Police press release defamation

[Derelictnot]

What is the name of your state (only U.S. law)?Delaware

Local police put out a press release including several statements in the form of "X advised police..." about my home containing sex toys, kiddie porn, and other porno films, etc. The story failed to mention that no such items were found in my house - and they knew this when the press release went out. The story has since been scrubbed from their own web site (I have a copy), all sex charges were dropped and expunged - but in full disclosure, I did plead guilty to a gram of pot and a pipe - one of X's statements.
In answer to my complaint, the police say the release stands on it's own, that it is substantially true.
This, even though they fail to say such items were NOT found as were falsely alleged by "X" and stated several times in the release - when the police knew they were false.
Is it still Defamation, malicious prosecution, or defamation per se? All three?
I filed suit pro se also, and am not sure if I should ask Summary Judgment immediately, since they admit putting out the press release?
Thanks!

What is the name of your state (only U.S. law)?

 

[The Occultist]

Arrests are a matter of public record. The fact is, based on whatever information they received, they chose to search your home for those items. That is fact. You more or less said as much in your own post. Whether or not they found anything is largely irrelevant to, "we were told to look for this so we did."

For the kind of suit you are attempting to launch here, I can pretty much guarantee that you will not have any chance whatsoever without a lawyer (and a few thousand dollars to throw away, while we're at it). And, since you need that lawyer anyways, you might as well as him these question that you'd like us to answer.

 

[BOR]

I filed suit pro se also, and am not sure if I should ask Summary Judgment immediately, since they admit putting out the press release?
Thanks!

You filed a suit Pro Se, and want to know about SJ?

Not to be a smarty pants but I am confused, how did you even draft a suit without knowing the Rules of Civil Procedure? That in and of itself is a legal challenge!

Have they even filed a Reponse to the Complaint yet? You don't say, but I think you assume since it was admitted out of court, that would suffice to file a SJ Motion already?

 

[quincy]

You are suing the police over the publication of the press release on their website? If so, it should be the police seeking a summary judgment, asking the court to dismiss the suit you filed against them.

It does not sound as if you have much of a case for defamation (or malicious prosecution, for that matter), based on what you have posted here.

If X, in a report made to the police, advised the police that you possessed illegal items in your home, then X is protected from a defamation suit because reports to the police are covered by a qualified privilege, the privilege of which can only be lost if it can be shown that X filed the report knowing that what he was reporting was false, and X filed the report with the deliberate intent of causing you harm (actual malice). Trying to overcome a qualified privilege through the showing of actual malice is an extremely difficult thing to do and is rarely successful. And, seeing as how the police did find illegal items (pot and paraphernalia) in your possession, the report to the police had some merit.

The police are protected from a defamation suit because the press release that was published appears to have contained only a true accounting of X's report and what was being investigated by the police based on X's report. The release stated, accurately, that X told the police he suspected you had illegal items in your home and X listed those items he suspected you had in your possession. The police release was based on this report. The report itself was true (and truth is a defense to defamation).

While the police may have been careless in publishing a detailed report prior to the conclusion of their investigation, and while the police may have been careless in not indicating the outcome of their investigation into the report made by X, or the outcome of the charges filed against you, unless the police stated falsely on the website that you were found to have the illegal items, listed by X, in your possession, there is no defamation.

There may be embarrassment over the report, yes. But it would not be defamatory based on what you have posted here.

As for a malicious prosecution suit, you were prosecuted and you pled guilty, even if you pled guilty to a lesser charge. In order for a malicious prosecution suit to fly, you must have had ALL charges brought against you dismissed or you must have had a favorable ruling by the court, neither of which happened in your case.

I suggest that, if you wish to continue with your suit, you consult with an attorney in your area. It may save you time and money in the long run to have this consultation. The attorney can review all of the facts that led to your initial filing against the police and let you know, based on these facts, where exactly you stand.

Good luck.

 

[Derelictnot]

Lies of omission?

I filed as a pauper. I read the Rules of Civil Procedure and wrote my own complaint, yes. The Federal Judge denied my request for a lawyer, stating that I was obviously intelligent, there is no dispute involving the law or the facts of this case - but he would be happy to assign me an attorney if things got more complicated. They have, and I will be be re-filing the request for representation, worded a bit differently. All defendants have replied to my initial complaint - the Judge said he will not entertain any motions until they did. The former D.A.G. simply answered "denied" to all paragraphs, so I was planning to file a motion compelling substantive responses.

What I can not seem to understand is that the police can actively distribute a press release to several newspapers (and their own web site - until they scrubbed it of my press release but left all others) that consists of statements made by X - when they knew them to be not true at the time they did the release? Kiddie porn headlines and $110,000 bail are more than just a simple embarrassment. I lost my professional license pending resolution of the investigation. When the D.A.G.'s own state expert said it was not kiddie porn, he pulled the first indictment and brought a second indictment of 42 Felony counts of Obscenity against unknown persons at an unknown time and place, using unknown materials. The Judge demanded to know specifics and gave him two weeks to come up with it. A week later, the D.A.G. had a DUI in a state car with a BAC of 0.33 and was 'put on leave'. The State's Attorney took over and said for me to plead to any two misdemeanors charges I wanted, and they would not bring a third indictment. I was worn down and broke and I WAS guilty of the pot and pipe, and those are the charges I picked (which we had earlier filed a motion to sever them from the sex charges, so they would not be joined as a "case" - never ruled on until my expungement hearing - all sex related charges were dropped and expunged.)
I know it is perfectly legal for the police to lie to a suspect, but is it also legal for them to lie (by omission) to the newspapers? I would hope not...
Thank you for any followup thoughts, in advance.

 

[quincy]

I am still not seeing the lie, Derelictnot.

A person X reported to the police his suspicions that you had child pornography, other pornography, and sex toys. That report is what was published. The report itself was accurate in that it is what it is - a report by person X of his suspicions. It is still accurate.

The report by person X is what led the police to investigate you, and the investigation is what led to your arrest and the charges filed against you.

Although it is certainly possible that the press release with details of the police investigation and your arrest could have been distributed after the State had completed their investigation and reviewed the contents of your computer(s), computer checks take time and the press release was probably distributed after your arrest and published on the police website before all evidence was gathered and all facts were known. And the State felt at the time, apparently, that there was enough evidence to support the filing of charges against you.

It was probably when the State's attorney took over your case and reviewed the evidence that it was decided the State did not, in fact, have enough to support the felony charges, which is more than likely why the State's attorney agreed to drop the felony charges and instead "let you pick" which misdemeanors you wanted to plead guilty to. The State would not have dropped the charges, especially the child pornography charge, if the State believed they could make a winnable case against you.

And, with your guilty plea, the State nicely escaped a malicious prosecution suit and the State got an easy conviction on the drug charge.

If you had had an attorney at that time (and with serious felony charges filed against you, you should have had an attorney, and I am surprised you did not), the attorney probably would have advised against your pleading guilty to any charge. He would have reviewed the police procedures and he would have reviewed what evidence (if any) the state had against you, and he may have discovered how weak the State's case against you really was.

In their answer to your complaint, you said the police denied all parts. You also indicate they offered an affirmative defense to your complaint (substantial truth). Did any newspapers or did the television news stations in your area publish the contents of the police report before the resolution of your case? Or was the press release distributed to the media but only published on the police website?

As much as it is legal to lie to anyone, by the way (outside of sworn statements), it is legal to lie to newspapers. Newspapers generally will check all facts prior to publication, however, so that the lies they are told never make it to print. And generally newspapers will give only the barest of arrest details (if they publish arrests at all), preferring instead to wait for charges to be filed (except in cases of special interest to the public, where the media will often publish any and all information that is available).

But, again and bottom line, I am not seeing a lie, nor am I seeing a defamation suit that has much chance of success, despite the obvious reputational injury you have suffered. And your professional license, depending on what profession you are in, may have been in jeopardy even with just the misdemeanor drug conviction.

The best advice I can offer is that you see an attorney who can review all of the facts and details specific to the original police investigation, your arrest, the charges filed against you, the outcome, and the website posting with the police press release.

You may find some information that is helpful to you at the Delaware State Bar Association site provided below:

http://www.dsba.org/pro_bono.htm

 

[justalayman]

so, in an effort to explain why they raided your house and took everything, they responded with the justification that they were informed you had the various sex related material. Nothing wrong with that.
Presumably they obtained a search warrant based on something. I would have to guess that X's reporting was considered to be dependable enough to cause a judge to issue a warrant or was there some other basis for the warrant?

the fact that a warrant was obtained AND you were arrested (and given a $110k bond), that alone would tend to show there was something other than Mr X's statement of the possession of the sex related material for them to act on. They don't toss a $110k bond on people for possession of a pipe. Mr. X's claim would likely not be adequate to actually arrest you.

They do not have to later go back and publish "btw, we didn't find anything to substantiate the claims of the sex related materials."

 

[BOR]

You are suing the police over the publication of the press release on their website? If so, it would be the police seeking a summary judgment, asking the court to dismiss the suit you filed against them.

Either side can file a SJ Motion.

 

[BOR]

I filed as a pauper. I read the Rules of Civil Procedure and wrote my own complaint, yes. The Federal Judge denied my request for a lawyer, stating that I was obviously intelligent, there is no dispute involving the law or the facts of this case - but he would be happy to assign me an attorney if things got more complicated. They have, and I will be be re-filing the request for representation, worded a bit differently. All defendants have replied to my initial complaint - the Judge said he will not entertain any motions until they did. The former D.A.G. simply answered "denied" to all paragraphs, so I was planning to file a motion compelling substantive responses.

You say there is no dispute of the facts yet they DENIED all the paragraphs?

What is a Motion to compel substantive responses?? There is no such thing.


They DENIED all paragraphs, so there is not an agreement on the facts. If you are familiar with Rule 56 case law, you will find the court will only grant a SJ motion where one side has shown, basically without question, there is no genuine issue or material fact left to decide. They denied the paragraphs, so there are issues to decide by law.

 

[Derelictnot]

You say there is no dispute of the facts yet they DENIED all the paragraphs?

What is a Motion to compel substantive responses?? There is no such thing.


They DENIED all paragraphs, so there is not an agreement on the facts. If you are familiar with Rule 56 case law, you will find the court will only grant a SJ motion where one side has shown, basically without question, there is no genuine issue or material fact left to decide. They denied the paragraphs, so there are issues to decide by law.

See Rule 8b (1a). A one word answer would seem insufficient to comply. This was from the DAG, who even denied things said on the court transcript by him. The POLICE admit to the press release and say it is substantially true - EXCEPT that that they knew all the sex related charges were false when they disseminated the release. (*the LIE of omission). I will make my next motion to be asking for a lawyer again.

See also "Smith v. Danielczyk" Maryland Court of Appeals No. 133, September Term, 2006. July 25,2007 about lies. This case was found at the website Lawyers USA No. 9937045.

If I had no case, wouldn't the Judge have thrown it out as frivolous instead of letting the discovery continue?

Any final comments?

Thanks!

 

[BOR]

See Rule 8b (1a). A one word answer would seem insufficient to comply.

(b) Defenses; Admissions and Denials.
(1) In General.

In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted against it;

I don't see how this applies?

Now, rule 12 states this:

(e) Motion For a More Definite Statement.
A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.

I have heard of such, as I am familiar with rule 12 also, as I handled my own case in Federal court once.

Such rule 12 motion is only appropriate when, well, as it states, you have no idea what the pleading is, as it is written or structered so vague, etc.

If you filed such a Motion, the court would not compel the other side to be more legally precise, as they have plead more than properly, no doubt.

If I had no case, wouldn't the Judge have thrown it out as frivolous instead of letting the discovery continue?

Did they file a Motion to dimiss first under Rule 12 (b) (6), or did they file an Answer first? You have ONLY indicated they filed an Answer, nothing else.


If a motion to dismiss were filed, and you have not indicated so, but that was important for me to know, was it denied?

 

[Derelictnot]

Answers only

No motion to dismiss have been filed by anyone, yet.

I certainly hope false charges of kiddie porn are never filed against any of you following this thread. Your life will come to an end.

I WILL be asking for a lawyer again.

Thanks!

 

[BOR]

I certainly hope false charges of kiddie porn are never filed against any of you following this thread. Your life will come to an end.

You say this as if I am unsympathetic to you, not true.

You asked for legal opinions, as I am not a lawyer, I am still familiar somewhat with federal practice.

Silly question, but did you consult attorneys before hand?

Whether yes or no, you still need one IF at all possible, try the ACLU and see if they will accept it.

 

[quincy]

I think you are wise to consult with an attorney, Derelictnot, and, while I am not sure the ACLU will take up your cause, the site I provided above should lead you to some free or low-cost legal options. If the Court assigns an attorney to you, you will still be expected to pay for the attorney's services so I recommend that you try and locate an attorney of your own liking first.

Like BOR, I am not unsympathetic to your situation, but I fear you are fighting a losing battle here.

The Maryland case you cited was about whether police officers enjoy an absolute privilege or a qualified privilege when it comes to false and defamatory statements made on search warrant applications, and the Court found that the privilege was a qualified one that can be overcome with evidence of actual malice.

In other words, police officers can be sued for defamation (in Maryland, at any rate) for what is stated on an application for a warrant when what is stated is false and defamatory and there is a voluntary disclosure of these false and defamatory statements to the media. The police do not enjoy an absolute immunity from suit under these circumstances.

I do not see that there is a question of that here (although an attorney would want to review the warrant, in addition to all of the other facts surrounding the search that led to your arrest and to the charges filed against you).

The major problem I see that you face with your defamation suit is, not showing that the officers can be sued for defamation, but proving that what was published on the police website was false and, if determined by the Court to be false, that what was published was published with actual malice. Neither of those two elements, elements necessary for you to have a successful suit, seem to be present in your case - at least based on what you have posted here.

Truth and substantial truth are pretty solid defenses (and the report that was published, again from what you have posted here, appears to be true - and could have already been available to the public under Delaware's Open Records Act anyway). Showing actual malice (showing that the report disseminated to the media and published by the police was done with an "evil or rancorous motive influenced by hate" and for the express purpose of causing the publication of false statements) will definitely not be easy under the circumstances you describe.

By the way, BOR, I am aware that a motion for summary judgment can be filed by either party , but only one motion has a chance of being granted. The answer to Derelictnot's complaint showed an affirmative defense (substantial truth) and in the defendant's answer all parts of the complaint were denied. A motion for summary judgment filed by Derelictnot would be denied as there is an obvious dispute over the material facts. On the other hand, it is not unheard of for a "substantial truth" defense to result in summary judgment for the defendant, if the defendant can show the court that the statement published is substantially true (see Rouch v Enquirer and News of Battle Creek, 440 Mich 238, 1992, and Nichols v Moore, 396 F.Supp 2d 788, E.D. Mich 2005)(and, yes, I am aware these are Michigan cases, but I happened to have them close at hand).

As a note: I think that instead of filing additional motions at this point (which are likely to be denied and will only serve to delay the proceedings) you should be concentrating on supporting the facts of your case against the police - preferably with the help of an attorney well-versed in defamation law.

Edit to add: One thing I neglected to ask and was remiss in doing so, as it could play a role: Who, exactly, is X?

 

[Derelictnot]

Thanks...

To BOR and Quincy - I apologize if I came out sounding ungrateful, rude, or even if it sounded as if I was attacking the messenger. This has been hell for me - I live in a small town in a small state and that press release that failed to mention all the sexual allegations were not true has made me an outcast in the place I grew up and in which most of my family live. My life as I knew it is gone and I seem to have no option but to move elsewhere, perhaps washing dishes at a restaurant? I don't know.

It seems obvious now that there is NO chance of me prevailing. Yes, the Detective and the D.A.G. lied by omission, both trying to redeem their reputations. The police department had only been formed within 6 months of my case and this Detective had just spent four of those months going after a guy who hosted a card game with neighbors and such once a week. An undercover sent in, lurid headlines about his wife serving drinks topless, kids in the house seeing this, etc. All not true, except a game of cards. His "gambling ring" netted a $75 fine. At least that guy got headline retractions.

The D.A.G. had just been smacked by the state Supreme Court for telling a jury in another case "Of course he is guilty - we don't try innocent people in this state." Even the clerk at Superior Court made a joke about him, saying that everyone knew he was impaired for a long time.

Why pick on me? Because when they found a personal ad deep down on my printer output tray, it was a guy from the waist up, but clear that I was "one of those damn homosexuals" (Detective). Of course, it's not a protected category and they changed their demeanor immediately and set about creating a case where there was none - but a bit of pot and a pipe. Something one would find in about 30% of homes. After a night of questioning, I was taken home and told that X had changed his story so many times, they did not believe any of them. 2 months later, I was actually arrested - on the opinion of the Detective and DAG that my computer had kiddie porn on it. They both worked together on another police force in a different city in the past. After two motions to let us see the evidence, they brought in the expert who said it was not kiddie porn. Indictment dropped. This should have been the end of the case, but the DAG made up the Obscenity charges (which he could not explain in court) to "get me" in a second indictment. God bless my attorney (a former three term Attorney General).

The ACLU would not even talk to me, neither would any attorney in the four surrounding states, including this one, not even fee for service. Why? I believe it was b/c the AG here is the Vice-President's son. I will never know.

That is why I filed my own complaint. Yes, I made a serious mistake in letting X (a 14 y.o. male) stay two days to let his mom get better and so he would not be beating up his sister half his age. Here, the only other option would have been to have him arrested - and I was stupid to not want that. Fact is, our new mental health care system is the jails. I should have sent him there.

So, it seems it is time to give up. My life is gone (along with everything but my car) and I have no skills other than what I went to college for 10 years to become. Brought it all on myself. The police can lie and slant a story any which way they want with no consequences. I was ignorant of this fact. My fault again.

I do thank everyone who gave me thoughtful replies here. For the curious, here is the link to my precedent setting, unique case. There are some factual errors, but I have no way to correct them as far as I know. Thanks again!
Stephen

http://courts.delaware.gov/OPINIONS/(2u5zbv55ueysurytbraoaqvj)/download.aspx?ID=136220