Von Kahl v. Bureau of Nat'l Affairs, Inc.
| Decision Date | 30 March 2013 |
| Docket Number | Civil Action No. 09–0635 (RWR). |
| Citation | 934 F.Supp.2d 204 |
| Parties | Yorie VON KAHL, Plaintiff, v. BUREAU OF NATIONAL AFFAIRS, INC., Defendant. |
| Court | U.S. District Court — District of Columbia |
OPINION TEXT STARTS HERE
Yorie Von Kahl, Terre Haute, IN, pro se.
Cathy A. Hinger, Deborah J. Israel, Womble Carlyle Sandridge & Rice, PLLC, Washington, DC, for Defendant.
This matter is before the Court on defendant's motion seeking reconsideration of the order denying summary judgment and seeking judgment on the pleadings.1 For the reasons discussed below, the motion will be denied in part and granted in part.
Two deputy United States Marshals accompanied by local law enforcement officers attempted to serve a federal arrest warrant in North Dakota in 1983. A shootout ensued, leaving the two deputy marshals dead. The plaintiff and Scott Faul United States v. Faul, 748 F.2d 1204, 1207–08 (8th Cir.1984); see Pl.'s Opp'n to Def.'s Mot. for Recons. and for J. on the Pleadings (“Pl.'s Opp'n to Recons.”), Ex. B (Verdict on the Offenses Charges Against Yorie Von Kahl, United States v. Kahl, No. C3–83–16 ) at 1–2.
The Bureau of National Affairs, Inc. (“BNA”) publishes the Criminal Law Reporter (“CLR”), a section of which summarizes cases filed before the Supreme Court of the United States. On August 17, 2005, BNA published in the CLR a summary of plaintiff's mandamus petition before the Supreme Court:
04–1717 In re Kahl
Homicide—Murder of U.S. marshals—Jury instructions—Sentencing.
Ruling below (D.N.D., 6/24/83):
Petitioner, who showed no hint of contrition and made statements to press that he believed that murders of U.S. marshals in course of their duties were justified by religious and philosophical beliefs, is committed to custody of the U.S. Attorney General for imprisonment for life based on his convictions on two counts of violating 18 U.S.C. §§ 1111, 1114, and 2, terms to run concurrently; for 10–year term of imprisonment on each of four counts on which he was convicted of violating 18 U.S.C. §§ 111[1], 1114, and 2, which terms will run concurrently but consecutively to life term; to five-year term of imprisonment for violating 18 U.S.C. §§ 1071 and 2, term to run consecutively to 10–year term and life term; and to five-year term of imprisonment on his conviction for violating 18 U.S.C. § 371, term to run concurrently to five-year, 10–year, and life terms.
Compl., Ex. 1 () (emphasis in original). The next paragraph of the summary set forth the legal questions presented in the mandamus petition. Id., Ex. 1. Plaintiff says his petition “expressly ... denied any murder of U.S. Marshals in [the] course of their duties as reflected in the jury acquittals expressly finding [p]laintiff ‘Not Guilty’ ... and was seeking to compel enforcement of the jury's acquittals” through the mandamus petition. Id. ¶ 9. According to plaintiff, the first sentence of the August 17, 2005 summary contained four false statements:
(1) “showed no hint of contrition”;
(2) “made statements to the press that he believed that murders of U.S. marshals in course of their duties were justified”;
(3) “believed” such justification on basis of “religious and philosophical beliefs”; and
(4) “is committed to custody ... based on his convictions of two counts of violating 18 U.S.C. §§ 1111, 1114, and 2, ...”
Compl. ¶ 11.
On July 18, 2007, BNA published “a purported ‘[c]larification,’ ” id. ¶ 14 (brackets in original), which stated:
Clarification
In a Summaries of Recently Filed Cases entry that ran at 77 CrL 2127, concerning U.S. Supreme Court petition No. 04–1717, the summary of the sentencing judge's ruling should have begun: “Petitioner who was said to have believed that murders were justified,....”
Id., Ex. 2 (Clarification) (emphasis in original).
Each count of plaintiff's complaint corresponds to an allegedly false statement: (1) that plaintiff “ ‘showed no hint of contrition’ in respect to murders of officers performing duties,” Compl. ¶ 17 (Count One); (2) that plaintiff “ ‘made statements to the press that he believed that murders of U.S. marshals ... were justified,’ ” id. ¶ 28 (Count Two); (3) that plaintiff considered the murders justified on religious and philosophical grounds, id. ¶ 32 (Count Three); (4) that plaintiff had been “committed to custody ... based on his convictions of two counts of violating 18 U.S.C. §§ 1111, 1114, and 2,” id. ¶ 36 (Count Four); and (5) that the purported clarification was “a further false attribution,” id. ¶ 40 (Count Five). Each of the first four statements, plaintiff alleges, was “false and defamatory,” id. ¶ 17, was made “without privilege to third parties,” id. ¶ 18, was “defamatory on its face and libelous per se,” id. ¶ 20, and was made “with knowledge that it was false or with reckless disregard of whether it was true or not,” id. ¶ 22; see id. ¶¶ 28, 32, and 36. In addition, BNA's purported clarification allegedly “was false,” id. ¶ 41, and in effect “support[ed] the original falsehoods with an appearance that they were statements made by a judge in a judicial proceeding as part of a judgment.” Id. ¶ 40. As a result, the statements “injured Plaintiff's community standing or lowered him in the estimation of the community of the District of Columbia ... especially within the community to which such article was directed— i.e., the legal and governmental communities ... where the greatest possible injury ... did occur,” id. ¶ 23, making “[p]laintiff appear entirely irrational, unsound, psychotic and otherwise odious, infamous, or ridiculous,” id. ¶ 24.
Plaintiff further alleges that he has suffered “extraordinary and special harm.” Id. ¶ 26 (emphasis in original). He asserts that his “character, reputation and credibility were essential to fair consideration of his then-pending matters” before the Supreme Court, id. ¶ 26(b), and “libel targeting the legal community including judges and their staff making [p]laintiff appear ... odious and dangerous at such time could only tend to intimidate judicial officers from maintaining impartial adjudication so as to disassociate any possible showing favorable to [p]laintiff,” and thus the publication “could be perceived as an attempt to influence the legal outcome” of his case, id. ¶ 26(d). In other words, he attributes the denial of his mandamus petition by the Supreme Court to BNA's publication of the allegedly libelous statements in the CLR, id. ¶ 26(e), causing him to “suffer [ ] special harm in the specialized community wherein such statements would be expected to cause the ultimate harm,” id. ¶ 26(f), “beyond that normally associated with and attributable to libel,” id. ¶ 27. Plaintiff demands compensatory, special, and punitive damages on each count. Id. ¶¶ 48–50.
BNA unsuccessfully sought dismissal or summary judgment. It now seeks reconsideration and judgment on the pleadings.
In its motion to dismiss or for summary judgment, BNA argued that the “allegedly defamatory entries in the [CLR] are protected by the District of Columbia's ‘fair reporting privilege.’ ” Mem. of P. & A. in Supp. of Def. [BNA's] Mot. to Dismiss or for Summ. J. [ECF No. 7] (“Def.'s Mem.”) at 10. 2 Under District of Columbia law, the fair reporting privilege has been described as follows:
[D]efamatory matter concerning another in a report of any official proceeding or any meeting open to the public which deals with matters of public concern is published on a conditionally privileged occasion if the report is (a) accurate and complete, or a fair abridgement of what has occurred, and (b) published for the purpose of informing the public as to a matter of public concern.
Oparaugo v. Watts, 884 A.2d 63, 81 (D.C.2005) (quoting Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 88 (D.C.1980)).
An excerpt of the transcript of the June 24, 1983, sentencing hearing before Chief Judge Paul Benson of the United States District Court for the District of North Dakota was reproduced and attached as an exhibit to plaintiff's mandamus petition, and the first page beneath the caption read:
TRANSCRIPT
of
PROCEEDINGS
June 24, 1983
1:30 o'clock P.M.
* * *
[illegible] sentence for each of these Defendants.
With regard to Yorie Von Kahl there is not even a hint of contrition. The man refused to even talk to the probation officer. We have statements at trial and those issued to the press and whatnot that this man honestly believes that these murders, cold blooded calculated murders[,] were justified by some sort of a perverted religious philosophical belief which perhaps wasn't even his, perhaps it was simply that of his father's [sic]. This country is not safe for Yorie Von Kahl.
Def.'s Mem., Ex. A (App. 33–34). Based on this transcript excerpt, BNA asserted that “[t]here is simply no legitimate dispute over whether BNA's description of the ruling that was the subject of Plaintiff's Writ of Mandamus was an ‘accurate and complete, or a fair abridgement’ of that ruling.” Def.'s Mem. at 11. As long as its summary was a “fair abridgement” of the court proceedings being reported, BNA argued that it is protected from a defamation suit by the fair reporting privilege. Id. And in light of the “high profile nature of [p]laintiff's heinous crimes,” BNA claimed it “beyond question that the statements at issue were...
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