The Volokh Conspiracy
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Police Officers' Libel Lawsuit Against Seattle City Councilwoman Kshama Sawant Thrown Out
From Miller v. Sawant, decided Thursday by Ninth Circuit Judges William Fletcher, Carlos Bea, and John Owens:
In February 2016, Miller and Spaulding [two Seattle police officers] fatally shot Che Andre Taylor, a Black man, as they tried to arrest him. Miller and Spaulding's [defamation] complaint … against [Seattle City Council member Kshama] Sawant [was] based on her remarks, at public protests, that Taylor's shooting was a "blatant murder at the hands of the police," and that Taylor was "murdered by the police."
Summary judgment was proper because Miller and Spaulding did not establish essential elements of their defamation claim, namely: that Sawant's statements were actionable statements of fact (as opposed to nonactionable opinions); that Sawant's statements were false; and that Sawant acted with actual malice.
First, the district court did not err when it concluded that Miller and Spaulding failed to establish that Sawant's statements were actionable statements of fact…. Applying Washington caselaw, we conclude that Sawant's remarks were opinions, not statements of fact. She made them at politically charged public protests organized in the wake of police-involved shootings, i.e., "in circumstances and places that invited exaggeration and personal opinion." Sawant also framed her statements in terms of a larger political movement against "systematic racial injustice." Thus, the statements were made "[i]n the context of ongoing political debates" such that protestors who heard them "[were] prepared for mischaracterizations and exaggerations, and [were] likely to view such representations with an awareness of [Sawant's] subjective biases."
Lastly, Sawant's statements did not imply she knew more than the public about whether Taylor's shooting was justified. Indeed, at the time she made them, it was public knowledge that Miller and Spaulding shot Taylor, and dashboard-camera video footage of the shooting had already been released by the Seattle Police Department.
Second, the district court did not err when it concluded that Miller and Spaulding failed to establish that Sawant's statements were false. Miller and Spaulding aver that Sawant's statements at the protests were false because Miller and Spaulding were never charged with or convicted of murder. But Sawant did not state that Miller and Spaulding were charged with or convicted of murder. Instead, Sawant declared that she used the term "murder" in her statements "to convey that [she] believed the officers' actions were wrongful and should be considered criminal."
Nothing in the record can be construed as proving the falsity of Sawant's statements. This includes the fact that Miller and Spaulding were never charged with murder. A prosecutor's belief in a person's innocence is not the only reason the prosecutor may choose not to bring charges against the person. Thus, we cannot infer that Sawant's remarks were false based on the fact that Miller and Spaulding were not charged with murder.
Third, the district court did not err when it concluded that Miller and Spaulding failed to establish that Sawant acted with actual malice…. Miller and Spaulding do not contest the district court's determination that they are "indisputably" public figures. To survive summary judgment, then, Miller and Spaulding had to establish that Sawant made her statements "with knowledge that [they were] false or with reckless disregard of whether [they were] false or not."
The district court properly determined that Miller and Spaulding failed to do so. Miller and Spaulding argue Sawant acted with actual malice because she failed to investigate sufficiently before she made her statements. But Miller and Spaulding do not address Sawant's declaration that, prior to her statements, she reviewed "publicly available information about the facts and circumstances of Taylor's death" and had "conversations with community members" who called Taylor's killing a "murder." Moreover, although actual malice can be inferred from a failure "properly [to] investigate an allegation," this failure "in isolation [is] generally insufficient to establish actual malice."
Seems correct to me. The Ninth Circuit let the case proceed in 2021, but that decision dealt only with "the single element of their defamation claims at issue on this appeal—the of and concerning element" of libel law; as I noted then,
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).
The Ninth Circuit has concluded, among other things, that the statement should be understood as fitting within category 1.
