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.
I would like to know did the white woman who was so observing the neighborhood, notice that the cab driver had drove off, and I do believe that it was DAYLIGHT, she should have told the officer that a cab driver left after dropping off the person in the home. How long had she lived on that street and have she ever seen her neighborhood who lived across the street?
This is the very first time that she seen this cripple old man with a cane going into his home?
FFLeo:
“I started to reply soon after his post, but I knew that some reading this thread would simply consider me too biased ….”
**************
I doubt anyone who has read your comments thinks you shill for anybody. I like your expert opinion … even when it cuts against my argument.
Mike S:
If you judge by the sports page, everybody sets world records, all long touchdown passes happen in the final seconds, home runs are frequent event, and soccer is an exciting pastime in the US. Good police reporting and work rarely makes the papers or the Huffington Post. That should not suggest it doesn’t exist. Read any good “dog bites man” stories lately?
________________________________
{Quote:
WASHINGTON — The police officer at the center of a national dispute over race and law enforcement says a much-anticipated meeting at the White House was productive and all parties are looking forward.
Cambridge, Mass., police Sgt. James Crowley spoke after meeting with President Barack Obama and Harvard professor Henry Louis Gates Jr., along with Vice President Joe Biden. Crowley described himself and Gates as “two gentlemen who agreed to disagree” about the confrontation that led to Gates’ arrest.
He said that the conversation centered on moving forward, not reliving the events of the past two weeks, and that they plan more meetings.
End Quote}
http://www.huffingtonpost.com/2009/07/30/beer-summit-begins-obama-_n_248254.html
________________________________
We don’t need no stinkin law, nur judges, nur courts of law, we got’s beer justice in this ‘sheer country. Swangin’ doors to blissful happiness.
They’s a tear in my beer…
Mike Spindell,
I posted that HuffPo link yesterday, which implies that you are not reading the previous posts before commenting. That is not like you. In fairness to Crowley et al. please see my comments above regarding *securing* the Gates’ residence since you and I have a disagreement regarding that issue.
Regarding police/LEO misconduct, it has always occurred and the main difference is our heightened awareness of the misconduct based on modern, ever-present videography and the Internet. I personally want to see every ‘bad cop’ lose their LE careers and serve jail time; however, you are spreading the blame over too wide an area across the LE spectrum. Now, this is a blawg and it would not be very worthwhile if each of us does not give his or her own opinions, but we all realize our comments are just opinions and hearsay because we never know the full facts of the case so we should not get too critical of others’ opinions.
http://www.huffingtonpost.com/2009/07/29/disorderly-conduct-conver_n_246794.html
“http://www.huffingtonpost.com/2009/07/29/disorderly-conduct-conver_n_246794.html”
Yet another example of police gone wild.
“Police don’t falsify their reports all the time, your assertion notwithstanding.”
Mespo,
Yet sometimes they do and enough times to raise suspicions,
Amadou Diallo, for instance, or this from today:
http://jonathanturley.org/2009/07/30/video-florida-officers-openly-discuss-falsifying-report-to-protect-officer-from-blame-in-accident-by-framing-a-citizen/Police don’t falsify their reports all the time, your assertion notwithstanding.
original link provided by JT:
http://today.msnbc.msn.com/id/32199319/ns/local_news-miami_fl/
While James statement was hyperbolic, these incidents happen with great frequency. My original position still stands though. Sgt.Crowley’s and his colleague’s own reports, even if we grant them as being true provide no rational reason for making the arrest, no matter how this is spun. Was it racism, as I said before no one can know, but at the least it was the case of a PO who did not like having his authority challenged and in revenge decided to take Professor Gates down a peg. Sgt. Crowley should have walked away after he saw proper I.D. and if he was not self serving would have written down his name and badge number and left it with Gates.
We have had so many instances of this posted by JT since 2009 began alone, that it points to a pattern of police behavior. I’ve stated on many occasions that I am sympathetic to the police and that as a former civil servant I know how badly they can be treated by their own Agency. They are hardly victims though, although the majority feel that way and thus feel entitled to be treated specially. This has been compounded by the homeland Security/DEA police indoctrination that has accelerated since 9/11, to the point where police have in their minds assumed a para-military status. While
a military outlook is essential for combat, it has no place within the law enforcement realm of a supposedly free society.
Mespo,
Thank you for your witty retort to James’ ridiculously false statement. I started to reply soon after his post, but I knew that some reading this thread would simply consider me too biased regarding LE to counter James’ comments.
James:
I have no idea how many officers you know, or even if you know any, but your statement that, “Police falsify their reports all the time to cover up their abuses of power,” speaks for itself both in terms of its breadth and foolishness. Police don’t falsify their reports all the time, your assertion notwithstanding. And as for your invective that Sgt. Crowley should be taking out other people’s trash, some would say that is, in large measure, what his job consists of already. Judging by your comments, I must wonder if you come with handles or a drawstring?
_________________________________
{Quote:
Disorderly Conduct: Conversation About Gates Arrest Precedes Arrest
A lawyer who moments earlier had been complaining to friends about police overreaction in the arrest of Harvard Professor Henry Louis Gates Jr., got a taste of the Gates treatment himself after loudly chanting “I hate the police” near a traffic stop in Northwest Washington, D.C.
End Quote}
_________________________________
http://www.huffingtonpost.com/2009/07/29/disorderly-conduct-conver_n_246794.html
I really hope Gates takes this to court.
Police falsify their reports all the time to cover up their abuses of power. Justice needs to be served in this case and Crowley needs to answer for his illegal actions.
Crowley should be taking out people’s garbage, not wearing a badge.
Francis Hollard:
“If Gates can prove, using incidents and people from his past, that the officer involved has shown insensitivity in the past, which would be evidence of color-aroused bias, then Gates could successfully defend against a slander action.
…
But, because he is a white man and thinks he can do anything he wants, he might go ahead,…”
***********
Well, your efforts at erudition came screeching to a halt with this classic display of elliptical reasoning, and ad hominem attack. (Are your legs tired from that colossal leap of logic, too?).
In addition, Gates cannot prevail by showing that the officer was “insensitive,” in the past and, according to your logic, was thus supposedly acting on some “color-aroused bias [sic].” Instead, Gates must show that the officer’s actions in arresting Gates were motivated exclusively “because [Gates was] a black man in America,” and that his arrest was solely due to his race. Otherwise Gates is guilty of slander per se since loudly alleged this to be true in front of witnesses.
Finally, your analysis of the Lee Bailey/ Det. Fuhrman confrontation is superficial and pedantic: Fuhrman was not discredited because he used a racial slur, but because he denied ever using the word. Had he simply admitted the use of the racial epithet, albeit in anger or frustration or whatever, his credibility would not have been so successfully challenged as jurors themselves admitted after the verdict.
All in all Francis, you have added nothing to the discussion save confirming your inability to grasp the issues, and your reflexive need to blame the officer first, with little regard for the facts or the law.
Mud,
The important outcome is that the full facts surface, something positive derives from this incident to ensure that any wrongs committed are fully exposed and justice is meted, if appropriate, and that it never happens again.
Sounds good LEO.
I don’t expect much from any disorderly conduct charges though. And it appears that Prof. Gates is satisfied that there’s nothing more he needs to do other than teach.
The review board is the next at bat.
Well then, Mud, we will just have to wait for the lawyers and/or judges to decide this, if necessary—as I have championed all along—without further ‘muddying’ the waters with speculation and anecdotal musings.
LEO, my name may be Mud, but I know better than to think that the law is there to be weaseled with by by servants of the courts. The law makes us free in our obedience to it. Here’s the purported statutory violation that was at the basis of the arrest, restraint and detention of Professor Gates:
“9.08.010 Disorderly conduct–Profanity and insulting language.
No person shall behave himself in a rude or disorderly manner, or use any indecent, profane or insulting language in any street or public place. No person shall make or cause to be made, any unnecessary noise or noises in any public street, private way or park, so as to cause any inconvenience or discomfort for the inhabitants of the City.”
And here’s the extent of remedial action to be sought:
“9.20.010 Violation–Penalty.
Unless otherwise specified, any person who violates any provision of this title shall be liable to a fine not exceeding fifty dollars for each offense.”
Above that, there would be need to rely on Massachusetts general law to support arrest and detention in this case:
http://www.mass.gov/legis/laws/mgl/gl-pt4-toc.htm
CHAPTER 269. CRIMES AGAINST PUBLIC PEACE.
No good luck there.
The likeliest surviving blue law:
CHAPTER 272. CRIMES AGAINST CHASTITY, MORALITY, DECENCY AND GOOD ORDER.
would be:
Chapter 272, Section 36. Blasphemy.
There’s a lot more fruitful area of the statutes to look for correction of impropriety in this case, it would seem to my uneducated eye:
CHAPTER 268. CRIMES AGAINST PUBLIC JUSTICE.
So for all the disjointed anecdotal statements made by you, there is only one individual involved in the incident under discussion who has any possibility of having violated the law and it’s Sergeant Crowley. Since his problems have been compounded by televised public statements and radio interviews, I’ll await the review board’s assessment rather than ascribing to the forced conclusions that you’ve arrived at, since you’re not a lawyer.
Francis,
In this case I was not under suspicion. He was trying to avoid break-ins and was asking me not to take out my purse at the park. I have been stopped in Phoenix and grilled for having too brown of skin, so I understand what you are saying about your own situation and I agree with your point concerning the law.
Jill:
You said,
It turns out he asked me if I would not pull my purse out the trunk while at the park because they’d had some break-ins.
I was in the same situation once, where I was stopped on the highway in Florida and had left my wallet in my suit jacket, which I had placed in the trunk of the car. As a result, I was compelled by those circumstances to open the trunk of my (rental) car in order to get my identification, which the police officer had a right to request that I produce.
However, if I had my identification in my pocket, the officer certainly would not have a right under Fourth Amendment jurisprudence of the US Supreme Court to demand that I open my trunk. He would have to have a reasonable suspicion, and the fact that there have been some thefts in the park does not mean that the police have a reasonable suspicion of everyone who drives through the park.
The fact that my skin is brown does not give rise to a reasonable suspicion.