Lawrence J. O’Neill, UNITED STATES CHIEF DISTRICT JUDGE

Bradley A. Benbrook, Stephen M. Duvernay, Benbrook Law Group, Sacramento, CA, Eugene Volokh, UCLA School of Law, Los Angeles, CA, for Plaintiffs.

Fredric D. Woocher, Jenna Lauter Miara, Strumwasser & Woocher LLP, Los Angeles, CA, for Defendant.

MEMORANDUM DECISION AND ORDER RE PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (Doc. 19)

Lawrence J. O’Neill, UNITED STATES CHIEF DISTRICT JUDGE

I. INTRODUCTION

Plaintiffs Doe Publius and Derek Hoskins bring this civil rights case under 42 U.S.C. § 1983 (” § 1983“), challenging California Government Code § 6254.21(c) (” § 6254.21(c)“) under the First Amendment, the Commerce Clause, and 47 U.S.C. § 230 (” § 230“). Plaintiffs move for a preliminary injunction that prevents Defendant Diane F. Boyer–Vine, Legislative Counsel for the Office of Legislative Counsel of California (“the Office”), from enforcing § 6254.21(c) against them. See Doc. 19–1 at 26.

The Court took the matter under submission on the papers pursuant to Local Rule 230(g). Doc. 23. For the following reasons, the Court GRANTS IN PART and DENIES IN PART Plaintiffs’ motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

On July 1, 2016, California Governor Jerry Brown signed several gun control bills into law. Doc. 12, First Amended Complaint (“FAC”), at ¶ 15. One of those bills established a database tracking all ammunition purchases in California. See Cal. Penal Code §§ 30352, 30369. The database includes the driver’s license information, residential address and telephone number, and date of birth for anyone who purchases or transfers ammunition in California. See id.

Publius maintains a political blog under the name, “The Real Write Winger.” FAC at ¶ 15. On July 5, 2016, in response to the California legislature’s gun control legislation, he posted the following blog entry, titled “Tyrants to be registered with California gun owners”:

If you’re a gun owner in California, the government knows where you live. With the recent anti gun, anti Liberty bills passed by the legisexuals in the State Capitol and signed into law by our senile communist governor, isn’t it about time to register these tyrants with gun owners?

Compiled below is the names, home addresses, and home phone numbers of all the legislators who decided to make you a criminal if you don’t abide by their dictates. “Isn’t that dangerous, what if something bad happens to them by making that information public?” First, all this information was already public; it’s just now in one convenient location. Second, it’s no more dangerous than, say, these tyrants making it possible for free men and women to have government guns pointed at them while they’re hauled away to jail and prosecuted for the crime of exercising their rights and Liberty.

These tyrants are no longer going to be insulated from us. They used their power we entrusted them with to exercise violence against us if we don’t give up our rights and Liberty. This common sense tyrant registration addresses this public safety hazard by giving the public the knowledge of who and where these tyrants are in case they wish to use their power for violence again.

So below is the current tyrant registry. These are the people who voted to send you to prison if you exercise your rights and liberties. This will be a constantly updated list depending on future votes, and if you see a missing address or one that needs updating, please feel free to contact me. And please share this with every California gun owner you know.

To be fair, the only way for a tyrant to have their name removed from the tyrant registry is to pass laws which repeal the laws that got them added to the list, or upon the tyrant’s death. Otherwise, it is a permanent list, even after the tyrant leaves office. The people will retain this information and have access to it indefinitely.

FAC at ¶ 17. Through searching public records for free on zabasearch.com , Publius compiled the names, home addresses, and phone numbers of 40 California legislature members who had voted in favor of the gun control measures. Id. at ¶¶ 17–18. He then posted that information on his blog. Id. at ¶ 17.

In the days that followed, several legislators received threatening phone calls and social media messages that appeared to have been prompted by Publius’s blog entry. Doc. 21, Declaration of Frederic Woocher (“Woocher Decl.”), at ¶ 2. Specifically,

there were reports from at least four different State Senators that either they or one of their family members had received a phone call at their residence from an unidentified male speaker saying, “I know your address and don’t you wish you knew who I am?” One of the calls was received by the step-son of a Senator who was alone in the home while the Senator and his wife were away. At least two other Senators had reported receiving (and forwarded to the [California Senate] Sergeant-at-Arms) threatening social media messages; one warned: “You have no right to pass laws to take my constitutional rights away. (2nd & 1st amendments) Let alone pass a bill that makes you exempt from the very same laws. I’ve have [sic] shared your home address in the Internet. The People will be acting on this.”

Id.

The Senate Sergeant-at-Arms sent the Office “a request to seek the removal of the legislators’ home addresses from the internet pursuant to section 6254.21(c).” Doc. 20 at 13. In response, on July 8, 2016, Deputy Legislative Counsel Kathryn Londenberg sent a written demand to WordPress.com, who hosted Plaintiff’s blog. FAC at ¶ 19. The demand stated:

To whom it may concern:

My office represents the California State Legislature. It has come to our attention that the home addresses of 14 Senators and 26 Assembly Members have been publically posted on an Internet Web site hosted by you without the permission of these elected officials. Specifically, the user on your platform by the name of “therealwritewinger” posted the home addresses of these elected officials on his or her Web site….

This letter constitutes a written demand under subdivision (c) of Section 6254.21 of the Government Code that you remove these home addresses from public display on that Web site, and to take steps to ensure that these home addresses are not reposted on that Web site, a subsidiary Web site, or any other Web site maintained or administered by WordPress.com or over which WordPress.com exercises control. Publicly displaying elected officials’ home addresses on the Internet represents a grave risk to the safety of these elected officials.

On the “therealwritewinger” blog site, the user describes the listed legislators as “tyrants,” encourages readers to share the legislators’ home addresses with other gun owners, and threatens that the home addresses will not be removed unless the legislator repeals specified gun laws or “upon the tyrant’s death.” The Senators and Assembly Members whose home addresses are listed on this Web site fear that the public display of their addresses on the Internet will subject them to threats and acts of violence at their homes.

To comply with the law, please remove the home addresses of these elected officials from your Web site no later than 48 hours after your receipt of this letter (cl. (i), subpara. (D), para. (1), subd. (c), Sec. 6254.21, Gov. C.). You are also required to continue to ensure that this information is not reposted on that Web site, any subsidiary Web site, or any other Web site maintained by you (subpara. (D), para. (1), subd. (c), Sec. 6254.21, Gov. C.).

…. If these home addresses are not removed from this Web site in a timely manner, we reserve the right to file an action seeking injunctive relief, as well as associated court costs and attorney’s

fees ( para. (2), subd. (c), Sec. 6254.21, Gov. C.).

Id. WordPress immediately removed Publius’s entire blog entry. Id. at ¶ 20. Publius requested a copy of the demand from WordPress. Doc. 12–2 at 1. WordPress forwarded the letter, explaining that “[u]nder subdivision (c) of Section 6254.21 of the Government Code, an authorized representative from the state of California ha[d] demanded that we disable” Publius’s blog entry. Id.

Hoskins, a resident of Massachusetts, id. at ¶ 13 owns and moderates the website Northeastshooters.com, “a popular New England online forum for discussing firearms issues and shooting sports activities.” Id. at ¶ 21. On July 11, 2016, Northeastshooters.com users began a discussion about the Legislative Counsel’s takedown demand to WordPress concerning Publius’s blog entry. Id. at ¶ 22. One commenter, under the name “headednorth,” reposted Publius’s compiled list of names, addresses, and home addresses of the California legislators. Id. at ¶ 23. Legislative Counsel Londenberg immediately emailed Hoskins, noted that headednorth had reposted the legislators’ personal information removed from Publius’s blog on Northeastshooters.com, and demanded that Hoskins remove it immediately via a takedown demand that was “materially identical” to the one sent to WordPress. Id. at ¶ 24. Hoskins complied. Id. at ¶ 5.

Plaintiffs seek a declaratory judgment from the Court that § 6254.21(c) violates (1) the First Amendment both facially and as applied to both of them; (2) the Commerce Clause, U.S. Const., art. I, § 8, cl. 3, as applied to Hoskins’s out-of-state speech; and (3) § 230 as to Hoskins and other computer service providers. FAC at 16. Plaintiffs currently seek a preliminary injunction on these grounds, and ask the Court to enjoin Defendant from “enforcing or applying” § 6254.21(c) against them. Doc. 19 at 2. Defendant argues, among other things, that: (1) Plaintiffs lack standing; (2) Plaintiffs fail to state a claim under § 1983 ; and (3) the statute is entirely lawful. Doc. 20 at 8.

III. STANDARD OF DECISION

To secure injunctive relief prior to a full adjudication on the merits, a plaintiff must show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22, 129 S.Ct. 365. The Ninth Circuit follows a “sliding scale” approach to preliminary injunctions. See Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131 (9th Cir. 2011). “Under this approach, the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Id. at 1131–32. For example, if the moving party is unable to establish a likelihood of success on the merits, preliminary injunctive relief may still be proper if the party can show that (1) there are at least “serious questions” going to the merits; (2) the balance of the hardships tips “sharply” in its favor; and (3) the other factors listed in Winter (i.e. , irreparable harm and in the public interest) are satisfied. Id. at 1135.

IV. ANALYSIS

A. Plaintiffs have standing

1. Standing principles

Standing is a judicially created doctrine that is an essential part of the case-or-controversy requirement of Article III. Pritikin v. Dept. of Energy , 254 F.3d 791, 796 (9th Cir. 2001). “To satisfy the Article III case or controversy requirement, a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision.” Iron Arrow Honor Soc. v. Heckler , 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983). “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin , 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The doctrine of standing “requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” Allen v. Wright , 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing. Whitmore v. Arkansas , 495 U.S. 149, 155–56, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) ; Schmier v. U.S. Court of Appeals for Ninth Circuit , 279 F.3d 817, 821 (9th Cir. 2002).

Generally, to have standing, a plaintiff must show three elements.

First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations and quotations omitted). First Amendment cases, however, “present unique standing considerations.” Ariz. Right to Life Pol. Action Comm. v. Bayless , 320 F.3d 1002, 1006 (9th Cir. 2003). “In an effort to avoid the chilling effect of sweeping restrictions, the Supreme Court has endorsed what might be called a ‘hold your tongue and challenge now’ approach rather than requiring litigants to speak first and take their chances with the consequences” Id. (citations omitted). “[A]s the Supreme Court has recognized, a chilling of the exercise of First Amendment rights is, itself, a constitutionally sufficient injury.” Id. Accordingly, “the Supreme Court has dispensed with rigid standing requirements [in First Amendment cases] and recognized ‘self-censorship’ as a harm that can be realized even without an actual prosecution.” Human Life of Wash., Inc. v. Brumsickle , 624 F.3d 990, 1000 (9th Cir. 2010). “[W]here a plaintiff has refrained from engaging in expressive activity for fear of prosecution under the challenged statute, such self-censorship is a constitutionally sufficient injury as long as it is based on an actual and well-founded fear that the challenged statute will be enforced.” Id. at 1001 (quotation marks omitted). Thus, “when the threatened enforcement effort implicates First Amendment rights, the inquiry tilts dramatically toward a finding of standing.” LSO, Ltd. v. Stroh , 205 F.3d 1146, 1155 (9th Cir. 2000).

First Amendment challenges may be brought as “facial” or “as-applied” challenges. See Santa Monica Food Not Bombs v. City of Santa Monica , 450 F.3d 1022, 1033 (9th Cir. 2006). The Ninth Circuit succinctly described the challenges as follows:

Facial constitutional challenges come in two varieties: First, a plaintiff seeking to vindicate his own constitutional rights may argue that an ordinance is unconstitutionally vague or … impermissibly restricts a protected activity. Second, an individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court. The former sort of challenge … may be paired with the more common as-applied challenge, where a plaintiff argues that the law is unconstitutional as applied to his own speech or expressive conduct.

Id. at 1033–34 (citations and quotation marks omitted). “It is within this framework that [Plaintiffs] … must establish standing.” Id. at 1034.

2. Analysis

Defendant contends Plaintiffs cannot demonstrate that Defendant caused them to suffer any injury that could be favorably addressed by the Court. As to Publius, the thrust of Defendant’s position is that it is “quite plausible, if not probable” that WordPress removed Publius’s blog entry on its own accord because it violated WordPress’s terms of service and, in any event, Plaintiffs have not presented any evidence that WordPress would permit the blog entry even if Defendant never invoked § 6254.21(c) or if the Court found the statute unlawful. See Doc. 20 at 18–19. As to Hoskins, Defendant concedes (and the Court agrees) that “there is no issue regarding the causation and redressability prongs of the constitutional standing requirements,” but argues that Hoskins did not suffer any injury. Id. at 19. Instead, Defendants argue that only the user of his site, “headednorth,” whose post Hoskins removed, suffered any asserted injury. Id.

That Hoskins did not produce the content contained in headednorth’s removed post does not mean he did not and cannot suffer a First Amendment injury. As the owner of Northeastshooters.com, Hoskins has a First Amendment right to distribute and facilitate protected speech on the site. See Smith v. California , 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959) (striking down statute imposing strict liability on a seller of obscene books as violating First Amendment); Joseph Burstyn, Inc. v. Wilson , 343 U.S. 495, 497, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) (striking down statute prohibiting movie producer’s distribution of movie); Bantam Books, Inc. v. Sullivan , 372 U.S. 58, 59–61, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) (holding book distributors had standing to challenge law restricting the sale of certain books). The mere threat of prosecution under a challenged statute that results in actual self-censorship constitutes “a constitutionally sufficient injury as long as it is based on an actual and well-founded fear that the challenged statute will be enforced.” Human Life , 624 F.3d at 1001. Defendant’s takedown demand letter threatening legal action against Hoskins if he did not immediately comply and remove headednorth’s post, coupled with Hoskins’s compliance with the demand, constitutes a cognizable constitutional injury. See id. ; Bayless , 320 F.3d at 1006 (finding that plaintiff, who was “forced to modify its speech and behavior to comply with the statute,” had suffered sufficient injury even though it had “neither violated the statute nor been subject to penalties for doing so”). The Court therefore finds that Hoskins has standing to challenge § 6254.21(c) both on its face and as-applied to him.

Defendant does not dispute that Publius suffered a constitutional injury, but disputes whether the Office caused his asserted injury and whether the Court could redress it favorably. Defendant essentially argues that there is no evidence that WordPress removed Publius’s blog post as a result of the Office’s demand letter, and that it is plausible that WordPress did so on its own accord because the post violated WordPress’s terms of service. Thus, Defendant claims, it is plausible that WordPress would remove the post regardless of the Court’s decision.

The only evidence concerning WordPress’s motivation in removing Publius’s blog entry does not support Defendant’s position. As explained above, WordPress removed the blog post immediately after the Office sent the takedown demand. Publius, somehow cognizant of the Office’s demand, requested a copy of it. WordPress forwarded the Office’s demand to Publius, and explained that “[u]nder subdivision (c) of Section 6254.21 of the Government Code, an authorized representative from the state of California has demanded that we disable [your blog entry].” Doc. 19–2 at 13. WordPress provided no other explanation for its removing the blog entry. On the current record, Defendant’s assertion that WordPress removed the entry because it violated the site’s terms of service is entirely speculative, not “quite plausible, if not probable.” Doc. 20 at 18. Likewise, because the only evidence (direct and circumstantial) submitted suggests that WordPress removed the blog post because of the Office’s takedown demand, it is plausible that it would not have been removed but for the demand.

Further, Publius does not simply claim his asserted First Amendment right is to post as he sees fit on WordPress alone, as Defendant suggests. Publius challenges § 6254.21(c)‘s prohibition on his ability to repost the legislators’ personal information anywhere online—or “through any other medium.” § 6254.21(c)(1)(D)(ii). Although this case does not present the Court with any jurisdiction to control the content on WordPress, a private entity, the Court does have the authority (and obligation) to determine whether legislation violates the First Amendment. The Court’s finding that § 6254.21(c) does so would redress Publius’s asserted injury. Accordingly, the Court finds that Publius has standing to challenge § 6254.21(c). B. Defendant’s conduct was under color of law

“To state a claim for relief under section 1983, the Plaintiffs must plead two essential elements: 1) that the Defendant[ ] acted under color of state law; and 2) that the Defendant[ ] caused them to be deprived of a right secured by the Constitution and laws of the United States.” Johnson v. Knowles , 113 F.3d 1114, 1117 (9th Cir. 1997). Defendant asserts Plaintiffs fail to state a claim under § 1983 because the Office’s sending the takedown demand letters was not “under color of law” and, consequently, the Court lacks jurisdiction over this case. Doc. 20 at 20–21; West v. Atkins , 487 U.S. 42, 46, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (holding that acting under color of state law is “a jurisdictional requisite for a § 1983 action”). Distilled, Defendant argues that the Office’s sending the takedown demand letters to WordPress and Hoskins on behalf of the California legislators was not state action because the legislators were acting as private citizens who made private decisions to threaten private lawsuits if their personal information was not removed. Doc. 20 at 20.

“An individual acts under color of state law when he or she exercises power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Naffe v. Frey , 789 F.3d 1030, 1036 (9th Cir. 2015) (citations and quotation marks omitted). “This test is generally satisfied when a state employee … wrongs someone while acting in his official capacity or while exercising his responsibilities pursuant to state law.” Id. (citations and quotation marks omitted).

Defendant relies primarily on Gritchen v. Collier , 254 F.3d 807 (9th Cir. 2001), and Laxalt v. McClatchy , 622 F.Supp. 737 (D. Nev. 1985), for her position that the Office’s conduct was not state action. In Gritchen , the plaintiff (Gritchen) filed a formal complaint against a police officer, Collier, claiming that Collier “had been discourteous, argumentative, and that his breath smelled like alcohol.” 254 F.3d at 809. After the police department “found no misconduct,” Collier, through his attorney, sent Gritchen a letter threatening to bring suit for defamation under California Civil Code § 47.5, which permits peace officers to bring defamation actions against someone who files a false complaint. Id. at 809–10. Gritchen then filed a § 1983 suit alleging, among other things, that § 47.5 violates the First Amendment. Id. at 810. The Ninth Circuit held that Collier’s conduct—threatening to sue Gritchen for defamation under § 47.5—was not “under color of state law” because he acted “entirely by himself, without assistance from state officials.” Id. at 813–14.

In Laxalt , the plaintiff (Laxalt), a United States Senator, brought suit against numerous newspapers and their staff for their allegedly defamatory articles. 622 F.Supp. at 739. The defendants counterclaimed against Laxalt under § 1983, arguing that the Senator had violated their First Amendment rights by using his office to chill their speech. Id. at 746. The basis for their claims was that, shortly after the defendants published their articles, Laxalt sent them a letter on Senate stationary with his signature demanding the sources for the articles and that they be retracted. Id. at 747. The defendants construed the letter as a threat from Laxalt that he would use his office “to retaliate against them if they did not comply.” Id. The court rejected the defendants’ claim, finding that Laxalt “ha[d] proceeded, as any other private citizen would have, to clear his name … and to recover damages for an alleged libel.” Id. at 748.

Gritchen and Laxalt are easily distinguishable from this case. In both of those cases, the government officials acted individually as wholly private citizens without the aid of any other government official. That is not what happened here. At the legislators’ request, the Office sent the takedown demands to WordPress and Hoskins, which explicitly stated that the Office “represents the California State Legislature.” The letter concluded: “If these home addresses are not removed from this Web site in a timely manner, we reserve the right to file an action seeking injunctive relief, as well as associated court costs and attorney’s fees.” FAC at ¶ 19 (Emphasis added.). Unlike Gritchen and Laxalt , this case does not involve a state employee’s private attorney threatening legal action on behalf of one individual. The Office informed WordPress and Hoskins that if they did not comply, the Office—on behalf of the legislators—would consider legal action, including attempting to recover the Office’s statutorily available fees and costs. The Office, a government entity, therefore provided legal services on behalf of 40 state legislators at their request and made that clear to WordPress and Hoskins when doing so. In the Court’s view, it is difficult to conceive how this could not constitute state action. See Frey , 789 F.3d at 1036.

C. Plaintiffs’ First Amendment challenge

Plaintiffs contend § 6254.21(c) is a content-based restriction on constitutionally protected speech that violates the First Amendment on its face and as applied to them. See Doc. 19–1 at 15. Defendant does not dispute the statute is content-based, but argues it is nonetheless lawful under the First Amendment. See Doc. 20 at 15.

As to Plaintiffs’ facial challenge, they contend § 6254.21(c) is impermissibly overbroad. “[A] law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’ ” United States v. Stevens , 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quoting Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 449 n.6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) ). “Technically, the overbreadth doctrine does not apply if the parties challenging the statute engage in the allegedly protected expression,” as Plaintiffs did here, because the doctrine is used “to overcome what would otherwise be a plaintiff’s lack of standing.” Nunez ex rel. Nunez v. City of San Diego , 114 F.3d 935, 949 (9th Cir. 1997). “A party seeking to challenge the constitutionality of a statute generally must show that the statute violates the party’s own rights,” but “[t]he First Amendment overbreadth doctrine carves out a narrow exception to that general rule.” United States v. Stevens , 559 U.S. 460, 483, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (Alito, J., dissenting) (citations omitted). Plaintiffs, however, may still “seek, as a remedy, the facial invalidation of [a statute] if it is an overly broad regulation that create[s] an unacceptable risk of the suppression of ideas.” ACLU of Nev. v. City of Las Vegas , 466 F.3d 784, 790 n.9 (9th Cir. 2006) (citation and quotation marks omitted).

But “because a successful overbreadth challenge renders a statute unconstitutional and, therefore, invalid in all its applications … the doctrine is employed sparingly and only as a last resort.” United States v. Alvarez , 617 F.3d 1198, 1236 (9th Cir. 2010) (emphasis in original) (citations and quotation marks omitted), aff’d , 567 U.S. 709, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012). Accordingly, when a litigant brings both an as-applied and facial challenge, the Supreme Court has strongly suggested that courts should address the facial challenge only if the as-applied challenge fails. See Serafine v. Branaman , 810 F.3d 354, 363 n.19 (5th Cir. 2016) (collecting cases). The Court therefore turns first to Plaintiffs’ as-applied challenge.

1. Background on § 6254.12(c)

Section § 6254.21(c)(1)(A) prohibits anyone from posting or displaying the home address or telephone number of certain government officials, see § 6254.21(f), if the official makes “a written demand” that his or her personal information not be displayed. The written demand must “include a statement describing a threat or fear for the safety of that official or of any person residing at the official’s home address.” § 6254.21(c)(1)(B). A written demand is “effective for four years.” § 6254.21(c)(1)(C). After receiving such a written demand, the recipient must remove the official’s home address and/or phone number from the internet within 48 hours, and may not “transfer” it to anyone through any medium. § 6254.21(c)(1)(D)(i)–(ii).

“An official whose home address or telephone number is made public as a result of a violation of [ § 6254.21(c)(1) ] may bring an action seeking injunctive or declarative relief.” § 6254.21(c)(2). “If a court finds that a violation has occurred, it may grant injunctive or declarative relief and shall award the official court costs and reasonable attorney’s fees.”Id.

Briefly summarized, if someone publishes the home address or telephone number of certain officials on the internet, those officials may demand that it be removed. The official must make the demand in writing, and must describe the threat or fear for safety the official feels personally or for his or her family who reside at the official’s home address. Anyone who receives such a demand must remove it within 48 hours, must takes steps to ensure it is not reposted, and may not communicate the information to anyone through any medium. If the official’s home address or telephone number “is made public” because someone posted the information online without the official’s consent, the official may seek a court order to have the information removed from the internet. If the court finds that the individual who posted the information online failed to comply timely with the official’s demand, then the court must award attorney’s fees to the official, regardless of the relief the court orders.

2. Section 6254.21(c) is content-based

Section 6254.21(c)(1)(A) states, “[n]o person, business, or association shall publicly post or publicly display on the Internet the home address or telephone number of any elected or appointed [California] official” if the official makes a written demand that his or her personal contact information be removed. An enforcing official could not determine whether § 6254.21(c)(1) applies to particular speech without determining if (1) the speech contains a home address and/or phone number of (2) a covered official. The statute is therefore content-based on its face: it applies only to speech that contains certain content—the “home address or telephone number of any elected or appointed [California] official.” See Reed v. Town of Gilbert, Ariz. , ––– U.S. ––––, 135 S.Ct. 2218, 2227, 192 L.Ed.2d 236 (2015) (“Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” (citations omitted)); see also S.O.C., Inc. v. Cty. of Clark , 152 F.3d 1136, 1145 (9th Cir. 1998) (holding that regulations that require officials to examine content of speech to determine whether regulation applies are content-based (collecting cases)).

3. Analysis

“Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed , 135 S.Ct. at 2226. This requires the government to show that the law is “the least restrictive means to further a compelling interest.” Foti v. City of Menlo Park , 146 F.3d 629, 637 (9th Cir. 1998) (citation omitted). Because § 6254.21(c)(1) is content-based, Defendant must establish that, when applied to Plaintiffs’ speech, the statute is narrowly tailored to a compelling state interest. See Reed v. Town of Gilbert, Ariz. , 587 F.3d 966, 974 (9th Cir. 2009), rev’d on other grounds , ––– U.S. ––––, 135 S.Ct. 2218, 192 L.Ed.2d 236.

“As a general matter, ‘state action to punish the publication of truthful information seldom can satisfy constitutional standards.’ ” Bartnicki v. Vopper , 532 U.S. 514, 527, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) (quoting Smith v. Daily Mail Pub. Co. , 443 U.S. 97, 102, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979) ). “More specifically, [the Supreme Court] has repeatedly held that ‘if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need … of the highest order.’ ” Id. at 527–28, 121 S.Ct. 1753 (quoting Daily Mail , 443 U.S. at 103, 99 S.Ct. 2667 ).

a. The legislators’ personal information is a matter of public significance

Defendant suggests, in a footnote, that it is “questionable” whether the legislators’ personal information is “a matter of public significance.” Doc. 20 at 23 n.12. For decades, the Supreme Court has broadly held that “[p]ublic records by their very nature are of interest to those connected with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media.” Cox Broadcasting Corp. v. Cohn , 420 U.S. 469, 495, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). Thus, several cases demonstrate that the First Amendment protects the right to publish highly personal information of private individuals, such as the names of rape victims and juveniles involved in legal proceedings, when they relate to matters of public concern.

Viewed in isolation, the legislators’ home address and phone numbers may not, in and of themselves, constitute “a matter of public significance.” But when considered in the specific context of Plaintiffs’ speech—political protest, which is “core political speech,” with First Amendment protection “at its zenith,” Buckley v. Am. Const. Law Found. , 525 U.S. 182, 186–87, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) —the information takes on new meaning. Publius searched publicly available documents and compiled, and headednorth reposted, the legislators’ personal information specifically in response to legislation that required the government to maintain a database with the personal information of individuals who buy firearms and ammunition in California. When viewed in that context of political speech, the legislators’ personal information becomes a matter of public concern. Snyder v. Phelps , 562 U.S. 443, 453, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011) (“Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community” (citation and quotation marks omitted)); see also Org. for a Better Austin v. Keefe , 402 U.S. 415, 417, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971) (holding injunction on dispersing pamphlets with realtor’s home phone number and urging recipients to call him to urge certain political stance was prior restraint that violated First Amendment). Four cases on which Plaintiffs primarily rely support this proposition well: Florida Star , 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 ; Brayshaw v. City of Tallahassee , 709 F.Supp.2d 1244 (N.D. Fla. 2010) ; Sheehan v. Gregoire , 272 F.Supp.2d 1135 (W.D. Wash. 2003) ; and Ostergren v. Cuccinelli , 615 F.3d 263 (4th Cir. 2010).

Florida Star involved a challenge to a Florida statute (“§ 794.03”) that made “it unlawful to ‘print, publish, or broadcast … in any instrument of mass communication’ the name of the victim of a sexual offense.” 491 U.S. at 524, 109 S.Ct. 2603. A sheriff’s department investigating a reported rape “prepared a report, which identified [the victim] by her full name, and placed it in the Department’s press room,” which was open to the public. Id. A reporter for The Florida Star “copied the press report verbatim, including [the victim’s] full name,” and subsequently published her full name in an article about the reported crime and the department’s investigation of it. Id. at 528, 109 S.Ct. 2603. The victim successfully sued The Florida Star under § 794.03 for publishing her name.The Supreme Court reversed, and held the First Amendment prohibited imposing liability on The Florida Star for publishing the victim’s name under the circumstances of the case. Id. at 537, 109 S.Ct. 2603. The Court held that “the article generally, as opposed to the specific identity contained within it, involved a matter of paramount public import: the commission, and investigation, of a violent crime which had been reported to authorities.” Id. at 536–37, 109 S.Ct. 2603. The Court therefore concluded that, under its precedent, the article concerned “a matter of public significance.” See id. at 536–37, 109 S.Ct. 2603 (” Cox Broadcasting , supra (article identifying victim of rape-murder); Oklahoma Publishing Co. v. Oklahoma County District Court , 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (article identifying juvenile alleged to have committed murder); Daily Mail , supra (same); cf. Landmark Communications, Inc. v. Virginia , 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978) (article identifying judges whose conduct was being investigated).”).

In Brayshaw , the plaintiff truthfully posted the personal information of a peace officer, including her personal address, phone number, and email, all of which was publicly available. 709 F.Supp.2d at 1247. The plaintiff was charged with a misdemeanor for violating a Florida statute that provided:

Any person who shall maliciously, with intent to obstruct the due execution of the law or with the intent to intimidate, hinder, or interrupt any law enforcement officer in the legal performance of his or her duties, publish or disseminate the residence address or telephone number of any law enforcement officer while designating the officer as such, without authorization of the agency which employs the officer, shall be guilty of a misdemeanor of the first degree.

Id. at 1247.

The court rather summarily rejected the government’s argument that the plaintiff’s speech was unprotected because it was not a matter of public significance. Id. at 1249. The court found that the issue of police accountability was “of legitimate public interest,” and the “publication of truthful personal information about police officers is linked” to that interest “through aiding in achieving service of process, researching criminal history of officers, organizing lawful pickets, and other peaceful and lawful forms of civic involvement that publicize the issue.” Id.

Sheehan involved an overbreadth challenge to a Washington statute that provided:

A person or organization shall not, with the intent to harm or intimidate, sell, trade, give, publish, distribute, or otherwise release the residential address, residential telephone number, birthdate, or social security number of any law enforcement-related, corrections officer-related, or court-related employee or volunteer, or someone with a similar name, and categorize them as such, without the express written permission of the employee or volunteer unless specifically exempted by law or court order.

272 F.Supp.2d at 1139. The plaintiff removed from his website the personal information of numerous officials covered by the statute, then challenged it as overbroad. Id. As in Brayshaw , the court found the officials’ personal information to be a matter of public concern because it was related to the issue of police accountability and could be relevant “to achieve service of process, research criminal history, and to ‘organize an informational picket [at individual officers’ homes] or other lawful forms of civic involvement to force accountability.’ ” Id. at 1139, 1139 n.2.

Ostergren , 615 F.3d 263, a case Plaintiffs characterize as “closely analogous” to this one, is particularly illustrative here. In that case, the plaintiff brought an as-applied challenge to a Virginia statute that prohibited “[i]ntentionally communicat[ing] another individual’s social security number (“SSN”) to the general public.” Id. at 266. “Calling attention to Virginia’s practice of placing land records on the Internet without first redacting SSNs, [the plaintiff] displayed copies of Virginia land records containing unredacted SSNs on her website.” Id. By doing so, she sought “to publicize her message that governments are mishandling SSNs and generate pressure for reform.” Id. at 269 (footnote omitted). The information the plaintiff posted on her website was publicly available for a nominal fee, but her website made the public records “more accessible to the public than they [we]re through Virginia’s [records] system.” Id.

Before she could be prosecuted for posting the SSNs on her website, the plaintiff challenged the Virginia statute as applied to her website on First Amendment grounds. Id. As a threshold matter, the Fourth Circuit rejected the government’s position that unredacted SSNs are entirely unprotected speech under the First Amendment. Id. at 271. The court reasoned that, in the plaintiff’s case, the unredacted SSNs “are integral to her message,” and, in fact, “they are her message” because her “[d]isplaying them proves Virginia’s failure to safeguard private information and powerfully demonstrates why Virginia citizens should be concerned.” Id. (emphasis in original and footnote omitted). Although the plaintiff could have redacted the SSNs, the First Amendment protected the plaintiff’s “freedom to decide how her message should be communicated.” Id. at 271 n.8. The Fourth Circuit therefore concluded that the plaintiff’s speech “plainly concern[ed] a matter of public significance … because displaying the contents of public records and criticizing Virginia’s release of private information convey political messages that concern the public, see Cox Broad. , 420 U.S. at 495, 95 S.Ct. 1029, (‘Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media.’).” Id. at 276 (citation omitted).

Florida Star , Brayshaw , Sheehan , and Ostergren thus show that highly personal information has public significance when inextricably associated with political speech. That principle applies here. Plaintiffs oppose, among other things, California legislation that requires the creation and maintenance of a database run by the California Department of Justice that compiles the residential address and telephone number of anyone who purchases or transfers firearms ammunition in California. See Cal. Penal Code § 30352(a)(6). Plaintiffs’ means of protesting the legislation is by compiling their own “database” of the legislators’ residential addresses and phone numbers. Like the plaintiff in Ostergren , that information is not just “integral to [ Plaintiffs’] message,” it is their message. 615 F.3d at 271.

At its core, Plaintiffs’ speech is a form of political protest. The Court therefore finds that the legislators’ home address and telephone number touch on matters of public concern in the context of Plaintiffs’ speech. b. § 6254.21(c) is not narrowly tailored

There is no dispute that Plaintiffs lawfully obtained and truthfully published information that was readily available online. When lawfully obtained, the truthful publication of that information falls within the First Amendment’s ambit. See Florida Star , 491 U.S. at 524, 109 S.Ct. 2603 ; see also Bartnicki , 532 U.S. at 516, 121 S.Ct. 1753 (holding First Amendment protected radio commentator’s playing anonymously and illegally wiretapped recording on air). And as Florida Star , Sheehan , Brayshaw , and Ostergren demonstrate, when an individual’s personal information is relevant to issues of public significance, its truthful dissemination—particularly when already in the public domain and lawfully obtained—triggers exacting First Amendment scrutiny under Supreme Court precedent. See Florida Star , 491 U.S. at 533, 109 S.Ct. 2603. Specifically, if an individual publishes lawfully obtained, “truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need … of the highest order.” Daily Mail , 443 U.S. at 103, 99 S.Ct. 2667. Any law that seeks to meet that need must be narrowly tailored. Florida Star , 491 U.S. at 540–41, 109 S.Ct. 2603.

The Court in Florida Star seemingly assumed without deciding that protecting a rape victim’s identity is a state interest “of the highest order,” but held the challenged Florida statute was not narrowly tailored to that interest for three reasons. See Florida Star , 491 U.S. at 538, 541, 109 S.Ct. 2603 ; see also id. at 550, 109 S.Ct. 2603 (White, J., dissenting). First, the state had released the victim’s name, though inadvertently, in a publicly available document. Id. at 538, 109 S.Ct. 2603. The Court found that when “the government has failed to police itself in disseminating information, it is clear … that the imposition of damages against the press for its subsequent publication can hardly be said to be a narrowly tailored means of safeguarding anonymity,” reasoning that the government’s doing so “can only convey to recipients that the government considered dissemination lawful, and indeed expected the recipients to disseminate the information further.” Id. at 538–39, 109 S.Ct. 2603.

Second, the Florida statute imposed a “negligence per se standard” in that it did not permit “case-by-case findings” concerning liability, but instead imposed it “automatically.” Id. at 539, 109 S.Ct. 2603. Liability followed publication regardless of the publisher’s intent, and “regardless of whether the identity of the victim is already known throughout the community; whether the victim has voluntarily called public attention to the offense; or whether the identity of the victim has otherwise become a reasonable subject of public concern-because, perhaps, questions have arisen whether the victim fabricated an assault by a particular person.” Id. The Court therefore concluded the statute imposed an impermissible “categorical prohibition” even when “important First Amendment interests are at stake.” Id.

Third, the Florida statute was facially underinclusive. Id. at 540, 109 S.Ct. 2603. Although it prohibited publication in “instrument[s] of mass communication,” it did not prohibit the same information from being published and distributed through other means. Id. The Court noted that “[a]n individual who maliciously spreads word of the identity of a rape victim is thus not covered [by the statute], despite the fact that the communication of such information to persons who live near, or work with, the victim may have consequences as devastating as the exposure of her name to large numbers of strangers.” Id. For these reasons, the Court held that The Florida Star could not be held liable under § 794.03 because the statute was not narrowly tailored under the facts of the case. Id. at 541, 109 S.Ct. 2603.

In Ostergren , the court assumed without deciding that Virginia’s asserted state interest was “of the highest order” because, even if it were, the statute was not narrowly tailored to that interest in the plaintiff’s case. Id. at 280. The court succinctly reasoned that the statute could not be narrowly tailored to protecting individuals’ privacy when Virginia made the records publicly available online and the plaintiff obtained the records through Virginia’s online records system. Id. at 286. The court noted that, at the very least, Virginia could have redacted the SSNs before making the documents accessible to the public. Id. Accordingly, the Fourth Circuit held that the Virginia statute violated the First Amendment as applied to the plaintiff. Id. at 287.

The courts in Brayshaw and Sheehan likewise found the contested laws were not narrowly tailored without much difficulty. In Brayshaw , the court found that the challenged statute was both overinclusive and underinclusive. 709 F.Supp.2d at 1249. The court reasoned:

It is overinclusive in proscribing speech that is not a true threat. It is underinclusive both in its failure to prohibit dissemination of the same information by other entities to third-parties who do intend to harm or intimidate officers, and in its failure to punish parties who actually wish to harm or intimidate police officers and obtain the officer’s identifying information.

Id. at 1249–50. Further, the court found that “punishing Plaintiff for his dissemination of information which is already publicly available is relatively unlikely to advance the interests claimed by the State.” Id. (citing Florida Star , 491 U.S. at 535, 109 S.Ct. 2603 (“punishing the press for its dissemination of information which is already publicly available is relatively unlikely to advance the interests in the service of which the State seeks to act”)).

The court in Sheehan used largely the same reasoning. See 272 F.Supp.2d at 1145. Additionally, the court observed:

[W]hen the government itself injects personal identifying information into the public domain, it cannot credibly take the contradictory position that one who compiles and communicates that information offends a compelling state interest. Further, defendants can demonstrate no compelling interest because the statute hinges solely on the subjective intent of the speaker. Any third party wishing to actually harm or intimidate these individuals may freely acquire the personal identifying information from myriad public and private sources, including for-profit commercial entities, without entering the scope of the statute.

Id. at 1147 (footnotes omitted).

The Court assumes that the interest underlying § 6254.21(c) —protecting the personal safety of covered officials and their families—is a state interest of the highest order. But the Court need not decide whether it is because the statute is not narrowly tailored to further that interest. The logic of Florida Star , Ostergren , Brayshaw , and Sheehan applies here, and shows that there are a number of reasons why § 6254.21(c) is not narrowly tailored.

First, § 6254.21(c) makes no attempt to prohibit or prevent true threats. Under the statute, a covered official need only subjectively fear for his or her safety (or that of his or her family) due to his or her home address or telephone number being online. § 6254.21(c)(1). To make a compliant request that the information be removed, the official need only send the publisher of the information a “statement describing a threat or fear for the safety of that official or of any person residing at the official’s home address.” Id. If the official does so, the recipient must comply or face a lawsuit. An official can therefore make an effective takedown demand by informing someone who has posted the official’s home address or phone number that doing so has made the official fear for his or her safety. On its face, § 6254.21(c)(1) does not require that the threat be credible or that a third-party review whether the official’s request is well-founded. The statute makes no distinction between those who publish a covered official’s home address or phone number online for wholly lawful reasons and those who do so for wholly unlawful reasons. So long as an official subjectively feels threatened, the official may make a takedown request under § 6254.21(c)(1). And if the publisher fails to comply with an official’s takedown request within 48 hours, then he or she has violated § 6254.21(c)(1), which will entitle the official to bring suit in which attorney’s fees would be awarded automatically to the official. See id. §§ 6254.21(c)(1)(D)(i), 6254.21(c)(2). This lack of case-by-case oversight and effective per se liability suggests that § 6254.21(c) is not narrowly tailored. See Florida Star , 491 U.S. at 539, 109 S.Ct. 2603.

Defendant disputes this characterization of the statute. See Doc. 20 at 25 n.15. Defendant argues that § 6254.21(c)(2)‘s mandatory attorney’s fees and costs award does not impose “automatic liability” for two reasons:

First, of course, no fees are awarded unless the Court has already determined that issuance of an injunction, with the resulting fee award, would not violate the First Amendment. Second, it is well-established that attorney’s fee awards under fee-shifting statutes like section 6254.21(c) are considered “costs,” not “damages,” and are not provided to “punish” the defendant in any way but merely to ensure that the plaintiff will be fully compensated.

Id. (citations omitted). Defendant provides no authority for her first point, and the plain language of the statute contradicts it. On its face, § 6254.21 does not contemplate a First Amendment defense, and no court has found one applicable. (In fact, the Court cannot find any court decision that even mentions the statute.) As the Court interprets the provision, under § 6254.21(c)(2), if a court finds that the defendant has violated § 6254.21(c)(1) —that is, whether the defendant has failed to timely comply with a covered official’s appropriate and effective takedown request—then the court must award the plaintiff-official attorney’s fees and costs, regardless of the whether the court orders injunctive or declaratory relief.

Defendant’s second point is a straw man. Regardless of whether attorney’s fees are “damages,” the imposition of attorney’s fees and costs is a form of liability, particularly in the First Amendment context, where even their mere potential may have a chilling effect on First Amendment rights. See, e.g. , Dean v. Riser , 240 F.3d 505, 510 (5th Cir. 2001) ; Riddle v. Egensperger , 266 F.3d 542, 551 (6th Cir. 2001) ; see also New York Times Co. v. Sullivan , 376 U.S. 254, 279, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (“would-be critics of official conduct may be deterred from voicing their criticism … because of doubt whether it can be proved in court or fear of the expense of having to do so ” (emphasis added)). Defendant does not cite, and the Court cannot find, any authority that suggests First Amendment scrutiny of a content-based statute should be any different simply because attorney’s fees and costs are the only financial relief possible under the statute.

Section § 6254.21(c)(1) is not narrowly tailored for the additional reason that it does not differentiate between acts that “make public” previously private information and those that “make public” information that is already publicly available. There is no dispute that the information Publius compiled and posted, and a member of Hoskins’s forum re-posted, was publicly available and readily accessible online. “[P]unishing [Plaintiffs] for [their] dissemination of information which is already publicly available is relatively unlikely to advance the interests in the service of which the State seeks to act.” Florida Star , 491 U.S. at 535, 109 S.Ct. 2603. When “the government has failed to police itself in disseminating information, it is clear … that the imposition of damages against the press for its subsequent publication can hardly be said to be a narrowly tailored means” to further the state’s interests. Id. at 538, 109 S.Ct. 2603. Because the information Plaintiffs published came from freely available public records, § 6252.21(c)(1) is not narrowly tailored to protecting the safety of covered officials and their families. See id. ; Ostergren , 615 F.3d at 286.

Third, § 6254.21(c)(1) is underinclusive. See Florida Star , 491 U.S. at 540, 109 S.Ct. 2603 (holding that statute was not narrowly tailored in part because it was underinclusive on its face). A statute is underinclusive when it affects “too little speech,” such that there are “doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” Williams–Yulee v. Florida Bar , ––– U.S. ––––, 135 S.Ct. 1656, 1668, 191 L.Ed.2d 570 (2015) (emphasis, quotation marks, and citation omitted). “The Supreme Court has looked skeptically on statutes that exempt certain speech from regulation, where the exempted speech implicates the very same concerns as the regulated speech.” Chaker v. Crogan , 428 F.3d 1215, 1227 (9th Cir. 2005) (citations omitted). In Florida Star , for instance, the challenged statute only prohibited the publication of information identifying a rape victim on “an instrument of mass communication.” 491 U.S. at 540, 109 S.Ct. 2603. That the statute did not prohibit the same information being spread by other means raised “serious doubts” as to whether the statute was serving the interests it purportedly served. Id. at 525, 540, 109 S.Ct. 2603.

Section 6254.21(c)(1) is similarly underinclusive. It proscribes the dissemination of a covered official’s home address and phone number only on the internet, regardless of the extent to which it is available or disseminated elsewhere. That the statute does not prohibit a major newspaper or television channel from publishing the information, but would potentially prohibit an online blog with a limited audience from doing so, raises serious questions about whether it is serving its intended goals. See id. “[A] law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction upon truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited.” Id. at 541–42, 109 S.Ct. 2603 (Scalia, J., concurring) (citation and quotation marks omitted).

The Court therefore concludes § 6254.21(c)(1) is not narrowly tailored to serve its underlying interests. In addition, because the statute is content-based, Defendant had to show that it is “the least restrictive means to further a compelling interest.” Foti v. City of Menlo Park , 146 F.3d 629, 637 (1998) (citation omitted). Defendant has failed to do so. In fact, Defendant made no attempt to explain how § 6254.21 is the least restrictive means to further the statute’s goal of protecting covered officials. As noted above, the statute could be less restrictive in that it could proscribe only true threats, or it could require a neutral third-party to determine if the official’s fear is objectively sound, or it could permit an objective case-by-case determination for liability instead of permitting a covered official to trigger its protections due to the official’s subjective concerns. In summary, the Court finds that Plaintiffs are likely to succeed on their claim that § 6254.21(c)(1) is unconstitutional as applied to them.

D. Hoskins’s Commerce Clause challenge

Plaintiffs contend that § 6254.21(c) violates the dormant Commerce Clause as applied to Hoskins and out-of-state actors because the statute restricts speech that occurs wholly outside California’s borders. Doc. 19–1 at 23 (citing Healy v. Beer Inst. , 491 U.S. 324, 336, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989) ) (“The ‘Commerce Clause … precludes the application of state statutes to commerce that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State”).

Defendant counters that the extraterritoriality doctrine articulated in Healy does not apply to § 6254.21(c) because the statute does not control prices. Doc. 20 at 26. Defendant argues that, even if the doctrine applies, “[§] 6254.21(c) does not significantly burden interstate commerce.” Id. at 27. Specifically, Defendant asserts that the statute does not project any regulatory regimes or affirmative obligations onto Hoskins, but rather “authorizes California public officials to request to have certain specifically identified sensitive personal information removed from a particular post.” Id. Although Defendant acknowledges that § 6254.21(c) requires Hoskins to remove the information specific in the Office’s takedown request or face the possibility of a suit for injunctive and declaratory relief, Defendant argues that § 6254.21(c) does not impose any substantial burden on Hoskins. Id. Defendant also contends there is no evidence that § 6254.21(c) conflicts with or is incompatible with New Hampshire or any other State’s laws. Id.

“[A]s both the means to engage in commerce and the method by which transactions occur, ‘the Internet is an instrumentality and channel of interstate commerce,’ ” United States v. Sutcliffe , 505 F.3d 944, 953 (9th Cir. 2007) (quoting United States v. Trotter , 478 F.3d 918, 921 (8th Cir. 2007) (per curiam)). Thus, “regulation of the Internet impels traditional Commerce Clause considerations.” American Libraries Ass’n v. Pataki , 969 F.Supp. 160, 173 (S.D.N.Y. 1997).

“The Commerce Clause of the United States Constitution assigns to Congress the authority ‘[t]o regulate Commerce with foreign Nations, and among the several States.’ ” Sam Francis Foundation v. Christies, Inc. , 784 F.3d 1320, 1323 (9th Cir. 2015) (quoting U.S. Const. art. I, § 8, cl. 3 ). “Generally speaking, the Commerce Clause protects against inconsistent legislation arising from the projection of one state regulatory regime into the jurisdiction of another State.” Healy , 491 U.S. at 336, 109 S.Ct. 2491.

“Courts have long read a negative implication into the clause, termed the ‘dormant Commerce Clause,’ that prohibits states from discriminating against interstate commerce.” Yakima Valley Mem’l Hosp. v. Wash. State Dep’t of Health , 731 F.3d 843, 846 (9th Cir. 2013). The doctrine “bars state regulations that unduly burden interstate commerce.” Quill Corp. v. North Dakota , 504 U.S. 298, 312, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992) (citation omitted). “[A] statute violates the dormant Commerce Clause per se when it directly regulates interstate commerce.” Pharm. Research and Mfrs. of America v. Cty. of Alameda , 768 F.3d 1037, 1043 (9th Cir. 2014) (quoting Assoc. des Eleveurs de Canards et d’Oies du Quebec v. Harris , 729 F.3d 937, 949 (9th Cir. 2013) ) (internal quotation marks omitted). “Direct regulation occurs when a state law directly affects transactions that take place across state lines or entirely outside of the state’s borders.” Id. (quoting S.D. Myers, Inc. v. City and Cty. of S.F. , 253 F.3d 461, 467 (9th Cir. 2001) ) (internal quotation marks omitted).Under the extraterritoriality doctrine, any “statute that directly controls commerce occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State’s authority and is invalid regardless of whether the statute’s extraterritorial reach was intended by the legislature,” Rocky Mountain Farmers Union v. Corey , 730 F.3d 1070, 1101 (9th Cir. 2013) (” RMFU “) (quoting Healy v. Beer Inst. , 491 U.S. 324, 336, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989) ), and regardless of “whether or not the commerce has effects within the State.” Healy , 491 U.S. at 336, 109 S.Ct. 2491. To determine whether state legislation violates the dormant Commerce Clause, “[t]he critical inquiry is whether the practical effect of the [legislation] is to control conduct beyond the boundaries of the State.” Id.

“Although the Ninth Circuit has not reached this issue, courts in several circuits have invalidated state laws regulating the internet” where the statute regulates conduct occurring outside the borders of the state. Nat’l Fed’n of the Blind v. Target Corp. , 452 F.Supp.2d 946, 958 (N.D. Cal. 2006) (collecting cases). In contrast, courts have upheld state regulation of the internet where application of the law has been limited to only local conduct, or where “[a] state would enforce the law only against conduct occurring within the state.” Id. (collecting cases); see also Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc. , 742 F.3d 414, 432–33 (9th Cir. 2014) (” Agency on Deafness “) (holding that California statute that required captioning of online videos for California viewers did not regulate out-of-state conduct because CNN could create a separate website specific to California users).

Defendant claims that the extraterritoriality doctrine articulated in Healy is inapplicable to this case because Healy has been limited to its facts, namely, “price control or price affirmation statutes that involve tying the price of … in-state products to out-of-state prices.” Doc. 20 at 26. For support, Defendant cites to Pharmaceutical Research and Mfrs. of America v. Walsh , 538 U.S. 644, 669, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003), Harris , 729 F.3d at 951, and RMFU , 730 F.3d at 1101.

These cases do not support Defendant’s position. Walsh , Harris , and RMFU all concerned state laws that regulated in-state conduct which were found not to directly regulate extraterritorial behavior, and thus, Healy was inapplicable. See Walsh , 538 U.S. at 669, 123 S.Ct. 1855 (“the Maine Act does not regulate the price of any out-of-state transaction, either by its express terms or by its inevitable effect”); Harris , 729 F.3d at 951 (“Section 25982 applies to both California entities and out-of-state entities and precludes sales within California of products produced by force feeding birds regardless of where the force feeding occurred.”) ; RMFU , 730 F.3d at 1104 (“[California] does not control the production or sale of ethanol wholly outside California.”). As the Ninth Circuit observed in RMFU ,”[c]ourts have extended the [extraterritoriality] rule from Healy and Brown–Forman to cases where the ‘price’ floor being imposed on another jurisdiction was not monetary but rather a minimum standard of environmental protection.” 730 F.3d at 1102.

Sam Francis Foundation , 784 F.3d at 1323–24, and Agency on Deafness , 742 F.3d at 432–33, a case Defendant cites (albeit for a different proposition), make clear that extraterritoriality doctrine applies beyond statutes that regulate out-of-state prices. Sam Francis Foundation involved a challenge to California’s Resale Royalty Act, which required “the payment of royalties to the artist after a sale of fine art whenever ‘the seller resides in California or the sale takes place in California.’ ” 784 F.3d at 1323 (emphasis in original). The plaintiff challenged the statute as violating the dormant Commerce Clause because it regulated sales that took place outside California. Id. The Ninth Circuit “easily conclude[d]” that the royalty requirement violated the dormant Commerce Clause because it mandated that royalties be paid for sales that had no connection to California. Id.

Agency on Deafness involved the California Disabled Person Act (“DPA”), a law having nothing to do with prices or sales of any kind. 742 F.3d at 419. The plaintiffs in that case argued that the defendant’s failure to provide closed captioning for its online videos for California viewers violated the DPA, which mandated the captioning. Id. The defendant argued the DPA violated the dormant Commerce Clause because it attempted to regulate conduct wholly outside of California. Id. at 433. The Ninth Circuit rejected the argument, holding instead that the DPA did not have the practical effect of regulating conduct outside of California because the defendant could enable close captioning for California residents only, thereby limiting the statute’s effect to California’s borders. Id. Although the court found that the DPA did not violate the dormant Commerce Clause, there is no indication that the plaintiffs’ challenge under that provision was improper.

Accordingly, the Court finds that Defendant’s contention that the extraterritoriality doctrine is limited to price control or price affirmation statutes is without merit. The Court now turns to analyze § 6254.21(c) for its extraterritorial effects as applied to Hoskins and out-of-state actors. “Because the internet does not recognize geographic boundaries, it is difficult, if not impossible, for a state to regulate internet activities without project[ing] its legislation into other States.” Am. Booksellers Found. v. Dean , 342 F.3d 96, 103 (2d Cir. 2003) (internal quotation marks omitted). For example, if “[a] person outside [California] posts information on a website or on an electronic discussion group … for the intended benefit of other people [outside California], that person must assume that someone from [California] may also view the material.” Id. As a result, posters outside of California must comply with § 6254.21(c) or risk subsequent litigation and attorney’s fees. California therefore has projected § 6254.21(c)“onto the rest of the nation.” Id.

Defendant’s alternative argument that § 6254.21(c) does not significantly burden interstate commerce ignores that § 6254.21(c) as applied to out-of-state actors, such as Hoskins, directly regulates wholly out-of-state conduct.  Section 6254.21(c) requires the recipient of a demand letter—anywhere in the country—sent by an elected official to remove the “official’s home address or telephone number from public display on the internet,” and to “continue to ensure that this information is not reposted on … any … Internet Web site maintained by the recipient of the written demand.” Cal. Gov. Code. § 6254.21(c)(1)(D)(i). It also prohibits the demand recipient from “transfer[ring] the appointed or elected official’s home address or telephone number to any other person, business, or association through any other medium.” Cal. Gov. Code. § 6254.21(c)(1)(D)(ii) (emphasis added). The statute does not limit its application to California, nor does it require that websites displaying officials’ home address or telephone numbers bar California only internet users’ access. See Agency on Deafness , 742 F.3d at 432–33 (rejecting dormant Commerce Clause challenge to statute requiring website to provide captioning for California residents who access its online videos because captioning could be limited to only California residents).

Rather, § 6254.21(c) requires Hoskins, a Massachusetts resident, to remove a post from his online forum, FAC ¶ 45, and mandates that he “continue to ensure that [the legislators’ contact information] is not reported on the forum or any other website maintained by him,” Doc. 19–1 at 23 (internal quotation marks omitted), even if the only people accessing the forum are New Hampshire residents (or citizens of states other than California). Section § 6254.21(c) also prohibits Hoskins from transferring the specified information to any other entity, “through any medium,” even if Hoskins and the recipient have no connection to California or the transfer “takes place wholly outside of the State’s borders.” Healy , 491 U.S. at 336, 109 S.Ct. 2491. Thus, California has projected § 6254.21(c)“onto the rest of the nation.” Dean , 342 F.3d at 103. The Court therefore concludes that Hoskins is likely to succeed on his claim that § 6254.21(c), as applied to out-of-state actors like Hoskins, violates the dormant Commerce Clause. See Sam Francis Found. , 784 F.3d at 1324 (holding that statute “regulating out-of-state art sales where ‘the seller resides in California,’ … and no other connection to California need exist, violates the dormant Commerce Clause as an impermissible regulation of wholly out-of-state conduct.”); see also Dean , 342 F.3d at 103 (holding that Vermont statute that directly regulated speech on the internet outside of Vermont was a “per se violation of the dormant Commerce Clause”).

E. Hoskins’s § 230 challenge

Under § 230(c)(1)“[n]o provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Under § 230(e), “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Section 230 therefore “precludes liability that treats a website as the publisher or speaker of information users provide on the website. In general, this section protects websites from liability for material posted on the website by someone else.” Doe v. Internet Brands, Inc. , 824 F.3d 846, 850 (9th Cir. 2016). More specifically, § 230 immunity applies when “(1) the defendant [is] a provider or user of an interactive computer service; (2) the cause of action treat[s] the defendant as a publisher or speaker of information; and (3) the information at issue [is] provided by another information content provider.” Hassell v. Bird , 247 Cal.App.4th 1336, 1362, 203 Cal.Rptr.3d 203 (2016) (citation and quotation marks omitted).Hoskins claims that, as owner and operator of Northeastshooters.com, he is a “provider of an interactive computer service” under § 230(c)(1), who is entitled to immunity from any liability for the content created on the website by third parties. Doc. 19–1 at 24 (citing § 230(c) ). He argues that the Office’s takedown request “treat[s] [him] as the publisher or speaker of third-party content in violation of § 230.” Doc. 19–1 at 24 (internal quotation marks omitted). Hoskins further asserts § 6254.21(c) is inconsistent with § 230(e), which provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” See FAC at ¶ 56. Hoskins therefore requests “a declaratory judgment stating that the Defendant has violated his rights under Section 230.” Id. at 17 ¶ 3.

Defendant takes no position on whether Hoskins qualifies as “a provider of an interactive computer service” or whether he is entitled to immunity under § 230(c). See Doc. 20 at 28. Instead, Defendant argues that § 6254.21(c) is entirely consistent with § 230(c) in that both preclude Hoskins from facing any liability because “subdivision (e) of section 6254.21… provides Hoskins with the same immunity from liability, using the exact same definition of interactive computer service, as does 47 U.S.C. § 230.” Id.

Hoskins’s claim is premised on the assumption that the Office’s takedown request violates his § 230 immunity. Although the Office’s takedown demand may have erroneously assumed Hoskins qualified as a “publisher” or “speaker” of the speech at issue here (headednorth’s re-posting the legislators’ personal information)—an issue the Court need not and does not decide—the demand did not violate his purported immunity under § 230.

To the extent Plaintiffs assert § 6254.21(c)‘s mandatory attorney’s fees provision violates § 230, that issue is not properly before the Court. As explained in detail above, attorney’s fees are not available under § 6254.21(c) unless and until (1) the plaintiff brings a lawsuit in state court for declaratory and/or injunctive relief and (2) the court finds that the defendant violated § 6254.21(c)(1). If the defendant asserts it is entitled to § 230 immunity as an “interactive computer service provider or access software provider,” the court would have to determine (1) whether that is correct; and, if so, (2) whether imposing attorney’s fees would amount to “liability” in violation of § 230 immunity; and, if so, (3) whether § 6254.21(e) precludes a fee award. Those issues are not ripe for the court’s review.

Though not on all fours with the facts of this case, Google, Inc. v. Hood , 822 F.3d 212, 225–26 (5th Cir. 2016), guides the Court’s analysis here as the only analogous case the Court can find. Hood involved Google’s declaratory judgment challenge to a state attorney general’s administrative subpoena that “sought information on Google’s platforms, advertising practices, and knowledge of and efforts to police ‘dangerous’ or ‘illegal’ content.” Id. at 218. The subpoena stated that if Google refused to comply, the attorney general ” ‘may apply to’ a state court ‘for an order compelling compliance.’ ” Id.

Before responding to the subpoena or seeking relief in state court, Google filed a declaratory judgment case in federal court. Id. at 219. Google alleged, among other things, that the attorney general’s investigation violated its § 230 immunity, and that any further proceedings to enforce the subpoena would likewise violate that immunity. Id. at 219–20. The attorney general moved to dismiss the case on numerous grounds, including that Google’s claims were not ripe for adjudication. See Google, Inc. v. Hood , 96 F.Supp.3d 584, 592 (S.D. Miss. 2015), rev’d , 822 F.3d 212. The district court disagreed, and found that the claims were ripe because “Google is not required to expose itself to civil or criminal liability before bringing a declaratory action to establish its rights under federal law, particularly where the exercise of those rights have been threatened or violated.” Id. at 594 (citing MedImmune , 549 U.S. at 128–29, 127 S.Ct. 764 ).

The Fifth Circuit reversed, holding that the “administrative subpoena was not ripe for adjudication.” Hood , 822 F.3d at 224. The court so held because (1) the subpoena was “non-self-executing,” meaning that Google could not be sanctioned for not complying with it; (2) the attorney general could, but did not file a state court action to enforce Google’s compliance; and (3) if the attorney general did file such a suit, Google could raise its claimed § 230 immunity as a defense. See id. at 224–26 ; see also id. at 227 n.12 (“[W]e do not suggest that section 230 of the CDA would not apply if Hood were to eventually bring an enforcement action, or cannot be applied at the motion-to-dismiss stage.”). For these reasons, the Fifth Circuit held that Google’s “pre-enforcement challenge” was unripe. Id. at 226.

This is consistent with the Court’s understanding that § 230 immunity is an affirmative defense. See Zeran v. America Online, Inc. , 129 F.3d 327, 330 (4th Cir. 1997) ; Doe v. GTE Corp. , 347 F.3d 655, 657 (7th Cir. 2003) ; Barnes , 570 F.3d at 1109. As the Ninth Circuit explained, § 230(c)(1)“only protects from liability (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a … cause of action , as a publisher or speaker (3) of information provided by another information content provider.” Barnes v. Yahoo!, Inc. , 570 F.3d 1096, 1100–01 (9th Cir. 2009) (emphasis added); see also Fed. Trade Comm’n v. Lead C lick Media, LLC , 838 F.3d 158, 173 (2d Cir. 2016) (observing that courts have interpreted § 230 to provide immunity from “claims”). Section 230(c)(1) therefore “protects certain internet-based actors from certain kinds of lawsuits. ” Barnes , 570 F.3d at 1099 (emphasis added)); Zeran v. America Online, Inc. , 129 F.3d 327, 330 (4th Cir. 1997) (holding “lawsuits seeking to hold a service provider liable [for third party content] … are barred” under § 230(c)(1) ).

As § 6254.21(c) and the demand letter make clear, the only liability Hoskins faced was a potential lawsuit and attorney’s fees and costs if he failed to comply with the Office’s request. Despite extensive research, the Court cannot find any authority that suggests the Office’s letter even triggers Hoskins’s purported § 230 immunity, much less violates it, as the letter is not a “cause of action,” and did not impose any kind of “liability” on Hoskins—even if he ignored it. See Barnes , 570 F.3d at 1099 ; Hassell , 247 Cal.App.4th at 1363, 203 Cal.Rptr.3d 203 (“The [court’s] removal order does not violate section 230 because it does not impose any liability on Yelp.”). Assuming that Hoskins is entitled to § 230 immunity, Hoskins does not cite, and the Court cannot find, any case holding that the mere threat of a lawsuit that ostensibly would violate his § 230(c) immunity constitutes a violation of § 230 itself. Likewise, the Court is unaware of any authority that suggests the Court has jurisdiction over a declaratory judgment claim that a threatened lawsuit would violate § 230. Hood , the only case with similar circumstances the Court can locate, suggests otherwise. Accordingly, the Court finds that Hoskins’s claim that Defendant “violated Hoskins’ rights under Section 230,” FAC at ¶ 55, is not ripe for review. Hoskins is therefore not likely to succeed on the merits of his § 230 claim.

F. Remaining preliminary injunction factors

As outlined above, the Court finds that Plaintiffs are likely to succeed on the merits of their challenges to § 6254.21(c) under the First Amendment and the Commerce Clause. “Both [the Ninth Circuit] and the Supreme Court have repeatedly held that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ ” Klein v. City of San Clemente , 584 F.3d 1196, 1207–08 (9th Cir. 2009) (quoting Elrod v. Burns , 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ). “The harm is particularly irreparable where, as here, [Plaintiffs] seek[ ] to engage in political speech.” Id. Plaintiffs have “therefore demonstrated a likelihood of irreparable injury in the absence of an injunction.” Id.

Plaintiffs have also demonstrated that an injunction is in the public interest, and that the equities tip in their favor. The Ninth Circuit has broadly held that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Melendres v. Arpaio , 695 F.3d 990, 1002 (9th Cir. 2012) ; see also Gordon v. Holder , 721 F.3d 638, 653 (D.C. Cir. 2013) (“the [district] court acknowledged the obvious [when issuing an injunction]: enforcement of an unconstitutional law is always contrary to the public interest” (collecting cases)). Further, any “ongoing enforcement of the potentially unconstitutional regulations … would infringe not only the free of expression interests of [Plaintiffs], but also the interests of other people” subjected to § 6254.21(c). Klein , 584 F.3d at 1208 (quoting Sammartano v. First Jud. Dist. Ct. , 303 F.3d 959, 974 (9th Cir. 2002) ). “The balance of equities and the public interest thus tip sharply in favor of enjoining the [statute].” Id. ; see also id. (noting that Ninth Circuit “caselaw clearly favors granting preliminary injunctions to a plaintiff … who is likely to succeed on the merits of his First Amendment claim”). Accordingly, the Court finds that a preliminary injunction restraining and enjoining the Office from enforcing § 6254.21(c) against Plaintiffs is proper.  V. CONCLUSION AND ORDER

For the foregoing reasons, the Court finds that Plaintiffs are likely to succeed on their claims that § 6254.21(c) violates the First Amendment as applied to them, and also violates the dormant Commerce Clause as applied to Hoskins. The Court further finds that the remaining preliminary injunction factors weigh in Plaintiffs’ favor. The Court therefore preliminarily RESTRAINS AND ENJOINS Defendant from applying or enforcing § 6254.21(c) against Plaintiffs.

Under Federal Rule of Civil Procedure 65(c), the Court “may issue a preliminary injunction … only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to be wrongfully enjoined or restrained.” Plaintiffs request that the Court set a nominal bond of $1.00. Doc. 19–5 at 2. Defendant offers no opinion on the matter, and has not indicated it will suffer any financial loss as a result of the injunction. Accordingly, Plaintiffs shall post a nominal bond of $1.00 before the preliminary injunction will issue.

On or before March 10, 2017, the parties shall file a joint status report informing the Court how they wish to proceed.

IT IS SO ORDERED.

cited https://casetext.com/case/publius-v-boyer-vine

JACK B. WEINSTEIN, Senior District Judge

Counsel for Larry Thompson, David A. Zelman, 612 Eastern Parkway, Brooklyn, NY 11225, 718-604-3072, Cary London, 30 Broad Street, Suite 702, New York, NY 10004, 212-203-1090

Counsel for Pagiel Clark, Paul Montefusco, Gerard Bouwmans, Phillip Romano, Kavin Suresh Thadani, New York City Law Department, 100 Church Street, Rm 3-195, New York, NY 10007, 212-356-2351, Phillip R. DePaul, New York City Law Department, 100 Church Street, Rm 3-208, New York, NY 10007, 212-356-2413

MEMORANDUM AND ORDER

JACK B. WEINSTEIN, Senior District Judge:

Table of Contents

I. Introduction…181

II. Background…182

A. Warrantless Entry…182

B. Dismissal of Plaintiff’s Criminal Charges…183

i. State Criminal Prosecution…183

ii. Criminal Court Appearances…184

iii. Evidentiary Hearing…185

III. Law…190

A. Burden of Proof for Exigency…190

i. Exigent Circumstances Generally…190

ii. Other Circuit Precedent…191

iii. Second Circuit Precedent…191

iv. Burden Shifting…192

v. Burden of Proof Problem…193

B. Termination in Favor of the Accused…195

IV. Application of Law…195

A. Exigency Burden…195

B. Favorable Termination…196V. Conclusion…197

A. Exigent Circumstances Burden…197

B. Malicious Prosecution…197

I. Introduction

In this 42 U.S.C. § 1983 civil jury trial, two rules of law of the Second Circuit have been applied that can and should be changed: 1) where the police enter a house without a warrant and rely on exigent circumstances, the burden of proof on non-exigency is on the plaintiff-householder; and 2) where a civil § 1983 plaintiff must prove his state criminal prosecution ended in a ruling on the merits in his favor, an ambiguous ruling by the State court is construed as a ruling that dismissal was not on the merits, that is to say it was not on a finding of non-guilt.

Both these rules erect an unnecessary barrier to justice; both improperly limit enforcement of federal law in civil suits against police officers when they violate the constitution. They seriously dilute the force of the federal constitutional protection against police violators of constitutional rights.

It is trite but still true that a person’s home is conceptually his castle. This principle was taken from English common law and chiseled into the granite of our Constitution. See U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ….”); see also Welsh v. Wisconsin , 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (“It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” (citation omitted) ). Its origins date as far back as the early 17^th century.

[T]he house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose; and although the life of man is a thing precious and favoured in law; … if thieves come to a man’s house to rob him, or murder, and the owner of his servants kill any of the thieves in defence of himself and his house, it is not felony, and he shall lose nothing …. [E]very one may assemble his friends and neighbours to defend his house against violence: but he cannot assemble them to go with him to the market, or elsewhere for his safeguard against violence: and the reason of all this is, because domus sua cuique est tutissimum refugium.

Semayne’s Case , 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195 (K.B. 1603); see also 4 William Blackstone, Commentaries 223 (1765–1769) (“And the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle ….”).

The present case forces a reassessment of this oft-repeated maxim. It poses questions about what the ordinary law-abiding citizen can, and should, do to protect himself and his family from an unwarranted, but possibly lawful, governmental intrusion into his home. Compare Jason Brennan, When All Else Fails: The Ethics of Resistance to State Injustice 2, 4 (2019) (“[O]ne pressing question for political philosophy is what ordinary citizens are licensed to do in the face of injustice…. Instead of exit, voice, or loyalty, this book defends the fourth option: resistance…. [It] includes more active forms of resistance, such as blocking police cars, damaging or destroying government property, deceiving and lying to government agents, or combating government agents.”) with I. Bennett Capers, Criminal Procedure and the Good Citizen , 118 Colum. L. Rev. 653, 663 (2018) (“[T]he good citizen should not hesitate to open his bag, pocket, or home to the police, or to otherwise consent to a search.”).

Plaintiff Larry Thompson brings this action against defendant police officers pursuant to 42 U.S.C. § 1983. The litigation results from an encounter between police officers responding to a report of serious baby abuse and a new father intent on protecting his family from what he believed to be an unlawful forced entry into his apartment.

At 10:00 p.m. one evening in Brooklyn, plaintiff, his wife, and their one-week old daughter were at home preparing for bed. Four armed uniformed police officers arrived at their door seeking to enter the apartment without a warrant. The officers were there to investigate a partially corroborated 911 call reporting that a child was being molested.

They believed the exigency of an ongoing possible threat to a child’s safety justified their warrantless entry. Thompson, with his child safe and well-cared for in the back bedroom, believed otherwise. He blocked them from entering and, according to the officers’ testimony, pushed one of the officers. They forced him to the ground, arrested him, handcuffing him, and according to plaintiff, beat him. The report of child abuse turned out to be false—the 911 call came from a disturbed relative temporarily living in plaintiff’s apartment. The child was never in any danger.

Before the court are two vexing issues related to plaintiff’s unlawful entry and malicious prosecution claims: first , which party bears the burden of proof on the exigent circumstances exception to the warrant requirement; and, second , whether, as an element of his malicious prosecution claim, plaintiff can establish that his criminal charges were terminated on the merits in his favor. This memorandum addresses both issues.

II. Background

A. Warrantless Entry

At about 10:00 p.m., on the night of January 15, 2014, plaintiff was home with his fiancé, now wife, and new born baby in their Brooklyn apartment. Trial Tr. 601:12–24, Jan. 25, 2019. The family was getting ready to go to sleep. Id. at 601:22–24. The Thompson’s were in their underwear. Id. at 601:20–602:1. Earlier that day, the parents had taken their one-week old daughter to her first doctor’s check-up. Id. at 598:1–14. She received a clean bill of health. Id. at 598:15–18.

His wife’s sister, Camille Watson, who was staying in the couple’s apartment, called 911. Trial Tr. 263:14–24, Jan. 24, 2019. She reported that her week-old niece was being sexually abused by the baby’s father at 339 Lincoln Place, Apt. 2E, in Brooklyn. Trial Tr. 496:13–18, Jan. 25, 2019. She identified the father as a 41-year-old black male, roughly five feet five inches tall, and 150 pounds. Id. Plaintiff met that description. See id. at 508:11–509:8. She stated that the baby had red rashes on her buttocks area. Id. at 496:13–18.

Two Emergency Medical Technicians (“EMT”) were directed to the scene by radio to investigate the report of child abuse. Id. at 456:20–25. They were met outside by a woman who did not identify herself, but they assumed to be the 911 caller. Id. at 461:5–10. The female, later identified as Camille, asked the EMTs to follow her. Id. at 461:12–14. Camille led them into the apartment where they observed another woman holding a baby. Id. at 461:15–25. The EMTs were confronted by plaintiff. Id. at 462:19–462:6. Thompson appeared angry and asked them what they were doing in his apartment. Id. at 463:20–464:18. He denied that anyone in the apartment called 911. Id. at 464:12–18. The EMTs told him that they might have the wrong address and left. Id. at 464:19–21.

Police Officers Pagiel Clark, Paul Montefusco, Gerard Bouwmans, and Phillip Romano received a radio direction to respond to 339 Lincoln Place and investigate a man fitting plaintiff’s description for suspected child abuse. See id. at 503:7–504:9. The call first came over as a report of “possible child abuse,” but was later changed to an “assault in progress.” Trial Tr. 334:15–335:2, Jan. 24, 2019. The EMTs informed the arriving officers that they received a report of a child being abused and they needed to check on the baby. Trial Tr. 464:8-465:18, Jan. 25, 2019; see also id. at 480:5–6 (“If we don’t make patient contact, then we get in trouble.”). They told the police officers that they had left the apartment without examining the baby because plaintiff seemed “aggressive” and they felt “uncomfortable.” See id. at 465:16–18, 478:3–479:9.

One officer knocked on the door of apartment 2E and Thompson opened it. Id. at 510:10–16, 515:22–516:2. The officers stood outside of the apartment door. Id. at 510:17–511:14. They were armed and in uniform. Id. at 512:12–20. They told Thompson that they needed to enter the apartment. Trial Tr. 295:11–14, Jan. 24, 2019. He responded that they were not coming in without a warrant and refused to let them pass. Trial Tr. at 611:1–10, Jan. 25, 2019.

Officer Montefusco attempted to cross the threshold. See id. at 523:2–15; Trial Tr. 303:23–304:1, Jan. 24, 2019. Thompson blocked his path and, according to the officers’ testimony, shoved Officer Montefusco. E.g. , Trial Tr. 523:16–19, Jan 25. 2019; Trial Tr. 107:18–21, Jan. 23, 2019. The officers rushed in, pushing Thompson to the floor and handcuffing him. Trial Tr. 524:2–10, Jan. 25, 2019. Thompson testified that he did not resist arrest, but that Officer Montefusco threw him to the ground and began to choke him, while the other officers kicked and punched him. Trial Tr. 711:24–712:15, Jan. 28, 2019. Defendants contend that he resisted arrest by flailing his arm preventing the officers from placing handcuffs on him. Trial Tr. 570:16–24, Jan. 25, 2019.

The officers entered the apartment with the EMTs. Id. at 485:4-5. The EMTs observed red marks on the baby’s buttocks but determined, after taking the child to the hospital, there was only a diaper rash. See id. at 486:2–7; Pls.’ Summ. J., Ex. D, Dillahunt Dep. 25:1–25. There was no evidence of abuse. See Trial Tr. 486:2–7, Jan. 25, 2019.

Camille, who had called in the false report, suffered from mental illness. Trial Tr. 237:16–20, Jan. 24, 2019. The police sensed that she had some form of mental dysfunction. Id. at 324:3–13.

Thompson was transported in a police patrol car to the seventy-seventh precinct. Trial Tr. 538:16–22, Jan. 25, 2019. He requested medical attention for back and neck pain, and was brought by two of the officers to Interfaith Hospital. See id. at 539:9–540:8; Def. Ex. F, Interfaith Hospital Medical Records, Jan. 16, 2014. An x-ray showed swelling, but no permanent injury. See Def. Ex. F; Trial Tr. 636:23–637:1, Jan. 25, 2019. Pain medication and a neck brace were prescribed. Trial Tr. 635:18–19, Jan. 25, 2019; Trial Tr. 330:7–9, Jan. 24, 2019. He was returned by the police to the precinct and then was transported to Brooklyn Criminal Court. Trial Tr. 637:12–638:7, Jan. 25, 2019.

B. Dismissal of Plaintiff’s Criminal Charges

i. State Criminal Prosecution

Thompson was arrested on January 15, 2014 following the incident in his home. Id. at 530:11–531:3. He was charged with obstructing governmental administration in the second degree, NYPL § 195.05, and resisting arrest, NYPL § 205.30. Id. at 531:24–532:7. A person is guilty of obstructing governmental administration in the second degree in New York,

when he [or she] intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function by means of intimidation, physical force or interference, or by means of any independently unlawful act, or by means of interfering ….

N.Y. Penal Law § 195.05.

Under New York law, this crime has four elements: “(1) prevention or attempt to prevent (2) a public servant from performing (3) an official function (4) by means of intimidation, force or interference.” Cameron v. City of New York , 598 F.3d 50, 68 (2d Cir. 2010). Police officers must be engaged in lawful conduct to support an arrest for obstruction. Kass v. City of New York , 864 F.3d 200, 207 (2d Cir. 2017) (“[T]he public servant must be performing an official function that is ‘authorized by law.’ ” (citation omitted) ).

” ‘Interference’ within the meaning of Section 195.05 must be a ‘physical interference.’ ” Basinski v. City of New York , 706 F. App’x 693, 698 (2d Cir. 2017) (citing People v. Case , 42 N.Y.2d 98, 101, 396 N.Y.S.2d 841, 365 N.E.2d 872 (1977) ). “New York courts, however, have construed ‘physical interference’ broadly.” Id. (citing In re Davan L. , 91 N.Y.2d 88, 91, 666 N.Y.S.2d 1015, 689 N.E.2d 909 (1997) ). As the United States Court of Appeals for the Second Circuit explained in Kass v. City of New York :

The [next] element is that an individual must prevent or attempt to prevent a public official from performing a lawful official function by interfering with that function. Although the interference must at least in part be “physical” and cannot consist solely of verbal statements, an officer may consider both words and deeds in determining whether the individual’s conduct is sufficiently obstructive to justify an arrest. Such interference can consist of inappropriate and disruptive conduct at the scene of the performance of an official function even if there is no physical force involved. This element of the statute is satisfied when an individual intrudes himself into, or gets in the way of, an ongoing police activity.

864 F.3d at 207 (citations omitted).

A person is guilty of resisting arrest when he or she “intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person.” N.Y. Penal Law § 205.30. Probable cause for resisting arrest arises only when there is probable cause for charging some other crime. Curry v. City of Syracuse , 316 F.3d 324, 336 (2d Cir. 2003).

ii. Criminal Court Appearances

Plaintiff was arraigned on January 17, 2014. After being held in custody for two days, he was released on his own recognizance. See Trial Tr. 658:4–18, Jan. 25, 2019.

Thompson next appeared in court about two months later. According to his testimony, he was offered an Adjournment in Contemplation of Dismissal and told to “stay out of trouble and everything will go away.” Id. at 644:14–16. He rejected this offer because he “ha[d] to see this to the end” and “didn’t think … anything should be on [his] record about this.” Id. at 644:18–645:4.

He returned to court a month later on April 9, 2014. At this hearing, his criminal charges were dismissed “in the interest of justice” on motion of the Brooklyn District Attorney. The entire transcript of this hearing reads:

Proceedings

COURT OFFICER: Calendar add-on 2014KN004196, Thompson.

MS. LUNN [defense counsel]: The people have agreed to dismiss. It’s Mr.

Scott’s case. We advanced it from – –

MS. TIERNY: People are dismissing the case in the interest of justice.

THE COURT: The matter is dismissed.

Def. Ex. B, Transcript of State Criminal Proceeding, Apr. 9, 2014.

Neither the prosecution nor the court provided any specific reasons on the record for the dismissal. Nor was there any mention of the charges being dismissed pursuant to New York Criminal Procedure Law (“CPL”) § 170.40, which is the section of the CPL devoted to interest of justice dismissals. Section 170.40 of the CPL requires the court to state its reasons on the record for dismissing a matter in the interests of justice. See N.Y. Crim. Proc. Law § 170.40 (“An order dismissing an accusatory instrument … in the interest of justice may be issued upon motion of the people or of the court itself as well as upon that of the defendant. Upon issuing such an order, the court must set forth its reasons therefor upon the record.”).

Plaintiff’s Certificate of Disposition states that the charges were dismissed on motion of the District Attorney and indicates that the case was sealed pursuant to CPL § 160.50. Pl. Ex. 5, Certificate of Disposition, Apr. 8, 2015. This State sealing provision, entitled “Order upon Termination of Criminal Action in Favor of the Accused,” is applicable only to those whose criminal actions were terminated in their favor (as defined within CPL § 160.50(3) ). See N.Y. Crim. Proc. Law § 160.50.

iii. Evidentiary Hearing

An evidentiary hearing was held on January 24, 2019 in federal court. Renate Lunn, a Legal Aid attorney and plaintiff’s former defense counsel, testified regarding her recollections of plaintiff’s criminal prosecution.

On direct examination, defense counsel Lunn said she could not remember why the prosecutor moved for dismissal. See Trial Tr. 209:19–24, Jan. 24, 2019. She testified that she had never filed a motion to dismiss in the interest of justice. Id. at 207:23–25. She did recall making an oral motion to dismiss for facial insufficiency on the ground that the complaint did not lawfully state a crime. Id. at 210:6–9. The criminal court judge denied this motion and allowed her to put the motion in writing, which she never did. Id. at 210:11–211:2.

Q Ms. Lunn, I bring your attention to January 15th of 2014 where were you employed?

A Legal Aid Society in New York City.

Q Did there come a time when you represented a gentleman named Larry Thompson?

A Yes.

Q Do you remember what Larry Thompson was charged with?

A I’d have to refresh from my recollection by looking at the complaint, but I believe it was obstructing governmental administration, resisting arrest.

Q Were you the assigned attorney for Legal Aid Society for his case?

A Yes.

Q Did he plead guilty or was his case dismissed?

A His case was dismissed.

Q Did you file a motion under the interest of justice to have the case dismissed?

A No.

Q Did you — in your legal opinion, can you just tell us what happened when you went to court with this case for the best of your recollection?

A The first time it was on, I think the prosecution provided discovery. It was adjourned — well, after arraignment, it was adjourned for discovery, we received some discovery. And then, after that, the next court date it was dismissed….

Q Was there any evidence at all in the case that this case was dismissed out of sympathy for the accusation or for any ill health reason that he had? …

A May I look at my notes to refresh my recollection? I have notes from my conversation with prosecutors…. I’m just looking. I don’t have any information about health issues. And when I spoke to the prosecutor, what I remember about this case was just being outraged at the thought that someone could be arrested for obstructing governmental administration in his own home. But I don’t have detailed notes about any sort of sympathetic mitigating circumstances like I would have if I was doing a motion for dismissal in the interest of justice.

Q Understood. Was there any discussion that you recall between you and the prosecutor that there was an inability to proceed by the prosecutor due to a lack of reasonable doubt — lack of probable cause that the case could continue in court to a successful conclusion?

A I honestly don’t remember.

Q Okay. Was there any — do you remember any specific evidence that was brought out in the discovery? You touched upon it that he was in his house, that he was arrested, [do] you remember having a conversation with the prosecutor or the judge that it would be impossible to prosecute him for being in his house and obstructing at the same time?

A Yes. I made a motion at the arraignment to dismiss for facial sufficiency which would be not in — not out of mitigating circumstances, but because — the complaint doesn’t even state a crime. It could not legally state a crime.

Q Was there an opposition to that?

A I think it was asked [by the court] that I put it in writing.

Q And did you?

A No…. The court denied any oral application to dismiss without prejudice.

Q And asked you to put it in writing?

A Yes.

Q Subsequently, the D.A. — did the D.A. tell you they were moving to dismiss …?

A Yes.

Q Did they say anything in regards to that why anything that you recall about that conversation?

A I don’t recall anything about the conversation.

Q Okay. And what was the time, from the time that you made the oral application to dismiss, to the time that the prosecutor said they’re going to dismiss on their own, how long was that?

A I made the oral application at arraignment, and the actual dismissal happened on the second adjourn date….

Id. at 207:8–211:14.

Defense counsel Lunn was asked generally about interest of justice dismissals under CPL § 170.40.

Q Isn’t it true, Ms. Lunn, that there is a specific CPL provision regarding interest of justice dismissal[s] …?

A Yes.

Q Do you recall what that [is]?

A Off the top of my head, no, I remember we call it by the lead case. It’s known as a Clayton motion in New York City.

Q I believe it’s CPL 170.40.

A That sounds right….

Q CPL 170.40 is the interest of justice dismissal provision of the CPL; is that correct?

A Yes. I recently filed such a motion or drafted such a motion so I’m familiar with the standards and the factors the court should look at that are listed in 170.40.

Q Please tell us what you know about the statute?

A It’s a motion that can be made … to dismiss a case in the interest of justice. There’s a series of factors that can be looked at. History and character of the defendant, the nature, if any, of police misconduct. The effect that dismissing the case would have on the community’s trust and faith in the criminal justice system. The level of guilt of the defendant and any harm that was done to anybody. There’s a series of factors that the court may consider not one is necessarily dispositive.

Q Do you recall if there’s a provision in CPL 170.40 which requires the criminal court, if it’s going to make a dismissal in the interest of justice, to state its reasons on the record?

A I don’t remember off the top of my head.

Q Were any?

COURT: It says, “Upon issuing such an order, the Court must set forth its reasons, therefore, on the record.”

Q Was that done?

A No.

Id. at 217:3–220:14.

On cross-examination, she was shown the transcript from the April 9, 2014 hearing. Id. at 212:11-17. She testified that she did not remember any discussions taking place at the criminal court proceeding that were not contained in the transcript. Id. at 214:6-9.

Q Let the record reflect that I have shown Ms. Lunn Defense Exhibit B. Ms. Lunn, do you recognize that document?

A Yes.

Q What does it appear to be to you?

A A transcript of a proceeding in criminal court on April 9, 2014….

Q And in what case does this transcript pertain to?

A People v. Larry Thompson.

Q Is this the transcript for the underlying criminal case against Mr. Thompson that this lawsuit is currently about?

A Yes.

Q And what is the date on the transcript?

A April 9, 2014….

Q Does that accurately reflect the conversation that took place before the criminal court on the last day of the underlying criminal case against the plaintiff, Mr. Thompson?

A I don’t have an independent recollection to say. I don’t have any reason to doubt it and I don’t have any reason to believe that that’s more or less accurate than any other transcript….

Q And is there any information or anything that was that you recall being said at the last criminal court proceeding that’s not contained within this transcript?

A Not that I recall but, of course, if we’d been called to the bench to discuss it, or if there had been some discussion that was off the record that wouldn’t be in the transcript but I don’t remember anything like that….

Q So you have no specific recollection. Any other conversation for the court besides what’s contained in this transcript?

A Correct….

Q And [the transcript] states, you state, “The People have agreed to dismiss. It’s Mr. Scott’s case. We advanced it from.” I read that correctly; right?

A Yes.

Q And Ms. Tierney speaks next…. Was she an assistant district attorney?

A I believe so, but it doesn’t necessarily mean she’s the one assigned to the case. The way courts work in Brooklyn is that there is one district attorney assigned to a courtroom. So she’s handling all the cases in the courtroom. It would be very unlikely that it was her particular case….

Q I understand that, Ms. Lunn. But Ms. Tierney was there on behalf of the People of the State of New York as an assistant district attorney prosecuting the case on that day?

A Yes, correct.

Q Ms. Tierney states people are dismissing the case in the interest of justice?

A Correct….

Q And then the next thing is the court states the matter is dismissed; is that right?

A Correct.

Q There’s no other information here?

A Correct.

Q You don’t make any statements according to this transcript after Ms. Tierney said that the people are dismissing the case in the interest of justice; correct?

A Correct.

Q And you stated earlier that you actually previously made a motion before the court to have the case dismissed; right?

A Yes.

Q And that was orally denied; correct?

A Without prejudice.

Q But it was orally denied?

A Yes.

Q And there was no motion of yours granted in this criminal case; correct?

A Correct.

Q Is there anything in this transcript that affirmatively indicates that the case was being dismissed because there was an affirmative indication that the plaintiff was innocent of the charges he was charged of?

A Not in this transcript, no.

Q And it’s correct that the prosecutor made the decision to dismiss the case; right?

A Yes.

Id. at 212:11–216:18.

Defendants questioned her about the Certificate of Disposition formally dismissing charges against plaintiff.

Q First of all, … referring specifically to Plaintiff’s Exhibit 5, the certificate of disposition, you still have that document in front of you; correct?

A Yes.

Q It states that the case was dismissed on motion of the D.A.; is that right, if you refer your attention to the middle of the case under case “disposition information,” do you see that about halfway down the page?

A Yes, I see that….

Q [U]nder “court action” it states, “Dismissed — motion of D.A.” Correct?

A Correct.

Q And that’s actually what happened, right, the case was dismissed on the motion of the D.A.; right?

A Correct.

Q There’s nothing in this indicate that [states] the dismissal of the criminal charge affirmatively indicate that the plaintiff was innocent of charges?

A Correct.

Q There’s nothing in the criminal court transcript that indicates that the plaintiff[‘]s charges against him were dismissed because there was an affirmative indication that he was innocent of the charges; correct?

A Correct.

Q And it was you don’t know why the district attorney’s office moved to dismiss the case, did you?

A No.

Id. at 220:19–221:21.

In an exchange in the federal hearing, defense counsel Lunn testified that she spoke with an assistant district attorney prior to the April 9, 2014 hearing and was told that the case would be dismissed. She could not recall the specifics of this discussion. Id. at 222:2–10. But the fact that she did not have detailed notes on mitigating factors led her to believe that the discussion was purely about the legal deficiencies of the case. Id. at 222:11–21. She added that, based on her experience and the facts of the case, she did not think it was lawful to arrest the plaintiff for refusing to allow the police into his home. Id. at 223:16–25.

COURT: Well, Ms. Lunn, you state on the record, “The People have agreed to dismiss.” Does that suggest that you had a conversation with the prosecutor?

WITNESS: I did have a conversation with the prosecutor before that court date.

COURT: And what did you and the prosecutor say?

WITNESS: I honestly don’t remember. In looking at my notes from my conversations with Mr. Thompson, I don’t have a lot of notes on mitigating factors and sympathetic factors about his work history or his family history, so I don’t — but I’d be speculating as to exactly what I was saying. I can only say that if I had detailed notes, there’s some cases where I might have detailed notes about someone’s work history, their mental health issues, what’s going on in their lives. And so, those are things [that] I’m calling a prosecutor [with] and sharing with them in the hopes of getting a better disposition. The lack of those notes in the file makes me leads me to believe that the conversation was just about the fact that he was charged with obstructing governmental administration in his own home that there was a legal problem with the case….

COURT: But you had made an oral motion to dismiss [for facial insufficiency], had you not?

WITNESS: Yes.

COURT: And the court denied it?

WITNESS: Correct.

COURT: Asking you to put it in writing?

WITNESS: Correct.

COURT: Did you?

WITNESS: No.

COURT: Do you remember how you argued that motion? What you said?

WITNESS: May I look at the complaint? May I have a moment to refresh my recollection and look at the complaint? … In order for a complaint charging resisting arrest to be facially sufficient, there has to be an allegation that of the arrest was lawful, and in this complaint, the allegation is that the … the police officers instructed Mr. Thompson to allow them into his home and he refused to let them into their home. And in order to be placed under arrest, that was my understanding, and it does not seem to me … a lawful

arrest to arrest someone for not allowing the police into their home…. What I do remember about the case when [plaintiff’s attorney] called me was the idea that someone was arrested in their home for not letting the police into their home. And I think that’s what I would have brought to the court’s attention that very first time that I saw the complaint.

COURT: Anything you want to say that may help decide what the nature of the dismissal was? …

WITNESS: The nature of criminal court as it’s practiced in New York City is that there is an assigned attorney in each courtroom who just has a stack of files and handles stands up on every case and that’s in front of them and their files aren’t always detailed they’re just reading from whatever notes the actual assigned assistant district attorney assigned to particular cases has left for them.

COURT: That may not be the assistant speaking in court as indicated in the record before us.

WITNESS: Exactly. So the assistant speaking in court is not necessarily the person who has reviewed the case and made a decision about it. She is usually reading off of what’s call[ed] a status sheet, some sort of printout that her colleague has provided for her….

COURT: You say on Line 3 the People have agreed to dismiss Mr. Scott’s case and the attorney for the state says the People are dismissing the case. So she made the motion but it was not her case; is that correct?

WITNESS: Yes. I have in my notes that I spoke to assistant district attorney Terry Scott on April 3rd.

COURT: Does it show what you spoke to him about.

WITNESS: No. All I wrote is, “They’ll dismiss!” And then we agreed to advance the case to April 9th.

Id. at 221:24–225:21.

III. Law

A. Burden of Proof for Exigency

i. Exigent Circumstances Generally

“[A] principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest.” Welsh , 466 U.S. at 748, 104 S.Ct. 2091. Warrantless searches inside a home are illegal, unless an exception to the warrant requirement exists.

One exception is the presence of exigent circumstances. “[T]he essential question in determining whether exigent circumstances justified a warrantless entry is whether law enforcement agents were confronted by an urgent need to render aid or take action.” Loria v. Gorman , 306 F.3d 1271, 1284 (2d Cir. 2002) (citation omitted). “[P]olice officers may enter a dwelling without a warrant to render emergency aid to a person whom they reasonably believe to be in distress and in need of that assistance.” Tierney v. Davidson , 133 F.3d 189, 196 (2d Cir. 1998). They may do this if, based on the totality of the circumstances known to the investigating officers at the time of entry, it was “objectively reasonable” for them to do so. See id. ; Mincey v. Arizona , 437 U.S. 385, 393–94, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (“[W]arrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.” (citation omitted) ). ii. Other Circuit Precedent

In criminal cases, it is well-established that the police officers bear the burden of proving exigent circumstances. See, e.g. , Welsh , 466 U.S. at 749–750, 104 S.Ct. 2091 (“[E]xceptions to the warrant requirement are few in number and carefully delineated, and … the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.”); Kentucky v. King , 563 U.S. 452, 474, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (“[T]he police bear a heavy burden … when attempting to demonstrate an urgent need that might justify warrantless searches.”).

The law is less clear in a civil action under 42 U.S.C. § 1983. There is a split among the circuit courts over which party has the burden of proof in civil cases.

The United States Court of Appeals for the Third, Sixth, Ninth, and Tenth Circuits have assigned the burden of proof on the government. See Parkhurst v. Trapp , 77 F.3d 707, 711 (3d Cir. 1996) ; Hardesty v. Hamburg Township , 461 F.3d 646, 655 (6th Cir. 2006) abrogated on other grounds by Morgan v. Fairfield Cty., Ohio , 903 F.3d 553 (6th Cir. 2018) ; Hopkins v. Bonvicino , 573 F.3d 752, 764 (9th Cir. 2009) ; Armijo ex rel. Armijo Sanchez v. Peterson , 601 F.3d 1065, 1070 (10th Cir. 2010). These courts generally rely on criminal cases for support. See, e.g. , Armijo ex rel. Armijo Sanchez v. Peterson , 601 F.3d at 1070 (citing United States v. Reeves , 524 F.3d 1161, 1169 (10th Cir. 2008) (reversing district court’s denial of criminal defendant’s motion to suppress evidence obtained in violation of the Fourth Amendment) ).

By contrast, the United States Court of Appeals for the Seventh and Eighth Circuits have placed the burden of proof on the plaintiff. Bogan v. City of Chicago , 644 F.3d 563, 568 (7th Cir. 2011) ; Der v. Connolly , 666 F.3d 1120, 1128 (8th Cir. 2012). They base their conclusion largely on what they describe as the “established principles governing civil trials,” refusing to adopt the criminal governmental burden in civil actions. E.g. , Bogan v. City of Chicago , 644 F.3d at 570 (“[E]mploying a criminal burden of proof is contrary to established principles governing civil trials, namely, that the ultimate risk of nonpersuasion must remain squarely on the plaintiff.” (citations omitted) ); cf. Crowder v. Sinyard , 884 F.2d 804, 824 (5th Cir. 1989) (“Applying the long-standing rule that the plaintiff bears the burden of proving each essential element of a claim, we agree that the court erred in placing upon the defendants the burden of proof” with respect to the plain view exception to the warrant requirement.).

iii. Second Circuit Precedent

The leading case in the United States Court of Appeals for the Second Circuit on this issue appears to be Ruggiero v. Krzeminski , 928 F.2d 558 (2d Cir. 1991). It indicates that the court shares the apparent view of the Seventh and Eighth circuits.

In Ruggiero , plaintiffs brought § 1983 claims for an unlawful search alleging that defendant police officers’ warrantless search of their home was not excused by one of the exceptions to the warrant requirement, such as consent. Id. at 560.

A question on appeal was whether the trial judge erred by failing to instruct the jury that the burden of proving an exception to the Fourth Amendment warrant requirement rested on the defendants. Id. at 562. The court expressly rejected the argument that once a plaintiff established that the search was not authorized by a warrant, the burden shifted to the defendant to prove that the search was justified by a specific exception. See id. at 563. It explained:

It is true that searches and seizures conducted without warrants are presumptively unreasonable . The operation of this presumption, contrary to the Ruggieros’ contention, cannot serve to place on the defendant the burden of proving that the official action was reasonable. Rather, the presumption may cast upon the defendant the duty of producing evidence of consent or search incident to an arrest or other exceptions to the warrant requirement. However, the ultimate risk of nonpersuasion must remain squarely on the plaintiff in accordance with established principles governing civil trials. See Fed.R.Evid. 301. We see no reason to depart from the usual allocation of burdens in a civil trial.

Id. (emphasis added) (citations omitted).

The Court of Appeals for the Second Circuit has not overruled Ruggiero . See Tirreno v. Mott , 375 F. App’x 140, 142 (2d Cir. 2010) (providing a summary of Second Circuit precedent post- Ruggiero ). It continues to cite it approvingly in cases involving the exigent circumstances exception. See, e.g. , Harris v. O’Hare , 770 F.3d 224, 234 n.3 (2d Cir. 2014), as amended (Nov. 24, 2014) (“Of course, as in all civil cases, ‘the ultimate risk of non-persuasion must remain squarely on the plaintiff in accordance with established principles governing civil trials.’ ” (citing Ruggiero , 928 F.2d at 563 ) ); Tierney v. Davidson , 133 F.3d at 196 (“A[n] … important distinction is that the burden in the state [criminal] action was on the state to prove that an exception to the warrant requirement applied, whereas [in civil cases] the burden is on [the plaintiff] to establish that the search was unlawful.” (citing Ruggiero , 928 F.2d at 563 ) ); cf. Jackson v. City of New York , 29 F.Supp.3d 161, 176 n.20 (E.D.N.Y. 2014) (stating that the presumption that warrantless searches are unreasonable “does not shift the burden of persuasion to defendants” (citing Ruggiero , 928 F.2d at 563 ) ).

Yet, some uncertainty apparently remains regarding the scope and propriety of the Second Circuit’s policy. Post- Ruggiero , the court has, on occasion, adopted the criminal burden of proof in civil cases involving exceptions to the warrant requirement. In Anobile v. Pelligrino , 303 F.3d 107 (2d Cir. 2002), a § 1983 action challenging the lawfulness of a warrantless search, the court neither distinguished nor cited Ruggiero for its assertion that “[t]he official claiming that a search was consensual has the burden of demonstrating that the consent was given freely and voluntarily.” Id. 124 (citation omitted). Similarly, in Loria v. Gorman , 306 F.3d 1271 (2d Cir. 2002), a § 1983 case alleging unlawful entry, the court failed to cite Ruggiero , instead relying on Welsh v. Wisconsin , for its conclusion “that the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.” Id. at 1284–85 (citation omitted). Some district courts in this circuit have placed the burden of persuasion on the police. See, e.g. , Webster v. City of New York , 333 F.Supp.2d 184, 194 (S.D.N.Y. 2004) (“Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.” (citation omitted) ); Palmieri v. Kammerer , 690 F.Supp.2d 34, 44-45 (D Conn 2010) (“The police officer, however, bear[s] a heavy burden when attempting to demonstrate an urgent need.” (alteration in original) (citation omitted) ).

iv. Burden Shifting

Ruggiero recognizes that warrantless searches create a presumption of unreasonableness that “may cast upon the defendant the burden of produc[tion].” Id. at 563. But it maintains “established principles governing civil trials” require that the burden of persuasion remains with the plaintiff. Id. ; cf. Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248, 255–56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (finding that, in employment discrimination cases, while defendant carries the burden of production to rebut plaintiff’s prima facie case of discrimination, plaintiff retains the burden of persuasion); United States v. $ 557,933.89, More or Less, in U.S. Funds , 287 F.3d 66, 76 n.5 (2d Cir. 2002) (noting how the Civil Asset Forfeiture Reform Act of 2000 overhauled civil forfeiture procedure by placing the burden of proving, by a preponderance of the evidence, the right to forfeiture on the government, who acts as the plaintiff).

The Second Circuit relies on the presumption definition, Federal Rule of Evidence 301, for the proposition that the burden of persuasion on exigency does not shift to the police. Ruggiero , 928 F.2d at 563. This is what Rule 301 states (emphasis added):

In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally .

It is not necessary, however, to use “presumptions” at all, rather than a plain unvarnished “burden of proof” analysis.

The present rule placing pleading and proof burdens on plaintiffs in civil cases is not absolute. For example, the Second Circuit has held in false arrest cases that when an arrest is made without a warrant, the defendant bears the burden of proving probable cause as an affirmative defense. See, e.g. , Mitchell v. City of New York , 841 F.3d 72, 77 (2d Cir. 2016) ; Raysor v. Port Auth. of New York & New Jersey , 768 F.2d 34, 40 (2d Cir. 1985) (“[A] deprivation of liberty without ‘reasonable cause’ is a section 1983 violation as to which the defendant bears the burden of proving reasonableness ….” (citations omitted) ); Dickerson v. Napolitano , 604 F.3d 732, 751 (2d Cir. 2010). The Second Circuit has also held that, in customs forfeiture actions under 19 U.S.C.A. § 1595a, once the government demonstrates probable cause that the merchandise was used in illegal activities, the burden of persuasion then shifts to the claimant to show, by a preponderance of the evidence, that the merchandise is not subject to forfeiture. See United States v. Davis , 648 F.3d 84, 96 (2d Cir. 2011) ; 19 U.S.C. § 1615.

v. Burden of Proof Problem

The Court of Appeals—like most courts—relies upon the often-confusing concept of presumptions in its analysis. See Ruggiero v. Krzeminski , 928 F.2d at 563. Instead, it should, it is respectfully suggested, rely on a clean and clear burden of proof analysis eliminating any reference to presumptions.

The issue before the court can best be summed up as a simple burden of proof problem. The burden is on the police to supply a warrant or some other rationale for entry into a person’s home, such as “exigent circumstances” or “consent” or “hot pursuit.” See Weinstein’s Federal Evidence § 301App.01[4] at 301 App.–11 (2d ed. 2009) (“The considerations that determine which party shall bear responsibility for a particular aspect of the case are policy, fairness, and probability…. As a matter of policy, imposing the burden on plaintiff serves to handicap recovery in [certain] cases. Fairness suggests access to evidence, ease of proof, and perhaps general considerations of credibility.”). This is not a problem of presumptions—a foggy term that should be avoided for it can be confusing to judges and juries. See Fed. R. Evid. 301 advisory committee’s note to 1974 Enactment (explaining courts’ duties when instructing parties on presumptions). The federal rule on presumptions—stating that presumptions should not shift burdens—was ultimately written after much dispute. See Daniel J. Capra, Advisory Committee Notes to the Federal Rules of Evidence That May Require Clarification 4 (Federal Judicial Center, 1998) (“[ Rule 301 ] is the culmination of a battle between two conflicting views on the effect a presumption should have…. The practical difference is in the quality and quantity of evidence required to overcome the presumption.”).

By using the term “presumption” rather than “burden of proof”—which a jury can easily understand since a burden of proof definition is specifically, and clearly, written in the charge—the Court of Appeals has weakened the legal protections of the Fourth Amendment. It has confused this issue, ignoring the fundamental importance of a person’s constitutionally protected right to be free from unreasonable searches and seizures inside his or her home.

Rigid, mechanical approaches should not be adopted when assigning burdens in unlawful entry cases. In support of an argument for protecting high standards to prove exigent circumstances, one author cites to Justice Bradley in Boyd v. United States , 116 U.S. 616, 635, 6 S.Ct. 524, 29 L.Ed. 746 (1886) :

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

Adrienne Lewis, Comment, The Fourth Amendment – The Burden of Proof for Exigent Circumstances in a Warrantless Search Civil Action , 65 SMU L. Rev. 221, 226–27 (2012). “The literal construction of burdens of proof in civil cases,” she concludes, “is exactly the type of silent approach that leads to the ‘gradual depreciation of the right’ that Justice Bradley speaks of.” Id. at 227.

“Allocating burdens of persuasion involves distinct substantive policies favoring one class of litigant over another.” Jack B. Weinstein, Norman Abrams, Scott Brewer & Daniel S. Medwed, Evidence Cases and Materials 1351 (10th ed. 2017). The Second Circuit Court of Appeals has chosen to shift the odds towards the defendants, in effect, diminishing a plaintiff’s ability to enforce his or her constitutionally protected rights as a householder. This appellate decision subverts the express will of the United States Constitution, which explicitly favors the rights of the house-dweller over that of police officers. The burden should be on governmental officials seeking to enter a home without a warrant. See, e.g. , Payton v. New York , 445 U.S. 573, 587, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (“[A] greater burden is placed … on officials who enter a home or dwelling without consent. Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment.” (citation omitted) ). B. Termination in Favor of the Accused

As part of a § 1983 malicious prosecution claim, a plaintiff must prove his state criminal proceeding was terminated in his favor. See Murphy v. Lynn , 118 F.3d 938, 947 (2d Cir. 1997). “In general, the question of whether a termination was favorable to the accused is a matter of law for the court, but where questions remain as to the reason for the termination, this becomes an issue of fact for the jury.” Rodriguez v. City of New York , 291 F.Supp.3d 396, 413–14 (S.D.N.Y. 2018). “A dismissal out of mercy is not a favorable termination because mercy presupposes the guilt of the accused.” Arum v. Miller , 273 F.Supp.2d 229, 234-35 (E.D.N.Y. 2003) (citation omitted).

“[A] plaintiff asserting a malicious prosecution claim under § 1983 must … show that the underlying criminal proceeding ended in a manner that affirmatively indicates his innocence.” Lanning v. City of Glens Falls , 908 F.3d 19, 22 (2d Cir. 2018) ; see also Thompson v. City of New York , No. 17CV3064(DLC), 2019 WL 162662, at *3 (S.D.N.Y. Jan. 10, 2019) (holding that plaintiff cannot show his criminal case was favorably terminated because his dismissal on speedy trial grounds does not affirmatively indicate his innocence). “[W]here a dismissal in the interest of justice leaves the question of guilt or innocence unanswered, … it cannot provide the favorable termination required as the basis for [that] claim.” Lanning , 908 F.3d at 28–29 (citation omitted); see also Hygh v. Jacobs , 961 F.2d 359, 368 (2d Cir. 1992) (“A dismissal in the interest of justice is neither an acquittal of the charges nor a determination of the merits,” thus leaving open the question of innocence or guilt. (citation omitted) ).

IV. Application of Law

A. Exigency Burden

The Second Circuit’s reasoning in Ruggiero is arguably broad enough to place the burden of proving all exceptions to the warrant requirement, including exigency, on the plaintiff. But subsequent cases seem to go in the other direction, placing the burden of proving exigent circumstances in § 1983 actions on the government. And its apparent suggestion that the burden of persuasion never shifts to the defendant in civil trials is belied by other Second Circuit precedent.

Although the law in this circuit remains unclear, it appears that the current rule is that the plaintiff bears the burden of proof for exigent circumstances. This seems wrong as policy: the burden of proving an urgent need so compelling that it justifies a warrantless entry should generally rest with the government. Unlike consent, the facts that establish exigent circumstances are uniquely within the knowledge of the police officers. Whether there was a need to render emergency aid so compelling requiring immediate action is wholly dependent upon the facts often known only to the police officer at the time of the warrantless entry. The evidence available at the time to the householder is irrelevant. As is rightfully understood in the criminal context, police officers should bear a heavy burden when overcoming a person’s fundamental right to be secure in the home from unreasonable searches and seizures. There is no sound basis in law for this principle not to extend to civil matters.

This is a simple problem of allocating the burden of proof. Since the Fourth Amendment has already chosen to favor a person’s right inside his own dwelling over that of the police officer’s right of entry, courts should do the same by placing the burden on police officers to prove that exigency justified their warrantless entry. See Lewis, supra , at 227 (“The [court’s] holding is inconsistent with the Supreme Court’s motivation to limit the situations where exigent circumstances make warrantless searches reasonable because it could lead to a situation where a plaintiff alleging violation of his civil rights is left without the ability to … defend those civil rights. The spirit of the Fourth Amendment is to give protective rights to citizens.”); cf. See Capra, supra , at 4 (“The Advisory Committee reasoned that presumptions are based on a combination of probability and fairness. If that combination of factors is strong enough to warrant a presumption, it should also be strong enough to shift the risk of nonpersuasion to the party against whom the presumption operates.”)

B. Favorable Termination

Plaintiff failed to satisfy the favorable termination element of his § 1983 malicious prosecution claim as a matter of current Second Circuit law. Based on the facts and law of this unusual case, where there was substantial evidence that the officers’ warrantless entry was lawful and the plaintiff pushed, or at minimum physically interfered with, a governmental official, plaintiff cannot establish that his obstruction charge was dismissed in a manner affirmatively indicative of his innocence. See Lanning v. City of Glens Falls , 908 F.3d at 25 (2d Cir. 2018) (“[F]ederal law defines the elements of a § 1983 malicious prosecution claim … [and] requir[es] affirmative indications of innocence to establish ‘favorable termination’ ….”).

The federal court’s ruling against defendant should not be based on the District Attorney moving to dismiss the criminal charges “in the interest of justice” at the April 9, 2014 hearing. Such a broad ruling risks eviscerating malicious prosecution claims altogether. It would give prosecutors almost unlimited power to bar such claims, regardless of the strength or weakness of the underlying accusations. They could insulate police officers and district attorneys simply by repeating the phrase “in the interest of justice” in all cases they sought to discontinue for any reason. More must be required to qualify as an interest of justice dismissal that could, in effect, foreclose future claims for malicious prosecution. See Burke v. Town of E. Hampton , No. 99-CV-5798, 2001 WL 624821, at *12 (E.D.N.Y. Mar. 16, 2001) (“In this Circuit, it is well established, as a matter of law, that ‘[a dismissal in the interests of justice] cannot provide the favorable termination required as the basis for a claim of malicious prosecution.’ ” (alteration in original) (citation omitted) ).

In the present case, evidence was presented suggesting plaintiff’s innocence. His case was sealed pursuant to CPL § 160.50, a provision for criminal prosecutions terminated in favor of the accused. He testified that he was offered an Adjournment in Contemplation of Dismissal at his second court date and told that if he accepted this offer, and stayed out of trouble, it would all “go away.” Trial Tr. 644:5–16, Jan. 25, 2019; but see Stampf v. Long Island R.R. Auth. , No. 07-CV-3349 SMG, 2011 WL 3235704, at *3 (E.D.N.Y. July 28, 2011) (“[A]n adjournment in contemplation of dismissal is defined as a favorable termination pursuant to Section 160.50(3)(b), yet well-settled case law establishes that it is not a favorable termination for purposes of a malicious prosecution claim.” (citation omitted) ) aff’d in part, vacated in part sub nom. Stampf v. Long Island R. Co. , 761 F.3d 192 (2d Cir. 2014).

When his case was dismissed on motion of the Brooklyn District Attorney at the April 9, 2014 hearing, the prosecutor merely  stated that the dismissal was “in the interest of justice.” Def. Ex. B. There was no formal entry of an “interest of justice” dismissal pursuant to CPL § 170.40 (the State statute governing interest of justice dismissals). The court did not give its reasons on the record for a dismissal in the interest of justice, as required under State law. See New York Crim. Proc. L. § 170.40. There is little, if any, evidence that sympathy for the accused was a factor in the dismissal.

Plaintiff’s defense attorney, Renate Lunn, testified credibly about her recollections of plaintiff’s case. She said she never filed a motion for dismissal in the interest of justice. Trial Tr. 207:23–25, Jan. 24, 2019. She recalled making an oral motion to dismiss without prejudice for facial insufficiency, which was denied by the judge. Id. at 210:6–22; see Russell v. Journal News , 672 F. App’x 76, 78-79 (2d Cir. 2016) (finding that a dismissal without prejudice based on facial insufficiency does not constitute a favorable termination because it is not a decision on the merits).

Defense counsel Lunn did not remember why the District Attorney moved to dismiss the case. She testified that, based on her experience, it would have been unlawful to prosecute Thompson for “not allowing the police into [his] home.” Trial Tr. 223:16–25, Jan. 24, 2019. She recalled speaking to an assistant district attorney prior to the April 9, 2014 hearing and being told that the charges would be dismissed. Id. at 225:15–21. She observed that her notes did not contain any mention of mitigating circumstances, which she typically would have written down if she were seeking to persuade a prosecutor to dismiss a case out of mercy. Id. at 222:5–16. This indicates to her that the conversation with the assistant district attorney only concerned the legal shortcomings of the criminal case against Thompson. Id. at 222:17–21.

Left open is the question of how much evidence must be supplied by a plaintiff to show that the dismissal was essentially for innocence. Courts addressing this question should not forget that, in our criminal justice system, the accused are deemed innocent until proven guilty beyond a reasonable doubt. See Coffin v. United States , 156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895) (“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”). The assumption of innocence remains with a defendant throughout a case and is not overcome until either a plea is taken or a guilty verdict is returned. Thus, any ambiguity on whether the dismissal was on the merits should be decided in defendant’s favor.

V. Conclusion

A. Exigent Circumstances Burden

The general rule in civil cases—predicated on sound constitutional policy—should place the burden on police officers to prove, by a preponderance of the evidence, exigent circumstances justifying a warrantless entry. Placing the burden of persuasion on the civilian plaintiff is a repeated injustice that should stop now.

B. Malicious Prosecution

Plaintiff’s malicious prosecution claim should be treated as if it was on the merits—i.e., the defendant was not guilty. An ambiguous state dismissal should be accepted as being based on non-guilt, in part because of the assumption of innocence before conviction.

SO ORDERED.