We all know that cops are tasked to enforce criminal laws, occasionally shooting dogs or naked, confused, autistic 11-year-olds on the side of the road as circumstances require.
But did you know they enforce civil law too?
Well, at least some of them do. Some police think that it is their role to intervene in civil disputes, throwing their weight — the weight of gun belts and squad cars and the freedom to beat you senseless with a high probability of complete impunity — behind one side or the other.
That's what Joseph Grabko of Pennsylvania found out this month, when a police officer threatened him at the behest of a local pizza place.
Mr. Grabko lives near Harrisburg. He's mildly autistic, which I mention only because, as you will see, it is relevant to the story. Through a state agency that assists in job placement, he got a job at a pizza place called The Wild Tomato in Harrisburg, owned and operated by a man named Paul Francis.
To put it mildly, it didn't work out.
As Mr. Grabko explains it, he became concerned with issues of hygiene and with finding needles and synthetic marijuana on the premises. I am not personally upset by the prospect of drug use by pizza parlor employees; your views may differ, as Mr. Grabko's did. Mr. Francis did not respond to Mr. Grabko's concerns to his satisfaction, and Mr. Grabko left — and began writing online about his experiences.
He posted on the restaurant's Yelp page; when his reviews were deleted he re-posted them. He also wrote elsewhere about his views. He included pictures he took of what he observed to support his claims.
Then began the threats.
Paul Francis, or his family members, have repeatedly called Mr. Grabko's home. Most of the time they hang up after reaching the answering machine, sometimes as often as six times a day — there's a record of their number. Mr. Francis also left a message for Mr. Grabko's parents asking them to call him — even though Mr. Grabko is an adult, Mr. Francis may be treating him otherwise because of his mild autism. Finally, a Pennsylvania law firm has also been making hang-up calls, which may be related.
In the course of his communications, Mr. Francis has threatened to report Mr. Grabko to police for "harassment," and has given him 24 hours to take down his posts before something unspecified would happen (it didn't). Mr. Francis carried through, at least, on the report to the police.
Mr. Grabko received a call from Officer Hallie Miller of the Lower Paxton Township Police Department. Mr. Grabko informed Officer Miller at the outset of the call that he was recording it, and you can listen to the entire call here. Listen and draw your own conclusions, but I find it to be a remarkable and egregious attempt by law enforcement to intimidate a citizen into refraining from protected speech.
Officer Miller, in the course of the call, tells Mr. Grabko that there is an "issue with him posting pictures and derogatory things," and asks him if there is "any particular reason" that he is posting those pictures. She tells him that his conduct "can be construed as harassment" if it is "derogatory" towards the pizza place "especially if it's not true." She repeats the restaurant's statement that it has passed health inspections (you can evaluate that for yourself here) and tells Mr. Grabko that talking the health inspectors is the appropriate way for him to express concerns, and that if they haven't found violations, then "you should probably drop it." Officer Miller repeatedly says that the conduct can be "harassment" and may lead to a civil defamation suit, and tells Mr. Grabko she is not sure "what you hope to gain." She tells him she is "just letting you know you are kind of borderline walking a thin line," and that his views "don't seem important enough" to justify the risks he is taking. "Yes we do have freedom of speech, but if it is derogatory and could be taken as harassment, you are kind of walking a line here," she says. She tells Mr. Grabko that he has now "said your piece," and that she doesn't want to see him "get in trouble" and that it's a good idea to "stop making posts like that" because he could get "jammed up." Again, listen to it yourself.
Officer Miller's stance is incredible. Is it criminal harassment to re-post negative reviews on Yelp after Yelp has taken them down? The notion is ridiculous. Pennsylvania has a lawlessly vague and ambiguous harassment statute, but a prosecution premised on writing reviews of a restaurant will not survive First Amendment scrutiny when the reviews don't involve threats or repeated direct unwelcome contact with the restaurant. In fact, Francis' conduct of repeated hang-up calls to Grabko's home is considerably closer to criminal harassment than writing negative reviews of a restaurant.
Might Mr. Grabko's posts about The Wild Tomato contain defamation — that is, harmful false statements of fact? It's possible — I don't know. But that's a civil matter, to be determined by a court according to established First Amendment law, which includes vigorous protection for expressions of opinion and comments about matters of public interest, like restaurant hygiene.
What possible legitimate reason does a police officer have to be threatening a citizen with a defamation lawsuit on behalf of a business? If you listen to the tape, you'll hear Officer Miller say she doesn't know herself whether the allegations are true or not. So why is she acing as a legbreaker for a pizza joint? Why is she freighting a discussion of a civil claim with a threat of a criminal prosecution? Why is she intervening — with the implicit threat of the state's use of force — in a civil dispute? What legitimate reason — what reason that is not tyrannical or thuggish or bullying — does she have for telling Joseph Grabko that he's "said his piece" and should stop writing posts? Does the officer think she can tell Mr. Grabko what to do because he's mildly autistic?
I decided to call Officer Miller and ask. In a short conversation, she told me angrily that she wasn't threatening Mr. Grabko, but only explaining possible things that could happen to him. I asked why it was a police function to warn citizens about civil claims other citizens might make; she responded again that she was simply explaining things, because "people want to know." I put it to her that she was, in effect, conveying a threat in a civil dispute, and she told me that I was taking the call "out of context," that she'd have her Lieutenant call me, and hung up without getting my contact information. A few minutes later she called me back at the office, having Googled my name, to confirm that it was my number. Perhaps this was a genuine attempt to confirm my identity, perhaps it was an attempt at an intimidating power play. If it was the latter, it was just precious, like a YouTube video of a ferret trying to turn on the water faucet. Nearly a week has passed, and her Lieutenant has not called me.
I sought a comment from Mr. Francis and received only a response asking if I was joking. No. Oh, no.1
It remains to be seen whether Paul Francis, or the police who are apparently very receptive to his demands, will take action against Mr. Grabko. If they do, they will learn to their regret that Mr. Grabko is not the pushover they imagine. I find him brave and insistent on protecting his rights. I put out a mini-Popehat-signal on Twitter for help for him, and the awesome and highly qualified Jeremy Mishkin stepped up to represent him pro bono. If Mr. Francis or the Lower Paxton Township Police Department decide to proceed, they will find Mr. Grabko well-represented, ready for a fight, and supported by people who will publicize and back his defense. Jeremy Mishkin has my respect and admiration, and deserves your thanks: everybody's free speech depends on the willingness of lawyers like him to step up and derail attempts to intimidate citizens into silence.
Ask yourself: do you trust police officers who intervene on one side of a civil dispute to tell a citizen to shut up? Would you eat at a restaurant that tries to get its critics arrested for harassment?
"Dear Mr. Francis,
I am an attorney, a member of the First Amendment Lawyers Association, and a blogger. I write about issues including threats calculated to chill online speech, and I use my blog as a platform to find pro bono legal representation for threatened writers. I can provide links to my work in that area upon request.
I am investigating, and preparing to write about, threats you have made to a former employee based on his online expression. I have reviewed his blog post and recordings of the messages you have left for him. I am in the process of soliciting pro bono support from Pennsylvania counsel.
Are you interested in commenting on, or answering questions about this matter? I understand that you have reported the former employee to the police, and am interested in hearing your explanation for what conduct you believe is criminal and outside the protection of the First Amendment. I'm also interested in hearing your comments on the factual allegations he's made about conditions and activities at your restaurant.
Thanks very much,
"This is a joke, right?"
"No. Why would it be?" ▲