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

Screenshot from federal complaintThere is an intriguing lawsuit from Indiana in which Indianapolis Metro Police Department Officer De’Joure Mercer is suing the National Football League (NFL) for defamation after the NFL maintained that his shooting of an African American individual was because of”systemic racism.”  (Officer Mercer can also be African American).The suspect, Dreasjon Reed, reportedly fired repeatedly at Mercer until he murdered him a shooting found to be justified by a review board.  A particular prosecutor also announced that a grand jury rejected any fees against Mercer.
The complaint below details how Reed stole a handgun out of a pawn shop in Texas and livestreamed himself committing a”drive-by” shooting where he chased the stolen handgun blindly to buildings because he drove past.

He also livestreamed his experience with authorities on May 6, 2020 with the gun observable.

In the movie, Reed talks about not”moving back to jail,” which may be a reference to the three outstanding warrants for his arrest. Reed was driving recklessly and struck a few vehicles.  Adams was concerned about the security of the public in virtually any high speed chase but Mercer continued to observe Reed at a distance. Reed, as shown in the movie, then pulls into a local business and attempts to flee . Mercer chased him and eventually shot him with a taser.  Mercer subsequently returned fire and killed him.
Using 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 power Is Essential to effect a lawful arrest.   Nevertheless, an officer is justified in using deadly force only if the officer:

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

(2) has provided a warning, if feasible, to the individual against whom the deadly force is to be utilized.

Really , a private citizen would be guarded in the use of such force under Indiana Code §35-41-3-2.
This was the conclusion of a grand jury along with a detective and a police review board.
It wasn’t apparently the finish of tens of thousands of protesters who took to the roads after the shooting or finally the NFL. Throughout the movie, the NFL also said the NFL would honor the”victims of social injustice” by wearing their titles on their hats and helmets and tell their stories such as Reed.
What is striking is that the NFL understood all this. Likewise, numerous law enforcement officials objected to the inclusion of Reed among the”honored” as a casualty of systemic racism.
The NFL under Commissioner Roger Goodell dismissed the objections or the injury to Officer Mercer. On Dec. 16, 2020, the NFL tweeted that a caption and photo of Reed, noting Reed was”one of the many individuals being honored by players and coaches this year throughout the NFL’s helmet sticker application.” A Facebook post with exactly the identical photo and caption was also posted to the NFL’s page about precisely exactly the exact identical moment.

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

We’ve discussed the NFL and other corporate campaigns in this field.  However, this is presently a defamation action which could pose substantial challenges depending on the elements for the tort.

The complaint alleges per se defamation. Those per se categories generally include (1)”imputation of particular crimes” to the plaintiff; (2)”imputation… of a loathsome disease” into the plaintiff; (3)”imputation… of all unchastity to a lady;” or (4) defamation”influencing the plaintiff from his business, trade, profession, or office.” This would seem to suggest not only a criminal act (in a unjustified shooting) but an attack on Mercer’s profession or trade for a police officer.
The norm for defamation for public figures and officials from the United States is the product of a choice decades ago in New York Times v. Sullivan. The Supreme Court ruled that tort law couldn’t be used to overcome First Amendment protections for free speech or the free media. The Court sought to create”breathing space” for the media by highlighting that regular that now applies to the public officials and public figures.
The Supreme Court has held that public figure standing applies when  someone”thrust[s] himself to the vortex of [the] public dilemma [and] participate [s] the public’s attention in an effort to influence its outcome” Even a limited-purpose public figure standing applies if someone voluntarily”draw[s] attention to himself” or permits himself to become part of a controversy”as a fulcrum to create public conversation.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979). At most Mercer are a limited public figure if he gave interviews or voluntarily sought to openly defend himself.
If detected either a public official or a public perspective, Mercer would have to show either actual knowledge of its falsity or a reckless disregard of their reality. In addition, the NFL isn’t a journalistic organization and therefore can’t claim privilege or special protections.
There are a couple of issues that might arise instantly. One is that the NFL does not mention Mercer though he was quickly identified on the Internet and widely referenced in the news. One can always litigate this type of claim as a per quod situation where defamation happens by reference to extrinsic facts. Moreover, Mercer was already being attacked before the NFL effort by protesters and critics who watched the shooting racist.
The greatest challenge is that this may be viewed as a opinion about a controversial shooting. Many obviously viewed the shooting in an example of systemic racism and the NFL was embracing the identical opinion of the protesters within the circumstance. The situation in favor of this Mercer is very strong, really unassailable, in my opinion. But people, such as corporations, are allowed to achieve their own decisions.
Courts are 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). If that’s the scenario, Novak and Evans wrote a scathing piece, including what Ollman stated were apparent misrepresentations. The court admits that”the most troublesome statement in the pillar… [is] a anonymous political science professor is quoted as stating:’Ollman has no standing in the profession but is a pure and easy activist. ”’ Ollman resisted but Judge Kenneth Starr composed for its D.C. Circuit in finding no foundation for defamation. This passage would seem applicable for secondary posters and activists using the article to criticize the household:

The affordable reader who peruses an Evans and Novak column about the editorial or Op-Ed webpage is fully aware that the statements discovered there are not”difficult” news such as those printed on the front page or elsewhere in the news sections of the paper. Readers anticipate that columnists will make strong statements, sometimes phrased in a polemical way that would hardly be considered balanced or fair elsewhere in the paper. National Rifle Association v. Dayton Newspaper, Inc., supra, 555 F.Supp. In 1309. That proposition is inherent in the notion of an”Op-Ed page” Due to obvious space constraints, it’s also attest that columnists or commentators may communicate themselves in condensed fashion without providing what could be considered the entire picture. This wide comprehension of the standard purpose of a column such as Evans and Novak will consequently predispose the typical reader to respect 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 back until the reader their interest in ending what they deemed a”frivolous” discussion among politicians whether Mr. Ollman’s political beliefs should bar him from getting head of the Department of Government and Politics at the University of Maryland. Instead, the writers clearly intimated in the column’s lead paragraph that they wanted to spark a more appropriate discussion within academia over whether Mr. Ollman’s goal in teaching was to indoctrinate his students. Later in the column, then they openly questioned the step or procedure of Professor Ollman’s scholarship. Evans and Novak made it crystal very clear that they were not purporting to set forth definitive decisions, but instead supposed to ventilate exactly what in their opinion comprised the central questions raised by Mr. Ollman’s future appointment.

The NFL will assert that no one would confuse a people anti-racism campaign with a supply of factual discourse as opposed to comment on such shootings. It is obviously a embarrassing defense in light of their obvious premise of this effort. The NFL was obviously launching the effort to convey the fact of systemic racism in such police shootings. It would now have to assert that such instances are only opinion and may be false.
While the NFL ought to be roundly condemned for the inclusion of this scenario, this will likely be a challenging defamation case. But while novel, it isn’t frivolous. The court will have to tackle the line between fact and opinion in this context. The question is whether the NFL may be viewed as stating as a fact that this was a racist shooting.  It is not enough to simply state”that is only my opinion” if it’s followed by what sounds like an asserted fact.
There are countervailing free speech issues in permitting individuals (like corporations) to be prosecuted for viewing such shootings in a different light from the authorities or inspection boards.  For example, what is the difference between this and also a columnist writing a post that the shooting was part of a blueprint of racism? The NFL didn’t state any false facts apart from its exceptionally (and legitimately) contested conclusion. It didn’t state that Reed was unarmed or did not fire at Mercer.  It merely viewed the shooting as a portion of their systemic racism in our society.
In my opinion, the inclusion of the Reed instance wasn’t only”misinformation” but reckless and wrong. The NFL understood or must have known that the claim was false. In addition, the impact on Officer Mercer was obvious since the officer responsible to what the NFL suggested was a racist shooting. It”admired Reed” and by consequence condemned Mercer.  The only question is whether that can be actionable as an issue of torts. The odds favor the NFL but that may prove a fascinating and important event exploring the constraints of an opinion defense.

Here is the complaint: Mercer-complaint