An interesting case, Syed v. Hamady (filed Mar. 12, 2010). Note that the plaintiffs’ lawyer apparently failed to timely file a response to the motion for summary judgment, and failed to promptly remedy that failure, so as a result the court decided the case without considering any such response:
This Court has reviewed Defendants’ Statement of Material Facts and finds that they are [*5] adequately supported with appropriate citations to admissible evidence. [Footnote: Although the Plaintiffs did not file a response, the Court notes that the facts presented by the Defendants include those derived from the deposition testimony given by each of the Plaintiffs.] The relevant facts [as alleged by the Defendants] are as follows: …In Fall 2005, the Plaintiffs resided in Porter County, Indiana, with their six children. Three of their children attended Porter Lakes Elementary School. The Plaintiffs are members of the Muslim religion, and, upon the Plaintiffs’ request, the School gave their children permission to pray during school hours. The School also allowed Mrs. Syed to conduct a presentation at the school about the Islamic culture and Muslim religion.
Officer Hamady is an employee of the Lake County Sheriff’s Department in Crown Point, Indiana. He lives in Porter County and in Fall 2005, his son was a student at Porter Lakes Elementary School in the same class as one of the Plaintiffs’ daughters. Officer Hamady volunteered at the school and helped to establish a school safety program. One of his areas of focus concerned the procedures for private vehicles picking up children after school. As part of the program, the school required that all vehicles picking up students have a placard with the student’s last name displayed on the passenger-side windshield. On one occasion while picking up his son after school, Officer Hamady noticed the Plaintiffs children get into a white van that did not have a Porter Lakes School identification placard displayed in the windshield. Neither the van’s driver, who was a Middle Eastern man, or his female passenger were the Plaintiffs. Officer Hamady wrote down the license plate number of the van and when he went to work on the midnight shift, checked the license plate number through a computer database. The license plate number was registered to a white 1997 Pontiac van owned by Ahmed Abdeldaiem, Crown Point, Indiana. While he was checking the license plate number, an “alert” flashed on Officer Hamady’s computer screen indicating that the license plate was on the Federal Bureau of Investigation’s Terrorist Watch List in Washington, D.C., and instructed him to call the FBI-displayed telephone number within the next twenty minutes. Officer Hamady called the provided telephone number and advised the person at the Terrorist Watch Center that a license plate number he was running triggered their alert. He indicated where he saw the van, that it was picking up the Plaintiffs’ children, and that the Plaintiffs were not in the van when he saw it.
After his shift ended, Officer Hamady drove his marked squad car along the street where the Plaintiffs lived. He observed a blue van in their driveway bearing a license plate that did not match the one he saw on the white van. This was the only time that Officer Hamady drove by or near the Plaintiffs’ residence. Neither of the Plaintiffs saw the Defendant on their street.
After Mrs. Syed made the presentation at the school regarding the Islamic culture and Muslim religion, several parents of children attending the School lodged complained about its appropriateness. Officer Hamady was not one of the parents who complained, nor did he personally object to the presentation. At a school board meeting, Officer Hamady and other members of the public addressed the board regarding the issue of prayer in school. They asked why Muslim children were given permission to pray during school hours but their children, who are of other religions or faiths, were not allowed to pray. The Plaintiffs were present and were also allowed to address the school board. The complaints voiced at the school board meeting were cited in a newspaper article. This same article referenced the terrorist alert that Officer Hamady received from the F.B.I. for the white van’s license plate.
Upset by the board meeting and the newspaper article, the Plaintiffs completed a Lake County Sheriff’s Department Citizen Complaint Form, alleging that Officer Hamady had conducted surveillance on the Plaintiffs, harassed them, and called them terrorists. The Complaint was investigated by an internal affairs officer, who determined that it was unfounded.
DISCUSSION …
The Plaintiffs’ Complaint is based on the allegation that Officer Hamady referred to the Plaintiffs as terrorists, conducted undercover surveillance, and engaged in a campaign to discredit them. The designated evidence does not support these assertions. There is no evidence that Officer Hamady referred to the Plaintiffs as terrorists. The evidence is that he discovered that a license plate that was not associated with the Plaintiffs or their vehicle was on the FBI’s Terrorist Watch List, and that he drove his marked squad car by the Plaintiffs’ house on one occasion. There is no evidence that he attempted any undercover surveillance, or otherwise tracked the Plaintiffs’ activities. The public statements attributed to Officer Hamady were those he made at a school board meeting, where he spoke as a private citizen who was exercising his own freedom of speech rights in a public forum. Mr. Syed acknowledged that the Defendant did not stop his wife from making a presentation at the school, did not stop the Plaintiffs from going to the school board meeting or tell them they could not speak, did not stop them from going to the mosque, and did not, in any way, prevent the Plaintiffs from practicing their Muslim religion.
No reasonable jury could find, on the basis of the designated evidence before this Court, that Hamady, acting under color of state law, caused a substantial burden to be placed on the Plaintiffs’ observation of a central religious belief or practice. Hamady did not abuse his authority as a police officer, and in doing so, take action that compelled the Plaintiffs to do or refrain from doing anything of a religious nature or prevented them from speaking at a public forum. Defendant Hamady is entitled to judgment as a matter of law on the Plaintiffs’ claims that he violated their rights to freedom of religion, freedom of speech, and freedom of assembly….
The Plaintiffs allege in their Complaint that the statements “in which Hamady called the Plaintiffs ‘terrorists’ are defamatory per se, insomuch as they impute criminal conduct to the Plaintiffs.” …
A review of the designated evidence quickly reveals the shortcomings of this claim. The Plaintiffs admit in their deposition testimony that Officer Hamady and Sheriff Dominguez never referred to them as terrorists. Rather, the evidence upon which they base their claim is that a newspaper article used the word “terrorist” when relaying the alert that Hamady discovered while checking the white van. Not only was this information not false (Officer Hamady did receive a Terrorist Watch List alert when he ran the license plate of the white van), but it did not involve the Plaintiffs, who were not the owners or drivers of the van. Mrs. Syed assumed when she read the newspaper article that, because of the nature of the matters addressed at the school board meeting, Officer Hamady was referring to the Plaintiffs when he relayed the information about the alert. Even construing the record in the light most favorable to the Plaintiffs, there is no evidence from which a jury could find the elements of a claim for defamation. Officer Hamady and Sheriff Dominguez are entitled to judgment as a matter of law.
The Defendants assert that they are entitled to an award of attorney’s fees under Indiana’s Anti-SLAPP (strategic lawsuit against public participation) act, Indiana Code § 34-7-7-7. “Strategic lawsuits against public participation (SLAPPs) are meritless suits aimed at silencing a plaintiff’s opponents or at least at diverting their resources.” Hamilton v. Prewett, 860 N.E.2d 1234, 1241-42 (Ind. Ct. App. 2007) (quotation marks omitted). Indiana’s anti-SLAPP statute, adopted in 1998, applies “to an act in furtherance of a person’s right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue or an issue of public interest.” Ind. Code § 34-7-7-1. It “is intended to reduce the number of lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Hamilton, 860 N.E.2d at 1242. The act sets forth the “conditions under which rights of petition or free speech may be used as [a] defense,” and provides:
It is a defense in a civil action against a person that the act or omission complained of is:(1) an act or omission of that person in furtherance of the person’s right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue; and
(2) an act or omission taken in good faith and with a reasonable basis in law and fact.
Ind. Code § 34-7-7-5. Under Indiana’s statute, a motion to dismiss by the defendant “shall be granted if the court finds that the person filing the motion has proven, by a preponderance of the evidence, that the act upon which the claim is based is a lawful act in furtherance of the person’s right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana.” Ind. Code § 34-7-7-9(d). A defendant who prevails under the statute is entitled to attorney’s fees. Ind. Code § 34-7-7-7; Hamilton, 860 N.E.2d at 1242 (“To reduce the number of lawsuits brought to chill speech, a defendant who prevails on a motion to dismiss under the anti-SLAPP statute is entitled to recover reasonable attorney’s fees and costs.”). Indiana courts have awarded attorney’s fees under the anti-SLAPP statute where the plaintiffs were “attempting to silence media coverage of newsworthy events.” Hamilton, 860 N.E.2d at 1248.
The Defendants contend that the true intent of the Plaintiffs’ lawsuit was not to redress any wrong that they suffered, but to chill Officer Hamady’s right to speak on an issue of public interest, prayer in public school. The Defendants argue, therefore, that they are entitled to recover attorney’s fees from the Plaintiffs. The defamation claim is not, on its face, directed at any speech that Hamady made at the school board meeting. The speech that the Plaintiffs challenge in their defamation claim relates to being called terrorists. See Compl. P 19 (alleging that “statements made by Hamady to others in which Hamady called the Plaintiffs ‘terrorists’ are defamatory per se, insomuch as they impute criminal conduct to the Plaintiffs). Although the Plaintiffs appear to take issue with Officer Hamady’s speech at the school board meeting, they do so under the rubric of their First Amendment rights, not in connection with their defamation claim. The Court finds that the Plaintiffs’ defamation claim, while wholly without merit, was not intended to chill Officer Hamady’s right to speak in a public forum about prayer in public school. Accordingly, the Defendants’ request for attorney’s fees, as set forth in their Motion for Summary Judgment, is denied.
The discussion of why Hamady can’t recover fees under the anti-SLAPP statute is a bit unclear. I at first thought the court was suggesting that Hamady could only recover if he could show the plaintiffs had some sort of bad speech-suppressive motive, but the Indiana statute doesn’t require such motive, plus in any event they did have the motive to obtain defamation damages based on Hamady’s speech to the newspaper about the van.
But I think that the deeper point that the court must have been getting at — it didn’t say so, but I suspect that it might have assumed this — is that Hamady’s statements to the newspaper about the van’s being on a terrorist watch list were made as part of his official duties. Therefore, under Garcetti v. Ceballos (2006), the statements were not “in furtherance of the person’s right of petition or free speech under the Constitution of the United States or the Constitution of the State of Indiana in connection with a public issue.” That’s why it’s significant to the court’s decision that “The defamation claim is not, on its face, directed at any speech that Hamady made at the school board meeting,” but was instead focused solely on the statement to the newspaper about the van.
In any case, even if that wasn’t the court’s true rationale, it does support the result the court reached on the anti-SLAPP motion question. And while it’s unfortunate that Hamady had to go through this whole process, I suspect that he didn’t have to pay attorney fees in any case; though he had his own attorney, I suspect the attorney was paid for by the city.
Thanks to Religion Clause for the pointer.
Tatil says:
What happened to the white van? Why was it on the watchlist? What is the relationship between the owners of the van and the parents? Law & Order would never leave these questions unanswered. :) Our justice system clearly needs improvements.
March 18, 2010, 7:25 pmCrunchy Frog says:
Excuse me, but… what were Plaintiff’s kids doing getting into a vehicle on the Terrorist Watch List? And wouldn’t it behoove Al-Mommy and Al-Daddy to know that their children are getting into strange vehicles that are not known to belong to a parent of any of the children at the school?
There’s something rotten in Denmark.
March 18, 2010, 7:25 pmPersonFromPorlock says:
Still, one wonders how the word that the Plaintiffs’ children, presumably with the Plaintiffs’ permission, were being picked up by someone on a terrorist watch list got from Officer Hamady’s lips to the newspaper’s ears. And why.
March 18, 2010, 7:33 pmWaste93 says:
As someone that works in LE and sees those FBI messages an a fairly regular basis. They are not suppose to be released to the public. Usually they say gather information on the target of the watch but not to notify them that they are on it. So why did he release that info to the local paper? Or did someone else do so? I don’t think it’s a criminal violation to do so unless it falls under the statute that forbids releasing NCIC information to the public. Which it very may well. But he may get a visit from the FBI or they could pressure the PD on an IA.
As for why that van was on the list. The NCIC hits when you run them don’t tell you why. Nor is the FBI likely to tell you.
March 18, 2010, 7:42 pmTeh Anonymous says:
I too would like to know more about the van. However, as someone with little knowledge of this database … is it actually more wheat than chaff in the “terrorist watch list” area, or is it about as useful as the no-fly list?
March 18, 2010, 8:01 pmArthur Kirkland says:
This report strangely provides more questions than answers.
Did Officer Busybody communicate the investigative information to the newspaper? Why?
Did that disclosure compromise an investigation by tipping the white van’s owner or operator?
Did that disclosure violate anyone’s privacy rights or police policies?
How were some children prevented from praying in school — were brain scanners used to detect any prayer, at which point school representatives confronted the praying student to demand a switch to different thoughts?
Was Officer Busybody entitled to use the official database to pursue an off-duty, unofficial curiosity?
March 18, 2010, 8:07 pmDennis N says:
I don’t see anywhere in the recitation of facts, where Officer Hamady’s actions could reasonably link him to the lawsuit, although the issue of where the newspaper got the information about the terrorist watch list, is unclear.
I am mildly troubled that, knowing the school district’s ID placard policy, he didn’t immediately investigate why children were being carried away by an unauthorized vehicle. It turned up later, that they were apparently picked up by someone on a “Watch List.” Apparently, he was instrumental in emplacing a policy and then didn’t care to see it enforced. Why bother with a policy?
I am also troubled with the preferential treatment given by the school to Muslims, allowing them to publicly pray at school. Presumably Christian children would be denied the privilege of gathering in a corner of the classroom for a moment of prayer.
March 18, 2010, 9:16 pmWaste93 says:
According to NCIC and most state laws and rules. Using NCIC and the local equivelants for unofficial curiosity is more than a major no no. In some cases it’s actually illegal. However the story doesn’t make clear if he was acting in his official capacity as a law enforcement officer when he was at the school and saw the vehicle and wrote down the plate. A number of officers are assigned to schools as SRO’s (School Resource Officers) and if there is no SRO it isn’t to uncommon for officers to be at a school when it starts and ends for traffic issues, school zone enforcement, etc. He could also have been working an off duty assignment in uniform. The story seems to indicate maybe the latter as it says he later went to work on the night shift. If it was an off duty assignment that running the plate is usually legal. Depending on state laws reference the database. However since the terror watch list is by the FBI, NCIC rules should apply and not state. So it’s a bit of an open question depending on his function at the school at the time.
Probably not any privacy rights. Maybe on police policies and state laws. Almost guaranteed a violation of NCIC regulations which forbids the disclosure of NCIC information to the public.
March 18, 2010, 9:16 pmDennis N says:
I think a strong argument can be made that he did it as a result of Official curiosity. I’d bet dinner that defense would be raised if he were challenged. Cops are generally considered to be semi-on-duty during their off time. Certainly, they retain their police powers.
I’m more concerned that he thought the incident sufficiently spooky to record and later run the number, but did not act immediately.
March 18, 2010, 9:26 pmLaura(southernxyl) says:
I am more than mildly troubled. These are elementary school kids. They had a procedure in place to prevent unauthorized people from picking the kids up, presumably to prevent abductions. By the time he got around to checking that database, the kids could have been taken anywhere. They might as well abandon their placard system, because it is clearly worthless.
March 18, 2010, 9:53 pmDavid McCourt says:
It was the plaintiffs’ lawyer who failed to file any response to the defendants’ motion.
[Fixed, thanks! -EV]
March 18, 2010, 11:12 pmArthur Kirkland says:
The delay strongly suggests, in more ways than one, the inquiry was not a duty-related search triggered by official suspicion of a problem involving a child’s safety.
March 18, 2010, 11:30 pmanomdebus says:
Gee, what ever happened to nuance? Everything is black and white to you guys..
March 18, 2010, 11:37 pmDavid McCourt says:
Interestingly, while the plaintiffs’ name is of south Asian, probably Pakistani, origin, it appears that the defendant officer’s surname is of Arabic, likely Lebanese and perhaps Druze, origin. Could there be some other aspect to this dispute going on of which the court is unaware?
March 18, 2010, 11:50 pmGo Horns! says:
Prof. Volokh,
It looks like the Defendant limited his claim for attorney’s fees by failing to argue that he was exercising his constitutional rights when he reported the terrorist alert.
“The Defendants contend that the true intent of the Plaintiffs’ lawsuit was not to redress any wrong that they suffered, but to chill Officer Hamady’s right to speak on an issue of public interest, prayer in public school.”
The Defendant’s motion argued that the act complained of was his school prayer discussion, but the court found that the act of complained of by the Plaintiffs was the terrorist report. The defendant failed to show that the complaint was based on the conduct that he asserted was constitutionally protected. Thus, the court did not need to address whether the terrorist report was constitutionally protected conduct.
March 19, 2010, 1:08 amBuddy Hinton says:
see also:
http://forums.officer.com/forums/showthread.php?t=142683
March 19, 2010, 6:37 amMark Tillar says:
Another example of LAWFARE, as they are calling it in England, and is starting to be practiced in the United States. I expect to see a lot more of this type of suits. Stated goal of lawfare is not justice, see Joe Kaufman case or the book case Muslim Mafia, but jihad.
March 19, 2010, 11:08 amSarcastro says:
We’d better close the Courts to all Muslims, just to be sure their supposed case isn’t Jihad in disguise!
March 19, 2010, 11:20 amHerb Spencer says:
Not Denmark, the Calumet Region! I’m curious how this case came to be venued in Ft. Wayne instead of Hammond, which is in Lake County, of which Crown Pt. is the seat, and which Porter Cty. abuts. Sloppy lawyering by Plaintiff’s counsel; nice to see a DJ enforce the rules as written – and as abused.
March 19, 2010, 1:04 pmHerb Spencer says:
Silly multiculturalist – think outside the box! Hamady might just as well be Hungarian, especially in this region of IN, and that’s where I’d put my money if it weren’t already on Butler.
March 19, 2010, 1:17 pmMark Tillar says:
Have to laugh with Sarcastro’s comment, which I assume is direct at my comment. It is pointing out example of possible knee jerk reaction to jihad as lawfare.’
Lawfare problem is a serious one, as recent Canada case and cases in Europe show. It is easy to over react. Any over reaction is great for political purposes. (Israel and West Bank reporting)
My point is that any reasonable person should be aware the extreme muslims have publicly discussed this tactic. The article raises questions as to why Plaintiff’s counsel did not file remedial response. My point that red flags are present and to ignore Lawfare as talking point is delusional.
Lawfare and other political actions, see UN “Combating Defamation of Religion” resolutions could result in loss of western democracies.
March 19, 2010, 4:03 pmwolfefan says:
Hi-
IANAL, so I have no idea if the plaintiffs in this case have a legitimate tort claim or not. I’m pretty sure, though, that the registered owner of the vehicle in question does. In Virginia, it’s possible that the officer could have been charged with Computer Invasion of Privacy, which is a felony; someone could definitely be charged with unauthorized dissemination. Information received from VCIN/NCIC is confidential and is to be disseminated to law enforcement agencies for criminal justice purposes only. I assume the law is the same in Indiana.
As Waste93 points out, the subject of a TSC hit is not to be informed of the hit. Telling the newspaper about the hit is a serious violation of NCIC regulations, and probably a violation of law.
Western democracies may be in danger from lawfare; they are in at least equal danger from law enforcement officials who brazenly defy clear and common-sense regulations and laws for their own personal agendas.
March 19, 2010, 4:38 pmPeter Bepler says:
Because the Statement of Facts in the opinion raises many issues which are left unclear, a lot of this commentary isn’t very enlightening, perhaps because many commentators make unspoken assumptions about the actions of the police officer. I am at least prepared to assume that (i) there is nothing sinister about the officer’s presence at the school, where he has done volunteer work in the past, and his child is a student, and that (ii) based on the officer’s involvement in the setup of the school’s vehicle ID program, he had a legitimate interest in its proper functioning, so that when he saw a pickup violating the guidelines (probable cause), he took note and when time allowed, checked the bona fides of the vehicle. How the information found its way into the local press would, to anyone familiar with typical interactions between the local press and the police, requires no sinister assumptions either. I suggest commentators look at the assumptions incorporated in their comments and attempt to determine whether they are supported by the facts we at least know, or is it necessary to leap some tall buildings to get to a position supporting the claims of the plaintiffs? (Who apparently were never called on to explain the role of the white van. Hmmmm.)
March 19, 2010, 6:04 pmArthur Kirkland says:
By what lawful and proper manner would terrorism information from the confidential national database, disclosure of which information could tip terrorists or harm a citizen, travel from a small-time police department to a small-time local newspaper? There may be a way, but I can’t think of it.
March 19, 2010, 8:52 pmRINO in Name Only says:
Everyone knows that terrorists always use a white van. If you were in Maryland or Virginia in the fall of 2002, you would understand that.
March 20, 2010, 12:28 amwolfefan says:
Hi Peter Bepler –
I think Arthur asks you the right question. The intentional release of confidential information obtained from NCIC is prohibited by law. The subjects of TSC hits are not to be notified of the hit. I’m not making a “sinister assumption”; it is a given, not an assumption, that someone did something illegal, something that is probably a felony, and something that could (if there’s a real terrorist around as opposed to a false hit) genuinely compromise national security. I don’t know about Indiana – it’s been years since I lived there (shout out to North Manchester and Fort Wayne) – but I don’t routinely read leaks about what people/vehicles are or are not on the terrorist watch list in any newspaper out here. TSC hits in my (much larger) jurisdiction are fairly routine; we still don’t tell unauthorized people about them. People in my agency have been fired, charged, and convicted for the unauthorized release of information from NCIC. If TSC hits are so rare in this community, all the more reason they should be kept confidential as the law requires (and as the officer in question undoubtedly knows.)
March 20, 2010, 1:56 amStreet promotion at London train stations – do I need a license? | London Travel Services says:
[...] The Volokh Conspiracy » Blog Archive » Defamation Lawsuit Against … [...]
March 20, 2010, 3:57 amDennis N says:
Then why didn’t he either question the driver of the white van immediately, as would have been his right and arguably his duty as a police officer? Or why didn’t he call in the number by cell phone?
I don’t know about sinister assumptions, but police departments are notoriously leaky with information when they want to be. Nonetheless, release of that information was a breach of securityand possibly a felony.
It is none of anybody’s business.
March 20, 2010, 12:34 pmwolfefan says:
Hi again Peter –
This is probably a better question for Orin, but would failure to display a placard really provide probable cause to run the vehicle several hours later? If an officer off-duty sees a couple of dozen different things that might seem suspicious at the time, can he/she just note all the tag numbers and then run all 24 of them when they return to duty a couple of days later? What is a relationship between the time the behavior was observed and the time the tag was run? Would it depend on the severity of the alleged violation?
March 20, 2010, 12:49 pmroad2serfdom says:
I went on a ride along with a police officer a few years ago and she typed in license plate numbers of random cars into her computer as we drove by them. Officers don’t need probable cause to run a plate. She ran 100 plates in a few hours, probably 40-60% of all cars we came close to.
March 20, 2010, 3:37 pmwolfefan says:
Hi road2serfdom –
“Probable cause” is probably not the correct standard, but AFAIK officers aren’t supposed to run plates just because they are bored. If one of those checks had turned up something that ended up in court and your officer friend had been asked why she ran the plate, I doubt her answer would have been, “No particular reason, Your Honor – I just felt like it.”
Even if I’m wrong, your example involves vehicles in sight of the officer engaged in whatever conduct they are engaged in at that moment. Did she run plates of 40 – 60% of the vehicles that she had seen on the way home the night before, which would be closer to the example in the OP? Did she tell the local newspaper about whatever results she found when she ran the tags?
March 20, 2010, 6:01 pm