Suit Alleging Retaliatory Police Mislabeling as Repeat Violent Offender Can Go Forward

From Haro v. Bryant, decided today by Judge J.P. Boulee (N.D. Ga.):

On June 4, 2020, Plaintiff was allegedly protesting police brutality and the use of excessive force when the Atlanta Police Department (“APD”) arrested him for a curfew violation. During the arrest, Plaintiff spit on a Federal Bureau of Investigation (“FBI”) officer, and as a result, he was additionally charged with battery on a police officer.

Approximately ten weeks later, in August 2020, Defendant—the former chief of the APD—created a joint task force with the FBI, the United States Attorney’s Office for the Northern District of Georgia and others named “Operation Phoenix.” Operation Phoenix was established to address the rise in violent crime in Atlanta during the COVID-19 pandemic.

On October 29, 2020, Defendant and the City of Atlanta co-hosted a press conference and contemporaneously co-published a press release to announce Operation Phoenix, identify its early results and arrests and explain the dramatic effect those arrests had on reducing violence crime.  The press release, which was distributed to those at the press conference and widely republished, was headlined, “FBI Announces Results of Operation Phoenix.”  The press release stated, in material part, as follows:

FBI Special Agent in Charge Chris Hacker, Interim Atlanta Police Chief Rodney Bryant, and U.S. Attorney Byung J. “Bjay” Pak announce that twelve of Atlanta’s most violent offenders are being charged as a result of Operation Phoenix, a sustained and coordinated law enforcement initiative to fight violent crime in the City of Atlanta.

The press release went on to state that:

Operation Phoenix began on August 18, 2020 in an effort to identify, investigate, and prosecute those individuals deemed the most dangerous to the citizens of this city. Federal law enforcement agencies worked in conjunction with local and state law enforcement officials to identify offenders.

Notably, the press release identified Plaintiff as one of the twelve violent individuals arrested as part of Operation Phoenix. Plaintiff’s photo was also included in the press release.

Defendant, along with representatives from the other agencies involved in Operation Phoenix, spoke at the press conference, which lasted approximately twenty-five minutes. Defendant explained at the press conference that those arrested in conjunction with Operation Phoenix “were repeat violent offenders.” Defendant further noted, among other things, that “[t]here was some nexus with them and violence, and we deemed them to be responsible for some of the most violent crimes in the City of Atlanta. This included guns, gang affiliations, gun trafficking, and so on.”

Plaintiff contends that he is neither a violent criminal nor associated with any gang. Consequently, Plaintiff asserts that Defendant defamed him by implying in the press release and press conference that he is one of the most dangerous violent criminals in Atlanta….

Defendant asserts that the Court should dismiss this action because he is entitled to official immunity. Official immunity applies to claims brought against public officers and employees in their individual capacities. Under this type of immunity, an official “may not be held liable for injuries caused through his performance of discretionary functions unless he acts with actual malice or with actual intent to cause injury.” Actual malice means a deliberate intention to do a wrongful act or do harm. Actual malice does not include “the reckless disregard for the rights or safety of others.” Moreover, “the phrase actual intent to cause injury means an actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury.” …

Plaintiff alleged that Defendant “knew unequivocally” that Plaintiff “had no prior violent criminal history arrest, and no gang affiliation,” yet conveyed contrary information anyway. To show this knowledge, Plaintiff asserted that in the run-up to the press conference, law enforcement (including Defendant) exchanged in writing—on multiple occasions— the following information about Plaintiff:

According to Plaintiff, this information shows that Defendant knew that Plaintiff was not a gang member or a repeat violent offender. Plaintiff further alleged that Defendant made the statements in retaliation for his conduct during his June 2020 arrest.

This Court finds that Plaintiff’s allegations are sufficient to plead actual malice because they plausibly show that Defendant knew his statements were false at the time they were made and were made in retaliation for Plaintiff’s behavior during his arrest. Indeed, Plaintiff alleged that Defendant possessed firsthand knowledge that Plaintiff was not a gang member or a repeat violent offender and nonetheless published information suggesting that Plaintiff was in a gang and responsible for a significant amount of violent crime. Plaintiff’s allegations thus support a reasonable inference that Defendant acted with knowledge of falsity and ill will, rather than mere negligence or reckless disregard of the truth. The allegations also suggest that Defendant made the statements because of Plaintiff’s conduct during his June arrest. Because Plaintiff’s allegations are sufficient to demonstrate a deliberate intention to do wrong, Defendant’s motion is DENIED to the extent that Defendant argues that dismissal is required based on official immunity….

{Defendant raised additional arguments in his reply brief. For instance, Defendant argued that the press conference statements did not convey false information about Plaintiff because he never specifically mentioned Plaintiff’s name. As to the press release, Defendant asserted that it truthfully identified Plaintiff as a 19-year-old who was charged with simple battery against a police officer. Because these arguments were raised for the first time in the reply brief, the Court will not consider them.}

G. Taylor Wilson, Jonathan David Grunberg, and Nicole Jennings Wade (Wade, Grunberg & Wilson, LLC) represent plaintiff.