A&E Was Just Calling a Spade, 10th Circuit Says

     (CN) – A Latino inmate does not have a defamation case against the A&E television network for describing him as a member of the Aryan Brotherhood in a program about gangs that featured footage of his involvement in a prison-yard fight, the 10th Circuit ruled.



     Jerry Lee Bustos has been a longtime inmate at a federal supermax prison in Florence, Colo. In 1998, security cameras captured him in a prison-yard brawl after another inmate punched him in the back of the head without provocation.
     A&E later secured footage of the fight and included it in a program titled “Gangland: Aryan Brotherhood.” As Bustos is shown fighting with his assailant, a narrator describes the Aryan Brotherhood prison gang, its white-supremacist views and its violent history.
     “Mr. Bustos complains that this in-all-ways-unsolicited television appearance has caused him an acre of difficulty,” according to the 10th Circuit. “He says the program’s suggestion that he is a member of the Aryan Brotherhood has devastated his popularity around the jail. The Brotherhood, it turns out, did not appreciate his publicly appearing as a member without their invitation. And other gangs have also apparently become leery that Mr. Bustos might be a clandestine member of the Brotherhood. So now, Mr. Bustos complains, he has received death threats and for his own safety can’t be transferred to a less restrictive form of custody.” (Emphasis in original.)
     But while Bustos may not technically be a member of the Brotherhood, evidence shows that he has conspired with the reviled gang in the past and that his rap sheet makes him a likely candidate for induction.
     “In the A&E footage, Mr. Bustos is seen chatting with two Aryan Brotherhood members and a member of yet another gang up until the moment he gets punched,” according to the Denver-based federal appeals court. “And his relationship with the Brotherhood hasn’t been limited to rec yard chats.”
     Bustos once wrote to an Aryan Brotherhood leader after he was caught with heroin-filled balloons meant for three prison gangs, including the Brotherhood. In the note, Bustos repeatedly refers to the leader as “bro” and asks him to send his respect and regards to the gang’s members.
     The court also noted the “special sting” that affiliation with the Brotherhood carries for Bustos as a Latino man.
     “But even granting all this to Mr. Bustos for argument’s sake, the truth is that he did intentionally aid and abet the Brotherhood,” Judge Neil Gorsuch wrote for a three-judge panel. “And having willingly helped the Brothers flout prison security measures as part of a criminal conspiracy, it’s a few years too late to take a principled stand against their agenda.”
     Since Bustos was involved in at least one gang-related attempted murder, he also cannot claim to have been defamed by his association with a gang that inducts members only after they have committed or attempted to commit homicide.
     “While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true,” Gorsuch wrote. “And that is enough to call an end to this litigation as a matter of law.”

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