Recent cases on privilege, pt. 2

Here is the second of two recent cases that caught my attention considering the privilege defense in the law of defamation, Harris v. Bornhorst, 2008 U.S. App. LEXIS 724 (6th Cir. 2008). The facts underlying this case are both tragic and fascinating, among the most interesting I have seen:

On the afternoon of June 27, 1998, Lori Duniver discovered that her five-year-old daughter, Devan, was missing from her home in New Philadelphia, Ohio. The following day, Devan's body was found in a wooded area near her home. She had been stabbed seven times in the neck.

Captain Jeffrey Urban of the New Philadelphia Police Department... identified several "persons of interest" who might have killed Devan, including Devan's mother, Lori, who had recently called a suicide hotline to report that she was depressed and considering harming herself and her children; Lori's boyfriend, Jaimie Redmond, a drug addict and felon of whom Devan was afraid, who had previously kidnapped Devan for three days and beaten her with a belt, who may have been in the neighborhood of Devan's house at the time of her disappearance, who was later found in possession of an unexplained pack of children's playing cards, and whose alibi witness was later discovered to have given a false name and Social Security number to the police; Devan's father, Richard, a violent alcoholic who had recently complained about having to pay child support for Devan and who refused to help Lori search for Devan after Devan's disappearance, claiming to be too drunk to drive; Devan's brother, Dylan, who was described by several individuals as violent and who had recently stabbed a cat; and Harris, a twelve-year-old, African-American neighbor of the (Caucasian) Dunivan family.

Harris is the plaintiff in this lawsuit. Despite an apparent rogues gallery of other likely suspects, it was Harris who was brought to the police station and coerced into confessing to the murder. This confession came under the threat of severe punishment if he was found guilty without having made a confession, and was quickly recanted. More importantly, the confession was full of holes. Harris didn't know how many times Devan had been stabbed; he guessed two. He said there had been no blood, but a forensic expert testified that this was impossible, given the number and nature of the wounds. Like an episode of CSI played in reverse, the forensic evidence indicated the lack of any connection between the boy and the body, but prosecutor Linda Spies pressed ahead with the prosecution, and the court found Harris guilty on the strength of his confession alone - a result which was thrown out only after two years of juvenile confinement.

The first defamation issue arose on June 8, 2000, the day Harris was released from prison:

Spies held a press conference that day, at which she stated, "[F]rankly, in my heart and in my gut, I feel that Anthony Harris is responsible for the murder of Devan Duniver." No further charges were ever filed against Harris, and no one has since been arrested for or convicted of Devan's murder.

Following his release, Harris filed a civil suit against various parties-including Spies-in August 2003; in 2004, he applied to enlist in the Marine Corps,and disclosed that he had been convicted of murder, even thought that conviction had been overturned. When the Marines sent someone to ask Spies for documents concerning the matter, the second defamation issue arose:

When Brahen [that's our Marine] arrived in Spies's office and requested the documents, Spies reacted by saying, in a hostile tone of voice, "[A]re you fucking kidding me?" She asked Brahen to accompany her to a conference room, where she "proceeded to tell [him] a little bit about the case and what happened." She asked Brahen whether "the Marine Corps would actually take Anthony Harris into the Marines." Brahen became uncomfortable and asked Spies to speak with Baker on the telephone. Spies agreed and proceeded to inform Baker that Harris would always be a suspect in the murder of Devan Duniver because there were no other suspects.

This comment disrupted Harris' efforts to enlist (later news reports indicate that Harris was eventually able to join the Marines, and is now serving in Iraq), and was frankly an unadvisable step for Spies, already the target of a defamation suit by Harris.

Back to the civil suit, Spies sought both absolute and qualified immunity for her alleged role in the decision to arrest Harris (and her subsequent comments on the arrest, and to the Marines) and the district court held that she could get qualified immunity. The difference between qualified and absolute immunity in this case comes with the scope of the job - the prosecutor gets absolute immunity from the things she says while trying the case, even if she is flat-out maliciously lying; but she only gets qualified immunity for acts of an administrative or investigative manner. Spies wasn't trying the case when she held the press conference (she had already lost), and she certainly wasn't trying the case when she told the Marines that Harris would always be a suspect, and claimed there were no others. In fact, Spies position as a prosecutor worked against her in this case:

Under the circumstances in which it was made, Spies's statement at the press conference was a mixed statement of opinion sufficient to give rise to a defamation claim. Spies made the statement during the workday, in a public venue, during an appearance at which she was accompanied by her second-in-command in the county prosecutor's office. All of these elements combined to imply that her statement was based upon facts not known to the general public.

So, being the prosecutor in this case not only failed to protect Spies from liability, but created an appearance of special knowledge which bolstered the potential of the statement to defamate. A similar issue arises with the statement to the Marines:

The district court also erred in concluding that Spies's statements to the recruiters were true and thus could not constitute defamation. Spies's statement that Harris would always be a suspect because there are no other suspects is directly contradicted by Urban's deposition testimony.

Many of the news reports of the case seem to have glossed over what I thought was the single most damning thing the prosecutor was alleged to have said: that there were no other suspects. The facts reported by the court indicate that this was blatantly false, and surely cast Harris in a light much harsher than the facts allowed. The press conference statement may have been a bit of understandable puffery; but the latter half of the statement to the Marines does appear to have been an outright falsehood. If the court's recitation of the facts is correct, then the prosecutor in this case bit off quite a bit more than she could chew, and would have been wise to recuse herself from further dealings resulting from this case the minute the initial conviction was overturned - but especially in light of pending litigation.

But what separates this case from Western American Transportation, which I wrote about in my last blog, and in which the plaintiff's lawyer did receive qualified immunity? Probable cause. In Harris, the appellate court found the district court in error, because there was no probable cause for Spies to order the arrest of Harris in the first place. There was never enough suspicion for Harris to be questioned, and the confession was meaningless in light of the circumstances. A thoughtful prosecutor simply should have known better.

This case may turn out to have more than local importance. The ruling has been used as fodder in a local judicial campaign, and in a well-deserved self-congratulatory note to the lawyers from Baker Hostetler representing Harris. It certainly bespeaks caution with respect to the conduct of prosecutors outside the courtroom, and particularly in press conferences following acquittals.

Recent cases on privilege, pt 1.

Here are a pair of recent cases decided within the past few weeks that raise the interesting impact of privilege in the law of defamation:

Western American Transportation LLC v. Morrow, 2008 U.S. App. LEXIS 1215 (5th Cir. 2008), and Harris v. Bornhorst, 2008 U.S. App. LEXIS 724 (6th Cir. 2008). Now, these are both federal cases - the first was apparently brought under diversity jurisdiction, while the second raises a slew of federal issues that are beyond the scope of this blog. Today I am just going to address Western American Transportation LLC v. Morrow, and I will post a comparative entry on Harris v. Bornhorst (which has, I think, a much more interesting set of facts) later in the week.

In Western American Transportation, the plaintiff filed a lawsuit alleging that the defendants "had violated the parties' agreement by diverting business and accounts receivable away from Western American." and specifically that the defendants had "wrongfully withheld funds that should have gone to Western American, thereby committing theft and conversion." The defendants filed a counterclaim that this allegation was defamatory.

As the court points out later on the opinion, accusing someone of a crime is (at least in some states) "defamatory per se". That is to say, in jurisdictions which apply that rule, all the complainant has to do is show that the statement was made, and was false, and the court will presume that an injury has occured. per se defamation will be covered extensively in a future blog (it is a fun area by itself, with plenty of twists and turns), but for the purposes of this discussion, it is enough to say that it simplifies things - indeed, the court notes that "[t]he parties agree that Western American's theft-and-conversion allegations were defamatory per se and are accorded a presumption of malice."

So, here we have a case where it is agreed that the statement was made (obviously - it was in a filing with the court!), and as it happens, a partial settlement by the parties wherein the plaintiff even agrees that the claims were not true! It seems like this would be a slam-dunk for a finding that defamation has indeed occured, but wait - there's a catch, and the catch is called "privilege":

However, even when a plaintiff makes a prima facie showing of the essential elements of defamation, recovery may be precluded if the defendant shows that the statement was protected by a privilege, absolute or qualified. In Louisiana, a defamatory statement by an attorney in a judicial proceeding is protected by a qualified privilege, but the statement must be material and must be made with probable cause and without malice.

So, was the statement here material? Definitely, says the court - it was the basis of the original cause of action filed, the "core issue in that suit". Did the plaintiffs have probable cause? The court finds that they did, which is unsurprising given the very low level of suspicion needed to show probable cause. Readers may be familiar with probable cause as a criminal law concept, but as this case demonstrates, there is room for it to pop up in tort as well (another area of tort where it arises on occasion is in false imprisonment cases, where a store owner has detained a suspected shoplifter).

As for the "without malice" element, the court finds that the plaintiffs believed that the allegations were true when the complaint was filed, and that is enough to meet this requirement. Counterclaimants argue that a statement which is defamatory per se should be presumed inherently malicious. The court concedes that this presumption exists, but notes that "a presumption of malice may be rebutted by the defendant." Although the court does not spell out the test for such a rebuttal to occur, since the burden of proof in simple torts is preponderance of the evidence, plaintiffs would have needed to do no more than provide evidence showing it more likely than not that they believed the truth of the allegations. And that is exactly what they did.

So, the upshot of this case seems to be this: if a) you have some reasonable basis to suspect something bad about another person, and b) you honestly believe this bad thing to be true, and c) this bad thing is material to some cause of action you have against this person, then d) you can say things in the context of allegations supporting a legal pleading that would otherwise run you afoul of the law and expose you to liability for defamation. This may for a moment seem to give rise to the thought "aha, I can get away with defaming [insert disliked person] if I sue them!" But considering the cost of intiating litigation (and the fact that you have to be suing them for something), it's hardly worth the effort. In any event, the rule certainly makes sense in light of the number of lawsuits in which one party's allegations can be read as accusing the other party of acts amounting to a crime. If every such action was subject to a counterclaim based on an allegation of defamation, those defamation claims would be brought almost as a matter of course, as a way for the defendant to further declare their innocence of the claim. That, in turn, would muddle up litigation and burden court calendars at an entirely new level.

Two other notes of interest on this case. First, a disclaimer: remember, this is a case under Louisiana law. There is no federal law of defamation, and this outcome says nothing about what might be returned by courts in other states. Second, an interesting quirk in the procedural posture of the case. This appeal arises not out of the ongoing dispute between plaintiff and defendant (that seems to have been largely settled along the way), but between plaintiff's insurance company and defendant. Plaintiff's insurer did not want to cover plaintiff for the costs of defending the defamation suit. The case implies that the insurer was unhappy with the terms of plaintiff's settlement, and it is logical to suspect that the insurer was none too pleased that plaintiff effectively admitted to the defamatory conduct. However, the court's affirmation of the finding of privilege moots that dispute, as there no longer remains any defamation claim, which lets the insurer off the hook. Thus the court does not reach another interesting issue, whether the insurer must cover the costs of defending the defamation claim.

Slander and Libel: the Blog

Hello! My name is Brian Dean Abramson, and this is my blog. It is called "Slander and Libel" for a good reason - because it is primarily about the area of law more broadly known as "defamation," which includes slander and libel. You may ask, why not just call this blog "Defamation"? Well, I think "Slander and Libel" just has a nicer ring to it.

Now for a quick background. First, about me: I am an LLM candidate at The George Washington University Law School. I received my J.D. from the Florida International University College of Law in 2005, then practiced for about a year and a half with a Coral Gables intellectual property firm headed by one of the nation's top IP lawyers, Leslie J. Lott. When I later struck out on my own, I did contract work for another area attorney, which gave me some fairly substantial exposure to defamation, false light, and right of publicity causes of action.

Now, about the law of defamation. The law (at least as it applies in the United States) can basically be summed up as follows: if person A says or writes something about person B which is false, and person B is injured thereby, then person B can recover for his injury (and perhaps some extra damages to punish person A and dissuade others from acting like that). However, that is a vast oversimplification of the many issues which may arise in this cause of action. Suppose person A doesn't identify person B by name, but describes person B by characteristics? Suppose person A writes a book purporting to be fiction, but one of the characters is asserted to be a thinly veiled caricature of person B? And suppose person A expresses a nasty opinion of person B, but doesn't come right out and claim a false fact? All of these are issues upon which defamation cases may hinge, and many more are waiting in the wings.

Furthermore, in the United States, there is another set of considerations arising from the First Amendment guarantee of freedom of speech. At its core, this guarantee protects the right of citizens to engage in political speech, including the criticism of public officials. Thus, the Supreme Court has found that the First Amendment presents a higher bar for such an official to claim that he or she has been defamed. This bar has also been imposed, in sometimes unpredictable ways, towards persons who are not public officials, but who have entered the light of public interest due to circumstances beyond their control.

I intend to post two to three discussions per month detailing the state of defamation law, quirks thereof, and new developments thereto. Comments, questions, and suggestions welcome.

Warm regards,
Brian Dean Abramson, Esq.