Mink v. Knox

FILED
United States Court of Appeals
Tenth Circuit

July 19, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THOMAS MINK,

Plaintiff-Appellant,

v.
No. 08-1250
SUSAN KNOX, a Deputy District
Attorney working for the 19th Judicial
District Attorney’s Office, in her
individual capacity,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:04-CV-00023-LTB)

Marcy G. Glenn of Holland & Hart LLP, Denver, Colorado (A. Bruce Jones of
Holland & Hart LLP, Denver, Colorado; and Mark Silverstein of American Civil
Liberties Union Foundation of Colorado, Denver, Colorado, with her on the
briefs), for Plaintiff-Appellant.

Andrew D. Ringel (David R. Brougham with him on the brief) of Hall & Evans,
L.L.C., Denver, Colorado, for Defendant-Appellee.

Before O’BRIEN, SEYMOUR and GORSUCH, Circuit Judges.

SEYMOUR, Circuit Judge.
 Thomas Mink appeals the district court’s dismissal of his 42 U.S.C. § 1983

complaint against Susan Knox, a deputy district attorney, on qualified immunity

grounds. We reverse.

I.

Mr. Mink, a student at the University of Northern Colorado (“UNC”),

created a fictional character, “Junius Puke,” for the editorial column of his

internet-based journal, The Howling Pig. 1 Mink v. Suthers, 482 F.3d 1244, 1249

(10th Cir. 2007), cert. denied, 128 S. Ct. 1122 (2008) (“Mink I”). The editorial

column displayed altered photographs of Junius Peake, a UNC professor, wearing

dark sunglasses and a Hitler-like mustache. Id. at 1249. Junius Puke’s editorial

column addressed subjects on which Mr. Peake would be unlikely to write, in

language he would be unlikely to use, asserting views that were diametrically

opposed to Mr. Peake’s. See id.

Mr. Peake, who was not amused, contacted the Greeley police, who started

investigating a potential violation of Colorado’s criminal libel statute, C OLO . R EV .

S TAT . § 18-13-105. See Mink v. Knox, 566 F. Supp. 2d 1217, 1220 (D. Colo.

2008) (“Mink II”). In conformance with Colorado Revised Statute § 20-1-106.1,

1
The facts are taken primarily from our previous decision in Mink v.
Suthers, 482 F.3d 1244, 1249-1251 (10th Cir. 2007), cert. denied, 128 S. Ct. 1122
(2008) (“Mink I”), and the district court’s decision on remand in Mink v. Knox,
566 F. Supp. 2d 1217, 1220 (D. Colo. 2008) (“Mink II”). We also quote from the
amended complaint.
-2-
the detective in charge prepared a search warrant affidavit to submit to the office

of the district attorney for legal review. The deputy district attorney, Susan

Knox, reviewed and approved the search warrant affidavit, which was identical to

the warrant with respect to the eleven paragraphs listing the items to be seized.

The search warrant and affidavit were both attached to Mr. Mink’s amended

complaint, and are attached to this opinion as Exhibits A and B. 2 The affidavit

and warrant were presented to and approved by a magistrate judge. The Greeley

police then searched the home where Mr. Mink lived with his mother and

confiscated their personal computer, as well as written materials referencing The

Howling Pig. See Mink I, 482 F.3d at 1249.

Mr. Mink and his mother subsequently filed suit in federal district court

against the City of Greeley, Colorado, the district attorney, Detective Ken

Warren, and a “John Doe” assistant district attorney, seeking damages for the

search and seizure, among other things. The district court granted Mr. Mink’s

motion for a temporary restraining order and ordered the City of Greeley to return

“to the Plaintiffs the computer, and all contents thereof, seized following the

search of Plaintiffs’ home.” Id. at 1250 (quoting Dist. Ct. Order, Jan. 9, 2004, at

1). Thereafter, the district attorney issued a written “No File” decision,

concluding that the statements contained in The Howling Pig could not be

prosecuted under the Colorado criminal libel statute.

2
Ms. Knox admitted in an affidavit submitted on March 8, 2004, that she
reviewed the warrant as well as the search warrant affidavit.
-3-
 Mr. Mink then amended his complaint, removing his mother as a plaintiff

and adding Ms. Knox as a defendant. 3 The district court granted Ms. Knox’s

motion to dismiss the suit in its entirety, holding in part that Mr. Mink’s

constitutional claims against Ms. Knox were barred by absolute immunity. We

reversed, determining that

a prosecutor is entitled to absolute immunity for those actions that
cast him in the role of an advocate initiating and presenting the
government’s case. Absolute immunity, however, does not extend to
those actions that are investigative or administrative in nature,
including the provision of legal advice outside the setting of a
prosecution.

Id. at 1261-62. We concluded that Ms. Knox “was not wearing the hat of an

advocate,” id. at 1262, when she reviewed the affidavit in support of the warrant,

and “thus, is not entitled to absolute prosecutorial immunity.” Id. at 1263.

Nevertheless, we noted that Ms. Knox “may be entitled to qualified immunity if

she reasonably concluded probable cause existed to support the warrant

application, or that the application of the Supreme Court’s First Amendment cases

to the criminal libel statute was not clearly established under the circumstances

here.” Id.

On remand the district court granted Ms. Knox’s motion to dismiss the

amended complaint, holding that (1) “a reasonable official in Knox’s position

could believe that the statements in The Howling Pig were not protected

3
Mr. Mink also removed the City of Greeley and Officer Warren, and
added Ken Salazar in his official capacity as Attorney General of Colorado.
-4-
statements under the First Amendment - and, accordingly, that Plaintiff’s actions

in publishing such statements could subject him to criminal prosecution under the

Colorado libel statute,” and (2) although the search warrant violated the Fourth

Amendment’s particularity requirement, it was not clearly established that Ms.

Knox’s authorization of the search warrant affidavit lacking particularity violated

the Fourth Amendment. Mink II, 566 F. Supp. 2d 1217, 1223-24, 1228-29. The

district court concluded that Ms. Knox was entitled to qualified immunity.

On appeal, Mr. Mink asks us to decide whether the district court erred

when it dismissed,

on the basis of qualified immunity, Mr. Mink’s claim alleging an
unlawful search and seizure in violation of the Fourth Amendment,
where the search lacked probable cause because clearly-established
First Amendment law protected Mr. Mink’s speech, and because the
overbroad affidavit and warrant violated clearly-established Fourth
Amendment law[.]

Aplt. Br. at 2.

II.

“[F]ederal courts engage in de novo review when mulling defamation issues

that are tinged with constitutional implications.” Levinsky’s, Inc. v. Wal-Mart

Stores, Inc., 127 F.3d 122, 127 (1st Cir. 1997). “This requirement of independent

appellate review is not a procedural directive, but, rather, ‘a rule of federal

constitutional law’ that ‘reflects a deeply held conviction that judges . . . must

exercise such review in order to preserve the precious liberties established and

-5-
ordained by the Constitution.’” Id. (quoting Bose Corp. v. Consumers Union of

United States, Inc., 466 U.S. 485, 510-11 (1984)).

To determine whether a motion to dismiss was properly granted, we apply a

plausibility standard to ascertain whether the complaint includes enough facts

that, if assumed to be true, state a claim to relief that is plausible on its face.

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (“A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”).

See also Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223-1224

(10th Cir. 2009). We accept all factual allegations in the complaint as true and

draw all reasonable inferences in favor of the nonmoving party, here the plaintiff.

See Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008); Anderson v.

Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1284 (10th Cir. 2008).

We also review de novo the district court’s decision regarding qualified

immunity. Archuleta, 523 F.3d at 1282. “[G]overnment officials performing

discretionary functions generally are granted a qualified immunity and are

shielded from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Id. at 1282-83 (quoting Wilson v. Layne, 526 U.S. 603, 609

(1999)). “Once the qualified immunity defense is asserted, . . . the plaintiff must

demonstrate that the defendant’s actions violated a constitutional or statutory

-6-
right” and that “the constitutional or statutory rights the defendant allegedly

violated were clearly established at the time of the conduct at issue.” 4 Id. In

determining whether a constitutional right was clearly established, we look at the

specific context of the case. Bowling v. Rector, 584 F.3d 956, 964 (10th Cir.

2009).

A plaintiff can demonstrate that a constitutional right is clearly
established by reference to cases from the Supreme Court, the Tenth
Circuit, or the weight of authority from other circuits. There need
not be precise factual correspondence between earlier cases and the
case at hand, because general statements of the law are not inherently
incapable of giving fair and clear warning. The right must only be
sufficiently clear that a reasonable official would understand that
what he is doing violates that right.

Archuleta, 523 F.3d at 1283 (internal citations, quotation marks, and alterations

omitted).

In dismissing Mr. Mink’s amended complaint, the district court considered

whether: (1) there was a causal connection between Ms. Knox’s actions and the

alleged violation of Mr. Mink’s constitutional rights; (2) Mr. Mink’s

constitutional rights were violated; and (3) the violated constitutional rights were

clearly established at the time the violation occurred. We address each of these

questions in turn.

4
We may consider the two parts of this test in the sequence we deem best
in light of the circumstances in the particular case. See Pearson v. Callahan, 129
S. Ct. 808, 818 (2009).
-7-
 A.
The Causal Connection

Mr. Mink alleged that Ms. Knox caused the issuance of a search warrant

that lacked probable cause and particularity, thereby causing a violation of his

Fourth Amendment rights. The district court held that in order to recover on this

claim, Mr. Mink was required to allege Ms. Knox’s direct participation in the

constitutional violation, and that he had failed to do so:

Plaintiff does not, however, allege that Knox issued the warrant, nor
that she reviewed the warrant, nor that she participated in the search
and seizure executed pursuant to the warrant. The question here,
therefore, is whether - taken in the light most favorable to Plaintiff -
the complaint alleges sufficient facts to show Knox - solely by
reviewing and approving the affidavit submitted in support of the
search warrant - violated Plaintiff's constitutional rights.

Mink II, 566 F. Supp. at 1229. In so construing the amended complaint, the

district court erred.

Title 42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.

Id. (emphasis added). “The requisite causal connection is satisfied if the

defendant set in motion a series of events that the defendant knew or reasonably

should have known would cause others to deprive the plaintiff of her

constitutional rights.” Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990).
-8-
Thus, “[f]or liability under Section 1983, direct participation is not necessary.”

Id. (quotation omitted); see also Buck v. City of Albuquerque, 549 F.3d 1269,

1279-80 (10th Cir. 2008). “Any official who ‘causes’ a citizen to be deprived of

her constitutional rights can also be held liable.” Snell, 920 F.2d at 700

(quotation omitted). The plaintiff may demonstrate causation by showing an

affirmative link between the constitutional deprivation and the officer’s exercise

of control or direction. See Poolaw v. Marcantel, 565 F.3d 721, 732 (10th Cir.

2009) (presence during search held unnecessary for § 1983 liability for

unconstitutional search where one defendant officer authorized search and second

defendant officer drafted affidavit for search warrant); 5 Wulf v. City of Wichita,

5
In Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the Supreme Court held in a
Bivens action alleging unconstitutional discrimination that “each Government
official . . . is only liable for his or her own misconduct.” Id. at 1949. The
Court’s dissenters viewed this pronouncement as “eliminating . . . supervisory
liability entirely.” Id. at 1957 (Souter, J., dissenting). We noted both views in
Lewis v. Tripp, as well as the fact that they have “generated significant debate
about the continuing vitality and scope of supervisory liability, not only in Bivens
actions, but also in § 1983 suits.” 604 F.3d 1221, 1227 n.3 (10th Cir. 2010)
(citing al-Kidd v. Ashcroft, 580 F.3d 949, 976 n.25 (9th Cir. 2009), and Sheldon
Namod, Constitutional Torts, Over-Deterrence and Supervisory Liability after
Iqbal, 14 L EWIS & C LARK L. R EV . 279, 294-98 (2010)). See also T.E. v. Grindle,
599 F.3d 583, 588-89 (7th Cir. 2010) (holding plaintiffs’ claims withstand Iqbal
where there is evidence that the supervisor “knew about [her subordinate’s] abuse
of the girls and deliberately helped cover it up,” permitting a jury to reasonably
infer “that [the supervisor] also had a purpose of discriminating against the girls
based on their gender”) (citation omitted).
We found it unnecessary in Lewis to take a position on the debate, and we
need not do so here. Mr. Mink has pled sufficient facts to state a facially
plausible claim that Ms. Knox’s input into and advice concerning the affidavit
and warrant directly caused the purportedly unconstitutional search of his house.
Our precedent and Iqbal lead to the same result because we rely on Poolaw and
(continued...)
-9-
883 F.2d 842, 864 (10th Cir. 1989) (concluding defendant was sufficiently

involved in entire decision-making process and thus personally liable where

Personnel Advisory Board listened to defendant’s recommendation and, to some

extent, relied on it).

On appeal, Ms. Knox urges us to affirm the district court’s sua sponte

conclusion that the complaint should be dismissed because it did not specifically

allege that Ms. Knox reviewed the warrant as well as the affidavit. We decline to

do so. Notably, as Mr. Mink points out, both the affidavit and search warrant

were attached to the amended complaint, and Ms. Knox’s own affidavit

subsequently indicated that the warrant was one of the documents she reviewed,

in accordance with C OLO . R EV . S TAT . § 20-1-106.1. 6 Being well aware that she

had reviewed the warrant no doubt explains why Ms. Knox never moved to

dismiss the complaint on this basis.

More importantly, taking Mr. Mink’s allegations as true, viewing them in

the light most favorable to him, and making all reasonable inferences in his favor,

5
(...continued)
Snell’s legal standard of liability for defendant's personal participation, not for
supervisory liability.
6
The statute provides:
(1) The district attorneys of the several judicial districts in the state
of Colorado shall:
(a) Render . . . legal advice to peace officers, upon the request of
such officers or of the court, pertaining to the preparation and review
of affidavits and warrants for arrests, searches, seizures, . . .
C OLO . R EV . S TAT . § 20-1-106.1 (emphasis added).
-10-
as we are required to do, persuades us that the amended complaint plausibly

asserted the requisite casual connection between Ms. Knox’s conduct and the

search and seizure that occurred at Mr. Mink’s home. The amended complaint

not only alleged that Ms. Knox “reviewed and approved the affidavit submitted to

the state district court in support of the warrant to search the Mink’s home,” Aplt.

App., vol. I at 117, 119, it also alleged that she “authorized and caused an

unlawful search[,]” id. at 118, that “[a] reasonable prosecutor would have known

that the warrant failed to meet the particularity requirement of the Fourth

Amendment[,]” id. at 119 (emphasis added), and that “[a] reasonable prosecutor

would have known that the affidavit failed to establish probable cause to search

and seize the items described in the warrant.” Id. (emphasis added). These

allegations, coupled with the attachment of the warrant and affidavit to the

complaint, support the reasonable factual inference that Ms. Knox reviewed the

warrant as well as the affidavit, and that her approval set in motion a series of

events that she knew or reasonably should have known would cause others to

deprive Mr. Mink of his constitutional rights.

B.
Mr. Mink’s Allegations, If True,
Establish a Constitutional Violation

Mr. Mink alleged that the search and seizure of his property based on an

invalid warrant violated his Fourth Amendment rights. Three conditions must be

-11-
met for searches and seizures pursuant to a warrant to be constitutional.

First, warrants must be issued by neutral, disinterested magistrates.
Second, those seeking the warrant must demonstrate to the magistrate
their probable cause to believe that the evidence sought will aid in a
particular apprehension or conviction for a particular offense. Finally,
warrants must particularly describe the things to be seized, as well as
the place to be searched.

Dalia v. United States, 441 U.S. 238, 255 (1979) (internal citations and quotation

marks omitted). These requirements ensure “that no intrusion in the way of

search or seizure occurs without a careful prior determination of necessity, and

preventing the specific evil of the general warrant abhorred by the colonists.”

Bowling, 584 F.3d at 967; see also Coolidge v. New Hampshire, 403 U.S. 443,

467 (1971); Cassady v. Goering, 567 F.3d 628, 634-35 (10th Cir. 2009). Mr.

Mink alleged that the warrant used to search and seize his property lacked both

probable cause and particularity.

1. Probable Cause

The first question is whether there was probable cause to believe that Mr.

Mink's publication of The Howling Pig violated the Colorado criminal libel

statute. “The substance of all the definitions of probable cause is a reasonable

ground for belief of guilt.” Brinegar v. United States, 338 U.S. 160, 175 (1949)

(internal quotation marks omitted). “Probable cause exists when there is a fair

probability that contraband or evidence of a crime will be found in a particular

place.” United States v. Grubbs, 547 U.S. 90, 95 (2006). Mr. Mink alleged that

the warrant lacked probable cause because no reasonable prosecutor could have
-12-
believed that publishing The Howling Pig constituted a crime.

Probable cause exists if “facts and circumstances within the officers’

knowledge and of which they had reasonably trustworthy information are

sufficient in themselves to warrant a man of reasonable caution in the belief that

an offense has been or is being committed.” Bowling, 584 F.3d at 969 (quoting

Brinegar, 338 U.S. at 175-76 (internal quotation marks omitted)); see also York v.

City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008). The question therefore

becomes whether a government official of reasonable caution, having reviewed

the affidavit and the editorial column of The Howling Pig, would believe that this

publication was libelous.

It goes without saying that a government official may not base her probable

cause determination on an “unjustifiable standard,” such as speech protected by

the First Amendment. Wayte v. United States, 470 U.S. 598, 608 (1985) (“the

decision to prosecute may not be deliberately based upon an unjustifiable standard

such as race, religion, or other arbitrary classification, including the exercise of

protected statutory and constitutional rights.”) (internal quotations marks and

citations omitted)); see also Swiecicki v. Delgado, 463 F.3d 489, 498 (6th Cir.

2006) (“an officer may not base his probable-cause determination on speech

protected by the First Amendment.”); Sandul v. Larion, 119 F.3d 1250, 1255-56

(6th Cir. 1997) (where plaintiff’s speech did not constitute fighting words and

was thereby protected speech, it could not serve as basis for violation of city

-13-
ordinances at issue). We thus turn to whether Mr. Mink’s speech was protected

by the First Amendment.

a. First Amendment and Defamation

For centuries, the common law has afforded a cause of action to a person

whose reputation has been damaged by the publication of false and defamatory

statements. Milkovich v. Lorain Journal Co., 497 U.S. 1, 11-12 (1990) (citing L.

Eldredge, L AW OF D EFAMATION 5 (1978)). A passage from Shakespeare’s Othello

is often quoted in explanation.

Who steals my purse steals trash …
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.

Id. (quoting Act III, scene 3).

Nevertheless, the Supreme Court has recognized a number of constitutional

limits on various categories of speech which may be the subject of state

defamation actions, see id. at 14-18, in order to maintain a balance between the

protection of one’s individual reputation and the freedom of speech of another

person, see id. at 22-23. After all, “[w]hatever is added to the field of libel is

taken from the field of free debate,” New York Times Co. v. Sullivan, 376 U.S.

254, 272 (1964), as well as from “individual liberty” and “the common quest for

truth and the vitality of society as a whole.” Hustler Magazine, Inc. v. Falwell,

485 U.S. 46, 51 (1988). Moreover,

[t]he First Amendment is not limited to ideas, statements, or
-14-
 positions which are accepted; which are not outrageous; which are
decent and popular; which are constructive or have some redeeming
element; or which do not deviate from community standards and
norms; or which are within prevailing religious or moral standards. .
. . The First Amendment standards are not adjusted to a particular
type of publication or particular subject matter.

Pring v. Penthouse Int’l, Ltd., 695 F.2d 438, 443 (10th Cir. 1982).

In balancing individual reputation and freedom of speech, the Court has

identified various culpability requirements. See generally Milkovich, 497 U.S. at

14-20. New York Times recognized the need for “a federal rule that prohibits a

public official from recovering damages for a defamatory falsehood relating to his

official conduct unless he proves that the statement was made with ‘actual

malice’- that is, with knowledge that it was false or with reckless disregard of

whether it was false or not.” Id. at 14 (quoting New York Times, 376 U.S. at

279-280). The Court extended the New York Times rule to “public figures” in

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). In Gertz v. Robert Welch,

Inc., 418 U.S. 323 (1974), the Court held that although “the New York Times

malice standard was inappropriate for a private person attempting to prove he was

defamed on matters of public interest,” nevertheless states may not “impose

liability without requiring some showing of fault,” or “permit recovery of

presumed or punitive damages on less than a showing of New York Times malice.”

Milkovich, 497 U.S. at 15-16 (citing Gertz, 418 U.S. at 344-45, 347-48, 350).

As to the “constitutional limits on the type of speech which may be the

subject of state defamation actions,” id. at 16, “the Bresler-Letter Carriers-
-15-
Falwell line of cases provides protection for statements,” such as parody, fantasy,

rhetorical hyperbole, and imaginative expressions, “that cannot ‘reasonably [be]

interpreted as stating actual facts’ about an individual,” id. at 20 (internal citation

omitted). Because no reasonable person would take these types of speech as true,

they simply cannot impair one’s good name. 7 See id. at 16-17 (discussing

Bresler, 398 U.S. at 13; Letter Carriers, 418 U.S. at 284, 286; Falwell, 485 U.S.

at 50); see also Falwell, 485 U.S. at 57. “This provides assurance that public

debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical

hyperbole’ which has traditionally added much to the discourse of our Nation.”

Milkovich, 497 U.S. at 20.

To determine whether a statement purports to state actual facts about an

individual, the Court scrutinizes the meaning of the statement in context. Id. at

16-17 (“Rejecting a contention that liability could be premised on the notion that

the word ‘blackmail’ implied the developer had committed the actual crime of

blackmail, we held that ‘the imposition of liability on such a basis was

constitutionally impermissible – that as a matter of constitutional law, the word

‘blackmail’ in these circumstances was not slander when spoken, and not libel

when reported in the Greenbelt News Review.’” (quoting Greenbelt Cooperative

Publishing Assn., Inc. v. Bresler, 398 U.S. 6, 13 (1970)); id. at 17 (“Use of the

7
Civil and criminal libel cases “are subject to the same constitutional
limitations.” Herbert v. Lando, 441 U.S. 153, 157 n.1 (1979) (citing Garrison v.
Louisiana, 379 U.S. 64 (1964)).
-16-
word ‘traitor’ in literary definition of a union ‘scab’ not basis for a defamation

action under federal labor law since used ‘in a loose, figurative sense’ and was

‘merely rhetorical hyperbole, a lusty and imaginative expression of the contempt

felt by union members.’” (quoting Letter Carriers v. Austin, 418 U.S. 264, 284,

286 (1974)); Falwell, 485 U.S. at 57 (a state emotional distress “claim cannot,

consistently with the First Amendment, form a basis for the award of damages

when the conduct in question is the publication of a caricature such as the ad

parody involved here.” (emphasis added)). “Context is crucial and can turn what,

out of context, appears to be a statement of fact into ‘rhetorical hyperbole,’ which

is not actionable.” Ollman v. Evans, 750 F.2d 970, 1000 (D.C. Cir. 1984) (en

banc) (Bork, J., concurring); see also id. at 983-84.

Even false statements of fact are protected from a defamation claim if any

reasonable person would recognize the statements as parody. As the Court held

in Falwell, 485 U.S. at 48, 53-57, an ad parody of the Reverend Jerry Falwell, in

which he purportedly stated during an interview that his “first time” was during

“a drunken incestuous rendezvous with his mother in an outhouse,” constituted a

caricature of him which no one reasonably would consider to be true, even though

Reverend Falwell could have proved the assertion of an incestuous relationship

with his mother to be absolutely false. See also Ollman, 750 F.2d at 1000 (“It is

not unusual to protect false statements of fact “where, because of the context,

they would have been understood as part of a satire or fiction.”) (Bork, J.,

-17-
concurring and citing Pring, 695 F.2d at 443).

Although the Supreme Court has not yet squarely addressed whether

fantasy, parody, rhetorical hyperbole, or imaginative expression is actionable in a

case where a plaintiff is neither a public figure nor the speech on a matter of

public concern, this circuit and at least one other circuit have done so. In Pring,

695 F.2d 438, we held, “The plaintiff urges that this constitutional doctrine

should apply only to public figures, but there is no such limitation . . . .” 8 In

Levinsky’s Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122 (1st Cir. 1997), the court

concluded that a portion of the statements claimed by a private person to be

defamatory were constitutionally protected, stating:

The First Amendment’s shielding of figurative language reflects the
reality that exaggeration and non-literal commentary have become an
integral part of social discourse. For better or worse, our society has
long since passed the stage at which the use of the word “bastard”
would occasion an investigation into the target’s lineage or the cry
“you pig” would prompt a probe for a porcine pedigree. Hyperbole is
very much the coin of the modern realm. In extending full
constitutional protection to this category of speech, the Milkovich
Court recognized the need to segregate casually used words, no
matter how tastelessly couched, from fact-based accusations.

Id. at 128. Applying this analysis, the court held that the word “trashy” was

hyperbole and therefore shielded from defamation liability notwithstanding the

court’s inability to determine whether the context of the statement involved a

8
Thus, the district court was incorrect when it stated that “the question of
whether this ‘opinion, parody, and hyperbole’ exception extends to statements
about private figures on matters of private concern does not appear to be
resolved in this circuit.” Mink II, 566 F. Supp. 2d at 1226. Pring, 695 F.2d at
442, has settled this matter.
-18-
matter of public concern. See id. at 130, 132-34.

Our holding in Pring, reiterating and applying the test in the context of a

private figure on a matter of private concern, is an inevitable explication of the

focal point of the Court’s analysis in Bresler, 398 U.S. at 13, and Letter Carriers,

418 U.S. at 284, 286. See Pring, 695 F.2d at 440-43 (stating that its holding “is

clearly the message in Greenbelt [Bresler] and Letter Carriers.”). Pring

emphasized that in all cases involving fantasy, parody, rhetorical hyperbole, or

imaginative expression, the constitutional inquiry in deciding whether a statement

is actionable remains the same: whether the charged portions, in context, could be

reasonably understood as describing actual facts about the plaintiff or actual

events in which he participated. Id.; see also Falwell, 485 U.S. 46, 50 (without

taking plaintiff’s public figure status into account in reaching its conclusion, the

Court declined to attach liability where “speech could not reasonably have been

interpreted as stating actual facts about the public figure involved.”); Bresler, 398

U.S. 6, 14 (same, declining to attach liability where “even the most careless

reader must have perceived that the word was no more than rhetorical

hyperbole.”); Letter Carriers, 418 U.S. at 285 (same, declining to attach liability,

and finding it “impossible to believe that any reader . . . would have understood

the newsletter to be charging the appellees with committing the criminal offense

of treason.”); Levinsky’s, 127 F.3d at 127-34 (segregating the constitutionally

actionable and non-actionable statements about a private plaintiff and addressing

-19-
the “public concern” issue only as to the actionable category in determining

whether there were any constitutional limitations on recoverable damages). This

makes sense because if a statement of fact is clearly a spoof, or satirical as in

Falwell, it matters not if the outrageously stated facts are false because no one

would believe them to be true. 9

The test of what a particular statement could reasonably be understood to

have asserted is what a reasonable reader would understand the author to be

saying, considering the kind of language used and the context in which it is used.

See Milkovich, 497 U.S. at 16-20; Bresler, 398 U.S. at 14 (“[E]ven the most

careless reader must have perceived that the word was no more than rhetorical

hyperbole . . . .”); Towne v. Eisner, 245 U.S. 418, 425 (1918) (“A word is not a

crystal, transparent and unchanged, it is the skin of a living thought and may vary

greatly in color and content according to the circumstances and the time in which

it is used.”).

Following this path, we held in Pring:

The test is not whether the story is or is not characterized as
“fiction,” “humor,” or anything else in the publication, but whether
the charged portions in context could be reasonably understood as
describing actual facts about the plaintiff or actual events in which

9
Accordingly, if we determine that the charged portions of The Howling
Pig would not have been reasonably believed to be true statements about
Professor Peake, it is not relevant to our analysis whether Mr. Peake was a public
figure or speaking on a matter of public concern. See Pring, 695 F.2d at 442. For
purposes of the probable cause analysis in this case, therefore, our inquiry ends if
we determine that the charged portions of The Howling Pig could not be libelous
– that is, could not reasonably be taken as true.
-20-
 she participated. If it could not be so understood, the charged
portions could not be taken literally. This is clearly the message in
Greenbelt and Letter Carriers.

695 F.2d at 442 . We also noted that whether a statement could be reasonably

understood as fact is a question of law. Id. (“Justice White in his concurrence in

Greenbelt suggests that [the question of reasonableness] was there a jury

question. The majority, however, regarded it as a matter of law.”). Other courts

agree that “Pring appropriately sets the standard for liability in cases of satire or

parody.” New Times, Inc. v. Isaacks, 146 S.W.3d 144, 156 (Tex. 2004); id.

(collecting cases); 10 id. (stating that in “Falwell, the district court incorporated the

10
Isaacks cites to other courts’ opinions that have adopted variations of the
Pring test:

Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1193-94 (9th
Cir. 1989) (Hustler features mentioning Dworkin’s name in a
derogatory fashion were “privileged opinion” because they could not
be “reasonably understood as statements of fact.”); San Francisco
Bay Guardian, Inc. v. Superior Court, 21 Cal. Rptr. 2d 464, 467
(Cal. Ct. App. 1993) (average reader would recognize phony letter
to the editor as “a fake and a joke”); Walko v. Kean College, 561
A.2d 680, 683 (N.J. Super. Ct. Law Div. 1988) (“A parody or spoof
that no reasonable person would read as a factual statement, or as
anything other than a joke – albeit a bad joke – cannot be actionable
as a defamation.”) (citing Pring); Myers v. Boston Magazine Co.,
Inc., 403 N.E.2d 376, 379 (Mass. 1980) (reasonable reader would
not understand satire to state actual fact); Garvelink v. Detroit News,
522 N.W.2d 883, 886 (Mich. Ct. App. 1994) (As a matter of law,
satirical article could not “reasonably be interpreted as stating actual
facts about the plaintiff and . . . is, therefore, protected speech.”);
Hoppe v. Hearst Corp., 770 P.2d 203, 206 (Wash. Ct. App. 1989)
(adopting Pring test and holding that parody was non-actionable as a
matter of law).

(continued...)
-21-
Pring test into the jury instructions on Falwell’s libel claim,” resulting in the

jury’s finding that “the Hustler ad parody could not ‘reasonably be understood as

describing actual facts about [respondent] or actual events in which [he]

participated.’”) (citing Falwell, 485 U.S. at 52, 57; Milkovich, 497 U.S. at 20).

We apply these tests to the references to Professor Peake in The Howling Pig.

b. Junius Puke Is a Parody of Professor Peake

The dispositive question is whether a reasonable person would conclude

that the statements in The Howling Pig were actual statements of fact about Mr.

Peake, or attributable to him, rather than a satirical spoof. For the reasons stated

below, we conclude that the answer is no.

As we have noted, The Howling Pig humorously altered Mr. Peake’s

(...continued)
Isaacks, 146 S.W.3d at 156-158; see also Browning v. Clinton, 292 F.3d 235, 248
(D.C. Cir. 2002) (“‘Hyperbole’ is protected from defamation claims due to the
‘constitutional protection afforded to parody, satire, and other imaginative
commentary’”) (quoting Moldea v. New York Times Co., 22 F.3d 310, 313 n.2,
314 (D.C. Cir. 1994)); Hamilton v. Prewett, 860 N.E.2d 1234, 1244-45 (Ind. Ct.
App. 2007) (“[P]arody and defamation are two separate classes of speech:
‘defamation’ is speech that is a false statement of fact and ‘parody’ is speech that
one cannot reasonably believe to be fact because of its exaggerated nature.”);
Victoria Square, LLC v. Glastonbury Citizen, 891 A.2d 142, 145 (Conn. 2006)
(“[d]efamation is, by its nature, mutually exclusive of parody ... [a] false
statement that is published as a parody cannot be defamatory”); Kiesau v. Bantz,
686 N.W.2d 164, 176-77 (Iowa 2004) (referring to parody as an “affirmative
defense” to plaintiff’s defamation claim); Stien v. Marriott Ownership Resorts,
Inc., 944 P.2d 374, 380 (Utah Ct. App. 1997) (“[a] parody or spoof that no
reasonable person would read as a factual statement, or as anything other than a
joke[,] cannot be actionable as a defamation”) (quoting Walko, 561 A.2d at 683));
50 Am. Jur. 2d Libel and Slander § 156 (“Defamation is by its nature mutually
exclusive of parody.”).

-22-
photograph to create the character of Junius Puke, its “editor.” Another photo

was altered to depict Mr. Peake/Puke made up as a character in the rock band

KISS. Junius Puke covered subjects and used language that Mr. Peake, a

professor of finance, surely would not have. For example, the editorial said:

This will be a regular bitch sheet that will speak truth to power,
obscenities to clergy, and advice to all the stoners sitting around
watching Scooby Doo.
This will be a forum for the pissed off and disenfranchised in
Northern Colorado, basically everybody.
I made it to where I am through hard work, luck, and connections, all
without a college degree.
Dissatisfaction with a cushy do-nothing ornamental position led me
to form this subversive little paper.
I don’t normally care much about the question of daycare since my
kids are grown and other people’s children give me the willies[.]

Aplt. App., vol. I at 147-48. Significantly, The Howling Pig editorials even

contained an express disclaimer regarding the editor:

The Howling Pig would like to make sure that there is no possible
confusion between our editor Junius Puke and the Monfort
Distinguished Professor of Finance, Mr. Junius “Jay” Peake. Mr.
Peake is an upstanding member of the community as well as an asset
to the Monfort School of Business where he teaches about
microstructure. Peake is active in many community groups, married
and a family man. He is nationally known for his work in the
business world, and has consulted on questions of market structure.
Junius Puke is none of those things and a loudmouth know-it-all to
boot, but luckily he’s frequently right and so is a true asset to this
publication.

Id. at 146. According to the search warrant affidavit itself:

The picture [of Junius Peake] has been altered to include sunglasses,
a smaller nose and a small moustache similar to that of Hitler’s. The
person in the photograph is identified on the website as Junius Puke.
The picture is accompanied by a biography of Mr. Puke. According
-23-
 to the site, its purpose is to draw attention to issues rampant in
Northern Colorado and Elsewhere [sic].

Ex. B at 3.

Balanced against all this, Detective Warren provided Mr. Peake’s complaint

to him as the sole basis of the alleged defamatory content articulated in the

affidavit. Thus, the affidavit said that “[Mr. Peake] told Detective Warren that

the statements made on the website about him are false.” Id. When asked to

provide some examples, Mr. Peake cited the following:

1) The website uses his photograph and identifies him as the Editor
in Chief Junius Puke.
2) The website states that he “gambled in tech stocks” in the 90’s.
3) The website states: The dark glasses are to avoid being recognized
since he fears the good natured ribbing of his colleagues on Wall
Street where he managed to luck out and ride the tech bubble of the
nineties like a $20 whore and make a fortune.
4) The website contains many opinions and articles about The
University of Northern Colorado, the Greeley Community and
Northern Colorado. As this is an “editorial” column, those
statements are attributed to Mr. Puke, and therefore Mr. Peak [sic].
Mr. Peak [sic] feels that these opinions are not his but have been
attributed to him.

Id. at 3-4.

The test is not how Mr. Peake would characterize The Howling Pig’s

editorial column, but how a reasonable person would understand those statements

in that context. See Pring, 695 F.2d at 442. In our judgment, the district court

reached the only possible conclusion in its January 9, 2004 order granting the

temporary restraining order. “[W]hat’s written in this case is satire. . . . [A]s

written it is crass and vulgar, but that makes it no less protected by the First
-24-
Amendment.” Aplt. App., vol. II. at 589-90. “[T]his is the purest of speech

which has been tolerated by all but tyrants and despots from ancient times.” Id. at

590. It is apparent from our review of the charged portions of the column on the

editorial page of The Howling Pig that no reasonable reader would believe that

the statements in that context were said by Professor Peake in the guise of Junius

Puke, nor would any reasonable person believe they were statements of fact as

opposed to hyperbole or parody. The comments asserted as defamation

constituted satire in its classic sense. As such, they are protected speech under

the First Amendment, and a state may not deem them to constitute libel,

particularly criminal libel. See Milkovich, 497 U.S. at 16-17 (quoting Bresler,

398 U.S. at 13). The district attorney recognized as much when he concluded that

The Howling Pig could not be prosecuted under the statute. See Mink I, 482 F.3d

at 1250.

Because a reasonable person would not take the statements in the editorial

column as statements of facts by or about Professor Peake, no reasonable

prosecutor could believe it was probable that publishing such statements

constituted a crime warranting search and seizure of Mr. Mink’s property.

2. Particularity Requirement

Mr. Mink also alleged that the warrant used to search and seize his property

lacked the particularity required by the Fourth Amendment. The district court

agreed, stating that “[u]nder the ‘scrupulous’ standard required by the Supreme

-25-
Court [for seizures of books and other materials protected by the First

Amendment], I have no doubt the warrant in this case was overly broad.” Mink

II, 566 F. Supp. 2d at 1228. Ms. Knox challenges the district court’s conclusion.

The Fourth Amendment requires that a search warrant describe with

particularity the things to be seized in order to avoid a general exploratory

rummaging of a person’s belongings. United States v. Campos, 221 F.3d 1143,

1147 (10th Cir. 2000). The particularity requirement was included in the Fourth

Amendment as a response to the evils of general warrants. See id. It “ensures

that a search is confined in scope to particularly described evidence relating to a

specific crime for which there is demonstrated probable cause.” Voss v.

Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985) (emphasis added). “As to what is

to be taken, nothing is left to the discretion of the officer executing the warrant.”

United States v. Janus Indus., 48 F.3d 1548, 1553 (10th Cir. 1995) (quoting

Stanford v. Texas, 379 U.S. 476, 485 (1965)).

A warrant is overly broad if it does not contain sufficiently particularized

language that creates a nexus between the suspected crime and the items to be

seized. See Campos, 221 F.3d at 1147; United States v. Grimmett, 439 F.3d 1263,

1271 (10th Cir. 2006). In United States v. Otero, 563 F.3d 1127 (10th Cir. 2009),

we recognized that

[t]he modern development of the personal computer and its ability to
store and intermingle a huge array of one’s personal papers in a
single place increases law enforcement’s ability to conduct a
wide-ranging search into a person’s private affairs, and accordingly
-26-
 makes the particularity requirement that much more important. See,
e.g. United States v. Riccardi, 405 F.3d 852, 863 (10th Cir. 2005)
(warrant authorizing general search of computer invalid as it
permitted officers to search anything “from child pornography to tax
returns to private correspondence”); United States v. Carey, 172 F.3d
1268, 1272 (10th Cir.1999) (computer search for files pertaining to
distribution of controlled substances uncovered child pornography).

Id. at 1132. We therefore held that “warrants for computer searches must

affirmatively limit the search to evidence of specific . . . crimes . . . .” Id.

(quoting Riccardi, 405 F.3d at 863 (emphasis added)).

Here, there was no reference anywhere in the warrant to any particular

crime, much less to the Colorado criminal libel statute. See Ex. A. The only

reference to a crime in the entire warrant was a citation to a portion of the

Colorado Rule of Criminal Procedure 41(b), which specified generally:

A search warrant may be issued under this Rule to search for and
seize any property:
(1) Which is stolen or embezzled; or
(2) Which is designed or intended for use as a means of committing a
criminal offense; or
(3) Which is or has been used as a means of committing a criminal
offense; or
(4) The possession of which is illegal; or
(5) Which would be material evidence in a subsequent criminal
prosecution in this state or in another state . . .

Colo. R. Crim. P. 41(b) (2003) (emphasis added).

The warrant authorized the search and seizure of all computer and non-

computer equipment and written materials in Mr. Mink’s house, without any

mention of any particular crime to which they might be related, essentially

authorizing a “general exploratory rummaging” through Mr. Mink’s belongings
-27-
for any unspecified “criminal offense.” See Campos, 221 F.3d at 1147; see also

Cassady, 567 F.3d at 637 (holding that a warrant permitting “search for all

evidence of any crime [is] invalid.”). 11 No paragraph tied the listed items to any

particular crime. The warrant was therefore clearly invalid under the particularity

clause of the Fourth Amendment.

Based on the foregoing, viewing the amended complaint in the light most

favorable to the nonmoving party, Mr. Mink, and drawing all reasonable

inferences in his favor, see Archuleta, 523 F.3d at 1282-1283, we conclude the

complaint plausibly alleged that Ms. Knox violated Mr. Mink’s constitutional

right not to be served with an overbroad warrant lacking any particularity.

C.
The Law Was Clearly Established at the Time the
Alleged Violations Occurred

The prong of the qualified immunity test requiring that the law be clearly

established is easily satisfied here. Ms. Knox’s review of the affidavit and

warrant occurred in December 2003. Long before that, it was clearly established

in this circuit that speech, such as parody and rhetorical hyperbole, which cannot

reasonably be taken as stating actual fact, enjoys the full protection of the First

Amendment and therefore cannot constitute the crime of criminal libel for

11
The amended complaint alleged that this is exactly how the officer
executing the warrant read it: “Detective Warren [told Mr. Mink] that he could
take ‘everything in the house’ if he wanted.” Aplt. App., vol. I at 108.
-28-
purposes of a probable cause determination. Pring, 695 F.2d at 442. Moreover,

it was also clearly established that warrants must contain probable cause that a

specified crime has occurred and meet the particularity requirement of the Fourth

Amendment in order to be constitutionally valid. Voss, 774 F.2d at 404 (“The

particularity requirement ensures that a search is confined in scope to particularly

described evidence relating to a specific crime for which there is demonstrated

probable cause.”)

Ms. Knox insists that this case is factually analogous to Douglas v. Dobbs,

419 F.3d 1097 (10th Cir. 2005), cert. denied, 546 U.S. 1138 (2006), thereby

meriting the conclusion that the law was not clearly established that her conduct

violated the Constitution. We disagree. In Douglas, an assistant district attorney

(ADA) authorized a police officer to seek a warrant to conduct an investigatory

search of the plaintiff’s prescription drug records. Because we concluded the

plaintiff “failed to demonstrate that the ADA violated a clearly established

constitutional right,” id. at 1099, 1103, we held that she was entitled to qualified

immunity. Id. Unlike in Douglas, the constitutional rights Mr. Mink relies on

were clearly established in this circuit at the time of Ms. Knox’s conduct.

III.

In sum, we conclude the amended complaint plausibly alleged that Ms.

Knox violated Mr. Mink’s clearly established constitutional rights. Accordingly,

-29-
we REVERSE the district court’s decision granting Ms. Knox’s motion to

dismiss and REMAND for further proceedings consistent with this opinion.

-30-
08-1250, Mink v. Knox

GORSUCH, Circuit Judge, concurring.

I agree with the court’s holding in all respects and join its reasoning with

one minor exception. Even with respect to that exception, I agree with the result

the court reaches, arriving at a common destination but only by a different route.

The question the court confronts in Section II.B.1.a is whether probable

cause existed to think that Mr. Mink’s column constituted “criminal libel.” I

agree with my colleagues that the answer to that question must be “no.” I reach

this conclusion for a simple and straightforward reason: this court has already

said so. Pring v. Penthouse International, Ltd., 695 F.2d 438 (10th Cir. 1982),

established in this circuit the rule that the First Amendment precludes defamation

actions aimed at parody, even parody causing injury to individuals who are not

public figures or involved in a public controversy. Pring is binding on us,

answers the probable cause question at issue, and is thus the beginning and end of

my inquiry on that question.

After noting Pring controls, the majority proceeds in Section II.B.1.a to

offer a lengthy new defense of that decision. The majority may be right in all it

says. But this isn’t beyond peradventure. As the majority notes, the Supreme

Court has yet to address how far the First Amendment goes in protecting parody.

Maj. Op. at 18. And reasonable minds can and do differ about the soundness of a

rule that precludes private persons from recovering for reputational or emotional
damage caused by parody about issues of private concern. One might argue, for

example, that such a rule unnecessarily constitutionalizes limitations that state

tort law already imposes. See, e.g., Stien v. Marriott Ownership Resorts, Inc.,

944 P.2d 374, 380 (Utah Ct. App. 1997) (“Under the law of defamation, ‘[a]

parody or spoof that no reasonable person would read as a factual statement, or as

anything other than a joke[,] . . . cannot be actionable as a defamation.’” (quoting

Walko v. Kean College, 561 A.2d 680, 683 (N.J. Super. Ct. 1988))); Maj. Op. at

21-22 n.10 (citing state cases, some of which rest their holdings on common law,

not constitutional, grounds). Or that such a rule may unjustly preclude private

persons from recovering for intentionally inflicted emotional distress regarding

private matters, in a way the First Amendment doesn’t compel. See, e.g.,

Catherine L. Amspacher & Randel Steven Springer, Note, Humor, Defamation

and Intentional Infliction of Emotional Distress: The Potential Predicament for

Private Figure Plaintiffs, 31 Wm. & Mary L. Rev. 701 (1990); Robert C. Post,

The Constitutional Concept of Public Discourse: Outrageous Opinion,

Democratic Deliberation, and Hustler Magazine v. Falwell, 103 Harv. L. Rev.

601, 662 (1990) (arguing that the First Amendment does not “absolutely protect[]

all verbal means of intentionally inflicting emotional distress, all forms of racial,

sexual, and religious insults, so long as the offending communications do not

contain false factual statements”).

Respectfully, I would avoid these thickets. Whoever has the better path

-2-
through them, it’s better yet that we sidestep them altogether. To decide the case

currently before us, it’s enough to say we are bound by Pring, and so was the

district court. Beyond that, I would not venture. See PDK Labs., Inc. v. DEA,

362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring

in the judgment) (“[I]f it is not necessary to decide more, it is necessary not to

decide more.”). Accordingly, I join all but Section II.B.1.a of the court’s opinion

and concur in its judgment.

-3-