Free Response to Motion - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT DISTRICT OF COLORADO Civil Action No. 04-cv-01149-RPM MICHAEL ANDREW DARR, Plaintiff, v. ROBERT NEWMYER; OUTLAW PRODUCTIONS, INC., a California corporation; TOWN OF TELLURIDE, COLORADO, Defendants. PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM BRIEF SUBMITTED BY DEFENDANTS ROBERT NEWMYER AND OUTLAW PRODUCTIONS, INC.

Plaintiff Michael Andrew Darr ("Darr") submits his Response to the Motion for Summary Judgment and Memorandum Brief submitted by Defendants Robert Newmyer ("Newmyer") and Outlaw Productions, Inc. ("Outlaw"). Darr respectfully requests the Court to deny the

Defendants' Motion for Summary Judgment, as it is erroneous in fact and law. I. INTRODUCTION Darr has filed claims against Defendants Newmyer and Outlaw for defamation, intentional interference with employment and extreme and outrageous conduct as a result of the public and false statements made by Newmyer, which resulted in Darr's termination and damage to his reputation. The Defendants' Motion for Summary Judgment rests entirely upon their assertions that the defamatory statements made by Newmyer are protected by the First Amendment to the United States Constitution and a similar provision in the Colorado

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Constitution, Article II, Section X. For Defendants Newmyer and Outlaw to prevail on their Motion for Summary Judgment, they must establish as a matter of law that Darr was either a "public official" or a "limited purpose public figure" or that Newmyer's arrest by Darr and the public controversy created by Newmyer was "a matter of public concern". As a matter of law and based upon the undisputed facts, Defendants Newmyer and Outlaw cannot establish any of these requirements to afford Newmyer's defamatory and false statements any constitutional protection. Newmyer, without any participation by Darr, chose to make his arrest a public event, and use the public forum and media to defame Darr. Newmyer is not entitled to constitutional protection for defamatory statements he made about Darr, when it is clear that Newmyer engaged in a personal vendetta against Darr, because he properly arrested and charged Newmyer with speeding, drunk driving and possession of illegal drugs. Furthermore, even if Newmyer's public statements were in any way constitutionally protected, Darr would prevail on his claim for defamation, as it is clear that Newmyer's defamatory and false statements were made with actual malice and a reckless disregard for the truth. II. STATEMENT OF UNDISPUTED FACTS A. The Arrest of Robert Newmyer1 1. During the weekend of September 21, 2002, Newmyer was in Telluride, Colorado On September 21, 2002 at

with a group of his friends from Los Angeles, California.

approximately midnight, Newmyer drove his vehicle into Telluride speeding in excess of the posted 15 miles per hour speed limit. When Newmyer parked his car, Darr, a deputy marshal on
A complete and detailed statement of undisputed facts and supporting exhibits regarding Newmyer's arrest is contained in Plaintiff's Motion for Summary Judgment concerning the Counterclaim of Defendant Newmyer. Those facts are incorporated by reference.
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foot patrol that night, gave him an oral warning for speeding. At that time, Newmyer proceeded to enter into the Fly Me to the Moon Saloon, where he claimed to consume one or two beers. He allegedly then left the saloon and drove to his home, where he says he may have had another alcoholic beverage and then returned to the saloon. 2. As Newmyer was proceeding back to his home, he pulled away from the curb at a When Newmyer returned "moments later", Darr again observed Newmyer

high rate of speed.

speeding in excess of the posted 15 miles per hour speed limit. Darr again approached Newmyer to warn him of speeding. At the time, he noticed an odor of alcoholic beverage on Newmyer's breath. Darr also noted in his arrest affidavit that Newmyer's eyes were pink and reddened and consistent with the use of marijuana. (See Exhibit A, Arrest Affidavit). 3. Darr requested that Newmyer participate in roadside sobriety tests, which

Newmyer failed. Darr then placed Newmyer under arrest for suspicion of driving under the influence of alcohol. Defendant Newmyer chose to take a breath test which revealed that his blood alcohol level was approximately .106%. He was later tested again at the Sheriff's

Department, at which time, his blood alcohol level was .081%. (Exhibit A). 4. Prior to going to jail, Darr advised Newmyer that if he had any drugs or marijuana,

he should disclose it to Darr or he could be charged with a felony for bringing drugs into the jail. Newmyer told Darr that he did not have any drugs or marijuana. When Newmyer was admitted into the jail, a cigarette joint of marijuana was found in his sock. Newmyer was charged with speeding 10-19 miles over the posted speed limit, the misdemeanor of possession of less than one ounce of marijuana and driving under the influence of alcohol. (See Exhibit A, p. 2).

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5.

Subsequently, while being represented by legal counsel, Defendant Newmyer pled

guilty to speeding 30 miles per hour in a posted 15 miles per hour zone, which was consistent with Darr's Affidavit and the original charge. (See Exhibit A). He also pled guilty to possession of marijuana as originally charged. (See Exhibit B, Waiver and Guilty Plea). As part of the plea agreement, the driving under the influence charge was dismissed. B. Statements Made by Newmyer About Darr 1. Nearly nine months after Newmyer's arrest, he complained for the first time about

the circumstances surrounding his arrest and Darr. (Exhibit C, Newmyer Deposition, p. 94, l. 10-13). On June 11, 2003, Defendant Newmyer sent a letter on Outlaw letterhead to Chief James Kolar ("Kolar") of the Telluride Marshal's Department. Rather than keeping the

complaint private, Newmyer sent copies to Robert Beer ("Beer"), the chairperson of the Town of Telluride (the "Town") Citizens Advisory Board to the Marshal's Department, the editor of a Town newspaper, the Daily Planet, the Town Manager, Mayor John Steel2, KOTO Radio News Director and Council Member Hillary White. (See Exhibit D). 2. This letter sets forth Newmyer's version of the circumstances surrounding his

arrest. In the letter, he alleges that contrary to Darr's Affidavit at the time of the arrest, and Newmyer's own admission in the Waiver and Guilty Plea, he denied that he was speeding. He also stated that Darr "had targeted him for arrest" and that he felt he was being harassed. (See Exhibit D, Page 5). 3. In his letter, he makes the following false and defamatory statements,

2

Mayor John Steel is now counsel for Newmyer and Outlaw.

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a.

"My problems with Officer Darr seem somewhat ironic in light of the fact that I recently spent a year of my life producing `Training Day', a motion picture about police corruption in Los Angeles (for which Denzel Washington won an academy award for best actor). During the production of this picture, I developed a

number of close contacts within the LAPD, and came to better recognize the various forms of police corruption and brutality. Officer Darr appears to me as a textbook case of a frustrated ex-narc who longs for more action and is willing to do whatever is necessary, including outright lying, in the pursuit of his agenda." b. "What's worse is that someone in a position of public trust so carelessly and callously violated the trust by being less than truthful about virtually every encounter we had throughout the evening. Obviously, Officer Darr feels a greater imperative to win than to be honest." c. "There is simply one bad apple in the bunch, and he's spreading worms throughout the basket. There is no place in our town for Michael Darr." 4. Newmyer also contacted Chief Kolar on June 17 and 23, 2003 to again discuss his

complaints about Darr as stated in his June 11 letter. (Exhibit C, Newmyer Deposition, p. 121, l. 22-25.) Newmyer's motivation was to ensure that Darr would be fired. (Exhibit C, p. 107, l. 14; p. 124, l. 18-25; p. 131, l. 2-3). 5. In response to Defendant Newmyer's complaints, Chief Kolar initiated an internal After his

affairs investigation into the circumstances surrounding Newmyer's arrest.

investigation, Chief Kolar found that there was no evidence that "Darr was holding a grudge"

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against Newmyer, as Newmyer alleged or that Darr was attempting to conceal anything or lie to arrest Newmyer. (See Exhibit E, Internal Affairs Investigation, P. 3 and 4). Chief Kolar also found that there was no inconsistency or "deliberate falsification" in Darr's report. He found that the supervisor, Sergeant Merriman, had directed Darr to simply clarify his observations regarding Newmyer's speeding during the report approval process. (See Exhibit E, P. 7). The change was not an inconsistency. Chief Kolar also analyzed Newmyer's complaint that Darr had lied in his written report about when he had observed Newmyer speeding and his estimation of how long Newmyer had spent at his house. Chief Kolar compared Darr's report with the radio dispatch records and concluded that Officer Darr had not "lied" as alleged by Newmyer, and his timing of the events were consistent with the dispatch records. (Exhibit E, p. 8). 6. Chief Kolar also found in his investigation that Newmyer had numerous

inconsistencies in his testimony under oath at the motions hearing as compared to the letters of June 11 and 23, 2003 submitted by Newmyer to Chief Kolar. For example, Newmyer testified in the motions hearing that he had driven into town alone to meet friends at the Fly Me to the Moon Saloon. However, in his letters of June 11 and 23, 2003, Newmyer asserted that his friend, Jon Zack, was present, and that he would testify about Darr's actions. Chief Kolar stated, "It is clear that Mr. Newmyer has offered an inconsistent statement about the nature of the events that occurred that evening. The testimony offered on March 21, 2003 is in direct conflict with later statements that assert Mr. Zack was a witness to the first speeding warning provided by Deputy Darr." (See Exhibit E, p. 10). Ultimately, Chief Kolar did not sustain any of the allegations of misconduct Newmyer alleged. He did find a violation of Department Rule and

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Regulation 304, Respect for Others, in connection with Darr's first warning to Newmyer, when he allegedly said something to the effect of "You are lucky I am not giving you a ticket". (See Exhibit E). 7. Kolar also requested an investigation by the District Attorney's office regarding

Newmyer's complaints. The District Attorney found no evidence of official misconduct. The District Attorney also opined that Newmyer had made two false statements. One was the statement about Zack stated above. The second was Newmyer's testimony about the timing of the events the night of his arrest was "at odds" with the radio dispatch log. (Exhibit F). 8. On July 24, 2003, Newmyer was interviewed on KOTO Radio Station in

Telluride. He stated, "Darr outrageously lied in his arrest report", and he specifically stated that Darr was a "crooked cop".3 9. Newmyer also made similar false and defamatory statements to the chair of the

Citizens Advisory Board, Robert Beer. This Citizen's Advisory Board was specifically created by the Town to address issues regarding the Marshal's Department. Newmyer had at least 5 telephone conversations and one to two meetings with Beer concerning his complaints about Darr. (See Exhibit C, Newmyer deposition, p. 96, l. 8-12). Newmyer told Beer, "Once my case (criminal) is settled, I'm going to go after Michael Darr." (Exhibit C, p. 98, l. 10-11). During this same time frame, Beer specifically identified Darr by name and stated criticisms of him at one Board meeting with 30-40 people in attendance. (Exhibit G, Beer Deposition, p. 30, l. 7-25). After Darr was terminated as a deputy marshal on July 21, 2003, Newmyer also wrote a letter to
The tape recording of this interview is available if the Court requests, or if Newmyer denies making these statements.
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the editors of both newspapers, the Telluride Watch and the Daily Planet, on August 15, 2003, which was published. (See Exhibit C, p. 132, l. 23-24 and Letter, Exhibit H). This letter again attacked Darr restating Newmyer's defamatory allegations. 10. Darr never made any public statements about Newmyer or Newmyer's arrest.

He also did not publicly respond to any of the false and defamatory statements made by Newmyer in the Telluride newspapers or on KOTO Radio or at the Citizen's Advisory Board. (See Exhibit I, Darr Affidavit). 11. The statements made by Newmyer in the June 11, 2003 letter to Chief Kolar and

sent to the media, Newmyer's interview on KOTO Radio on July 24, 2003, and the letters to the editors of both newspapers were false and defamatory. These statements caused damage to Darr's reputation. (See Exhibit I, Darr Affidavit). III. STANDARD FOR SUMMARY JUDGMENT In order for the Defendants to prevail on their Motion for Summary Judgment, they must establish that Darr was a public official, a public figure or Newmyer's arrest was of public concern to afford Newmyer's defamatory statements constitutional protection. This analysis must be based upon the substantive law of Colorado. Ando v. Great Western Sugar Co., 475 F.2d 531, 534 (10th Cir. 1975). The Supreme Court confirmed in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2977, 41 L. Ed. 2d 789 (1974), in libel cases, that the states may define for themselves the appropriate standard of liability so long as they do not impose liability without fault. Based upon the undisputed facts in this case, Defendants cannot prove any of these requirements, and their Motion must fail.

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The Defendants assert that the issue on summary judgment is whether Darr can prove by clear and convincing evidence that Newmyer was motivated by actual malice, when he continually and publicly defamed Darr. However, this is not the inquiry in this case. Before Darr is required to bear this enhanced level of proof, it is Newmyer's burden to show his statements were constitutionally protected. To the contrary, Newmyer's statements are not afforded First Amendment freedom of speech protection, because Darr is not a public figure, nor is this a matter of public concern. If Darr is not a public figure, which the facts clearly establish, then he does not have the burden to prove actual malice by clear and convincing evidence. New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1963). Because Darr is a private person, and Newmyer's arrest was a private matter, in order to prevail, Darr must simply prove by a preponderance of the evidence that Newmyer published and/or caused to be published false statements about Darr, and that the publication of these statements caused him damages. C.J.I. 4th; 22:5. See, e.g. Lockett v. Garrett, 1 P.3d 206, 210 (Colo. App. 1999). Moreover, there is no preference in libel actions for denying or granting summary judgment. The standards of F.R.C.P. 56 should be applied as written. Anderson v. Cramlet, 789 F.2d 840, 843 (10th Cir. 1986). This Court should not permit the Defendants to "create their own defense by making the claimant a public figure" just to shield themselves from liability for defamatory statements. Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979). This Court should not permit an admitted criminal, Newmyer, to satisfy his personal vendetta against the police officer who arrested him, and then escape liability for publicly defaming him by claiming, without any factual support, that

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Darr was either a public figure or that he was simply commenting on a matter of public concern. As the Colorado Supreme Court implied, courts should be suspicious of such attempts. Diversified Management, Inc. v. Denver Post, Inc., 653 P.2d 1103, 1107 (Colo. 1982). ("We are reluctant to make too easy a finding that one is a public figure."). In these cases, the Court must examine for itself the statements in issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment should protect. Pennekamp v. Florida, 328 U.S. 331, 335 (1946). Newmyer's defamatory statements about Darr should not be protected by the Constitution of this country or this state. With respect to the other two claims of intentional interference with Darr's employment and extreme and outrageous conduct, the Defendants are also not entitled to summary judgment. Because Newmyer's statements are not constitutionally protected or in any way privileged, he did not have the right to interfere with Darr's employment or make such outrageous and false statements about him. In addition, there are genuine issues of material fact which preclude summary judgment pursuant to F.R.C.P. 56. IV. ARGUMENTS A. DARR IS NOT A PUBLIC FIGURE OR A PUBLIC OFFICIAL. A person may be a public figure in either of two ways: "First, there are those who acquired a status in society, so as to have such persuasive power and influence to be properly deemed public figures for all purposes of comment. Such persons enjoy significant access to the effective channels of communication to rebut defamatory falsehoods and have broadly exposed themselves to the increased risk of defamatory falsehoods to their attainment of public prominence. The second category of public figures consists of those who have thrust themselves to the forefront of a

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particular public controversy to affect its resolution. Such individuals would generally be capable of effectively countering criticism and exposing the falsity of defamatory statements concerning them. More importantly, this type of public figure has invited public attention, in regard to the public controversy." DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318, 322 (Colo. 1980), citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974); Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.E.2d 411(1979). Public figures, like public officials, have to voluntarily expose themselves to increased risk of injury from defamatory statements concerning them. Wolston v. Readers Digest Association, Inc., 443 U.S. 157, 99 S. Ct. 2701, 61 L. Ed. 2d 450 (1979). While the Defendants would have this Court believe that it is virtually black-letter law that a police officer is a per se public official or public figure, they fail to recognize the contrary interpretation by the Colorado Supreme Court in cases the Defendants themselves cite. The DiLeo case sets forth the law in Colorado, as it applies to whether a person is a "public figure or public official". DiLeo was terminated as a patrolman for the Boulder Police Department. He then instituted several lawsuits asserting his alleged illegal termination as well as other violations of his civil rights. "Rather than quietly seeking to exert his legal rights, he invited public attention and comment." DiLeo at 322. DiLeo initiated contact with various newspapers and reporters and stated that he believed his case to be newsworthy, and that he wanted to get information to the public. The Court found that DiLeo effectively cast himself and his views into public controversy. Id. In fact, he generated at least twenty articles in local newspapers. The Court found that DiLeo himself stimulated and encouraged news coverage and that caused him

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to become a public figure. The Court declined to rule that DiLeo was a public official simply because he was a police officer. Id. In Diversified, the court rejected the argument that its finding in DiLeo was that a police officer was a public figure, and that finding mandated that all police officers are public figures. 653 P.2d at 1107. ("We do not believe that DiLeo mandates a finding that appellants [Police Officers] are public figures"). In fact, as stated by the Diversified court, it was the specific actions of the specific police officer that rendered him a public figure. Id. Similarly, in Weber v. Telegram-Tribune Co., 194 Cal. App. 3d 265, 239 Cal. Rptr. 489 (2d Dist. 1987), the disgruntled public employee who had been fired relentlessly pursued media coverage to get his job back. The Court stated he became a public figure for the purpose of a libel action against the newspaper, because of his actions. The mere fact that the local media took notice of Newmyer's statements does not transform Darr, the victim of a private vendetta, effectuated publicly, into a public figure. See Diversified, 653 P.2d at 1107 ("The mere fact that the press was attracted to appellants' activities does not make them public figures."); DiLeo at 322. ("This is not to say, however, that DiLeo was automatically converted to a public figure simply because the media's attention was attracted"); Smiley's Too, Inc. v. Denver Post Corp., 935 P.2d 39, 42(Colo. App. 1996) ("The mere fact that the press is attracted to a particular person or activity does not make that person a public figure or that activity a matter of public concern."). Moreover, " one does not become a public figure merely by defending oneself publicly against accusations." Pendleton v. City of Haverhill, 156 F.3d 57, 68 (1st Cir. 1998) (citing Time, Inc. v. Firestone, 424 U.S. 448, 454 n. 3

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(1976); Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1558 (4th Cir. 1994)). Importantly, it was Newmyer who sought media attention, not Darr. Darr never made statements to the media or any public statements about Newmyer, Newmyer's arrest, Newmyer's defamatory remarks, Darr's termination or any other matter. (See Exhibit I). Therefore, consistent with Colorado law, Darr is not a public figure. Darr is also not a public official based solely upon his service as a government employee. For example, Sellars v. Stauffer Communications, Inc., 9 Kan. App. 2d 573, 684 P.2d 450 (1984), the clerk in the Sheriff's office was not a public official, because she had no sovereign power or control over the exercise of governmental affairs. As stated in Hutchinson v. Proxmier, 443 U.S. 111, 99 S. Ct. 2675, 61 L. Ed. 2d 411 (1979), the category of "public official" cannot be thought to include all public employees. In Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966), the Court stated that the "public official" designation applies to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. Similarly, in McCusker v. Valley News, 121 N.H. 258, 428 A.2d 493 (1981), the Court denied the defendant's motion for summary judgment in a libel action holding that the plaintiff's position as a deputy sheriff did not place him in the category of a "public official" as a matter of law, and ruling that the plaintiff was entitled to the issue being determined by a jury. As the Court analyzed in Hutchinson, Hutchinson did not advance himself or his views in the public controversy to influence others. Hutchison at 135. The Court also stated that, "Those charged with the defamation cannot, by their own conduct, create their own defense by

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making the claimant a public figure." Id. See also Wolston v. Readers Digest Association, Inc., 443 U.S. 157, 167-168, 99 S. Ct. 2701, 2708, 61 L. Ed. 2d 450 (1979). A private individual is not automatically transformed into a public figure just by becoming involved in or associating with a matter that attracts public attention. In libel, the defendant must show more than mere newsworthiness to justify application of the demanding burden of the New York Times v. Sullivan case. Lawrence v. Moss, 639 F.2d 634, 637 (10th Cir. 1981). In determining whether a person is a public figure, a court must examine the nature and extent of an individual's participation in a particular controversy giving rise to the defamation. Diversified at 1107. Here, Darr did not participate in any public statements. His only involvement was doing his job and arresting Newmyer, who then retaliated against Darr. Defendants rely upon the case of Gray v. Udevitz, 656 F.2d 588 (10th Cir. 1981), in which the Court ruled that law enforcement officers are considered to be public officials. However, the Court in the Gray case was applying Wyoming law. Here, the Court must apply the substantive law of Colorado. Ando v. Great Western Sugar Co., 475 F.2d 531, 534 (10th Cir. 1973). The law in Colorado to be applied in this case was clearly set forth in the DiLeo and Diversified cases in which the Court specifically stated that DiLeo was "as a discharged police officer, was a public figure, because he sought press coverage of the controversy surrounding his termination from the police force". DiLeo at 322. Clearly, Colorado has adopted the view that in determining whether a person is a public figure, the Court must examine the nature and extent of an individual's participation in a particular controversy giving rise to the defamation. Diversified at 1107.

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In the case at bar, Darr never responded in the media or publicly to any of the defamatory statements by Newmyer. He was never interviewed in the newspaper or on the radio station. He was never the subject of a public response from the Marshal's Department. (See Exhibit I, Darr Affidavit, paragraphs 2 and 3). Based upon the well-established instructions from the DiLeo and Diversified cases defining Colorado law, Darr did not participate in the public controversy created by Newmyer's contacts with the media. He did not place himself in the forefront of the public controversy in order to influence the resolution of the complaints by Newmyer, and he did not invite any media attention or comment. Therefore, he is not a public official or a public figure under Colorado law. B. NEWMYER'S ARREST IS NOT OF PUBLIC CONCERN. Boundaries of public concern cannot be readily defined, but must be determined on a case by case basis for the purpose of determining whether defamatory statements are afforded first amendment protection. Williams v. Continental Airlines, Inc., 943 P.2d 10, 17 (Colo. App. 1996). Generally, for matters of public concern, they embrace issues about which information is needed or is appropriate, or when the public may reasonably be expected to have a legitimate interest in what is being published. Id. In determining whether an issue is of a public concern, the balance should be stuck in favor of the private plaintiff if his reputation has been injured by a non-media defendant in a purely private context. Id. at 18. The mere fact that the press is attracted to a particular person or activity does not make that person a public figure or that activity a matter of public concern. Smiley's Too, Inc. v. Denver Post Corp., 935 P.2d 39 (Colo. App. 1996). For example, in Quigley v. Rosenthal, 327 F.3d 1044, 1061 (10th Cir. 2003), the

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Court stated that under Colorado law, statements made by an attorney for a civil rights group at a press conference and on a radio show alleging that homeowners were anti-Semitic and engaging in anti-Semitic harassment to chase out neighbors of the Jewish faith in the community did not involve matters of public or general concern. Therefore, the plaintiff merely needed to establish fault amounting to negligence on the part of the defendant. In this case, Newmyer's arrest for speeding, driving while under the influence of alcohol and marijuana possession was not of public concern, until he chose to discuss it in the media. In addition, the defamatory statements made by Newmyer as a private citizen about Darr are also not of public concern. The only public controversy that was created by Newmyer's arrest was by Newmyer himself placing his arrest and the circumstances surrounding his arrest in the public forum by contacting both newspapers and the radio station in Telluride. In Newmyer's public statements, he never criticized the Town or its government or the Marshal's Department or the chief. His allegations concerned only Darr as an individual and only concerned Darr's alleged actions in the arrest of Newmyer and did not concern the general public. Even pursuant to a case cited by the Defendants, Waldbaum v. Fairchild Publications, Inc., 67 F.2d 1287, 201 U.S. App. D.C. 301, 310 (1980), the Court required that the public controversy must involve the outcome of which affects the general public in an appreciable way. Even if Newmyer's allegations were true that Darr lied in the police reports and in the preliminary hearing, which Chief Kolar found that they were not, it is not a situation that affects the general public or any segment in any appreciable way. Newmyer was not commenting on a matter of public concern but instead pursuing a personal vendetta for his arrest. Darr's occupation does not transform the private

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nature of this matter into one of a public concern. Newmyer made his arrest by Darr a public controversy. He publicly defamed Darr and should not be allowed to argue that his defamatory and false statements are protected as free speech. In fact, he defamed a private individual and should not be afforded any protection from his malicious and defamatory statements. A private non-media defendant who defames a private person cannot seek refuge by claiming the matter implicated a public concern and courts are especially suspicious of such a defense. See, e.g. Moore v. City of Wynnewood, 57 F.3d 924, 932 (10th Cir.1995) (in the context of the employee's First Amendment protection, the court held that it must evaluate whether plaintiff's purpose "was to bring an issue to the public's attention or to air a personal grievance"). "Purely private defamation has little to do with the political ends of a self-governing society. The imposition of liability for private defamation does not abridge the freedom of public speech or any other freedom protected by the First Amendment." Rowe v. Metz, 579 P.2d 83, 85 (Colo. 1978) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 301-302 (1964) (Goldberg, J. concurring). C. DARR IS NOT "A LIMITED PURPOSE PUBLIC FIGURE." The Defendants also argue that Darr was "a limited purpose public figure". Defendants rely upon Clyburn v. News World Communications, Inc., 705 F. Supp. 635 (U.S.D.C. 1989) for the criteria regarding a limited purpose public figure. It is questionable whether a limited purpose public figure is even recognized in Colorado. There appears to be no case in Colorado or in the Tenth Circuit Court of Appeals which discusses a limited purpose public figure. In any event, the criteria cited by the Clyburn Court cannot be established in this case.

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First, the inquiry is whether a public controversy existed on a specific question having ramifications for non-participants. As stated above, there was no public controversy except for the public defamatory statements made to the media by Newmyer. Again, the controversy created by Newmyer involved only his arrest, which is a private matter, and had no ramifications upon any other citizens. The second criteria is that the Plaintiff had a significant role in the controversy, either by voluntarily attempting to affect the outcome or by being drawn into the controversy and assuming the central role. As clearly established, Darr had no role in the controversy other than he was the subject of Newmyer's personal vendetta in the press. He never publicly responded to any of the defamatory statements made by Newmyer and did not assume any role. (Exhibit I). Therefore, even if this Court recognized "a limited purpose public figure", Darr does not fit the criteria. Again, Newmyer's Motion and arguments fail, because Darr had no public participation in this matter. Darr was only the victim of Newmyer's

vengeance. Finally, the third criteria is that the alleged defamation was germane to Plaintiff's participation in the controversy. Again, the defamatory statements made by Newmyer concerned his arrest, and Darr had no participation in the controversy created by Newmyer. D. NEWMYER'S STATEMENTS WERE MADE WITH ACTUAL MALICE AND A RECKLESS DISREGARD FOR THE TRUTH. Even if the Court finds that Darr was a public figure, public official or this is a matter of public concern, Darr can establish that Newmyer's statements, on their face, were malicious and were made with reckless disregard for the truth. In the June 11, 2003 letter that Newmyer sent to Chief Kolar and various members of Town government and the media, he stated that, "Darr outright lied" in the arrest report and

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the preliminary hearing. (Exhibit D). He clearly implied that Darr was a corrupt police officer like the main character in "Training Day", the movie, who was depicted as a ruthless murderer, thief and a leader of police corruption.4 In his interview on KOTO Radio on July 24, 2003, Newmyer also accused Darr of outrageously lying in the arrest report and in a preliminary hearing and described Darr as a "crooked cop". Newmyer admitted that the purpose of his statements was to get Darr fired from the Marshal's Department. (Exhibit C, p. 107, l. 14; p. 124, l. 18-25; p. 131, l. 2-3). Malice is an improper motive such as a desire to do harm or that the Defendant did not honestly believe his statements to be true or that the publication was excessive. Lawrence v. Moss, 639 F.2d 634 (10th Cir. 1981). The proof of actual malice calls the defendant's state of mind into question. New York Times v. Sullivan, 376 U.S. 254, 84 S.C. 710, 11 L.E.2d 686 (1964). As the Court stated in Anderson v. Tramlet, 789 F.2d 840, 843 (10th Cir. 1986), the actual malice and/or intent of the defendant does not readily lend itself to summary disposition. Intent is an intangible factor best left to determination by the fact finder after a full trial. Buell Cabinet Co., Inc. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). In this case, Newmyer admitted, and it is undisputed that he intended to harm Darr by forcing his termination. (Exhibit C, p. 107, l. 14; p. 124, l. 18-25; p. 131, l. 2-3). There is absolutely no evidence provided by the Defendants in support of their Motion for Summary Judgment or any evidence in existence, that Darr was "a crooked cop", that he was a corrupt police officer similar to the main character in "Training Day", that he had targeted Newmyer for arrest, that he lied in any aspect of Newmyer's arrest or that he was involved in a "cover-up". In
4

The movie can be made available for the Court's review.

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fact, all of these statements are false. (See Darr Affidavit, Exhibit I). More importantly, Kolar and the District Attorney did not find any of these statements to be true after their investigations. (Exhibits E and F). Simply because Newmyer stated in his self-serving affidavit attached to his Motion, that he believed the statements that he made were true, does not establish that the statements were in fact true. On their face, the statements were clearly intended to harm Darr, damage his reputation, ensure his firing, and they were not based upon any facts. Moreover, it is difficult to understand how Newmyer could be believed. Several lies by Newmyer are clearly established in the record. 1. Newmyer told Darr that he had only had one to two beers, possibly a third during the evening of his arrest. These statements are contradicted by Newmyer's blood alcohol level at .106% and later at .081%. 2. As Chief Kolar noted in his investigation of Newmyer's complaints, Newmyer testified under oath that he had driven into town alone to meet friends at the Fly Me to the Moon Saloon. He later stated in his letters to Chief Kolar of June 11 and 23, 2003 that a friend, Jon Zack, was present and witnessed the first warning. Chief Kolar specifically stated that it was clear that Newmyer had offered an inconsistent statement about the nature of the events that occurred that evening. (See Exhibit E, p. 9). (Exhibit F). 3. Chief Kolar also found that Newmyer's report of the times and events the night of his arrest did not correlate with the radio log computer entries from the dispatch The District Attorney expressed the same concerns.

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tapes. In fact, these computer logs supported the timing described by Darr of the events. (See Exhibit E, p. 7, Bates 2031-32). (See also Exhibit F). 4. When Newmyer was arrested, Darr specifically asked Newmyer if he was in possession of any drugs or marijuana. Newmyer specifically represented that he did not have either drugs or marijuana. However, at the time of his booking at the jail, a cigarette joint of marijuana was found in his sock. 5. In Newmyer's counterclaim against Darr, he claimed that Darr lacked probable cause to arrest him, and that he was not speeding. However, Newmyer signed his Waiver and Guilty Plea specifically admitting to speeding and possession of marijuana. (See Exhibit B). Clearly, the statement made by Newmyer that he believed the statements he made about Darr were true must be seriously questioned. More obviously, Newmyer made these statements about Darr knowing that they were false with intent to harm Darr. The truth was not a

consideration or a concern to Newmyer who simply wanted to ensure Darr's firing and embarrass and humiliate him in the public forum to retaliate against Darr for arresting him. To prove recklessness, the defendant simply must have a high degree of awareness that the statements published were probably false. Diversified at 1109. The plaintiff is not required to show that the defendant entertained subjective doubts about the truth, just a high degree of indifference to truth or falsity. Even if Newmyer's view of the events of the evening of his arrest were true, they could not lead a reasonable person to believe that Darr was a "crooked cop", and that he was as corrupt as the murdering police officer depicted in the movie, "Training Day".

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Clearly, Newmyer decided to target Darr in the media and to ensure his termination, because he was caught speeding, drinking under the influence of alcohol and possessing marijuana. Newmyer's public and defamatory statements about Darr are not supported by any evidence, nor would a reasonable person in Newmyer's position believe them to be true. Newmyer's

defamatory and false statements about Darr in the media and to Chief Kolar and Town representatives resulted in Darr's termination, and clearly resulted in considerable damage to his reputation in the community and embarrassment, humiliation and emotional distress suffered by Darr. (Exhibit I, paragraph 8). The Motion for Summary Judgment should be denied to allow Darr to establish the malicious conduct of Newmyer and recover damages as a result of his conduct. E. THE CLAIMS OF INTENTIONAL INTERFERENCE WITH CONTRACT AND OUTRAGEOUS CONDUCT. The Defendants claim that because they believe Newmyer's statements were privileged, they cannot be held liable for intentional interference with Darr's employment or outrageous conduct. As established above, Newmyer's statements are not privileged or protected. Newmyer clearly interfered with Darr's employment with his continual complaints to Kolar and the Citizen's Advisory Board. In fact, Newmyer's complaints were specifically referenced in the Notice to terminate Darr. (Exhibit J). At a minimum, it is a question of fact as to whether Newmyer's conduct improperly interfered with Darr's employment. Certainly, there is sufficient evidence to demonstrate Newmyer's improper conduct. A jury could also find based upon the undisputed evidence that Newmyer's statements were "outrageous" and with the intent of causing Darr severe emotional distress. C.J.I. 4th 23:1.

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V. CONCLUSION Newmyer's false and defamatory statements about Darr are not constitutionally protected speech, because the Plaintiff is not a public official, public figure, nor is this matter of public concern. The only public controversy that was created about Newmyer's arrest was Newmyer's own statements to the media and Town officials. Therefore, Darr does not have the burden of proving actual malice or reckless disregard of the truth by Newmyer. However, if Darr is found to be a public official, public figure, or this is a matter of public concern, he clearly can show that Newmyer acted with actual malice and a reckless disregard for the truth in making the defamatory and false statements about him and his character and reputation to the media and Town officials. Darr respectfully requests the Court to deny the Defendants' Motion for

Summary Judgment. Dated this 30th day of June, 2005. Respectfully submitted,

By: s/Angela L. Ekker Angela L. Ekker BARNHART, EKKER & MCNALLY, LLP 7887 E. Belleview, #1200 Englewood, Colorado 80111 Telephone: (303) 793-0700 FAX: (303) 793-1950 E-mail: [email protected] Attorneys for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on this 30th day of June, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the

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following e-mail addresses: John H. Steel, Esq. 126 W. Colorado Ave. P. O. Box 2784 Telluride, CO 81435 E-mail: [email protected] J. Andrew Nathan, Esq. NATHAN, BREMER, DUMM & MYERS, P.C. 3900 E. Mexico Ave., #1000 Denver, CO 80210 E-mail: [email protected] Gary L. Doehling, Esq. DOEHLING & DRISCOLL, P.C. 628 Rood Avenue, Suite 3 Grand Junction, CO 81501 E-mail: [email protected] Daniel Grossman, Esq. LAW OFFICE OF DAN GROSSMAN, LLC 1129 Pennsylvania Street, Third Floor Denver, CO 80203 E-mail: [email protected]

By: s/Angela L. Ekker Angela L. Ekker BARNHART, EKKER & MCNALLY, LLP 7887 E. Belleview, #1200 Englewood, Colorado 80111 Telephone: (303) 793-0700 FAX: (303) 793-1950 E-mail: [email protected] Attorneys for Plaintiffs

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