Grant of Qualified Immunity to Prosecutor Reversed

Mink v. Knox, 2010 WL 2802729 (7/19/10) (Colo.) (Published) - The 10th reversed a grant of qualified immunity to a state prosecutor. The § 1983 case should go to a jury because the plaintiff presented enough to establish the prosecutor could not have reasonably concluded probable cause existed to support a search warrant application or that the warrant was sufficiently particular. First, the warrant affidavit did not establish criminal libel. The First Amendment protected the plaintiff's satirical on-line editorial supposedly written by a professor who had similar features to a real professor but who would not espouse the crazy views espoused in the editorial. Even though the professor was a private person, not a public figure, the editorial statements were protected by the First Amendment because a reasonable person would not conclude that the statements were actual statements of fact about the real professor or attributable to him, rather than a satirical spoof. Second, the warrant was obviously not particular enough because it never limited the seizure to items relating to a particular crime. The warrant never mentioned any particular crime. The prosecutor could be liable because she approved the warrant documents and therefore was a cause of the constitutional violations.