Defamation suit by convicted criminal is thrown out of state court
The New York City Gay and Lesbian Anti-Violence Project has won dismissal of various claims filed against it by William “Billy” Bowen, 42, who asserted that the AVP posted flyers in the Chelsea area defaming him and leading to false criminal charges against him.
In a ruling published in the New York Law Journal on April 20, Justice Diane Lebedeff of New York County Supreme Court found that Bowen’s complaint failed to specify when the posters were put up and which statements on them were false, both of which are necessary prerequisites to determining whether he has a valid legal claim.
Bowen previously sued AVP over an earlier round of flyers, and lost that case when another judge granted an AVP dismissal motion.
According to Bowen’s new complaint, the posting of the AVP flyers, warning Chelsea residents that Bowen had “served time for offenses such as assault and petty larceny” and that he would “prey” on members of the community, led to him being falsely identified in some police investigations and even charged and held in prison for crimes he did not commit.
Though Bowen’s complaint failed to detail when the latest round of flyers were posted or which specific statements in them were untrue, he argued that the overall message of the flyers conveyed an inaccurate image of him, and he attached copies of the flyers to his complaint.
Bowen’s most serious complaint appeared to stem from his indictment in June 2002 on false charges of attempted murder, robbery, and assault, resulting in him being held in jail for five months until he was released when a gay bar finally came up with a security camera recording that showed he was not present in the bar on the night when the victim met his assailant. The victim, perhaps familiar with Bowen’s face from the AVP flyers, had mistakenly identified Bowen as his assailant from a collection of mug shots that the police showed him.
In December 2003, Sherry Hunter, a spokesperson for the Manhattan district attorney’s office, told Gay City News that Bowen has been convicted “roughly a dozen times” between 1993 and 2001 on misdemeanor charges in New York County, including throwing a telephone at an arresting police officer who was giving him an opportunity to make his one call.
Late last year, Bowen was convicted of three misdemeanor charges resulting from a series of confrontations he initiated in February and March of last year at Arcadia, a Chelsea gift shop, against the store’s owner, Jay Gurewitsch, who is gay, and one of the store’s employees.
According to Gurewitsch, the encounters with Bowen occurred on four successive Saturday nights, beginning on February 8, each time around 8:30 or 9 p.m. as Arcadia was planning to close. During the final encounter on March 1, just as he was closing up, Gurewitsch noticed Bowen making a beeline for the store as if he were “a man on a mission.” The two men, arriving on either side of the door at the same time, struggled for control of the entranceway until Gurewitsch warned Bowen that he had already filed charges and that any further aggression would be considered trespassing. The store owner was then able to lock the door and call the police.
As Gurewitsch held on the telephone with 911, Bowen “flew into a full blown rage,” screaming, “You are doing ecstasy and cocaine. You are selling drugs out of this store for the Black Party. Everyone in this community and in this neighborhood is doing drugs.” According to police reports, Bowen also screamed, “I work with the police. I am an undercover agent for the police. I have been on drug busts before. I have been to those parties and have arrested people there.”
Bowen finally fled when he heard sirens, according to Gurewitsch. He was arrested a week later on West 20th Street, just one block above Arcadia, as he began a street altercation—with people handing out flyers produced by AVP warning about him—that attracted the attention of the police.
According to Thomas Shanahan, Gurewitsch’s attorney, two weeks before Bowen’s criminal case went to trial, the defendant filed a civil suit naming Gurewitsch, the other Arcadia staff member Bowen had encountered, several other gay men who had made complaints against Bowen, and AVP. Shanahan said the cases against Gurewtisch and the other Arcadia employee were dismissed.
It is not clear what relationship those lawsuits have to the one disposed of by Lebedeff this month. She found that the first lawsuit against AVP did not necessarily dispose of Bowen’s current complaint against the group, since more recent flyers may differ from the earlier ones, and several of the incidents about which Bowen was complaining occurred after the prior lawsuit was decided. However, she found that Bowen’s failure to be specific in his new complaint was insufficient. Under the common law of defamation, a private individual plaintiff must allege the publication of false statements that are damaging to his or her reputation, and must particularly indicate which statements are false.
Lebedeff dismissed the complaint, but she gave Bowen the option of re-filing his defamation claim in more specific form.
However, she found that other aspects of the complaint had to be dismissed in total for various technical and factual deficiencies. Bowen sought to hold AVP liable for conspiracy, intentional infliction of emotional distress, violation of civil rights, and invasion of privacy. New York’s statutory privacy right is limited and does not apply to this kind of situation. New York’s right of privacy, a provision of the state’s civil rights law, prohibits the commercial use of a person’s name or image without their permission. AVP’s use of Bowen’s name and picture on his flyers was not deemed to be a “commercial use” by Lebedeff.
The conspiracy claims centered on situations where Bowen claims that the posting of the flyers contributed to him being improperly arrested or prosecuted for various incidents in which he was not involved, due to mistaken identity, or to more general harm to his reputation that resulted in police being suspicious of him.
Lebedeff commented that Bowen “clearly seeks to draw AVP into the scope of his claims against other defendants” who he claims were responsible for “malicious arrest or false imprisonment,” but because AVP did not itself initiate any of those arrests or imprisonments, it could not be liable on those claims. There was no indication that AVP had actively conspired with anybody else to inflict injuries on Bowen, she found.
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