After plaintiff drove away the resident called police, reporting that he had witnessed an attempt by plaintiff to abduct the child. Local television coverage ensued, reporting that police were "on the hunt" for a suspect "who tried to kidnap a year-old, had it not been for a neighbor who intervened.
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Despite the fact that six days had passed and the officer had the child's name and address, he had not interviewed the child, plaintiff, or the complaining citizen. Rather, the officer relied solely on this citizen's statement to the " dispatcher" in obtaining the arrest warrant.
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Plaintiff was arrested on the warrant, and he alleged that the officer then published a notice on the county's website which reported that an arrest had been made in the local abduction case. The notice identified plaintiff by name, contained a photograph of him, and represented that he had been arrested in connection with the abduction of a year-old child. A local television station re-published the story and photograph from the county's website. Other newspapers in Virginia published articles based on the county web site information. Plaintiff was held in jail for 41 days.
When requested by plaintiff's counsel, an Assistant Commonwealth's Attorney spoke with the child and verified plaintiff's version of the incident. The charges were dismissed by nolle prosequi, and on petition the circuit court expunged records of the arrest; however, the notice on the county's website concerning plaintiff's arrest remained there for several months afterward.
Plaintiff sued the complaining citizen and the police officer for malicious prosecution, false imprisonment, and defamation. The circuit court sustained the officer's demurrer as to all three claims, and this appeal followed. A demurrer tests the legal sufficiency of facts alleged in pleadings, not the strength of proof.
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On appeal, in reviewing a ruling of a circuit court sustaining a demurrer, all facts properly pleaded in the complaint are accepted as true, as are all reasonable and fair inferences that may be drawn from those facts. Additionally, when a circuit court sustains a demurrer to an amended complaint that does not incorporate or refer to any of the allegations that were set forth in a prior compliant, only the allegations contained in the amended pleading to which the demurrer was sustained are considered.
In an action for malicious prosecution, the plaintiff must prove four elements: that the prosecution was 1 malicious; 2 instituted by or with the cooperation of the defendant; 3 without probable cause; and 4 terminated in a manner not unfavorable to the plaintiff. Actions for malicious prosecution arising from criminal proceedings are not favored in Virginia and the requirements for maintaining such actions are more stringent that those applied to other tort cases to ensure that criminal prosecutions are brought in appropriate cases without fear of reprisal by civil actions.
The amended complaint contains the express statement that the prosecution was malicious and instituted by the defendants without probable cause. However, a demurrer does not admit the correctness of the pleader's conclusions of law. Probable cause has been defined as knowledge of such a state of facts and circumstances as excite the belief in a reasonable mind, acting on such facts and circumstances, that the plaintiff is guilty of the crime of which he is suspected.
Whether probable cause existed is determined as of the time when the action complained of was taken. Viewing plaintiff's allegations as a whole, he did not allege facts sufficient to support the legal conclusion that the officer did not have probable case to seek the arrest warrant or that the officer, rather than the complaining citizen, was motivated by any personal or generalized animus toward plaintiff. Police may rely on the statement of a reported eyewitness as establishing probable cause to seek an arrest.
In this case, the officer relied on the report of a dispatcher who stated that the complaining citizen witnessed plaintiff attempting to kidnap a year-old child. The officer had no reason to believe that the report was false. While he did not perform any further investigation prior to seeking the arrest warrant from the magistrate, this fact alone does not establish that he acted in bad faith or with malice toward plaintiff. Accordingly, the circumstances known to the officer as alleged were sufficient to excite the belief in a reasonable mind that there was probable cause to believe that plaintiff had committed the offense of abduction, and, thus, the circuit court did not err in sustaining the officer's demurrer to the claim against him for malicious prosecution.
False imprisonment is the restraint of one's liberty without any sufficient legal excuse. If the plaintiff's arrest was lawful, the plaintiff cannot prevail on a claim of false imprisonment. If a warrant is regular and valid, then no action for false imprisonment could have been maintained if the prisoner was taken in due course to the magistrate and there admitted to bail or imprisoned regularly upon due order of commitment from him.
Plaintiff's allegation that the officer knew, or with minimal diligence could have easily discovered, that he did not commit any crime is not sufficient to establish a prima facie case of false imprisonment. The officer had sufficient, if minimal, probable cause to obtain the warrant, properly issued by the magistrate, under which plaintiff was arrested. Thus the officer did not falsely imprison plaintiff, and the circuit court did not err in sustaining the demurrer to the claim for false imprisonment. In order to assert a claim of defamation, a plaintiff must first show that defendant has published a false factual statement that concerns and harms the plaintiff or the plaintiff's reputation.
The plaintiff also must show that the defendant knew that the statement was false, or, believing that the statement was true, lacked a reasonable basis for such belief, or acted negligently in failing to determine the facts on which the publication was based.
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When a plaintiff asserts that the defendant acted negligently, the plaintiff must further prove that the defamatory statement made apparent a substantial danger to the plaintiff's reputation. Expressions of opinion are constitutionally protected and are not actionable as defamation. Therefore, in evaluating a demurrer to a claim of defamation, a trial court must determine as a matter of law whether the allegedly defamatory statements contain provably false factual statements or are merely statements of opinion.
When a statement is relative in nature and depends largely on a speaker's view-point, that statement is an expression of opinion. Factual statements made in support of an opinion, however, can form the basis for a defamation action.
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In determining whether a statement is one of fact or opinion, a court may not isolate one portion of the statement at issue from another portion of the statement. Rather, a court must consider the statement as a whole. In considering whether a plaintiff has adequately pled a cause of action for defamation, the court must evaluate all of the statements attributed to the defendant and determine whether, taken as a whole, a jury could find that defendant knew or should have known that the factual elements of the statements were false and defamatory.
In this case plaintiff alleged that the officer made several false factual statements, including that he "approached" the child, "ordered the victim into the van;" that a neighbor "foiled" his attempt to "escape with the child;" that plaintiff had been arrested in connection with the abduction of a year-old "that occurred last Friday.
The complaint alleges that the officer knew that the statements he made were false, that he acted recklessly in making the statements, that he lacked any good faith basis for the statements, and that he knew the statements made on the county website would be re-published by the news organizations. When considered individually, many of the statements attributed to the officer cannot sustain a claim of defamation because they are objectively true when considered in the light of other allegations within the amended complaint.
However, other statements such as the assertion that plaintiff "approached" the child, are subject to being proven false, and a jury could find that the officer was negligent in making these statements based solely upon the report without conducting any follow-up investigation. It cannot be said that the statements attributed to the officer by one of the newspapers are objectively true or matters purely of opinion when considered under the standard applicable to the sustaining or overruling of a demurrer to a claim for defamation.
The complaint specifically alleges that the officer had no basis for asserting that plaintiff was "angry" or "yelling" at the child. Like-wise, the statement that it was a "good day since we got this guy in custody" could, in light of the other statements attributed to the officer, be considered an implicit assertion of plaintiff's guilt of, or a least a propensity to commit, serious offenses against children.
In addition to proving that the officer knew or should have known that the aforementioned statements concerning plaintiff were false, to be defamatory they also must concern and harm plaintiff or his reputation.
The false accusation of the commission of a criminal act generally is sufficient to establish an injury to the plaintiff's reputation. Indeed, an action for defamation based upon an accusation of criminal conduct may be maintained even when the plaintiff actually has been charged with the offense, entered a plea of no contest, and is convicted and sentenced for the crime. Whether, and if so, to what extent a false accusation has injured the plaintiff or his reputation generally is a matter for the jury.
Here, the allegations of the amended complaint adequately allege an injury to plaintiff's reputation arising from the officer's statements. Given the posture of this appeal, the issue is not whether plaintiff will be able to establish to the satisfaction of a jury that these statements defamed him, but whether the circuit court should have afforded him the opportunity to do so. Because the amended complaint was adequate to state a basis upon which, if proven to the satisfaction of the jury, plaintiff could assert a claim for defamation against the officer, the circuit erred in sustaining the demurrer as to that claim.
D'Alton, Jr. Elliott P. Park Steven S.
Biss; Park and Company , on briefs , for appellant. Robert A. Dybing ThompsonMcMullan , on brief , for appellees. In this appeal, we consider whether the circuit court erred when it sustained a demurrer to an amended complaint alleging malicious prosecution, false imprisonment, and defamation against the law enforcement officer who obtained a warrant for the arrest of the plaintiff based upon a citizen's complaint that ultimately proved to be unfounded.
Our consideration of the issues presented is guided by the well-established principle of appellate review that "[a] demurrer tests the legal sufficiency of facts alleged in pleadings, not the strength of proof. We accept as true all facts properly pleaded in the. Board of Supervisors of Spotsylvania County , Va. Additionally, when, as here, a circuit court sustains a demurrer to an amended complaint that does not incorporate or refer to any of the allegations that were set forth in a prior complaint, "we will consider only the allegations contained in the amended pleading to which the demurrer was sustained.
John's Wood Apartments , Va.
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