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Miller v. Mitchell

April 30, 2010

MARYJO MIILLER, INDIVIDUALLY AND ON BEHALF OF HER MINOR DAUGHTER, M.M., JAMI DAY, INDIVIDUALLY AND ON BEHALF OF HER MINOR DAUGHTER, G.K., AND JANE DOE, INDIVIDUALLY AND ON BEHALF OF HER MINOR DAUGHTER, NANCY DOE, PLAINTIFFS
v.
JEFF MITCHELL, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF WYOMING COUNTY, DEFENDANT



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court is plaintiffs' complaint (Doc. 1), which seeks a permanent injunction preventing prosecution of Plaintiffs Marissa Miller, Grace Kelly and Jane Doe on charges related to two photographs. For the reasons stated below, the court will grant that injunction.

Background

At issue in this case is the practice of "sexting," which has become popular among teenagers in recent years. (Complaint (Doc. 1) (hereinafter "Complt.") at ¶ 7). According to the plaintiffs, this is "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet." (Id.). Typically, the subject takes a picture of him- or herself with a digital camera or cell phone camera, or asks someone else to take that picture. (Id. at ¶ 8). That picture is stored as a digitized image and then sent via the text-message or photo-send function on a cell phone, transmitted by computer through electronic mail, or posted to an internet website like Facebook or MySpace. (Id. ¶ 9). This practice is widespread among American teenagers; studies show approximately 20% of Americans age 13-19 have done it. (Id. ¶ 10).

Images and Threatened Prosecutions

In October 2008, Tunkhannock, Pennsylvania School District officials confiscated several students' cell phones, examined them and discovered photographs of "scantily clad, semi-nude and nude teenage girls." (Id. at ¶ 12). Many of these girls were enrolled in the district. (Id.). The School District reported that male students had been trading these images over their cell phones. (Id. at ¶ 13).

The School District turned the phones over to George Skumanick, then the District Attorney of Wyoming County, Pennsylvania. (Id.at ¶ 13).

Skumanick began a criminal investigation. (Id.). In November 2008, Skumanick stated to local newspaper reporters and a district assembly at Tunkhannock High School that students who possess inappropriate images of minors could be prosecuted under Pennsylvania law for possessing or distributing child pornography, 18 PENN.STAT. § 6312, or criminal use of a communication facility, 18 PENN. STAT. § 7512. (Id. at ¶ 15). Skumanick pointed out that these charges were felonies that could result in long prison terms and would give even juveniles a permanent record. (Id. at ¶ 16). Defendant contends that if found guilty of these crimes, the three minor plaintiffs would probably be subject to registration as sex offenders under Pennsylvania's Registration of Sexual Offenders Act ("Meghan's Law), 42 PENN. STAT. ¶ 9791, for at least ten years and have their names and pictures displayed on the state's sex-offender website. (Id. at ¶ 17).

On February 5, 2009, Skumanick sent letters to the parents of approximately twenty Tunkhannock students, including the adult plaintiffs in this case. (Id. at ¶ 19). Skumanick sent this letter to the students on whose cell phones the pictures were stored and to the girls shown in the photos. (Id. at ¶). According to the plaintiffs, he did not send the letter to those who had disseminated the images. (Id.).

The letter informed the parents that their child had been "identified in a police investigation involving the possession and/or dissemination of child pornography." (Id. at ¶ 20a). The letter also promised that the charges would be dropped if the child successfully completed a six- to nine-month program focused on education and counseling. (Id. at ¶ 20b). The children and parents were invited to a meeting on February 12, 2009 to discuss the issue. (Id. at ¶ 20c). The letter warned that "charges will be filed against those that do not participate or those that do not successfully complete the program." (Id. at ¶ 20d).

Skumanick held the meeting on February 12, 2009 at the Wyoming County Courthouse. (Id. at ¶ 26). At that meeting, Skumanick reiterated his threat to prosecute unless the children submitted to probation, paid a $100 program fee and completed the program successfully. (Id. at ¶ 27). When asked by one parent at the meeting why his daughter--who had been depicted in a photograph wearing a bathing suit--could be charged with child pornography, Skumanick replied that the girl was posed "provocatively," which made her subject to the child pornography charge. (Id. at ¶ 29). When the father of Marissa Miller asked Skumanick who got to decide what "provocative" meant, the District Attorney replied that he refused to argue the question and reminded the crowd that he could charge all the minors that night. (Id. at ¶ 30). Instead, Skumanick asserted, he had offered them a plea deal. (Id.). He told Mr. Miller that "these are the rules. If you don't like them, too bad." (Id.).

The proposed program--which the plaintiffs call a "re-education program"--is divided between girls' and boys' programs.*fn1 (Id. ¶ 32). The program is designed to teach the girls to "gain an understanding of how their actions were wrong," "gain an understanding of what it means to be a girl in today's society, both advantages and disadvantages," and "identify non-traditional societal and job roles." (Id.). Included in the "homework" for the program is an assignment including "[w]hat you did" and "[w]hy it was wrong." (See Course Outline (Exh. 2 to Complt.) (Doc. 1-5)). The program was initially purported to last six to nine months, but was eventually reduced to two hours per week over five weeks. (Complt. at ¶ 31).

At the February 12 meeting, Skumanick asked all those present to sign an agreement assigning the minors to probation and to participation in the program. (Id. at ¶ 33). Only one parent agreed to sign the form for her child. (Id.). Skumanick gave the parents forty-eight hours to agree to the offer or the minors would be charged. (Id. at ¶ 34). After parents objected, Skumanick extended the time frame for agreeing to his program to a week. (Id.). ...


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