This post examines an opinion a U.S. District Court Judge in
Michigan issued recently in a civil suit:
Enjaian v. Schlissel, 2015 WL
3408805 (U.S. District Court for the Eastern District of Michigan 2015). In the opinion, the judge is ruling on “a
Motion for Judgment on the Pleadings and Summary Judgment, filed by Defendants”. Enjaian
v. Schlissel, supra. According to the document you can find on
this site, the defendants are Mark S. Schlissel, Jose A. Dorta, Bernard C.
Mundt II and Renee J.S. Schomp.
Essentially, as this site and this site explain, both
judgment on the pleadings and summary judgment are tactics a party to a lawsuit
can use to try to persuade the judge to enter judgment for that party without actually holding a trial. The links
above will take you to online articles that explain how each device works . . . when
they work.
This judge begins his ruling on the defendants’ motion by
explaining how, and why, the case arose:
Jesse Enjaian matriculated at the
University of Michigan Law School in 2010, joining the Class of 2013. Renée
Schomp was Enjaian's classmate, who shared an identical set of classes during
their first year. . . . On more than one occasion in early 2011, Enjaian
invited Schomp for `coffee or tea’ or `lunch or coffee,’ but on each occasion,
Schomp declined. . . .
According to Enjaian, although
initially a friend, by their second year of school, something changed; `Schomp
began to strongly dislike [him] for unexplained reasons.’ . . . She allegedly
began defaming Enjaian to other students, including mutual friends. . . .
On November 17, 2011, Schomp reported
to Defendant Bernard Mundt, an Officer with the University of Michigan Police
Department, that she had been receiving emails and Facebook Messages from
Enjaian over the course of the previous year. . . . The `communications . . .
made her increasingly uncomfortable and worried.’
On November 21, 2011, Enjaian exchanged
a series of text messages to [sic] Carrie
Cushing, a friend of Schomp's, generally insisting that he was entitled to an
apology from Schomp. . . . In one of the text messages, he stated that he `h[o]pe[d]
[Schomp] likes deep dark pits of depression because [he's] a petty bastard
P[sic].’ . . . After Cushing cautioned
him that he shouldn't do anything, Enjaian responded: `Not that serious. Just
enough to make her feel crappy-D [sic].’
. . . Cushing shared these text messages with Schomp. . . .
At some point the same evening or early
the next morning, Enjaian sent a Facebook message to Schomp expressing that he
`fe[lt] entitled to an answer for why [she] behaved so negatively last year.’ .
. . In response, Schomp replied: `Jesse, I do not with to have any further
contact with you whatsoever. Do not send me any other messages via email,
facebook, or text message. Do not call me, speak to me in person, or interact
with me in any other way, either directly or indirectly.’ . . . Cushing also warned Enjaian that Schomp would
go to the police if he continued to bother her. . . . Enjaian stated that he
would cease communication with Schomp, in order to avoid a harassment claim. .
. .
Enjaian v. Schlissel,
supra.
The opinion goes on to explain that the “Law School”
administered a
listserve called LawOpen, which allows
law students to send messages to all other students at the law school. . . . On
December 9, 2011, Enjaian created what he calls a `parody of a law school
administered student group,’ called `LawClosed.’ . . . Apparently, Enjaian had
been restricted from using LawOpen by the school's e-mail account manager for
sending inappropriate messages to the student body using LawOpen. . . .
Enjaian configured LawClosed to operate
exactly like LawOpen, meaning it was intended to include all Michigan
Law students, including Schomp. . . . Enjaian later told Mundt that
he chose names by selecting people affiliated with the law school's Facebook
account, and that he knowingly included Schomp. . . .
The same day he created it, Enjaian
sent two messages using LawClosed. One was to introduce students to LawClosed
and the other was to attempt to sell an old casebook. . . . The first email
included a hyperlink to a news article reporting the death of a woman that had
been employed at Skadden Arps, a large law firm where Schomp had previously
been employed. . . . Enjaian knew at the time he sent the messages that Schomp
received the emails, and that Schomp had recently requested that he not contact
her. . . .
After receiving the emails, Schomp
reported back to Mundt, showing him the text messages between Enjaian and
Cushing as well the two emails sent to LawClosed. . . . She told Mundt that she
thought the article links were directed at her as an act of intimidation and
that she felt `frightened and harassed’ by receiving two e-mail messages from
Enjaian after she informed him to have no further contact with her. . . . Schomp
also initiated a complaint with the University of Michigan Office of Student
Conflict Resolution. . . . The next day, on December 10, 2011, at the request
of Dean of Students David Baum, the LawClosed list was disabled. . . .
Enjaian v. Schlissel,
supra.
The opinion explains that, on “the same day Schomp
complained to Mundt,”
Mundt signed an affidavit for a search warrant. . . . The affidavit was reviewed by Blaine Lowesworth from the
Washtenaw County Prosecutor's Office and signed the same evening by Magistrate
A. Thomas Truesdale of Michigan Judicial District Fourteen–A. . . . The warrant
specified `[a]ll computer equipment, information storage devices and cell
phones as well as records or documents that are located at the above and there
[sic] contents.’ . . . The search warrant also allowed officers to locate and
seize passwords or encryption codes necessary to access the data located on the
computer. . . .
Mundt, along with two other officers,
executed the search warrant that night, and seized Enjaian's laptop computer,
cell phone, USB keychain drives, a USB drive, and an iPod Nano. . . . During
the search, Enjaian admitted that he sent the messages and that he added Schomp
to the list. . . . When Mundt asked Enjaian why he included Schomp despite
receiving a `no contact order,’ Enjaian responded that `[i]t didn't cross [his]
mind.’ . . . Enjaian provided his
computer login information to Mundt. . . .
Defendant Dorta conducted the search of
Enjaian's computer. . . . Dorta discovered that part of Enjaian's computer was
encrypted and his cell phone was password protected. . . . Dorta attempted to
obtain the passwords from Enjaian, who refused to provide them. . . . Dorta
attempted a `simple dictionary brute force attack’ on the encrypted files,
which took several months and was ultimately unsuccessful. . . . Dorta was
. . . able to circumvent the cell phone password on September 25, 2012. . . . Dorta was able to extract the Facebook
messages and text messages from the cell phone.
Enjaian v. Schlissel,
supra.
Dorta then prepared a
warrant request packet seeking the
charges of Stalking, Posting, and Malicious Annoyance by Writing against
Enjaian. . . . On January 3, 2013, the Washtenaw County Prosecuting Attorney
declined to prosecute. . . . In the denial form, Assistant Prosecuting Attorney
Susan Longsworth stated that Schomp's `assertion that [the link to the article
about the death of the Skadden Associate] was a veiled threat of some sort
because [Schomp] once worked for the same large law firm but in a different
office cannot be proved beyond a reasonable doubt.’ . . . Shortly thereafter,
Enjaian's property was returned to him. . . .
Enjaian v. Schlissel,
supra.
After outlining how, and why, the lawsuit arose, the judge
began his ruling on the motions filed by the various defendants. Enjaian v. Schlissel, supra.
This post will only examine his rulings on two of Enjaian’s causes of action because they are more directly concerned with the events outlined
above.
The first cause of action this blog post examines was
Enjaian’s second cause of action, which as the judge explains, asserted that
Mundt used a valid exercise of
Enjaian's 1st Amendment rights, namely the emails sent to LawClosed, as support
for probable cause of stalking. Enjaian argues that the search was an element
of a conspiracy to shut down LawClosed to silence his views objecting to the
`Big Law’ system.
Enjaian v. Schlissel,
supra. The judge goes on to explain that
[t]o prevail on a claim of 1st
Amendment Retaliation, it must be shown that: 1) the conduct was protected, 2)
an adverse action was taken against that conduct that would deter a person of
ordinary firmness to engage in that conduct, and 3) there is a causal
connection between the conduct and the adverse action. Thaddeus–X v. Blatter, 175 F.3d 378 (U.S. Court of Appeals for the 6th Circuit 1999).
Assuming, arguendo, that the emails were protected and that the search
constituted an adverse action, Enjaian's claim fails at the third step. As
pleaded, Mundt's investigation was causally connected to Schomp's complaint,
and there is nothing beyond conclusory speculation that Mundt was acting at the
behest of the Law School's desire to restrain Enjaian's dissent regarding the
`BigLaw career path.’
The notion that the search warrant was
obtained as a pretext to chill Enjaian's speech is not plausible, especially in
light of the parallel criminal and academic investigations that followed.
Furthermore, the decision to shut down LawClosed was made by the Dean of Students
and there is no indication that it had anything to do with the criminal
investigation. In fact, there is no allegation that Mundt's affidavit in any
way played a part in the independent decision to close down the list or that
Mundt was even aware of the University's views on the content of Enjaian's
email.
Absent a plausible causal connection
between the affidavit and the so-called conspiracy to silence Enjaian, the 1st
Amended Complaint fails to state a claim for First Amendment retaliation and
the second cause of action must be dismissed pursuant to Rule 12(b)(6). See Bell Atlantic v. Twombly, 550 U.S. 544 (2007).
Enjaian v. Schlissel,
supra.
The judge then went on to address Enjaian’s “fourth cause of
action”, which
maintains that Dorta's attempt to break
into the encrypted containers on the seized laptop computer was an unreasonable
execution of the search warrant. As the court already discussed in Enjaian
II, the 6th Circuit has warned that `”hindsight is 20/20’ and that ‘so
long as the computer search is limited to a search for evidence explicitly
authorized in the warrant, it is reasonable for the executing officers to open
the various types of files located in the computer's hard drive in order to
determine whether they contain such evidence.”’ Opinion and Order Denying
Plaintiff's Motion for Reconsideration, Enjaian v. University of
Michigan, No, 13–13907, (U.S. District Court for the Eastern District
of Michigan, August 28, 2014) (“Enjaian
II”). . . .
The court also pointed out that `the 4th Amendment does not protect against unreasonable delay in returning lawfully
seized property to the owner. Enjaian II, No. 13–13907, 2014
WL 3662709 (U.S. District Court for the Eastern District of Michigan, July 14,
2014). . . .
In essence, Enjaian claims that a brute
force attack on the Advanced Encryption Standard used to secure his data was a
fool's errand; technically impossible -- statistically improbable without
several million years' computing time using modern computers -- and thus
`procedural foot dragging.’ Put another way, Enjaian asserts that because
he can show that his encryption was unhackable, Dorta acted recklessly by
trying to hack it anyway.
Enjaian v. Schlissel,
supra.
(The “Enjaian II” opinion cited in the paragraph above was another lawsuit Enjaian
filed that involved the events outlined at the beginning of this post. You can read about the District Court Judge’s
ruling in that related opinion in the blog post you can find here.)
The judge went on to find that Enjaian
fails to identify a clearly established
right that was violated by Dorta's search. The court's search revealed no such
right exists. In the Federal context, Federal Rule of Criminal Procedure 41(e)(2)(B) and its associated commentary specifically contemplates an extended
search due to the existence of encryption.
The commentary accompanying the 2009
amendments [to the rule] noted that `the practical reality is that there is no
basis for a “one size fits all” presumptive period. A substantial amount of
time can be involved in the forensic imaging and review of information. This is
due to the sheer size of the storage capacity of media, difficulties created by
encryption and booby traps, and the workload of the computer labs.’ Federal
Rule of Criminal Procedure, comment to Rule 41(b)(5) (2009).
The commentary notes further caution
that `[t]he rule does not prevent a judge from imposing a deadline for the
return of the storage media or access to the electronically stored information
at the time the warrant is issued. However, to arbitrarily set a presumptive
time period for the return could result in frequent petitions to the court for
additional time.’ Federal Rule of Criminal Procedure, comment to Rule 41(b)(5)
(2009).
Enjaian v. Schlissel,
supra.
Next, the judge
explained that Enjaian “sought the release of his property in” yet another
suit, which he refers to as “Enjaian I.” I do not have a citation for
that case, so I cannot outline how the judge ruled in that opinion.
In his opinion in
this case, the judge went on to explain that Enjaian
also would have been entitled to do so
by a petition within the state court system. His property was ultimately
returned. Without a judicial order to compel that return, Dorta was not
required by any law clearly established in this circuit to do so any sooner
than he did and was not required to refrain from a brute force attack on the
encryption, or otherwise conform his search to any specific protocols. As such,
he is entitled to qualified immunity. The fourth cause of action is dismissed
with prejudice pursuant to Rule 12(c).
Enjaian v. Schlissel,
supra.
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