Brad Zimmerman was arrested March 9 for comments he posted about the Kalispell Police on Craigslist, and charged with criminal defamation. His lawyer is fighting the charges on constitutional grounds.
On the evening of July 28, 2006, Brad Zimmerman says, he was on his way to the downtown Kalispell post office when he noticed something “weird” at Depot Park.
On the park’s west side, along Main Street, a young man named John Cassidy stood waving a sign that read “Free Dick Rides” at passing cars.
A crowd had gathered on the other side of the street, some to heckle, others to laugh. Zimmerman says he joined the onlookers and began taking photos with his digital camera. Moments later, Kalispell Police officer Chad Zimmerman (no relation) arrived and arrested Cassidy and a friend who was videotaping the prank. According the Kalispell police report, both were arrested without incident.
Zimmerman saw the arrest differently, and when he returned to his home in Hungry Horse he anonymously posted his version of the evening’s events on the Montana Craigslist “rants and raves” message board.
“The first Kalispell cop on the scene flipped a U-turn in the street and pulled up in front of the boy,” Zimmerman wrote. “With out (sic) word of explanation, he jumped out of his cruiser and yelled ‘Ok, that’s enough of that fucking bullshit.’ The boy clearly yelled ‘What? I don’t understand.’ The cop then yelled ‘Oh, so you think you’re funny? A real funny fuck, huh,’ and then grabbed the boy by his hair. He yanked the boy down, twisted him sideways, then grabbed his arm and cuffed him. He then kicked the boy in his leg twice, patted him down then shook the boy really hard…”
After describing the incident, Zimmerman ranted about the Kalispell police, writing, “You goose stepping, fag-Nazi cops should have your asses beat by the people you have wronged. I’d like to see the lot of you thrown in a holding cell down at the county jail for the weekend. Maybe after getting repeatedly beat and ass raped you bullies will learn to stop beating on defenseless suspects.”
A few people commented on his post—the last on July 31, 2006. Zimmerman says he forgot about the incident until the morning of March 9, 2007.
At about 9 a.m., he says, he was at home, asleep, when police began pounding on the door, saying they had a search warrant for the house, and an arrest warrant for Zimmerman.
His fiancée let them in, and Zimmerman says they arrested them in his bedroom, handcuffing him, he says, without letting him put on more than his underwear.
Police records show two officers from the Flathead County Sheriff’s Office conducted the arrest, alongside seven more officers from the Kalispell Police Department, including the officer who was the subject of Zimmerman’s post. They took two computers and a digital camera specified by their search warrant.
Zimmerman says the police took him out of his home, handcuffed, still in his underwear “in front of all my neighbors,” and put him in a police car. Outside, he says, there were about 10 more officers, 12 police cars, and an ambulance.
At that point, Zimmerman says, he didn’t know why he was being arrested. It was the Craigslist post.
“After awhile they explained to me what was going on, and I didn’t even remember anything about it at first,” he says. “I had to think about it for awhile.”
According to police records, the department learned of the posting through “an inquiring citizen.”
In a report filed by Kalispell Police Detective Jim Wardensky, he writes, “In an effort to preempt any civil discord due to these postings,” he called Craigslist and asked them to take down the post.
According to the report, Craig Newmark, owner of Craigslist, returned Wardensky’s call the same day, said he would remove the post, and added, according to Wardensky, “If we supplied him with a subpoena, he could tell me the Internet Provider’s address and e-mail account for where the original posting came from.”
KPD served the subpoena and Craigslist passed on information that led the police to a service provider, CenturyTel, which company the police also subpoenaed. CenturyTel then provided Zimmerman’s name, address and social security number.
According to Kalispell city prosecutor Kristi Curtis, the city took interest in the case in part because of Project 7, a group of Flathead Valley residents who plotted to assassinate public officials, including police officers, but were arrested in early 2001 before putting their plot into action.
After holding Zimmerman for less than 24 hours, the city charged him with criminal defamation, defined by Montana law as “Anything that exposes a person or a group, class, or association to hatred, contempt, ridicule, degradation, or disgrace in society or injury to the person’s [sic] or its business or occupation.”
If convicted, Zimmerman could face six months in prison and a $500 fine.
Zimmerman has since been jailed on unrelated assault charges.
According to Greg Hood, the public defender assigned to Zimmerman’s case, “truth is an absolute defense” against defamation charges. So if Zimmerman’s account of Cassidy’s arrest is accurate, case closed. Zimmerman’s own photos are of poor quality, and Hood says he’s filed a request for video from the arresting officer’s police car, but has not yet received it. Cassidy, who ultimately pleaded guilty to disorderly conduct, has not returned Hood’s calls. In the meantime, Hood has also contested the charges on constitutional grounds.
In 1964, the U.S. Supreme Court ruled in New York Times Co. v. Sullivan that the plaintiff in a defamation case against public officials must prove the accused was motivated by “actual malice.”
In their unanimous decision, the court determined that fear of being charged with defamation could be used by public officials to intimidate newspapers and the general public from criticizing or reporting on the behavior of those officials.
Historically, proving actual malice has been difficult, according to Hood, as the plaintiff must show what the defendant was thinking at the time the defamatory statement was made.
He believes this may be the first time Montana’s defamation law has been challenged on constitutional grounds.
Prosecutor Curtis declined to comment on the constitutional argument.
Hood is currently awaiting the city’s response to his constitutional challenge. In the meantime, citizens may want to think twice before posting criticism of police conduct in Flathead County.