Ninth Circuit Court reverses lower court, allows Sawant defamation case to move forward

Twice now U.S. District Court Judge Marsha Pechman has tried to dismiss a defamation case filed against Councilmember Kshama Sawant, and twice the Ninth Circuit Court of Appeals has said no. Twice now the plaintiffs have tried to have the case reassigned to a different judge, and twice the Ninth Circuit has said no.

The case stems from the February 2016 killing of Che Taylor by two SPD officers, Scott Miller and Michael Spaulding. A few days later, Sawant told a crowd of protesters, “The brutal murder of Che Taylor, just a blatant murder at the hands of the police, show[s] how urgently we need to keep building our movement for basic human rights for Black people and brown people.” She went on to say that SPD should be held “accountable for their reprehensible actions, individual actions. We need justice on the individual actions and we need to turn the tide on the systematic police brutality and racial profiling.” Then in June 2017, in the aftermath of the police shooting of Charleena Lyles, Sawant included in her remarks on that incident that “Che Taylor was murdered by the police.” Miller and Spaulding filed a defamation suit against Sawant and the City of Seattle (the charges against the city have since been voluntarily dropped).

Under Washington law, a finding of defamation requires that the remarks in question must be “of and concerning” the plaintiffs. This case turns on whether Sawant’s comments, despite not explicitly naming Miller and Spaulding, could be reasonably interpreted as referring to them.  In an earlier version of their complaint, the plaintiffs did not directly quote Sawant, nor did they provide the external context that a Seattle Times article published the same day as Sawant’s 2016 remarks named the two of them as the officers who shot Taylor. Judge Pechman dismissed the case for having failed to establish that Sawant’s comments were “of and concerning” the plaintiffs, and denied them the opportunity to amend their complaint to address that failure. Miller and Spaulding appealed, and the Ninth Circuit ruled that while they had indeed failed to establish that Sawant’s comments were “of and concerning” them, Pechman erred by not allowing them the opportunity to amend their complaint.

The plaintiffs subsequently submitted an amended complaint with direct quotes from Sawant, and linking the date to the Seattle Times article. Sawant’s attorneys again moved for dismissal on the same grounds, and Judge Pechman again granted it; Miller and Spaulding again appealed.

Judge Pechman had found that “[t]he statements Councilmember Sawant made do not target or single out Plaintiffs or any specific officers, but rather speak to broader issues of police accountability.” She also rejected the plaintiffs’ claim that people, including friends, family and colleagues of the two officers, knew that Sawant’s statement referred to them.

The Ninth Circuit saw it differently, starting with the standard that must be met. At this early point in the case — arguing a motion to dismiss — Sawant’s attorneys claimed that the “of and concerning” requirement must be established “with convincing clarity” under Washington law, while the plaintiffs argued that they only needed to “plausibly allege” that Sawant’s statements were of and concerning them. The appeals court agreed with the plaintiffs. That bar increases for a motion for summary judgment, though the Ninth Circuit also pointed out that the case is being held in federal court and the procedural rules for Washington state courts don’t apply. And it found that unlike the earlier complaint, the amended one this time did, in fact, plausibly allege that Sawant’s statements were in part “of and concerning” Miller and Spaulding.

Judge Pechman had concluded that some listeners or readers would understand Sawant’s comments as communicating only general criticism of SPD, but the Ninth Circuit found that this wasn’t the only plausible interpretation, and under the law if there are multiple plausible interpretations then it’s up to a jury to determine whether defamation occurred.

As to the specifics of whether Sawant’s comments could plausibly be interpreted as referring to the plaintiffs, the Ninth Circuit cited the Washington Supreme Court:

[I]t is not necessary that the person defamed be named in the publication if, by intrinsic reference, the allusion is apparent or if the publication contains matters of description or reference to facts and circumstances from which others may understand that the complainant is the person referred to, or if he is pointed out so that the persons knowing him could and did understand that he was the one referred to in the publication.

The Ninth Circuit concluded:

This principle applies here. Sawant did not identify Plaintiffs by name, but (1) her words can  reasonably be understood as referring to the officers involved in the Taylor shooting, (2) readers and listeners knew that Plaintiffs were the officers involved in the shooting, and (3) those readers and listeners understood Sawant’s remarks to refer to Plaintiffs. These allegations are sufficient to plead that Sawant’s remarks were of and concerning Plaintiffs…

… The district court rejected Plaintiffs’ allegations of extrinsic facts on the ground that “Councilmember Sawant’s words themselves do not intrinsically reference Plaintiffs.” What the district court elides, however, is that a reasonable person could understand Sawant’s remarks as criticism of the officers involved in the Taylor shooting. In doing so, the district court erred.

The appeals court reversed Judge Pechman’s ruling, sending it back down to continue moving forward. It was clear, however, that at the end of the day a jury may still find that Sawant’s comments do not meet the definition of defamation.

The first time the case was appealed, the plaintiffs asked for the case to be reassigned to a different judge, because in their view Judge Pechman had committed herself to a view of the facts that Sawant’s statements could only be referring to the police as a whole. The Ninth Circuit rejected that argument and sent the case back to Pechman.

This time, the plaintiffs made the same request for reassignment, again claiming that Judge Pechman had committed herself to Sawant’s view of the facts, and citing case law where “adamancy” in making erroneous rulings was cause for reassignment. The Ninth Circuit rejected the request again, but issued a “we hear you” statement that could be interpreted as a stern warning for Pechman:

Finally, Plaintiffs have requested that this case be reassigned to a different district judge on remand. In United States v. Reyes, 313 F.3d 1152, 1159 (9th Cir. 2002), we noted that “[a]bsent proof of personal bias on the part of the district judge,” and no such proof has been proffered in this case, “remand to a different judge is proper only under unusual circumstances.” One such “unusual circumstance” is “[a] district judge’s adamance in making erroneous rulings,” which “may justify remand to a different district judge.” United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir. 1986) (citations omitted). While it is true that this is the second appeal from this district judge’s rulings on the sufficiency of the complaint, see footnote 7, supra, in Sears, Roebuck, in which the case was reassigned to a different judge on remand, we noted that “[t]his is the fourth pretrial appeal in this case and the third time the government has appealed from dismissal of the indictment,” id. at 781. We do not believe that, here, these two erroneous rulings on the sufficiency of two different versions of the complaint rise to the level of “adamance.” Suffice it to say that on remand the district court should accept the [third amended complaint] as sufficiently pleading a defamation claim under Washington law. With that observation, Plaintiffs’ request for reassignment is denied.

The oral arguments in front of the Ninth Circuit last month, which you can watch here, are an interesting study in contrasts: the plaintiffs’ low-key attorney citing cases (and the presiding judge taking detailed notes on those cases, which are all prominently cited in the ruling), and Sawant’s attorney with a much more dramatic performance that the three-judge panel clearly was not buying.

The case will now go back to Judge Pechman’s courtroom, where it will proceed to a jury trial unless settled or dismissed for other other reasons. The City of Seattle is paying for Sawant’s legal defense; SCC Insight has a request in to the City Attorney’s Office to find out how much the city has spent to-date on the case. As is typical, the Ninth Circuit’s ruling directs the defendants to pay the plaintiffs’ costs for the appeal.