Crime Solvers, Mistaken Arrest and Defamation

This post is about an opinion a federal district court judge issued recently in a civil case: Day v. Milam, 2011 WL 5190809 (U.S. District Court for the Eastern District of Michigan 2011).

The case involved Tori Lakshia Day’s suit against Fairfax County Police Officer Russell Milam and Fairfax County Crime Solvers, Inc. in which she claimed that Milam,

deprived her of constitutional rights in violation of 42 U.S. Code § 1983 when he mistakenly identified her as the fugitive named in two arrest warrants and placed her into custody. Day alleges that Milam and Fairfax County Crime Solvers defamed her by causing to be published . . . Day's DMV photograph on Crime Solvers' website under its `Fugitive of the Week’ webpage, and captioning the photograph, `Wanted for distribution of cocaine and contributing to the delinquency of a minor.’

Day v. Milam, supra.

As I’ve noted in earlier posts, § 1983 creates a civil cause of action for those deprive someone of “any rights, privileges, or immunities secured by the Constitution” and laws of the United States. If you’d like to read more about the history of the statute, check out Wikipedia’s entry on the statute and its history. This is how the case arose:

On July 19, 2009, Fairfax County Officer Wilson obtained two arrest warrants for Tori Nikea Day (`Fugitive Day’): (1) a felony warrant for distributing a Schedule II drug to her 14 year old sister; and (2) a misdemeanor warrant for contributing to the delinquency of a minor. . . . Officer Yawornicky sought [Milam’s assistance in finding her]. . . . because [Milam] was responsible for maintaining the warrants and organizing warrant sweeps for the execution of warrants. Yawornicky did not give a middle name for `Tori Day,’ but told Milam only that the fugitive was a black female in her twenties. . . .

Officer Milam performed a computer search of the Fairfax County police database using `Tori Day’ as the search term. His search returned a trespassing arrest for Tori Lakshia Day, a black female aged 38, and her social security number. Without attempting to compare [her] social security number with the one listed in the warrants for Fugitive Day, Milam proceeded to use [Tori Lakshia Day’s] social security number and date of birth to search for further information from the Virginia Department of Motor Vehicles (`DMV’). His DMV records search produced a [photograph of Tori Lakshia Day]. . . .

Milam emailed the DMV photograph of [Tori Lakshia Day] and a description of the charges on the warrants for Fugitive Day to the Fairfax County Police Public Information Office [to have] the information published on Crime Solvers' website. The next day, the Public Information Office emailed the information provided by Milam to Crime Solvers. .. . [which] promptly updated [its website] to include [Tori Lakshia Day’s] photograph and the caption, `Wanted for distribution of cocaine and contributing to the delinquency of a minor.’ [She] was featured as Crime Solvers' `Fugitive of the Week’ [for approximately a week, after which] Milam instructed that the webpage be taken down. . . .

Day v. Milam, supra.

Milam ran Tori Lakshia Day’s “social security number through the Virginia Employment Commission database” and found she worked for a company in Herndon. Day v. Milam, supra. Milam and two other officers went to where Day worked, “identified themselves as officers and asked for `Tori Day.’” Day v. Milam, supra. She came out, Milam told her he had warrants for her arrest, led her outside and, “in sight of . . . her coworkers, removed her purse” while another officer searched her, handcuffed her and put her under arrest. Day v. Milam, supra. She was taken to the Fairfax County Adult Detention Center, where she was searched again and then taken before a magistrate. Day v. Milam, supra.

When the magistrate told her she “was being arrested for giving Percocet to her fourteen year old sister, Day said “she did not have any siblings” and gave him her social security number and birthdate. Day v. Milam, supra. He compared that with the social security number and birthdate of Fugitive Day as shown on the warrants and found Tori Lakshia Day was not the fugitive. Day v. Milam, supra. “Milam immediately removed the handcuffs from Plaintiff Day and de-arrested her.” Day v. Milam, supra. Milam drove her back to work and apologize for the mistake. Day v. Milam, supra.

Both defendants moved for summary judgment which, as I’ve noted in earlier posts, is a procedure that lets a court enter a judgment in which it holds that a trial is not warranted on one or more of the plaintiff’s claims because (i) there are no “material” issues of fact to be decided by a jury and (ii) when the law is applied to the undisputed facts, one side wins. Wikipedia explains more about this, if you’re interested.

The judge first considered Milam’s motion for summary judgment on Day’s § 1983 cause of action, which was based on the mistaken arrest. Day v. Milam, supra. Day claimed the arrest violated the 4th Amendment’s prohibition on “unreasonable” seizures, an arrest constituting a seizure of a person. Day v. Milam, supra. The judge noted (i) that the 4th Amendment “`is not violated by a seizure or arrest supported by probable cause, even though the wrong person is arrested’” and (ii) that probable cause to arrest “exists when the facts and circumstances within an officer's knowledge are sufficient to warrant a prudent man in believing that the suspect had committed the offense.” Day v. Milam, supra (quoting Graham v. Connor, 490 U.S. 386 (1989) & citing Beck v. Ohio, 379 U.S. 89 (1964)).

The judge therefore explained that when officers arrest the wrong person, the “`question is not whether there was probable cause to arrest the mistaken arrestee’” but “`whether probable cause existed to arrest’” the person whom the officers mistook for the arrestee. Day v. Milam, supra (quoting Schultz v. Braga, 290 F. Supp.2d 637 (U.S. District Court for the District of Maryland 2003)). He also noted that courts determine whether an officers conduct was reasonable by applying an objective test that looks at the “totality of the circumstances” involved. Day v. Milam, supra.

The judge then found that Milam had probable cause to arrest Fugitive Day, based on the arrest warrants. Day v. Milam, supra. (Since warrants issue only when they’re based on probable cause, the warrants established probable cause to arrest Fugitive Day.) Day argued that Milam didn’t have probable cause to believe she was Fugitive Day based on a different middle name, different birthdate, different social security number and the difference in their ages. Day v. Milam, supra.

The judge, though, found that Milam’s mistaken arrest was “reasonable” because he was “asked to find a black woman in her twenties named `Tori Day’” and used police databases to locate “a black female named `Tori Day’ with a prior arrest record’”, whom he then arrested. Day v. Milam, supra. The judge found that the description of the fugitive “closely resembles” Tori Lakshia Day, which meant Milam had probable cause for the mistaken arrest; he therefore granted Milam’s motion for summary judgment on her § 1983 cause of action. Day v. Milam, supra.

The judge also granted Milam’s motion for summary judgment on Day’s defamation claim. Day v. Milam, supra. He explained that, normally, for a private person to state a claim for defamation “he need only show `(1) publication by the defendant, (2) of an actionable [communication] with (3) the requisite intent.’” Day v. Milam, supra (quoting Skillstorm, Inc. v. Elec. Data Syst., LLC, 666 F. Supp.2d 610 (E.D. Va. 2009)). But he also noted that when the communication “at issue is one that touches a matter of public concern, `[a]ny one claiming to be defamed by the communication must show actual malice’” to prevail on a defamation claim. Day v. Milam, supra (quoting New York Times v. Sullivan, 376 U.S. 254 (1964)).

The judge granted Milam’s motion for summary judgment for two reasons, one of which was that he found Milam’s “conduct in causing the publication of injurious and false statements concerning Day does not rise to the level of actual malice because Milam reasonably believed, in good faith, that he was pursuing the proper arrestee.” Day v. Milam, supra. The other reason was that the First Amendment insulated Milam’s

conduct from amounting to defamation. . . . [H]is otherwise defamatory communication to Crime Solvers touches a matter of public concern. . . . because the substance of the erroneous publication, and his purpose for publishing it, was for the public welfare. . . . Not only is communicating information about fugitives to the public reasonable, it is precisely the type of communication the law both encourages and protects.

Milam's good faith mistake in target is irrelevant . . . because he caused the communication at issue to be published pursuant to his bona fide responsibilities in which he had a clear interest, serving the public good. Because his mistake was reasonable under the circumstances, Officer Milam's conduct does not rise to the level of actual malice. . . .

Day v. Milam, supra.

The judge also granted Crime Solver’s motion for summary judgment on Day’s claim for defamation against that entity because he found “Crime Solvers [is] immunized from tort liability under the doctrine of charitable immunity.” Day v. Milam, supra. He explained that for the doctrine to apply, an entity must “demonstrate: (1) its charitable status and purpose; (2) that it conducts its affairs in a charitable manner; (3) that the plaintiff was a member of the class of persons who benefitted from defendant's charitable work; and (4) that the defendant exercised ordinary care in the selection and retention of its employees.” Day v. Milam, supra.

The judge then found that Crime Solvers is a charitable organization because it “is not maintained for gain, profit, or advantage, but to promote its aims by collecting revenue to disburse in the form of cash rewards for informational crime tips.” Day v. Milam, supra. And he noted that it conducts its affairs in a charitable manner because after Crime Solvers “fulfills its charitable aims and satisfies operational costs there is nothing left to call profit.” Day v. Milam, supra. He also found that Day was a “beneficiary of Crime Solvers’ charitable aims” because she,

like others in who work in the Fairfax County area, received its community-wide benefits. Indeed, the `value’ that Day received from the efforts of Crime Solvers was a safer workplace. Thus, it is unquestionable that Day was a beneficiary of Crime Solvers at the time it published false and injurious information concerning her on its website. Accordingly, Crime Solvers is entitled to charitable immunity from liability on Day's defamation claims as a matter of law.

Day v. Milam, supra.

So the judge, as I noted earlier, granted both Milam’s and Crime Solvers’ motions for summary judgment . . . which I assume ended the case. Day v. Milam, supra.