Updated: July 17, 2019 @1:34 p.m.
I've gotten some pushback from my use of the term "fake news" to describe the Advocate's reporting, and whether or not what the Advocate inaccurately reported qualifies as "fake" as popularly understood. That debate is not what I want the reader to focus on; what is important here is that the only daily newspaper in town printed a material falsehood about an issue of critical importance, and that falsehood should be corrected.
Accordingly, I have edited this article to eliminate any references to "fake news," as it is distracting and not at all important to the substance of the dispute over the allegations made against Mr. Murtha in Prince George's County. Many thanks to those of you who brought these concerns to my attention.
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I've met and I like the author of yesterday’s offending article, so I get no joy in writing this piece. However, the Advocate's July 16, 2019 front page article "Police chief back on agenda for August vote"* so badly misstates what the district court in Maryland did in dismissing Chris Murtha as a defendant from the discrimination lawsuit brought against him and the Prince George's County Police Department, that the record must be corrected.
I've excerpted the offending passage from the Advocate article in full below (emphasis mine):
In withdrawing Murtha’s name [at the last meeting of the Board of Representatives, Mayor] Martin said he wanted to give board members more time to obtain better information about a racial-bias lawsuit filed against Murtha and other Prince George’s County police commanders. The civil suit, and a related complaint to the U.S. Department of Justice, was brought by black and Latino officers who allege that they were not considered for promotions and desirable transfers and work shifts because of discriminatory practices in the department.
It appeared during the July 1 meeting that Martin did not have the votes to approve his nominee.
Then last week a federal judge in the District of Maryland found that the lawsuit “is virtually devoid of allegations describing acts or omissions by Murtha,” and dropped him from it, which is likely why the mayor has requested the special meeting for next month.
When Martin announced Murtha as his pick for police chief in June, he said Prince George’s County had a motion before the court to dismiss Murtha from the lawsuit. County officials had informed the mayor’s office that they investigated the claims against Murtha and found that he had committed no wrongdoing. Now a federal judge agrees.
Quite simply, the underlined is factually inaccurate. It is untrue. The district court made no such ruling or finding that Murtha had committed no wrongdoing; in fact, it left entirely open the possibility that Murtha could be found liable at a future date. While this is an understandable mistake for a non-lawyer reporter to make when summarizing the ruling,** it is a critical mistake, as it contravenes the entire conclusion of the Advocate piece, which most casual readers of the Advocate likely believe in error: that Murtha has been cleared of the allegations of racial discrimination, and therefore the Board of Representatives is free to confirm his nomination without the shadow of such allegations looming over him.
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First, some legal basics that will need to be simplified, both for readability, and because I’m far from an expert in this area of law (to the other lawyers reading this, I think the following is close enough to being substantively accurate, but let me know if you disagree).
If you sue an individual for alleged wrongs you claim you deserve legal redress for, before you can even get to what is known as the “fact-finding” stage of the lawsuit, you must state factual allegations that, if assumed to be true, suffice to make the legal elements that alleged wrong.
Let’s take an example. Say you were biking north on Washington Boulevard just before Mill River Park, and a driver of a southbound truck made an illegal left hurrying to claim an open parking spot in Columbus Park, en route to sitting down for a tasty beverage at Tiernan’s on Main Street.*** You jump out of the way, but are forced to leave your bike behind as you escape, which is subsequently ran over and destroyed by the truck.
You sue the driver of the truck, alleging in your complaint that the driver illegally and negligently violated traffic laws while driving his truck, destroyed your bike, and owes you monetary damages for the bike.
Will the court allow you to then present evidence in support of your claim, such as video of the alleged illegal turn, or the receipt for your purchase of the bike? Nope. Your complaint will be dismissed. In this hypothetical complaint, the allegations against the driver are what lawyers call legal conclusions—they simply recite the elements of the alleged wrong (here, a tort for negligent conduct with a motorized vehicle), without providing enough specificity, such that, even if all facts in your complaint are assumed to be true (i.e., that your bike was destroyed), those facts are insufficient, by themselves to hold the truck driver liable for damages. To even be permitted to present your evidence to the fact-finder (either a jury or the judge), your allegations need to be much more specific: for example (1) you were biking southbound on Washington Boulevard on or around 4:30 p.m. on Tuesday; (2) a blue truck opposite you approached the intersection at Washington and Main Street; (3) your light was green, such that you had the right of way; (4) notwithstanding your right of way, the truck made a left turn onto Main, cutting you off; (5) and so on.
In this example, note that even when the court dismisses your complaint, that dismissal tells us nothing about the underlying validity of the claim: whether or not the truck driver violated traffic laws and destroyed your bike in doing so.
A similar situation has played out in the district court’s dismissal of Murtha from the discrimination lawsuit. The court did not “agree” that “he had committed no wrongdoing,” but instead ruled that the plaintiffs had failed to state a legal claim upon which relief could be granted. Relevant excerpts from the opinion (available here) are below (also, it is good practice for media outlets, when reporting on legal proceedings, to link to the underlying legal documents they are reporting on; the Advocate article should have linked to the opinion I’m excerpting here):
[T]he proffered facts describe alleged misconduct by Murtha relating to the falsification of time sheets in favor of a white officer and efforts to thwart an internal investigation into the misconduct, but they do not allege that Murtha engaged in discrimination against officers of color or misconduct or retaliation against officers for complaining of discrimination. Rather, they identify Chief Stawinski, not Murtha, as the [Prince George’s County Police Department] official who was made aware of a complaint to be filed by Plaintiff Perez before Perez was transferred out of Internal Affairs.
Thus, even construed in the light most favorable to Plaintiffs, the Complaint contains only general allegations that Murtha was involved in a broad custom and policy of discrimination and retaliation without any example of his direct involvement in any particular act of discrimination or retaliation, or his awareness as a supervisor and failure to address any such acts occurring in Patrol. Under these circumstances, the Complaint fails to state a claim for relief against Murtha.
Hispanic Nat’l Law Enforcement Ass’n NCR, et al., v. Prince George’s Cty., et al., Civil Action No. TDC-18-3821 [ECF No. 73 at 17] (D. Md. July 8, 2019) (emphasis mine).
However, the court’s opinion did not stop there. It proceeded to clarify that Murtha may remain an appropriate subject for discovery in the underlying lawsuit, and that, if discovery uncovers additional facts which may support a claim against Murtha in his individual capacity, the plaintiffs may be able to add him back to the complaint on those claims. Again, the relevant excerpt is below:
In so ruling [that Murtha should be dismissed from the lawsuit], the Court does not find that Murtha, based on his role at [Prince George’s County Police Department], is not an appropriate subject for discovery. Rather, the allegations in the Complaint make clear that discovery may appropriately address his acts or omissions relating to alleged discrimination and retaliation. If, during discovery, Plaintiffs obtain additional facts that would support a claim against Murtha in his individual capacity, the Court will consider granting leave to file an Amended Complaint to add such a claim.
Id. at 18.
My sources inform me that a motion to amend the complaint to add a claim (or claims) against Murtha is likely to happen in or around October. There is a probably a rule in the Federal Rules of Civil Procedure I could look at to confirm how long the plaintiffs have to file an amended complaint, but for now I think I’ve exhausted my understanding of and patience for civil procedure and related legal issues. I have no way of knowing if the October timing point is true, but I do know what’s important: that the allegations of discrimination against Murtha are far from laid to rest.
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Of course, none of the foregoing contradicts any of what I have previously written about the Murtha nomination, and I stand by my earlier opinions, unless and until more facts become known which justify changing them. Further, while the court’s dismissal for failure to state a claim does not exonerate Murtha from the alleged underlying wrongful conduct, it is an indicium (although far from dispositive) that the underlying case against Murtha is not that strong. As a general matter, if the case against him was stronger, facts supporting the allegations would have been pled in the original complaint sufficient to survive a motion to dismiss.
On a somewhat related note, it is the rule, and not the exception, that media is biased in a pro-government administration way (independent of which party is in power; to take just one damning example, see the mainstream media’s coverage of the run-up to the Iraq War under Bush 43). Accordingly, we will keep our eyes tuned to local media bias moving forward, including on coverage of Murtha’s nomination, and keep you appraised as to which direction it tilts (i.e., is the bias in favor of the politicians in the executive branch in power, or opposed to them?). As always, feel free to contact us with noteworthy examples of bias (in any direction).
* The title in the physical newspaper is different than the title in the online article linked to here.
** Looking back at my previous post where I noted Murtha had been dismissed, even I largely missed the mark when I first learned of the dismissal. I noted that an appeal of the district court’s ruling to the circuit court was an option, while completely overlooking the (far more likely) possibility that the plaintiffs could seek leave of the court to amend their complaint to allege with more specificity allegations which would support a claim against Murtha.
*** Many thanks to Tiernan’s for sponsoring my basketball team in the Monday night 4-v.-4 summer league at the JCC.