In the heady days of February, 2016, in the empowered City of Seattle, two police officers shot and killed a 47-year-old black man named Che Taylor. The shooting was found to be justified by police and an inquest jury, and no charges were filed. It was, nonetheless, controversial.

The two officers were conducting an undercover operation in search of another man when Taylor arrived in a car, according to police and testimony at an inquest hearing into Taylor’s death.

Spaulding and Miller said they recognized the 47-year-old Taylor as a known felon and career criminal with convictions for rape and robbery. As a felon, he was barred from having a gun, but Miller told Spaulding he had seen a handgun in a holster on Taylor’s hip when Taylor exited the car.

The cops then lost track of Taylor for a half hour, until they saw him in another car.

As Taylor got out of that vehicle, the two officers — Miller armed with a shotgun and Spaulding with a rifle — approached and ordered Taylor simultaneously to show his hands and get on the ground, according to the court file.

Five seconds elapsed between the command and the cops’ firing.

Both officers said they believed they saw Taylor reaching for a gun on his hip, where they had seen the holster.

However, the only weapon found — a semiautomatic handgun — was under the passenger seat of the car Taylor had left, beneath debris and with the barrel pointing forward, making it difficult to grab, the judge concluded.

A holster was found as well, although it’s unclear whether it was on Taylor’s hip or on the ground. Upon Taylor’s death, Seattle city councilwoman Kshama Sawant called the cops “murderers” as she whipped up outrage and grievance. The two officers, Scott Miller and Michael Spaulding. sued Sawant for defamation. Taylor’s family sued for the killing, which was settled for $1.5 million.

The defamation suit against Sawant was dismissed.

First, the district court did not err when it concluded that Miller and Spaulding failed to establish that Sawant’s statements were actionable statements of fact. Under Washington caselaw, “[b]efore the truth or falsity of an allegedly defamatory statement can be assessed, a plaintiff must prove that the words constituted a statement of fact, not an opinion.” Robel v. Roundup Corp., 59 P.3d 611, 621 (Wash. 2002). “Whether the allegedly defamatory words were intended as a statement of fact or an expression of opinion is a threshold question of law for the court.” Id. at 622.

The court must “examin[e] a statement in the totality of the circumstances in which it was made” and “should consider at least (1) the medium and context in which the statement was published, (2) the audience to whom it was published, and (3) whether the statement implies undisclosed facts.” Dunlap v. Wayne, 716 P.2d 842, 848 (Wash. 1986).

Applying Washington caselaw, we conclude that Sawant’s remarks were opinions, not statements of fact. She made them at politically charged public protests organized in the wake of police-involved shootings, i.e., “in circumstances and places that invited exaggeration and personal opinion.” Robel, 59 P.3d at 622. Sawant also framed her statements in terms of a larger political movement against “systematic racial injustice.” Thus, the statements were made “[i]n the context of ongoing political debates” such that protestors who heard them “[were] prepared for mischaracterizations and exaggerations, and [were] likely to view such representations with an awareness of [Sawant’s] subjective biases.” Dunlap, 716 P.2d at 848.

Lastly, Sawant’s statements did not imply she knew more than the public about whether Taylor’s shooting was justified. Indeed, at the time she made them, it was public knowledge that Miller and Spaulding shot Taylor, and dashboard-camera video footage of the shooting had already been released by the Seattle Police Department.

Was this mere political hyperbole, uttered in the heat of the political movement against “systemic racial injustice”? Probably, but does that change the nature of calling someone a murderer?

Eugene Volokh was of the view that the Ninth Circuit got it right.

Seems correct to me. The Ninth Circuit let the case proceed in 2021, but that decision dealt only with “the single element of their defamation claims at issue on this appeal—the of and concerning element” of libel law; as I noted then,

The court doesn’t deal with the separate question whether the label “murder” (1) should be seen as an opinion based on disclosed or widely known facts, much as saying “O.J. Simpson is a murderer” would be generally seen as opinion (opinions aren’t actionable libel), or (2) should be seen as a claim that the Councilwoman knew some other undisclosed facts that show the police officers engaged in deliberate non-self-defense killing (such implicit factual assertions may be actionable libel, if they are factually false and said with the requisite mental state).

Two aspect of this case seem deeply troubling. First, that a city councilwoman offered what would seem to be a very clear statement of fact, that the death of Che Taylor was a murder, may not reflect on her having special factual knowledge that the public lacks, but on her legal acumen as a public officer to determine, based on known facts, whether the police officers committed the heinous crime of murder. Councilwoman Sawant said so. Isn’t she sufficiently reliable to establish that the fact of a murder committed by these two cops happened?

Secondly, Sawant characterized the shooting as murder for the explicit purpose of whipping up racial outrage against the police, in general, and these two officers, in particular. She no doubt sought to use her clout as a public official to force them to be prosecuted, and to cause those in search of a reason to protest, if not riot given the context, a factual basis to attack and, quite possibly engage in violence and destruction. Did she not intend her word to be construed as fact?

Much as it’s understandable that calling someone a murderer might happen less as a fact than as a powerful rhetorical device in the mouths of those seeking to foment hatred and violence, watering down the word “murder” from hard, cold fact to squishy, loosey-goosey opinion opens a huge and dangerous door, particularly for cops. The OJ comparison is both the rare exception that proves the rule and an analogy that ignores the civil verdict that found otherwise.