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Libel-Proof Doctrine Applied to Kansas Prisoner's Libel Suit

A Kansas Federal District Court applied the "libel proof" doctrine to
dismiss a Kansas prisoner's suit for libel against a newspaper reporter.
The prisoner's suit sought damages for misstatement of facts pertaining to
his convictions for murder and two counts of kidnapping written by a
reporter for The Kansas City Star. The two articles at issue were
published as the prisoner was applying for parole. The defendant sought
dismissal arguing the prisoner was held in such contempt by the community
due to his crimes that he could not have suffered any damage to his

The Court found the libel-proof doctrine had never been applied by a
Kansas Court. However, the Court believed that if the Kansas Supreme Court
were to review the narrative of the prisoner's crimes, it would apply the
doctrine in this case. The Court held the prisoner destroyed his own
reputation with his crimes and subsequent escape attempts. Accordingly,
the Court held the prisoner suffered no damages and dismissed the suit.
See: Lamb v. Rizzo, 242. F.Supp.2d 1032 (D. Kan. 2003).

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Related legal case

Lamb v. Rizzo

The court issued the search warrant after hearing sworn testimony from witnesses, at least two of whom were officers of the law.


This warrant was then executed by officers of the Johnson County sheriff's office, Bourbon County sheriff's office, Fort Scott police department and the Kansas highway patrol on the 16th day of January, 1970. During the execution of this warrant, the shoes and purse purchased by Miss Kemmerly on the 2nd day of December, 1969, from Chasnoff's and Caldwell's in the Ward Parkway Shopping Center were located in the garage of the Lamb residence. Eight credit cards issued to Karen Kemmerly, as well as her wrist watch, in a damaged condition, and her checkbook covers were found in the Lamb home.


Subsequent to the issuance of the first search warrant on January 16, 1970, the known fingerprints of Thomas Lamb, taken from him at the time of his arrest, were transported to the Kansas City, Missouri, police department where a fingerprint identification technician compared them with the print lifted from Karen Sue Kemmerly's car on December 7, 1969. In the opinion of the technician, the fingerprint lifted off Miss Kemmerly's automobile was identical to the known fingerprint of the appellant.


On January 28, 1970, it was brought to the attention of the officers investigating the case by Mrs. Moberly that Karen's electronic garage door opener was also missing from her automobile. At this point a second application was made requesting a search warrant for the residence of the appellant, and again sworn testimony was presented to the court in support of the application, following which the warrant was issued. The second search warrant was served by officers of both Johnson and Bourbon Counties on January 28, 1970. Recovered from the dresser of the appellant was the missing electronic garage door opener, which later tests revealed would open the garage door of Karen Sue Kemmerly's home.


Subsequent to appellant's arrest on January 16, 1970, he was charged with two counts of first degree kidnapping and one count of first degree murder. He was ordered held in the Johnson County jail at Olathe without bond. On January 21, 1970, while being held in the Johnson County jail, and with the help of a jail trustee, Pat McKey, the appellant obtained a 38 caliber pistol. He and the trustee then took three dispatchers and a jailer captive and escaped from the jail after locking the four sheriff's officers in a jail cell. The appellant and McKey then proceeded across the street from the courthouse to a small cafe where they took a patron, Loyd Midyett, hostage. The pair then commandeered Midyett's car and, with Midyett in their custody, sped south from Olathe, making good their escape from the Johnson County jail. The subjects were later spotted in the area of LaCygne, Kansas, where they were eventually apprehended at a roadblock without Midyett having suffered any physical harm. According to Midyett's testimony, at one point during this trip from Olathe to LaCygne, Lamb told McKey to look out the window to see if they were being followed, and at the same time, said that if they caught him now he would be hanged for sure, following which the hostage, Midyett, said, `you haven't done anything yet to be hanged for,' and the appellant answered, `Mister, I am a murderer.'

[42] In 1997, the Kansas Court of Appeals reaffirmed Lamb's convictions. Lamb v. State, 938 P.2d 203 (1997 table).

[43] The defendant seeks dismissal on the grounds that the plaintiff's public reputation has been so demolished by his own actions that he cannot sustain an action for libel. Essentially, the argument is that Lamb is held in such contempt by the community that he could not have suffered any damages as the result of plaintiff's two articles. Although defendant has cited to no cases from Kansas adopting the libel-proof doctrine, it has been adopted in a number of other jurisdictions. For example, in Ray v. Time, Inc., 452 F. Supp. 618 (W.D.Tenn. 1976), the court held that, in light of his conviction for the murder of Martin Luther King, Jr., James Earl Ray could not maintain an action for libel against a publisher who alleged that he was a narcotics addict. See, also Cardillo v. Doubleday & Co., 518 F.2d 638, 639 (2d Cir. 1975). "[I]f there is little or no harm to a plaintiff's already low reputation, then the statements are not actionable." Cerasani v. Sony Corp., 991 F. Supp. 343, 352 (S.D.N.Y. 1998) (citation omitted).

[44] The libel-proof plaintiff doctrine must be applied with caution, because few plaintiffs will have a reputation which is so awful that they are not entitled to obtain redress. Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 303 (2d Cir. 1986). However, the court concludes that the doctrine has application here and bars plaintiff's claims. The court believes that the Kansas Supreme Court, if it were presented with the issue, would adopt the doctrine, and, upon reviewing the factual narrative of Lamb's crimes it previously recounted in Lamb v. State, would hold that the doctrine applies to Lamb's complaint of libel.

[45] Lamb's criminal convictions, and his own admissions herein, establish beyond any reasonable doubt that he is a kidnapper and murderer. He was convicted of both kidnapping and murdering Ms. Kemmerly. He was convicted of, and concedes in his responsive motion, that he kidnapped Ms. Childs. The Kansas Supreme Court, in denying Lamb's appeal, narrated the evidence of the sexual assault against Childs and Lamb's continued violent attempts to flee justice.

[46] Lamb argues that he has not committed a new crime in over 15 years, and that several persons have submitted recommendations for his parole. If Lamb has not committed any recent offenses against the public, it is likely due to the fact that he has been isolated from society by the imposition of three consecutive life sentences. Further, even that isolation has not prevented him from periodically attempting his violent reentry into society at large. Lamb, for example, does not challenge that portion of defendant's motion which describes his 1979 escape from Kansas State Penitentiary, during which he stole a car and led officers on another high speed chase, or his 1987 escape from the Larned State Hospital, during which he threatened a farmer at knife point, stole his car, and led officers on yet another car chase.

[47] This is not a case in which the substance of the plaintiff's reputation-destroying actions are in any doubt. Given the utter heinousness of the offenses which led to the plaintiff's three consecutive sentences of life imprisonment, the uncontroverted nature of those offenses, and the widespread notoriety attached to the convictions of the plaintiff as well as his periodic escapes from custody, the plaintiff has not and cannot present an actionable case of libel based upon the purported misstatements contained in Rizzo's articles.

[48] IT IS ACCORDINGLY ORDERED this day of January, 2003, that the plaintiff's Motion to Remand (Dkt. No. 9) is denied; defendant's Motion to Dismiss (Dkt. No. 6) is hereby granted.

Opinion Footnotes

[49] *fn1 Lamb also argues, in responding to defendant's contention that he is libel proof, that defendant errs in stating that he "threatened innocent civilians, twice taking a civilian hostage." Lamb states that, in his four escape attempts, he has only once threatened an innocent civilian and taken a hostage. (Dkt. No. 15, at 8).