Turner v. Devlin

Bar, said by Respondent and the State Respondent no

monitor to meet with month, frequently than once a

less reports with the State quarterly

to file summarizing the monitor’s activi-

Bar findings during reporting

ties and

period. comply Respondent fail

d. Shоuld probation, the terms of the State notify hearing committee

Bar shall conduct a

writing. The committee will thirty days after

hearing not later than receipt the notice to de-

Respondent’s noncompliance oc-

termine whether has and, so, ap- to recommend an

curred

propriate sanction. Respondent pay shall all costs and

6.

expenses by the Bar in con- incurred State proceedings.

nection with these Raymond Brown,

/s/ W. Brown,

Raymond W. Chair

Disciplinary Commission TURNER, N. Plaintiff-

Thomas

Appellant, DEVLIN, Defendant-Appellee.

Barbara

No. CV-91-0365-PR. Arizona,

Supreme Court

En Banc.

March

202

Doherty, by Alex & Tadano Andrew R. Alex, Phoenix, plaintiff-appellant. Teilborg, Sanders & Parks David J. Damron, Hill, Phoenix, Corey R. for defen- dant-appellee.

OPINION FELDMAN, Chief Justice. Barbara petitions this court to appeals’ review the court of decision brought against defamation action argues Thomas N. Turner. She protects First Amendment question. light importance of the of the issues appellate and the “enhanced review” required to avoid “forbidden intrusion of expression,” granted the field of free review. Yetman v. Ariz. English, 168 (1991) (citing Bose Uniоn, Inc., Corp. v. Consumers 466 U.S. (1984); 104 S.Ct. 80 L.Ed.2d 502 Sullivan, New York Times v.Co. 376 U.S. (1964); 84 S.Ct. 11 L.Ed.2d 686 quoting Milkovich v. Lorain Journal Co., 1, 21, 110 S.Ct. (1990)). jurisdiction L.Ed.2d We have 6, 5(3), pursuant to Ariz. art. Const. § Ariz.R.Civ.App. 23.

FACTS AND PROCEDURAL HISTORY morning April On the Phoe- dispatched nix officer Turner was Sky High Desert Junior School investi- gate possible case of child abuse. Turner reported learned that a student had complaining school nurse Devlin that his stepfather night him had beaten before. arrival, Upon Turner and the student went private into a office to talk. The exact manner in which Turner conducted his in- vestigation disputed. following is day Devlin wrote a letter complaining that Tur- disrespect- ner’s behavior was “rude and asserting ful” and that “his manner bor- police brutality.”1 dered оn Investigating complaint, Ser- geant Marshall Jan of the Phoenix Police ministrator; (4) entirety 1. The letter in its set in the out Child Protective Services Appendix opinion. copy (5) to this Program Manager; Devlin sent a the Union Hills Station (1) Valley the letter to: Police; Deer Unified School (6) Supervisor; the Phoenix Chief of Superintendent; Sky High the Desert Junior (7) Mayor of Phoenix. Principal; Special School Services Ad- convincing Department support and Tur- clear and interviewed Devlin could and, finding malice ner, evidence a of actual as well as witnessed the others who Marcus, Ariz. relying on Glaze April 14 incident. Memorandum to See that Devlin’s (Ct.App.1986), Commander, Apr. (“April 27 Shift opinions. were statements nonactionable Memo”). Marshall, According Turner’s Id. justify did not Devlin’s assertion conduct rude or manner bor-

that he was that his appeals The court of Turner reversed. Never- police brutality.2 dered on Id. at 6. 8, Devlin, (Aug. v. No. 90-113 CA-CV theless, “partially Marshall sustained” dec.) (2-1 1991) (mem. decision). The ma- complaint, noting that Turner’s Devlin’s 1, relying Milkovich, jority, on disrespect” choice of words “reflected] ‍‌‌‌​​‌‌‌‌‌‌‌​​‌‌​‌​‌​‌‌​​​​‌‌‌​‌‌​​‌​​‌​‌​​​‌​‌​‍held that recantation to S.Ct. Devlin’s atmosphere and “created an where [Devlin] Marshall demonstrated that Devlin’s state- accusing felt that the officer was victim both ments were false and doing.” wrong Turner, Id. at 7. Marshall Relying mem. on false. dec. at 6. professional ap- Yetman, that a concluded “more 168 Ariz. have at

proach majority should been utilized.” Id. also held that Devlin’s statements interpreted stating actual could be 7. presenting question jury. a for the facts— pur- Marshall also related that Devlin’s Turner, Finally, mem. dec. at 7-8. writing solely to pose in letter was not held that evi- majority there was sufficient criticize Turner’s the incident. handling of consider- jury dence of actual malice for reported Id. at 5. Marshall that Devlin Judge McGregor at 9-10. dis- ation. Id. hoped complaint her would motivate found sented. She that Devlin's comments Department properly Phoenix Poliсe incapable of true or being proven were juvenile interrogation train its officers in pro- constitutionally false and thus were Marshall, techniques. According Id. J., (McGregor, at 12-14 dissent- tected. Id. reported very Devlin Turner “did a ing). job good investigation with the entire and granted review the follow- to answer very in accomplishing was efficient it.” Id. questions: two Although Turner Devlin’s argues in 1. Were statements contained an statements Marshall amounted to im- purely personal Nurse Devlin’s letter troverted and complete “uneon recantation” assertions, pressions, or factual rather letter, the accusations in contained her being caрable proven true or false? supports depiction parties’ the record both Nurse 2. Did Devlin act with actual of the events.3 writing in malice the letter? against Turner filed defamation claim Devlin in November Devlin moved 1988. DISCUSSION summary judgment par- and Turner for Actionability A. summary judgment. tial The trial court granted Devlin's Tur- defamatory, publication motion and denied “To be The court bring ner’s.4 held that the record must be false and must the defamed According report, people portions 2. admit- Marshall’s 3. Several witnessed different (1) following: affidavit, related, ted the hear Turner investigation she did not Turner's and nurse’s of- "demand” student leave the accounts that coincidе with both Devlin adjoining stand fice and office; the wall in description. Turner’s standing probably the student be- was chair; (2) only there was she heard cause only one objection, the trial court consid- Over interview, thirty-minute five minutes of the ruling police investigation reports in on ered part responses; questions of which was or summary judgment did motions. Devlin explain potential did not she to Turner the appeals or pursue the issue in the court of injuries; of the seriousness although student’s reason, court. For we consider before this depiction Devlin stated presented. the entire record bordering conduct as brutali- Turner’s ty prompted type questions was аsked Turner, specific she could exam- not recall a question. ple April of such a 27 Memo at 4-5. disrepute, ridicule, person contempt, Finally, appellate into or ... enhanced review impeach plaintiffs honesty, integ- raising or must is- ... cases first amendment virtue, reputation.” rity, Godbehere v. “provides sues assurance that the fore- Inc., Newspapers, Ariz. Phoenix going determinations will be made (1989). complaint 783 P.2d A as not to manner so ‘constitute a forbid- falsely charges of- law enforcement expres- den intrusion of the field of free ” may defamatory ficer misconduct sion.’ actionable, long so as constitutional Yetman, 168 Ariz. аt See, requirements e.g., are fulfilled. Selby (quoting 327-28 at 19- Savard, 134 Ariz. 655 P.2d 21, 2706-07) (citations omitted). 110 S.Ct. (1982). 344-45 that Ari- Devlin claims present In the we must determine protect zona law and the First Amendment whether the doctrines outlined in Milkovich criticism In her of Turner’s conduct.5 this First, exam- protect Devlin’s criticism. we case, therefore, we must examine the inter- (1) questions: ine if criti- two related the play protection between the constitutional concern, public cism matters of involves speech free of and the common law action (2) false, provable is whether it as of defamation. See 168 Ariz. at reasonably whether the criticism could Specifically, P.2d at 325. we arе interpreted stating as actual about facts “fact-opinion” asked address the how so, “public Turner. If because Turner is a differentiation affects the constitutional Godbehere, official,” 343- see 162 Ariz. at protection speech. of free We first turn to cases); (citing Selby, at 789-90 783 P.2d ques- the present the state of the law on 134 Ariz. 655 P.2d we at at tion. determine record also must whether the Legal Principles B. evidence, supports, by convincing clear and required acted with the malice Supreme In the United States Sullivan, Times New York Co. rejected the the Court contention that First dispose S.Ct. 710. Because we Amendment demands distinct constitution- issuе, on the first of the case we do protection speech “opinion.” al is question. reach the malice U.S. at 110 S.Ct. at Instead, existing the Court held that consti- sufficiently protects

tutional doctrine such ANALYSIS speech. Id. at 2707. In 110 S.Ct. at decision, reaching recognize our we Yetman, we protections outlined the dis- events, sequence related a that Devlin of cussed the Court in Milkovich: indisputably the which is factual. basis of First, ... “a matters of statement on child, stepfather Whether beat public provable concern must as false police, whether school officials called the liability before there can be under state requested stu- and whether Turner law.” defamation against unquestion- a wall dent stand are Second, [Supreme ... Court “[t]he being proven false. ably capable true or provide protection for statements cases] however, is, unflattering It char- ‘reasonably interpreted that cannot [be] gives of Turner’s conduct that acterization stating actual facts’ about individu- Therefore, it defamatory color. letter al....” comments that must is on those concen- Third, requirements ... the malice ... trate. provide protection additional for state- (1) stated that “de- “opinion” public Devlin’s letter Turner ments on matters the student reasonably imply concern that false and manded that stand figures wall”; (2) interrogated defamatory public student facts about was “[t]he he, victim, had ille- officials. committed an previously have Unit- 5. We held that in discrete ments than of the [FJirst [A]mendment provides "the area Arizona Constitution no ed States Constitution.” 168 Ariz. privilege defamatory greater for otherwise state- P.2d at 334. act”; at 789. In decid- was rude and gal officer “[t]he privilege7 his bordered on extends disrespectful, and manner common law misconduct, no police brutality”; Mary- complaints “[t]here outdated, for this uneducated be- impor- excuse spoke highest land’s court important group on of so part havior сomplaints: tance of such Appendix. Department.” Police as our See society vests its law-enforcement Our apply principles now set out in power, with formidable officers these Milkovich to statements. extremely detri- which is often abuse of public to the interest. Citizen mental A. Are Devlin’s Statements a Matter of abuses, ad- and the complaints such Public Concern? procedure which disciplinary ministrative regarding A statement matters developed investigate has these been public concern must be false public function complaints, serve a can lie. before defamation action Milko by providing mecha- imрortance vital vich, 6,n. 19-20 & S.Ct may re- through nism which abuses n. 6. truth 2706 & Because is an authorities, ported proper to the defense, proving affirmative the burden of held abusers accountable. falsity plaintiffs who are lies those viability govern- of a democratic is a matter of defamed requires the of com- ment that channels therefore, threshold, public As a concern. citizens their munication between we must determine whether Devlin’s open unimped- public officials remain category. this speech falls within ed. “ speech a ‘Whether ... addresses matter 164, Novotny, Md. A.2d Miner v. 304 498 by must public concern determined 269, (1985). 274-75 form, expression’s] content, and con [the ” text ... as revealed the whole record.’ are not unmindful of the detri We Bradstreet, Dun & Inc. v. Greenmoss reports police that false mental effect Builders, 749, 761, Inc., 105 472 U.S. S.Ct. police have on officer. See misconduct a (1985)(plurality 86 L.Ed.2d 593 concern, Miner, This 498 A.2d at 275. opinion) Myers, 461 (quoting Connick v. however, subject any not the does make 138, 147-48, 103 U.S. S.Ct. 75 public. great there is a need less Because (1983)). L.Ed.2d 708 dialogue concerning for the ac uninhibited important govern tions an arm of of so police letter a of Devlin’s criticizes ment, regard to especially with the treat acting capacity.6 in his “It is ficer official children, hold ment we that greater difficult conceive an arеa of public con comments involve matters public than law interest enforcement. Cer statements, therefore, must cern. These tainly legitimate the has a in public interest provable a in as false before defamation the manner which law enforcement offi Godbehere, perform action can lie.8 cers their duties.” knowledge public made with or reckless 6. Turner concedes that he is a official. ment was seemingly disregard falsity of its necessitates decision, reaching In our we do address 7. plaintiff that the is that first show statement the might privilege protect law whether a common Milkovich, provable at 20 as false. See 497 U.S. Devlin Turner’s defamation action. (where plaintiff is n. S.Ct. at 2706 n. 6 the 110 public public figure, or "the New York official Supreme recognize We States United already showing require[s] a of falsi rule Times judgment pro- whether this Court reserved result.’’); ty liability Hepps, 475 [can] before applies tection defendants. See non-media (New Times 106 S.Ct. at 1563 York U.S. at 110 S.Ct. at 20 & n. public figure plaintiff requires to show ‍‌‌‌​​‌‌‌‌‌‌‌​​‌‌​‌​‌​‌‌​​​​‌‌‌​‌‌​​‌​​‌​‌​​​‌​‌​‍rule (citing Philadelphia Newspapers, 2706 & n. 6 Inc. defamation) (citing falsity prevail in a suit Hepps, v. 779 n. S.Ct. Thus, cases). public plaintiff is a (1986)). when the n. L.Ed.2d In concern, however, speech public and the is plaintiff official public official and the the plaintiff proper the bears rule is that public bеlieve to a concern. relates matter of prov showing that a statement is requirement public burden The constitutional ably defamatory can official-plaintiff before an action for defamation state- false show that a B. Disputes Were There Factual That he charged injuring because was not Summary Judgment

Make Improper? charge implied child. Nor is such a allegedly Also, false statement. Tur- argues Turner that Devlin recanted her assertion, ner is not defamed Devlin’s accusation of during misconduct any implication it, from that he demanded interview with Marshall. “emphati- during question- the student stand cally denies” that such a oc- recantation disputed. fact also It is Dev- curred. The court of —a appeals held that lin’s characterization of the entire event accusations, Devlin recanted her and this gives any this statement disparaging recantation demonstrated that her state- meaning. ments provable were false and thus Turner, false. mem. dec. at 5-6. We dis- present case, disputed facts agree. are not defamatory, they imply nor do existence of defamatory undisclosed facts. We need not determine whether Therefore, assuming even that the asserted Devlin recanted subjec her statements. A false, they facts were are not aсtionable tive assessment suddenly does not become themselves and do not affect the actionabil provable merely speaker because the later ity of Devlin’s other comments. See Re reevaluates the subject and formulates a (Second) statement of Torts 566 cmt. c at opinion. different Supreme § Court (1977); Fleming Benzaquin, Milkovich addressed this very issue. The (1983). Mass. 454 N.E.2d 103-04 Court noted case, therefore, In this disputed facts that the issue falsity relates to the and, are not accordingly, material do not defamatory implied by facts a state- prevent summary judgment. See Ariz. instance, statement, ment. For “I 56(c). must, therefore, R.Civ.P. exam lied,” mаy think Jones ine Devlin’s statements and ascertain First, false on two levels. they whether are they actionable because speaker really did not think Jones had provable are as false. anyway, lied but said it and second that really is, Jones had not lied. It of

course, the falsity second level of which C. Are the Statements Provable as False? ordinarily would serve as the basis for a At common law the defendant has action, though defamation falsity at the proving burden of the truth of a defam may first level serve to establish malice atory publication as an affirmative defense. required where that is recovery. for 168 Ariz. at 811 at 333. Milkovich, 497 U.S. at 20 n. 110 S.Ct. at Supreme Court, however, The recognized Thus, 2706 n. 7. Devlin’s subjective belief that this common arrangement law inhib accuracy to the of her statements— ited First Amendment freedom in cases subjective whatever that may belief be— damages sought where are for of does not determine whether the statements public Hepps, concern. See 475 U.S. at provable are as false. Court, 106 S.Ct. at 1563-64. The The central debate in this consequently, case is not over requir declared a new rule but, instead, happened what plaintiff how to char- prove falsity to in such happened. Id.; Yetman, acterize what Outside of Dev- cases. 811 characterization, however, lin’s Turner also P.2d at 333. This requirement “[fjoremost disputes the factual accuracy some of ... proposition stands that a state disputes her comments. report He her of ment public on matters of concern must be injuries claiming they child’s were not as false before there can be liabili — so severe. The reported ty bare facts of the under state defamation law.” Milko however, injuries, vich, do not defame Turner 497 U.S. at 110 S.Ct. at 2706. Hepps, lie. See also 106 S.Ct. at 472 U.S. at 773 & n. 105 S.Ct. at & n. 2952-53 (Brennan Blackmun, JJ., (White, J., (media concurring) concurring) & defendants (Hepps apply greater rule should to both media and should be afforded no First Amendment defendants); Bradstreet, Inc., protection defendants). non-media Dun & than other assess- accuracy of Devlin’s protec- termine the illustrated Supreme Court or is true her assessment ment. Whether tion as follows: empirical kind of simply “not the false is statement, my opinion “In [U]nlike resolve.” Yet- a factfinder can question liar,” statement, is a Mayor Jones man, P.2d at 333. Ariz. at opinion Mayor Jones shows his my “In “communist,” where the word Unlike by accepting the ignorance abysmal used to party doctrine can be adherence Lenin,” not teachings of Marx would accuracy of the characteriza- evaluate the Hepps ensures that a actionable. tion, 168 Ariz. at 81 & n. see opinion relating matters ‍‌‌‌​​‌‌‌‌‌‌‌​​‌‌​‌​‌​‌‌​​​​‌‌‌​‌‌​​‌​​‌​‌​​​‌​‌​‍statement implica- P.2d at 333 & n. absent contain public concern which does not abuse, Devlin’s comments tion will provably false factual connotation judge mark with which have no bench protection. receive full constitutional Fleming, 454 N.E.2d see accuracy, their Id. (harsh police held critique behavior We believe that Devlin’s assessment fact); unprovable to be nonassertion cf. letter re- this characterization. The within 21,110 at 2707 S.Ct. im- nothing subjective more than her veals sufficiently (connotation perjury was The state- pression of Turner’s “manner.” false, noting proven true factual to be alleged defamatory contain no ments determined that its truthfulnеss can be provable. factual connotations that are evidence”). objective looking to a “core of characterizations of Turner’s tone Amend- Milkovich made clear that First “demand[],” of voice as a of his interview such an protection should not turn on ment interrogation, of his de- as like a criminal subjective intensely evaluation. disrespectful,” and of meanor “rude and “borderpng] bru- his “manner” as Reasonably Devlin’s Statements D. Could and, by implication, tality” as “outdated” Stating Actual Facts Interpreted as plainly personal her and “uneducated” are Turner? About impression of Turner’s interview methods. letter, Tur Accоrding to Devlin’s Surely, perceived Turner’s “de- apparently grossly mishandled what ner “request,” mand” as a Turner would and delicate have been a sensitive should Similarly, description of objected. have could investigation. chose words that She interrogation “questioning” would his convey strong disapproval. effectively protest. there have drawn no Nor would actionable, however, such words To be grounds legal complaint had Devlin be being reasonably inter capable must of “impolite” reported that his manner was Turner. preted stating actual facts about as techniques “uninformed” rather and his Milkovich, 16-17, 110 S.Ct. See 497 U.S. at “outdated,” “rude,” “disrespеctful,” than Coop. 2704-05, Greenbelt (citing 2706 at “uneducated.” To determine whether and Bresler, 398 U.S. Publishing Ass’n Inc. v. child to requested Turner demanded or the 1542, 6, 14, L.Ed.2d 6 90 26 S.Ct. stand, inquiry his more like whether was negotia (holding that reference interrogation question- criminal rather than nonac technique as “blackmail” was tion rude, ing, whether his manner was disre- hyperbole); Hustler rhetorical tionable outdated, op- spectful, and uneducated as Falwell, 108 Magazine v. something less offensive all lie posed to (1988) (holding 41 99 L.Ed.2d S.Ct. realm of factual ascertainment beyond the precluded recov First Amendment describing proof. Finally, instead of or distress for advertise ery for emotional “borderpng] police as on Turner’s manner reasonably that “could not parody ment analogy if had an brutality,” Devlin chosen stating actual interpreted as have been (for example, home border- not so close to involved”); figure public facts about barbarianism), subjective nature ing on No. Nat. Dominion Branch Old be unassailable. of her criticism would Austin, 418 Ass’n Letter Carriers of 2781-82, 264, 284-86, 41 94 S.Ct. objective no criteria U.S. We can conceive of (holding that use of employ de- L.Ed.2d 745 jury effectively could that a 208 “scab,” cases, allegation

word in some read as an of with a definition that included “traitor,” abuse, “merely hyper- physical was rhetorical wе do but not believe it can reasonably that way bole” was not a for a defamation be read in this case. basis law)). Falwell, action under See 485 U.S. at at federal labor This re- 108 S.Ct. 879; quirement Carriers, 284-86, “provides public assurance that Letter 418 U.S. at 2781-82; ‘imagina- Bresler, debate will not suffer for lack of S.Ct. at at U.S. 1542; expression’ hyper- at City tive or the ‘rhetorical S.Ct. Baltimore cf Andrew, traditionally which added much to Police v. 318 Md. bole’ has 566 A.2d Milkovich, (1989) (charge discourse Nation.” placed of our officer sus- pect in (citing 497 U.S. at S.Ct. at 2706 a headlock and him against threw Falwell, 53-55, 108 general S.Ct. at vehicle was un- consistent 880-82). depiction derstanding police brutality). Devlin’s Turnеr’s in- interrogation terview as like a criminal In the defendant referred to brutality police bordered on falls within plaintiff as a communist while address- protection. plaintiff’s political audience of the opponents. letter not Devlin’s did accuse Turner of at Instead, brutality. physical Rejecting argument abuse or Dev- that the com- interpreted lin only characterized his interview as an inter- ment could as an asser- rogation conducted the student tion had of fact on the one hand or as other, illegal hyperbole committed an invective on act characterized bordering closely found, his manner as brutali- scrutinized record and “manner,” if,” context, ty. Use of the words reasonably “as that it could be inter- preted way. and “bordered”—and indeed the entire let- either Id. imply

ter—do not describe or an accusation at 331-32.9 clearly conduct and let the read- In this the context Devlin’s state- know er that the characterizations were not opposite ments dictates the conclusion—the precise. meant to be nothing statements more than were an as- course, of, on, recognize, that statements sessment and attack Turner’s man- opinion ner, demeanor, methods, they interviewing are when “imply actionable therefore, techniques. a false assertion of fact.” Unlike supported at 2706. If where the S.Ct. Dev- evidence two tenable views, lin’s statement reasonably could be inter- this record shows that Devlin’s anal- preted accusing ogy unmistakably exaggeration of physically Turner was used victim, abusing protest we would have a differ- to voice ardent methods— view, case. Contrary suggestion ent to the in not an assertion fact. our concurring opinion, Martone’s “even the most careless reader” would Justice how- ever, person perceived description we do “no not believe reasonable have Devlin’s implication hyperbole, vigorous make that from morе than could rhetorical complain epithet” letter. Devlin does about used to criticize Turner’s behavior. Bresler, 1542; physical Turner’s conduct but rather his S.Ct. at demand, rudeness, Corp., his demeanor—his his see also Thuma v. Hearst 867, 869, (D.Md.1972)(ref- F.Supp. manner. The inferences to reasonable be 871-72 shooting by reading police drawn must be determined the erence to as “cold-blooded whole, disap- by singling hyperbole letter as a murder” used to not out two was voice agree proval speaker We the for be words. with concurrence what the believed to allegation shooting); an an police brutality might, unjustified Fleming, of factual; (2) political newspaper Because the was made at a his comment to be a 9. comment gathering, easily reporter interpreted we “could the statement as an asser- held that it inter- fact; testimony preted nothing political expert than tion of there was more rhetorical and Yetman, susceptible hyperbole.” invective or 168 Ariz. at that the statement was to the inter- pretation supported actually 811 P.2d at The record also that Yetman was a commu- 331. Specifically, interpretation. 811 P.2d the rec- nist. Id. at 80 & nn. at 332 & nn. factual ord revealed that: the defendant intended (reference police of decision appeals’ to the court is vacated N.E.2d at judgment trial affirmed. and Nazis” was non-actionable the court’s is “dictators behavior, used to criticize not a rhetoric fact); Lynch, of Orr statement APPENDIX (App. N.Y.S.2d A.D.2d MAY TO IT CONCERN: WHOM Div.) (report police “opened fire” and April Sky Junior On Desert “gunned suspect down" was non-actionable School, began High day the with a student hyperbole), aff'd, rhetorical 45 N.Y.2d severely by his who had been assaulted (1978). 411 N.Y.S.2d 383 N.E.2d 562 stepfather, reputed drug offender course, This, distinguishes present the patient. mental The student asked health case from where we left it to the was for medical and social assistance and

jury to decide whether the statеment con- office immediately referred the nurse’s provably tained false factual assertion or by counseling required office. is As opinion, implying whether it was mere no ARS Child Protective Services assertion of fact and therefore not (CPS) Be- report called and the made. was actionable. Id. at 811 P.2d at 332- severity cause of evi- 33. In do not believe there is we request dence and the the student interpretation jury. an issue of for the event, report po- CPS advised that may argua- While this view of facts department delay lice be contacted without ble, see pictures physi- so that could be taken and a (Corcoran, J., dissenting), at 335 this case physician, cal which was examination legally and Yetman are not inconsistent. necessary, accomplished deemed could be Contrary to the in suggestion Justice Mar- procedures assign a they began while concurrence, tone’s Yetman not over- case worker. silentio, explicitly, ruled nor sub and has arrived, police When Phoenix officer not been “interred.” visiting rather the student at his bed- than believe, therefore, summary being side was where he monitored judgment granted was in properly favor of concussion, symptoms possible damage Devlin, both because her state comments eye; to the internal left еar and left susceptible proof that are matters not ‍‌‌‌​​‌‌‌‌‌‌‌​​‌‌​‌​‌​‌‌​​​​‌‌‌​‌‌​​‌​​‌​‌​​​‌​‌​‍officer stand demanded the student falsity they truth or mat- because state against The student was interro- the wall. reasonably that cannot be interpreted ters he, victim, gated as had committed this, facts. as actual Given we need not illegal act. The officer was rude and disre- decide whether the comments were made spectful, and his manner bordered on required actual malice as New brutality. Times. York submitting complaint I am this letter of Turner, Badge against CONCLUSION officer Tom protest # man- as a but protects The First Amendment Depart- ner the Phoenix Police which handling criticism Turner’s the inves- problem ment is trained to deal with this tigation. The relates to a matter of letter specifically, and with citizens of this com- great public The statements are concern. munity general. subjective impressions, unprovable as false. Also, location, geographical the letter states matters that cannot Because of our reasonably stating equally with the Phoenix and the understood actual work impossible It is to work systems. facts about Turner. We do address Glendale compare Turner’s organizations whether behavior such with both and not deserved group. The sharp criticism. We hold the services rendered each well-trained, subject at issue of the Glen- cannot be of a courteous manner true judge action. Because the dale is to be commended as a defamation trial force granted community. properly Devlin’s motion for sum- service to their It is obvious Turner’s, proceed mary judgment they and denied have been instructed to 71, (1991),

Ariz. 811 P.2d 323 to reach it. I do not believe attempt court’s in a manner which will not destroy further distinguish Thus, persuasive. Yetman dignity already mistreated indi- not, whether the court admits it or Yetman they vidual whom requested have been does today’s not survive decision. They assist. are truly respected service organization to Glendale and to the State 203, As acknowledges, the court ante at Arizona. The behavior officer Turner is 288, 848 P.2d at appeals the court of relied not an isolated but rather the routine concluding on Yetman in that Turner’s procedure to expected of the Phoenix “provably claim was false.” Bound Department. Police it could have reached no other

There conclusion. We are outdated, is no not so constrained. excuse for this uneducated part behavior on the of so im- In two members of this court portant group Department. as our Police thought the words kind of “[w]hat These men right have a to the most current up communist do wе have there that thinks and effective today. education available improper protect your it’s interests?” education, long overdue, This is not a luxu- could reasonably interpreted stating ry necessity. but a pursue We should facts, actual and provably were false. Id. matter until we every are assured that 80-81, 811 P.2d at 332-33. City Phoenix, citizen in the regardless view, my ignored Yetman the letter race, religion or expect AGE can to be and the spirit of Milkovich v. Lorain Jour- treated with courtesy the common and re- Co., 2695, nal 497 U.S. 110 S.Ct. spect due them. 2706, (1990). 111 L.Ed.2d 1 As this court Respectfully, notes, 207, 292, ante at 848 P.2d at Milko- Devlin, Barbara R.N. expressly vich used aas nonactionable ex- MOELLER, V.C.J., ZLAKET, J., and ample, my opinion, Mayor words “[i]n concur. Jones abysmal ignorance by shows his ac- cepting teachings of Marx and Lenin.” CORCORAN, Justice, specially 20, 110 S.Ct. at 2706. The concurring: example Milkovich and the Yetman lan- agree I opinion court, with the of the guage indistinguishable. are To call some- except its reaffirmation of Yetman decided communist, one a in stating contrast to as a in opinion. a 3-2 in result Yetman fact that one is a member of the communist should have been the same as we reach party, is neither a statement of nor fact here. See English, Yetman v. 168 Ariz. provably false.1 71, 82-83, 323, 334-35, Cameron, 811 P.2d J., calling Contrast someone a cоmmunist dissenting part, in under Yetman with the words in Corcoran, J., P.2d at issue dis- here, senting, 168 Ariz. officer’s “manner bor- 811 P.2d at 335 (1991); police brutality.” dered on A English, Yetman v. 163 Ariz. manner 403, 406, Livermore, J., police brutality which borders on is far dissenting (App.1989). likely more to be understood as a state- ment of fact than a characterization of MARTONE, Justice, concurring in the someone as a Bordering communist. judgment opinion part. police brutality conjures up image agree decision, I today’s factual, Physical but believe abuse. abuse is reject we must English, Yetman v. 168 not Calling abstract. someone a commu- law, calling 1. At field, common someone a (Sup. commu- 174 Misc. 20 N.Y.S.2d always defamatory. nist was not even Ct.1940) Whether (not defamatory). generally See Grant defamatory depended such an assertion was Ass'n, (2d Digest v. Reader's 151 F.2d 733 Cir. upon prevailing political climate. McAn- 1945), denied, cert. 66 S.Ct. Co., Republican drew v. Scranton Pub. 364 Pa. L.Ed. 485 and Torts —Label “Commu (1950) (not defamatory), A.2d Se, nist Dominated" Held Libelous Per Gelber, Levy v. 175 Misc. 25 N.Y.S.2d Wash.U.L.Q. 331. (Sup.Ct.1941) (defamatory), Garriga v. Rich- likely nist in the context of is not Yetman likely to understood as It is

to be factual. And ideological rhetoric.

be understood said enough, how can it be that were false? ‍‌‌‌​​‌‌‌‌‌‌‌​​‌‌​‌​‌​‌‌​​​​‌‌‌​‌‌​​‌​​‌​‌​​​‌​‌​‍being provably communist test use to test litmus does one

What Engels? Marx? Lenin? Gorba-

label?

chev? Sartre? Kazantzakis? contrast, easily prove one could more one’s

as false that manners bordered brutality by to tes- calling witnesses

tify those to show about manners and involved.

there was no abuse prove? is easier to

Which reasons, how we

For these I do not see today’s over-

can reach conclusion without survive,

ruling If Yetman. Yetman is I Because

today’s decision cannot stand. here

agree with the court that the words actionable, I the view that

are not am of has been silentio.

Yetman interred sub

848 P.2d 296 Arizona, Appellee, STATE KRANTZ, Appellant. Dean

David

No. 2 CA-CR 92-0192. Arizona, Appeals

Court of A. Department

Division

May 28, 1992. 13, 1993. April

Review Denied

Case Details

Case Name: Turner v. Devlin

Court Name: Arizona Supreme Court

Date Published: Mar 2, 1993

Citation: 848 P.2d 286

Docket Number: CV-91-0365-PR

Court Abbreviation: Ariz.