Wednesday, June 1, 2011
Page 3
C.A. Rejects CHP Officer’s Anti-SLAPP Motion
By a MetNews Staff Writer
A suit over the dissemination of gruesome photos of a fatal traffic collision does not threaten the free speech rights of a California Highway Patrol officer who admits having sent them to friends via his personal email account, the Fourth District Court of Appeal has ruled.
Div. Three held last Wednesday, in an unpublished opinion by Justice Eileen C. Moore, that Aaron Reich could not show that his emailing of photos of Nicole “Nikki” Catsouras’ corpse was related to free speech on a public issue, within the meaning of the anti-SLAPP statute. Reich said he had sent the photos to friends and acquaintances outside the CHP as part of a warning of the hazards of drunk driving.
The ruling was the panel’s second in favor of Catsaouras’ parents, who are suing Reich and Thomas O’Donnell, as well as the CHP, for invasion of privacy, intentional infliction of emotional distress, and negligence. The justices ruled in February of last year that the plaintiffs had a common law privacy interest, subject to certain limits, with regard to the grisly images, and that the officers’ demurrers should have been overruled.
Catsaouras was decapitated on Halloween in 2006 when the Porsche 911 she was driving at close to 100 miles per hour clipped another vehicle, tumbled over a median and smashed into a concrete tollbooth.
The CHP officers at the scene photographed it, pursuant to department policy. Reich, a dispatch supervisor who viewed the hotos on the agency’s computer system and requested copies, and O’Donnell, who claims that he did nothing more than send copies to his personal email account, are accused of sending the photos out solely for “shock value.”
The images spread virally to more than 2,500 websites, and users at large sent Catsouras’ family e-mails containing the photographs, including one entitled “Woo Hoo Daddy” that said, “Hey Daddy I’m still alive.”
Other users painted Catsouras’ life in a false light, including websites describing her as a “stupid bitch,” a “swinger” and a “spoiled rich girl [who] deserved it.”
The CHP, although contesting liability, has acknowledged that dissemination of official photos for personal purposes violates policy.
In a declaration in support of his anti-SLAPP motion, Reich declared that he sent the emails along with a message that “reiterated the dangers of drinking and driving,” and told the recipients “that these were the hazards of driving under the influence, and for them please to be safe.”
Judge Derek W. Hunt sustained an evidentiary objection to that portion of the declaration, and denied the motion.
Moore, writing for the Court of Appeal, said there was no threat to Reich’s free speech rights because the plaintiffs were suing over the distribution of the photos, not any accompanying message.
Reich, she said, cannot argue on appeal that the purported message and the photos were linked. That argument is precluded because the trial judge struck the relevant portion of the declaration and the defendant did not challenge that ruling in his opening brief, the justice said.
Moore also noted that Reich’s counsel was unable to produce the emails at the hearing on the anti-SLAPP motion.
“All we have before us is Reich’s admission that he e-mailed photographs of the decapitated corpse to friends and family members,” she wrote. “As the trial court pointed out, we do not even have copies of the photographs themselves and have no reason to presume that the photographs standing alone somehow communicate that the death was the result of a drunk driving accident. Any editorial comments that Reich may have made with respect to the photographs are not before us. In short, there is no evidence at this point that the e-mails were sent to communicate on the topic of drunk driving.”
The case is Catsaouras v. Reich, G044110.
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