Police Officer Gets Critic Prosecuted for “Harassment,” Based on Critical Online Posts

Yesterday’s judgment was based on Judge Lee Rudofsky’s decision denying summary Judgment. Long v. Smith (E.D. Ark.):

Derrick Long (Grant Long’s nephew) filed a personal complaint against Officer [Darren] Smith. Derrick Long accused Officer Smith with unlawfully entering Derrick Long’s house, taking his dog, stealing $900, and Forrest City Police Department launched an Internal Affairs investigation in response to this personnel complaint. Officer Smith claimed that his bodycam will show him never leaving the home of Derrick Long. Officer Smith stated that the dog was never taken by him.

The Internal Affairs inspector informed Officer Smith on June 3, 2016 that an exhaustive review of his investigation had led to a “finding true.” The Internal Affairs investigator confirmed that Derrick Long’s complaints about Officer Smith were true. [Details omitted. -EV]

Grant Long, our Plaintiff, sent an FOIA request to Forrest City Police Department after the incident. [Details omitted. -EV]Long filed his resignation on January 8, 2018. [but later lost]You can find more information at pro se Federal lawsuit against Forrest City and Officer Smith as well as many other officials of the city. [Details omitted. -EV] …

However, the dispute between Officer Smith (Mr. Long) and him was not limited to the 2018 lawsuit. One day, Officer Brayboy gave Mr. Long a video of Officer Smith. This video captures Officer Smith and Brayboy performing a traffic stop. When Officer Smith administers a portable breathalyzer to a suspected driver of DWI, the video begins. [Details omitted. -EV]

Video is more than the stop. A bodycam captures the footage. It is evident that Officer Brayboy was the one who received the bodycam. However, it’s clear that Officer Smith was the actual person who was wearing Officer Brayboy’s bodycam during the bulk of the traffic stops. [Details on this, and on alleged deletions of video, omitted. -EV]

The video was posted on Facebook by Mr. Long, 23 March 2018. Below the video link, Mr. Long said, “Look at all the hard work that we do. Just touch the link and you can play it.” Under the link Mr. Long said, “SMITH DWI DRIVER, LET’S GO DIRTY DWI DRIVER.” After posting the video, Mr. Long added a comment to the section. It read: “But Eric said that it was clear[ly]He could only show the level, and he didn’t know why the officer took the video out of the street. However, this is an officer that claims that he is missing whole mo[n]”Th of Video” …

On the very next day Officer Smith wrote and filed an Affidavit to Arrest. [The Affidavit alleged that Long had stolen a document, and that Long’s posts constituted harassment; I will focus below on the harassment claim: -EV]

Arkansas State Statu[t]E 5-71-209 Defines Harassing communication Communicating with someone anonymously by phone, telegraph or email. He knew that I was an officer in the Forrest City Police Office.[r]at the time of postings and made a false claim to try and embarrass me, alarm him, and make it seem more malicious towards me.

Arkansas State Statu[t]E 5-71-208 Defines Harassment As engaging in behavior or repeating an act that is alarming or serious annoys another individual and which serves no legitimate purpose. He knew that I was part of the Forrest City Police Office.[r] at the time of the posts and engaged in conduct that annoyed me and continues to do so, and his actions serve no legitimate purpose and Grant Long did so in a manner that was indicative of his malice towards me….

The Affidavit of Arrest was used by the St. Francis County District Court to determine probable cause for Mr. Long’s arrest on March 27, 2018. The district court issued a Warrant of Arrest, directing law enforcement to arrest Mr. Long for the following offenses: harassing communications, harassment, and theft by receiving…. [At trial,] Mr. Long was acquitted on all three charges––harassing communications, harassment, and theft-by receiving.

Because Long was not able to bring a claim against Smith in retaliatory inducement, the Court ruled that Long could proceed with his case against Smith. This is partly because Long’s allegations were false.

“[T]”The First Amendment bans government officials subjecting individuals to retaliatory action, including criminal prosecutions for their opinions.” The Eighth Circuit and the United States Supreme Court have both recognized the possibility of “retaliatory inducement” to prosecute. Retaliatory inducement is when an official of the government, like Officer Smith “influences” another person to pursue a case.[s] the prosecutorial decision … in retaliation” for protected speech, and thereby “induce[s]Prosecutor will bring up charges which would have not been brought without [the government official’s] urging.” …

Herr. Long asserts that Officer Smith has intentionally lied to him about much of it or even all. [the information in his affidavit]. He claims Officer Smith made the statement in retaliation to Mr. Long’s criticisms. And he says this intentionally false information led to his prosecution…. The greatest problem facing Defendants lies in the fact that there are real and substantial disputes of facts that prevent summary judgment. The record is replete with genuinely disputed material facts from which a rational juror could find that Officer Smith knowingly lied or recklessly disregarded the truth in multiple portions of the Affidavit of Arrest—including the portions concerning harassment and harassing communications. [Details omitted. -EV]

[Moreover,]There are some material facts which can be disputed that might allow jurors to find no probable cause to convict one or both of the charges [as a matter of law].

Let’s begin with harassment communications. Arkansas Code Annotated section (5-71-209) provides pertinent information:

Harassing communications is a crime committed by a person if they are used to harass, annoy or alarm another person.

The Affidavit is not reconstructed and there is no evidence that Mr. Long has violated the statute. His two posts and one comment were posted to the Facebook page, “Let’s Talk Forrest City”. While Officer Smith is confirmed to be part of this group, the Affidavit of Arrest and the record do not indicate that Officer Smith knew Mr. Long. An impartial juror would be able to read the record and conclude that Mr. Long never “communicated.”[]With [Officer Smith]According to the statute, “as that term is used.” It is clear that he did not communicate with Officer Smith in a way likely to harass or annoy him. On the other hand, this record was not read by the plaintiff. Because Mr. Long had no idea that Officer Smith would be seeing his posts, Mr. Long cannot have the “purpose of harassing, annoying, or alarming” Officer Smith.

Even more absurd is the harassment charge. Arkansas Code Annotated Section 5-71-208 contains pertinent information:

(a) A person commits the offense of harassment if, with purpose to harass, annoy, or alarm another person, without good cause, he or she: …

(5) Conducts, or repeats acts that are alarming or seriously annoying to another person. This is against the law.

This statute allows for conduct that is legitimate, even though it may alarm or seriously annoy another person. According to the plaintiff’s most favorable reading of the material facts, M. Long (1) posted the bodycam video of Officer Smith’s traffic stop and (2) harshly criticised Officer Smith for his handling of it. Finally, he (3) sent an official letter detailing the results from an Internal Affairs investigation into officer Smith. Nothing can replace these posts if they don’t serve any legitimate purpose. These postings should not be considered legitimate if they violate the First Amendment. There is therefore no probable cause to charge harassment.

A court also added:

Arkansas’s law prohibiting harassing communications would, on the pro-plaintiff reading of the records, clearly be in violation the First Amendment. The heartland for protected speech is a private citizen who criticizes a police officers conduct during a traffic stop. Only very specific reasons can state statutes constitutionally restrict the right to criticize. A statute, for example, can prohibit or punish speech “by” the law. [its]very inflict[s]Injury or tendon[s]Incite an immediate breach or threat to the peace. This is why fighting words and libel may be forbidden. Two Facebook posts and one comment by Mr. Long are not in the same category as this type of speech. Officer Smith, as well as no public official, could have concluded that Long’s speech was any other than the core political speech covered by the First Amendment.

The court rejected Smith’s argument for qualified immunity, as “Mr. Long’s rights to criticize police were clearly established at the time Officer Smith filed his Affidavit of Arrest on March 27, 2018.

The opinion is lengthy, but informative and well-written. Also, congratulations to Robby Golden for defeating the summary judgment.