This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Thomas Schlieman,





Gannett Minnesota Broadcasting, Inc.,

n/k/a Multimedia Cablevision, Inc.,

d/b/a KARE TV, et al.,



Filed ­­­August 3, 2004

Reversed and remanded

Harten, Judge


Hennepin County District Court

File No. 00-2843


Patrick T. Tierney, Collins, Buckley, Sauntry & Haugh, PLLP, W-1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for appellant)


Paul B. Klaas, Emily L. Fitzgerald, Dorsey & Whitney, LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402-1498 (for respondents)


            Considered and decided by Minge, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N



            Appellant police officer sued respondent television news station for libel based on a report regarding a fatal shooting.  The jury returned a verdict for appellant, finding that a broadcast statement was false, defamatory, and published with actual malice, and awarded damages.  The district court granted judgment notwithstanding the verdict (JNOV) on the grounds that (a) appellant failed to prove that the statement was broadcast with actual malice and (b) the jury was not properly instructed as to actual malice.  We reverse and remand.


            On 12 May 1999, Jason Melby answered a doorbell and found his neighbor, Kevin Hartwig, standing outside the door covered in blood and holding a Bible.  Hartwig told Melby that he had just sacrificed his dog and “mentioned something about the Old Testament and blood baptismals and needed to [be] cleaned or cleansed.”  Michelle Simpson, Melby’s girlfriend, called 911 and told the dispatcher that their neighbor had sacrificed a dog and needed help.

            Appellant Officer Thomas Schlieman and two other officers responded to the call.  When they arrived at the scene, Simpson directed appellant to the door of Hartwig’s residence.  Appellant opened the screen door, drew his gun, and yelled for Hartwig to come out to talk.  When Hartwig got to the door, appellant noticed a Buck knife protruding from his chest.  Appellant immediately radioed for an ambulance and asked Hartwig not to remove the knife.  Hartwig reached down, pulled the knife from his chest, and put it on the ground.  At that point, appellant instructed Hartwig to leave the knife there, indicating with his hand that Hartwig should stop and remain still.  Appellant then asked Hartwig to move a few steps back from the knife.  Instead, Hartwig said, “I don’t think so,” reached down, picked up the knife, screamed, and started to approach appellant.  As appellant began to retreat, he stumbled off the cement landing and began a backward movement to regain his balance; he backed into a parked car.  At that point, Hartwig left the landing and was running toward appellant holding the knife above his head.  Appellant fired five shots that hit Hartwig.  The officers administered first aid to Hartwig, but he later died.

Both Simpson, who watched the shooting from a window, and Melby gave statements to the police.  Simpson’s accounts of the shooting in her statement and her testimony at trial were consistent with appellant’s.

            The next morning, respondent Gannett Minnesota Broadcasting, Inc., n/k/a Multimedia Cablevision, Inc. d/b/a KARE TV (KARE TV), sent respondent Dennis Stauffer, a reporter, and John Drilling, a photojournalist, to cover the story.  They arrived on the scene and saw Simpson and Melby standing in the yard.  Simpson talked with Stauffer, while Melby declined to make a statement and remained a short distance away.  Simpson testified that she told Stauffer what she had told the police and referred him to the statement that she gave the night before.  She testified that Stauffer told her about conflicting statements from eye witnesses; when she told Stauffer that those people did not see the shooting, she got the impression that he did not believe her.  Simpson also told Stauffer that she and Melby had been surprised by the incident because Hartwig had been passive in the past: “We had never seen any aggressive tendency on his part.”

            Stauffer testified that, during the interview, Simpson kept insisting that the media were getting the story wrong.  He testified that he pointed out that he and Drilling had talked only to the police and that, if there was any problem, it would have been with the police.  He stated that Simpson told him that the incident did not have to happen because Hartwig was not being aggressive.  He denied telling Simpson that he and Drilling had received conflicting reports, explaining that they had not talked with anyone else at that point.

            During the 6:00 p.m. broadcast, Stauffer reported live from St. Cloud.  The transcript of the newscast indicates:

[Paul] Magers:           And for a second time, a St. Cloud police officer shoots to kill, and that is tonight’s top story.  Good evening.  That officer and two others are on administrative leave this evening.

[Pat] Miles:    Authorities say a deranged man came after them with a knife, leaving them no choice but to shoot.  The officers arrived at a home in St. Cloud to find a man covered in blood carrying a [B]ible with a knife sticking out of his chest.  Police say he pulled out the knife and lunged at them.  That’s when officer Thomas Schlieman opened fire, killing thirty-three year old Kevin Hartwig.  And while police say it was self defense, KARE 11’s Dennis Stauffer is live in St. Cloud with conflicting information from neighbors.

Stauffer:         Yeah Pat, there was certainly a bizarre and tragic series of events outside this northeast St. Cloud home last night.  A man police say has no history of arrest or mental illness reportedly provoked his own death.  But there’s some disagreement over exactly what happened.  Three officers were called to the home of thirty-three year old Michael Hartwig after a neighbor said Hartwig appeared with a [B]ible in hand and covered with blood saying God told him to sacrifice his dog.  When the officers arrived they say Hartwig had a knife protruding from his chest, that he then pulled it out and went after Officer Schlieman, a ten-year veteran, who fired several shots. 

Smallwood:    (St. Cloud Police Captain).  When you’re being attacked with a person with a knife, covered in blood, that apparently had attempted to take his own life, and is now coming at you in an apparent effort to take your life, you fire.

Stauffer:         Today friends and neighbors left flowers where Hartwig was killed and declined to speak on camera, but two people say they witnessed the shooting and that Hartwig was not being aggressive.  Police say that’s not what witnesses told them. 

O’Keefe:        (Chief of St. Cloud Police).  There is a significant amount of ah of ah uninvolved witness testimony available and from that you can reconstruct what ah occurred.  There was no discrepancy in those accounts last night.

Stauffer:         The only other fatal shooting authorities here can recall was in 1993 and Schlieman was the officer who fired then.  Now the BCA has been brought in to investigate this matter and all three officers who responded are on administrative leave, something that is routine under these circumstances.  Chief O’Keefe says, based on what he knows at this point, he is comfortable with Schlieman’s actions.

Miles and Magers:    Thank you Dennis.

            Simpson and Melby watched the broadcast and, after hearing the report, stormed out of their house to confront Stauffer.  Melby told Stauffer that he “got it all wrong.”  Simpson told Stauffer that she never told him that Hartwig was not violent toward the police, but that Hartwig had never been an aggressive person before the incident.  Stauffer testified that he understood Simpson and Melby to be upset at his use of the word “aggressive” rather than “violent.”  The following day, Melby called KARE TV to complain about the report.

            In October 1999, Schlieman initiated this defamation suit.  Following a trial, the jury returned a verdict in favor of respondents.  After Schlieman’s motion for a new trial was denied, he appealed.  This court determined that the district court erroneously instructed the jury regarding the defamatory-meaning element of defamation and remanded the case for a new trial.  Schlieman v. Gannett Minn. Broad., Inc., 637 N.W.2d 297 (Minn. App. 2001), review denied (Minn. 19 Mar. 2002).  Following a second trial, the jury returned a verdict in favor of Schlieman and awarded him $110,000 in damages.  Respondents moved for JNOV or a new trial.  The district court granted JNOV, finding that the evidence presented at trial was insufficient to support the jury’s finding of actual malice and that the court had improperly instructed the jury concerning actual malice.


1.         Actual Malice

            In order to be successful on a claim of defamation, the plaintiff must show that a statement was (1) communicated to someone other than the plaintiff, (2) false, and (3) tended to harm the plaintiff’s reputation or lower the plaintiff in the community’s estimation.  Rudebeck v. Paulson, 612 N.W.2d 450, 453 (Minn. App. 2000), review denied (Minn. 13 Sept. 2000).  Plaintiffs who are public officials must also prove by clear and convincing evidence that the defendant made the statement with “‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”  New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726 (1964).  Whether the evidence establishes actual malice by clear and convincing proof is a question of law, which courts may review independently.  Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 511, 104 S. Ct. 1949, 1965 (1984); see also Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003) (reviewing courts are not bound by and do not defer to a district court’s decision on a purely legal issue).  But the jury’s credibility determinations when analyzing whether a statement was made with actual malice are afforded deference and are sustained unless clearly erroneous.  Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688, 106 S. Ct. 2678, 2696 (1989).

The decision to grant a motion for JNOV is a question of law, which is reviewed de novo.  Langeslag v. KYMN Inc., 664 N.W.2d 860, 864 (Minn. 2003).  JNOV is appropriate when the facts are undisputed and reasonable minds can only draw one conclusion from those facts.  Imdieke v. Blenda-Life, Inc., 363 N.W.2d 121, 124 (Minn. App. 1985), review denied (Minn. 26 Apr. 1985).

When a district court considers a motion for JNOV it must view the evidence in the light most favorable to the nonmoving party and determine whether the verdict is manifestly against the entire evidence or whether despite the jury’s findings of fact the moving party is entitled to judgment as a matter of law.

Navarre v. S. Wash. Schs., 652 N.W.2d 9, 21 (Minn. 2002).  The jury’s verdict will not be set aside “if it can be sustained on any reasonable theory of the evidence.”  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).

In its order granting JNOV, the district court found that appellant “presented no evidence that, at the time of the broadcast, [respondents] knew or believed that the statement ‘two people say they witnessed the shooting and that Hartwig was not being aggressive’ was false.”  But actual malice also exists where a statement is published with reckless disregard of the truth, which may be found where there are obvious reasons for a reporter to doubt the veracity of an informant.  St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1325 (1968).  At trial, appellant presented evidence of circumstances that would cause Stauffer to doubt the veracity of the statement.

Simpson testified that she told Stauffer what she told police, “that [Hartwig] had charged the officer and the officer had to shoot him.”  Stauffer admitted that Simpson told her that Hartwig was approaching the officer with a knife when the officer fired.  Simpson also testified that, when Stauffer told her that other eyewitnesses were saying something different and she told him that those people did not see what had happened, she did not think that Stauffer believed her.  Stauffer testified that he never told Simpson or Melby that he had conflicting information about the shooting. 

Simpson testified, and Stauffer admitted, that she directed him to read the statement she gave to police, which was consistent with her account that appellant shot Hartwig in self-defense.  Stauffer testified that he talked with police after interviewing Simpson and Melby.  When he asked the St. Cloud Police Chief about conflicting information from eyewitnesses, the chief said that the eyewitness accounts were consistent.  Stauffer also testified that he tried to talk with other neighbors, but nobody would give him any information to corroborate Simpson’s alleged statement that Hartwig was not violent or aggressive during the incident.  Cf. Connelly v. Northwest Pub’ns, Inc., 448 N.W.2d 901, 905 (Minn. App. 1989) (no obvious reasons to doubt accuracy of source where report was corroborated by agency documents, county records, and interviews with officials), review denied (Minn. 21 Feb. 1990).  In addition, Stauffer did not speak with Simpson again before the broadcast to verify his understanding of her alleged statement.  Cf. Chafoulias v. Peterson, 668 N.W.2d 642, 655 (Minn. 2003) (reporter’s independent investigation into allegations, including comments from the plaintiff, was evidence against a finding of actual malice).

The record reveals that facts were disputed and that competent evidence was presented at trial to reasonably support the theory that Stauffer had obvious reasons to doubt the truth of conflicting accounts of the incident.  Giving deference to the jury’s credibility determinations, Harte-Hanks, 491 U.S. at 688, 109 S. Ct. at 2696, and viewing the evidence in a light most favorable to the jury’s verdict, Navarre, 652 N.W.2d at 21, we conclude that JNOV was inappropriate notwithstanding that malice is a question of law, which courts may review independently.  Absence of malice was not established as a matter of law.

2.         Jury Instructions

District courts are allowed considerable latitude in selecting the language in jury instructions.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  Jury instructions are reviewed to determine whether, taken as a whole, they misstate or confuse a principle of law that applies to the case.  Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974).  Appellant argues that the district court erroneously granted JNOV because the jury instruction regarding actual malice was accurate and adequate.

The district court did not give a preliminary instruction on actual malice, but gave the following instruction from Civil Jury Instruction Guide 50.40 at the close of the trial:

It must be proved by clear and convincing evidence that the allegedly defamatory statement was published with actual malice.

            Definition of “actual malice.”  The statement is published with “actual malice” if the person who published it knew it was false or had substantial doubts about its truth.

            Definition of “clear and convincing evidence.”  “Clear and convincing evidence” means it is highly probable that the statement was published with actual malice.  Put another way, you must firmly believe that defendants published the statement with actual malice.

In its memorandum granting JNOV, the district court found that, given the evidence presented at trial, “a reasonable jury could have reached a finding of actual malice only if it did not understand the definition of actual malice.”  The district court concluded that it had committed prejudicial error by not providing a preliminary instruction on actual malice.  But although giving a preliminary instruction on actual malice is recommended in a note to CIVJIG 50.40, it is not mandatory.  4 Minnesota Practice, CIVJIG 50.40 use note (1999) (“The Committee recommends that the trial court instruct the jury at the beginning of the trial on the meaning of ‘actual malice,’ as well as at any point during the trial where the definition will be placed in issue.”); see also Minn. R. Civ. P. 39.03 (district court may instruct the jury prior to opening statements about the claims at issue, matters to aid the jury in comprehending the trial procedure and sequence, or any rule the court deems is essential to properly understand the evidence).

The district court also found that it committed prejudicial error by denying appellant’s and respondents’ requests for a more complete instruction.  But the district court did not find, and respondent does not argue, that CIVJIG 50.40 does not fairly and correctly state the applicable law.  See Alevizos v. Metro. Airports Comm’n, 452 N.W.2d 492, 501 (Minn. App. 1990) (new trial is not warranted where instructions fairly and correctly state the applicable law), review denied (Minn. 11 May 1990).   Therefore, any error in the jury instructions was harmless.  See Lewis v. Equitable Life Assurance Soc’y of the United States, 389 N.W.2d 876, 885 (Minn. 1986) (erroneous jury instruction does not warrant reversal unless the error is prejudicial).

We reverse and remand with instructions that the district court order judgment incorporating the jury’s verdict.

            Reversed and remanded.