Attorney for officer in Exodus song lyrics case seeks suit dismissal

An attorney representing the Muhlenberg County police officer and Muhlenberg County, who are being sued by the American Civil Liberties Union, has filed papers in U.S. District Court, asking that the lawsuit be dismissed.

In response, ACLU attorneys who sued on behalf of Muhlenberg County resident James Evans restated their argument that Officer Michael Drake filed a probable cause affidavit against Evans, while making “materially false statements” that led to Evans’s arrest on a charge of felony terroristic threatening.

 Evans was arrested on Aug. 26 and held in jail for eight days, after officers from several law enforcement agencies began investigating a post Evans placed on his Facebook page Aug. 24. The post contained lyrics from the song “Class Dismissed: A Hate Primer” by the metal band Exodus. The lyrics are about school shootings and are written from the perspective a student committing a mass shooting.

The lyrics posted by Evans included: “Student bodies lying dead in the halls/A blood splattered treatise of hate/Class dismissed is my hypothesis/Gun fire ends the debate … My hate primer’s the result of my rejection/You’ll die for it, and I’ll die for thee.”

The lyrics were posted without attribution to the band or the song title. The ACLU complaint says officers from several agencies began investigating on Aug. 24, and at least some investigators determined the post contained song lyrics, and that Evans had posted lyrics in the past without attributing the lyrics to the song or songwriter.

Evans was interviewed by Central City police, who did not file any charges against him. Drake, who is a school resource officer for the Muhlenberg County Police Department, filed his affidavit after Central City police conducted their interview; the affidavit says Evans “committed the offense of Terroristic Threatening, to wit: by threatening to kill students or staff at school.”

The charge against Evans was eventually dismissed. The ACLU complaint says Evans suffered malicious prosecution and suffered “a deprivation of his liberty” when he was jailed for eight days.

In his motion to dismiss, Justin Schaefer, of the Louisville law firm of Schiller, Osbourn, Barnes & Maloney, says while it’s true Evans had posted lyrics before Aug. 24, “none of those prior lyrics had the threatening tone and pure vitriol that fervently clung to (Evans’) August 2014 post.

“As such, (Drake’s) concerns about (Evans’) intentions were reasonably aroused,” Schaefer writes in his motion. The motion says Drake reviewed Evans’ “criminal history,” which “included prior charges of terroristic threatening, menacing” and other charges not related to threats.

“Given these facts, and the very loose investigations conducted by some other investigating agencies, Mike Drake believed (Evans) had, in fact, intended his post to be a true threat,” Schaefer writes, and Drake “submitted his findings” to county attorney Darris Russel, “who agreed with Drake and asked Drake to sign an Affidavit/Criminal Complaint against” Evans.

Schaefer argues Drake receives “qualified immunity,” which means he can’t be sued for his conduct “under the color of the law, as long as that conduct does not violate clearly established rights of which a reasonable person in their position would have known.” Whether an official receives qualified immunity depends upon the “objective legal reasonableness” of their actions,” given the laws that were in place at the time.

“Here, Mike Drake had probable cause to seek out a warrant for (Evans’) arrest and prosecution for terroristic threatening,” Schaefer writes.

Drake did not specify which degree of terroristic threatening he was seeking on his affidavit, but the arrest warrant issued by District Court was for first-degree terroristic threatening, Schaefer’s motion says. State law says that to qualify as first-degree terroristic threatening, a threat must include a false statement that a person “has placed a weapon of mass destruction” on public property or school property. A person who places a simulated weapon of mass destruction can also be charged with first-degree terroristic threatening.

Schaefer argues a charge for a criminal offense “may include with it all lesser included charges,” such as the lesser charges of second- or third-degree terroristic threatening. Evans’ Facebook post qualified as third-degree terroristic threatening, Schaefer writes, which state law defines as threatening “to commit any crime likely to result in death or serious physical injury to another person, or likely to result in substantial property damage” or when a person “intentionally makes false statements for the purpose of causing evacuation of a building” or other public place.

“Thus, given that any threat to commit any crime likely to result in death or serious physical injury to another person (qualifies as) terroristic threatening in the third-degree under Kentucky law, Drake had probable cause to believe (Evans) committed such an offense,” Schaefer writes.

“(Evans) stresses that his post consisted only of song lyrics from the heavy metal band Exodus. Does that somehow make his particular post less threatening?” Schaefer writes. “… Surely, one can adopt the words of another as his own and use those same words to threaten others … His post plainly reads as a threat to kill students at a school.”

Schaefer also writes Evans’ complaint against Muhlenberg County should also be dismissed, because even if Evans’s allegations are true, “a plaintiff must show that the incident resulted from an existing, unconstitutional (government) policy.” The charges against Evans were “nothing more than an isolated incident, which involved individual deliberation and discretion of one Muhlenberg County official,” Schaefer writes.

In their response, ACLU attorneys William Sharp and Brenda Popplewell write Drake should not receive qualified immunity because he “made false statements or omissions in his affidavit … that, had it been included, would have established the absence of probable cause to arrest” Evans.

The ACLU attorneys write Drakes affidavit didn’t include several facts, such as that the post was song lyrics, that the “threat” was a Facebook post, that Evans had been interviewed by police and cooperated with investigators, and that Evans did not have any connection with county schools.

At the time the affidavit was submitted, Drake “knew that (Evans’) post consisted of song lyrics … and that (Evans) had previously used Facebook to post other song lyrics,” the ACLU attorneys write. “Drake also knew … (Evans) denied intending to make any threat by posting the lyrics online (and) knew (Evans) did not work at any school, nor did he have any apparent motive to threaten students or school officials.

“Here, the knowledge Drake learned from the multiagency investigation was sufficient to confirm that (Evans’) Facebook post was nonthreatening,” the ACLU attorneys write. The attorneys also rejected the argument that Muhlenberg County should be dismissed from the suit, saying the complaint contains enough that the courts can “draw a reasonable inference” that the county is liable for Drake’s “constitutional violations under a single act theory.”

Schaefer filed a brief reply to the ACLU response, again claiming the Facebook post fit the state’s definition of third-degree terroristic threatening.

The posting was made “for everyone to see” and the “alarm it caused the public resulted in a police investigation,” Schaefer writes. “That investigation confirmed the (Evans) had, in fact, made the threatening post of his own free will and volition.

Schaefer reply says Evans has not shown his constitutional rights were violated, or that Drake “knowingly or recklessly violated those rights.”

“Instead, they show that Drake made a tough call in a dynamic situation, based on public protection concerns,” Schaefer writes. “Consequently, even if that decision violated (Evans’) constitutional rights, it should not eviscerate the immunity Drake enjoys from suit under clearly established federal law.”

No hearings are currently scheduled in the case.

James Mayse, (270) 691-7303, jmayse@messenger-inquirer.com, Twitter: @JamesMayse

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