Scott Miller v. Kshama Sawant ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT MILLER, an individual; No. 21-35004
MICHAEL SPAULDING, an individual,
Plaintiffs-Appellants, D.C. No.
2:18-cv-00506-
v. MJP
KSHAMA SAWANT, an individual,
Defendant-Appellee, OPINION
and
CITY OF SEATTLE, a municipal
corporation,
Defendant.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted October 4, 2021
Seattle, Washington
Filed November 10, 2021
2 MILLER V. SAWANT
Before: A. Wallace Tashima, Milan D. Smith, Jr., and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Tashima
SUMMARY*
Defamation
The panel reversed the district court’s dismissal of an
action brought by Seattle police officers who alleged 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 failed
adequately to allege that Sawant’s remarks were “of and
concerning” them. In reversing the district court, the panel
first determined that Sawant’s own words suggested 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.” Second, the complaint plausibly alleged
that some of those who read or heard Sawant’s remarks—
Plaintiffs’ families, friends, and colleagues, as well as
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MILLER V. SAWANT 3
members of the general public—knew that Plaintiffs were the
officers involved in the shooting. Third, the complaint
plausibly alleged that these readers and listeners understood
that Sawant’s remarks were directed at Plaintiffs. The panel
held that under the governing federal pleading standard,
Plaintiffs plausibly alleged that Sawant’s communications
were of and concerning them.
The panel disagreed with the district court’s conclusion
that no reasonable person could conclude that Sawant’s
remarks concerned the individual officers but rather spoke to
broader issues of police accountability. The panel held that
at most, the district court 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. Here, Sawant’s
words reasonably carried with them the defamatory meaning
Plaintiffs had assigned to them. Accordingly, the panel
reversed the district court’s judgment and remanded for
further proceedings.
COUNSEL
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.
4 MILLER V. SAWANT
OPINION
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
MILLER V. SAWANT 5
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., 356 P.2d
97, 98 (Wash. 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, 608 P.2d 716, 722 (Cal. 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
1
Plaintiffs assert that the shooting was lawful. The complaint alleges
that the Seattle Police Department, the City’s Force Investigation Team,
the City’s Firearms Review Board, and an inquest convened by the King
County prosecutor all cleared Plaintiffs of punishable wrongdoing. TAC
¶¶ 50–57.
6 MILLER V. SAWANT
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
2
According to the complaint, Sawant told the crowd:
This is dramatic racial injustice, in this city and
everywhere in this nation. The brutal murder of Che
Taylor, just a blatant murder at the hands of the police,
show how urgently we need to keep building our
movement for basic human rights for black people and
brown people. I want to let you know that I stand here
both as an elected official, as a brown person, as an
immigrant woman of color, and as someone who has
been in solidarity with the Black Lives Matter
movement, and our movement for racial, economic and
social justice. . . .
And I am here as an elected official because I am
completely committed, unambiguously committed, to
holding the Seattle Police Department 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.
TAC ¶ 37 (alteration in original).
MILLER V. SAWANT 7
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
3
According to the complaint, Sawant told the Lyles gathering:
I join the NAACP in demanding such a transparent
public hearing. When Che Taylor was murdered by the
police, the community and I demanded such a hearing
from the Mayor and from Council member Gonzalez
whose committee oversees the [Seattle Police
Department (“SPD”)], but neither the Mayor nor
Council member Gonzalez responded. In . . . light of
the horrific killing of Charleena now I again urge . . . I
publicly urge the City Council to hold such a hearing.
I have also earlier today sent a number of important
questions to the SPD.
. . . We demand that the City of Seattle appoint an
independent committee to review this case . . . with full
public accountability. We cannot rely on the existing
process to determine why Charleena was killed because
that process has failed Che Taylor . . . that process has
failed every person who was killed at the hands of the
Police. Sisters and brothers, I will add one more thing
for our movement that is standing with Charleena to
think about, a deeply unequal society such as ours also
implies that the lives of poor and low-income people,
black and brown people, homeless people, those who
have mental health issues and challenges . . . the system
treats our lives as expendable.
TAC ¶ 47 (some alterations in original).
8 MILLER V. SAWANT
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
4
The complaint seeks actual and punitive damages and alleges the
following claims: defamation, defamation per se, and outrage under
Washington law; and federal defamation. The parties agree that the sole
issue on appeal is whether the complaint states claims for defamation
under Washington law. We therefore address solely that issue. The
parties also agree that the outrage claim is derivative of and rises or falls
together with the defamation claims. They do not discuss the federal
defamation claim.
MILLER V. SAWANT 9
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
10 MILLER V. SAWANT
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
5
We take judicial notice of six newspaper articles, published between
February 25, 2016 and March 2017, identifying Plaintiffs as the officers
involved in the Taylor shooting. See Fed. R. Evid. 201. These articles
are: Christine Clarridge, ‘Black Lives Matter’ Protesters Demand Firing
of Police Chief after Fatal Shooting, Seattle Times, Feb. 25, 2016; Elisa
Hahn, Che Taylor Was Reaching for a Gun, SPD Officer Testifies,
K5 News, Feb. 3, 2017; Elisa Hahn, Second Seattle Officer Defends
Shooting Che Taylor, K5 News, Feb. 8, 2017; Inquest Jury Backs Officers
in Fatal SPD Shooting of Che Taylor, KOMO News, Feb. 10, 2017; Jury
Finishes Inquest of 2 Seattle Police Officers Involved in Fatal Shooting,
Q13 Fox, Feb. 10, 2017; and Simone Alicea, No Charges Against Seattle
Cops Who Shot Che Taylor, KNKX, Mar. 15, 2017.
MILLER V. SAWANT 11
[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.
6
In ruling on Sawant’s Rule 12(b)(6) motion to dismiss, the district
court properly declined to consider Plaintiffs’ testimonial
evidence—declarations from four individuals who testified that they
believed Sawant’s statements were directed at Plaintiffs. See Khoja
v.Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018)
(“Generally, district courts may not consider material outside the
pleadings when assessing the sufficiency of a complaint under Rule
12(b)(6) . . . .” (citation omitted)).
7
This case was before us once before. In an earlier appeal, we
affirmed the dismissal of the second amended complaint, holding that it
did “not plead any facts to show that Sawant’s remarks c[ould] reasonably
be understood to refer to Plaintiffs,” but held that the district court abused
its discretion by denying leave to amend. Miller v. Sawant, 811 F. App’x
408, 410–11 (9th Cir. 2020). We held: “Because Plaintiffs may be able
to plead additional facts to show that Sawant’s remarks can reasonably be
understood as referring to them, such as who heard the remarks, and
whether anyone identified Plaintiffs as the subject of them, we cannot say
that amendment would be futile.” Id. at 411. In addition, we held that
“[t]he district court erred to the extent it concluded that Plaintiffs may not
plead extrinsic facts to show that Sawant’s statements were ‘of and
concerning’ them.” Id. at 411 n.3 (citing Purvis v. Bremer’s, Inc.,
344 P.2d 705, 711 (Wash. 1959) (en banc)). The TAC, which is the
operative pleading on this appeal, differs from the second amended
complaint in two material respects: (1) it includes a transcription of
Sawant’s actual remarks, rather than a sparse summary of them, TAC
¶¶ 37, 47; and (2) it includes the three paragraphs quoted above regarding
how families, friends, colleagues, and the general public understood
Sawant’s remarks, TAC ¶¶ 45–46, 48.
12 MILLER V. SAWANT
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 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (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,
108 P.3d 768, 773 (Wash. 2005) (en banc).8 In addition, a
plaintiff must “prove that the communication was made of
and concerning him.” Sims v. Kiro, Inc., 580 P.2d 642, 645
(Wash. Ct. App. 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
8
“[T]he standard of fault . . . depends on the nature of the plaintiff.
If the plaintiff is a public figure or public official, he must show actual
malice. If, on the other hand, the plaintiff is a private figure, he need show
only negligence.” LaMon v. Butler, 770 P.2d 1027, 1029 (Wash. 1989)
(en banc). Here, it has not been determined whether Plaintiffs are public
or private figures.
MILLER V. SAWANT 13
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, 635 P.2d 1081, 1089 (Wash.
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
standard does not apply at trial. As the Washington Supreme
Court stated in Duc Tan v. Le, 300 P.3d 356 (Wash. 2013) (en
banc), “[n]either the common law nor the First Amendment,
as interpreted by the United States Supreme Court, requires
proof of any element of a defamation action, other than actual
malice, by evidence of convincing clarity.” Id. at 366 n.5
(quoting Richmond v. Thompson, 922 P.2d 1343, 1352
(Wash. 1996) (en banc)).
Second, even if Sawant could show that Washington
courts apply a convincing clarity standard at the pleading
stage, that standard would not apply here. Pleading in federal
court is governed by Federal Rules of Civil Procedure, not
state pleading requirements. “Under the Erie doctrine,
however, it is long since settled that federal courts sitting in
diversity apply state substantive law and federal procedural
law.” Hyan v. Hummer, 825 F.3d 1043, 1046 (9th Cir. 2016)
(internal quotation marks and citations omitted); see also
Verizon Del., Inc. v. Covad Commc’ns Co., 377 F.3d 1081,
14 MILLER V. SAWANT
1091 (9th Cir. 2004) (“[p]rocedural state laws are not used in
federal court if to do so would result in a direct collision with
a Federal Rule of Civil Procedure.” (internal citations
omitted.) Moreover, “the Federal Rules of Civil Procedure
impose no special pleading requirements for defamation.”
Croixland Props. Ltd. P’ship v. Corcoran, 174 F.3d 213, 215
n.2 (D.C. Cir. 1999).9 A plaintiff asserting a state-law
defamation claim in federal court need only satisfy Rule 8; a
state’s heightened pleading requirement does not apply. See
Church of Scientology, 744 F.2d at 696 n.2; see also
Andresen v. Diorio, 349 F.3d 8, 17 (1st Cir. 2003);
Muzikowski v. Paramount Pictures Corp., 322 F.3d 918,
925–26 (7th Cir. 2003). As a leading treatise explains in
9
Sawant suggests that defamation cases are subject to a heightened
pleading requirement under federal procedural rules, citing Franchise
Realty Interstate Corp. v. San Francisco Local Joint Executive Board of
Culinary Workers, 542 F.2d 1076, 1082–83 (9th Cir. 1976), an antitrust
case, where we held that “in any case, whether antitrust or something else,
where a plaintiff seeks damages or injunctive relief, or both, for conduct
which is prima facie protected by the First Amendment, the danger that
the mere pendency of the action will chill the exercise of First Amendment
rights requires more specific allegations than would otherwise be
required.” We questioned this holding’s extension to defamation cases in
Flowers v. Carville, 310 F.3d 1118, 1131 n.8 (9th Cir. 2002), citing the
Supreme Court’s statement in Calder v. Jones, 465 U.S. 783, 790–91
(1984), that it had “declined . . . to grant special procedural protections to
defendants in libel and defamation actions in addition to the constitutional
protections embodied in the substantive laws.” We noted, moreover, that
“we have yet to apply Franchise Realty outside the Noerr-Pennington
context.” Flowers, 310 F.3d at 1131 n.8. But even assuming Franchise
Realty imposes a heightened pleading requirement in defamation cases,
the complaint in this case satisfies that requirement. As we explained in
Flowers, a defamation complaint is sufficient under Franchise Realty
when it “lists the precise statements alleged to be false and defamatory,
who made them and when.” Id. at 1131. Plaintiffs’ complaint meets this
standard.
MILLER V. SAWANT 15
discussing defamation claims, “the basic philosophy of the
Rule 8(a) requirement of a plain and concise statement of the
claim for relief should not be sacrificed in order to follow
state notions of pleading particularity or an antipathy toward
certain claims for relief.” 5 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1245 (4th ed.
2021).10
Plaintiffs, therefore, need not plead the of-and-concerning
element with convincing clarity. Instead, they “need only
plead sufficient facts to make it plausible—not probable or
even reasonably likely—that a reader familiar with each
Plaintiff would identify him as the subject of the statements
at issue.” Elias v. Rolling Stone LLC, 872 F.3d 97, 105 (2d
Cir. 2017). As we explained in our earlier decision in this
case, the complaint need only “plead . . . facts to show that
Sawant’s remarks can reasonably be understood to refer to
Plaintiffs.” Miller, 811 F. App’x at 410.
10
Because the issue may arise on remand, we note that the same
principle governs at summary judgment: a federal court must apply
Federal Rule of Civil Procedure 56, rather than a state’s heightened
summary judgment standard, to claims arising under state law, see Snead
v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093 (9th Cir. 2001);
Gasaway v. Nw. Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994);
Caesar Elecs. Inc. v. Andrews, 905 F.2d 287, 289 n.3 (9th Cir. 1990);
Bank of California, N.A. v. Opie, 663 F.2d 977, 979 (9th Cir. 1981),
including defamation claims, see Doe v. Doe, 941 F.2d 280, 287 (5th Cir.),
modified on other grounds, 949 F.2d 736 (5th Cir. 1991). Thus, should
the issue arise on remand, the district court should apply Rule 56.
16 MILLER V. SAWANT
B. The Complaint Plausibly Alleges That Sawant’s
Statements Were Of and Concerning the Plaintiffs
1.
The district court rejected the complaint on the ground
that no reasonable person could conclude that Sawant’s
remarks concerned the individual officers who shot Taylor.
In the district court’s view, “[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, 2020 WL 7714414, at *3.11
We disagree. First, although Sawant’s remarks appear
aimed, at least in part, at the police generally, some of her
language suggests that her words refer specifically to the
officers who shot Taylor. Sawant asserted that Taylor’s death
11
See also Miller, 2020 WL 7714414, at *3 (“[T]he statement does
not target any particular officer involved in the shooting—rather it speaks
to broader issues and targets the Police more generally.”); id. at *4 (the
allegation that Plaintiffs had been identified in news stories as the officers
involved in the shooting “does not convert Councilmember Sawant’s
broad-brush remarks about p[olice] accountability into a specific statement
that could reasonably be understood to be ‘of and concerning’ Plaintiffs”);
id. (“Councilmember Sawant’s words themselves do not intrinsically
reference Plaintiffs and do not ‘point out’ Plaintiffs from the Police in
general.”); id. (“Councilmember Sawant’s remarks . . . speak of the Police
generally and cannot reasonably be understood to refer to Plaintiffs.”); id.
(concluding that Sawant’s “general statements . . . do not single out any
specific person from a field of many potential subjects”); id. at *5
(“Councilmember Sawant’s statements themselves do not single out the
officers involved.”); id. (“None of the ‘extrinsic evidence’ Plaintiffs have
added to their TAC satisfies their burden to show that Councilmember
Sawant’s remarks could reasonably be understood to be ‘of and
concerning’ them, and not the Police more generally.”).
MILLER V. SAWANT 17
was “a blatant murder at the hands of the police,” and she
called for the police to be held “accountable for their
reprehensible actions, their individual actions. We need
justice on the individual actions . . . .” TAC ¶ 37. This
language suggests that Sawant was singling out
Plaintiffs—characterizing them as murderers and calling for
them to be held individually accountable.12
In addition, apart from Sawant’s own words, the TAC
alleges that persons who heard or saw Sawant’s remarks
understood that they referred to Plaintiffs.
45. 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
12
Citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 16–17 (1990),
and Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6, 13–14
(1970), Sawant suggests that she may have used the word “murder” as
“rhetorical hyperbole,” noting that the word need not be “read literally”
as accusing Plaintiffs “of committing a crime. This argument does not
affect our analysis. First, a reasonable person could conclude that Sawant
intended the word to be taken literally. Second, a communication need
not accuse another person of a crime in order for it to be defamatory. See
Restatement (Second) of Torts § 559 (1977) (“A communication is
defamatory if it tends so to harm the reputation of another as to lower him
in the estimation of the community or to deter third persons from
associating or dealing with him.”). Although falsely accusing someone of
a crime may constitute defamation per se, Davis v. Fred’s Appliance, Inc.,
287 P.3d 51, 61 (Wash. Ct. App. 2012), a communication need not impute
criminal conduct to be defamatory.
18 MILLER V. SAWANT
involved in the shooting and, thus, the only
‘police’ to whom the statements could apply.
TAC ¶ 45. These allegations are neither conclusory nor
implausible. Hence, they are entitled to a presumption of
truth at this stage of the proceedings. Iqbal, 556 U.S.
at 678–79. Indeed, they are precisely the kind of allegations
that we previously said Plaintiffs could rely on plausibly to
plead the of-and-concerning element. See Miller, 811 F.
App’x at 411 (“Because Plaintiffs may be able to plead
additional facts to show that Sawant’s remarks can reasonably
be understood as referring to them, such as who heard the
remarks, and whether anyone identified Plaintiffs as the
subject of them, we cannot say that amendment would be
futile.” (emphasis added)). Like Sawant’s own words, these
allegations support the inference that Sawant’s remarks can
reasonably be understood to refer to Plaintiffs.
It may be, as the district court surmised, that some
listeners or readers would understand Sawant’s remarks as
communicating solely criticism of the police generally. But
that is only one reasonable meaning of the remarks, not the
only such meaning. As we explained in Church of
Scientology, the “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.” 744 F.2d at 696 (quoting Forsher,
608 P.2d at 722). A court determines only whether a
communication is capable of defamatory meaning, while
“[t]he jury determines whether a communication, capable of
a defamatory meaning, was so understood by its recipient.”
Restatement (Second) of Torts § 614 (1977); accord Swartz,
356 P.2d at 98.
MILLER V. SAWANT 19
For the above reasons, we hold that the TAC plausibly
pleads that Sawant’s statements were of and concerning
Plaintiffs. The district court erred by ruling otherwise.
2.
Sawant’s arguments to the contrary lack merit.
a.
We reject Sawant’s argument that this case is controlled
by New York Times Co. v. Sullivan, 376 U.S. 254 (1964). In
Sullivan, the plaintiff argued that an advertisement was “of
and concerning” him because it criticized certain acts of the
police department, which he oversaw in his capacity as a city
commissioner. The Supreme Court held that there was
insufficient evidence to show that the advertisement was of
and concerning the plaintiff. Id. at 288–92. This conclusion
turned on the fact that the plaintiff had no “personal
involvement in the acts in question.” Id. at 288–89. The
plaintiff’s theory instead relied on “the bare fact that he was
in overall charge of the Police Department.” Id. at 289. The
Court held that this single fact was insufficient. To hold
otherwise, the Court explained, would unduly stifle criticism
of the government:
This proposition has disquieting implications
for criticism of governmental conduct. For
good reason, ‘no court of last resort in this
country has ever held, or even suggested, that
prosecutions for libel on government have any
place in the American system of
jurisprudence.’ City of Chicago v. Tribune
Co., 307 Ill. 595, 601 (1923). The present
20 MILLER V. SAWANT
proposition would sidestep this obstacle by
transmuting criticism of government, however
impersonal it may seem on its face, into
personal criticism, and hence potential libel,
of the officials of whom the government is
composed. . . . We hold that such a
proposition may not constitutionally be
utilized to establish that an otherwise
impersonal attack on governmental operations
was a libel of an official responsible for those
operations.
Id. at 291–92; accord Rosenblatt v. Baer, 383 U.S. 75, 80
(1966) (“[I]n the absence of sufficient evidence that the attack
focused on the plaintiff, an otherwise impersonal attack on
governmental operations cannot be utilized to establish a libel
of those administering the operations.”).
Sullivan’s reasoning is inapplicable here. First, Plaintiffs
were personally involved in the acts in question—the Taylor
shooting. As the California Court of Appeal has observed,
“an entirely different picture would have been presented [in
Sullivan] had the plaintiffs been police officers who were
personally involved in the incidents referred to.” Mullins v.
Brando, 91 Cal. Rptr. 796, 801 (Ct. App. 1970). Second, this
case does not involve an “impersonal attack on government
operations,” and Plaintiffs do not administer the Seattle
Police Department. See Rosenblatt, 383 U.S. at 80. The
libel-on-government concerns underlying Sullivan, therefore,
are absent here.
MILLER V. SAWANT 21
b.
Sawant places great emphasis on the fact that she did not
identify Plaintiffs by name in her remarks. This fact is not
dispositive. Under Washington law, as under defamation law
generally, “defamatory words referring to ascertainable
persons are actionable to the same extent as those referring to
designated persons.” Olympia Waterworks v. Mottman,
153 P. 1074, 1075 (Wash. 1915) (per curiam). As the
Washington Supreme Court has explained:
[I]t is not necessary that the person defamed
be named in the publication if, by intrinsic
reference, the allusion is apparent or if the
publication contains matters of description or
reference to facts and circumstances from
which others may understand that the
complainant is the person referred to, or if he
is pointed out so that the persons knowing him
could and did understand that he was the one
referred to in the publication.
Spangler v. Glover, 313 P.2d 354, 358–59 (Wash. 1957) (en
banc); accord Restatement (Second) of Torts § 564 cmt. b
(1977).
This principle applies here. Sawant did not identify
Plaintiffs by name, but (1) her words can reasonably be
understood as referring to the officers involved in the Taylor
shooting, (2) readers and listeners knew that Plaintiffs were
the officers involved in the shooting, and (3) those readers
and listeners understood Sawant’s remarks to refer to
Plaintiffs. These allegations are sufficient to plead that
Sawant’s remarks were of and concerning Plaintiffs.
22 MILLER V. SAWANT
c.
Sawant also relies on case law in which “courts have
repeatedly dismissed defamation suits brought by police
officers where the challenged statements did not refer to the
plaintiff by name.” The cases upon which she relies,
however, are readily distinguishable from this one, and she
fails to distinguish other cases, more analogous to this one, in
which courts have sustained such claims. As to the former,
aside from the fact that they are not controlling on this Court,
Sawant’s cases are distinguishable on their facts: Edgartown
Police Patrolmen’s Ass’n v. Johnson, 522 F. Supp. 1149,
1152 (D. Mass. 1981) (“None of the defendant’s statements
. . . singled-out any member of the police force”); Fornshill
v. Ruddy, 891 F. Supp. 1062, 1071 (D. Md. 1995) (concluding
that the defendant’s statements were not concerning the
plaintiff police officer where only the police department’s
“official reports” were challenged, not any individual
officer’s action on the scene); Dean v. Dearing, 561 S.E.2d
686, 688–89 (Va. 2002) (rejecting the defamation claim of an
individual officer because the defendant’s accusations neither
referenced the plaintiff nor could be understood to have
specifically implicated him).
Plaintiffs, on the other hand, cite several cases in which,
on facts more analogous to those presented here, courts have
upheld defamation claims: Cushman v. Day, 602 P.2d 327,
330–31 (Or. Ct. App. 1979) (unnamed officers who
responded to a labor protest, and were subjects of the
statement that “[t]here’ll be criminal charges filed against
every officer that was out there this morning,” stated a claim
for relief); Mullins, 91 Cal. Rptr. at 802–03 (although the
defendant’s statements implying that Oakland police officers
had murdered a member of the Black Panthers did not
MILLER V. SAWANT 23
designate the officers by name, the court concluded that the
officers involved in the shooting had adequately alleged that
the statements were of and concerning them).
d.
Sawant also argues that she cannot be held liable, even if
readers and listeners reasonably understood her remarks to
refer to Plaintiffs, because she was not responsible for making
Plaintiffs’ identities public. Quoting Vantassell-Matin v.
Nelson, 741 F. Supp. 698, 710 (N.D. Ill. 1990), she argues
that,
where a speaker is meticulous enough to
preserve the anonymity of an individual about
whom damaging information is given, the
speaker should not be exposed to liability for
defamation because someone else ferrets out
the identity of the individual and couples it
with the speaker’s statement in a later
publication.
She maintains that she “cannot be held liable for the
conclusions that ‘family, friends, and colleagues’ and
‘members of the general public’ reached based on
information that they acquired from elsewhere.”
Apart from Vantassell-Matin, however, we can find no
support for this novel proposition. The law is clear that
“defamatory words referring to ascertainable persons are
actionable to the same extent as those referring to designated
persons.” Olympia Waterworks, 153 P. at 1075; accord
Restatement (Second) of Torts § 564 cmt. b (1977). And the
authorities make no distinction between information acquired
24 MILLER V. SAWANT
from the speaker and information acquired from other
sources.
In any event, even if Vantassell-Matin were correct on the
law, it would not apply here. The critical fact in
Vantassell-Matin was that the plaintiffs’ identities were not
ascertainable at the time the allegedly defamatory statements
were made. 741 F. Supp. at 710. Here, by contrast, the
complaint alleges that Plaintiffs’ family, friends, and
colleagues were “familiar with the details of the Che Taylor
shooting” and understood Sawant’s statements to be directed
at Plaintiffs at the time they were made. TAC ¶ 45. Indeed,
by June 2017, when Sawant accused Plaintiffs of murder for
a second time, numerous newspaper articles had identified
Plaintiffs as the officers involved in the shooting. TAC ¶ 48.
By then, members of the general public too would have been
able to ascertain that Sawant’s statements referred to
Plaintiffs. In short, Vantassell-Matin is an outlier and is not
persuasive authority, but even if it were, it does not dictate
the outcome of this case.
e.
Sawant also raises a policy argument: “If police officers
could transform their political critics into defamation
defendants by relying on the conclusions of ‘friends, families
and colleagues’ to satisfy the ‘of and concerning’
requirement,” she contends, “then police could weaponize
litigation to silence their critics.”
The law, however, makes clear that defamation claims
may be based on how a communication is understood by
individuals who know the plaintiffs. The law requires only
that “persons knowing [the plaintiff] could and did
MILLER V. SAWANT 25
understand that he was the one referred to in the publication.”
Spangler, 313 P.2d at 358–59. “It is not necessary that
everyone recognize the [plaintiff] as the person intended; it is
enough that any recipient of the communication reasonably
so understands it.” Restatement (Second) of Torts § 564 cmt.
b (1977). “[I]t is enough that those who know or know of
plaintiff (or even a single recipient) reasonably connect the
plaintiff to the defendant based on circumstances or facts of
which the recipient(s) has knowledge.” David Elder,
Defamation: A Lawyer’s Guide § 1:30 (2020) (footnotes
omitted); see also, e.g., Doe v. Hagar, 765 F.3d 855, 863 (8th
Cir. 2014).
Sawant, moreover, mischaracterizes Plaintiffs’
allegations. Plaintiffs do not rely solely on the conclusions of
the family, friends, and colleagues to satisfy the of-and-
concerning requirement. There are two sets of allegations in
the complaint that support the conclusion that Sawant’s
statements can reasonably be understood to refer to Plaintiffs:
Sawant’s words themselves, and the conclusions drawn by
Plaintiffs’ family, friends, and colleagues. If Plaintiffs had
relied solely on the allegation that a friend or family member
understood a communication to refer to Plaintiffs, this might
be a different case. As the Restatement points out, a
communication is of and concerning the plaintiff when
recipients reasonably understand that it was intended to refer
to the plaintiff. Restatement (Second) of Torts § 564 (1977).
“It is not necessary that everyone recognize the [plaintiff] as
the person intended,” but “the fact that only one person
believes that the plaintiff was referred to is an important
factor in determining the reasonableness of his belief.” Id.
cmt. b. Here, Plaintiffs’ allegations regarding family, friends,
and colleagues are consistent with Sawant’s words
themselves. Their allegation that the communications were
26 MILLER V. SAWANT
of and concerning them, therefore, clears the plausibility
threshold.
We emphasize, moreover, that, at this stage of the case, it
is not our function to decide whether Sawant is liable for
defaming Plaintiffs. We hold only that Plaintiffs have
plausibly pleaded the single element of their defamation
claims at issue on this appeal—the of and concerning
element.
f.
Finally, we reject Sawant’s argument that Plaintiffs
improperly relied on allegations of extrinsic facts. Plaintiffs
have properly relied on extrinsic facts to show that: (1) they
were publicly identified as the officers involved in the Taylor
shooting; (2) their families, friends, and colleagues knew they
were the officers involved; and (3) their families, friends, and
colleagues understood Sawant’s remarks to refer to them.
Their pleading of these extrinsic facts is consistent with
Washington law:
In determining how the recipients would
understand the words used, account may be
taken of the circumstances under which they
were published in so far as they were known
to the recipients. It is proper to allege in the
complaint that the words were published of
and concerning the plaintiff and with
reference to extrinsic circumstances, upon
which their peculiar applicability to the
plaintiff depends. Words which are harmless
in themselves may be defamatory in the light
of surrounding circumstances.
MILLER V. SAWANT 27
Ziebell v. Lumbermens Printing Co., 127 P.2d 677, 680–81
(Wash. 1942); accord Purvis, 344 P.2d at 711 (“While the
reasonable meaning of published words cannot be altered or
extended by the pleading of innuendo, the pleader may be
able to add meaning to words by a pleading of the
circumstances surrounding the publication.”). As the
Restatement makes clear, “[e]xtrinsic facts may make it clear
that a statement refers to a particular individual although the
language used appears to defame nobody.” Restatement
(Second) of Torts § 564 cmt. b (1977).
The district court rejected Plaintiffs’ allegations of
extrinsic facts on the ground that “Councilmember Sawant’s
words themselves do not intrinsically reference Plaintiffs.”
Miller, 2020 WL 7714414, at *4 (citing Spangler, 313 P.2d
at 358). What the district court elides, however, is that a
reasonable person could understand Sawant’s remarks as
criticism of the officers involved in the Taylor shooting. In
doing so, the district court erred.13
In sum, we hold that the TAC plausibly alleges that
Sawant’s statements were of and concerning Plaintiffs.
Accordingly, we reverse the dismissal of Plaintiffs’
defamation and outrage claims.
13
We do not read Spangler as requiring that a communication
intrinsically reference a plaintiff. Spangler said that “it is not necessary
that the person defamed be named in the publication [1] if, by intrinsic
reference, the allusion is apparent or [2] if the publication contains matters
of description or reference to facts and circumstances from which others
may understand that the complainant is the person referred to, or [3] if he
is pointed out so that the persons knowing him could and did understand
that he was the one referred to in the publication.” 313 P.2d at 358–59
(emphases added).
28 MILLER V. SAWANT
IV.
Finally, Plaintiffs have requested that this case be
reassigned to a different district judge on remand. In United
States v. Reyes, 313 F.3d 1152, 1159 (9th Cir. 2002), we
noted that “[a]bsent proof of personal bias on the part of the
district judge,” and no such proof has been proffered in this
case, “remand to a different judge is proper only under
unusual circumstances.” One such “unusual circumstance”
is “[a] district judge’s adamance in making erroneous
rulings,” which “may justify remand to a different district
judge.” United States v. Sears, Roebuck & Co., 785 F.2d 777,
780 (9th Cir. 1986) (citations omitted). While it is true that
this is the second appeal from this district judge’s rulings on
the sufficiency of the complaint, see footnote 7, supra, in
Sears, Roebuck, in which the case was reassigned to a
different judge on remand, we noted that “[t]his is the fourth
pretrial appeal in this case and the third time the government
has appealed from dismissal of the indictment,” id. at 781.
We do not believe that, here, these two erroneous rulings on
the sufficiency of two different versions of the complaint rise
to the level of “adamance.” Suffice it to say that on remand
the district court should accept the TAC as sufficiently
pleading a defamation claim under Washington law. With
that observation, Plaintiffs’ request for reassignment is
denied.
• ! •
The judgment is reversed and the case is remanded to the
district court for further proceedings consistent with this
opinion. Costs on appeal are awarded to Plaintiffs.
JUDGMENT REVERSED and CASE REMANDED.