Metropolitan News-Enterprise


Tuesday, June 16, 2015


Page 1


Court Gives New Life to Defamation Claims Against Local Prosecutor

But Ninth Circuit Rejects Civil Rights Cause of Action, Says Defendant Acted in Private Capacity




The Ninth U.S. Circuit Court of Appeals yesterday reinstated defamation- and privacy-related claims against a local prosecutor who is also a conservative political blogger, but upheld a district judge’s dismissal of a claim that he violated the plaintiff’s civil rights under 42 U.S.C. §1983.

Nadia Naffe’s allegations regarding comments by Deputy District Attorney John Frey on Patterico’s Pontifications “compel the conclusion that Frey did not act under color of state law when he blogged and Tweeted about Naffe because he did so for purely personal reasons, and the communications were unrelated to his work as a county prosecutor,” Judge Richard Tallman wrote for the panel.

U.S. District Judge George H. Wu of the Central District of California correctly dismissed the federal claim, Tallman said, but mistakenly placed the burden on the plaintiff to establish that the damages recoverable on her state claims failed to meet the federal diversity threshold. Those claims must be considered on their merits, he said, because the record does not affirmatively establish that they are worth less than $75,000.01, he said.

O’Keefe Tie

The dispute stems from Naffe’s admitted role in an attempt by fellow conservative activist James O’Keefe to wiretap the office of U.S. Rep. Maxine Waters, D-Los Angeles. O’Keefe, who may be best known for his purported undercover investigation into the anti-poverty organization ACORN, was placed on probation as a result of a 2010 incident in which he and three others pled guilty to misdemeanor charges of entering a federal building under false pretenses after being originally charged with attempting to damage the phone system in the office of then-Sen. Mary Landrieu, D-La.

Naffe said her relationship with O’Keefe soured in late 2011 when he allegedly drugged her in an attempt to sexually assault her in a renovated New Jersey barn. Shortly after Naffe filed a criminal harassment complaint against O’Keefe—which did not result in charges—she claims to have faced backlash from Frey, allegedly a friend of O’Keefe, and from the since-deceased conservative media activist Andrew Breitbart.

In her U.S. District Court complaint, filed in 2012, Naffe accused Frey of defaming and threatening her in his official capacity as a prosecutor. Wu, however, said “Frey’s practice of simply (relatively frequently) mentioning the fact that he is a deputy district attorney or prosecutor ... does not transform everything he says on his blog or on Twitter into state action.”

‘Purely Personal Reasons’

Tallman agreed, saying Frey’s statements—including calling her “a liar, illiterate, callous, self-absorbed, despicable, a smear artist, dishonest, and absurd”—were made for “purely personal reasons” and not in his capacity as a deputy district attorney.

An individual acts under color of state law when he exercises power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law,” which Tallman said did not apply to the case at issue.

“Frey is a county prosecutor whose official responsibilities do not include publicly commenting about conservative politics and current events,” the judge said. “While county prosecutors are sometimes authorized to speak on behalf of their employers, Naffe pleads no facts to support her allegation that the county authorized or encouraged Frey’s social and political commentary.”

No Threat to Prosecute

The fact that Frey suggested that some of Naffe’s actions might have violated laws cannot be read as a threat to use his official position, Tallman added, given that he was not accused of contacting law enforcement, opening an investigation file or interviewing witnesses about Naffe’s involvement with O’Keefe.

Naffe’s claims that Frey acted under color of state law ring hollow against the prosecutor’s frequent reminders to readers and followers “that, although he worked for Los Angeles County, he blogged and tweeted only in his personal capacity,” Tallman wrote.

Both Frey’s blog and his Twitter account had prominent disclaimers saying the same he noted.

The case, the judge said, is thus unlike McDade v. West, 223 F.3d 1135 (9th Cir. 2000), in which a district attorney employee used an office database, during working hours, to access information to use against her husband’s ex-wife, or Anderson v. Warner, 451 F.3d, in which a correctional officer flashed identification and claimed to be a “cop” in order to deter bystanders from aiding the plaintiff, whom the defendant allegedly assaulted as a result of a road-rage incident.

Defendants in those cases were held to be acting under color of state law, but Tallman said the more analogous case is Van Ort v. Estate of Stanewich, 92 F.3d 831 (9th Cir. 1996). There, the court held that a sheriff’s deputy who committed a robbery at the plaintiff’s home, while off-duty and out-of-uniform, was not acting under color of law, even though he had become familiar with the home while visiting on official business.

With respect to the jurisdictional issue, which Wu raised sua sponte, Tallman explained that the plaintiff met her pleading burden by alleging damages, including medical expenses, costs of repairing her credit as a result of Frey’s alleged disclosure of private information, emotional distress, reputational damage, and lost job opportunities that would reasonably support a jury verdict in excess of $75,000.

On his blog, Ronald D. Coleman, a New Jersey attorney who represented Frey in the district and appellate courts, said the district judge never reached the defendant’s merits arguments on the state claims, including that they should be stricken under the anti-SLAPP law.

Also representing Frey was Kenneth P. White of the Los Angeles firm Brown, White & Newhouse LLP. The plaintiff was represented by Eugene G. Iredale and Grace Jun of San Diego’s Iredale and Yoo.

Paul B. Beach and John W. Nam of Glendale’s Lawrence Beach Allen & Choi, PC represented Los Angeles County and UCLA professor Eugene Volokh represented amicus the Digital Media Law Project.

The case is Naffe v. Frey, 13-55666.


Copyright 2015, Metropolitan News Company