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.
seamus,
You cut right to the chase again, you rascal. Or is that “cut to the chaser”?
If Officer Crowley sues for defamation the crux will be the same as in the criminal charge.
Did Professor Gates have “a legitimate purpose” in complaining about how he was being treated after showing he was in his own home and Officer Crowley having acknowledged that?
He has a free speech right to complain about that, and if he thinks it is racially motivated he can add that aspect to his verbal complaint. And he can be as loud as he wants to be in his own home.
When Officer Crowley lost his professionalism and enticed Professor Gates outside so he could consider it a public place, and then stretch the hell out of reality and call it a situation where Professor Gates was trying to cause a riot or the like, he engineered the results.
We all know no riot would take place with all the police and few citizens there. Who was going to riot? The police were going to turn on Officer Crowley? The complaining witness?
Get a grip, stop the fantasy, stop the denial. Get in the shoes of the D.A. who threw it in the trash immediately.
There can be no defamation when there is a First Amendment right to speak out.
If there was such a right Professor Gates wins because the legitimate purpose rule takes out probable cause that a crime was committed, but if there was no such right to speak, Officer Crowley could plead a prima facia case.
Remember that the First Amendment free speech principles will prevail over government’s suppressive punishment of speech most of the time.
Seamus,
Ever had a moment when you just got pissed off by being treated unfairly and let go. You read the police reports. Let’s say for the sake of argument that they’re totally true. There was nothing in them that indicated any necessity for an arrest and there was provocation by the Officer. How? After the officer saw Gates drivers license and ID as a Harvard Professor, why did he then call in the Harvard Police and say he was leaving. Why were the Harvard police needed? As Gates was asking the officer was walking out. He in effect lured Gates outside and then arrested him. There was no reason for the arrest. What bothers me especially is that the PO is given the benefit of the doubt, but Gates a respected and distinguished man was given no benefit of the doubt from the first release of the incident.
“Gates needs to get over himself, and stop expecting that he should be treated so special.”
Alan,
So I guess you would think of Professor Gates being “uppity.”
It would only be defamation if it was untrue, correct? I think it would be easier for Gates to prove racial profiling than Crowley to prove defamation. Officer Crowley should take some vacation for a few weeks.
Amazing that the 4th Amendment stems from abusive British policies of forcing soldiers into the homes of Boston area residents.
seamus:
“O.K. I’m going to take credit for suggesting this crisis, like most in life, should be resolved with drinking …”
****************
Damn you seamus for discovering the most effective and direct way out of the dilemma. Send both guys to bar with Scotch all around and let ’em settle it the old fashion way — either belt each other, or belt down a few. Cheers, as Carlyle Moulton likes to say.
O.K. I’m going to take credit for suggesting this crisis, like most in life, should be resolved with drinking (see my above post) I just saw on Huffington post evidence that the president reads this blog and is clearly hanging on my every word.
I think Crawley can make a case even if deemed a public official. The statements by Gates appeared to made in the heat of anger and would certainly fall into the actual malice category or evil intent if made to the crowd to incite some reprisal against the officer or to expressly defame his reputation. If it can be shown that Gates had another motive –possibly a bid to seize upon the occasion to engender some publicity –then Crawley might also be able to make a case for false uttering with knowledge of the falsity of the words for financial gain. Either way it’s likely a jury question as to Gates’ motivation.
FFLeo:
I was hoping you would chime in. Could you explain the protocol for a possible felony encounter under these circumstances?
To stroke my own ego, I am hoping Sgt. Crowley got his idea for a defamation suit from me, but that would too much to ask: http://jonathanturley.org/2009/07/23/obama-weighs-in-on-gates-arrest-denouncing-police-as-acting-stupidly/
I would love to get the facts out here. I suspect we would see grandstanding and posturing that would make PT Barnum proud, and I am wiling to bet it wouldn’t be from Sgt. Crowley.
Let the Complaints begin, and we will get to the truth. I am so hoping for audio tapes!
I applaud the President’s statement this afternoon on the matter.
I would also maintain that Professor Gates is free to call a policeman in his own home anything he likes, there and afterward. This is not a crime.
If it were a crime, the charges would not have been dropped. Case closed.
A Massachusetts jury held police liable in a situation where two teens were dribbling a basketball, the police said stop it, the teens refused.
The teens escalated by then not only dribbling but using an overhang as a play pretend basket for dunking. One of them said some cuss words directed to the police.
The police began arrest proceedings, many other teens watching began to get noisy, so backups were summoned. Two others were arrested, charged with disorderly conduct like Professor Gates, and trespass.
All defendants were exonerated of all charges at trial. In a suit for false arrest and other violations, the police lost. So, Massachusetts juries can be sympathetic.
Interestingly, the Massachusetts appellate court said:
“5. The burden of demonstrating probable cause. The plaintiffs argue that the jury should have been instructed that, in the case of a warrantless arrest, the burden of proof shifts to the defendants to justify the arrest. In a Link to previous search termsfalse arrestLink to next search terms claim, where an arrest is effected without a warrant, it is indeed the defendants’ burden to prove a justification. [FN12] See Shine v. Vega, 429 Mass. 456, 463 n.13 (1999) (judge correctly instructed that on claim of false imprisonment, defendants had “the burden of proof establishing that [the defendants] confined [the plaintiff] because their confinement was justified by law”); Julian v. Randazzo, 380 Mass. 391, 395 (1980) (burden on defendants to prove justification for arresting plaintiffs without warrant); Muniz v. Mehlman, 327 Mass. 353, 356 (1951) (“In an action for an illegal arrest or imprisonment the burden is on the defendant to prove justification”); Jackson v. Knowlton, 173 Mass. 94, 95 (1899). The judge erroneously instructed the jury that “[i]n order to prove a Link to previous search termsfalse arrestLink to next search terms [claim] the plaintiffs must satisfy you by a reasonable preponderance of the evidence that they were arrested without probable cause.” Therefore, we must vacate the judgment on both plaintiffs’ Link to previous search termsfalse arrestLink to next search terms claims and remand for a new trial.”
(GUTIERREZ v MBTA, 437 Mass. 396, (2002)).
The jury found for the plaintiffs on some but not all charges, false arrest among them, and the court reversed because the police have the burden of proving they had probable cause.
The ultra quick dismissal by the prosecutors speaks volumes about the probable cause to arrest a disabled person for complaining about how he is being treated in his own home.
I cannot wait to hear the audiotape evidence.
Quote:
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http://www.huffingtonpost.com/2009/07/23/cambridge-police-union-pr_n_244048.html
Killion also claimed that audiotapes, now in the possession of the city solicitor’s office, will show that Harvard Professor Gates “turned this non-incident into a racial incident.” He said the audiotapes will prove Crowley’s account of the incident and show that Gates “was provoking the incident. He wanted to prove who he was… He deems himself higher than everyone else around.”
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As an initial matter, I find it curious that Prof. Gates’ neighbor did not recognize him before she called in the report of an apparent burglary. If I were a police officer that would give me some cause for concern when I found two men inside the house.
Also, if I had to break into my own house, I would be happy that the police showed up to see if there was a crime occurring and I would be happy to show them my identification, including something with the address on it. I would certainly think that situation was preferable to a rule that required the police to leave the scene every time someone breaks into a house and then claims they live there. What would Prof. Gates have said if he came back from his trip to find his home looted and the police had said “we showed up and the guys inside the house said they lived there so we left”? So, in short, I think, based on what I have heard so far, that Prof. Gates overreacted to the situation.
That having been said, Officer Crowley should have just walked away instead of arresting Prof. Gates. As some folks said above, being a jerk in your own house is not a crime and the professor was not a threat to public safety.
The way both sides handled the situation makes me wonder not whether it was a racial situation but rather whether there may be a history between Harvard people and the Cambridge police that sparked both over-reactions? To be honest, I may be stereotyping Prof. Gates, not as a black man, but as an (arrogant, obnoxious) Harvard professor.
Last night I caught Eric Adams former NYD officer who is now a state senator for New York,And he was being questioned by Monica crowley on Fox.
First she said well Mr.Gates was loud and abusesive,His response;
‘Not A Crime”
Then she said that he was loitering:His response
“He was Not On Public Property-Not a Crime”
Her next question I don’t remember verbatum,but Mr.Adams said”Once Mr Gates showed him his ID and let him know that it was his property,the officer should have left the scene and just kept on moving.
With all the back and forth on this issue,to me the sleeper case is “Ben Rothlisberger”of the Pittsburgh Steelers football team.
Now maybe we will see how the media handles this one,can anyone say,Kobe Bryant,Mike Tyson?
To give you some perspective remember the “Mark Chumura” incident of the Green Bay Packers?
His situation was much worse than Rothlisberger.
“Burden of Proof”http://transcripts.cnn.com/TRANSCRIPTS/0102/02/bp.00.html
Quoted for the first linked article:
_________________________________
Prof. Gates:
“This isn’t about me; this is about the vulnerability of black men in America,” Gates said.
He said the incident made him realize how vulnerable poor people and minorities are “to capricious forces like a rogue policeman, and this man clearly was a rogue policeman.”
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Calling an LEO a rogue policeman and a racist in this specific instance is beyond the pale. Gates’ statement about “this isn’t about me” is similar to a frivolous lawsuit plaintiff’s claiming, “This isn’t about the money” in a $4.278320 million dollar lawsuit based on a chipped tooth from biting down on a small piece of cherry seed in a Shirley Temple drink.
first thing i have only heard the charges were dropped…does that mean with prejudice? otherwise gates can’t speak
now…if it is without prejudice then…i still think both sides should settle down…take a deep breath…count to ten…and decide what good comes out of continuing a three ring circus
even if gates was upset and maybe thought he was being profiled…crowley should of just walked away…and if gates would of then continued (as crowley contends) followed him out of the house on his own and was saying things then crowley would of had a case
lawsuits very seldom settle anything…the two men agreeing they were both in it together…shake hands and part ways
questions that could be asked is…does crowley patrol that area…how many blacks live on that block…would crowley of reasonably known that a black man lived in that house…
both have egos and both had their egos hurt…not worth money!!! nor solving problems politely!!!!
The point of my post above is that I can’t imagine how Crowley could establish the requisite degree of fault for a private figure, matter of public concern suit.
Even if Crowly isn’t a public figure and wouldn’t be required to show actual malice, this is certainly a matter of public concern so he would need to show negligence as to the statement’s truth or falsity to recover damages.
I don’t think it’s fair to call this cop as racist, or “The Next Joe the Plumber” (who thankfully appears to have returned to his home planet)
Even from Gates’ own statement (via his attorney) his actions were less than polite to the officer who was just doing his job. It does seem to me that Gates was most likely acting like an ass when the police repeatedly tried to get him to step out side. And it really appears that Gates both at the time, and in every instance that has followed, has tried to make this as racially provacative as possible (It’s got to be good for his carrer afterall).
Having said that, it does appear that he was basically arrested for being an ass-h_ le. If Gates were my father, friend, brother, client etc. I’d have been telling him to calm down and step outside to talk to the cop. Instead Gates’ choose to make it a racial confrontation. If the cops had been acting, as they often do, in some reactionary crypto-racist fashion (especially in Beantown)they would have been kicking the door in and tackling Gate’s as soon as he refused to come outside. (I would note that in several pictures I’ve seen of Gates being lead from his house there is clearly an African-American officer leading the way, and the white officers seem to be holding their hands out flat in a gesture that suggests they’re trying to calm Gates down.
So, having said all of that, and having personally handled 100’s if not 1000’s of disorderly conduct cases when I used to be a public defender, I will add that I do not see Gate’s conduct, even as described by the police as constituting disorderly conduct. There’s is no law that says one has to be polite. There’s no law prohibiting one from being an ass-h_le in public (What c-span when Michelle Bachman is on). I think it’s a bad arrest and I think Gates would have one if he went to trial.
The problem is that Gate’s seems to be relishing his own stupid behavior. This arrest was not a horrible racially motivated miscarriage of justice. He got arrested like thousands of people all over the country, or every color and creed, who get arrested every day for “mouthing off” to police.
I don’t think the fact that the charges were dismissed is going to be much of a defense to the defamation suit since many of the dafamatory statements were made after the fact. I have really enjoyed some of Gates’ documentries on PBS, he always seemed like a really bright and likable guy. It will be too bad if this is resolved in anyway other than these two sitting in a room alone with a six pack.