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.
For the story, click here.
@Mike Spindell: Given all of Gates’ rhetoric on TV (racist, rouge cop), I would refuse to meet with him, too. Gates needs to get over himself, and stop expecting that he should be treated so special.
Former LEO: escalation, schmescalation. You did not, in your wisdom, identify, specifically, which laws Professor Gates violated. No charges were filed. No crime was committed.
If you are bothered by screaming and yelling from a man in his own house, based on a fear arising from a demonstrably long and and ugly past, then you cede your credentials as an LEO, former or otherwise. You do not seem to recognize this fear, and how it could possibly still exist in 2009, and the power it still has on all sides. This is why dialog is crucial.
Walk a mile in the man’s shoes, and do not forget to do it with a cane. I see the Cambridge Brass chose the opposite direction. They do not want dialog. They prefer crocodile tears.
The President was correct: the police acted (and continue to act) stupidly. But now that he’s stuck his nose in it, he will be forced to play his part. It’s an opportunity for him to bring the sides together in a teachable moment quite unlike what any other President has had.
Mike S.,
I hope Crowley changes his mind and Gates sticks to the request for mediation as that would truly be a powerful message that both men could send.
My prediction, probably somewhat cynical, is as follows:
1. Since the president imprudently commented on the event, the Republicans will continue to pound on it in the media, thus enabling them to combine political attacks with reminders to the base that the GOP is the only remaining bulwark against the loss of “our country” to “alien” forces, a reference, of course, to the ascendancy of blacks and hispanics in public life.
2. The conservative base will vent their rage over the increasingly “uppity” conduct of blacks in this society, to the delight of Limbaugh, Gingrich, Hannity and other domestic racial terrorists.
3. Things will settle down in Cambridge with a quiet acknowledgment that the reactions on all sides were disproportionate to the cause.
4. No lawsuit will be filed.
The only lasting effect will be anecdotal, another arrow in the Republican quiver to fling whenever the times are right to remind white people who their real friends are.
If Crowley casts caution to the wind he will most likely reap the whirlwind. He too will be subject to discovery.
Everyone thought the detective in the Simpson case was above all that too, then it turned out they had tapes of the guy bragging about planting false evidence on “nig****” to get them convicted.
All that attention brought down the LAPD which was found to be a criminal enterprise for RICO purposes, and the entire department was taken over by federal oversight. Everyone in it was given the microscopic once over.
It is fundamental to an understanding the history of racial bias to remember that police departments have been at #1 or #2 in the top ten entities practising racial bias in our country.
A lawsuit under 42 U.S.C. Sec. 1983 for false arrest by Professor Gates is a much better case it seems to me, even though it would be a tough struggle.
Of the two lawsuits, I would bet on Professor Gates.
Prof. Turley, thank you for your detailed explanation of the legal possibilities.
All that I can state unequivocally for now is that Pres. Obama’s remarks were exceptionally more stupid than the arrest. The arrest was likely too excessive an option; however, the biased counterclaims of racism are hyperbolic “oh poor me, I am being picked on because I am black, white, Muslim, Christian, Jewish, or too short, too fat, too poor, too rich, they are out to get me because of my ethnicity, etc.
I am often critical of LEOs because I know firsthand how the “blue code of silence” and double standard LE can operate. However, based on what I have read, I think Prof. Gates was more culpable regarding any escalations of temper than Sgt. Crowley was.
The greatest damage is that Pres. Obama has set race relations a giant step backwards by his naïve off-handed, biased, and uninformed comments.
Mike Spindell
1, July 24, 2009 at 12:12 pm
Jill,
Gates has personally requested that he and Crowley meet to discuss their different points of view, out of the media spotlite and unrecorded. Crowley has flatly refused.
Do you have a link to show this is so?
The police are NEVER wrong. 🙂 I’m watching the police union’s press conference right now on CNN and becoming more disgusted by the minute.
The arrest was punitive, in my opinion. The officer didn’t like Gates’ lack of submission to his authority, so he arrested him on a disorderly conduct charge (a bogus [punitive] charge, which was why it was thrown out — if he’d been a poor black man, it would have resulted in at least some community service or a few nights in the pokey — you have to know what you’re doing to get a charge thrown out). To me, the aspect of race is secondary to punishment. He wanted to punish Gates for having the nerve to question him. Race is a secondary issue, one that most likely plays into the initial call to police and/or police intent when they arrived on the scene. At the point the professor was identified, it should have ended. It wasn’t — only because the officer didn’t like the response he was getting.
Professor Gates promised to teach the officer a lesson on CNN. I hope he does just that. I’d like to see Gates’ retirement funded by the officer’s pension and savings, and a hefty monthly stipend from the Cambridge Police Department. Until someone — ANYONE — is held accountable, and someone — ANYONE — pays the price, in a public way, the situation between the police and citizenry will continue to deteriorate.
Jill & Mike, it is interesting that the officer would not consent to mediation. I suspect that would have to do with the fact that he might have to admit that he’s wrong — something, I suspect, he NEVER likes to do…thus the bade, the gun and the taser.
Lastly, with Obama buckeling, I wonder if he has any backbone at all. I guess he has to take back his words because his teleprompter didn’t tell him to say it — it wasn’t in the “approved” text. Good God! When are we going to get a president with both brains and brawn!
By the way, the police are really like babies the way they are carrying on about this. I say, if you don’t want a dangerous job, GET ANOTHER JOB!
Mike, that’s a crying shame. Dialog is the only way to get out of this mess. I’m listening to the (all white) Cambridge Brass making their announcement right now. They want apologies for their own failure to know the community they are paid to police.
Paid by taxpayers, I might add, who could take a lesson from Professor Gates: the answer to this abuse of power is always NO.
Jill,
Gates has personally requested that he and Crowley meet to discuss their different points of view, out of the media spotlite and unrecorded. Crowley has flatly refused.
Just reading the police report, here are my thoughts. If the police came to my home and said there had been a report of a break in and I knew there hadn’t been one, I would be confused. Given police behavior as a whole I would be nervous as to why they were there. I would hope I would try to ascertain why they were there in a calm, reasonable manner, but I can’t swear to this because the whole situation would make me very nervous.
It does sound like Gates went over the top in his reaction, but that still doesn’t matter as, as others have pointed out, it is Crowley’s responsibility to disfuse the situation. They both participated in escalating the confrontation, but the person who needed to deescalate it was the police officer. There does not seem to be any legitimate reason for the arrest of Gates that I can see in the police report.
What I really wish at this point is that both Gates and Crowley would stand back from the situation and agree to mediation. I think it would send a powerful message for these two men, to sit down and truly work out, what happened, why it happened and what should have happened. Then they should make a joint statement in public. That would be a blessing to come out of this situation.
Still if both or either side wishes to pursue this in court, they should do so and let the chips fall where they may.
A trial of the facts in this case would be very interesting.
Are we *really* expected to believe that because some of Sgt. Crowely’s best friends are black, we are to look the other way at yet another symptom of the creeping Police State, where soon we will all be arrested DWC, driving while a citizen?
If one cannot be disorderly in one’s home, we are done. Let’s just all move into penitentiaries.
Yet another reason to demand accountability for abuses, from Sgt. Crowley to Dick Cheney. The police do NOT need to “take control” of every situation.
I hope Professor Gates sues in kind. This has to stop. Sgt. Crowley needs to hear the word “no.”
What I find amazing is that Crowley claims to be an expert on race profiling yet was unable to diffuse this situation. Crowley is not a victim. He chose to escalate this thing even after he was assured that no crime was being committed. Go home Crowley and lick your wounds. Gates warned you that you didn’t know who you were messing with. You picked on the wrong “Negro.” Deal with it.
I don’t know the law of compelled self-publication well enough, but I’m curious if the fact that Crowley was required to place Gates’s statements during the arrest into the police report would suffice to add a whole seperate set of statements for Crowley to point to.
Thanks charles grashow for the police report narrative.
In a quick scan of it I see that Gates is referred to as a “black man” by each of two reporting officers and Crowley’s report also refers to the person who called about Gates’s apparent, attempted break-in as a “white woman.”
This may be standard US police operating procedure but it seems hardly an inoculation from allegations of racial abuse!
I would be happy to hear why race ID in police reports is
1) considered necessary
2) accepted as race neutral
Once the person was Identified he should have been released. Once they arrested him, on his front porch, I think they crossed the boundary of an Officers duty to do the initial investigation then to be followed up by those highly skilled and trained detectives.
Once the arrest occurred this was no longer an initial investigation. Somebody crossed the barrier and I am not sure if it was racial or not. I was not present.
The racists and the birthers will rally around this guy. He busted an African American man for trying to enter his own home. Maybe he can campaign with Palin.
All hail what I predict will be the new Joe the Plumber.
Here is a link to the police report
http://www.amnation.com/vfr/Police%20report%20on%20Gates%20arrest.PDF