PAX Centurion - Spring 2019

Page 40 • PAX CENTURION • Spring 2019 617-989-BPPA (2772) Legal Notes: Jennifer Rubin, Esq. Decker & Rubin, P.C., Counsel to Members of the Boston Police Patrolmen’s Association Lexington officer sues driver who filed false complaint and lied about distracted driving citation… and wins! P AX Editor Jim Carnell alerted me to a Boston Globe article recently with the headline “Jury awards Lexington police officer $500,000 in defamation suit.” Not something you see every day so I decided to look into the case, and see what could be learned. While working a traffic detail in 2014, Officer John Frissore issued a distracted driving citation to Curtis Schondelmeyer, who was driving a black SUV, because, according to Officer Frissore, he sawMr. Schondelmeyer reach out with his cellphone while driving to take a picture. Officer Frissore asserted that there were no passengers in the car with Mr. Schondelmeyer. So, a simple case of getting a distracted driving ticket – using your cellphone while driving. We’ve all done it, this time Mr. Schondelmeyer got caught. What would I have done? I would have just paid the ticket. What does Mr. Schondelmeyer do, according to a jury? He makes up a story about how he was a passenger who took a picture of Officer Frissore using his cell phone “because he believed it was unsafe for the plaintiff to be using his cell phone while also directing the traffic during the evening rush hour.” 1 Mr. Schondelmeyer asserts that he then made a complaint to the Lexington Police Department about Officer Frissore, and that Officer Frissore issued him a distracted driving citation as retaliation. Mr. Schondelmeyer does not stop at filing a tab against Officer Frissore. He prepares an affidavit that Scott Russian signs stating that Mr. Russian was the driver and that Mr. Schondelmeyer was a passenger when he took the picture of Officer Frissore. He submits this affidavit to court in order to get out of the districted driving citation. He gets out of the ticket (based on the false affidavit). But he doesn’t stop there! He then submits the affidavit and gives interviews to Fox25 about the incident! Fox25 then does two news stories about the whole incident. Meanwhile, Officer Frissore is understandably upset to see news reports depicting him as an officer that issues false and retaliatory motor vehicle citations. So he hires an attorney to bring a defamation against these two individuals. And he wins! In Massachusetts, defamation is a term for a legal claim arising from harm to a person’s reputation, which is caused by a false statement of fact communicated to a third-party without privilege. Defamation includes both slander (oral defamation) and libel (written defamation). Courts have determined that defamation “is the publication of material…which ridicules or treats the plaintiff with contempt.” 2 Here are the six statements the jury found were false and defamatory that they made on a Fox25 News broadcast: “I drive this route every day and this particular officer is on his cell phone typically every day.” “I wasn’t driving…so clearly you [John Frissore] were so distracted on the cell phone that you couldn’t catch what was going on.” In response to a question whether Schondelmeyer thought he received the citation in retaliation: “Absolutely, There is no doubt in my mind.” “He did not notice somebody else was in the car with me, because he was on the cell phone.” “My partner was driving.” This statement was by Mr. Russian (as opposed to the five above, which were by Mr. Schondelmeyer) “[During the pertinent time]…I drove our 2013 Range Rover….” Having found that Schondelmeyer and Russian defamed Officer Frissone, the jury went on to award him $500,000 ($400,000 for the statements made by defendant Schondelmeyer and $100,000 for the statement made by defendant Russian) in damages to compensate him for the damages to his reputation, including emotional distress and humiliation. Because Officer Frissore filed his suit in 2014, the total award will end up being over $750,000 including interest. The jury came down with this verdict despite the defendants’ efforts to sling mud at Officer Frissore by bringing up what I believe are irrelevant and potentially baseless complaints that Officer Frissore had been subject to over his career. Specifically, the defendants alleged that Officer Frissore “had been the subject of numerous complaints by the public concerning his demeanor and lack of professionalism,” and that in 2015 he “was disciplined for preparing a report concerning a motor vehicle accident…that contained statements that were virtually impossible to reconcile with the facts and, if not intentionally untruthful, were at least grossly inaccurate under the circumstances.” 3 I credit the jury for seeing through the defendants’ ruse, and I commend Officer Frissore for fighting for over four years. I hope this case will be widely known, and will make people think twice before making false statements about a police officer – that it is not okay, and that there are consequences. Lying about what a police officer does or says and then broadcasting it has real repercussions – for that officer, his family, and as this case shows, for the individuals that made those false statements. I hope none of you reading this ever have to endure what Officer Frissore did. You can also listen to me talking about this case and my thoughts about it on the Decker & Rubin podcast at www.deckerrubin.com . As always, feel free to stop in and say hello and ask whatever is on your mind. 1 From the “Defendant’ Statement of the Case” in the Joint Pretrial Memorandum of Case. 2 Correllas v. Viveiros , 410 Mass. 314 (1991).