National Police Association On Revisiting Defamation
Joel Shults, Contributor, the National Police Association
At the National Police Association, we know police careers have never been more fragile. The rights of police officers have never been more important, but an officer’s access to the courts to fight assaults on their character and credibility remains limited. It may be time to revisit an officer’s right to sue for defamation of character.
Defamation is a false and harmful accusation that is communicated to others either by speech, which is slander, or in writing, which is libel. There’s no question that police officers, in their status as public officials, must bear a tremendous about of insult, criticism, verbal abuse, and accusation. Courts have firmly protected the right of citizens to express opinions even in the most disagreeable ways. Holding public officials accountable through protest, commentary, and complaint is a Constitutionally protected part of free speech and democratic process.
Free speech, of course, is not unregulated, with the classic prohibition on randomly yelling "fire!" in a crowded theater as the commonsense example. Incitement to riot, lying under oath, and making false statements on legal documents and in commerce are also examples of persons being held accountable for damaging statements that ultimately infringe on the rights and protections of others. But when it comes to slandering police officers, the officer faces significant hurdles to taking action against those who seek to destroy their character, reputation, and career.
The greatest disadvantage for the police officer is that they are seldom allowed to make a defense or tell their story while the assault of false narratives continues unabated. For example, not every death that occurs in custody is a murder, much less a result of police misconduct. And yet, newspapers and activists can embed the worst possible labels on a police operation while the officers involved are told by their agency, their agency's insurance carrier, and occasionally a gag order from the courts that they are not to speak in order to preserve the rights of potential defendants.
Another area of risk is politically motivated prosecutors gaining favor by filing unstainable charges against officers. Knowing that the case is not likely to survive the light of a jury trial but can be blamed on an unjust system, prosecutors can rely on the broad protection by immunity from civil action for malicious prosecution by immunities unavailable to the officers.
The courts have rightly acknowledged that persons filing complaints against police officers should not fear doing so by the threat of a lawsuit from the officer. It does not follow that persons should be allowed to file utterly false and specious allegations that will continue to haunt the officer long after the investigation is over. Courts also acknowledge the right to express an opinion, engage in rhetorical hyperbole, and write scathing editorials about the police in general or a police officer by name.
There is a category of libel under which even public official and public figures can sue, and this is where a known and damaging falsehood is propagated with malicious intent. Although seldom successful, this kind of defamation is known as slander per se and is so egregious that damage is assumed and need not be specified. Normally an element of defamation lawsuits must include proof that some actual damage occurred. In law enforcement, police have limited job protections in most jurisdictions so that dismissals can be generated whenever an administrator chooses to do so or can create circumstances that justify firing. If this happens because of unproven accusations against an officer that causes embarrassment to the department, the officer may never trace their loss of a job to the defamation. Who can say why a transfer or promotion was denied? What will be the effects of the cloud of doubt hanging over an officer called to testify in court? Without credibility, their use as a police officer is severely diminished, as it should be if an allegation is factually sustained but should not be as a result of a baseless smear campaign.
At the National Police Association, we know that a necessary precaution that every police officer should take is to have access to an attorney for advice on dealing with career harming lies. Lawyers don’t like defamation suits from police officers, but may be willing to create other protective measures. State laws differ, and officers should be familiar with their limitations and allowances. Officers should know their agency policies on being a plaintiff in a duty-related lawsuit. They also need to know the policy of self-advocacy and making statements on their own behalf to determine if consulting a communications expert could help them or speak on their behalf.
This is not about shielding officers from criticism, it is about preventing liars from destroying officers’ careers with impunity.
