PD Whose Officers Brutalized A Black Soldier For Driving To A Well-Lit Area Sued By Virginia Attorney General

from the fuck-with-the-rights,-get-the-horns dept

Windsor, Virigina was the recipient of unflattering nationwide news coverage due to two police officers deciding a black driver -- and Army medic -- needed to be brutalized for seeking a well-lit area to pull over. The whole thing was caught on the officers' body cameras, including their threats to make Lieutenant Caron Nazario "ride the lightning" (a reference to the officer's Taser) as well as the officer's affirmation that Nazario was right to be scared to exit his vehicle.

A low-speed, non-lengthy, non-chase of one hundred seconds led to several minutes of violence, threats of further violence, and violated rights. The officers shouted conflicting orders -- to both keep hands where they could be seen as well as to exit the vehicle, something impossible for Nazario to comply with considering he still had his seatbelt on. The officers pointed their guns at him the entire time, pausing only to pepper spray him in the eyes. Nazario sued. That lawsuit is still ongoing. One of the officers -- Daniel Crocker -- is also facing criminal charges.

But there's a postscript to this case that involves another lawsuit involving the Windsor Police Department. The state's Attorney General, Mark Herring, is suing the Town of Windsor over biased policing engaged in by PD officers.

After a months-long investigation revealed disturbing evidence of discriminatory, unconstitutional policing, Attorney General Mark R. Herring today filed suit against the Town of Windsor alleging that its police department has operated in a way that led to discrimination against African Americans and violated their constitutional rights. This is the first enforcement action against a law enforcement agency under the new state law empowering the attorney general to file suit to stop systemic violations of Virginians’ civil rights.

The lawsuit [PDF] alleges plenty of questionable behavior by the town's law enforcement officers -- something that explains the actions taken by the two officers involved in this controversial traffic stop. Here's what the Attorney General uncovered during the investigation of the Windsor PD:

Black drivers accounted for approximately 42% of the department’s traffic stops from July 1, 2020 through September 30, 2021 (810 of 1,907 stops.) During that time period, the Town stopped Black drivers between 200% and 500% more often than would be expected based on the number of Black residents in the town or county.

From July 1, 2020 through September 30, 2021, the Department searched more vehicles driven by Black drivers than White drivers, even though Black residents do not constitute the majority of the population of the Town or the Commonwealth.

Not only is there evidence of biased policing, there's evidence the Windsor PD misled its most direct oversight, the Windsor Town Council.

For many of the examined months, there was a significant discrepancy between the number of traffic stops and citations reported to town council and reported to the Virginia State Police for tracking and reporting purposes. In all instances the numbers reported to the Commonwealth were lower than those shared with town council, and the discrepancy has not yet been explained.

The lawsuit seeks an injunction barring the PD from engaging in discriminatory policing. It demands policy changes to ensure traffic stops are bias-free, mandates accurate reporting of use of force incidents, and order the PD to submit to third-party monitoring of its compliance with state and local laws, as well as the specifics of any order issued by the court handling this lawsuit.

The Town of Windsor has already responded. And it claims [PDF] AG Mark Herring is doing this for the clicks:

The decision by Attorney General Mark Herring to file a lawsuit against the Town of Windsor on the eve of the new year and just 17 days before he leaves office is clearly political.

[...]

Despite the Town’s cooperation and progress, the Attorney General’s office, just days later, issued an ultimatum demanding immediate action or the threat of litigation, knowing the Town Council would not meet again to address this until January 11 – a mere four days prior to Mr. Herring leaving office. Given that the Complaint cites questionable data on the quantity and nature of traffic stops and searches, as well as its reporting, the suit lacks any context as to what the Town has done over the past year to address any concerns. The Town is stunned that this suit was filed on December 30, just hours before Courts closed for the year.

[...]

Therefore, there was no need for Mr. Herring to file this lawsuit, except perhaps for the sake of headlines, which he will surely receive.

A government complaining about how another government entity engages in government business is pretty rich. Government officials wait until holiday weekends to dump bad news. Litigation almost always commences at the last minute, often just before the statute of limitations takes effect. Everything is political, even when everyone in political agencies claims it isn't.

But it's extremely disingenuous to claim this was done solely for the headlines. An actual investigation occurred and the results led the AG to the conclusion a lawsuit was needed to change the Windsor PD's evidently-biased policing. The results of this investigation will also aid Lt. Nazario's lawsuit against these officers, as he will now be able to point to a pattern and practice of targeting minorities.

The town says it "looks forward to a reasonable conversation" with AG Herring's successor. But its first response is anything but reasonable and suggests the town feels its police department doesn't need to be changed, much less subjected to more scrutiny. And that suggests any future conversations will be short on reasonableness and heavy on defensiveness.

Filed Under: bias, caron nazario, daniel crocker, mark herring, police, virginia, windsor, windsor police department

Virginia School Board Sues FOIA Recipients For Receiving FOIA'ed Documents It Handed To Them

from the nice-gov't-work-if-you-can-get-it dept

Yeah, it can suck when you fail to handle FOIA requests properly and give the public more information than you intended to. It sucks for the government. It doesn't suck for the public, which is rarely treated to anything more than the most minimal of transparency.

Unfortunately, government agencies don't always react well when they've screwed things up. Sometimes the blowback is limited to ineffectual shouting or paper waving. Sometimes, however, it's a lawsuit seeking a court order to prevent people from accessing (or sharing) documents they've legally obtained from a government agency.

Cut to Virginia, where it's the latter option being deployed:

A Virginia school board is suing two mothers, arguing that documents "inadvertently and mistakenly" released through a Freedom of Information Act request and shared online included confidential information.

The Goldwater Institute on Thursday filed a motion with a Virginia judge to dismiss a lawsuit filed by the Fairfax County School Board against Debra Tisler, who obtained documents from the board through a Freedom of Information Act request, and Callie Oettinger, who shared the redacted documents on her website.

The lawsuit [PDF] claims the Fairfax County Public School Board never meant to release the information it released, which included personal information about students. Federal law forbids the release of this information to unauthorized parties by government agencies.

But that means nothing in the context of this lawsuit. The School Board can be held liable by others for releasing this information. The recipients of this information did nothing wrong, despite the litigious protestations otherwise. The complaint is mostly a list of what the Board did wrong, including failing to subject the FOIA release to review by its legal counsel before sending a link to the Dropbox file to the records requesters.

To correct this, the Board repeatedly contacted the recipient. And it was continually ignored… up until it sent multiple physical notifications, at which point the recipient of all of these notifications told the School Board to stop harassing her.

Copies of these documents were posted publicly, but sensitive student data was redacted by the recipients. The Board felt this wasn't enough of a capitulation, so it took legal action, which then resulted in the removal of the files from the recipient's website.

The Board claims in its filing that it has a legal right to go back in time and undo its mistakes by forcing the FOIA requesters to basically pretend they never received the unredacted information. The Goldwater Institute has stepped in to represent the records requesters and its opposition motion [PDF] points out just how wrong the Board is about the law and the First Amendment.

Only the most pressing government interest—such as the publication of troop movements during wartime—can justify the imposition of such a restraint. Id. at 726 (Brennan, J., concurring). But no such interest is identified in the board’s Complaint or its motion for an injunction. On the contrary, the sole bases it asserts for blocking Ms. Oettinger and Ms. Tisler from disseminating the information are the fact that the board could have chosen to withhold some of this information under the VFOIA (though it did not do so), and that some of the documents could be covered by attorney-client privilege between the board and its attorneys. Complaint ¶¶ 40, 44. That is constitutionally insufficient and irrelevant.

The Board's demands are unconstitutional and there is no precedent that says otherwise.

They are government records, lawfully obtained, and Ms. Tisler and Ms. Oettinger have a right to disseminate them, as protected by the rule of Smith, New York Times, and Bartnicki. Even if the documents were inadvertently turned over, they have both a constitutional right and a legitimate democratic purpose for publishing them. For the government to demand that the documents be removed from publication—i.e., censored—is contrary to all constitutional precedent.

None of that precendent appears to matter to the court. It has already granted the Board's injunction.

Last week, a state judge issued an order barring the women from sharing the documents pending further order of the court, and Oettinger subsequently took the documents off her website.

Hopefully now that an adversarial party has entered the legal battle, the court will be forced to reconsider its granting of this injunction. The government should not be allowed to use courts like time machines to erase its mistakes. It should have to live with them, especially when the inadvertently-released documents deal with issues of public interest, like public school spending. The Board's arguments are mostly admissions of wrongdoing on its own part for which it should be held accountable. Instead it has asked the court to punish people who've done nothing wrong.

Filed Under: callie oettinger, debra tisler, fairfax county, foia, school board, transparency, virginia

Devin Nunes Loses Again, But He's Still Suing The Satirical Cow Who Mocked Him

from the and-so-it-goes dept

As you likely know by now, a little over two years ago, Devin Nunes kicked off his SLAPPy litigiousness by suing the satirical internet cow with about 1,200 followers at the time of the lawsuit (it now has over 770,000). What got a bit less attention was that the satirical cow was only one of the four parties sued. There was also another satirical account pretending to be Nunes' mother, and then there was Twitter and a political consultant named Liz Mair (who he actually sued another time as well -- in a case that was also dismissed, though Nunes is appealing).

Mair has written about what an attack on free speech this is, and spoke with us last year about what a nuisance it is to be sued. Last summer, the judge dismissed Twitter from the lawsuit and now he's finally dismissed Mair as well (as first reported in the Fresno Bee, whose parent company Nunes has also sued).

The ruling is pretty short and sweet, as apparently this is just the paper version of what he ruled from the bench last month. But, more or less, the case fails for the exact reason everyone who knows anything about defamation predicted: the complaint doesn't show anything Mair stated was even remotely defamatory, and there's nothing showing actual malice, which is necessary if a public figure is claiming to be defamed.

For the reasons stated on the record at the July 2, 2021 hearing, the Court concludes that the Complaint fails to adequately allege defamation per se against Mair as a matter of law. Specifically, the defamation per se claim alleged against Mair fails for the following independent reasons: (1) the Complaint fails to plead with sufficient context the “exact words” of the statements. alleged to be defamatory; (2) the statements alleged to have been made by Mair are not defamatory as a matter of law; and (3) the facts alleged fail to support a reasonable inference that Mair made any of the alleged statements with the requisite intent of “actual malice.”

And therefore (finally) the complaint against Mair is dismissed with prejudice.

So... Twitter's out of the case. Mair is out of the case. All that's left are the two satirical accounts. And that's apparently going nowhere because Nunes' lawyer, Steven Biss -- despite using some extremely questionable methods has apparently been unable to figure out how to identify and serve the satirical accounts.

This actually puts Nunes into something of a quandary. He apparently can't appeal this latest ruling in favor of Mair unless he gives up trying to sue the satirical accounts. So, now Nunes will have to decide which is more important -- appealing the Mair decision, or hanging on and hoping he can somehow find the cow. As Mair told the Fresno Bee, this whole situation puts her (and the cow) in perpetual limbo:

“He may yet appeal,” Mair said of the decision to dismiss her from the Twitter lawsuit in Henrico County, for which the congressman sought $250 million from her, “though as I understand it, that process could occur years or even decades from now given the inability of Rep. Nunes to ‘unmask’ the cow and the mom in that case, and the possibility that the case never reaches a resolution whether through court action, settlement or dismissal of the cow and the mom from the suit.”

Perhaps more importantly, Mair explains how absolutely fucking ridiculous it is that a sitting Congressional Representative is regularly abusing the courts to silence and intimidate people for reporting on him and making fun of him:

“It is ridiculous that we have had a sitting United States congressman suing a fake farmyard animal, let alone me, for being mean to him on Twitter, which the First Amendment clearly protects,” Mair said. “It is also extremely disturbing that Rep. Nunes has, on my read, appeared to use litigation as a cudgel to try to stifle free speech in such a wanton manner.”

Separately, since the question of how the hell Nunes is funding all these cases has been raised a bunch (a complaint from the Campaign Legal Center says that it's against House rules to receive free legal services without a Legal Expense Fund), that issue may actually get some attention in a different case.

On Monday, in the case that Nunes' relatives have filed against reporter Ryan Lizza and Esquire Magazine (Nunes also sued, but that was thrown out), the defendants asked the court to force Nunes' family to reveal who is funding that lawsuit.

Through this Motion to Compel, Defendants Ryan Lizza (“Lizza”) and Hearst Magazine Media, Inc. (“collectively, “Defendants”), seek an order requiring Plaintiffs NuStar Farms, LLC, Anthony Nunes, Jr., and Anthony Nunes, III (together, “Plaintiffs”) and their attorneys to disclose responsive information and documents regarding their source of funding for this lawsuit and the material terms of their third-party litigation funding arrangement(s). This information goes directly to a dispositive issue in the case and is relevant to other issues as well; Plaintiffs cannot meet their burden to resist providing the information, which imposes no burden to produce.

While it might initially seem like a stretch to have to disclose this during discovery, as Esquire's lawyers argue in their supporting brief, it's actually quite important in this case:

This information goes to the heart of a potentially dispositive issue in this case—whether Plaintiffs should be deemed public figures by virtue of their relationship to the Congressman and their coordination in pursuing this lawsuit as part of his policy to sue media entities....

It's unclear if the judge will agree with this (and apparently he's already suggested that he's skeptical of this argument). Separately, even if they are compelled to hand over that information, that doesn't mean it will ever become public. But it still is worth paying attention to.

Filed Under: 1st amendment, anti-slapp, defamation, devin nunes, devin's cow, free speech, liz mair, slapp, steven biss, vexatious lawsuits, virginia

Lawsuit: Cops Trashed An Attorney's Home In Retaliation For Successfully Defending A Suspect Against Murder Charges

from the system-never-likes-being-beaten dept

An attorney in Virginia found out what happens when you make cops angry. According to Cathy Reynolds' lawsuit, the Roanoke PD targeted her for some extra attention after she successfully defended her stepson from murder charges.

Prosecutors really wanted Darreonta Reynolds for murder, but security camera footage from the convenience store where the shooting took place appeared to show Reynolds shooting Jean De Dieu Nkurunziza in self-defense when Nkurunziza came after him with a gun. The jury agreed with the defense's case, acquitting Reynolds after ninety minutes of deliberation.

This apparently angered someone somewhere in the Roanoke Police Department because this is what happened next. From the lawsuit [PDF]:

Just three days after D. Reynolds acquittal, Defendants targeted Ms. Reynolds for retaliation. Defendants broke down the front door of Ms. Reynolds‘ home after she had offered to let them in, "searched" Ms. Reynolds' home for an individual by destroying her personal possessions, including those entirely irrelevant to a search for a person and left Ms. Reynolds traumatized, knowing that she could be targeted by police for engaging in constitutionally protected activity.

There may be some open dispute about the motivation for these actions, but the actions themselves can't be denied. The raid drew a crowd, some of whom filmed the PD's violent entry into the unlocked house -- the same house Reynolds had left unlocked and invited the officers to search. It also attracted the attention of a local news crew.

The lawsuit fills out the details of the raid. And the narrative throws a considerable amount of shade at the participating officer with one impeccably worded paragraph.

Despite both screen door and storm door at the front entrance of Ms. Reynolds' home remaining unlocked, SWAT officers used an entry tool attached to the front of an armored vehicle to puncture the screen door and rip it free from Ms. Reynolds' home in its entirety.

In so doing, SWAT officers damaged the screen door beyond repair, heavily damaged the door frame surrounding the front entry, and tore vinyl siding from the exterior of Ms. Reynolds' newly remodeled home.

SWAT officers then entered Ms. Reynolds' home by turning the doorknob of the storm door which remained on Ms. Reynolds' home, still unlocked, and pushing the door open in the manner a door is designed to operate.

Nice.

But that wasn't the end of the destruction. Remember, officers were searching for a 17-year-old murder suspect, not an easily hidden amount of contraband.

During the search of Ms. Reynolds' home, SWAT officers opened and searched all the drawers in Ms. Reynolds' kitchen and detached Ms. Reynolds' appliances from the walls of her home.

SWAT officers flipped the mattresses off all the beds in Ms. Reynolds' home and tore all of the clothes from the closets in the bedroom.

SWAT officers tore the cushions off Ms. Reynolds' furniture and emptied the contents of open soda cans onto the floor.

What the fuck.

On top of that, Reynolds alleges the warrant affidavit was nothing but a bunch of lies stitched together carelessly to give the PD permission to destroy her house -- a warrant rendered unnecessary by Reynolds' consenting to a search hours earlier. The narrative in that affidavit involves an ATF officer, their CI, and the assumption that the most likely place for a wanted murderer to be hanging out would be at the house of an attorney who had just successfully defended someone from a murder charge.

Given the timing and the three hours of apparently gleeful destruction, this certainly looks retaliatory. And, of course, it will be portrayed by the PD as just regular old cop stuff completely unrelated to local prosecutors and PD detectives "losing" a murder case. The end result of these efforts can't be denied. Neither can the violent entry which was captured by citizens' cameras. All that's left is the defensive assertions of "reasonable" officers -- all of which felt tearing apart an attorney's house was the best way to locate a human being.

Filed Under: cathy reynolds, darreonta reynolds, intimidation, police, police brutality, roanoke, search warrant, swat teams, virginia

I Guess They're Not All On The Same Side: Cops Brutalize Soldier For [Checks Notes] Leading Them To A Well-Lit Area

from the whatever-doesn't-kill-you-makes-you-more-of-an-asshole dept

But for video.

The twist? This time the cops brought their own damnation to the party.

Cops like to pretend they and the boys in actual camouflage uniforms are BFFs, united against the constant threat of evil. Cops think they're soldiers. It's unclear whether soldiers think they're cops, but the people sending them orders certainly think they are. I mean, we don't go from zero to "Team USA America: World Police" without some nudges from those on and off the battlefield.

Here's where this all intersects: two Windsor (VA) officers decided the best response to what appears to be a routine traffic stop was a whole lot of violence, both physical and mental. The body cam video shows just how much at least one officer overreacted to a man who just wanted to survive the unexpected interaction with law enforcement.

This is what happened to Caron Nazario -- an Army medic. He bought a new car. And, as everyone knows (including the cops who pulled him over) new cars don't have rear plates. They have temporary paper tags located inside the rear window where they won't be destroyed by, say, any weather whatsoever.

Despite this being common knowledge, these officers (Joe Gutierrez, Daniel Crocker) effected a traffic stop. Things were unnecessarily escalated because Nazario chose to do something everyone -- even cops -- say is a good idea. From the lawsuit [PDF]:

On or around December 5, 2020, at approximately 18:34, Defendant Crocker initiated a traffic stop of Lt. Nazario on US 460 westbound in the Town of Windsor, near the Food Lion, where the speed limit is 35 miles per hour, by activating his emergency lights. The traffic stop was ostensibly for the lack of a rear license plate4 , though the temporary tags were affixed to the back of the vehicle and visible to Crocker during the pursuit. Defendant Gutierrez then joined in the pursuit.

Within seconds, Lt. Nazario submitted to Defendant Crocker’s display of authority and began to slow down. Lt. Nazario also activated his turn signal, to signal his compliance with Crocker’s implied directive to pull over. Crocker admits in real time that Lt. Nazario was complying, by relaying to dispatch that Lt. Nazario was slowing down. Gutierrez, who was listening to Crocker over the radio, was aware of both the reasons for the stop as well as Lt. Nazario’s compliance with Crocker’s signal to slow down and pull over.

It was dark, however, and it appeared to Lt. Nazario that there was no good location in the immediate vicinity to stop safely. So, for the benefit of the officer’s safety and his own, Lt. Nazario continued slowly down US 460, below the posted speed limit, for less than under a mile, until he spotted a well-lighted BP gas station. He pulled over in the parking lot. From the time that Defendant Crocker initiated the traffic stop until the time Lt. Nazario pulled over into the BP parking lot, approximately 1 minute and 40 seconds elapsed and Lt. Nazario had traveled less than a mile.

That's how long it takes for cops to take things to the next level. No one wants to stop on a dark street. Cops who are concerned about their safety don't want to perform traffic stops on dark streets. And cops who are concerned about their safety make the rules. (See also: a shitload of qualified immunity decisions.) So, to make sure everyone was safe, Lt. Nazario found the nearest well-lit area and stopped.

I guess that was the wrong decision. According to police spokespeople, Nazario's careful move towards a lighted area turned this into a felony stop: one that justified whatever paranoia the officers engaged in. There was no pursuit. There was less than two minutes of activated lights before Nazario pulled over and attempted to comply with the officers' shouted commands.

If you paid attention to the videos, you may have noticed (several) concerning details. First, the cops rolled up like they were dealing with a dangerous criminal -- one who led them at low speed to a well-lit, heavily-trafficked area. Then they told him to do things that would endanger his life.

They told him to exit the vehicle. They also told him to keep his hands outside of his vehicle. Lt. Nazario's seatbelt was still fastened. His door was locked. Complying with one order (exit the vehicle) would result in a violation of other orders (keep your hands outside of the vehicle).

You can't win, as Lt. Nazario suspected. He pointed this out.

One officer said non-compliance of the conflicting orders would result in Nazario "riding the lightning," presumably referring to the officer's Taser. (But it also could refer to an instant death sentence, as being strapped into the electric chair is also referred to as "riding the lightning." But we'll stick with the "less lethal" option because we're being overly charitable here.)

Then there's the other comment made by the same officer. Nazario -- recognizing the situation he'd been forced into by an officer who saw fit to escalate before having any facts in hand -- said: "I'm honestly afraid to get out."

He received this response:

"You should be."

So, faced with these limited facts, he stayed in his car. For that, he was pepper sprayed and tased. And for that, these officers were sued.

"Command control," will say any officer worth their suddenly-jeopardized pension. That's why cops charge into scenes with guns drawn and repeated shouts of contradictory commands. What options did Lt. Nazario have? Lower his hands to unlock the door? Move his hands out of the officers' sight to undo his seatbelt? He did all he could to avoid being shot. And, saints be praised, he wasn't. But he was brutalized because Lt. Nazario failed to handcuff himself and teleport into the backseat of the nearest cruiser.

This is American policing. It happens every day. Sometimes, it gets captured on camera. And it shows the cops treat everyone -- even those they consider to be comrades in arms in the fight against universal evil -- to be nothing more than criminals who haven't been convicted yet.

A citizen concerned about their own well-being will make officers safer. Instead of recognizing how everyone benefited from moving the stop to well-lit area, the officers chose to view it as a "felony stop" and reacted as though someone was leading them into danger. But the only person they put in peril was a guy just trying to drive his new car home. Hopefully, the court will see through any assertions about "training and experience" or "officer safety" and send these cops back to face a jury.

Filed Under: caron nazario, daniel crocker, joe guitierrez, police, police brutality, traffic stop, virginia, windsor

Court Tosses Devin Nunes' Silly SLAPP Lawsuit Against CNN

from the finally dept

As you may recall, Rep. Devin Nunes has spent the last few years suing all sorts of critics and journalists, in a vexatious bout of abusing the courts to try to stifle criticism. Most famously, Nunes sued a satirical cow on Twitter (that case is still ongoing). But in December of 2019 he sued CNN. As we noted at the time -- despite a weird column by a media critic at the Washington Post saying that this case was "halfway decent" -- the case seemed like the dumbest Nunes' suit we'd seen so far.

The filing was more performative nonsense, which seemed much more focused on spewing utter rubbish rather than making real defamation arguments. For example, a key part of the defamation claim involved statements on CNN about Nunes' contacts with Lev Parnas, the former Rudy Giuliani henchman who was arrested as part of a plot to get information from Ukraine to embarrass Joe Biden. Nunes' lawsuit argued that CNN defamed him... by getting the date wrong as to when Nunes and Parnas communicated. But... even if the date is wrong, that's not defamation. The case, like most other Nunes' cases, was filed in state court in Virginia, but thankfully, it was kicked up to federal court in NY. Bizarrely, Nunes went on TV claiming that CNN would be so scared to face him in court that the company likely wouldn't show up, talking tough on Fox News about how he was going to have to "track them down" to "hold them accountable." In fact, Nunes' "bet" Sean Hannity that CNN would "run" from this lawsuit and "not show up in court."

I don't think Hannity "took" the bet, but he would have won. CNN went to court and has now won the case. Easily. Let's just say Judge Laura Taylor Swain is not impressed by Nunes and whatever nonsense his lawyer, Steven Biss, presented to the court. Much of the opinion focuses on "choice of law" issues -- i.e., which state's defamation laws are at play here. There are four choices: Virginia, Washington DC, New York, or California. Nunes, basically wanted to apply any law except California's. You might think that's odd, because he (theoretically, at least) "lives" in California. He represents a district in California, and if any "damage" were actually done to his political chances, that damage would be done in California. But Nunes does not like the defamation laws of his own state -- in part because California requires that before you sue someone for defamation you first ask them to retract what they've written.

The judge notes that Nunes made the choice to file this case in Virginia, and it appears that his lawyer, Steven Biss, is so bad at this that he didn't even understand how Virginia's choice of law principles work -- because they make it pretty damn clear, that the proper state's laws to use are... California's.

Nunes makes two arguments against the application of California law, and in support of the application of either New York or Virginia law. In his supplemental briefing, Plaintiff argues that New York law should apply because CNN has a substantial presence there and Ward and Cuomo, who are generally located in New York, were present there when the statements were made. (See docket entry no. 43 at 5-6.) As a result, Plaintiff argues, the allegedly defamatory statements should be deemed to have been published exclusively in New York. As explained above, however, Virginia’s choice of law rules govern and, in Virginia and other lex loci jurisdictions, the place of publication is normally the location where statements are heard and understood. See Katz, 332 F. Supp. 2d at 915. In a multistate, mass media defamation case, it is impractical to determine that specific location; lex loci jurisdictions typically look in multistate circumstances to the place where the plaintiff suffers the most harm, which is usually held to be the state in which the plaintiff is domiciled, presumably based on an assumption that the information would be of most interest to third parties in that state and would be opened and read by a substantial number of persons there. Accordingly, the governing choice of law rule does not contemplate the application of New York state law based on the location of the reporters and the news organization.

In response to the argument that the laws that should be used are where the plaintiff suffered "the most harm" Nunes tried to argue that the real harm was in Virginia (?!?) or DC, not his "home" state of California. That's kinda telling:

Plaintiff further argues that, if the Court were to look to the place where he suffered the greatest injury, the laws of either Virginia or the District of Columbia should apply because that is where he performs his role overseeing the activities of the Intelligence Community.

But the judge basically says "lol, no."

Nunes does not proffer any additional facts that support his conclusory statement that he suffered substantial injury in either Virginia or District of Columbia, much less a greater injury there than in the home state that sends him to Congress as the representative of his district. His Amended Complaint alleges that he is a citizen of California and details his long family ties with, and extensive political service in and for, the state of California and its citizens.

Having considered persuasive authority and the legal and practical considerations underpinning Virginia’s application of the lex loci doctrine, the Court concludes that the Virginia Supreme Court would likely “follow the lead of other lex loci jurisdictions and pinpoint the place of greatest harm in this multistate libel case in the district where the plaintiff was domiciled, absent strong countervailing circumstances.” Hatfill v. Foster, 415 F. Supp. 2d at 365. Plaintiff has not alleged any facts or “strong countervailing circumstances” that militate against finding that Nunes was injured primarily in California, the state of his domicile, and where he stands for election. He has proffered no facts from which the Court could find that there are extraordinary circumstances indicating that he suffered greater harm, i.e., that the allegedly defamatory material garnered greater third-party attention in a single jurisdiction other than his home state. Accordingly, the Court finds that California law governs Plaintiff’s claims.

And, so, California defamation laws apply, and California's laws require you to first ask for a retraction. Nunes tries to argue around that... but not very successfully.

Plaintiff advances four arguments against the application of the retraction statute to his defamation claims. First, he contends that the retraction statute does not apply to the article and television news program at issue because the statute on its face is limited to “daily or weekly news publications [and] radio broadcasts.” (Opp. at 6.) This argument is contrary to the plain language of the retraction statute, which specifically defines “‘[d]aily or weekly news publication’ [to] mean[] a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week.”.... Given that CNN publishes multiple times a day and published the article in question in electronic form, this argument against the statute’s application is without merit.

Next, Plaintiff argues that the retraction statute does not apply to claims of defamation per se.... In support of his argument against the application of the statute to Plaintiff’s claims, Plaintiff cites inapposite cases that do not involve the retraction statute. See Todd v. Lovecruft, No. 19-CV-01751-DMR, 2020 WL 60199, at *20 (N.D. Cal. Jan. 6, 2020) (holding, in case involving application of anti-SLAPP statute to allegations of sexual misconduct, that common law elements of defamation cause of action did not require plaintiff to plead special damages for claim of defamation per se); Clark v. Hidden Valley Lake Ass’n, No. 16-CV-02009-SI, 2018 WL 3069285 (N.D. Cal. Apr. 18, 2018) (upholding damages verdict despite lack of proof of actual damages, where plaintiff had prevailed on claims of defamation per se). Neither of these cases involved news media publication of the allegedly defamatory material, nor did any of the authority Plaintiff cited in this connection construe the retraction statute.

The retraction statute expressly applies to “any action for damages for the publication of a libel in a daily or weekly news publication,” providing that “plaintiff shall only recover special damages unless a correction is demanded and is not published or broadcast,” and does not distinguish or exempt claims of defamation per se....

[....]

Finally, Plaintiff argues that the retraction statute is inapplicable because it violates Virginia’s public policy by “impos[ing] an added statutory requirement in defamation cases that has never been adopted by the Virginia General Assembly.” (Opp. at 8.) Plaintiff offers nothing more to support this assertion, and does not even specify the public policy that he believes would be violated by the application of California law. A mere difference between the respective defamation laws of Virginia and California “does not, ipso facto, justify refusal to adhere to comity principles.”

And thus, the court finds that Nunes failed to follow California defamation law and first demand a retraction. That means he can only plead special damages. "Special damages" are, basically "actual" damages -- a direct monetary loss that the plaintiff can attribute to the defendant's actions. And, guess what? Steven Biss's lawsuits didn't quite have that (because there were no actual damages):

Plaintiff’s AC fails to meet the minimum pleading requirements for special damages established by Rule 9(g). Plaintiff’s original Complaint, filed on December 3, 2019, made no mention of special damages at all.... CNN moved to dismiss the Complaint on substantially the same grounds as those presented in this Motion, thus alerting Plaintiff to CNN’s arguments and to a potentially critical deficiency in the Complaint. (See docket entry no. 15.) Thereafter, Plaintiff amended his Complaint to claim he has “suffered presumed damages and actual damages, including, but not limited to, insult, pain, embarrassment, humiliation, mental suffering, injury to his reputation, special damages, costs, and other out-of-pocket expenses, in the sum of $435,000,000, or such greater amount as is determined by the Jury.”

While the AC uses the phrase “special damages,” refers to “out of pocket expenses,” and includes a dollar amount that encompasses the entire array of damages claims, it provides no further indication of the basis or quantum of any special, or economic, element of his damages claim. A general “monetary demand stated in round numbers is generally not considered to reflect the specific damages required of special damages.” Marino v. Jonke, No. 11 CV 430 VB, 2012 WL 1871623, at *10 (S.D.N.Y. Mar. 30, 2012). Nor do such general allegations explain what the damages comprise or how they are calculated, denying both Defendant and the Court information as to the substance of the complaint. See Barrett v. U.S. Banknote Corp., No. 91 CIV. 7420 (RPP), 1992 WL 232055, at *8 (S.D.N.Y. Sept. 2, 1992) (holding that special damages allegation that proffered neither a specific damages figure nor a method of computing the damages was insufficient). In short, “[d]amage claims of this generality do not constitute adequate pleading of special damages[,]” id., and “without an allegation of special damages, the [AC] does not allege a legally sufficient cause of action [for defamation] under California law.” King v. Am. Broad. Companies, Inc., No. 97 CIV. 4963 (TPG), 1998 WL 665141, at *4 (S.D.N.Y. Sept. 28, 1998) (dismissing Plaintiff’s defamation claims where he failed to both comply with the California retraction statute and allege special damages in the complaint).

Oops.

And, then, of course, there was the utter nonsense of the "conspiracy" claim. Nunes' complaint basically tried to argue that CNN was out to get him, and that's not how any of this works.

Finally, the Defendant argues that Plaintiff’s conspiracy claims must also be dismissed because the AC fails to plead facts sufficient to allege plausibly that CNN engaged in a conspiracy to defame and injure Nunes. Under California law, conspiracy “[s]tanding alone [ ] does no harm and engenders no tort liability.” Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 457 (Cal. 1994). A conspiracy “must be activated by the commission of an actual tort,” and a “bare agreement among two or more persons to harm a third person cannot injure the latter unless and until acts are actually performed pursuant to the agreement.” Id. (internal quotation marks omitted). Specifically, in defamation cases, “plaintiffs have not been allowed to circumvent the statutory limitation[s],” such as those imposed by the retraction statute, by “proceeding on a theory other than defamation.” Fellows v. Nat’l Enquirer, Inc., 721 P.2d 97, 101 (Cal. 1986). In light of Plaintiff’s failure to plead a viable defamation claim, there is no underlying tort to support a viable claim for conspiracy here.

I'm not entirely sure why CNN didn't also move to make use of California's anti-SLAPP law, since they were able to get California's defamation law applied to the case -- because that might have put Nunes in the position of having to pay for CNN's legal fees. But, either way, it's another big (but totally expected) loss for Nunes in his SLAPP crusade.

And... we still don't know who's paying for all of these lawsuits.

Filed Under: 1st amendment, anti-slapp, california, defamation, devin nunes, free speech, new york, slapp, steven biss, virginia
Companies: cnn

Devin Nunes Files Another SLAPP Suit; Sues The Washington Post Again

from the suppressing-speech dept

Devin Nunes is one of the most vocal supporters of Parler, regularly insisting that he supports Parler because Parler supports free speech (of course, as we've highlighted, Parler blocks users quite frequently, contrary to its marketing claims). Of course, Nunes is a free speech hypocrite. As we've highlighted over the last few years, he seems to have an itchy trigger finger when it comes to suing the media and various critics for their free speech, in a variety of SLAPP lawsuits -- with no clear answer yet on who is actually paying for these lawsuits designed to stifle and suppress free speech.

Earlier this year, Nunes sued the Washington Post and reporter Shane Harris in the Eastern District of Virginia. That case was was transferred to the federal district court in DC where it continues to move forward (slowly). Now Nunes, with his regular lawyer Steven Biss, have sued the Washington Post yet again, this time with reporter Ellen Nakashima. Once again, it was filed in the Eastern District of Virginia, meaning that the Washington Post is likely to go through the same process again to try to transfer the case to the DC court.

Like so many Nunes/Biss SLAPP suits, this one is... bad. At issue is the news from right after the election that a Trump loyalist and former Nunes staffer had been made the NSA's General Counsel apparently over the objections of the NSA's own director. This has raised a bunch of alarms for a variety of reasons -- and is seen as evidence that for all of the bullshit talk of "the deep state" being out to get Trump, he's spending his last couple months in office trying to construct his own deep state.

It was Ellen Nakashima at the Washington Post who broke the story of the Ellis appointment, and that's the article that Nunes is now suing over. The lawsuit -- somewhat laughably -- argues that two sentences in the article are defamatory. Neither are defamatory. These are the two sentences:

“In March 2017, [Michael Ellis] gained publicity for his involvement in a questionable episode involving Nunes, who was given access at the White House to intelligence files that Nunes believed would buttress his baseless claims of the Obama administration spying on Trump Tower”

“News reports stated that Ellis was among the White House officials who helped Nunes see the documents — reportedly late at night, earning the episode the nickname ‘the midnight run.’ [Three White House officials tied to sharing of intelligence files with Devin Nunes]

The filing nitpicks at both of these statements, but has a difficult time alleging false statements of fact, which is kind of necessary for there to be defamation. For example, with that second statement while the WaPo article talks about the alleged midnight run, Nunes first says it "never happened." But then almost immediately admits that he did, in fact, go to the White House -- it just wasn't at night. Whether or not the meeting was at night or "when the sun was out," as Nunes claims, is not defamatory. Even more to the point, the WaPo article highlights that its citing "news reports" and that the nighttime aspect of the meeting was "reportedly" what happened, and noting (accurately) that others have referred to this as "the midnight run." In other words, the article appropriately hedged those points and highlighted that it was covering what others were saying.

And then there's this: even though the Washington Post was basing this statement on "news reports" Biss/Nunes tries to argue that those news reports somehow don't count, because they were from the NY Times which is "well-known for spreading false statements." I kid you not.

Upon information and belief, one of the “News reports” referred to in the Article is a “report” manufactured by New York Times reporters Adam Goldman, Matthew Rosenberg and Maggie Haberman, well-known for spreading false statements and defamation on behalf of anonymous “sources” at the FBI and State Department.

This is conspiracy theory fan fiction masquerading as a lawsuit.

There is basically no attempt to get over the actual malice standard necessary for any of this to be defamation of a public figure. The complaint tries to twist some minor potential inaccuracies into evidence of knowledge that the statements were false, but that is not at all supported by the complaint. It argues, ridiculously, that she should have known certain statements from Rep. Adam Schiff should not be trusted because Schiff and his staff "had an axe to grind against Plaintiff and a reason to lie." What? That is not at all how the actual malice standard works.

This is yet another ridiculously weak complaint that is hard to see as anything other than yet another nuisance SLAPP suit from an incredibly thin-skinned Devin Nunes who has now sued multiple media outlets and reporters (not to mention a satirical cow). For all his talk about supporting free speech and being against the suppression of speech, these lawsuits suggest that no one in Congress is more engaged in the blatant suppression of speech than Devin Nunes.

Once again, these kinds of intimidation tactics by lawsuit are exactly why we need a federal anti-SLAPP law (and why Virginia needs to get its act together early next year and pass the anti-SLAPP bill it almost passed earlier this year).

Filed Under: 1st amendment, defamation, devin nunes, ellen nakashima, free speech, slapp, steven biss, virginia
Companies: washington post

Virginia Governor Passes A Long List Of Police Reforms, Including A Ban On No-Knock Warrants

from the just-forty-nine-states-to-go dept

They're not screwing around with police reform in Virginia. Plenty of states and cities are reevaluating the way law enforcement money is spent and how agencies operate following nationwide protests against police brutality, but few of these discussions have resulted in solid changes. There's been more discussion than action. Virginia's governor is all about action, it would appear. As NBC12 reports, a long list of reforms has been signed into law by Governor Ralph Northam.

Governor Northam has been working closely with legislators on these measures since early summer after the deaths of George Floyd and Breonna Taylor sparked unrest.

“Too many families, in Virginia and across our nation, live in fear of being hurt or killed by police,” Governor Northam said. “These new laws represent a tremendous step forward in rebuilding trust between law enforcement and the communities they serve. I am grateful to the legislators and advocates who have worked so hard to make this change happen. Virginia is better, more just, and more equitable with these laws on our books.”

The entire list of signed bills can be viewed here, most of which deal with law enforcement issues. Much of what's included here is surprising -- not because it's groundbreaking, but because it simply didn't exist before now. It's hard to believe it's 2020 and we're just now getting around to doing things like mandating background checks for law enforcement hires and making it a felony for law enforcement officers to engage in sexual relationships with arrestees and inmates.

But there are plenty of other positive changes -- many of which aren't in place elsewhere in the county. With these passages, Virginia becomes only the third state in the nation to ban no-knock warrants. Another passed bill severely restricts what agencies can obtain through the Defense Department's 1033 program, forbidding the acquisition of high caliber firearms and weaponized aircraft. (To be fair, no law enforcement agency has ever acquired a "weaponized aircraft," and it seems unlikely the DoD would approve the transfer of one to local cop shops.)

Also newly enacted are training mandates for new law enforcement officers, including de-escalation techniques and bias awareness. Bad cops will no longer be as shielded from accountability, thanks to changes to the decertification process. The state's Criminal Justice Services Board -- which will now include more diverse viewpoints -- has been granted the power to initiate decertification proceedings, something law enforcement agencies seem very hesitant to do themselves.

This will also trickle down to the local level. Cities and towns are now permitted to form their own civilian review boards. And they won't be completely toothless. They'll be given the power to issue subpoenas and, more importantly, make binding disciplinary decisions that can't be overridden by local law enforcement officials. The state's Attorney General can now initiate lawsuits and pattern/practice investigations into the state's law enforcement agencies, something it apparently was unable to do previously.

Again, while many of these reforms are welcome and necessary, the depressing flipside is that all of this wasn't in place prior to this year. Law enforcement agencies in Virginia (and around the nation) have spent decades operating with minimal oversight. The end result is the mess we've seen everywhere. Years of zero accountability haven't given us better cops or better community relationships. It's given us barrels of apples rotting from inside. Things are slowly starting to turn around. Unfortunately, it's taken thousands of deaths, billions of dollars in lawsuit settlements, and several months of uninterrupted protests to make legislators understand they can no longer maintain the status quo.

Filed Under: 1033 program, criminal justice, no-knock warrants, ralph northam, virginia

Devin Nunes' Lawyer Facing Sanctions, While Nunes Himself May Have To Pay His Opponents' Legal Bills

from the let's-see-how-this-all-works-out dept

It's been over a year since Devin Nunes kicked off his vexatious campaign to sue various critics. As you probably are aware, in that year he's sued news organizations, journalists, political operatives, critics, and, most famously, a satirical internet cow.

Most (though not all) of those lawsuits have been filed in Virginia which has a notoriously weak anti-SLAPP law. He's also filed a lawsuit in Iowa, which has no anti-SLAPP law. He briefly filed one case in California -- which does have an anti-SLAPP law -- but (1) he had his campaign file it rather than himself personally, and then (2) quickly dropped it.

The barrage of frivolous, censorial SLAPP suits in Virginia, though, inspired lawmakers there to pass a good anti-SLAPP law, though the two legislative houses were unable to come to an agreement on a consensus version of the law before their brief 2020 legislative session came to an end, though they promised to take it up again in 2021.

What's interesting is that in a new article about what happened with the law in the Roanoke Times, it's explained that once the law does hopefully pass next year, it may apply back to Nunes' series of vexatious lawsuits -- meaning he might be on the hook for the legal bills of everyone he sued. Normally, laws cannot apply retroactively, but as the article notes, this wouldn't be about making something illegal retroactively, but rather about making a procedural change to how cases play out, meaning it could apply retroactively:

Because the change in law would be procedural rather than substantive, Nunes’ defendants may be able to seek early dismissals and attorneys fees even though his lawsuits were filed before the law was enacted, Edwards said. Those fees could be substantial.

Notably, the article states that while the two legislative houses were debating the specifics, one thing they did agree on was making the attorneys' fees aspect for SLAPP filers mandatory, rather than leaving it to the discretion of the judges.

One part they managed to work out was whether judges would have the option of awarding attorneys fees and court costs to defendants who won motions for early dismissals in a SLAPP suit. The way both measures ended up, judges would be required to award those fees and costs.

And, it might not just be Nunes who's in deep, deep trouble. His lawyer has been the mastermind between not just Nunes' lawsuits, but also a bunch of somewhat interrelated cases from a group of people who all seem somewhat connected. NPR has asked for sanctions against him, and in another case the judge scolded Biss, but chose not to sanction him yet.

However, a new Fresno Bee article (one of the many news orgs targeted by Biss SLAPP suits), notes that judges are increasingly catching on to Biss's SLAPP tactics and he may very well face real sanctions before long:

In dismissing the case for the Russian graduate student in February, Judge Leonie Brinkema of the U.S. District Court in the Eastern District of Virginia warned Biss against filing “further inappropriate pleadings.”

That was the same month the judge in the Fusion GPS case – in the same federal court – told Biss that he should make sure he follows federal law if he files another lawsuit.

Both of those rebukes are “quite unusual,” according to Kevin Martingayle, a former Virginia State Bar president who has worked on ethics or disciplinary committees for over a decade.

“If I got one warning like that from a judge, I would be extremely careful going forward,” Martingayle said.

“I can’t recall seeing it in an order after practicing law for 30 years, which has included some pretty contentious defamation cases,” he added.

In the decades that we've been covering frivolous lawsuits here at Techdirt, it's quite clear that judges are extremely reluctant to issue sanctions against lawyers, even in what seem like fairly egregious cases. They are very restrained and seem to want to assume lawyers just need a few warnings to correct their ways. However, once judges start to pick up on repeated behavior, the sanctions can start coming in pretty quickly -- as we've seen in copyright trolling cases such as Prenda Law and Richard Liebowitz.

Filed Under: anti-slapp, devin nunes, sanctions, slapp, steven biss, virginia