United States v. Gustavo Villa-Maldonado

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-1381
___________
Paul C. Stepnes, *
*
Appellant, *
*
v. *
*
Peter Ritschel, individual capacity, *
* Appeal from the United
Defendant-Appellee, * States District Court for
* the District of Minnesota.
Jane Moore, *
*
Defendant, *
*
City of Minneapolis; CBS *
Broadcasting, Inc., foreign corporation; *
Esme Murphy, individual, *
*
Defendants-Appellees. *
___________
Submitted: November 15, 2011
Filed: December 9, 2011
___________
Before WOLLMAN, MURPHY, and BENTON, Circuit Judges.
___________
MURPHY, Circuit Judge.
Minneapolis Police Sergeant Peter Ritschel arrested Paul Stepnes without a
warrant for running a contest which allegedly violated Minnesota gambling laws.

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Ritschel later obtained a search warrant and seized several items from the house where
Stepnes was running the contest. Reporter Esme Murphy broadcast a news story
about the contest and Stepnes's arrest on WCCO TV, a local CBS television station.
Stepnes sued Ritschel and the city of Minneapolis under 42 U.S.C. § 1983, for civil
rights violations during the arrest and search, and Murphy and CBS for defamation.
Both sides moved for summary judgment. The district court1 granted the motion of
the defendants, and Stepnes appeals. We affirm.
I.
Stepnes, a home builder and developer, built a high priced home at 2857 Irving
Avenue South in Minneapolis. He described it as a "new old house," meaning that it
was designed to blend in with the surrounding established neighborhood while
offering modern amenities, such as an elevator and a fully wired sound system.
Stepnes had financed the house with several loans. After his attempts to sell the
home failed, it went into foreclosure and was sold in a February 2008 sheriff's sale to
the bank which held most of the loans. In the spring of that year, Stepnes designed
a contest to raise money to redeem the mortgage before the redemption deadline of
September 26, 2008. See Minn. Stat. § 581.10 (governing redemption of mortgages).
He called the original contest the "Big Dream House Giveaway." The contest website,
www.2857irving.com, did not mention that the house was in foreclosure. Instead, it
explained that the contest was designed to "take a negative situation and make
something positive come out of it by raising enough money to pay off the mortgage
of a housing shelter for women and children." No additional information or location
was given about this housing shelter. Another section of the website stated that the
goal of the contest was to raise $1.5 million for the Chester House Foundation, which
1The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
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was described as an organization focused on providing affordable housing and
reducing homelessness. The website did not reveal that the Chester House Foundation
was a sole proprietorship run by Stepnes.
The original contest involved guessing the number of nuts, bolts, and screws
(collectively referred to as fasteners) contained in a chest stored in the Irving Avenue
house and pictured on the website. The website provided the dimensions of the chest
but did not describe the ratio of each type of fastener. Nor did it reveal that also inside
the chest were a plastic protection sheet and a cardboard box for stability. The contest
was described on the website as one of "skill based on your mathematical and
analytical skills." Stepnes promoted it by hiring a public relations agent. Several
local newspapers ran stories about the contest.
Contestants were required to pay $20 for the opportunity to guess the number
of fasteners in the chest. Entries could be purchased by mailing an application
available online or going to the house in person. The contestant who guessed closest
to the actual number of fasteners without exceeding it would win her choice of the
house (valued at $1.8 million) or $1 million cash, provided that at least $5 million
worth of tickets were sold. If less than $5 million in tickets were sold, the winner
would receive 50% of the contest proceeds in excess of $1 million. The contest was
to run until November 15, 2008. It also had a second component involving weekly
drawings for small prizes, such as a microwave. The contest rules provided that all
persons registering for the contest would be entered in the weekly drawings.
Prior to launching the original contest, Stepnes had contacted Tom Barrett,
executive director of the Minnesota Gambling Control Board, to obtain advice about
gambling laws. Barrett explained that illegal gambling consists of three elements:
consideration, chance, and a prize. He advised Stepnes that guessing the number of
fasteners in the chest would require analytical skill and thus remove the element of
chance. For that reason the contest would not violate Minnesota's gambling laws.
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On May 28, 2008, shortly after Stepnes launched the contest, a contractor who
had a lien on the house phoned Sergeant Peter Ritschel and informed him that Stepnes
might be conducting an illegal raffle at the house. The contractor directed Ritschel
to the contest website. Sergeant Ritschel looked at the website and noted that it listed
the name of a contestant who had won a microwave as part of the weekly drawing.
Within hours of reviewing the website, Ritschel went to the house to investigate and
to "get Mr. Ste[p]nes to cease his unlawful activities." The sergeant arrived at the
house without a warrant during hours when it was open to the public. At the time
Ritschel entered, Stepnes was in the back of the house with his public relations agent
and a reporter from the Southwest Journal, a Minneapolis newspaper.
Ritschel told Stepnes that he believed an illegal gambling operation was
occurring at the house. Stepnes responded that he had consulted with Barrett and
State Senator Scott Dibble about his contest. When Stepnes refused to show Ritschel
his identification, the officer arrested him and placed him in handcuffs. Stepnes
claims that the handcuffs were so tight that they cut into his wrists. Ritschel
transported Stepnes to jail and booked him under Minnesota Statute § 609.735, which
prohibits wearing a mask in public. Police released Stepnes a few hours later.
The next day, Ritschel spoke with Barrett who explained that he had advised
Stepnes that the contest as described was not gambling. Ritschel then asked whether
the weekly drawing for a small prize was gambling. Barrett replied that Stepnes had
not advised him that the contest would feature such a drawing. Because that drawing
involved no skill or analysis, Barrett stated that "the element of the gamble is now
present."
The same day as that conversation with Barrett, Sergeant Ritschel applied for
and received a search warrant from a state judge for the Irving Avenue house. The
warrant authorized the seizure of physical and electronic records related to an
unlawful "Win this house" lottery, including documentation, notes, tickets, signage,
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postings, computers, hard drives, and gambling related devices and paraphernalia. It
also authorized seizure of records and documentation related to the Chester House
Foundation. Ritschel and other officers from the Minneapolis Police Department
executed the search warrant signed by a state judge that same day. During the search
Stepnes was placed in the back of a squad car. The items seized included a sign
posted on the front door, a newly purchased and unpackaged digital recorder, a camera
with pictures of Stepnes's arrest, two computers, and the chest containing the
fasteners. As the police removed the chest from the house, several fasteners spilled
out.
The following day, Stepnes filed an emergency motion in state court seeking
return of the seized items pursuant to Minnesota Statute § 626.04. Stepnes alleged
that the police had prevented his counsel from viewing seized items to compare them
to the search warrant and that the police had taken objects that Stepnes intended to use
in a false arrest case against Ritschel and the city. The state judge held a hearing that
very afternoon at which he questioned whether the police had exceeded the scope of
the search warrant and had properly inventoried the seized items. The state court gave
the Minneapolis defendants two days to prepare an inventory of the seized items
before appearing at a second hearing.
At the second hearing, the state judge stated that the officers "went in [to the
house] with the intent to shut the project down, and they did." He ordered the police
to return most of the seized items, allowing them to keep one original copy of the
contest documents and to take photographs of the other seized objects. The judge also
ruled that the police could copy the hard drives of a computer seized by Ritschel but
were not to view any information until he could conduct an in camera review for
potential attorney client communications. After no further action by the state court
in the next five months, Sergeant Ritschel directed the police crime examiner to
review the information on the hard drives.
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Following the May 29th search, Stepnes discontinued the original contest.
Since he had never counted the number of fasteners in the chest, it was impossible to
continue that contest because some of them had spilled out during the police action.
Several area newspapers had covered the contest and mentioned Stepnes's contention
that it was legal and that he had been falsely arrested. Around June 8, 2008, Stepnes
started a second contest which required contestants to guess the number of fasteners
contained in a glass aquarium. This contest did not feature a weekly prize drawing.
Stepnes engaged a new public relations firm to manage publicity for it.
After starting the second contest, Stepnes learned that reporter Esme Murphy
was planning on doing a story for CBS affiliate WCCO TV about the contests and his
arrest. Stepnes's public relations firm advised him not to grant Murphy an interview.
Stepnes nevertheless went ahead because he believed that Murphy "wanted to hear
[his] side of things" and because "ratings were high on [that] station." Murphy
interviewed Stepnes and his attorney on July 15, 2008, and the story aired that same
evening. The broadcast also included interviews of Sergeant Ritschel and a
contestant. It reported that Minneapolis police had said that Stepnes could be headed
to jail, that the Chester House Foundation was not a registered charity in Minnesota,
that the Irving Avenue house was in foreclosure, and that Stepnes believed his arrest
was an "abuse of police power." The broadcast concluded by noting that the
Minneapolis city attorney was continuing to investigate the situation.
Two days after the broadcast aired, Stepnes's public relations agency informed
him that it would no longer represent him because he had disregarded their advice by
granting Murphy an interview and because he had failed to disclose all the details
concerning the house, including that it was in foreclosure. Within a week of Murphy's
story, Stepnes decided to discontinue his second contest.
Stepnes filed suit against Ritschel and the city of Minneapolis pursuant to 42
U.S.C. § 1983 for Fourth Amendment violations, including false arrest, excessive
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force, and unreasonable search and seizure. In the same complaint he also brought
claims for defamation against Murphy and CBS based on her broadcast. Both sides
moved for summary judgment. The district court granted summary judgment in favor
of the defendants, after concluding that Stepnes had not demonstrated a Fourth
Amendment violation to sustain his § 1983 claims against Sergeant Ritschel and the
city. It also concluded that Stepnes's defamation claims failed because he was a
limited purpose public figure and had not shown the required element of actual
malice. Stepnes appeals the adverse grant of summary judgment on his claims.
II.
We first address Stepnes's § 1983 challenges. On appeal Stepnes renews his
claim that Sergeant Ritschel and the city of Minneapolis are liable under § 1983
because Ritschel falsely arrested him, used excessive force, and executed an unlawful
search in violation of his Fourth Amendment rights. We review a district court's grant
of summary judgment de novo, "viewing the record in the light most favorable to the
nonmoving party and drawing all reasonable inferences in that party's favor."
Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011).
Qualified immunity "protects government officials 'from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.'" Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Stepnes's claims against Ritschel therefore stand or fall on whether qualified
immunity attaches. In evaluating claims of qualified immunity, we examine (1)
"whether the facts that a plaintiff has alleged . . . make out a violation of a
constitutional right" and (2) whether the constitutional right violated "was 'clearly
established' at the time of defendant's alleged misconduct." Id. at 232 (citation
omitted). A reviewing court may consider these factors in either order. Id. at 236.
We find here that we can begin and end our analysis with the first factor.
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Stepnes contends that Ritschel violated the Fourth Amendment by arresting
him without a warrant. We have recognized that "[a] warrantless arrest is consistent
with the Fourth Amendment if it is supported by probable cause, and an officer is
entitled to qualified immunity if there is at least 'arguable probable cause.'" Borgman
v. Kedley, 646 F.3d 518, 522–23 (8th Cir. 2011) (citation omitted). Probable cause
exists when "the facts and circumstances within the officers' knowledge . . . were
sufficient to warrant a prudent person in believing that an offense has been
committed." United States v. Rivera, 370 F.3d 730, 733 (8th Cir. 2004). The focus
must be on what the officer knew at the time of the arrest. See United States v. Kelly,
329 F.3d 624, 628 (8th Cir. 2003).
Because Ritschel arrested Stepnes for running an illegal lottery, the relevant
inquiry is whether the sergeant had probable cause, or at least arguable probable
cause, to believe that Stepnes was violating Minnesota gambling law by running an
illegal lottery. A lottery is illegal if a prize is offered, the recipient is determined by
chance, and participants must give consideration for the opportunity to win the prize.
See Minn. Souvenir Milkcaps, LLC v. State, 687 N.W.2d 400, 403 (Minn. Ct. App.
2004); see also Minn. Stat. §§ 609.75 subdiv. 1(a), 609.76 subdiv. 1.
The record here indicates that Sergeant Ritschel had at least arguable probable
cause to arrest Stepnes for running an illegal lottery after receiving the contractor's
call and investigating the contest website. The website indicated that contestants had
to pay $20 for a chance to win the house or smaller weekly prizes. While the website
explained that guessing the number of fasteners in the chest was a "contest of skill"
because it involved using "mathematical and analytical skills," the website also
advertised a weekly drawing for which no skill was involved and listed a winner of
one of the weekly prizes, showing that this aspect of the contest was under way. Upon
arriving at the house Ritschel saw a sign on the door advertising the contest, indicating
that he was at the correct address.
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Stepnes contends that the website was designed in such a way that contestants
could enter the weekly drawings without paying $20, thus removing the element of
consideration from the weekly drawing. The contest rules on the website did not
however inform potential participants of this option. Rather, they explained that
"early entry purchases" would be included in the weekly drawings. Use of the term
"purchases" could certainly lead a prudent person to believe that consideration was
required to enter and thus that the original contest violated Minnesota law. See
Rivera, 370 F.3d at 733.
Stepnes also argues that Ritschel could not have had probable cause to make an
arrest because he had not investigated all potential sources of exculpatory evidence.
That is not the correct test, for "[o]fficers are not required to conduct a 'mini-trial'
before arrest, [although] probable cause 'does not exist when a 'minimal further
investigation' would have exonerated the suspect.'" Amrine v. Brooks, 522 F.3d 823,
832 (8th Cir. 2008) (citations omitted). Stepnes urges that because he informed
Ritschel immediately prior to the arrest that he had cleared the contest with Barrett,
the officer should have investigated this statement prior to making the arrest. We
reject this contention. A contact with Barrett at this point would not have exonerated
Stepnes because the state official would have informed Ritschel, as he in fact did the
very next day, that the weekly drawings based on chance converted the original
contest into an illegal lottery.
In addition to challenging his May 28 arrest, Stepnes claims he was again
falsely arrested the following day when officers placed him in the back of a squad car
while executing a search warrant at the house. Temporary detention of a building's
occupants while a search warrant is executed does not violate the Fourth Amendment.
United States v. Johnson, 528 F.3d 575, 579 (8th Cir. 2008) (citing Michigan v.
Summers, 452 U.S. 692, 701 (1981)). Stepnes thus cannot demonstrate that his Fourth
Amendment rights were violated on this ground.
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We turn next to Stepnes's contention that Sergeant Ritschel used excessive force
when conducting the May 28 arrest by placing handcuffs on him so tightly that he
suffered bruising, numbness, and soreness. The district court determined that these
injuries were de minimis and thus could not give rise to an excessive force claim.
Stepnes correctly noted at oral argument that we have recently rejected the contention
that the presence of only de minimis injury forecloses an excessive force claim.
Chambers, 641 F.3d at 906. In the handcuff context, however, Chambers simply
reaffirmed our previous holdings that "[f]or the application of handcuffs to amount to
excessive force, there must be something beyond minor injuries." Id. at 907 (quoting
Hanig v. Lee, 415 F.3d 822, 824 (8th Cir. 2005)). Stepnes has produced no evidence
that he suffered anything beyond minor injuries due to the handcuffing and thus
cannot demonstrate a Fourth Amendment violation.
Stepnes's next claim asserts that the police conducted an unreasonable search
and seizure by exceeding the scope of the search warrant during the search of the
house. He contends that this issue was already decided in his favor at the state court
hearings where he sought return of seized property, and he thus urges us to apply the
doctrine of offensive collateral estoppel to bar Ritschel from defending this claim. At
issue in the state court hearing was Stepnes's motion for return of property under
Minnesota law, not an adjudication of whether Stepnes's Fourth Amendment rights
had been violated. Furthermore, that hearing was held on an emergency basis, giving
the city of Minneapolis little time to respond to Stepnes's claims. Accordingly,
collateral estoppel is not appropriate because the issue is not identical in the two
adjudications and the city of Minneapolis was not given a full and fair opportunity to
respond in the state hearing. See Crumley v. City of St. Paul, Minn., 324 F.3d 1003,
1006 (8th Cir. 2003).
Turning to the merits of Stepnes's unreasonable search and seizure claim, he
argues that the police exceeded the scope of the search warrant when seizing items
from the house. Stepnes focuses on the seizure of the chest and fasteners, arguing that
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these items were not "gambling paraphernalia" subject to seizure because they were
part of a contest testing analysis and skill.
Possession of a search warrant does not "give the executing officers carte
blanche as to its execution." Walden v. Carmack, 156 F.3d 861, 873 (8th Cir. 1998).
When executing a search warrant, a law enforcement official "must have probable
cause to believe that items seized in connection with a valid search warrant are
associated with suspected criminal activity." Id. Probable cause demands "only that
the facts available to a reasonably cautious man would warrant a belief 'that certain
items may be contraband or stolen property or useful as evidence of a crime.'" Id.
(citations omitted). Items not mentioned in a warrant may be seized so long as they
are "reasonably related to the crime for which the warrant issued." Taylor v. State of
Minn., 466 F.2d 1119, 1121 (8th Cir. 1972) (per curiam).
At the time of the arrest, Sergeant Ritschel had probable cause to believe that
Stepnes was running an illegal lottery in violation of Minnesota law. Between the
time of the arrest and the time of the search, Ritschel learned from Barrett that Stepnes
had been advised that guessing the number of fasteners in the chest was a game of
skill. He also learned however that the weekly prizes introduced an element of
chance, meaning that all elements of an illegal lottery were present. Given this
knowledge, a reasonably cautious officer could conclude that the chest was associated
with criminal activity because at least part of the original contest contained the
elements of an illegal lottery. See Walden, 156 F.3d at 873. Furthermore, as the
district court correctly noted, the fasteners in the chest were not of uniform size and
type. Consequently, it would have been nearly impossible to use mathematical skill
to calculate the number of fasteners in the chest. A reasonably cautious person could
thus conclude that guessing the number of fasteners in the chest was an illegal lottery.
Id. Stepnes's contention that his rights were violated because Ritschel wanted to "shut
down" the contest similarly fails because an officer's subjective intent is not relevant
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to a probable cause inquiry. Id. at 869. We conclude that Ritschel did not violate
Stepnes's Fourth Amendment rights when executing the search warrant.
Stepnes's final § 1983 claim is that Ritschel violated his Fourth Amendment
rights by authorizing the police crime examiner to view files on the seized computer
hard drives in violation of the state judge's order that they not be examined before his
never completed in camera review. Upon learning of this development, Stepnes did
not amend his complaint to add this claim as an additional basis for his § 1983 action,
but rather moved to strike Ritschel's answer to his complaint. The district court
instead awarded Stepnes attorney fees as a remedy for Ritschel's action. Stepnes has
not shown that the district court abused its discretion by its choice of remedy for the
violation of the orders by the state judge. See Plaintiffs' Baycol Steering Comm. v.
Bayer Corp., 419 F.3d 794, 802 (8th Cir. 2005).
Accordingly, because Stepnes failed to demonstrate that any of Sergeant
Ritschel's actions violated a constitutional right, he cannot deprive him of qualified
immunity, and thus summary judgment was appropriate. Lykken v. Brady, 622 F.3d
925, 929–30 (8th Cir. 2010). Summary judgment was also proper as to the city of
Minneapolis because municipalities may not be held liable under § 1983 "unless
action pursuant to official municipal policy of some nature caused a constitutional
tort." Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978).
Stepnes has not argued on appeal that any municipal "policy or custom" led to a
deprivation of his constitutional rights. See id. at 694.
III.
We now turn to Stepnes's defamation claims against CBS and Murphy. Under
Minnesota law, a cause of action for defamation requires (1) a false and defamatory
statement about the plaintiff; (2) an unprivileged publication to a third party; (3) a
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tendency to harm the plaintiff's reputation in the community; and (4) fault amounting
to at least negligence. Britton v. Koep, 470 N.W.2d 518, 520 (Minn. 1991). If the
plaintiff is a public figure, he must show through clear and convincing evidence that
the defendant's fault amounted to actual malice. Id. Actual malice requires acting
with "knowledge that the statements were false or . . . reckless disregard of whether
they were true or false." Id. at 524 (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254,
279–80 (1964)). Accordingly, the plaintiff must show that the "defendant in fact
entertained serious doubts as to the truth of his publication." Id. at 524 (quoting St.
Amant v. Thompson, 390 U.S. 727, 731 (1968)).
Stepnes first contends that the district court erred in determining that he was a
limited purpose public figure which is defined as one who "voluntarily injects himself
or is drawn into a particular public controversy and thereby becomes a public figure
for a limited range of issues." Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974).
In determining whether a person qualifies as a limited purpose public figure,
Minnesota courts look to "(1) whether a public controversy existed; (2) whether the
plaintiff played a meaningful role in the controversy; and (3) whether the allegedly
defamatory statement related to the controversy." Chafoulias v. Peterson, 668 N.W.2d
642, 651 (Minn. 2003). A public controversy is one whose "ramifications will be felt
by persons who are not direct participants." Id. (quoting Waldbaum v. Fairchild
Publ'ns, Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980)). In determining whether a
plaintiff played a meaningful role in the controversy, Minnesota courts look to
whether the plaintiff's participation was voluntary, the plaintiff played a prominent
role in the debate, and the plaintiff had access to effective channels of communication
to counteract false statements. Id. at 653.
The district court correctly concluded that Stepnes was a limited purpose public
figure. A public controversy existed at the time of Murphy's broadcast because
Stepnes's contest and arrest had already been debated in the local press, and both of
those issues had ramifications beyond the contest participants. Stepnes also played
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a meaningful role in the controversy and had access to effective channels of
communication to counteract allegedly defamatory statements: he sought publicity for
his contests through engaging public relations personnel, he spoke to the local press
following his arrest, and he granted Murphy an interview for her broadcast against the
advice of his public relations personnel. Furthermore, all of the allegedly defamatory
statements related to the contest and his arrest.
Stepnes responds that his actions were taken in his own defense and that he is
allowed to defend himself without becoming a public figure. See Wolston v. Reader's
Digest Ass'n, Inc., 443 U.S. 157, 168 (1979) (concluding that persons committing
criminal conduct do not automatically become public figures by commenting on issues
related to their convictions). Stepnes's conduct in respect to this case went beyond
defending himself, however. He sought media coverage by using a public relations
firm to "shape the message" and "turn a negative spin into a positive spin." Indeed,
he chose to grant an interview to Murphy because "ratings were high on [that]
station."
Having concluded that the district court correctly determined that Stepnes was
a limited purpose public figure, we next consider whether any of the allegedly
defamatory statements show the actual malice needed to prevail in such an action.
Viewing the facts in the light most favorable to Stepnes, none of these statements
indicate either knowledge of falsity or reckless disregard as to the statement's truth or
falsity. The first statement Stepnes challenges is the news anchor's "lead in" to the
broadcast that "the only place that man [Stepnes] could be moving is jail." He next
challenges the anchor's closing statement that "the Minneapolis city attorney's office
is investigating the situation." In challenging these statements, Stepnes essentially
contends that Murphy and CBS should have known that Stepnes would not ultimately
be charged with a crime. The record indicates, however, that Murphy investigated
Stepnes's arrest with Sergeant Ritschel, the county jail, and the Minneapolis city
attorney's office. Ritschel informed Murphy that he believed Stepnes was conducting
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an illegal lottery, the jail confirmed that Stepnes had in fact been arrested, and a
spokesperson from the city attorney's office indicated that the Stepnes matter was still
an active investigation. Given these facts, it was not reckless disregard for the truth
to conclude that Stepnes may face future incarceration related to the contests.
Stepnes next seizes on two minor inaccuracies in Murphy's broadcast: first, the
fact that the Attorney General's office, not the Secretary of State's office as indicated
by Murphy, registers charities, and second, that he was arrested for running an illegal
lottery, not for violating charitable gambling laws. These statements do not show
falsity, let alone a reckless disregard of the truth. Minnesota courts have recognized
that a statement is not false for defamation purposes "if its gist or sting is true, that is,
if it produces the same effect on the mind of the recipient which the precise truth
would have produced." Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437,
441 (Minn. Ct. App. 1986) (citation omitted). Reporters are allowed "some leeway
in accuracy when describing legal issues to the public." Id. at 442. Murphy's
misstatements cannot support a defamation claim because even had they been
completely accurate they would have produced the same "gist or sting" in the mind
of the viewer. Id. at 441.
Stepnes finally focuses on what he perceives as the broadcast's overall
implication that he hid the fact that the house was in foreclosure. He asserts that the
sentence on the website stating "[l]et's take a negative situation and make something
positive come out of it" indicates his openness with potential contestants concerning
the house's foreclosure status. He also points to evidence that a colleague of Murphy's
at WCCO TV had told Murphy that the house was in foreclosure. Stepnes contends
that the fact that another WCCO TV employee knew of the foreclosure means that he
must not have hidden the house's foreclosure status. Neither of these contentions
indicate that Murphy recklessly disregarded the truth in conveying the impression that
Stepnes was not open with potential contestants regarding the foreclosure.
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Stepnes also appeals the district court's denial of his motion for spoliation
sanctions against CBS stemming from the loss of a videotape containing the original
footage of Murphy's interview with Stepnes and his attorney. Stepnes contends that
CBS deliberately destroyed this tape and that he was prejudiced because Murphy's
facial expressions and body language shown on the tape would have indicated that she
harbored serious doubts regarding the truth of several statements in her broadcast. We
review a district court's denial of discovery sanctions for an abuse of discretion, giving
"substantial deference to the district court's determination." Gallagher v. Magner, 619
F.3d 823, 844 (8th Cir. 2010) (citation omitted).
Severe spoliation sanctions, such as an adverse inference instruction, are only
appropriate upon a showing of bad faith. See Menz v. New Holland N. Am., Inc., 440
F.3d 1002, 1006 (8th Cir. 2006). Stepnes urges that lesser sanctions can be imposed
upon a finding of gross negligence. While we have not held that a gross negligence
standard applies to some spoliation sanctions, even if such a standard did apply,
Stepnes could not meet it. The evidence demonstrated that CBS's general policy was
to reuse tapes, Murphy was instructed to preserve all materials relevant to the story,
and CBS managers sent an email instructing employees to save all tapes. The record
further reveals that WCCO TV employees conducted an extensive search for the tape,
but it was never found. Nothing in this record indicates that CBS intentionally
destroyed the tape or acted with bad faith or gross negligence in respect to it, and thus
the district court did not abuse its substantial discretion in denying Stepnes's motion
for spoliation sanctions.2
IV.
Accordingly, we affirm the judgment of the district court.
______________________________
2Because we find that his spoliation claim lacks merit, we also deny Stepnes's
tardy motion to "correct the record" by compelling production of the email instructing
employees to save all tapes.
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