Police Officers Aren’t Liable For Investigating Cyberstalking and Revenge Porn–Keaton v. Hannum

Keaton is an Indiana lawyer who was charged with stalking and otherwise harassing his ex-girlfriend, Zook (then a law student). When she broke it off, Keaton continued to contact her. When she changed her phone number, he engaged a private investigator to send a fax to her landlord asking for her number. He also continued to contact her via email. Zook told the Dean of Student Affairs at Indiana University School of Law, who approached Keaton, but Keaton took a dim view of anyone’s authority to stop him from contacting Zook:

[y]ou are not in a position to ask me to retain our mutual contact and you have been deceived . . . I know Ms. Zook, and I know how she can spin a story.

Zook then approached Indiana University Police Officers, who advised her to tell Keaton to stop emailing her. Keaton took a similar approach when Zook asked him to stop emailing her:

That’s fine. . . . You are in contact with the police because I sent you an email. That’s a laugh. There’s nothing wrong with sending someone an email.

Keaton also threatened to email Zook’s current boyfriend with details about Zook’s and Keaton’s relationship:

I want him to know things. [I] was willing be [be] persuaded not to, if you were ready to be a moral human being. You are not you have threatened me with the policy.

Keaton then sent Zook a series of emails escalating his threat to communicate with Zook’s current boyfriend. Zook forwarded these emails to IUPD. The police contacted Keaton and reiterated that he should cease communicating with Zook and her current boyfriend. Keaton again responded that sending emails was not against the law and that he could “speak to anyone he wanted” concerning Zook. He also mentioned that he had sexually explicit photographs of Zook. It appears that he eventually ended up posting some of these pictures. In a footnote, the court notes that his denial that he posted the pictures was at best equivocal and with respect to one set of pictures, merely that he did not post the photos during the time period at issue.

Keaton continued to email Zook, and several instances made statements that sounded like suicide threats. While he ceased contacting Zook for a time, he resumed again, sending emails and also messaging her from 17 different Facebook accounts. He sent her approximately 350 messages between November and April 2010. Zook again contacted IUPD regarding Keaton’s numerous contacts and threats; she also applied for a protective order.

Ultimately IUPD Officers prepared a probable cause affidavit and forwarded it to the prosecutors. A prosecutor determined that probable cause existed to charge Keaton with stalking. A warrant was issued and charges were filed. For reasons that are not clear from this order, the charges against Keaton were ultimately dismissed.

Keaton, proceeding pro se, brought a section 1983 lawsuit. Predictably, Keaton’s section 1983 claims fail. One of the officers wasn’t directly involved in preparing the affidavit and claims against her are dismissed. As to the other officer, he’s off the hook to the extent the facts and circumstances within his knowledge were sufficient to support a reasonable conclusion that Keaton committed the crime of stalking, intimidation, or harassment. In addition, there was no evidence that the detective made any false statements in his probable cause affidavit.

Stalking in Indiana consists of a course of conduct:

involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened, and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened.

Harassment is defined as “repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and which actually causes [such distress].”

The court notes that stalking does not require in-person contact or a threat of physical violence. Keaton argued that Zook could have blocked his repeated contacts, but the court says the law:

does not require an alleged stalking victim to take affirmative steps to protect herself from her stalker.

In any event, the court says such steps would have been ineffectual—Keaton used multiple email and Facebook accounts to message her.

Keaton also argued that the officer should have attached all of the communications, should not have relied on hearsay (i.e., Zook’s account), and that in any event, Keaton was entitled to continue to contact her as he saw fit. The court rejects these arguments, and says that the last one “defies understanding.” In fact, the court says, Keaton’s arguments are frivolous, given the context of his emails.

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Yikes. Keaton’s actions are unhinged at best, and it’s tough to see how any judge would have a sympathetic ear to his claims, much less find that he stated a cause of action. Chutzpah alert: Keaton also sued Zook in the lawsuit, but the court in a separate order dismissed the claims against her since she’s not a government actor and there was no evidence she had conspired with the investigators.

I blogged recently about another cyberstalking/revenge-porn case where the defendant unsuccessfully tried to assert a First Amendment challenge. (“Conviction for Cyberstalking & Revenge Porn Survives First Amendment Challenge”.) The conduct in this case was in the same genre, and most importantly was an ongoing, repeated course of conduct. The one difference is that in the Sayer case, there was a physical threat, albeit caused by the defendant sending people via ads to the victim’s house. That element is less clearly present here, and the case raises the question of whether something less than a physical threat suffices. I’m inclined to say yes, but this could change the First Amendment framework somewhat. (Cf. Brewington v. State, involving a public figure, and discussed by Professor Volokh here: “First Amendment protects speech that threatens to expose judges to “hatred, contempt, disgrace, or ridicule””. It’s also worth contrasting this case with E.L. v. R.L.M., a New Jersey case where a court set aside an anti-harassment order based on emails exchanged between ex-spouses; there the court hinted that there was a legitimate reason for the parties to communicate, mainly to coordinate shared custody of their children.)

Interestingly, court does not detail why the charges against Keaton were ultimately dropped. In any event, the uncertainty in the law probably warranted summary judgment based on qualified immunity.

Pro-tip: First Amendment merits aside, as a lawyer, I would avoid the “I have an absolute right to contact my ex” argument. Doubly so, when your email exchanges say things like: “hell gapes open for you” and you’ve threatened to publish explicit photographs of your ex.

Case citation: Keaton v. Hannum, 12-cv-00641 (S.D. Ind. Mar. 11, 2014)

Related posts:

Conviction for Cyberstalking & Revenge Porn Survives First Amendment Challenge

Contacting a Person’s Facebook Friends Isn’t Stalking–People v. Welte

Dead Sea Scrolls Impersonation Case Convictions Partially Affirmed

Ill-Advised Student YouTube Video Leads to Conviction For Misusing Computerized Communication System–In re Kaleb K.

California’s New Law Shows It’s Not Easy To Regulate Revenge Porn (Forbes Cross-Post)

Facebook Posting That Someone Has Herpes Is Criminal Harassment–Pennsylvania v. Cox

Court Denies Restraining Order Against Ex-Boyfriend Who Threatened to Post Revenge Porn — EC v. CBT

New Jersey Appeals Court Reverses Anti-Harassment Order Based on Emails – E.L. v. R.L.M

Court Finds Juvenile Delinquent Based on Allegedly Offensive Instant Messages — In re Alex C.

Sending Politically Charged Emails Does Not Support Disturbing the Peace Conviction — State v. Drahota

Sixth Circuit: Email and Phone Advocacy Campaign Can Violate the Computer Fraud & Abuse Act — Pulte Homes v. LIUNA

Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a “True Threat” — US v. Jeffries

Federal Prosecution Over “Threats” on Craigslist – US v. Stock

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