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.
“Well, if a rapier wit is a weapon, I consider you heavily armed and dangerous”
Mespo,
I do have my moments, at times. On this Gates thing we’ve both made our views clear and damn it, we’ll just have to agree to disagree. I hate it when I’m unable to use my impeccable logic, sterling integrity and just perfect understanding of all and everything, to convince people my views are the correct ones. You’re a hard man Mespo and you know too damn much Emerson for your own good.
Mike S:
“When I tried to explain to the officer what the situation was, he cut me off curtly, as he stood in a defensive posture, perhaps expecting attack at any minute from these two threatening characters.”
********
Well, if a rapier wit is a weapon, I consider you heavily armed and dangerous I understand your feelings, but I have to side with the officer in the Gates case given the potential felonious nature of the encounter; minor infraction or misdemeanor and I’m with you.
Carlyle,
Thank you for your answer on the Australian Police, I expected it because from afar Australia appears to be a less up tight society than my own. It is a place I would love to visit, but probably will never get the chance to.
More importantly I think your conceptualization of the idea of overman/underman puts much into proper perspective. My own feeling for years has been that human society’s greatest ills stems from the myths, inherited fear/flight characteristics and rigid mores that guide humanity, much more so that any political and/or religious philosophy. The reason to me that reform is so difficult is because people are in general unaware of these motivating factors and so a decent discussion cannot be held about how to deal with them and hopefully evolve into more humane creatures. Overman/Underman is one way to frame the discussion which creates a framework makes it easier for most people to conceptualize. Jane Elliott’s contributions also fall into that category.
This is, however, as I’m sure you are aware, merely one aspect of the problem of the human condition. How we organize ourselves is another; the success of sociopaths in politics;
the instinctual xenophobia; the tendency to give accolades to the most physically aggressive; and on ad infinitum create the mess we see around us throughout the world.
The problem is that most humans, including those wielding any kind of power are unable to examine even their own interior
selves, much less conceptualize the effect on society as a whole. This to me is the evolutionary challenge and I do believe we humans are in a race to meet that challenge, or self destruct.
“Jackasses come in all human colors. Your comment that the situation was stable and that a potential home invasion was out of the question is post facto certainty.”
Mespo,
Actually it was ex post facto musings due to one salient fact. I read the entire police report that Vince provided. There was no mention in the report of ensuring the security of the house. It did mention that a second policeman joined Crowley as he was with Gates in the kitchen. That policeman could have been asked to secure the premises. Mespo like you I’ve also had many dealings with the police, during my Child Welfare days, which I’ve written about. If there was any danger perceived in lurking villains it would have been put in the report as further justification for the officer’s actions. Having read Crowley’s own report and that of the other officer, there is nothing within it that justifies this arrest, or presents any logical/legal case for it.
Given that in my opinion the arrest was unjustified accepting the report as factual for the purpose of discussion. We then are free to make assumptions as to why Crowley did it. Since the simplest solution is often the best, the simplest solution is that Crowley didn’t like Gates’ attitude and decided to punish him for it. Was this because of race we will never know? However, discounting race it seems to me that Crowley was exhibiting a behavior that has become all to common of late. That is that despite all the respect, deference and accolades given to police, their post 9/11 training is coupled with an Us vs Them (civilians-the public) mentality and a tendency to see themselves as victims. If you would like to get into a larger discussion of why this is so, I’m willing to, but the answers are long and complex.
Why was Gates so certain the arrest was racial is an easy surmise. This man’s life work has been about the effects of racism in America. He has reached much fame do to this and incidentally for his moderate views. He was tired and he was agitated that he just got home from a long flight and into his home with difficulty, when come police accusing him of being a burglar. He made the assumption of racism based on that and his supposition may, or may not have been correct.
Just recently, my wife and I had cause to make a police complaint under the advice of the head of security for our large gated (yes people I do live in one)community. This was not a matter which would involve either an insurance claim, or a possible arrest, merely something we were told should be put on a police record by someone who works closely with police. The PO was a ramrod straight, unsmiling type who refused to sit down, I explained to him I had to sit because I can’t stand for long due to my disability and had offered him a chair. My wife and I are two attractive people in their 60’s, who were dressed well. When I tried to explain to the officer what the situation was, he cut me off curtly, as he stood in a defensive posture, perhaps expecting attack at any minute from these two threatening characters. He told me that he alone would ask the questions and he wasn’t interested in long replies. The upshot, to shorten the story, is that I felt violated in my own home for making a minor police report. Unlike Professor Gates perhaps, I have neither the resources nor the prominence to challenge a public servant with such an attitude. However, if I had I would have let the man know who he was dealing with and excoriated the man for simply his attitude and who knows I might have been arrested.
This is what is happening all over the country in police work as it becomes more and more militarized. Do I personally feel empathy for police, you’re damned right I do. Down here they are underpaid and under insured. They are middle class people predominantly who mostly went into the job for very good and probably noble reasons and yes I would enjoy having a beer with them if I drank beer. However, on a country wide basis this post 9/11 propaganda and the pandering of politicians had led the police to believe that they are not to be questioned and must be treated docilely, or they must assert their authority. By his own hand Officer Crowley expressed that in this case, in my opinion.
This Guardian piece has some things to say about the commentary that has followed in the wake of the Gates controversy:-
http://www.guardian.co.uk/world/2009/jul/26/obama-race-patricia-williams-america.
Mike.
I think that on the whole Australian police are not as bad as American ones. However I think members of our black underclass suffer abuse from them every bit as bad as American Negroes suffer from US police.
Mike.
One of the things that overmen are required to do is to treat undermen with deliberate discourtesy. Undermen are not entitled to courtesy from overmen and doing or saying anything that implies that they are is uppity behaviour that must be punished. So a white policeman may be 99.99% sure that a Negro is not a felon but he must on no account let the Negro know this. Threating an underman as being in the wrong even if one knows he is not is a matter of keeping him in his place.
In some other post I mentioned the Australian Aborigine he lost his cool when a white policeman insisted on making him wait while he radioed to check whether the car in which the black man was driving his pregnant wife to hospital was stolen. Of course the policeman had to known that the probability that the man was using a stolen car to ferry his wife to hospital was very low, nevertheless he had to go through the motions to demonstrate that he knew the underman was an underman and therefore inherently untrustworthy. The purpose was to show contempt.
An overman who is performing a job such as a paramedic has to be careful when he is summoned to an alleged case of a sick underman. He humiliates himself and all overmen if he treats the case as serious when it is in fact not. Suppose he spends time examining and treating and it turns out that the underman is not sick or if sick or injured the illness or injury is self inflicted by means of drugs or reckless behaviour. If he has least doubt he has a duty to refuse treatment. What is the worst thing that can happen if the underman is in fact ill and the paramedic refuses to treatment? Well the underman might die. On the other hand what if he treats the underman and that it later turns out that the latter was not seriously ill at all or was ill but as a result of his own stupid behaviour? In this case the overman has demeaned himself and let all other overmen down by performing his job to the benefit of one not deserving of it. Sure the paramedic is a public servant and treating sick people is his job but he has the more important duty of maintaining the correct overman/underman protocols than to perform his job as carefully for an underman as he would for an overman.
I can remember at least four instances where Aboriginal people in Australia have died from serious illnesses and injuries because ambulance and hospital personnel have been reluctant to treat their cases as serious. In Western Australia several years ago occurred the case of a boy whose name if I remember correctly was Johno Johnson. He was aboriginal but adopted by a white family. One day a gang of youths beat him up and later deliberately ran him over with a car. An ambulance was summoned but the paramedics refused to examine him because they knew he was a glue sniffer and they knew where he lived. They took him to his home, refused to take him to hospital. Subsequently he died and his toombstone erected by his white adoptive parents has in the epitaph the words, “died because he was black”. This was some years ago before the ubiquity of the internet, so I cannot find any links to the newspaper articles.
Swathmore Mom.
Just because my comment came immediately after your does not mean that it was an answer to yours in particular. I was thinking about many comments on several JT threads on this issue and comments on relevant threads on other sites. I don’t necessarily remember which sites as I view a news item and maybe browse the comments and then go on to another one.
Consider this thread on Alan Bean’s Friends of Justice:-
http://friendsofjustice.wordpress.com/2009/07/25/fear-race-and-pride/.
or this one at the Huffington post:-
http://www.huffingtonpost.com/john-ridley/gates-says-what-a-lot-of_b_244571.html.
It is the comments that are of interest, the majority are supportive of Crowley and hostile to Gates and the US President. How do you measure racism? Monitoring blog comments for attitudes on the race issue is one method. Racism in the US is less than when niggers were hanged from trees, but rope lynching has been replaced by lynching by the legal system where biased police arrest and apply excessive charges, biased prosecutors prosecute on thin evidence, biased juries convict on this same thin evidence and biased judges impose heavy sentences. At every stage of the process there is discretion and this discretion is almost invariably used to treat niggers in a worse way than a white would be treated in similar situation.
I recommned the Friend of Justice blog site (http://friendsofjustice.wordpress.com/) as a repository of many illuminating instances.
CM I don’t side with Sargent Crowley and I didn’t from the beginning. You are correct in that if a person of color discusses racism,the person of color is immediately accused of playing the race card much as a person who mentions income disparity is accused of promoting class warfare. The message is don’t dare speak the truth. That is why Obama had to be so cautious in the campaign and still continues to be.
It is in the nature of humans that they tend to see the harms done to them by others as much larger than they are and to see the harms done by them to others as through the wrong end of a telescope. Both overmen and undermen do this but overmen to a much greater extent than undermen. The fact is that the reality of overmen’s abuse of undermen is so grotesquely excessive that there is little scope for exaggeration. In the case of American Negroes white overmen have treated them to slavery, Jim Crow, lynching, the counterattack on the civil rights movement that goes by the name of “the war on drugs” and now frequent accusations that they are playing the race card when they dare to complain when white people treat them with the deliberate discourtesy with which overman are obliged to treat undermen.
I see the relationship between Sgt Crowley and Professor Gates as that of an overman to an underman, whether it was the white/black issue or the cop/civilian one that created this dynamic is irrelevant, Professor Gates would have assumed the former, but it is most likely it was both.
I see so many commenting on this issue on this and other blogs siding with Sgt Crowley. What this shows is how widespread white hostility to Negroes is, these commentators see Negroes as whinging, whining, carping undermen (this phrase courtesy of a right wing Australian politician.)
If I were the kind of person that bets money, I would put my money on Professor Gates account of the incident being closer to the truth, but then I am prejudiced.
I strongly recommend viewing the documentaries on Jane Elliotts techniques for countering racism. These demonstrate vividly all the techniques overmen normally use to control undermen and attack their self esteem, that is prevent them from becoming uppity. For example when an overman needs to control an underman he must use the stick not the carrot. An overman must not allow an underman think that anything he says or does is of any value to the overman. Undermen must only speak to an overman when the overman requests it, they absolutely must not volunteer information that the overman does not want to hear. So if the overman has misinterpreted the situation and events are about to go chaotically wrong, that is tough, the underman is impertinent if he tells the overman the truth that he does not want to hear, it implies that the underman is in this instance wiser and more perceptive than the overman an unforgivable impertinance.
Additional examples of the overman/underman relationship are teacher/student, authority figure/mere citizen, prison guard/prisoner, senior officer/subordinate.
It is becoming obvious that America’s problem with racism is much more serious than I would have thought six months ago. It may be that the election of President Obama has made it much worse. The US desperately need Jane Elliott’s techniques to be used widely especially on authority figures and government officials but I think it would be worthwhile if 100% of the population were subjected to them.
I will call it the n word because I am an old white person. If you think it is banned in American society you have never listed to rap music and are unaware of certain segments of African American culture. Even such mainstream rap artists such as Kanye West use it constantly. It is a cultural thing. It doesn’t bother me. I think the use of the word scares many white people.People can refer to themselves however they want. Didn’t anyone even watch the “Wire”?
Mike S:
” That it was in fact a black man, known to many as a leading scholar on race relations in the US. A man who is a moderating force actually on this issue, actually makes it sadder. His skin color and esteemed position only made it all the more headline provoking because obviously to many American minds he was acting “uppity,” which is an unwritten crime for people of color, no matter what they’ve accomplished.”
***********
Jackasses come in all human colors. Your comment that the situation was stable and that a potential home invasion was out of the question is post facto certainty. There is an criminal element out there that has no regard for the laws you and I revere. Sgt. Crowley is all too familiar with it, and his reasons for clearing the house may seem “specious” to you, but they seem reasonable to me to protect the very individual who lambasted him for doing his job. Imagine the outcry if my scenario was correct and “Skip” or his family suffered some harm because the officer took the situation for what it appeared to be and left. In any event, I think a few minutes of that audio tape will be all we need to find out if it was you or me who opined reflexively.
Dear Mike Spindell,
I loose my temper all the time and it’s almost never productive. I hope I’ve been clear in my previous posts that I think the arrest was illegal/without merrit. I don’t think the cops have a right to arrest people for just being a-holes, although I suspect that municipalitys have attempted to enforce “a-hole statutes” which usually target speech and dress in an unconsitutional way, and are usually targeting minorities, in not on their face in their execution.
Still, I think Gates made this encounter a racial issue, not the police. And I still would advise people not to yell at the police in any instance (unless they’re on the witness stand and the judge is letting you get away with it). It’s like teasing a dog you don’t know; it’s not illegal, but it’s definately not a wise move.
Thank you, kind sir.
Buddha,
Sent you 3 links, but due to that my comment is being moderated and might not be posted soon.
Buddha,
Jane Elliott was in 1968 an Iowa teacher who on learning of MLK’s death set up an experiment in racism for her class by dividing it into two groups the blue eyed and the brown eyed. Her results were startling. A PBS documentary was made and its’ producer William Peters wrote a book about this experiment. That is the first link below. The other two links feature videos with Ms. Elliott herself and run 9 minutes and 55 minutes respectively. What is so neat about the experiment was that it suggested the standard for many experiential learning groups on racism that came afterward. Definitely worthwhile of your time.
Mike
http://www.amazon.com/Class-Divided-Then-Now-Expanded/dp/0300040482
http://www.youtube.com/watch?v=JCjDxAwfXV0
http://video.google.com/videoplay?docid=6189991712636113875
The more I think about CM’s ubermench analysis, I think I should read Jane’s work. I think I was coming at the same thing but more from a zoological observation about dominance displays in mammals, but I’d be interested in seeing her psychological take if she impressed you both.
Mike, CM, a suggested starting place?
Carlyle,
Your reference to Jane Elliott’s work was spot on and so was your overman/underman piece. The more I think about this particular case though and the publicity it has gotten the more it occurs to me that the schematics of what happened have been obscured, by the hullabaloo of race that was injected. This doesn’t negate what I’ve said above about the racism inherent in this incident, but modifies it in terms of your overman/underman terms.
Let’s as mindplay take race out of the picture. Let’s substitute for Professor Gates, Professor Alan Dershowitz (I’m not sure he is with Harvand but this is a thought experiment). Let’s also assume that the police report as given was totally factual and represented the reality of what happened. Given all that the police officer still behaved badly and the Cambridge Police Department was stupid in their handling of the case, in my opinion.
Dershowitz a lawyer and scholar with a national reputation might well have been annoyed at the police intrusion and definitely might have said “Do you know who I am” and even more abusive rhetoric. Once in the kitchen with the policeman
having proved his identity via two photo ID’s, the policeman by all rights should have said words to the effect of “Oh,
there’s been a mistake in the call, I’ll leave now.”
Instead in front of the rightful occupant of the house, who already was angry for the intrusion and presuming all he wanted to do was to relax from his long flight, called in the Harvard Campus Police and said he was leaving. Why did he do that? Crowley knew there was no crime that had been committed, the excuse that he wanted to clear the house in case a burglar was lurking is specious, it could only have been done to further provoke this person who not only had been disrespectful but had proved higher status than the officer. He clearly was going to show the man who was really overman. The officer, a Sergeant, also knew that he needed to draw the Professor outside of the house to arrest him on a disorderly conduct charge, as he knew by the arrival of a backup officer in the kitchen that more police were outside.
Given the habit in American residential neighborhoods it would not take a genius to assume that with the presence of officers a crowd would have gathered.
So Crowley walks away from Professor Dershowitz in the middle of him still angrily asking for his name and shouting. The minute the Professor reaches his front porch, the officer describes the Professor’s behavior as “tumultuous” as he has learned it says in the statute and cuffs him. Tumultuous is not by any means a commonly used word in America, even among the educated and in fact has become somewhat archaic in usuage. This is all premised on the truth of the police report mind you and Dershowitz was picked because of his high profile and Harvard Associations.
My contention is that even though Dershowitz is white this story would have been reported similarly in the media as some intellectual big shot, who wrongly opened his mouth to the police and got busted for it. The American media consistently shows a bias in favor of the police and against anyone deemed an “intellectual.” That it was in fact a black man, known to many as a leading scholar on race relations in the US. A man who is a moderating force actually on this issue, actually makes it sadder. His skin color and esteemed position only made it all the more headline provoking because obviously to many American minds he was acting “uppity,” which is an unwritten crime for people of color, no matter what they’ve accomplished.
Therefore missed in this whole story, buried by the race angle, is the fact that many American police have to readily adapted to their overmen status when it comes to people they readily perceive consciously, or sub-consciously as undermen.
This view of the police going beyond the law has actually been given license in the American media and entertainment industry, where from “Dirty Harry” on the policeman ignoring the “niceties” of the law is lionized as a hero, while his superiors who want to restrain his lawlessness are portrayed as secondary villains. With the 9/11 bogeyman added to the mix by the Bush/Cheney Crime Family, this has taken on epic proportions and people actually believe someone is wrong not to kiss policeman’s asses. While in a practical sense this is good advice, given the negative consequences, it is not supposed to be what the law is about.
As far as your use of nigger goes I must admit that every time I see the word there is a frisson of revulsion that goes through me. In fact in my first post directed to you I commented on it. However, I fully understand where you are coming from with it and it makes sense. This has become a banned word in America, yet in truth it is merely pushing undercover the still innate racism of older American people. Among our young, meaning 35 and younger, I feel stirrings of hope that racism, misogynism and homophobia are being eschewed, but that may merely be the wish fulfillment of an old fart. I of course also agree with you that humans are by nature xenophobic and so all of us have our bigotry.
A question of curiosity for you though. Is the Australian police situation vis-a-vis the overman/underman viewpoint similar to the US? I know that in Britain it has become so and the image of the polite “Bobbie” is long gone.
News Reference and mespo727272,
As I explained in my post linking to an expert in this field, under Massachusetts case law there is a right to cuss at, yell at, wave hands in the air, and get all mavericky when confronted by the police to the point of being agitated.
Professor Gates, in Massachusetts, has the right to yell loudly, flail his arms, and let the police have it verbally. And at any time he can point out the history of police forces all across the U.S. as being in first or second place for most racially biased.
Title VII was a special gift to them.
That weakens the notion of a slander case considerably.
————–
[the defendant] then began flailing his arms and yelling loudly about his civil rights and such. In reversing his conviction for disorderly conduct, the Appeals Court noted that his behavior was not “extreme” or otherwise threatening, and was not therefore statutorily “tumultuous.”
————–
http://www.mattcameronlaw.com/2009/07/could-professor-gates-have-been-convicted-of-disorderly-conduct/