Call it "The Case of the Jesse Ventura Impostor."
A lawyer for the ex-Navy SEAL sniper who is being sued for defamation by Minnesota's former governor over an alleged punch argued Tuesday, Dec. 18, that in order to claim punitive damages, Ventura must prove the former SEAL didn't punch someone who "looked and acted like Ventura."
John Borger, the attorney representing former SEAL and best-selling author Chris Kyle, told a federal magistrate that Ventura has to prove Kyle fabricated the story about the punch and knew it was false when he stuck it in his book.
Ventura's lawyers haven't shown that Kyle knew his statement was false, Borger said.
"They can't rule out the possibility there was a Ventura impersonator," Borger told U.S. Magistrate Arthur Boylan in the pretrial hearing in federal court in Minneapolis.
Kyle maintains he punched Ventura in a California bar in 2006 after the former governor got mouthy and disrespectful. Ventura, who served in the Navy's Underwater Demolition Teams that later became part of the SEALs, says the incident never happened.
As with the two protagonists, the lawyers' exchanges sometimes got testy, or at least what passes for testy in the subdued chambers of a federal courtroom. At one point, Ventura's lead attorney, David Bradley Olsen, lamented: "This is starting to sound more like a political campaign than a lawsuit."
The lawyers were before Boylan to argue two motions, one from each side. Ventura wants to amend
his original suit to include punitive damages, claiming that Kyle acted with "reckless disregard" when he wrote about the alleged punch in his best- seller, "American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History."
The defense wants the judge to toss out supplemental answers and evidence that Ventura gave to Kyle's lawyers after he gave his deposition last month. Ventura's lawyers say the defense doesn't want the new evidence in the record because it supports Ventura's version of events and casts doubts on Kyle's version.
Boylan took the motions under advisement and will rule later.
In his book that came out in January, Kyle of Dallas writes that he and some other SEALs (short for Sea, Air and Land) were at a Coronado, Calif., bar for a wake for a fallen comrade when they introduced themselves to "Scruff Face," a man he described as a celebrity former SEAL who served during the Vietnam era. Ventura isn't named in the book, but the description applies to him.
Kyle wrote that he punched "Scruff Face" after the man was disrespectful and said the SEALs "deserve to lose a few" in Iraq.
While on the media tour for his book, Kyle acknowledged that "Scruff Face" was Ventura, a man whose resume includes governor, professional wrestler, conspiracy theorist and cable TV show host.
Ventura says that there was no punch and that Kyle made up the story and is using it to sell books. "American Sniper" has raked in at least $1.6 million in royalties so far, evidence in the case shows, and Kyle has sold the movie rights.
Although the book's published version didn't name the former governor, earlier drafts of it did, according to documents the defendants have turned over to Ventura's lawyers. Borger told Boylan that when the publisher wanted to use Ventura's name, Kyle asked them not to.
"He said, 'No, I don't want to do that. I don't want to embarrass anybody who's a member of the brotherhood,'" Borger told the judge.
Borger's argument about a possible Ventura impersonator is rooted in the federal and state statutes governing defamation claims. To get punitive damages, the former governor must prove Kyle made up the tale and knew it was false.
But Kyle "believed the person he interacted with ... was Jesse Ventura," Borger argued. If Kyle believed the person was the former governor -- even if it wasn't -- then Ventura couldn't prove that Kyle knew the story was false.
But Olsen told the judge there was plenty of evidence the story was made up, "and if the story is fabricated, he acted with deliberate disregard for Governor Ventura's rights."
He noted that Kyle has told different versions of the incident. He said only one other witness, a friend of Kyle's, has testified that he saw the punch, but Olsen said there was "a one in a billion chance" the witness' story was true.
"The evidence of fabrication is overwhelming," Olsen told the judge.
Borger said that if there were inconsistencies in the stories, they weren't relevant and were "something you would expect to happen at a bar."
"Military bar fights are not the equivalent of 9/11 or some other tragedy," he said.