Interesting Civil Case re Alleged CP and Retaliation

Miller v. Mitchell, No. 09--2144 (3d Cir. Mar. 17, 2010) (published).

Kids had pics on cell phones at school: minors in bathing suits, bras, towels, etc. District attorney gave them a choice: either complete an "education program" or face felony charges. Parents sued, raising a constitutional, retaliation claim. Third Circuit affirmed grant of preliminary injunction enjoining the district attorney from bringing charges.

To state a claim under § 1983, a plaintiff must show that the defendant, under color of state law, deprived him/her of a federal constitutional or statutory right. The kids and parents (plaintiffs here) based their claims on retaliation for the exercise of constitutionally protected rights, an action which is itself a violation of constitutional rights and actionable under 1983.

To prevail on the retaliation claim, the plaintiffs had to show that they engaged in constitutionally-protected activity; (2) that the government responded to this activity with retaliation; and (3) that the protected activity caused this retaliation. At the preliminary injunction stage, the plaintiffs only needed to show a reasonable probability that their claims would succeed on the merits.

The court began by focusing on the act of retaliation urged by the plaintiffs and found two possibilities based on the plaintiffs’ complaint and argument: (1) the district attorney retaliated against the plaintiffs when he threatened prosecution; and (2) a future prosecution would be an unconstitutional act of retaliation. The court found that only the second theory was viable.

The court then agreed with the district court that the plaintiffs had shown a reasonable likelihood of establishing that coercing participation in the "education program" violated one of the parent's Fourteenth Amendment right to parental autonomy and one of the minor's First Amendment right against compelled speech (there was a required essay about the "wrongness" of the pictures).

The court agreed that an individual district attorney may not coerce parents into permitting him to impose on their children his ideas of morality and/or gender roles. An essential aspect of a parent's right to raise their child is the responsibility to inculcate moral standards, religious beliefs, and elements of good citizenship. The district attorney interfered with this right. And while it may have been constitutionally permissible for the district attorney to offer the "educational program" voluntarily, he was not free to coerce attendance by threatening prosecution.

The court concluded that one of the parents was likely to succeed in showing that the "education program" impermissibly usurped and violated her fundamental right to raise her children without undue state interference.

The court also agreed with the district court, at this preliminary stage, that one of the minors likely could show that the "education program" would violate her First Amendment right to be free of compelled speech. In that program, the minor would be required to explain why her actions were wrong (the court presumed on moral, rather than legal, grounds) in the context of a program purporting to teach what it means "to be a girl," "sexual self-respect," and "sexual identity."

The court saw a fundamental difference between such a requirement and the often used (and constitutionally sound) requirement in preindictment or pre-trial diversion programs that a potential defendant acknowledge responsibility for his/her criminal actions or admit wrongdoing.

It was uncontroverted that the district attorney would not have brought criminal charges had the minor attended and completed the program. While every offer of a pre-indictment diversionary program presents a choice potential defendants must make, and a prosecution brought after the offer of diversion is refused ordinarily is not considered retaliation, the difference was that the decision not to attend the program here was constitutionally protected.

The court could discern no indication from the record that the district attorney had any evidence that this minor ever possessed or distributed the photo at issue. She had to choose between asserting her constitutional rights and facing prosecution based not on probable cause but as punishment for exercising her constitutional rights, or forgoing those rights and avoiding prosecution. This choice was unconstitutional. While the government has broad discretion as to whom to prosecute, the decision to prosecute may not be based on arbitrary classifications, including the exercise of protected statutory and constitutional rights.

At this preliminary stage, the court concluded that the plaintiffs had shown a likelihood of success on their claims that any prosecution would not be based on probable cause that the minor committed a crime, but instead in retaliation for the minor's exercise of her constitutional rights not to attend the "education program." The court affirmed the grant of a preliminary injunction and remanded for further proceedings.

In closing, the court noted that its decision does not open the door to federal courts acting as screening mechanisms for state prosecutions. This case presented the unique circumstance of a prosecutor revealing unequivocally that a prosecution would be brought solely in response to a potential defendant’s exercise of a constitutional right. And as the Supreme Court has noted, these unambiguous admissions are likely to be rare.