NEW HANOVER COUNTY — The defense in a civil case argued in court Tuesday for a decision to be made by a judge rather than having the lawsuit go to trial next month.
READ MORE: Plaintiffs alleging ‘racist’ smear campaign in Pender suit plea for documents ahead of trial
ALSO: 3 accused of ‘racial terror’ seek damages against civil rights lawyers in Pender case
For more than four hours, Superior Court Judge Tiffany Powers heard from both sides in Timony Kita, Jordan Kita and Austin Wood v. Lawyers Committee for Civil Rights Under Law.
The plaintiffs are suing the attorneys for defamation and libel, based on press releases the Lawyers Committee sent to media in 2021. The Kitas and Wood argue it inflamed an already tense situation and tarnished their reputations.
Tuesday’s court hearing was to determine if the case will proceed to trial Sept. 18 or be decided by a judge as opposed to a jury. Both parties wheeled in boxes of paperwork with evidence and case law to reference.
Representing the Kitas and Wood, attorney Grady Richardson urged Powers to let his clients “have their day in court.”
Port City Daily reached out to Richardson after the hearing to ask why his clients preferred going to trial.
“I do not wish to make any comment at this time in light of the ongoing litigation,” he wrote in an email.
Rob Harrington, representing the Lawyers Committee for Civil Rights Under Law — a public interest law firm based in D.C. — argued the statements made in the press releases were opinion-based, protected by First Amendment free speech, and “substantially true” or based on historical context.
The Lawyers Committee did not respond to PCD’s inquiries by press.
The defamation suit comes on the heels of a 2020 incident in Pender County that garnered national attention, when Jordan Kita, a former New Hanover County Sheriff’s Office deputy, was involved in a search for his missing adopted sister.
Based on information Kita’s mother received from students through a Fortnite message board, the family believed the missing girl was at a 101 address in the Avendale neighborhood of Rocky Point.
Kita, who remained in uniform and carrying his NHCSO-issued weapon, along with his father, Timothy, Wood, and at least six other individuals, showed up at the house they thought was the residence of a teen named Josiah, but they were mistaken. Instead, 18-year-old Dameon Shepard opened the door, around 10 p.m. according to court testimony, and insisted he was not Josiah. (Josiah had lived at a 111 address before moving out a month prior.)
Dameon’s mother, Monica, then got involved and was upset a group of people were at her door late at night. She also insisted they had the wrong address. News of the incident from multiple media outlets reported the situation as racial discrimination, as the Shepards are Black in a predominantly white neighborhood.
In January 2021, the Shepards sued the Kitas and Wood for trespassing, assault, intentional infliction of emotional distress, negligent infliction of emotional distress, invasion of privacy, and violating North Carolina’s civil rights and fair housing statutes. Local attorney Jim Lea represented the family.
Managing attorney Mark Dorosin with the Lawyers Committee for Civil Rights Under Law reached out to Lea to offer assistance. Dorosin is no longer with the firm.
The Lawyers Committee sent out a press release allegedly the same day the suit was filed, saying a “white mob” approached the Shepards “committed racialized terror” and “menaced a Black family.”
Richardson argued Tuesday the law firm’s press release came out two days before the complaint was actually filed. Harrington countered it was postmarked the day the release was sent.
“Timing is important, as we go into malice,” Richardson said. “Given the context and circumstances, you can look at statements of opinion to be verified or proven as true or untrue.”
Harrington argued the opposite. All references to “racism” or “mob” are statements of opinion, he said, which do not rise to the level of defamation.
“Only fact can be proven as defamation,” he said.
In March, Judge Phyllis Gorham ordered Richardson to supply the defendants with verbatim statements being claimed as defamatory. The allegations are broken into three groups: statements made in the complaint, those made in the press release, and other comments made by the Lawyers Committee, including from Dorosin or Elizabeth Haddix, the attorney of record on the Shepards’ civil suit.
On Tuesday Harrington went through the list of more than 100 statements, calling out most as “substantially true” — such as two of the members of the search group had weapons, Kita was in his uniform, and that Kita wanted to step inside to ask about the missing girl.
“At the very least through description of what happened at the house, and the descriptions of the actors in it, disclose a racial context,” Harrington added.
He also pointed to statements about the historical context of Black violence that were used, likening the situation to “thousands of victims of KKK night rides” or “lynch mobs in the Jim Crow era.” Harrington said those were references to history, not the plaintiffs. He also noted those statements were used in the complaint, verified by the Shepards.
“This case is not about proving whether an event, per se, happened; it’s about whether these defendants can be held liable under all the circumstances … for defamation,” Harrington said.
Harrington also noted there are allegations of slander and libel “per quod,” which point to statements that may not appear defamatory by itself, but when taken with context, can cause injury.
To prove “per quod,” Harrington said, requires verifying additional damages the comment caused, such as job loss, not just emotional damages. He also pointed to Kita’s termination with the NHCSO, and Wood being asked to stay home by an employer, both happened before the press releases were made public.
Based on the “barrage of news coverage,” as well as the public charges against Kita, announced in a local press conference, Harrington said the Kitas are considered public figures, so the standard for defamation is higher.
Kita and Wood both stood trial for criminal charges two years ago. Wood faced a misdemeanor breaking and entering, and Kita was charged with willful failure to discharge duties, forcible trespass, and breaking and entering. Both were acquitted in February 2021.
The most recent article released by Port City Daily, Aug. 16 — three years after the incident — regarding Kita’s attempts to regain employment with the NHCSO, further the “public figure” argument, according to Harrington.
Meanwhile Richardson used the same article as an example of why they’re filing for defamation and damages because there’s “nothing the Kita family can do without this being dredged up.”
“Why is it newsworthy Jordan Kita is applying for a job again at the New Hanover County Sheriff’s office?” he asked.
Kita was fired from his job as a detention officer five days after the incident, announced in a press conference with Sheriff Ed McMahon, Pender County Sheriff Alan Cutler and District Attorney Ben David. Kita took a position he said was lower-paying at Bladen County Sheriff’s Office thereafter. Lt. Jerry Brewer, spokesperson for NHCSO, told Port City Daily it was a rare occurrence to hire back a fired deputy.
DA David told PCD last week Kita was cleared of any animus against a racial minority.
Richardson furthered the point, calling out Monica and Dameon Shepards’ testimonies in Kita and Wood’s criminal trial and recent deposition to counter. He claims it was the Lawyers Committee that made it about race.
Richardson also asked mother and son if any of the plaintiffs committed racial terror or a hate crime, falsely accused the Shepards of hiding a young girl, if the Kitas actions were motivated by race, or if the Shepards considered any of the plaintiffs white supremacists.
Richardson said Monica and Dameon answered “no” to all the questions.
“You will not see one drop of evidence ever stated or suggested by actions that night that had racial statements or remarks,” Richardson said. “Race only came into play with the Lawyers Committee.”
Judge Powers interjected.
“Wasn’t the first one to mention race was the Kitas, saying ‘We’re not racist?’” she asked.
Richardson said yes, but noted the Lawyers Committee was also aware the Shepards did not testify about race, showing malice at the firm’s intent.
He also pointed to drafts of the press release, provided by the defense in discovery, with changes to interject words such as “white,” “with guns,” and “terrorize.”
“The defendants are driving the narrative of what occurred,” Richardson said. “Was it serious? Yes. But it’s not a hate crime.”
Harrington pointed to the news articles that occurred in local media long before the Lawyers Committee was involved. He also said attorney Lea has no connection to the firm, and he released statements about the incident in 2020, including terms “vigilante” and “white mob.”
“The Lawyers Committee made no public-facing statement, no statement that is a part of this record, whatsoever about the incident to the public before the Shepard lawsuit was filed,” Harrington said.
Another email exchange from the Lawyers Committee noted the Shepards did not want to offer a quote for the press release. It also suggested among attorneys with the Lawyers Committee to include the recent riot on the capitol.
“The defamation analysis looks at the gist of the circumstances ‘on the face,’ such as white supremacist, lynch mob, but also what the reader takes away,” Richardson said. “The question always is how would the ordinary man understand the publication.”
He said someone calling someone else a racist is opinion but adding context, “the sting,” “the gist,” can give rise to the statement of fact and escalate to defamation. He added the Lawyers Committee has not issued any corrective statements or removed posts on social media.
Judge Powers said she would take both sides under advisement. There is no timeline for the judge to make her decision.
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