Free Speech

N.Y. Police Officer Sues Protester Over Anti-Asian Insults, Alleged Spitting

Detective Vincent Cheung is suing Terrell Harper.

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The case is Cheung v. Harper, and the video of the interaction is apparently this:

The audio isn't great, but it sounds like a lot of personal insults ("motherfucker," "suck my dick," etc.) coupled with allusions to Cheung's being Asian ("soy sauce," "fucking Asian marts last week, how they treat dogs there, motherfuckers," "dog food eater," "cat eater" [?]). As is common with many such taunts, they don't make much sense on their own terms, but just seem like attempts to get Cheung mad.

The New York Times (Jonah E. Bromwich) has a long story on the case, which includes these items:

Mr. Harper said … the protest … was a weekly demonstration for transgender rights and "in solidarity with end Asian hate." …

In interviews, Mr. Harper, 39, apologized for what he acknowledged were racist comments. He said the video had been taken out of context, and that he typically uses racist remarks as part of a broader explanatory monologue to demonstrate what racism looks and feels like.

"I've got to change my method, and I came out and apologized for that," he said.

Obviously the lawsuit is primarily a political statement by the plaintiff; but of course that is not uncommon in similar lawsuits; so I thought I'd offer a bit of tentative legal analysis.

[1.] These sorts of personally targeted face-to-face insults generally fit within the "fighting words" exception to the First Amendment, whether they are bigoted or otherwise. New York courts do take the view that "[t]he 'fighting words' doctrine under the First Amendment is even more narrowly applied in cases involving police officers than in cases between ordinary citizens 'because a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen.'" But they don't  seem to categorically preclude fighting words claims for face-to-face insults of police officers (or limit them to situations where the police officer responds by fighting). It may well be that a sustained rant such as this would qualify as fighting words even when said to an officer.

[2.] But the defendant is apparently not being prosecuted for this, and there's no "fighting words" civil tort cause of action. Instead, the claim is that this constitutes "intentional infliction of emotional distress," a notoriously vague (though generally narrow) cause of action:

Intentional infliction of emotional distress has the following elements: extreme and outrageous conduct; intent to cause, or disregard of a substantial probability of causing, severe emotional distress; a causal connection between the conduct and injury; and severe emotional distress. Liability for the tort is found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community (see Howell v. New York Post Co., 81 N.Y.2d 115 [1993]). And, courts are reluctant to allow recovery under the banner of intentional infliction of emotional distress absent a deliberate, systematic and malicious campaign of harassment, intimidation, humiliation and abuse of plaintiff.

Some recent cases (such as the one I just quoted) do allow intentional-infliction-of-emotional-distress lawsuits over bigoted insults that would likely qualify as fighting words in criminal cases, at least when they are said by a business employee about a patron or by an employer about an employee. It's not clear to me, though, whether the same would be as "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" outside this sort of business context.

[3.] If Cheung loses, on the grounds that this doesn't fit within the emotional distress tort (or that it doesn't qualify as fighting words, when said to a police officer), would he—or perhaps the police union, which appears to be backing this lawsuit—have to pay Harper's legal fees? I'm glad you asked! The New York anti-SLAPP statute allows such recovery of fees by defendants for speech "in connection with an issue of public interest." Query whether these sort of largely substance-free face-to-face personal insults, even if viewed as an expression of a political view (hostility to Asians) would be seen as sufficiently in connection with an issue of public interest; I doubt it, though the matter isn't open and shut.

[4.] In many jurisdictions, police officers and firefighters can't sue members of the public over negligent injuries inflicted on them in the line of duty (that's sometimes called the fireman's rule or the firefighter's rule or the professional rescuer doctrine). But my sense is that this generally doesn't apply to intentional torts. And in any event, New York has abrogated the professional rescuer doctrine by statute, so it doesn't prevent this lawsuit from going forward.

[5.] Cheung is also claiming that Terrell spit on him, "negligently, recklessly and carelessly, spit his saliva on the Plaintiff's face and into the Plaintiff's eyes." This would be a legally valid claim, if it is factually supported (I can't speak to that), though by itself such negligent spitting doesn't seem that likely to yield material damages. (Intentional spitting would be battery, that could yield damages for the outrage of the intentional act, including punitive damages; but the Complaint doesn't seem to allege intentional spitting.)

[6.] The Complaint asserts:

That as a result of the occurrence, the Plaintiff: has suffered emotional injuries which incapacitated Plaintiff from Plaintiff's usual duties and/or activities and in the future will continue to incapacitate Plaintiff from Plaintiff's usual duties and activities and upon information and belief, Plaintiff will in the future incur further costs and expenses for medical care and attention.

Really? An experienced NYPD detective has been incapacitated by these sorts of insults, and will require medical care and attention?

UPDATE: I added items 4 and 6 and elaborated on item 5 after first putting this up.

NEXT: The Legal Profession and the Case for Fundamental Reform: Conclusions and Recommendations

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  1. I thought police and firefighters could not sue for injuries on the job. Does IIED require the defendant be in a superior position?

    1. I think that doctrine (public safety can’t sue) has been relaxed in Massachusetts, or if not exceptions have been manufactured. I don’t know about New York.

      1. Ah, the post has been updated to say the doctrine does not apply here.

    2. Not just a common law doctrine of the Firefighter Rule.

      New York (General Obligation Law § 11-106 and General Municipal Law § 205-a)

      1. Sorry. Convoluted language allows it.

        “…may seek recovery and damages from the person or entity whose neglect, willful omission, or intentional, willful or culpable conduct resulted in that injury, disease or death.”

        Great to be a cop in NY. Get scared, sue the rich drug dealer displaying a weapon. One lawsuit a day. Half come in, you are now a millionaire cop.

        1. This is the obverse of excessive force litigation. Perhaps, those black lawyers on TV everyday, boohooing with the mothers who spawned career criminals could take that business.

          The defendants in excessive force prosecutions should countersue the estates of the dead plaintiffs for scaring them. They should say, I felt threatened. Then, they should take the $27 million settlements paid out by woke city administrators.

  2. Random thoughts:
    that
    1: In Massachusetts — which is not only a Commonwealth but still has some old British colonial statutes on the books — one can not breach the peace of a peace officer (i.e. cop). I don’t know if this is true elsewhere, only that it is in MA. Now what does that mean in terms of a civil suit? (IDK…)

    2: Spitting absolutely is relevant here.

    3: Again, at least in MA, there is the criminal offense of “Assault” which consists of placing another in reasonable fear of imminent battery. Fighting words are one thing — and, IMHO, _Chaplinski v. NH_ has effectively been reversed — but, IMHO, there is an additional crossible line beyond that. In other words, beyond inciting the reasonable person to respond violently, there is placing that person in fear of being violently assaulted.

    4: Unless the union is party to the suit, how could it be liable for fees? If I donate to the ACLU or NAACP and they get hit for fees for what they did with my donated money, am I liable?

    5: To what extent does this come under Worker’s Comp law? (a) to what extent would that preclude such a suit and/or (b) to what extent could the City subrogate anything he wins?

    But I come back to the first point — if the peace of a peace officer can not be breached, how can the peace officer sue someone for having done so?

    1. The ultimate irony here is that it has been the Trannys who have been on the vanguard of the movement to police speech on the internet — and here they apparently need to rely upon the very protections they seek to eliminate.

      The word “Tranny” is to be verboten, but all that vile stuff protected? Oh what an “Alice in Wonderland” world they’d have us live in….

    2. Spitting is relevant in that it is a separate offense. I don’t think the spitting is relevant to any of the speech charges (or defenses), though.

      I also agree that there are probably factual challenges to the spitting allegation. There’s a world of difference between intentionally hocking up a loogie and yelling so incoherently that spittle flies out of your mouth – yet both can be described as “spitting”. The first is wrong and possibly illegal. The second is just gross and rude.

      re: the union’s liability – That would depend on how they gave the money, wouldn’t it? If they made a simple donation, you’re right that they would generally be clear of liability over how the recipient used the money. But if they did something more like litigation funding and will get money back in the event of a successful outcome, or if they are playing a role in the strategy of the case, then they would be more liable.

      1. Hmmmm….

        We are just presuming that the union is funding this (aren’t we?) — what if the Chinese Government is? Does anti-SLAPP liability extend to foreign states?

        I’m quite serious about the CCP funding “Stop AAPI Hate” — it was a quite credible article that I can’t seem to find right now — and don’t have access to Nexis, where it likely also is.

    3. and, IMHO, _Chaplinski v. NH_ has effectively been reversed

      Just like it’s not HIPPA, for the umpteenth time, it’s Chaplinsky.

    4. 5: To what extent does this come under Worker’s Comp law? (a) to what extent would that preclude such a suit

      To no extent.

  3. “Cheung is also claiming that Terrell spit on him, ‘negligently, recklessly and carelessly, spit his saliva on the Plaintiff’s face and into the Plaintiff’s eyes’; I set that question (which I suspect is facially contested) aside in this post.”

    BOOOOOOOOOO

  4. “Cheung is also claiming that Terrell spit on him, ‘negligently, recklessly and carelessly”
    In many sports, spitting at an opponent is considered equivalent to striking or attempting to strike and opponent.

    1. Wow — the word “intentionally” isn’t there….

      1. We’d have to see a film

  5. “He said the video had been taken out of context, and that he typically uses racist remarks as part of a broader explanatory monologue to demonstrate what racism looks and feels like.”

    And the same people who want to fire college profs for using potentially racist speech to make a point will support this fool, based on his skin color and wokeness.

    1. And the same people who want to fire college profs for using potentially racist speech to make a point will support this fool,

      The best form of hypocrisy is the kind that people just make up.

  6. I learned a new word today: “ethnophaulism”. That aside, the complaint is mercifully short.

    1. Makes two of us. Thanks for spotting it.

  7. The involvement of “Stop AAPI Hate” should not be underestimated — and while I can’t find it right now, I have seen credible reporting that this is a propaganda initiative of the Chinese Communist Party. That they are funding and supporting it…

    The CCP’s goal is to prevent any discussion of CCP liability for the Wuhan Virus — and this is a good tactic toward that objective.

    Furthermore, of what I could load of the video, unless Harper actually *did* spit at Cheung, I don’t see anything more than a mentally ill person whom cops get paid to babysit. I also noticed that Harper appeared to have some sort of phone with what appeared to be a lens pointing at the camera which recorded this video, so — presumably — Harper has his/her/its own video.

    If Cheng can’t deal with this stuff, he’s in the wrong profession. He’s hired and trained to be able to deal with this — and I do believe that we have a lot of cops who ought not be.

    Like any decent person, I don’t want to see *anyone* assaulted, but some of this stuff is starting to smell quite badly, and I’m reminded of some of the rape hoaxes of the 1990s.

    For example, the sob stories about the Asian woman knocked to the ground by the thug with none of the people in the area bothering to come to her assistance — I can see that, but what I can’t see is a half dozen videos of the incident not showing up on YouTube…

    I’m wondering how much of this is being faked…

    1. I have seen credible reporting

      No, you haven’t.

  8. Normally I would say a cop just has to tough this kind of stuff out, but these are not normal times by far.

    Nothing happens in a vacuum and I’m sure this is not an isolated incident of hate which this cop has experienced, but just a part in a planned pattern of hatred forwarded over the course of the last year coordinating by leftist extremists. And we have to take this basic fact into account these days.

    Systematic hate has to be dismantled in a systematic manner. That means using the courts to hold examples of it accountable. I suspect we are going to see this tactic used more and more in the near future.

    1. Hit in the face with a bottle of urine, with the incident documented by a full-color picture on the front page of the Boston Herald, yes.

      Some idiot, likely with psych issues, shouting insults, no.

      Try referring a high school basketball game when the home team is losing if you want to see systematic hate…

      1. One can say a volunteer referee is much differently situated as opposed to a cop. Also society has different needs from both.

        I generally think the police, even properly situated in an ideal society, have to learn to tolerate a lot. That said, there is a limit to that and with the recent fomentation of pure hatred toward police I think we are breaking what we can expect any human to tolerate.

        1. ” I think we are breaking what we can expect any human to tolerate.”

          Which is why we rotate them out, give them time in rear areas, provide them support, and give them a full pension after 20 years.
          It’s one of the few jobs where you can get a medical pension for high blood pressure…

    2. Racist sounding speech is not necessarily racist from the perspective of the speaker.
      If you want your words to hurt (because you cannot physically strike the cop), then choose your words so that the listener is hurt. Speakers have even been known to state things they know or believe to be false if it will hurt the listener… it really isn’t sufficient to merely parse the words to understand whether an utterance is intended to express racist intent or merely to evoke negative emotions.

    3. 1) No, a cop doesn’t need to tough this out.
      2) Rationalizing your desire to go after the left but not be a snowflake about it via wild speculation about a planned pattern is your usual bullshit, but still dumb.

  9. Interesting inclusion of the picture of the defendant, that doesn’t seem the regular course with these articles…

    1. Yeah usually they just refer to someone in ambiguous terms meant to disguise that person sot hey suffer no negative societal ramifications for their actions. Guess you don’t like it when that ‘privilege’ is not recognized anymore….

  10. “has suffered emotional injuries which incapacitated Plaintiff from Plaintiff’s usual duties and/or activities and in the future will continue to incapacitate Plaintiff from Plaintiff’s usual duties and activities and upon information and belief, Plaintiff will in the future incur further costs and expenses for medical care and attention.”

    The problem with this is that those are all losses of the City and not the officer. This is work-related so if he’s off the job or has to take an early retirement, that’s all going to be paid for by the city (or perhaps state in terms of pension liability). Likewise his medical bills, which workers comp should pay 100% of.

    IMHO, at the very least, the city should file a subrogation here.

    1. What ridiculous ‘analysis.’ How do you put your own pants on?

      1. What a mean spirited, hurtful, transphobic remark. It needs to be deleted by Prof. Volokh. You need to be held accountable, Hon.

      2. My guess is one leg at a time but maybe Dr. Ed has a more efficient pants putting on system he can share with us….

        1. Firefighter style comes to mind — step into them and pull the whole unit up as you stand up.

  11. Did the NYT just say that black people can be racist? Cancel.

    1. Just like the race of those who have been physically beating asians cannot be mentioned by the press.
      Any time an article skirts identifying the race of a perp, then that is a pretty good signal that the perp is a POC

  12. The cop should be able to take this, right up until the point Harper spit on him, at which point he could have put him under arrest for assault, disturbing the peace, interfering with a police office in the carrying out of his duties, etc., etc.

    Harper is an asshole, BTW.

  13. It’s strange that the spitting is alleged to be negligent, not intentional. Usually in tort suits that is done so that the plaintiff can access the defendant’s insurance (typically homeowner’s insurance), i.e., if someone punched you intentionally, the tort is excluded from the puncher’s policy, but he swung his fist negligently and hit your chin, then it’s arguably covered. However, the other parts of this suit do allege intentional acts. So I’m not sure what is going on here.

  14. If Cheung was really assaulted, Terrell and his dog would be dead.

  15. I think the “fighting words” argument is very plausible here. The insults appeared designed to make the police officer lose his cool and hence trigger a breach of the peace. It certainly seems plausible that that was their purpose.

    I don’t see the need for a tort specifically directed at fighting words. If the First Amendment does not cover the speech, then the speech can be prohibited. I don’t see that the First Amendment requires the prohibition to take a certain form.

    In Hustler v. Falwell, the Supreme Court said that a plaintiff could not make an end run around the First Amendment by using a tort not meeting the First Amendment’s strictures. But it seems to me the decision suggests that if those strictures had been met, then Jerry Falwell could have recovered damages.

    One possible issue is whether there is a need for a heightened burden of proof analogous to the actual malice standard in libel for public figures. But it seems to me that if there is a heightened burden, it could be easily met. The underlying facts seem uncontested here.

    1. States courts didn’t strike down therir libel laws after New York Times v. Sulivan. Courts simply incorporated the First Anendment requirements into thw tort definition when dealing with a libel of a public figure.

      I don’t see why courts couldn’t do the same thing here, incorporate the definition of fighting words and relevant First Amendment limitations into the tort when the tort is alleged to have been committed by fighting words.

      It may not be sound policy to permit a police officer to invoke the fighting words doctrine. Police officers are after all supposed to keep their cool and deal with greater psychological stress than ordinary citizens, and it may not be in the long-term interests of a state to in effect reward those who do not do so. But this policy argument does not seem to me to be relevant to what the First Amendment requires. While the First Amendment does not permit punishing insulting a police officer, it seems to me that the Chisolm doctrine permits punishment for baiting a police officer with fighting words. And whether this occurs criminally or civilly is not the First Amendment’s concern, so long as the facts underlying the Chisolm exception are proved with the necessary burden of proof.

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