ACLU of Kentucky Files Federal Lawsuit Against Muhlenberg County, Police Officer

May 5, 2015

Credit ACLU of Kentucky

The Kentucky chapter of the American Civil Liberties Union has filed a federal lawsuit for a case in Muhlenberg County over song lyrics in a Facebook post.

In August, James Evans of Central City posted lyrics on his Facebook page from a song called “Class Dismissed (A Hate Primer)” by the band Exodus. The 2010 song is about the Virginia Tech shooting.

Evans was arrested that month on a criminal charge of first-degree terroristic threatening, a felony. The charge was eventually dismissed.

The ACLU of Kentucky filed a federal lawsuit this week claiming Muhlenberg County Police Officer Michael Drake falsely arrested Evans for posting those lyrics. Evans’ attorneys—Brenda Popplewell and William Sharp—claim that arrest was illegal and violated their clients’ First, Fourth and Fourteenth Amendment rights. The lawsuit was filed at a U.S. District Court in the Western District of Kentucky and names Muhlenberg County and Officer Drake as defendants.

The arrest is controversial for a lot of reason, but one of the bigger issues is why Evans was arrested in the first place; prior to his arrest, a police investigation determined the lyrics were not a threat.

According to the lawsuit, here is the chain of events:

Soon after the lyrics were posted on Facebook, law enforcement officials were notified by someone who saw the post.

Officers from the Greenville Police Department, Central City Police Department, Muhlenberg County Sheriff’s Office, Kentucky State Police, Powderly Police Department and Muhlenberg County Police Department then communicated with each other through a group text about the post and decided to investigate.

Officers then visited Evans, as well as his wife on a separate occasion, and asked about the lyrics.

Court filings show there was video of the questioning. According to the lawsuit, the video shows the Evans family cooperated fully with police and the Central City police officers followed proper procedure.

Police concluded the lyrics were not a threat and Evans had no weapons. Thus, there was no probable cause for a criminal charge.

However, Drake—who is the only officer with the Muhlenberg County Police Department—kept going.

According to the lawsuit, Drake sought an arrest warrant for Evans even though Central City police had concluded the lyrics were not a threat.

According to the lawsuit:

“Nevertheless, Defendant Mike Drake swore out a materially false and misleading affidavit in support of an arrest warrant alleging that Plaintiff committed a criminal offense. But for the material misrepresentations and omissions contained in Defendant Drake’s affidavit, no arrest warrant would have issued because probable cause did not exist to establish that Plaintiff committed any criminal offense. As a result of Defendant Drake’s materially false and misleading affidavit, a warrant issued for Plaintiffs arrest.”

The lawsuit claims Drake intentionally withheld important information in his affidavit seeking an arrest warrant.

This is the full text of the affidavit:

“The Affiant, Officer Mike Drake, states that on 8/24/2014 in MUHLENBERG County, Kentucky, the above named defendant unlawfully: committed the offense of Terroristic Threatening, to-wit: by threatening to kill students and or staff at school.”

The affidavit left out a lot of important information– such as the lyrics, the specifics of the alleged threat and the police investigation that already took place.

Regardless, the arrest warrant was granted and Evans spent a week in jail because he couldn’t make his $1,000 bond.

Attorneys eventually intervened and got the one charge against Evans dismissed.

Evans is now seeking “compensatory and punitive damages to vindicate violations of his rights,” the lawsuit reads.

“We want Mr. Evans to be made whole, to be compensated for what he experienced—the eight days in jail—but we also want to send a message to police officers that this type of behavior will not be tolerated,” Popplewell said.

Attorneys for the plaintiff said this arrest should have never been made.

“I think it is important to do a thorough and reasonable investigation,” Popplewell said. “That’s what we are saying that no reasonable officer would have arrested Mr. Evans for first degree terroristic threatening if the law had been followed.”

Here are the exact lyrics Evans posted on his Facebook last summer:

Student bodies lying dead in the halls

A blood splattered treatise of hate

Class dismissed is my hypothesis

Gun fire ends he debate

All I ever wanted was a little affection

But no one ever gave it to me

My hate primer’s the result of my rejection

According to the lawsuit: “Though the posted lyrics described violent, school-related images, they did not communicate a threat of harm to any person or school. Moreover, Plaintiff did not subjectively intend to communicate a threat by posting these lyrics nor could the post have been reasonably construed as a true threat given all of the relevant circumstances.”

Popplewell said Evans also commonly posted lyrics to his Facebook prior to that post last August.

Muhlenberg County officials did not respond to repeated requests for comment.