A Washington County sheriff’s deputy, a sheriff’s investigator and the county itself have been sued for civil rights violations after the arrest and jailing of a Sandersville, Georgia woman for an innocuous social media comment.

The alleged crime that prompted the arrest and imprisonment? Anne King had lamented on Facebook about her ex-husband’s refusal to bring their sick child medicine when she and both of their kids had the flu.

This was the actual post that led to her arrest:

Anne Boyd King – Feeling overwhelmed

That moment when everyone in your house has the flu and you ask your kids’ dad to get them (not me) more Motrin and Tylenol and he refuses.

The federal case, Anne King v. Corey King, Trey Burgamy and Washington County was filed recently in Georgia’s Middle District by Cynthia Counts, Ken Hodges and Andre T. Tennille III.

The attorneys issued this statement: “Our client, like all Americans, is entitled to post her thoughts and feelings on social media. The First Amendment guarantees this, and limits criminal penalties to narrow exceptions such as where the speech would provoke violence or incite a riot. Obviously, Ms. King’s speech embodied no such threat.”

Defendant Corey King is Ms. King’s ex-husband. He works about three miles from her house as a sheriff’s deputy, and he is commander of the Washington County Jail.

In comments about her post, several of Ms. King’s friends expressed their support for her, and one agreed to pick up the medicine and deliver it.  That friend, Susan Hines, also decried the ex-husband’s refusal and characterized him as a “POS.”

After becoming aware of the Facebook activity, Officer King demanded that Ms. King delete the post and comments. She did not do so.

The federal complaint alleges that Officer King and Burgamy, a sheriff’s department investigator, “then cooked up a scheme to have Ms. King charged, arrested and jailed.” First they filed an incident report in which King styled himself as the victim. Then they went to the county magistrate, with whom they work regularly, and got him to issue a notice demanding that Ms. King and Ms. Hines, appear for a warrant hearing.

On January 21, 2015, the women appeared before Chief Magistrate Ralph Todd. Officer King testified that he sought a warrant because of Ms. King’s derogatory statements on Facebook. Todd, who is not a lawyer, decided after the officer’s testimony that Ms. King and Ms. Hines had made “derogatory and degrading comments (about Corey King) … for the purpose of provoking a breach of the peace” and issued warrants for their arrest on criminal defamation charges. During the hearing, the complaint notes, the magistrate even threatened to “ban [Ms. King] from Facebook.”

As a matter of law, there is no such crime as criminal defamation in Georgia. The statute regarding that offense was declared unconstitutional 33 years ago. At the time the warrants were issued, criminal defamation was still listed in the official Georgia Law Enforcement Handbook that judges and police use. But right under the code it clearly states that the law was ruled unconstitutional in 1982. And it has since been officially repealed.

Ms. King was placed in a patrol car for a humiliating ride to the jail. At the jail, there were challenges processing the two women. The fingerprinting system requires a code for each detainee, but there was no code for criminal defamation (because there is no criminal defamation statute.) Nevertheless, Ms. King was jailed for four hours before bonding out for $1,000.

Later, Ms. King returned to court, appearing before a state court judge who, the complaint notes, agreed there was no basis for the arrest and added, “I don’t even know why we are here.”

The solicitor dropped the case but threatened other charges. In the months since, Officer King has threatened to use police authority again to have Ms. King charged with “willful contempt,” according to the complaint.

The federal lawsuit alleges that Officer King and Investigator Burgamy intentionally violated Ms. King’s civil rights and that she was the victim of false arrest, malicious prosecution and a conspiracy by Officer King and Investigator Burgamy to violate her First and Fourth Amendment Rights. The suit also alleges that the county’s failure to train its officers on the law “in the face of repeated incidents” like the King case constitutes deliberate indifference to civil rights.  

In comments to Atlanta's FOX 5, which recently broadcast a story on the case, Cynthia Counts noted, "This was so innocuous it was fairly shocking.

"Even if she did say something mean about him, what difference does it make? It's hard to imagine that anybody could think that this post is a basis for arrest."

A federal judge in Atlanta has refused to dismiss a federal civil rights suit against the city of Atlanta and Atlanta police that a citizen filed after his arrest for wearing a mask during a peaceful protest against a police shooting in Ferguson, Mo.. U.S. District Judge Leigh Martin May also rejected city lawyers' claims that the officers who detained Gates have immunity from liability. The plaintiff is represented by Cynthia Counts of Duane Morris, and the case is one of three similar 1983 civil rights claims filed by Counts and attorneys Dan Grossman and Gerry Weber. 

 

Protection for free speech rights in Georgia just got a lot stronger.

A SLAPP (Strategic Lawsuit Against Public Participation) lawsuit is intended to censor, intimidate or silence critics by burdening them with the cost of a legal defense until they abandon their criticism. Anti-SLAPP legislation is intended to address this abuse of free speech rights.

Georgia’s current anti-SLAPP statute was enacted in 1996 but was fairly narrow in scope, applying only to lawsuits involving statements made to government bodies or in connection with issues under consideration in official proceedings. It also contained a cumbersome verification requirement, which precludes application of the statute in federal courts. See The Royalty Network v. Harris, 756 F.3d 1351 (11th Cir. 2014).

But a new anti-SLAPP measure, HB 513, was passed by the Legislature this year and was signed into law April 26 by Georgia Gov. Nathan Deal. The push for a strengthened anti-SLAPP law was led by the entertainment industry, which increasingly has used Georgia for film and television production. Passage of the measure helps make Georgia attractive to the industry. HB513 would improve Georgia’s existing anti-SLAPP statute in several ways:

 ·         First, it broadens the scope of the statute to encompass “Any written or oral statement or writing or petition made in a place open to the public or a public forum in connection with an issue of public interest or concern” and “Any … conduct in furtherance of the exercise of the constitutional right of petition or free speech in connection with a public issue or an issue of public concern.” This language was borrowed from the California anti-SLAPP statute §425.16(e)(3)-(4), ensures that typical claims involving entertainment content would be covered by the statute.

·         Second, it contains a mandatory award of attorneys’ fees to the prevailing moving party on an anti-SLAPP motion;

·         Third, it provides that the denial of anti-SLAPP motion is immediately appealable; and

·         Fourth, it eliminates the verification procedure, which should help ensure that the statute applies in federal court.

What this means for media clients, and for anyone exercising their free speech rights in Georgia, is that deep pockets plaintiffs will have a much tougher time sustaining a groundless defamation claim. It is often that case in libel claims that plaintiffs will use the courts to chill speech and/or push defendants to settle just to avoid lengthy and expensive litigation. With the new anti-SLAPP measure, all discovery, with the possible exception of public figure discovery on the question of actual malice, will be stayed once an anti-SLAPP motion is filed, until that issue is decided.

A group of Georgia media lawyers and legislative media advocates worked together to draft and advance the bill. The attorney group included: Cynthia Counts of Duane Morris, Peter Canfield of Jones Day, and Tom Clyde and Lesli Gaither of Kilpatrick Townsend & Stockton. Media advocates included Ben Sheffner of the Motion Picture Association of America, Tom Harrold of Miller & Martin for MPAA, Michael Wall of Comcast, and Arthur “Skin” Edge for Turner Communications.

The new law takes effect July 1. 

 

 

             

                David and Goliath was how some media reports have characterized the data security enforcement action brought by the Federal Trade Commission against Atlanta-based LabMD. Few have had the temerity to go head to head with FTC.

                But in this case, chalk up a KO for David.                

               Administrative Law Judge Michael Chappell on Nov. 13 dismissed the FTC’s data-breach case against LabMD, concluding that the FTC had failed to prove any part of its case. The judge ruled emphatically that LabMD did not, as the FTC alleged, expose consumers who used its services to potential online theft of their personal information.

                The ruling in the 4-year-old case was a victory for Lab MD CEO Michael Daugherty, one of only a handful of business owners ever to challenge the FTC on privacy/security complaints. Daugherty became so frustrated by his experiences with the FTC and with Tiversa Holding Company, the cyber-security company that was the source of data the FTC used to build its complaint, that he researched and wrote a book about it. “The Devil Inside the Beltway” details his company’s debilitating experience with Tiversa and Tiversa’s use of its federal government connections.
                Because of repercussions from the data breach allegations, Daugherty had to wind down his blood-testing business and lay off some 40 employees.
                Tiversa responded to Daugherty’s book by first trying to prevent its publication and then by filing a libel suit against him. Cynthia Counts and Ken Argentieri of Duane Morris represent Daugherty in that litigation, which is pending in state court in Pennsylvania. Cause of Action represented LabMD in the FTC matter.
                At the center of the controversy was a file – identified as the 1718 file – used for insurance billing that contained names, date of birth and social security numbers of patients who used LabMD’s blood-testing services.  Tiversa contacted LabMD in 2008, claiming it had obtained the file through a then-popular file sharing software called LimeWire, which was often used to download and share music. LabMD confirmed that a copy of the software had been installed on an employee’s computer, without the company’s knowledge. That breach was cured, and Limewire was removed.
                Tiversa’s CEO, Robert Boback, offered pricey security remediation services, claiming that the compromised file was spreading around the internet among hackers, but Daugherty declined, unconvinced that such exposure had occurred. Information about the alleged data leak was subsequently passed – indirectly – by Tiversa to the FTC, which came after LabMD and ultimately filed its complaint in 2013.
                A former forensic analyst for Tiversa, Richard Wallace, emerged as a key witness in the FTC proceedings and figured prominently in the law judge’s opinion. Wallace, who worked for Tiversa for seven years, testified that he routinely fabricated information at the direction of Tiversa’s CEO to suggest that sensitive data belonging to businesses had been compromised and was being widely circulated around the internet when, in fact, it was not.
                If that tactic didn’t work, he testified, Boback would also call some of these potential customers and say “the FTC is going to be taking action against you if you don’t become clients.”
                In his ruling, Judge Chappell summarized the business model presented by the analyst:
                “Mr. Wallace testified that Tiversa’s business model was to ‘monetize’ documents that it downloaded from peer-to-peer networks, by using those documents to sell data security remediation services to the affected business, including by representing to the affected business that the business’ information had ‘spread’ across the Internet via peer-to-peer sharing networks, when such was not necessarily the case, and by manipulating Tiversa’s internal database of peer- to-peer network downloads (the ‘Data Store’) to make it appear that a business’ information had been found at IP addresses belonging to known identity thieves.”
                The testimony tended to support the opinions Daugherty expressed throughout his book.
                According to Wallace, who testified under a Department of Justice grant of immunity, the private data never actually was circulated outside Tiversa. Instead, it was spoofed in a way that made it appear that individuals already known to law enforcement as “bad actor” hackers had secured copies. 
                Wallace testified this was a scare tactic that added "spread" to the supposed damage – and created a "wow factor." 
                "So, to boil this down, you would make the data breach appear to be much worse than it actually had been?" Judge Chappell asked. 
                "That's correct," Wallace responded. 
                Following Wallace’s testimony, TIversa CEO Boback told CNN that the revelations were "baseless" and came from an ex-employee still angry for being fired. "This is an overblown case of a terminated employee seeking revenge," Boback said. 
                In his order, Judge Chappell clearly did not share that view: “Based on Mr. Wallace’s forthrightness in response to questioning, and his overall demeanor observed during his questioning, Mr. Wallace is a credible witness.”
                Meanwhile, he was less convinced about the truthfulness of the Tiversa CEO: Based on “observation of Mr. Boback’s overall demeanor during the June 7, 2014 video deposition," including his “evasive[ness] and lack[] [of] forthrightness in response to questioning…Mr. Boback is not a credible witness concerning LabMD, the 1718 File, or other matters material to the liability of Respondent.”