Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 1 of 36 - Page ID#: 195

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY (at Lexington)

JEFFREY FARMER : Case No. 5:21-cv-00049

Plaintiff :
v. :
KRISTEN GONZALEZ, et. al. :
Defendants :
PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO
DISMISS
Plaintiffs, by and through Counsel, provide this opposition to Defendants’ Motion to

Dismiss. [RE#9].

I. Introduction

Defendants’ Motion to Dismiss should be denied. Plaintiff’s Complaint contains more than

sufficient – in fact ample – factual allegations which support plausible federal claims of violations

of 42 USC § 1983 and state law claims of defamation, false light and invasion of privacy based on

seclusion/unreasonable publication. Plaintiff’s Complaint describes in specific detail – and in fact

incorporates – a defamatory letter sent by Defendants to Plaintiff’s employer and various media

outlets. This letter contained a number of provably false statements, which Defendants either knew

were false or recklessly disregarded the falsity of which, based on the public record before them

and their own demonstrated personal animus toward Defendant. As a result of the Defendants’

defamatory letter, Plaintiff endured adverse job consequences and injury to his reputation and

future job prospects, while his children were harassed at school.

In seeking a dismissal, Defendants ignore the thoroughly pled allegations of factual detail

proving all elements of these claims, and advance inconsistent and false arguments. They claim,

for example, that their statements were mere opinions, incapable of being proven, yet in the same

1
 Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 2 of 36 - Page ID#: 196

breath attach 85 documents to their Motion in an attempt to convince the Court of the veracity of

the defamatory letter. They deny that Plaintiff suffered any real injury and urge this Court to find

he needs a “thicker skin,” even though the direct (and likely intended) result of their letter was

Plaintiff’s job re-assignment and his family being targetted. Defendants also deny that Plaintiff

can state any claims of actual malice, even though Plaintiff has offered descriptions of various

distinct factual bases from which one could easily infer malice, including the public records that

Defendants deliberately misrepresent in their Motion as well as evidence of personal malice

against Plaintiff.

Defendants’ attempts to have this Court look beyond the well plead allegations and at the

merits of the case in this initial pleading stage is procedurally inappropriate and amounts to a waste

of this Court and Plaintiff’s time and resources. Plaintiff respectfully requests this Court to deny

Defendants’ Motion to Dismiss.

II. Standard of Review

To survive a motion to dismiss, the plaintiff must allege facts that are sufficient "to state a

claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127

S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d

868 (2009). The reviewing court must accept the factual allegations in the complaint as true and

construe the complaint in the light most favorable to the plaintiff. Hill v. Blue Cross & Blue Shield

of Mich., 409 F.3d 710, 716 (6th Cir. 2005). This includes drawing all reasonable inferences in

favor of the plaintiff. Solo v. United Parcel Serv. Co., 819 F.3d 788, 793 (6th Cir. 2016).

2
 Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 3 of 36 - Page ID#: 197

III. Facts

Because Defendants have neither accepted all facts, including all reasonable inferences

from those facts, as true (as required by the relevant standards), nor even set them all out, Plaintiff

does so now. This case involves the worst kind of lies, which are lies intended to destroy,

overnight, what it took a professional lifetime to build. Plaintiff, Jeffrey Farmer (“Detective

Farmer” and/or “Plaintiff”), is, or was, until the actions complained of, a well-respected narcotics

detective with the Franklin County Sheriff’s Office. (Pl.’s Compl., RE#1, ¶2). His work was

respected by trial court judges who do not share his political affiliation or views. Id. That was

due, in part, to the fact that he is a consummate professional who did exceptional work keeping

the community safe. Id.

In early January, 2021, and purely as a private citizen enjoying the same rights as anyone

else, he traveled with three other individuals to Washington, DC in order to attend a First

Amendment protected, peaceful protest. (Pl.’s Compl., RE#1, ¶3). Specifically, Detective Farmer

attended a speech by former President Trump on January 6, 2021. Id. Detective Farmer then left

before the tragic events at the national Capitol occurred. Id. To avoid any doubt, Detective Farmer

unequivocally condemns the violence and illegal activities that occurred on January 6, 2021 and

his views on that were widely known no later than January 7, 2021. Id.

In an attempt to destroy Detective Farmer’s reputation, built over a lifetime of

distinguished public service, the Defendants, all public employees, told the most vicious lies about

him. (Pl.’s Compl., RE#1, ¶4). They used their social media, both personal and official, as well as

resources of their public office, to retaliate against him for political speech they did not agree with.

Id. They purposely engaged in a vile, baseless, and vicious attack, not merely in writing a letter

to his employer (the Franklin County Sheriff) seeking the loss of his livelihood, but also by taking

3
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 4 of 36 - Page ID#: 198

steps to ensure that their defamation received the widest circulation possible in traditional media.

Id. An outside investigation ensued and, on February 15, 2021, it was confirmed that Defendants’

malicious factual assertions about Detective Farmer were without merit. (Pl.’s Compl., RE#1, ¶5).

This lawsuit seeks redress for Defendants’ malicious actions. Id.

Plaintiff is a detective with the Franklin County Sheriff’s Office. (Pl.’s Compl., RE#1, ¶6).

He resides in Woodford County with his spouse, and children. Id. Defendants are all employees

of the Kentucky Department of Public Advocacy (“DPA”). (Pl.’s Compl., RE#1, ¶7). Defendant

Gonzalez resides in Scott County, Kentucky and Defendant Church resides in Fayette County,

Kentucky. Id. Defendant Goodrich is a supervisor within the Frankfort DPA office, while the rest

are employed as attorneys for that office. Id.

Detective Farmer has been a law enforcement officer in the Commonwealth of Kentucky

since 2002. (Pl.’s Compl., RE#1, ¶11). He began employment at the Franklin County Sheriff’s

Office in November, 2012. Id. Since March, 2015, he was assigned to handle narcotics matters.

Id. By most accounts, Detective Farmer’s work with the Franklin County Sheriff’s Office has been

exemplary: he was twice named Deputy of the Year by the Department, and his case work has

substantially reduced drug trafficking activity in Franklin County, Kentucky. (Pl.’s Compl., RE#1,

¶12). He has been the recipient of numerous letters of commendation in his time with the Sheriff’s

office and, in a citizen’s poll with the Kentucky State Journal, was voted Frankfort’s Favorite Law

Enforcement Officer, in part due to his extensive community involvement. Id.

But by the same token, by early 2021, Detective Farmer’s work was not appreciated by

certain public defenders with the Department of Public Advocacy Office that covers Franklin

County, Kentucky: he was the detective in cases that constituted approximately 50% of the DPA’s

caseload. (Pl.’s Compl., RE#1, ¶13). One of the matters Detective Farmer investigated was in

4
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 5 of 36 - Page ID#: 199

relation to William Bradley McGuaghey, who was charged in 2014 with drug possession in a case

styled Commonwealth v. McGuaghey, 14-CR-00216. (Pl.’s Compl., RE#1, ¶14). At the time,

McGuaghey was dating Defendant, Kristen Gonzalez. Id. They are now married. Id. There were

suspicions within the Franklin County Sheriff’s Office that Defendant Gonzalez was involved with

McGuaghey in his drug activity. Id.

As a result, Defendant Gonzalez has held a grudge against Detective Farmer since 2014,

including harboring an intention to maliciously inflict harm on him. (Pl.’s Compl., RE#1, ¶15).

As she admitted in a text chain with another law enforcement officer in early January, 2021, a

“mission to screw with” him:

Id.

On January 5, 2021, Detective Farmer and three others left Kentucky to travel to

Washington, D.C. to see then-President Trump speak at a rally. (Pl.’s Compl., RE#1, ¶16). Such

5
 Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 6 of 36 - Page ID#: 200

a demonstration and participation in a rally, or even a peaceful protest, is well established First

Amendment protected activity. Id.1

Detective Farmer, at the conclusion of the President’s speech at 1:00 p.m. on January 6,

2021, meandered the National Mall with two of the individuals he traveled with, never went into

the Capitol, and never committed any criminal activity. (Pl.’s Compl., RE#1, ¶17). On January

7, 2021, while heading home from Washington, D.C., Detective Farmer gave an interview to

traditional media where he unequivocally condemned the violence and illegal activities that

occurred at our National Capitol the day before. (Pl.’s Compl., RE#1, ¶18). This interview was

widely circulated. Id.

On January 8, 2021, when Defendant Farmer’s views, and interview, Defendants authored

a letter to Sheriff Quire, at least in part in their capacities as DPA employees, since the letter was

(i) explicit that they were public defenders (and urged action because they were writing in that

capacity); (ii) the letter was sent to Sheriff Quire from an official DPA email account; (iii) the

letter was authored on state time using state resources; (iv) the letter was authorized by the DPA;

and (v) the letter was consistent statements of mission contained on the official state DPA website.

(Pl.’s Compl., RE#1, ¶18). The letter is attached to and incorporated into the Complaint. Id.

In terms of the actual text of the January 8, 2021 letter (hereinafter the “Defamatory

Letter”), it was chock full of knowingly malicious, false statements of fact (collectively the

“Defamatory Statements”), including (i) that Jeff Farmer attended events that led to storming of

the Capitol; (ii) that Jeff Farmer failed to leave the crowd when rioting began; (iii) that Jeff Farmer

was involved with treasonous behavior; (iv) that Jeff Farmer fraternizes with racists and white

1
Gregory v. Chicago, 394 U.S. 111 (1969); Cox v. Louisiana, 379 U.S. 559 (1965); Bible
Believers v. Wayne County, 805 F.3d 228 (6th Cir. 2015); NAACP v. Claiborne Hardware Co.,
458 U.S. 886, 909-912 (1982); Edwards v. South Carolina, 372 U.S. 229, 235 (1963).
6
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 7 of 36 - Page ID#: 201

supremacists who waved the confederate flag; (v) that Jeff Farmer was involved with racial

targeting and racial profiling and harassment based on race in his capacity as a detective; (vi) that

Jeff Farmer resigned from the City of Versailles police department in exchange for no criminal

charges against him; and (vii) that Jeff Farmer took part in a treasonous riot that showed a disregard

for the rule of law. Plaintiff’s Complaint alleges that the foregoing defamatory statements are

demonstrably false and, at the time they were made, were made by Defendants with knowledge of

their falsity and/or reckless disregard of the truth. (Pl.’s Compl., RE#1, ¶21). It further alleges that

the foregoing defamatory statements were made with the purpose of depriving Detective Farmer

of his livelihood. (Pl.’s Compl., RE#1, ¶22).

However, Defendants were not content with trying to get Detective Farmer fired, they also

widely publicized the letter on their social media accounts, ensuring widespread publication. (Pl.’s

Compl., RE#1, ¶23). Defendants then cheered their malicious efforts with self-congratulations

with each article that spread their lies:

7
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 8 of 36 - Page ID#: 202

8
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 9 of 36 - Page ID#: 203

9
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 10 of 36 - Page ID#: 204

Still not satisfied, and in an effort to not merely take his current job, but to attempt to

ensure he was never going to be employable again in the line of work he spent a lifetime in,

Defendants maliciously released their defamatory letter to traditional media sources in an effort

to ensure maximum destruction of Detective Farmer’s reputation, including giving an interview

for this article from the State Journal:

2
(Pl.’s Compl., RE#1, ¶24).

And this article from LEX18:

2
https://www.state-journal.com/crime/public-defenders-call-out-sheriffs-deputy-for-attending-
trump-rally/article_5306597e-5294-11eb-a149-a73593e230b4.html (last visited 2/15/2021). In
this interview, Defendant Goodrich doubled down, stating that Farmer’s involvement in First
Amendment protected peaceful protest was instead part of a lynch mob and part of illegal
activity: “"He claimed he was on the outskirts. It seems like backpedaling to me. You don't have
to go to the jail or operate the noose to be part of the lynch mob ... . He was standing there
watching, and those events shook the nation. For a person charged with upholding the laws and
the Constitution to be a part of this is unnerving and we just can't sit by and not call him out on
it."
10
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 11 of 36 - Page ID#: 205

(Pl.’s Compl.,

RE#1, ¶25).3

Other media sources from around the state – and indeed national news sources – were given

a copy of the letter by Defendants in their ongoing malicious attempt to smear and defame

Detective Farmer. (Pl.’s Compl., RE#1, ¶26). As a foreseeable consequence of the foregoing

actions of each of the Defendants, and all in accordance with the malicious intentions of these

Defendants, Detective Farmer was reassigned at work, had his good name drug through the mud,

suffered personal harassment, his children have been attacked and harassed at their school putting

them in fear of their safety, and suffered other damages, to be proven at trial. (Pl.’s Compl., RE#1,

¶27).

In response to these letters, the Franklin County Sheriff hired an outside investigator with

years of investigative experience. (Pl.’s Compl., RE#1, ¶28). On February 15, 2021, that

investigator released his report, which concluded that each and every one of the Defamatory

Statements in their defamatory letter was false and, further, demonstrated and set forth facts

leading to the conclusion that the defamatory statements were made knowingly and/or with

3
https://www.lex18.com/news/covering-kentucky/franklin-county-detective-reassigned-by-
sheriff-following-his-presence-at-wednesdays-trump-rally (last visited 2/15/2021)
11
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 12 of 36 - Page ID#: 206

reckless disregard of the truth. A true and accurate copy of that report is attached to Plaintiff’s

Complaint as Exhibit B and was incorporated by reference. (Pl.’s Compl., RE#1, ¶29).

Defendants, using their offices and acting under color of state law for all of their respective actions

and incidents set forth herein, violated Plaintiff’s clearly established First Amendment and

Fourteenth Amendment Rights, which has deprived, are depriving, and will deprive Plaintiff of his

rights to be free to Petition, to Assemble, and to engage in Free Speech, protected under the First

Amendment. (Pl.’s Compl., RE#1, ¶32).

Much of Defendants’ Motion involves self-serving allegations about their purported

motivations which they placed in public records. These public records are motions they filed in

cases in which they appear as counsel. Detective Farmer submits that none of these self-serving

materials are appropriate in evaluating a motion to dismiss. However, even if this Court considers

those public records, Defendants deliberately left out a critical piece of the puzzle: the outcome of

their motions and allegations. Each was overruled, with explicit court findings in many of those

cases (and implicit findings in others) that the claims made by Defendants were not true. See

attached records, hereto.4 There is simply no basis to dismiss Plaintiff’s Complaint by relying

upon self-serving, demonstrably false allegations in court pleadings.

IV. Law and Argument

A. Plaintiff has adequately stated a First Amendment Retaliation Claim

4
Even the records that Defendants attach from the Versailles Police Department do not
substantiate Defendants’ contentions in that regard: there is nothing that can be gleaned from
those records that suggest that Plaintiff was the subject of a criminal investigation, or that any
such investigation was pending or contemplated. Farmer signed a standard form resignation
paper in use by the City at the time based on administrative charges. In part, this further goes to
show the impropriety of their attempts to inject materials into the record without authentication
or explanation. Plaintiff is entitled, at this stage, to have his allegations construed in a manner
most favorable to him, with inferences drawn in his favor. Not to have Defendants inject
materials they claim should be in the record in this case, and then for them argue inferences in
their favor.
12
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 13 of 36 - Page ID#: 207

1. Defendants acted under color of law

To survive a motion to dismiss a claim under 42 U.S.C. § 1983, the plaintiff must properly

allege two elements: (1) the defendant was acting under color of state law, and (2) the offending

conduct deprived the plaintiff of rights secured under federal law. Bloch v. Ribar, 156 F.3d 673,

677(6th Cir.1998). Defendants insist that Plaintiff’s First Amendment Retaliation claim under 42

USC §1983 must fail because they were not acting under color of law when they published and

circulated the Defamatory Letter. But, in making this argument, Defendants misconstrue the

applicable United States Supreme Court case law and its progeny on this issue.

In Polk Cnty. v. Dodson, 454 U.S. 312, 324-25 (1981), 102 S.Ct. 445, 70 L.Ed.2d 509

(1981), the United States Supreme Court not surprisingly determined that a public defender could

not be liable for Section 1983 claims when performing “traditional functions as counsel to a

defendant in a criminal proceeding.” In reaching this holding, the Court contemplated situations

in which public defenders could be found to act under color of law:

In concluding that [the public defender] did not act under color of state law in
exercising her independent professional judgment in a criminal proceeding, we do
not suggest a public defender never acts in that role. …It may be -- although the
question is not present in this case -- that a public defender also would act under
color of state law while performing certain administrative and possibly
investigative functions. … With respect to [the] § 1983 claims against [the public
defender], we decide only that a public defender does not act under color of state
law when performing a lawyer's traditional functions as counsel to a defendant in a
criminal proceeding.

Id. (emphasis added).

In a subsequent decision, the Court also distinguished Polk from situations when a public

defender acts intentionally, as in this case. In Tower v. Glover, 467 U.S. 914, 922, 104 S.Ct. 2820,

81 L.Ed.2d 758 (1984), a former client sued his public defender alleging that he had conspired

with various state officials, including trial and appellate court judges and the former attorney

13
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 14 of 36 - Page ID#: 208

general, to secure the client’s conviction. Contrasting Polk, the Court held that the conspiracy

allegations properly alleged a claim under color of law against the public defender because it did

not involve traditional advocacy as a defense attorney.

The Court also focused on the intentional nature of the plaintiff’s allegations:

In this country the public defender's only 19th-century counterpart was a privately retained
lawyer, and petitioners do not suggest that such a lawyer would have enjoyed immunity
from tort liability for intentional misconduct. [citations omitted.] This pattern has
continued. Petitioners concede that Oregon, the State in which they practice, has given no
indication, by statute or appellate decision, that public defenders are immune under state
tort law from liability for intentional misconduct. Indeed, few state appellate courts have
addressed the question of public defender immunity; none to our knowledge has concluded
that public defenders should enjoy immunity for intentional misconduct.” Tower at 921-
922.

See also Powers v. Hamilton Cnty. Pub. Def. Comm’n, 501 F.3d 592, 611-13 (6th Cir. 2007)

(holding that a public defender is not acting under color of law when it is engaged in an adversarial

relationship with the state, as opposed to serving the state’s interest, such as is present in the current

case where the Defendants used their offices to cause actions to be taken against the Plaintiff).

In analyzing this issue, courts must determine whether the defendant’s conduct is “fairly

attributable to the State.” Filarsky v. Delia, 566 U.S. 377, 383 (2012). They must review the

attorney’s function in carrying out their duties to the State to determine whether they are acting

under color of law. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 825 (7th Cir. 2009).

In Rodriguez, the Seventh Circuit Court of Appeals noted that the Supreme Court had "applied this

functional approach to determine whether a particular individual acted under the color of state law

in a variety of contexts," including an attorney's conduct as a public defender. Id. at 825 n.13. The

functional analysis considers the relationship between the state, the private entity, and the

individual. Id. at 826. The setting in which the interaction occurs is also significant. Id.

14
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 15 of 36 - Page ID#: 209

Further, a person cannot misuse the authority of state law for wrongdoing but then deny

they were acting under color of law. United States v. Classic, 313 U.S. 299, 326 (1941) (“Misuse

of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed

with the authority of state law, is action taken ‘under color of’ state law.”). In other words,

whatever policymaking occurs in the public defender's office must relate to the needs of individual

clients and not to any partisan political interests. Branti v. Finkel, 445 U.S. 507, 519 (1980).

Defendants ignore all of the allegations regarding their partisan political interests, and

instead advance a conclusory, outcome determinative argument that they were not acting under

color of law because, they now argue, they wrote the letter in accordance with their traditional

“adversarial relationship with the state” and their commitment “to their clients and society’s

interests in fair judicial proceedings.” But Defendants’ merely saying so does not make it so, and

certainly not at the motion to dismiss stage. In fact, the criminal cases Defendants now discuss

and claim they were advocating on behalf of were each dismissed by the time Defendants penned

their defamatory and retaliatory screed. Not surprisingly, none of those cases were ever mentioned

in their screed. Rather than traditional advocacy, Defendants simply threw the full weight of their

offices behind libelous communications meant to destroy Plaintiff Farmer.

Indeed, their public communications, directed to media and designed for the widest

possible dissemination, if done in connection with an actual case (and it was not) would surely run

afoul of Kentucky Rule of Professional Conduct 3.6, governing trial publicity. But, of course,

there was no case or traditional advocacy. Instead, they wanted to destroy (“screw with”) a law

enforcement officer who was responsible for many difficult cases they had to defend or were

personally affected by.

15
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 16 of 36 - Page ID#: 210

In truth, Plaintiff’s Complaint pleads more than sufficient facts to demonstrate that

Defendants were motivated by malice and political animus, rather than their duties to individual

clients, when writing and publishing their libelous letter. The Complaint alleges that Defendants

used their status as DPA employees to author a letter which made explicit their status as public

defenders – a status they intended to trade upon to achieve their retaliatory ends – and which they

sent to Sheriff Quire from an official DPA email account. (Compl., RE#1, ¶19). They wrote the

letter on state time using state resources and obtained DPA authorization to do so. (Id.) Further,

the Complaint alleges intentional and/or reckless conduct by Defendants, which removes any

argument that they were using their state authority to further their clients’ interests:

¶21. The foregoing Defamatory Statements are demonstrably false, and were
made at the time by Defendants with knowledge of their falsity and/or reckless
disregard of the truth;

¶22: The foregoing Defamatory Statements were made with the purpose of
depriving Detective Farmer of his livelihood.;

¶23: However, Defendants were not content with trying to get Detective Farmer
fired, they also widely publicized the letter on their social media accounts, ensuring
widespread publication. Defendants then cheered their malicious efforts with self-
congratulations with each article that spread their lies:

The Complaint further alleges that the text of the letter was full of knowingly malicious,

false statements of fact including (i) that Jeff Farmer attended events that led to storming of the

Capitol; (ii) that Jeff Farmer failed to leave the crowd when rioting began; (iii) that Jeff Farmer

was involved with treasonous behavior; (iv) that Jeff Farmer fraternizes with racists and white

supremacists who waved the confederate flag; (v) that Jeff Farmer was involved with racial

targeting and racial profiling and harassment based on race in his capacity as a detective; (vi) that

Jeff Farmer resigned from the City of Versailles police department in exchange for no criminal

16
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 17 of 36 - Page ID#: 211

charges against him; and (vii) that Jeff Farmer took part in a treasonous riot that showed a disregard

for the rule of law. (Pl.’s Compl., RE#1, ¶20).

And at ¶24, Plaintiff alleges that Defendants maliciously released the Defamatory Letter

to traditional media sources in an effort to ensure maximum destruction of Detective Farmer’s

reputation, including giving an interview for an article from the State Journal. (Pl.’s Compl., RE#1,

¶24). Thus, under the applicable standard articulated in Polk and its progeny, Plaintiff plead more

than sufficient allegations to support a finding that Defendants acted under color of law when they

maliciously and intentionally published and circulated the Defamatory Letter.

2. Defendants’ conduct deprived Plaintiff of rights secured by federal law.

Under the second prong of Section 1983 liability, a plaintiff must show that the offending

conduct deprived the plaintiff of rights secured under federal law. Bloch v. Ribar, 156 F.3d 673,

677 (6th Cir.1998). When the alleged violation of federal law is that a government official

retaliated against a plaintiff for exercising his constitutional rights, as in this case, the plaintiff

must ultimately prove three sub-elements: (1) the plaintiff engaged in constitutionally protected

conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary

firmness from continuing to engage in that conduct; and (3) the adverse action was motivated at

least in part by the plaintiff's protected conduct. Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir.

2005); Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en banc).

Defendants do not dispute that Plaintiff was engaged in a constitutionally protected activity

when attending a political rally. Rather, they insist that Plaintiff cannot establish any adverse

action or concrete injury that would deter a police officer of ordinary firmness from continuing to

attend political rallies. Under this prong, the court must tailor its analysis to the circumstances of

the specific retaliation claim. Mezibov, 411 F.3d 712, 721; Thaddeus-X, 175 F.3d 378, 398. So, the

17
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 18 of 36 - Page ID#: 212

question becomes whether Defendants’ maliciously and/or recklessly false publication and

circulation of their defamatory statements to Plaintiff’s employer5 and others would deter a police

officer of ordinary firmness from continuing to engage in First Amendment protected activities.

Not surprisingly, Defendants’ own answer to this inquiry is to insist that Plaintiff should

expect criticism for his political beliefs and he simply needs a “thicker skin.” Also, not

surprisingly, the authorities which Defendants cite for this proposition involve far less egregious,

and distinguishable, conduct than Defendants committed in this case. In Mezibov v. Allen, 411

F.3d 712, 722-723 (6th Cir. 2005), the court held that when a high-profile defense attorney was

subject to criticism from the prosecutor after a notorious case, the attorney should have expected

criticism:

With all that in mind, we are not persuaded that a criminal defense attorney of
ordinary firmness would be deterred from vigorously defending his clients as a
consequence of the alleged defamation in this case. First, as an attorney in a highly
publicized case, Mezibov must be expected to endure some scrutiny for his actions.
Second, any harm to Mezibov as a result of Allen's speech is too minimal to be
constitutionally cognizable. Mezibov alleges no specific harm-only a generalized
harm to his character and reputation. See Mattox, 183 F.3d at 521-22 (noting that
while in some cases "embarrassment, humiliation, and emotional distress" are
actionable under § 1983, such harm is not equivalent to being fired or suspended
from one's job). Furthermore, the substance of Allen's out-of-court comments was
basically that Mezibov is a bad attorney, that he is inexperienced, and that he was
putting his own interests before those of his client. To the extent these comments
are not constitutionally protected in their own right, we do not think they exact a
harm upon Mezibov that would deter an ordinary criminal defense attorney from
vigorously representing his clients.

5
Defendants falsely insist that the question should be framed as whether mere criticism of
Plaintiff would deter an ordinary law enforcement officer from participating in a political rally.
But, Plaintiff’s Complaint alleges far more serious conduct than mere criticism. As discussed
supra, Plaintiff alleges that Defendants maliciously lied about him in a letter to not only his
public employer, but further disseminated it to media sources in a manner designed to destroy
Plaintiff’s reputation and foreseeably resulting in serious threats of harm to his children.
18
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 19 of 36 - Page ID#: 213

Unlike the mild allegations of harm in Mezibov, in which the attorney’s advocacy was

questioned publicly by the prosecutor, Plaintiff’s Complaint alleges significant, actualized injuries

and a concerted effort by Defendants to destroy the Plaintiff in every aspect of his life. Paragraph

¶27 of Plaintiffs’ Complaint states that “Detective Farmer was reassigned at work, had his good

name drug through the mud and suffered other personal harassment.” (Pl.’s Compl., RE#1, ¶27).

Conclusively proving that mere “criticism” is not at issue here. Plaintiff further alleges that

the foreseeable result of Defendants’ malicious conduct was that his children were attacked and

harassed at their school, which put them in fear of their safety. (Pl.’s Compl., RE#1, ¶27). Plaintiff

also suffered other damages to be proven at trial. Id. And while Defendants highlight the fact they

were ultimately unsuccessful and Farmer was not terminated, they ignore the allegation that he

was re-assigned to duties that involve less responsibility, and that their actions have made it

impossible for him to find employment with any other law enforcement agency should he desire

to change employment. (Pl.’s Compl., RE#1, ¶¶ 24, 27). An adverse employment action in the

employment context is "a significant change in employment status, such as hiring, firing, failing

to promote, reassignment with significantly different responsibilities, or a decision causing a

significant change in benefits." White v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th 2008),

(quoting Burlington Indus, v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)).

That is the case here.

Defendants also rely on Mattox v. City of Forest Park, 183 F.3d 515 (6th Cir. 1999). In

that case, an elected public official sued the fire department and the city for issuing a report critical

of her job performance. She alleged the report actually was made in retaliation for her valid

complaints about the fire department. The court held that as an elected public official, her claims

did not meet the “adverse action” requirement:

19
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 20 of 36 - Page ID#: 214

As an elected public official, Mattox voluntarily placed herself open to criticism of

her actions and views on political matters. A deliberate attempt to discredit Mattox,
especially if initiated in retaliation for her actions in investigating the fire
department, is perhaps an inappropriate and unfortunate occurrence, but on the facts
of this case, it is not the type of "adverse action" against which the First Amendment
protects. It is not equivalent to being fired by a government employer for expressing
protected views. We do not think it would deter a public official of ordinary
firmness from exercising his or her right to speak under the First Amendment.
Public officials may need to have thicker skin than the ordinary citizen when it
comes to attacks on their views. Mattox has not pleaded sufficient injury to make
out a claim for First Amendment retaliation.

Id. at 522. In contrast, and as noted, Plaintiff endured a job reassignment and outrageous, but

foreseeable, harassment of his family, including his children, sufficient to fear for their safety.

Further, Plaintiff was not an elected public official getting criticism at work for how he did his job;

he was a police officer who exercised his First Amendment rights at a political rally on his own

private time and then was maliciously defamed as a result.

Notably, the Court in Mattox was clear that the adverse action in that case was not sufficient

because there was no allegation about a retaliatory transfer. Id. at 521. Here, of course, Plaintiff

was transferred as a consequence of Defendants’ activities. But Mattox also acknowledged that in

some instances, tangible adverse employment was not necessary for a First Amendment retaliation

claim. Id. Two cases where that was so, and acknowledged by the Court to be so, in Mattox, was

Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998) and Barrett v. Harrington, 130 F.3d 246 (6th Cir.

1997).

In Bloch, the Plaintiffs engaged in protected speech by criticizing the Sheriff. 156 F.3d

673, 676. The Sheriff then retaliated by releasing confidential and highly personal details of Ms.

Bloch's rape by an unknown assailant at a press conference. Id. Specifically, the press conference

"contained details of the acts perpetrated against her that were so embarrassing she had not even

told her husband. Most importantly, the release of these humiliating details was unnecessary,

20
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 21 of 36 - Page ID#: 215

illegal according to the prosecutor, and did absolutely nothing to advance the sheriff's defense."

Id.

The actionable adverse actions in Bloch, as is the case here, is not merely about internal

employment matters, but rather, public statements to the media done in retaliation to embarrass,

harm, and humiliate the Plaintiff. Id. at 680. Bloch is on all fours with this case.

That then takes us to Barrett, 130 F.3d 246, in which the Plaintiff engaged in First

Amendment activity that was critical of a judge. The judge responded on “February 9, 1995, using

her judicial letterhead, Judge Harrington” by writing “separate letters to State District Attorney

General … and United States Attorney … requesting that they investigate Barrett because he was

‘attempting to obstruct justice by harassing [her] and [her] family,’ including requiring her to

recuse herself from future cases against him, which were likely to arise due to his ongoing dispute

with the Codes Department.” Id. at 249. In response, government agencies investigated the

Plaintiff. Id. And, the judge then escalated matters by issuing a press release to the media that

“stated that Barrett had been stalking, harassing, and otherwise intimidating her.” Id. at 251.

Here, as in Barrett, Defendants made false statements to the media in retaliation for

Plaintiff’s participation in First Amendment speech, with knowledge of their falsity, and this

caused extensive harm to the Plaintiff, and his family. As the Sixth Circuit held in Barrett, this is

actionable in a First Amendment retaliation case.

The remaining cases that Defendants cite are also distinguishable. In Atlanta Community

Schools v. Alpena-Montmorency-Alcona Educational Serv. Dist., E.D. Mich. No. 11-14361, Sept.

18, 2012 WL 4133563, *17 and Colson v. Grohman, 174 F.3d 498, 511-512 (5th Cir.1999). the

plaintiffs were not subject to any adverse actions by her employer, unlike Plaintiff who was

reassigned. In Suarez Corp. Industries v. McGraw, 202 F.3d 676, 689-690 (4th Cir.2000), the

21
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 22 of 36 - Page ID#: 216

plaintiff failed to show that the allegedly defamatory statements could reasonably be interpreted

as punishing or sanctioning or taking any adverse action. In Bondar v. D'Amato, E.D. Wi. No.

06-C-109, June 11, 2007 WL 1700114, * 8, the offending party did not assert, or even imply, that

he would utilize his governmental power to attempt to silence the plaintiff. And, in Curley v.

Village of Suffern, 268 F.3d 65, 73 (2nd Cir.2001), the plaintiff continued the same pattern of

behavior after the alleged adverse action, which contrasts with Plaintiff herein being reassigned

job duties and suffering harassment of his family and being in fear for his children. Accordingly,

Plaintiff has demonstrated that he has been deprived of a federally protected right to be free from

retaliation based on his constitutionally protected conduct.

3. Defendants’ false defamatory statements are not protected speech

Defendants next falsely contend that their defamatory letter, which contained intentionally

or recklessly false statements, is itself protected by the First Amendment. But the law is clear that

an “intentional or reckless falsehood, even political falsehood, enjoys no First Amendment

protection.”6 Colson v. Grohman, 174 F.3d 498, 507 (5th Cir.1999); Gertz v. Robert Welch, 418

U.S. 323 (1974); Hartman v. Great Seneca Fin. Corp., 569 F.3d 606 (6th Cir. 2009). With respect

to their defamatory letter, Defendants self-servingly cast themselves as concerned citizens raising

issues with law enforcement personnel. Putting aside the serious misrepresentation of their actions

here, this simply is not what the Complaint alleges.

As discussed above, the Complaint alleges Defendants knowingly wrote their letter full of

falsehoods (i.e, Plaintiff is a traitor who engaged in violence and rioting at the Capital), and then

published and circulated it with the intention of harming Plaintiff, his reputation and his

6
We discuss below that negligence is the standard to be applied here, and that Plaintiff is not a
public figure.
22
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 23 of 36 - Page ID#: 217

employment prospects. Such conduct is not protected by the First Amendment. See Westmoreland

v. Sutherland, 662 F.3d 714, 720 (6th Cir. 2011), Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct.

209, 216, 13 L.Ed.2d 125 (1964) (holding such speech unprotected by the First Amendment); and

Briggs v. Ohio Elections Com'n, 61 F.3d 487, 494 (6th Cir.1995). Applying the appropriate

standard on a motion to dismiss, this Court must accept Plaintiff’s factual allegations as true and,

in this early pleading stage, deny placing any constitutional protections on the defamatory letter.

4. Defendants are not entitled to qualified immunity

Defendants argue that even if Plaintiff properly stated a claim, they are immune from

liability under the doctrine of qualified immunity, because their actions did not deprive Plaintiff

of any clearly established right. There is a two-step sequence for resolving a government official's

claim to qualified immunity announced in Saucier v. Katz, 533 U.S. 194, 199-202, 121 S.Ct. 215,

1150 L.Ed.2d 272 (2001) and Pearson v. Callahan, 555 U.S. 223, 232, 29 S.Ct. 808, 172 L.Ed.2d

565 (2009). First, a court must decide whether the facts a plaintiff has alleged in his/her complaint,

or shown to date, make out a violation of a constitutional right. Id. Second, if the plaintiff has

satisfied this first step, the court must decide whether the right at issue was “clearly established”

at the time of defendant's misconduct. Id. To be clearly established, “[t]he contours of the right

must be sufficiently clear that a reasonable official would understand that what he is doing violates

that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 303, 497 L.Ed.2d 523 (1987).

In support of their qualified immunity argument, Defendants incorporate their arguments

regarding the failure of any adverse actions or concrete injury suffered by Plaintiff. In response,

Plaintiff incorporates his responsive arguments contained in Section III.A.2 and A.3 of this

Memorandum, demonstrating that he properly plead adverse action and concrete injury, and the

23
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 24 of 36 - Page ID#: 218

cases cited therein, all of which were published, binding authority at the time Defendants engaged

in their misconduct. Thus, Defendants do not have qualified immunity.

B. The Plaintiff adequately plead a Defamation Claim

To establish a claim of defamation, a plaintiff must establish the following elements:

• defamatory language;
• about the plaintiff;
• which is published; and
• which causes injury to reputation.
Smith v. Martin, 331 S.W.3d 637, 640 (Ky. App. 2011); Stringer v. Wal–Mart Stores, Inc., 151

S.W.3d 781, 793 (Ky. 2004) (footnote omitted). Defamatory language is broadly defined as that

which “tends to (1) bring a person into public hatred, contempt or ridicule; (2) cause him to be

shunned or avoided; or, (3) injure him in his business or occupation.” McCall v. Courier-Journal

& Louisville Times Co., 623 S.W.2d 882, 884 (Ky. 1981).” It is an elementary principle of the law

of libel that the defamatory matter complained of should be construed as a whole. … The alleged

defamatory words must be measured by their natural and probable effect on the mind of the average

lay reader and not be subjected to the critical analysis of the legal mind.” Id. (internal citations

omitted.) Whether a defamatory meaning was attributed to the language by those who received

the communication is a jury issue. Stringer, at 793.

1. Plaintiff’s defamation claim is based on demonstrably false statements of fact

In seeking to dismiss Plaintiff’s defamation claim, Defendants argue (a) Plaintiff has not

identified any provably false defamatory statements; and (b) Plaintiff cannot establish actual

malice. The first argument fails on its face where Plaintiff’s Complaint, which incorporates the

Defamatory Letter, contains numerous false statements which are factually inaccurate and can be

proven false, including the following, verbatim:

24
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 25 of 36 - Page ID#: 219

• The fact is that a substantial number of individuals who attended this event are white
supremacists waving the flag of confederacy. How can minorities in Frankfort feel
protected and served by an individual who so clearly flaunts his fraternization with racists?

• Deputy Farmer often charges all individuals in a vehicle because he believes they are guilty
by association.

• The incident at the Capital is a continuation of poor judgment, recklessness and bias
demonstrated by Deputy Farmer.

• He has been involved in many cases which reflect targeting and racial profiling.

• He has a colored history including resigning from the City of Versailles police department
in exchange for no further pursuit of criminal charges against him.

• We ask you whether taking part in a treasonous riot is the sort of good decision making
necessary for the title of deputy sheriff?

• At minimum [taking part in the riot] shows a disregard for the rules of law and the
constitutional process he swore to uphold.

• We will no longer stand by and allow Deputy Farmer to stain the reputation of Franklin
County and cripple the individual lives who [sic] we represent.

These are not hyperbolic opinions. They are false statements of fact regarding Plaintiff’s

conduct on the day of the rally, his past activities involving his job performance and his prior

employment. Each statement offers "a factual basis upon which falseness can be established." Doe

v. Coleman, 497 S.W.3d 740, 750 (Ky. 2016). They jury could easily find defamatory language

as defined above; in fact, the individuals who attacked and harassed Plaintiff’s children obviously

would agree.

In Yancey v. Hamilton, 786 S.W.2d 854, 857 (Ky. 1989), the Kentucky Supreme Court

relied on the Restatement (Second) of Torts to develop a fact-opinion distinction in defamation

cases:

“A defamatory communication may consist of a statement in the form of an

opinion, but a statement of this nature is actionable only if it implies the allegation
of undisclosed defamatory fact as the basis for the opinion." Restatement (Second)
of Torts Sec. 566 (1977) [hereinafter Restatement ].

25
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 26 of 36 - Page ID#: 220

The Restatement distinguishes between "pure" opinion and "mixed" expressions of

opinion. Pure opinion, which is absolutely privileged, occurs where the
commentator states the facts on which the opinion is based, or where both parties
to the communication know or assume the exclusive facts on which the comment
is clearly based. Restatement Sec. 566 at comment b. In contrast, the mixed type
"is apparently based on facts regarding the plaintiff or his conduct that have not
been stated by the defendant or assumed to exist by the parties to the
communication." Id.

The significant difference between the two lies in how the recipient is affected by
the communication. With mixed opinion, “if the recipient draws the reasonable
conclusion that the derogatory opinion expressed in the comment must have been
based on undisclosed defamatory facts, the defendant is subject to liability. The
defendant cannot insist that the undisclosed facts were not defamatory but that he
unreasonably formed the derogatory opinion from them.... [T]he meaning of a
communication is that which the recipient correctly, or mistakenly but reasonably,
understands that it was intended to express." Id. at comment c.

The Restatement takes the position that the court "must determine whether an
expression of opinion is capable of bearing a defamatory meaning because it may
reasonably be understood to imply the assertion of undisclosed facts which may
justify the expressed opinion about the undisclosed facts." Id.

See also Comity v. Meiners, 494 S.W.3d 499, 503 (Ky.App.2015), in which the court noted that

“even if a speaker discloses the facts on which he bases his opinion, the statement may nonetheless

be defamatory if the disclosed facts are incomplete, incorrect, or if his assessment of them is

erroneous.”

Under this standard, Defendants’ statements, to the extent that they contain opinions at all,

clearly imply assertions of undisclosed facts and/or erroneous facts and, therefore, are actionable.

Defendants made knowing misrepresentations about Plaintiff, namely alleging he participated in

the January 6th riot and committed criminal acts, made false statements of fact about the past

performance of his job duties, and false statements of fact his prior employment. That these

statements are factually based—and therefore actionable--is further evidenced by the report of Carl

Christianson provided to the Franklin County Sherriff’s Office in response to the defamatory letter.

26
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 27 of 36 - Page ID#: 221

(See Complaint, RE#1, Exhibit B.) After a thorough investigation, Christianson concluded that

the defamatory letter “grossly misrepresented available facts.” (Emphasis added.) The report

further states the evidence “overwhelmingly suggests that the letter from the Public Defender’s

Office is a personal attack against Farmer that is not supported by evidence.”

Perhaps the best evidence that these are false factual statements, not mere opinions, is

Defendants’ own after-the-fact attempts to prove them true. Immediately after Defendants insist

that all of their statements are nothing more than hyperbolic rhetoric, they request this Court to act

as a jury and find—as a matter of law—that Defendants’ statements are factually true and they

attach 85 pages of extraneous documents in support. But they cannot have their cake and eat it

too. The fact that they offer so much alleged factual and documentary support in an unsuccessful

attempt to prove the truth of their statements demonstrates that these are fact-based statements, not

mere opinions.

Further, as a procedural matter, Defendant’s extraneous materials are not properly before

this Court on a Motion to Dismiss. When a defendant challenges the factual allegations of the

complaint with extrinsic evidence, Fed.R.Civ.P 12(b) provides that under such circumstances, a

court may consider matters "outside the pleadings” if the motion is thereby treated as one for

summary judgment under Rule 56. The court must provide notice to parties and provide them a

reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Fed.R.Civ.P. 12(b) (emphasis added); Allstate Ins. Co. v. LG&E Energy, LLC, 201 Fed.Appx. 311,

313 (6th Cir.2006). As this case it in its initial pleading stages, summary judgment is simply

premature. Thus, this extraneous evidence is not properly before the Court.

But, even if this Court were to consider the voluminous materials attached to Defendants’

Motion, they demonstrate not only the falseness of the Defendants’ defamatory letter, but the

27
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 28 of 36 - Page ID#: 222

reckless disregard for the truth in drafting it. For example, in Exhibit D, Defendants attach several

Motions to Suppress in cases filed by criminal defendants in which Plaintiff was the arresting

officer. Defendants posit that these Motions support their claims in the defamatory letter that

Plaintiff was involved in racial profiling and racial targeting. In fact, and as noted, Defendants

conveniently fail to disclose to the Court that every one of the Motions to Suppress was denied,

demonstrating not merely that the allegations are provable, but that the allegations were

proven false, and Defendants knew as much when they penned their defamatory letter:

• Antione Andrews – Motion to Suppress overruled:

o Probable cause to arrest existed;
o Seizure did not exceed reasonable limits;
• Desaud Gilkely – Motion to Suppress overruled;
• Joseph Moon – Motion to Suppress overruled; Plaintiff had reasonable suspicions for the
investigative stop;
• Kiyra James Glover – Guilty plea.

(See attached court filings.)

In sum, Plaintiff’s Complaint contains more than ample, factually based, false statements

which Plaintiff will prove are false. Accordingly, Plaintiff properly stated a defamation claim.

2. Even though he is not required to do so, and is not a public figure, Plaintiff alleged
sufficient facts to support a finding of actual malice

Defendants’ argument that Plaintiff has failed to show actual malice also fails. As an initial

matter, Plaintiff contends that an actual malice standard does not apply here. Plaintiff did not attend

the rally in his official capacity; he was acting as a private citizen exercising his First Amendment

rights. Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (“[P]ublic employees do not surrender all

their First Amendment rights by reason of their employment.”).

The Sixth Circuit has suggested that rank and file police officers, such as Plaintiff, may not

be public figures and are not subject to the actual malice standard. Young v. Gannett Satellite Info.

Network, Inc., 734 F.3d 544, 549 (6th Cir. 2013). Plaintiff submits that he is not a public figure

28
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 29 of 36 - Page ID#: 223

for any of the claims, and that simple negligence suffices. See, also, Warford v. Lexington

Herald-Leader Co., 789 S.W.2d 758, 761-763 (Ky. 1990) (public university employee and

basketball coach not a public figure). He does not have the public soapbox that the Sheriff or other

public officeholders have and, thus, is not a public figure. Under Kentucky law, a private plaintiff

may recover on a showing of simple negligence, measured by what a reasonably prudent person

would or would not have done under the same or similar circumstances. McCall v. Courier-Journal

and Louisville Times Co., 623 S.W.2d 882, 886 (Ky.1981).

Regardless, even if the actual malice standard applies, Plaintiff set forth more than enough

facts upon which a jury could conclude that Defendants acted with actual malice in drafting and

circulating their defamatory letter. While Defendants argue about matters of proof, the case is in

its initial pleading stages on a motion to dismiss. A court must accept the complaint's factual

allegations as true, including all reasonable inferences from those facts, when determining whether

the allegations form a claim. Smith v. City of Salem, 378 F.3d 566, 568 (6th Cir.2004). To survive

a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will be found facially plausible if

"the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Mere conclusory

allegations will not suffice. Id. at 678-79; see also Fed.R.Civ.P. 12(b)(6).

In New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964), the United States Supreme

Court held that a defamatory statement about a public figure was actionable if it was made "with

knowledge that it was false or with reckless disregard of whether it was false or not." See, also,

Warford v. Lexington Herald-Leader Co., Ky., 789 S.W.2d 758, 771 (Ky.1990); Sparks v. Boone,

29
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 30 of 36 - Page ID#: 224

Ky.App., 560 S.W.2d 236, 238 (Ky.App.1977). In support of his claims of actual malice, Plaintiff

attached to his Complaint and incorporated therein Exhibit B, which is a report authored by Carl

Christianson and provided to the Franklin County Sherriff’s Office in response to the Defamatory

Letter. After a thorough investigation, Christianson concluded that the Defamatory Letter “grossly

misrepresents available facts.” The report further states that Christianson’s review of evidence

“overwhelmingly suggests that the letter from the Public Defender’s Office is a personal attack

against Farmer that is not supported by evidence.”

Plaintiff also attached to the Complaint text messages from one of the defamatory letter’s

signatories, Kristen Gonzalez, who admits that she made it her mission to “screw with” Plaintiff.

And, as discussed above, Defendants’ failure to supply complete information related to the public

cases which they claim to be their basis for false statements in the defamatory Letter, including

the critical fact that all the Motions to Suppress were dismissed, is sufficient to meet the standard

that Defendants recklessly disregarded the truth of the facts when drafting and publishing their

letter.

Accordingly, Plaintiff properly plead a defamation claim and Defendants’ Motion to

Dismiss should be denied.

C. The Plaintiff adequately plead an Invasion of Privacy Claim

Under Kentucky law, a plaintiff must prove two elements on a false light claim: “(1) the

false light in which the other was placed would be highly offensive to a reasonable person, and (2)

the publisher had knowledge of, or acted in reckless disregard as to the falsity of the publicized

matter and the false light in which the other was placed.” McCall v. Courier-Journal & Louisville

Times Co., 623 S.W.2d 882, 888 (Ky. 1981) (citing Restatement (Second) of Torts, § 652E (1976)).

Such claims require that the “publicity … put plaintiffs in a false light before the public.” Stewart

30
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 31 of 36 - Page ID#: 225

v. Pantry, Inc., 715 F.Supp. 1361, 1369 (W.D. Ky. 1988). A plaintiff asserting a false light claim

does not need to be defamed; rather it is sufficient that the publicity attribute to him characteristics,

conduct or beliefs that are false. McCall, fn 9; Stewart v. Pantry, Inc., 715 F.Supp. 1361, 1370

(W.D. KY. 1988).

Defendants advance the same ridiculously flawed argument here that they do in response

to Plaintiff’s defamation claim. They contend that Plaintiff has failed to allege that Defendants

publicly attributed to him any “characteristics, conduct or beliefs” that are false. This is a

preposterous position given that the defamatory letter does little else but attribute false

characteristics, conduct and beliefs to Plaintiff, including that he:

• clearly flaunts his fraternization with racists;

• charges all individuals in a vehicle because he believes they are guilty by association;
• demonstrates continued poor judgment, recklessness and bias;
• has been involved in many cases which reflect targeting and racial profiling;
• has a colored history including resigning from the City of Versailles police department in
exchange for no further pursuit of criminal charges against him; and
• took part in a treasonous riot.

In light of these direct and provably false attacks on Plaintiff’s character, beliefs and

conduct, it is difficult to imagine how Defendants can honestly contend that they have not painted

him publicly in a false light. It is not as if Defendants merely sent their letter to the Sheriff: they

publicly disseminated it in the most egregious fashion. Consequently, his children were attacked.

If there was ever a textbook case of a false light claim, this is it.

Defendants’ unsupported and self-serving attempts to characterize their malicious

statements as “innocent concerns” about Plaintiff’s position as a law enforcement officer fall flat

given both the language and tone of their letter and the fact that they did everything they could to

publicly disseminate it as much as possible. Defendants seem to believe that if they keep saying

31
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 32 of 36 - Page ID#: 226

their statements were not false, it somehow makes that so. Well, that simply does not work on a

motion to dismiss.

Yet again, Defendants insist that, at this early stage of the pleadings, Plaintiff’s claims must

fail because they cannot demonstrate actual malice (and, again, Plaintiff contends that the actual

malice standard does not apply to Plaintiff, but rather simple negligence is the standard). However,

considering, again, that this is a motion to dismiss under which this Court must accept the

allegations as true, even if a malice standard applies (see infra), Plaintiff’s Complaint contains

numerous facts which would allow a jury to find that Defendants acted with actual malice. These

facts include expressed personal animus towards Plaintiff, reckless omissions regarding the

proffered public records, and an investigative report documenting Defendants’ gross

misstatements of facts claimed by Defendants to be the truth. Defendants’ challenge to the

adequacy of Plaintiff’s well plead Complaint on these issues must fail.

D. The Plaintiff adequately plead an Invasion of Privacy on Seclusion Claim

Federal courts have opined that Kentucky applies the Restatement version of the tort of

invasion of privacy based on seclusion. Smith v. Bob Smith Chevrolet, Inc., 275 F.Supp.2d 808,

822 (W.D. Ky. 2003). And, more to the point, the Kentucky Supreme Court has so held. McCall

v. Courier-Journal and Louisville Times Co., 623 S.W.2d 882, 887 (Ky. 1981). According to the

Restatement, the standard for "intrusion upon seclusion" is an "intentional intrusion, physical or

otherwise, upon the solitude or seclusion of another ... if the intrusion would be highly offensive

to a reasonable person." Smith at 822, citing Restatement (Second) of Torts § 652B (1977). So to

prevail on a claim for intrusion upon seclusion, a plaintiff must show:

• an intentional intrusion by the defendant;

• into a matter the plaintiff has a right to keep private;

32
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 33 of 36 - Page ID#: 227

• which is highly offensive to a reasonable person.

Id., citing Restatement (Second) of Torts § 652B; see also W. Page Keeton et al., Prosser and

Keeton on the Law of Torts § 117 at 854-56; 62A Am.Jr.2d Privacy § 48 (1990). An employee’s

act of gathering other’s employment data and sending it to third parties is sufficient to prove an

intrusion. McKenzie v. Allconnect, Inc., 369 F.Supp.3d 810, 819 (E.D. Ky.2019).

Kentucky also follows the Restatement (Second) of Torts on the discrete tort of

unreasonable publicity. Ghassomians v. Ashland Independent School Dist., 55 F.Supp.2d 675, 693

(E.D.Ky. 1998):

A cause of action for unreasonable publication is further defined by § 652D which provides
as follows:

Publicity Given to a Private Life

One who gives publicity to a matter concerning the private life of another is subject
to liability to the other for invasion of his privacy, if the matter publicized is of a
kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public

Comment (a) states that publicity as used here is different from the publicity
involved in a defamation claim. For defamation, publicity merely means a
communication to a third party. In a publicity given to a private life claim, though,
publicity means the information was passed along in a way substantially certain to
become general knowledge either through dissemination to the public at large or to
a multitude of persons. Id. Consequently, a communication to a single person or
small group of persons does not constitute publicity while publication to a crowd
or through the mass media does. Id. Thus, passing the diary along to only one other
person would not constitute publicity.

See also McKenzie v. Allconnect, Inc., 369 F.Supp.3d 810, 820 (E.D. Ky. 2019): “The Restatement

says that " ‘[p]ublicity’ ... means that the matter is made public, by communicating it to the public

at large, or to so many persons that the matter must be regarded as substantially certain to become

33
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 34 of 36 - Page ID#: 228

one of public knowledge." Restatement (Second) of Torts: Privacy § 652D cmt. a (Am. Law Inst.

1977).”

Defendants contend that Plaintiff cannot establish either claim because he put himself into

the public sphere when attending the rally and posting about it on social media. But, posting to

one’s personal social media about attendance at a peaceful rally, which is confined and restricted

to one’s personal contacts, is a far cry from the Defendants’ mass dissemination of their defamatory

letter which contains a number of allegations that convey anything but attendance at a peaceful

rally.

This argument also wrongly assumes that Defendants only posted truthful comments

about Plaintiff’s attendance at the rally. Rather, Defendants’ defamatory letter contains numerous

false statements not only about his activity at the rally, but also about his current and prior job

performance, including that:

• Plaintiff flaunted his fraternization with white supremacists by attending the rally;

• Plaintiff charges all individuals in a vehicle because he believes they are guilty by
association;

• Plaintiff demonstrates poor judgment, recklessness and bias, including attendance at the
Capital rally;

• Plaintiff has been involved in many cases which reflect targeting and racial profiling;

• Plaintiff has a colored history including reassignment from the City of the Versailles police
department in exchange for no further pursuit of criminal charges against him;

• Plaintiff took part in a treasonous riot; and

• Plaintiff shows a disregard for the rules of law and constitutional process he swore to
uphold.

None of these statements were truthful statements which could be inferred from Plaintiff’s social

media posts about his attending the rally.

34
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 35 of 36 - Page ID#: 229

Defendants also insist that their defamatory letter was a matter of legitimate and public

concern. But Plaintiff has already established in prior arguments that he alleged sufficient facts to

support that that Defendants’ letter contained numerous provably false statements and that

Defendants acted maliciously or with recklessness to the truth in drafting it. In essence, Defendants

intruded on Plaintiff’s privacy by gathering data about Plaintiff’s current and past employment,

and then falsely misrepresented these facts in a letter they sought to publish not only to his

employer but to various media outlets. Based on the content and tone of the letter, and the facts

supporting actual malice alleged in Plaintiff’s Complaint, Defendants cannot not justifiably seek

dismissal on the grounds that they acted with a legitimate public purpose.

While Defendants can certainly attempt to convince the fact finders in this case that their

defamatory letter was wholly innocent and they were acting in accord with legitimate public

concerns when publishing it, at this point, Plaintiff’s Complaint contains more than sufficient facts

to demonstrate plausible claims of invasion of privacy.

V. Conclusion

The Motion to Dismiss should be denied.

Respectfully submitted,

/s/ Christopher Wiest___________

Christopher Wiest (KBA 90725)
Chris Wiest, Atty at Law, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
513/257-1895
859/495-0803 (f)
chris@cwiestlaw.com

/s/ Thomas B. Bruns_____________

Thomas B. Bruns (KBA #84985)
Bruns, Connell, Vollmar & Armstrong, LLC
4750 Ashwood Drive, Suite 200
Cincinnati, OH 45241

35
Case: 5:21-cv-00049-KKC Doc #: 14 Filed: 04/16/21 Page: 36 of 36 - Page ID#: 230

(513) 312-9890
(513) 800-1263 (fax)
tbruns@bcvalaw.com

/s/Zach Gottesman________________
Zach Gottesman (86288)
404 East 12 St., First Floor
Cincinnati, OH 45202
zg@zgottesmanlaw.com

/s/Robert J. Thumann
Robert J Thumann (KBA#90201)
Crehan & Thumann, LLC
404 East 12th St., Second Floor
Cincinnati, Ohio 45202
thumann@ctlawcincinnati.com
Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I certify that I have served a copy of the foregoing upon Counsel for the Defendants, this
16 day of April, 2021, by filing same with the Court’s CM/ECF system which gives notice to all
counsel of record.
/s/ Christopher Wiest___________
Christopher Wiest (KBA 90725)

36
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 1 of 38 - Page ID#: 231
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 2 of 38 - Page ID#: 232
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 3 of 38 - Page ID#: 233
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 4 of 38 - Page ID#: 234
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 5 of 38 - Page ID#: 235
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 6 of 38 - Page ID#: 236
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 7 of 38 - Page ID#: 237
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 8 of 38 - Page ID#: 238
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 9 of 38 - Page ID#: 239
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 10 of 38 - Page ID#: 240
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 11 of 38 - Page ID#: 241
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 12 of 38 - Page ID#: 242
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 13 of 38 - Page ID#: 243
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 14 of 38 - Page ID#: 244
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 15 of 38 - Page ID#: 245
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 16 of 38 - Page ID#: 246
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 17 of 38 - Page ID#: 247
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 18 of 38 - Page ID#: 248
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 19 of 38 - Page ID#: 249
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 20 of 38 - Page ID#: 250
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 21 of 38 - Page ID#: 251
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 22 of 38 - Page ID#: 252
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 23 of 38 - Page ID#: 253
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 24 of 38 - Page ID#: 254
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 25 of 38 - Page ID#: 255
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 26 of 38 - Page ID#: 256
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 27 of 38 - Page ID#: 257
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 28 of 38 - Page ID#: 258
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 29 of 38 - Page ID#: 259
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 30 of 38 - Page ID#: 260
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 31 of 38 - Page ID#: 261
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 32 of 38 - Page ID#: 262
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 33 of 38 - Page ID#: 263
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 34 of 38 - Page ID#: 264
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 35 of 38 - Page ID#: 265
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 36 of 38 - Page ID#: 266
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 37 of 38 - Page ID#: 267
Case: 5:21-cv-00049-KKC Doc #: 14-1 Filed: 04/16/21 Page: 38 of 38 - Page ID#: 268
Case: 5:21-cv-00049-KKC Doc #: 14-2 Filed: 04/16/21 Page: 1 of 1 - Page ID#: 269

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY (at Lexington)

JEFFREY FARMER : Case No. 5:21-cv-00049

Plaintiff :
v. :
KRISTEN GONZALEZ, et. al. :
Defendants :
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
Defendants motion to dismiss is hereby DENIED.

IT IS SO ORDERED:

____________________________
Judge