Police Officer’s Defamation Suit Over Claims That Circled-Finger Sign Was “White Supremacist” Dismissed
There’s finally a substantive decision in Olthaus v. Niesen, the case in which I argued before the Ohio Supreme Court challenging a pretrial prior restraint on defendant’s publishing plaintiff’s name, and in which my invaluable pro bono counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson) argued on my behalf challenging plaintiff’s pseudonymity and the sealing of his affidavit. Here’s the heart of last week’s opinion by Judge Megan Shanahan in Olthaus v. Niesen:
Following the death of George Floyd, racial tensions were high throughout our country. Responding to public protests on policing in Cincinnati, Cincinnati City Council scheduled a series of public meetings in the summer of 2020 to hear from constituents. On June 24, 2020, during one such meeting, Plaintiff, a uniformed police officer, was assigned to City Hall to provide police services including crowd control and security for City Council’s chambers.
During that meeting, Plaintiff gave a hand signal that was interpreted by some as a “white supremacist” hand signal. According to Plaintiff, the hand signal was intended as an “okay” signal in response to an inquiry after a fellow officer that had just left the scene. The next day, through social media and filing a complaint with the Citizen’s Complaint Authority, Defendants commented upon the hand signal and upon Plaintiff.
Plaintiff filed a lawsuit [for, among other things, defamation -EV] to restrain Defendants from publishing derogatory comments about him and to prevent them from publishing information about his family. Plaintiff maintains that he gave the universal hand signal for “okay” and that Defendants misinterpreted the signal as a “white power” sign. He argues that being called a white supremacist cop casts him as the worst kind of villain in today’s society, damaging his professional and personal reputations and career, and threatening his safety and the safety of his family, colleagues, and friends….
Plaintiff states that in the current political atmosphere, Defendants’ statements rise above mere opinion and operate as statement of fact. An opinion does not become a statement of fact because of political atmosphere.
The Complaint does not allege actual malice on the part of Defendant Niesen. It alleges Defendants’ acts were malicious but it fails to plead any facts showing that Defendant Niesen made any statement with knowledge of the assertion’s falsity or reckless disregard for its truth. Indeed, the statements were either a) true, or b) opinion.
According to the allegations of the Compl
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