*3 O’BRIEN, Before SEYMOUR and GORSUCH, Judges. Circuit SEYMOUR, Judge. Circuit *4 Thomas Mink appeals the district court’s § dismissal of his 42 complaint U.S.C. 1983 against Knox, Susan a deputy district at- torney, on qualified immunity grounds. We reverse.
I. Mink, Mr. a student at University (“UNC”), Northern Colorado created a fic character, Puke,” tional “Junius for the editorial column of jour his internet-based nal, Suthers, The Howling Pig.1 Mink v. (10th 1244, Cir.2007), 482 F.3d cert. denied, 552 U.S. 128 S.Ct. (2008) (“Mink I”). L.Ed.2d 949 The edito rial column displayed photographs altered Peake, of Junius a UNC professor, wear ing dark sunglasses a and Hitler-like mus tache. Id. at 1249. Junius Puke’s editori al column subjects addressed on which Mr. unlikely write, Peake would be in lan guage unlikely use, he would be assert ing views that diametrically were opposed to Mr. Peake’s. See id. Peake,
Mr. amused, who was not con Marcy LLP, G. Glenn of Holland & Hart Greeley police, tacted the who in started (A. Denver, CO, Bruce Jones of Holland vestigating & potential violation of Colora LLP, Denver, CO, Hart and Mark statute, Silver- do’s criminal libel Colo.Rev.Stat. stein of American § Civil Liberties Union Knox, 18-13-105. See Mink v. Colorado, Denver, CO, Foundation of 1217, 1220(D.Colo.2008)(“Mink with F.Supp.2d briefs), II”). her on the for Plaintiff-Appellant. In conformance with Colorado Re- 1. The primarily facts taken pre Knox, are from our court's decision on remand in Mink v. Slithers, vious decision in Mink v. (D.Colo.2008) F.Supp.2d (10th Cir.2007), denied, 1249-1251 cert. ("Mink ”). quote II We also from the amend- 552 U.S. 169 L.Ed.2d complaint. ed (2008) ("Mink I"), and the district 20-1-106.1, granted district court Ms. Knox’s motion § the detective vised Statute entirety, holding warrant affi- the suit in its a search to dismiss charge prepared to the office of the district Mink’s constitutional part to submit Mr. davit deputy review. The dis- attorney legal Knox were against claims Ms. barred Knox, reviewed and attorney, reversed, Susan immunity. trict absolute We deter- affidavit, the search warrant approved mining that with to the warrant was identical
which to absolute im- prosecutor is entitled paragraphs listing to the eleven respect him munity for those actions cast war- to be seized. The search the items initiating in the role of an advocate affidavit were both attached rant and government’s case. presenting complaint, and are Mink’s amended Mr. however, immunity, Absolute does Exhibits A and opinion to this attached extend to those actions that are inves- pre- affidavit and warrant were B.2 The nature, in- tigative or administrative in approved by magistrate sented to cluding provision legal advice Greeley police then searched judge. The setting prosecution. of a outside *5 Mink lived with his where Mr. the home at 1261-62. concluded that Ms. Id. We personal and confiscated their mother the hat of an wearing Knox “was advo- well as written materials ref- computer, as cate,” id. when she reviewed the I, Howling Pig. See Mink erencing The warrant, the support affidavit and F.3d at 1249. “thus, prosecuto- entitled to is not absolute subsequently Mink and his mother Mr. immunity.” rial Id. at 1263. Neverthe- against in federal district court filed suit less, “may that Knox we noted Ms. be Colorado, City Greeley, the district immunity if qualified entitled to she rea- Warren, a attorney, Detective Ken sonably probable concluded cause existed attorney, assistant district “John Doe” support application, the warrant or that damages for the search and sei- seeking application Supreme Court’s zure, The among things. other district cases to the criminal First Amendment Mr. Mink’s motion for granted court clearly statute was not established libel restraining order and ordered temporary under the circumstances here.” Id. Greeley return “to the Plain- City all there- computer, and contents tiffs the granted the district court On remand of, following the search of Plaintiffs’ seized motion to dismiss the amended Ms. Knox’s (quoting at 1250 Dist. Ct. Or- home.” Id. (1) holding that “a reasonable complaint, 1). Thereafter, der, 9, 2004, at Jan. position official in Knox’s could believe File” attorney issued a written “No district Howling Pig in The the statements decision, concluding the statements statements under the protected were not Howling Pig could not be contained in The and, accordingly, that First Amendment — criminal under the Colorado prosecuted publishing such state- Plaintiffs actions libel statute. subject prose- could him to criminal ments statute,” libel cution under the Colorado complaint, Mink then amended his
Mr.
(2) although the search warrant violat-
plaintiff
mother as a
removing his
particularity
Fourth Amendment’s
ed the
Ms. Knox as
defendant.3
adding
City Greeley
removed the
3. Mr. Mink also
Knox admitted in an affidavit submitted
2. Ms.
Warren,
Ken Salazar
Officer
and added
the war-
March
that she reviewed
on
Attorney
capacity
General of
in his official
the search warrant affidavit.
rant as well as
Colorado.
it
requirement,
clearly
complaint
that,
was not
established
enough
includes
facts
if
true,
that Ms. Knox’s authorization of the search
assumed to be
state
claim to relief
lacking particularity
plausible
warrant affidavit
that is
vio-
its face.
Ashcroft
II,
Iqbal, - U.S. -, -,
lated the Fourth Amendment. Mink
(2009) (“A
1217, 1223-24,
at because II, at In F.Supp.2d Mink so inherently incapable the law are the dis- construing complaint, the amended right warning. The giving fair and clear erred. trict court that a only sufficiently clear must be § provides, Title 42 U.S.C. understand official would reasonable part: in relevant right. doing violates that what he is who, any under color of Every person (internal Archuleta, cita- at 1283 statute, ordinance, custom, regulation, or marks, tions, and alterations quotation any Territory or usage, of State or the omitted). Columbia, subjects, District of or causes subjected, any to be citizen of the Unit- amended com- dismissing In Mr. Mink’s or other within the ed States wheth- court considered plaint, district jurisdiction deprivation thereof to the (1) be- was a causal connection er: there any rights, privileges, immunities se- alleged Knox’s actions and the tween Ms. laws, cured Constitution and shall Mr. Mink’s constitutional violation of party injured in an ac- be liable to (2) rights Mink’s constitutional rights; Mr. law, in equity, prop- tion at suit or other (3) violated; and the violated consti- were proceeding er for redress. clearly were established rights tutional We ad- added). time the violation occurred. requisite “The (emphasis Id. in turn. questions of these dress each if the causal connection is satisfied defen- a series of events that
dant set motion
*7
reasonably
knew or
should
A.
the defendant
deprive
would cause others to
have known
The Causal Connection
rights.”
plaintiff
the
of her constitutional
Knox caused
alleged
Mr. Mink
that Ms.
(10th
Tunnell,
673,
920 F.2d
700
Snell v.
warrant
that
the issuance of
search
Cir.1990). Thus,
liability under Sec-
“[f]or
particularity,
cause and
lacked
1983,
participation
direct
is not neces-
tion
causing a violation of his Fourth
thereby
omitted);
sary.”
(quotation
Id.
see also
court
rights.
Amendment
The district
City
Albuquerque,
Buck v.
of
claim,
that in order to recover on this
held
(10th Cir.2008).
1269,
“Any offi-
1279-80
allege
to
Ms.
required
Mr. Mink was
deprived
a citizen to be
cial who ‘causes’
in
participation
the constitu-
Knox’s direct
can
held
rights
her constitutional
also be
violation,
that
failed to
and
he had
tional
Snell,
(quotation
Plaintiff does warrant, deprivation constitutional and nor that she between the Knox issued the warrant, exercise of control or di- par- nor that she the officer’s reviewed the Marcantel, 565 rection. Poolaw v. in the and seizure exe- See ticipated search (10th Cir.2009) (presence The to the warrant. F.3d pursuant cuted § unnecessary for here, therefore, during held is whether—(cid:127) search question why search where Ms. Knox to liability explains for unconstitutional never moved defendant officer authorized search one complaint the on dismiss this basis. affi- second defendant officer drafted warrant);5 City v. for search davit importantly, Mr. taking More Wulf Cir.1989) (10th Wichita, true, in allegations as viewing Mink’s them in- sufficiently (concluding defendant was him, most mak light the favorable to decision-making process volved entire favor, all ing reasonable inferences his personally thus Personnel liable where do, required persuades as we are to us Advisory Board listened to defendant’s complaint plausibly that the amended as and, extent, re- to some recommendation requisite be serted the casual connection it). on lied Knox’s search tween Ms. conduct and the affirm appeal, urges On Ms. Knox us to that at Mink’s and seizure occurred Mr. sponte the district court’s sua conclusion only The amended complaint home. not complaint that should be dismissed alleged ap that Ms. Knox “reviewed and specifically allege it did not that because proved the affidavit submitted the state Knox as well reviewed the warrant as Ms. support district court of the warrant do so. the affidavit. We decline to Nota- home,” search Mink’s vol. I Aplt.App., out, bly, points as Mr. Mink both the affi- it “au alleged at also that she and search warrant attached to davit were seareh[,]” thorized and caused an unlawful complaint, the amended and Ms. Knox’s that prosecutor “[a] id. reasonable affidavit indicated that subsequently own would have known that the failed warrard warrant was one of she the documents particularity requirement meet reviewed, accordance with Colo.Rev. (em Amendment,]” § the Fourth id. at 119 aware that Being 20-1-106.1.6 well Stat. added), phasis she had reviewed the warrant no doubt reasonable “[a] Iqbal, - U.S. -, purpose against In S.Ct. discriminating also had Ashcroft (2009), (citation Supreme girls gender”) based 173 L.Ed.2d on their omitted). alleging held Court in a Bivens action uncon discrimination "each Govern stitutional unnecessary it take a We found in Lewis to only official ment ... liable for his or her debate, position and we need do so misconduct." Id. own at 1949. Court’s pled here. Mink Mr. has sufficient facts to pronouncement dissenters viewed this facially plausible state a Ms. claim that "eliminating liability supervisory ... entire input concerning Knox’s into and advice (Souter, J., ly.” dissenting). Id. at 1957 We directly pur- affidavit and warrant caused the Tripp, both noted views in Lewis v. as well as portedly unconstitutional house. search of his *8 they significant fact "generated the that have precedent Iqbal and Our lead the same to vitality continuing scope debate about the rely result we Snell’s because Poolaw and only supervisory liability, of in Bivens legal liability per- of standard for defendant's actions, § but also in 1983 604 F.3d suits.” participation, supervisory sonal not for liabili- 1221, (10th Cir.2010) (citing 1227 n. 3 al-Kidd ty 949, (9th Ashcroft, v. 580 F.3d 976 n. 25 provides: 6. The statute Cir.2009), Namod, and Sheldon Constitution Torts, Supervisory al Over-Detetrence and Lia (1) attorneys judi- The district of the several 279, bility Iqbal, 14 after in the shall: & L.Rev. cial districts state of Colorado Lewis Clark (2010)). Grindle, See v. 294-98 also T.E. 599 (a) legal peace ... Render offi- advice 583, (7th Cir.2010) (holding 588-89 cers, request upon the of or of such officers plaintiffs' Iqbal court, claims withstand where there pertaining preparation to the supervisor arrests, evidence is that the "knew about of review searches, and warrants for affidavits seizures, girls and de [her subordinate’s] abuse of the ... liberately helped permitting up,” § cover it (emphasis 20-1-106.1 add- Colo.Rev.Stat. ed). reasonably supervisor] jury to infer "that [the
1003 Cir.2009). (10th alleged Mr. Mink that the affi- 634-35 have known would prosecutor and seize cause to that the warrant used to search probable to establish davit failed probable described in the lacked both cause property and seize the items his search added). These (emphasis particularity. Id. warrant.” attachment of coupled with the allegations, 1. Probable Cause complaint, and affidavit to the warrant factual inference the reasonable support whether question The first is warrant as Knox that Ms. reviewed probable there was cause believe affidavit, approval that her well as Pig publication Howling Mr. Mink’s of The that she a series of events set motion violated the criminal libel statute. Colorado reasonably have known knew or should “The substance of all the definitions deprive others to Mr. Mink would cause probable ground cause is a reasonable rights. his constitutional States, guilt.” Brinegar v. belief United 160, 175, 69 93 L.Ed. 338 U.S. S.Ct.
B.
(1949)(internal
omit
quotation
1879
marks
ted).
True,
Allegations, If
Mr. Mink’s
“Probable cause exists when there is
probability
Establish a Constitutional
a fair
that contraband or evi
particu
Violation
dence of a crime will be found in a
Grubbs,
place.”
lar
v.
547
United States
alleged that
Mr. Mink
U.S.
164 L.Ed.2d
based
property
and seizure of his
search
(2006).
alleged
Mr. Mink
violated his Fourth
on an invalid warrant
probable
warrant
lacked
cause because no
rights.
Three
conditions
Amendment
prosecutor
reasonable
could have believed
and seizures
must be met for searches
Howling
that publishing
Pig
The
constitut
constitutional.
pursuant to a warrant
be
ed a crime.
First,
must be issued
neu
warrants
Second,
tral,
magistrates.
disinterested
if “facts and
Probable cause exists
must demon
seeking
those
the warrant
knowl
circumstances within the officers’
magistrate
to the
their
strate
edge
they
reasonably
and of which
had
sought
that the evidence
cause to believe
trustworthy information are sufficient
apprehension
in a
particular
will aid
a man
themselves to warrant
of reasonable
offense. Fi
particular
conviction for a
caution in the belief that an offense has
particularly de
nally, warrants must
being
Bowling,
committed.”
been or
seized,
things
to be
as well as
scribe
(quoting Brinegar,
(1971); 567 F.3d cause determination Cassady Goering, v. 1004
standard,”
speech protected by
protection
such as
tween the
of one’s individual
Wayte
First Amendment.
v. United
reputation and the
speech
freedom of
States,
598, 608,
1524,
470
22-23,
U.S.
105 S.Ct.
another
at
person, see id.
110 S.Ct.
(1985) (“the
1005
Welch,
(1967).
meaning of the statement
in context.
Id.
v. Robert
In Gertz
1094
323,
2997,
16-17,
Inc.,
41
(“Rejecting
94 S.Ct.
at
To determine
recognize
would
reasonable
to state actual facts about
purports
ment
individual,
parody.
As the Court held
the Court scrutinizes the
statements
an
(1979) (citing
subject
Garrison
Although
Supreme
yet
Court has not
applying the test in
pri
the context of a
squarely
fantasy, paro
addressed whether
concern,
figure
private
vate
on a matter of
dy,
hyperbole,
rhetorical
imaginative
or
ex
is an
explication
inevitable
of the focal
pression is actionable in a case where a
Bresler,
point
analysis
in
Court’s
plaintiff
public figure
is neither a
nor the
U.S. at
and Letter Carri
speech
concern,
public
on matter of
this
ers,
284, 286,
The First
shielding
fig-
Amendment’s
which he participated.
see also Fal
well,
(with
language
urative
reality
reflects the
485 U.S.
1007
involved.”); Bresler,
perceived
have
that the word was no more
figure
398
public
the
(same,
6, 14,
declining
”);
90
1537
hyperbole....
U.S.
S.Ct.
than rhetorical
Towne v.
“even the most
liability
attach
where
Eisner,
158,
245
38
U.S.
S.Ct.
62
perceived that
(“A
reader must have
(1918)
careless
crystal,
word is not a
L.Ed. 372
hy-
than rhetorical
word was no more
the
unchanged, it
transparent and
is the skin
Carriers, 418 U.S. at
perbole.”); Letter
vary
living thought
may
greatly
of a
in
(same,
285,
declining to at-
(stating
the district
character
the rock band KISS.
Pring
jury
subjects
test into the
Puke
incorporated
Junius
covered
and used
claim,”
Peake,
language
instructions on Falwell’s
re-
that Mr.
professor
libel
*13
sulting
jury’s finding
finance,
in the
that
Hus-
surely
“the
would
have. For exam-
‘reasonably
parody
ple,
tler ad
could not
be
the editorial said:
describing
understood as
actual facts about
a regular
This will be
bitch sheet that
[respondent] or actual events in which [he]
speak
power,
will
truth to
obscenities to
”)
Falwell,
participated.’
(citing
at
485 U.S.
clergy, and advice to all the stoners
Milkovich,
876;
108 S.Ct.
497 U.S.
sitting
watching Scooby
around
Doo.
2695).
20,
apply
these
We
a
pissed
This will be
forum for the
off
to the
tests
references to Professor Peake
and disenfranchised in Northern Colora-
Howling Pig.
The
do, basically everybody.
Parody
b. Junius Puke Is a
I made it to
I am through
where
hard
Peake
of Professor
work, luck,
connections,
all without
dispositive question
The
is wheth
college degree.
a
er a
person
reasonable
would conclude
cushy
with a
do-nothing
Dissatisfaction
that the statements in The Howling Pig
ornamental position led me to form this
were actual statements of fact about Mr.
paper.
subversive little
Peake,
him,
or attributable to
rather than
I
normally
don’t
care much about the
spoof.
satirical
For the reasons stated
question
daycare
my
since
kids are
below, we conclude that the answer is no.
grown
people’s
and other
give
children
noted,
As we have
Howling Pig
The
me the willies[.]
humorously
photo-
altered Mr. Peake’s
graph to create the character of Junius
I
ApltApp., vol.
at 147-48. Significantly,
Puke, its “editor.”
photo
Another
was al- The Howling Pig editorials even contained
depict
tered to
Mr.
up
express
made
an
regarding
disclaimer
the editor:
Peake/Puke
lion.”) (citing Pring); Myers
Mag-
App.2007)
v.
(“[P]arody
Boston
and defamation are two
Co., Inc.,
336,
380 Mass.
403 N.E.2d
azine
376,
separate
speech:
classes of
'defamation'
is
(1980) (reasonable
379
reader would
speech that is a false statement of fact and
fact);
not understand satire to state actual
'parody'
speech
reasonably
is
that one cannot
News,
Mich.App.
Garvelink v. Detroit
206
exaggerated
believe to be fact because of its
604,
883,
(1994) (As
522 N.W.2d
886
nature.”);
Square,
Victoria
LLC v. Glaston-
law,
matter of
satirical article could not
Citizen,
452,
bury
Conn.Supp.
49
891 A.2d
“reasonably
interpreted
stating
be
as
actual
142,
(2006) (“[d]efamation is, by
145
its na-
is,
plaintiff
facts about the
and ...
there-
ture, mutually
parody
exclusive of
...
[a]
fore, protected speech.”); Hoppe v. Hearst
published
parody
false statement that is
aas
668,
203,
Corp., Wash.App.
53
770 P.2d
206
Bantz,
defamatory”);
cannot be
Kiesau v.
686
(1989) (adopting Pring
holding
test and
(Iowa 2004) (referring
N.W.2d
176-77
parody was non-actionable as a matter of
parody
plain-
as an "affirmative defense” to
law).
claim);
tiff's defamation
Stien v. Marriott
Isaacks,
156-158;
146 S.W.3d at
see also
Resorts, Inc.,
Ownership
944 P.2d
Clinton,
Browning v.
(Utah
("[a]
Ct.App.1997)
parody
spoof
(D.C.Cir.2002)
(" 'Hyperbole'
protected
is
no reasonable
would read as a factual
from defamation claims due to the 'constitu-
statement,
anything
joke[,]
or other than a
satire,
protection
parody,
tional
afforded to
defamation”) (quot-
cannot be
actionable as
”)
imaginative commentary'
(quot-
and other
Walko,
683);
ing
Co.,
561 A.2d at
ing
Am.Jur.2d
Moldea v. New York
Times
("Defamation
(D.C.Cir.1994));
§
Libel and Slander
313 n.
Hamilton
Prewett,
(Ind.Ct.
mutually
860 N.E.2d
parody.”).
1244-45
its nature
exclusive of
3)
to make
The website
The dark
Howling Pig
glasses
would like
states:
possible
being recognized
is no
confusion
are to avoid
since he
sure that there
good
ribbing
and the
fears the
natured
our editor Junius Puke
of his
between
Fi-
colleagues
Professor of
Wall Street where he man-
Distinguished
Monfort
nance,
“Jay”
aged
Mr.
to luck out and ride the tech
Mr. Junius
Peake.
bub-
ble of the nineties like a
whore
upstanding
Peake is an
member
$20
an
to the
make a fortune.
community as well as
asset
Monfort
of Business where he
School
4)
many
The website contains
opinions
teaches about microstructure. Peake is
and articles
University
about The
*14
many community groups,
active in
mar-
Colorado,
Greeley
Northern
Com-
family
nationally
man. He is
ried and
munity and Northern Colorado. As this
known for his work in the business
column,
an
is
“editorial”
those state-
world,
questions
consulted on
and has
Puke,
ments are attributed to Mr.
market structure.
Junius Puke is none
therefore Mr. Peak
Mr. Peak
[sic].
[sic]
things
of those
and loudmouth know-it-
opinions
feels that these
are not his but
boot,
luckily
frequently
all to
but
he’s
have been
him.
attributed to
a true asset
to this
right
so is
at
Id.
3-4.
publication.
The test
is not how Mr. Peake would
According
at 146.
to the search war-
Id.
Howling Pig’s
characterize The
editorial
rant affidavit itself:
column,
person
but how a reasonable
picture
Junius
has been
[of
Peake]
would understand those
in
statements
that
sunglasses,
altered to include
a smaller
context.
Pring,
See
criminal libel. See
(10th Cir.1995)
Bresler,
16-17,
(quoting
398
(quoting
S.Ct.
1537).
Texas,
The district
at
v.
379 U.S.
U.S.
Stanford
(1965)).
506, 13
much when he con-
attorney recognized as
L.Ed.2d 431
S.Ct.
not be
Howling Pig
that The
could
cluded
overly
A warrant
broad if it
I,
under the
See Mink
prosecuted
statute.
sufficiently particularized
contain
does not
F.3d at 1250.
language that creates a nexus between the
a reasonable
would not
Because
suspected crime and the items to be
in the editorial column
take the statements
1147;
Campos,
seized. See
221 F.3d
Profes-
as statements of facts
or about
Grimmett,
v.
439 F.3d
United States
Peake,
could
prosecutor
sor
no reasonable
(10th Cir.2006).
In
United States
publishing
believe it was
(10th
Otero,
Cir.2009),
we
a crime war-
such statements constituted
recognized that
ranting search and seizure of Mr. Mink’s
development
person-
modern
[t]he
property.
*15
computer
ability
al
and its
store and
Particularity Requirement
intermingle
huge array
per-
a
of one’s
papers
single place
sonal
in a
increases
alleged
Mr. Mink
that the warrant
also
ability
law enforcement’s
to conduct a
property
used to search and seize his
wide-ranging
person’s
search into a
pri-
particularity required by
lacked the
affairs,
accordingly
vate
makes
Fourth Amendment. The district court
particularity requirement
that much
stating that
agreed,-
‘scrupu-
“[u]nder
See,
important.
e.g.
more
United States
required by
Supreme
lous’ standard
(10th
Riccardi,
v.
Cir.
[for
Court
seizures of books and other
2005)
(warrant
authorizing
general
protected by
materials
the First Amend-
it
computer
permit-
search
invalid as
ment], I have no doubt the warrant in this
.
anything
ted officers to search
“from
II,
overly
case was
broad.” Mink
pornography
pri-
child
to tax returns to
F.Supp.2d at
Knox challenges
1228. Ms.
correspondence”);
vate
United States v.
the district court’s conclusion.
(10th
Carey, 172
F.3d
Cir.
requires
The Fourth Amendment
1999) (computer
pertain-
search for files
that a
warrant
partic
search
describe with
ing to distribution of controlled sub-
ularity
things
in
to be seized
order to
pornography).
stances uncovered child
a general exploratory rummaging
avoid
Id.
1132. We therefore held that “war-
person’s belongings.
a
States v.
United
computer
rants for
must
searches
affir-
(10th
Campos, 221 F.3d
Cir.
matively limit the search to evidence of
2000).
particularity requirement
The
was
...
specific
(quoting
crimes....”
Id.
Ric-
in
included
the Fourth Amendment as a
added)).
cardi,
(emphasis
A search warrant be any larity. seize Rule to search for and this
property: C.
(1)
embezzled; or
is stolen or
Which
(2)
designed
is
or intended
Which
Clearly
The Law
Established at
Was
committing a criminal
use as a means of
Alleged
the Time the
Violations
or
offense;
Occurred
(3)
been used as a
is or has
Which
prong
qualified
The
immu
offense;
committing
means of
criminal
nity
requiring
clearly
test
that the law be
or
easily
satisfied here.
established
Ms.
Knox’s review the affidavit and warrant
(4)
possession
illegal;
of which is
in
Long
occurred December 2003.
before
(5)
would be material evidence
Which
that,
clearly
it was
established
this cir
subsequent
prosecution
criminal
cuit that speech,
parody
such as
and rhe
...
this state or
another state
hyperbole,
reasonably
torical
which cannot
41(b) (2003) (emphasis
Colo. R.Crim. P.
fact,
stating
enjoys
be taken as
actual
added).
full protection of the First Amendment
The warrant
authorized
and therefore cannot constitute the crime
computer
and seizure of all
search
purposes
of criminal libel for
of a probable
ma
non-computer equipment and written
cause
Pring,
determination.
695 F.2d at
*16
house,
any
in
terials Mr. Mink’s
without
Moreover,
it
clearly
was also
estab
any particular
mention of
crime to which
lished that warrants must contain
related,
they might
essentially
be
authoriz
specified
cause that a
crime has occurred
exploratory rummaging”
a
ing
“general
particularity requirement
and meet the
belongings
any
through Mr. Mink’s
for
in
the Fourth Amendment
order to be
“criminal
unspecified
offense.” See Cam
Voss,
constitutionally valid.
that no reasonable
would
read as
statement,
GORSUCH,
factual
Judge, concurring.
anything
Circuit
or as
other
joke[,]
than a
... cannot be actionable as
agree
holding
I
with the
in all
court’s
”
(quoting
defamation.’
v. Kean
Walko
join
respects
reasoning
its
with one
College,
N.J.Super.
561 A.2d
exception.
respect
minor
Even with
(1988))); Maj.
atOp.
1007-08 n.10
exception,
agree
I
with
result the
cases,
(citing state
some of which rest
reaches, arriving
court
at a common desti-
*17
law,
holdings
their
on common
not consti-
only by
nation but
a different route.
tutional, grounds). Or that such a rule
question
the
in
court confronts
Sec- may unjustly preclude private persons
tion ILB.l.a is
probable
whether
cause
from recovering
intentionally
for
inflicted
existed to think that Mr. Mink’s column emotional
regarding private
distress
mat-
“criminal
I agree
constituted
libel.”
with ters,
way
in a
the First Amendment
my colleagues that
the answer to that
See,
compel.
doesn’t
e.g., Catherine L.
question must be “no.” I reach this con- Amspacher & Randel
Springer,
Steven
a simple
straightforward
clusion for
Note, Humor,
and Intention-
Defamation
reason:
this court
already
has
said so.
al
Emotional Distress: The
Infliction of
International,
Pring
Ltd.,
v. Penthouse
Figure
Potential Predicament
Private
(10th Cir.1982),
contain computer system. to the tached 2) include, Any storage and all media to these thick I would avoid Respectfully, to, diskettes, floppy not limited but through path has the better Whoever ets. drives, disk drive hard disk removable sidestep them them, yet that we it’s better drives, magnetic com- cartridges and currently the case To decide altogether. disks, any puter tapes, compact us, say we are bound enough it’s before storing infor- capable other device the district court. Pring, and so was form, magnetic/optical mation in a that, venture. See I would not Beyond internal or external to the whether PDK Labs., DEA, Inc. v. system, attached or unat- computer (D.C.Cir.2004) (Roberts, J., in concurring computer system. tached (“[I]f judgment) in concurring part and 3) computer peripheral all de- Any and more, it is necessary to decide it is not vices attached or unattached to the more.”). Accord not to decide necessary but computer to include not limited to of the join I all but Section ILB.l.a ingly, monitors, computer printers, key- judgment. and concur its opinion court’s modems, boards, physical or other de- vices which serve to transmit or re- A EXHIBIT ceive information to and from the OF COLORADO STATE computer. 4) Any all documents which serve OF WELD
COUNTY explaining way purpose hardware, computer pro- which ss. used, grams, including and data are NO__DIVISION_ computer equipment manuals for or software, computer pro- printouts THE COURT IN DISTRICT files, data or other information grams, NINETEENTH JUDICIAL which has been or continues to be DISTRICT electronically magnetically stored system. computer SEARCH WARRANT 5) computer programs or Any and all , operation OF software used *18 THE OF THE STATE PEOPLE system, used to transmit or computer COLORADO: information, display used to or receive authorized law Any Any officer TO: files, types or other print graphics County in the a search warrant to execute computer programs all and and other is located. property wherein the computer associated with the software Warren, an having this date filed Ken system programs to include all stored in conform- Affidavit for a Search Warrant CD’s, disk, computer, floppy or on the Rules ity provisions with the Colorado storage other media. 41(b) Procedure, (c), and for of Criminal 6) documents, all or Any papers, and to-wit: following property, described material, gen- readable whether other 1) by handwriting, typewriter, systems all erated Any computer device, include, computer or other which con- but
computer equipment to names, addresses, telephone or to, tains processing central units not limited numbers, this, passwords Any or prepared evidence of documents or computer stored on this which re- computer systems. other “www.geoeities. late to the website 7) diaries, Any correspondence, and all com/thehowlingpig/”. memoirs, journals, personal reminis- creation, Any relating evidence to the (email), letters, cences electronic mail (log-in) access or maintenance of the notes, memorandum, or other commu- “www.geocities.com/ website printed nications written or form. thehowlingpig/”. 8) occupancy Indicia of consisting of ar- Any passwords, and all encryption personal property tending ticles of keys, security access codes or other or identity establish the of the or devices, privacy physical, whether of a persons in premises control of the form, written or oral encrypt, used to St, Ault, County, 310 West 5th Weld encode, or otherwise limit access to Colorado, including, but not limited to information, files, programs, accounts mail, receipts, keys, rent canceled util- or other data associated with or ity telephone bills and bills. stored on the computer. 9) Any passwords, and all encryption Any proof of ownership, maintenance keys, access security codes or other or computer or control of the related devices, privacy physical, whether of a data, equipment, programs, corre- form, written oral encrypt, or used to invoices, spondence, registration keys, encode, or limit otherwise access to or similar items. information, files, programs, accounts diaries, Any memoirs, all journals, or other data associated with or reminiscences, personal correspon- computer. stored on the dence, letters, notes, memorandum, 10) Any proof ownership stories, or mainte- electronic mail or other com-
nance of form, control of electronic or com- munications written or oral puter stored on equipment, programs, computer related evidence data, seized may or as those items relate documentation at that ad- allegations: including dress correspondence, in- voices, or similar items. (on (at believed to be situated person) (in vehicle) place) known as: 11) seeking permission Your affiant is 310 5th W St computer examine the and storage de- data, Ault, for any vices and all correspon- Colorado dence, mail, electronic voice messages, Brown, A light single story, single fami- letters, notes, ledgers, spreadsheets, ly dwelling.
documents, memorandum, image, vid- brick on portion With the lower eo, graphic sound or files for evidence outside. of, presence or the of: prominently posted address 310 is *19 next to porch light the on the Any by connection East side computer this of the front door. This house is the 3rd the website “www.geocities.com/ house east of Ash on south side of 5th thehowlingpig/” to include evidence of Street. generated by email the Web Site
“www.geocities.com/thehowlingpig'” upon grounds one or more as set forth in and forwarded to or 41(b), accessed this Rule Colorado Rules of Criminal computer. Procedure, namely: (1) embezzled; AFFIDAVIT FOR SEARCH WARRANT or is stolen RULE 16 UNDER (2) for use or designed is or intended Warren, affiant, being Your Ken first a or has been used as which is sworn, duly upon says: his oath that he committing a criminal of- means of (on person) to believe that the has reason of which is possession fense or the (at (in vehicle) place) or the known as: the illegal; 310 5th W St (3) in evidence a sub- would be material Ault, Colorado criminal prosecution; sequently Brown, story, single A light single fami- persons names of whose affidavits ly dwelling hereof are: support been taken have portion on the lower With brick the Warren, that there and I am satisfied Ken outside. prop- that the cause to believe is prominently posted The address 310 is person, on the described is located erty so porch light next to the on the East side described, or in the vehicle above premises of the front door. This house is the 3rd COMMAND- YOU ARE THEREFORE house east of Ash on south side of 5th person, place, the ED to search forthwith Street. described, proper- above or vehicle property, there is now located certain to- time, any day night. ty described wit: shall be executed within ten This Warrant Any computer systems 1. and all and (10) days of the date the Warrant is issued. include, computer equipment but promptly made and The return shall be to, processing not limited central units a written invento- accompanied by shall be and circuit attached or unat- boards ry property of all taken. You shall deliver system. computer tached to the property from whom the is to the Any storage 2. and all media to in- premises or from whose or vehicle taken clude, to, floppy but not limited disk- copy a of this property is taken War- ettes, drives, hard removable disk disk receipt prop- for the together rant with drives, cartridges magnetic drive and or, thereof, to leave the erty taken lieu disks, computer tapes, compact and copy receipt place at the from which any capable storing other device taken; to deliver property magnetic/optical information inventory issuing judge written form, whether internal or external to with the return of this property War- system, or un- computer attached rant. computer system. attached to the this_ day Dated of DEC 12 Any all computer peripheral 3. de- at__ Colorado, County, at Weld vices attached or unattached to the A.M./P.M. computer to include but not limited to monitors, computer printers, key- /s/ boards, modems, physical or other de- JUDGE which to transmit or re- vices serve ceive information to and from the EXHIBIT B computer. COURT, IN AND Any IN THE DISTRICT all which serve documents WELD, way BE- purpose explaining THE OF FOR COUNTY *20 hardware, computer pro- which the FORE JUDGE 03CR1 used, grams, and data including Any proof ownership are 10. or mainte- nance of control computer manuals for or of electronic or com- equipment software, puter equipment, related programs, printouts computer pro- data, or documentation at files, ad- grams, data or other information including correspondence, dress in- which has been or continues to be voices, or similar items. electronically magnetically stored or 11. Your affiant seeking permission computer system. to the computer storage examine and Any 5. all computer programs and or data, any devices for and all corre- operation software used of the mail, spondence, electronic voice system, computer used to transmit or letters, notes, messages, ledgers, information, display receive used to or spreadsheets, documents, memoran- files, print graphics or types other dum, video, image, or graphic sound all computer programs and other and of, files for evidence presence or the software computer associated with the of: system programs to include all stored Any by connection computer this disk, CD’s, computer, on the floppy or the website “www.geocities.com/ other storage media. thehowlingpig/” to include evidence of Any documents, papers, 6. and all or generated by email the Web Site material, other readable gen- whether “www.geocities.com/thehowlingpig/” by handwriting, erated typewriter, forwarded to or accessed this device, computer or other which con- computer. names, addresses, tains telephone or Any evidence of documents prepared numbers, passwords this, or or stored on this computer which re- computer systems. other late to the “www.geocities. website 7. Any diaries, and all correspondence, com/thehowlingpig/”. memoirs, journals, personal reminis- Any creation, evidence relating to the (email), letters, cences electronic mail (log-in) access or maintenance of the notes, memorandum, or other commu- “www.geocities.com/ website printed nications written or form. thehowlingpig/”. 8. Indicia of occupancy consisting of Any all passwords, encryption personal articles of property tending keys, security access codes or other or identity establish the devices, privacy physical, whether of a persons in control of the premises written encrypt, or oral used to en- St, Ault, at 310 West 5th Weld Coun- code, or otherwise limit access to in- ty, Colorado, including, but not limited formation, files, programs, accounts or mail, receipts, rent keys, canceled other data associated with or stored utility bills and telephone bills. computer. Any and all passwords, encryption Any proof ownership, maintenance keys, access codes or other security or or control of the computer related devices, privacy physical, whether of a data, equipment, programs, corre- form, written or oral encrypt, used to invoices, spondence, registration keys, encode, or limit otherwise access to or similar items.
information, files, programs, accounts diaries, Any memoirs, all journals, or other data associated with or reminiscences, personal correspon- computer. dence, letters, notes, stored on the memorandum, *21 University of North- colleagues at The other com- stories, mail or electronic He told Detective War- ern Colorado. form, or oral in written munications copies there were several of ren that evidence computer the stored being passed campus. around on this site may relate as those items seized went to the website Detective Warren allegations, the police an Internet connection at the via property: which articles Upon reading the department. (1) or embezzled: is stolen website, on the Detective Warren posted (2) for use or or intended designed is apparently found that the site was de- used as is or has been which that mimics that of signed logo with a committing a criminal of- means University of Northern Colorado. The is of which possession fense or the picture The also has a of Junius website illegal; page Peak on the main as well as other (3) evidence a sub- be material would Mr. Peak pages. picture The is from prosecution; sequent criminal University Northern the Colorado’s picture The has been altered Website. following facts: upon Based the a smaller nose and sunglasses, to include for the police affiant is a officer Your similar to that of a small moustache and Greeley Department Police City of photograph The in the Hitler’s. information following gained has on the website as Junius is identified speaking reading reports and from by a picture accompanied Puke. The is officers, reading from state- to fellow According Puke. to the biography of Mr. and and witnesses ments of victim site, is to draw attention to purpose its investigation. through personal in Northern Colorado rampant issues to the currently assigned Your affiant Elsewhere. and Weld Coun- Greeley Department, Police includes three body of the website Laboratory. Your affiant is Forensic ty time of this affidavit. articles at com- conducting forensic responsible for The articles consist of statements about submitted, analysis on evidence puter persons relating and topics various or online investigating Internet and The Colorado Area the Northern Your affiant has investigations. related Ac- University of Northern Colorado. training on the re- undergone extensive Peak, many Mr. there are cording to of evidence covery and documentation website and its accom- statements activity, computers, Internet relating to defamatory to articles that are panying digital media. recovery from and data told Detective his character. He War- examining digital Your affiant has been on the the statements made ren (3) years. in excess of Three media him are false. He feels website about 14th Junius Peak him brought articles have em- On November that the public him to Greeley Depart- exposed Police reported to barrassment hatred, ridicule. He feels contempt of what he that he was the victim ment honesty, integ- his they impeached have report- libel. He was criminal believed virtue, reputation within the rity, that he discover- to Detective Warren ed community. at the address ed an Internet Website exam- www.geocities.com/thehowlingpig. specific He to site a few asked When libel, Mr. Peak cited criminal being ples after sent of this this website discovered following examples: of his printed one copy of the site *22 1) The photograph by website uses his held Yahoo for the aforementioned him in Geocities website. These records
and identifies as the Editor included listing of the log-in connections and ac- Puke. Chief Junius tivity for by anyone the website with cre- 2) “gam- The website states that he log dentials to into the site. These records bled tech stocks” the 90’s. site, DO persons accessing NOT reflect 3) The website states: The dark but logging (persons only reading glasses are to being recog- avoid site). This connection information in- nized since he fears the na- good cluded number of Internet Protocol Ad- ribbing colleagues tured of his on that belong dresses to ICG Telecom Group managed Wall Street where he Inc. Your affiant contacted ICG Telecom luck out and ride the tech bubble of Inc., Group spoke Subpoena to a Com- the nineties like a whore and $20 pliance Investigator named Carl Nixon. make a fortune. your He advised affiant that company his The website many opin- contains X provider is a backbone for other Internet ions and articles about The Univer- (ISP). Service Providers His company Colorado, sity of Northern maintains dial access and bandwidth Greeley Community and Northern (service) for other ISPs to resell to their Colorado. As this is an “editorial” your customers. Carl Nixon told affiant column, those are statements attrib- they archive connection information Puke, uted to Mr. and therefore Mr. for each transaction information Peak. Mr. Peak (Automatic feels that these may include ANI Number opinions Identification) are not his but have been or Caller ID information. attributed to him. your Carl Nixon told affiant that his com- pany produce would this information as A full printout of the site as it existed on (ISP) well as account holder information November 19th is attached to this affi- connection, for each upon receipt of a Col- davit at “Attachment A”. It consists of 6 orado Court Order. pages including the cover. applied Your affiant for and received a Your affiant researched the website and by Court Order for records held ICG Tele- found that by it was hosted Geocities.com. 11th, com Group Inc. On December Geocities.com is owned operated by your affiant response received a fax from Yahoo Inc. Your affiant contacted Yahoo Group ICG Telecom Inc. Subpoena Com- and learned that they do archive informa- pliance Investigator Steffani Rink. The re- relating tion to the Internet connections port provided Rink showed that all connec- established during the creation and main- tions via ICG Telecom Group’s equipment tenance of They Geocities sites. also came from the telephone residence num- maintain records to include email for any 970-834-2715, ber captured report- associated Yahoo accounts. There is a ed system. their All connections also yahoo account associated with this site and “crysmink” showed the username and the its “thehowlingpig@yahoo.com”. address is connections were made behalf of the your Yahoo they told affiant will release Internet Service Range Provider Front In- this information upon receipt of a court ternet Inc. Your affiant researched this order. telephone through public number tele- Your applied affiant for and received an phone lookup. record reverse The tele- order for production phone records belongs number to the residence Petitioner, ILIEV, Ilia Todorov Ault, St, City in the Weld 310 W 5th *23 affiant also Your County, Colorado. Rob- number is listed to that this
learned HOLDER, Jr., H. Eric United States records at Your affiant checked ert Mink. Attorney General, Respondent. Northern Colorado. University of No. 09-9517. was affiant learned that student Your University of Northern at The registered Appeals, United States Court Mink. the name Thomas under Colorado Tenth Circuit. 5th St in address also lists to 310 W His July 2010.
Ault, from Your affiant also learned Co.
UNC, Crystal that his mother is listed matches the user- generally which
Mink Rink. provided by
name training experience your
It is affiant’s comput- on information contained
that this readily at the cannot be accessed
er media computer is seized from.
location removed, and need to be
computer will laboratory setting. in a forensic
processed to be imaging the media may
This involve conducting analysis an and then
examined computer image. Processing may incomplete in an ex-
on scene result result in destruction
amination and could on the media. Removal present
of data will setting in a controlled
and examination will of data and
prevent the destruction complete analysis.
allow for December, day this 12th 2003.
Dated
/s/
AFFIANT Affidavit, was consisting pages,
This of 5 to before me this
subscribed and sworn December, day of
12th
/s/
JUDGE