Indianapolis Police Officer Sues NFL For Defamation in Anti-Racism Campaign

Screenshot from federal complaint

There is an interesting lawsuit out of Indiana where Indianapolis Metro Police Department Officer De’Joure Mercer is suing the National Football League (NFL) for defamation after the NFL claimed that his shooting of an African American man was due to “systemic racism.”  (Officer Mercer is also African American).The suspect, Dreasjon Reed, reportedly fired repeatedly at Mercer before he killed him — a shooting found to be justified by a review board.  A special prosecutor also announced that a grand jury rejected any charges against Mercer.

The complaint below details how Reed stole a handgun from a pawn shop in Texas and livestreamed himself committing a “drive-by” shooting in which he fired the stolen handgun blindly into buildings as he drove past.

He also livestreamed his encounter with police on May 6, 2020 with the gun visible.

In the video, Reed talks about not “going back to jail,” which could be a reference to the three outstanding warrants for his arrest. Reed had been driving recklessly and hit a couple of vehicles.  The video captures when, around 6 pm, Metro Police Deputy Chief Kendale Adams had ordered a stop to the high speech chase that ensued after Reed refused to pull over. Adams was concerned about the safety of the public in any high speed chase but Mercer continued to watch Reed at a distance. Reed, as shown in the video, then pulls into a local business and attempts to flee on foot. Mercer chased him and eventually shot him with a taser.  Reed however pulled his handgun from his waistband and fired two rounds at Mercer. Mercer then returned fire and killed him.

The use of force in such a circumstance is justified under Indiana Code 35-41-3-3(b):

A law enforcement officer is justified in using reasonable force if the officer reasonably believes that the force is necessary to effect a lawful arrest.  However, an officer is justified in using deadly force only if the officer:

(1) has probable cause to believe that that deadly force is necessary:

(A) to prevent the commission of a forcible felony;  or

(B) to effect an arrest of a person who the officer has probable cause to believe poses a threat of serious bodily injury to the officer or a third person;  and

(2) has given a warning, if feasible, to the person against whom the deadly force is to be used.

Indeed, a private citizen would be protected in the use of such force under Indiana Code §35-41-3-2.

That was the conclusion of a grand jury and a detective and a police review board.

It was not apparently the conclusion of thousands of protesters who took to the streets after the shooting or ultimately the NFL. On Sept. 11, 2020, the NFL published a video a part of its “Say Their Stories” campaign featuring Reed. During the video, the NFL also mentioned the NFL would honor the “victims of social injustice” by wearing their names on their hats and helmets and tell their stories including Reed.

What is striking is that the NFL knew all of this. Jim Irsay, the owner of the NFL’s Indianapolis Colts, is quoted in the complaint as saying that the NFLE’s Tweet and Facebook Publication contained “misinformation.” Likewise, various law enforcement officials objected to the inclusion of Reed as one of those “honored” as a victim of systemic racism.

The NFL under Commissioner Roger Goodell ignored the objections or the harm to Officer Mercer. On Dec. 16, 2020, the NFL tweeted a caption and picture of Reed, noting Reed was “one of the many individuals being honored by players and coaches this season through the NFL’s helmet decal program.” A Facebook post with the same photo and caption was also posted to the NFL’s page on the same day.

As a result of this ill-informed campaign, Mercer received death threats, including a “wanted” poster with Mercer’s image on it. His picture was circulated online.

We have previously discussed the NFL and other corporate campaigns in this area.  However, this is now a defamation action which could present significant challenges based on the elements for the tort.

The complaint alleges per se defamation. Those per se categories commonly include (1) “imputation of certain crimes” to the plaintiff; (2) “imputation . . . of a loathsome disease” to the plaintiff; (3) “imputation . . . of unchastity to a woman;” or (4) defamation “affecting the plaintiff in his business, trade, profession, or office.” This would seem to suggest not just a criminal act (in an unjustified shooting) but an attack on Mercer’s profession or trade as a police officer.

The NFL could try to impose a higher burden of proof on Mercer as a public official or public figure.  The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures.

The Supreme Court has held that public figure status applies when  someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979). At most Mercer would be a limited public figure if he gave interviews or voluntarily sought to publicly defend himself.

If found either a public official or a public figure, Mercer would have to show either actual knowledge of its falsity or a reckless disregard of the truth. Moreover, the NFL is not a journalistic organization and thus cannot claim privilege or special protections.

There are a couple of issues that might arise immediately. One is that the NFL does not mention Mercer even though he was quickly identified on the Internet and widely referenced in the news. One can always litigate such a claim as a per quod case where defamation occurs by reference to extrinsic facts. Moreover, Mercer was already being attacked before the NFL campaign by protesters and critics who viewed the shooting as racist.

The biggest challenge is that this could be viewed as an opinion on a controversial shooting. Many clearly viewed the shooting as an example of systemic racism and the NFL was adopting the same view of the protesters over the case. The case in favor of the Mercer is very strong, indeed unassailable, in my view. However, people, including corporations, are allowed to reach their own conclusions.

Courts have been highly protective over the expression of opinion in the interests of free speech. This issue was addressed in Ollman v. Evans 750 F.2d 970 (D.C. Cir. 1984). In that case, Novak and Evans wrote a scathing piece, including what Ollman stated were clear misrepresentations. The court acknowledges that “the most troublesome statement in the column . . . [is] an anonymous political science professor is quoted as saying: ‘Ollman has no status within the profession but is a pure and simple activist.’” Ollman sued but Judge Kenneth Starr wrote for the D.C. Circuit in finding no basis for defamation. This passage would seem relevant for secondary posters and activists using the article to criticize the family:

The reasonable reader who peruses an Evans and Novak column on the editorial or Op-Ed page is fully aware that the statements found there are not “hard” news like those printed on the front page or elsewhere in the news sections of the newspaper. Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the newspaper. National Rifle Association v. Dayton Newspaper, Inc., supra, 555 F.Supp. at 1309. That proposition is inherent in the very notion of an “Op-Ed page.” Because of obvious space limitations, it is also manifest that columnists or commentators will express themselves in condensed fashion without providing what might be considered the full picture. Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column like Evans and Novak will therefore predispose the average reader to regard what is found there to be opinion.

A reader of this particular Evans and Novak column would also have been influenced by the column’s express purpose. The columnists laid squarely before the reader their interest in ending what they deemed a “frivolous” debate among politicians over whether Mr. Ollman’s political beliefs should bar him from becoming head of the Department of Government and Politics at the University of Maryland. Instead, the authors plainly intimated in the column’s lead paragraph that they wanted to spark a more appropriate debate within academia over whether Mr. Ollman’s purpose in teaching was to indoctrinate his students. Later in the column, they openly questioned the measure or method of Professor Ollman’s scholarship. Evans and Novak made it clear that they were not purporting to set forth definitive conclusions, but instead meant to ventilate what in their view constituted the central questions raised by Mr. Ollman’s prospective appointment.

The NFL could claim that no one would confuse a public anti-racism campaign with a source of factual discourse as opposed to opinion on such shootings. It is of course an embarrassing defense in light of the obvious premise of the campaign. The NFL was clearly launching the campaign to convey the fact of systemic racism in such police shootings. It would now have to argue that such cases are merely opinion and could be false.

While the NFL should be roundly condemned for the inclusion of the case, this will likely be a challenging defamation case. However, while novel, it is not frivolous. The court will have to address the line between opinion and fact in this context. The question is whether the NFL could be viewed as stating as a fact that this was a racist shooting.  It is not enough to simply state “this is just my opinion” if it is followed by what sounds like an asserted fact.

There are countervailing free speech concerns in allowing people (including corporations) to be sued for viewing such shootings in a different light from the police or review boards.  For example, what is the difference between this and a columnist writing an article that the shooting was part of a pattern of racism? The NFL did not state any false facts other than its highly (and legitimately) contested conclusion. It did not state that Reed was unarmed or did not fire at Mercer.  It simply viewed the shooting as part of the systemic racism in our society.

In my view, the inclusion of the Reed case was not just “misinformation” but reckless and wrong. The NFL knew or should have known that the claim was false. Moreover, the impact on Officer Mercer was obvious as the officer responsible for what the NFL suggested was a racist shooting. It “honored Reed” and by implication condemned Mercer.  The only question is whether this is actionable as a matter of torts. The odds favor the NFL but this could prove an interesting and important case exploring the limits of an opinion defense.

Here is the complaint: Mercer-complaint

37 thoughts on “Indianapolis Police Officer Sues NFL For Defamation in Anti-Racism Campaign”

  1. Wait.

    Abortion is good but slavery was bad?

    Abortion is good but racism is bad?

    What’s wrong with this picture?

    1. Systemic vs minority rites. Diversity [dogma] (e.g. racism, sexism, ageism) normalizes elective abortion, selective-child, planned profit, yes. Given informed consent, and conception is not a mystery, only that pregnancy is a probability, the wicked solution is a socially progressive, commercially viable, choice that denies a woman and man’s dignity and agency, and a random child’s life. Pro-Choice is a many selective, opportunistic, relativistic (“ethical”) religion.

      Can they abort the child, cannibalize her profitable parts, sequester her carbon pollutants, and have her, too? Feminists and masculinists agree, yes, they can.

  2. I think that Mercer has a very good case although it will be an uphill battle.

    The NFL is positioning their campaign as a campaign for justice.
    Here you have a criminal who not only was endangering civilians, but when less than lethal force failed to stop him, he shot at the officer who had to return fire and kill him.

    No way that this case fits the narrative for ‘justice against systemic racism’.

    First the system isn’t racist. Second the officer is black therefore his actions could never be viewed as being racist.

    The NFL has an obligation to vet their stories and the facts.
    Clearly they didn’t and continued harm was done to the officer.

    Shouldn’t the burden be on the NFL to explain how this case fits their narrative of social justice?
    How was Mercer’s actions unjustified?
    How was his actions racist in nature?
    Is the NFL saying that black people can’t be criminals?

    In addition… discovery is going to be very interesting. What sort of emails will they uncover?

  3. This is another situation in which the Professor should apply a more suitable analytical framework. Simply put, this is a case for Occam’s Razor.

    The organizing principal is that the Democrats and their media accomplices will take whatever position they think will help them gain and consolidate power.

    In this case, the outcome hinges on the answer to one question:

    Is the content of the speech helpful or harmful to the Democrats and their allies?

    Once the outcome is determined, the variable is the line of argument needed to reach that outcome.

    1. Democrats and their media accomplices will take whatever position they think will help them gain and consolidate power

      Their religion is founded on the principle of political congruence (“=”) or inclusive exclusion.

  4. Under diversity (e.g. racist) rules, plausible cause is sufficient to judge, label, and deny a Person of White, a Baby Life, too, but would be playing with a double-edged scalpel to deny the civil rights of a 1/2 American (e.g. hyphenated, Person of Color).

  5. I only watch the Superbowl and that’s only if a white quarterback is vying for a ring.

  6. I agree with Turley’s legal analysis. In fact, I rarely dispute Turley’s legal opinions. What I complain about is his duplicity in dealing with his own network Fox News vs. Fox’s media competition, CNN and MSNBC.

    Case in point: Turley mentioned the several billion dollar defamation lawsuits brought by Smartmatic and Dominion against his employer Fox on April 27, 2021, under the headline “Project Veritas Sues CNN in Latest Media Defamation Lawsuit.” I commented then that Turley deliberately chose not to headline an article about this Fox lawsuit; rather, he buried his coverage of the lawsuit at the end of an article about a far less consequential lawsuit against Fox’s media competitor CNN! These decisions plainly were intended to minimize his coverage of this embarrassing lawsuit against his employer.

    More tellingly, unlike his very comprehensive legal analysis of this lawsuit against the NFL, Turley did NOT provide ANY legal analysis of the MERITS of the lawsuit against Fox apart from merely quoting the allegations from the plaintiff’s and defense’s legal papers! The ONLY legal opinion he rendered on the Fox lawsuit was:

    “The different lawsuits [CNN and FOX] will test the leeway afforded media in such coverage. Both networks insist that they were characterizing or summarizing claims. These cases are expected to produce major new precedent on the protections afforded media organizations under the defamation standards.”

    That’s it! Not even his prognostication of the prospect of Fox winning or losing the defamation lawsuit.

    Again, I don’t question Turley’s legal judgement; rather, I criticize him for his prejudice in ignoring at his own network faults which he rightly points out at its competitors. As someone who holds himself out as impartial and objective, his playing favorites is hypocritical.

    https://jonathanturley.org/2021/04/27/project-veritas-sues-cnn-in-latest-media-defamation-lawsuit/

    1. Wake up and smell the coffee, ‘Sunshine’. In life difficult choices sometimes need to be made. In comparison Turley is one of the very few objective, non-jaded, non-partisan commentators out there. Appreciate him for he is a rare breed.

      1. My commentary speaks for itself. I laid out the facts in detail. You ignore them.Turley is an employee of Fox, and it shows. No surprise.

    2. Jeff, you write everyday about Professor Turley being a stooge for Fox News. I am providing a link describing some of his other written work. https://en.wikipedia.org/wiki/Jonathan_Turley. I’m sorry if this info from Wikipedia doesn’t support your obsession and contradicts your daily aspersion of the Professors work. Be careful, this info may affect the meaning of your life.

      1. Thinkitthrough,

        I never accused Turley of being a stooge for Fox News. Unlike a stooge, Turley will NOT lie for Fox. Instead, Turley will legitimately criticize Fox’s media competitors where he can, but he will NOT hold Fox to the same journalistic standard he holds CNN and MSNBC. When he cannot support a Fox narrative, e.g., the Big Lie, Turley keeps silent.

        I have time and again stated that I do not fault Turley for what he has to say; my complaint is his keeping quiet when he should speak up.

        My obsession is just exposing his flagrant hypocrisy. Nothing more.

  7. Critical Racists’ Theory presumes diversity [dogma] (i.e. color judgment) breeds adversity.

  8. Why do so many people believe that there is systemic racism in law enforcement against black people in the US? Because the media, academia, Hollywood, and social media keep claiming, without evidence, that each time a black man gets shot by police, that it was due to racism.

    Daunte Wright wasn’t killed because of racism. He was killed because of weapon confusion, when the cop pulled her firearm instead of a taser. That was negligence, and she’s been charged with a crime for that. But there is zero evidence that she was motivated by racism, or that it was anything other than an accident. The irony of the situation is that the family of Wright, upon receiving millions of dollars in a settlement, are now being sued by Wright’s own victims. You see, although he was quite young, he’d already put a man into essentially a vegetative state by shooting him in the head. He’d already shot another man in the leg and caused permanent damage. He’d already terrorized women. So young, and yet he’d busily preyed upon society. Let them sue.

    I hope every single person wrongfully accused in the media of racism sues, until journalists have a catharsis about integrity. I hope universities are sued to discriminating against conservative students and faculty. I hope we reexamine the fairness of publicly funding organizations that purport to be unbiased, yet in truth are little more than Democrat madrassas.

    I am very sorry for the suffering that Officer Mercer has wrongfully endured at the hands of propaganda in the media and the NFL.

    And may crowds globally continue to loudly boo this behavior in athletes who drag their misguided politics and misinformation into their workplace. Insult the audience who makes you a millionaire, and they may lose their taste for your sport. At least in America, the crowd has the right to free speech. This is their personal time, not their workplace. And they have the right to boo garbage behavior when they see it.

    1. Many of these people don’t actually believe it, but wouldn’t dare say so in public or in the wrong-company for fear of being ruined, losing their careers and jobs, endorsements, i.e. their livelihoods. Not to mention be attacked as racists, homophobic, misogynistic and on and on. The vast majority of business’ and companies are pandering in order to humble-brag and get ahead of any potential backlash. Why do you think we see black people in 95% of TV commercials when they make up just 13% of the population? Do you really think it’s about diversity? lol.

      1. Diversity [dogma] (i.e. color judgment), yes. The diversity racket, indulgences, protection, absolutely, a multibillion dollar for-profit business for non-profit corporations, a subset of the multitrillion dollar sociopolitical complex. There is a large minority who carry banners, bray platitudes, take a knee to hide their diversitist orientation, not limited to racism, sexism, ageism, which is a progressive (i.e. monotonic) condition.

  9. It’s time for a nationwide boycott of the NFL, NBA, and MLB. They’re inherently racist against Asian-Americans. The NFL in particular destroys people’s brains, so it’s a (wholly unnecessary) threat to employee health and safety (unlike climbing a utility pole or arresting a criminal). And the NFL discriminates against blacks by requiring them to prove even more brain damage to obtain compensation because on average (it claims) blacks as a class have lower IQs to begin with.

    It used to be that the national anthem at the start of a game was a moment to put aside our rivalries and unite as in e pluribus unum. Kaepernike destroyed that and turned those moments into an incessant political statement. That could’ve easily been nipped in the bud by firing those players as Trump advocated. Colin and Le Bron are just whiny hurt puppies who could never do a real job or compose a letter to the editor.

    Why should anyone pay to watch grown men (and only men) play bouncy ball or sandlot games? Professional sports contributes about as much to society as fentanyl. Just go out and play with your friends and your kids; get some exercise and recreation and socialize for your health. Let the monstrous freaks play for China and North Korea.

    1. This household no longer needs to watch the NFL — just too many players who are the racists (or sycophants of their racist teammates) grandstanding and whining. Just as with the Pittsburgh Steelers, who put the name of a thief (shot by a police officer when he ran from the officer and left his gun in the getaway car) on their helmets, at least until Pouncey learned the facts … and off came the name of the young thief. Shame on the owners, coaches and players who acted but didn’t think. Goodell is just sucking up!!

  10. “Say Their Stories”

    Wake me when there’s a “Say Their Stories” campaign for those innocent Americans who were assaulted, whose businesses were destroyed, and whose lives were ruined during the BLM/Antifa “mostly peaceful protests.”

    Hell, I’d be happy with a “Whisper Their Stories” campaign for the police officers who are murdered, assaulted, demoralized, and smeared as a result of the revolting “reimagine the police” movement.

  11. The NFL took a side opposite that of a grand jury AND police review board. The NFL, as many have stated, pandered to BLM, the media, and most of its players.

    I’m hoping that this decision will be in favor of the officer, because that may well spell the end of corporations being allowed to editorialize and control speech, while on one hand claiming they are not news organizations nor are they publishers, but then on the other somehow hide behind the Aegis of free speech without consequence.

  12. In the NFL’s attempt to find racism under every rock they declared that the shooting was systemic racism. They just happened to leave out the part about the shooting being done by a black man. You can hear the narrative in the NFL boardroom. “Don’t worry about the details. Our NFL fans are too stupid to notice our butt kissin in pressing our lips to the BLM backsides”. We should only hope that the NFL pays a high price for their act of prostitution.

  13. The NFL and NBA as leagues are vying for the “Most Transparent Pandering To Blacks Award.”.

  14. “The biggest challenge is that this could be viewed as an opinion on a controversial shooting. Many clearly viewed the shooting as an example of systemic racism and the NFL was adopting the same view of the protesters over the case.”

    This cannot possibly be viewed as a controversial shooting by anyone with half a brain or even a scintilla of commonsense. I understand this excludes at least 75% of liberals and 98% of BLM supporters.

  15. Hope the dept prevails in the lawsuit getting a nice settlement/ jury decision for damages , AND a public retraction from the NFL

    Make them (NFL) pay for their wanton disregard for truthfulness ,which they abused for their benefit in theatrically trying to prove their bona fides in the “social justice” dept

  16. So you have a black police officer crucified by the NFL–arguably by implication–for being a racist police officer in the shooting of a black man who obviously did not have the best intentions in the use of his gun. And people wonder why violent crime is out of control in some American cities. Well, not all people wonder. It’s obvious why. Good luck to Officer Mercer. I’ll be cheering for him and I hope you’ll track the case, Prof. Turley. Surely there are many other police officers similarly situated.

  17. One key non-legal issue is the dishonesty of both the NFL and the Left.

    They collude in the “America is racist” trope and mislead the country.

    Fundamental dishonesty in pursuit of a dishonorable cause.

    Contemptible people.

    1. Don’t forget they included Althea Bernstein in their list of martyrs. Neither was a victim of anything.

  18. Let the NFL try to use the public figure defense – there are clearly whiffs of actual malice in this case. I hope the officer is successful, that he gets compensatory and punitive damages, and that he can peacefully retire

    1. This begs the question… is a civil servant a public figure?
      Mercer is a police officer employed by the city.
      He did not run for an elected position did he?

      While they may argue that he became a public figure because of the shooting… is that enough?

      If that may be true… its also damaging to their case.
      While they didn’t name Mercer in their campaign… they showed a wanton disregard for the facts and truth of the case. If Mercer was a public figure then there is no excuse for them to not know he was cleared of any wrong doing by both the police review board and a grand jury. Meaning that his actions were found to be legal and just.

      I see this as a Catch-22 for the NFL.

      And as Turley points out… their campaign is presenting these people and their cases as fact that there is a need for social justice.
      What social justice does a person deserve who is driving recklessly, so much that the police called off the pursuit. Firing randomly into buildings… then while resisting arrest, attempts to shoot the arresting officer who in defending himself and potentially others around them using lethal force well within the law? It doesn’t work.

    2. @whig98

      The public figure defense is a catch-22.

      Is a civil servant a public figure? Maybe an elected official but a policeman? Secretary? Janitor? fireman?
      Not on the face of it.

      But if they claim he became a public figure because of the shooting… then they cannot claim that they had no knowledge of the facts surrounding the shooting or that the officer was cleared of any wrong doing by both a grand jury and the police review board. They had to know the facts of the case and thus their inclusion was egregious.

      I think his case is stronger than Turley give him credit.

      I would love to see Mercer’s lawyer asking the NFL witness questions under oath.

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