Boston Globe (AP): “Then-District Attorney George Skumanick met with about 20 students and their parents and offered them a deal in which the youths wouldn’t be prosecuted if they took a class on sexual harassment, sexual violence and gender roles . . . Skumanick could have authorized criminal charges from the outset, but instead sought an alternative way to discourage teens from exchanging sexually explicit photos and e-mails on their cell phones. ‘What’s ironic about this case is the district attorney got penalized for being too nice . . . ‘”
Miller v. Mitchell, No. 09-2144 (3rd Cir. March 17, 2010). Excerpt:
Given that the only items of evidence in the record of the District Attorney’s motive, at least at this preliminary stage, are (1) the existence of the photograph on another student’s phone, and (2) the District Attorney’s threat to prosecute for nonattendance at the education program, plaintiffs have established a reasonable likelihood of success as to causation. In sum, absent an injunction, the Does would have to choose either to assert their constitutional rights and face a prosecution of Nancy Doe based not on probable cause but as punishment for exercising their constitutional rights, or forgo those rights and avoid prosecution. On the facts before us, this Hobson’s Choice is unconstitutional . . .
At this preliminary stage we conclude that plaintiffs have shown a likelihood of success on their claims that any prosecution would not be based on probable cause that Doe committed a crime, but instead in retaliation for Doe’s exercise of her constitutional rights not to attend the education program. Therefore, we affirm the grant of a preliminary injunction and remand for further proceedings.
