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After 8-year legal battle, judge finds Howling Pig editor's rights were violated

June 3, 2011

COLORADO — A federal district court ruled Friday that a former college student who published a First Amendment-protected satirical newsletter was deprived of his right against unreasonable search and seizure when police confiscated his computer.

Thomas Mink, a former student at the University of Northern Colorado, published The Howling Pig as an online commentary on “the issues rampant in Northern Colorado,” according to the newsletter’s website.

In 2003, UNC finance professor Junius Peake told authorities The Howling Pig defamed him by naming its founder “Mr. Junius Puke.” He also claimed the publication violated Colorado’s criminal libel law by publishing a photo of Peake, modified to look like KISS guitarist Gene Simmons, labeled as “Mr. Junius Puke.”

Acting on Peake’s complaint, police obtained a search warrant, signed by deputy district attorney Susan Knox, and confiscated Mink’s computer. He was arrested and spent one week in jail, but prosecutors declined to file charges.

Mink filed a lawsuit in 2004 against Knox, the district attorney’s office and the city of Greeley, Colo. He claimed the state’s criminal libel law violated the First Amendment and that the taking of his computer violated his Fourth Amendment right against unreasonable searches and seizures.

The 10th U.S. Circuit Court of Appeals eventually found that Mink lacked standing to challenge the law because he was never charged under it. The court, however, allowed the Fourth Amendment claim against Knox to go forward.

The Tenth Circuit, in two different rounds of appeal, found that deputy district attorney Knox lacked both absolute and qualified immunity for her role in obtaining the search warrant.

Friday’s decision from the district court held that Knox should have known the First Amendment protected The Howling Pig and therefore that there was no probable cause to issue the search warrant.

Judge Lewis Babcock disagreed with Knox’s argument that she should still receive immunity from the lawsuit because she never reviewed the content of the newsletter.

“[T]he defense of qualified immunity would be extended beyond all reason if a prosecutor could avoid liability for an unconstitutional search and seizure by not reviewing the supporting documents,” Babcock wrote.

Alyssa Yatsko, one of Mink’s attorneys with the Holland & Hart law firm, said decision helps further the protections of the Fourth Amendment.

“The significance of this case really isn’t in this decision, it’s in the Tenth Circuit decision in the years previous,” she said.

Lawyers David Brougham and Andrew David Ringel of the firm Hall & Evans represent Knox, who is no longer with the district attorney’s office. Brougham said they are reviewing the decision.

Babcock will decide later what damages he will award to Mink. Knox is the only remaining defendant in the 8-year legal battle. Any money damages would likely be paid by Knox personally.

By Nick Dean, SPLC staff writer

THE HOWLING PIG CASE: A TIMELINE

  • Nov. 14, 2003: Prof. Peake reports The Howling Pig to the Greeley Police Department.
  • Dec. 12, 2003: Police execute a search warrant at Mink’s home and seize his computer.
  • Jan. 14, 2004: Mink files suit in federal court, claiming violations of the First and Fourth Amendments.
  • Oct. 26, 2004: The district court dismisses Mink’s lawsuit, finding he lacked standing to challenge the criminal libel law and that Knox was protected by “absolute immunity.”
  • April 16, 2007: The Tenth Circuit agrees that Mink lacks standing to challenge the law, but finds Knox is not entitled to absolute immunity as a prosecutor because she was not wearing her “advocate” hat.
  • Jan. 22, 2008: The U.S. Supreme Court declines to hear an appeal by Knox.
  • June 12, 2008: On remand, the district court again dismisses the suit, finding Knox is entitled to qualified immunity because the law protecting Mink was not clearly established at the time of the warrant.
  • July 19, 2010: The Tenth Circuit reverses, finding the law was indeed clearly established and that Knox was not entitled to qualified immunity.
  • June 3, 2011: On remand, the district court finds in favor of Mink, with damages to be determined later.

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