It appears likely Judge Pepper will dismiss Colborn's legal action, Colborn v. Netflix, Inc (1:19-cv-00484).
Just as likely, Colborn will appeal the case to the United States Court of Appeals for the Seventh Circuit.
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Madison, Wisconsin — A corrupt ex-cop and a former Manitowoc County prosecutor filed a December 2018 lawsuit against the creators and distributors of the Emmy-winning Making a Murderer.
Manitowoc County Sheriff Dept Lt. Andrew Colborn (ret) and rightwing attorney and former Manitowoc County Asst DA, Michael C. Griesbach, filed this shockingly unschooled civil action charging defamation of Colborn, in the documentary Making a Murderer, (Colborn v. Netflix Inc et al, Case # 1:19-cv-00484, Mal Contends, Dec 2018 Summons and Complaint, March 4, 2019 Amended Complaint).
Making a Murderer focused worldwide attention on the corrupt police-prosecutor-prison complex in east-central Wisconsin, and an equally corrupt Wisconsin Dept of Justice, a matter of grave public interest.
The case was removed to federal court, United States District Court, Eastern District of Wisconsin, on April 4, (WBAY, Appleton Post-Crescent). The federal civil case is: Colborn v. Netflix Inc (1:19-cv-00484).
The rightwing Federalist Society-linked presiding Judge William C. Griesbach, brother of attorney Michael C. Griesbach, recused on April 5.
Colborn's lawsuit is a clumsy attempt to cover up a police frame-up of the wrongfully convicted Steven Avery, featured in Making a Murderer.
The civil litigation is also a window into how corrupt Wisconsin law enforcement views the world — a realm of malignant narcissism in which police action is inherently righteous to the point of monarchical, and liberties and human rights are seen as obstacles to overcome in a society in which citizens are ruled by the caprice of police and political-legal allies.
Recent motions by Netflix, Inc and others to dismiss Colborn's action are almost certain to prevail in federal court, (Mueller, Appleton Post-Crescent, Mal Contends).
The retired public official Colborn's complaint written by attorney Griesbach, (and a March 4, 2019 amended complaint), assert Colborn is not a public official under defamation law; nor a "public figure" or "limited purpose public figure," (p. 7. March 4, 2019 Amended Complaint).
Such a status might offer Colborn a measure of protection (though limited) from what otherwise is First Amendment-protected speech, and privileged speech of Making a Murderer.
Writes Griesbach:
Statement of Facts
1. Plaintiff, Andrew L. Colborn, is a former Manitowoc County Sheriff's Office police officer. Plaintiff retired in March of 2018 after serving twenty-six years in public service. At no time during his employment at the Manitowoc County Sheriff's Office (hereafter, MTSO) did plaintiff serve as public official as that term is defined in defamation law.
Preposterous.
Madison, Wisconsin attorney James A. Friedman, representing Netflix, Inc and others demolishes Colborn's implausible characterization of facts.
Writes Friedman:
Colborn is public offical
I. Colborn is a public official.Whether a defamation plaintiff is a public official is a threshold question of law for the court, Rosenblatt v. Baer, 383 U.S. 75, 88 & n.15 (1966), and presents an issue of federal constitutional law, not state law, Meiners v. Moriarity , 563 F.2d 343, 352 (7th Cir. 1977).
The Supreme Court has recognized, on multiple occasions, that police and other law enforcement officers are quintessentially “public officials” for these purposes. In Sullivan itself, the plaintiff was the official in charge of law enforcement in Montgomery, Alabama. Sullivan, 376 U.S. at 256. Four years after Sullivan, in St. Amant v. Thompson, 390 U.S. at 730 & n.2, the Court held that a deputy sheriff had failed to prove the actual malice necessary for him to prevail in a defamation action. And, three years after that, the Court similarly concluded that a Chicago police detective had failed to demonstrate the requisite actual malice. See Time, Inc. v. Pape , 401 U.S. 279, 284, 292 (1971). In so holding, the Court embraced the Seventh Circuit’s prior decision that such a plaintiff is a public official as a matter of law. See Pape v. Time, Inc. , 354 F.2d 558, 560 (7th Cir. 1965); see also Pape v. Time, Inc. , 419 F.2d 980, 981 (7th Cir. 1969).
Not surprisingly, courts throughout the country have since followed the Supreme Court’s lead and overwhelmingly held that law enforcement officers, from patrol officers to police chiefs, are public officials within the meaning of Sullivan and its progeny. The Wisconsin Court of Appeals, for example, has recognized that a police chief is a public official because he is, by definition, “a local government employee charged with protecting the public interest in law enforcement.” Pronger v. O’Dell, 127 Wis. 2d 292, 295, 379 N.W.2d 330, 331-32 (Ct. App. 1985); see also Miller v. Minority Bhd. of Fire Prot. 58 Wis. 2d 589, 599-601, 463 N.W.2d 690, 694-95 (Ct. App. 1990) (concluding that fire department captain is a public official and favorably citing other courts’ holdings that sheriff’s deputies, police officers and state troopers also qualify as public officials). Similarly, federal appellate courts throughout the country have not hesitated to apply the public official designation to those working in law enforcement. See, e.g. , McGunigle v. City of Quincy, 835 F.3d 192, 206 (1st Cir. 2016) (police officer); Revell v. Hoffman , 309 F.3d 1228, 1232-33 (10th Cir. 2002) (former Associate Deputy Director of FBI); Rattray v. City of Nat’l City , 36 F.3d 1480, 1486 (9th Cir. 1994) (police officer), modified and superseded on denial of rehearing on other grounds , 51 F.3d 793 (9th Cir. 1994); Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1069-70 (5th Cir. 1987) (chief deputy sheriff and chief of detectives in sheriff’s office); Coughlin v. Westinghouse Broad. & Cable, Inc. , 780 F.2d 340, 342 (3d Cir. 1985) (per curiam) (police officer); Meiners, 563 F.2d at 352 (federal narcotics agent).
More specifically, courts have regularly held that sheriff’s deputies—even those with fewer responsibilities than Colborn had as a sergeant, shift commander, and patrol supervisor—are public officials within the meaning of Sullivan. See, e.g., Zerangue , 814 F.2d at 1069-70; Karr v. Townsend, 606 F. Supp. 1121, 1131 (W.D. Ark. 1985) (sheriff’s deputy is public official); Hirman v. Rogers, 257 N.W.2d 563, 566 (Minn. 1977) (same); Pardo v. Simons , 148 S.W.3d 181, 189 (Tex. App. 2004) (same); Murray v. Lineberry, 69 S.W.3d 560, 563 (Tenn. Ct. App. 2001) (same). (5)
These holdings make perfect sense given the First Amendment’s overarching commitment to promoting “uninhibited, robust, and wide-open” debate about those responsible for performing important governmental functions: [T]he ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. . . . Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, . . . the New York Times [actual] malice standards apply. Rosenblatt, 383 U.S. at 85-86. Law enforcement officers such as Colborn comfortably meet this standard. They are, as multiple decisions note, members of “quasi-military” -
5 For additional state court precedent, see Turner v. Devlin , 848 P.2d 286, 290 & n.8 (Ariz. 1993) (police officer); Gomes v. Fried, 136 Cal. App. 3d 924, 933-34 (1982) (police officer); Moriarty v. Lippe, 294 A.2d 330-32 (Conn. 1972) (patrol officer); Jackson v. Filliben , 281 A.2d 604, 605 (Del. 1971) (police sergeant); Smith v. Russell, 456 So. 2d 462, 463-64 (Fla. 1984) (police officer); Rawlins v. Hutchinson Publ’g Co., 543 P.2d 988, 992 (Kan. 1975) (police officer); Roche v. Egan, 433 A.2d 757, 762 (Me. 1981) (all law enforcement personnel, including police detective); Rotkiewicz v. Sadowsky, 730 N.E.2d 282, 288 (Mass. 2000) (police officer); Malerba v. Newsday, Inc., 406 N.Y.S.2d 552, 554 (App. Div. 1978) (patrolman); Colombo v. Times-Argus Ass'n, 380 A.2d 80, 83 (Vt. 1977) (police officer); Starr v. Beckley Newspapers Corp., 201 S.E.2d 911, 913 (W. Va. 1974) (police sergeant).
- organizations who carry guns and who possess the authority not only to arrest but also, in some circumstances, to take human life. See, e.g., Pool v. VanRheen, 297 F.3d 899, 909 (9th Cir. 2002) (referring to sheriff’s department as “quasi-military entity”); Kokkinis v. Ivkovich , 185 F.3d 840, 846 (7th Cir. 1999) (same, as to police department); Eiland v. City of Montgomery, 797 F.2d 953, 960 (11th Cir. 1986) (same); Easley v. Kirmsee, 235 F. Supp. 2d 945, 957 (E.D. Wis. 2002) (finding that sheriff’s deputies receive training “on all aspects of a law enforcement officer’s duties and responsibilities, including the use of force, both deadly and non-deadly [and] the use of firearms”), aff’d on other grounds , 382 F.3d 693 (7th Cir. 2004); Caraballo v. Cty. of Sawyer, 2013 WI App 1, ¶ 4, 345 Wis. 2d 398, 824 N.W.2d 929 (table) (Wis. Ct. App. 2012) (per curiam) (unpublished) (sheriff’s deputies’ discretionary duties include shackling prisoners, as well as enforcing compliance with commands by use of physical force and chemical agents); see also Wis. Stat. § 59.27 (enumerating duties of Sheriffs and their deputies).
Given Colborn’s responsibilities and privileges as a sheriff’s deputy, sergeant and shift commander—which were apparently significant enough to qualify him to be the Republican nominee in the 2006 election for Manitowoc County Sheriff (6) —there can be no doubt either that he had “substantial responsibility for or control over the conduct of governmental affairs,” or that the public has a compelling interest in scrutinizing his -
6 Although it is not necessary for the Court to reach the issue given Colborn’s status as a public official, he is also obliged to plead and prove actual malice because he is a “public figure.” See Gertz, 418 U.S. at 335. Should this case proceed to discovery, all Defendants reserve their right to argue via a motion for summary judgment that Colborn’s 2006 campaign for Sheriff, his statements to the press about the Avery verdict, and his role in the investigation and prosecution of Halbach’s murder render him a limited purpose public figure.
- performance of his official duties. As the Wisconsin Court of Appeals has explained: “[T]here is no more awesome power exercised by government than that of the police. The police have literally the power of life and death over citizens they are to protect . . . .” State ex rel. Journal/Sentinel, Inc. v. Arreola, 207 Wis. 2d 496, 516, 558 N.W.2d 670, 677 (Ct. App. 1996). As a result, “the public has a particularly strong interest in being informed about its . . . law enforcement officers.” Hutchins v. Clarke , 661 F.3d 947, 955 (7th Cir. 2011); see also Gray v. Udevitz, 656 F.2d 588, 591 (10th Cir. 1981) (police officer is public official for defamation purposes because “[m]isuse of his authority can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury and financial loss”). (7)
7 For these same reasons, in the context of disputes over open records requests, Wisconsin courts have repeatedly emphasized the need for the public to monitor the conduct of law enforcement officers. See, e.g. , Kroeplin v. Wis. Dep’t of Nat. Res., 297 Wis. 2d 254, 287, 725 N.W.2d 286, 302 (Wis. Ct. App. 2006) (“The public interest in being informed both of the potential misconduct by law enforcement officers and of the extent to which such misconduct was properly investigated is particularly compelling . . . .”); Hempel v. City of Baraboo, 2003 WI App 254, ¶ 18, 268 Wis. 2d 534, 548, 674 N.W.2d 38, 45 (“Police officers must necessarily expect close public scrutiny.”), aff’d on other grounds , 284 Wis. 2d 162, 699 N.W.2d 551 (2005).
Why would Colborn argue through his attorneys demonstrably false, vacuous and conclusory pleadings that this former law enforcement officer and two-time political candidate for elective office is not a public official, or public figure under defamation law?
It's the way things are in Manitowoc and Calumet counties in east-central Wisconsin law enforcement. The police can say and do virtually anything and corrupt officials in the Wisconsin Dept of Justice will provide cover, running legal and political interference. See #CorruptiwocCounty. So, a less-than-sophisticated understanding of the liberties of the citizenry is to be expected.
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Netflix Motion's Footnote 8
Another revealing aspect in Colborn's litigation is noted in a humorous footnote, #8 (p. 19), in Netflix' May 9, 2019 motion to dismiss.
The Netlifx motion takes note of Colborn's argument in his amended complaint that Netflix and the filmmakers did not "admit" the factuality of, and include in Making a Murderer (2015) the arguments and "[t]horough, careful, and objective analysis by some members of the public and a few journalists [that] revealed that the series had badly distorted the facts," as advanced in a 2016 book authored by attorney Michael Griesbach, (the aforementioned author of the original 2018 complaint against Netflix and others), in Indefensable: The Missing Truth About Steven Avery, Teresa Halbach, and Making A Murderer (Kensington Publ’g Corp. 2016).
Reads the Netflix motion's footnote 8:
8 The Amended Complaint also alleges that all Defendants acted with actual malice because they have refused to “admit[] their distortions and omissions of fact” in the wake of “[t]horough, careful, and objective analysis by some members of the public and a few journalists [that] revealed that the series had badly distorted the facts.” Dkt. 1-2 ¶ 55. Here, the Amended Complaint makes a not-so-veiled reference to a book criticizing MaM published by Colborn’s counsel that mirrors many of the allegations in the Amended Complaint. See generally Michael Griesbach, INDEFENSIBLE: THE MISSING TRUTH ABOUT STEVEN AVERY, TERESA HALBACH, AND MAKING A MURDERER (Kensington Publ’g Corp. 2016). This detour is, however, irrelevant to the issue of actual malice, which is measured at the time of publication, not afterwards. Pippen, 734 F.3d at 614.
Netflix and others' Memorandum in support of its motion to dismiss notes deficiencies in the law enforcement officer Colborn's amended defamation complaint on First Amendment grounds; and on the failure to meet the low threshold of stating a claim upon which relief can be granted, citing Federal Rules of Civil Procedure, 12(b)(6).
Another motion notes improper service and apparent deceit committed by agents of the plaintiff, Colborn.
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