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The Massachusetts Supreme Judicial Court, for the first time, has ruled that because of a police officer’s “broad powers” and “potential for abuse” of those powers, a patrol-level officer qualifies as a “public official” for the purposes of defamation claims. The American Civil Liberties Union of Massachusetts (ACLUM) hails the decision as a “resounding victory” for First Amendment law and advocates, said William C. Newman, director of that group’s western Massachusetts office. “If the result had been defeat, it would have told citizens to only complain about police at their own peril,” said Newman, who along with Hill & Barlow attorneys Robert A. Bertsche and Carol V. Rose filed an amicus curiae brief in the case. “It’s an important protection that occurred.” In its brief, ACLUM wrote that if the jury verdict had been upheld, it would have the effect of “profoundly discouraging citizen complaints, turning defamation law into a shield for police harassment and corruption.” In a case of first impression, the SJC found that a Superior Court judge erred when he ruled that a state trooper was a private individual in a defamation and intentional infliction of emotional distress case brought by former state Trooper William F. Rotkiewicz Jr. against Walter L. Sadowsky Jr. By ruling that the trooper was a private individual, the Superior Court judge did not provide the jury with an instruction on the actual malice standard of proof. The SJC, in its decision released June 20, reversed the plaintiff’s verdict and remanded the case for new trial. SJC Justice Francis X. Spina was the trial judge in the defamation case in October 1994. The SJC addressed the question of police officers as public officials only one other time, 16 years ago in the case of Fleming v. Benzaquin. In that decision, the SJC noted the “weight of authority leans toward classifying police officers as public officials,” but declined to decide the issue. Neither plaintiff attorney Jack D. Curtiss nor defendant attorney Wendy Sibbison, both of Greenfield, Mass., could be reached for comment before deadline. A Franklin Superior Court jury had found that Sadowsky, the defendant, defamed Rotkiewicz and caused him emotional distress stemming from complaints the defendant had made against the trooper to his supervisors. The jury awarded Rotkiewicz $81,000 in damages for defamation and $75,000 for emotional distress. Sadowsky appealed to the SJC on the grounds that Rotkiewicz was a public official and that, as such, the plaintiff was required to prove actual malice – a higher standard of proof – in order to recover damages. The SJC concluded: “because of the broad powers vested in police officers and the great potential for abuse of those powers, as well as police officers’ high visibility within and impact on a community, that police officers, even patrol-level police officers such as the plaintiff, are ‘public officials’ for the purposes of defamation.” In its decision, the SJC wrote that law enforcement officials, from the chief on down to patrol officer, “exercise state power in the performance of their duties.” “All police officers are empowered to further the preservation of law and order in the community, including the investigation of wrongdoing and the arrest of suspected criminals,” the SJC wrote. The SJC, citing the 10th Circuit case of Gray v. Udervitz, further found that although a patrol officer such as the plaintiff is “low on the totem pole,” and does not set policy for the department, abuse of the office “can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury and financial loss.” Citing the landmark U.S. Supreme Court defamation case of New York Times Co. v. Sullivan, the SJC defines “actual malice” as statements made “with knowledge that it is false or with reckless disregard of whether it was false or not.”

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