Labeling People as "Robbers" When Police Said They "May Have Been Involved" in Robbery May Be Defamatory

From Anderson v. WBNS-TV, Inc., handed down last week by the Ohio Court of Appeals, in an opinion by Judge William Klatt joined by Judges Betsy Luper Schuster & Jennifer L. Brunner:

Jason A. Bolt, a detective with the Columbus Division of Police, prepared [and sent the media] a "Media Information" report regarding a robbery that had occurred at the Fort Rapids Indoor Waterpark on November 26, 2015. At the top of the report, Detective Bolt indicated that the individuals the police suspected of committing the robbery were "[u]nknown," and Detective Bolt did not supply any identifying information, such as sex, race, or age, regarding the suspects. In the narrative section of the report, Detective Bolt wrote:

The victims were walking in the parking lot of Fort Rapids [W]aterpark watching their eight[-]year[-]old daughter ride her "hoverboard." The suspects approached her on foot, put a gun to the eight year old[']s head and demanded her hoverboard. The suspects then ran to a white PT [C]ruiser and fled out of the parking lot.

Anyone that can help identify the persons in the attached photographs who may have been involved are asked to contact the Columbus Police Robbery Unit …. If they wish to remain anonymous[, they] can contact Central Ohio Crime Stoppers ….

Bolt attached … [a] black-and-white photograph[] to his report …, [which] shows three individuals—two men and one woman—entering a hotel hallway…. [T]he facial features of each individual are clearly visible….

Relying on the Media Information report, WBNS staff wrote news items for WBNS' regular "CrimeTracker 10" news feature. According to the scripts provided by WBNS, the following newscast aired on January 21, 2016, at 5:00 a.m.:

IN CRIMETRACKER 10

… [Notes:show suspect pic]

[C]olumbus Police hope you recognize these two men who robbed an 8-year-old girl at gunpoint!

It happened in the parking lot of Fort Rapids [I]ndoor [W]aterpark in [C]olumbus.[Notes:show parking lot photo]

Robbery detectives just-released surveillance images from the [N]ovember crime.

The girl was riding her hoverboard in the parking lot with her family when they say two men pointed a gun at her head, taking it.

[Notes:show suspect pic]

Columbus Police say suspects-- seen here-- took off in a P-T [C]ruiser.

[Similar material was aired later. -EV]

This is not a case where the police released a video or photograph of suspects committing a robbery and asked the public to identify the suspects depicted in the video or photograph. In such a case, the video or photograph itself evinces the suspects' participation in the robbery.

Here, the police provided WBNS a photograph of the individuals who "may have been involved" in the robbery that showed them merely walking in a hallway. Neither the Media Information report nor the hallway photograph established the individuals in the hallway photograph as "robbers." WBNS, nevertheless, displayed the hallway photograph while conveying the message that the individuals in the photograph—the Anderson siblings—had robbed an 8-year-old girl at gunpoint. Given that WBNS' reporting deviated from the information contained in the Media Information report, we conclude that a question of fact remains regarding whether WBNS acted reasonably to ensure the accuracy of its reporting….

WBNS does not directly contest this conclusion; instead, it asserts that it should prevail because the statements at issue are not defamatory….. WBNS essentially argues that, at most, its statements only identified the Andersons as suspects in the armed robbery of an eight-year-old girl, and no reasonable broadcaster could foresee the defamatory potential of naming someone a suspect in such a crime.

We do not agree. Robbing a child at gunpoint for the child's toy is reprehensible behavior. Consequently, publicly identifying individuals as suspects in such a crime conceivably invites public hatred, contempt, ridicule, shame, and disgrace as to those individuals. Thus, a question of fact remains regarding whether the harmful potential of WBNS' statements should have been apparent to a reasonable broadcaster.

Comments

[James Pollock]

If you have photos showing someone doing a robbery, how can it be defamatory to say that they are robbers?

[rsteinmetz]

I don't think it is, assuming the picture is unambiguous, but in this case they weren't actively engaged in a robbery.

[Dr. Ed 2]

Have they been convicted yet?
You gotta say "alleged" until they are...

[James Pollock]

Did someone say there were convicted?

[Gasman]

Generally it seems that the media sprinkles the word alleged quite liberally to avoid this sort of thing. Many times it is done mindlessly by the ,a href="http://newscript.com/allege.html">media writer/speaker, that it grammatically fails to state the accusation, but rather makes the crime alleged instead.

[Krayt]

"Just pepper 'alleged' everywhere, to avoid being sued."

I've seen alleged used tons of times on newscasts in situations that have nothing to do with possibly getting sued, or even the cover story, that it is alignment with the constitutional right to be innocent until proven guilty.

Alleged, as mentioned, about the crime itself, severed from any mention of anyone's name, or describing someone convicted and in jail, as if they could sue you. Isn't an accusation basically getting the target to say, "Oh, yeah? I'll see you in court!"

Which is done, convicted, jailed.

[Rossami]

Did you read the article? They don't have photos of anyone doing the robbery. They have pictures of some folks walking in a hallway that was near the reported robbery.

[James Pollock]

"Did you read the article? They don’t have photos of anyone doing the robbery. "

I read the part where they said "Robbery detectives just-released surveillance images from the [N]ovember crime."

Surveillance images from the crime would have pictures of somebody doing the robbery.

[Rossami]

That would be the TV station's misrepresentation of the police press report. Go re-read the paragraphs above that beginning "Anyone that can help..." and "Bolt attached..."

Or better, read the paragraph quoted from the opinion that begins "This is not a case where the police released a video or photograph of suspects committing a robbery ..." (emphasis added).

[Vandalia]

I don't believe you read the story.
There were no pictures of someone "doing a robbery."
The police released pictures of three people walking down a hotel hallway and the police release said they wanted to talk with them. They may have been involved, they may have just been witnesses. There may have been no connection with the crime.

The television station added the FALSE statement that they were the ones who did the robbery. There was no evidence in the police release to make that assumption, which turned out to be false.

[James Pollock]

"I don’t believe you read the story."

You are an idiot. What you believe matters because...

[I Callahan]

Because you decided to opine on a post here, and Vandalia decided to opine on your comment.

[James Pollock]

The fact that everybody has an opinion doesn't make all the expressions of those opinions useful or relevant. There's a fairly limited number of people who have beliefs that are relevant to any other person.

[WuzYoungOnceToo]

“I don’t believe you read the story.”

You are an idiot. What you believe matters because…

Says the idiot who clearly either did not read the story, is too stupid to understand the story and/or is...for some bizarre reason...intentionally misrepresenting the content of the story.

There were no photographs (or video) of the actual robbery.
There was a photo of "three individuals—two men and one woman—entering a hotel hallway"...which you would know if you had read the story.

[Life of Brian]

and/or is…for some bizarre reason…intentionally misrepresenting the content of the story.

It's clear by now that's JP's shtick. He routinely does it with comments as well.

[James Pollock]

"Says the idiot who clearly either did not read the story, is too stupid to understand the story and/or is…for some bizarre reason…intentionally misrepresenting the content of the story."

Why are you saying it?

[WuzYoungOnceToo]

Is your strategy to now convince us that your stupidity is excusable because you're really a 9 year-old?

[Eugene Volokh]

This seems to be the heart of the court's analysis:

Here, the police provided WBNS a photograph of the individuals who "may have been involved" in the robbery that showed them merely walking in a hallway. Neither the Media Information report nor the hallway photograph established the individuals in the hallway photograph as "robbers." WBNS, nevertheless, displayed the hallway photograph while conveying the message that the individuals in the photograph—the Anderson siblings—had robbed an 8-year-old girl at gunpoint.

What do you think about it?

[Soronel Haetir]

I would say a lot depends on context. Say that there was in fact video of the robbery but that it could not be used to identify anyone. Say further that there was an unbroken chain to a shot that provides a clear image - even if there is a significant separation from the act, or even if that clear image was from before the robbery. Under those conditions I would not think it matters that the posted image is not from the act itself. The further you get from that situation the more problematic it becomes.

[MatthewSlyfield]

What establishes that the clear image and the video depict the same people?

[James Pollock]

Either they do or they do not. If they do, then you can tell by looking at both. If they don't, you also have a pretty good chance of being able to tell this by looking at both.

[Absaroka]

I think I don't want to make it impractical for the media to publish photos or other information that may lead to solving a crime.

One of the classic ones is 'After the fatal hit-n-run police are asking for sightings of red pickup trucks with recent damage to the front left fender'. It surely sucks to be the gal with a red pickup who had someone back into her front left fender last week, but on the other hand it's nice to solve crimes.

FWIW, my sense is that the police don't broadcast these kinds of appeals to the public if they have other options, both because they can only go the media well so often, and because they get a zillion bogus tips they have to sort through.

[James Pollock]

"I think I don’t want to make it impractical for the media to publish photos or other information that may lead to solving a crime."

Assuming, of course, they're generating information that leads to actually solving actual crimes.
How many times do they report on cases where some dude in an unmarked white van didn't abduct any children?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The problem is not the pictures published to find them, but labeling them as pictures of the robbers, when that is not what the police said.

[Absaroka]

Ahh, got it, my bad.

[Dr. Ed 2]

" my sense is that the police don’t broadcast these kinds of appeals to the public if they have other options,"

They also get false confessions.

[James Pollock]

Not just false confessions, but also actual criminals facing prosecution who want to make a deal for leniency on their own crime if they rat somebody out, whether they know who did it or not.

[Vandalia]

That is a completely different factual scenario.

In this case the equivalent would be the station sending a photographer out to the mall parking lot, taking a picture of your red pickup truck with the license plate in view, and saying this vehicle was the one involved in the fatal hit-and-run.

[Milhouse]

Nobody objects to the station having published the photos. The plaintiffs objection is to their stating that the people in the photos were the robbers, when the police did not say that. All they had to do was report what the police actually said: the robbery happened, and these people may have been involved in some unspecified way. If some comprehension-challenged viewers jumped to the conclusion that these were the robbers, that would not be the station's fault. But here the station jumped to that conclusion, and reported its invalid conclusion as fact. That's defamation.

Cf Richard Jewell.

[James Pollock]

"What do you think about it?"

"Robbery detectives just-released surveillance images from the [N]ovember crime."

Showing the faces of surveillance images of the crime is what I'm referring to above.

[Rossami]

Again, you are quoting from the TV station's mischaracterization of what happened - the very mischaracterization that is the basis for this lawsuit. You should instead be reading the police press release that the TV station allegedly based their report upon.

[WuzYoungOnceToo]

“What do you think about it?”

“Robbery detectives just-released surveillance images from the [N]ovember crime.”

Showing the faces of surveillance images of the crime is what I’m referring to above.

And you have the temerity to refer to others as "idiot".

[James Pollock]

Just the idiots. You're not the only one.

[WuzYoungOnceToo]

James finds himself at the bottom of a hole of his own creation, drops his shovel and calls for a drilling rig.

[Dr. Ed 2]

The question here is what if they were later convicted of the crime?

Clearly the TV station was reckless, but what if it later came out that they were right?

[James Pollock]

To win a defamation suit, one of the elements that has to be proven is that what the defendant said was false. the defendant doesn't have to prove that it was true, but if they can they win. The plaintiff has to prove that something false was published, and resulted in damages (in some cases, damages are presumed but that's only a subset of defamation claims.
Proving it was published is the easy part of this case. the other elements will be harder to prove.

[Vandalia]

For defamation the statement has to be false.
If it has reached this point, then it has been shown that the statement that they were the robbers was false.

[DaivdBehar]

This mistake warrants a retraction and an apology. Unless, the plaintiffs can prove substantive damage, they should get nothing.

The lawyer wants to enrich itself with nitpicking gotchas.

[Malvolio]

An accusation of a felony is defamation per se. You don’t have to prove consequential damages.

[DaivdBehar]

I hate to be nitpicky, but did you use the phrase, per se? That is in Latin. Only the Catholic Church uses Latin. Any legal utterance using Latin violates the Establishment Clause. It is void. Try the word, automatic, instead.

[James Pollock]

Defamation per se is a term used in English and American law, you twit.

[MatthewSlyfield]

Please stop insulting....twits. Thank you.

[BrotherMovesOn]

Please go away.

[DaivdBehar]

No, you lawyers need to be stopped to save our country. Round up the 25000 traitors in your hierarchy, arrest them, try them for an hour, with their legal utterances as the sole evidence, then give them 10 years federal prison sentences for insurrection against the constitution. These sentences should be at hard labor. Do that every 20 years. To deter.

[Cal Cetín]

"a question of fact remains regarding whether the harmful potential of WBNS' statements should have been apparent to a reasonable broadcaster"

Hmmm, that's a tough one...

[WuzYoungOnceToo]

"a reasonable broadcaster"

The hypothetical actions of mythical beasts seems like a poor basis for legal analysis.

[Rev. Arthur L. Kirkland]

Clingers clog Congress
with partisan delusion;
Volokh give us . . . this

[I Callahan]

Hey, if you want to whine about Congress, go to a blog post that addresses that. Or you could just stop whining.

[DaivdBehar]

Cheaters fill Congress
With rent seeking stealing.
Artie give us your absence.

[hardreaders]

I don’t have any problem with the substantive outcome in this case.

That part aside, it seems like the underlying incident (i.e. the armed robbery, not the defamation) was just one small entry in this property’s troubled history. See the news article linked below. In fact, the resort was shut down just over a month later, so maybe the robbery contributed to that.

https://www.dispatch.com/article/20160222/LIFESTYLE/302229780

Apparently as of last Sept. a developer was attempting to purchase it with plans to “convert the hotel into affordable workforce housing with a coworking space and on-site childcare.” Definitely seems wiser than trying to revive the waterpark concept.