bob wrote: ↑
Sat Aug 10, 2019 3:39 pm
Arpaio has another defamation suit pending; that one is before Lamberth. But I predict the same results as here.
Speaking of that case, after a hearing, Larry/Arpaio filed a "notice of bench brief" as he tries to avoid having the case dismissed because of a lack of actual malice. Malice is difficult to prove when the story was corrected.
https://www.courtlistener.com/recap/gov ... 9.49.0.pdf
The defendants filed a reply, remembering to mention that the "notice" is not authorized by the rules. They also seem to think that the plaintiffs misrepresented the holding in NYT v Sullivan.
https://www.courtlistener.com/recap/gov ... 51.0_2.pdf
In any event, Plaintiff fundamentally mischaracterizes the seminal holding of New York Times v. Sullivan by quoting this passage from the Court’s opinion out of context: “[g]ood motives and belief in truth do not [even] negate an inference of malice, but are relevant only in mitigation of punitive damages if the jury chooses to accord them weight.” New York Times v. Sullivan, 376 U.S. 254, 267 (1964). That was not the Court’s holding, but rather its summary of Alabama law, which the Court went on to hold was unconstitutional because it did not provide adequate protection for free speech. Id
Now one thing I was wondering about was Arpaio/Klayman's claim in the brief:
First, and most obviously, this Court, after discovery was undertaken, granted the defendants’ motion for summary judgment – a much higher threshold for a plaintiff to overcome in order for a case to continue – not on a Fed. R. Civ. P. Rule 12(b)(6) motion to dismiss, which is what Defendants in this case prematurely asks of this Court. In Lohrenz, the parties completed discovery, and the Court was able to rely on witness testimony and expert witness testimony. Id. at 36.
However, in Lohrenz v. Donnelly, 223 F. Supp. 2d 25, 45 (D.D.C. 2002)
at 36, Lamberth wrote (in the part regarding the qualification of an expert):
Lohrenz v. Donnelly wrote:It is clear that the plaintiff may not establish malice, a subjective state of mind, solely through expert testimony, and that an expert in piloting F-14s and training F-14 pilots may not render legal opinions concerning defendants' alleged malicious or deceptive motives.
And in the footnotes:
Pl. Cross-Mot. for Summary Judgment, Exh. 1 (Nesby Decl.) at 13. As previously discussed, the Court does not accept any part of Captain Nesby's Declaration which might be construed as a legal conclusion. Captain Nesby may be qualified as an expert to interpret, explain, and compare the training records of an F-14 pilot, but he is not qualified to make any conclusions about the subjective intent of defendants in any legal sense. See supra § II.A.
If I am reading these correctly, it sounds like Larry is claiming that the court heard expert testimony in which to base his decision, but the granting of summary judgment was based on whether the plaintiff was a limited-purpose public figure and whether actual malice could be proven. These are legal determinations, to which the court stated Captain Nesby is not qualified.
IANAL, but it sounds like he misrepresented Lamberth's ruling. That does not seem very smart.