Source: Rhino Times Greensboro

Judge Dismisses Libel Lawsuit Against Rhino

by John Hammer

March 31, 2011

Last week North Carolina Superior Court Judge Edgar B. Gregory notified the attorneys in the case that he would sign an order dismissing all claims against The Rhinoceros Times, John Hammer, William E.D. Hammer and Jerry Bledsoe made in the libel lawsuit filed by Greensboro Police Capt. Brian James and Officer Julius Fulmore.

James and Fulmore were also ordered to pay the costs of the defendants. The costs don’t include attorney fees but amount to about $3,800 in expenses for depositions and mediation.

The Rhino Times was well represented in this case by Seth Cohen of Smith, James, Rowlett & Cohen, who said, “This is a great victory, not just for The Rhino Times, but for the Greensboro News & Record and every other newspaper published in the state and nation. If reporters are not free to investigate public officials and report on what they discover, we are all in big trouble. A free press is the backbone of a free nation.”

It’s not entirely over because, although Judge Gregory has ordered all claims dismissed on summary judgment because “this court concludes that there are no genuine issues of material fact as to any of the five claims contained in the Complaint of the Plaintiffs and the Defendants are entitled to Summary Judgment as a matter of law,” James and Fulmore still have the right to appeal.

They appealed a previous ruling in the case regarding discovery and their appeal was denied by a unanimous decision of the North Carolina Court of Appeals for being premature.

James and Fulmore, represented by Amiel Rossabi, on Nov. 19, 2007 filed a lawsuit for defamation against Jerry Bledsoe, John Hammer, William E.D. Hammer, Hammer Publications and The Rhinoceros Times for 23 statements in the series “Cops in Black & White,” and for one statement in a column written by John Hammer about former City Manager Mitch Johnson, the Greensboro City Council and the Police Department. At the time, the series, written by Bledsoe, was still being published in The Rhino Times, debunking the charges of racism made against former Police Chief David Wray by Johnson.

Black police officers under Wray claimed they were being unfairly investigated because of their race. Much of the series gave the background for the investigations that black officers were claiming were based on race, and Bledsoe showed that there were legitimate reasons for the investigations.

One of the statements for which we were being sued was “James Hinson had been Brian James’ training coach when he joined the department.” The apparent theory by the plaintiffs, which was revealed during the depositions, was that Hinson had such a bad reputation that being associated with him even as a “training coach,” a relationship over which James would not have had control, was defamatory.

What makes this accusation even more interesting is that, according to the lawsuit, being associated with Hinson is defamatory because of his reputation in the community. But according to the Greensboro Police Department, Hinson has such a stellar record and reputation as a police officer he was recently promoted to captain – the third highest rank in the police department.

People threaten to sue newspapers all the time, but considering how many millions of words are published every year there are a relatively small number of lawsuits filed. One reason is that the standards to win a lawsuit against a newspaper are so high. For a public figure or a public official, and police officers are considered public officials, to prove defamation by a newspaper, the public official has to prove that the newspaper knew the statement was false or showed “reckless disregard for the truth.”

The definition of “reckless disregard” is even higher than most people imagine. In the US Supreme Court case that established the standard – New York Times Co. v. Sullivan – The New York Times was being sued for an advertisement it ran, and The New York Times had previously published an article that proved the allegations in the advertisement were false. What couldn’t be proven was that anyone who participated in publishing the advertisement had read the articles or knew the information in the ad was false, even though it was readily available to them.

When asked about Hinson being the training coach for James, in his sworn deposition former Chief Wray said he told Bledsoe that Hinson had been James’ training coach because he had been told that by Tim Bellamy, who was an assistant chief under Wray, and by Randall Brady, who was Wray’s deputy police chief. Wray said that he had no reason to believe otherwise.

In this case the vast majority of the information in the 92-part series came from police documents. The plaintiffs questioned whether the documents that Bledsoe and The Rhino Times produced were legitimate, and the court ordered the City of Greensboro to release copies of the reports. The reports from which the articles were written were identical to the copies released by the City of Greensboro under court order, except the city copies were on city letterhead and the copies in possession of The Rhino Times and Bledsoe were not.

Both Fulmore and James denied under oath that the reports in possession of Bledsoe were copies of the actual reports, even though they were identical except for the fact that they were not copied on city letterhead.

It was an unusual lawsuit from the beginning. A pretrial hearing included testimony from North Carolina Senior Deputy Attorney General Jim Coman, who earlier in his legal career was an assistant district attorney in Guilford County, and a current Guilford County assistant district attorney, Walt Jones, also testified.

Rossabi had asked for every document, every interview, and every legal pad of notes in Bledsoe’s possession that was used in writing the series, which at that time was about 50 installments. The hearing was to determine if Rossabi had a right to all the information that went into the entire series or just the information that was used to write the statements for which The Rhino was being sued.

The court ruled in favor of The Rhino Times and Rossabi appealed that ruling to the North Carolina Court of Appeals. At that hearing Rossabi argued that The Rhino Times was not a newspaper because it contained both fact and opinion. Court of Appeals Judge Bob Hunter asked if The New York Times was a newspaper. Rossabi said that it was.

Bledsoe had hours of taped interviews and bins full of documents, the overwhelming majority of which had nothing to do with James or Fulmore.

At the Court of Appeals, Rossabi said that if he could find other mistakes Bledsoe had made it would help him make his case. Cohen said it was just a fishing expedition.

The Court of Appeals ruled against Rossabi because his motion was premature and discovery was limited to information about the 23 statements in Cops in Black & White and the one statement in a column by John Hammer.

One of the last depositions taken before motions were heard was from Police Officer Scott Sanders, and for that deposition five attorneys were present – Rossabi, Cohen, Assistant City Attorney Jim Clark and Smith Moore Leatherwood attorney Allen Duncan representing the city, and John Vermitsky representing Sanders. With five attorneys in the room, a half hour deposition can easily stretch into a half-day affair.

There was also a hearing by telephone in order to handle motions before the hearing on the motion for summary judgment. Judge Albert Diaz heard the motions just before he was confirmed to serve on the US Fourth Circuit Court of Appeals.

The telephone hearing also involved five attorneys, if you include Judge Diaz. Involved in the conference call were Cohen, Rossabi, Clark and Ken Keller, who was representing Wray. The telephone hearing seemed to work well even with four attorneys and a judge sharing phone time. The issues mainly had to do with the rules for upcoming depositions.

The statement for which John Hammer was being sued was not written by John Hammer and never appeared in The Rhino Times. In the lawsuit the names of Fulmore and James were inserted into a broad statement in a column John Hammer did write. The entire statement is, “The City Council could demand that more information be released that would explain why police officers who hang out with prostitutes and drug dealers are still on the police force, while the officers who investigate such behavior are forced to retire, resign or are put on administrative leave.” In the lawsuit the statement reads “[Lieutenant Brian James and Officer Julius Fulmore are] ‘police officers who hang out with prostitutes and drug dealers’ and remain on the police force, while other officers are forced to retire.”

So in that case The Rhino Times was being sued for a statement that never appeared in the newspaper, but which the plaintiffs said was false and defamatory.

Judge Gregory had boxes of documents to go through because each of the statements had to be handled individually. The memorandum in support of the motion for summary judgment by Cohen is 55 pages long.

Another of the statements for which The Rhinoceros Times was being sued was, “Fulmore denied [what the prostitute told the detectives about Fulmore bringing crack cocaine to a hotel room and having sex with the prostitute], although he later failed a polygraph test.”

One reason this was defamatory, according to the plaintiffs, is because you don’t fail a polygraph, you either show deception or you don’t, although failed is the commonly used term for showed deception.

The Greensboro police report that Bledsoe had quoted in the Cops in Black & White series stated that Fulmore showed deception when he answered no on one question about having sex with the prostitute on the night in question, and the other two were inconclusive.

The actual report, which had to be subpoenaed from the City of Winston-Salem, where the test was administered, states that Fulmore showed deception when he answered no on all three questions about having sex with the prostitute in a particular motel on a particular night and having drugs or drug paraphernalia in his possession that night.

Fulmore in his deposition insisted that he had told the truth, which made the statement false. But the report by Bledsoe remains true. Fulmore did fail the polygraph test and he actually failed it worse than Bledsoe reported.

Judge Gregory agreed that The Rhino Times did not defame Fulmore by correctly reporting that he had failed a polygraph test.

The order to dismiss has not been signed, and after the order is signed Fulmore and James have 30 days to appeal the dismissal.