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Snarky Facebook Post Not True Threat; Officers Denied Qualified Immunity

by David Reutter

The U.S. Court of Appeals for the Eighth Circuit reversed a grant of summary judgment to police officers who arrested a man for a snarky Facebook post without conducting even a minimal investigation.

James Ross, 20, is an active user of Facebook. One of Ross’ Facebook friends posted an image on January 25, 2015, that showed a number of different firearms below the title, “Why I Need a Gun.” Above each gun was an explanation for what it could be used – for example, above a shotgun: “This one is for burglars and home invasions;” above a rifle with a scope, “this one is for putting food on the table;” and above an assault rifle, “this one for self-defense against enemies foreign and domestic, for preservation of freedom and liberty, and to prevent government atrocities.”

Ross, an advocate of gun control measures, interpreted the post as advocating against such measures. In response, Ross commented on the post: “Which one do I need to shoot up a kindergarten?” He then logged off Facebook and went to bed.

The post was passed around and caught the attention city of Jackson, Missouri, police officers Ray Medlin, Anthony Henson, and Toby Freeman. It came to their attention when they were off duty, but they followed up on it the next day at work.

It was determined that Ross authored the reply post, but no additional investigation was conducted.

Hanson and Freeman arrived at Ross’ place of employment about six hours into his afternoon shift. Ross was told the officers were there about the post, and they promptly placed him under arrest. Ross protested that the comment was not serious, that it was meant to be a joke, and he was willing “to clear this up right here.”

At the police station, Ross was interviewed and explained the situation. According to Ross, several officers at the station told him they did not think the case was likely to go any further than the prosecuting attorney’s office.

Rather than release Ross, he was held until the next day and served with a warrant for “Peace Disturbance.” He spent the next two to three days in jail until posting a $1,000 bond. The charges were dismissed on April 7, 2015.

After discovery commenced in connection with Ross’ civil rights action, both parties moved for summary judgment. The district court found that Medlin, Hanson, and Freeman were entitled to qualified immunity. Ross appealed.

The Eighth Circuit reversed. It explained that a Fourth and Fourteenth Amendment violation “occurs when there is a warrantless arrest that is not supported by probable cause to believe that a crime has been committed.”

Ross was charged under Mo. Rev. Stat. § 574.115.1(3)(2015), which Missouri courts have narrowly construed to apply only to “true threats.”

In Kuehl v. Burtis, 173 F.3d 646 (8th Cir. 1999), the court said, “An officer need not conduct a mini trial before making an arrest,” but it cannot be said even an arguable probable cause is present where “a minimal further investigation would have exonerated the suspect.” That court also noted that “officers have a duty to conduct a reasonably thorough investigation” only when there is “absence of exigent circumstances,” and they would not be “unduly hampered“ by “waiting to obtain more facts before seeking to arrest.”

In Ross’ case, the Eighth Circuit concluded that even a “minimal further investigation” would have revealed that his posts were not a true threat. The defendants failed to investigate the context in which Ross made the statement, i.e., his history of violence and political beliefs about gun control measures.

The Court stated “it is beyond debate that—had the officers engaged in minimal further investigation—the only reasonable conclusion was that Ross had not violated” the statute.

Accordingly, the Court reversed the district court’s grant of summary judgment and remanded the case for further proceedings consistent with its opinion. See: Ross v. City of Jackson, 897 F.3d 916 (8th Cir. 2018). 

 

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