Court Backs Immunity for Haditha Remarks

     PHILADELPHIA (CN) – The 3rd Circuit affirmed the dismissal of a complaint accusing the late Congressman John Murtha of slandering a Marine by saying on national television that the Marine’s squad “killed innocent civilians in cold blood” in Haditha, Iraq.

     On Nov. 19, 2005, a roadside bomb in Haditha killed Lance Cpl. Miguel Terrazas. In an ensuing fight with Terrazas’ Marine comrades, two dozen Iraqi civilians, including children, died. Iraqi witnesses said Marines took revenge for the bomb by slaughtering people in the street and in their homes. The Marines claimed in an internal report, however, that the bomb’s blast took out 15 civilians and eight insurgents died in a firefight with Marines.
     Rep. Murtha, D-Pa., told reporters that a Marine squad carried out the cold-blooded murder of civilians in retribution for Terrazas’ death. Likening the Iraqi deaths at Haditha to the 1968 American massacre of Vietnamese citizens at My Lai, Murthda said American soldiers had “overreacted because of the pressure on them and killed innocent civilians in cold blood.”
     Murtha, a veteran of the Vietnam War, told CNN’s Wolf Blitzer and Anderson Cooper that he knew this to be the case because he was briefed on the incident by an individual at “the highest level” of the Marine Corps.
     Months later, in December 2006, the U.S. military filed premeditated murder charges against six members of the squad. Though charges were dismissed for lack of evidence against the six, charges against a seventh, Staff Sgt. Frank Wuterich, are pending.
     One of the six previously charged, Justin Sharratt, filed suit in September 2008, claiming Murtha’s May 2006 comments amounted to “slanderous conclusory statements that … [he] was a ‘coldblooded murderer.'” Sharratt was a 21-year-old lance corporal at the time of Haditha incident, which he characterized as a “skirmish.”
     U.S. District Judge Kim Gibson had allowed the United States in June 2009 to stand in for Murtha against Sharratt’s claims of common-law slander, false light and intentional infliction of emotional distress, finding that Murtha was acting in the scope of his federal employment when he uttered the comments at issue.
     Murtha and the United States then moved to dismiss Sharratt’s case in its entirety.
     Gibson granted that motion in March 2010, but not before Murtha died in February at 77 from gallbladder-surgery complications.
     “Had someone else made these statements about Sharratt, a slander suit most likely could proceed,” Gibson found. But Murtha’s unique station in the Congress gave him a qualified immunity shield from Sharratt’s constitutional claims, and, alternatively, were time-barred.
     “Without addressing or passing judgment on the propriety or wisdom of Murtha’s
statements,” Gibson dismissed the three remaining claims against the United States in light of Sharratt’s failure to fulfill the administrative requirements of the Federal Tort Claims Act.
     The 3rd Circuit affirmed Thursday.
     Gibson correctly tossed Sharratt’s Sixth Amendment claim, as he failed to establish that the legislator’s comments adversely impacted a criminal proceeding, the 13-page opinion states.
     Sharratt had also brought a Fifth Amendment claim, but declined to argue that claim on appeal.
     A key issue before the federal appeals court was whether Murtha had acted within the scope of his federal employment when he made the allegedly slanderous statements, and whether the government therefore properly stepped in as a defendant for the constitutional claims.
     Sharratt argued that Murtha shouldn’t have been afforded that substitution because the lawmaker was acting beyond the scope of his employment. He claimed the lawmaker’s comments concerned a criminal proceeding that was under the exclusive purview of the Executive Branch and were not authorized by Murtha’s constituents.
     A three-judge appellate panel disagreed. “It is plain that Murtha’s comments addressed a subject that is appropriate for a member of the Legislative Branch to broach,” Judge Leonard Garth wrote for the court.
     “Moreover, it is beyond peradventure that a congressman does not require explicit permission from his constituents each time he seeks to opine on an issue of public importance,” he added. “We therefore conclude that Sharratt failed to plead a plausible claim that Murtha’s comments on the Haditha incident exceeded the scope of Murtha s employment.”
     Another of the Marines, Staff Sgt. Frank Wuterich, filed a libel suit against Murtha in August 2006.
     In that case, Wuterich also argued that Murtha’s comments “were made outside of the scope of his employment as a U.S. Congressman.”
     But in contrast with the District Judge’s decision in Sharratt, a judge in Washington refused to substitute Murtha with the United States as a defendant pending a deposition of the lawmaker and fulfillment of Wuterich’s request for various discovery-related documents.
     An appeals court reversed reversed that decision in April 2009, and the District Court the suit days later.

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