Attorneys weigh in on police officers’ lawsuit against Kshama Sawant

Two Seattle police officers are suing Kshama Sawant for “having their reputations ruined by an ambitious politician, doing so for personal gain.”

Read the lawsuit, filed by Williams, Kastney and Gibbs.

Former Attorney General Rob McKenna explains the lawsuit to KIRO Radio’s Jason Rantz. Listen here.

Is suing Sawant personally an easier case to make? 

McKenna: I think it’s a pretty easy case to make that the councilmember was not acting in her official capacity when she accused them of being murderers. The analogy that I would use is that if she walked up to one of these officers and punched them in the face, that would not be part of her official duties. And the city would not be required or even allowed to defend her.  Defamation is a different kind of assault. It’s an assault on reputation.

What are the next steps in this case?

McKenna: They filed a complaint with superior court and Sawant will have to file an answer to that complaint. She’ll probably talk to the City Attorney’s office to find out whether they’re going to provide a defense for her — by way of City Attorney or by hiring outside counsel to represent her on the City’s nickel. What could happen is they decline to provide the City Attorney, which I think is appropriate. Instead they’d tell her, ‘You will hire your own attorney and then you can seek reimbursement from the City and we’ll decide whether or not you’re going to get it.’

How serious is this?

McKenna: It’s pretty serious because accusing someone of murder is a very serious statement. In my opinion, the councilmember has crossed over from political rhetoric to defamation. I think the case can possibly be made, even though it is a high standard.  There’s not much to say about someone that’s worse than accusing them of being a murderer. Maybe a rapist or child molester, etc. In this era we live in when people make reckless, inflammatory statements for political purpose –particularly when the statements are made by a public figure with the following that the councilmember has —  I think the law ought to take it seriously.  I think these officers should have a good case here. Having said that, it is a high standard. Proving that she knew the statements were false when she made them is a fairly heavy burden to carry. It may be that the sympathies of a jury or judge will be with the police officers here and they’ll decide, in this case, that she should have known.

Seattle legal analyst Anne Bremner explains defamation to KIRO Radio’s Dori Monson.  Listen here.

Are the police officers public figures?

Bremner: They are public figures and the law says so. There are varying degrees of public figures out there, but you can say, with certainty, that police officers fall in that category.

How does that change things in a defamation lawsuit? 

Bremner:  It basically means that they have a higher standard that they have to prove, in proving defamation. They have to prove actual malice – it’s under a case called New York Times vs Sullivan.  Actual malice means a reckless disregard for the falsity of the statements or the truthfulness of the statements. Malice is a high standard admittedly, but it doesn’t mean they can’t sue. It just means they have a higher burden of proof in terms of the mental element of the one that defamed them.

Is calling the police officer murderers a reckless disregard for the truth by Sawant?

Bremner:  Sure. The fact is that murder means a criminal act. She’s not saying they’re responsible for a death or that they killed or etc. She called them murderers, right?  That basically means she’s accusing them of criminal homicide. They have been cleared by inquest jury, that’s a factual determination by that jury. They haven’t been charged, criminally.  So to call them murderers, clearly, is reckless.

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