An interesting case, Syed v. Hamady (filed Mar. 12, 2010). Note that the plaintiffs’ lawyer apparently failed to timely file a response to the motion for summary judgment, and failed to promptly remedy that failure, so as a result the court decided the case without considering any such response:
This Court has reviewed Defendants’ Statement of Material Facts and finds that they are [*5] adequately supported with appropriate citations to admissible evidence. [Footnote: Although the Plaintiffs did not file a response, the Court notes that the facts presented by the Defendants include those derived from the deposition testimony given by each of the Plaintiffs.] The relevant facts [as alleged by the Defendants] are as follows: …
In Fall 2005, the Plaintiffs resided in Porter County, Indiana, with their six children. Three of their children attended Porter Lakes Elementary School. The Plaintiffs are members of the Muslim religion, and, upon the Plaintiffs’ request, the School gave their children permission to pray during school hours. The School also allowed Mrs. Syed to conduct a presentation at the school about the Islamic culture and Muslim religion.
Officer Hamady is an employee of the Lake County Sheriff’s Department in Crown Point, Indiana. He lives in Porter County and in Fall 2005, his son was a student at Porter Lakes Elementary School in the same class as one of the Plaintiffs’ daughters. Officer Hamady volunteered at the school and helped to establish a school safety program. One of his areas of focus concerned the procedures for private vehicles picking up children after school. As part of the program, the school required that all vehicles picking up students have a placard with the student’s last name displayed on the passenger-side windshield. On one occasion while picking up his son after school, Officer Hamady noticed the Plaintiffs children get into a white van that did not have a Porter Lakes School identification placard displayed in the windshield. Neither the van’s driver, who was a Middle Eastern man, or his female passenger were the Plaintiffs. Officer Hamady wrote down the license plate number of the van and when he went to work on the midnight shift, checked the license plate number through a computer database. The license plate number was registered to a white 1997 Pontiac van owned by Ahmed Abdeldaiem, Crown Point, Indiana. While he was checking the license plate number, an “alert” flashed on Officer Hamady’s computer screen indicating that the license plate was on the Federal Bureau of Investigation’s Terrorist Watch List in Washington, D.C., and instructed him to call the FBI-displayed telephone number within the next twenty minutes. Officer Hamady called the provided telephone number and advised the person at the Terrorist Watch Center that a license plate number he was running triggered their alert. He indicated where he saw the van, that it was picking up the Plaintiffs’ children, and that the Plaintiffs were not in the van when he saw it.
After his shift ended, Officer Hamady drove his marked squad car along the street where the Plaintiffs lived. He observed a blue van in their driveway bearing a license plate that did not match the one he saw on the white van. This was the only time that Officer Hamady drove by or near the Plaintiffs’ residence. Neither of the Plaintiffs saw the Defendant on their street.
After Mrs. Syed made the presentation at the school regarding the Islamic culture and Muslim religion, several parents of children attending the School lodged complained about its appropriateness. Officer Hamady was not one of the parents who complained, nor did he personally object to the presentation. At a school board meeting, Officer Hamady and other members of the public addressed the board regarding the issue of prayer in school. They asked why Muslim children were given permission to pray during school hours but their children, who are of other religions or faiths, were not allowed to pray. The Plaintiffs were present and were also allowed to address the school board. The complaints voiced at the school board meeting were cited in a newspaper article. This same article referenced the terrorist alert that Officer Hamady received from the F.B.I. for the white van’s license plate.
Upset by the board meeting and the newspaper article, the Plaintiffs completed a Lake County Sheriff’s Department Citizen Complaint Form, alleging that Officer Hamady had conducted surveillance on the Plaintiffs, harassed them, and called them terrorists. The Complaint was investigated by an internal affairs officer, who determined that it was unfounded.
DISCUSSION …
The Plaintiffs’ Complaint is based on the allegation that Officer Hamady referred to the Plaintiffs as terrorists, conducted undercover surveillance, and engaged in a campaign to discredit them. The designated evidence does not support these assertions. There is no evidence that Officer Hamady referred to the Plaintiffs as terrorists. The evidence is that he discovered that a license plate that was not associated with the Plaintiffs or their vehicle was on the FBI’s Terrorist Watch List, and that he drove his marked squad car by the Plaintiffs’ house on one occasion. There is no evidence that he attempted any undercover surveillance, or otherwise tracked the Plaintiffs’ activities. The public statements attributed to Officer Hamady were those he made at a school board meeting, where he spoke as a private citizen who was exercising his own freedom of speech rights in a public forum. Mr. Syed acknowledged that the Defendant did not stop his wife from making a presentation at the school, did not stop the Plaintiffs from going to the school board meeting or tell them they could not speak, did not stop them from going to the mosque, and did not, in any way, prevent the Plaintiffs from practicing their Muslim religion.
No reasonable jury could find, on the basis of the designated evidence before this Court, that Hamady, acting under color of state law, caused a substantial burden to be placed on the Plaintiffs’ observation of a central religious belief or practice. Hamady did not abuse his authority as a police officer, and in doing so, take action that compelled the Plaintiffs to do or refrain from doing anything of a religious nature or prevented them from speaking at a public forum. Defendant Hamady is entitled to judgment as a matter of law on the Plaintiffs’ claims that he violated their rights to freedom of religion, freedom of speech, and freedom of assembly….
The Plaintiffs allege in their Complaint that the statements “in which Hamady called the Plaintiffs ‘terrorists’ are defamatory per se, insomuch as they impute criminal conduct to the Plaintiffs.” …
A review of the designated evidence quickly reveals the shortcomings of this claim. The Plaintiffs admit in their deposition testimony that Officer Hamady and Sheriff Dominguez never referred to them as terrorists. Rather, the evidence upon which they base their claim is that a newspaper article used the word “terrorist” when relaying the alert that Hamady discovered while checking the white van. Not only was this information not false (Officer Hamady did receive a Terrorist Watch List alert when he ran the license plate of the white van), but it did not involve the Plaintiffs, who were not the owners or drivers of the van. Mrs. Syed assumed when she read the newspaper article that, because of the nature of the matters addressed at the school board meeting, Officer Hamady was referring to the Plaintiffs when he relayed the information about the alert. Even construing the record in the light most favorable to the Plaintiffs, there is no evidence from which a jury could find the elements of a claim for defamation. Officer Hamady and Sheriff Dominguez are entitled to judgment as a matter of law.
The Defendants assert that they are entitled to an award of attorney’s fees under Indiana’s Anti-SLAPP (strategic lawsuit against public participation) act, Indiana Code § 34-7-7-7. “Strategic lawsuits against public participation (SLAPPs) are meritless suits aimed at silencing a plaintiff’s opponents or at least at diverting their resources.” Hamilton v. Prewett, 860 N.E.2d 1234, 1241-42 (Ind. Ct. App. 2007) (quotation marks omitted). Indiana’s anti-SLAPP statute, adopted in 1998, applies “to an act in furtherance of a person’s right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue or an issue of public interest.” Ind. Code § 34-7-7-1. It “is intended to reduce the number of lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Hamilton, 860 N.E.2d at 1242. The act sets forth the “conditions under which rights of petition or free speech may be used as [a] defense,” and provides:
It is a defense in a civil action against a person that the act or omission complained of is:
(1) an act or omission of that person in furtherance of the person’s right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue; and
(2) an act or omission taken in good faith and with a reasonable basis in law and fact.
Ind. Code § 34-7-7-5. Under Indiana’s statute, a motion to dismiss by the defendant “shall be granted if the court finds that the person filing the motion has proven, by a preponderance of the evidence, that the act upon which the claim is based is a lawful act in furtherance of the person’s right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana.” Ind. Code § 34-7-7-9(d). A defendant who prevails under the statute is entitled to attorney’s fees. Ind. Code § 34-7-7-7; Hamilton, 860 N.E.2d at 1242 (“To reduce the number of lawsuits brought to chill speech, a defendant who prevails on a motion to dismiss under the anti-SLAPP statute is entitled to recover reasonable attorney’s fees and costs.”). Indiana courts have awarded attorney’s fees under the anti-SLAPP statute where the plaintiffs were “attempting to silence media coverage of newsworthy events.” Hamilton, 860 N.E.2d at 1248.
The Defendants contend that the true intent of the Plaintiffs’ lawsuit was not to redress any wrong that they suffered, but to chill Officer Hamady’s right to speak on an issue of public interest, prayer in public school. The Defendants argue, therefore, that they are entitled to recover attorney’s fees from the Plaintiffs. The defamation claim is not, on its face, directed at any speech that Hamady made at the school board meeting. The speech that the Plaintiffs challenge in their defamation claim relates to being called terrorists. See Compl. P 19 (alleging that “statements made by Hamady to others in which Hamady called the Plaintiffs ‘terrorists’ are defamatory per se, insomuch as they impute criminal conduct to the Plaintiffs). Although the Plaintiffs appear to take issue with Officer Hamady’s speech at the school board meeting, they do so under the rubric of their First Amendment rights, not in connection with their defamation claim. The Court finds that the Plaintiffs’ defamation claim, while wholly without merit, was not intended to chill Officer Hamady’s right to speak in a public forum about prayer in public school. Accordingly, the Defendants’ request for attorney’s fees, as set forth in their Motion for Summary Judgment, is denied.
The discussion of why Hamady can’t recover fees under the anti-SLAPP statute is a bit unclear. I at first thought the court was suggesting that Hamady could only recover if he could show the plaintiffs had some sort of bad speech-suppressive motive, but the Indiana statute doesn’t require such motive, plus in any event they did have the motive to obtain defamation damages based on Hamady’s speech to the newspaper about the van.
But I think that the deeper point that the court must have been getting at — it didn’t say so, but I suspect that it might have assumed this — is that Hamady’s statements to the newspaper about the van’s being on a terrorist watch list were made as part of his official duties. Therefore, under Garcetti v. Ceballos (2006), the statements were not “in furtherance of the person’s right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue.” That’s why it’s significant to the court’s decision that “The defamation claim is not, on its face, directed at any speech that Hamady made at the school board meeting,” but was instead focused solely on the statement to the newspaper about the van.
In any case, even if that wasn’t the court’s true rationale, it does support the result the court reached on the anti-SLAPP motion question. And while it’s unfortunate that Hamady had to go through this whole process, I suspect that he didn’t have to pay attorney fees in any case; though he had his own attorney, I suspect the attorney was paid for by the city.
Thanks to Religion Clause for the pointer.