What once was either a sordid tale of inebriated groping by a rising political star or a political dirty trick by an opportunistic gold digger has turned into a First Amendment battleground.
It all literally started on a dark and stormy night in October 2006 on the eve of the midterm election. Cocktail waitress Chrissy Mazzeo met her friend Pennie Puhek for happy hour at the Las Vegas McCormick & Schmick's. Later they spotted Republican gubernatorial candidate Jim Gibbons, then a congressman, who was with campaign adviser Sig Rogich and two other women.
Puhek bought the table a round of drinks, and Gibbons invited Puhek and Mazzeo to join them. This was followed by two hours of heavy drinking and what Mazzeo describes as inappropriate behavior by Gibbons, such as touching her thigh.
She says Gibbons later met her outside, and they went to find her vehicle in a nearby parking garage, where Mazzeo claims she was grabbed by both arms, shoved into a wall and told she was going to be raped. When some teenagers ran by, Mazzeo says Gibbons was distracted, so she kicked him in the shin and ran away to call 911 on her cell phone.
Police investigated but filed no charges. Surveillance cameras captured no images of either Gibbons or Mazzeo. She claimed the tapes were doctored. Two years later, Mazzeo filed a federal lawsuit making numerous claims for damages against numerous defendants. Now, two years after that, the case and defendants have been pared down to the basics.
As Review-Journal columnist Jane Ann Morrison reported Thursday, U.S. District Judge Roger Hunt has tossed most of Mazzeo's claims, but he let two stand because they contain genuinely disputable facts a jury must weigh. The remaining defendants are Gibbons, Rogich, the Las Vegas Metropolitan Police Department and former Sheriff Bill Young.
One claim applies solely to Gibbons, in which a jury must decide whether he committed battery by pressing her against the wall and threatening rape. Though there was no surveillance video, Mazzeo has found witnesses who saw her and Gibbons in the vicinity.
In refusing to dismiss the claim, Hunt wrote, "The contradiction between the eyewitness testimony and surveillance video create triable issues of fact for a jury to decide because reasonable minds could differ about the absence of Mazzeo and Gibbons on the surveillance video."
But the more interesting issue is whether the defendants violated Mazzeo's First Amendment free speech rights, as protected in U.S. Code (Title 42, Chapter 21, Subchapter I, Section 1983), by conspiring to "retaliate against and chill political expression" while acting under the color of state law.
Hunt found this clearly applied to Metro and Young as police officers. He also found that under case law this could also apply to Gibbons and Rogich because of their "common objective: to minimize any political harm to Gibbons from the alleged incident" and their multiple conversations with Sheriff Young at the time of the incident. So a jury must decide whom to believe.
Though no one but the defendants knows what was said, telephone records reveal numerous conversations between Young and Rogich, Young and Gibbons, and detectives and Young shortly after the incident.
Hunt writes, "Viewing the parties' frequent communication and their common objective in the light most favorable to Mazzeo as the nonmoving party, the Court concludes that Mazzeo has raised a genuine issue of material fact regarding whether Defendants came to an agreement or meeting of the minds to violate her constitutional rights. The Court therefore finds that Mazzeo has sufficiently shown that Rogich and Gibbons acted under color of state law to survive summary judgment on such basis."
Among the triable facts cited by Hunt are:
-- Detectives said she recanted her allegations, but Mazzeo said she told them she feared the prosecution would become a "three ring circus" and she feared going against someone as powerful as Gibbons.
-- Young called Mazzeo's account a "hokey story."
-- Rogich said her allegations had the "earmarks of a political dirty trick."
The judge says Mazzeo had a right to free speech by filing a complaint with police. Whether the defendants conspired to deter or chill that right is something only a jury can decide.
Thomas Mitchell, senior opinion editor of the Review-Journal, writes about the role of the press, the First Amendment and access to public information. He may be contacted at (702) 383-0261 or via e-mail at email@example.com.