The opinion of the court was delivered by: FULLAM
At the close of plaintiffs' evidence in this non-jury case, the defendant has made an oral motion for a "directed verdict". Presumably, this was intended as a motion for involuntary dismissal pursuant to F.R.C.P. 41(b), and it will be so treated. That rule provides:
"After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a) . . . ."
Plaintiffs, three Philadelphia police officers, claim to have been libeled by an article published in the Washington Post in August 1979, concerning a celebrated "police brutality" case which had occurred some two years earlier, in April 1977, and in which the plaintiffs were involved.
The evidence is to the effect that a motorist named Cradle, a young black man, failed to obey a stop sign, and his vehicle was stopped by Philadelphia police. After producing his driver's license and registration, Mr. Cradle became either alarmed or impatient because of the length of time he was being detained at the scene; he re-entered his vehicle and drove off. He was again apprehended a couple of blocks away, while stopped at a traffic light. At that location, an extensive physical scuffle occurred. According to the police, Cradle refused to get out of his car, and tried to lock himself in. Plaintiff Casper then smashed the window of Cradle's car and, along with other officers, turned off the ignition. Cradle was either forcibly removed from the car, or emerged voluntarily.
According to Cradle, he was thereupon severely beaten and kicked. According to the officers, he crawled under his car, attempted to re-enter it, and had to be forcibly subdued.
The scuffle was witnessed by numerous passers-by and residents of the neighborhood, none of whom were personally acquainted with any of the participants, and all of whom verified Cradle's account of the incident. Many of these persons lodged complaints with police officials about the treatment of Mr. Cradle.
Cradle was charged with resisting arrest and assault and battery, but these charges were never prosecuted. Instead, criminal prosecutions were instituted against these plaintiffs by both state and federal authorities. Only the federal charges were brought to trial. After a lengthy trial in November 1977, the defendants were all acquitted of the charge that they willfully violated Cradle's constitutional rights.
Jonathan Neumann was, at the time of the original incident and the criminal trial of the plaintiffs, a reporter employed by the Philadelphia Inquirer. Together with a partner, William K. Marimow, Neumann had authored numerous articles in the Philadelphia Inquirer concerning police brutality, including a four-part series (on civilian deaths at the hands of police) which was awarded a Pulitzer Prize.
The Cradle incident, and the ensuing trial of these defendants, generated extensive press coverage. Messrs. Neumann and Marimow covered the trial for the Inquirer. It is undisputed that their accounts of the trial and its aftermath were true and accurate in all respects.
Some two years later, in August 1979, at which time Mr. Neumann was working for the Washington Post, the United States Justice Department, with much public fanfare, brought suit in federal court in this district against the City of Philadelphia, its mayor and police officials, charging widespread and systematic violations of civil rights, and seeking injunctive and declaratory relief against what, for convenience, may be referred to as "police brutality". Naturally enough, this event generated a new spate of publicity about the Philadelphia Police Department.
The article which is the subject of the present litigation appeared in the Washington Post in conjunction with, and as background for, its principal, and lengthier, story concerning the Justice Department litigation. Bearing the heading "Philadelphia Police, the Toughest In the World," the article included the following:
"On a cool, damp spring night two years ago, more than 20 Philadelphians watched in stunned disbelief as 10 policemen beat a black man, breaking night sticks on his head and shoulders, after he had run a stop sign. A few days later, in early May 1977, Philadelphia Mayor Frank L. Rizzo said this about ...