IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 01-761
WILLIAM ALLEN ANDERSON,
Plaintiff and Appellant,,
VS.
THE CITY OF TROY, MONTANA AND MITCH WALTERS,
Defendants and Respondents.
BRIEF OF APPELLANT
On Appeal
fkom the District Court of the
Nineteenth Judicial District of the State of Montana
In and
Fork the County of Lincoln
APPEARANCES:
William A. Douglas
DOUGLAS LAW FIRM, P.C.
P.O. Box 795
Libby, MT 59923
Mike1 L. Moore
CHRISTENSEN, MOORE, COCKRELL,
CUMMINGS
& AXELBERG, P.C.
P.O. Box 7370
Kalispell, MT 59904-0370
ATTORNEY FOR PLAINTIFF ATTORNEY FOR DEFENDANTS
AND APPELLANT AND RESPONDENTS
Table of Authorities
Statement of Issues
Statement of Case
Statement of Facts
Summary of the Argument
Argument
Conclusion
Certificate of Service
Certificate of Compliance
Appendix
TABLE OF CONTENTS
ll%s
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5
6a
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TABLE OF AUTHORITIES
Cases.
-.
Janklow v. Newsweek, Inc.,
759 F.2d 644 . . . . . _ . .
Keller v.
Safeway Stores,
111 Mont. 31, 108 P.2d 608
F.2d 193 . . . . . . . .
Lewis v. Time,
710
F.2d 549 . . . . . . . .
Statutes:
327-l-803, MCA ...........
.......
$27-l-803(5),
.......
527-l-804, MCA ...........
.......
$27-l-804(1), MCA .........
.......
Other Authorities:
$566 Second Restatement . . . . . . .
. . . .. . . . .12
. . . . .
. .
. . . . . . .
. . . . .
. . . . .
. . . . . . . 12
.
. . . . . 9
. . . . . . . .
.
12
. . . . . . . . .12
......... 7
....... 9, 10
.........15
.........
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STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1.Is it the commission of “slander per se” on the part of Walters to
describe Plaintiff as a “gang banger”?
2. In order for Walters to escape a claim for slander on the basis that the
description of Plaintiff as a “gang banger” was merely the expression of an
opinion, must Walters, at the time of making the description of Plaintiff as a
“gang banger”, provide the factual allegations upon which he predicated such
opinion?
3. In order for Walters to escape a claim for slander on the basis that the
slanderous description of Plaintiff was made in the proper discharge of an
official duty and thereby privileged pursuant to
$27-l-804(1), MCA, must the
making of the slanderous description of Plaintiff be a necessary adjunct to the
proper discharge of the official duty as contrasted with a gratuitous comment not
necessary to the proper discharge of an official duty?
STATEMENT OF THE CASE
Appellant, hereinafter “Plaintiff’, filed suit against Respondents,
hereinafter “Troy” and “Walters”, for damages predicated upon slander of
Plaintiff by Walters while Walters was on duty as the Troy chief of police. A
number of depositions were taken by the parties. Troy and Walters then filed
4
their Motion for Summary Judgment and Plaintiff tiled his Memorandum in
Opposition. The District Court heard oral argument and rendered it’s Order
Granting Summary Judgment in favor of Troy and Walters. Plaintiff now
appeals that summary judgment.
STATEMENT OF FACTS
The facts, as established by the sworn testimony provided in the course of
the depositions
~taken by the parties, are:
To James Sweet, a detective in the office of the Lincoln County Sheriff,
the term “gang banger” refers to a person who is an active member of a known,
recognized gang that engages in criminal activity. Sweet Deposition Transcript,
Page 32, line 3
- 22.
To David Cooper, owner
of~TAZ Towing in Troy, a “gang banger” is “a
little hoodlum” that is “someone that is going to cause a lot of trouble around
town, get into mischief, thieving . ..‘I. Cooper Deposition Transcript, Page 13,
line 5
_ 15.
To Brenna Meyer, a “gang banger” ‘I... is a thug, who hangs with other
people that are in a gang.” Meyer Deposition Transcript, Page 24, line 21
- 24.
In May, 1999 at the Troy City Hall, after David Cooper had just been
seen by Walters at the home of Plaintiffs parents, Walters confronted David
5
Cooper with the statement ‘What the hell are you doing with the likes of a
gang-banger like Bill?” (Plaintiff) Cooper Depo TR p 11, 1 7
- p 12, 1 18.
During the summer of 1999, in the parking lot of the IGA store in Troy
after Brenna Meyer got off work, Walters made it known to Brenna Meyer on
several occasions that he didn’t like Plaintiff. On one of these occasions,
Walters told Brenna Meyer that Plaintiff was just a “gang banger” from
California who didn’t belong in a town like Troy. Meyer Depo
.TR, p 23, 1 13 -
p 24, 1 3.
There is nothing in the record, as contained in any of the depositions,
which suggests that, at the time Walters purportedly utilized the term “gang
banger” in reference to Plaintiff, Walters stated any non-defamatory facts upon
which he purportedly based his expression of opinion that Plaintiff was a “gang
banger”. Similarly, there is nothing in the record, as contained in any of the
depositions, reflecting that it was necessary for Walters, in the proper discharge
of his duties as Troy Chief of Police, to describe Plaintiff as a “gang banger” to
David Cooper and Brenna Meyer.
SUMMARY OF THE ARGUMENT
The term “gang banger” means that a person is a member of an organized
gang that engages in the commission of crimes. To falsely call someone a
“gang banger” constitutes the commission of “slander per se” for the term has
but a single meaning and that an opprobrious one.
When Waiters informed third parties that Appellant was a “gang banger”,
Walters did not state any facts upon which he concluded that Appellant was a
“gang banger” and such identification by Walters of Appellant was, therefore, a
statement of fact and not that of a constitutionally protected voicing of an
opinion.
An on duty officer, who makes statements that are necessarily and
reasonably made in the course of discharging the duties of the officer, is exempt
from any claim of slander arising from such statements. However, an officer,
who makes slanderous per se statements which are gratuitous on the part of the
officer and not necessary in the rendition of the duties by the officer, is not
exempt from a claim of slander.
WALTERS CALLING PLAINTIFF A “GANG
BANGER” WAS
SILANDER PER SE
In the rendition of his Order Granting Defendants’ Motion for Summary
Judgment, the lower Court observed:
“The term ‘gang banger’ has apparently acquired a different
connotation over the years than it used to have, and while the
connotation is certainly not a pleasant one, the exact meaning and
implications of the term are subject to speculation. Does it refer to
the way one dresses? To whom a person associates with? To the
music one listens to? To one’s beliefs or philosophy? To one’s
lack of respect for the law or social norms? To one’s propensity to
violate the law? To a propensity for violence? Do gang bangers all
do the same things? Do they all act the same way? Are there good
gang bangers and bad gang bangers? If it could be proven that a
person is a gang banger, would the person be subject to arrest?”
Order P. 7, 1 1
- 5.5.
and then concluded that the term “gang banger” conveys ‘I... only a vague
message that someone is a ‘bad person’...” and is not slanderous. Order page 7,
line 10-10.5.
It should be noted that
$27-1-803, MCA contains five separate and,
ostensibly, equal grounds for claiming the existence of slander. The lower Court
appeared to focus on paragraph (1):
“Charges any person with crime or having been indicted, convicted,
or punished for crime;”
7
as the benchmark level to which Plaintiff had to reach in order for his claim for
slander to prevail. The Plaintiff, however, asserts that his claim for slander can
be predicated on paragraph (5):
“By natural consequence causes actual damage.”
The vice of what the lower Court has done is to substitute it’s views for
that of those witnesses who have testified in the course of the depositions taken
by the parties. As reflected in the sworn testimony at deposition by David
Cooper, Brenna Meyer and James Sweet, the term “gang banger” had a meaning
that was nothing but opprobrious. It should be particularly noted that James
Sweet, the Lincoln County Detective described the term “gang banger” as being
a “fairly common terminology” which refers to
I’... an active member of a
known, recognized gang . ..‘I and that it was the understanding of James Sweet
that the terminology “gang banger” means you are actively involved in a
recognized gang which engages in criminal activity. Sweet Depo
TR P. 32, 1 3-
22.
Examining the evidence before the lower Court and this Court, the term
“gang banger” does not leave the listener, or the person defining that term
meaning of the term is a single unmistakable meaning. Simply re-read the
testimony of James Sweet, Brenna Meyer and David Cooper. They all come up
with the same essential description: “gang banger” = a member of a gang that
commits crimes.
Surely, a false description of a person as: a member of the “mafia”; a
member of organized crime; or, a member of the “Hell’s Angels” would be
“slander per se” per
$27-l-803(5), MCA.
“(5) By natural consequence causes actual damage”
This is because each of those examples:
“has a meaning . . as a stranger might look at it, without the aid of
special knowledge possessed by the parties concerned .
..‘I.
1,
. . . is susceptible of but one meaning and that an opprobrious one
.
” Keller vs. Safavay Stores, 111 Mont. at 3 l-32, 108 P.2d 60%
609 (1940).
Each of these exemplars given have the meaning “a member of a gang that
commits crimes”
- the same meaning as “gang banger”. The only difference
between the exemplars and the term “gang banger” is that of the level of
familiarity/notoriety
- a difference only in degree.
Because the lower Court had the discussion on page 7, line 1 - 6 of its
Order, an analogous examination should be had of the exemplars, to-wit:
9
The terms “mafia” and “organized crime” denote heavy, swarthy
gentlemen of Italian or Sicilian extraction wearing expensive, tailored suits,
heavy top coats with big bulges under the armpits and dark glasses.
The term “Hell’s Angels” denotes tattooed motorcyclists wearing leather
jackets, dark glasses and heavy boots.
The “mafia” and “organized crime” members associate mainly with one
another and the same goes for the members of the “Hell’s Angels”.
Movies such as the “Godfather” series leave the impression that the
“mafia” and “organized crime” members prefer mandolin and clarinet
instruments played in “old
country”/classical style while the popular impression
had of the members of the “Hell’s Angels” is that they lean more to classical
rock/heavy metal kind of music.
The popular impression is that all members of the “mafia”, “organized
crime”, and the “Hell’s Angels” are bad. This on the basis of counsel’s recall
that he has never heard or read that there is a “good” member of the “mafia”,
“organized crime” or “Hell’s Angels”.
Just because a person is a member of the “mafia”, “organized crime” and
the “Hell’s Angels” doesn’t make them subject to arrest. But, if the New York
City Chief of Police, while wearing his
full dress uniform at a rally for the local
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police union, falsely declares that a specific person is a member of the “mafia”
or “organized crime” or “Hell’s Angels” such a statement
‘I... by natural
consequence causes actual damage.”($27-l-803(5), MCA) and constitutes
slander per se.
It should be obvious that a “gang banger” may: wear “hip hop” type of
clothing; associate primarily with other “gang bangers”; listen primarily to “hip
hop” music; and, that, if a person is
~a “gang banger”, he is a “bad gang banger”
but would not be subject to arrest just because he is a “gang banger”. It should
further be obvious that it isn’t the associates; the music; the clothing, etc., that
defines a person in a “per se slanderous” context as a “gang banger”, a “Hell’s
Angel”, or a
“mafioso”, but it is the common thread that these labels denote “a
member of a gang (organization) that commits crimes”.
Accordingly, to falsely label a specific person as a “gang banger” is to “by
natural consequence cause(s) actual damage” and constitutes the commission of
slander per se.
‘I... by natural
consequence causes actual damage.”
and, therefore, not actionable as slander. The lower Court concurred with this
defense.
There exists a body of case law and learned comment which mandate that
a claim for slander cannot survive if the alleged slanderous statement was
merely a statement of opinion. See Lewis v. Time, 710
F.2d 549 (Ninth Circuit
1985); Lauderback v. ABC, 741 F.2d 193 (Eighth Circuit 1984); and, Junklow v.
Newsweek, Inc., 759 F.2d 644 (Eighth Circuit 1985).
In these cases cited, there is clearly set out the standards and criteria by
which an otherwise opprobrious statement is deemed to be an opinion, for which
no liability for libel or slander attaches as contrasted with a statement of fact
which, if opprobrious, liability for libel or slander would attach. Illustrative of
this criteria is the court’s discussion of the Second Restatement’s Codification of
the common law and constitutional privilege for opinion found in $566 (1977).
See Lewis v. Time, 710
F.2d 549, 555:
Lewis v. Time, 710
F.2d 549 (Ninth Circuit
1985); Lauderback v. ABC, 741
“Comment c elaborates on the breadth of the
constitutional protection, concluding that ‘[a] simple
expression of opinion based on disclosed or assumed
nondefamatory facts is not itself sufficient for an action
of defamation, no matter how unjustified and
unreasonable the opinion may be or how derogatory it
is.’ The rule
[**17] derives from the statement’s effect
on the reader. If an expression of opinion follows from
nondefamatory facts that are either stated or assumed,
the reader is likely to take the opinion for what it is.
Indeed, the reader is free to form another, perhaps
contradictory opinion
from the same facts. (cites
omitted) But when the opinion derives from unstated or
unassumed facts, the reader can only presume that the
publisher of the statement is asserting the facts to
support the opinion as well. Thus the effect is the
same as if the unstated facts were specified, and the
publisher risks liability if they are defamatory.”
Given the fact that, in the instant case, there is an absence of any non-
defamatory facts stated by Walters upon which he purportedly based his
“opinion” that Plaintiff was a “gang-banger”, the referral by Walters of Plaintiff
as being a “gang banger” was: a statement of fact; was opprobrious; and, was
slanderous per se.
THE STATEMENTS WALTERS MADE TO DAVID
COOPER AND BRENNA MEYER WERE NOT PRIVILEGED
The defense has seized upon the allegations contained in the Complaint that Walters was acting within the course and scope of his function as Chief of
Police of the City of Troy as somehow providing a “carte blanch” opportunity
13
for Walters to make defamatory statements at will, the only criteria being that he
needed to be wearing his uniform, have his badge on and be wearing his gun
belt with weapon in the holster. That is not the import of Section 27-l-804,
MCA, as interpreted by the various opinions of the Montana Supreme Court. It
is the impact of Section 27-l-804, MCA that is the reason, why Plaintiff did not
oppose the application for the Motion for Summary Judgment for the
communications made by Walters to Troy Mayor, Barbara Anderson,
,and to the
City of Troy Police Commission. The statements made by Walters to David
Cooper and Brenna Meyer, however, were nothing more than gratuitous
comments made by Walters to Cooper and Meyer that had absolutely nothing to
do with the discharge of his duties as Troy Chief of Police. In the case of
Cooper there is nothing to reflect that Cooper asked Walters what Walters
thought of the Plaintiff or why it was necessary for Walters to make such
comments to Cooper and there is nothing to reflect that Meyer inquired of
Walters as to what Walters thought of the Plaintiff or why it was necessary for
Walters to make such comments to Meyer. Rather, the comments purportedly
made by Walters to Cooper and to Meyer seem nothing more and nothing less
than an unsolicited and unwarranted attempted insertion by Walters into the
mind’s eye of Cooper and Meyer to induce them to shun and avoid Plaintiff.
14
Such does not constitute a privileged communication within the meaning of
Section 27-l-804, MCA.
CONCLUSION
To describe Plaintiff as a “gang-banger” is to slander him per se. By
reason of such slander per se, Plaintiff need not allege or prove special damages
and Troy and Walters are not saved from liability to Plaintiff because the
slanderous per se statements were made by Walters to persons who did not
believe Plaintiff was a
“gang-b~anger”.
There is nothing to support the
proposition that Walters, when he referred to Plaintiff as a “gang-banger”, was
stating anything other than a fact and Troy and Walters, therefore, are not saved
from liability to Plaintiff because the statement was purportedly that of an
opinion. Walters, when he made the referral of Plaintiff as a “gang-banger” to
Dave Cooper and
Brenna Meyer, was not saying something that was a necessary
Walters, therefore, are not saved
from liability to Plaintiff because the statement
was privileged per Section 27-I-804, MCA.
By reason of the foregoing facts, law and discussion, the Order of the
lower Court granting the Motion of Defendants for Summary Judgment should
be reversed and the case be remanded for trial.
15
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Respectfully submitted this
li2izhL
day of November, 2001.
CERTIFICATE OF SERVICE
I do hereby certify that on the ,$‘z& day of November, 2001, I placed a
true and correct copy of the foregoing in a postage pre-paid envelope and
deposited it in the U.S. Mail properly addressed to:
Mike1 L. Moore
CHRISTENSEN, MOORE, COCKRELL,
CUMMINGS
& AXELBERG, P.C.
P.O. Box 7370
Kalispell, MT 59904-0370
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 27 of the Montana Rules of Appellate Procedure, I
certify that this Appellant’s Brief is printed with a proportionately spaced Times
New Roman typeface of 14 points; is double spaced; and the word count
calculated by WordPerfect 5.1 Plus, is 2850, not averaging more than 280 words
per page.
DATED, this
,J?,dday of November, 200 1.
APPENDIX
1.Order Granting Defendants’ Motion for Summary Judgment
2.Deposition of James Sweet.
3.Deposition of David Cooper.
4.Deposition of Brenna Meyer
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, .
1
The two allegedly slanderous statements are recited in the Complaint as follo\vs:
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s
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a
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c. Sometime during the first
\veek of May, 1999, Mitch
Walters said to David Cooper, in reference to William Allen
Anderson, “what are you doing hanSing out with a California
San: banger”.
d. In August or September. 1999. in the parking lot of Stein’s
IGA in Troy immediately after Brenna Meyer Sot off work,
Mitch Walters told Brenna Lfeyer that William Allen
Sang banger from California who has no
business living in Troy.‘.
Anderson
alleges that “the term -Sang ban@ denotes a person who is a member of a
gang whose members: commit crime. are real gangsters; are the wrong people that do crime:
are worthless; and, are bottom of the barre!.” (Complaint, Document
$ I, c 3.) Walters
denies makinS the statements in question.
Cooper and
Neyer are friends of.-\ndcrssn who did not believe the statements
attributed to Walters. Nevertheless, .-Lnderson contends that the statements constitute
slander per se. entitling him to
r:Sardless of whether or not the statements \vere
believed by the persons to whom they bvere ai!eSodly directed.
Walters denies makin% the statements. and Defendants contend that even if the
statements had been made, they are not acnonable because: (1) the term
banger” does
not satisfy the statutory requiremenrs for a slanderous statement, (2) because the statements
xvere allegedly made to Anderson’s friends xho did not believe the statements, Anderson
necessarily did not suffer any injury as a result of the alleged statements. (3) even if the
statements had been made, they were statements of opinion, not fact, and (1) if the
statements had been made, they would have been privileged.
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II
DISCCSSION
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-..
Rule 56(b),
M.R.Civ.P. provides that a party against whom a claim is asserted may
at any time move for summary jud-merit in the party’s favor on any or all claims, and Rule
56(c) directs the court to grant such motion “if the pleadings, depositions, answers to
interrogatories. and admissions on file. rogether \vith the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgent as
ORDERGR4~TISGDEFENDANTS‘~lOTlO~
FOR SU~l~CL;IRY~DG~~ENTiDV-00-106
P-\GE -2-
When a motion for summary jud-gnenr is tiled, the moving party must demonstrate
that no genuine issues of material fact exist. Once this has been accomplished, the burden
then shifts to the non-moving party to prove by more than mere denial and speculation, that
a genuine issue does exist. If no genuine issues of material fact exist, the court must then
determine whether the moving party is entitled to
jud-merit as a matter of law. Bnrner Y.
Ydlowsfo~~~ Comfy (1995), 272 Mont. 261, 26-1, 900 P.2d 901,903.
In a summary
judment proceeding the evidence must be viewed in the light most
favorable to the nonmovin: party, and ail reasonable inferences must be drawn in favor of
the party opposing summary
jud-gnent. Jg.ce 1’. GUrtuus, 1999 MT 170,983
P.2d 369, 56
St.Rep. 661.
The statute which defines the cause of action for slander is $ 27-l-803, MCA. which
reads:
27-l-803. Slander defined. Slander is a false and
unprivileged publication other than libel which:
(1)
charges any person with crime or svirh having been
indicted. convicted, or punished for crime;
(2) imputes in him the present existence of an infectious?
contagious, or loathsome disease;
(3) tends directly to injure him in respect to his oftice,
profession, trade. or business. either by imputing to him
general disquahfication in those respects which the office or
other occupation peculiarly requires or by imputing
somethins
with reference to his office. profession. trade, or business that
has a natural tendency to lessen its profit;
(4) imputes to him impotence or avant of chastity; or
(5) by natural consequence causes actual damage.
Anderson contends that
refenins to him as a “gang banger” is slanderous per se,
entitling him to damages regardless of Lvherher or not the alleged statements were believed
b>- the persons to whom the statements were
allegedly directed, and regardless of whether ot
not the alleged statements resulted in provable damage. In Anderson’s xvords:
ORDER GR-\NTMG DEFEND.ANTX MOTIOS
SUWL.-\RY JUDGMEXTtBV-99-76
P;\GE -3.
It therefore follows that, if the act of calling and labeling
Plaintiff a “eang banger” by \L~alters is slanderous per se, those
dama,oes set forth in Sections 37-I-803,
MCA are presumed to
have been sustained by Plaintiff without any further allegation
or proof.
In other words, P!ainriff shall be presumed to have
been directly injured in respect to his business or he shall be
presumed to have been injured as a natural “consequence” and
in respect to his
cd. trade, or business. .” as a consequence
of these slanderous per se statements made by Walters.
(Plaintiffs Memorandum in Opposition to Defendant’s Motion for Summary Judgment,
a
Document? 31, pp. 2-3.)
9
In
makin% the assenion that slander per se eliminates the need to allege or prove
10
actual damage to the victim’s business or trade. Anderson cites McGsker Y. Roberrs (1969),
152 Mont.
513, 523, 5X1 452 P2d 1OS, 411: wherein the Montana Supreme Court stated:
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In the instant case it should be noted there is no pleading or
proof of special
damages.
However, in Montana. defamatory
words that are slanderous per se carry a presumption of falsity
and damages are recoverable
y.vithout allegation or proofof
special damages. Ke!ler L’. .S~?LL.Q~
Stores, supra. Damage
flowing from such slanderous statements is presumed and
compensatory damages are recoverable without proof of
special damages.
In McCtu~w, the Montana Supreme Court affirmed a verdict against the plaintiffs on
a counterclaim for slander. The slanderous siatements which the jury found had been made
by a homeowner against a contractor included statements such as:
Oh, that they were disappointed in the fact that Mr. Roberts
would cheat them and steal from them.
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that they had proof now that materials had been stolen
from the job and that materials or labor had been chaged to
them when in fact these carpenters were working at other jobs.
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That there \vas more roofins material ordered for the job than
was applied on the house, and that the labor was prohibitive,
ORDER
GR-\XTING
DEFE3D.AXT.S 4lOTIOS
FOR SUM\I;\RY JUDGMEST, D\:-99-76
-
P.AGE -4.
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0
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that they were charged, and that some materials which had
been charsed to them were used in other places, namely Phil
Sawyer’s house, some item of material that they knew for sure
.Amold who lived nearby each
testified that the plaintiffs told them material and labor which
plaintiffs paid for had gone into their houses.
Tom McCusker, one of the plaintiffs. admitted telling several
of his friends that Roberts charged him for labor and material
that did not go into their house.
In affirming the verdict on the slander counterclaim. the Montana Supreme
Court
concluded that “Plaintiffs’ statements that Roberts cheated them, stole from them. and
charged them for labor and materials that did not go into their house directly
charges him
vvirh
the crime of larceny without the aid of innuendo.” McCmk2er, 152 Mont. at 52:. -I52
P.2d at 41-t.
This brings us to Defendants’ first line of defense; even if Walters made the
statements attributed to him, the statements are not slanderous. The Court agrees with this
contention.
The Court in McC’ruke~ cites the earlier case of
Keller Y. Safewa.v Srores (1911?). 111
Mont. 28. 108
P.L?d 605, wherein the Montana Supreme provides the most complete
detinition and explanation of slander per se of any Montana case to date:
In determining
false defamatory words said to have
been spoken of and concerning the party complaining are or
are not slanderous per se, the opprobrious words are to be
construed according to their usual, popular and natural
meaning and common acceptation, that is, in the sense in
which persons out of court and of ordinary intelligence would
understand them, for the presumption is to be indulged that the
third party or parties present so understood them. Daniel
v.
Moncwe, 5S Mont. 193, 190 P. 983; Barr- ~2. NG~elt Tim23
25s P. 242; Pwnk 1’. Sweitzer’s, Inc.,
ORDER
GRUTNG DEFENDAST‘S
MOTIOS
FOR SUMhL;\RY JUDGMENT/D\‘-99-76
-
1
87 Mont.331, 287 P.633; CampbeY.PostPublishing Co.,
2 94 Mont. 12, 20 P.2d
106;.
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The statement made must be
\-iewed by the court as a stranger
miyht look at it, without the aid of special knov.ledge
possessed by the parties concerned. Campbell 1;. Posr Pub.
Co., supra; Woolsro~r v’. :Ifo~rrona Free Press, 90 Mont. 299,2
P.2d 1070.
The
larguage used must be susceptible of but one meaning
and that an opprobrious one. Cmpbell v. Post Pub. Co.,
supra;
Burr v. Wimeu Pub. Co.. supra; Malife? I ‘. Hurer, 73
Mont. 253. 335 P. 757; BI-otvn v.
Independem Pub. Co., 4S
Mont. Si:, 138 P. 2%.
The alleged defamatory matter is to be construed as an entirety
and with reference to the remaininS portions of the
conversation.
BI.OW v. IrldeADendem Pub. Co., supra; Ro~tm
v. Gazeire Pi-iruiug Co.. 7-L
Lfont. 326, 259 P. 1055; Woolsro~z
v. Mortruna Free Press- supra; Cooper v. Rorme~-, 49 Mont.
119, Ill P. 259, .A.nn.Cas.l916.-\, 596;
Shaffrorh I ’. Tile
Trifxrm, 61 Mont. 11. 201 P. 171.
If the IanSuaSe is nor slanderous per se, it cannot be made so
by innuendo (Daniel I’. I~lor~c;tre, supra; Bro\tx 1’. Iudependerlr
Pub. Co., supra). because the term “per se” means by itself;
simply as such; in its
o\vn nature without reference to its
relations.
v. Alorrrarra Free Press, supra. As
otherwise stated in Mu,tle.~: I‘. Hnr-er, supra: “Words are
defamatory per se which upon rheir face and without the aid of
extrinsic proof are injurious to the person concerning whom
they are spoken. If the injurious character of the xvords does
21
I/
not appear from their face when taken in their plain and
natural meaning and according to the sense in which they
appear to have been used. they are not defamatory per se but
are said to require innuendo.”
22
23
24
Keller
Y. Sofewa.v Stores
(1940), 111 Mont. at 3 l-32, 10s P.2d at 6OS-09.
25
ORDER GR-\NTiNG DEFESDANT‘S ~1OTlOS
26
FOR SUM>I.kRY JUDGMENTiDV-99.76
P.IGE -6-
-
The term “gans
has apparently acquired a different connotation over the
,FXS than it used to have. and \vhiie the connotation is certainly not a pleasant one. the exact
neaning and implications of the term are subject to speculation. Does it refer to the day one
iresses? To ivhom a person associates with? To the music one listens to? To one’s beliefs
x philosophy? To one’s lack of respect for *As law or social norms? To one’s propensity to
.-iolate the law? To a propensity for violence? Do gang bangers all do the same things? Do
hey all act the same way? Are there good sang bangers and bad
gang banzers? If it could
)e proven that a person is a gang banzer. \vould the person be subject to arrest?
While one may have a x-isceral reaction that callin% someone a “zany banger” does
lot attribute positive qualities to the person. the term hardly tells us any more than would
:ailins someone a “crook.” a “creep.“ a “gangster.
” a “hoodlum.” or any one of a thousand
vague terms which leave the listener gTuessin2 as to the actions or characteristics of the
arson bein: described. Lone of these tetms have a single unmistakable meaning: the)- all
-elv upon innuendo. Terms ivhich basically convey only a vasue message that someone is a
‘bad person” are not slanderous.
Having concluded that even if
\Valters said \vhat he is
to have said. his
comments did not. as a matter of ia\v. amount IO slander, it is unnecessary for the Cow to
address Defendants’ other arguments. Yevertheless. without soins into detail. and for
ourposes of a possible appeal. the COW also concurs tvith Defendants that as a matter of Iax\
he alleged statements are not actionable as slander in that they are statements of opinion.
and in any event. they are
conditionally~ ptiviiegsd pursuant to _3 27-l-503(1). 41C.A. in that
ths alleged statements: if made. were made duting\Valters’ proper discharge ofhis ofticial
duties as Chief of Police.
La\v enforcement officers enjoy me same First Amendment protections as
an!- other
citizen. Speech which is unwise or hurtful is not necessarily slanderous. LValters did not
accuse Anderson of any specific acti\-ity or characteristic. The term “gang banser” is a
nebulous term which leaves too much to the imagination to be considered slanderous. It is a
term whose meaning implies different rhinss to different people. Unless the namw
dstinition of slander is satisfied. people and their employers cannot be held civilly liable for
opinions espressed about others. even if the opinions have unpleasant connotations. In
addition to everything else, n-hen an on-dur>- law enforcement officer expresses an opinion
about an individual who is the subject of an investigation or a citizen’s
inquiry. such opinion
is privileged.
OKDER GRAXTING DEFEXDIIST‘S LIOTIOS
FOR SLW\l.ARY JUDGMEKT D\--99-76
P.\GE -7.
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NOW, THEREFORE, IT IS HEREBY ORDERED:
1.Defendants’ Motion for Summary
Jud,gnent is hereby ganted.
2.The lawsuit is dismissed with prejudice.
3.Within 10 days, Defendant shall file a Notice of Entry of Judment as provided
n Rule 77(d),
M.R.Civ.P.
\
Dated August 7X,2001
,c:William A. Douglas, Esq.
Mike1 Moore, Esq.
5.i.
I. ;.; ,-. \ A<,$,
> -
ORDER
GRiNTlXG DEFEXDAST’S IMOTIO~\’
FOR SL’;CLM.ARY
IUDGMEXTIDV-99-76
ANDERSON VS. CITY OF TROY/WALTERS
ANDERSON VS. CITY OF TROY/WALTERS
DEPOSITION OF JAMES SWEET
EDMAN,
ASA 8 GILMAN REPORTING, INC. - (8
6)752-5751/752-3334Page 5 to Page
ANDERSON VS. CITY OF
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1daughter baby-sit my son. I’ve stopped by, had
2 coffee, served them paperwork, seen them at another
3
friend’s house. Fairly casual, yeah. Ko barbecues
6 type of thing.
;
Q It’s not a situation where you would
invite them over to dinner at your home or something
ilike that?
sA No. No.
9QHave you ever done any work for the
10 Andenons at all?
11Aivo. I don’t recall -- I don’t recall
12 anything along the tines of doing
work for them, no.
13QI understand they own some properties here
l-4in Troy. Do you rent ftom them?
ANo, I do not.
16QAmong the three of them, William Allen
liAnderson, the father and the mother, do you have a
18 better or more frequent relationship with any one of
19 the three or two of the three than
rhe others?
20
AI probably see and communicate with Allen
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and Bill more often than I do Barbara, but, again,
22 it’s fairly infrequent.
23
QDid the reason that you changed the status
24 of your relationship with the Antlersons have
25 anything whatsoever to do with alleged statements
10
1made by ;CIitch Walters concerning William Allen
2Anderson?
3ADid my status with the family downgrade ti
4 a result of alleged statements?
5Q That’s my question.
6A No. Not at all.
7QSo if Mitch Walters made statements -- and
8 he’s alleged to have made statements -- about
9 William Allen Anderson, that had no effect
10 whatsoever on your relationship with
the Andemons;
11is that true?
12A No. Mitch Walters isn’t involved in any
13 factor with the downgrading of my relationship with
14 the
Andersons.
15QHow long have you known Xtch Walters?
16AI met Mitch Walters probably day one of
17 his employment with Troy City.
18
QTell me when that was.
19
AThat’s a good question. I’m not sure what
20 date he
~vas employed here.
21QDo you occasionally have assignments that
22
overiap or work that requires you to work together
23 with Troy City?
24
A Yes, we do.
25QHave you always been able to do that in a
HEDMAN, ASA B GILMAN REPORTING, INC. - (’
DEPOSITION OF JAMES SWEET
II
1professional manner!
2
AYes. We’ve always handled
OUT cases and
3 went through them in a proficient manner.
4QHow would you describe your relationship
5 with Xtch Walters, then?
6AI think my relationship with Utch Walters
7 is on a good basis. We work well together out there
8 and handle our cases, and I don’t see any problems
9
tith it.
10QDo you have a relationship outside the
11 professional realm, or is it just pretty much
12 pmfessional?
13
AIt’s pretty much professional.
14
Q In his complaint William Allen Anderson
15identified cenain statements allegedly made by
16 Mitch Walters. Are you familiar with that in
ligeneral?
18AI’m familiaraith the allegation, yes.
19
QWere you personally present at any time
20when
AI recall conwsations in reference to
23
William Anderson. Specifically, again, you might
24have to tell me what the alleged conversations or
25 allegations are, but William Anderson has been a
12
1pan of discussion. So have many other people.
2
QThe statements as I understand them and as
3 Mr. Anderson himself testified this morning - If I
4 get these wrong, I apoiogize. As I understand the
5sratements, allegedly, Mitch Walters said that
6 William Alien Anderson was a California gang-banger
7 and maybe that he didn’t belong in Troy, Montana.
8 Those are the two statementS that I’ve heard. Have
9 you ever heard those statements made by Mitch
10 Walters?
11ANo, I have not.
12QIn the discussions that you identified
13 where William
Allen Anderson was perhaps a topic of
14 the discussion or a partial topic of the discussion,
15
were those statements ever made by Mitch Walters to
16 you?
17AI do not believe they were.
18
QHas Mitch Walters said anything in these
19 discussions you identified where William Allen
20 Anderson may have been
part of the topic or
21 discussion -- Have those ever influenced your view
22 of William Allen Anderson?
23
ANo, they have not.
24QThere was an incident, apparently, at
25 Stein’s IGA on the 18th
ofJuly, 1999 involving
j)752-57511752-3334Page 9 to Page 1:
ANDERSON VS. GIN OF TROY/WALTERS DEPOSITION OF JAMES SV’iEET
13
1Wiiliam .Ulen Anderson. Did you have anything
2whatsoever to do with that circumstance?
3
A I was at the IGA during a portion -- to my
4 understanding, a portion of the incident? yes.
;
QTell me what you recall about that.
AMy recollecdon of that was that I was in
7
front of the IGA. I don’t recall ifwe were
8summoned to go there or ifwe were called to go to
9hat location. I do recall that there was some sort
10of complaint of a disturbance at that location. I
I1don’t remember if I was already there or if I
12responded to that location, but I remember there was
L3a complaint of a disturbance at that location.
I4 That complaint I believe was assigned to
i 5Chief Walters, and I was there primarily, I guess,
16as a backup officer to support him in handling the
Li
LS Q Is that the way your two agencies work
LOwith one another? Is Troy City within the county
8 jurisdiction?
21A Yes, it is.
!2 QSo there’s an overlap of jurisdiction,
2.3 then?
14A Yes, there is.
5QAnd when you say it was assigned to
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creating the disturbance had left the area, is my
recollection. I was outside the store! and I
believe at that point Mitch Walters had entered
the
store to talk with the complainant and find out what
was going on.
I remember I wasn’t outside the front of
the store for very long, and Allen Anderson and his
wife showed up outside the store. They came into
the parking lot in a fairly expedient manner, and
they got out of their vehicle and were headed for
the front door, and I do believe that at that point
I was aware that William Anderson was the focus of
attention for the disturbance, and I
appmached
AIlen and Barbara Anderson and asked them what was
going on. I believe I made that statement to
Barbara, and she responded with the comment to the
effect of, Al is going to jail, or something,
because be was pretty worked up about the
circumstances.
Q
“Al” being the father?
A“Al” being the father, Barbara’s husband.
I made the remark to Barbara to the effect of,
What’s going on?
She responded to the effect that, It looks
like Al is going to end up going to jail, or
14
1 ChiefWaiters, does the dispatcher make a decision
2 who to send on the call, or how does that work.’
3 ADispatchers generally assign the on-duty
1 officers within the jurisdiction that the complaint
E
occurs. If a complaint occurred within Troy City
and there is a Troy
Citv officer available, I
ibelieve that call gets &signed directly to the Tmy
8City officer, and depending on the nature of the
9 call, a county officer will back him up and assist
10in the call. However, if there’s not a city officer
11
12the calls in the city. It’s a cooperative
13 agreement.
i4 QSo in this panicular circumstance, you
15understood that the call had been assigned to Mitch
16Walters, and you were backing up --
17
AI believe that was my understanding at the
lS time, yes.
L9QSo you arrived at the scene at some point,
10then, in your squad car or vehicle?
!IAYes. I was on duty in uniform in an
22assigned patrol car.
13
QTell me what happened once you got there.
,4
AI recall being out in front of the store.
2.5I believe we’d received information that the person
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something. I took that as he was emotionally wound
up over whatever the complaint was.
Q Did you have any further conversation with
them at that time?
I believe it was moments after that I went
into the store because I
know Allen, and I’ve known
him for a while; and from the look on his face and
his body gestures, it was
obvious to me he was
emotional. I went into the store as a safety issue,
because I knew Mitch Walters was alone in the store.
I, basically, followed Allen
in moments later.
When I got inside the store, there was
some emotional conversation going on. Allen was
mad. He was upset over an allegation that was made
in reference to Bill’s conduct in the store.
I don’t recall exactly what Al said, and I
don’t recall exactly what Mitch said, but it was at
that point where Mitch made contact with Allen, made
an attempt to calm him down in conversation. It was
fairly obvious that that wasn’t going to happen.
Allen remained fairly emotionally elevated, and I
believe at one point there it became obvious to
Mitch and obvious to me that it could not and was
not going to be resolved inside the store there.
The emotions were too high, and Mitch made reference
j)752-57511752-3334Page 13 to Page 1
-
AND~ERSON VS. CITY OF TROY/WALTERSDEPOSITION OF JAMES SWEET
17
1to him leaving the store.
2 Basically, he gave a command to Allen to
3 leave the store. That was followed up with some
4
comments and whatnot. Again, I don’t recall the
exact terms that were used or what was said. Allen
g d’d ti
t no mmediately comply. Mitch closed the gap
7between them, and I remember him repeating that he
8needed to get out of
the store in a firmer manner,
9and I think at one point in there Men realized
.Othat Mitch wasn’t kidding, and XlIen complied and
,Ilefi the store.
,2QDuring all of this that you’ve just
3 described, were you saying or doing anything
4specific other than standing by?
5A I believe I tried fo interject a little
6bit. Again, knowing Allen Anderson and observing
,7his body gestures, he was very elevated in emotion,
8and I didn’t want Allen to do anything stupid. I
9 didn’t want him to take a swing at Mitch or give him
!Othe opportunity to do that, so I believe I stepped
!Iin and closed my space with Allen also. I never
!2stood in between Allen and Mitch that I recall. I
!3may have at one point put my hand in front of him as
I4the confrontation continued, but, basically, I just
5
was there as a safety issue and allowed
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store and got in his vehicle and took off back for
born I didn’t have any further contact with
him. I don’t remember, but I do not believe Mitch
had further contact with him at that point. I think
Mitch followed through with the complaint by talking
to the people and finding out exactly what had
happened and followed up with his investigation.
QDid Barbara Anderson leave fo your
recollection with Allen Anderson, or did she remain
at the scene?
AI’m sure -- I feel confident in saying
that she left, but I don’t believe I even physically
observed Allen get backinto his vehicle. I don’t
remember any conversations with Barbara after that.
I know she showed up with Allen, so I can only
aswme that she left with him.
QWere you involved in interviewing any of
the complaining witnesses or anything of that kind,
or did you do something else!
A At that point the situation, I believe,
was diffused, and it was just a matter of obtaining
statements. I don’t believe I had anything fo do
with the follow-up investigation.
QDid you scly at the scene, or did you move
to some other location?
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Officer Walters to handle the call.
QOnce Allen Anderson left the srore, what
happened then? Actually, let me backup one second.
While this discussion is going on and then the
commands to leave the store, was Barbara Anderson
involved af all in the discussion, orwas she
standing there much like you were?
A
If I recall, Barbara was in the
background, because I think she made a comment or
something in reference to not wanting to get
involved with it. Again, that’s a faint memory. It
to get involved.
My best recollection of it was, she was in
rhe background there somewhere. Whether she was
inside the store or outside the doors, I don’t
remember. Like I said, I was focused in, and I was
watching Allen’s body gestures and [Tying to assist
Mitch and make the scene as safe as possible, so her
exact location wasn’t--And she wasn’t a threat to
me at that point, so my attention wasn’t drawn to
her. It was on Allen.
QOnce you gof Allen outside, what developed
then?
AT O my memory I believe Allen lefi the
EDMAN, ASA 8 GILMAN REPORTING, INC. -
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AI think1 srayed there for a brief period
2of time probably in anticipation that AIlen may come
3back, and I think a short period of time went by,
4 and I felt comfortable that he wasn’t coming back
*
ii
I might have even stood around for some of the
conversations between the chief and the people in
7the store, but I know I wasn’t there as long as he
8was. I left before he had completed his work
9QDid you have any other involvement in that
10incident in July of ‘99 regarding the IGA after you
11left the scene that night?
L2
ANo. Just no direct involvement at all.
13 No.
14QYou heard about it, perhaps?
15
A Yeah. I heard about statements being
16taken and people making comments in reference to who
said what and, apparently, what had occurred, but
18those are thirdhand. I never interviewed any
19witnesses or suspects myself, so -
20QDo you know if a formal complaint was
11prepared and signed involving the incident at the
?2IGA in July of 1999?
!3
AI do not know that for a fact, no.
?4
Q Do you know why or why not the complaint
?5was pursued orwasn’t pursued?
j)752-57511752-3334
ANDERSON VS. CITY OF TROY/WALTERS
21
AI do not know that for a fact. I don’t
knoa if - I can only assume in recollection it was
because of the elevated emotion. What was behind it
on a factual basis I don’t know. I wasn’t involved
~
with it.
Q
William Allen Anderson told us about a
meeting a couple days laterwitb the people at the
8 IG;1. Did you have any involvement in that meeting?
9
A No,
not at all. I heard - Kow that you
1’
.O mention it, I heard that there was something to that
El.leffect but no. That wasn’t anything I was involved
I.2with.
1
I)
.aQ William Allen Anderson testified about
I.4flashing signs and a sign that you flash with him or
13something. What’s the sign that you guys flash to
1.6one another?
1.7AIt’s kind of a long story, and ifyou’ll
1 .8 allow me? I’ll step back in time a little bit.
1 .9 Q Okay.
: !a A In my initial relationship with the
c
!I Andersons, Al was very vocal about the fact he was
!2 from Los Angeles, from California. At this point
: !3 his son, William Anderson, was not even residing in
!S the Troy area. I didn’t meet William Anderson for
: !5 quite some time. I’ve known his father a lot longer
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than I’ve lmown Will - Bill.
My conversations with Allen Anderson were~
more in a social
settiog, and we’d kid each other
and make comments. I made reference to him being
from California, and I recall at one point, in a
visit at Allen’s house, that Allen was making
reference to being from California, and I’d watched
a documentary on television in reference to gang
members, and the documentary specifically was about
a street gang known as the
21st Street Crips in
Los Angeles.
I’d told Allen about
this documentary and
how there was an apparent drive-by that had
occurred, and
they flashed a gang sign, which is a
two and a one, meaning two fingers on one hand and
one finger on the other hand pressed up against the
chesq and, 21st Street, being vocalized in a drive-
by.
That to me and Allen seemed so ridiculous,
that people would do that, that it became a hub of
humor between us, and Allen started making the
gesture, the two and the one up against the chest
tirh the fingers, and saying, Zlst Street, because
he was from Los Angeles, and that thing got -- not
carried awav. but it went looper than it should have
,.
EDMAN,
& GILMAN REPORTING, INC. - (8
DEPOSITION OF JAMES WEE1
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in a humorous aspect. We would drive by each other
on the street, and Allen would flash me the two-one
gang member sign, and, of course, we were laughing
as we were doing it. The whole incident was a
humorous aspect that began
with me and Allen.
It even got to one point that Allen had
his wife make up a sweatshirt -- and I still have
that sweatshirt -- which is the symbol of a two and
a one, the lingers, on
the chest of the sweatshirt.
Because we were driving by doing tbis on the street
all the time to each other, Allen Anderson and
myself, his wife, Barbara, made up a T-shirt -- a
sweatshirt and gave it to me for Christmas.
QSo it had a silk screen of the two and one
AYeah. I believe it was --
QWas it stitched or something?
AYeah. It’s in a closet. I haven’t seen
it in awhile, but yeah. It’s the fingers of a
person’s hand in the form of a two and a one on the
chest, and it was given to me for a Christmas gag
gik more or less.
QDo you remember what Christmas it was you
got that?
AI believe it occurred in either probably
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believe I stated that the relationship deteriorated
starting in ‘97, so my best estimate would probably
be ‘96.
QDid this flashing of tbe two-one symbol
carry over to Bill Anderson, the son?
AYes, it did. It was a humorous -- Again,
I can’t emphasize enough. It was a humorous thing,
and even at one point, Troy City Police Officer Pete
Paquet got involved in doing it, and I started doing
it with Pete, and Pete was doing it with me, and so
the humor thing on it continued for quite awhile.
QDo you have any knowledge whatsoever that
William Allen Anderson has ever been a gang member?
ATo my lmowledge there’s been no known
association with any gang affiliation at all.
Q Have you had training on gangs and gang
patterns and that kind of thing?
AI have been through a couple of schools
that I can recall in reference to outlaw motorcycle
gangs and
the street-level inner city gangs, yes.
I’ve been through a couple of schools.
QHave you ever observed William Allen
Anderson exhibiting vocabulary or speech patterns
consisrent with pang behavior?
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6)752-5751/752-3334
Page 21 to Page 2
ANDERSON VS. CITY OF TROY/WALTERS
DEPOSITION OF JAMES SWEET
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AMy professional association with gang
members, meaning the amount that I have dealt with
gang members, has been limited to, I believe, once.
Once in my career that I know of have I actually
dealt with actual known, affiliated gang members, so
my
txperience in that area is extremely naive, I
would guess would be the best
terminolo,~.
Any terminolo~ that Bill used, anything
he said, I would not be able to associate that with
a gang due to my lack of experience. I would have
to say, knowing Bill Anderson, knowing the family,
being around Bill Anderson, seeing how he behaves in
rhe community, my best professional guess would be
that Bill Anderson is not associated with any known
gang. Nor have I seen him display any known gang
qualities, if you might term it that way.
QOther than the two-one symbol that we’ve
just talked about, have you ever seen him use any
other gang symbols or signs that were
known to you
to be gang related?
A I don’t believe I have. I think that one
pretty much took over anything that had occurred as
far as between me and Bill. I don’t
thinkI’ve ever
seen him throw any other gang symbols that I can
recall.
26
Q
What about tatoos? Does he have tatoos,
Bill Bnderson?
A Yes. I’ve seen tatoos on him. He’s shown
them to me. He displays them fairly proud.
Q
Does he have a tatoo that says, Bad Boy,
or something like that?
AI recall something to that effect, but,
again, it wasn’t dramatic enough for me to remember
it.
QDo you have any knowledge whatsoever,
Mr. Sweet, about any damage to
BillAnderson’s
reputation as a result of these alleged statements
made by Mitch Walters?
ANo. I’m not aware of anything that Mitch
Walters has done to damage his reputation.
QHas anyone come up to you,
A No. I’ve never heard anything in
reference to that.
Q Have you observed anything in Bill
.4nderson, in your contact with him, that you would
say might be of consequence to his emotional state
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as a result of alleged statements made by Mitch
Walters?
AWould you repeat that, please?
QSure. In your observations and contact
with Bill Anderson, have you ever seen him exhibit
any outward signs of emotional injury or depression
or anger, anything associated with alleged
statements made by Mitch Walters?
ANo. I don’t believe I have.
QWere you one ofBill Anderson’s car detail
customers?
A No, I wasn’t. One moment. Yes. Bill
Bnderson did detail my patrol car. Yes, I did get
authorization from the sheriffs department, and
Bill Anderson and his sister were doing the detail
business, and I believe, yes, he did detail my
patrol car.
QOn one occasion or more than once?
I believe it was one occasion.
QThe alleged statements by Mitch Walters
that I’ve described to you, which you don’t, I
guess, have personal
lmowledge of, did they
influence in any way whether you provided return
business to the
Anderson5 for car detailing?
A No. The sheriffs oflice authorizes, I
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believe it is, one complete detail per patrol car
per year. William Anderson and his sister were
starting a new business in the area. Being the Troy
resident deputy, I uy to support local businesses.
I approached the sheriffs office, got
permission to have them do the detail. They did the
detail on my patrol car, and before the next year’s
period
rolled around, I believe the business had
dissolved.
That was
the only thing that was any
consideration in me not going back to him for
further detail
workwas, I believe the business had
dissolved at the point I was able to be authorized
again.
MR. MOORE: Mr. Sweet, I believe I’m
done questioning you, but I’m going to take about a
30-second break, and then I’ll be back to tell you
for sure. Fair enough?
THE WITNESS: Fair enough.
(Brief recess.)
MR. MOORE: I don’t have any further
questions.
Bill, fire away.
/l///
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ANDERSON VS. CITY OF TROYN’IALTERSDEPOSITION OF JAMES Sbf.‘EE
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E.XAMINATION
BI- MR. DOUGLAS:
QI’ve got a few,
Can you tell me mhat year it vas that it
appeared to you or you recall that Bill Anderson
moved to Libby -- moved to Troy?
ANo, I cannot say for sure. At one poinr
he was here, and I remember issuing him a traffic
violation for failing to seat belt in a small child.
I wrote him a ticket; He was here for a brief
period of time then, and I believe he’s come and
gone on a couple of different occasions. I don’t
remember what his longest stay here has been.
QAt any rate, at some point in time, he
came here, and he’s been here since?
AApparently so, yes.
QNom, that was after your relationship with
the Anderson family changed; is that right, cooled
somewhat?
ALike I say, I cannot -- I can’t recall the
longest stay that he’s been here. He has come and
gone a couple of times in different
ventores going
off to work or whatever. I can’t remember when he
began his last longest stay here.
QNow, he just was here, and he testified
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that you had your patrol number or your designated
number with the sheriffs office
_I What is your
sheriffs office number?
ACurrently, my badge number is Unit 84,
V-84. That has only been in effect since this
spring. Prior to this spring
my designated badge
number
was X-12.
QOkay. Now, he has flashed you signs; is
that right? In fact, he said
that you guys did your
sign thing just this morning.
AI don’t believe I did it this morning, but
I made contact down there with him in the lobby.
QOkay. He testified that his idea of this
sign is he thinks he’s doing a 12, a one and a two.
Do you know anything about that?
AHe has in the past made reference to that,
yes, beli&ng that that was my badge number, which
It was, but, again, William Anderson wasn’t involved
with the initial beginning of this two-one issue,
Fhich starred with me and Allen.
QSo, basically, what ve have here is that
Allen Anderson starts off doing a thing that’s
definitely a gang-related type of sign, just kidding
around, but
BillSnderson shows up, and he thinks
he’s doing a thing for your badge number, one-two?
30
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I MR. MOORE: Object to the form of the
2question.
3But you can answer it.
4THE WITNESS: .ipparently, he wasn’t
5mare or forgot what it was in reference to,
6because, again, it didn’t start with William
7Anderson, and William Anderson has made statements
8to me in the past that he thought it
was my badge
9
number.
10BY MR. DOUGLAS:
11QNom, have you ever heard the term
12“Gang-Banger” used before this whole thing with the
13Andersons, Bill Anderson and Mitch Walters came to
14 be? Have you ever heard the term “Gang-Banger”?
15 AYes. I recall one specific comment made,
16and it was made by Bill Anderson’s father, Allen, in
17reference to Bill. Allen made a comment to me, and
IS I don’t recall when it was, bur I recall it was in
19their house at their table. I vas over there having
20coffee, and Allen Anderson made a comment to me to
21the effect that--I’m
goiog to quote this -- Bill
22wouldn’t make the pimple on a gang-banger’s ass,
23 unquote.
24I recall that terminology, “Gang-Banger,”
2.5being used by his father, .Illen Anderson, on a
1couple of occasions. That’s the only one that was
2
real specific to me.
3 QDid you ever hear the term “Gang-Banger”
4 employed by anybody other than Allen Anderson in
5
describing gangs or anybody from LA?
6 AI’ve heard gang-banger used, yes. I
;
believe it’s a fairly common terminology.
8 QOkay. That’s what I’m wanting to focus
9on. What does the term “Gang-Banger” utilized in
10thar connection mean?
11 ATo my understanding, the term
12“Gang-Banger” refers to an active member of a Imoan,
13 recognized gang. That’s my understanding of the
14terminolo~ “Gang-Banger,” meaning you’re actively
15involved in a recognized gang.
16 QWhen you say “.I recognized gang,” is this
Iilike the Knights ofColumbus?
18 AWhen I say “Recognized,” I believe I would
19use the definition, recognized and identified by law
20enforcement as a gang.
21 QA gang that engages in criminal activity!
22A Yes.
23 QOkay. So if someone says, You’re a
24gang-banger from LA, or, This person is a
v-j
gang-banger from LA, does that indicate that person
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1is a member of a gang that engages in criminal
”acd>ity
who is recognized and believed by law
3 enforcement officials in the area to be in criminal
iactivity?
5AIt depends on who tells me that. If a
acitizen on the sneet makes that comment to me, I
7
have less inclination to believe the validity of it
8than if it was given to me in an intelligence
a
bulletin from a law enforcement agency or official
IOQ Or if you have a person who is the head
11law enforcement officer of a given law enforcement
1” agency wearing his uniform and badge tell you, So
13 and so is a gang-banger from LA, what effect does
1.lthat have on vou?
15
AAga& it would depend on the
conten of
16the conversation, I suppose, and the nature of the
licircumstances in which it was told to me. If it was
18being relayed to me in a serious safety tyx of
19situation, meaning, Be careful; this guy is a
20gang-banger, I would take it to mean that be would
“1be a recognized member of a known gang. If somebody
22was to make a smart aleck comment, including a law
?3
enforcement officer, that somebody acted or looked
24like or behaved like a gang-banger, again, I
25probably wouldn’t take that as serious. It all
ANDERSON VS. CITY OF TROY/WALTERS
34
Idepends on the nature of the conversation and why it
? was being said to me.
3
4 enforcement officer is stating in a serious way to a
3
citizen of the jurisdiction in which he has
6
authori?;, has this law enforcement authority, So
7and so is a gang-banger from W, that would be
8something to seriously consider on the part of the
9person hearing that?
10MR MOORE: Object to the form of the
11question.
12BY MR DOUGLAS:
13Q You can go ahead and answer that question.
11MR MOORE: Go ahead.
15THE WITNESS: Again, I would have to
16
be a wimess to that comment in order to fairly
17judge it It depends on the natore of the comment
18and the form in which it was given, I suppose.
19BY MR DOUGLAS:
20Q All right. Sow, you became a detective
?Iwirh the sheriff’s office a fairly short time ago?
22A Yes, sir.
!3
QUp to that point in time, you were the
21resident deputy here in Libby -- in Troy? Excuse
25me.
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DEPOSITION OF JAMES SWEET
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A Troy, yes, sir.
Q You’ve been asked by counsel as to whether
Mitch Walters has personally told you that Bill
Anderson is a gang-banger from LA OI anything of
that nature. Do
you recall that?
A Yes, I recall that.
Q Forgetting for the moment any
statementS
made dire&y by Mitch Walters to you that you heard
him say, have you ever beard anything out on the
sneet here in Libby or in Troy, up until the time
sa?ing that Bill Anderson is a gang-banger or a
gang-banger from LA or an LA gang-banger, anything
of that variation?
A Yes, I have heard that.
Q Okay. How much have
you beard that?
AOff and on with my conversations with the
Andersons.
Q Have you heard it from anybody else other
than the
Andersons?
A No, I have nol
Q You haven’t beard any conversation,
running into a bar or other law enforcement officers
or anything, where it’s mentioned that Mitch Walters
36
1is saying that Bill Anderson is a gang-banger from
2LA?
3 A The only time I’ve ever beard that comment
4or those comments being made is coming from the
5 Andersons telling me a complaint that they have, in
6 reference to their complaint
7MR DOUGLAS: Okay. I don’t have any
8 other questions.
9
10EXAMINATION
11BY MR MOORE:
12Q One follow-up.
13 When you came up this morning and saw Bill
14Anderson, did you flash the two-one to him or not?
15A I don’t believe I did.
16MR MOORE: That’s all I have.
17We’ll have him read and sign.
18(Whereupon, the Deposition of
19JAMES ALLEN SWEET was concluded at 1055 a.m., and
10 signature was reserved.)
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ANDERSON VS. CITY OF TROY/WALTERS
DEPOSITION OF JAMES
SWiET
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DEPOSITION OF DAVID COOPE@,
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ANDERSON VS. CITY OF TROY/WALTERS
9
1 QHow does that work nom?
2AKow? Not worth a shit.
3 Q Okay. My question wasn’r clear enough,
4 then, because I need a lit& different answer than
_ that.
iiA okay.
iQWhat are the occasions for you to tow a
8 vehicle? How does that work)
9A Things have changed through his term being
.O here.
.IQ “Him” being Mitch?
.?A Mitch, as being chief ofpolice. They had
.3 at one time made a policy, and we’ve clashed on that
.1policy not being fulfilled as was presented to me.
.5I mean, we’ve had our differences too, if that’s
.6what you’re getting at.
.7Q That’s pan of it. I also warn to
.8understand how it worked. It used to be the case
.9that you’d tow more cars than you tow now; is that
!Olight!
!IA Yes.
!2Q Why?
!3 ABecause I’ve clashed witi him, I feel, in
!4my opinion, if that’s what you’re looking for.
!5That’s what I personaUy
DEPOSITION OF DAVID COOPER
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bones -- I’ve expressed myself to him, council,
everyone.
& What was the policy as pou understood it
for towing?
AThe policy was supposed to be, as I was’
told, that if a vehicle is pulled over, for example,
a
DUI -- since that’s what you brought up, we’ll do
that -- if there’s not a sober, licensed family
member in the vehicle, it was supposed to be towed.
That was not fulfilled in that manner, and to this
day it’s not.
QAnd that’s the
source for your difference
between Mitch and --
A Well, partly. You
lmoa, that’s p&y it.
QWhat’s the other part?
A On a personal level, I don’t like him. I
don’t like his attitude. I don’t like the way he
nms.his police department. These are my opinions.
Q You’re entitled to them.
AI’m sure it’s a mutual feeling.
QSo if I asked you to describe your
relationship with Mitch Walters, what would you tell
me?
AI haven’t spoke to him in over a year that
I’m aware of. I have no intentions on it. I do my
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business professionally. If1 was to go out on a
tow of his, I would nor use my personal feelings to
bad-mouth him, harass him. I would do my job
professionally, as my business. It is my
livelihood. Would I go
ro his house and have a cup
of coffee? No.
QBill Anderson’s complaint against Mitch
Walters and the City
ofTroy identifies certain
instances where Mitch Walters allegedly made
starements about BiU;Inderson. Do you understand
that?
A Yes, I do.
Q
And I’m led to believe that you have
information about one or more instances where
statements
were made. Tell me what you know.
AOn one instance I come in here, and I
don’t remember
exacj; what the
folI story was, what
I was doing here. It was torally unrelated. I
remember that. He
has a catty act at ttying to -
If you say one thing, he’ll try to detour you in a
different direction.
The first time I believe was in May of
‘99. I was having problems with
the towing, and out
of the blue it come out He’d seen me in the yard
with BiU down at his parents’ house.
12
1 Q At Bill’s parents’ house?
2 A At Bill’s parenrs’ house. He was out
3 there. I seen him go by. He slowed down. He knew
1 I was just there. I mean, there was no doubt. The
5 comment come out, you know, I don’t understand what
6 you’re doing hanging witb the likes of a gang-banger
‘7
like Bill.
8 Then I confronted him at that time, Hey,
9
what the hell ate you talking about? It was
that
10kind of a thing. Then it just kind ofgot washed
11 away.
12 That was the first time.
13 QLet me back up on that one just a little
14bit. Give me yourvery best recollection of the
15specific statement that was made.
16
A What the hell are you doing with a --What
1 ithe hell are you doiog
with the likes of a gang-
18banger like Bill?
19QAnd your response was what?
20
AI blew up, you know. He wouldn’t give the
21last name. I’ll give him that. He never did say,
22.tiderson, but he did see me there previous, maybe,
23the best I can remember, 10,l.j minutes before that,
z-1. so-
l-3 QWhat did tbar statement mean to you?
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ANDERSON VS. CITY OF TROY/WALTERS DEPOSITION OF DAVID COO-PER-
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AWelI, it was no secret that he had bad
feehgs
toward Bill. You know, I believe in his
heart he mdy believed he was a gang-banger, you
know.
QWhat’s a gang-banger to you?
ATo me what a gang-banger is is someone
that dresses quite different A IittIe hoodlum
would be my best description.
sot someone I would
care to associate with.
Q Does it imply criminal behavior to you?
A From what I -- My opinion on a
gang-banger,
yes, it would. Someone that’s going to
cause a lot of trouble around town, get into
mischief, thieving. I mean,
these ate my
understandings of what a gang-banger
would he.
Q Have you ever been in law enforcement?
A No, I haven’t
Q That’s just your impression developed from
what?
ATV. I’ve been in LA, been in the big
cities. I’ve spent a lot of time in SeattIe, have
seen a lot of what I would
call gang-related people.
I used to
live 30 miles ftom SeattIe and am well-
aware of gang-related problems.
Q Did you agree with
the statement that
13
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Walrers made to you?
2ADid I agree with it?
3Q Right.
.LA No.
5 QWhat other instances are you awate of that
6Mr. Walters made statements regarding Bii Anderson?
7
AWell, the second time he did not say
8Bill’s name. On another occasion _- I believe it
9was in October of ‘99 -- I had a problem with one of
IOhis officers, and I’d come here to confront him.
11Q The officer or Mitch?
12AConfront Mitch about his officer’s
13behavior, and on that time it was diverted very
14rapidly. He started in on, I still don’t understand
15what you’re doing hanging with the likes that you’re
16hanging with. That time he did not say,
ii Gang-banger.
13I knew instandy what he was talking
19about, who, so I uied to get him to -- who? who
20are you talking about? I blew up at him. It was
21
22
quickI? diverted the other way, once I confronted
him alth, like, who? Who are you talking about?
2.3The name was not actually given, but I
24 know what he was talking about That’s my opinion.
3-j
At that time it was not said, Bill, ot, BilI
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Anderson,
OI an?-tbing to that effect. No name ever
did come up.
Q But that was pour understanding? That was
your belief!
A Fully. Wholeheartedly.
Q
That’s your best recollection of that
convetsa!ion?
AThat’s my best recoIlection.
QAny other instances where he either said
directly to you or within your hearing something
about Bill Anderson?
ANo. Not that I can remember, anyway.
QAny other instances where you were told
about circumstances where Mitch Walters made
statements
concerning BlAnderson?
AAs fat as -- I mean, it was all over town
that he had a boner for
him. I mean, you know how
Troy
rumots are. Maybe you don’t know Troy very
weU As weli as he, me, rumors are going to fly.
I’ve had my share of
rumors too, so--You’ve got to
take a rumor and go maybe one-tenth of it and
ligure -- With most rumors there’s a little rmtb to
them, but everything gets
blowed out --
Qwhat were the mmors you were hearing!
AI really can’t say what they were. I
15
16
1don’t remember them specifically to comment on that
2QWere you telling people about your
3 conversations that you had had
with Mitch Walters?
4AI’d mentioned it to AI Anderson, if
5that’s -- Yeah.
6
Q
7
Other than AI Anderson, do MU recall
telling anybody about these convcrsanons?
8ANot that I can recall. Maybe my wife, you
9 know. I mean, I really don’t remember.
10
QSo, specifically, you don’t have knowledge
11of any other Statements by Mitch Walters other than
12 the ones you’ve told me about?
13
ARumors. Rumors are aU I can say.
14
Q So, No?
15A No.
16QObserving Bill Anderson and based upon
1 iwherever you got your impression of what a gang
18 member is or isn’t, in your view does Mr. Anderson
19
exhibit
any of the characteristics of a gang member
20
ot someone affiliated with gangs?
21
AWell, did he wear funky clothes sometimes?
22 Maybe
bag,ypants or some&g, Iike, you know, a
23 lot of people’s impression, yeah. He’s got tatoos.
24 You know, a lot of gang-bangers you see on
TVwiIl
25 have
tatoos. His, I think _- I believe they say,
j)752-57511752-3334 Page 13 to Page 1
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IMm, Dad, something like that, not some gang emblems
?svmbols and stuff, No! I would not consider him as
3 someone that I would have thought of as a
.Igang-banger.
5QHow about vocabulay or speech patterns?
6Is there annbing about the wav Bii .tiderson
7expresses dimself that would &e you the impression
8that perhaps he had gang affiliation?
9
A No.
10
QHow about the use of gang sybols or
11signs, anything like that?
I?AAre
asking me, have I emr seen him do
13that? Yeah, I’ve seen him do that once.
l-1Q Towborn?
I5ATo bis dad joking around.
16Q What was the nature of the symbol?
liA‘Ihere was a - I don’t remember what the
18Fbols were. I don’t know, but -
19QIt was a hand symbol of some kind?
20A Yeah.
21QSomething performed with the hands?
22AYeah. I don’t remember the ftdl pretense
<
?3 to it. It was a thing betweenJim Sweet and AI
<
!4Anderson, and they were downing around. You know,
<
!5that’s what it was, and I
think they actually did a
*ANDERSON VS. CITY OF TROY/WALTERS DEPOSITION OF DAVID COOPER
1these alleged statements by CltiefWalters?
2AAnytime you’re accused of something, it
3 damages you, you Imow, as meIl as - Like, my
4reputation as a tow rmck, you know, I’ve heard
5statemots - It doesn’t reallr- That’s kind of
6going off the beat. I believe’in my mind, yes.
iQDo you Imow anhody who’s come ttp to you
9or who’s expressed to you.itt words or substance that
9they won’t associate or are going to change their
10association with Bill .+mderson because of these
11 statements?
12AI’m going to say, Yes.
13
Q
that be?
14AWelI, after that point -To the best of
15my memory, aft- that point, if I’m not mistaken, it
16was told to certain officers to stav away from
licertain people, not to associate kit cettain
18people, which would be Mitch Walters. Officer John
19Tbrasba was no longer to come to mine or Andersons’
20residence. So he started picking the personal
21people that he could hang with, who he could
22 associate witb, and to the best of my memory, that’s
23 when it happened is ail right there.
23 QWho what happened?
25A ‘IheirlittIeincidemattbeIGA.
Alot
19
18
1T--shirt as a joldng thing to Jii Sweet. ?hat’s all
21’~ ever heard or seen there.
3
Q On the 18th of July, 1999! there was an
4 argument, apparently, at the IGA imulring Bii
5
.Inderson. Are you aware of that?
6
AYeah I’ve heard of it.
7QWere you involved at all in that
8 circumstance on that night?
9 ANot that I’m aware of.
I.O
QHow did you learn about it!
1.l AI m&fully don’t remember.
12Q Talking to AI Anderson pmbably?
1,3
A
1,A
about it? but who told me or what - ‘Ihe only thing
15
I reaIIy rememba is, it was sometIdog to do with
1,6
mtig an orange ambulance coat that didn’t have
17 emblems of an ambulance 011 it or aqbing, but I do
18 remember that because I’d boughten one just like it.
19 Fmm what I remember of the star); I thought, WelI,
510 shoot. If I wear this one around, what liind of
2!I problems am I going to have too? I’m alreadyhaving
5
I2
problems with
2!3
leave it in the tow truck for accidents.
2‘4 QDo you have any Imowledge, !vlr. Cooper,
‘5 about an)- injuy to Bill Anderson’s reputation from
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of things changed at that point, so -
Q Has anyone actually come up to you,
though, and said, I won’t associate or I’m going to
cbmge my association with Bii Anderson because of
what I’ve heard about
bim that Mitch Walters said?
AThat’s not something I could answer. I
don’t remember any, no.
Q Do you have any knowledge whether or not
these alleged statements by Mitch Walters injured
the business activities or interests of Bii
Anderson!
AI couldn’t answer an that.
Q Have
you observed in Bii Anderson
emotional difficulties or that son of thing
resulting from
these alleged statements?
A I personaJly haven’t.
Q Have these statements damaged your
relationship with Bii Anderson?
A No.
Q That’s a more complex question, isn’t it!
A
Well, it -Yeah I can’t answer it
“tllfuIl~ that that’s all of my tilings. At that
point I &d look at him a little harder and, you
know - to see what kind of things that he does and
says and bis dress, you know.
20
EDMAN, ASA & GILMAN REPORTING, INC. - (8i)752-57511752-3334Page 17 to Page 21
ANDERSON VS. CITY OF TROY/WALTERS
DEPOSITION OF DAVID
COObER.
21
1Q What conclusions did you reach?
9
AWell, my conclusians at that time were,
3Yeah, he wexs
the baggier prpats and clothing of
-!
somebodp that maybe comes from a different area than
5here that mooId not be normal, acceptable clothes,
6you Imow.
him
ia little harder, but I don’t lind him to be any kind
8of a gang-banger.
9QAnd it dido’t change the way you related
10 tohim?
I1A No.
i? Q Do you have
any knowledge whether or not
13these alleged statements by ,Mitch Wakers have
LAdamaged in any way his, “His” meaning Bii
Anderson’s, ability to get employnent?
16AI would not have any clue on that.
IiMR MOORE: Let’s take about a
IS
nvo-second break here, and 111 figure out if I’ve
19got anymore questions. I don’t think I do.
!O(Briefrecess.)
!l MR MOORE: No fortberquestions.
1”I’d
Iike him to read and sign.
!3(Whereupon, the Deposition of
!4DAVID ALEXMDER COOPER was concluded at l9.5 Pm.,
!!Iand signature was reserved.)
22
EDMAN,
ASA & GILMAN REPORTING, INC. - (1j)752-5751/752-3334
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ANDERSON VS. CITY OF TROY/WALTERS DEPOSITION OF BRENNA MEYER
EDMAN, ASA &
GILMAN REPORTING, INC. - (
4
6)752-5751/752-3334Page 1 to Page
DEPOSITION OF BRENNA MEYER
I
EDMAN, ASA &
GILMAN REPORTING, INC. - (8
6)752-57511752-3334 Page 5 to Page
ANDERSON VS. CITY OF TROY/WALTERS DEPOSITION OF BRENNA MEYER
9 11
1 time?
1 A R Place is right down the road. It’s a
2
A %-huh. Went to school.
2fast-food joint.
3Q When was that?
3 QHow would you describe your relationship
4
A I’m not sure. I was gone for about a4with Mitch Walters?
5year.
5
A I considered him a friend at one time.
6QHow would you describe your current6 QIs that no looger
tree?
7
relationship with81 and BarbaraAnderson?
7
A I don’t talkwith him, so --
sA Close friends.8QAoyparticular circumstance that led to a
9QHow would you describe your current
9change in your relationship with him?
10relationship with Bill Anderson!10A No. Not really, no.
11AHe’s one of my best friends.
11 QI understand that you were present at tbe
12 QHas there ever been a time in the past12IGA on July
l&b, 1999 when there was an argument or
13when your relationship with him was different? Were13some kind of conflict between Bill Anderson and
14you ever involved as boyfriend/girlfriend or14people in the store; is that dght?
15anything like that?
15
A Yes.
16A A very long time ago.
16Q Tell me what you remember about that.
17 Q
17A I had just gotten offwork I was just
18A Four years ago.
18visiting with Jackie, and he came in the store, was
19 QBut now you’re best friends?19buying something. I don’t remember what he was
20
A He’s a very close friend.
20buying. She had asked me to ask him where he got
21 QHave you ever worked for the Andersons,
21the jacket that he was wearing just because I was
22been employed by them in any way?
22his friend. So I went and asked him nonchalantly,
23
A No.
23and then those two got in a little bit of an
24
Q Do you socialize
with the Andersons with24 argoment.
25 any kind of frequency?
2.5Q Did you understand why you were asking him
IO12
1
A I keep in contact.
1about tbe jacket?
2Q When you lived here, obviously, you were2 A She is on tbe ambulance in Troy. It was
3
in their home.
3an orange jacket similar to the ambulance jackets,
4 A L%-huh.
4and she, I goess, wanted to know where he’d got it
5
Q Did you eat meals with them and that kindLbeing he’s not on the
6 of thing?
z
Q So you asked him. what did he say to you?
7A Not very often. I was at work a lot.7A He said, It’s my dad’s, or something. I
8QWhere were you workbtg at that time?
8don’t really recall.
9A Libby Care Center.9
Q Was Jackie there at the time that he
10 QWhen you’re back here today, who are you
10answered the question, or did you take the answer
11 staying with?
11back to --
12 A Sharon.
12A No. She was the PK. She was within
13 QWby did you move to Helena
13 hearing distance.
14A That’s where my boyfriend lives.
11Q What’s PIC?
15
Q Your short-term plan, at least, is to stay
15A Person in charge.
16 in Helena?16 QNow, you had worked at the IGA, then?
17 A Yes.
liA Yes.
18 QHow long have you known Mitch Walters!18
Q And at that time what was your capacity at
19
A Three years, four years. I’m not sure.
19 tbeIGA?
20 QWhat was your occasion to meet and get to
20 A I was a cashier.
21 lmowhim?
21 QAnd you were off your shift at this time?
22 A I met him probably a couple times when I
22 A Uh-huh. I’d gotten off at nine.
23 mas working at R Place and after when I was working23 Q
How soon after nine did tbis happen?
24 at IGA.
21 A It was awhile. Jackie and I were best
25 Q What’s R Place?25friends, also, and we were just visiting.
EDMAN, ASA & GILMAN REPORTING, INC. - (406)752-5751/752-3334
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ANDERSON VS. CITY OF TROY/WALTERS
13
1 QSo you asked Bill Anderson a question
2about the jacket. Jackie heard it. What happened
3
after that?
iAI don’t really remember. It’s awhile ago.
ii
I know they had gotten in a litde bit of an
argument about it. I don’t really -
7
QWere you standing there the entire time?
8
A Uh-huh. Yes.
9QYou don’t have a specific recollection,
LOthough, of the exchange between them?
11ANo. I mean, he had gotten upset that she
12had asked where he had gotten rhe jacket. She said,
L3 I have a right to know. I don’t really remember.
l-4
QDid voices get raised?
13AYes. They both had theirvoices raised.
16Q Could you tell from your observation that
Litheywere becoming emotional in terms of the
18discussion theywere having, orwas it just a
19regular old talk’
20ANo. I mean, it was a heated discussion,
!I yes. They were probably both emotional. She was
12seven months pregnant or so.
Were they yelling at one another,
24 screaming at one another?
5 ANo. Their voices wvere raised, but I
14
1
wouldn’t say they were yelling.
2QWere obscenities being used in the
3
discussion?
4A Yes.
5QBoth sides or primarily from one?
6 AShe may have. I’m not sure. I know he
/had said probably the F word, but I’m not sure.
8Q Were you observing this the whole time?
9A Yeah. I was there.
10
QHow far away would you say you were from
I1the two of them?
A Ten feet max.
.3 QWas your attention directed at the two of
.4 them?
5AYeah. They were the only ones in the
L6store, beside the other checker.
.7QSo they got in this argument where voices
.8 were raised. What happened after that?
19AShe asked him to leave, and he left, had
10mumbled something under his breath. I don’t know
!1what he said. She didn’t know what he said. She
9
went out after him and said, Don’t come back
!3 leou’re not allowed in here anymore. tier
?1
left and came back, or she came back inside. She
5ms upset. He was upset.
EDMAN, ASA & GILMAN REPORTING, INC. -(a
DEPOSITION OF BRENNA MEYER
15
1 QHow long did you stay, then, at the IGd
2 after he left?
3 AI was there until after the
poiice had
4 left, at least.
5QSo you stayed there, and then Barbara and
6 Al Anderson arrived?
7AYeah. They were both -- I was there when
8 they were both there.
9QDid the police officers arrive before
10 Barbara and Al Anderson?
11
AYes. They came in after.
12Q Who arrived?
13
AIt was Mitch or John, one of the two. I
14 don’t really remember who it was.
15QAnyone from the sheriff’s department?
16AJim Sweet. Maybe Jim Sweet showed up too.
17 I don’t remember. I don’t remember who all was
18
there.
19QWere you in the store when Barbara and Al
20 Anderson were in the store?
21
A Yes.
22 QDid you hear discussions between the
23 people who were present?
24ANo. They stepped off and were talking
25 inside the courtesy -- close to the courtesy booth.
16
1
QWere they just talking, or were they
2yelling at one another?
3
A No. I didn’t hear them yelling. They
4 seemed like they were talking. I couldn’t hear what
i
they were saying, so --
QThen what happened after that?
7AAl and Barb left. The officers left. I
8 stayed and talked with Jackie for a few minutes, and
9 then I went home.
10QDid you talk to any police officers that
11 night after Al and Barbara left?
12AI probably talked to the officer that was
13 there, you know, just asking me if I knew what
14 happened, but I don’t rememberwho I had talked to.
15QDid you prepare a complaint or sign a
16 complaint associated with the events that night?
17AYeah. Jackie had written up a thing, and
18 she had asked both Barb and I to sign it.
19
QAnd did you sign it?
20
AI’m pretty sure, yeah, I signed it.
21
QWhat was your understanding ofwhat this
22 particular thing was?
23 AThat? Mitch had asked Jackie to make a
24 statement, and then we had a meeting at the store
25 between Jackie, I, you know, Al Stein, the manager,
6)752-57511752-3334Page 13 to Page 11
ANDERSON VS. CITY OF TROYiWALTERS
17
1 Bill and Al, and we decided, you know, this was not
2
a big deal. We’re not going to -- It’s petty.
3 We’re not going to botherwith it.
4
As far as I knew, Jackie had desrroyed it
5because we decided this was not something we wanted
6to go forth with.
7 QWere you told by anyone in the management
8or ownership of the
IGA that you shouldn’t pursue
9it?
10A No. I was never told that. Jackie --
11They said it could be a conflict of interest for
12Jackie if she had gone along with it. They
13didn’t want -- Because they didn’t want Stein’s -
11They didn’t want the IGA to be brought inro it.
15They didn’t do anything with me because I wasn’t on
16 shift.
IiQDid you read this document, whatever it
18was, before you signed it?
19A I probably just skimmed over it. I
20pmbably didn’t pav too much attention to it.
?I
Jaclde is my best &end, so I tigured she would not
22have written something that wasn’t rme.
23 QWhat did you understand your signamre was
24
doing? Why would you sign that document?
5
AJust because I was a witness to what
18
1
happened, also, with Barb. She was there too, Barb
2Pence, another cashier that was working that night.
3 Q Did you understand that signing the
4document meant that you would intend to pursue a
5complaint involving these events?
6 A
i
something that was going to be put on file -- I
8
don’t lmow -- in case something was brought up about
9
it but it was just kind of so that whoever knew
10what had happened that night.
11Q So why would you need to throw it away?
12AJaclde had it. I never had it. She kept
13 it with her. I don’t know what she did with it.
1-iQAt the time this incident occurred at the
151G.L in July of ‘99, were you living with the
L6Andersons at that time?
1;
A No.
18 QWere you living with Bill Anderson at that
19 time?
20A No.
!IQ Where were you living?
22A I was living in Libby. I bad a small
!3 house in Libby.
?AQYou do or your family does?
I5AMy family does. It’s l&d of off from
EDMAN, ASA & GILMAN REPORTING, INC. - (,
DEPOSITION OF
BRENNA~MEYER
19
1their house.
2
QExplain to me again why nothing ever came
3
of it. There was a meeting?
4 A We had a meeting at the IGA between
the
5
four of us that were there, the owner of the IGA and
6the manager of the IGA, kind of just to go over what
7
had happened, that, you know -- We apologized --
8They made--wanted Jackie to apologize to Bill
9for -- You know, she had gone a little overboard,
10and he apologized to her because he had gotten a
11little heated also, and that was supposedly supposed
12to be the end of it.
13 QNow, when you sav Jackie had a conflict of
14interest because the IGA m;ght be brought into it,
15what was that all about?
16
A
17was in charge that evening that that happened.
18 QWas there a concern that there might be a
19
lawsuit or claim against the IGA?
20A I’m not sure. I don’t think that that was
21
what--They just didn’t want the IGA to be brought
22into anything. They were just watching their own
23 back, I guess.
24 Q Did anybody say that the IGA would be
25brought into it?
20
1A No. I’ve never heard that, no.
2 Q So you stayed even after the police left
3 and AI and Barbara Anderson left? 4 A Yes.
5Q And you spoke to Jackie about it?
6
A Yeah. She was, you know, upset. She was
7
pregnant. She’s one of my best friends, so I was
8 just kind of there as a friend.
9Q Did she ever express to you that she felt
10threatened in this confrontation with BiIl Anderson?
11
A She thought that she had felt threatened,
12but I didn’t see how she
was threatened. I mean, he
13was a lot farther away -- I was in between the two
14of them when they were conversing with each other.
15
Q But she did tell you that she had felt
16 threatened?
17A She had felt uncomfortable with the whole
18situation, yeah. I don’t know about threatened, but
19she was uncomfortable with the whole situation.
20 QYou’ve known Bill Anderson, then, for a
21period of years?
22 A Yes.
23
Q Have you ever observed any conduct of his
24that you would characterize as consistent with gang
25member behavior or anything like that?
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Page 17 to Page 2
ANDERSON VS. CITY OF TROYNVALTERS
21
I
A No.
2QHas he ever told you that he was a member
3of a gang?
4
A No.
5QDoes he wear clothes consistent with gang
6 member clothing?
7
A I don’t really know how gang members
8
dress, so I wouldn’t know if that’s how he dresses,
9but my boyfriend dresses with the same kind of
10clothes, so I don’t see the problem with it.
11QHow about tatoos? Do you know that Bill
12Anderson has tatoos?
AYes, I know he has tatoos, his mom.and
14dad’s name, his son’s name and the mother of his
I5son’s name and his grandma. His grandma’s dead. A
16 memorial.
liQHave you ever seen him use gang symbols or
18 signs?
19AHe does -- Him and Jim Sweet and his dad
20joke around sometimes, but other than that, no.
21QDo you have any knowledge of any damage to
22
Bill Anderson’s reputation from statements made
23 about him?
24AYes. I mean, he was trying to start a
25 detailing business, and he, you know, lost a cou@le
22
1customers because of that.
2QWhich customers did he lose?
3
A He was doing--washing - Washing.
4 Detailing Gwen from the
drug store’s vehicle, and
5when all of this stuff come about, she kind of
6tapered down. I don’t !mow what the other ones
7w-m. I didn’t really keep up on that.
8
QAny other knowledge of damage to his
9reputation or business interests from alleged
10statemen= made about him?
11AHe’s probably lost a few friends. I don’t
12 really pay too much attention. I kind of stick to
13 myself.
14& Do you have any specific knowledge of
15people who have said, Hey, I’m not going to
16associate or I’m going to change my association with
IiBill Anderson because ofstatements made about him?
18AI’m not sure. I don’t really talk to a
19lot of people or do -- I poetry much work, and
20 that’s about it.
QSo you wouldn’t Imow?
22
A I wouldn’t know.
23QHow about any observation on your part of
24
any emotional difficulties or mental stress from
25
alleged statements made about him?
EDMAN, ASA & GILMAN REPORTING, INC. - (1
DEPOSITION OF BRENNA MEYER
.23
1AWell, it upsets him. I know that it
2upsers him because people think less of him because
3of stuff people say, which would probably do
4 emotional damage to anybody.
ii
Q Have you actua& observed that in him?
A
Yeah. I bow it upsets him when people
idon’t -- He likes people. He likes people to like
8him, and it would - It upsets him that some people
9 would hold something against him.
10
QCan you give me any specific examples of
11 that?
12
AI would have no idea.
13
QNow, were you ever present when Mitch
14 Walters made statemems about Bill Anderson?
15A Yes.
16QI need to know about all of them.
Tell me
li about-
I8AOn several occasions. He’s always made it
19 known that he does not like Bill. I mean, he would
20 be in the parking lot when I got off work from the
21IG& come in the IGA. He would never say it when he
22 was in the
IGA, but he jusr has always made it known
23 that he does not like
Bill.
24QWhat has he said that has led you to that
25 belief?
24
1AWell, in an instance he said that he was
2 just a gang-banger from California who didn’t belong
3 in a town like Troy.
4
Can you tell me as closely as possible
i
when that occurred?
ANo. I would have no idea when he said
7 that. I don’t keep track of dates.
8QWas it after this incident at the IGA?
9AIt could have been before. It could have
10
been afier. I’m not sure.
!lQIs that your best recollection of the
12 statement he made?
13
AYeah. I mean, this is stuff that happened
14 two years ago, so --
15QBut I need to koonvour best recollection.
16ATo my best recollechon I’m not sure the
17 exact dates
ofwhen he said that.
18
QMy question is, is that your best
19recollection of what he said?
20
A Yes.
21QWhat does gang-bqer mean to you?
22
ATo me that would just mean someone who is
23 a thug, who hangs with other people that are in a
24
gang.
2.5QWhen these statements were made to you,
j)752-57511752-3334
Page 21 to Page 2
ANDERSON VS. CITY OF TROY/WALTERS
25
1did you believe them to be true?
2AWhen he said that Bill was a gang-banger?
3 Q Right.
4A
No, I did not believe those to be rme.
5Q You knew different?
6A I knew different.
Q What effect did these statements have on
8 you?
9
A
I mean, Mitch was my friend at the time,
10you know, and Bill was my friend. It’s kind of hard
11when you have two
ofyour friends that don’t like
12 each other.
13QBut did you believe as a result of Mitch
11 Walters’ statements that Bill Anderson was a
15 gang-banger?
16
A No. I hew he wasn’t. It didn’t matter
17 what he said. I knew different.
18
QDid any statements by Mitch Walters change
19 in any way the way you related to Bill Anderson?
20
AI don’t understand what you’re uying to
21 say there.
22
Q
Did the statements that Mitch Walters made
23 concerning Bill Anderson change your view of Bill
2.5relationship with him?
26
1A No.
2QAny other specific statements that you can
3 tell me about that Mitch Walters made about Bill
4 Anderson other than the one you’ve already told me
5 about?
6 ANo. I just -- He just was always - made
7it clear that he did not like Bill, that I could do
8 better than hang out with him.
9Q
What did you respond to Mitch Walters when
10 he made these statements? What was your response?
11
AOh, I don’t know. It could have been, Oh,
12 I don’t know him like that. I don’t know where he’d
13
get the statement that Bill is a gang-banger in the
14first place, but --
15QBefore Mitch Walters used that word, had
16 you ever heard the word “Gang-Banger”?
liA
No. Probably on TV, but other than that,
18 not someone using it in a sentence, no.
19QDid you have any concept in your own mind
20
ofwhat a gang-banger was when you first heard it
21 from Mitch Walters?
22 ALike I said, just someone who was
23 thuggish, you know, hangs out with people in a gang,
2-1you know.
25 QJust so I’m clear, because this is my
EDMAN, ASA &
GILMAN REPORTING, INC. - (,
DEPOSITION OF BRENNA MEYER
27
1chance to talk to you about it, you don’t have any
2
other statements in mind that Mitch Walters made
3 about BilI Anderson that you can recall?
4 ANot that I recall now, no.
5Q Anything that I could tell you or anything
6you can think about that might help you recall any
7 other statements, or do you think that’s the only
8 one that you can remember?
9
AI can’t remember exact conversations we
10
11sure. There could have been others. I just don’t
12 recall any right now, you know.
13QDid you ever tell Mitch Walters that you
14
intended to pm-sue a complaint against Bill Anderson
15 as a result ofwhat happened at the IGA on
16
July 18th, 1999?
17A I think that Jackie, him and I had
18discussed something about that, and then after
19Jackie and I had had the meeting at the IGA with
20 those guys, Jackie and I decided that this is
21 something we were not going to pursue, filing a
22 complaint. We did not feel it was necessary.
23 Q But, initially --
24 AAfter it first happened, yes, Mitch had
25
thought we should file a complaint. Jaclde wrote up
28
1
2 Q And you were initially in agreement with
3 that?
4 A With that, but then we had the meeting at
5 the store, and we had decided, This is not something
6 that was a big deal. Everything had been resolved.
7Everybody had apologized. There was no sense in
8 pursuing it.
9QSo you changed your mind, and as far as
10 you knew, the thing you signed was destroyed?
11
A Yeah. I mean, she had it at her house.
12 She said she lost it. She couldn’t find it, to my
13 knowledge. I don’t know what she did with it.
14
QYou don’t have a copy of it?
15 ANo, I don’t have a copy of it.
16Q Or the original?
17
ANo. I never had a copy of it. We did it
18 on her computer at her house.
19
QWhen did you do it on the computer at her
20 house?
21
A
thinkwe did it the next day.
22
QSo at least as of the next day, you were
23 still in the process of preparing a complaint
24 against BiLlAnderson?
2.5 AMirth thought we should file a
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Page 25 to Page 2
ANDERSON VS. CITY OF TROY/WALTERS
DEPOSITION OF BRENNA MEYER
29
I
complaint -- that she should file a complaint
2
against him and that I should be a witness to her
3
complaint, along with the other checker that worked
4
there.
;
Q I assume you
vrere not on work time when
you were at her house; is that right?
7A Yeah, obviously.
sQ The following day. Was it day, night,
9
morning, evening? Do you know?
10
A
It could have been any time. I baby-sat
11
her kids an awful lot, so it could have been any
12
time.
13
QIt wasn’t a handwritten thing? It was
L-ltyped on a keyboard?
15
16
Q How long was it?
17 AA paragraph maybe. I’m not sure.
1s
QAnd that’s the piece ofpaperyou’re
19
talking about that you signed and Barbara Pence --
10 A
Uh-huh. The other cashier ~- The cashier
!I
that was working that night.
22 Q And you? I’m sorry. And Jackie?
23
A And Jackie.
l-1.
QThat all three of you signed?
2.5A Ub-huh.
30
1
MR. MOORE: Okay. Let’s take a quick
2
break, and I think we’re done.
3
BY MR
$ygw
4 I.‘
5
QMs. Meye:, do you know of any other
6
circumstances where the Andersons’have had
7
difficulties with Mitch Walters other than this
8
9
about Bill Anderson?
10A To my knowledge I don’t know. I don’t
Ll really dabble in their personal business.
12
Q What’s your understanding of the
13relationship between the Andersons and Mitch
14 Walters?
1.5AI know that he does not like them, and
16they just don’t really have it for him either, I
17
guess. I don’t really know. They are friends, but
IS
that’s their persona1 business. This has nothing to
do with me.
20MR. MOORE: Okay. I have no further
21 questions.
22 MR. DOUGLAS: I’ll reserve.
23 (Whereupon, the Deposition of
24BRENNA MEYER was concluded at 203 pm., and
25signature was reserved.)
HEDMAN, ASA
& GILMAN REPORTING, INC. - (
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