Several witnesses back Chris Kyle's claim that he and Jesse Ventura exchanged words and their brief spat ended with a punch, and that is enough to throw out the former governor's defamation lawsuit, a lawyer for Kyle's estate argued Wednesday.
Attorney John Borger also contended that the witnesses Ventura has provided -- who claim they saw no confrontation or punch -- weren't even there the night in question.
Instead, Borger posited, Ventura was by himself in the bar that October night in 2006 when Kyle, then 32, decked the 55-year-old Ventura after the former Minnesota governor took a swing at him.
Ventura attorney David Bradley Olsen scoffed at that scenario. Perhaps tearing a page from his client's penchant for investigating the world of conspiracies, Olsen dubbed it "The Lone Jesse Theory."
The two lawyers squared off at a hearing in federal court in St. Paul over a motion by Kyle's widow to have Ventura's lawsuit thrown out. Ventura claims Kyle defamed him in his 2012 best-seller, "American Sniper."
Kyle reputedly was the most deadly sniper in the Navy SEALs. Ventura, himself once a member of the Navy's special forces, was Minnesota's governor from 1999 to 2003. He, too, is an author and last year co-wrote a best-seller, "They Killed Our President: 63 Reasons to Believe There Was a Conspiracy to Assassinate JFK."
After hearing 55 minutes' worth of arguments, U.S. District Judge Richard Kyle (no relation to the late defendant) said he would take the matter under advisement and issue a ruling later.
"It's an interesting case. I'll say that for it," the judge told the lawyers at the close of the hearing.
If Judge Kyle grants the defense request for summary judgment, the 2-year-old case is over and Ventura takes nothing. If the judge denies the defense motion, the case could go to trial, although a magistrate judge has ordered both sides to attend a last-chance settlement conference April 25.
If there is a trial, there is no telling when it would be. It is tentatively set for May, but Taya Kyle, Chris Kyle's widow and now the defendant in the suit, has said she wants to attend the Texas capital-murder trial of the man accused of killing her husband last February.
The criminal trial is set to begin May 5 and could last up to two months, Borger told the judge.
Ventura's defamation case stems from a 412-word passage in Chris Kyle's 448-page memoir. In it, Kyle recounted a confrontation he said he had with a man he called "Scruff Face" in McP's Irish Pub & Grill, a watering hole popular with Navy personnel in Coronado, Calif.
Kyle was there for a wake for a fallen comrade. "Scruff Face" was in town to mark the anniversary of the graduation of his Basic Underwater Demolition/SEAL (BUD/S) class.
Kyle wrote that "Scruff Face" was disparaging President George W. Bush and the war in Iraq, among other things. Kyle said he asked him to quiet down and even suggested "we just step away from each other and go on our way."
"Scruff bowed up again. This time he swung," Kyle wrote. "Being level-headed and calm can only last so long. I laid him out. Tables flew. Stuff happened. Scruff Face ended up on the floor."
Kyle ended the tale with, "I have no way of knowing for sure, but rumor has it he showed up at his BUD/S graduation with a black eye."
In later interviews, Kyle said "Scruff Face" was Ventura.
Ventura says it never happened. He sued Kyle, claiming that the story defamed him and that Kyle stuck it in the book to trade on the former governor's fame and sell more books.
Kyle left the Navy in 2009 and set up a private security firm in Dallas. He and a friend were shot and killed last year by a former Marine combat veteran whom Kyle was trying to help with a case of post-traumatic stress. Kyle had taken the man to a firing range to shoot some target practice.
Ventura continued the case against Taya Kyle as personal representative of her late husband's estate.
As a public figure bringing a defamation case, Ventura must prove Chris Kyle acted with "actual malice." An author shows "actual malice" if he writes something he knows isn't true, or writes it with a "reckless disregard" of whether it was true, legal precedents hold.
In oral arguments Wednesday, Borger told the judge Ventura couldn't meet that standard and that the witnesses weighed in favor of Kyle's version of events.
"Does Gov. Ventura have corroborating evidence? He does not," Borger told the judge.
He said that Ventura's account was "equivocal and inconsistent" and that "it is contradicted by Chris Kyle and other witnesses."
Olsen made the opposite claim. "This story is the product of Chris Kyle's imagination," he told the judge of the punch.
"This is actually a very simple case," he told Judge Kyle. "The First Amendment does not protect knowingly false speech."
He said Ventura made no inflammatory statements. "There was no fight. There was no confrontation."
Olsen claimed Kyle, "amidst the alcohol and testosterone," came up with the fight story later that night after he and his comrades moved their gathering a block south from McP's to Danny's Palm Bar & Grill.
The story went through several iterations, he said.
"Every time Chris Kyle tells the story, it not only changes, but it gets better from Chris Kyle's point of view," Olsen told the judge.
Both sides have provided the judge with depositions, sworn affidavits and photos they claim back up their position. Many statements -- on both sides -- are from past or present members of the Navy's special forces.