Appendix — Knox v. Mink (No. 07-516)

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APPENDIX A— OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

FILED APRIL 16, 2007

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 04-1496

THOMAS MINK; THE HOWLING PIG,

an unincorporated association,

Plaintiffs-Appellants,

v.

JOHN W. SUTHERS, in his official capacity as Attorney

General of the State of Colorado, KENNETH R. BUCK,

District Attorney for Colorado’s 19th Judicial District;

SUSAN KNOX, a Chief Deputy District Attorney working

for Colorado’s 19th Judicial District Attorney’s Office, in

her individual capacity,

Defendants-Appellees,

and

STUDENT PRESS LAW CENTER; SILHA CENTER

FOR THE STUDY OF MEDIA ETHICS; WORLD

PRESS FREEDOM COMMITTEE; ASSOCIATED

PRESS; BLOOMBERG NEWS; COLORADO PRESS

ASSOCIATION; DOW JONES & COMPANY, INC.;

MEDIA LAW RESOURCE CENTER; THE

REPORTERS COMMITTEE FOR FREEDOM OF THE

PRESS; COLORADO DISTRICT ATTORNEYS’

COUNCIL,

Amicus Curiae.

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April 16, 2007

Before O'BRIEN, EBEL, and TYMKOVICH, Circuit

Judges.

TYMKOVICH, Circuit Judge.

I. Introduction

Colorado law makes it “criminal libel” to knowingly

publish any statement tending to “impeach the honesty,

integrity, virtue, or reputation or expose the natural

defects of one who is alive, and thereby to expose him to

public hatred, contempt, or ridicule.” Colo.Rev.Stat.

§ 18-13-105. While a student at the University of

Northern Colorado (UNC), Thomas Mink created and

published an internet-based journal called The Howling

Pig. Several issues of the journal included Mink’s

pseudonymous column by “Junius Puke,” which parodied

the views of a real UNC professor named Junius Peake,

and whose on-line photograph bore a strong resemblance

to the real professor.

Professor Peake complained to the Greeley Police

Department who commenced an investigation of Mink

for potential violations of Colorado’s criminal libel

statute. The police, in conjunction with the local district

attorney’s office, sought and obtained a search warrant,

which they executed at Mink’s residence, seizing his

personal computer and other written materials.

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Mink sued for prospective relief and damages under

42 U.S.C. § 1983, and for violations of the Privacy

Protection Act, 42 U.S.C. § 2000aa. The district court

entered a temporary restraining order against the

district attorney’s office, but dismissed the case in its

entirety after the office disavowed an intent to prosecute

Mink. The district court concluded that: (1) Mink’s

request for declaratory judgment failed for lack of

standing, (2) the statutory privacy claim failed to state a

claim for relief, and (3) the damages claim against the

assistant district attorney arising from the search was

barred by absolute prosecutorial immunity.

Having jurisdiction pursuant to28 U.S.C. § 1291, we

affirm both the dismissal of Mink’s facial challenge to

the Colorado criminal libel statute because he lacks

standing and his claim is moot, and the dismissal of his

statutory damages claim for failure to state a claim. But

we reverse the district court’s dismissal of the damages

claim arising from the search because we conclude it is

not barred by absolute immunity. Accordingly, we

remand to the district court for further proceedings on

the question of qualified immunity.

II. Background

Thomas Mink began releasing issues of The Howling

Pig, a student-run, internet-based journal, during his

fall 2003 semester as a student at the University of

Northern Colorado. The journal, which was created,

maintained, and published from the home computer

Mink shared with his mother, addressed current events

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involving the local UNC community. Among other things,

it featured a regular column from the editor, a fictional

character named “Junius Puke.” The column displayed

obviously doctored photographs of an actual UNC

professor, Junius Peak, wearing dark sunglasses and a

Hitler-like mustache. The purpose of the column,

according to Mink, was to “spoof[ ] and parod[y]

Professor Peake by addressing subjects on which the

real professor would be unlikely to write, or through the

assertion of views diametrically opposed to those of

Professor Peake.” Aplt.App. at 80-81.

After learning of the parody, Professor Peake

contacted the local district attorney and swore out a

complaint, alleging he was a victim of criminal libel.

Colo.Rev.Stat. § 18-13-105. In response to the complaint,

a Greeley Police Department detective opened an

investigation. The detective reviewed copies of The

Howling Pig and concluded that its editor was Mink.

Based on this information, the detective prepared a

search warrant affidavit according to procedures

required by Colorado law. Colo.Rev.Stat. § 16-3-301;

Colo. R.Crim. Proc. 41(b), (c). These procedures allow a

detective to submit an affidavit to the office of the district

attorney for legal review. Colo.Rev.Stat. § 20-1-106.1.

Consequently, a deputy district attorney, appellee Susan

Knox, reviewed and approved the search warrant

affidavit, which was then presented to and approved by

a magistrate judge.

With the search warrant in hand, Greeley police

searched the home where Mink lived with his mother on

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December 12, 2003. The police confiscated Mink’s

personal computer and additional written materials

referencing The Howling Pig. According to Mink, during

the search one of the detectives told him he was in “big

trouble” and led him to believe a criminal complaint had

been filed. Mink also claims that a detective warned him

that resuming publication of The Howling Pig would only

“make things worse for [him].” Aplt.App. at 82-83.

Following the search, Mink obtained counsel who

contacted the Greeley police on December 23, 2003.

According to Mink’s counsel, the investigating officer

disclosed his plans to recommend that criminal libel

charges be filed against Mink. That same day, Mink’s

counsel informed a lawyer in the district attorney’s office

that he believed the criminal libel law could not be

applied constitutionally against Mink for statements

made in The Howling Pig. On December 30, 2003, Mink’s

counsel faxed a letter to the district attorney demanding

the immediate return of materials seized from Mink’s

home and explaining Mink’s position that prosecuting

him under the criminal libel statute would be

unconstitutional. The letter requested a reply by

January 2, 2004, but the district attorney apparently

never responded.

On January 8, 2004, Mink filed suit in federal district

court seeking prospective declaratory relief that the

Colorado criminal libel statute was unconstitutional

under the First Amendment and also requesting

damages for the search and seizure conducted pursuant

to the statute. With respect to the first claim, the

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complaint alleged Mink faced “an imminent threat of

being charged with a violation of Colorado’s Criminal

Libel Statute,” Aplt.App. at 10, and that the “criminal

investigation, the threatened prosecution, and the search

and seizure have chilled Mr. Mink from exercising his

right to freedom of expression and his right to freedom

of speech.” Aplt.App. at 15.

Mink also requested a temporary restraining order.

On January 9, 2004, the district court ordered:

that the District Attorney for the 19th Judicial

District shall not initiate the prosecution of

Thomas Mink under Colorado’s Criminal Libel

Statute, C.R.S. § 18-13-105, and the City of

Greeley shall, forthwith, return to the

Plaintiffs the computer, and all contents

thereof, seized following the search of

Plaintiffs’ home in Ault, Colorado.

Dist. Ct. Order, Jan. 9, 2004, at 1.

The district court subsequently held a status

conference during which it learned the district attorney

would not be filing charges against Mink. In addition,

the district attorney issued a written “No File” decision,

concluding the statements contained in The Howling Pig

could not be prosecuted under the statute. Thereafter,

pursuant to an agreement of the parties, the court issued

an order vacating its temporary restraining order.

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Mink filed an amended complaint on February 19,

2004 on behalf of himself and The Howling Pig. The

amended complaint repeated his allegations that the

Colorado criminal libel statute was unconstitutional, and

also named the Colorado Attorney General and the local ,

district attorney as defendants in their official capacities

for purposes of seeking prospective relief. Mink also

realleged violations of his statutory and constitutional

rights based on the search of his residence. He further

claimed he had published two new issues of The Howling

Pig since the filing of the complaint which contained

statements that might be construed as violations of

Colorado’s criminal libel statute, and said he planned to

continue publishing such statements in the future. In

addition, he named Susan Knox, the deputy district

attorney who reviewed and approved the search warrant

affidavit, in her individual capacity under 42 U.S.C.

§ 1983 and the Privacy Protection Act, 42 U.S.C.

§ 2000aa.'

The district attorney answered the amended

complaint on April 9, 2004, admitting most of its

allegations. After the defendants filed dispositive

motions, the district court dismissed Mink’s suit in its

entirety because (1) he lacked standing to challenge the

constitutionality of the criminal libel statute, (2) he failed

to properly state a statutory claim for relief under the

Privacy Protection Act, and (3) his constitutional claims

against the deputy district attorney were barred by

absolute immunity.

1. By this time, Mink had dropped his claims against the

Greeley police department and the individual detective named

in the original complaint.

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Ill. Discussion

This appeal raises three issues: first, whether we

have jurisdiction to consider Mink’s facial constitutional

challenge to the criminal libel statute in light of the

district attorney’s disavowal of an intent to prosecute;

second, whether Mink’s claim for damages under the

federal Privacy Protection Act states a cause of action

against public officials who did not participate in the

search of Mink’s residence; and third, whether Mink’s

claims for damages against the attorney who reviewed

the search warrant are barred by the doctrine of absolute

prosecutorial immunity.

We accept all well-pleaded facts as true for purposes

of resolving an appeal from a motion to dismiss.’ Ruiz v.

McDonnell, 299 F.3d 1178, 1181 (10th Cir.2002), cert.

denied, 588 U.S. 999, 123 S.Ct. 1908, 155 L.Ed.2d 826

(2003). We view the facts as alleged in the complaint in

the lighc most favorable to the plaintiffs, and we will

uphold the dismissal only if it appears beyond doubt that

they can prove no set of facts which would entitle them

to relief. Initiative & Referendum Inst. v. Walker, 450

F.3d 1082, 1088-89 (10th Cir.2006).

2. Mink also appeals the district court’s denial of his motion

for partial summary judgment. Because we affirm the dismissal

of his claim for declaratory relief, we do not reach this issue.

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A. Facial Challenge to Colorado’s Criminal Libel

Statute

1. Summary of Constitutional Claims

Before turning to the threshold jurisdictional issues,

we provide a brief summary of Mink’s constitutional

argument. This background bears on both the underlying

procedural posture of the case, as well as the claims

asserted against the prosecutor who reviewed the

affidavit in support of the search warrant.

Mink requests a declaration that the Colorado

criminal libel statute is facially unconstitutional under

the First Amendment. His amended complaint names

the Colorado Attorney General and the District Attorney

as defendants.

Colorado’s criminal libel statute provides:

(1) A person who shall knowingly publish or

disseminate, either by written instrument,

sign, pictures, or the like, any statement or

object tending to blacken the memory of one

who is dead, or to impeach the honesty,

integrity, virtue, or reputation or expose the

natural defects of one who is alive, and thereby

to expose him to public hatred, contempt, or

ridicule, commits criminal libel.

(2) It shall be an affirmative defense that the

publication was true, except libels tending to

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blacken the memory of the dead and libels

tending to expose the natural defects of the

living.

(3) Criminal libel is a class 6 felony.

Colo.Rev.Stat. § 18-13-105.

Mink’s primary contention is that the Colorado

criminal libel statute is overbroad because it implicates

conduct that is constitutionally protected. In support of

his argument, Mink points to United States Supreme

Court case law requiring a party bringing a libel action

to prove (1) fault of the speaker and (2) falsity of the

statement. Specifically, the Supreme Court has held false

statements on matters of public concern regarding public

figures are protected unless they are made with “actual

malice”—i.e., with knowledge the statements are false

or with reckless disregard as to whether they are false

or not. New York Times Co. v. Sullivan, 376 U.S. 254,

279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). False

statements on matters of public concern regarding

private figures are protected unless they are made

negligently. Gertz v. Robert Welch, Inc., 418 U.S. 323,

351, 352, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In public

concern cases, the party bringing the action also bears

the burden of proving the falsity of the statement.

Philadelphia Newspapers v. Hepps, 475 U.S. 767, 776,

106 S.Ct. 1558, 89 L.Ed.2d 783 (1986).

Mink alleges The Howling Pig was devoted to

matters of public concern to the UNC community, such

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as lack of faculty diversity and free speech on campus.

Further, he alleges Professor Peake often voiced his

views publicly and has therefore arguably rendered

himself a public figure for First Amendment purposes.

Mink does not, however, bring an “as applied” challenge

to the statute. Instead, he argues the statute is

unconstitutional on its face because it punishes libelous

statements with no fault requirement and without

placing the burden of proving falsity on the prosecutor.

Mink further contends the Colorado Supreme

Court’s subsequent interpretation of the statute does not

cure the constitutional infirmities. The United States

Supreme Court has long respected the ability of state

high courts to narrow overbroad statutes so as to solve

constitutional problems. Osborne v. Ohio, 495 U.S. 103,

119, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). In 1991, the

Colorado Supreme Court narrowed the potential scope

of the criminal libel law in People v. Ryan, 806 P2d 935

(Colo.1991):

From the United States Supreme Court’s

pronouncements concerning libel we discern

a precise category of protected conduct that

falls outside of the legitimate sweep of section

18-13-105. That category consists of libelous

statements about public officials or public

figures involving matters ef public concern.

This category of constitutionally protected

conduct gives us a clear line by which to

distinguish the statute’s constitutional and

unconstitutional applications. We therefore

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hold that section 18-13-105 is invalid only

insofar as it reaches constitutionally

protected statements about public officials or

public figures on matters of public concern.

Our partial invalidation, however, affects only

the application of subsection (1) of the statute.

Truth shall remain an affirmative defense

pursuant to section 18-13-105(2). . . and article

II, section 10, of the Colorado Constitution.

Id. at 940-41(footnotes omitted).

According to Mink, Ryan did not limit the statute’s

applicability with regard to statements made about

private individuals on matters of public concern, and

thus the law continues to run afoul of the First

Amendment. He claims these statements are still

punishable under Colorado law, even when made non-

negligently and even when the party bringing the action

has not proven their falsity.’

With that backdrop, we turn to the procedural

posture of Mink’s constitutional claim in light of the

district attorney’s disavowal of an intent to prosecute

him under the statute.

3. That the plaintiff must prove falsity flows from Ryan’s

constitutional analysis. Moreover, the Colorado Supreme Court

had previously ruled that truth is a defense under the statute.

Gomba v. McLaughlin, 180 Colo. 232, 504 P2d 337 (1972);

see also Diversified Management v. Denver Post, 653 P2d 1103

(Colo.1982) (discussing speech protections for matters of public

concern).

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2. Jurisdiction-Standing and Mootness

To pursue a case in federal court, a plaintiff must

satisfy the twin requirements of standing and mootness.

Winsness v. Yocom, 433 F.3d 727, 731 (10th Cir.2006).

Without a live, concrete controversy, we lack jurisdiction

to consider claims no matter how meritorious. Because

we conclude Mink faces “no credible threat of

prosecution” under the criminal libel statute, he lacks

standing to pursue his claims for prospective relief. * For

the same reasons, we also conclude his claim is moot.

Therefore, we cannot reach the merits of his

constitutional challenge to the statute.

a. Standing. To establish standing, Mink must

show (1) he has suffered an injury in fact, (2) traceable

to the defendants, (3) that can be redressed by a

favorable decision of this Court. See Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d

351 (1992); see also Elk Grove Unified Sch. Dist. v.

Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98

(2004). A plaintiff’s injury must be “actual or imminent,

not conjectural or hypothetical.” Lujan, 504 U.S. at 560,

1128.Ct. 2130.

In freedom of expression cases, injury in fact can be

shown by alleging (1) “an intention to engage in a course

of conduct arguably affected with a constitutional

interest, but proscribed by statute,” and (2) “a credible

4. The deputy district attorney has not challenged Mink’s

standing to pursue the statutory and common law damages

claims.

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threat of future prosecution.” Ward v. Utah, 321 F.3d

1263, 1267 (10th Cir.2003). “Allegations of possible future

injury do not satisfy the injury in fact requirement,

though a plaintiff need not expose himself to actual arrest

or prosecution to be entitled to challenge a statute that

he claims deters the exercise of his constitutional rights.”

Initiative & Referendum Inst. v. Walker, 450 F.3d at

1087-88 (internal quotations omitted). But the “mere

presence on the statute books of an unconstitutional

statute, in the absence of enforcement or credible threat

of enforcement, does not entitle anyone to sue, even if

they allege an inhibiting effect on constitutionally

protected conduct prohibited by the statute.” Winsness,

433 F.3d at 732.

To satisfy the injury in fact requirement, the plaintiff

must demonstrate that expressive activities will be

inhibited by “an objectively justified fear of real

consequences, which can be satisfied by showing a

credible threat of prosecution or other consequences

following from the statute’s enforcement.” /d. While

“past wrongs are evidence bearing on whether there is

a real and immediate threat of repeated injury,” O’Shea

v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 38 L.Ed.2d

674 (1974), they do not confer standing to pursue

prospective relief without some credible threat of future

injury. See Los Angeles v. Lyons, 461 U.S. 95, 108, 103

S.Ct. 1660, 75 L.Ed.2d 675 (1983). “[A]ssurances from

prosecutors that they do not intend to bring charges are

sufficient to defeat standing, even when the individual

plaintiff had actually been charged or directly threatened

with prosecution for the same conduct in the past.”

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Winsness, 433 F.3d at 731 (quoting D.L.S. v. Utah, 374

F.3d 971, 975 (i0th Cir.2004)).

But standing is determined at the time the action is

brought, Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), 528 U.S. 167, 180, 120 S.Ct. 693, 145

L.Ed.2d 610 (2000), and we generally look to when the

complaint was first filed, not to subsequent events. Nova

Health Sys. v. Gandy, 416 F.3d 1149, 1153 (10th Cir.2005)

(internal citations omitted). In this case, however, the

standing inquiry is complicated by the unique timeline

of events. Mink’s original and amended complaint both

allege that as of January 8, 2004, Mink “face[d] an

imminent threat of being charged with a violation of

Colorado’s Criminal Libel Statute.” Aplt.App. at 77.

Before answering the complaint, the district attorney’s

office concluded it could not prosecute the case and

issued a “No File” decision on January 20, 2004. Mink

filed an amended complaint on February 19, 2004.

Although an investigation was pending at the time the

complaint was filed, the threat of prosecution was still

speculative at that time. Moreover, by the time he filed

the amended complaint, even the investigation had

entirely dissipated. We look to the amended complaint

in assessing a plaintiff’s claims, including the allegations

in support of standing. And since an amended complaint

“supercedes an original complaint and renders the

original complaint without legal effect,” In re Atlas Van

Lines, Inc., 209 F.3d 1064, 1067 (8th Cir.2000); 3 Moore’s

Federal Practice, § 15.17[3] (Matthew Bender 3d ed.),

the justiciability of Mink’s constitutional claim is further

cast in doubt.

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Given this procedural posture, our cases suggest

several outcomes:

(1) In Faustin v. City & County of Denver, 268 F.3d

942 (10th Cir.2001), we held the disavowal of an intent to

prosecute under a statute prior to the filing of a

complaint defeated standing.

(2) In D.L.S. v. Utah, 374 F.3d 971 (10th Cir.2004),

we held the disavowal of an intent to enforce a criminal

sodomy statute against the plaintiff after the complaint

was filed, even if it might be enforced against another

class of persons, was enough to defeat standing.°

(3) Finally, in Winsness v. Yocom, 433 F.3d 727 (10th

Cir.2006), we found lack of standing in two situations

where the plaintiff sought prospective relief from

prosecution under a statute: (a) where the plaintiff

“received assurances from the District Attorney that the

flag-abuse statute [would] not be enforced against him”

though the assurances came “after [the plaintiff] filed

his lawsuit,” id. at 733; and (b) where the plaintiff was

already cited for flag-abuse, but the prosecutor quickly

dropped the charges and disavowed an intent to

prosecute before the plaintiff filed his suit.

Each of these cases concluded the plaintiff lacked

standing because he could not establish a “credible fear

of prosecution” under the challenged statute. Mink’s

5. The only distinction between D.L.S. and the present case

is that the D.L.S. plaintiff was not exposed to prior threat of

prosecution.

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facts differ only slightly from these precedents.

Uniquely, the disavowal of prosecution in this case came

between the time the lawsuit was filed and the filing of «

the amended complaint. At the time the original

complaint was filed, moreover, police had conducted a

search of Mink’s residence, seized his computer and

papers, and were retaining them pending further

investigation. Attempts by Mink’s counsel to dissuade

the district attorney from charging him had yet to bear

fruit. Thus, when he brought the suit Mink appeared to

have a legitimate basis for alleging a credible fear of

future prosecution.

Nonetheless, we conclude Mink lacks standing under

our case law. First, based on his review of controlling

Supreme Court precedents, the district attorney

disclaimed an intent to prosecute immediately after the

lawsuit was filed. In both D.L.S. and Winsness, the

prosecutor’s quick disavowal of an intent to prosecute

demonstrated a lack of injury in fact.° No charges were

ever filed against Mink and the district attorney publicly

announced he would not prosecute well before his office

filed an answer or motion to dismiss. Where a plaintiff

only seeks prospective relief, standing is defeated when

there is evidence the government will not enforce the

challenged statute against the plaintiff. See, e.g.,

Harmon v. City of Kansas City, 197 F.3d 321, 327(8th

Cir.1999) (plaintiffs lost standing to seek an injunction

6. Similarly, the city attorney in Faustin apparently

concluded prior to the filing of the complaint that the statute

could not be applied to the plaintiff, although that conclusion

was not disclosed until after the case commenced.

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when city conceded all of their activities were

constitutionally protected and were not prohibited by

the ordinance).

Second, it is significant Mink filed an amended

complaint after the district attorney disclosed his intent

not to prosecute. The sequence of events confirms Mink

had no “injury in fact” for prospective relief when he

filed his amended complaint.’ Any threat against Mink

at that time was “hypothetical,” not “actual and

imminent.”

Finally, although the “No File” letter conceivably

might not bind other district attorneys, we have held

the “possibility” of future enforcement need not be

“reduced to zero” to defeat standing. Winsness, 433 F.3d

at 733. It is “not necessary for defendants [ | to refute

and eliminate all possible risk that the statute might be

enforced” to demonstrate a lack of a case or controversy.

Id. Since this case commenced, moreover, the office of

both the Attorney General and the District Attorney has

changed hands with no change in the government’s

position that the statute will not be enforced against

Mink.*

7. See In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th

Cir.2000).

8. Both the current Attorney General and District Attorney,

and their predecessors, firmly rejected any intent to prosecute

Mink under the statute before the district court, in their

submissions to us, and in oral argument. We take them at their

word.

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Mink, however, suggests the district attorney

fumbled away its disavowal by admitting in the answer

to the amended complaint that Mink faced an imminent

threat of prosecution. In the context of the procedural

posture of this case and especially in light of the district

attorney’s “No File” letter, this oversight is of no

significance. It is obvious no charges against Mink would

be pursued, and, as we have explained, “[n]Jothing in our

case law prevents government actors from responsibly

retreating from an ill-advised prosecution, in response

to controlling Supreme Court authority.” Winsness, 433

F.3d at 736.

The government should be encouraged, not

dissuaded, from assuring citizens that it will not pursue

prosecutions based on statutes that cannot be

constitutionally enforced. Given the realities of a public

law office, it is not surprising the ultimate legal

conclusion here—the case could not be prosecuted—

would be made at the highest policy levels. By jumping

the gun and filing a complaint for prospective relief, a

piaintiff cannot retain standing where the prosecutor

immediately concludes the statute cannot be

constitutionally enforced.

Based on the representations of the public officials

charged with enforcing the statute against Mink, we

agree with the district court that “no credible threat of

prosecution” existed when Mink filed his amended

complaint. Thus, he lacks standing to seek prospective

relief.

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b. Mootness. Even if we were to assume a credible

threat of prosecution existed before the lawsuit was filed,

we also conclude Mink’s claim for prospective relief is

moot. “[I]}t is not enough that a dispute was very much

alive when suit was filed, or when review was obtained,”

a live controversy must remain throughout the litigation.

Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78,

1108.Ct. 1249, 108 L.Ed.2d 400 (1990). Article III of the

Constitution limits us to live controversies that exist at

all stages of litigation, including appellate review.

Moongate Water Co. v. Dona Ana Mut. Domestic Water

Consumers Ass’n, 420 F.3d 1082, 1088 (10th Cir.2005).

When “intervening acts destroy a party’s legally

cognizable interest” in the lawsuit, the federal courts are

deprived of jurisdiction. /d.

Merely stopping the complained of conduct

ordinarily is not enough, however, to establish mootness.

“For good reason, courts are reluctant to deem a

controversy moot based merely on assurances from the

defendants that they will not engage in unlawful activity

again.” Winsness, 433 F.3d at 736 (citing United States

v. WT. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed.

1303 (1953) (“[VJoluntary cessation of allegedly illegal

conduct does not deprive the tribunal of power to

hear and determine the case, [in part because]... [t]he

defendant is free to return to his old ways.”)). Instead, a

defendant must show “no reasonable expectation that

the wrong will be repeated.” W.T. Grant Co., 345 U.S. at

633, 73 S.Ct. 894 (internal citations and quotations

omitted). But in many circumstances it is obvious

previously threatened conduct cannot reasonably be

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expected to recur. See, e.g., Tandy v. City of Wichita,

380 F.3d 1277, 1291 (10th Cir.2004) (finding a controversy

moot because a city had provided documents

demonstrating it had changed its practices to comply

with federal law and because “[nJothing in the record

suggests [the defendant] intends to resume its

discontinued policies... .”).

We recently discussed mootness in a First

Amendment declaratory judgment case challenging

Utah’s flag desecration statute. Winsness, 433 F.3d 727.

In Winsness, a Salt Lake City resident burned a symbol

onto a United States flag and hung the flag on his garage.

A neighbor reported the incident to police, and Winsness

was cited for flag-abuse. The flag was confiscated as

evidence. After the citation was filed, prosecutors

concluded the ordinance could not be constitutionally

enforced against Winsness and “immediately scuttled”

the case. The district attorney filed an affidavit with the

court assuring it that charges would not be pursued.

Based on that record, we concluded that “[e]ven if we

assume that a credible threat of prosecution existed

before this lawsuit was filed, the prosecutors’ affidavits

have rendered the controversy moot.” Winsness, 433

F.3d at 736. The government had “foresworn any

intention to bring criminal charges against individuals

who alter the flag for expressive purposes” and had

“categorically announcied]” the office would “bring no

prosecutions under the statute.” /d. at 736. We found

these assurances established mootness since the

government (1) had quickly repudiated the action

initially taken against Winsness, (2) its statements were

22a

Appendix A

made in sworn affidavits, and (8) it based its decision on

controlling Supreme Court precedent, making future

prosecutions unlikely.

These factors similarly cut against Mink. First, no

citation or formal charges were ever brought against

Mink. And prior to the filing of charges the district

attorney preemptively issued a legal opinion that

precluded prosecution. His opinion letter explained the

statute could not be constitutionally applied to the

conduct attributed to Mink, and, accordingly, charges

would not be filed in this matter.

Second, although the “No File” decision was not in

the form of an affidavit, the district attorney took an

unequivocal position (1) advising Mink in writing, and

(2) advising the court that Mink would not be prosecuted

under the statute now or in the future. We find

persuasive, as did the district court, the district

attorney’s repudiation of an intent to prosecute, and its

representation of the same to us on appeal.

Finally, the parties concede on appeal that Supreme

Court precedent makes enforcement of the Colorado

criminal libel statute unconstitutional under the facts as

alleged here. The parties have conceded Professor Peake

is a public figure, and well established case law requires

falsity and actual malice to prove libel. Gertz, 418 U.S.

323, 94 S.Ct. 2997. Moreover, the Colorado Supreme

Court has interpreted that statute to embody these

standards. People v. Ryan, 806 P2d 935 (Colo.1991).

Accordingly, the district attorney recognized the force

23a

Appendix A

of these precedents and his “No File” decision supports

our conclusion that the third Winsness factor has been

met in this case.

Despite these assurances, Mink contends the district

attorney’s disavowal is limited to the specific statements

made in the first three issues of The Howling Pig and

does not apply more broadly to the type of statements

that sparked this controversy or to those statements

which might appear in future editions of the publication.

In short, he claims that without a ruling that the

Colorado criminal libel law is unconstitutional, he may

be subject to prosecution in the future. We find this

argument unpersuasive. The analysis provided by the

attorney general and district attorney demonstrate their

legal reasons for not enforcing the statute in this case

would carry over to further statements of the type Mink

has subsequently made or intends to make. Although the

district attorney’s “No File” decision was based upon

the pending investigation, we see no reason his analysis

would not apply to subsequent statements that are

legally indistinguishable.

In short, we see no credible threat of prosecution

against Mink. The district attorney did what one would

hope from a public official: he “responsibly retreat|ed]

from an ill-advised prosecution, in response to

controlling Supreme Court authority.” Winsness, 433

F.3d at 736. Because standing and mootness are

jurisdictional and non-waivable, Moongate Water Co.,

420 F'3d at 1088, we need not consider the merits of

Mink’s First Amendment challenge to the Colorado

criminal libel statute in this case.

24a

Appendix A

B. Damages Claim under Privacy Protection Act

Mink also seeks damages under 42 U.S.C. § 1983 for

alleged violations of the Privacy Protection Act. The Act

creates a right of action for the improper seizure of media

materials:

Notwithstanding any other law, it shall be

unlawful for a government officer or employee,

in connection with the investigation or

prosecution of a criminal offense, to search for

or seize any work product materials possessed

by a person reasonably believed to have a

purpose to disseminate to the public a

newspaper, book, broadcast, or other similar

form of public communication, in or affecting

interstate or foreign commerce; but this

provision shall not impair or affect the ability

of any government officer or employee,

pursuant to otherwise applicable law, to search

for or seize such materials, if ... there is

probable cause.

42 U.S.C. § 2000aa.

Mink alleges his statutory rights were violated when

Greeley police entered his home and seized materials

relating to The Howling Pig. He does not, however, name

any of the officers who conducted the search.® Instead,

9. Mink initially sued both police officials and the City of

Greeley but voluntarily dropped both of those claims.

25a

Appendix A

he seeks a judgment against the deputy district attorney

for her role in reviewing the affidavit in support of the

search warrant, which he claims lacked probable cause.

Relying on the text of the statute, which makes it

unlawful “to search for or seize any work product

materials,” the district court dismissed the claim. Here,

Mink did not allege the district attorney directed,

controlled or participated in the search or seizure. Since

the statute includes no language covering predicate acts

by other officials, such as the legal review of the warrant

application, the district court concluded no liability

attached to the district attorney.

We agree. The plain language of the statute

precludes liability for a person who did not engage in a

search. In an analytically similar case, Citicasters v.

McCaskill, 89 F.3d 1350 (8th Cir.1996), the Eighth Circuit

concluded the statute covered only a defendant who

“directed, supervised, or otherwise engaged in the

execution of the warrant to such an extent that a finding

can be made that she ‘searched for or seized’ the

[materials].” Jd. at 1356 (emphasis added). In Citicasters,

the facts centered around the prosecutor’s actions taken

after the search warrant was issued and involved an

allegation that the prosecutor actively assisted in the

search. Here, by contrast, Mink has not alleged any

conduct that could be construed as assisting in the

warrant’s execution.

Accordingly, we affirm dismissal of this claim against

the deputy district attorney.

26a

Appendix A

C. Damages Claim Against the District Attorney

The most difficult issue in this case is Mink’s claim

for damages against the deputy district attorney based

on her review of the application for a search warrant.

The district attorney argues that this conduct is

protected by the doctrine of absolute prosecutorial

immunity. The district court agreed, concluding the

prosecutor acted as “an officer of the court” in a “quasi-

judicial” capacity to which absolute immunity applied.

1. Legal Framework

Absolute prosecutorial immunity is a complete bar

to a suit for damages under 42 U.S.C. § 1983. Imbler v.

Pachtman, 424 U.S. 409, 419 n. 13, 96 S.Ct. 984, 47

L.Ed.2d 128 (1976). The doctrine evolved from the

absolute immunity judges historically enjoyed for “any

judicial act done by them within their jurisdiction.”

Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 351, 20 L.Ed.

646 (1871).

Traditionally, the doctrine did not apply to other

public officials—such as police officers, governors, and

other executive officials—who were entitled only to

qualified immunity for actions performed in their official

capacity. Under the common lav’, the scope of immunity

for prosecutors was limited to suits for malicious

prosecution and defamation, although its reach in § 1983

damages cases was unclear. /mbler, 424 U.S. at 421, 96

S.Ct. 984.

27a

Appendix A

a. Supreme Court Framework. The Supreme

Court developed the modern doctrine of prosecutorial

immunity in § 1983 cases in a series of cases beginning

in 1976. In Jmbler v. Pachtman, the Court rejected the

argument that limited, or qualified, immunity would be

adequate to protect the prosecutor from the threat of

litigation that could shade their otherwise independent

judgment. Merely providing qualified immunity would

“prevent the vigorous and fearless performance of the

prosecutor’s duty that is essential to the proper

functioning of the criminal justice system.” 424 U.S. at

427-28, 96 S.Ct. 984. According to the Court, it was

“better to leave unredressed the wrongs done by

dishonest officers [of the court] than to subject those

who try to do their duty to the constant dread of

retaliation.” Jd. at 428, 96 S.Ct. 984 (quoting Learned

Hand in Gregoire v. Biddle, 177 F.2d 579, 581 (2d

Cir.1949)). Thus, prosecutors are absolutely immune for

those activities “intimately associated with the judicial

phase of the criminal process.” 424 U.S. at 430, 96 S.Ct.

984. To apply this standard, the Court crafted a

“functional approach” by which we examine only the

actions taken by the prosecutor “in initiating [ ] and in

presenting the State’s case” for trial. Jd. at 431, 96 S.Ct.

984.

The Supreme Court was careful to note, however,

that not every activity of a prosecutor involves initiating

and presenting a case. Absolute immunity does

not extend to “those aspects of the prosecutor’s

responsibility that cast him in the role of an

28a

Appendix A

administrator or investigative officer rather than that

of advocate.” Id. at 430-31, 96 S.Ct. 984 (emphasis added):

We recognize that the duties of the prosecutor

in his role as an advocate for the State involve

actions preliminary to the initiation of a

prosecution and actions apart from the

courtroom.... Preparation, both for the

initiation of the criminal process and for a

trial, may require the obtaining, reviewing,

and evaluating of evidence. At some point,

and with respect to some decisions, the

prosecutor no doubt functions as an

administrator rather than as an officer of the

court. Drawing a proper line between these

functions may present difficult questions, but

this case does not require us to anticipate

them.

Id. at 481 n. 33, 96 S.Ct. 984 (emphasis added).

Concluding the challenged conduct in /mbler fell on the

advocacy side of the spectrum, the Court granted the

prosecutors absolute immunity against the claim that

they had procured false testimony during the course of

a criminal trial.

The Supreme Court later extended the doctrine of

absolute immunity to some prosecutorial conduct

occurring before trial. In Burns v. Reed, 500 U.S. 478,

111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), a prosecutor was

accused of (1) eliciting false testimony in a probable cause

hearing that led to the issuance of a search warrant, and

29a

Appendix A

(2) advising police on inappropriate methods of

interrogating a suspect.

Regarding the probable cause hearing, the Court

concluded absolute immunity extended to “any hearing

before a tribunal which performed a judicial function”

and included the presentation of testimony in support

of an application for a search warrant. Jd. at 490, 111

S.Ct. 1934 (internal quotations omitted). “The

prosecutor’s actions at issue here—appearing before a

judge and presenting evidence in support of a motion

for a search warrant—clearly involve the prosecutor’s

role as advocate for the State, rather than his role as

administrator or investigative officer, the protection for

which we reserved judgment in Jmbler.” Id. at 491, 111

S.Ct. 1934 (internal quotations omitted) (emphasis

added).'®° The Court went on to observe, “since the

issuance of a warrant is unquestionably a judicial act,

appearing at a probable-cause hearing is intimately

associated with the judicial phase of the criminal

process.” Id. at 479, 111 S.Ct. 1934 (internal citations

and quotations omitted).

Burns, however, did not extend absolute immunity

to every aspect of the prosecutor’s legal advice to police.

The Supreme Court concluded that advising police in

the investigative phase of a criminal case could be too

10. Importantly, the Court read the plaintiff’s claim

narrowly and did not consider the prosecutor’s motivations in

seeking the search warrant or his actions outside the courtroom

in relation to his procurement of the warrant. See id. at 487-89

& n. 5, 111 S.Ct. 1934.

30a

Appendix A

far removed from the judicial process to warrant extending

immunity on that basis. It thus rejected the argument that

legal advice is categorically “of a judicial nature because

the prosecutor is, like a judge, called upon to render

opinions concerning the legality of conduct.” Jd. at 493, 111

S.Ct. 1934 (internal quotations omitted). Noting it had

previously rejected the extension of absolute immunity to

police officers, the Court found it “incongruous to allow

prosecutors to be absolutely immune from liability for

giving advice to the police, but to allow police officers only

qualified immunity for following [that] advice.” Jd. at 495,

111 S.Ct. 1934.

The Court also rejected the government’s argument

that “giving legal advice is related to a prosecutor’s role[ |

in screening cases for prosecution and in safeguarding the

fairness of the criminal judicial process.” Jd. As the Court

pointed out, “Almost any action by a prosecutor, including

his or her direct participation in purely investigative

activity, could be said to be in some way related to the

ultimate decision whether to prosecute.” Jd. “We do not

believe, however, that advising the police in the

investigative phase of a criminal case is so ‘intimately

associated with the judicial phase of the criminal process,’

that it qualifies for absolute immunity.” Jd. at 493, 111 S.Ct.

1934 (quoting Jmbler, 424 U.S. at 430, 96 S.Ct. 984).”

11. Justice Scalia, in a concurrence, would have gone further.

He concluded that there is “no absolute immunity for procuring

a search warrant” since that act is so far “removed from the

judicial phase of criminal proceedings than the act of a prosecutor

in seeking an indictment.” 500 U.S. at 504-05, 111 S.Ct. 1934

(quoting Malley v. Briggs, 475 U.S. 335, 342-43, 106 S.Ct. 1092,

89 L.Ed.2d 271 (1986)).

3la

Appendix A

To qualify for absolute immunity, then, an action

must be “closely associated with the judicial process.”

Id. at 495, 96 S.Ct. 984. Advising police on interrogation

methods or “the existence of probable cause” does not

qualify. Jd. at 487, 96 S.Ct. 984.

The Supreme Court refined the investigative/

advocacy distinction in Buckley v. Fitzsimmons, 509 U.S.

259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). In that case,

the plaintiff accused prosecutors of fabricating evidence

during the preliminary investigation of a crime. In

finding the pretrial investigation was not entitled to

absolute immunity, the Court emphasized, “We have not

retreated ... from the principle [articulated in Burns}

that acts undertaken by a prosecutor in preparing for

the initiation of judicial proceedings or for trial, and

which occur in the course of his role as an advocate for

the State, are entitled to the protections of absolute

immunity.” Jd. at 273, 113 S.Ct. 2606. But there is

“a difference between the advocate’s role in evaluating

evidence and interviewing witnesses as he prepares for

trial, on the one hand, and the detective’s role in

searching for the clues and corroboration that might give

him probable cause to recommend that a suspect be

arrested, on the other hand.” Jd. The Court ultimately

concluded that, where there is no common-law tradition

of immunity for a function, a prosecutor “neither is, nor

should consider himself to be, an advocate before he has

probable cause to have anyone arrested.” Jd. at 274 &

n. 5, 113 S.Ct. 2606.

32a

Appendix A

The Supreme Court’s final and most recent case on

prosecutorial immunity is similarly instructive.

In Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 139

L.Ed.2d 471 (1997), a prosecutor was sued for her (1)

preparation and filing of an information and motion for

an arrest warrant, and (2) attestation to the truth of the

facts contained in the accompanying affidavit. The Court

found absolute immunity for the first activity but not

for the second. It concluded the preparation and filing

of the information and motion “was part of the advocate’s

function,” id. at 129, 118 S.Ct. 502, since she was acting

as an advocate in “her drafting of the certification, her

determination that the evidence was sufficiently strong

to justify a probable-cause finding, her decision to file

charges, and her presentation of the information and the

motion to the court... indeed, even the selection of the

particular facts to include in the certification to provide

the evidentiary support for the finding of probable

cause.” Jd. at 130, 118 S.Ct. 502.

In contrast, attesting to the accuracy of the facts in

the affidavit, the prosecutor was acting as a complaining

witness rather than a lawyer. /d. at 129, 118 S.Ct. 502.

The key, according to the Court, was whether the task

“involved the exercise of professional judgment,” not

merely the review of the “truth or falsity of the factual

statements themselves.” Jd. at 130, 118 S.Ct. 502.

b. Tenth Circuit Framework. We have applied the

above Supreme Court precedent in a variety of contexts.

In Roberts v. Kling, 104 F.3d 316, 319 (10th Cir.1997),

for example, we found absolute immunity applied to a

33a

Appendix A

deputy district attorney who approved a criminal

complaint for prosecution. We emphasized, however, that

ours is a “continuum based approach” and the “more

distant a function is from the judicial process, the less

likely absolute immunity will attach.” Jd. at 318-19

(quoting Gagan v. Norton, 35 F.3d 1473, 1475 (10th

Cir.1994)). The “determinative factor is ‘advocacy’

because that is the prosecutor’s main function and the

one most akin to his quasi-judicial role.” 104 F'3d at 319.

But “absolute immunity may attach even to...

administrative or investigative activities when these

functions are necessary so that a prosecutor may fulfill

his function as an officer of the court.” Pfeiffer v.

Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th

Cir.1991). Thus, we have found absolute prosecutorial

immunity for (1) preparation and initiation of charges,

id.; (2) prosecuting civil and administrative enforcement

proceedings, Snell v. Tunnell, 920 F.2d 673 (10th

Cir.1990); and (3) investigating and filing a commitment

proceeding, Scott v. Hern, 216 F.3d 897 (10th Cir.2000).

c. Summary. As the above cases demonstrate,

there is no bright line between advocacy and

investigation. It is clear that a prosecutor’s courtroom

conduct falls on the advocacy side of the line. Buckley,

509 U.S. at 274, 113 S.Ct. 2606. And it is equally clear

that advocacy is not limited to filing criminal charges or

arguing in the courtroom. /d. at 272, 113 S.Ct. 2606. Thus,

especially when considering pre-indictment acts, it is

important to consider other factors, such as (1) whether

the action is closely associated with the judicial process,

34a

Appendix A

Burns, 500 U.S. at 495, 111 S.Ct. 1934, (2 whether it is

a uniquely prosecutorial function, id. at 491 n. 7, 111 S.Ct.

1934, and (3) whether it requires the exercise of

professional judgment, Kalina, 522 U.S. at 130, 118S.Ct.

502.

In sum, a prosecutor is entitled to absolute immunity

for those actions that cast him in the role of an advocate

initiating and presenting the government’s case.

Absolute immunity, however, does not extend to those

actions that are investigative or administrative in nature,

including the provision of legal advice outside the setting

of a prosecution. See Imbler, 424 U.S. at 430-31, 96 S.Ct.

984; Burns, 500 U.S. at 486, 493-94, 111 S.Ct. 1934.

2. Application

We now turn to whether absolute immunity applies

to the deputy district attorney’s review of the affidavit

in support of the search warrant in Mink’s case. For the

following reasons, we conclude the district attorney was

not wearing the hat of an advocate and, thus, is not

entitled to absolute prosecutorial immunity.

As a preliminary matter, the district attorney does

not contend she acted as an advocate “intimately

involved” in a judicial proceeding. Rather, she alleges

her role was limited to review and approval of the search

warrant application; she does not even contend she

evaluated whether probable cause existed to arrest or

press charges. At the time she reviewed the affidavit,

moreover, police had only the allegations of Professor

35a

Appendix A

Peake and had not yet confirmed the authorship of the

articles contained in The Howling Pig. It is obvious the

search of Mink’s residence was part of a continuing effort

to obtain evidence and the attorney’s review was, at

most, legal advice as to the sufficiency of the affidavit.

It is also clear that the district attorney was far from

filing charges at the time of the search, and subsequent

events show that the office came to believe the case could

not be prosecuted.

Second, the review of the affidavit cannot be said to

be a uniquely prosecutorial role. While it is laudable that

a legal review occur before the police proceed to a

magistrate for a warrant, the Supreme Court made it

clear in Burns that a legal review for the sufficiency of

evidence to support probable cause is not sufficient to

confer absolute immunity. Absolute immunity applies to

the “prosecutor’s role in judicial proceedings, not for

every litigation-inducing conduct.” Burns, 500 U.S. at

494, 111 S.Ct. 1934. And while it may at times be difficult

to discern the line between “investigation” and

“advocacy,” here we do not even have a case where the

prosecutor was preparing for her “role as advocate for

the State.” Buckley, 509 U.S. at 271, 113 S.Ct. 2606. No

one suggests that the district attorney was preparing

for a judicial proceeding in merely reviewing the

affidavit.

Finally, although the review of the affidavit can be

said to require the exercise of professional judgment,

that is true every time a prosecutor provides legal advice.

Under the Supreme Court’s functional approach, we look

36a

Appendix A

to which role the prosecutor is performing-advocate or

investigator. Here, the review of the affidavit squarely

falls on the side of investigatory legal advice, and not

advocacy before a judicial body. The deputy district

attorney played no role in preparing the affidavit, nor

was she involved in preparing, analyzing, and presenting

pleadings to a court. If she were, this would be quite a

different case.

We acknowledge this conclusion is complicated by

those cases where prosecutors have been absolutely

immunized for drafting, filing, and arguing in support

of an arrest or search warrant. See Kalina, 522 U.S. at

129-31, 118 S.Ct. 502(arrest warrant); Burns, 500 U.S.

at 487, 111 S.Ct. 1934 (search warrant). And the Supreme

Court has explicitly recognized “the issuance of a search

warrant is unquestionably a judicial act.” Burns, 500 U.S.

at 492, 111 S.Ct. 1934. In those cases, however, the

prosecutor was acting as an advocate-evaluating

evidence, preparing pleadings, and appearing in court.

It may be true that a lawyer’s more active involvement

in preparing a warrant application and presenting it in

court will confer absolute immunity. But in this case the

prosecutor’s function was not that of an advocate; her

function was to provide legal advice outside the

courtroom to aid a nascent investigation. The “premise

of Burns was that, in providing advice to the police, the

prosecutor acted to guide the police, not to prepare his

own case.” Buckley, 509 U.S. at 285, 113 S.Ct. 2606

(Kennedy, J., concurring). Here, the prosecutor was not

preparing her case. Accordingly, in these circumstances,

immunity does not attach.

37a

Appendix A

The district attorney urges us to consider her reliance

on Colorado law in support of a finding of absolute

immunity. Colorado law requires district attorneys to

“render, in their quasi-judicial capacity, legal advice to peace

officers, upon the request of such officers or of the court,

pertaining to the preparation and review of affidavits and

warrants for arrests, searches, seizures .. .” and confers

“immun{ity] from liability” under state law. Colo.Rev.Stat.

§ 20-1-106.1. As the district court correctly noted, however,

a state statute—even one requiring affirmative action—

cannot create immunity from a federal civil rights claim

where the functional analysis suggests otherwise. Howlett

v. Rose, 496 U.S. 356, 375-76, 110 S.Ct. 2430, 110 L.Ed.2d

332 (1990). And under the Supreme Court’s functional

analysis we look to what the attorney did—she provided

legal advice—and not to what state law requires.

For the foregoing reasons, we conclude the district

court erred in dismissing Mink’s damages claim on the

ground that it was barred by the doctrine of absolute

immunity. The deputy district attorney, however, may be

entitled to qualified immunity if she reasonably concluded

probable cause existed to support the warrant application,

or that the application of the Supreme Court’s First

Amendment cases to the criminal libel statute was not

clearly established under the circumstances here.

The district court did not address the application of

qualified immunity in these circumstances, and we decline

to do so in the first instance. Accordingly, we remand that

issue to the district court.

38a

Appendix A

IV. Conclusion

We AFFIRM the district court’s dismissal of Mink’s

claims for declaratory relief and for damages under the

Privacy Protection Act. We REVERSE the district

court’s decision to dismiss Mink’s claim for damages

based on absolute prosecutorial immunity, and

REMAND for consideration of the district attorney’s

claim for qualified immunity.

39a

APPENDIX B — MEMORANDUM ORDER AND

OPINION OF THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLORADO

DATED AND FILED OCTOBER 26, 2004

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Case No. 04-B-23 (CBS)

THOMAS MINK, and THE HOWLING PIG,

an unincorporated association,

Plaintiffs,

v.

KEN SALAZAR, in his official capacity as Attorney

General of the State of Colorado, ALM. DOMINGUEZ,

JR., District Attorney for the 19 Judicial District, in his

official capacity, and SUSAN KNOX, a Deputy District

Attorney working for the 19 Judicial District Attorney’s

Office, in her individual capacity,

Defendants.

October 27, 2004

MEMORANDUM ORDER AND OPINION

BABCOCK, Chief Judge.

The Plaintiffs in this case, Thomas Mink (“Mr.Mink”)

and The Howling Pig (““THP”), have filed a Motion for

Partial Summary Judgment. The Defendant Ken Salazar,

Attorney General of Colorado (“Attorney General”), and

40a

' Appendix B

the Defendant Susan Knox (“Knox”) have each filed

motions to dismiss and Ms. Knox has moved, in the

alternative, for partial summary judgment. In addition

to the briefs of the parties, I have received the Amici

Curiae briefs of the State of Colorado, the Colorado

Press Association and the Reporter’s Committee For

Freedom of the Press on the constitutionality of

Colorado’s criminal libel statute, Colo.Rev.Stat. § 18-13-

105 (“Libel Statute”), an issue the Plaintiffs have raised

in this case. The Motions are adequately briefed and oral

argument would not materially aid their resolution. For

the reasons stated below, I GRANT the Defendants’

Motions to Dismiss and DENY the Plaintiffs’ Motion for

Partial Summary Judgment.

I. The Complaint

The First Amended and Supplemental Complaint

(“Amended Complaint”) alleges the following.

In the fall of 2003, Mr. Mink, a student at the

University of Northern Colorado (“UNC”), began

publishing THP an internet-based journal concerned

with current events affecting the UNC community. Mr.

Mink created, maintained, and published THP using a

computer that he shared with his mother in his mother’s

house. Among other things, THP featured a regular

column from its purported editor, a fictitious character

named “Mr. Junius Puke.” The column included doctored

photographs of an actual UNC professor named Junius

Peake (“Professor Peake”). The Amended Complaint

alleges, “The editorial column attributed to ‘Professor

4la

Appendix B

Puke’ spoofs and parodies Professor Peake by

addressing subjects on which the real professor would

be unlikely to write, or through the assertion of views

diametrically opposed to those of Professor Peake.”

Amended Complaint, 5-6.

Professor Peake, not amused, contacted the District

Attorney’s office, launching an investigation into Mr.

Mink’s alleged calumny. The investigation encompassed

Mr. Mink’s personal computer, which the Greeley Police

Department seized from Mr. Mink’s residence pursuant

to asearch warrant reviewed by Ms. Knox and approved

by a magistrate, unidentified written materials of Mr.

Mink’s, and records and email communications

subpoenaed from Yahoo, Inc., which hosts THP’s web

site, pursuant to a court order sought by Ms. Knox and

issued by a court purs i7..t to Colo.Rev.Stat. § 16-3-301.1.

Under threat of a charge of criminal libel, Mr. Mink

allegedly stopped publishing THP for a time.

The computer has now been returned and two new

editions of THP have since appeared. The Amended

Complaint states, “The Howling Pig and Mr. Mink intend

to publish future issues containing articles that could be

construed as violating [the Libel Statute].” Amended

Complaint, 12. The District Attorney has assured that

no charges based upon the contents of the first three

editions of THP will be filed, but Mr. Mink fears

prosecution for defamatory materials that he may

publish in the future. Amended Compiaint, 13.

42a

Appendix B

The Amended Complaint contains statements to the

effect that Plaintiffs’ counsel “explained” to various

investigatory officials the unconstitutionality of their

actions and that a “reasonable prosecutor would have

known, or upon reasonable investigation could have

discovered, ... that Professor Peake was widely known

for publicly expressing his views and was a public official

or public figure.” Amended Complaint, 6. The Plaintiffs

allege, “Without intervention from this Court, Plaintiffs

will have to choose whether to risk criminal prosecution

or forego engaging in what they believe to be

constitutionally-protected expression.” Amended

Complaint, 14.

The Complaint asserts claims against the Attorney

General and A.M. Dominguez, Jr., in his official capacity

as District Attorney for the 19th Judicial District

(“District Attorney”), under 42 U.S.C. § 1983 and the

First and Fourteenth Amendments for infringement of

free speech (“First Claim”); against Ms. Knox under

42 U.S.C. § 2000aa et seg. for invasion of privacy (“Second

Claim”); against Ms. Knox under 42 U.S.C. § 1983 and

the First and Fourth Amendments for an unreasonable

search and seizure (“Third Claim”); and against Ms.

Knox under 18 U.S.C. § 2701 et seg. for review of

electronic communications without a search warrant and

without probable cause (“Fourth Claim”). The Plaintiffs

seek damages from Ms. Knox and a declaratory

judgment holding that the Libel Statute is

unconstitutional on its face.

43a

Appendix B

II. Ms. Knox’s Motion to Dismiss

Ms. Knox moves for dismissal of the three counts of

the Amended Complaint directed at her.

A. Second Claim

The Second Claim is predicated upon the Privacy

Protection Act, 42 U.S.C. § 2000aa (“PPA”), which states,

inter alia,

Notwithstanding any other law, it shall be

unlawful for a government officer or employee,

in connection with the investigation or

prosecution of 2. criminal offense, to search for

or seize any work product materials possessed

by a person reasonably believed to have a

purpose to disseminate to the public a

newspaper, book, broadcast, or other similar

form of public communication, in or affecting

interstate or foreign commerce; but this

provision shall not impair or affect the ability

of any government officer or employee,

pursuant to otherwise applicable law, to search

for or seize such materials, if—

(1) there is probable cause to believe that the

person possessing such materials has

committed or is committing the criminal

offense to which the materials relate:

Provided, however, That a government officer

or employee may not search for or seize such

44a

Appendix B

materials under the provisions of this

paragraph if the offense to which the materials

relate consists of the receipt, possession,

communication, or withholding of such

materials or the information contained

therein. ...

42 U.S.C. § 2000aa(a) (emphasis original).

Ms. Knox argues that the Plaintiffs have failed to

allege facts sufficient to state a claim under the PPA.

She construes strictly the volitional element of the PPA;

she did not “search for or seize” any work product

materials possessed by the Plaintiffs. The only actions

that the Amended Complaint attributes to Ms. Knox are

review and approval of the affidavit that provided the

basis for the search warrant. Because she was not

present during the execution of the search warrant at

the Mink residence, Ms. Knox asserts that her actions

cannot fall within the PPA’s purview.

The Plaintiffs argue that Ms. Knox comes within the

statute notwithstanding her absence during the search,

because, in passing the statute, Congress was accepting

an invitation extended by the Supreme Court in Zurcher

v. Stanford Daily, 4386 U.S. 547, 567, 98 S.Ct. 1970, 56

L.Ed.2d 525 (1978). They divine Congress’ intent by a

tenuous line—because the defendants in Zurcher,

against whom the Supreme Court found no cause of

action could be brought, included a district attorney who

might not have been present during the search at issue

(the decision does not say), Congress must not have

45a

Appendix B

intended to require a defendant’s physical presence

during the search. Whether or not Congress was

attempting to remedy the specific injustice that the

Plaintiffs perceive in Zurcher, no ambiguity in the statute

makes resort to such opaque legislative intent necessary.

United States v. Botefuhr, 309 F.3d 1263, 1279 (10th

Cir.2002).

Ms. Knox cites to dicta in Citicasters v. McCaskill,

89 F.3d 1350 (8th Cir.1996) for the proposition that

physical presence during the execution of the search

warrant is a prerequisite to liability under the PPA; a

similar argument made in that case was “well taken.”

Citicasters, 89 F.3d at 1356. The Citicasters court did

not, however, rely on the circumstance of the defendant’s

whereabouts. The rule enunciated by the Citicasters

court is whether the defendant “directed, supervised,

or otherwise engaged in the execution of the warrant to

such an extent that a finding can be made that she

‘searched for or seized’ ” the materials. Citicasters, 89

F.3d at 1356.

Ms. Knox’s absence during the search does not

dispose of the question one way or the other. However,

the Plaintiffs have not alleged any action that could be

construed as engagement in the warrant’s execution.

Nothing in the PPA or Citicasters indicates that review

of the probable cause for a warrant application, without

more, constitutes involvement in the execution of the

warrant sufficient to create liability. The language of the

PPA concerns itself with the search and seizure. Indeed,

a search warrant application is irrelevant to the

46a

Appendix B

operation of the PPA; the PPA “does not require an

application for a search warrant to describe any

exceptions to the Act.” Citicasters, 89 F.3d at 1356. I

conclude that the Plaintiffs have failed to state a claim

and the Second Claim must be dismissed.

B. Third Claim

Ms. Knox claims absolute immunity from the Third

Claim because, in reviewing and approving the affidavit,

she acted in a quasi-judicial function. See Jmbler v.

Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128

(1976). The Plaintiffs respond that Ms. Knox’s actions

amounted to legal advice to the police, a non-judicial

function, and do not justify absolute immunity. See Burns

v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547

(1991).

State prosecuting attorneys are entitled to absolute

immunity from Section 1983 actions for conduct

“intimately associated with the judicial phase of the

criminal process.” J/mbler, 424 U.S. at 430, 96 S.Ct. 984.

In Imbler, the Supreme Court held that a state

prosecuting attorney acting within the scope of his duties

in initiating and pursuing a criminal prosecution is not

amenable to suit under 42 U.S.C. § 1983. The Court

declined to distinguish with specificity those

prosecutorial activities that are merely administrative,

and do not enjoy absolute immunity, from those actions

that are immunized. /mbler, 424 U.S. at 431 n. 33, 96 S.Ct.

984. Subsequent Supreme Court decisions have clarified

somewhat the boundaries of Jmbler immunity. A

47a

Appendix B

prosecutor enjoys absolute immunity for preparing and

filing an information and for moving for an arrest

warrant, see Kalina v. Fletcher, 522 U.S. 118, 129, 118

S.Ct. 502, 1389 L.Ed.2d 471 (1997), but only qualified

immunity for acting as a complaining witness in averring

a complaint for arrest and its supporting affidavit,

see Kalina, 522 U.S. at 129-130, 118 S.Ct. 502.

Investigation of the evidence against a potential criminal

defendant prior to his arrest justifies only qualified

immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 275,

113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Preparation and

presentation of evidence at a probable cause hearing in

support of a search warrant application is absolutely

immunized, see Burns, 500 U.S. at 487, 111 S.Ct. 1934,

while advising police about interrogation techniques and

the sufficiency of cause for arrest is not, see Burns, 500

U.S. at 496, 111 S.Ct. 1934.

I am unpersuaded by the Plaintiffs’ claim that the

Burns decision ends the matter. The superficial

resemblance between Ms. Knox’s actions and those

extended qualified immunity in Burns is no stronger

than the resemblance Ms. Knox’s actions bear to the

conduct covered with absolute immunity. Taking the

Plaintiffs’ allegations as true, Ms. Knox can more

correctly be said to have “facilitated the issuance of a

search warrant,” see Burns, 500 U.S. at 487, 111 S.Ct.

1934, than she can be said to have been “providing legal

advice to the police,” see Burns, 500 U.S. at 492, 111 S.Ct.

1924. Nething in the Amended Complaint indicates that

Ms. Kmox discussed with police the legal advisability of

searcnimg the Mink residence or that she assisted the

48a

Appendix B

police in drafting the warrant in such a way as to increase

the likelihood that the magistrate would find probable

cause. Instead, the Plaintiffs allege only that Ms. Knox

“reviewed and approved the affidavit submitted to the

state district court in support of the warrant to search

the Minks’ home.” Amended Complaint, 16.

The Tenth Circuit, trying to derive a definite rule

from the Supreme Court’s decisions, has stated that “the

determinative factor is ‘advocacy’ because that is the

prosecutor’s main function and the one most akin to his

quasi-judicial role.” Roberts v. Kling, 104 F.3d 316, 319

(10th Cir.1997), cert. granted and judgment vacated on

other grounds, 522 U.S. 1025, 118 S.Ct. 623, 139 L.Ed.2d

604 (1997), aff'd on remand, 144 F.3d 710 (10th Cir.1998),

cert. denied, 525 U.S. 1139, 119 S.Ct. 1028, 143 L.Ed.2d

38 (1999). However, the Tenth Circuit has extended

absolute immunity to administrative or investigative

activities that do not, in a strict sense, constitute

advocacy before a tribunal “when these functions are

necessary so that a prosecutor may fulfill his function

as an officer of the court.” Pfeiffer v. Hartford Fire Ins.

Co., 929 F.2d 1484, 1490 (10th Cir.1991) (quoting Snell v.

Tunnell, 920 F.2d 673, 693 (10th Cir.1990)). Also, though

the Plaintiffs make much of the fact that no criminal

proceedings had commenced against Mr. Mink when Ms.

Knox reviewed and approved the warrant affidavit, as

Burns itself demonstrates, that happenstance is not

dispositive; “prosecutorial functions may also involve

some activities preliminary to the initiation of an action,

including actions away from the courtroom.” Roberts,

104 F'3d at 319.

49a

Appendix B

Indeed, no bright line emerges from the case law.

Instead, the Tenth Circuit has “applied a continuum-

based approach to these decisions, stating ‘the more

distant a function is from the judicial process and the

initiation and presentation of the state’s case, the less

likely it is that absolute immunity will attach.’ ” Gagan

v. Norton, 35 F.3d 1473, 1475-1476 (10th Cir.1994),

quoting Pfeiffer, 929 F.2d at 1490.

Ms. Knox’s review of the warrant affidavit was a

proximate (and commendable) precursor to the

presentation of the affidavit before the magistrate, an

undisputably quasi-judicial activity. Had Ms. Knox

herself presented the warrant affidavit to the magistrate

after reviewing and approving it, all of her actions

undoubtedly would have fallen within the immunity

extended in Burns and Roberts. I cannot see how her

delegation of the latter task to a police officer affects

her immunity for the former. It is not too much to

presume that the police brought the affidavit to Ms. Knox

for approval in her capacity as an “officer of the court.”

Pfeiffer, 929 F.2d at 1490.

The rationale underlying absolute prosecutorial

immunity counsels in favor of recognizing it in this case.

The /mbler Court explained that the immunity of a

prosecutor is based upon the same considerations that

underlie the common-law judicial immunities that judges

and grand jurors enjoy. /mbler, 424 U.S. at 422-423, 96

S.Ct. 984. Subjecting prosecutors to liability for

prosecuting unsuccessful cases would, the Court

reasoned, undermine performance of the prosecutor’s

50a

Appendix B

duties; the “public trust of the prosecutor’s office would

suffer if he were constrained in making every decision

by the consequences in terms of his own potential

liability in a suit for damages.” Jmbler, 424 U.S. at 424-

425, 96 S.Ct. 984. “Further, if the prosecutor could be

made to answer in court each time such a person charged

him with wrongdoing, his energy and attention would

be diverted from the pressing duty of enforcing the

criminal law.” Imbler, 424 U.S. at 425, 96 S.Ct. 984.

Police ought to be encouraged to bring warrant

affidavits to prosecutors before entreating magistrates.

Such a practice promotes reliability and judicial economy.

Prosecutors are expected to be as knowledgeable as

judges concerning the legal requirements of probable

cause and dare qualified to make the fundamentally

judicial determination that an affidavit does or does not

meet the legal standard. Prosecutors in such

circumstances must, if the practice is to produce just

results, be immunized from suit for their decisions as

are judges. And prosecutors ought not be discouraged

from performing such reviews by the prospect of suit.

An additional consideration for the /mbler Court was

the heightened difficulty an honest prosecutor would face

in asserting a qualified immunity defense because in a

vacuum, many decisions that a prosecutor makes can be

perceived as constitutional deprivations. /mbler, 424 U.S.

at 425-426, 96 S.Ct. 984. Qualifying a prosecutor’s

immunity “would prevent the vigorous and fearless

performance of the prosecutor’s duty that is essential

to the proper functioning of the criminal justice system.”

Sla

Appendix B

Imbler, 424 U.S. at 427-428, 96 S.Ct. 984. Of course, when

viewed in context, a prosecutor’s advocacy for the state

is often counterbalanced by the advocacy of the defense.

If a prosecutor presents a witness of dubious credibility,

for example, the defense is free to impeach that witness

through cross-examination. That countervailing force is

absent in this case. However, many adversarial acts of

prosecutors—such as presenting evidence for search

warrant applications, appearing before grand juries, and

swearing out criminal complaints—meet no resistance

from defense attorneys but warrant absolute immunity,

nonetheless because they are essential to the efficient

functioning of the criminal justice system.

Ms. Knox cites to Colorado Revised Statutes Section

20-1-106.1 (“Immunity Act”) as a basis of absolute

immunity. As state law, the Immunity Act cannot

immunize Ms. Knox from a 42 U.S.C. § 1983 claim. See

Howlett v. Rose, 496 U.S. 356, 376, 110 S.Ct. 2430, 110

L.Ed.2d 332 (1990). However, in the absence of clear

Federal law on the question, the Immunity Act provides

a persuasive understanding of what constitutes a quasi-

judicial act. It provides that, in the absence of bad faith,

prosecutors “shall be immune from liability for the

performance of” various “quasi-judicial” duties,

including examination and evaluation of an affidavit for

a search warrant “before such affidavit is submitted to

a judge.” Colo.Rev.Stat. § 20-1-106.1(1 and 2). This rule

is consistent with the ends outlined in Jmdler.

Ms. Knox is absolutely immune from liability on the

Third Claim.

52a

Appendix B

C. Fourth Claim

The Plaintiffs’ Fourth Claim is predicated upon a

provision of the Electronic Communications Privacy Act

(“ECPA”), 18 U.S.C. § 2703, which states, inter alia,

(a) Contents of wire or electronic

communications in electronic storage.—

A governmental entity may require the

disclosure by a provider of electronic

communication service of the contents of a

wire or electronic communication, that is

in electronic storage in an electronic

communications system for one hundred and

eighty days or less, only pursuant to a warrant

issued using the procedures described in the

Federal Rules of Criminal Procedure by a

court with jurisdiction over the offense under

investigation or equivalent State warrant.

A governmental entity may require the

disclosure by a provider of electronic

communications services of the contents of a

wire or electronic communication that has

been in electronic storage in an electronic

communications system for more than one

hundred and eighty days by the means

available under subsection (b) of this section.

(b) Contents of wire or electronic

communications in a remote computing

service.—(1) A governmental entity may

require a provider of remote computing

53a

Appendix B

service to disclose the contents of any wire or

electronic communication to which this

paragraph is made applicable ... (B) with

prior notice from the governmental entity to

the subscriber or customer if the

governmental entity— .. . (ji) obtains a court

order for such disclosure. .. .

The Amended Complaint does not allege how long Mr.

Mink’s email communications had been stored in Yahoo’s

electronic ‘storage system or whether Mr. Mink was

provided notice of the court order.

Section 2707 provides a right of action against those

who violate the ECPA “with a knowing or intentional

state of mind. ...” 18 U.S.C. § 2707(a). However, “A good

faith reliance on... a court warrant or order... is a

complete defense to any civil or criminal action brought

under this chapter or any other law.” 18 U.S.C. § 2707(e).

Ms. Knox argues that, just as her actions fell outside

the volitional element of the PPA, she did nothing to

violate the ECPA. Here again, the Amended Complaint

alleges only that Ms. Knox reviewed and approved the

affidavit that provided the basis for the court order by

which Yahoo was compelled to produce Mr. Mink’s email

communications. The Plaintiffs argue that but for Ms.

Knox’s approval of the affidavit, no disclosure would have

taken place and her participation in the events leading

up to the disclosure thus gives rise to liability.

54a

Appendix B

The but-for test that the Plaintiffs contemplate

would produce results that the Plaintiffs cannot intend.

Taken literally, it would apply to the clerk who typed

the order, the magistrate who apyroved it, and the notary

public who sealed it. In short, it would encompass

everyone but Ms. Knox; the police could more easily (and

inadvisably) have obtained the court order without first

going to Ms. Knox for approval. The but-for test is

untenable.

Notably, the Plaintiffs do not cite any authority. Ms.

Knox claims not to have found any case law on the

question. The volitional prohibition of the ECPA—

“require the disclosure”—is different from that of the

PPA—“search for or seize”—and analogy to the latter

is unhelpful.

For definitions of terms, Section 2711 of the ECPA

refers the reader to Section 2510, which, unfortunately,

leaves most of the volitional terms of the ECPA

undefined. As several courts have noted, the statute is

“famous (if not infamous) for its lack of clarity.” Steve

Jackson Games, Inc. v. United States Secret Serv., 36

F.3d 457, 462 (5th Cir.1994). The only volitional term

defined is “intercept,” which “means the aural or other

acquisition” of communications. 18 U.S.C. § 2510(4). One

court, looking to that definition in its attempt to interpret

the volitional element of Section 2701—“intentionally

access” an electronic communication facility—noted that

Section 2510(4) presents a further definitional problem;

“acquisition,” like “access,” is left undefined by the act.

United States v. Moriarty, 962 F.Supp. 217, 219

55a

Appendix B

(D.Mass.1997). In that case, the court resolved the

dilemma by looking to legislative history.

Section 2703 was part of the 1986 amendment to the

pre-existing Omnibus Crime Control and Safe Streets

Act of 1968 (“Wire Tap Act”), 18 U.S.C. 2510 et seq.,

which circumscribed Government interception of wire

and oral communications and applied, at the time, only

“where the contents of a communication can be

overheard and understood by the human ear.” 1986

U.S.C. Congressional and Administrative News 3555,

3556. In order to bring the Wire Tap Act to bear upon

“development of communications and computer

technology,” Congress passed the 1986 amendment,

intending to extend coverage to modern “large-scale

electronic mail operations, computer-to-computer data

transmissions, cellular and cordless telephones, paging

devices, and video teleconferencing.” /d. Recognizing

“that computers are used extensively today for the

storage and processing of information,” and particularly

intending to protect information “subject to control by

a third party computer operator,” the Senate Judiciary

Committee designed the ECPA tc extend existing limits

on Government and other third-party access of wire and

mail communications “to stored wire and electronic

communications and transactional records.” 1986

U.S.C.C.A.N at 3557.

It is not too much to infer that the Government action

prohibited by the ECPA is that prohibited by the Wire

Tap Act, namely, acquisition of protected information.

As the Moriarty court noted, the only difference between

S6a

Appendix B

“intercept,” as that term is used in the Wire Tape Act,

and “access,” as that term is used in Section 2701 of the

ECPA, is temporal; interception is acquisition

simultaneous with transmission while access is

acquisition of material already stored. Moriarty, 962

F.Supp. at 220. Likewise, “require the disclosure,” the

term at issue in Section 2703, is merely an extension of

the Wire Tap Act’s volitional element—acquisition—to

modern technologies. The Senate Judiciary reported

that “section 2703 provides requirements for the

government to obtain the contents of” a stored electronic

communication. 1986 U.S.C.C.A.N at 3592 (emphasis

provided). The term “obtain the contents” is used several

times in the report’s discussion of Section 2703, along

with the slightly varied, “access the contents.” Both of

these phrases discuss an activity in which Ms. Knox is

not alleged to have engaged.

With this legislative history in mind, it is perhaps

not surprising that decisions construing the volitional

language of Section 2703 of the ECPA have invariably

involved some active solicitation of the protected

information by the defendant. See Freedman v. Am.

Online, Inc., 303 F.Supp.2d 121 (D.Conn.2004) (two police

officers solicited from America Online, Inc. (“AOL”)

information stored electronically using a defective

search warrant); McVeigh v. Cohen, 983 F.Supp. 215

(D.D.C.1998) (Navy officer solicited user identification

from AOL); United States v. Reyes, 922 F.Supp. 818, 837

(S.D.N.Y.1996) (noting that Section 2703 applies to the

accessing of stored information). The Plaintiffs have not

offered any reason to depart from the common

57a

Appendix B

understanding of the ECPA. To give the statute the

application the Plaintiffs request would stretch the

volitional element well beyond the usage intended by

Congress.

This conclusion is also commended by the good-faith

defense provision of the ECPA, 18 U.S.C. § 2707(e),

which covers those who conduct a search in good-faith

reliance upon a warrant or court order. As the Plaintiffs

point out, applying that defense to Ms. Knox would

produce a temporal problem—Ms. Knox could not have

relied upon the court order before it was issued. The

Plaintiffs, however, cannot have it both ways. If the good-

faith reliance defense does not reach retrospectively,

then it makes no sense to extend liability back in the

first place. Put another way, Ms. Knox’s actions must

either fall within both the volitional and the defense

provisions of the ECPA or come under neither. Congress

could not have intended the result urged by the Plaintiffs

and the language of the statute does not require it.

I conclude that the Plaintiffs have failed to state a

claim and that their Fourth Claim must be dismissed.

III. Attorney General’s Motion to Dismiss

The Plaintiffs allege in the Amended Complaint that

no criminal charges are pending against them and that

the District Attorney has assured that no charges will

be filed. Nevertheless, they fear prosecution in the future

because they intend to continue violating the Libel

Statute. The Plaintiffs lack standing to preempt a

58a

Appendix B

potential prosecution. The Tenth Circuit has held that

“assurances from prosecutors that they do not intend to

bring charges are sufficient to defeat standing, even

when the individual plaintiff had actually been charged

or directly threatened with prosecution for the same

conduct in the past.” D.L.S. v. Utah, 374 F.3d 971, 975

(10th Cir.2004), citing Faustin v. City & County of

Denver, 268 F.3d 942, 948 (10th Cir.2001) and PETA v.

Rasmussen, 298 F.3d 1198, 1203 (10th Cir.2002). The

First Count is dismissed.

It is ORDERED that

1) Ms. Knox’s Motion to Dismiss [21-1] is GRANTED;

2) the Attorney General’s Motion to Dismiss [22-1] is

GRANTED;

3) the Plaintiffs’ Motion for Partial Summary Judgment

[32-1] is DENIED;

4) the case is DISMISSED; and

5) the Defendants are awarded costs.

Dated: October 26, 2004, in Denver, Colorado.

BY THE COURT:

s/ Lewis T. Babcock

Lewis T. Babcock, Chief Judge

59a

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

DENYING PETITION FOR REHEARING

FILED JULY 19, 2007

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 04-1496

(D.C. No. 04-B-23 (CBS))

THOMAS MINK; THE HOWLING PIG,

an unincorporated association,

Plaintiffs-Appellants,

v.

JOHN W. SUTHERS, in his official capacity as Attorney

General of the State of Colorado, KENNETH R. BUCK,

District Attorney for Colorado’s 19th Judicial District;

SUSAN KNOX, a Chief Deputy District Attorney working

for Colorado’s 19th Judicial District Attorney’s Office, in

her individual capacity,

Defendants-Appellees,

and

STUDENT PRESS LAW CENTER; SILHA CENTER

FOR THE STUDY OF MEDIA ETHICS; WORLD

PRESS FREEDOM COMMITTEE; ASSOCIATED

PRESS; BLOOMBERG NEWS; COLORADO PRESS

ASSOCIATION; DOW JONES & COMPANY, INC.;

MEDIA LAW RESOURCE CENTER; THE

REPORTERS COMMITTEE FOR FREEDOM OF THE

PRESS; COLORADO DISTRICT ATTORNEYS’

COUNCIL,

Amicus Curiae.

60a

Appendix C

ORDER

Filed July 19, 2007

Before O'BRIEN, EBEL, and TYMKOVICH, Circuit

Judges.

Appellants’ petition for rehearing is denied.

The petition for rehearing en banc was transmitted

to all of the judges of the court who are in regular active

service. As no member of the panel and no judge in

regular active service on the court requested that the

court be polled, that petition is also denied.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

by: [illegible]

Deputy Clerk