Judge moves to dismiss band libel suit
Two years ago, a band of aspiring high school punk musicians recorded a song. At the time, they imagined the song would be heard and enjoyed by fellow punk fans – not the cause of an expensive dispute in the courts.
The suit against four Truckee youth and their parents filed by a Nevada County Sheriff’s Deputy last winter was motioned for dismissal on July 5 by a Nevada County Superior Court judge.
The dismissal has not yet been formalized, according to the court files. But attorneys for both sides say the suit is over.
NCSO Deputy Stephen Tripp filed a civil suit against the members of the local band Gusher and their parents charging libel, slander and negligence in association with the lyrics of a song called “Protect and Serve” recorded on their CD Just One Of The Flock. The lyrics, the complaint said, identified the deputy by name and “attributed conduct of moral turpitude to his performance of his duties as a deputy sheriff.”
According to band members Caleb Dolister, Mat Eskridge and Matt “Flat” Mangus, all of whom graduated from Tahoe-Truckee High School this year, Gusher wrote the song in the beginning of 1998 about how they think cops treat teens unfairly.
At the time the song was recorded, Dolister was 17, and the other band members were 16. A fourth band member, Morgan “Gordo” Miller, was also named in the suit, but is no longer in the band.
Dolister said the band decided to ad-lib the dialogue referring to Tripp five minutes before the song was recorded. The band members said the dialogue is a parody version of a Cops TV show. It is an invented dialogue between Deputy Tripp and a teenager, and Tripp is heard harassing the teenager and threatening to kill him. Gunshots are heard in the background.
Tripp’s complaint claimed the lyrics of the song are libelous because they charge the deputy with criminal conduct and the accusation injures the plaintiff’s reputation and attributes lack of respect for the law to the officer.
According to Nevada County Superior Court Judge M. Kathleen Butz’s motion for dismissal, the song, which is one of 17 on the CD, refers to police harassment of teenagers.
“It protests harassment by policemen of people who are not ‘the norm.’ The song depicts a teenager of being detained for no reason other than wearing a leather jacket, the policeman chasing the teenager and threatening to blow his head off if he doesn’t stop. There is gunfire in the background and a statement the policeman is going to kill the teenager. At the very end of the song the statement is made ‘you’ve heard the rumors, you know they’re not true. Don’t trust cops ‘cuz they’re not better than you,'” Judge Butz said in the motion.
Tripp said in a phone interview that he is most concerned with his reputation as a law enforcement officer in the Truckee community, and that particular song tarnishes that reputation.
“They mention my name and they portray me as committing criminal acts,” Tripp said. “This is a small town, you don’t know how many people I run into that have heard the song. I don’t have a problem with free speech, but my name has been tarnished. If I don’t have credibility as an officer in this community, I can’t be a cop. It’s affected my job. I’m an ethical cop and they damaged that.”
Tripp said it wouldn’t have been a problem had the band not used his real name, or if it were mentioned in the song or anywhere else in the CD that the lyrics were a parody. His lawyer, Kevin Hyatt of Sacramento, referred in oral argument to the case Hustler Magazine v. Jerry Falwell, where the issue of defamation went to jury and argued this case should go before a jury as well.
As stated in the summary judgment, ” Taken in the context of the CD as a whole and the lyrics of the song itself, it is not reasonably capable of being interpreted as implying provable false assertions of fact as interpreted by a reasonable or average person … That average listener would have understood the song could not have been intended to convey a provably false assertion of fact and would have understood that it was not Officer Tripp personally narrating the story line.”
The CD, released in February 1999, was out for two to three weeks before band members learned Tripp was upset.
“We decided to use the real name -it’s unfortunate that’s what we chose,” Dolister said.
Flat said after a week the band sent a letter to Tripp, apologizing for any pain the situation may have caused Tripp’s family. The letter claimed the band stopped all distribution of the CD immediately after talking with Tripp.
“Yours was unfortunately just a name that popped up with others,” the letter said. “We were not thinking. We have hurt many people that we had not intention or desire of hurting. We are making every effort we can think of to right this wrong. Please if you feel we are overlooking something else that can be done to help improve this situation, let us know.”
The case was originally filed in Sacramento to meet the needs of the defendants, whose attorney, Peter Winslow, is also based in Sacramento. The case was moved from the Sacramento Court system to the Nevada County Court system. Oral arguments for the case were heard at a Nevada County Superior Court in Nevada City on June 30. Each family was sued for $100,000.
Tripp said the main reason he decided to file suit was he learned after talking with a parent of one of the band members the band still intended to sell the CDs when the matter was cleared up.
“I heard they were anxious to start selling the CDs again,” Tripp said. “That’s when I brought the suit. If my name is going to be on that song, then we’re going to have problems.”
He said if the case is formally dismissed, he is not sure if the band can continue to sell the CDs.
“If the court has ruled it’s OK to do, I have to abide by that decision. I will accept and move on and bite my tongue. But it opens the door for this kind of thing to happen all the time,” Tripp said. “I didn’t do it for the money, I did it to save my reputation.”
Flat, Dolister and Eskridge said that they were upset that their parents were pulled into the case, and their parents never knew anything about the lyrics in question before they were published.
“When I first heard about it I was scared,” Dolister said. “Our parents were upset with us, but they said they would stand behind us.”
All three remaining band members will be going to University of Nevada Reno in the fall.
Eskridge said the experience has been both positive and negative for the band.
“No one likes to be sued. For a year and a half there’s been this suit hanging over our heads,” he said. “The major thing for me was it affected my parents and it was a result of something I did when I was 16.”
He said the band discontinued selling the album within the immediate area.
“We still perform that song live, but with an altered name,” he said.
Tripp said he is glad the suit is over, but extremely upset that his reputation has been insulted.
“One way or another -it’s done with this decision,” Tripp said. “It will go away in time.”
Winslow, the defendants’ attorney, also filed a motion for reimbursement of attorneys’ fees against Tripp, which was denied by the judge.
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