A man who was fired from his job after he was featured in a “Wheel of Fugitive” social media video has sued the Florida sheriff who hosted the true-crime “Wheel of Fortune” parody.
Brevard County Sheriff Wayne Ivey regularly posts videos online where he identifies accused fugitives from justice, then spins a wheel to choose the “fugitive of the week.”
Ivey describes the photos and calls on the public to help capture the individuals by urging viewers to help him catch criminals so they “cannot hurt anyone else.”
Ivey has been known for his incisive social media posts relating to pending cases.
David Austin Gay was featured on “Wheel of Fugitive” on Jan. 26, Feb. 2, and Feb. 9, 2021. In each episode, Ivey identified Gay as a fugitive and showed his name and photo onscreen.
But at the time, Gay was not on the lam. He was incarcerated on all three dates at the Brevard County Jail.
Now, Gay wants recourse from Ivey and his department for the show. Gay filed a lawsuit for defamation on Jan. 25, explaining the fallout from Ivey’s branding him a fugitive.
According to Gay’s lawsuit, he was arrested in 2020 for domestic battery due to his attempt to break up a fight between his parents. Gay posted bond, was released and was told he had no outstanding warrants. But at the time of that 2020 arrest, Gay had been on probation for an undisclosed 2018 crime.
In 2021, Gay was taken into custody for the probation violation. The 2020 battery charges against Gay were dropped, but the probation violation remained in effect.
Gay was eventually released from jail on Feb. 24. Shortly thereafter, he planned to begin a new job. As he drove to his first day of work, Gay received a call from his would-be boss telling him not to bother coming in as his employer had seen him on “Wheel of Fugitive.”
According to Gay’s lawsuit, Ivey’s mistake was not a one-time occurrence. Gay alleges that Ivey featured several other people who did not have outstanding warrants.
Gay brought claims for defamation as well as intentional and reckless infliction of emotional distress against Ivey and the Brevard County Sheriff’s Office. He asks for damages over $50,000 to compensate him for lost wages, mental anguish, scorn, ridicule, and other psychological damages.
For Gay to succeed in a defamation case, he would need to plead and prove that Ivey published a negative false statement of fact about him which caused him to suffer tangible financial damages. From the facts publicly available, it seems likely that Gay has a strong likelihood of success.
Certainly, mischaracterizing an individual as a fugitive would amount to the kind of false statement of fact sufficient to establish liability. Understood in context, Ivey’s characterizing Gay as a fugitive could not reasonably be interpreted as an opinion.
Gay’s attorney included the legal definition of fugitive in her lawsuit:
1. One who flees or escapes; a refugee. 2. A criminal suspect or witness in a criminal case who flees, evades, or escapes arrest, prosecution, imprisonment, or service of process or the giving of testimony, esp. by fleeing the jurisdiction or by hiding.
Given that Gay was incarcerated on the dates in question, there is little chance he could be deemed to have escaped or hidden.
Gay would also need to prove that characterizing him as a fugitive has a negative meaning. Under the canons of defamation law, the implication that a person is a criminal is one of the most solid examples of a negative and defamatory statement. Furthermore, the “Wheel of Fugitive” context leaves little room for doubt; Ivey introduced the subjects as “most wanted fugitives” who might harm the public if not captured.
Gay should also have no trouble proving that Ivey’s defamatory statement was published, as the show was posted on social media and achieved wide popularity. Episodes have racked up thousands of viewers on YouTube.
The facts of Gay’s case even avoid one of the most common stumbling blocks in many defamation lawsuits: attributable damages. Many defamation plaintiffs can point to a false statement made about them — but it is often difficult for those plaintiffs to adequately prove that the statements were the direct cause of measurable financial harm.
Per Gay’s account, his case suffers no such weakness. If Gay can prove what he pleaded — that a new employer fired him entirely based on having seen “Wheel of Fugitive”— then his defamation claim has a profound chance of success.
Gay’s claims for emotional distress will likely be more difficult, as they require the defendants to have engaged in extreme and outrageous conduct.
While a parody game shows falsely identifying someone as a fugitive might indeed survive such a standard, the determination is a more subjective one for the finder of fact to determine.
“The lawsuit was filed because right is right and wrong is wrong,” said Jessica J. Travis, lead attorney with DefendBrevard.com, who represents Gay. “The rules apply to all of us – even elected public servants. We cannot defame other people or paint them in a false light. The wheel shouldn’t be padded with people who are not fugitives. No one has the right to cause compliant citizens to lose their jobs or live in fear of confrontation or arrest; not even the Sheriff.”
Attached to Gay’s complaint is a list of other people who were also featured on “Wheel of Fugitive,” but who Gay says were either in jail at the time, or were not the subject of an active warrant.
“Coincidentally, the wheel never landed on these people,” said Travis about the list. “It always landed on someone who had an outstanding warrant at the time the episode aired.”
A spokesman for the sheriff’s office didn’t immediately respond to an email seeking comment about the lawsuit on Wednesday.
You can read the complaint here.
[screengrab via YouTube]
Elura Nanos is a former civil prosecutor for New York City’s Administration for Children’s Services and a trial analyst for Law&Crime.
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