Posted: 3/3/2003 6:27:43 PM EDT
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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. |
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So, what's your question? Has someone called 911 on you? Are you saying sombody called the cops on you when you were doing something completely legal? Did they do it just to harass you or what? If someone continues to call the authorities when they have no basis, the authorities should soon let them know what trouble they could get themselves into. You may have a basis for a complaint (counter complaint?) but I don't think "Libel" is it. I think we need more info. |
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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) |
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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 |
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Very interesting fact pattern. Two questions: 1) Regarding the driver who made the report against you, how is it that he saw you at Old Navy earlier in the day, and then later that same day at the theater? I assume he was on duty both times. Was it pure serendipity, or does this person know you and decided to follow you around? 2) I assume you did not have the pistol on your person during the purported Old Navy sighting either. Am I correct? The Old Navy part of the story is where you could hang up. If the driver didn't know you, just happened to be in the vicinity when you were at Old Navy, and saw you with a pistol in the small of your back, then just happened to see you again later that day, recognized you, and BELIEVED you were still armed without seeing the weapon again, you're probably not going to get any damages here. Your claim, under the facts as I present them, essentially is that the driver had to confirm your possession of a weapon the second time before calling the cops. Most reasonable persons would disagree with such a claim. If he saw you armed earlier in the day and just happened upon you again at the theater, most would believe it a reasonably prudent move to call the cops and let them sort it out (which appears to be exactly what happened). If, on the other hand, you were not armed at the Old Navy store earlier in the day, then why would the driver think you were armed at the theater? Again, unless he knew you and deliberately tracked and made a false report against you at the theater, AND YOU CAN PROVE THAT TO A JURY WITH SUFFICIENT EVIDENCE, you're going to have a tough time convincing a jury that the driver simply picked you out of a crowd and called in a gun report on you. This whole thing doesn't look good for you, even if you did nothing wrong. You could take a crack at a civil suit in an effort to clear your name and, at the same time, obtain some compensation for the theater incident, but I don't know about your chances. A jury needs to believe that the driver knew you didn't have a gun and called in a false report. While no malice may be required to prove libel per se, certainly knowledge of the falsity of the libelous statement is required. If the driver claims he saw you armed earlier in the day and THOUGHT he saw a gun when you went into the theater later, you lose. You also lose because you'll have to explain, in a very public forum, either why you were armed in public; whether you have have a concealed carry permit; and if you don't have a CC permit, then why you were armed at all. The case will ultimately turn into an examination of YOUR credibility over a potentially illegal carry, which is exactly what you're worried will harm you politically. I've rambled around a bit here, but I think you need to weigh cost against benefit here. FWIW |