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