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??[104] OKC Sysop Echo (1:147/3008) ??????????????????????????????????SYSOP147 ?? Msg : 59 of 61 From : Tony Davis 1:147/1 10 Mar 94 12:38:00 To : All Subj : 1 OF 3 (Combined to form single file on 03/10/94) ????????????????????????????????????????????????????????????????????????????????

           IN THE UNITED STATES DISTRICT COURT FOR
               THE WESTERN DISTRICT OF OKLAHOMA

ANTHONY A. DAVIS, INDIVIDUALLY AND ) DOING BUSINESS AS THE OKLAHOMA ) INFORMATION EXCHANGE AND DOING ) BUSINESS AS MID-AMERICA DIGITAL ) PUBLISHING COMPANY, GAYLA DAVIS, ) AND JOHN BURTON, INDIVIDUALS, ) AND TSI TELECOMMUNICATIONS ) SPECIALISTS, INC., AN OKLAHOMA ) CORPORATION )

                                 )
        Plaintiffs,              )

vs. ) Case No.:

                                 )

THE CITY OF OKLAHOMA CITY, A ) MUNICIPAL CORPORATION AND THE ) OKLAHOMA CITY POLICE DEPARTMENT, ) AND OFFICERS ANTHONY GRACEY, MARK ) WENTHOLD AND GREGORY TAYLOR IN ) THEIR OFFICIAL CAPACITIES AS ) OKLAHOMA CITY POLICE OFFICERS AND ) AS INDIVIDUALS )

                                 )
        Defendants,              )
                           COMPLAINT
   Anthony A. Davis, Individually and doing business as the

Oklahoma Information Exchange and Doing Business as Mid-America Digital Publishing Company, Gayla Davis, and John Burton, Individuals, and TSI Telecommunications Specialists, Inc., an Oklahoma Corporation, the Plaintiffs above named, for their Complaint against the Defendants, The City of Oklahoma City, a municipal corporation and the Oklahoma City Police Department, and Officers Anthony Gracey, Mark Wenthold and Gregory Taylor, in their official capacities as Oklahoma City Police Officers, and additionally, against Anthony Gracey, Mark Wenthold and Gregory Taylor, in their individual capacities, state as follows:

                           JURISDICTION
   1.  Plaintiff Anthony A. Davis is an adult resident of McLoud,

Cleveland County, State of Oklahoma. The businesses called the Oklahoma Information Exchange (hereafter "OIE") and Mid-America Digital Publishing Company (hereafter "Mid-America") were operated from an office at 1501 S.E. 66th Street, Oklahoma City, Oklahoma County, Oklahoma. Plaintiff Gayla Davis is an adult resident of McLoud, Cleveland County, Oklahoma. Plaintiff John Burton is an adult resident of Midwest City, Oklahoma County, Oklahoma. Plaintiff TSI Telecommunications Specialists, Inc. (hereafter "Teleco") is an Oklahoma Corporation whose principal place of business at all relevant times herein was 1501 S.E. 66th, Oklahoma City, Oklahoma County, Oklahoma.

   2.  Defendant the City of Oklahoma City (hereafter "City"), is a

political subdivision of the State of Oklahoma, with its principal location in Oklahoma County, Oklahoma; the Oklahoma City Police Department (hereafter "OCPD") is an agency of the City; Defendants Anthony Gracey, Mark Wenthold and Gregory Taylor were, at all times relevant herein, police officers employed by OCPD and the City, and they are sued herein in their official capacities for official acts purportedly taken under color of their agency and under color of the official duties and exercises of governmental power vested upon them ex officio by the City and by the laws of the State of Oklahoma. All acts herein complained occurred within Oklahoma City, Oklahoma County, State of Oklahoma. Defendants Gracey, Wenthold and Taylor are further sued in their individual capacities for acts taken under color and authority of their official position as OCPD officers, but which in truth and fact were undertaken outside the authority and proper use of their position, and in violation of the Plaintiffs' rights.

   3.  This action is brought pursuant to Title 18, United States

Code, Sections 2510 et. seq., known as the Electronic Communications Privacy Act; Title 42, United States Code, Section 2000aa et.seq., known as the Privacy Protection Act; and Title 42, United States Code, Section 1983, directly under the First and Fourth Amendments to the Constitution of the United States of America. Accordingly, jurisdiction of this Honorable Court is invoked under provisions of Title 28 United States Code, Section 1343 (3) and also under the First and Fourth Amendment of the Constitution to redress the deprivation, under color of law of certain acts by the defendant City of Oklahoma City, by and through its police department and the individual police officers named herein; said acts caused a violation of the rights, privileges and immunities secured to the plaintiffs by the Constitution and Laws of the United States.

           FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
   4.  In 1984, plaintiff Anthony Davis created an electronic

bulletin board system he named the Oklahoma Information Exchange (OIE). By 1993, OIE had become the largest bulletin board in Oklahoma with over Two Thousand (2000) subscribers from throughout the United States. Subscribers used their personal computers and a modem to dial in and access OIE. Once users "logged on", they chose from a variety of on-line services. These services ranged from the sending or receiving of electronic messages (known as e- mail), searching databases of information, and "downloading" (copying files within OIE into the user's computer).

   5.  OIE subscribers often "uploaded" computer programs

(electronically sending information from the subscribers computer to OIE) into the OIE system. These type of computer programs are generally referred to as "shareware" or "public domain" software. Such programs are customarily exchanged free of charge among computer users. After years of accumulating these uploaded files, Davis decided he would publish a volume of the software on compact disc. Davis chose a compact disc as his medium since the discs can hold an enormous number of computer programs. The publishing of the discs was done through a company Anthony Davis called Mid- America Digital Publishing Company ("Mid-America"). By July 20, 1993 Mid-America had published three (3) compact discs, printing and selling thousands of copies of each disc. Purchasers could place the disc in a CD-ROM drive to convert the programs into a format to be used on the purchaser's computer.

   6.  On July 20, 1993, the Oklahoma City Police Department

represented by Defendants Wenthold, Gracey, Taylor and several other police officers, searched the business address of plaintiffs at 1501 S.E. 66th, Oklahoma City, pursuant to a search warrant (see Exhibit "A").

   7. The search warrant was obtained based on the sworn affidavit

of defendant Anthony Gracey. (see Exhibit "B"). The affidavit refers to several instances where Officer Gracey, acting as an undercover officer, went to 1501 S.E. 66th Street and purchased compact discs containing adult images from Anthony Davis. The adult discs purchased by Gracey were published by a third party, not Mid-America. These discs contained information, which if viewed with the proper equipment, could display allegedly pornographic images.

   8.  Defendant Gracey made contact with Anthony Davis at 1501

S.E. 66th Street on three occasions prior to July 20, 1993. Each time Gracey was posing as an undercover officer and attempted to buy compact discs containing allegedly pornographic images. On two occasions, Davis sold Gracey adult discs published by third parties (not Mid-America). On the second visit, Davis told Gracey that he had a computer network system that would allow Gracey or anyone else to dial in and access the same information contained on the discs which Davis sold to Gracey. In sworn testimony, Gracey admitted that Davis offered to take him to the back room of the office where the computers were set up. Gracey did not accept Davis's offer. On his third visit, Gracey did not inquire any further about the computer system. No mention of the computer network system was made in Gracey's affidavit for warrant.

   9.  Prior to the July 20, 1993 search, Gracey told Defendant

Wenthold about the existence of the computer system. Wenthold conducted the July 20th search with the assistance of several other officers. Wenthold was present when the computer system was located during the search. In sworn testimony at the preliminary hearing, Wenthold stated: "(We) went in one room and there was a large computer system set up, which we had discussed that he (Davis) had a network system that he had talked about with (Gracey) when he was making the buys. (Gracey) had never seen the system. He had talked about it, so it really did not surprise us when we found it, but of course, we couldn't describe the system in a warrant when we hadn't seen it yet".

   10.  At the conclusion of the July 20, 1993 search, defendants

had seized the entire electronic bulletin board system. This included all of the hardware and software used to run OIE and all of OIE's electronic contents (exhibit itemized list). Within the equipment seized was One Hundred Fifty Thousand (150,000) pieces of electronic mail and over Five Hundred (500) megabytes of files that subscribers had uploaded into OIE. These uploaded files were the material which was to be published by Mid-America Digital as their fourth commercial compact disc. Like the other three titles published by Mid-America, the files for the fourth disc stored within OIE contained no "adult" material.

   11.  The defendants have never claimed that the e-mail, the

uploaded files, or the compact discs published by Mid-America contained any pornography. The only items in the bulletin board system that the defendants allege are pornographic were the four compact discs from an outside publisher. These four CD's were among the sixteen compact discs whose information was accessible to OIE subscribers. The four allegedly pornographic discs were in a removable disc changer connected to OIE. Even though the defendants removed the four adult discs and found no other adult material within OIE, they still seized the entire OIE computer system and it's contents.

                           COUNT I
          DEFENDANTS ACTIONS VIOLATED THE ELECTRONIC
     COMMUNICATIONS PRIVACY ACTS' PROHIBITION OF ILLEGAL
    AND UNAUTHORIZED SEIZURE OF ELECTRONIC COMMUNICATIONS
   12.  Plaintiffs incorporate numbered paragraphs "1" through "11"

above as though fully set forth herein.

   13.  At all times material herein, plaintiff Anthony Davis,

doing business as the OIE was the provider of electronic communications services within the meaning of 18 U.S.C. 2510 (15) and 2707.

   14.  At all times relevant herein, plaintiffs Gayla Davis and,

John Burton, were subscribers to, or customers of, the electronic communications services provided by OIE, within the meaning of 18 U.S.C. 2510 (15) and 2707.

   15.  As subscribers, plaintiffs Gayla Davis and John Burton

caused private e-mail (not accessible to the public), to be placed in electronic storage within the OIE system.

   16.  While conducting the July 20, 1993 search, Defendant

Wenthold called Defendant Gregory Taylor to the search scene. Defendant Gregory Taylor was considered a computer expert at the OCPD. Taylor admitted under sworn testimony that the information he viewed while accessing OIE computers indicated the existence of messages contained within the OIE system.

   17.  Several days after the seizure of OIE, defendant OCPD

received a letter from plaintiff Anthony Davis stating that the computer equipment they seized contained private communications and publishing materials. The letter stated that the equipment had been seized in violation of the Electronic Communications Privacy Act and the Privacy Protection Act. The letter requested the immediate return of the wrongfully seized items. The defendants never responded to the letter.

   18.  Defendants seizure of the bulletin board system disrupted

the normal operations of the communications service operated by OIE. After this disruption in communications, defendants did not compensate any of the plaintiffs, as required in 18 U.S.C. Section 2706 (a).

   19.  The actions of Defendants Gracey, Wenthold and Taylor, as

described herein were knowing and intentional, made under color of law and as agents of the OCPD.

   20.  The above described actions of the defendants led to the

illegal and unauthorized seizure of stored electronic communications of the plaintiffs, in violation of the Electronic Communications Privacy Act.

   21. By reason of the illegal and unauthorized seizure, plaintiff

Anthony A. Davis, individually, and doing business as OIE and Mid-America, has suffered damages including, but not limited to, lost income, loss of business and professional reputation, and humiliation. Plaintiff Anthony Davis should receive judgment in his favor and against all defendants, and should be awarded money damages in accordance with 18 U.S.C. 2707 ©, in an amount not less than One Thousand Dollars ($1000.00). Plaintiff Anthony Davis also seeks recovery of all costs, including reasonable attorneys fees, in accordance with 18 U.S.C. 2707 (b)(3), and any other relief the Court deems necessary and proper.

   22.  By reason of the above described illegal and unauthorized

interception, plaintiffs Gayla Davis and John Burton should receive judgment in their favor and against all defendants, and should be awarded money damages in accordance with 18 U.S.C. 2707 © in an amount not less than One Thousand Dollars ($1000.00). These plaintiffs also seek recovery of all costs, including reasonable attorneys fees, and any other relief the court deems necessary and proper.

                           COUNT II
          DEFENDANTS ACTIONS VIOLATED THE ELECTRONIC
     COMMUNICATION PRIVACY ACTS' PROHIBITION AGAINST THE
      ILLEGAL INTERCEPTION OF ELECTRONIC COMMUNICATIONS
   23.  Plaintiffs incorporate numbered paragraphs "1" through "22"

above as though fully set forth herein.

   24.  The e-mail going to and from OIE subscribers was stored

electronically within the computer equipment seized by defendants. The removal and retention of the contents of the computer equipment constituted an interception of electronic messages in violation of the Electronic Communications Privacy Act, as enumerated in 18 U.S.C. 2510 et. seq.

   25. By reason of these illegal and unauthorized interceptions,

plaintiff Anthony A. Davis, individually and doing business as OIE and Mid-America, has suffered damages including, but not limited to, lost income, loss of business and professional reputation, and humiliation. Plaintiff Anthony Davis should receive judgment in his favor and against all defendants, and should be awarded money damages in an amount not less than One Thousand Dollars ($1000.00). Plaintiffs also seek recovery of all costs, including reasonable attorneys fees, in accordance with 18 U.S.C. 2520, and any other relief the Court deems necessary and proper.

   26.  By reason of the above described illegal and unauthorized

interception, plaintiffs Gayla Davis and John Burton should receive judgment in their favor and against all defendants, and should be awarded money damages in accordance with 18 U.S.C. 2520 in an amount not less than One Thousand Dollars ($1000.00). These plaintiffs also seek recovery of all costs, including reasonable attorneys fees, and any other relief the court deems necessary and proper.

                          COUNT III
           DEFENDANTS ACTIONS VIOLATED THE PRIVACY
           PROTECTION ACT, 42 U.S.C. 2000aa ET SEQ.
   27.  Plaintiffs incorporate numbered paragraphs "1" through "26"

above as though fully set forth herein,

   28.  At all times relevant herein, defendant Anthony Davis,

doing business as OIE and as Mid-America, was engaged in activity "reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of communication, in or affecting interstate or foreign commerce" within the meaning of 42 U.S.C. 2000aa (a) and (b).

   29.  OIE's publishing activities included, but were not limited

to: making available to users electronically formatted copies of current periodicals, informational databases for on-line research, and providing "chat lines" allowing users to type in their views, allowing other users to respond or simply read the ongoing discussion.

   30.  Mid-America's publishing activities included, but were not

limited to, compiling computer software and printing the software on compact discs. These compact discs were then marketed and sold to the public.

   31.   The publishing activities of OIE and Mid-America were

never targets of the defendants search for allegedly pornographic discs. At the conclusion of the July 20, 1993 search the defendants had seized 57 compact discs published by third parties, which defendants alleged were pornographic. The defendants left approximately Two Thousand (2000) compact discs at the scene. These discs were multiple copies of the three disc titles published by Mid-America. The discs left behind had the company name "Mid- America Digital Publishing" and the address "1501 S.E. 66th, Oklahoma City, OK" stamped in bold letters on each disc. All the discs were in clear plastic cases.

   32.  Defendants removed all of OIE's computer equipment,

including the 1.2 gigabyte hard drive in the OIE system. Within this large hard drive was approximately 500 megabytes of software scheduled to be published on Mid-America's next disc. Defendants removal of the computer equipment and subsequent failure to return it, permanently halted OIE's and Mid-America's publishing activities.

   33.  The actions of Defendants Gracey, Wenthold, and Taylor as

described herein were knowing and intentional, done under color of law while acting as agents of the OCPD.

   34.  By reason of the unauthorized seizure of the above

described publishing materials, plaintiff Anthony Davis, individually and doing business as OIE and Mid-America, has suffered damages, including but not limited to, lost income, and loss of business and professional reputation. Plaintiff Anthony Davis should receive judgment in his favor and against all defendants, and should be awarded money damages in an amount not less than One Thousand Dollars ($1000.00). Plaintiff also seeks recovery of all costs, including reasonable attorneys fees, and any other relief the Court deems necessary and proper.

                           COUNT IV
            DEFENDANTS SEARCH AND SEIZURE VIOLATED
         PLAINTIFFS RIGHTS UNDER THE FOURTH AMENDMENT
   35.  Plaintiffs incorporate numbered paragraphs "1" through "34"

above as though fully set forth herein.

   36.  Plaintiff Anthony Davis doing business as OIE and Mid-

America had a reasonable expectation of privacy in the business premises and the work product within the office, including the data electronically stored within the computers.

   37.  Plaintiffs Gayla Davis and John Burton, had a reasonable

expectation of privacy in the electronic communications they had caused to be stored within the OIE.

   38.  The search and seizure described herein was not authorized

by a warrant particularly describing the place to be searched and the things to be seized. The search and seizure of the computer equipment of the OIE cannot be justified by a recognizable exception to the Fourth Amendment warrant requirement.

   39.  The search warrant itself was obtained by Defendant Gracey

based on the willful omission by Gracey of any mention of a computer network system, or any mention of computers, within the affidavit. Said omissions allowed the magistrate to issue the warrant without requiring the proper information the Electronic Communications Privacy Act or the Privacy Protection Act mandate.

   40.  The defendants knew, or reasonably should have known that

their conduct violated the clearly established constitutional right to be free of unreasonable searches or seizures. The defendants Gracey, Wenthold, and Taylor acted as agents of the OCPD and under color of law, at all times relevant herein.

   41.  By reason of the unconstitutional search and seizure,

plaintiff Anthony Davis and plaintiff Teleco have suffered damages including, but not limited to, lost income, loss of business and professional reputation, and humiliation. These plaintiffs should be awarded money damages in an amount not less than One Thousand Dollars ($1000.00). Plaintiffs also seek recovery of all costs, including reasonable attorneys fees, and any other relief the Court deems necessary and proper.

   42.  The conduct of defendants Gracey, Wenthold and Taylor

evidenced an intent to willfully and intentionally violate plaintiffs' clearly established constitutional right to be free of unreasonable searches and seizures, or, at the least, showed a reckless indifference to that right. By reason of the above described actions of defendants Gracey, Wenthold and Taylor, Plaintiff Anthony Davis should be awarded punitive damages in the amount of Two Hundred Thousand Dollars ($200,000.00) against each individual defendant, for a total of Six Hundred Thousand Dollars ($600,000.00).

                           COUNT V
           DEFENDANTS ACTIONS VIOLATED PLAINTIFFS
              RIGHTS UNDER THE FIRST AMENDMENT
   43. Plaintiffs incorporate numbered paragraphs "1" through "42"

above as though fully set forth herein.

   44. At all times relevant herein, the plaintiff Anthony Davis

operated OIE as a forum for speech and association protected by the First Amendment. The publishing of information for the on-line use of OIE subscribers and the publishing of uploaded software within OIE on compact discs, were free press activities protected by the First Amendment.

   45. Inside the OIE computer system was approximately Five

Hundred (500) megabytes of electronic information to be used to publish Mid-America's next disc. The seizure and retention of this information caused a prior restraint on Mid-America's next publication, in violation of the plaintiff Anthony Davis' First Amendment rights of freedom of the press and speech.

   46.  The seizure and retention of private electronic mail both

to and from plaintiffs John Burton and Gayla Davis constituted a violation of these plaintiffs rights of free speech and association under the First Amendment.

   47. Defendants Gracey, Wenthold and Taylor knew, or reasonably

should have known, that their conduct violated clearly established First Amendment rights of freedom of speech, freedom of the press, and freedom of association. These individual defendants acted as agents of the OCPD and acted under color of law.

   48. By reason of the seizure in violation of his First Amendment

rights, plaintiff Anthony A. Davis, individually and doing business as OIE and Mid-America, has suffered damages including, but not limited to, lost income, loss of business and professional reputation, and humiliation. Plaintiff Anthony Davis should receive judgment in his favor and against all defendants, and should be awarded money damages in excess of One Thousand Dollars ($1000.00). Plaintiff also seeks recovery of all costs, including reasonable attorneys fees, and any other relief the Court deems necessary and proper.

   49.  By reason of the above described seizure in violation of

their First Amendment rights, plaintiffs Gayla Davis and John Burton should receive judgment in their favor and against all defendants, and should receive money damages in an amount not less than One Thousand Dollars ($1000.00). Plaintiffs seek recovery of all costs, including reasonable attorneys fees, and any other relief the court deems necessary and proper

   50.  The conduct of defendants Gracey, Wenthold and Taylor

evidenced an intent to violate plaintiffs clearly established constitutional rights of freedom of speech, freedom of the press and 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).

   WHEREFORE, premises considered, Plaintiffs pray for judgment in

their favor and against the Defendants as stated in each Count for their costs incurred and for such other relief to which Plaintiffs may, in the premises, be justly entitled.

                              Respectfully submitted,
                              _________________________________
                              WILLIAM R. HOLMES, ATTORNEY, P.C.
                              OBA #11867
                              118 East Main Street
                              Norman, OK  73069
                              (405) 329-6600
                              Attorney for Plaintiffs
                      JURY TRIAL DEMANDED
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