Carolyn J. Kenney v. Scripps Howard ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-2856
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Carolyn Kenney, *
*
Appellant *
*
* Appeal from the United States
v. * District Court for the
* Western District of Missouri
Scripps Howard Broadcasting *
Company, d/b/a KSHB-TV41, *
*
Appellee *
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Submitted : May 17, 2001
Filed: August 3, 2001
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Before WOLLMAN, Chief Judge, HANSEN, Circuit Judge, and BARNES,1
District Judge
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1
The Honorable Harry F. Barnes, United States District Judge for the Western District
of Arkansas, sitting by designation.
BARNES, District Judge.
Appellant appeals the district court’s2 grant of Defendant’s motion for
summary judgment on her claim of defamation. We affirm the district court’s
decision based solely on the Missouri fair report privilege.
I.
Appellant is the grandmother of minor Lauren Kenney and the mother of Chris
Kenney, Lauren’s father. Chris Kenney and Lauren’s mother, Angela Miles, had never
been married and had never sought a custody order regarding Lauren. In an effort to
keep his daughter Lauren in Missouri over Labor Day weekend, until a custody hearing
would be held on the following Tuesday, Chris Kenney and Appellant took Lauren to
a Missouri resort area. Meanwhile, Lauren’s mother, Angela Miles, planned to take
Lauren to Georgia for an indefinite period of time. When Appellant and Chris Kenney
did not return Lauren during the weekend, Angela Miles reported the child missing or
kidnaped. The Kansas City Police Department issued a pick-up order for area law
enforcement units and a missing person report, which indicated that the child was
thought to be kidnaped by a parent or relative and was last seen with Appellant.
Officers in the Kansas City Police Department also completed an Investigative Report,
which stated that Chris Kenney told Miles that he had Lauren and would return her at
the custody hearing, but would not disclose their location.
Ms. Miles brought the situation to the attention of a Scripps-Howard affiliate,
KSHB-TV41 in Kansas City. After reviewing copies of the police records provided
by Miles, the station broadcast this report: “Police are on the lookout for a 16 month-
old girl who may have been abducted by a parent or relative. Sixteen-month-old
Lauren Kenney is pictured here with her mother. The child was last seen Friday
2
The Honorable Sarah W. Hays, United States Magistrate Judge for the Western
District of Missouri, sitting with the consent of the parties pursuant to 28 U.S.C. §
636(c).
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afternoon when she left her house with her paternal grandmother Carolyn Kenney.
Family members believe the girl’s father and grandmother are now with her at an
unknown location.” Defendant also broadcast a photo of Appellant during this
narrative.
Appellant sued Scripps-Howard Broadcasting Company and KSHB-TV41 for
defamation. The district court granted Defendant’s motion for summary judgment and
held that the broadcast was substantially true and not defamatory, and that the
broadcast was also protected by the Missouri fair report privilege.
II.
Reports of legislative, judicial or executive proceedings and the statements made
therein, are subject to a qualified privilege. Spradlin's Market, Inc. v. Springfield
Newspapers, Inc., 398 S.W.2d 859, 864 (Mo.1966). The fair report privilege, adopted
by the Missouri Court of Appeals in Shafer v. Lamar Publishing Co., 621 S.W.2d 709,
711 (Mo.App.1981), is set out in Restatement (Second) of Torts § 611 (1976): “The
publication of defamatory matter concerning another in a report of an official action or
proceeding or of a meeting open to the public that deals with a matter of public concern
is privileged if the report is accurate and complete or a fair abridgment of the
occurrences reported.” The question of the existence of a qualified privilege is a
question of law for the court and is particularly appropriate for resolution on a motion
for summary judgment. Erickson v. Pulitzer Pub. Co., 797 S.W.2d 853, 857 (Mo.App.
1990).
This privilege can only be overcome if the matters published were not a "fair and
accurate" report or abridgement of such proceedings. Shafer v. Lamar Publishing Co.,
621 S.W.2d 709, 713 (Mo.App.1981). The privilege is limited to those matters of
public concern which are stated in a report of an official action or proceeding or a
meeting open to the public. Englezos v. The Newspress and Gazette Company, 980
S.W.2d 25, 32 (Mo.App.1998). The Missouri Court of Appeals has held that police
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reports are reports of an official action subject to the fair report privilege. Erickson v.
Pulitzer Publ'g Co., 797 S.W.2d 853, 857 (Mo.App.1990); Biermann v. Pulitzer Publ'g
Co., 627 S.W.2d 87,88 (Mo.App.1981).
Noting that the welfare and possible abduction of a child is a matter of public
interest, we must decide whether the broadcast at issue was a fair and accurate report
of the police reports produced by the Kansas City Police Department. The pick-up
order and missing person report support Defendant’s statement that “police are on the
lookout” for Lauren. A box was checked on the missing person report which indicated
that police believe that she may have been abducted by a parent or relative. The notes
section of the Investigation Report explains that Lauren was last seen with Appellant
and that Miles believed she was with Appellant and Chris Kenney at an unknown
location. We find that the broadcast was at least a fair abridgement of the information
contained in the official police documents produced regarding Lauren Kenney.
Therefore, Defendant’s broadcast is shielded by the fair report privilege adopted by the
state courts of Missouri. We affirm the district court’s grant of summary in favor of the
Defendant on this basis without reaching the substantive defamation arguments.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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