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BRAUN v. SOLDIER

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION


June 22, 1990

MICHAEL F. BRAUN, Plaintiff,
v.
SOLDIER OF FORTUNE MAGAZINE; et al., Defendants. MICHAEL F. BRAUN; et al., Plaintiffs, v. SOLDIER OF FORTUNE MAGAZINE; et al., Defendants

Truman Hobbs, Chief United States District Judge.

The opinion of the court was delivered by: HOBBS

MEMORANDUM OPINION AND ORDER

TRUMAN HOBBS, CHIEF UNITED STATES DISTRICT JUDGE

 On August 14, 1989, defendants Soldier of Fortune Magazine, Inc. and Omega Group, LTD filed motions for summary judgment on plaintiffs' claims. On February 12, 1990, defendants supplemented their motion. The plaintiffs responded on February 20, 1990, to which the defendants replied on February 26, 1990.

 FACTS

 On August 26, 1985, Shawn Trevor Doutre stood in Richard Braun's driveway and fired at Braun's car with a MAC 11 automatic pistol as Braun drove from his driveway. Braun rolled out of his car, falling face down onto the driveway. Doutre ran over to Braun, and fired two rounds into the back of Braun's head. Braun's sixteen-year-old son, Michael, was in the car with his father. He too rolled out of the car and lay on the other side of the driveway. After killing Braun, Doutre walked over to Michael, raised his gun, but did not fire. Instead, he put his finger over his lips and ran. Michael suffered a gunshot wound to his thigh, but survived.

 Doutre worked with Richard Savage. Savage had been hired by Bruce Gastwirth, Braun's business associate, to kill Braun. Gastwirth hired Savage through a personal advertisement run by Savage in Soldier of Fortune Magazine (hereinafter "SOF"). That ad read:

 

GUN FOR HIRE: 37-year old professional mercenary desires jobs. Vietnam Veteran. Discreet and very private. Body guard, courier, and other special skills. All jobs considered. Phone (615) 436-9785 (days) or (615) 436-4335 (nights), or write: Rt. 2, Box 682 Village Loop Road, Gatlinburg, TN 37738 (97).

 Michael and his older brother Ian Braun filed claims against SOF, its parent company Omega Group, and Gastwirth for the wrongful death of their father. Michael also has a separate action against these defendants for his injuries.

 DISCUSSION

 a. The Defendants' Duty to Screen Personal Advertisements

 The defendants SOF and Omega Group seek summary judgment, asserting that both the First Amendment and principles of tort law forbid imposing liability on a publisher for advertisements printed in its publications which do not overtly promote illegal transactions. They argue that the words "gun for hire," and "all jobs considered" are at best ambiguous, and that imposing liability on a publisher for publishing ambiguous ads is overburdensome. Thus, they argue, the Court should determine that the defendants had no duty to screen its personal ads and pull this particular advertisement from its want ad section.

 The defendants' argument that the ad's ambiguity released the publisher from any duty is not well taken. Where the ambiguity lies in whether an ad, on its face, suggests murder for hire, the Court is unwilling to rule that lack of precision in drafting absolves the defendants. Applying the familiar balancing test applied in Eimann v. Soldier of Fortune Magazine, Inc., 880 F.2d 830 (5th Cir. 1989) and accepted under Georgia law, Ely v. Barbizon Towers, Inc., 101 Ga. App. 872, 115 S.E.2d 616 (1960), this Court believes that the likelihood and gravity of the possible harm from an advertisement which, on its face, implies that the advertiser is available to kill others is so great, and that the social utility of advertising criminal activity is so small, that imposing a duty on the publisher not to publish the ad is justified. *fn1" See Prosser & Keeton, The Law of Torts, § 31 at 170-71 (5th ed. 1984); Restatement (Second) of Torts, §§ 291, 292 (1965).

 This is not a case where the product advertised is basically a safe product but which may have dangerous uses or propensities in the hands of certain users. See Walters v. Seventeen Magazine, 195 Cal. App. 3d 1119, 241 Cal. Rptr. 101 (Ct. App. 1987); Yuhas v. Mudge, 129 N.J. Super. 207, 322 A.2d 824 (Sup. Ct. App. Div. 1974). Nor is the wording of the ad so facially innocuous that, absent knowledge that the advertiser was soliciting murder contracts, the risk of murder was unforeseeable as a matter of law. *fn2" Eimann v. Soldier of Fortune Magazine, 880 F.2d 830 (5th Cir. 1989). Rather, the Court believes that the language of this advertisement is such that, even though couched in terms not explicitly offering criminal services, the publisher could recognize the offer of criminal activity as readily as its readers obviously did. See United States v. Hunter, 459 F.2d 205, 213 (2d Cir.), cert. denied, 409 U.S. 934, 93 S. Ct. 235, 34 L. Ed. 2d 189 (1972). Of course, in this Court's opinion the foreseeability of the criminal activity is ultimately a question for the jury, and that is where this case should be decided. *fn3"

  The defendants' argument that the First Amendment protects their ad publications is similarly rejected. While commercial speech *fn4" is protected under the First Amendment, that protection does not extend to advertising commercial activity which is itself illegal. Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 772, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976), citing with approval, Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 37 L. Ed. 2d 669, 93 S. Ct. 2553 (1973). Any argument that this limit on First Amendment protection applies only to overt solicitations of criminal activity fails in light of the Supreme Court's decision in Pittsburgh Press and the facts of that case. There, the Court upheld the Human Relations Commission's order banning the practice of placing job opening advertisements under columns headed "Jobs -- Male Interest" and "Jobs -- Female Interest." The Court found that Pennsylvania law made employment discrimination based on sex illegal, that these ads, as placed in labelled columns, proposed illegal employment discrimination, 413 U.S. at 388, and that, therefore, the First Amendment did not apply.

 The Court was not hindered by the ad's failure to expressly state that the employer intended to discriminate. Nor did the Court give credence to Pittsburgh Press's argument that any expression of illegal intent was clouded by the paper's announcement in its want ad section that an ad's placement in a particular column did not indicate an employer's sexual preference in hiring. After comparing the ads at issue to advertisements expressly selling prostitution or narcotics, which certainly would not be given First Amendment protection, the Court stated

 

the illegality in this case may be less overt, but we see no difference in principle here. . . .

 

. . . .

 

The advertisements . . . signaled that the advertisers were likely to show an illegal preference in their hiring decisions. The First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguable outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal.

 413 U.S. at 388-89. The Supreme Court's language in Pittsburgh Press provides ample support for this Court's decision that an advertisement which does not contain an express offer to murder others but which contains language easily interpreted as such an offer is not protected by the First Amendment.

 b. Statute of Limitations on the Wrongful Death Claims

 The defendants assert that the statute of limitations bars Michael and Ian's wrongful death claims. The statute of limitations in a wrongful death claim is determined by the nature of the injury sustained by the decedent. Adair v. Baker Brothers, Inc., 185 Ga. App. 807, 366 S.E.2d 164, 165 (1988). In this case, then, the two year personal injury limitations period would apply. Id. Braun was killed on August 26, 1985. This complaint was not filed until March 31, 1988. Michael, however, was a minor at the time of his father's death. *fn5" Under Ga. Code sec. 9-3-90, the statute of limitations is tolled as to minors until they reach the age of majority. The limitations period on Michael's claim, therefore, did not begin to run until February 15, 1987 when he turned 18, placing the March, 1988 filing well within the limitations period.

 Ian, however, was not a minor at the time of his father's death. Nevertheless, Ian may benefit from Michael's minority status under Ga. Code sec. 9-3-95. That statute provides that

 

where there is a joint right of action and one or more of the persons having the right is under any of the disabilities specified in Code Section 9-3-90, the terms of limitation shall not be computed against the joint action until all the disabilities are removed. However, if the action is severable so that each person may bring an action for his own share, those free from disability shall be barred after the running of the applicable statute of limitations, and only the rights of those under disability shall be protected.

 Thus, if a wrongful death claim is a joint action, a question which the Court reserves ruling on at this time, *fn6" Ian's claim was tolled so long as Michael was a minor.

 Likewise, Ian's claim may be tolled under Georgia's discovery rule. That rule dictates that a cause of action in tort does not accrue for purposes of running the statute of limitations until a person knows or reasonably should know that there is injury and knows or reasonably should know the cause of that injury. *fn7" Synalloy Corp. v. Newton, 254 Ga. 174, 326 S.E.2d 470 (1985). Ian alleges that, even in the exercise of due diligence, he could not have known of the circumstances of his father's death until May, 1986 when a story appeared linking the defendants to his father's death. Whether Ian knew or could have known of the defendants' involvement prior to May, 1986 would be a question for the jury. Thus, under either approach to the statute of limitations question, summary judgment could not be granted against Ian's wrongful death claim. *fn8"

 c. Punitive Damages

 Finally, the defendants argue that the plaintiffs' request for punitive damages on the wrongful death claim must be dropped because Georgia law does not permit such damages in a wrongful death claim. See Berman v. United States, 572 F. Supp. 1486 (N.D. Ga. 1983). The plaintiffs, however, only ask for compensatory damages with respect to their wrongful death claim, mooting the defendants' argument. Michael has asked for punitive damages under his personal injury claim, but whether the defendants acted maliciously or with an entire want of care, the standard for awarding punitive damages, Associated Health Systems, Inc. v. Jones, 185 Ga. App. 798, 366 S.E.2d 147 (1988), is not a question which the Court will attempt to resolve on a motion for summary judgment.

  Accordingly, defendants' motions for summary judgment are DENIED.

 DONE and ORDERED this 22nd day of June, 1990.


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