Lee Paige played professional football and ended up as a special agent with the Drug Enforcement Administration. Primarily based in Florida, part of his career was spent undercover and part was spent publicly speaking on drug education and other subjects. His life changed on April 9, 2004 while speaking to children at the Orlando Youth Minority Golf Association about gun safety. Holding a Glock .40-caliber handgun, Paige told his audience that he was the only person he knew of in the room who was professional enough to carry a Glock .40. About one second later, Paige accidentally shot himself. The bullet wound was not serious; what was perhaps the greater injury to Paige came later.
Someone was recording video of the presentation. According to Paige, the video was given to the DEA which excised the portion dealing with the accident and then returned the remaining video to its owner. Video of the accident somehow became available and reportedly was shown by Jay Leno, CNN News, Fox News and A Current Affair among other places, and it made the rounds on the internet. Paige became the target of jokes and ridicule. He says that as a result, he became too well known to work undercover and that he was barred by the DEA from giving speeches.
Lee Paige had all he could take and two days before the second anniversary of the accident, he filed a pro se complaint against the United States of America in federal court. Two things should be noted there. The timing could be more than coincidental; perhaps the filing was to make it under the wire of a two-year statute of limitations. The other thing is that, based on the way it reads the complaint was almost certainly drafted by a lawyer, but Paige does not have a lawyer to represent him in the case. This could mean many things. Among them is the possibility that prior to filing the suit he could find no lawyer with enough confidence in the case to agree to represent him but that someone was willing to lend a hand on the side.
Lawsuits filed but not yet adjudicated have limited educational value. They can indicate that trouble is brewing, tout a new theory of litigation or reflect a new cultural trend. But they aren’t likely to be very instructive on the law. Lee Paige’s lawsuit appears to be no exception.
Paige cites his damages as emotional and mental pain and suffering, loss of reputation, embarrassment, humiliation, loss of enjoyment of life, loss of opportunity, loss of money and anxiety. The damages sound akin to those one would see in a typical defamation or invasion of privacy case. But Paige didn’t sue for either of those state common law torts.
Defamation must begin with a false statement of fact about another person. Assuming no one tampered with the tape and did not describe it inaccurately, there was no false statement of fact about Paige.
Invasion of privacy at common law can mean several things, typically intrusion upon seclusion, public disclosure of private facts, false light and commercial misappropriation of name or likeness. None of those torts fit these facts very well.
So Paige cites 5 United States Code 552(a). That is a lengthy statute in a section of the code dealing with administrative procedures for federal agencies. The specific statute is titled: “Public information; agency rules, opinions, orders, records, and proceedings.” The statute generally deals with the federal government making available government records. It addresses exceptions to information that is to be released publicly. Assuming for purposes of discussion that there is a right to sue for the release of information under this open records law, we quickly found two exceptions that likely interest Lee Paige.
Section 552(a)(2) addresses making available copies of records. It says in part, “To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available… copies of records…” Note the discretionary aspect of that exception. It says an agency “may” delete such details, not that it “shall” delete them. But an argument may evolve from the statement “to the extent required” in an effort to interpret that language as requiring deletion. This section says the deletion may be done to prevent a “clearly unwarranted” invasion of privacy. “Clearly unwarranted” is a pretty high standard. Finally, we ask whether a video made at a public meeting with what appeared to be dozens of people present, and which belongs to a member of the public, is a matter of “personal privacy” at all, particularly when it is deemed newsworthy.
Section 552(b), which is not referenced in the complaint, says the statute “does not apply to matters that are… (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Once again, the provision is premised on there being an invasion of personal privacy. And again the standard is “clearly unwarranted.”
We don’t pretend to be an authority on this statute, but our guess is that Mr. Paige has his work cut out for him.
What are some lessons that may be learned from this lawsuit? For one, we are reminded that a party aggrieved enough is likely to find a way to sue someone they blame. This is true even if the grounds for the suit are not the strongest, and even if the plaintiff must proceed without a lawyer. Another is that the filing of a lawsuit itself can take a person aggrieved by unwanted public treatment into phase 2 of that treatment, which is even more exposure as a result of the lawsuit. We had not heard of Lee Paige until we read about his lawsuit. (Phase 3 is the additional undesired attention that results if and when the plaintiff’s lawsuit is lost; this is particularly difficult for a defamation plaintiff because the loss seems to lend credence to the statements about which the plaintiff complained.)
For more information, see DEA agent who shot self in foot sues over Internet video at news.com.