And another article on the same topic, this from ZeroHedge. Full story, video, photos at the link.
ZeroHedge - On a long enough timeline, the survival rate for everyone drops to zero
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Indianapolis Police Officer Sues NFL For Defamation In Anti-Racism Campaign
Authored by Jonathan Turley,
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 the 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. . .
In the video, Reed talks about not “going back to jail,” . . . 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.
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. . .
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 Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech . . .
The Supreme Court has held that public figure status applies when someone “thrust
himself into the vortex of [the] public issue [and] engage the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw 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.
. . .
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. ...
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.
. . .
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.
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