Factual and Procedural Background
Donald Scott was shot and killed by Los Angeles County Deputy Sheriff Gary Spencer during a search of Scott's residence. Spencer believed that Scott was cultivating marijuana and obtained a warrant to search Scott's 200-acre ranch in Ventura County. In a search warrant affidavit, Spencer declared that a confidential informant had reported that Scott was growing several thousand marijuana plants. He also declared that the presence of marijuana was corroborated by an aerial flyover of the ranch.
On the morning of October 2, 1992, 30 law enforcement officers entered the Ventura County ranch and served the warrant. Spencer made a forcible entry into the residence. He shot and killed Scott, who was wielding a firearm. The autopsy revealed that Scott was under the influence of alcohol and Valium. No marijuana plants were found on the property.
The incident was highly publicized and resulted in a federal civil rights action against the Los Angeles County Sheriff, Spencer, and others.
The Ventura County District Attorney conducted an investigation and issued a public report exculpating Spencer from criminal liability. The report, however, questioned the veracity of the search warrant affidavit and suggested that Spencer's primary motivation was to seize the property as part of a drug forfeiture. The report stated: "It is the District Attorney's opinion that that Los Angeles County Sheriff's Department was motivated, at least in part, by a desire to seize and forfeit the ranch for the government.... Based in part upon the possibility of forfeiture, Spencer obtained a search warrant that was not supported by probable cause. This search warrant became Donald Scott's death warrant." The report made numerous recommendations and was forwarded to the grand jury and other law enforcement agencies for their review.
The Sheriff of Los Angeles County conducted his own investigation, exculpated Spencer, but reached other opinions which contradicted those of the Ventura County District Attorney. Reduced to simple terms, two different law enforcement agencies drew different inferences from the facts. We need not, can not, and do not attempt to resolve this dispute. Such a theoretical resolution is irrelevant to the First Amendment issues here tendered.
Spencer filed suit against the County of Ventura, Ventura County District Attorney Michael D. Bradbury, Assistant District Attorney Kevin McGee, Deputy District Attorneys Michael Schwartz and Kevin DeNoce, and District Attorney Investigator Richard Haas. The complaint alleged causes of action for defamation (defamation, libel, and libel per se), violation of the California civil rights statute (Civ. Code, § 52.1), violation of the Information Practices Act of 1977 (Civ. Code, § 1798), invasion of privacy, abuse of process, intentional infliction of emotional distress, violation of Spencer's federal civil rights (42 U.S.C. § 1983), and conspiracy (42 U.S.C. § 1985). The complaint also alleged that petitioners defamed Spencer in the report and in subsequent media interviews, including an appearance on the television show 20/20.
By stipulation, the action was transferred from Los Angeles County to Kern County. Petitioners successfully demurred to five of the causes of action.
During the pendency of the writ proceeding, petitioners brought a special motion to dismiss the complaint pursuant to section 425.16. The trial court ruled that section 425.16 did not apply and denied the motion. Petitioners challenged the ruling by filing the instant mandate petition. (Case No. B101185.) We issued an alternative writ, stayed the trial proceedings, and consolidated both writ petitions.
The Anti-SLAPP Statute
The trial court's reading of the statute was too narrow. Section 425.16, subdivision (b), refers to a "person's right of ... free speech" without qualification. Spencer's assertion that a governmental entity is not a "person" is without merit. Government can only speak through its representatives. A public entity is vicariously liable for the conduct of its employees acting within the scope of their employment, but only to the extent that the employees are liable. (Gov. Code, § 815.2, subd. (a); Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819 [131 Cal.Rptr. 854].) Under the federal civil rights statute, municipalities and counties are also treated as if they were persons. (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 690 [56 L.Ed.2d 611, 635, 98 S.Ct. 2018]; Moor v. County of Alameda (1973) 411 U.S. 693, 717-718 [36 L.Ed.2d 596, 614-615, 93 S.Ct. 1785].) Given these precedents, as well as the compelling interest in the promotion of freedom of speech, the word "person" as used in section 425.16, subdivision (b) must be read to include a governmental entity.
The argument that the First Amendment protects private citizens but not a governmental entity and its representatives was rejected in Nadel v. Regents of University of California (1994) 28 Cal.App.4th 1251 [34 Cal.Rptr.2d 188]. In that case two individuals opposed the construction of a volleyball court on property owned by the University of California and City of Berkeley. The individuals sued the university and university employees for defamation after they were characterized by the defendants as perpetrators of violence. Defendants moved for summary adjudication, asserting that plaintiffs were public figures and could not show "constitutional" malice under New York Times Co. v. Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710, 95 A.L.R.2d 1412].
In Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364 [54 Cal.Rptr.2d 781], two civil engineers sued the City of Oakland after it
Thus, the trial court erred in finding that the anti-SLAPP suit statute did not apply to governmental comment on a matter of public interest. Section 425.16, subdivision (e), provides in pertinent part: "As used in this section, `act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes any written or oral statement or writing made ... in a place open to the public or a public forum in connection with an issue of public interest."
Prima Facie Showing and Burden of Proof
Petitioners made a prima facie showing that the report and media statements related to an official investigation, were made in a public forum, and involved an issue of public interest. Private conversations concerning the report were also protected under the anti-SLAPP statute. (E.g., Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1174 [50 Cal.Rptr.2d 62].) The request that the Los Angeles County Sheriff and other law enforcement agencies investigate the matter was in furtherance of the right to petition government for grievances. (E.g., Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783-784 [54 Cal.Rptr.2d 830] [letter from law firm that it intended to file complaint with state Attorney General subject to section 425.16].)
Petitioners also submitted declarations establishing their good faith belief in the accuracy of the report and media statements. The burden shifted to Spencer to show that he could meet the New York Times test and probably prevail at trial. (§ 425.16, subd. (b); Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 359 [42 Cal.Rptr.2d 464]; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 654-655 [49 Cal.Rptr.2d 620].) Spencer had to show, by competent evidence, that petitioners made the statements with "actual malice," i.e., with the knowledge that the statements were false or made with reckless disregard of the truth. (See fn. 4, ante, p. 1115; see also Garrison v. Louisiana, supra, 379 U.S. 64, 74-75 [13 L.Ed.2d 125, 132-133]; Time v. Hill (1967) 385 U.S. 374, 389-390 [17 L.Ed.2d 456, 467-468, 87 S.Ct. 534].) The opposition papers offered no evidence on the issue.
The uncontradicted evidence shows that petitioners' utterances fall within the purview of section 425.16 as a matter of law.
Federal Civil Rights Claim
Spencer argues that the civil rights cause of action should proceed to trial because (1) a Ventura County Deputy District Attorney assigned to investigate the shooting and who did not share the views of the district attorney, was removed from the investigation and, (2) the Los Angeles County Sheriff exonerated Spencer. Spencer, however, suffered no loss of income and is still employed by the Los Angeles County Sheriff.
To successfully oppose the motion to dismiss, Spencer had to present evidence of "constitutional" malice under New York Times Co. v. Sullivan, (see fn. 4, ante, p. 1115), and show that he suffered damage to a constitutionally protected property interest. (E.g., WMX Technologies, Inc. v. Miller (9th Cir.1996) 80 F.3d 1315 [report by district attorney linking plaintiff to organized crime did not support civil rights claim].) He has not done so. An alleged injury to reputation alone does not state a civil rights claim. (Paul v. Davis (1976) 424 U.S. 693, 712 [47 L.Ed.2d 405, 420, 96 S.Ct. 1155]; Johnson v. Barker (9th Cir.1986) 799 F.2d 1396, 1399.)
Government has a legitimate interest in informing and educating the public. It must be able to communicate. (Shiffrin, Government Speech (1980) 27 UCLA L.Rev. 565, 606.) The record illustrates this principle in action. The Los Angeles County Sheriff's Department criticized petitioners' investigation and issued its own report. The California Attorney General, at the request of the Los Angeles County Sheriff, reviewed the reports and declined to conduct its own investigation. The exchange of ideas would be unduly curtailed if a governmental entity and its representatives could not freely express themselves on matters of public interest.
In Case No. B101185, the alternative writ and stay order are dissolved. Let a peremptory writ of mandate issue directing the trial court to vacate its order and enter a new order granting the motion to dismiss.
In Case No. B098366, the petition for writ of mandate, challenging the orders on the demurrer, is denied as moot.
Petitioners are awarded costs and reasonable attorney fees on the motion to strike and this writ petition, in an amount which is to be determined on motion in the superior court. (§ 425.16, subd. (c); Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th 777, 785; Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383-1384 [46 Cal.Rptr.2d 542].)
Stone (S.J.), P.J., and Gilbert, J., concurred.
A petition for a rehearing was denied October 31, 1996, and the opinion was modified to read as printed above. The petition of real party in interest for review by the Supreme Court was denied January 15, 1997.
The text of the First Amendment does not draw any distinction as to who is the speaker. It provides that "Congress shall make no law ... abridging the freedom of speech." (U.S. Const., 1st Amend.) The historical underpinnings of the First Amendment, important as they may be, should not serve as a straightjacket on the development of constitutional law. (Nowak et al., Constitutional Law, supra, Freedom of Speech, § II, at p. 863.) An appellate court, to the extent that it may do so, should give an interpretation favorable to the exercise of freedom of speech, not its curtailment.