United States District Court, District of Columbia
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[Copyrighted Material Omitted]
YORIE VON KAHL, Plaintiff, Pro se, TERRE HAUTE, IN.
For BUREAU OF NATIONAL AFFAIRS, INC., Defendant: Cathy A. Hinger, LEAD ATTORNEY, Deborah J. Israel, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Washington, DC.
RICHARD W. ROBERTS, United States District Judge.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on defendant's motion seeking reconsideration of the order denying summary judgment and seeking judgment on the pleadings.  For the reasons discussed below, the motion will be denied in part and granted in part.
Two deputy United States Marshals accompanied by local law enforcement officers attempted to serve a federal arrest warrant in North Dakota in 1983. A shootout ensued, leaving the two deputy marshals dead. The plaintiff and Scott Faul " were each charged with two counts of first degree murder; four counts of assaulting United States Marshals and other law enforcement officers assisting them; one count of conspiring to assault; and one count of harboring and concealing a fugitive. The jury found them not guilty of first degree murder, but guilty of the lesser included offense of second degree murder, and guilty of the remaining charges." United States v. Faul, 748 F.2d 1204, 1207-08 (8th Cir. 1984); see Pl.'s Opp'n to Def.'s Mot. for Recons. and for J. on the Pleadings (" Pl.'s Opp'n to Recons." ), Ex. B (Verdict on the Offenses Charges Against Yorie Von Kahl, United States v. Kahl, No. C3-83-16 (D.N.D. May 28, 1983)) at 1-2.
The Bureau of National Affairs, Inc. (" BNA" ) publishes the Criminal Law Reporter (" CLR" ), a section of which summarizes cases filed before the Supreme Court of the United States. On August 17, 2005, BNA published in the CLR a summary of plaintiff's mandamus petition before the Supreme Court:
04-1717 In re Kahl Homicide -- Murder of U.S. marshals -- Jury instructions -- Sentencing.
Ruling below (D. N.D., 6/24/83):
Petitioner, who showed no hint of contrition and made statements to press that he believed that murders of U.S. marshals in course of their duties were justified by religious and philosophical beliefs, is committed to custody of the U.S. Attorney General for imprisonment for life based on his convictions on two counts of violating 18 U.S.C. § § 1111, 1114, and 2, terms to run concurrently; for 10-year term of imprisonment on each of four counts on which he was convicted of violating 18 U.S.C. § § 1111, 1114, and 2, which terms will run concurrently but consecutively to life term; to five-year term of imprisonment for violating 18 U.S.C. § § 1071 and
2, term to run consecutively to 10-year term and life term; and to five-year term of imprisonment on his conviction for violating 18 U.S.C. § 371, term to run concurrently to five-year, 10-year, and life terms.
Compl., Ex. 1 (CLR summary for Docket No. 04-1717, In re Kahl) (emphasis in original). The next paragraph of the summary set forth the legal questions presented in the mandamus petition. Id., Ex. 1. Plaintiff says his petition " expressly . . . denied any murder of U.S. Marshals in [the] course of their duties as reflected in the jury acquittals expressly finding [p]laintiff 'Not Guilty' . . . and was seeking to compel enforcement of the jury's acquittals" through the mandamus petition. Id. ¶ 9. According to plaintiff, the first sentence of the August 17, 2005 summary contained four false statements:
(1) " showed no hint of contrition" ; (2) " made statements to the press that he believed that murders of U.S. marshals in course of their duties were justified" ; (3) " believed" such justification on basis of " religious and philosophical beliefs" ; and(4) " is committed to custody . . . based on his convictions of two counts of violating 18 U.S.C. § § 1111, 1114, and 2, . . ."
Compl. ¶ 11.
On July 18, 2007, BNA published " a purported '[c]larification,'" id. ¶ 14 (brackets in original), which stated:
In a Summaries of Recently Filed Cases entry that ran at 77 CrL 2127, concerning U.S. Supreme Court petition No. 04-1717, the summary of the sentencing judge's ruling should have begun: " Petitioner who was said to have believed that murders were justified, . . . ."
Id., Ex. 2 (Clarification) (emphasis in original).
Each count of plaintiff's complaint corresponds to an allegedly false statement: (1) that plaintiff " 'showed no hint of contrition' in respect to murders of officers performing duties," Compl. ¶ 17 (Count One); (2) that plaintiff " 'made statements to the press that he believed that murders of U.S. marshals . . . were justified,'" id. ¶ 28 (Count Two); (3) that plaintiff considered the murders justified on religious and philosophical grounds, id. ¶ 32 (Count Three); (4) that plaintiff had been " committed to custody . . . based on his convictions of two counts of violating 18 U.S.C. § § 1111, 1114, and 2," id. ¶ 36 (Count Four); and (5) that the purported clarification was " a further false attribution," id. ¶ 40 (Count Five). Each of the first four statements, plaintiff alleges, was " false and defamatory," id. ¶ 17, was made " without privilege to third parties," id. ¶ 18, was " defamatory on its face and libelous per se ," id. ¶ 20, and was made " with knowledge that it was false or with reckless disregard of whether it was true or not," id. ¶ 22; see id. ¶ ¶ 28, 32, and 36. In addition, BNA's purported clarification allegedly " was false," id. ¶ ¶ 41, and in effect " support[ed] the original falsehoods with an appearance that they were statements made by a judge in a judicial proceeding as part of a judgment." Id. ¶ 40. As a result, the statements " injured Plaintiff's community standing or lowered him in the estimation of the community of the District of Columbia . . . especially within the community to which such article was directed -- i.e., the legal and governmental communities . . . where the greatest possible injury . . . did occur," id. ¶ 23, making " [p]laintiff appear entirely irrational, unsound, psychotic and otherwise odious, infamous, or ridiculous," id. ¶ 24.
Plaintiff further alleges that he has suffered " extraordinary and special harm ." Id. ¶ ¶ 26 (emphasis in original). He asserts that his " character, reputation and credibility were essential to fair consideration of his then-pending matters" before the Supreme Court, id. ¶ ¶ 26(b), and " libel targeting the legal community including judges and their staff making [p]laintiff appear . . . odious and dangerous at such time could only tend to intimidate judicial officers from maintaining impartial adjudication so as to disassociate any possible showing favorable to [p]laintiff," and thus the publication " could be perceived as an attempt to influence the legal outcome" of his case, id. ¶ 26(d). In other words, he attributes the denial of his mandamus petition by the Supreme Court to BNA's publication of the allegedly libelous statements in the CLR, id. ¶ 26(e), causing him to " suffer special harm in the specialized community wherein such statements would be expected to cause the ultimate harm," id. ¶ 26(f), " beyond that normally associated with and attributable to libel," id. ¶ 27. Plaintiff demands compensatory, special, and punitive damages on each count. Id. ¶ ¶ 48-50.
BNA unsuccessfully sought dismissal or summary judgment. It now seeks reconsideration and ...