Hildebrant v. Meredith Corp.

63 F.Supp.3d 732

James HILDEBRANT, Steven Lautner, Oscar Lopez, and Douglas Wortley, Plaintiffs

v.MEREDITH CORPORATION, Defendant.

Case No. 13–cv–13972.

United States District Court, E.D. Michigan, Northern Division.

Signed Oct. 23, 2014.

Russell C. Babcock, Victor J. Mastromarco, Jr., The Mastromarco Firm, Saginaw, MI, for Plaintiffs.

Katherine S. Gardner, Masud Labor Law Group, Richard R. Vary, Masud, Patterson, Saginaw, MI, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

THOMAS L. LUDINGTON, District Judge.

Plaintiffs are police officers with the Saginaw County Police Department. In the summer of 2012, Plaintiffs were the subject of an internal investigation regarding their conduct during an inventory of a forfeited house. A confidential source provided information about the investigation to a reporter for Channel 5 news—operated by Defendant Meredith Corporation—which then aired a series of broadcasts regarding the internal investigation.

Plaintiffs then commenced an action against Meredith Corporation for defamation. Plaintiffs claim that the September 2012 broadcasts contained defamatory statements, such as that Plaintiffs were “accused of stealing during a raid” and were “accused of stealing drugs during a raid.”

On September 3, 2014, Defendant filed a motion for summary judgment, alleging that Plaintiffs cannot show that the broadcasts were false or that they were made with actual malice. Because the statement that Plaintiffs were “accused of stealing during a raid” is substantially true, Defendant's motion for summary judgment will be granted in part. However, summary judgment will be denied with respect to the statement that Plaintiffs were “accused of stealing drugs during a raid.” Plaintiffs have produced sufficient clear and convincing evidence for a reasonable jury to conclude that the statement was false and was made with actual malice, and therefore summary judgment will be denied in part.

I

Plaintiffs are all members of the City of Saginaw Police Department. On June 20, 2012, their supervisor, Seargant Kevin Revard, ordered them to 2804 Adams Boulevard to assist in inventorying the items in a house following a seizure. As explained by Sergeant Revard:

Forfeiture process is when we do search warrants, we'll seize property. And there's a form filled out for each item that's taken. And then that's turned over to the county prosecutor.... And then he would go through the court procedure of turning those items eventually over to us. And then our department would then sell most of that stuff, like on eBay, for instance.

Resp. Ex. 8 at 7–8, ECF No. 22. The house had been seized by the City of Saginaw as the result of a drug raid.

When Plaintiffs arrived at Adams Boulevard house, Sergeant Revard instructed them to go through the house to search for any leftover contraband and to begin sorting the valuable items from the non-valuable items. Sergeant Revard had called Plaintiffs in because they had executed many search warrants and they “all knew what was worth taking, what wasn't”. Id. at 9.

However, this time, Plaintiffs may have misunderstood Sergeant Revard's instructions. Sergeant Revard testified that he told Plaintiffs that he wanted to check the house for contraband,

[a]nd while we were doing that, we could also gather up the stuff that was of value, okay, so it wouldn't be so hard for [the property room clerk] to go through the whole house, okay? And then I told them that the rest of the stuff was going to get thrown out on the curb for trash.

Id. at 10. Sergeant Revard's instructions were apparently misunderstood by Plaintiffs, however:

When I told them that stuff was going to go out on the curb, I didn't tell them that [the property room clerk] was going to come like the next day or something.... So the misunderstanding part was when I told them the stuff that wasn't of value was going to get thrown out on the curb, I believe they took that as it was going to get thrown out on the curb that day.

Id. 11.

Indeed, Plaintiffs understood Sergeant Revard's instructions as permission to take those items that would otherwise be placed on the curb:

Q: Who did you have permission from?

Officer Lautner: Sergeant Revard.

Q: When did Sergeant Revard give you that permission?

Officer Lautner: I believe it was when we arrived....

Q: And what did Sergeant Revard tell you with regard to taking items?

Officer Lautner: That's a general question. What do you mean?

Q: Did you ask him specifically, “Can I take this rake?”

Officer Lautner: No.

Q: Okay. Did you ask him generally can I take items?

Officer Lautner: Not directly.

Q: Okay. Well, what did he tell you?

Officer Lautner: He said that to gather items of value and everything from the house was going to be thrown away that wasn't valuable. And anything that wasn't valuable we could basically take.

Mot. Summ. J. Ex. 5 at 22, ECF No. 16; see also Mot. Summ. J. Ex. 2 at 11 (Q: “Did Sergeant Revard expressly tell you that you could take any items from the home?” A: “It was implied that everything was—anything that was going to be thrown away it was going to be trash and the City would have no use for it.”); Mot. Summ. J. Ex. B 19–20 (Q: “Who gave you permission?” A: “Sergeant Revard”).

Because they believed that Sergeant Revard had given them permission, Plaintiffs removed a variety of items they believed to be without value. Officer Lautner put a rake, a shovel, a firepit, a lawnmower, a heater, and jumper cables in his vehicle. Mot. Summ. J. Ex. 5 at 19; Ex. 12 at 4. Officer Wortley placed a propane tank, a paper towel holder, and an electric scooter and put them in his vehicle. Id. Ex. 2 at 11–12. Officer Hildebrant removed a small desk with a glass top, a computer slide, a metal trash can, and a screwdriver in Officer Wortley's vehicle. Id. Ex. 4 at 14–15. Officer Lopez took a patio table and umbrella, two garden rakes, and a shovel and took them to his mother's home. Id. Ex. 3 at 16, 19.

On June 28, 2012, Police Chief Gerald Cliff learned that there may have been a larceny involving Plaintiffs at the Adams Boulevard house. Id. Ex. 9 at ¶ 8. Chief Cliff requested that both the City of Saginaw Police Department Internal Affairs Department and the Michigan State Police conduct an investigation into the alleged larceny. Id. at ¶ 9–10.

Following the internal investigation, see id. Ex. 11, and the Michigan state police investigation, see id. Ex. 12, the Saginaw Prosecutors Office declined to authorize any criminal charges. Id. Ex. 12 at 17–18. Instead, the Saginaw Police Department would “handle any discipline internally.” Id. at 18.

On August 30, 2012, each Plaintiff received a Discipline Notice. Each Discipline Notice stated that the officer “took items that were forfeited to the City of Saginaw. You were not authorized to take the items to your personal residence and you did so while you were on City time.... Your poor judgment and inappropriate conduct will results [sic] in a five (5) day unpaid suspension from your job.” Ex. 13.

The Disciplinary Notices were disclosed to the press, and Channel 5 informed the public on September 5, 2012. During the six-o'clock news, Jonathan Lowe reported that:

According to a memo obtained by TV–5 written by Saginaw Personnel Director Dennis Jordan, Back on June 20th four members of the Saginaw Police Department's Gang Task Force executed a search warrant at this home at 2804 Adams Boulevard. The memo says the officers stole items during that raid and then took those items home all while on the clock.... The memo identifies the officers as Steve Lautner, Oscar Lopez, James Hildebrant, and Douglas Wortley.¹

Resp. Ex. 1 (emphasis added).

Later that evening, the 10 o'clock broadcast reported the story again:

A memo written by city personnel director Dennis Jordan says the officers, Douglas Wortley, Steve Lautner, Oscar Lopez, and James Hildebrant, stole stuff from this home on Adams Boulevard after a raid in late June 20.

Id.

The next day, September 6, 2012, the City of Saginaw issued a press release regarding Plaintiffs' discipline. The press release stated that the Plaintiffs had been under investigation for allegedly mishandling property, but that there were no findings of criminal activity:

Members of the Saginaw Police Department's Gang Task Force have been under investigation by the Michigan State Police, and the Internal Affairs Division of the Department for allegedly mishandling property seized in a forfeiture clean-out due to a drug raid at 2804 Adams Bouldevard in Saginaw on June 20, 2012.... While there were no findings of criminal activity by the State Police, the matter was referred to the Internal Affairs Division of Saginaw Police Department and to the City's Employee Services Department.

Our internal investigation has determined that the handling and processing of evidence was in violation of departmental policies and procedures. Those members involved have been disciplined accordingly.

Mot. Summ. J. Ex. 15 at 2–3.

Channel 5 news continued reporting the story in the following days:

• Plaintiffs were “accused of stealing from a home after a drug raid ....” during the September 6, 2012 five o'clock broadcast.

• “Four Saginaw police officers are facing suspension. Accused of taking items during a drug raid and doing so while on city time.” September 6, 2012 six o'clock broadcast.

• Plaintiffs were “accused of stealing items during a raid” during the September 7, 2012 five o'clock wakeup broadcast.

Resp. Ex. 1 (emphasis added).

On the evening of September 8, 2014, Channel 5 once again reported the story, but with an additional piece of information:

The police officers association of Michigan blasting Saginaw city hall for what the organization says is an effort to undermine police. In their statement they accuse city manager Darnell Earley of discrediting the officers by relying on unproven facts, innuendo, and speculation. The statement comes after the city disciplined four officers accused of stealing drugs during a raid.

Id. 9...