Hansen v. Stoll

• Decision Date: 24 September 1981
• Docket Number: CA-CIV,No. 1,1
• Citation: 636 P.2d 1236,130 Ariz. 454
• Parties: , 8 Media L. Rep. 1204 William H. HANSEN; Philip E. Jordan; Fred Madrid; Melvyn Robert Paulsen; Terry Michael Valentine; Robert Ayala; and Robert Chittendon, Plaintiffs-Appellees, v. Charles S. STOLL and Jane Stoll, his wife, Defendants-Appellants. 4807.
• Court: Arizona Court of Appeals

Page 1236

636 P.2d 1236

130 Ariz. 454, 8 Media L. Rep. 1204

William H. HANSEN; Philip E. Jordan; Fred Madrid; Melvyn Robert Paulsen; Terry Michael Valentine; Robert Ayala; and Robert Chittendon, Plaintiffs-Appellees, v. Charles S. STOLL and Jane Stoll, his wife, Defendants-Appellants.

No. 1 CA-CIV 4807.

Court of Appeals of Arizona, Division 1, Department B.

Sept. 24, 1981.

Rehearing Denied Nov. 2, 1981.

Review Denied Nov. 17, 1981.

Marton, Halladay & Hall, P.A. by Kraig J. Marton, Phoenix, for plaintiffs-appellees.

Lewis & Roca by John P. Frank and Jose A. Cardenas, Phoenix, for defendants-appellants.

OPINION

EUBANK, Judge.

Following a jury trial, the appellant herein, Charles Stoll, was found to have maliciously defamed all of the appellees. The seven appellees-plaintiffs, all of whom were at some time connected with the Federal Drug Enforcement Administration (DEA), recovered general and punitive damages against Stoll. ¹ All seven claimed damage to their professional reputations as law enforcement personnel resulting from Stoll's defamation.

The events leading up to this appeal began on November 27, 1974, when the Phoenix office of the DEA responded to a tip that a quantity of marijuana was to be dropped at a remote airstrip near Oatman, Arizona. Several DEA agents and their adjuncts went to Oatman for surveillance and enforcement duties. Upon their arrival they found only one airstrip, privately maintained on a leased mining claim operated by Stoll.

Because the agents did not know the extent of Stoll's involvement, if any, in the marijuana activity, they kept their identity unknown to him. To this end, the agents, dressed in casual clothes, staged a mock search of themselves by local sheriff's deputies in Stoll's presence. Stoll was informed by the deputies that the "suspects" had been smoking marijuana.

Stoll was concerned by the presence of these strangers because there had been recent equipment thefts from his mining claim. Fearing more theft, Stoll visited his mine three times on the evening of November 27th. His third visit was prompted in part by a neighbor's phone call relating unusual activity at the mine. Stoll armed himself with a shotgun, and he and Bob McKenna went to investigate at approximately 10:00 p. m.

Unknown to Stoll, an airplane had in fact landed and deposited 780 pounds of marijuana on the airstrip. The agents observed this, made arrests, and returned to load the marijuana in a truck for transportation to Phoenix. They had forced open Stoll's gate and were about to load the marijuana when Stoll arrived with his shotgun. A confrontation ensued. Stoll took the agents by surprise and held them at bay with his shotgun. The agents offered their identification, but Stoll, recognizing two of the agents from the mock search earlier in the day, refused to examine their badges. He insisted that the sheriff's deputy himself identify the agents. The sheriff finally arrived, identified the agents, and told Stoll to leave. Stoll did leave, but he again confronted the agents at a phone booth in Oatman some time later. At this confrontation, Stoll began criticizing the agents' operations. He was allowed to speak over the telephone with Philip Jordan, the agents' supervisor in Phoenix, but Stoll immediately began criticizing Jordan. At this juncture, Stoll was arrested for assaulting a federal officer.

Stoll was indicted by the grand jury, tried in federal court on the charge, and was convicted of felonious assault on federal agents. His conviction was affirmed by the Ninth Circuit, and the Supreme Court denied certiorari. See U. S. v. Stoll, 549 F.2d 810 (9th Cir. 1977), cert. den. 430 U.S. 956, 97 S.Ct. 1601, 51 L.Ed.2d 805 (1977).

Since the incident of November 27, 1974, Stoll's plight has received considerable attention from the news media. Many articles have been published in Arizona newspapers, and there have been radio and television accounts of Stoll's side of the story. Stoll believed that the agents had perjured themselves at the grand jury hearings, then changed their testimony at his criminal trial. Stoll also believed that the agents were attempting to cover up the true nature of the events of November 27th. He expressed these beliefs in the publications that form the basis of this defamation suit.

After Stoll's conviction, he accused all the agents involved of perjury. He claimed that he was "set-up" by the agents, who were supposedly collaborating with his political foes in Mohave County. Stoll further claimed that the agents themselves were dealing in marijuana, and that the federal government was attempting to suppress the truth. Several letters were written by Stoll demanding that these agents be discharged. One letter in particular was addressed to the United States Attorney's Office in Tucson, specifically referring to Agent Hansen and alleging many misdeeds by the agents involved. To put an end to these remarks, Hansen and six of the other agents initiated this defamation action.

I. ACTUAL MALICE

In reviewing this case, we note at the outset that Stoll's remarks were directed at public officials. See Rosales v. City of Eloy, 122 Ariz. 134, 593 P.2d 688 (App.1979). Therefore, plaintiffs must carry the burden of showing actual malice as defined in New York Times, Inc. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). We note also that appellate courts have traditionally applied a close scrutiny to the evidence regarding actual malice. See Sewell v. Brookbank, 119 Ariz. 422, 426, 581 P.2d 267, 271 (App.1978); Phoenix Newspapers, Inc. v. Church, 24 Ariz.App. 287, 298, 537 P.2d 1345, 1356 (1975). It is against this background that we begin our analysis.

The New York Times test for actual malice has been well stated in § 580A of the Restatement Second of Torts (1976). It has been adopted in Arizona, Sewell v. Brookbank, 119 Ariz. at 425, 581 P.2d at 270, and requires that the defamatory statements be published with knowledge of their falsity, or with reckless disregard of their falsity. In either event, the statements must be false, and must be defamatory.

The question of whether Stoll's statements were false was not seriously argued in the court below. Most of the testimony related only to Stoll's reasons for believing them to be true, rather than their factual accuracy. All plaintiffs denied the charges, and Stoll put on little affirmative evidence to the contrary. From our review of the record, we cannot conclude that the jury erred in finding that the statements were indeed false. We must also conclude that the statements were defamatory per se, in that they alleged perjury and other crimes involving moral turpitude. See Restatement Second of Torts, §§ 559, 571. Nonetheless, it seems apparent that Stoll actually believed his accusations. On the claim of perjury, for example, there were in fact some discrepancies between the agents' testimony at the grand jury proceedings and at the trial. ² While Stoll may have been quite unreasonable in his beliefs, the evidence is simply insufficient to show that he knew his statements were false. Thus, we turn our inquiry to whether Stoll acted in reckless disregard of the truth.

The term "reckless disregard" has been defined to mean a high degree of awareness of probably falsity. Sewell v. Brookbank, supra, 119 Ariz. at 426, 581 P.2d at 271. See also, Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). To the extent that mere negligence in ascertaining the truth is insufficient to satisfy this standard, it is a subjective test. Gertz v. Robert Welch, Inc., supra, 418 U.S. at 334, n. 6, 94 S.Ct. at 3004. Nevertheless, reckless disregard may be proven by objective facts. As stated in St. Amant v. Thompson, supra :

The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation.

390 U.S. at 732, 88 S.Ct. at 1326.

In other words, a person cannot close his eyes to the obvious truth, yet still claim lack of knowledge. Such was the conduct of Stoll. His claims of perjury were adequately laid to rest during the appeals of his criminal conviction. His claims of conspiracy and smuggling were investigated and found to be without merit. Nevertheless, he persisted. Although one can appreciate the fact that Stoll was merely trying to vindicate himself, he was attempting to do so by repeatedly making slanderous allegations against the appellee agents without factual support. We hold that there was sufficient evidence to support a determination by the jury that he was acting in reckless disregard of the truth when behaving in this manner. Because we so hold, we find it unnecessary to reach the issue of whether Stoll's statements were protected by a qualified privilege.

II. PUBLICATION

To be actionable as a matter of law, defamatory statements must be published in such a manner that they reasonably relate to specific individuals. Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). While the individual need not be named, the burden rests on the plaintiff to show that the publication was "of and concerning" him. See Restatement Second of Torts, §§ 564, 617; Durski v. Chaneles, 175 N.J.Super. 418, 419 A.2d 1134 (1980); Giaimo v. Literary Guild, 79 A.D.2d 917, 434 N.Y.S.2d 419 (App.Div.1981).

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