On July 26, 2018, the United States Court of Appeals for the Eighth Circuit issued a published opinion in Ross v. City of Jackson, Missouri, in favor of Appellant James Ross, a client of the William & Mary Appellate and Supreme Court Clinic. The opinion was a unanimous decision, authored by Judge Jane Kelly and joined by Judges James B. Loken and Raymond W. Gruender. The opinion can be read here.
Mr. Ross was arrested at his former place of work without a warrant for “making a terrorist threat,” based solely on a Facebook comment he wrote expressing his support for gun control. The comment was made in response to a Facebook friend posting pro-gun pictures of different guns and explaining what they are used for. Mr. Ross commented sarcastically, asking “Which one do I need to shoot up a kindergarten?” The police arrested him the next day without investigating to see if Mr. Ross’ comment was a true threat. Despite the police concluding that Mr. Ross’ charges were unsupportable in the initial interview, Mr. Ross was charged, held in custody, and only released several days later when he posted bail.
Mr. Ross sued police officers for violations of his First and Fourth Amendment rights. The district court granted the defendants’ motion for summary judgment, concluding that officers were entitled to qualified immunity. According to the court, the police officers could have reasonably interpreted Mr. Ross’s political comment as a true threat, and therefore the comment was not protected speech and his First Amendment rights had not been violated. The court also found that Mr. Ross’s Fourth Amendment rights had not been violated because police officers had at least arguable probable cause to make a warrantless arrest.
The primary legal issues in the case were whether a law enforcement officer violates clearly established First and Fourth Amendment law by arresting a person for posting a satirical comment regarding his opinion on gun control on the internet. Mr. Ross argued that the First Amendment provides robust protections for political speech such as Mr. Ross’s comment. Mr. Ross also argued that under the Fourth Amendment, police officers must have probable cause to arrest someone without a warrant.
The Eighth Circuit reversed the district court’s decision to grant summary judgement, finding that there was no “arguable probable cause” that would have justified Mr. Ross’ arrest. At the time of the arrest, there was not sufficient evidence to lead a reasonable person to believe that Mr. Ross had made a terrorist threat. The Court stated that the police did not attempt to conduct the minimal further investigation required to determine if Mr. Ross’ comment was a true threat. Furthermore, once they did investigate Mr. Ross’ comment, the police found that it was not a threat.
Laura Bladow, J.D. ’18 a third-year law student at William & Mary at the time of argument, argued the case with the support of Kiren Chauhan, J.D. ’18. Past Clinic members Christine Anchan, J.D. ’17, and Carol Lewis, J.D. ’17, were primarily responsible for the briefing. Students in the clinic practice under the supervision of Adjunct Professor Tillman J. Breckenridge, a partner at Bailey & Glasser LLP and director of the Appellate and Supreme Court Clinic.
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