Cambridge Police Sergeant James M. Crowley is considering a defamation lawsuit, according to his lawyer. The possibility of a lawsuit adds an intriguing element to this controversy over the arrest of Harvard Professor Henry Louis Gates Jr. The Massachusetts Police Commissioner Robert Hass has also come out to criticize the comments of President Barack Obama denouncing the actions of the police as “stupidity” and suggesting that it was a case of racial profiling.
Crowley has spent the last five years teaching the avoidance of racial profiling at the police academy and has an impeccable record, here.
A defamation lawsuit would raise some novel issues. There is no question that the suggestion that Crowley acted with racial prejudice is injurious to his professional standing, particularly given his status as an expert on combating profiling. Impugning the professional integrity of another is a per se category of defamation for slander. Indeed, such profiling can be a criminal act — another category of per se defamation. A court would likely treat this as a case of per quod defamation where extrinsic facts are needed to establish the defamatory content.
There is little chance for a lawsuit against Obama who was expressing his opinion on a public controversy. He did not expressly name Crowley (which is not a barrier to recovery but makes the case more complex) and he did not expressly say that it was racially motivated. He stated his concern that it might be racially motivated.
Gates is a different matter entirely. He currently made such allegations of abuse and racism. Crowley is not technically a public figure or limited public figure simply because he is involved in a public controversy. His status as a police officer may not be enough to make him a public official under New York Times v. Sullivan. If treated as an average citizen, he would not have to satisfy the high standard of actual malice and show either reckless disregard of the truth or knowing falsity. The Court further defined the meaning of a public official in Rosenblatt v. Baer (1966) as “those among the hierarchy of government employers who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” But does this include rank-and-file police officers? Some courts have said yes, here and here.
The Supreme Court has clearly identified the seeking of public office as a common element in establishing public official status — as indicated in Gertz v. Robert Welch (1974) when the Court noted “An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case.” Moreover, the Court ruled out that mere public employment is not sufficient to establish this status. In Hutchinson v. Proxmire (1979), leaving it to “the trial judge in the first instance to determine whether the proofs show [the plaintiff] to be a ‘public official.'”
Three years after New York Times v. Sullivan, the Court greatly expanded the reach of the constitutional defamation standard in Curtis Publishing Co. v. Butts by saying that the actual malice standard applied to “public figures” as well as public officials. In Curtis, the Court described public figures as private individuals who may help shape events and views of society and “play an influential role in order society.”
There is no question that Crowley is now a public figure due to his media statements, but that does not mean that he was a public figure at the time of the statements by Gates, Sharpton, and others. As was held in Foretich v. ABC against my former client Eric Foretich, even a brief media appearance can convert an average citizens into a public figure as someone seeking public attention. Crowley, however, did not make public statements until after the original claims of racism and profiling.
Lawsuits by police officer and fire fighters have long been controversial in and of themselves. For example, under common law torts, the Fireman’s Rule barred officers from claiming the more protective status of invitees in injuries that occurred in homes. However, the common law has never limited the right of officers to bring defamation claims. Indeed, Rev. Al Sharpton (who has also intervened in this controversy with claims of racism) was found guilty of defamation of prosecutor Steven A. Pagones in the infamous case of Tawana Brawley. Notably, police officers were also defamed in that case, but the most likely litigant Harry Crist Jr. former Fishkill, NY, police officer, committed suicide after being subject to the vicious and false statements. Crowley can make the same type of allegations as in the Brawley case. Of course, the Brawley case involved allegations of the physical abuse of a young girl for racial reasons — a far more specific and clearly criminal allegation.
Gates could argue that this was merely an opinion uttered in the heat of the moment. However, the allegation continued to be made after the arrest and courts have rejected the use of the opinion defense when it is based on the assertion of a defamatory fact like racist motives.
If Crowley can avoid public official or public figure status, he could have a case. It would allow him to conduct discovery with depositions of Gates and others — a great temptation for Crowley and his allies.
There are strong public policy reasons for including police officers in the category of public officials because their actions are routinely subject to public review and scrutiny — and they hold considerable power over citizens. If he is found to be a public official, however, it becomes tougher but not impossible. He could still argue that Gates knew his allegation was false or had reckless disregard of the truth. However, Gates would argue that this was his view of the events and there is no objective means to prove one’s motivation. Moreover, Gates could argue that a ruling in favor of Crowley would expose any citizens to lawsuits by police when they allege racist motivations or actions.
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Rob Rahlf:
“This case is however about our “Constituitonal rights” under the first ammendment and “freedom of speech”. You have the right to voice anything you desire except verbally saying fire in a crowed building where there is NO FIRE, & telling a judge to F _ _ _ off or even a police officer.
Anything short of that is our God given rights provided by our founding fathers and our CONSTITUITION. NO EXCEPTIONS!!!”
**********
Well you certainly are an absolutist.Let’s look at some other fact situations and see if your “No Exceptions” rule applies:
1. American naval vessels are crossing a narrow isthmus in a canal in hostile territory and you become privy to the time and location of their crossing. You decide that this is news of public concern and you decide to broadcast it to your fellow countrymen, and also to the enemy who then immediately goes about the task of annihilating you countrymen. Still think you conduct is “God Given” and immune from criticism and punishment?
2. You are witness to a bank robbery and see the armed robber fleeing the scene. As the officers give chase, you tell the robber that the police are coming down 4th Street and his best escape route is up 3rd street. He gets away scot-free. Should your free speech rights be sacredly protected now?
3. You are driving along Highway 5 at midnight near the Guadalupe Bridge. You have just heard a radio alert that the bridge has collapsed. A family of 4 heading out on vacation asks you if you heard the newsflash that they just missed. You tell them it was some distant weather advisory and that you just came from the direction they are going and the way is clear and the bridge is fine. They roll along relying on your word and plunge into the river to their death. Still hear the fifes and drums of your free speech rights playing?
4. Your pastor has just returned from vacation in Brazil sporting a great tan and some great stories. You decide to drop by his house and tell his wife (who did not make the trip) that the good vicar told you he just broke off a torrid affair with his South American mistress. Th wife files for divorce and the pastor’s career is ruined by your slander. Still think any jury would protect you under these circumstances while you recite the Constitution?
Absolutes are for foolish or weak minds.
An Editorial Opinion,
This case against Professor Gates isn’t about a racial issue. I’m a middle aged white male & the same thing would have happen to me as well. Thanks to the cops being an arrogant, my way or the highway mentality, combined with authority issues!!!!
This arrest is about out of control police officers throughout the country. Once it was established that this house was Professor Gates residence this Officer Crowley should’ve had enough sense to leave IMMEDIATELY, PERIOD. This is just another example of rogue cops and how they don’t follow the law!!!! A judge would’ve have thrown this case out of court and in favor of Professor Gates.
The only exception would be if an verbal or physical threat was imminent.(which was NOT THE CASE).
This case is however about our “Constituitonal rights” under the first ammendment and “freedom of speech”. You have the right to voice anything you desire except verbally saying fire in a crowed building where there is NO FIRE, & telling a judge to F _ _ _ off or even a police officer.
Anything short of that is our God given rights provided by our founding fathers and our CONSTITUITION. NO EXCEPTIONS!!!
My sincere hope is that Professor Gates sues this police force because that is the ONLY WAY to stop this CONTINUOUS BAD BEHAVIOR!!!
Greatd job Mr.Turley I love how you explain things and I’ve admired you for a very long time!
“however, you are spreading the blame over too wide an area across the LE spectrum.”
FFLEO,
I am spreading the blame wide, but if you read into what I’ve posted about LE, you might understand that it is not the officers I blame. As I’ve written I’ve worked with, known and even been friends with police. Their backgrounds are similar to mine and over some drinks, back when I could, we enjoyed each others company. It is not them. It is the move in this country to Militarize the police, initiated after 9/11. It is the training of them that borders on the para-military, supplied by Homeland Security. It stems from the poisoning of the FBI by JE Hoover, who instituted a culture of lawbreaking to intensify his power. The first movie that I went to in a theater was High Noon, with Gary Cooper playing the role of Marshal Will Kaine. Standing up to evil, even when the whole town turned its’ back. I can’t overemphasize the effect it had on me, my outlook on life and how I’ve stood up to bully’s at work despite the possible effects on my career. I would have become a Cop in NYC, or Nassau County, except my eyesight at the time was unacceptable.
So understand, I’m not against LEO’s, the work they do, or getting the bad guys of this world. However, the sheer bureaucracy of police work, the demands to close cases quickly, the training that tells them they must be obeyed perfectly or face danger, the police unions that convince them they are victims, the egging on by cheap politicians (like Rudy Guiliani, who promoted an almost police riot in his mayoral campaign and fired a wonderful police chief because he got to much good publicity), Mayor Daley who encouraged the insanity in 1968 Chicago and then the reality of how they are treated badly in general by the system that praises them to the public. I’ve been in police precincts in NYC many times and seen the decrepit furniture, ill maintained buldings, disgusting rest rooms, shapeup rooms that could barely hold the next shift. I’ve even lectured at precincts on dealing with the severely mentally ill and have not only found good people ready to listen, but learned some valuable tricks from old pro’s.
I’m not anti-LEO, but I’m anti using them for purposes that disrespect our laws and our Constitution. That is where they become the victim, along with their victims. They are being ill served by the political hacks who praise them to their faces, make the public more fearful than it should be and out of sight screw the very officers they use to promote their political careers.
“I dislike “white /black” when refering to people. There are NO literally white or black people. We are all a degree of brown.’
Holly,
I’ve been fervently wishing that to be true literally since the age of four when I heard my mother talking about her disgust with segregation in N.C. from where she had just returned. Unfortunately, too many people still judge people by our superficial differences and the stereotypes they are taught
about them. I wish you a world where that which you dislike no longer exists.
“Good police reporting and work rarely makes the papers or the Huffington Post.”
Mespo,
That is true if you look at it from strictly a news story context. However, at least half of the “dramas” on TV are shows that extol police and portray them very favorably. That doesn’t count the prime time reality police shows like 48 hours, Cops, and America’s Most Wanted. There is a network ID, which runs reality police shows 24 hours a day and Oxygen that has entire
evenings devoted to showing “Snapped” a reality show about women who commit murder. The favorable publicity for police is so overwhelming as to touch on propaganda. Then too in NYC where I used to live the two tabloids The Post and The News would constantly take the side of police in cases like Amadou Diallo’s, which was to my mind indefensible. I’ve written here often that given all the favorable publicity, it is telling that police in general see themselves as victims.
I dislike “white /black” when refering to people. There are NO literally white or black people. We are all a degree of brown. We should not be identified or judged by the color of our skin but by our character.(MLK)