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There are many
times when law enforcement officers are at the center of
a story that has been published by the news media or
even a private citizen in their community criticizing
them in their official capacity. Often, law enforcement
officers claim that the stories are not true and bring
defamation actions against those sources that have
published false information harming their reputation in
the community. Unfortunately, law enforcement officers
have generally been unsuccessful in bringing these
defamation actions. The failure stems from the notion
that law enforcement officers are public officials.
In New York Times Co. v. Sullivan, 376 U.S. 254,
(1964), the United States Supreme Court set the
rationale for determining defamation cases brought by
public officials. It required public officials to prove
actual malice.
“The constitutional guarantees require, we
think, a federal rule that prohibits a
public official from recovering damages for
a defamatory falsehood relating to his
official conduct unless he proves that the
statement was made with ‘actual malice’ –
that is, with knowledge that it was false or
with reckless disregard of whether it was
false or not.” Id., at 280."
Although this
is a very difficult requirement for public officials to
meet, law enforcement officers have still attempted
defamation actions and have sought a reward for damages.
For example, in Speer v. Ottaway Newspapers, Inc.,
828 F.2d 475, (1987), a police officer arrested a
reporter while he was taking photographs at a
demonstration. The reporter told the editors of the
newspaper that the officer along with other officers
used excessive force when making the arrest. An article
reflecting both the police officers’ and the reporter’s
view of the incident was published the next day by
another reporter for the same newspaper. Two days later
the newspaper published an editorial that condemned the
police officer’s conduct and also stated that the
officers continued to kick and strike the news reporter
while he was handcuffed. The officer based his
defamation claim on that statement.
The jury believed the officer’s evidence and found that
the reporter knew the account of the arrest that he
reported to the newspaper editors was false and that the
newspaper included a portion of the falsehood in its
editorial. The jury awarded the officer $100,000 in
actual damages and $50,000 in punitive damages. However,
the district court set aside the jury’s verdict because
evidence should have been presented to find that the
newspaper published the offensive statement with actual
malice, that is to say that the newspaper published the
statement given by the reporter with knowledge that it
was false or with reckless disregard of whether it was
false or not. The officer did not offer adequate
evidence on the actual malice issue and the district
court granted a judgment notwithstanding the verdict.
The officer appealed to the United States Court of
Appeals, Eighth Circuit.
First, the Court of Appeals looked at whether the
arrested reporter was responsible for the publication of
the editorial. If found that he was responsible, then
the newspaper may have been liable to the officer
because the reporter’s knowledge of falsity would have
been made known to the newspaper. The Court found that
since the reporter had been taken off of the story of
the demonstration, since the reporter had no input in
suggesting a topic for the editorial, since his
photographs were not used in connection with the
editorial, since he was treated like any other outside
source and since he contributed to the editorial in the
same way as any other citizen who observed a news event
and reported a first hand report of what happened to the
newspaper, the reporter was not responsible for the
publication of the editorial and the newspaper could not
be liable to the officer on the basis that the
reporter’s knowledge of falsity was communicated to it.
Second, the Court of Appeals considered the issue of if
the reporter was not responsible for the publication,
then whether those who were responsible knew that the
reporter was lying or published the editorial with
reckless disregard for whether or not he was truthful.
In deciding the second issue, the Court said that the
officer did not argue that the newspaper knew that the
reporter was lying, but instead contended that the
newspaper acted with reckless disregard for the truth.
The Court said that because the newspaper knew that the
reporter was a trusted employee and believed that he was
reliable, honest and had good details, it had no
occasion to doubt him. The Court further stated that “A
publisher’s failure accurately to guess which of two
conflicting accounts a jury might later believe does not
demonstrate actual malice.” Id. at 478. In its
conclusion the Court noted that New York Times did not
require the newspaper “to be right or silent, but only
to refrain from stating facts in its editorial with
knowledge those facts were false or with reckless
disregard of their truth or falsity.” Ibid. The Court
then affirmed the decision of the district court.
Even though defamation actions brought by law
enforcement officers are typically futile, occasionally
officers do have some success. One example is
Richmond v. Thompson, 79 Wash.App. 327, (1995). In
this particular case, Dr. Thompson, a motorist, was
stopped by Trooper Richmond, a Washington State Patrol
trooper, for speeding. Dr. Thompson disputed the fact
that he was speeding and although upset, eventually
signed a citation issued by Richmond. Dr. Thompson
returned to the location where he was stopped only to
find that Trooper Richmond had stopped another motorist
for speeding. Dr. Thompson initiated a conversation with
the motorist and asked him to join in a lawsuit against
Trooper Richmond. The motorist declined, stating that he
was indeed speeding. Trooper Richmond forcefully told
Dr. Thompson to leave and threatened to arrest him for
obstructing an officer. Later, Dr. Thompson wrote a
letter to the Governor’s office as well as other
governmental agencies alleging that Trooper Richmond had
assaulted him and threatened to blow his head off. These
claims by Dr. Thompson were not brought up at his trial
for speeding. Because of Dr. Thompson’s claims, the
State Patrol conducted an internal investigation and
found that after speaking with witnesses, the
allegations were unfounded. Trooper Richmond then
brought an action against Dr. Thompson alleging among
other things, defamation.
The trial court relying on the New York Times Co. v.
Sullivan standard required Trooper Richmond to prove
that the letter to the Governor’s office was false and
among other things was published with actual malice. The
jury awarded Trooper Richmond $15,000 on his defamation
claim. Dr. Thompson appealed. Dr. Thompson argued that
the court should depart from New York Times Co. v.
Sullivan, and should recognize an absolute privilege
barring defamation actions by law enforcement officers
against citizens who make complaints such as his. The
Court of Appeals of Washington declined to rule that
citizen complainants are absolutely privileged from
liability for defamation actions by law enforcement
officers. Dr. Thompson also argued that Trooper Richmond
did not establish actual malice by clear and convincing
evidence and without actual malice, the defamation claim
is lost. The court after reviewing the record and
considering the testimony of eyewitnesses, found that
the evidence of actual malice was established by clear
and convincing evidence. The court said that the
testimony of Trooper Richmond, the other motorist that
he stopped as well as the passenger in that motorist’s
vehicle established that the allegations in Dr.
Thompson’s letter to the Governor never occurred. The
court further stated that the fact that Dr. Thompson did
not make the allegations against Trooper Richmond until
six months after he failed to convince the district
court that he was not speeding, was enough to infer that
he knew that the allegations he made were false.
Therefore, the court affirmed the district court’s
decision in favor of Trooper Richmond.
More likely than not, law enforcement officers will not
have the success of the state trooper in Richmond v.
Thompson. The actual malice requirement of
defamation actions brought by law enforcement officers
is a hurdle that most cannot jump. Law enforcement
officers must remember that they are public officials
whose official conduct at times will be widely and
falsely criticized. While being a public official does
not bar officers from bringing defamation actions, it
will bar officers from recovery in those actions if the
actual malice requirement is not constitutionally
satisfied.
Should you have any questions about law enforcement
officers and defamation claims, please call
1-800-233-3506. |