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Georgia Women Arrested for Criminal Defamation Wins Settlement Award

By Cynthia Counts and Brian Biglin

Criminal defamation statutes have long been unconstitutional. Yet in some states, unconstitutional laws remain on the books with a mere footnote to indicate that the law cannot be applied. What happens, then, when law enforcement invokes such laws are to punish speech, such as a non-threatening post on Facebook?

We recently obtained a $100,000 settlement for a Georgia woman whose ex-husband orchestrated her arrest – solely due to a Facebook post he disliked. In King v. King, et al., 5:17-cv-24 (MTT) (M.D. Ga.), the District Court issued an insightful order denying summary judgment to the two police officers involved in a "criminal defamation" arrest. 342 F. Supp. 3d 1364 (2018). One of the officers appealed to the Eleventh Circuit, but before the court took any action, the parties settled on terms favorable to plaintiff.

Plaintiff Anne King is a single mom who, one January day, was sick and taking care of her sick children and father. She asked the children's father, her ex-husband Corey King, if he could bring some medicine from the drugstore. He refused. She vented on Facebook:

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Corey King was a sheriff deputy, and warden of the county jail. He knew the county magistrate. As he testified, he felt "disrespected" by Anne so he spoke with the magistrate about Anne's post, and then with his colleague at the sheriff's office, Trey Burgamy. Officer King filed a complaint, and Officer Burgamy wrote up an incident report. The Magistrate summoned Ms. King to a probable cause hearing, at which Officer King testified about how the post was false. Though Burgamy had initially classified Ms. King's offense as harassment, the Magistrate opined that he believed it could be "Criminal Defamation." He invited the officers to swear out a warrant.

Burgamy then prepared and submitted an arrest application with a sworn affidavit claiming that Ms. King committed criminal defamation by "communicat[ing] false matter" and "derogatory and degrading comments directed at and about Corey King" in violation of the former O.C.G.A. § 16-11-40. That statute was abrogated by Williamson v. State, 249 Ga. 851 (1982), and formally repealed by Ga. L. 2015, p. 385, § 3-1/HB 252, effective July 1, 2015.

Burgamy's law enforcement handbook noted that the statute was held unconstitutional in 1982. The magistrate signed the warrant, and Anne was arrested and put in a squad car in broad daylight in front of the courthouse. She spent the day in jail, away from her kids. Her ex-husband, the jailer, stopped by to observe her behind bars. When Anne appeared in state court, the judge convinced the county solicitor to drop the charges.

Ms. King sued the officers. She brought First and Fourth Amendment claims under Section 1983 for false and retaliatory arrest. She also brought state tort claims for malicious prosecution. The district court denied summary judgment to Officer King on the state law claims, and denied summary judgment on both the federal and state law claims as to Burgamy, as he was the officer that submitted the unconstitutional warrant application.

In an important opinion, the District Court opined that Burgamy could be liable for the unconstitutional arrest under Section 1983. It rejected Burgamy's theory that he merely "followed orders" from the magistrate and thereby enjoyed "quasi-judicial" immunity, or a finding that the magistrate caused the constitutional violation, not him. In the court's view, Burgamy bore responsibility for the contents of his false warrant application, and the constitutional consequences. Burgamy was not entitled to qualified immunity, either, given "his critical role in the patently absurd, and unconstitutional, decision to arrest Ms. King." 342 F. Supp. 3d at 1377-78. Further, Ms. King established that Burgamy violated clearly established law as he subscribed a warrant affidavit containing knowingly false assertions, and sought arrest on the basis of a statute long held unconstitutional.

The court denied summary judgment to both officers on Ms. King's claims of malicious prosecution. It found that the jury could concluded that the defendants "jointly prosecuted Ms. King without probable cause. It further found that the state law defense of official immunity did not apply because Officer King was not acting in the performance of his official duties when he initiated the action against Ms. King, and Officer Burgamy, although acting in his official capacity, could be found to have acted "with actual malice or with actual intent to cause injury."

Burgamy filed an interlocutory appeal in the Eleventh Circuit. He again claimed that he was merely following orders from the magistrate and acting in a ministerial capacity in subscribing the arrest warrant. Before the Eleventh Circuit took any action, the parties settled. Ms. King received $100,000 and a public apology.

The case has generated considerable headlines because Ms. King was an ordinary person against whom the criminal justice system was weaponized solely because of something she said on social media. The facts indeed show a notable abuse of power, and blatant content-based punishment against speech. Close review of the district court docket and the parties papers confirm that rectifying even an egregious arrest like this is easier said than done; that officers and local governments will litigate even gross claims of abuse; and that plaintiffs must carefully plead and prosecute their claims to overcome the slew of immunities afforded officers. Indeed, officers will prevail on a claim of qualified immunity if they had probable cause to believe that any crime may have occurred. Thankfully, in a case such as Anne King's, the lack of probable cause was beyond dispute.

Cynthia Counts and Brian Biglin, of Duane Morris LLP, represented Anne King.

 
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