Ex-Officer Has Right to Sue Author, Court Rules

SAN FRANCISCO — The state Supreme Court refused Wednesday to overturn a lower court’s ruling that allows a former San Diego police officer to bring to trial a libel suit over the way he was portrayed in “Lines and Shadows,” a best-selling book by Joseph Wambaugh.

The justices, in a brief order, declined to hear an appeal by lawyers for Wambaugh and his publisher contending that a “personal depiction” waiver signed by the officer in exchange for $5,000 protected them from suit.

The lawyers argued that the ruling, issued in November by the 4th District Court of Appeal in San Diego, would render such waivers virtually meaningless and discourage authors and publishers from producing books on significant events and issues.

“The Court of Appeal ruling will have an extremely harmful effect on the rights of free expression,” Timothy B. Taylor, an attorney for the author and the publisher, said after Wednesday’s action. Taylor added that an appeal to the U.S. Supreme Court may be considered.

The case arose from a $91-million defamation and invasion of privacy suit brought by Kenneth Kelly, a former member of the San Diego Police Department’s Border Alien and Robbery Force, a since-disbanded unit whose operations were chronicled in Wambaugh’s book. Kelly, whose real name was used in the book, charged that the work portrayed him as an irresponsible police officer, accused him of “acts of procuring prostitution” and destroyed his career, marriage and reputation.

Attorneys for Wambaugh and William Morrow & Co., the publisher, sought dismissal of the suit in light of the waivers that Kelly and other members of the unit signed authorizing Wambaugh to portray them “either factually or fictionally as (he) . . . may determine.”

The lawyers said that the book accurately described Kelly’s and the other officers’ activities.

San Diego Superior Court Judge Mack P. Lovett dismissed the suit, concluding that the waiver Kelly signed protected Wambaugh and the publisher. “What they did, he consented to,” the judge said.

But a three-member state appellate panel reinstated the suit, refusing to grant the defendants the absolute protection they sought.

“We cannot say as a matter of law the rights given in the waiver include a license to defame, slander and libel Kelly,” Justice Edward Butler wrote for the appellate court.

The panel also said that the waiver was ambiguous as to whether Kelly had given up his right to privacy.

The extent to which the waiver protected Wambaugh and the publisher should be determined by the circumstances under which it was executed and is a question for a trial judge or jury, the court said.

“Whether Kelly sold his birthright to privacy for a mess of pottage when he signed the waiver can only be determined by a trier of fact,” Butler wrote.