Zurita v. Virgin Islands Daily News

• Decision Date: 19 January 1984
• Docket Number: Civ. No. 1983/78.
• Parties: Manuel ZURITA, IV, Plaintiff, v. The VIRGIN ISLANDS DAILY NEWS and Gladys Zurita, a/k/a Gladys Gonzales, Defendants.
• Court: U.S. District Court — Virgin Islands

578 F. Supp. 306

Manuel ZURITA, IV, Plaintiff, v. The VIRGIN ISLANDS DAILY NEWS and Gladys Zurita, a/k/a Gladys Gonzales, Defendants.

Civ. No. 1983/78.

District Court, Virgin Islands, D. St. Croix.

January 19, 1984.

Manuel Zurita IV, pro se.

David P. Atkins, Charlotte Amalie, St. Thomas, V.I., for The V.I. Daily News.

Randall Johns, Christiansted, St. Croix, V.I., for Gladys Zurita a/k/a Gladys Gonzales.

MEMORANDUM OPINION AND ORDER

DAVID V. O'BRIEN, District Judge.

THIS MATTER is before the Court on motion of defendant Daily News Publishing Co., Inc. d/b/a The Virgin Islands Daily News (hereafter "Daily News") for summary judgment. This motion raises the issue of whether, on the record before the Court, plaintiff Manuel Zurita, IV (hereafter "Zurita" or "plaintiff") has sufficiently stated a claim in libel against the Daily News. Because this Court concludes that there is no genuine issue as to any material fact, and that plaintiff has failed to establish his cause of action as a matter of law, summary judgment will be granted and the complaint will be dismissed.

FACTS

This pro se libel action was generated out of a news article published in the Daily News on February 18, 1982 under the headline "St. Croix officer probed on wife's charges". The focus of the article was a cluster of charges levied against Zurita by his then estranged wife, defendant Gladys Zurita a/k/a Gladys Gonzales (hereafter "Mrs. Zurita"). The article stated that Zurita, a veteran detective of 7 years then employed at the Department of Public Safety was, as a result of his wife's allegations, the target of various investigations into possible criminal behavior. Mrs. Zurita had gone to the police, and later to the press, with accusations that Zurita had, among other things, "blackmailed arson suspects, stolen from both living and dead crime victims, and from criminals themselves." Daily News, February 18, 1982, p. 1. Zurita was suspended without pay pending completion of the investigations, and, after 5 months, was reinstated when the U.S. Attorney's Office decided not to press charges against him.

Zurita was not so reticent, however, and on February 16, 1983 filed this action against both his wife and the Daily News. Zurita asserts that the paper carelessly printed these false defamatory allegations of his wife which resulted in his suffering a loss of reputation in the community, mental and physical deterioration, and lost wages during his suspension.

DISCUSSION

The Daily News counters that the allegedly defamatory statements are privileged within the New York Times rule under which a newspaper has broad leeway in publishing matters relating to a public official's official conduct. In the milestone decision of New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964), the Supreme Court held:

The constitutional guarantees of freedom of speech and press require ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" that is, with knowledge that it was false, or with reckless disregard of whether it was false or not.1

The Daily News argues that as Zurita is a public official within the meaning of the New York Times rule, and as he has made neither allegations nor a showing of "actual malice" in the papers publishing the offending article, summary judgment must enter in its favor.

Zurita, a territorial detective at the time the article was published, is a public official within the ambit of the New York Times rule. No court which has ever faced the issue of whether a law enforcement officer is a public official for these purposes has ever decided otherwise. Roche v. Egan, 433 A.2d 757 (Me.1981); see e.g. Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1969); Gray v. Udevitz, 656 F.2d 588 (10th Cir.1981); Meiners v. Moriarity, 563 F.2d 343 (7th Cir.1977).

The cop on the beat is the member of the department who is most visible to the public. He possesses both the authority and the ability to exercise force. Misuse of his authority can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury and financial loss. The strong public interest in ensuring open discussion and criticism of his qualifications and job performance warrant the conclusion that he is a public official.

Gray, supra at 591. As the published allegations were directed to Zurita's role as a detective in investigating crimes, they bear directly on his official conduct. Consequently, Zurita has the burden of showing "actual malice".

The question of whether a defendant in a libel action brought by a public official acted with "actual malice" is an issue of fact. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). Further, in a motion for summary judgment this Court must "resolve any doubt as to the existence of a genuine issue of fact against the moving parties." Ness v. Marshall, 660 F.2d 517, 519 (3d Cir.1981) quoting Tomalewski v. State Farm Insurance, Co., 494 F.2d 882, 884 (3d Cir.1974). However, in resisting a summary judgment motion, a party may not simply rely on the allegations contained in his pleadings, but must set forth specific facts which show that a genuine issue for trial exists. Peterson v. United States, 694 F.2d 943 (3d Cir.1982); see generally Fireman's Insurance Co. of Newark, New Jersey v. DuFresne, 676 F.2d 965 (3d Cir. 1982). Rule 56(e) provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary

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