Colorado man at center of important lawsuit on libel verus free speech

US Supreme Court on the day of oral arguments

We all remember the fable of the boy who cried wolf. The moral Aesop illustrates is that liars are rewarded, until the fabrication becomes reality.

This week the U.S. Supreme Court held that airlines are immune from defamation liability when making reports to the Transportation

Security Administration, even when those reports are known to be false or are so reckless as to be a willful disregard to the truth.

In 2004, Coloradan William Hoeper was employed by Air Wisconsin Airlines. The airline was changing its entire fleet of planes and was requiring pilots to become certified on the new aircraft. Hoeper was nearing retirement age and had failed three previous certification exams.

During the fourth attempt in Northern Virginia, Air Wisconsin told Hoeper if he failed again, he’d be terminated. Hoeper became convinced that the airline was sabotaging his exam. A Colorado jury later agreed this was indeed the case.

Hoeper exchanged some expletives and other choice words with his supervisor, Patrick Doyle, before announcing that he was quitting and calling the pilots’ union. Doyle immediately booked Hoeper on the first flight back to Denver.

While Hoeper was boarding a regular commercial plane bound for Colorado, Doyle was calling the TSA. Doyle told the TSA that an “unstable pilot” was boarding a plane and that he was “concerned” because the pilot was terminated earlier and might be “armed” and dangerous. The Colorado Supreme Court later held these statements to have been “made with reckless disregard of their truth or falsity.” Doyle knew Hoeper was a deputized federal flight deck officer, which entitles him to carry a firearm when flying.

As in Aesop’s fable, when wolf is cried, all the villagers go running to save the boy from the pack of vicious animals. Here, the TSA sent snowplows and fire trucks to stop the Boeing 757 from proceeding down the tarmac. A SWAT team came bursting into the cabin. Meanwhile, Hoeper was looking for the “terrorist” on his flight, not knowing the special agents were after him.After a lengthy interrogation, no charges were filed and Hoeper was finally re-united with his family in Colorado. Hoeper immediately filed a defamation lawsuit against Air Wisconsin Airlines, alleging vicarious liability for the actions of its agent, Patrick Doyle.

Defamation is a statement that adversely affects a person’s reputation. Reputation has an economic value upon which individuals in our society peddle goods and services. Defamation is also about damages to a person’s good name and credibility. If someone damages your reputation, then they have damaged your economic value.

my ticket to the oral arguments

A Colorado jury awarded Hoeper $1.2 million in damages ($849,625 in presumed damages, $350,000 in punitive damages and $222,123.09 in costs).

Air Wisconsin appealed to the Court of Appeals, alleging that it was immune from liability pursuant to the Aviation and Transportation Security Act.

The ATSA provides that an air carrier that voluntarily discloses suspicious activity “shall not be civilly liable.”

The Colorado Supreme Court annually chooses a case to hear in front of Colorado high school students; in 2012, Hoeper v. Air Wisconsin Airlines was the case. The court upheld the jury’s verdict and the appeals court ruling.

The U.S. Supreme Court granted a writ of certiorari to Air Wisconsin, and oral arguments were heard on a frigid and snowy day in Washington, D.C. (I was fortunate to attend the proceedings.)

All odds were against Hoeper. The Obama administration sided with the airlines and feared that liability for defamatory statements would discourage airlines and their employees from reporting suspicious activity to the TSA. Even The New York Times and The Washington Post filed amicus briefs with the Court, siding with the petitioner, as they didn’t want to see penalties for “First Amendment speech.”

Justice Sonia Sotomayor delivered the opinion of the court, which reversed the finding of the Colorado Supreme Court, by granting immunity to airlines who make reports to the TSA. Sotomayor said, “All of us from time to time use words that, on reflection, we might modify ... If such slips of the tongue could give rise to major financial liability, no airline would contact the TSA.”

Justices Antonin Scalia, Clarence Thomas and Elena Kagan were the dissenters. It is odd to see two of the most conservative justices joining one of the most liberal. They argued (correctly, I believe) that a jury, made up of regular Americans, could make the determination of whether Hoeper was a threat to public security or if Doyle made the report based on a vindictive and reckless disregard for the truth or falsity of the information being reported.

Lies should not be rewarded. As in the tale of the boy who cried wolf, this week’s ruling encourages abuse and recklessness.
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M Soper (Op Ed), "Colorado man at center of important lawsuit on libel verus free speech." The Daily Sentinel. Grand Junction, Colo. 2 Feb 2014, B4 <http://www.gjsentinel.com/opinion/articles/colorado-man-at-center-of--important8232-lawsuit-o> accessed 9 Feb 2014.

M Soper (Op Ed), "Case of Colorado’s defamed pilot shows no regard for truth." The Western Slope Watchdog. Montrose, Colo. 2 Feb 2014, Opinion Section. <http://westernslopewatchdog.com/2014/02/guest-editorial-case-of-colorados-defamed-pilot-shows-no-regard-for-truth/> accessed 9 Feb 2014.

Murder rate way down, unsolved murder rate way up*

As unbelievable as Hadiya Pendleton’s ruthless murder, less than a mile from President Obama’s home in Chicago, is the reality that only 66% of those who murder are ever brought to justice. Pendleton’s murderer continues to remains at-large.

Marred by the mass-shootings of 2012 was America’s statistical achievement of seeing the lowest murder rate in the past 50 years. Hidden by the smoke of the gun debate is the disturbing reality that unsolved murders are nearing an all-time high.

Pendleton was murdered a mile from Pres Obama's home.

In 2011, according to the US Department of Justice, the murder rate was 4.8 per 100,000 people, which is contrasted to the 1980 high-water-mark of 10.2 per 100,000. It is estimated that after non-culpable homicide cases for 2012 are wound-up, the statistic will be around 4.6 – the rate hit back in 1963.

When graphed on a chart, the national murder rate looks like a bell-curve, with murders steadily increasing from 1960 to 1980 and then decreasing ever since. The lowest murder rate during the past 100-years was in 1957 – there were 4.0 per 100,000. If society does nothing, the projection is such that the US will near the 4.0 mark in a few years.

Vice President Joe Biden, outlined nine proposals for reducing homicides, which include: requiring background checks for all gun sales, banning assault weapons, limiting ammunition magazines to ten rounds, providing tax dollars for gun violence research, school emergency preparedness, and mental health coverage. Each recommendation noted that ‘no single law, or even a set of laws, can prevent an act of violence.’ Yet none focus on apprehending perpetrators.

The US has serious problems, for example, from 2011 to 2012 murders in Chicago increased by 38% to a devastating 506. Pendleton’s murder marks number 42 for 2013. By contrast, 418 people were murdered in New York City last year and seven so far have been murdered in 2013.

According to the UNODC, every US Territory, over the past decade, has seen a general increase in murders. Puerto Rico has the highest murder rate at 26.2 per 100,000 people. A record breaking 1,136 murders occurred in 2011 alone. Yet, Puerto Rico boasts twice as many police officers per capita as any US state.

Shockingly, only 25% of the murders in Puerto Rico result in the police apprehending the culprit. This was the case in New Orleans in 2010. Last year, homicide investigators improved this number to 39%, and were able to reduce murders by 3%. It is unfathomable that over half of the 193 murders during 2012 resulted in an accused being brought before the courts.

From 1980 to 2008 nearly 185,000 homicides went unsolved in the US, according to a Scripps Howard News Service study. Some cities, like New Orleans, have low murder clearance rates. Meaning the police were able to present the court with an accused. Others, like Washington, DC, have nearly doubled their success rate to a laudable 96%. Nearly 6,000 homicides go unsolved every year in the US. A national average of 66% is unacceptable.

While the Biden working group and the emotions of the nation cling to media images of recent shootings, a larger problem is law enforcement’s inability to bring more suspects before the courts.

If America truly cares about justice for victims’ families, society needs to invest resources to bring perpetrators to justice. Sophisticated investigating techniques and the quashing of minor criminal offences that are working in Washington, DC and New York City should be used to help municipalities like Chicago and New Orleans and territories like Puerto Rico.

When does society begin the conversation of addressing low murder clearance rates? Society needs to move beyond looking at the sensationalizing effect of recent mass shootings and see the big picture.

The US murder rate is at a 50 year low and dropping, despite recent outliers in the data. Concern, which should be sounding alarms, is the low national average of solving these murders.

To quote former President Bill Clinton, “There is nothing wrong with America that cannot be cured by what is right with America.” The US has the knowledge and the resources to better solve homicides; there is void of political will power. It is time to implement successful techniques to bring murderers to justice.

If society truly cares about tackling murders, the debate needs to be about unsolved crimes, supporting local law enforcement, and not about the implementation devices (eg guns) used to commit the offence. 
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*M Soper, Murder rate way down, unsolved murder rate way up, OpEd, Western Slope Watchdog 17 February 2013: 4+ <http://westernslopewatchdog.com/2013/02/murder-rate-way-down-but-unsolved-murders-way-up/> accessed 18 February 2013