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.
AY,
In Re Sarcasm: Thanks. One lives to be of service, but it is occasionally nice to hear from a cohort in the application of sideways language that “This guy’s kung fu is pretty good.” I must also concur that mespo can be stunningly sly and natural in his sarcasm. Zen was a good word choice.
As for children, there is nothing more sarcastic than a 13 y.o. girl except for a group of them. I started honing my skills at an early age as a dating defense mechanism. It’s one of the reasons I love the women so. You should also meet my Aunt J – possibly the most sarcastic person I’ve ever met. It’d be love at first quip.
CM,
I must concur with your analysis of practical applications of therapeutic recreational chemistry, but some people like Coke and some people like Pepsi. Just as long as they get together and lighten the Hell up. But a beer or two is probably not as risky as a martini or two. After all, Aristotle’s advice of “everything in moderation” would have probably avoided the whole scene.
Carlyle Moulton 1, July 25, 2009 at 6:50 am
New Reference.
Actually I do have some troll ancestry. I dislike writing anything unless I can use scathing sarcasm. I hope to be the first person to develop sarcasm into a weapon of mass destruction.
*********************
Just Study Buddha, he will take you in the direction you wish to go if you really want scathing sarcasm. If you want Zen sarcasm, see mespo. If you want an A__ __ H__ __ __’s perspective on scathing sarcasm then I volunteer my services.
But I most assuredly you, anyone at anytime can teach you some degree of sarcasm. Children are the best living proof.
New Reference.
Actually I do have some troll ancestry. I dislike writing anything unless I can use scathing sarcasm. I hope to be the first person to develop sarcasm into a weapon of mass destruction.
Mews Reference.
The N word has uses. It encapsulates all the malign stereotypes that the vast majority of white people in the US have of the people with brown skin whether or not they are of African descent.
When Amadou Diallo died in a hail of bullets from 4 NYPD cops before those cops realized that he was unarmed, it was not because he was a Negro, that is a person of the African race with brown skin it was because the white policemen saw him as a Nigger, that is a subhuman (underman) possessing all those bad characteristics such as being dirty, being stupid, being inherently criminal, …… that descent white americans assume belong to Afican Americans other than the few good African Americans that they know.
For an African American what is the most important determinant of what happens to them, it is that white people see them as niggers.
Of course one can refrain from using the N word, but the malign stereotypes do not disappear because no one uses it. For this reason I think the N word should be used especially by African Americans as a means of highlighting that they know about the stereotypes.
“Carlyle Moulton”, I stopped reading your first post three sentences in when you felt a need to print out the “N” word.
Unless your intention is to be deliberately offensive you might want to stop using that word.
But if being deliberately offensive is your thing, hey, don’t let anyone slow you down.
Jane Elliott has also written a book “A Class Divided” here is the link to the Amazon entry for it:-
http://www.amazon.com/Class-Divided-Then-Now-Expanded/dp/0300040482.
Here is a link to PBS related to the film “A Class Divided” http://www.pbs.org/wgbh/pages/frontline/shows/divided/etc/view.html.
For more information on Jane Elliott and her technique use Google. the search string that I used is:-
“Jane Elliott” “Blue Eyed” “A Class Divided”.
In my post 3 before this one I have just noticed an error. The sentence that reads “So in relation to Gates Crowley is twice an overman, once because he is white and Crowley is Black and again because Crowley is a policeman and Gates not.” should of course read “So in relation to Gates Crowley is twice an overman, once because he is white and Gates is Black and again because Crowley is a policeman and Gates not.”.
I don’t think getting together over a beer is a good idea. If they need to use drugs marijuana would be better than alcohol. Alcohol tends to make people more sensitive to perceived assaults on their self esteem, more likely to misinterpret something as a slight when no such intention existed in the speaker and bellicose as well. Marijuana on the other hand is calming and opens the mind to points of view which would normally be unthinkable.
However participation in one of Jane Elliott’s racism sensitization exercises for both would be good therapy and failing that a joint viewing of some of the documentaries made on Jane Elliott’s methods.
It won’t happen.
I guess this story will include urine now.
The comic circle is complete.
And this just in . . .
http://www.theroot.com/views/gates-says-yes-beer-crowley
Beer wins again.
Final Score
seamus “the Chicago Psychic” = 1
race based thinking first = 0
I would like to state as a matter of record that I only took the side of them having a drink and sorting it out.
Or you could sue, waste a lot of time and money and do nothing but piss everyone off.
Why not try what tribesmen with differences have done from the time we left the nomadic life – sit, have a drink/smoke/mushroom/pickled local delicacy of choice and either talk it out or keep escalating.
Not every thing is best solved by law suits.
And honestly? I think this whole thing isn’t about race at all.
It’s about “Who has the biggest penis in this/his/my/whomever house.” “You don’t respect my home!” “You don’t respect my badge!” Blah blah blah blah blah. It’s territorial marking sans urine.
Which is kinda sad because that would have been a much funnier story if it unfolded properly.
There is a relevant article on the Huffington post at this linkhttp://www.huffingtonpost.com/2009/07/23/cambridge-police-union-pr_n_244048.html.
This article states that the police have a sound recording of what happened and that it supports their case. We should press for the full contents of the tape to be made available as whether it supports the police or Gates is not a matter of fact but one of opinion depending on how one interprets tone of voice as well as the words.
Overmen (Ubermenchen) Undermen (Untermenchen) and the concept of Uppity
Understanding of what most likely happened between Crowley and Gates might be helped by examining these concepts.
The word “uppity” is most often seen followed by the word “nigger” but it has much wider applicability. For example Israel has a serious problem with uppity Palestinians, the Islamic nations have such a problem with uppity women and back in nineteen forties Europe the nazis had a problem with uppity Jews.
Overmen have the right and indeed the duty to keep undermen under control and the threat of undermen getting ideas above their station and appropriating rights or property to which they are not entitled is ever present.
The proper behaviour between overmen and undermen is controlled by Jim Crow Etiquette, there are different varieties of Jim Crow etiquette for overmen dealing with undermen, for undermen dealing with overmen and for overmen talking with other overmen about undermen. For example an overman talking to an underman must on no account show courtesy to the underman of the type he would show another overman. To do so is to humiliate not just himself but all overmen. An underman talking to an overman owes the overman a servile type of courtesy and must on no account imply that he is entitled to the kind of courtesy from the overman that the overman would owe to another overman.
There are many instances of the overman/underman relationship. There is that between master and servant, between aristocrat and serf, between a member of a superior race and a member of an inferior one and that between male human and female human. In particular the relationships between white and black and that between a policeman and a mere member of the public are both that of overman to underman. So in relation to Gates Crowley is twice an overman, once because he is white and Crowley is Black and again because Crowley is a policeman and Gates not. But Gates is a member of the respectable classes, a professor at Harvard University, a high status individual while Crowley is one of the lower proleteriat, a street cop, so this makes Gates the overman and Crowley the underman. You can see how this ambiguous relationship with respect to Jim Crow Etiquette leads to misunderstanding and trouble.
It seems to me that most people on this blog, including myself. have chosen sides, either we believe the police account of what happened and think Professor Gates an insufferable pompous ass and a liar or we believe that of Gates account is substantially true and that Crowley was overbearing, obnoxious and racist. In truth the benefit of the doubt is owed to both sides, this is essentially a case of one person’s word against another. The fact that other police back up Crowley’s account is irrelevant since as associates they would be expected to back each other up regardless of the facts. Since none of us were there and since there is no recording of what happened we have to suspend judgement.
However there are some things we can be certain of. We can be certain that Professor Gates perceived the behaviour of Sgt Crowley towards him as lacking the courtesy that he felt he was owed and we can be certain that Sgt Crowley perceived Professor Gates behaviour towards him to be lacking in the required respect.
One problem is that the basis of law and order and the stability of society crumbles unless people automatically believe the police when they are contradicted by an alleged perpetrator.
I get the feeling the Cop was a decent guy who got offended and abused his authority.
That’s not new and not necessarily tied to racism.
But someone spent their evening in jail for hurting the feelings of a cop.
If that’s not an abuse of authority I don’t know what is.
What’s perverse is that from what I’ve been reading in various places, Republicans apparently think there’s a “Talk back to a cop and get arrested law” that’s enforceable and “okay”.
That’s antithetical to “freedom” and antithetical to judicious “law enforcement”.
The Orwellian Republican Party is their own opposition Party: They are consistently against what they claim to be for.
Rather than persuading Crowley and Gates to get together over a few drinks, instead persuade them to attend one of Jane Elliott’s sensitization to racism sessions as described in the films “Blue Eyed” and “A Class Divided”.
Racists are not necessarily evil, in most cases they are genuinely unaware of their own racism and of how unpleasant it is for one who is both dis-empowered and on the receiving end of it. Jane Elliotts’s technique puts people through exercises where they get to act out both sides of the racist confrontation. They get to play the role of overman in one half of the session and underman in the other. Thus they have the techniques and assumptions of prejudice demonstrated from both sides.
My guess is that both Crowley and Gates are racist to a considerable extent. It is a common fallacy to believe only whites can be racist, in fact racism is a normal human characteristic as normal as the possession of two eyes or ten fingers, the difference between honkeys and niggers in the USA is that honkeys have far more chances to act in a racist way to niggers than the other way around, that does not mean that niggers wont racially abuse honkeys when presented with the opportunity.
Jane Elliott’s technique appears to work even in quite refractory cases, it involves forcing people to walk in the shoes of another for a considerable distance. I recommend to all readers of this blog thread that they get hold of one or both films and view them, preferably in company with people whose beliefs about racism differ from their own, Mespo and Mike Spindell for example.
Oops, make that “Gates and his [supporters]…” in line 11.
Dredd:
“There can be no defamation when there is a First Amendment right to speak out.”
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Surely you must know the First Amendment does not protect one from defamation claims except to the extent described in NY Times v. Sullivan and progeny. There is no absolute right to speak; it always governed by the rule of reasonable protection from harm lest you go out falsely evacuating theaters over mythical fires. It is also governed by the offense principle which protects the public from obscenity. This harm principle and offense principle serve as constraints on everyone’s ability to speak and the government may properly restrict some speech such as that at issue here in preventing an incitement to violence or disruption of public order.
Your contention that Gates was lured out of his house to be charged is likewise suspect and the burden is upon Gates and his detractors to prove this intent. It is just as likely that the officer was trained to clear any house in which a suspected felony was occurring to protect against the possibility of an intruder hiding in the rear of the dwelling or holding another person hostage as the owner attempted to assuage the legitimate suspicions of the police.
You may recall the murder of 12 year old Polly Klass, kidnapped from her parents home during a slumber party by Richard Allen Davis. Police encountered Davis while searching for the missing child as he possessed the girl in the trunk of his car. His car was stuck in the mud. Since no probable cause existed to search his vehicle they let him go whereupon he proceeded to rape and murder the child. Proper police work would have required a simple radio call to match the car’s license plate with the suspect vehicle and the existing APB. This deference to inconveniencing a private citizen directly resulted in the horror visited upon this child and her family.
I try to evaluate the cases fairly without reflexive responses based on ideology. Others do not take that approach, and that is why I am usually criticizing the right for their mindless reliance on stereotypes and easy answers to complex problems. It is both revealing and disconcerting that I have to fight the same battles so close to home.
However like my hero, Adlai Stevenson, I believe, “The sound of tireless voices is the price we pay for the right to hear the music of our own opinions. But there is also, it seems to me, a moment at which democracy must prove its capacity to act. Every man has a right to be heard; but no man has the right to strangle democracy with a single set of vocal chords.” Here Sgt. Crowley acted properly in my view and based upon what I have read. I am not wedded to that opinion and, like all opinions, it is subject to new and credible conflicting information. However, I find it strange that those sworn to protect our rights are given so little benefit of the doubt when the question is clearly in issue. Especially so for a man like Crowley who is bona fide hero, and, by all accounts a fine public servant. Does a man’s history mean nothing when we are hell bent on proving compliance with our preconceived notions of him or, more correctly, his profession?
For those who would like to read an expert lawyer specifically addressing the statute Professor Gates was charged under, read this not at all kind blog about the statute written in 2008 long before the incident:
http://www.mattcameronlaw.com/2008/12/an-idle-and-disorderly-statute-part-i/
And for this expert’s take on the Professor Gates arrest under the statute he disdains as being more than 400 years too old, read this:
http://www.mattcameronlaw.com/2009/07/could-professor-gates-have-been-convicted-of-disorderly-conduct/