Was a tweet by Mayor Jerry Dyer against a fired Fresno police officer libelous?
A jury could make that decision after a federal judge denied the city of Fresno’s motion to dismiss the count.
The city fired Richard Fitzgerald in April 2021 after a video surfaced of him attending a counterprotest at the Tower Theatre in Fresno, and also another demonstration the prior year in Sacramento.
The city called Fitzgerald a racist, words that may come back to haunt Dyer. Judge Anthony Ishii ruled that a jury will evaluate whether Dyer’s statements on Twitter were defamatory.
Fitzgerald filed a seven-count lawsuit in Fresno County Superior Court. The city successfully moved the litigation to federal court. The sides will return to court on May 24 for a scheduling conference.
Ishii released his 20-page ruling last week.
In a 2021 interview with GV Wire, a police union attorney said that Fitzgerald was a former member of the Proud Boys, which is an extremist far-right group.
Libel Claim Stands
Fitzgerald’s accusation that the city and Dyer libeled him will remain part of the lawsuit. In an April 10, 2021, Twitter post, the mayor accused Fitzgerald of “participating with the Proud Boys extremist group, it is clear to me that there were egregious violations of department policy.”
Ishii rejected the city’s argument that Dyer should be shielded from consequence. Fitzgerald’s attorney’s argument that the tweet was derived from a confidential investigation persuaded the judge.
“Dyer properly discharged his duties when he published his statement on Twitter, the Court finds that dismissal … is inappropriate,” Ishii wrote.
Dyer also wrote on Twitter “I want to reiterate to the community that I will not tolerate any form of racism displayed by City of Fresno employees.”
Wrote Ishii: “If the court concludes the statement could reasonably be construed as either fact or opinion, the issue should be resolved by a jury.”
The judge said that Dyer’s statement calling Fitzgerald racist “implied an assertion of fact.”
Due Process Count Dismissed
Ishii granted the city’s motion to dismiss a count alleging deprivation of Fitzgerald’s due process.
Fitzgerald requested a hearing before a hearing officer regarding his termination. The judge was not moved by Fitzgerald’s argument that this was inadequate.
Ishii also ruled in the city’s favor on other counts of the lawsuit, mainly on technical grounds. One count was dismissed because of redundancy. Fitzgerald will have an opportunity to refile on the other counts to correct any mistakes.