if the Tenth Circuit's decision can be read to limit this Court's qualified immunity analysis, the two issues raised by the Tenth Circuit in its one-paragraph qualified immunity discussion mirror the traditional two-prong qualified immunity analysis, with the first issue being whether a constitutional violation occurred, and the second issue of whether the constitutional violation was clearly established. Simply put, nothing contained in the Tenth Circuit's decision forecloses this Court from addressing the qualified immunity arguments raised by Ms. Knox in her Renewed Motion to Dismiss. B. THE QUALIFIED IMMUNITY PRINCIPLES OUTLINED IN THE RENEWED MOTION TO DISMISS ARE NOT OBSOLETE Plaintiff asserts much of the qualified immunity precedent cited in the Motion to Dismiss is obsolete. [See Plaintiff's Response, at 4]. Plaintiff is flatly wrong. Initially, the only aspect of the qualified immunity precedent Plaintiff takes issue with is Ms. Knox's discussion of the clearly established prong of the analysis. Nowhere does the Plaintiff question the remainder of the qualified immunity analysis presented in the Motion to Dismiss and particularly the requirement Plaintiff establish a violation of his constitutional rights as a threshold matter. [See Motion to Dismiss, at 3-5].

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Further, Plaintiff's implication the clearly established part of the qualified immunity analysis has been altered by the United States Supreme Court to lessen the burden on the Plaintiff to prove the law was clearly established for qualified immunity purposes is incorrect. The Supreme Court's most recent extended discussion of the clearly established qualified immunity inquiry occurred in Brosseau v. Haugen, 543 U.S. 194 (2004). Importantly, Brosseau was decided after both Wilson v. Layne, 526 U.S. 603 (1999), and Hope v. Pelzer, 536 U.S. 730 (2002), relied upon by the Plaintiff. [See Plaintiff's Response, at 3-4]. In Brosseau, the Supreme Court re-emphasized the requirement that the clearly established "inquiry `must be undertaken in light of the specific context of the case, not as a broad general proposition.'" Brosseau, 543 U.S. at 198 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Further, Brosseau interpreted Hope as applying to circumstances where the constitutional violation was "obvious" and therefore "there need not be a materially similar case for the right to be clearly established." Brosseau, 543 U.S. at 198. Review of the entirety of the discussion in Brosseau demonstrates the law as most recently outlined by the Supreme Court is the equivalent of what has long been Tenth Circuit law as described in Ms. Knox's Motion to Dismiss. See Brousseau, 543 U.S. at 197-201. The Tenth Circuit consistently follows the Supreme Court's formulation of the clearly established qualified immunity inquiry in recent decisions. See, e.g., Walker v. City of Orem, 451 F.3d 1139, 1151 (10th Cir. 2006); Simkins v. Bruce, 406 F.3d 1239, 1241 (10th Cir. 2005). C. PLAINTIFF CANNOT DEMONSTRATE ANY VIOLATION OF HIS CONSTITUTIONAL RIGHTS BY DEFENDANT SUSAN KNOX Initially, seeking to inappropriately inject First Amendment considerations into the probable cause determination at issue respecting Plaintiff's Fourth Amendment claim against Ms. Knox in this case, Plaintiff attempts to avoid the clear and unambiguous holding of New

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York v. P.J. Video, Inc., 475 U.S. 868 (1986), that "an application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally." Id. at 875. [See Plaintiff's Response, at 4-5]. Plaintiff seizes on an isolated sentence from P.J. Video, in an effort to include First Amendment considerations into the Fourth Amendment probable cause analysis here. [See Plaintiff's Response, at 4-5]. Unfortunately, Plaintiff uses this sentence entirely out of its appropriate context. Immediately following the sentence quoted by the

Plaintiff, the Supreme Court offers several examples of "certain special conditions be met before such seizures may be carried out." P.J. Video, 475 U.S. at 873. However, the Supreme Court explicitly and unambiguously criticized the New York Court of Appeals for construing these decisions as standing for the proposition a higher standard of probable cause is required by the First Amendment. Id. at 874. Instead of the rule advanced by the Plaintiff, the Supreme Court in P.J. Video held no different probable cause standard applies even when the First Amendment is implicated in a search. Id. at 875. A variety of courts, including this Court, have followed P.J. Video. See, e.g., United States v. Levinson, 991 F.2d 508, 509-10 (9th Cir. 1993); United States v. Weber, 923 F.2d 1338, 1343 n. 6 (9th Cir. 1990); United States v. Smith, 795 F.2d 841, 847 n. 5 (9th Cir. 1986), cert. denied, 481 U.S. 1032 (1987); Clarke v. Mesa County Sheriff's Office, 1987 U.S. Dist. LEXIS 15257 at *5-6 (D. Colo. Nov. 27, 1987) (unpublished disposition attached to Motion to Dismiss as Exhibit A). Notably absent from the Plaintiff's extremely lengthy discussion of the alleged applicability of First Amendment legal principles to an evaluation of whether probable cause existed to support the warrant to search the Plaintiff's property, is a single case that holds that the

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type of analysis adopted by the Plaintiff has any applicability whatsoever to a specific Fourth Amendment context. [See Plaintiff's Response, at 4-10]. Absent an actual precedent holding that First Amendment considerations must be included as part of a probable cause analysis, no basis exists for this Court to consider the First Amendment in this case at all. P.J. Video and its progeny are clear. The only question before this Court in evaluating whether Ms. Knox violated the Plaintiff's Fourth Amendment rights is whether probable cause existed to support the search warrant. After all, Plaintiff has advanced a Fourth Amendment claim against Ms. Knox, not a First Amendment claim. The clear distinction between the requirements of the Fourth

Amendment and the First Amendment is underscored by the Supreme Court's analysis and conclusion in Zurcher v. Stanford Daily, 436 U.S. 547 (1978). In Zurcher, at issue was a search warrant served on the university student newspaper designed to obtain pictures of a clash between police and demonstrators. The Supreme Court addressed the First Amendment issue raised to argue for a different rule to be applied to searches of newspaper offices, as follows: Neither the Fourth Amendment nor the cases requiring consideration of First Amendment values in issuing search warrants, however, call for imposing the regime ordered by the District Court. Aware of the long struggle between Crown and press and desiring to curb unjustified official intrusions, the Framers took the enormously important step of subjecting searches to the test of reasonableness and to the general rule requiring search warrants issued by neutral magistrates. They nevertheless did not forbid warrants where the press was involved, did not require special showings that subpoenas would be impractical, and did not insist that the owner of the place to be searched, if connected with the press, must be shown to be implicated in the offense being investigated. Further, the prior cases do no more than insist that the courts apply the warrant requirement with particular exactitude when First Amendment interests would be engendered by the search. As we see it, no more than this required where the warrant requested is for the seizure of criminal evidence reasonably believed to be on the premises occupied by a newspaper. Properly administered, the preconditions for a warrant--probable cause, specifically with respect to the place to be searched and the things to be seized, and overall reasonableness--should

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afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices. Zurcher, 436 U.S. at 465. Furthermore, Ms. Knox in her Motion to Dismiss explicitly argued the issue for evaluating the Plaintiff's Fourth Amendment claim was whether probable cause existed to support the issuance of a search warrant, not whether probable cause existed to arrest or charge the Plaintiff with the crime of criminal libel. [See Motion to Dismiss, at 10]. Once again, Plaintiff inappropriately attempts to confuse and conflate the two distinct issues. Plaintiff's Response specifically asserts that "no reasonable District Attorney could have concluded that there was probable cause to believe that C.R.S. § 18-13-105 had been violated." [See Plaintiff's Response, at 6]. This heading, and indeed the entire discussion in the Plaintiff's Response, demonstrates Plaintiff's effort to suggest Ms. Knox lacked probable cause to conclude Plaintiff committed the crime of criminal libel violative of C.R.S. § 18-13-105. [See Plaintiff's Response, at 4-10]. 1 Again, however, this fundamentally misstates the actual inquiry before this Court of whether there was a reasonable basis for Ms. Knox to conclude during her review of the warrant and its supporting affidavit that there was "a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). No additional or different inquiry is appropriate under the Fourth Amendment law applicable to determining whether Ms. Knox violated Plaintiff's Fourth Amendment constitutional rights.

Underscoring the fundamental flaw in the Plaintiff's approach is the reality that each and every one of the cases cited by the Plaintiff in this section of the Plaintiff's Response are cases interpreting the contours and requirements of the First Amendment, and not the Fourth Amendment. [See Plaintiff's Response, at 6-10]. 7

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Once this Court focuses on the appropriate inquiry before it, it remains clear that probable cause existed to support the issuance of a search warrant in this case. Despite

Plaintiff's protestations to the contrary, all Ms. Knox did in this case was review Greeley Police Detective Ken Warren's Affidavit to determine whether she believed it was appropriate to submit the information to a district court judge as part of a search warrant application. Plaintiff cites portions of the First Amended and Supplemental Complaint in an effort to magnify Ms. Knox's role. [See Plaintiff's Response, at 1-3]. However, review of the actual non-conclusory allegations cited by the Plaintiff reveals nothing more than the reality that Ms. Knox reviewed and approved the affidavit completed by Detective Warren prior to its submission to the state district court. The only other allegation even mentioning Ms. Knox is the wholly conclusory allegation that Ms. Knox "knew that the search of the Minks' home would require searching for materials by a person or persons involved in public expressive and communicative activities." [See Plaintiff's Response, at 2 (quoting Plaintiff's First Amended and Supplemental Complaint, ¶ 59]. Even assuming this allegation is true, because the alleged First Amendment activities of the Plaintiff are irrelevant to this Court's Fourth Amendment probable cause determination, it remains undisputed all Ms. Knox did was review the affidavit for the limited purpose of determining whether it was appropriate for it to be submitted to a district court judge as part of a search warrant application. Based on the extremely limited nature of Ms. Knox's activities related to the warrant, it was entirely reasonable for her to conclude probable cause existed to support the conclusion a search of the residence where the Plaintiff lived and operated his computer to place information on an internet website had the fair probability to lead to the

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discovery of evidence that could be used in a subsequent criminal prosecution. [See also Motion to Dismiss, at 10-11]. D. NO VIOLATION OF CLEARLY ESTABLISHED LAW EXISTS HERE Plaintiff's argument concerning whether the Plaintiff's Fourth Amendment constitutional rights allegedly violated by Ms. Knox were clearly established for qualified immunity purposes is confusing and misguided. Plaintiff asserts his Fourth Amendment right was clearly

established. [See Plaintiff's Response, at 10-14]. However, Plaintiff does not point to any specific precedents that allegedly create clearly established law. Instead, Plaintiff sets forth a variety of Fourth Amendment cases outlining the general parameters for a valid search or arrest warrant and then argues that the warrant at issue in this case violated these general legal principles. [See Plaintiff's Response, at 10-14]. Plaintiff wholly fails to appropriate analyze the clearly established law issue. A court determining whether an individual defendant's conduct allegedly violative of a plaintiff's constitutional rights was clearly established examines the nature of the right at issue to determine whether a reasonable official would understand prior to the alleged constitutional violation what she was doing violates that right. [See Motion to Dismiss, at 5]. Indeed, Plaintiff's own discussion of the clearly established requirement recognizes this approach. [See Plaintiff's Response, at 3-4]. Nothing contained in the Plaintiff's Response, however, consists of any analysis comparing the specific conduct Plaintiff alleges Ms. Knox committed with existing law to demonstrate the law was clearly established for qualified immunity purposes at the time Ms. Knox allegedly violated Plaintiff's Fourth Amendment rights. Precedent following this approach for determining whether the law was clearly established for qualified immunity

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purposes is legion. See, e.g., Wilson v. Layne, 526 U.S. 603, 615-616 (1999); Mecham v. Frazier, 500 F.3d 1200, 1205-1206 (10th Cir. 2007); Novitsky v. City of Aurora, 491 F.3d 1244, 1255-1257 (10th Cir. 2007); Lobato v. Ford, 2007 U.S. Dist. LEXIS 82373 at *20-28 (Oct. 31, 2007) (Babcock, J.) [unpublished disposition attached hereto as Exhibit B]. Importantly, under well-settled law, it is the Plaintiff's specific burden to demonstrate the law was clearly established when the alleged constitutional violation occurred to overcome Ms. Knox's assertion of qualified immunity. See, e.g., Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir. 2000); Mick v. Brewer, 76 F.3d 1127, 1134 (10th Cir. 1996); Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir. 1988). Here, nothing Plaintiff cites in his Response demonstrates the existence of any clearly established law. At best, Plaintiff's citations to general Fourth Amendment precedent run afoul of the long-standing rule that the inquiry must be undertaken in a particularized fashion rather than at too generalized a level. See, e.g., Anderson v. Creighton, 483 U.S. 635, 640 (1987); Brosseau, 543 U.S. at 198; Saucier, 533 U.S. at 201. The general Fourth Amendment propositions cited by the Plaintiff as allegedly violated by Ms. Knox do not create clearly established law. Plaintiff has simply failed to come forward with any specific Supreme Court, Tenth Circuit, or the clearly established weight of authority from other federal courts providing any prior knowledge to Ms. Knox that her actions in reviewing the warrant and affidavit prior to its submission to the state district court were violative of Plaintiff's Fourth Amendment constitutional rights. 2

While Plaintiff cites Hope in his discussion of the applicable qualified immunity law, Plaintiff never actually argues that it was obvious that Ms. Knox's actions violated Plaintiff's constitutional rights. [See Plaintiff's Response, at 4 & 10-16]. Moreover, as the extensive briefing throughout this case before this Court, the Tenth Circuit, and the Supreme Court demonstrates, absolutely no basis exists even to suggest Ms. Knox's actions were an obvious 10

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Plaintiff's discussion of Ms. Knox's reliance on Douglas v. Dobbs, 419 F.3d 1097 (10th Cir. 2005), cert. denied, 546 U.S. 1138 (2006), is equally befuddled. Initially, Plaintiff suggests this Court should somehow not consider Douglas because the Tenth Circuit could have done so on appeal based on the overlap in identify of one of the members of the Tenth Circuit panel who decided Mink and Douglas. [See Plaintiff's Response, at 14-15]. Such a suggestion is absurd. The Tenth Circuit specifically determined not to address qualified immunity on appeal because this Court had not previously done so. Such a determination naturally meant the Tenth Circuit would not address Douglas as part of a qualified immunity inquiry the Tenth Circuit never engaged in. Further, Plaintiff's discussion of Douglas focuses on the alleged factual dissimilarities between Douglas and the instant case. Plaintiff's approach suggests that it is somehow Ms. Knox's burden to prove that Douglas applies to this case for her to receive qualified immunity. Unfortunately for Plaintiff, that is clearly not the law. As discussed above, Plaintiff bears the burden of demonstrating clearly established law exists in the specific factual context of Ms. Knox's alleged unconstitutional conduct. It is immaterial whether or not there is a specific factual correspondence between Douglas and the instant case. Instead, Ms. Knox cites Douglas because in the closest factual situation decided by the Tenth Circuit to the one that exists in the present case the Tenth Circuit decided there was no clearly established law that precluded the assistant district attorney in Douglas' qualified immunity. Here, Plaintiff offers absolutely no precedent whatsoever to demonstrate the specific actions by Ms. Knox violated clearly

violation of Plaintiff's constitutional rights sufficient to fit within the ambit of Hope and Brosseau. 11

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established Fourth Amendment law. 3 Indeed, Plaintiff makes no specific argument concerning the facts of any case and the facts of the instant case to demonstrate Ms. Knox or any other reasonable assistant district attorney would understand that what she did in reviewing the warrant and affidavit for Detective Warren prior to their submission to the state district court was violative of the Plaintiff's Fourth Amendment rights. In the absence of any such precedent, which Plaintiff has never cited and simply does not exist here, Ms. Knox is entitled to qualified immunity from Plaintiff's 42 U.S.C. § 1983 Fourth Amendment claim as a matter of law. CONCLUSION In conclusion, for all of the foregoing reasons, as well as based on all of the arguments and authorities contained in her original Renewed Motion to Dismiss, Defendant Susan Knox respectfully requests this Court dismiss the Plaintiff's remaining 42 U.S.C. § 1983 Fourth Amendment Claim with prejudice, and for all other and further relief as this Court deems just and appropriate.

Plaintiff's profound misunderstanding of the applicable qualified immunity analysis is further underscored by Plaintiff attempt to distinguish Douglas based on the assertion unlike in that case there were "violations of clearly-established First Amendment law" here. Again, Plaintiff has no First Amendment claim against Ms. Knox in this case. The issue for this Court's clearly established law analysis is whether there is prior precedent that would have provided notice to Ms. Knox that her actions constituted a Fourth Amendment constitutional violation. Plaintiff's repeated references and attempt to analyze this case in First Amendment terms is entirely inapposite to the actual issues to be decided by this Court respecting Ms. Knox's qualified immunity. 12

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Dated this 22nd day of May, 2008. Respectfully submitted,

s/ Andrew D. Ringel . David R. Brougham, Esq. Andrew D. Ringel, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 303-628-3453 Fax: 303-293-3238 [email protected] [email protected] ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 22nd day of May, 2008, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: A. Bruce Jones, Esq. Holland & Hart, L.L.P. [email protected] Marcy G. Glenn, Esq. Holland & Hart, L.L.P. [email protected] Mark Silverstein, Esq. ACLU 400 Corona Street Denver, CO 80218 [email protected] [email protected]

s/ Loree Trout, Secretary to David R. Brougham, Esq. Andrew D. Ringel, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 303-628-3453 Fax: 303-293-3238 [email protected] [email protected]

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ATTORNEYS FOR DEFENDANT

H:\Users\RINGELA\weld\Mink 6271-445\USDC pleadings\reply renewed motion to dismiss.doc

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