Tennessee Law Enforcement Bulletin

Lawyer not liable for giving newspaper client's version of police/doctor ruckus

A Memphis police motorcycle officer stopped a heart surgeon for speeding. According to the officer, the doctor got out of his car, cursed the officer, grabbed his driver's license out of the officer's hand, pushed the officer, and began to get back into his car. The officer reached into the doctor's car to turn off the ignition and the doctor drove off with the officer hanging out the car window. The doctor's car got up to 50 m.p.h. before it was forced to stop at an intersection. According to the doctor, he never sped. The officer stopped him in retaliation for past personal confrontations. The doctor asked to see the officer's superior and the officer responded by swearing at him, striking him in the chest, and placing him in a choke hold. The doctor tried to flee and the officer jumped on his moving car, sat on the driver's open door and kicked the doctor as he drove along. Upon reaching the Criminal Justice Center, the doctor called Whitworth, his lawyer, neighbor and friend. Whitworth went to the jail and talked to the doctor. Shortly thereafter he was called by a reporter with the Commercial Appeal newspaper and asked questions about the incident. As a result of Whitworth's answers to the reporter's questions, the officer claims the following defamatory information appeared in the Commercial Appeal: the doctor was running in fear after the officer went crazy . . . it looks terrible for the doctor, but he is innocent, he was running for his life . . . the idea that a heart surgeon just hit the officer without provocation is ludicrous . . . the doctor was cooperating with the officer until the officer went crazy . . . the officer started yelling and kicking him; what he was trying to do was go to the precinct to protect himself.

The officer sued Whitworth for libel. (He also sued the doctor for assault and battery and libel.) Whitworth filed a motion for summary judgment claiming that it was his ethical duty as the doctor's attorney to respond to the newspaper reporter's questions concerning his client. He testified in his deposition that he made it clear to the reporter that he had no personal knowledge of the events surrounding the traffic stop, that he was relying upon the statements made to him by the doctor. Whitworth's motion was granted and the officer appealed. Selby v. Dr. Patricio Ilabaca & Whitworth, filed April 29, 1996. In New York Times v. Sullivan, 376 U.S. 254, 279-280 (1964), the United States Supreme Court stated:

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

The civil Court of Appeals held that the officer was a public official within the meaning of the constitutional privilege, pointing out that his duties affected the lives, liberty and property of citizens, and that the doctor viewed the officer as an instrument of government. To defeat the motion for summary judgment, a public official must establish actual malice with convincing clarity. Here Whitworth's uncontradicted deposition testimony was that he told the Commercial Appeal reporter that he had no first-hand knowledge of the events which transpired between the officer and the doctor. "Although (the doctor's) allegation that a police officer stopped him without reason, and proceeded to attack him, is incredible, (the officer's) claim that a heart surgeon assaulted him on Walnut Grove Road in broad daylight, because he received a speeding ticket, is equally amazing," the court concluded. "The evidence in this record does not establish, with convincing clarity, that Whitworth acted with reckless disregard for the truth when he answered questions raised by the Commercial Appeal." The officer's lawsuit against the lawyer is dismissed; the lawsuit against the doctor is ongoing.

New state laws are sure to make life more difficult for DUI offenders . . .

New laws enacted by the Tennessee legislature, already in effect unless otherwise noted: PC 898--Amends TCA 40-29-105 to institute new procedure for restoring citizenship rights of person rendered "infamous" by virtue of being convicted of felony on or after July 1, 1996; allows petitioner to seek restoration of citizenship rights by petitioning circuit court of county where petitioner resides or where conviction for infamous crime occurred; provides that petition for restoration may be filed upon expiration of maximum sentence imposed by court for infamous crime; prohibits persons convicted of murder, rape, treason or voter fraud from having voting rights restored in Tennessee; creates presumption that petition for restoration will be granted and that full citizenship rights of petitioner will be restored; states that presumption may only be overcome by preponderance of evidence that either petitioner is not eligible for restoration or there is good cause to deny petition. Effective July 1, 1996. . . PC 902--Amends TCA Title 39, Chapter 13, Part 2 to add aggravated vehicular homicide as Class A felony offense with same definition as vehicular homicide, if defendant either has two or more prior convictions in any state for DUI, vehicular assault or combination of two offenses, or has one or more prior convictions for vehicular homicide, or has blood/alcohol content of .20% or more at time of offense and has one prior conviction for either DUI or vehicular assault; provides that if defendant is convicted of vehicular homicide, jury must separately consider whether defendant has requisite number and types of prior offenses and/or level of blood/alcohol concentration necessary to constitute offense of aggravated vehicular homicide. Effective July 1, 1996. . . PC 903--Amends TCA Title 40, Chapter 6, Part 3 to add "pen register" to list of definitions under Wiretapping and Electronic Surveillance Act of 1994; defines "pen register" as device which records or decodes electronic or other impulses which identify numbers dialed or otherwise transmitted on telephone line to which such device is attached; provides that term does not include any device used by provider or customer of wire or electronic communications service for billing, or recording as incident to billing, for communication services provided, or any device used by customer of wire communication service for cost accounting or other like purposes in ordinary course of business; allows any circuit or criminal court judge to issue pen register or trap and trace order under Wiretapping and Electronic Surveillance Act of 1994, pursuant to provisions and requirements of 18 USC 3123 et seq. Effective July 1, 1996.

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