petitions of the week
By Kalvis Golde
October 14, 2022
at 6:10 p.m.
The Petitions of the week section highlights a selection of certificate petitions recently filed in the Supreme Court. A list of all the petitions we monitor is available here.
In a case that prompted satirical newspaper The Onion to file its first-ever amicus court brief in the Supreme Court, an Ohio man sued police for violating his constitutional rights when they arrested him for creating a Facebook page parodying the local police department. This week, we highlight cert motions that ask the court to consider, among other things, whether these officers are entitled to qualified immunity.
Anthony Novak, a resident of Parma, Ohio, created a Facebook page with the same name, cover photo, and profile photo as the city’s police department page. In the 12 hours Novak’s page was online, it went viral with six satirical posts announcing, for example, a new hiring initiative “strongly encouraging minorities not to apply” and a fair “no, it’s no” during which residents could remove their name from the sex offender registry by completing a series of puzzles.
After obtaining a warrant to investigate the page’s owner, police arrested Novak under an Ohio law that makes it a crime to “disrupt, disrupt, or obstruct” police operations. Novak was acquitted at trial. He then sued the officers who arrested him for violating his First Amendment right to free speech and his Fourth Amendment right to freedom from unreasonable search and seizure.
The United States Court of Appeals for the 6th Circuit granted the officers qualified immunity. Before deleting the page, Novak had copied a disclaimer posted on the department’s real Facebook page exposing the fake account and deleted user comments that his own page was a parody. Because no court case has “clearly established” that these actions are protected speech, the 6th Circuit said, officers “could reasonably believe that some of Novak’s Facebook activity was not parody.” protected by the First Amendment.
In Novak v. City of Parma, Ohio, Novak asks the judges to clarify when qualified immunity is available if the probable cause defense is based on the parole. He argues that his arrest was in retaliation for his speech and that the officers’ conduct was a clear violation of the Constitution that lacked qualified immunity. Novak also points out that the 6th Circuit initially sided with him at an earlier stage in the case: “Imagine if The Onion,” Judge Amul Thapar wrote, “were bound to deny that parody headlines. .. are, in fact, false”.
In response to that appeal, The Onion filed an amicus brief in support of Novak’s motion against the subsequent decision of the appeals court for the officers. Urging the court to take up the case, the magazine told the judges that the 6th Circuit’s decision “threatens to gut a form of rhetoric that has existed for millennia, which is particularly powerful in the realm of political debate, and that, purely incidentally, forms the basis of The Onion writers’ paychecks.
A list of featured petitions from this week is below:
Donziger v. United States
22-274
Problems: (1) Does Federal Rule of Criminal Procedure 42(a)(2) authorize judicial appointments of junior executive officers; and (2) if so, whether such appointments violate the appointment clause of Article II, Section 2 of the Constitution.
Pavlock v. Holcomb
22-282
Problems: (1) whether “judicial decision-making” under the Fifth and 14th Amendments is a recognizable cause of action; and (2) whether a property owner who is deprived of property pursuant to a state court order can seek a prospective injunction in federal court to end encroachment on his property by officers of the State acting under the authority of this decision.
Novak v. City of Parma, Ohio
22-293
Problems: (1) If an officer is entitled to qualified immunity for the arrest of an individual solely on the basis of speech parodying the government, so long as no case previously held the particular speech is protected; and (2) whether the court should reconsider the doctrine of qualified immunity.
Ontario County, New York v. Gunsalus
22-294
Publish: Did the United States Court of Appeals for the 2nd Circuit err in refusing to extend the detention of BFP c. Resolution Trust Corp. to a lawfully conducted tax foreclosure, where New York tax foreclosure law provides for adequate notice, opportunity to remedy, and judicial review of the process, and where there is no evidence of a clear and manifest intent on the part of the Congress to allow 11 USC § 548 to impinge on significant state interests in securing real estate titles and collecting property taxes.