Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

B. KURT PRICE, et al. Plaintiff, v. L. AARON CHAFFINCH, et al., Defendants.

: : : : : : : : :

C.A. No. 04-1207-GMS (Consolidated with C.A. No. 04-1207-GMS)

OPENING BRIEF IN SUPPORT OF DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, TO AMEND THE JUDGMENT OR FOR A NEW TRIAL

Date: June 19, 2006

Noel C. Burnham (DE Bar No. 3483) Richard M. Donaldson (DE Bar No. 4367) Montgomery, McCracken, Walker & Rhoads, LLP 300 Delaware Avenue, Suite 750 Wilmington, DE 19801 (302) 504-7840 Edward T. Ellis (Admitted Pro Hac Vice) Robert J. Fitzgerald (Admitted Pro Hac Vice) Carmon M. Harvey (Admitted Pro Hac Vice) Montgomery, McCracken, Walker & Rhoads, LLP 123 South Broad Street Philadelphia, PA 19109 (215) 772-1500 Counsel for Defendants L. Aaron Chaffinch, Thomas F. MacLeish, David B. Mitchell, and the Division of State Police, Department of Safety and Homeland Security, State of Delaware

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TABLE OF CONTENTS Page I. II. III. STATEMENT OF THE NATURE AND STAGE OF THE PROCEEDINGS................. 1 SUMMARY OF THE ARGUMENT ................................................................................ 3 CONCISE STATEMENT OF FACTS .............................................................................. 4 A. B. C. D. E. F. G. H. IV. A. The Parties ............................................................................................................. 4 The DSP Firing Range ........................................................................................... 5 Range Maintenance................................................................................................ 6 The FTU Staff Stopped Maintenance On The Bullet Trap.................................... 7 The April 6, 2004, Media Tour of the Firing Range.............................................. 8 The State Auditor's Investigation .......................................................................... 8 Evidence of Damage to Chris Foraker's Reputation ............................................. 9 Disputed Damages Testimony ............................................................................. 10 Standard of Review.............................................................................................. 10 1. 2. 3. B. Renewed Motion for Judgment as a Matter of Law under Rule 50(b)......................................................................................................... 10 Motion to Alter or Amend Judgment Under Rule 59(e).......................... 11 Motion for New Trial Under Rule 59(a).................................................. 12

ARGUMENT................................................................................................................... 10

The Court Should Grant Defendants' Motion for Judgment as a Matter of Law with Respect to the Jury's Findings of First Amendment Retaliation in the Price Action and of Defamation (Count III) in the Foraker Action........... 13 1. The Court Should Enter Judgment in Favor of Defendants in the Price Action Because Garcetti v. Ceballos Holds That Public Employees Who Make Statements Pursuant to Their Official Duties are not Protected by the First Amendment ................................... 13 a. b. Garcetti is a change in the law that deprives the Price plaintiffs of a cause of action on the facts they proved................ 13 The Court should grant judgment as a matter of law pursuant to Rule 50(b) on the claims now barred by Garcetti; in the alternative, the Court should amend its judgment entered on June 15, 2006, to reflect that Garcetti is now controlling law on the claims in the Price Action ............ 17

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TABLE OF CONTENTS (continued) Page 2. Defendants Renew Their Motion for Judgment as a Matter of Law on Plaintiffs' Petition Clause Claims in the Price Action Because Plaintiffs Have Not Stated a Claim Under the First Amendment Petition Clause ......................................................................................... 18 a. Defendants are entitled to judgment as a matter of law because plaintiffs' speech about the conditions at the firing range was not a "petition" under the First Amendment............... 18 Even if plaintiffs' speech about the indoor firing range was a "petition," it is not constitutionally protected activity for the reasons set forth in Garcetti ................................................... 20

b.

3.

Defendants Renew Their Motion for Judgment as a Matter of Law on Foraker's Claim of Defamation Against Defendant Chaffinch Because (1) Foraker Has Failed to Demonstrate Actual Malice, (2) Each of The Statements at Issue is True, And (3) Foraker Has Failed to Demonstrate Reputational Harm .............................................. 21 a. b. c. Plaintiff Foraker has failed to show that defendant Chaffinch spoke with "actual malice." ........................................ 21 The statements at issue are substantially true .............................. 23 Plaintiff has failed to establish that any of the statements at issue damaged his reputation ....................................................... 26

C.

The Court Should Grant Defendants' Motion for a New Trial on All Parts of the Verdict for which the Court Does Not Enter Judgment for Defendants as a Matter of Law ............................................................................ 28 1. The Court Erred in Allowing Ernest "Bud" Fini to Testify as s Expert Under Fed. R. Evid. 702............................................................... 28 a. b. c. 2. Legal Standard ............................................................................. 28 Fini is not qualified to testify about hiring practices in the firearms industry .......................................................................... 29 Fini's testimony was not reliable ................................................. 30

The Court Erred in its Jury Instructions by Refusing to Give an Instruction that Defendant Chaffinch had a First Amendment Right to Speak about the Range......................................................................... 32 Defendants Are Entitled to a New Trial as to Plaintiff Foraker's First Amendment Retaliation Claims in C.A. No. 04-1207-GMS Because the Verdict is Ambiguous Once Defendants are Granted Judgment as a Matter of Law as to the Claims Encompassed by Garcetti..................................................................................................... 33 -ii-

3.

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TABLE OF CONTENTS (continued) Page 4. 5. Defendants are Entitled to a New, Reconfigured Trial with Price's and Warren's Cases Tried Separately from Foraker's Cases................... 34 The Court Should Grant a New Trial Because the Evidence does not Support the Jury's Award of Punitive Damages; in the Alternative, the Court Should Remit the Punitive Damages Award Because it is Disproportionate to the Evidence of the Net Worth of the Defendants ......................................................................................... 36

D. V.

Whether In His Current Lawsuit Foraker Must Establish That His 2002 Lawsuit Addressed A Matter of "Public Concern."............................................. 38

CONCLUSION................................................................................................................ 40

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TABLE OF AUTHORITIES Page

CASES 2660 Woodley Rd. Joint Venture v. ITT Sheraton Corp., No. CIV. A. 97-450-JJF, 2002 U.S. Dist. LEXIS 439 (D. Del. Jan. 10, 2002)................................................................. 36 Adams v. Murakami, 813 P.2d 1348 (Cal. 1991).......................................................................... 37 Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997)......................................................................... 39 Arab Termite Pest Control of Florida, Inc. v. Jenkins, 409 So.2d 1039 (Fla. 1982).................... 37 Baldassare v. New Jersey, 250 F.3d 188 (3d Cir. 2001) .............................................................. 17 BMW of North America v. Gore, 517 U.S. 559 (1996)................................................................. 36 Bowman v. City of Middletown, 91 F. Supp. 2d 644 (S.D.N.Y. 2000)......................................... 19 Bradshaw v. Township of Middletown, 296 F. Supp. 2d 526 (D.N.J. 2003) ................................ 19 Cooper v. Cape May County Bd. of Social Servs., 175 F. Supp. 2d 732 (D.N.J. 2001) ............... 19 Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267 (3d Cir. 2001) ............................... 11, 12 Darcars Motors of Silver Spring, Inc. v. Borzym, 841 A.2d 828 (Md. 2004) .............................. 37 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)......................................... 28 Doe v. Cahill, 884 A.2d 451 (Del. 2005)...................................................................................... 21 Dunn v. HOVIC, 1 F.3d 1371 (3d Cir. 1993)................................................................................ 37 Elcock v. Kmart Corp., 233 F.3d 734 (3d Cir. 2000) ............................................................. 29, 30 Feldman v. Phila. Hous. Auth., 43 F.3d 823 (3d Cir. 1994)......................................................... 17 Gannett Co. v. Kanaga, 750 A.2d 1174 (Del. 2000) .................................................................... 32 Garcetti v. Ceballos, No. 04-473, 2006 U.S. LEXIS 4341 (S.Ct. May 30, 2006) ................ passim Garrison v. Louisiana, 379 U.S. 64 (1964) .................................................................................. 22 Garrison v. Mollers N. Am., Inc., 820 F. Supp. 814 (D. Del. 1993)....................................... 12, 36 Gill v. Del. Park, 294 F. Supp. 2d 638 (D. Del. 2003) ................................................................. 21 -iv-

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TABLE OF AUTHORITIES (continued) Page Grigley v. City of Atlanta, 136 F.3d 752 (11th Cir. 1998)............................................................ 20 Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657 (1989)........................................... 21 Hartnett v. Brown & Bigelow, 394 F.2d 438 (10th Cir. 1968) ..................................................... 34 Hazelwood v. Ill. Cent. Gulf. R.R., 450 N.E.2d 1199 (Ill. App. Ct. 1983) ................................... 37 Henry v. Hess Oil V.I. Corp., 163 F.R.D. 237 (D.V.I. 1995) ....................................................... 12 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).......................................................... 28 LifeScan, Inc. v. Home Diagnostics, Inc., 103 F. Supp. 2d 345 (D. Del. 2000) ........................... 12 Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993)................................................. 11 Magee v. Gen. Motors Corp., 213 F.2d 899 (3d Cir. 1954) ......................................................... 12 Max's Seafood Café v. Quinteros, 176 F.3d 669 (3d Cir. 1999)................................................... 11 McCormick v. City of Wildwood, 439 F. Supp. 769 (D.N.J. 1977) .............................................. 34 McDaniels v. Flick, 59 F.3d 446 (3d Cir. 1995) ........................................................................... 11 McDonald v. Smith, 472 U.S. 479 (1985)..................................................................................... 20 Mitchell v. Wilmington Trust Co., 449 A.2d 1055 (Del. Ch. 1982).............................................. 38 Montgomery Ward & Co. v. Duncan, 311 U.S. 243 (1940) ......................................................... 12 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ........................................................... 21, 22 North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194 (3d Cir. 1995)........................... 11 Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2000) ................................................................. 30 Orkin Exterminating Co. v. Jeter, 832 So. 2d 25 (Ala. 2001) ...................................................... 37 Pickering v. Board of Education, 391 U.S. 563 (1968)................................................................ 16 Prentice v. Zane's Admin., 49 U.S. 470 (1850)............................................................................. 34 Ramunno v. Cawley, 705 A.2d 1029 (Del. 1998) ......................................................................... 26 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)............................................... 11

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TABLE OF AUTHORITIES (continued) Page Riley v. Moyed, 529 A.2d 248, 250 (Del. 1987) ..................................................................... 21, 23 San Filippo v. Bongiovanni, 30 F.3d 424, 442 (3d Cir. 1994).................................... 18, 19, 20, 39 Schreffler v. Bd. of Educ. of Delmar Sch. Dist., 506 F. Supp. 1300 (D. Del. 1981)..................... 37 Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061 (3d Cir. 1996) ................................ 36 Spence v. Bd. of Educ. of Christina Sch. Dist., 806 F.2d 1198 (3d Cir. 1986) ....................... 36, 38 St. Amant v. Thompson, 390 U.S. 727 (1968)............................................................................... 22 Strauss v. Biggs, 525 A.2d 992 (Del. 1987).................................................................................. 36 Suarez Corp. v. McGraw, 202 F.3d 676 (4th Cir. 2000) ........................................................ 32, 33 Williamson v. Consol. Rail Corp., 926 F.2d 1344 (3d Cir. 1991) ................................................ 36 Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997) .............................................. 12, 33, 34 X-Men Secs., Inc. v. Pataki, 196 F.3d 56 (2d Cir. 1999) ........................................................ 32, 33 Zhadan v. Downtown L.A. Motors, 66 Cal. App. 3d 481 (Cal. Ct. App. 1976)............................ 37

STATUTES 42 U.S.C. § 1983............................................................................................................................. 1

MISCELLANEOUS Restatement (Second) of Torts § 908............................................................................................ 36 Black's Law Dictionary (8th ed. 2004)......................................................................................... 18

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I.

STATEMENT OF THE NATURE AND STAGE OF THE PROCEEDINGS These consolidated cases arise under 42 U.S.C. § 1983 and the laws of the State of

Delaware. Defendants are L. Aaron Chaffinch, the retired Superintendent of the Delaware State Police ("DSP"), Thomas F. MacLeish, currently the Superintendent, and David B. Mitchell, Secretary of Safety and Homeland Security for the State of Delaware. The plaintiffs are B. Kurt Price, Wayne Warren, and Christopher Foraker, three of the four state troopers assigned to the Firearms Training Unit of the DSP at the point the DSP closed its indoor firing range in March 2004. The three plaintiffs alleged in Civil Action No. 04-956-GMS (the "Price Action"), filed on August 19, 2004, that defendants Chaffinch and MacLeish retaliated against them in violation of the First Amendment's Free Speech Clause after they exercised their rights to report workplace problems through the DSP chain of command and to the State Auditor of Accounts (Count I). (D.I. #1.) On October 14, 2005, plaintiffs filed an Amended Complaint, adding a claim that defendants' conduct violated the First Amendment's Petition Clause (Count II). (App. at A-165 ­ A-193; D.I. #45.) Plaintiff Foraker filed Civil Action No. 04-1207-GMS (the "Foraker Action") on August 30, 2004, alleging that Chaffinch and MacLeish retaliated against him in violation of the First Amendment's Free Speech Clause (Count I) and Petition Clause (Count II) because he had sued defendant Chaffinch in 2002 over a lateral job transfer. (App. at A-194 ­ A-218; D.I. #1.) Plaintiff Foraker further alleged that defendants Chaffinch and MacLeish made statements about him that were defamatory under Delaware law (Count III) and invaded his privacy (Count IV). (See id.)

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On January 25, 2006, the parties filed summary judgment motions in both cases as to all counts except that Foraker did not move for summary judgment on his defamation and invasion of privacy claims. (D.I. ##80-86 (Price Action); D.I. ##60-66 (Foraker Action).) On April 10 and 13, 2006, the Court denied plaintiffs' motions for summary judgment. (D.I. #135 (Price Action); D.I. #112 (Foraker Action).) On May 12, 2006, the Court denied defendants' motions for summary judgment in the Price Action, and denied it in the Foraker Action except for Foraker's claim for invasion of privacy. (D.I. #167 (Price Action); D.I. #118 (Foraker Action).) The Court also found that plaintiff Foraker is a limited purpose public figure who must prove "actual malice" to establish a claim for defamation. (See id.) By Order dated April 18, 2006, the Court granted plaintiffs' motion to consolidate the Price and Foraker Actions for trial. (D.I. #138 (Price Action); D.I. #117 (Foraker Action).) Trial commenced on May 15, 2006, and lasted for twelve days. At the conclusion of plaintiffs' case and again at the conclusion of all of the evidence, defendants moved for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. On May 30, 2006, the day the Court charged the jury, the United States Supreme Court decided Garcetti v. Ceballos, No. 04-473, 2006 U.S. LEXIS 4341 (S.Ct. May 30, 2006), which circumscribes the scope of First Amendment protection afforded public employees who speak on matters of public concern pursuant to their duties as public employees. Garcetti clearly bars the Price Action as a matter of law. The jury returned a verdict in favor of the plaintiffs except for its finding in favor of defendant MacLeish as to Foraker's defamation claim. (See App. at A-1 ­ A-15 (Verdict Forms); D. I. ##182-84 (Price Action).)

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On May 31, 2006, defendants made an oral motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b) and, alternatively, a motion to alter or amend the judgment under Rule 59(e). The Court entered judgment on the verdict on June 15, 2006. (D.I. # 186.) Defendants submit this motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b) on the entire Price Action and the defamation claim in the Foraker Action. If the Court determines that it cannot act under Rule 50(b) because Garcetti was not raised expressly in the defendants' Rule 50(a) motions, the defendants ask the Court to amend the judgment pursuant to Fed. R. Civ. P. 59(e) by vacating the judgment entered on June 15 and entering judgment in defendants' favor and against all plaintiffs in the Price Action. Garcetti requires this result. Alternatively, defendants move for a new trial under Fed. R. Civ. P. 59(a) on issues as to which the Court does not grant judgment as a matter of law. II. SUMMARY OF THE ARGUMENT 1. Defendants are entitled to judgment under either Rule 50(b) or Rule 59(e) in the

Price Action because, under Garcetti, plaintiffs have no First Amendment protection against their superior officers' reaction to statements the plaintiffs made during the course of their duties. 2. Defendants are entitled to judgment as a matter of law with respect to plaintiffs'

First Amendment Petition Clause claims in the Price Action because plaintiffs' speech about the conditions at the firing range was not a "petition" under the First Amendment. If plaintiffs' speech about the firing range was a "petition," defendants are entitled to judgment as a matter of law because the "petition" is not constitutionally protected under Garcetti. 3. Defendants are entitled to judgment as a matter of law with respect to Foraker's

claim of defamation against Chaffinch in the Foraker Action because (a) Foraker has failed to

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demonstrate actual malice, (b) each of the statements at issue is true, and (c) Foraker has failed to demonstrate reputational harm. 4. Defendants are entitled to a new trial because: (a) the Court erred in admitting the testimony of Ernest "Bud" Fini as an

expert on hiring practices in the U.S. firearms industry; (b) the Court erred in refusing to give a jury instruction that defendant

Chaffinch had a First Amendment right to speak out about the firing range; (c) once the Court applies Garcetti to grant defendants' motion for judgment

as a matter of law with respect to Foraker's claims in the Price Action, the verdict in Foraker's favor is ambiguous; (d) the consolidated trial of the claims of Price and Warren and the claims of

Foraker resulted in prejudice to defendants and an unjust disposition of both cases; (e) the evidence does not support the jury's award of punitive damages; in the

alternative, the punitive damages award should be remitted because it is disproportionate to the evidence presented at trial of the net worth of defendants. III. CONCISE STATEMENT OF FACTS A. The Parties

Christopher Foraker became a sergeant and the non-commissioned officer-in-charge (NCOIC) of the Firearms Training Unit ("FTU") on August 1, 2001. He had worked in the FTU as a corporal since 1997. On April 8, 2002, Col. Chaffinch transferred Foraker from the FTU and replaced him with Sgt. Richard Ashley. Foraker challenged the lateral reassignment in Foraker v. Chaffinch, No. 02-302-JJF (D. Del.), contending that Chaffinch retaliated against him for excessively criticizing a subordinate range officer who happened to be a friend of Chaffinch.

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In June 2003, a jury found that Col. Chaffinch had violated Foraker's free-speech rights by transferring him and awarded Foraker compensatory and punitive damages. After the verdict, the parties settled the case, agreeing that Chaffinch would return Foraker to the FTU as NCOIC. (App. at A-55 ­ A-56.) Foraker replaced Ashley on December 1, 2003, and remained in the FTU until October 2005, when he went on medical leave. Kurt Price was first assigned to the FTU in 1996; he worked there continuously until April 2006. Price has suffered severe noise-induced hearing loss. For that reason, the DSP assigned him to light duty in June 2004 (App. at A-226 ­ A-227 (Pls.' Ex. 4)); he went on medical leave in March 2005 for stress. On April 7, 2006, Price's sick leave and other accumulated time were exhausted, and he retired from the DSP. (App. at A-230 ­ A-231.) Wayne Warren was first assigned to the FTU in 2001. Like Price, he has suffered noiseinduced hearing loss. He has been on light duty since June 2004 (App. at A-236 ­A-237 (Pls.' Ex. 5)), and on medical leave for stress since May 2005. Warren remains on sick leave. B. The DSP Firing Range

The Firearms Training Unit conducts weapons and use-of-force training for state troopers and other law enforcement officers within the State of Delaware. It is also responsible for all recordkeeping and field activities associated with DSP weapons and body armor. The FTU reports to the Assistant Director of Training at the DSP Training Academy, who in turn reports to the Director of Training, who is responsible for all training and certification within the DSP. The State Department of Administrative Services ("DAS"), Division of Facilities Management, in cooperation with the DSP, built an indoor firing range in Smyrna that opened in September 1998. The firing range hosted training shoots for a myriad of federal, state and local law enforcement agencies in Delaware during its years of operation. The range closed in March

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2004 due to environmental contamination. (App. at A-238 ­ A-239.) It remains closed pending modifications to its mechanical systems. The firing range was the subject of complaints by DSP personnel during the entire time it was operational. The biggest complaints were about the heating, ventilating and air conditioning ("HVAC") system. Notwithstanding the complaints, the HVAC operated for more than five years with only periodic stoppages for cleaning. (App. at A-248.) C. Range Maintenance

When the firing range opened in the fall of 1998, troopers assigned to the FTU received instruction in the maintenance of the bullet trap in the indoor range. Maintenance included removing shotgun wadding and paper target "blow back" from the water tank below the bullet trap, unclogging the pumps that circulated water from the tank through the bullet trap, and replacing filters on the water system. (App. at A-76 ­ A-77 (5/16/06 Trial Tr., Testimony of W. Warren, at 424:19 ­ 427:18); A-124 (5/19/06 Trial Tr., Testimony of B. Price, at 1002:4 ­ 1004:4); A-268 ­ A-269 (Trial Tr., Testimony of R. Ashley (dep. tr. at 8:24 ­ 13:12); A-256 ­ A257 (Trial Tr., Testimony of A. Parton (dep. tr. at 9:11 ­ 13:20)); see also Testimony of C. Foraker.) This routine maintenance prevented the water system from becoming clogged. In 2000, as a result of concerns about the elevated blood lead levels of some of the FTU troopers, the DSP switched from lead to non-leaded "frangible ammunition" in the firing range. Frangible ammunition splatters into bullet fragments and dust when it hits. (App. at A-269 ­ A270 (Trial Tr., Testimony of R. Ashley (dep. tr. at 13:23 ­ 14:14)); see also App. at A-249.) Frangible ammunition particles are washed by the water system into the water tank that recirculates water back into the water system. At the DSP range, these particles and water formed a hard substance that clogged the pumps, filters, and spray nozzles and caused the conveyor system to freeze up. (App. at A-268 (Trial Tr., Testimony of R. Ashley (dep. tr. at 9:3-6-

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19)); A-124 (5/19/06 Trial Tr., Testimony of B. Price, at 1003:3-17).) In September 2003, NCOIC Ashley hired a conveyor company to replace the metal conveyor belt with a drag belt system designed to scoop the clay-like substance and carry it to the end of the belt where it could be pushed into drums for disposal. (See App. at A-269 (Testimony of R. Ashley (dep. tr. at 11:11 ­ 12:9)).) The drag belt system had difficulties, too, and broke down. By the time it broke down, Foraker had replaced Ashley. (App. at A-281.) D. The FTU Staff Stopped Maintenance On The Bullet Trap

Foraker and his three subordinates decided within a week of Foraker's return to the range to "suspend" the activities necessary to keep the water system of the bullet trap operational. (See App. at A-80 (5/16/06 Trial Tr., Testimony of W. Warren, at 437:10-17); A-126 (5/19/06 Trial Tr., Testimony of B. Price, at 1010:6-14); A-159 (5/22/06 Trial Tr., Testimony of C. Foraker, at 1396:7-20); see also App. at A-240 ­ A-253; Testimony of J. Rothenburger.) At the point they stopped performing the maintenance activities, Foraker and the FTU staff understood that their failure to perform those functions would cause the bullet trap system to fail. (See App. at A-80 (5/16/06 Trial Tr., Testimony of W. Warren, at 438:23 ­ 439:13); A-126 (5/19/06 Trial Tr., Testimony of B. Price, at 1010:16 ­ 1011:6)); see also Trial Testimony of Chris Foraker.) Foraker encountered mechanical difficulties with the bullet trap shortly after he "suspended" maintenance, and on December 19, 2003, he began to report these difficulties up the DSP chain of command. Lt. Col. MacLeish responded by asking Foraker for cost estimates for the repair of the conveyer-belt system. (App. at A-280 ­ A-281.) He also asked Capt. Greg Warren, who, as Director of Training, was responsible for the range, to prepare a written report addressing Foraker's concerns and proposing possible solutions. (Id.) Foraker and individuals above him in the chain of command continued this dialogue regarding the deteriorating conditions at the range through March 2004. (Id.; see also App. at A-283 ­ A-284.) -7-

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E.

The April 6, 2004, Media Tour of the Firing Range

Beginning on March 20, 2004, articles began to appear in the Delaware State News about conditions at the firing range, with other news articles following. (See, e.g., App. at A287 ­ A-291.) On April 6, 2004, DAS Secretary Gloria Homer conducted a media tour through the range, which was not operational at the time; defendant Chaffinch attended the tour. During the event, Secretary Homer made a number of comments to the effect that the facility had been poorly maintained by DSP personnel. (App. at A-292 ­ A-297.) Chaffinch was quoted as follows in the April 7 edition of the State News: "When I was here in the fall, everything was going as well as the previous times I'd been here." "There was some discoloration in the bullet trap but that was about it," he said. "I think people who live in glass houses shouldn't throw stones. It's a lot dirtier now. Things seemed in their proper places in the fall. I've never seen it like this." "The previous sergeant in charge did a good job," he continued. "Things changed in December when another sergeant came in. That's at least a portion of where the ball was dropped." "[T]he bullet trap required hands-on, daily cleaning," he said. "Sgt. Ashley was willing to do that." "I cannot say Sgt. Foraker was willing to do that. He was interested in instruction and teaching people how to shoot. He did not feel (bullet trap cleaning) was part of his purview. He felt that was putting him in harm's way." (Id.) F. The State Auditor's Investigation

On April 21, 2004, the Governor requested the State Auditor to review "the issues surrounding the closing of the DSP Firing Range in March 2004." (App. at A-240.) As part of the investigation, the investigators from the State Auditor's office interviewed the four DSP range officers and Capt. Greg Warren at the office of their common attorney in Wilmington, and

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re-interviewed Foraker and Price on July 28, 2004. As state troopers, plaintiffs had a duty to cooperate with the investigation and to describe their experiences at the firing range to the investigators. (See App. at A-63 (5/16/06 Trial Tr., Testimony of W. Warren, at 307:2-4); A-84 ­ A-85 (5/17/06 Trial Tr., Testimony of D. Baylor, at 554:23 ­ 555:9); A-116 (5/19/06 Tr., Testimony of B. Price, at 970:23 ­ 971:3); A-131 ­ A-132 (5/22/06 Trial Tr., Testimony of G. Warren, at 1202:23 ­ 1206:14); A-320 (Pls.' Answers to Interrogatories).) The State Auditor issued his report on October 12, 2004. He made the following conclusions pertinent to this case: On December 1, 2003, a new Sergeant took over command of the firing range. In an interview he informed us that shortly thereafter he met with the current staff and as a result of that meeting a decision was made not to perform any maintenance at the range. The staff made the decision not to continue performing maintenance and custodial functions due to health related issues and not being qualified to perform those functions. *** We can only surmise that with the failing of the conveyor system, no maintenance performed on the bullet recovery system, and no custodian maintenance being performed to clean the firing range, that these situations contributed to an unhealthy and unclean environment leading to the ultimate closing of the firing range. (App. at A-250.) The closing of the range resulted in part from Foraker's decision to stop performing maintenance on the bullet trap. G. Evidence of Damage to Chris Foraker's Reputation

In support of his claim that Chaffinch defamed him during the April 6, 2004 media tour, Foraker introduced evidence of reputational harm in the form of out-of-court questions by Foraker's acquaintances regarding the reason why the range was closed. (See App. at A-143 (5/22/06 Trial Tr., Testimony of S. Foraker, at 1328:7 ­ 1329:2); see also Testimony of Chris

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Foraker.) Foraker also introduced the out-of-court statement of Deputy Attorney General Michael Tupman at a meeting with firearms salesmen that Foraker was "like a bad penny [who] just keep[s] turning up." (See App. at A-67 (5/16/06 Trial Tr., Testimony of W. Warren, at 381:11 ­ 382:16); A-64 ­ A-67 (5/16/06 Trial Tr., sidebar discussion, at 372:25 ­ 381:8); see also Testimony of Chris Foraker.) Foraker offered no other evidence in support of his claim that his reputation has been harmed by allegedly defamatory statements. Indeed, one of plaintiffs' own witnesses, Capt. Ralph Davis, stated that Foraker's reputation had not been harmed as a result of the statements at issue. (See Testimony of Ralph Davis.) The testimony of Maj. Joe Papili and Sgt. Al Parton was consistent with Davis's. (See App. at A-259 (Testimony of A. Parton (dep. tr. at 19:10 ­ 20:5)).) H. Disputed Damages Testimony

Over the defendants' objections, plaintiffs introduced opinion testimony under Rule 702, Fed. R. Evid., from Ernest "Bud" Fini on hiring practices in the U.S. firearms industry. (See App. at A-98 ­ A-105 (5/18/06 Trial Tr., Testimony of E. Fini, at 871:4 ­ 897:12); App. at A298 ­ A-301 (Fini Report).) Since Foraker has suffered no hearing loss and can work as a trooper until age 55, this was the only testimony from which the jury could have concluded that Foraker suffered any wage loss as a result of the events in the case. IV. ARGUMENT A. Standard of Review 1. Renewed Motion for Judgment as a Matter of Law under Rule 50(b)

Judgment as a matter of law may be granted under the Federal Rules of Civil Procedure when "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party

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on that issue." Fed. R. Civ. P. 50(a). In McDaniels v. Flick, 59 F.3d 446 (3d Cir. 1995), the Third Circuit stated that: Such a motion should be granted only if, viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability. In determining whether the evidence is sufficient to sustain liability, the court may not weigh the evidence, determine the credibility of witnesses, or substitute its version of the facts for the jury's version. Id. at 453 (quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149-50 (2000). A post-trial motion for judgment as a matter of law under Rule 50(b) must be preceded by a Rule 50(a) motion "sufficiently specific to afford the party against whom the motion is directed with an opportunity to cure possible defects in proof which otherwise might make its case legally insufficient." Lightning Lube, Inc., 4 F.3d at 1173. 2. Motion to Alter or Amend Judgment Under Rule 59(e)

Defendants move in the alternative to amend the judgment pursuant to Fed. R. Civ. P. 59(e) by vacating the judgment entered on June 15, 2006, and entering judgment in favor of the defendants on all parts of the Price Action. The Court may grant a motion to alter or amend a judgment on one of three grounds: (1) "an intervening change in controlling law;" (2) "the availability of new evidence;" or (3) "the need to correct clear error [of law] or prevent manifest injustice." North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995); see also Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). The Price Action fits the first and third grounds. The decision whether to grant a motion to amend a judgment is left to "the sound discretion of the district court." See Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 272 (3d Cir. 2001).

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3.

Motion for New Trial Under Rule 59(a)

The defendants here also ask for a new trial. In an action where there has been a trial by jury, a "new trial may be granted to all or any of the parties and to all or part of the issues." Fed. R. Civ. P. 59(a). New trials may be granted "for any of the reasons for which new trials have been granted in actions at law in the Courts of the United States." Id. A district court may grant a motion for a new trial if it determines (1) the verdict is against the weight of the evidence, (2) the damages are excessive, or (3) substantial errors were made in the admission or rejection of evidence or the giving or refusal of instructions. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S. Ct. 189, 194 (1940); see also Woodson v. Scott Paper Co., 109 F.3d 913, 936 (3d Cir. 1997) (granting new trial "because of errors in the jury instructions"); Garrison v. Mollers N. Am., Inc., 820 F. Supp. 814, 820 (D. Del. 1993) (stating that new trial is available where "jury's verdict is against the weight of the evidence and the jury's damage award is excessive") (citations omitted). The standard for a new trial is "substantially less demanding than that for judgment as a matter of law." Lightning Lube, Inc. v. Witco Corp., 802 F. Supp. 1180, 1185 (D.N.J.), aff'd, 4 F.3d 1153 (3d Cir. 1993). For example, a court analyzing a motion for a new trial need not view the evidence in the light most favorable to the verdict winner. See Magee v. Gen. Motors Corp., 213 F.2d 899, 900 (3d Cir. 1954); see also Henry v. Hess Oil V.I. Corp., 163 F.R.D. 237, 243 (D.V.I. 1995). "The decision to grant or deny a new trial is committed to the sound discretion of the district court." LifeScan, Inc. v. Home Diagnostics, Inc., 103 F. Supp. 2d 345, 351 (D. Del. 2000) (citations omitted).

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B.

The Court Should Grant Defendants' Motion for Judgment as a Matter of Law with Respect to the Jury's Findings of First Amendment Retaliation in the Price Action and of Defamation (Count III) in the Foraker Action. 1. The Court Should Enter Judgment in Favor of Defendants in the Price Action Because Garcetti v. Ceballos Holds That Public Employees Who Make Statements Pursuant to Their Official Duties are not Protected by the First Amendment. a. Garcetti is a change in the law that deprives the Price plaintiffs of a cause of action on the facts they proved.

Defendants are entitled to judgment as a matter of law in the Price Action because the speech that forms the basis of plaintiffs' retaliation allegations was made pursuant to their official duties as Delaware State Police troopers, and under Garcetti v. Ceballos, No. 04-473, 2006 U.S. LEXIS 4341 (S.Ct. May 30, 2006), the First Amendment does not protect public employees who make statements pursuant to their official duties. Id. at *21. The plaintiff in Garcetti was a deputy district attorney whose job responsibility during the relevant period included the review of affidavits used by prosecutors to obtain search warrants. See id. at *20-21. He reviewed a search warrant, found what he felt were "serious misrepresentations" in it, and recommended dismissal of the prosecution. See id. at *8. In the aftermath of the criminal defendant's unsuccessful attempt to have the case dismissed based on the deputy D.A.'s testimony in opposition to the warrant, the deputy D.A. claimed that his superiors subjected him to a "series of retaliatory employment actions," including a reassignment, a transfer, and denial of a promotion. See id. at *9-10. The Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communication from employer discipline." See id. at *21. In the Price Action, plaintiffs Price, Warren, and Foraker asserted repeatedly that they reported their concerns about the firing range "pursuant to their official duties," the category of

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employee speech that Garcetti now says is unprotected. The following is a summary of testimony introduced by the Price plaintiffs on this point. · Foraker was in sole charge of the range, and its condition was his responsibility; thus, any reports up the chain of command on conditions there were within his official job duties. (See App. at A-395 ­ A-396 (Pls.' Ex. 7).) Foraker's performance appraisal for 2003-2004 included high praise from his superior officers for his reporting on conditions at the range. Lt. Ralph Davis, Sgt. Foraker's immediate supervisor in the chain of command, commented: Upon returning to the DSP FTU, Sgt. Foraker immediately identified safety issues that placed the health of FTU staff in serious jeopardy. Sgt. Foraker immediately brought this to the attention of the DSP Academy staff and continued to provide the Academy staff, as well as the DSP Executive Staff, with information concerning the conditions at the range. (See id.) · Price and Warren assisted Foraker at the range; thus, reporting problems up the chain of command was one of their official duties. (See App. at A-47, A48, A-50, A-51, A-53 (5/16/06 Trial Tr., Testimony of W. Warren, at 243:1522, 244:6-22, 247:2-5, 255:13-17, 258:8-16, 260:16-21, 265:22-24); A-85 (5/17/06 Trial Tr., Testimony of D. Baylor, at 555:10-24); A-113 ­ A-114 (5/19/06 Trial Tr., Testimony of B. Price, at 960:20 ­ 961:7).) Both Price and Warren received positive performance appraisals from Foraker for their role in identifying and reporting problems. Under the heading "Areas or incidents where performance was distinguished, exceeded expectations, or resulted in commendation," Foraker wrote in Price's performance appraisal: Cpl/3 Price aided his supervisors in identifying safety issues at the facility that placed the health and safety of his coworkers, our families, our students and their families at risk. Cpl/3 Price has reached out to experts in the field of ventilation, firing range design along with heavy metal exposure and contamination and established a rapport with these professionals to search out the root cause and contributing factors surrounding the dangers we face in exposure to heavy metal contamination. Cpl/3 Price contacted and established communication with the experts in those fields to obtain a greater understanding in an effort to help protect and inform all assigned instructors, all of those who train at the facility, the cleaning personnel and all of our family members as well as the Division of State Police.

·

·

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(App. at 381 (Pls.' Ex. 15).) Under the same heading in Warren's performance appraisal, Foraker wrote: Cpl/3 Warren aided his supervisors in identifying safety issues at the facility that placed the health and safety of his coworkers, our families, our students and their families at risk. Cpl/3 Warren has conducted much research in the areas contributing to the cause surrounding the dangers of heavy metal exposure and contamination along with contacting and establishing a rapport with experts in that field of understanding in an effort to help protect and inform all instructors assigned to the facility, all of those who train at the facility, the civilian cleaning personnel and all of our family members as well as the Division of State Police. (App. at A-369 (Pls.' Ex. 20).) · Both Price and Warren testified that they had a professional duty to meet with the Auditor's investigators to discuss problems at the range: Price's Testimony: Q. Were you trying to ­ why did you speak to the auditors? A. It was my duty to speak to the auditors. The order came down from the executive office of the State of Delaware, meaning the Governor's office. I am bound by that order. (See App. at A-116 (emphasis added) (5/19/06 Tr., Testimony of B. Kurt Price, at 970:23 ­ 971:3).) Warren's Testimony: Q. Now, Wayne, why did you speak to the auditors? A. There was an auditors' investigation. I was required to speak to them. (See App. at A-63 (emphasis added) (5/16/06 Tr., Testimony of Wayne Warren, at 307:2-4).) · Price, Warren, and Foraker elicited testimony at trial from Col. MacLeish, Ret. Maj. David Baylor, Ret. Capt. Greg Warren, and Capt. Ralph Davis that their reports on problems at the range both up the chain of command and to the investigators for the Auditor's Office were within their official duties: Ret. Maj. Baylor's Testimony:

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Q. Now, you remember that it was the Governor herself who ordered the auditors to investigate the conditions at the range? A. Yes, sir. Q. And the State Police, was it under a duty to cooperate in that investigation? A. Yes, sir. Q. And when the ­ if the Auditor's office contacted my clients and wanted to interview them, they had a duty to obey that request. Isn't that correct? A. Whenever the Governor directs us to do something, it needs to be done. (See App. at A-84 ­ A-85 (5/17/06 Trial Tr., Testimony of D. Baylor, at 554:23 ­ 555:9); see also App. at A-131 ­ A-132 (5/22/06 Trial Tr., Testimony of G. Warren, at 1202:23 ­ 1206:14).) This is not a case in which "there is room for serious debate" about the scope of plaintiffs' employment duties. Garcetti, 2006 U.S. LEXIS 4341, at *26. The record is replete with evidence that plaintiffs made statements up the chain of command or to the investigators for the Auditor of Accounts pursuant to their official duties as Delaware State Police troopers. There is no evidence to the contrary. Unlike in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731 (1968), the plaintiffs made none of their statements in a public forum.1 Under Garcetti, Price, Warren, and Foraker were not speaking as citizens when they made these statements. See Garcetti, 2006 U.S. LEXIS 4341, at *21. Accordingly, they have no cause of action for actions taken against them by the defendants.

All reports that Foraker, Price, and Warren made concerning the conditions of the range were either up the chain of command or to the investigators for the Auditor of Accounts. (See App. at A-47 (5/16/06 Trial Tr., Testimony of W. Warren, at 244:6-22); A-87 ­ A-88 (5/17/06 Trial Tr., Testimony of David Baylor, at 566:16 ­ 567:2); A-113 ­ A-114 (5/19/06 Trial Tr., Testimony of B. Price, at 960:20 ­ 961:7); A-131 ­ A-132 (5/22/06 Trial Tr., Testimony of G. Warren, at 1202:23 ­ 1206:14); A-164 (5/22/06 Trial Tr., Testimony of C. Foraker, at 1416:1014); see also A-391, A-393 (Pls.' Ex. 7).)

1

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b.

The Court should grant judgment as a matter of law pursuant to Rule 50(b) on the claims now barred by Garcetti; in the alternative, the Court should amend its judgment entered on June 15, 2006, to reflect that Garcetti is now controlling law on the claims in the Price Action.

The Court can ordinarily grant a Rule 50(b) motion only where the moving party has previously made a motion pursuant to Rule 50(a), and then only on the grounds presented in the Rule 50(a) motion. Defendants submit that, although the Garcetti issue was not the subject of a pre-verdict motion for judgment as a matter of law, the Court can grant a Rule 50(b) motion because of the extraordinary circumstances of this case. Before the Supreme Court's decision in Garcetti, Third Circuit law under the First Amendment, protected the statements of public employees made in the course of their duties. It "declined to distinguish between a public employee's expression `as an employee' and a public employee's expression `as a citizen.'" Baldassare v. New Jersey, 250 F.3d 188, 197 (3d Cir. 2001) (quoting Azzaro v. County of Allegheny, 110 F.3d 968, 979 (3d Cir. 1997)); see also Feldman v. Phila. Hous. Auth., 43 F.3d 823, 830-31 (3d Cir. 1994) (finding that speech of government employee was constitutionally protected although the employee's conduct was "required" by his employer). Thus, a statement an employee made in the course of his or her duties was entitled to the same protection as a statement the employee made as a citizen unconnected to his or her job. Garcetti overturned settled Third Circuit law. Since the defendants could not have made a Rule 50(a) motion on Garcetti grounds during the trial, the Court should allow the defendants to raise the issue in a post-trial motion for judgment as a matter of law because Garcetti clearly bars the Price Action. In the alternative, the Court should exercise its discretion under Rule 59(e) to amend the judgment to account for Garcetti. The Supreme Court's holding in Garcetti is a change in the

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controlling law and, as such, is a basis for invoking Rule 59(e).2 It would also be a miscarriage of justice for the plaintiffs to prevail when the Supreme Court decided during the trial that these types of claims are not actionable under the First Amendment. In either case, the Court should enter judgment in favor of defendants and against the plaintiffs on all parts of the Price Action. 2. Defendants Renew Their Motion for Judgment as a Matter of Law on Plaintiffs' Petition Clause Claims in the Price Action Because Plaintiffs Have Not Stated a Claim Under the First Amendment Petition Clause. a. Defendants are entitled to judgment as a matter of law because plaintiffs' speech about the conditions at the firing range was not a "petition" under the First Amendment.

The plaintiffs sought in the Price Action to add an additional constitutional gloss to their speech about the range by labeling it as a "petition." Characterizing a particular form of speech as a petition, however, does not by itself bestow the constitutional protection of the First Amendment's Petition Clause. San Filippo v. Bongiovanni, 30 F.3d 424, 442 (3d Cir. 1994). The Third Circuit, noting that the Petition Clause is not meant to be "a graceful but redundant appendage of the clauses guaranteeing freedom of speech and press," has narrowly defined a "petition" in the constitutional sense as an invocation of a "formal mechanism" that has been adopted by a government "for redress of those grievances for which government is allegedly accountable." Id. at 439, 442; see Black's Law Dictionary (8th ed. 2004) (defining "petition" as a "formal written request presented to a court or other official body"). Consistent with this heightened appreciation for the formalities attending this particularized form of speech, courts have recognized constitutionally protected "petitions" in lawsuits, administrative claims, and
The Court could also vacate the judgment and order a new trial under Rule 59(a), then treat the instant motion as a motion for summary judgment based on the trial record, and enter judgment in favor of defendants under Rule 56.
2

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employee-grievance procedures. Id. at 439 & n.18 ("[W]hat San Filippo characterizes as `petitions' are not letters to the government-employer, but lawsuits and grievances directed at the government-employer or its officials. Submissions of this sort purport to invoke formal mechanisms for the redress of grievances."); Bradshaw v. Township of Middletown, 296 F. Supp. 2d 526, 546 (D.N.J. 2003), aff'd 2005 U.S. App. LEXIS 18622 (3d Cir. Aug. 29, 2005); cf. Bowman v. City of Middletown, 91 F. Supp. 2d 644, 664 (S.D.N.Y. 2000) (stating that "the administrative remedies for which an inmate enjoys a First Amendment right of petition are limited to those set forth under state administrative law, such as sending a complaint to a state bureau of prisons, as opposed to informal or intra-prison complaints") (citations omitted). The plaintiffs' statements about the range directed up the chain of command or to the Auditor were not constitutionally cognizable petitions. Plaintiffs did not initiate formal proceedings within the Delaware State Police or the Office of the Auditor of Accounts. Foraker's internal statements to the DSP chain of command were informal criticisms that are not "petitions" in the constitutional sense. Cooper v. Cape May County Bd. of Social Servs., 175 F. Supp. 2d 732, 746 (D.N.J. 2001) (holding that "speech in many informal settings, including letters, phone calls, and meetings with officials" does not "implicate the Right to Petition under the First Amendment because [it] is not in the nature of a formal grievance procedure that the Petition Clause is designed to protect."). Similarly, the plaintiffs' statements to the Auditor were not formal claims or grievances; they were factual statements made to investigators. Because plaintiffs' statements were not protected under the Petition Clause, defendants are entitled to judgment as a matter of law on Count II of the Price Action.

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b.

Even if plaintiffs' speech about the indoor firing range was a "petition," it is not constitutionally protected activity for the reasons set forth in Garcetti.

In Garcetti, the Supreme Court held that an employee is not entitled to First Amendment protection for speech made pursuant to his or her official duties. Because the "right to petition is cut from the same cloth as the other guarantees of [the First] Amendment," McDonald v. Smith, 472 U.S. 479, 482 (1985), there is no principled reason why the government should not also be able to freely act against an employee whose speech might be characterized as a "petition."3 Id. at 485 ("These First Amendment rights are inseparable, and there is no sound basis for granting greater constitutional protection to statements made in a petition to the President than other First Amendment expressions.") (citations omitted); Grigley v. City of Atlanta, 136 F.3d 752, 755 (11th Cir. 1998). This is especially appropriate where, as in this case, the content, context, and scope of plaintiffs' Petition Clause claim are identical to their free speech claim. The evidence is unambiguous that plaintiffs' speech about the range, even if understood as a "petition," was made pursuant to their official duties as officers responsible for the maintenance and conditions at that facility. Thus, to safeguard the ability of the State as an employer to "control[] speech made by an employee in his or her professional capacity" and to prevent "permanent judicial intervention in the conduct of governmental operations," the Court should hold this so-called "petition" beyond the protective reach of the First Amendment and enter judgment as a matter of law in defendants' favor.

Defendants acknowledge that the Third Circuit has held that petitions are different from other, less formal types of protected free speech. San Filippo, 30 F.3d at 441-42. Specifically, a plaintiff asserting a violation of his or her petition rights need not prove that the petition in question, when made to the same government from which relief of the grievance might come, was a matter of public concern. Id. The Supreme Court's analysis in Garcetti of what constitutes First Amendment "protected activity," however, takes place at a level prior to any consideration of "public concern." Thus, the differences between petition and speech recognized by the Third Circuit do nothing to immunize plaintiffs' Petition Clause claim from the new restrictions set forth in Garcetti.

3

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3.

Defendants Renew Their Motion for Judgment as a Matter of Law on Foraker's Claim of Defamation Against Defendant Chaffinch Because (1) Foraker Has Failed to Demonstrate Actual Malice, (2) Each of The Statements at Issue is True, And (3) Foraker Has Failed to Demonstrate Reputational Harm.

To establish a defamation claim under Delaware law, a plaintiff must "ultimately prove that: (1) the defendant made a defamatory statement; (2) concerning the plaintiff; (3) the statement was published; and (4) a third party would understand the character of the communication as defamatory." Doe v. Cahill, 884 A.2d 451, 463 (Del. 2005). In addition, Plaintiff Foraker, who is a limited purpose public figure, must meet the exceedingly high burden of proving that the allegedly defamatory statements are false and that defendants made the statements with "actual malice." Id. Foraker cannot satisfy these legal requirements. The allegedly defamatory statements are set forth in the statement of facts at Section III.E. a. Plaintiff Foraker has failed to show that defendant Chaffinch spoke with "actual malice."

As a limited purpose public figure, plaintiff Foraker must prove with clear and convincing evidence that defendant Chaffinch acted with actual malice. Riley v. Moyed, 529 A.2d 248, 250 (Del. 1987); see also New York Times Co. v. Sullivan, 376 U.S. 254, 270-71 (1964). Foraker has not met this burden. "Actual malice" is a term of art in constitutional law that does not mean bad motive or ill will. Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 666 (1989) ("the actual malice standard is not satisfied merely through a showing of ill will or `malice' in the ordinary sense of the term"). To prove actual malice, a plaintiff must establish that the defendant published a factually false statement of fact with actual knowledge that it was false or with "reckless disregard" of whether it was false. New York Times, 376 U.S. at 270-71; Gill v. Del. Park, 294 F. Supp. 2d 638, 646 (D. Del. 2003).

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"Reckless disregard" is also a term of art. See New York Times, 376 U.S. at 288 (finding of negligence "is constitutionally insufficient to show the recklessness that is required for a finding of actual malice"). Reckless disregard requires a showing that the defendant "in fact entertained serious doubts" as to the truth of the publication, St. Amant v. Thompson, 390 U.S. 727, 731-732 (1968), or that the challenged statements were published with a "high degree of awareness of their probable falsity." Garrison v. Louisiana, 379 U.S. 64, 74 (1964). The Court's inquiry is only whether the author believed his statement was true when he made it. Foraker's trial evidence was not even close to meeting this burden. He has not shown that any of the statements made by defendant Chaffinch were objectively false, let alone that Chaffinch believed them to be false when he made them. He has presented no evidence that Chaffinch did not in fact believe Foraker failed to perform all the duties of his job and "did something wrong." Plaintiff's evidence of actual malice was (1) the argument that Chaffinch was aware of problems with the FTU before Foraker returned in December 2003, and (2) Chaffinch's statements to other state troopers before and after the April 6, 2004 press conference that he would "get" Foraker or "put it to" him. (D.I. #79 at 37.) These facts do not prove "actual malice" as a matter of law. First, because actual malice requires a "high degree of awareness" of the probable falsity of the statement, Chaffinch's general awareness of problems at the range before December 2003 is largely immaterial. Chaffinch reported to the State News that the range had been in operating condition during the previous fall (a fact that is not disputed), and noted that it was no longer in operating condition in April 2004. Chaffinch's view was supported by the testimony of Richard Ashley, David Baylor, and William Bryson. Even two of the plaintiffs, Price and Warren,

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testified that the range was in better condition before Foraker's return than it was in December 2003. Chaffinch told the State News that the previous sergeant did a "good job," obviously referring to the maintenance of the range, and that "things changed" when Foraker returned. Given the trial record, no reasonable jury could have found that Chaffinch said these things knowing that they were false or that there was a "high degree of awareness" that they were false. In fact, they appear to have been true, since Foraker admitted that he stopped doing maintenance, and it is obvious that the range went from usable before December 1 to unusable by February 1. Given the state of the record, it is also impossible for a reasonable jury to have concluded that Chaffinch's comments about Ashley being willing to do bullet trap maintenance and Foraker feeling that it put him in harm's way were made with requisite awareness of falsity. Again, Foraker did not even prove that these statements were false. The second part of Foraker's evidence, and undoubtedly what persuaded the jury, was the testimony of Ret. Maj. Baylor, and Captain Glenn Dixon that Chaffinch disliked Foraker and intended to avenge himself against him. While such evidence might show malice in layman's terms, it is not "actual malice" in First Amendment terms. The constitutional focus is on knowledge of the falsity of the statement the speaker actually made, not on the evil intent of the speaker in the abstract. Even if Foraker proved that Chaffinch went to the range on April 6, 2004, with the intention of doing him harm, he has not proved "actual malice" because he has not proved that Chaffinch knew that what he said was untrue when he said it. All of these elements must be proved by clear and convincing evidence, which Foraker has not done. b. The statements at issue are substantially true.

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factual, are true. When asked about the condition of the firing range during his visit on April 6, 2004, Chaffinch commented, "When I was here in the fall, everything was going as well as the previous times I'd been here." The truth of this statement is established by the testimony of Ret. Maj. Baylor, Ret. Lt. Bryson, and plaintiffs Price and Warren. (See App. at A-81 (5/16/06 Trial Tr., Testimony of W. Warren, at 442:2-12); A-89 (5/17/06 Trial Tr., Testimony of D. Baylor, at 636:23 ­ 637:8); A-125 ­ A126 (5/19/06 Trial Tr., Testimony of B. Price, at 1008:23 ­ 1009:4, 1010:6-14); see also Testimony of William Bryson.) When asked to explain his assessment of the condition of the range in April 2004 compared to Fall 2003, Chaffinch commented, "There was some discoloration in the bullet trap, but that was about it. I think people in glass houses shouldn't throw stones. It's a lot dirtier now. Things seemed in their proper places in the fall. I've never seen it like this." Again, to the extent they are statements of fact, these statements are true. Conditions at the firing range deteriorated from the Fall of 2003 to the Spring of 2004. (See App. at A-81 (5/16/06 Trial Tr., Testimony of W. Warren, at 442:2-12); A-89 (5/17/06 Trial Tr., Testimony of D. Baylor, at 636:23 ­ 637:8); A-125 ­ A-126 (5/19/06 Trial Tr., Testimony of B. Price, at 1008:23 ­ 1009:4, 1010:6-14); see also Testimony of William Bryson.) When asked how the condition of the range deteriorated to a point where shutting it down was necessary, Col. Chaffinch responded, "The previous sergeant in charge did a good job. Things changed in December when another sergeant came in. That's at least a portion of where the ball was dropped." The performance evaluations of the previous sergeant, Richard Ashley, demonstrate that Sgt. Ashley's supervisors believed that he did a "good job" at the firing range. (See App. at A-141 ­ A-142 (5/22/06 Trial Tr., Testimony of G. Warren, at 1243:22 ­ 1247:16); A-351 ­ A-361 (Defs.' Ex. 56).) Moreover, it is undisputed in this case that when Foraker

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resumed control of the range on December 1, 2003, things changed. Prior to that time, the FTU staff working at the range had routinely performed certain maintenance on the bullet trap, including replacing pumps and filters on the trap's water system and cleaning out the water tank. (See supra Part III.C.) Shortly after Foraker returned to the range on December 1, 2003, the members of the FTU agreed to "suspend" maintenance behind