503 lines
25 KiB
Plaintext
503 lines
25 KiB
Plaintext
??[104] OKC Sysop Echo (1:147/3008) ??????????????????????????????????SYSOP147 ?? Msg : 59 of 61
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From : Tony Davis 1:147/1 10 Mar 94 12:38:00
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To : All
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Subj : 1 OF 3 (Combined to form single file on 03/10/94)
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????????????????????????????????????????????????????????????????????????????????
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IN THE UNITED STATES DISTRICT COURT FOR
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THE WESTERN DISTRICT OF OKLAHOMA
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ANTHONY A. DAVIS, INDIVIDUALLY AND )
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DOING BUSINESS AS THE OKLAHOMA )
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INFORMATION EXCHANGE AND DOING )
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BUSINESS AS MID-AMERICA DIGITAL )
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PUBLISHING COMPANY, GAYLA DAVIS, )
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AND JOHN BURTON, INDIVIDUALS, )
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AND TSI TELECOMMUNICATIONS )
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SPECIALISTS, INC., AN OKLAHOMA )
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CORPORATION )
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)
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Plaintiffs, )
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vs. ) Case No.:
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)
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THE CITY OF OKLAHOMA CITY, A )
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MUNICIPAL CORPORATION AND THE )
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OKLAHOMA CITY POLICE DEPARTMENT, )
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AND OFFICERS ANTHONY GRACEY, MARK )
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WENTHOLD AND GREGORY TAYLOR IN )
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THEIR OFFICIAL CAPACITIES AS )
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OKLAHOMA CITY POLICE OFFICERS AND )
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AS INDIVIDUALS )
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)
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Defendants, )
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COMPLAINT
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Anthony A. Davis, Individually and doing business as the
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Oklahoma Information Exchange and Doing Business as Mid-America
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Digital Publishing Company, Gayla Davis, and John Burton,
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Individuals, and TSI Telecommunications Specialists, Inc., an
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Oklahoma Corporation, the Plaintiffs above named, for their Complaint
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against the Defendants, The City of Oklahoma City, a municipal
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corporation and the Oklahoma City Police Department, and Officers
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Anthony Gracey, Mark Wenthold and Gregory Taylor, in their official
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capacities as Oklahoma City Police Officers, and additionally,
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against Anthony Gracey, Mark Wenthold and Gregory Taylor, in their
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individual capacities, state as follows:
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JURISDICTION
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1. Plaintiff Anthony A. Davis is an adult resident of McLoud,
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Cleveland County, State of Oklahoma. The businesses called the
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Oklahoma Information Exchange (hereafter "OIE") and Mid-America
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Digital Publishing Company (hereafter "Mid-America") were operated
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from an office at 1501 S.E. 66th Street, Oklahoma City, Oklahoma
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County, Oklahoma. Plaintiff Gayla Davis is an adult resident of
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McLoud, Cleveland County, Oklahoma. Plaintiff John Burton is an
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adult resident of Midwest City, Oklahoma County, Oklahoma. Plaintiff
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TSI Telecommunications Specialists, Inc. (hereafter "Teleco") is an
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Oklahoma Corporation whose principal place of business at all
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relevant times herein was 1501 S.E. 66th, Oklahoma City, Oklahoma
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County, Oklahoma.
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2. Defendant the City of Oklahoma City (hereafter "City"), is a
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political subdivision of the State of Oklahoma, with its principal
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location in Oklahoma County, Oklahoma; the Oklahoma City Police
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Department (hereafter "OCPD") is an agency of the City; Defendants
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Anthony Gracey, Mark Wenthold and Gregory Taylor were, at all times
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relevant herein, police officers employed by OCPD and the City, and
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they are sued herein in their official capacities for official acts
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purportedly taken under color of their agency and under color of the
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official duties and exercises of governmental power vested upon them
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ex officio by the City and by the laws of the State of Oklahoma. All
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acts herein complained occurred within Oklahoma City, Oklahoma
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County, State of Oklahoma. Defendants Gracey, Wenthold and Taylor
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are further sued in their individual capacities for acts taken under
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color and authority of their official position as OCPD officers, but
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which in truth and fact were undertaken outside the authority and
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proper use of their position, and in violation of the Plaintiffs'
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rights.
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3. This action is brought pursuant to Title 18, United States
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Code, Sections 2510 et. seq., known as the Electronic Communications
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Privacy Act; Title 42, United States Code, Section 2000aa et.seq.,
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known as the Privacy Protection Act; and Title 42, United States
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Code, Section 1983, directly under the First and Fourth Amendments to
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the Constitution of the United States of America. Accordingly,
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jurisdiction of this Honorable Court is invoked under provisions of
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Title 28 United States Code, Section 1343 (3) and also under the
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First and Fourth Amendment of the Constitution to redress the
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deprivation, under color of law of certain acts by the defendant City
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of Oklahoma City, by and through its police department and the
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individual police officers named herein; said acts caused a violation
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of the rights, privileges and immunities secured to the plaintiffs by
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the Constitution and Laws of the United States.
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FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
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4. In 1984, plaintiff Anthony Davis created an electronic
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bulletin board system he named the Oklahoma Information Exchange
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(OIE). By 1993, OIE had become the largest bulletin board in
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Oklahoma with over Two Thousand (2000) subscribers from throughout
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the United States. Subscribers used their personal computers and a
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modem to dial in and access OIE. Once users "logged on", they chose
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from a variety of on-line services. These services ranged from the
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sending or receiving of electronic messages (known as e- mail),
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searching databases of information, and "downloading" (copying files
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within OIE into the user's computer).
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5. OIE subscribers often "uploaded" computer programs
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(electronically sending information from the subscribers computer to
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OIE) into the OIE system. These type of computer programs are
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generally referred to as "shareware" or "public domain" software.
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Such programs are customarily exchanged free of charge among computer
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users. After years of accumulating these uploaded files, Davis
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decided he would publish a volume of the software on compact disc.
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Davis chose a compact disc as his medium since the discs can hold an
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enormous number of computer programs. The publishing of the discs
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was done through a company Anthony Davis called Mid- America Digital
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Publishing Company ("Mid-America"). By July 20, 1993 Mid-America had
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published three (3) compact discs, printing and selling thousands of
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copies of each disc. Purchasers could place the disc in a CD-ROM
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drive to convert the programs into a format to be used on the
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purchaser's computer.
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6. On July 20, 1993, the Oklahoma City Police Department
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represented by Defendants Wenthold, Gracey, Taylor and several other
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police officers, searched the business address of plaintiffs at 1501
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S.E. 66th, Oklahoma City, pursuant to a search warrant (see Exhibit
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"A").
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7. The search warrant was obtained based on the sworn affidavit
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of defendant Anthony Gracey. (see Exhibit "B"). The affidavit refers
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to several instances where Officer Gracey, acting as an undercover
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officer, went to 1501 S.E. 66th Street and purchased compact discs
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containing adult images from Anthony Davis. The adult discs
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purchased by Gracey were published by a third party, not Mid-America.
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These discs contained information, which if viewed with the proper
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equipment, could display allegedly pornographic images.
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8. Defendant Gracey made contact with Anthony Davis at 1501
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S.E. 66th Street on three occasions prior to July 20, 1993. Each
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time Gracey was posing as an undercover officer and attempted to buy
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compact discs containing allegedly pornographic images. On two
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occasions, Davis sold Gracey adult discs published by third parties
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(not Mid-America). On the second visit, Davis told Gracey that he
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had a computer network system that would allow Gracey or anyone else
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to dial in and access the same information contained on the discs
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which Davis sold to Gracey. In sworn testimony, Gracey admitted that
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Davis offered to take him to the back room of the office where the
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computers were set up. Gracey did not accept Davis's offer. On his
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third visit, Gracey did not inquire any further about the computer
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system. No mention of the computer network system was made in
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Gracey's affidavit for warrant.
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9. Prior to the July 20, 1993 search, Gracey told Defendant
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Wenthold about the existence of the computer system. Wenthold
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conducted the July 20th search with the assistance of several other
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officers. Wenthold was present when the computer system was located
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during the search. In sworn testimony at the preliminary hearing,
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Wenthold stated: "(We) went in one room and there was a large
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computer system set up, which we had discussed that he (Davis) had a
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network system that he had talked about with (Gracey) when he was
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making the buys. (Gracey) had never seen the system. He had talked
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about it, so it really did not surprise us when we found it, but of
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course, we couldn't describe the system in a warrant when we hadn't
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seen it yet".
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10. At the conclusion of the July 20, 1993 search, defendants
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had seized the entire electronic bulletin board system. This
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included all of the hardware and software used to run OIE and all of
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OIE's electronic contents (exhibit itemized list). Within the
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equipment seized was One Hundred Fifty Thousand (150,000) pieces of
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electronic mail and over Five Hundred (500) megabytes of files that
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subscribers had uploaded into OIE. These uploaded files were the
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material which was to be published by Mid-America Digital as their
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fourth commercial compact disc. Like the other three titles
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published by Mid-America, the files for the fourth disc stored within
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OIE contained no "adult" material.
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11. The defendants have never claimed that the e-mail, the
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uploaded files, or the compact discs published by Mid-America
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contained any pornography. The only items in the bulletin board
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system that the defendants allege are pornographic were the four
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compact discs from an outside publisher. These four CD's were among
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the sixteen compact discs whose information was accessible to OIE
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subscribers. The four allegedly pornographic discs were in a
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removable disc changer connected to OIE. Even though the defendants
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removed the four adult discs and found no other adult material within
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OIE, they still seized the entire OIE computer system and it's
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contents.
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COUNT I
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DEFENDANTS ACTIONS VIOLATED THE ELECTRONIC
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COMMUNICATIONS PRIVACY ACTS' PROHIBITION OF ILLEGAL
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AND UNAUTHORIZED SEIZURE OF ELECTRONIC COMMUNICATIONS
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12. Plaintiffs incorporate numbered paragraphs "1" through "11"
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above as though fully set forth herein.
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13. At all times material herein, plaintiff Anthony Davis,
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doing business as the OIE was the provider of electronic
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communications services within the meaning of 18 U.S.C. 2510 (15)
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and 2707.
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14. At all times relevant herein, plaintiffs Gayla Davis and,
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John Burton, were subscribers to, or customers of, the electronic
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communications services provided by OIE, within the meaning of 18
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U.S.C. 2510 (15) and 2707.
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15. As subscribers, plaintiffs Gayla Davis and John Burton
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caused private e-mail (not accessible to the public), to be placed in
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electronic storage within the OIE system.
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16. While conducting the July 20, 1993 search, Defendant
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Wenthold called Defendant Gregory Taylor to the search scene.
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Defendant Gregory Taylor was considered a computer expert at the
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OCPD. Taylor admitted under sworn testimony that the information he
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viewed while accessing OIE computers indicated the existence of
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messages contained within the OIE system.
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17. Several days after the seizure of OIE, defendant OCPD
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received a letter from plaintiff Anthony Davis stating that the
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computer equipment they seized contained private communications and
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publishing materials. The letter stated that the equipment had been
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seized in violation of the Electronic Communications Privacy Act and
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the Privacy Protection Act. The letter requested the immediate
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return of the wrongfully seized items. The defendants never
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responded to the letter.
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18. Defendants seizure of the bulletin board system disrupted
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the normal operations of the communications service operated by OIE.
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After this disruption in communications, defendants did not
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compensate any of the plaintiffs, as required in 18 U.S.C. Section
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2706 (a).
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19. The actions of Defendants Gracey, Wenthold and Taylor, as
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described herein were knowing and intentional, made under color of
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law and as agents of the OCPD.
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20. The above described actions of the defendants led to the
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illegal and unauthorized seizure of stored electronic communications
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of the plaintiffs, in violation of the Electronic Communications
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Privacy Act.
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21. By reason of the illegal and unauthorized seizure, plaintiff
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Anthony A. Davis, individually, and doing business as OIE and
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Mid-America, has suffered damages including, but not limited to, lost
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income, loss of business and professional reputation, and
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humiliation. Plaintiff Anthony Davis should receive judgment in his
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favor and against all defendants, and should be awarded money damages
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in accordance with 18 U.S.C. 2707 (c), in an amount not less than
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One Thousand Dollars ($1000.00). Plaintiff Anthony Davis also seeks
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recovery of all costs, including reasonable attorneys fees, in
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accordance with 18 U.S.C. 2707 (b)(3), and any other relief the
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Court deems necessary and proper.
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22. By reason of the above described illegal and unauthorized
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interception, plaintiffs Gayla Davis and John Burton should receive
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judgment in their favor and against all defendants, and should be
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awarded money damages in accordance with 18 U.S.C. 2707 (c) in an
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amount not less than One Thousand Dollars ($1000.00). These
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plaintiffs also seek recovery of all costs, including reasonable
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attorneys fees, and any other relief the court deems necessary and
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proper.
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COUNT II
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DEFENDANTS ACTIONS VIOLATED THE ELECTRONIC
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COMMUNICATION PRIVACY ACTS' PROHIBITION AGAINST THE
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ILLEGAL INTERCEPTION OF ELECTRONIC COMMUNICATIONS
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23. Plaintiffs incorporate numbered paragraphs "1" through "22"
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above as though fully set forth herein.
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24. The e-mail going to and from OIE subscribers was stored
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electronically within the computer equipment seized by defendants.
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The removal and retention of the contents of the computer equipment
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constituted an interception of electronic messages in violation of
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the Electronic Communications Privacy Act, as enumerated in 18 U.S.C.
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2510 et. seq.
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25. By reason of these illegal and unauthorized interceptions,
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plaintiff Anthony A. Davis, individually and doing business as OIE
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and Mid-America, has suffered damages including, but not limited to,
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lost income, loss of business and professional reputation, and
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humiliation. Plaintiff Anthony Davis should receive judgment in his
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favor and against all defendants, and should be awarded money damages
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in an amount not less than One Thousand Dollars ($1000.00).
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Plaintiffs also seek recovery of all costs, including reasonable
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attorneys fees, in accordance with 18 U.S.C. 2520, and any other
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relief the Court deems necessary and proper.
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26. By reason of the above described illegal and unauthorized
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interception, plaintiffs Gayla Davis and John Burton should receive
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judgment in their favor and against all defendants, and should be
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awarded money damages in accordance with 18 U.S.C. 2520 in an amount
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not less than One Thousand Dollars ($1000.00). These plaintiffs also
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seek recovery of all costs, including reasonable attorneys fees, and
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any other relief the court deems necessary and proper.
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COUNT III
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DEFENDANTS ACTIONS VIOLATED THE PRIVACY
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PROTECTION ACT, 42 U.S.C. 2000aa ET SEQ.
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27. Plaintiffs incorporate numbered paragraphs "1" through "26"
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above as though fully set forth herein,
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28. At all times relevant herein, defendant Anthony Davis,
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doing business as OIE and as Mid-America, was engaged in activity
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"reasonably believed to have a purpose to disseminate to the public a
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newspaper, book, broadcast, or other similar form of communication,
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in or affecting interstate or foreign commerce" within the meaning of
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42 U.S.C. 2000aa (a) and (b).
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29. OIE's publishing activities included, but were not limited
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to: making available to users electronically formatted copies of
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current periodicals, informational databases for on-line research,
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and providing "chat lines" allowing users to type in their views,
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allowing other users to respond or simply read the ongoing
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discussion.
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30. Mid-America's publishing activities included, but were not
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limited to, compiling computer software and printing the software on
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compact discs. These compact discs were then marketed and sold to
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the public.
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31. The publishing activities of OIE and Mid-America were
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never targets of the defendants search for allegedly pornographic
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discs. At the conclusion of the July 20, 1993 search the defendants
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had seized 57 compact discs published by third parties, which
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defendants alleged were pornographic. The defendants left
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approximately Two Thousand (2000) compact discs at the scene. These
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discs were multiple copies of the three disc titles published by
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Mid-America. The discs left behind had the company name "Mid-
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America Digital Publishing" and the address "1501 S.E. 66th, Oklahoma
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City, OK" stamped in bold letters on each disc. All the discs were
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in clear plastic cases.
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32. Defendants removed all of OIE's computer equipment,
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including the 1.2 gigabyte hard drive in the OIE system. Within this
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large hard drive was approximately 500 megabytes of software
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scheduled to be published on Mid-America's next disc. Defendants
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removal of the computer equipment and subsequent failure to return
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it, permanently halted OIE's and Mid-America's publishing
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activities.
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33. The actions of Defendants Gracey, Wenthold, and Taylor as
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described herein were knowing and intentional, done under color of
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law while acting as agents of the OCPD.
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34. By reason of the unauthorized seizure of the above
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described publishing materials, plaintiff Anthony Davis, individually
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and doing business as OIE and Mid-America, has suffered damages,
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including but not limited to, lost income, and loss of business and
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professional reputation. Plaintiff Anthony Davis should receive
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judgment in his favor and against all defendants, and should be
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awarded money damages in an amount not less than One Thousand Dollars
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($1000.00). Plaintiff also seeks recovery of all costs, including
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reasonable attorneys fees, and any other relief the Court deems
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necessary and proper.
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COUNT IV
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DEFENDANTS SEARCH AND SEIZURE VIOLATED
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PLAINTIFFS RIGHTS UNDER THE FOURTH AMENDMENT
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35. Plaintiffs incorporate numbered paragraphs "1" through "34"
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above as though fully set forth herein.
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36. Plaintiff Anthony Davis doing business as OIE and Mid-
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America had a reasonable expectation of privacy in the business
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premises and the work product within the office, including the data
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electronically stored within the computers.
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37. Plaintiffs Gayla Davis and John Burton, had a reasonable
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expectation of privacy in the electronic communications they had
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caused to be stored within the OIE.
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38. The search and seizure described herein was not authorized
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by a warrant particularly describing the place to be searched and the
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things to be seized. The search and seizure of the computer
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equipment of the OIE cannot be justified by a recognizable exception
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to the Fourth Amendment warrant requirement.
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39. The search warrant itself was obtained by Defendant Gracey
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based on the willful omission by Gracey of any mention of a computer
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network system, or any mention of computers, within the affidavit.
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Said omissions allowed the magistrate to issue the warrant without
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requiring the proper information the Electronic Communications
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Privacy Act or the Privacy Protection Act mandate.
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40. The defendants knew, or reasonably should have known that
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their conduct violated the clearly established constitutional right
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to be free of unreasonable searches or seizures. The defendants
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Gracey, Wenthold, and Taylor acted as agents of the OCPD and under
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color of law, at all times relevant herein.
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41. By reason of the unconstitutional search and seizure,
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plaintiff Anthony Davis and plaintiff Teleco have suffered damages
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including, but not limited to, lost income, loss of business and
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professional reputation, and humiliation. These plaintiffs should be
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awarded money damages in an amount not less than One Thousand Dollars
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($1000.00). Plaintiffs also seek recovery of all costs, including
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reasonable attorneys fees, and any other relief the Court deems
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necessary and proper.
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42. The conduct of defendants Gracey, Wenthold and Taylor
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evidenced an intent to willfully and intentionally violate
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plaintiffs' clearly established constitutional right to be free of
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unreasonable searches and seizures, or, at the least, showed a
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reckless indifference to that right. By reason of the above
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described actions of defendants Gracey, Wenthold and Taylor,
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Plaintiff Anthony Davis should be awarded punitive damages in the
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amount of Two Hundred Thousand Dollars ($200,000.00) against each
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individual defendant, for a total of Six Hundred Thousand Dollars
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($600,000.00).
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COUNT V
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DEFENDANTS ACTIONS VIOLATED PLAINTIFFS
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RIGHTS UNDER THE FIRST AMENDMENT
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43. Plaintiffs incorporate numbered paragraphs "1" through "42"
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above as though fully set forth herein.
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44. At all times relevant herein, the plaintiff Anthony Davis
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operated OIE as a forum for speech and association protected by the
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First Amendment. The publishing of information for the on-line use
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of OIE subscribers and the publishing of uploaded software within OIE
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on compact discs, were free press activities protected by the First
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Amendment.
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45. Inside the OIE computer system was approximately Five
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Hundred (500) megabytes of electronic information to be used to
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publish Mid-America's next disc. The seizure and retention of this
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information caused a prior restraint on Mid-America's next
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publication, in violation of the plaintiff Anthony Davis' First
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Amendment rights of freedom of the press and speech.
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46. The seizure and retention of private electronic mail both
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to and from plaintiffs John Burton and Gayla Davis constituted a
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violation of these plaintiffs rights of free speech and association
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under the First Amendment.
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47. Defendants Gracey, Wenthold and Taylor knew, or reasonably
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should have known, that their conduct violated clearly established
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First Amendment rights of freedom of speech, freedom of the press,
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and freedom of association. These individual defendants acted as
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agents of the OCPD and acted under color of law.
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48. By reason of the seizure in violation of his First Amendment
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rights, plaintiff Anthony A. Davis, individually and doing business
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as OIE and Mid-America, has suffered damages including, but not
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|
limited to, lost income, loss of business and professional
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|
reputation, and humiliation. Plaintiff Anthony Davis should receive
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|
judgment in his favor and against all defendants, and should be
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awarded money damages in excess of One Thousand Dollars ($1000.00).
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Plaintiff also seeks recovery of all costs, including reasonable
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attorneys fees, and any other relief the Court deems necessary and
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|
proper.
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49. By reason of the above described seizure in violation of
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their First Amendment rights, plaintiffs Gayla Davis and John Burton
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|
should receive judgment in their favor and against all defendants,
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|
and should receive money damages in an amount not less than One
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|
Thousand Dollars ($1000.00). Plaintiffs seek recovery of all costs,
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|
including reasonable attorneys fees, and any other relief the court
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|
deems necessary and proper
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50. The conduct of defendants Gracey, Wenthold and Taylor
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|
evidenced an intent to violate plaintiffs clearly established
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|
constitutional rights of freedom of speech, freedom of the press and
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|
freedom of association, or at least demonstrated a reckless
|
|
indifference to these rights. By reason of the above described
|
|
actions of defendants Gracey, Wenthold and Taylor, Plaintiff Anthony
|
|
Davis is entitled to punitive damages in the amount of Two Hundred
|
|
Thousand Dollars ($200,000.00) against each defendant, for a total of
|
|
Six Hundred Thousand Dollars ($600,000.00).
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WHEREFORE, premises considered, Plaintiffs pray for judgment in
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|
their favor and against the Defendants as stated in each Count for
|
|
their costs incurred and for such other relief to which Plaintiffs
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|
may, in the premises, be justly entitled.
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Respectfully submitted,
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_________________________________
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WILLIAM R. HOLMES, ATTORNEY, P.C.
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OBA #11867
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118 East Main Street
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Norman, OK 73069
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(405) 329-6600
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Attorney for Plaintiffs
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JURY TRIAL DEMANDED
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