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Killer! Murderer! Defamation?

If you haven’t killed anyone, being called a murderer is probably as offensive as it is false. But what if you are directly responsible for another person’s death? What if someone calls you a murderer then? Is the accusation of murder so far from true that it’s defamatory?

That appears to be the argument at least one police officer is making in response to some calling him a murderer for being one of three officers responsible for shooting and killing Breonna Taylor.

Police Sergeant John Mattingly was one of three officers involved in the shooting of Breonna Taylor and her boyfriend Kenneth Walker. Walker says he fired in self-defense when the officers burst into the apartment he shared with Taylor. He says they did not announce they were police and that he thought he was defending against a home invasion. Police presented a different account, stating they did announce themselves, and that they fired on Taylor and Walker in response to Walker firing at them.

The Kentucky Attorney General, purportedly relying on grand jury proceedings, said Mattingly and one other officer acted in self-defense and the shooting was justified. At least one grand juror disagrees with that characterization of the grand jury's assessment. The third officer is facing endangerment charges for shots he fired into a neighboring, occupied apartment.

Some have called the officers killers. Some have called them murderers.

Being called a murderer is certainly not a compliment. It may imply that someone killed another person, intentionally, and without justification. That implication, according to an attorney representing Mattingly, isn't just offensive, it's actionable.

According to the Louisville Courier Journal, Mattingly’s attorney “started hinting about lawsuits in June.” The attorney, Todd McMurtry, said that the two of the officers involved who were not charged with any criminal offenses (one of whom is Mattingly) “appear not to have committed any crimes. So, to call them ‘murderers’ is defamatory.”

As an aside, McMurtry is also notable as the attorney who represented Nicholas Sandmann, a former student of Covington Catholic High School who sued various media outlets over their coverage of his interactions with an Indigenous man (Nathan Phillips) in 2019. Sandmann made headlines for reportedly confronting Phillips and allegedly behaving aggressively toward Phillips and other demonstrators while wearing a “Make America Great Again” hat. Sandmann denied any wrongdoing and stated he was treated unfairly in reports about the situation and that he had suffered threats and attacks on his character as a result. He sued several news outlets for defamation. This past summer, he settled lawsuits against The Washington Post and CNN.

It’s not clear who McMurtry would plan to sue on behalf of Sgt. Mattingly. But, as was the case with Sandmann, news outlets may be at more of a risk for the lawsuits than the average citizen weighing in on the matter.

That’s probably due in part to the assumption that news outlets will have insurance and can pay amounts higher than the average protestor. It’s also likely due to the fact that major news publications have a broader reach than the average protestor and therefore can create greater reputational harm if they are spreading false and disparaging information.

Will Mattingly have a strong defamation claim against news outlets or individual reporters or commenters? Probably not, but it depends.

A false accusation of murder generally falls into the category of defamatory statements that are considered defamatory per se, that is, inherently harmful on their face. In some jurisdictions, that can mean the person suing does not have to prove the extent to which their reputation has been harmed. Damages are presumed for the purpose of establishing liability.

Even with damages presumed, Mattingly would face a number of challenges in any of the defamation cases he may bring.

He arguably is a public figure, at least with respect to the killing of Breonna Taylor. As Taylor’s death sparked considerable outrage and attracted widespread attention, statements about the case are likely to be considered matters of public concern. In public figure, public matter defamation cases, the plaintiff typically must prove that the alleged defamer intentionally made false statements or made those statements with reckless disregard for the truth.

If a news outlet, in particular, expressly accused Mattingly of having committed murder, the reporters arguably should know better than to use that term loosely. They could be at risk.

But for the average person, proving intentional falsity would be more difficult.

If we assume for now that the term "murder" refers to the intentional killing of another person without justification, a private person may look at the situation and reach the conclusion the officers acted without justification when they shot and killed Breonna Taylor. It would be more difficult to show that person knowingly made an untrue statement.

Additionally, it could be argued that the gist of being called a murderer isn’t an accusation the officers committed the crime of murder. Rather, the essence of the accusation is that the officers intentionally shot at Taylor and her boyfriend, killing Taylor for no good reason.

Many people genuinely believe there was no justification for killing Taylor, even if it is determined there was a justification under the law.

There also are sure to be arguments over whether the undisputed facts of the situation are any less damaging than the contested “murderer” accusation.

The key, undisputed fact is that Breonna Taylor died at the hands of police during their search process. They are directly responsible for her death, even if they are cleared of criminal conduct. The fact they caused a young woman's death may negatively affect their reputations, but it wouldn't be defamatory because it's true.

Then there are the disputes over facts of that night.

Some will argue the police had no basis to obtain the warrant in the first place. Some will argue no-knock warrants cannot be justified in general and that it was not justified in Taylor’s case. This argument, at least in the court of public opinion, may be bolstered by the fact that no-knock warrants have since been banned in Louisville as a result of Taylor’s death and reports that the order was changed to a knock and announce order.

There are still disputes over whether police announced that they were police. Taylor’s boyfriend said while they heard banging, they did not hear anyone identify themselves as police.

And there’s the fact that the city settled the wrongful death suit with Taylor’s family to the tune of $12 million. Again, while that does not amount to an admission of wrongdoing in a court of law, the court of public opinion may have a different view.

Given that it’s not clear yet who Mattingly plans to sue or what exact statements he would sue over, it’s also not clear what other challenges Mattingly would face in a legal quest to convince people that “all he did was defend himself.”

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