The Tenth Circuit Court of Appeals denied immunity to a prosecutor who reviewed a search warrant affidavit for the residence of an on-line journalist at the University of Northern Colorado.

Thomas Mink published The Howling Pig. For its editorial column he chose the name of Junius Puke with an altered photograph of Junius Peake, a professor at the school. Mr. Peake was not amused. He contacted the Greeley police. They drafted a search warrant affidavit for the home that Mink shared with his mother and presented it to Susan Knox, a deputy district attorney for review.

Mink eventually filed suit, naming among others, Knox. Knox moved for summary judgment claiming immunity and qualified immunity as a prosecutor.

The Tenth Circuit rejected both arguments. It ruled that prosecutors are only entitled to immunity for the work of an advocate and that the review and approval of a search warrant affidavit is not advocacy.

The Court stated, “Government officials performing discretionary functions generally are granted a qualified immunity and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” However it found that Mink alleged that Knox violated his clearly established constitutional rights and therefore she is not entitled to qualified immunity.

To successfully allege that one’s constitutional rights have been violated it is necessary to show a casual relationship between the defendant’s action and the violation of constitutional rights, an actual violation of the plaintiff’s rights and that the law was clear at the time of the violation. The Tenth Circuit found that Mink met all of the criteria. There was a direct causal relationship between Knox’s approval of the warrant and the illegal search. The search was illegal in that it was without probable cause and it was overly broad. It was without probable cause because parody is constitutionally accepted and it cannot be criminally charged as libel. Furthermore the warrant was not sufficiently particularized in that it ordered the seizure of all computers found in the residence without specifying what they were looking for on the hard drive. Thus no reasonable district attorney could believe that the affidavit met Fourth Amendment mandates for problable cause and specificity.