Chesters contends that he is entitled to a qualified privilege for his statement and that Robert has failed to allege the malicious conduct that is necessary to overcome that privilege. (Motion para. 8.)
A statement involving the imputation of a criminal offense is actionable as defamation per se. See Ely v. National Super Markets, Inc., 149 Ill. App. 3d 752, 102 Ill. Dec. 498, 505, 500 N.E.2d 120, 127 (4th Dist. 1986); see also Babb v. Minder, 806 F.2d 749, 757 (7th Cir. 1986). In the case of statements actionable per se, a plaintiff is not required either to plead or to prove malice or special damages. Ely, 102 Ill. Dec. at 505, 500 N.E.2d at 127. To constitute defamation per se under Illinois law, the crime imputed to the plaintiff "must be an indictable one, involving moral turpitude and punishable by death or by imprisonment otherwise than in lieu of a fine." Id. Chesters does not suggest that possession of a stolen video card fails to satisfy any of these elements. Instead, he contends only that the statement does not impute the commission of a crime because Chesters did not accuse Robert of stealing the card or of possessing stolen property. The Court cannot agree with this interpretation of the alleged statement.
The Illinois Supreme Court has held that in defamation cases, "a written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning." Chapski v. Copley Press, 92 Ill. 2d 344, 65 Ill. Dec. 884, 888, 442 N.E.2d 195, 199 (1982). The allegedly defamatory statement is not to be considered in isolation; instead, "'the surrounding circumstances and the events that led to the utterance should be examined very closely and the words judged accordingly.'" Babb, 806 F.2d at 757 (quoting Cantrell v. American Broadcasting Cos., 529 F. Supp. 746, 752 (N.D. Ill. 1981)). Moreover, to constitute defamation per se, a statement which imputes the commission of a crime "'need not state the commission of a crime in terms of art or with the particularity of an indictment.'" Babb, 806 F.2d at 758 (quoting Zeinfeld v. Hayes Freight Lines, Inc., 41 Ill. 2d 345, 243 N.E.2d 217, 220 (1968)). Interpreting Chesters' statement in light of these principles, the Court concludes that a crime was in fact imputed to Robert and that, therefore, the statement is actionable as defamation per se. The Court further concludes that the statement is not subject to an "innocent construction." (See Defendants' Mem. at 7-8.)
In addressing the innocent-construction rule in Chapski, the Illinois Supreme Court stated that if, construed pursuant to its natural and obvious meaning, a statement "may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se." 149 Ill. App. 3d at 762, 102 Ill. Dec. at 888, 500 N.E.2d at 199; see also Scheidler v. National Organization for Women, Inc., 739 F. Supp. 1210, 1218 (N.D. Ill. 1990) (Plunkett, J.). Chesters' statement is not reasonably subject to an innocent construction. When a police officer telephones a video store and tells an employee that an individual is in possession of a stolen video card from that store, the natural and obvious meaning of that statement is that the person possessing the stolen card has committed a crime. No reasonable innocent interpretation is possible. Moreover, the alleged statement also cannot be interpreted to refer to someone other than Robert, because the complaint alleges that Chesters identified Robert Weber by name. (Complaint, Count VI, para. 18.) However, Chesters argues that the innocent-construction rule still should apply because St. George knew the statement was false. According to Chesters, when "one makes a statement to a person that the person knows to be false, the statement is, a fortiori, innocently construed." (Defendants' Mem. at 7.)
The Chapski decision specifically refutes Chesters' argument, however. There, the Illinois Supreme Court held that, although the initial innocent construction question is one for the court, "whether the publication was in fact understood to be defamatory . . . is a question for the jury." 149 Ill. App. 3d at 762, 102 Ill. Dec. at 888, 500 N.E.2d at 199. The Court, therefore, cannot hold as a matter of law that the statement, in fact, was innocently construed.
Having failed on his innocent construction argument, Chesters next contends that he is entitled to a qualified privilege for statements made in the course of a criminal investigation. Under Illinois law, the elements of a qualified privilege are "(1) good faith by the defendant; (2) an interest or duty to be upheld; (3) a statement limited in its scope to that purpose; (4) a proper occasion; and (5) publication in a proper manner and to proper parties only." Babb, 806 F.2d at 753; see also Heying v. Simonaitis, 126 Ill. App. 3d 157, 81 Ill. Dec. 335, 341, 466 N.E.2d 1137, 1143 (1st Dist. 1984); Fascian v. Bratz, 96 Ill. App. 3d 367, 51 Ill. Dec. 901, 903, 421 N.E.2d 409, 411 (3d Dist. 1981); Judge v. Rockford Memorial Hospital, 17 Ill. App. 2d 365, 377, 150 N.E.2d 202, 207 (2d Dist. 1958). Robert contests the existence of a qualified privilege here. The Court need not resolve the privilege question at this stage, however, because any such privilege would be lost if Chesters abused the privilege which the law may afford him. Such abuse can be established by a showing that the defendant made the allegedly defamatory statement with actual malice. See Babb, 806 F.2d at 753, 754; Fascian, 96 Ill. App. 3d 367, 51 Ill. Dec. at 903, 421 N.E.2d at 411. The abuse of privilege question is one of fact. Babb, 806 F.2d at 753. In the complaint, Robert alleges that Chesters "acted with deliberate intention to harm" him when he called Blockbuster and made the allegedly defamatory statement. (Complaint, Count VI, para. 20.) This allegation, in conjunction with the circumstances in which the statement is alleged to have been made, sufficiently alleges the malice element that would negate any claim of qualified privilege.
As a result, Chesters is not entitled to a qualified privilege as a matter of law, and his motion to dismiss Count VI, therefore, must be denied.
C. MUNICIPAL AND SUPERVISORY LIABILITY UNDER SECTION 1983.
1. Counts VIII & XIV -- Municipal Liability.
The Village moves to dismiss the claims against it on the ground that plaintiffs have failed to sufficiently allege the existence of a municipal policy, custom, or practice that proximately caused the constitutional violation alleged herein. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); Hossman v. Blunk, 784 F.2d 793, 796 (7th Cir. 1986); Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985); McLin v. City of Chicago, 742 F. Supp. 994 (N.D. Ill. 1990) (Rovner, J.). In contending that they have sufficiently alleged a municipal policy, plaintiffs rely on the following allegation in their complaint:
The Defendant, VILLAGE, by and through it's agents, Defendant, ALTERGOT and OTHER UNKNOWN POLICE CHIEFS, failed to properly train Defendant CHESTERS and Defendants OTHER UNKNOWN OFFICERS, amounting to a deliberate indifference to the rights of persons with whom the Defendants came into contact with, including the plaintiff, ROBERT M. WEBER.
(Complaint, Count VIII, para. 32; Count XIV, para. 31.) This boilerplate allegation is insufficient to state a claim for municipal liability.
To state a claim against a municipality based upon a "policy" allegation, plaintiffs must allege specific facts in support of the allegation:
To allow otherwise would be tantamount to allowing suit to be filed on a respondeat superior basis. Plaintiffs could file claims whenever a police officer abused them, add Monell boilerplate allegations, and proceed to discovery in the hope of turning up some evidence to support the 'claims' made.