A Federal Judge Says a Victim of Retaliatory Prosecution Can Sue a Cop Who Treated Criticism As a Crime

Grant Long, an Arkansas resident, was cleared of the following criminal charges four years ago: harassing communications, harassment and theft. Long argues in a federal suit against Darren Smith (an ex-police officer from Forrest City), that he was charged in retaliation to Smith’s constitutionally protected criticisms. He repeatedly lied about the affidavit leading to the charges.

A federal judge granted Long permission to continue with the claim against Smith and another one against him this week. The flagrantly fraudulent grounds for Long’s charges against Smith, which he had also sued in federal court, and publicly criticized Smith on Facebook, is clear to see. This case shows how simple it can be for someone with a personal grudge against someone to punish them with criminal charges.

Smith accused Long of receiving stolen property. Long used the Freedom of Information Act (FOIA), to request a June 2016 letter detailing the findings of an internal investigation. This was in response to a complaint Long’s nephew filed against Smith one month prior. Derrick Long’s nephew claimed Smith illegally entered Smith’s house, took his dog and stole $900. The internal affairs letter stated that Lt. E.P. Reynolds told Forrest City Police Chief Deon Lee that at least two of these allegations had been confirmed by an “in depth investigation”.

Reynolds said that Reynolds did not believe there was any probable cause to enter the home of the citizen. There was no such probable cause (P/C) to enter the citizen’s home,” Reynolds stated. [probable cause]The dog’s owner must be notified so that the animal can be taken away. According to the IA, Officer Smith was found in violation of Section 4th Amendment.

Reynolds explained that these violations were yet another instance of officer Smith’s poor judgement in relation to his job performance and conduct. Reynolds said that Officer Smith’s behavior would put our department at risk of increasing liability.

Reynolds told Lee “the results of this most recent IA investigation (coupled with previous IA investigations) substantiate…clear violations of department protocol by Officer Smith” and “demonstrate an obvious pattern of questionable behavior and conduct on the part of Officer Smith.” Reynolds recommended Smith be terminated, noting Smith was already temporarily degraded from sergeant due to “an earlier IA investigation”.

Reynolds was right to advise Lee. Lee fired Smith three years after Smith had been promoted to lieutenant. This was following a complaint that Smith had shoved another man without a legitimate reason. WREG reported that Smith initially called Lee “a good officers” but later admitted that he had shoved a man for no legitimate reason. Smith has been accused of using unnecessary force on a minor and tasing an unwarranted man at a nightclub. He also pulled out a gun while off duty against a Walmart customer that he misunderstood to be shoplifting.

Reynolds’s prescient letter was also included by Long in the federal lawsuit that he filed against Smith in 2018. The suit was based on Smith’s treatment of his nephew. The lawsuit Long filed without any legal help was dismissed because Long failed to prove his standing and explain how Smith had hurt him. Long posted the Facebook internal affairs letter. Smith submitted an affidavit to Long the very next day.

Smith claimed that Long was denied a FOIA request to inspect the internal affairs letter because it was classified as an employee record, as stated by the statute in his March 2018 statement. Smith stated that Long “conspired” with others in order to steal the document and was now “in possession of stolen property.”

Lee’s Office had actually given Long the correspondence, as well as other documents, regarding the internal affairs investigation in response to Long’s FOIA request. U.S. District judge Lee Rudofsky noted in his March 28 decision that Smith’s motion was denied to dismiss Long’s claim for retaliatory prosecution. A rational jury could have concluded that Mr. Long was not likely to face criminal charges for receiving theft.

Smith claimed that Long “harassed communications”. Long posted the body camera video from a traffic stop. Smith had described Long as being “dirty” for having been drinking with a CDL (commercial driver’s license). The driver’s blood alcohol level (BAC) was 0.046 percent. This is below the 0.08% threshold that would make him guilty of DWI (driving while intoxicated). Arkansas law allows for a BAC greater than 0.04 percent to be used in determining if a driver is intoxicated.

Long shared the message “Look at all the work that we pay for” on Facebook, above the link to his video which he obtained from Smith’s partner, Officer Vanessa Brayboy. “SMITH DELIVERS A DIRTY DWI DRIVER TO GO.”

Other questionable behavior was revealed in the video. It shows Smith and Brayboy switched their bodycams after the stop, and Smith then switched them back. Rudofsky noted that Smith was seen manipulating the Bodycam worn previously by Brayboy. Long stated that he could see Smith manipulating the bodycam worn by Officer Brayboy in the comments section. Rudofsky notes that there is another Facebook user who “cannot say why” the officer removed the video from the street. However, this officer claims he’s missing an entire mo.[n]The th video

Smith deemed Long’s video posting and internal affairs letter as harassment communications. Arkansas definitions harassing communications to be electronic messages that “likely harass, annoy or cause alarm”. It is clear that Long’s postings did “annoy Smith”, but that doesn’t suffice to meet the requirements of this offense. The statute, if it was so, would clearly be inconsistent with the First Amendment.

Smith’s law reading is flawed in that Long appears to have not intended to “communicate” at all. Smith, however, was an active member of the group, Let’s Talk Forrest City. Long stated that Smith did not know this and has no evidence. Rudofsky also notes that “the record contains genuinely disputed material facts, from which a rational jury could find that Officer Smith recklessly or knowingly disregarded the truth”, in claiming that Long violated “harassing communication.”

Smith’s affidavit stated, for instance, that Grant Long had made “continually false statements about…” [me]On a public forum[u]Facebook: m Rudofsky argues that the record only contains one post about the Internal Affairs Investigation Letter. One post is related to the traffic stopped video and one comment. Hence “a rational juror could easily conclude that Officer Smith’s use of the word ‘continually’ to describe Mr. Long’s criticisms was intentionally false.”

Smith said that Long also “accused him falsely of letting drunk drivers continue to drive motor vehicles after conducting tests showing that the driver is intoxicated.” Rudofsky points out that “a rational jury could find that Mr. Long did not say anything of the kind, and that Officer Smith was aware.” Long called the driver “dirty”, which Smith used. Long described the driver as a DWI driver, which is a possible truth, considering that Smith’s BAC was sufficient to be counted along with other indicators as proof of his intoxication.

Smith stated that Long was “public.”[ly]He “accused me of destroying evidence” as well as “knew when I posted such that it was falsehoods.” Rudofsky states that a rational juror would view Officer Smith’s bodycam switching between Brayboy and Smith as proof that Officer Smith deleted the footage in the street. So, it is possible for a rational jury to conclude that Mr. Long’s comments were true, and Officer Smith understood that.
The Affidavit Of Arrest described Officer Smith’s comment as “false” and was false.

Smith described Reynolds as “a disgruntled former employee” and claimed that internal investigations had not revealed any evidence. Rudofsky states that there is not any evidence to support the claims that those findings were ever “refuted.” So, a rational juror might conclude that Officer Smith made a false statement.

Rudofsky states that Long didn’t “certainly communicate with Officer Smith in a manner likely harass, annoy or cause alarm.” Assuming Long didn’t know Smith was part the Facebook group, which appears to be true, Long “couldn’t have the ‘purpose’ to harass, annoy or alarm Officer Smith.”

Long accused Smith of harassment. Rudofsky said that the charge is even more ridiculous. Under Arkansas law, “a person commits the offense of harassment if, with purpose to harass, annoy, or alarm another person, without good cause, he or she…engages in conduct or repeatedly commits an act that alarms or seriously annoys another person and that serves no legitimate purpose.” The “legitimate purpose” is what bars the person from being charged with harassment, even though their conduct “seriously upsets” someone else.

Rudofsky wrote, “If these postings don’t serve a legitimate purpose, then nothing does.” Rudofsky writes, “If these postings don’t serve a legitimate reason, the statute is in violation of the First Amendment.” There is therefore no reason to believe that harassment charges will be brought against you.

Smith claimed that Long was innocent of the three charges against him. Smith supported his claim that Long had probable cause. Qualified immunity is a legal doctrine which protects government officials from civil rights suits if they are not in violation of “clearly-established” law. Rudofsky refutes the claim. In March 2018, it was established that an officer of police violates Article 1 when they use trumped-up accusations to inflict punishment on protected speech.

Rudofksy allowed Long to continue with two more claims against Smith. They were malicious prosecution, as it was defined in state law, and violation Long’s right to remonstrate under Arkansas Constitution. The same pattern of behavior that supports Long’s “retaliatory-inducement-to-prosecute claim under the First Amendment,” Rudofsky concludes, makes those state law claims viable as well.

Long is encouraged that Smith will be held accountable by Long for his outrageous, dishonest use of power. It is still troubling to note that Smith requested an arrest warrant from the St. Francis County District Court judge the day before. Smith also cited this fact in defense. Local prosecutors decided that Smith was worthy of being pursued. Smith’s allegations were motivated by personal pique, not evidence-supported convictions that Long had broken law. These officials interpreted probable cause as if it were lacking.

Smith stated repeatedly in the affidavit of Smith that Long had full knowledge that he was a Forrest City Police Officer[r].” Smith’s role as a cop officer did not affect the validity of Long’s charges. But, this helps Smith understand why he believed criticizing Long was illegal and why nobody has tried to change that belief.