Mug Shots Won’t Support Defamation Claim

managerIs it appropriate to call an attorney and scream, “Don’t do it!”?

I came across this article today, and this poor attorney is about to go down a very bad path. I have seen this scenario played out over and over. Should I warn him? Would he listen?

Here’s the scenario.

The City of Santa Barbara apparently has some sort of a gang task force, and the police published a bunch of mug shots of people that were arrested, purportedly in relation to that task force.

Six of the people pictured in those mugs shots or otherwise mentioned took umbrage with being portrayed as gang members, and are threatening to sue. Their attorney held a press conference to announce that he is going to seek $1 million in damages for each of his six clients, and will be filing a claim as required, before filing a legal action.

Don’t do it!

For a number of reasons, such a case won’t survive an anti-SLAPP motion, and your six clients will end up on the hook for all the attorney fees.

Most problematic is that the statements are protected by the common interest privilege, so you’ll need to show that the City acted with malice when it posted those mug shots.

Second, your clients WERE arrested, so if they are going to claim loss of reputation, they’ll need to show that their shame comes not from having their mug shots shown, but rather from the additional fact of being cast as a gang member. How are you going to accomplish that surgical cut?

Finally, to be defamatory, you need to be able to show that the defendant made a verifiable assertion of fact that was false. Did the City really say that your clients are gang members, or are you going to allege that the mug shots and surrounding circumstances implied that they are gang members? The latter is not sufficient.

Hopefully, the attorney is just doing a little saber-rattling, hoping for a settlement, and won’t actually file the complaint. I’ll keep an eye on this one and let you know.

[UPDATE – December 8, 2014] I feel bad. Perhaps I should have picked up a phone. But I’m convinced the attorney probably would not have accepted my advice. I didn’t stumble across the news until today, but according to this article, the attorney did file a claim against the City of Santa Barbara, and did make good on his threat to file a complaint. The City responded with an anti-SLAPP motion, which was granted late in November, about a year after the attorney held the initial press conference that occasioned my prediction that the matter would fail if pursued.

I was unable to find a copy of the Court’s order, but the article published by the Santa Barbara Independent newspaper states that the Court’s ruling found that gang activity was a matter of public interest.

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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