police defamation
Can anyone prevail against government law enforcement agencies for defamatory press releases?
<p>The following problem is becoming notorious (among first search results: "<a href="https://www.abine.com/blog/2011/online-guilty-before-proven-innocent/" rel="noreferrer">online guilty before proven innocent</a>"):</p>

<ol>
<li>Police arrest or charge citizen for a crime.</li>
<li>Police issue press release about the charge, apparently as a matter of policy.  Release is picked up and printed by at least the local paper.</li>
<li>Citizen is exonerated.</li>
<li>Citizen asks, "Now where can I go to get my dignity back?"</li>
</ol>

<p>People lose jobs because of these things, even when police themselves quickly realize they simply "got the wrong guy."  And, thanks to Google and the relative "page rank" of online news sites, a citizen can be tainted by the press release in perpetuity.</p>

<p>It <em>appears</em> that there is some sort of blanket immunity for law enforcement and prosecutors to convict people in the press without due process.  Is there <em>in fact</em> explicit legal immunity from any liability for this practice?  Or are there <em>any</em> examples of a citizen having won legal damages for this practice?</p>

<p>Defamation is a false statement. If the police have arrested you or charged you with a crime, then a press release stating that you have been arrested or charged is a true statement, and not defamation. If the agency falsely stated that you were guilty of the crime then you'd have a case for defamation.</p>

<p>If the police did not actually have probable cause for arresting or charging you, then you might have a case, perhaps for false arrest or malicious prosecution.</p>

<p>In 1996 <a href="https://en.wikipedia.org/wiki/Richard_Jewell">Richard Jewell</a> was investigated by the FBI in the Atlanta Olympics bombing. He was never officially charged. However, multiple newspapers and TV networks named him as a suspect in the bombing. Eventually the US Attorney in the case issued a press release explicitly stating that Jewell was <strong>not</strong> a suspect. Jewell filed at least 5 lawsuits for libel, and received settlements in at least four. Since no government agency had officially named Jewell as a suspect, the suits were against media outlets and Jewell's employer. One might guess that the basis of the reporting was someone in law enforcement speaking off the record, but the press generally doesn't name their confidential sources, so we don't know.</p>

<p>Police may enjoy special immunity. In <a href="https://www.courtlistener.com/opinion/2512107/liser-v-smith/" rel="noreferrer">Liser v. Smith, 254 F. Supp. 2d 89</a>, plaintiff was "exposed" by releasing an ATM photo of him in a murder case (but it turns out he was innocent). The court observes</p>

<blockquote>
  <p>Under D.C. law, government officials have absolute immunity in actions
  for libel and slander - even if their statements are false and
  defamatory - provided that two conditions apply. First, the official
  must have acted within the "outer perimeter" of his official duties;
  second, the particular government function at issue must have been
  "discretionary" as opposed to "ministerial."</p>
</blockquote>

<p>Which means, was it part of the officials duties (seeking public help in locating a suspect is)? As to the "discretionary" test, there's a 4-part juggling act which I honestly have not internalized, but seems to come down to asking "would the government rather not be sued?". The net result in this case was that the government was held to be immune from suit (hence issues of truth are irrelevant).</p>

<p>In <a href="http://caselaw.findlaw.com/ca-court-of-appeal/1039243.html" rel="noreferrer">Gillan v. City of San Marino</a>, at a press briefing, a police lieutenant stated that Gillan "sexually molested a member of last year's girl's basketball team on several occasions" (Gillan was in fact innocent). The full content of the press briefing was not revealed, since the court says that</p>

<blockquote>
  <p>A public employee acting within the scope of employment is immune from
  liability for an injury caused by the employee's "instituting or
  prosecuting any judicial or administrative proceeding․ even if he acts
  maliciously and without probable cause."</p>
</blockquote>

<p>and this includes defamation. This court held that</p>

<blockquote>
  <p>Acts undertaken in the course of an investigation, including press
  releases reporting the progress or results of the investigation,
  cannot give rise to liability.  (Ingram, supra, at p. 1293, 89
  Cal.Rptr.2d 60 [held that statements concerning an investigation that
  were made in a press release “were part of the prosecution process”
  and therefore immune]</p>
</blockquote>

<p>On the other hand, in <a href="https://www.courtlistener.com/opinion/2385210/harrington-v-wilber/" rel="noreferrer">Harrington v. Wilber 353 F. Supp. 2d 1033</a>, we have a plaintiff who had been convicted of murder, but 25 years into the life sentence it was revealed that the prosecutor has failed to reveal an alternative suspect, and the conviction was overturned. The current prosecutor and defendant in the instant case announced that they would discontinue prosecution of Harrington. This was announced at a press conference, where defendant uttered a number of defamatory statements, including</p>

<blockquote>
  <p>"After personally spending hundreds of hours on this case, I have no
  doubt that Terry Harrington committed the murder of John Schweer on
  July 22, 1977. The jury made the right decision in 1978, and the right
  man went to prison for over twenty-five years."</p>
</blockquote>

<p>Harrington sued, the case was summarily dismissed on the grounds that</p>

<blockquote>
  <p>1) Wilber's statements are protected as First Amendment opinion;</p>
  
  <p>2) Wilber's statements are protected by an absolute privilege because
  they were incidental to the termination of a judicial proceeding;</p>
  
  <p>3) Wilber's statements are protected by qualified privilege;</p>
  
  <p>4) Wilber's statements were discretionary acts immune from liability
  under the Iowa Municipal Tort Claims Act</p>
</blockquote>

<p>which leads to his appeal in US District court. The court reversed the dismissal, because the statement was not opinion (saying "I have no doubt" doesn't make a defamatory statement into opinion). </p>

<p>The court also rejected absolute immunity because:</p>

<blockquote>
  <p>The plain language of <a href="https://www.courtlistener.com/opinion/112894/buckley-v-fitzsimmons/" rel="noreferrer">Buckley</a> holds that prosecutorial press
  conferences, though perhaps necessary, are not entitled to absolute
  immunity. Indeed, while the press conference here at issue may have
  served a valuable public service, it was not incidental to any
  proceeding in the manner intended by the absolute immunity privilege</p>
</blockquote>

<p>This is in clear contrast to Liser, where the police were performing the essence of their task, in tracking down a murderer. The difference between Gillan and Harrington is subtle, to say the least.</p>
