Letter to Mike Rowe

A week ago Mike Rowe, the Dirty Jobs guy, wrote about an experience he had in line at a liquor store, where the store owner posted photos of shoplifters he’d caught on security tapes. It’s an interesting little piece. My son Political Sphere came across it, and because the discussion included some legalities surrounding the public shaming, and Political Sphere being a law student and entertained by such thought exercises (it’s summer, and this was the weekend before a new internship started), he wrote his legal opinion. Which is NOT to be construed as legal advice, which he can’t legally offer yet.  

This is the shoplifter-in-action photo
from Mike Rowe's site,
with ID covered for legal safety

But, just for the fun of it, here is Political Sphere’s open letter to Mike Rowe, with tort law citations included:

_____________________ 

June 24, 2014 

Dear Mr. Rowe, 

I read about your experience with a lawyer at the liquor store the other day. I am only a law student and cannot give legal advice yet. I personally think that your lawyer gave you good advice to prevent a lawsuit, because lawyers such as the one you met at the liquor store exist. But I vehemently disagree with that lawyer’s assessment that the liquor store owner would likely lose; in fact I think that lawyer would be liable for malpractice if he pursued the case. Again, nothing I say should be taken as legal advice, but merely as my personal opinion (unfortunately, I must repeat and emphasize this to prevent my own liability, because, yes, this is what this country has come to). 

As I see it, there are likely only two causes of action the lawyer could consider pursuing here, both of which are likely to fail. The first is a defamation claim, alleging that the store owner has lessened society’s estimation of the person photographed. However, truth is an ultimate defense to any defamation claim. Therefore, the lawyer would almost definitely fail taking this course of action.  

The second option would be a claim for intentional infliction of emotional distress. This too is likely to fail, because the lawyer would have to convince a pool of jurors, made up of regular people (i.e. non-lawyers) such as yourself, that the actions the store owner took were outrageous. I cannot personally imagine that a person other than a scumbag lawyer like the one you talked to would see the store owner’s posting of the picture as outrageous.  

Besides likely failure using those two approaches, there’s an additional reason not to take on such a suit. The lawyer would be committing malpractice by encouraging the person pictured to file suit, because that action would identify the person to the store owner and the state. This identification would allow the store owner and the state to pursue charges on the criminal act the person is alleged to have committed.  

We’ll take the two claim options and then the reasons for malpractice in order. 

First, there are variations of the defamation cause of action in each state, but the lawyer is unlikely to succeed on a claim of defamation, because the statement is true. Generally, to incur liability for defamation, either libel or slander, there must be (1) a false statement, (2) the false statement must be defamatory, (3) the statement must be made to a third party, (4) the person who made the statement must have committed at least negligence in determining the falsity of the statement, and (5) the statement must have caused harm. Restatement (2nd) of Torts § 558. Here, based on what was explained, element one is not met. 

A person is not liable for a true statement. Restatement (2nd) of Torts § 581A. When a statement is defamatory per se (defamation per se is a defamatory statement that is naturally going to decrease the person in the eyes of the community, such as accusing the person of a crime), then a presumption exists that the statement is false. E.G. Thomas v. Bowen, 29 Ore. 258, 266-67 (1896). In Thomas, a newspaper printed that the plaintiff was guilty of larceny before the plaintiff had been convicted of the crime. Id. at 266. The Court observed that because the law presumes that a person is innocent of a crime until the person is proven guilty, then charging a person with an indictable offense is presumed evidence that the statement is false. Id. Thus, the defendant has the burden to prove that the statement is true. Id. 

In the case you mention, I would presume that the people pictured have not been charged. Therefore, the presumption is that the person is innocent. However, the defendant may rebut the presumption and show its truth. This fact alone makes it unlikely for the plaintiff to win, because the store owner explained that he maintained video evidence of the people shoplifting. Therefore, the store owner should be able to rebut the presumption.  

Second, a suit for intentional infliction of emotional distress is likely to fail, because the average person will not see the store owner’s actions as outrageous, and may not even consider the person severely emotionally distressed. To succeed in a suit for intentional infliction of emotional distress, the lawyer must be able to show that the store owner (1) by extreme or outrageous behavior, (2) intentionally or recklessly, (3) caused, (4) severe emotional distress. Restatement (2nd) of Torts § 46. Following your discussion as it was relayed in your letter, this is the more likely path the lawyer was considering. The lawyer claimed that he would be able to show that the person pictured was emotionally distressed and that the store owner was the cause of that distress. He continued to compare the punishment through the legal system with the public shaming used by the store owner.  

However, the lawyer is unlikely to win, primarily because, despite his claim, a jury would not consider the public shaming utilized by the store owner as extreme or outrageous. The comment provided by the restatement explains: 

The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" 

Restatement (2d) of Torts, § 46. The lawyer would fail to meet the burden explained, because posting pictures of people the store owner accuses of shoplifting does not exceed the bounds of all decency. Consider that, though it is often for somewhat higher crimes, even the police will post pictures of accused parties. Indeed, the police will plaster video of accused robbers all over the evening news. Here, regardless of whether the store owner has malice, it is hard to see a jury deciding merely posting the pictures in the store is extreme conduct. Therefore, it is unlikely that the lawyer could succeed on a claim of intentional infliction of emotional distress. 

But even if the lawyer were able to convince the jury that the store owner’s conduct was outrageous, the lawyer would still likely lose, because the lawyer would be unable to show that any emotional distress suffered by the person pictured was severe. As the comment to section 46 of the restatement explains, “The rule stated in this Section applies only where the emotional distress has in fact resulted, and where it is severe.” Restatement (2d) of Torts, § 46. The restatement continues, “The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.” Id. Further, “The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress.” Id.  

Here again, the lawyer would have to convince the jury, comprised of normal people unlike himself, that the person pictured suffered severe mental anguish, beyond what any reasonable man could be expected to endure, which anguish is reasonable and justified. I know this is conclusory, but I think the lawyer would be hard pressed to show that the distress was severe, much less that if the distress is severe that the distress is reasonable and justified when all that the store owner did was accuse the person of shoplifting and posted the picture in the store.  

In summation, the lawyer would likely lose a claim of intentional infliction of emotional distress. Any emotional distress caused is unlikely to reasonably and justifiably be severe, and I doubt that a jury of thinking Americans would consider posting the picture of an accused shoplifter to be “utterly intolerable in a civilized society.” Thus, the lawyer has no claim against the store owner. 

Additionally, if the lawyer were to bring a suit against the store owner, the lawyer would likely be liable for malpractice. By bringing the suit, the accused shoplifter has identified himself/herself as the person pictured. Thus, the store owner would be able to counter sue for restitution from the shoplifter, and the state would be able to charge the shoplifter for the criminal act. In my experience, the only reason that the state would not already have charged the individual for shoplifting and ordered restitution is because the state does not yet know who the person in the video is. By filing suit, this barrier to charging the individual with the crime disappears. 

In conclusion, the lawyer you talked to would likely not only have lost the claim for either defamation or intentional infliction of emotional distress, but subjected the client to jail time, restitution, and a criminal charge on the client’s record. It is irresponsible to open a client up to such liability. As such, the lawyer would likely be liable for malpractice for being stupid enough to represent the client in suing for defamation. 

There are, unfortunately, bad lawyers who would file this type of litigation, thinking that the suit would likely succeed. But the majority of lawyers would recognize the slim chance of recovery in this case and refuse to act as this lawyer claims he would. I hope this gives you a little more faith in the legal system.

Sincerely, 

Political Sphere