The US Ninth Circuit Court of Appeals has decided that Los Angeles Assistant District Attorney John Patrick Frey, better known by his blogging handle ‘Patterico,’ must answer for the emotional and financial distress that he inflicted on Nadia Naffe, but he will not be sued for acting under ‘color of law.’

The three judge panel ruled that Naffe’s factual allegations did not support her contention that Frey had abused his powers of office, finding instead that Frey was acting as a private citizen when he published her unredacted sensitive personal information, then used Twitter as a courtroom to cross-examine and intimidate her. But Naffe, who says she has suffered identity theft and severe health problems as a result of the stress, is still free to sue Frey.

The panel also reversed a district court ruling which held that Naffe’s damage claims were insufficient to meet the $75,000 threshold required by federal courts. Ruling that the lower court applied the wrong standard “to evaluate the amount in controversy,” Judges Wallace Tashima, Richard C. Tallman, and Jacqueline H. Nguyen remanded the case for trial because “we cannot say to a legal certainty that Naffe’s claims are worth less.”

However, Frey does face civil ‘color of law’ charges in a Maryland federal court as part of a separate case. A federal judge ruled in March that Brett Kimberlin had more than sufficient evidence to support his allegation that Frey chilled his free speech through official acts.

Frey’s social media harassment of Naffe took place in the same time frame that he was conducting his crusade against Kimberlin in the Dallas FBI office.

We will stay on top of this story.

PDF of the court’s decision

8 thoughts on “Win Some, Lose Some: ‘Naffe v Frey’ Remanded”
  1. Patrick Frey is a totally unethical lawyer and prosecutor. He needs to be disbarred. I hope that his attacks on these activists will be his undoing. Congrats to Nadia for pushing this to the limit. This is a one two punch to his gut — first Kimberlin and second Naffe. Why is this jerk still working for the DA’s Office? OMG, when Naffe’s lawyer puts Frey under oath. Wow. And discovery? Has discovery started yet in the Kimberlin case?

    Hey Frey, how’s that First Amendment shield holding up for you?? Do you have insurance?

    Jury sees obsessive racist targeting black woman. Who wins??

    Frey’s going down faster than I thought. I figured it would take six months for the Ninth Circuit to rule, but obviously they were pissed and wanted to sock him in the face.

    Best news I have heard all month.

  2. This is actually not a bad decision. For one, it severs the ties between dipshits like Frey and the coffers of the city of los angeles. It also sets a pretty reasonable standard for pleading damages so the court can hear a case.

    While some might call the “color of authority” decision something in Frey’s favor, I don’t see it that way. This means that Frey can’t be offered any legal protection from the city, nor will it be the tax payer of California who pays for the fights Frey picks with people online. The other issue was pretty aptly addressed in the video Coleman posted of the 9th circuit pondering what a pleading standard should be. It’s nice to see the judges did not see the benefit to anyone but Frey if a plaintiff had to adhere to Frey’s legal team’s interpretation of pleading damages.

    So, back to court it goes. I’m interested to see the previous points of dismissal brought up before re-applied. 1.) Is Frey’s dox of Naffe subject to application of an ANTI-SLAPP measure and 2.) should Naffe have to post a bond to cover legal fees before the case proceeds?

    If (1.) turns out to exclude Frey’s actions and (2.) is applicable Naffe should set up a kickstarter. However, if your whole legal defense brags about being Pro-Bono, outside of court fees and clerical/notary work what kind of a bond amount should that be?

    1. I doubt anti-slapp will work in this case. Frey had a clear line from O’Keefe to his office and was according to many reports (appeals court included) a personal friend of O’Keefe. Therefore, it stands to reason that Frey had a personal grudge against Naffe, and that he used this grudge to get her or harm her in his usual way.

      As for Ken White and Ron Coleman and being pro bono, these guys are all asking for money and sanctions and everything else, so it doesnt look like they are doing pro bono work. As for asking for bonds and so forth, I have my doubts that will survive. it’s just another tactic in looney toon (yes Ken White is a loony tune fresh out of a mental institution (White’s words and statements) village to stall, delay or deprive Naffe of getting any financial recovery from Frey.

      The interesting question here is the quid pro quo of the Kenneth White/Patrick Frey relationship and how Frey is able to command free legal help from a criminal defense attorney’s in Los Angeles California, while being a criminal prosecutor in Los Angeles California.

      Right now as the case stands, Kenneth White and Ron Coleman have claimed over 100 thousand dollars in fees due them from Naffe. So, what is the quid pro quo for Frey now being indebted to legal sharks on the so-called dark side of the legal fence? This seems ripe for a pro publica investigation of some sort of Frey and his private relationships with convicted felons and misdemeanants eg. Ali Akbar, James O’keefe, and also criminal defense attorneys who have been more than willing to give Frey all the legal help he can get for, dare I say, FREE?

  3. I am not surprised that Team Frey (Popehat, Coleman et al) are claiming a victory here. In fact, it is really a loss for them as Naffe never really had a color of law claim like Kimberlin has. In the Naffe case what she had amounted to damages based upon her emotional distress and other damages due to Frey rushing home from the office with her Pacer file in hand, which included all of her personal information unredacted, which Frey never bothered to even read before posting. This now sets up Frey for a damages assessment that could go over 1 million dollars, according to the court of appeals. See below:

    Here, it does not appear to a legal certainty that Naffe’s claim is really for less than the jurisdictional amount. Naffe alleges she incurred more than $75,000 in damages as a result of Frey’s conduct. That sum includes the money Naffe allegedly spent repairing her credit history after Frey posted her social security number and other private information online.

    It also includes damages resulting from the medical problems, emotional distress, lost job opportunities, and harm to her reputation she allegedly suffered because of the disparaging comments Frey published about her. Naffe reaffirmed these allegations in a sworn declaration. If Naffe proves these facts at trial, a jury could reasonably award her damages exceeding $75,000. See, e.g., Hope v. Cal. Youth Auth., 134 Cal. App. 4th 577, 595 (2005) (affirming a $1 million verdict for emotional distress damages).

  4. In the somewhat related case in Maryland Federal court, Brett Kimberlin has a much clearer case of color of law against Frey. The California appeals court noted that Naffe needed to show investigations launched and so forth before any color of law claim could succeed. In the Kimberlin case, the success of that is almost a guarantee. Frey initiated FBI investigations, met with Assistant US Attorney’s in Dallas Texas, tried to set up stings, wrote people about his investigations with federal authorities, contacted members of Congress to get the Attorney General to investigate etc. etc. and the ubiquitous “we’ll get them” statement in his letter to his friends/cohorts after meeting with federal officials. This all under his official power of office.

    Now Frey is attempting to claim prosecutorial immunity from what I hear. Of course, this would possibly work if you were investigating someone else’s case and not your own. That is where Frey truly screwed the pooch in my humble opinion, investigating his own case which is probably not what he was allowed to do. It is clear, and I think Judge Hazel found it clear, that Frey acted under color of law with his actions based upon his letter to his cohorts or companions after meeting with federal officials, and that alone, along with all the other evidence forthcoming, will probably spell the beginning of the end of Frey’s power of his office and blog against those whom he perceives to be his enemies.

  5. And here is what the appeals court stated for the Naffe case:

    But Naffe does not state any facts to support the allegation that Frey investigated her (or even could have investigated her). Iqbal,556 U.S. at 678. She does not, for example, allege Frey used his authority to contact law enforcement, open an investigation file, or interview witnesses about Naffe’s involvement with O’Keefe.

    However, make note of what Frey did in the Kimberlin case with all those competing investigations that he instigated over swattings, his own included. It is very clear that the rush to judgment that Kimberlin was responsible was the modus op. Frey had stated that at some point “he gave up on law enforcement.” And the only thing one could infer after an assistant district attorney “gave up on law enforcement,” was that vigilante law was all that was left for him. So Frey went on a crusade using the “I’m a district attorney so you must listen to me” meme. And he was able to meet with federal officials — even in another state — that had zero jurisdiction and go hell bent against his enemy at that time, Brett Kimberlin.

    The thing to note is that ordinary citizens cannot just meet with federal officials to discuss cases. It’s very hard for any citizen without an official cover to just fly to some other state and hook up with other federal or state officials and demand investigations without an official cover. So it’s is very clear here that Kimberlin has met the definition under color of law in his case. So Frey is facing potential damages up to 1 million in the Naffe case, and damages in the Kimberlin case that have no price that one could contemplate at this point in time.

    A Win for Frey? Hardly. More like a huge loss, and one that possibly spells the end of Frey’s career as a Los Angeles assistant DA.

    1. I tend to agree with you on this one. Only a fool would spin this as a win. Naffe could always amend her complaint if she has more evidence to support a color of law case. And she could ask for rehearing on that issue. But the win was getting back into district court. Frey was bragging all to shit when he got the case dismissed. But now its back in court for another year or two.

      So the win for Nadia is accountability- she is holding Frey’s feet to the fire. He thought he could use his blog to ruin lives and now he sees that people fight back against bullies like him. Attorney Coleman is either going to bankrupt Frey or is going to go bankrupt himself between these two federal cases. Discovery in federal cases costs seven figures according to all my lawyer friends. Lawyers who represent bullies are bullies themselves.

      When is the LA County DAs office going to give Frey the pink slip? That’s the real question.

  6. The Illinois Supreme Court ruled this week that a person cannot anonymously call someone “Sandusky” online. It ordered Comcast to disclose his identity. This seems to be an almost unanimous trend throughout the country, so it is odd that Mr. Walker and Mr. Ace Of Spades have spent so much time arguing that they have a right to defame people anonymously, and Mr. Frey and Mr. Popehat defend this supposed right.

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