Posted: 3/3/2003 6:30:10 PM EDT
|
Posting here because I sorta need an answer quick. Definition from dictionary. libel per se n. broadcast or written publication of a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease (like syphilis) or dishonesty in business. Such claims are considered so obviously harmful that malice need not be proved to obtain a judgment for "general damages," and not just specific losses. Here is the question. If someone makes a false 911 call since this is public record would this qualify as "broadcast or written publication of a false statement" I am not talking an oopps but someone making assumptions based on no fact at all, not someone calling thinking something is a crime, but it is not. Ant help would be appreciated. Loomis Fargo Legal is calling me "middle of this week" to discuss. |
|
I am not a lawyer but I have watched Judge Judy. If you're claiming that someone defaimed you because they called 911 on you I would think you're wrong. If the person honestly thinks you are committing a crime and calls the police on you you have no right to sue them. Basically that would mean that the only ones who could safely call 911 would be judges - anyone else - lay people have to use their own non-professional judgement and be open to libel. If the person did call the police with the intention of defaiming you that's a different case. Say you were out watering your grass and he called in saying that you were outside discharging a firearm. |
|
The long and short of it. Loomis Fargo Armed Guard saw me with a sidearm "Open-Carry" two hours later at a different location (where I was not carrying because it was illegal to carry there) he calls 911 gives my discription and a specific description of the gun saying he saw me with it walking into the theater. Halfway through my movie I got pulled at gunpoint by two LEOs. |
|
I believe that every state with the 911 system has penalties enumerated in state law regarding making a false call. Probably your remedy would be limited to those penalties already provided for. An important element for libel is that the false statement must be received by others, usually by the public, in order for the plaintiff to suffer enough harm to constitute an actionable matter. In other words, if I write on my computer "ADTECHARMS has syphillis from Judge Judy!!" and then delete it before anyone reads it, no libel. If the writing occurs and I read it and my roommate reads it and his friend who is visiting reads it, maybe its libel but your damages are going to be very limited. This is most likely the case with a 911 call--you've seen it, the operator has seen it, the person making the call has seen it (or said it, at any rate), and that's probably it. You can spend a crapload of money on litigation and the judge will award you $1 in nominal damages to show who was right and who was wrong. However, (last example) if I write my computer message and email it to everyone in the state, and your boss who is afraid of Judge Judy's cooties reads it and you are fired because of it, you have an actionable claim because you suffered some real damages. In this case it might actually be worth litigation. Without knowing more about your situation I can't say anything else. Also I'm not really a lawyer (haven't passed the bar yet and 3 months till I graduate from school) but I did sleep at a Holiday Inn last night! EDIT: Just read your post. A close shave for you but you didn't suffer any actionable harms there. Police were acting in good faith, doing their jobs, armored car guy was ignorant of applicable state law but was acting in good faith... realistically the judge isn't going to punish anyone for calling 911 on a guy with a gun, and monetarily reward the guy who was openly carrying a pistol with him to the grocery store (or whatever), no matter what the subtle nuances of open carry laws in your state are. I'm being a pragmatist here--realistically the only people who care about CCW or open carry laws are people like us, the gun nuts. Anyone else is going to think that the guy with the gun who was NOT wearing blue that day is the bad guy. NOT worth any potential litigation you are thinking of, nothing good can come out of that. |
|
Duke Nukem has it right. You neglected to write that the traditional libel per se claims included impugning the virginity of a woman. I am not familiar with NC statutes or common law, but the whole idea of libel per se is avoiding the proof of damages. This is why the claims have to involve some form of deep professional or personal harm as a result of the publication. In my experience, accusation of a crime does not usually preclude proof of damages. Damages to you in this case would depend upon the length of time you were detained, whether your name was published in the newspaper or other news media outlet, whether any significant business opportunities were lost as a result of detention, the cost of your theater ticket, and other facts that I can not determine from the fact pattern you have presented. On the other hand, your case does not look half bad as a harrassment suit. It appears, in general, that Loomis is on the hook if the guard was on the job. There are about a million exceptions to this master-servant rule, but that is a question for an NC lawyer. You might also look into whether you can make a claim for negligent or intentional infliction of emotional distress. It's hard to call here. One could claim that it was negligent of the guard to infer that you had a firearm carried openly, but since that was the basis of the call to 911, it is a hard sell. There is intentional infliction (after all, the guard did not see you with a gun at the theater -- he lied), but there are serious problems with proof in either case; courts have made what seems like an open-and-shut case under these theories very tricky. Duke-Nukem: if you're still following this thread, chime right in. I'm a transactional lawyer, not a litigator, and you're a lot closer to law school than I am. |
|
Quoted: Duke Nukem has it right. You neglected to write that the traditional libel per se claims included impugning the virginity of a woman. I am not familiar with NC statutes or common law, but the whole idea of libel per se is avoiding the proof of damages. This is why the claims have to involve some form of deep professional or personal harm as a result of the publication. In my experience, accusation of a crime does not usually preclude proof of damages. Damages to you in this case would depend upon the length of time you were detained, whether your name was published in the newspaper or other news media outlet, whether any significant business opportunities were lost as a result of detention, the cost of your theater ticket, and other facts that I can not determine from the fact pattern you have presented. On the other hand, your case does not look half bad as a harrassment suit. It appears, in general, that Loomis is on the hook if the guard was on the job. There are about a million exceptions to this master-servant rule, but that is a question for an NC lawyer. You might also look into whether you can make a claim for negligent or intentional infliction of emotional distress. It's hard to call here. One could claim that it was negligent of the guard to infer that you had a firearm carried openly, but since that was the basis of the call to 911, it is a hard sell. There is intentional infliction (after all, the guard did not see you with a gun at the theater -- he lied), but there are serious problems with proof in either case; courts have made what seems like an open-and-shut case under these theories very tricky. Duke-Nukem: if you're still following this thread, chime right in. I'm a transactional lawyer, not a litigator, and you're a lot closer to law school than I am. You're right on about libel per se. The IIED and NEID is doubtful though. Intentional infliction of emotional distress requires conduct of an extrememly outrageous nature that results in severe emotional distress. Doubtful on these facts that a reasonable person would say the Loomis guard acted so outrageously. Negligent infliction of emotional distress is not really a separate tort. It's really about to whom does one owe a duty. Typically, recovery requires that one be in the "zone of danger" of a negligent act done to another and avoided injury but suffered emotional distress as a result. Again, not really applicable here. I'd say you will just have to live with the misunderstanding. You don't need a lawyer for everything. Chalk it up as a cost of open carry and move on. |
|
FOrget the libel aspect, go with criminal. In my state, at least, there are criminal charges for reporting false information via 911 and for making false reports of criminal activity to police/dispatchers. The officers had "good faith" on their detention, and as long as it wasn't unreasonably long (or violent), qualified immunity has them covered. While the security goon can't say the same, typically the civil penalities for unlawful or improper detentions and searches are nominal: these are the $1 to the Plaintiff verdict plus attorney's fees that are great for lawyers, but waste alot of your time. Your best bet would be to try the company that employs the guard. Have your lawyer send them a letter about this, and they may offer a settlement. |
|
OK, here is the long version of what happened and what I have done so far. First, I am not an attorney, but I do study laws and precedent. I am a local politician and I ran in the last election. I lost, but I greatly improved my chances of winning in the next election. The one of the people I am running against (3 at large seats) will find out about this. This will come up and cause me to spend more on the election. I contacted Loomis Fargo after hearing the 911 tape. The driver specifically says he saw me at Old Navy earlier in the day with a gun, and that he saw me go into the movie theater “With a 9mm or .40 Cal Beretta Handgun concealed in the small of his back” Loomis Fargo’s first response was that their guy acted appropriately and in accordance with policy. I responded with the letter in the next post. I got a call the day it was received wanting to deal. I am just trying to figure where I stand and what to demand. One thing I did already tell them was a condition of settling is that the guards involved and the Dispatcher (he was on the tape also) receive training on reporting the facts and not assumptions. As far as monetary damages I told them I did not know. But I figure it would cost 25% - 50% more on my campaign to fix this. As far as criminal charges, it will never happen. DA will not talk to me. Magistrate says to talk to the Chief. Chief says he won’t charge the guy even though he lied. Chief is very anti-gun (But claims he is not since he is a life member of the NRA) |
|
February 6, 2003 In regards to: Letter dated January 3, 2003 Dear , I am responding to your letter dated January 3, 2003 with regards to your internal investigation concerning the incident occurring at the Crossroads Movie Theater on November 7th, 2002. In your letter you stated that you have “determined that our employees acted appropriately.” I have listened to the 911 tape provided by the Cary Police Department pertaining to this incident numerous times. On the tape, your driver can be clearly heard stating that he witnessed me entering the movie theater “with a 9mm or .40 caliber Berretta handgun concealed in the small of my back.” This statement is untrue as evidenced by the Cary Police Department releasing me after removing me from the theater at gunpoint and finding no firearm. I am confident that the responding officers will confirm this for you if you wish to contact the Cary Police Department at (919) 469-4022 (ask for Chief Hunter). The firearm which your driver describes in the aforementioned 911 tape was inside my vehicle. I have a few questions for you regarding this matter. 1. Is it Loomis Fargo policy for Drivers to make false and defaming statements to local Law Enforcement regarding events they witnessed? 2. If it is not policy for your drivers to provide false information to local Law Enforcement, how was it that your employees acted appropriately by providing false and defaming information to the Cary Police? I truly wish to settle this matter between Loomis Fargo and myself without having to resort to the courts; as I am sure you know that method of dispute resolution is very costly in both corporate reputation and monetary expenditures. In your company’s own words, it deals in “the one commodity everyone needs.” Therefore, I am sure your customers would be concerned with any court action claiming your employees gave false information to the Police Department and that these actions were encouraged and found appropriate by Loomis Fargo Management. In your letter you state that your training programs are centered around your officers “Going Home” each and every day. You go on to state that your employees “are trained to constantly be aware of their surroundings and report any suspicious activity during their workday.” I fully support this position. Where I take exception to this is when your officers fail to “observe and report” and make incorrect assumptions that defame a person’s character. I was always trained and trained those under me to report only what was known to be true and to never make assumptions. In short, reporting “just the facts” should be the one goal your company strives to achieve. As is evident in this incident, assumptions can be very damaging, and waste a large amount of time. I look forward to hearing from you within ten (10) business days so that we may discuss this matter further. If I do not hear from you or any of your superiors, I will assume this letter has fallen on deaf ears and will have no other option but to seek legal action. I can be reached after 18:00 EST at and from 12:00-13:00 EST at . Regards, Jonathan Lubecky |
|
No offense meant here, ADTECHARMS, but given the political climate where you live, as evidenced by what the DA has said and what the Chief has said, I would stop making noise and be glad they haven't decided to trump up something against YOU. Make enough noise to piss them off and the DA will push the judge to give the Chief a search warrant, they'll come to your place, kick your door down, and bust you for having PVC pipe, tin foil, and oven cleaner in your residence (bomb making materials). Better hope you don't have any black powder in there! And hope they don't decide to get the feds involved, BATF will just burn down your "compound" and claim you were suicidal. Welcome to the land of the free. Keep your head down. |
|
I am mostly looking for info. I am currently in negotiations with Loomis Fargo. The main reason I am doing this is the point of it all. As for the visit in the middle of the night this happened in a different jurisdiction. I am just trying to gather info so that I don't sound like a moron when I am talking to them. |