By Adam Ferrise
Cleveland.com
CLEVELAND — A federal appeals court ruled that a man arrested and later acquitted of charges stemming from the creation of a fake Parma police Facebook page was unable to prove the city violated his free speech or wrongfully arrested him.
The 6th U.S. Circuit Court of Appeals on Monday upheld a ruling against Anthony Novak, who sued Parma police officials and accused them of retaliating against him for creating a parody Facebook page that pilloried the police.
A panel of three judges ruled that Novak failed to prove Parma police violated his free speech or that the officers acted maliciously when they investigated and charged him with fourth-degree felony disrupting public services.
“Little did Anthony Novak know when he launched ‘The City of Parma Police Department’ page that he’d wind up a defendant in court,” the opinion, written by Circuit Court Judge Amul Thapar, said. “So too for the officers who arrested him. At the end of the day, neither got all they wanted — Novak won’t be punished for his alleged crime, and the defendants are entitled to summary judgment on Novak’s civil claims.”
In legal terms, summary judgment means the case was ruled upon by a judge who sided with the city.
Several organizations — including the national and Ohio ACLU — backed Novak and said his Facebook account amounted to free speech that his arrest violated his First Amendment rights.
Novak’s attorney, Subodh Chandra, said in a statement that the case showed how qualified immunity for police officers allows officials to trample on people’s rights. He said he is considering further appeals.
“Mr. Novak — who was arrested, jailed and prosecuted simply for mocking the government — is deeply disappointed by the court’s decision, which sets dangerous precedent undermining free speech, bends over backwards to resolve conflicting facts in favor of exonerating the officers, grants an impermissible ‘heckler’s veto’ to those irritated by speech and is irreconcilable with both the appeals court’s own prior decision and the First Amendment,” Chandra’s statement said.
Cleveland.com and The Plain Dealer reached out to Parma Law Director Timothy Dobeck and the city’s outside attorney, John Travis, for comment.
Novak in March 2016 created the Facebook page that used the same logo and masthead as the real department’s page, but replaced the police’s slogan of “We know crime” with “We no crime.” He put up fake job postings that said the department “strongly” encourages minorities not apply. Another post touted a non-existent law against feeding homeless people. Another said Parma police offered abortions.
The page was active for less than a day and received less than 100 followers. About 10 people called 911 to report the Facebook page. Parma police a few days later arrested Novak and seized his laptop and cellphone. He spent four days in jail and was later acquitted at trial.
Novak filed the first of two lawsuits about a month after his acquittal. The case wound its way through federal court and up to the 6th Circuit. The appeals court previously suggested that Novak’s speech was the only source of probable cause the police used to arrest him.
But in Monday’s opinion, the judges said with more evidence at a later stage in the case, they found that it’s possible that not all of Novak’s speech was protected by the First Amendment.
The opinion said police officers who investigated the case — Kevin Riley and Thomas Connor— had enough probable cause in the case to present charges to a prosecutor. It also noted the officers presented the case to Dobeck and a municipal judge, and both signed off on the charges.
The city and officers didn’t prevent Novak’s speech, the opinion said, because he still had access to Facebook, via a friend or a public library, if we wanted to keep posting on the page.
The appeals court, however, took aim at the waste of time and resources the city expended and suggested the police and prosecutors could have let the case go.
“Indeed, it is cases like these when government officials have a particular obligation to act reasonably,” the judges wrote. “Was Novak’s Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak’s and the government’s time?
“We have our doubts. And from the beginning, any one of the officials involved could have allowed ‘the entire story to turn out differently,’ simply by saying ‘No.’ Unfortunately, no one did.”
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