Court Again Tells Cops That A Councilwoman Referring To Them As Murderers Isn’t Defamation

Defamation

from the decision-so-nice-it-got-decided-twice dept

In March 2019, we reported that a Washington federal court has tossed (definitively) a lawsuit brought by two Seattle police officers who believed being called murderers gave them a cause of action.

It did not. Seattle councilwoman Kshama Sawant did not actually call these two cops — Scott Miller and Michael Spaulding — murderers. Instead, she simply made some statements about the police department as a whole and called the shooting of Che Taylor during an undercover drug bust a “murder.”

This is from the court’s original decision:

According to the SAC [second amended complaint], Councilmember Sawant, while standing in front of the Seattle Police Department, stated that “the police” committed a “brutal murder” which was “racially motivated.” Councilmember Sawant did not identify Officers Miller and Spaulding by name, nor did she provide any information that would even remotely allow listeners to ascertain their identities, such as their rank or position, division or unit, precinct, or length of time on the force. Finally, Councilmember Sawant’s statements referred broadly to “the police,” the “Seattle Police Department,” and “systematic police brutality and racial profiling.”

With that, the court dismissed the defamation lawsuit against Sawant with prejudice, which meant the cops were completely out of luck when it came to suing the councilmember over these statements. (It did allow the lawsuit to proceed against the city of Seattle, although that effort was also doomed to fail.)

And that would have seemed to have been the end of it. Except it wasn’t. The cops appealed the decision, resulting in the Ninth Circuit Appeals Court overturning the lower court’s ruling in November 2021. The Appeals Court disagreed with the assertion quoted above, saying that just because the statements could be read to refer to the PD generally, it also could be read to refer specifically to the involved officers who filed the defamation lawsuit.

The panel disagreed with the district court’s conclusion that no reasonable person could conclude that Sawant’s remarks concerned the individual officers but rather spoke to broader issues of police accountability. The panel held that at most, the district court identified one reasonable interpretation of Sawant’s words, not the only reasonable interpretation. Where a communication is capable of two meanings, one defamatory and one not, it is for a jury, not a judge, to determine which meaning controls. Here, Sawant’s words reasonably carried with them the defamatory meaning Plaintiffs had assigned to them.

Back to the district court the case went. And the cops were allowed to file a third amended complaint, in hopes of making the allegations stick. The officers claimed Sawant’s statements were not only defamation under state law, but under federal law.

True to form, the cops were ignorant of the law. The court points out the error of their assertions in its latest decision [PDF], which once again hands a loss to the suing cops. (via Courthouse News Service)

The only claim at issue in Sawant’s Motion is Plaintiffs’ “federal defamation” claim, which the Court has previously explained can only be pursued under 42 U.S.C. § 1983. That is because there is no federal common law or federal statutory cause of action for defamation.

That leaves the officers with a Section 1983 claim, which means they’re alleging Sawant violated their rights “under the color of law” when she referred to their killing as a “murder.” But they did not bother to detail whether they were pursuing these claims against her in her personal or official capacity. The court makes that determination for the officers.

Here, there is no real contest that Sawant is sued in her personal capacity. Because Plaintiffs seek damages from Sawant, there exists a presumption she is sued in her personal capacity. Plaintiffs offer no rebuttal. And because Plaintiffs have not sued the City of Seattle, they would be unable to obtain damages from Sawant if she was sued in her official capacity. In their Opposition, Plaintiffs oddly argue that Sawant is sued “both as ‘an elected official’ and in her individual capacity.” But Sawant cannot be sued under Section 1983 in her “individual capacity” (outside of her role as a councilmember) because her actions would then not be taken under “color of state law.”

With this settled, the court goes back to the defamation allegations, as pursued here under Section 1983. But there’s nothing there for the officers, since the key part of a 1983 claim is a deprivation of rights via a government official’s actions. In this case, the alleged defamation must have led to a violation of the cops’ rights to create a cause of action. But nothing happened here, outside of some hurt feelings.

First, neither officer is alleged to have been disciplined or terminated from employment as a result of the Sawant’s remarks. Just the opposite, both were cleared through the inquest convened by the King County prosecutor, and through the reviews conducted by the OPA, FIT, FRB, and Seattle Police Department. And although Plaintiffs allege that “[t]he fairness of the inquest hearing was implicated by the defamation,” they affirmatively allege that they were cleared by an “impartial jury”. This undermines any claim that the alleged defamation was in connection with a termination or alteration in their employment rights.

The officers also tried a Hail Mary play in an attempt to salvage this lawsuit. But courts don’t care much for arguments raised at the last minute that are unsupported by litigants’ declarations. And even if the court were inclined to give these last-minute assertions credence, they still wouldn’t change anything.

In their opposition, Plaintiffs claim “they were forced to undergo a ‘reopening’ of sorts of the prior investigations into the shooting” and there was a “threat[] to their careers . . . if they did not cooperate fully.” These new allegations are not supported by any declaration and are not included in the Third Amended Complaint. They are therefore not properly considered on the Motion for Judgment on the Pleadings. But even if the Court considers these allegations, they fail to show the deprivation of a liberty or property interest. They merely confirm that Plaintiffs remained employed.

The statements made by Sawant also did not violate the officers’ First Amendment rights.

Plaintiffs here allege that Sawant’s comments have damaged their reputations, “turned [their lives] upside down,” caused their “families [to] suffer,” and Plaintiff Miller “had to move” and transfer his children out of the Seattle School District. But Plaintiffs fail to identify or explain how these alleged acts show an injury to the right of association. There are no allegations that Plaintiffs were unable “to enter into or maintain intimate human relationships.” And these allegations do not show that they were unable to speak, assemble, exercise their religion, or seek redress of grievances. The Court finds that Plaintiffs have failed to allege an injury to their First Amendment right of association.

Sawant’s comments also did not violate the “right to family integrity.”

Plaintiffs fail to allege how Sawant’s comments deprived them of their ability to have custody or control of their children or to choose how to educate their children. Plaintiffs allege they “watched their families suffer,” but there are no allegations that the family integrity was impacted. And although Plaintiff Miller alleges he had to move, he does not allege that Sawant’s remarks interfered with this right to choose how his children were educated. In full, the complaint states: “Detective Miller, whose children attended the Seattle School District, had to move.” He does not allege he changed their school or that Sawant’s remarks was a proximate cause of that change. Even if he had, they would not show a deprivation of the right to choose where his children were educated. These allegations, construed in the light most favorable to Plaintiffs fail to show the deprivation of a right to family integrity.

And one hopes the suing officers appreciate the irony of qualified immunity being awarded to the councilwoman. So, even if they had managed to credibly allege their rights had been violated, Sawant would still be able to exit the lawsuit. Since the officers are pursuing this as a Section 1983 suit, Sawant must be considered to have been acting in her official position. QI applies. If she was sued in her personal capacity, there’s no lawsuit.

The cops want it both ways. And the court won’t allow it.

Plaintiffs also suggest that qualified immunity cannot be granted because there is a dispute of fact as to whether Sawant’s “comments were part of her role as an elected official or not.” They argue that “Sawant has not even attempted to explain how her comments were part of her role as a City of Seattle Council member.” As the Court has explained, if Sawant did not act as a councilmember, then Plaintiffs have no claim under Section 1983. She can only be sued if she made the comments as a councilmember. As such, Plaintiffs identify a self-defeating dispute of fact.

The lawsuit is dismissed. Again. The court says the cops can take another swing at it if they choose to, granting them leave to amend (for the fourth time!) the claims that have already failed twice. The officers have painted themselves into a corner with every amended complaint. But given the fact that this is in its third year of litigation, it seems the officers are more than willing to pick up more paint.

Filed Under: 1st amendment, 9th circuit, defamation, free speech, kshama sawant, michael spaulding, police, scott miller, seattle, seattle pd