A recent defamation lawsuit filed against the Brevard County sheriff made headlines, as it targets the sheriff’s “Wheel of Fugitive” Facebook videos, which spoof Wheel of Fortune. The plaintiff, David Gay, said he wasn’t a fugitive when his name and image appeared — several times — on the wheel, and, as a result, lost a job and suffered emotional distress.
In the videos, Brevard Sheriff Wayne Ivey says,
You know how it works: All 10 people up here have warrants for their arrest. We want to get them off the street and safely behind bars where they can’t victimize anyone else. Let’s see who our Fugitive of the Week is here in Brevard County!
He the spins the Wheel of Fugitive, and the name and mugshot image of the “lucky winner” appear are shown on screen while Ivey explains the charges, then tells the fugitive to turn herself in.
The lawsuit includes four counts for defamation against Sheriff Wayne Ivey, four counts against the Sheriff’s Office of Brevard County, then counts of intentional infliction of emotional distress and reckless infliction of emotional distress against each.
There appears to be no question of whether Mr. Gay was a fugitive at the time. However, according to Florida case law, a Florida sheriff is immune from defamation lawsuits so long as he is working within the capacity of his office.
The defamation claims will likely be dismissed because an “absolute privilege” protects sheriffs and other public officials.
In 2008, the Florida’s Fourth District Court of Appeal held that the absolute privilege afforded to statements made by public officials in connection with their official duties extends to a sheriff for comments made in the course of the sheriff’s duties. Crowder v. Barbati, 987 So. 2d 166 (Fla. 4th DCA 2008).
In that case, similar to Brevard’s Wheel of Fugitive, the Martin County sheriff had published a “Grinch Roundup” as part of efforts to bring parents up-to-date on child support obligations. They issued a press release that labeled Robert Barbati among several alleged “deadbeat parents” and referenced an outstanding writ of bodily attachment indicating that Barbati owed over $1 million in child support. Mr. Barbati sued the sheriff for defamation.
The Court noted that where a government official acts “within the scope of their office,” he enjoys “an absolute privilege.” Crowder, 987 So. 2d at 168 (citing Mueller v. The Florida Bar, 390 So.2d 449, 451 (Fla. 4th DCA 1980) (holding that immunity applied to a press release issued by the Florida Bar about a disbarred attorney)). The Court concluded that “the act of issuing a press release concerning the official duties of the sheriff was ‘within the scope’ of the office of the sheriff,” and that the term “scope of office” should be interpreted broadly. Id.
This doctrine of absolute immunity has been followed in multiple other defamation cases.
In Weeks v. Town of Palm Beach, an city employee had created a “website that offered public facts and opinions about the Town’s proposed changes to the [fire] department’s pension plan.” Afterward, various town and department officials “planned a scheme to gather false and defamatory statements and fabricate documents and records with malicious intent towards him,” causing his ultimate termination. 252 So. 3d 258 (Fla. 4th DCA 2018). The Court explained that the allegedly defamatory statements “were protected by absolute privilege from claims for defamation, no matter how false, malicious, or badly motivated.” Id. at 262. Again, the“controlling factor” was “whether the communications were in the scope of the public officer’s duties.” Id.
In Larosa v. City of Sweetwater, two City of Sweetwater police arrested Daniel Larosa at his job after he had posted album art for Diary of a Cop Killer on Instagram along with a comment, “It’s sweetwater pd that’s gotta die!!! Lol.” 13-21585-CIV, 2014 WL 4793001 (S.D. Fla. Sept. 25, 2014). The Court found that Larosa’s defamation claim because he had alleged that the officers were acting “within the course and scope of their employment.”
In Gordon v. Beary, Plaintiffs sued Orange County Sheriff Kevin Beary for defamation, among other things, and, in an attempt to circumvent the absolute privilege, claimed that Beary had “made defamatory statements after the charges were dropped, which would not be within the scope of Defendant Sheriff’s duties.” The Court found the arguments “unconvincing” and, citing to the strong absolute privilege, dismissed the claim. 608-CV-73-ORL-19KRS, 2008 WL 3258496, at *8 (M.D. Fla. Aug. 6, 2008).
In Bates v. St. Lucie County Sheriff’s Office, the Court found that full immunity where a former Sheriff’s Office employee alleged that, after she had resigned to attend the police academy, the Sheriff furnished “inaccurate, misleading and false reports” concerning her, including aging that she had been “investigated for alleged misconduct.” She alleged that she had advised the Sheriff about the inaccurate report, but he had refused to correct it, which resulted in her failure to obtain a position with the Riviera Beach Police Department. 31 So. 3d 210 (Fla. 4th DCA 2010).
In summary, Mr. Gay’s claims against the Brevard County Sheriff for its Wheel of Fugitive misstatements will likely be dismissed relatively quickly.
Do you have a question about your defamation issue? Call our office at 407-965-5519 or contact us to discuss scheduling a consultation.
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