Miller v. Sawant

• Decision Date: 10 November 2021
• Docket Number: No. 21-35004,21-35004
• Citation: 18 F.4th 328
• Parties: Scott MILLER, an individual; Michael Spaulding, an individual, Plaintiffs-Appellants, v. Kshama SAWANT, an individual, Defendant-Appellee, and City of Seattle, a municipal corporation, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

18 F.4th 328

Scott MILLER, an individual; Michael Spaulding, an individual, Plaintiffs-Appellants,

v.Kshama SAWANT, an individual, Defendant-Appellee,andCity of Seattle, a municipal corporation, Defendant.

No. 21-35004

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 4, 2021 Seattle, Washington

Filed November 10, 2021

Sean T. James (argued) and Daniel A. Brown, Williams Kastner, Seattle, Washington, for Plaintiffs-Appellants.

James E. Lobsenz (argued), Carney Badley Spellman B.S., Seattle, Washington; Dmitri Iglitzin and Gabriel Frumkin, Barnard Iglitzin & Lavitt LLP, Seattle, Washington; for Defendant-Appellee.

Before: A. Wallace Tashima, Milan D. Smith, Jr., and Jacqueline H. Nguyen, Circuit Judges.

TASHIMA, Circuit Judge

Plaintiffs Scott Miller and Michael Spaulding ("Plaintiffs") are Seattle police officers who claim they were defamed by Defendant Kshama Sawant, a member of the Seattle City Council, through comments Sawant made about a deadly police shooting in which Plaintiffs were involved. The district court dismissed Plaintiffs' defamation claims on the ground that their third amended complaint ("complaint" or "TAC") failed adequately to allege that Sawant's remarks were "of and concerning" them. We reverse.

Under the governing federal pleading standard, Plaintiffs plausibly have alleged that Sawant's communications were of and concerning them. First, Sawant's own words suggest that her remarks were directed not only at the police generally, but also at the individual officers involved in the shooting. She told the crowd that the shooting constituted "a blatant murder at the hands of the police," and she called for the Seattle Police Department to be held accountable "for their ... individual actions." TAC ¶ 37. Second, the complaint plausibly alleges that some of those who read or heard Sawant's remarks—Plaintiffs' families, friends, and colleagues, as well as members of the general public—knew that Plaintiffs were the officers involved in the shooting. TAC ¶¶ 45–46, 48. Third, the complaint plausibly alleges that these readers and listeners understood that Sawant's remarks were directed at Plaintiffs. These allegations are sufficient.

In concluding otherwise, the district court reasoned that "[t]he statements Councilmember Sawant made do not target or single out Plaintiffs or any specific officers, but rather speak to broader issues of police accountability." Miller v. Sawant , No. C18-506 MJP, 2020 WL 7714414, at *3 (W.D. Wash. Dec. 29, 2020). At most, however, the district court has identified one reasonable interpretation of Sawant's words, not the only reasonable interpretation. Where a communication is capable of two meanings, one defamatory and one not, it is for a jury, not a judge, to determine which meaning controls. See Swartz v. World Publ'g Co. , 57 Wash.2d 213, 356 P.2d 97, 98 (1960) (en banc). As we explained in Church of Scientology of California v. Flynn , 744 F.2d 694 (9th Cir. 1984), at this stage of the case, a "court's inquiry is not to determine if the communications may have an innocent meaning but rather to determine if the communication reasonably carries with it a defamatory meaning." Id. at 696 (quoting Forsher v. Bugliosi , 26 Cal.3d 792, 163 Cal.Rptr. 628, 608 P.2d 716, 722 (1980) ). Here, Sawant's words reasonably carry with them the defamatory meaning Plaintiffs have assigned to them. Accordingly, we reverse the judgment and remand for further proceedings.

I.

In February 2016, Plaintiffs shot and killed Che Taylor, a Black man, while attempting to make an arrest. TAC ¶¶ 27–32.¹ A few days after the shooting, Sawant told a crowd in front of the Seattle Police Department: "The brutal murder of Che Taylor, just a blatant murder at the hands of the police, show[s] how urgently we need to keep building our movement for basic human rights for black people and brown people." TAC ¶ 37. She called for the Police Department to be held "accountable for their reprehensible actions, individual actions. We need justice on the individual actions and we need to turn the tide on the systematic police brutality and racial profiling." Id.² In June 2017, following the fatal police shooting of Charleena Lyles, another person of color, Sawant repeated her allegation that "Che Taylor was murdered by the police." TAC ¶ 47.³

Plaintiffs filed this action against Sawant in 2018, claiming that she had defamed them by falsely accusing them of racial profiling and murder.⁴ Although Sawant had not identified Plaintiffs by name in her remarks, the complaint alleges that Plaintiffs' families, friends, and colleagues, as well as members of the general public, all knew that they were the officers who shot Taylor. TAC ¶¶ 45–46, 48. Accordingly, Plaintiffs allege that Sawant's remarks were "of and concerning" them, as required to state a claim for defamation under Washington law. TAC ¶ 69.

Specifically, with respect to Sawant's February 2016 remarks, the complaint alleges:

45. Sawant's inflammatory statement achieved the desired effect and received substantial media coverage. A video of her remarks, as well as the quote itself, were widely circulated in the media. While Sawant did not identify Officers Miller and Spaulding by name, those familiar with the details of the Che Taylor shooting, including the officers' family, friends, and colleagues who heard or read Sawant's statement in the news understood it was directed at Officers Miller and Spaulding because they are the only "police" that were involved in the shooting and, thus, the only "police" to whom the statements could apply.

46. Members of the general public who read or heard Sawant's statement in the media also understood that it was directed at Officers Miller and Spaulding because the same day Sawant made the statement, the Seattle Times published an article that provided their names and identified them as "the police" that shot Che Taylor.

TAC ¶¶ 45–46.

Similarly, with respect to Sawant's June 2017 remarks, the complaint alleges:

48. This statement also received substantial media coverage. Again, the officers family, friends, and colleagues who heard or read this statement in the news understood that it was directed at Officers Miller and Spaulding because they are the only "police" that were involved in the shooting. Members of the general public who read this statement in any one of the numerous news articles that quoted it or saw the video recording of the statement that circulated online also understood that it was directed at Officers Miller and Spaulding because their identities and involvement in the Che Taylor shooting had been published and widely circulated in the media for more than a year.

TAC ¶ 48.⁵

The district court dismissed Plaintiffs' defamation claims on the ground that the complaint failed plausibly to allege that Sawant's remarks were of and concerning them. See Miller , 2020 WL 7714414, at *3–4. The court concluded that "[t]he statements Councilmember Sawant made do not target or single out Plaintiffs or any specific officers, but rather speak to broader issues of police accountability." Id. at *3. The court further concluded that, because Sawant's "statements do not single out individual police officers," it was irrelevant that Plaintiffs' family, friends, and colleagues, and members of the general public, knew that Plaintiffs were the officers involved in the Taylor shooting and understood Sawant's remarks to be directed at Plaintiffs. Id. at *4. The court reasoned that "[c]ontextualizing Councilmember Sawant's statements with unique information held by family and friends would impermissibly alter the meaning of [Sawant's] otherwise non-individualized statements." Id.⁶ Plaintiffs timely appealed.⁷

II.

"We review de novo challenges to a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)." Curry v. Yelp Inc. , 875 F.3d 1219, 1224 (9th Cir. 2017). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

III.

A. Plaintiffs Need Not Plead the Of-and-Concerning Element with Convincing Clarity

The parties disagree about whether a heightened pleading requirement applies here. We hold that it does not.

Under Washington law, "[t]he elements a plaintiff must establish in a defamation case are falsity, an unprivileged communication, fault, and damages." Mohr v. Grant , 153 Wash.2d 812, 108 P.3d 768, 773 (2005) (en banc).⁸ In addition, a plaintiff must "prove that the communication was made of and concerning him." Sims v. Kiro, Inc. , 20 Wash.App. 229, 580 P.2d 642, 645 (1978). The parties disagree about the pleading standard applicable to this of-and-concerning element. Plaintiffs maintain that the complaint need only plausibly allege that Sawant's statements were of and concerning them. Sawant, by contrast, contends that Plaintiffs "must show with ‘convincing clarity’ that they were the target[s] of the challenged statement[s]." We agree with Plaintiffs.

First, the Washington cases upon which Sawant relies apply the convincing clarity standard only at summary judgment, not at the pleading stage. Although the Washington courts have held that "a defamation plaintiff resisting a defense motion for summary judgment must establish a prima facie case by evidence of convincing clarity," Mark v. Seattle Times , 96 Wash.2d 473, 635 P.2d 1081, 1089 (1981) (en banc) (emphasis added), they have not applied this requirement outside the summary judgment context. They have made clear, for instance, that the convincing clarity...