Free Speech

Police Officers' Libel Lawsuit Against Seattle City Councilwoman Kshama Sawant Can Go Forward

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From Judge Wallace Tashima's opinion (joined by Judges Milan Smith and Jacqueline Nguyen) in Miller v. Sawant, decided today by the Ninth Circuit (correctly, I think):

Plaintiffs Scott Miller and Michael Spaulding … are Seattle police officers who claim they were defamed by Defendant Kshama Sawant, a member of the Seattle City Council, through comments Sawant made about a deadly police shooting in which Plaintiffs were involved. The district court dismissed Plaintiffs' defamation claims on the ground that their third amended complaint … failed adequately to allege that Sawant's remarks were "of and concerning" them. We reverse.

Under the governing federal pleading standard, Plaintiffs plausibly have alleged that Sawant's communications were of and concerning them. First, Sawant's own words suggest that her remarks were directed not only at the police generally, but also at the individual officers involved in the shooting. She told the crowd that the shooting constituted "a blatant murder at the hands of the police," and she called for the Seattle Police Department to be held accountable "for their … individual actions."

Second, the complaint plausibly alleges that some of those who read or heard Sawant's remarks—Plaintiffs' families, friends, and colleagues, as well as members of the general public—knew that Plaintiffs were the officers involved in the shooting. Third, the complaint plausibly alleges that these readers and listeners understood that Sawant's remarks were directed at Plaintiffs. These allegations are sufficient.

In concluding otherwise, the district court reasoned that "[t]he statements Councilmember Sawant made do not target or single out Plaintiffs or any specific officers, but rather speak to broader issues of police accountability." At most, however, the district court has 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….

The facts:

In February 2016, Plaintiffs shot and killed Che Taylor, a Black man, while attempting to make an arrest. {Plaintiffs assert that the shooting was lawful. The complaint alleges that the Seattle Police Department, the City's Force Investigation Team, the City's Firearms Review Board, and an inquest convened by the King County prosecutor all cleared Plaintiffs of punishable wrongdoing.}

A few days after the shooting, Sawant told a crowd in front of the Seattle Police Department: "The brutal murder of Che Taylor, just a blatant murder at the hands of the police, show[s] how urgently we need to keep building our movement for basic human rights for black people and brown people." She called for the Police Department to be held "accountable for their reprehensible actions, individual actions. We need justice on the individual actions and we need to turn the tide on the systematic police brutality and racial profiling."

In June 2017, following the fatal police shooting of Charleena Lyles, another person of color, Sawant repeated her allegation that "Che Taylor was murdered by the police." … Although Sawant had not identified Plaintiffs by name in her remarks, the complaint alleges that Plaintiffs' families, friends, and colleagues, as well as members of the general public, all knew that they were the officers who shot Taylor….

And some more details from the court's analysis:

[A]lthough Sawant's remarks appear aimed, at least in part, at the police generally, some of her language suggests that her words refer specifically to the officers who shot Taylor. Sawant asserted that Taylor's death was "a blatant murder at the hands of the police," and she called for the police to be held "accountable for their reprehensible actions, their individual actions. We need justice on the individual actions …." This language suggests that Sawant was singling out Plaintiffs—characterizing them as murderers and calling for them to be held individually accountable.

In addition, apart from Sawant's own words, the [Complaint] alleges that persons who heard or saw Sawant's remarks understood that they referred to Plaintiffs…. These allegations are neither conclusory nor implausible. Hence, they are entitled to a presumption of truth at this stage of the proceedings….

It may be, as the district court surmised, that some listeners or readers would understand Sawant's remarks as communicating solely criticism of the police generally. But that is only one reasonable meaning of the remarks, not the only such meaning….

We reject Sawant's argument that this case is controlled by New York Times Co. v. Sullivan (1964). In Sullivan, the plaintiff argued that an advertisement was "of and concerning" him because it criticized certain acts of the police department, which he oversaw in his capacity as a city commissioner. The Supreme Court held that there was insufficient evidence to show that the advertisement was of and concerning the plaintiff.  This conclusion turned on the fact that the plaintiff had no "personal involvement in the acts in question."  The plaintiff's theory instead relied on "the bare fact that he was in overall charge of the Police Department." …

Sullivan's reasoning is inapplicable here. First, Plaintiffs were personally involved in the acts in question—the Taylor shooting. As the California Court of Appeal has observed, "an entirely different picture would have been presented [in Sullivan] had the plaintiffs been police officers who were personally involved in the incidents referred to." Second, this case does not involve an "impersonal attack on government operations," and Plaintiffs do not administer the Seattle Police Department. The libel-on-government concerns underlying Sullivan, therefore, are absent here….

Sawant also raises a policy argument: "If police officers could transform their political critics into defamation defendants by relying on the conclusions of 'friends, families and colleagues' to satisfy the 'of and concerning' requirement," she contends, "then police could weaponize litigation to silence their critics." The law, however, makes clear that defamation claims may be based on how a communication is understood by individuals who know the plaintiffs….

Sawant, moreover, mischaracterizes Plaintiffs' allegations. Plaintiffs do not rely solely on the conclusions of the family, friends, and colleagues to satisfy the of-and-concerning requirement. There are two sets of allegations in the complaint that support the conclusion that Sawant's statements can reasonably be understood to refer to Plaintiffs: Sawant's words themselves, and the conclusions drawn by Plaintiffs' family, friends, and colleagues. If Plaintiffs had relied solely on the allegation that a friend or family member understood a communication to refer to Plaintiffs, this might be a different case. As the Restatement points out, a communication is of and concerning the plaintiff when recipients reasonably understand that it was intended to refer to the plaintiff. Restatement (Second) of Torts § 564 (1977). "It is not necessary that everyone recognize the [plaintiff] as the person intended," but "the fact that only one person believes that the plaintiff was referred to is an important factor in determining the reasonableness of his belief." Id. cmt. b. Here, Plaintiffs' allegations regarding family, friends, and colleagues are consistent with Sawant's words themselves. Their allegation that the communications were of and concerning them, therefore, clears the plausibility threshold.

We emphasize, moreover, that, at this stage of the case, it is not our function to decide whether Sawant is liable for defaming Plaintiffs. We hold only that Plaintiffs have plausibly pleaded the single element of their defamation claims at issue on this appeal—the of and concerning element….

The court doesn't deal with the separate question whether the label "murder" (1) should be seen as an opinion based on disclosed or widely known facts, much as saying "O.J. Simpson is a murderer" would be generally seen as opinion (opinions aren't actionable libel), or (2) should be seen as a claim that the Councilwoman knew some other undisclosed facts that show the police officers engaged in deliberate non-self-defense killing (such implicit factual assertions may be actionable libel, if they are factually false and said with the requisite mental state).