Short Take: The N-Word In Evidence

Fourth Circuit Judge Pamela Harris wrote the opinion on behalf of the unanimous panel.

Franklin Savage alleges that he was subjected to unlawful discrimination and retaliation while he was employed by the Pocomoke City Police Department and on detail to the Worcester County Criminal Enforcement Team (“CET”), a multijurisdictional drug interdiction task force led by the Worcester County Sheriff’s Office. He and two co-plaintiffs, all African Americans and former Pocomoke City police officers, filed a suit against multiple state and local agencies and their employees, alleging widespread race-based employment discrimination and retaliation.

A cop alleging a Title VII hostile work environment doesn’t happen every day, but this case raised a peculiar twist.

During the meeting, Savage alleges, [State’s Attorney Beau Oglesby] “presented some documents” – letters written by the suspects – “that were going to be looked at by the State’s Attorney’s Office to decide if they were going to use them in the upcoming court case.” Id. Then, Savage claims, Oglesby “began to read the letters verbatim line for line,” which meant “us[ing] the word Nigga over and over again.” Id. When Oglesby stopped and asked whether he was “offending anybody by reading these letters,” Assistant State’s Attorney Ajene Turnbull, the only other African American present, left the room.

The allegation was that Oglesby’s reading the letter that included the word “nigga” was gratuitous. He didn’t have to to do. There was no need to do so. Yet, he did. That he chose to do so created a hostile work environment.

The court rejected claims under prosecutorial immunity grounds, but went on to discuss context.

On the facts as alleged by Savage, Oglesby was not aiming racial epithets at Savage, or, for that matter, at anyone else, or using slurs to give voice to his own views. Instead, he was reading the word “Nigga” aloud from letters written by criminal suspects, presented to him by a police officer in the course of a trial-preparation meeting. In that distinct context and without more, no inference of a racially hostile environment can be drawn, and it would not be reasonable to believe that a Title VII violation had occurred. For that reason, we reverse the district court’s denial of the State’s motion to dismiss Savage’s Title VII retaliation claim against it.

It may well come as a surprise to some that the word appears with some regularity, both in writings as well as wiretapped communications. It can’t be avoided when it’s part of the evidence, even though it may well not bear upon any material issue of fact. Still, it’s there. “Deal with it,” as the kids like to say.

But the issue raised by the action isn’t so much about the fact that evidence may contain offensive words, but that the prosecutor gratuitously uttered the words in the presence of people he knew, or had reason to know, would be offended by his actions. It might not be Oglesby’s fault that the letters in evidence contained the word, and that it might be viewed, even uttered, at some point when it was necessary in the scope of prosecution, but if Oglesby did it for kicks, needlessly, is that not on his shoulders?

This isn’t a case raising frivolous hurt by ears hearing the utterance of an offensive word, but challenging a prosecutor who made a choice for which the excuse is thin to the point of non-existence as an exercise of professional judgment, to read the word to the assembled group for no better reason than he could. And the Fourth Circuit protected the prosecutor for doing so.

The utterance of an offensive word can’t always be helped. If it’s used, there are times when it’s necessary to recognize it, to say it. And for both prosecution (including cops) and defense, we need to be tough enough not to cry because our ears heard a bad word. But was it necessary? That should be a question for a jury, but the Fourth Circuit preferred to provide overarching protection to a prosecutor, so we’ll never know.