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  1. #1
    Join Date
    Mar 2009
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    Default Repeating the Content of a Non-Public Police Report

    My question involves defamation in the state of: Florida

    If you take advantage of your elected office to obtain a confidential police report to attack a private citizen critic, can you later, after being sued, claim it is pubic record?

    Ultimately it is public record, but the elected sa never would have known about it except for use of NCIC or using other resources of his office. Can someone convert government records to private use and claim public record?

    A private citizen writes a letter to the editor about why the state attorney should not be re-elected, outlining three performance issues. The state attorney uses NCIC, which is only for legit law enforcement purposes, to run a background check on the letter writer and comes up with a bogus sex charge which was a civil infraction. It is a police report 26 years old. The citizen was never found guilty on the merits, but only because he would not submit a report the city judge wanted that the judge had no authority to require. The state attorney writes a letter to the paper which is published accusing this person of being a twice convicted homosexual child molester. The report only involved one person and absolutely nothing in it constitutes ANY offense whatsoever.

    The former now sa would never have known about the police report without using the resources of his office and he wrote the letter on state time, etc. He attacked a private citizen critic.

    Now being sued, he comes up with the original police report and says it is public record.

    The question is, is it really public record when he abused his position (actually criminal acts) to learn about it in the first place?

    The police report is inadmissible as it is hearsay under Florida rules of evidence.

    The sa took a civil infraction, which is not a crime, and turned it into what sounds like a horrible major crime in his letter. It is libel regardless, but there are other issues.

    The police report though is actually favorable to the plaintiff, in comparison to what was written, but it is embarrassing and prejudical. There is a federal appeals court opinion listing this person's criminal record and there is no sexual offense at all.

    So what would be better, letting it in or keeping it out. If it was excluded it would be better and the federal opinion would prove there was no such offense. It was not a crime.

    In fact, how could either side admit it if it is hearsay? Could anyone come up with the police officers after 28 years and have them testify about something someone else told them 28 years ago? Would that be even admissible? That seems to be the only way to get it admitted.

  2. #2
    Join Date
    Sep 2005
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    74,998

    Default Re: Repeating the Content of a Non-Public Police Report

    It is not defamation to tell the truth, period.

    Public records are public records, even if they're hard to find.

    If the report contained facts not known to the public, there may be a basis for a claim of invasion of privacy. Criminal charges, though, normally are a matter of public record.

    If the report does not support the claim that the person is "a twice convicted homosexual child molester" and that allegation is false, I don't see how it provides any sort of defense to a defamation case predicated on that statement.

    I don't have enough context to begin to address "what would be better, letting it in or keeping it out".

  3. #3
    Join Date
    Mar 2009
    Location
    Key West, FL
    Posts
    2,350

    Default Re: Repeating the Content of a Non-Public Police Report

    The issue is it is a POLICE REPORT which is not admissible under Florida law. It was taken from a file of the State Attorney. It is purloined, in effect stolen property taken for political reasons for personal gain. Nobody would have ever known about it without access to NCIC. State or federal property is not for the benefit of the office holder to use in a political campaign for private gain.

    It does not constitute a crime. NOTHING at all in the report constitutes any offense whatsoever, much less what was charged. There are only two kinds of crimes, felony and misdemeanor. This is a civil violation, civil infraction. I don't know if that can be admitted for any reason, but it is hearsay. The judge did not find the person guilty on the facts or merits of the case. The plea was not guilty and the judge wanted a psych report so he was given something that was done a year earlier. He didn't even have the authority to ask for it. He didn't like the report because it was not done for his case, so without notice or hearing, on a not guilty plea, he found the person guilty.

    Now, if this was a crime, the judgment of conviction would be unconstitutional. The person's consitutional rights were violated in at least 2 ways. But it is only a non-criminal civil infraction that got reported to NCIC as if it was a crime. It has come back to haunt the person a couple of times, but this is a worst case.

    The day the SA wrote the letter he had his investigator access NCIC to run the person and the same day wrote the letter to the newspaper. We have the FDLE transaction reports though the actual criminal history is excised. A FBI rap sheet can NOT be released under FOIA. The US Supreme Court said it is an invasion of privacy. So how is it any different if the information is stolen from NCIC or out of an internal file of the SA office. There simply is NO lawful way to get a NCIC report other for legitimate law enforcement use by an authorized agency. NCIC is not reliable and is NEVER directly admissible. In a criminal case, only the NUMBER of convictions can be counted and ONLY for purposes of impeachment if the defendant testitys.

    Without that access, nobody would have known where to look, and the real issue is that the SA never got it from public record, but took it from NCIC and a internal office file that was kept in the office years after the state requires it to be destroyed, especially because it was an aquital. This report is 28 years old and is not available online. You'd have to know the city and go to the city clerk for a copy which is in another state. He is basicly claiming it is public record after the fact, though he used the resources of his office to find it.

    He did not attack another candidate, a candidate's manager, but a private individual who wrote a letter to the editor. It was retaliation for a private individual exercising his constitutional rights of free expression to comment on a political campaign. Talk about chilling free speech.

    Imagine a SA/DA using the resources of his office to find information to attack anyone who is critical of his performance. Actually, politicians have been prosecuted once in a while for stealing NCIC information

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