IS A COP A ‘PUBLIC OFFICIAL’? - IT IS NOT AN INSIGNIFICANT QUESTION

By Bob Walsh

A really interesting case MAY come before SCOTUS next year. It could have far-reaching effects on people employed within the criminal justice system as peace officers.

The current landmark case in the defamation arena is New York Times vs. Sullivan. This landmark decision sets a VERY HIGH BAR, almost impossibly high, with regards to defamation cases filed against journalists and others by “public officials.” This is important as persons described as “public officials” must establish “actual malice” on the part of someone who makes what is claimed to be a defamatory statement against them. Essentially this means that the statement must be false, the person making the statement KNEW it to be false and went
ahead and made it anyway with the specific intent to harm.

The case under review is Armstrong vs. Thompson. Ten years ago Harry Armstrong was a criminal investigator with a federal agency known as TIGTA. (Tax Inspector General for Tax Administration.) Armstrong carried a badge and a gun, supervised people who did so, and made presentations to prosecutors and presented evidence in court. He was by any reasonable definition a supervising level peace officer.

Armstrong came under investigation for accessing government databases without authorization. He admitted to do so and prosecutors declined to charge him. TIGTA made a deal with him by which he resigned without admitting any liability or fault.

Armstrong subsequently applied for a similar position with the USDA. They made him an offer which he accepted, but the USDA then pulled back its offer. They got a rat-o-gram on him, asserting that he left under threat of being fired and offered the opinion that hiring him would be a “grave error.”

In the course of things Armstrong found out that Karen Thompson, one of his subordinate employees, authored the rat-o-gram. He sued, alleging defamation, negligent infliction of emotional distress, etc. etc.

The case went thru the D.C. Court of Appeals for years. Finally Thompson was upheld, with one important exception, that being the claim of intentional interference with prospective contractual relationships. For that issue the court applied the Sullivan ruling, stating that Armstrong was in fact a “public official” and as such had to show actual malice as well as falsity of the statements.

Strangely enough SCOTUS has never said definitively whether or not a peace officer who is not elected to his position is in fact a “public official.”

SCOTUS may in fact not accept the case. If they do they could very easily, on its merits, rule against Armstrong. Nevertheless it is an interesting angle.

EDITOR’S NOTE: According to Black's Law Dictionary a "public official" is "[o]ne who holds or is invested with a public office; a person elected or appointed to carry out some portion of a government's sovereign powers." "Public officer" is defined in a similar way.