Does Officer Jonathan Mattingly Have A Defamation Case In The Coverage Of The Breonna Taylor Case?

Louisville Metro Police Sgt. Jonathan Mattingly is reportedly moving forward with defamation actions against those who have called him a “murderer” for his role in the Breonna Taylor case. His attorney Todd McMurtry has been unclear on who would be sued for the commonly used label following the shooting of Taylor and her boyfriend Kenneth Walker.  A defamation is possible but it would be highly challenging under controlling case law and this specific context.

We have been discussing the increasingly common use of defamation lawsuits as a way of amplifying positions or correcting public accounts as in the recent dubious lawsuit by Alan Dershowitz against CNN.  When criminal cases become the subject of widespread protests or commentary, courts are placed in an uncomfortable position between deterring defamatory statements and curtailing free speech.

This is obvious a case at the apex of public debate and controversy.  Mattingly was one of the officers who served a no-knock warrant on the residence on March 13. The Grand Jury found that the officers did knock and announce themselves before entering, but Taylor’s boyfriend, Kenneth Walker fired his gun at them, hitting Mattingly in the leg. The officers fired at least 30 shots, shooting Taylor, an emergency medical technician, six times and killing her.

As a legal matter, the Grand Jury found no basis for a murder charge and only charged former LMPD officer Brett Hankison with three counts of wanton endangerment for shooting his gun into a neighbor’s home where a family was sleeping.

On its face, being called a murder is not just defamatory (if untrue) but defamatory per se.  Kentucky follows the standard common law rules on libel and slander. E.W. Scripps Co. v. Cholmondelay, 569 S.W.2d 700 (Ky.App. 1978). Mattingly must show that an alleged defamatory statement (1) was spoken to someone other than the person defamed; (2) is false; (3) is unprivileged; and (4) tends to harm the defamed person’s reputation so as to lower him in the estimation of the community or deter third persons from associating or dealing with him.

While damages are presumed in libel (written defamation), they are only presumed in slander (or spoken defamation) in cases of slander per se. Those per se categories include (1) “imputation of certain crimes” to the plaintiff; (2) “imputation . . . of a loathsome disease” to the plaintiff; (3) “imputation . . . of unchastity to a woman;” or (4) defamation “affecting the plaintiff in his business, trade, profession, or office.” CMI, Inc. v. Intoximeters, Inc., 918 F. Supp. 1068 (W.D. Ky. 1995). Notably, the federal district court in Kentucky held that “to constitute defamation per se, the alleged defamatory speech ‘must tend to expose the plaintiff to public hatred, ridicule, contempt or disgrace, or to induce an evil opinion of him in the minds of right-thinking people and to deprive him of their friendship, intercourse and society. But it is not necessary that the words imply a crime or impute a violation of laws, or involve moral turpitude or immoral conduct.'” Harrod v. Phillip Morris (quoting CMI at 1083 (quoting Sweeney & Co. v. Brown, 60 S.W.2d 381 (Ky. Ct. App. 1933)).

In many states, the line between libel and slander is being erased and per se categories are often used with reference to different forms of defamation in general.  Moreover, broadcasts are treated in most states as libel not slander.

In this case, Mattingly is being called a murderer and that would be defamatory per se, absent “truth as a defense.”

The court, however, would still have to decide whether Mattingly is a public official or public figure. The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. Ironically, this is precisely the environment in which the opinion was written and he is precisely the type of plaintiff that the opinion was meant to deter. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, West must show either actual knowledge of its falsity or a reckless disregard of the truth. The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” by articulating that standard that now applies to both public officials and public figures.

He could argue that mere government employment does not make him a public official to apply the actual malice standard to his case.  The Supreme Court has held that the term “ ‘public official’ cannot ‘be thought to include all public employees,’ ” id. (quoting Hutchinson v. Proxmire, 443 U.S. 111, 119 n. 8,(1979)). Of course, the Sullivan in New York Times v. Sullivan was Montgomery police commissioner L. B. Sullivan. However, he was not a simple officer.  This interesting issue was put before the Supreme Court a few years ago in Armstrong v. Thompson but the Court denied cert. However, without addressing the issue, the Court assumed that an officer was a public official in St. Amant v. Thompson, 390 U.S. 727 (1968).  Roche v. Egan, 433 A.2d 757, 762 (Me.1981)(“[l]aw enforcement is a uniquely governmental affair,” an officer “of law enforcement, from ordinary patrolman to Chief of Police, is a ‘public official’ within the meaning of federal constitutional law.”).

In this case, however, there is an argument that the public statements issued on behalf of Officer Mattingly would make him a public figure under  Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) and its progeny of cases.  The Supreme Court has held that public figure status applies when  someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).

That still leaves us with the question of what is permitted commentary, including opinion, in a major matter of public debate. The Supreme Court dealt with such an overheated council meeting in Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6 (1970), in which a newspaper was sued for using the word “blackmail” in connection to a real estate developer who was negotiating with the Greenbelt City Council to obtain zoning variances. The Court applied the actual malice standard and noted:

It is simply impossible to believe that a reader who reached the word “blackmail” in either article would not have understood exactly what was meant: It was Bresler’s public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler’s negotiating position extremely unreasonable.

Of course, calling someone repeatedly a murderer is more than simply “rhetorical hyperbole.” However, it is also part of a public debate that is heavily laden with protected political speech.

Any news organization calling Mattingly a “murderer” as a statement of fact would be risking a defamation action.  Context is everything. This is a highly charged environment where terms like “murder” are often used in the context of protests over systemic racism and police abuse.  However, it is also being used in the specific context of a criminal charge.  Many believe that this did meet the standard of murder and that is a protected opinion of the underlying criminal code and facts in this case. A court, like this Grand Jury, may disagree, but it is an opinion on a matter of intense public debate.

It is hard to see an actionable case in this context, though again news account stating that this was murder as a fact could raise a cognizable claim.  I am however skeptical in finding a case that was not heavily laden with opinion on the elements of crime or the proper interpretation of this case.

278 thoughts on “Does Officer Jonathan Mattingly Have A Defamation Case In The Coverage Of The Breonna Taylor Case?”

  1. “20 Hours of Audio From Breonna Taylor Grand Jury Are Set to Be Made Public”

    “The rare release of audio from grand jury proceedings is expected to happen on Friday morning and may shed light on the jurors’ decision to indict one of three officers who fired their weapons.

    https://www.nytimes.com/2020/10/02/us/breonna-taylor-grand-jury-audio-recording.html

    LOUISVILLE, Ky. — A dozen grand jurors pored over evidence for two and a half days last week as they examined the killing of Breonna Taylor, an inquiry that would usually remain secret forever.

    But an audio recording of more than 20 hours of those proceedings is expected to be made public by noon on Friday, an extraordinarily unusual move that could shed light on what evidence the jurors considered. The grand jury ultimately chose to indict one former detective with endangering Ms. Taylor’s neighbors and declined to bring charges against either of the Louisville police officers who shot her during a raid on her apartment in March.

    The recording will be a rare window into grand jury proceedings, in which jurors can review evidence, call witnesses and determine which charges to pursue, although they do not always exercise those rights.

    The expected release of the recording comes after one of the grand jurors filed a court motion this week that asked for the proceedings to be made public and accused Kentucky’s attorney general, Daniel Cameron, of using the jurors “as a shield to deflect accountability and responsibility,” even as Mr. Cameron has insisted that jurors were given “all of the evidence.”

    — New York Times

    1. Isn’t Anonymous the one that told us friendly fire caused the police officer’s bullet wound?

      The craziness that comes from Anonymous is non-stop. She requires better critical thinking skills. Her craziness and attacks are based on ideology rather than critical thinking skills.

      Anything is possible. The trick is to pull out the most likely but those things are distributed all over. The left’s MSM takes advantage of people like Anonymous because they forget all the errors made remembering only those things that advance their personal desires.

      1. The craziness that comes from Allan is non-stop. He requires better critical thinking skills. His craziness and attacks are based on ideology rather than critical thinking skills.

        1. Another vacuous attack by Anonymous the Stupid. His problem is that I post substance and he is Stupid.

          Stupidity is trying to hide himself in Stupidity.

  2. Jonathan: There’s more on the Leonna Taylor case. A grand juror in the case has stepped forward and has asked that the transcript of the grand jury proceedings be released because he/she claims AG Cameron “misrepresented the deliberations” The juror says that Cameron “failed to offer the panel the option of indicting the two officers [Mattingly and Det. Cosgrove] who fatally shot the young woman”. At his news conference Cameron blamed the grand jury for not indicting the two officers. It is often said that before a grand jury a prosecutor can “indict a ham sandwich” because he/she controls what evidence to present. This raises the issue of whether there was such evidence to indict the two officers. Cameron says there was only one witness who said the police made an announcement before breaking into Taylor’s apartment. In the Taylor family’s lawsuit against the city they claimed there were over a dozen witnesses who said the police made no announcement. If the Taylor family had no claim why did the city settle the case for $12 million? Cameron also claimed the bullet that struck officer Mattingly came from Walker’s gun (Taylor’s boyfriend). But the ballistic report couldn’t confirm this claim.

    Perhaps when the grand jury transcript is released, although Cameron is now backtracking on his promise, we will find out exactly what evidence was presented to the panel. But I think it is inaccurate for you to say the “Grand jury found no basis for a murder charge” They were not even given the option because the evidence presented was apparently skewed to favor no indictment. And there is no ballistic evidence to show, as you say, that “Kenneth Walker fired his gun…hitting Mattingly in the leg”. .

    As is the case in many of your posts you jump to conclusions not warranted by the facts. When all the facts come and truth is a defense Mattingly may have more to worry about then being called “murderer” by some in Louisville.

    1. Today one is a white supremacist if they refuse to say black lives matter. They could be beaten up or have their business destroyed if they say all lives matter.

      As is typical anonymous feels the need to create tribal war. There isn’t much else in that empty cranium she displays on a daily basis.

      1. Trump wouldn’t condemn white supremacy, Allan.
        Deal with it.
        Trump is a racist.
        You want that racist, Trump, in power.
        Instead you try to change the topic to BLM.
        He wasn’t asked about BLM.
        He was asked to condemn white supremacists, and
        he
        wouldn’t.

        1. The Brainless Wonder said: “Trump wouldn’t condemn white supremacy”

          A crowd of leftists black and white surround a man protecting his business telling him what to say… ‘black lives matter’. He refuses though he is ok with the idea that all lives matter. What type of man is he to silly leftist racists? He is called a white supremacist. That another of his businesses was burned down doesn’t count to this silly anonymous who probably never earned enough money to be invested in anything.

          No. No one should take the bait. Leftists have made words like white supremacists and racists into anyone that doesn’t say and do what they say. They are fascists using race to disguise their ugly beings.

          All lives matter and if you look at my concerns discussed with Prairie you will see that my concern for minorities is great and I am a supporter of educating black youth in the inner cities using Charter Schools. They took failing students and sent many to college. You probably hate such schools because you are a leftist and therefore want to close them down and keep blacks on the plantation. That is a leftist idea and it is racist.

          Trump isn’t a racist. You are are a race baiter and play the race card to the disadvantage of the black community. That is despicable.

          1. And there you go, trying to shift the discussion to something other than what Trump said in the debate. He refused to condemn white supremacists. He is a racist, but you can’t admit it.

            1. Word. And he was offered several chances to condemn the Proud Boys specifically. He refused and said stay tuned. Allan’s deflection is incoherent, flagrantly escapist. It proves he lives in the rat latrine.

            2. Anonymous, the question is not whether one is a white supremacist or not. The question is what is a white supremacist? The left defines a white supremacist as anyone they don’t agree with that they wish to call a white supremacist. Of course I don’t like the idea of racism but even white supremacists as long as they are not violent or using force on others are accepted under the Constitution.

              Of course we have black supremacists that you think are are saintly. Farrakhan is a black supremacist for real along with being an anti-semite and whole bunch of other bad things. One doesn’t see the left saying very much about him. Nor does the left stop racist Antifa from rioting and burning cities.

              A non violent person, racist or not, has a right to their lives, but you can’t admit it. You on the other hand join with violent racists and are blind to that fact. Biden has a racist history and you are blind to that fact as well. He never put that racism away and it pops up at the wrong times. ‘If one doesn’t support Biden they are racists’.

                1. Ignorance seems to be your Hallmark. The SPLC is racist and is its own political machine that calls everyone racists that do not agree with them. They are manipulators and quite successful. They manipulated you.

                  Trump is not a racist.

                  We have laws. Violence of the type Antifa commits daily is illegal and not arresting them or permitting them to take over a city is Stupid. That is what you agree with.

                  We heard the question on white supremacy. Did we hear the question about black supremacy? ie Farrakhan and BLM. Violently forcing another to say black lives matter is what we should be talking about. That is against the law.

                  When white supremacists or anyone else is violent they should be arrested which is essentially what Trump said but Biden refused to say.

                  How many cities have been burned and looted by the Proud Boys? Tell us. We are waiting hear. My understanding is that some were prosecuted for being violent and ended up in jail. That is where they belong if and when they violate the law.

                  One doesn’t persecute non violent people because of their beliefs, though it appears you do.

                  You mention nothing about black supremacy. Therefore you are a racist.

                  1. You can look up for yourself how many Proud Boys have been arrested for violence. If you’re too lazy to do it, that’s on you.

                    Trump refused to condemn white supremacists. He condemns all sorts of peaceful people he doesn’t agree with, but he won’t condemn white supremacists. He’s a racist, and you can’t admit it.

                    1. You must not know me “anonymous” nor have read me much. I would not care if he met some people’s definition of racist because that definition is so wide now it has been stretched like an old rubber band which has no spring left inside of it. Surely I have been called a racist at least ten times in this comments area.

                      Moreover your reply is nonresponsive. If you say they have been arrested, so what? The question is proof the claim they are racist. I have not seen it. If you can’t supply the proof then you have answered it yourself. The answer is they are not and it is merely a slander

                      Now I just took a quick look at the rag publication of the fake public interest law outfit formerly run by Dees & left hand man Cohen, and they say “proud boys” are “western chauvinist” and “anti muslim’

                      being pro western is not being racist in my book. eastern people can be racist too. ergo they are not the same.
                      I also do not consider being “pro west” as bad.

                      secondly islam is a religion, perhaps there is an element then of religious bigotry, at best, which is also not the same as racism.
                      I have some criticisms of radical islam in politics, and I do not consider it the best religion either. So I am not sure that is all bad either.

                      bottom line, the word racist is tossed about recklessly and without proof against them, and when i invited the proof none was given

                    2. The violence the Proud Boys have been involved with is relatively small. But you are too ignorant to recognize that and you don’t recognize that Antifa has been burning and looting in major cities across the country. That demonstrates Stupidity of leadership and mind.

                      You keep repeating the same thing. You are the racist not Trump. Trump condemns violence. Non violent people that hold beliefs we might find repelling have Constitutional rights, but you don’t know much about the Constitution. That is why you sound so silly. On the other hand Antifa has been breaking the law in many different places causing death while looting and burning neighborhoods down. That is something you support. Why? Biden has been very weak on the subject because democrats as a whole have decided to lead using Antifa as one of their supporters.

                  2. You’re in denial, Allan. Trump refused to condemn white supremacists. He condemns all sorts of peaceful people he doesn’t agree with, but he won’t condemn white supremacists. He’s a racist, and you can’t admit it.

                    1. You need to listen or read the transcripts. It is not his position to condemn peaceful people because of their beliefs though you do that all the time because your ego is uncontrolled. One doesn’t condemn people as President unless they are violent. Joe Biden didn’t condemn the looting and the rioting that took place. He condemned violence as if the Antifa looting and rioting wasn’t violence.

                2. Anon, Are you aware that the LEADER of the Proud Boys at the Charlottesville march with torches NOW supports Joe Biden and has for awhile. YEP HE DOES. Why not the President? Because the President denounces them and all the White Supremacists all the time. Go look up the video of President Trump saying that over and over since 2015 to now and some even older. Lying helps no one and Biden is willing to lie and has over the last almost 5 decades. I know because I’ve followed him for 40 yrs. Until this election, Biden was a joke when he ran for President because he would plagiarize whole speeches some of living people. He plagiarized even comments when he would be on TV. He would lie so blatantly when he would run that people just started saying, “poor Biden he is a joke” about him. Go look up how many times he ran for President. This is the man you want to vote for. He is the one that had an actual KKK Wizard as a longtime friend, He is the one that he didn’t want his kids going to school in a jungle if black people were integrated, He was the one that FOUGHT the Civil Rights Act and the Republicans pushed it through. #FACTS

                  1. No, the leader of the Unite the Right rally was Gavin McInnes, and he supports Trump. You’re probably confused. Richard Spencer, another white supremacist, did endorse Biden. Biden disavowed the endorsement. Just like David Duke, who’s also a white supremacist, endorsed Trump, and Trump disavowed that endorsement.

                    I don’t want to vote for Biden. He’s simply the lesser of two evils compared to Trump.

                    1. Gosh, all the lies coming from the Obama Biden Administration with Biden taking part in trying to get rid of Flynn. Hillary responsible for the Steele Dossier likely with the Russian Spy who has been investigated (more to come) and Democrats providing phony hoaxes that never occurred involving Russia and Ukraine. That is what our deep state democrat government was doing while trying to remove a sitting President.

                      During that period of time the President creating one of the best economies ever, the lowest unemployment for blacks and hispanics, successfully reduced illegal entry into the country, kept the US out of new wars and has tried against democrat opposition to bring the troops home. He created a peace deal with Arab nations with more to follow and an agreement between Bosnia and Croatia. America is now energy independent and militarily more powerful than before but not being used for new silly wars.

                      “Biden. He’s simply the lesser of two evils compared to Trump.”

                      Biden is the lesser of two evils, but he will pack the court, stop us from being energy independent, and ruin an economy. We will all be paying for the new green deal that will bankrupt America without doing much of anything. America has been follow reduction of a carbon foot print better than most.

                      47 years of Biden where he did very little, you can list his great successes. His actions in the Senate that were racist. His use of the N word in the Senate etc. HE has performed for the nation but he has enriched the Biden family through corruption.

                      Lesser of two evils. Come on, man you got to be kidding.

                      (Of course you could list the comparison of 47 years of Biden and 4 months of Trump)

        2. I want Trump in power. Call me whatever names you want. We’re way past name calling. Sticks and stones are already in play.

          But, we can have a vote, and settle it fairly that way.

          In the meantime, see if you can peel all these voter-intimidationg terrorists like BLM off the streets and cancel their riots looting and arson before you worry too much about Trump approving your talking points or not. Trump is not the problem where 100+ days of anarchy across major cities are concerned
          and yes neither are a handful of socalled right wingers. Trump was exactly right in that particular response.

          At this point people who toss out the insult racist are almost always on the wrong side of law and order. I guess that’s the whole point of this big lie called “systemic racism”
          when you claim that our system of individual rights and law and order is per se “racist’ and therefore illegitimate, it’s an easy hop to revolution, yes?

          and the very point of the BLM leader, Hawk Newsome, who said, “if we can’t get our way then we gonna burn it all down”

          see anonymous you are on the side of that blm guy. he wants to burn it all down. that will mean, you too, if he gets the chance

          I have no problem hating perpetrators of terroristic intimidation like that guy. Hawk Newsome was his name. He wants to burn my house down? Burn my country down? Hate is what he deserves. I hate anarchy and I hate those who advance it. I have no problem hating anarchy. You might as well be hating Satan if you hate anarchy. Big deal! Sure I hate the devil.

          https://nypost.com/2020/06/25/blm-leader-if-change-doesnt-happen-we-will-burn-down-this-system/

          Why dont you and Joe Biden denounce Hawk Newsome? Heck Hawk would burn Joe Biden’s house down if he had the chance. You guys are nuts for backing creeps like that.

          1. I condemn Hawk Newsome for his threat to burn down the system, Mr. Kurtz.

            So instead of inventing that I back him, next time ask a question first and wait for an answer.

            You can find people on both sides making threats and acting violently. Proud Boy Rob Cantrell threatened to burn down a left-wing bookstore in Berkeley. Another was arrested today for violence: https://www.koin.com/news/protests/right-wing-protester-alan-swinney-arrested-on-12-charges-proud-boys/

            Do you condemn both?

        3. Look at the transcript or the video. When asked to condemn, his first word was “Sure.” Who ya gonna believe? CNN or lying eyes.”

          1. He said that he will. But then he didn’t. If someone says they will testify on your behalf at a trial, but they don’t actually do it, does it count?

  3. Jonathan: Whether Louisville police Sergeant Jonathan Mattingly has a case for “defamation” is a distraction. The more important issue is how police conduct raids and arrests in minority neighborhoods. The botched Louisville police raid that killed Leonna Taylor shows the difference in how police conduct themselves in black neighborhoods and how they act in wealthy neighborhoods. The case of Brad Parscale illustrates the difference.

    Everyone remembers Brad Parscale. He was the 6 ft 8 inch manager of Trump’s campaign–that is until July when he was summarily dismissed by Trump. Parscale was part of Trump’s inner circle, recommended for the position by Jared Kushner who doesn’t have a good record of selecting people for important positions. Anyway, Trump was going to hold a rally in Tulsa and Parscale told him proudly that 1 million people had requested tickets for the rally. When Trump showed up for the rally he found only about 6,000 supporters .”What happened to the big crowd you promised me Parscale?. Red faced Parscale had to admit the 1 million ticket requests were a prank by anti-Trump activists who never intended to attend the rally. Well, you can imagine Trump’s reaction. He went ballistic and Parscale was canned. From their on it was down hill–at least for Parscale’s prized position in the Trump orbit.

    Now fast forward to the present. Parscale lives in a $2,4 million waterfront home in a tony Ft. Lauderdale neighborhood. This week Parscale was arrested at his home after his wife called 911 saying her husband was inside the home, had a lot of weapons, was drinking and was threatening to harm himself. She said her husband was suffering from PTSD and had physically attacked her leaving bruises. Now this is where we see how police treat rich people differently. When police arrived on the scene one officer, Chris Wilson, who says he is a “personal friend” of Parscale, got him to come out of the house where police wrestled Parscale to the ground. Wilson says he told Parscale: “Hey bud. Hey, we’ll figure it all out, don’t worry about it. We’re going to get you off the ground in just a second,,,”. Parscale was then taken to a hospital for a psychiatric evaluation. Police found 10 weapons in his home. Notice the difference in treatment? In the case of George Floyd, he was pinned to the ground with a knee on his neck until he died. He had no “personal friend” in the Minneapolis police department. In the case of Parscale Ft. Lauderdale police knew him, knew he had had close ties to Donald Trump, was rich and treated him with kid gloves. That’s how police treat you differently when you are rich and powerful. Leonna Taylor also didn’t have a “personal friend” in the Louisville police department. The police simply broke her door down with a battering ram and shot her dead. The Ft. Lauderdale police didn’t break down Parscale’s door even though he had a lot of weapons and could pose a threat.

    Now we should have a criminal justice system where all people are fairly treated, regardless of income, race or power. But in the US their are two systems–one for black people and one for the rich and well connected–mostly white. That’s the point that is apparently lost on you, Jonathan. We also learned from the Parscale case that working for Donald Trump can really screw up your mind!

    1. Dennis you start off saying Turley’s article is a distraction from important issues then you end up with this Parscale stuff. Talk about a not-important issue. One domestic police call is not a subject of important public concern. He also got knocked on his keester pretty forcefully too in case you think he was treated with kid gloves. I’d like to see you take a hard charging double leg takedown on the concrete as well as he did. Simply because …… he was standing there with nothing in his hands asking them what he did. Yeah, some kid gloves they used on him. But again, THAT is a distraction if there ever was one

  4. It’s been 40 years since I studied 1A law under Archibald Cox at HLS so I may have forgotten things but, why is the determination that a statement is non-actionable “rhetorical hyperbole” not a jury question?

  5. It seems that absent the public figure issue, Mattingly has a good case under Kentucky law.

    I can see no possible defence to calling a man a murderer when he is not a murderer.

    As to him being a public figure, I’m not an American lawyer, let alone a defamation lawyer, but on sheer logic I find this unpersuasive as it seems to apply to Mattingly:

    … In this case, however, there is an argument that the public statements issued on behalf of Officer Mattingly would make him a public figure under Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974) and its progeny of cases. The Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979)….

    I’d think that the legal test of 1. someone thrusting himself into the vortex of a public issue, 2. engaging the public’s attention in 3. an attempt to influence its outcome has no application to Mattingly.

    He seems not to have thrust himself into the vortex of a public issue. That aspect of the test seems to suggest the public issue pre-exists any thrusting. Here what issue existed and how could it said to be public? It was a singular cop citizen encounter that became an public issue only after the fact. Mattingly’s “thrust,” it seems, was merely as a cop doing his job, acting on a knock warrant and then firing back in justified response to being shot at, let alone wounded. I don’t know of any thrusting he did after the fact save to hire a lawyer to protest his interest given the prospect of criminal charges. If there’s some thrusting here that brings him within the ambit of Gertz, then I’d like to know what it is.

    I also can’t see how Mattingly acted in any way so to engage the public’s attention so that he fits within the category of a public figure. As noted, his actions preceded any public issue, and only became public after the fact. So, during the cop citizen encounter, there was none of him engaging the public, and after as the news story grew, he in no way that I can see did anything to engage the public’s attention. I can’t see how a lawyer advising him and merely helping Mattingly to protect his interests can constitute him engaging the public.

    As well, engaging the public has to be with a view to influencing the outcome. I can’t see how Mattingly seeking to vindicate his innocence in the context of a state investigation of his cop citizen encounter with the possibility of criminal charges has him trying influence the public view of anything. It seems he only wanted to transform his presumed innocence into a legal conclusion, which the grand jury did by not indicting him. His efforts in that, such as they were, had nothing to do with what the public thought, only with what the state investigation and grand jury concluded.

    Mattingly didn’t voluntarily draw attention to himself. He only acted within his cop duties in a cop citizen encounter. All the attention was drawn to him by others, and no little by searingly overheated media accounts falsely calling him a murderer. He played no voluntary part in that. On the same line of reasoning, how can it be said he sought to become part of a controversy as a fulcrum to create public discussion?

    Again, I’m not a US lawyer and never was a defamation lawyer. So my thinking may be lacking nuances and may be riddled with misconceptions. If so, I’d be obliged to be enlightened.

    1. good remarks itzik thanks

      main thing if you are his lawyer, don’t take the case on contingency. that would be strictly hourly. i guess a climber could make a loss leader out of it, but whew, hard hill to climb when betting on the come so to speak

    1. The hearing was loooong…like 5 hours or something. I just listened to almost all of it(I missed the beginning). The government and Powell were fantastic. Sullivan is stretching this out and Powell is looking to immediately petition the Supreme Court. The arguments put forward by Sullivan and the government clearly won the day. I find it remarkable that Sullivan didn’t know why Judge Contreras had to recuse himself from the case…very hard to believe.

  6. Thank you Professor Turley, an informative analysis as always. I am missing one point, however: Why is the question of Mattingly’s status as (possibly) a public figure raised here at all? The analysis implies that this would be an issue in Mattingly’s action (“The court, however, would still have to decide whether Mattingly is a public official or public figure”) but nothing else here indicates why this this would be. Remedy for defamation is available to non-public figures and I would have assumed Mattingly would sue as such – or am I missing something?

    1. David:

      He’s arguably a “public official” as a cop and that has implications on the malice element needed to successfully bring the case against a media defendant who get more protections than you or me. “Public figure” status triggers the same analysis and open applies if he seeks and interjects himself into a public debate.

      1. Thank you mespo727272 – good of you to take the time to answer. (I’m here in Australia, where the law of defamation operates somewhat differently.)

        While I was aware of the application and effect of the Sullivan test to public figures, and also that one can quickly render oneself a public figure by one’s conduct, what I was missing here is the reason this might apply in this case. Professor Turley’s review of the case law suggests it is not certain that a low-ranking police officer is, presumptively, a public figure within the meaning of Sullivan. If so, and it was found here that Mattingly is not a public figure merely because he is a police officer, his putative public figure status would depend, as you say, on whether he had “thrust himself into the vortex of [the] public issue”. Has Mattingly done anything that might meet this description? (I have not followed this closely from this distance so I realise there may be important elements I am unaware of.)

  7. When does prosecutorial discretion become obstruction of justice?

    The District Attorney for Multnomah County (Portland), Mike Schmidt, took an oath of office to enforce the law. Despite that oath he reportedly releases Antifa and BLM rioters back into the streets where they destroy property and attack police and private citizens. He is an activist lawyer like the prosecutors in Chicago and St. Louis. https://www.foxnews.com/politics/da-soros-justice

    Being a district attorney he would not be prosecuted by state authorities. However, the possibilities of prosecuting these wayward prosecutors under federal law needs to be explored. They appear to be violating their oath of office and openly and shamelessly obstructing justice.

    1. Come to think of it, this is possibly the type of case that Judge Sullivan is trying to create now, although with less logical and ethical justification than the case could be made against state prosecutors.

      1. RICO definitely could be used against the ANTIFA insurrectionists and protection racketeers. Used to lock them up and strip their assets

        but you would need AUSA with cojones to do it and diligent FBI agents not crippled by a reluctance to go after potential Democrat voters

  8. Voter Fraud.

    I should have posted this one with James O’Keefe providing an explanation. See this instead donate at the other video.

      1. Thanks, Young. I have been waiting for the Project Veritas tape and am not sure if more is coming. The other video may be better for people understand.

        Democrats don’t want such legislation though I believe Republicans for the most part do. I believe most of the illegality comes from the democrat side.

        Nice to talk to someone with brains. It seems this blog is the cause of the brain drain.

          1. Allan has no interest in sincere debate. His only thrust is throwing poop at liberals. What’s more, Allan doesn’t even wear a latex glove when throwing poop around. Nor does Allan wash his hands afterward.

            1. PaintChips, It is true that I sometimes engage too much time exploring the minds of Stupid people when one look says it all. Those minds are empty and what they say in post one is the sum total of what one gets.

              You are a different story. The paranoia and anger you demonstrate along with the way you handle the news is far more interesting but not any more enlightening.

      1. He also makes accusations about PV that aren’t true, but apparently you are too Stupid to know that he shouldn’t be trusted. Make sure your mother holds your hand when you cross the street.

            1. I’d rather be with cowardly than abusive and controlling like you. You’re so controlling that you respond this way about an insignificant thing like icon use. You seriously need psych help Allan.

              1. There you go. Anonymous the Stupid admits he is a coward as well as being Stupid.

                Amazing! Anonymous the Stupid thinks people can control him with simple replies. He is Stupid so maybe they can.

                1. There you go. Allan the Stupid admits that he is too stupid to understand a simple sentence. If someone says “I’d rather be rich than poor,” it doesn’t imply that the person is rich, and “I’d rather be with cowardly than abusive and controlling like you” doesn’t imply that the writer is cowardly. But you ARE abusive and controlling. That doesn’t mean that your attempt to control me actually succeed. Clearly they don’t.

                  If you have a wife and kids, I bet you’re abusive and controlling with them too. Get help Allan. You are sick.

                  1. Brainless, you don’t understand what abusive is. Calling Trump a racist when he isn’t is foul. Originally he was called an Anti-Semite (with Jewish grandchildren and a Jewish daughter) because like you they can’t debate. Like you they can only slander. Trump hasn’t demonstrated that he is a racist. He has demonstrated the opposite. Not only has he demonstrated the opposite but he has done more for the black community in 47 months than Biden did in 47 years.

                    That was a powerful statement Trump made (about everything he did) because Biden never did that much of anything, but Biden used the N word and was very close with the racism that was seen in the Senate. You don’t see these things because you are blind. Worse, you are not blind, you choose not to see the truth because your world would come crashing down.

                    This country rapidly moved away from racism but your type of hate and greed has unfortunately caused racism to reappear in a stronger fashion.

                    To your chagrin my family is productive, healthy, happy and without the racism you seem to hold dear to your heart. Go ahead and sing your silly songs while black children in Chicago are shooting and killing one another. That seems to be all you are good for.

                    1. You are an abusive person and deserve to be abused back.

                      You call people racists without evidence. That is abuse. You make statements that are Stupid. You would like them to be called smart, but they aren’t. They are Stupid. Calling Stupid ideas Stupid is not abuse. It is true.

                      Most of your postings are abusive to those on the blog but we mostly say nothing because you are entitled to your broad based ideas that have little or no evidence behind them. I on the other hand question whether such minds as yours should be polluting this site without feedback or explanation. You don’t like the feedback so you turn back to redefining words and impugn that everyone that doesn’t agree with you is a racist.

                    2. Where did I call people racist without evidence? Give me the time stamp, Allan, and let’s see if you’re telling the truth.

                    3. Dumb, you just did. Evidence? You only insult. You don’t think nor do you prove such allegations. That is the type of person you are. Keep crying how abusive and racist everyone else is. Racism comes from people like you.

                    4. You say I was lying. That means I was lying about him being called an anti-Semite or I was lying about him having a Jewish daughter.

                      Almost everyone else knows that what I said was true. That means anonymous is lying which means that all anonymous icons and names suddenly become liars as well (assuming any weren’t before you made this blatant lie.)

                    5. Anonymous since you were showing out an accusation about lying perhaps we should have brought it back to topic. It seems that Biden lied about what he knew about his sons enrichment from our enemies and Ukraine. That is who you probably support so I can understand you reversing roles calling honest people liars and dishonest people honest.

                    6. You were lying about me when you said I “call people racists without evidence” in your September 30, 12:28 PM comment. I asked you to give me the time stamp for where I did what you claim, to see if you’re telling the truth, and you refused.

                      Take your attempt to deflect from that and shove it.

                    7. Anonymous, there is no question about your credibility. You have none for many reasons. There is no need for me to go back and prove it to you. I prove you are lying on the spot so no searches are necessary. You can do the same. I won’t be offended.

                      However, that you lie is obvious because you make derogatory statements without proof and do it over and over again never proving your case. If you don’t want to be considered a liar prove your case. That you are unable to do.

                      The second reason you are a liar for sure is that you use an anonymous label. If one anonymous lies, you lie and one can never provide proof because you can always blame the other anonymous or say you didn’t say something which may or may not be true.

                      Let me summarize a take away for anyone that might view these emails. Anonymous is a liar unless in the same response she provides adequate proof.

                    8. Allan, you’re still trying to deflect. You said I “call people racists without evidence” in your September 30, 12:28 PM comment, and you can’t prove it, and now you’re trying to make excuses that “There is no need for me to go back and prove it.”

                      You can’t do it, but you won’t admit that you can’t do it, so you make excuses. Then you have the gall to tell me “prove your case” when you won’t do it yourself. Hypocrite.

                    9. Yes, Anonymous, you call people racists. There is not doubt about that. I can’t accurately trace an Anonymous name throughout the blog. That takes time and you have called people racist many times. You have to prove it wasn’t you who made the comment, but you can’t adequately do that because your reputation is affixed to the rat squad. You chose to affix your reputation to others to avoid honesty. Live with it.

                      You are the hypocrite and have proven that many times as well sometimes doing it one after the other in the smaller threads where anonymous writes one thing and then anonymous writes another. Your credibility is zero.

                      You have nothing to protect your reputation so you don’t have one, or don’t have one that is good. That is your problem. Live with it.

                    10. Anonymous, as usual you focus on the trivial not the substance. That is why all your replies are so thin.

  9. “Majority of voters think Biden has used his political career to enrich his family and friends
    Less than 30% of voters believe otherwise.”

    JTN

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