Jackson v. Filliben Petition for a Writ of Certiorari to the Supreme Court of the State of Delaware

    I n  t h e

I h t p r m ?  G Im trt n f  tty? I n t t p f t  B M ? b

O ctober T e e m , 1968
No.

J o se ph  B e n  J a ck so n , J r ., 

— v.—
Petitioner,

J o se ph  F. F il l ib e n , J r .,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF DELAWARE

Louis L. R edding

400 Farmers Bank Building 
919 Market Street 
Wilmington, Delaware 19801

J ack  Greenberg  
J ames M. N a b eit , III 
M ic h a e l  M e l t sn e r  
M elvyn  Zarr 
E l iz a b e t h  B . D u B ois 

10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioner



I N D E X

Citation to Opinion Below ..... ................... ..... ........... . 1

Jurisdiction ........................    1

Questions Presented...................        2

Constitutional and Statutory Provisions Involved.... . 2

Statement .............................     2

Reasons for Granting the Writ—
Introduction............................................................   7

PAGE

I. Petitioner Cannot Be Held Liable in Defama­
tion on the Basis of a Statement Alleging That 
Respondent Police Sergeant Had Violated 
Rights Protected Under the Constitution and 
Statutes of the United States, Published to Au­
thorities Responsible for Investigating and Pre­
venting Such Law Violations ............................  8

II. Petitioner Cannot Be Held Liable in Defamation 
on the Basis of a Report to Proper Authorities 
Regarding Alleged Violation by a Police Ser­
geant of Rights Protected Under the Constitu­
tion and Statutes of the United States Where 
the Record Shows No Malice Under the Stan­
dards Laid Down in New York Times Co. v.
Sullivan, 376 U.S. 254 (1964) ............................  11

A p p e n d ix  A —
Opinion Below......................................................... la

A ppe n d ix  B —
Constitutional and Statutory Provisions Involved 4a 

A p p e n d ix  C—
Letter from Petitioner to the Police Commissioner 8a



11

T able op Cases

page

Bridges v. California, 314 U.S. 252 (1941) ...... ..........  10
Burg v. Boas, 231 F.2d 788 (9th Cir. 1956) ............ . 10

Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949) .... 6
Construction Laborers v. Curry, 371 U.S. 542 (1963) .... 7

Dombrowski v. Pfister, 380 U.S. 479 (1965) .................  7

Foltz v. Moore McCormack Lines, Inc., 189 F.2d 537 
(2nd Cir.), cert, denied 342 U.S. 871 (1951) ..........  9

Gabriel v. McMullin, 127 Iowa 426, 103 N.W. 355 (1905) 10
Garrison v. Louisiana, 379 U.S. 64 (1964) ..................... 12
Gilligan v. King, 48 Misc. 2d 212, 264 N.Y. Supp.2d

309 (1965) ................................. ...................... .........  12
Greenwood v. Peacock, 384 U.S. 808 (1966) .................  7

Henry v. Collins, 380 U.S. 356 (1965) ........................  11
Ilott v. Yarbrough, 112 Tex. 179, 245 S.W. 676 (1922) 10

In re Quarles, 158 U.S. 532 (1895) ............................9,10

Mercantile National Bank v. Langdeau, 371 U.S. 555
(1963) .........................................................................  7

Mills v. Alabama, 384 U.S. 214 (1966) ........................ 7
Miranda v. Arizona, 384 U.S. 436 (1966) ........ ............  7

New York Times v. Sullivan, 376 U.S. 254 (1964) ....3, 5, 6, 8,
10,11,12,13,14

Oswalt v. State-Record Co., 158 S.E.2d 204 (S.C. 
S.Ct. 1967) 12



I l l

PAGE

Pape v. Time, 354 F.2d 558 (7th Cir. 1965) .................  12
Pickering v. Board of Education, 391 U.S. 563 (1968) 14
Pierson v. Ray, 386 U.S. 547 (1967) ........................ 9,10
Pope v. Atlantic Coast Line R. Co., 345 U.S. 379 (1953) 6

Rosenblatt v. Baer, 383 U.S. 75 (1966)  ........................ 11

St. Amant v. Thompson, 390 U.S. 727 (1968) .............. 11
State of North Carolina v. Carr, 386 F.2d 129 (4th

Cir. 1967) ..............................................    9
Suchomel v. Suburban Life Newspapers, Inc., 84 111.

App. 2d 239, 228 N.E.2d 172 (1967) ........................  12
Sullivan v. Crisona, 283 N.Y. Supp. 2d 62 (1967) ___  10
Swaaley v. United States, 376 F.2d 857 (U.S. Ct. Claims 

1967) ...........................................................................  12

Thomas v. Loney, 134 U.S. 372 (1890) ........................  9
Touhy v. Ragen, 340 U.S. 462 (1950) ......................... 9

U.S. v. Moser, 4 Wash. C.C. 726 ...................................  10

Vogel v. Cruaz, 110 U.S. 311 (1884) ............................9,10

Washington Post Co. v. Keogh, 365 F.2d 965 (D.C.
Cir. 1966) ........................................        7

Wells v. Toogood, 165 Mich. 677, 131 N.W. 124 (1911) 10
White v. Nicholls, 3 How. 266, 44 U.S. 266 (1845) ......  9
Worthington v. Scribner, 109 Mass. 487 ..................... 10

18 U.S.C. §§241, 242 ..
28 U.S.C. §1257 ........
42 U.S.C. §§1983, 1985

S tatutes

2.9 
1,6

2.9



IV

Ot h e r  A u t h o r it ie s

Annot., 140 A.L.E. 1466 (1942) ...................................  12

Bertelsman, Libel and Public Men, 52 A.B.A.J. 657 
(1966) ......................................................................... 12

Casenote, 51 Colum. L.J. 244 (1951) ............................  12

1 Harper S  James, Torts §§5.22, 5.23 (1956) .............. 10

Noel, Defamation of Public Officers and Candidates,
49 Colum. L.J. 875 (1949) ....................................... 13

Note, 78 Yale Law Journal 156 (1968) ...................... . 8

Prosser, Torts §109 (1964) ........................................ . 10
Prosser, Torts §110 (1964) ..................................... .....  12

Restatement, Torts §§585, 586, 587 (1938) ................. 10
Restatement, Torts §598 (1938) ...................................  12

PAGE



I n  T H E

u p r m e  (Emtrt n f tl|p  I m tP ii  B u U b

O ctober T e e m , 1968  

No. -----

J o se ph  B e n  J a ck so n , J b .,
Petitioner,

J o se ph  F .  F il l ib e n , J b .,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF DELAWARE

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of the State of Dela­
ware entered on October 28, 1968.

Citation to Opinion Below

The opinion of the Supreme Court of the State of Dela­
ware is reported at 247 A.2d 913, and is set out in Appendix 
A hereto, pp. la-3a, infra.

Jurisdiction

The judgment of the Supreme Court of the State of 
Delaware was entered on October 28, 1968. Jurisdiction of 
this Court is invoked under 28 U.S.C. §1257(3), petitioner 
having asserted below and here the deprivation of rights 
secured by the Constitution and statutes of the United 
States.



2

Questions Presented

Petitioner made a report to the F.B.I. and the Police 
Commissioner (Respondent police sergeant’s highest supe­
rior) that Respondent had committed acts constituting, in 
Petitioner’s opinion, police brutality, thus depriving him 
of his rights under the Constitution and laws of the United 
States. Solely on the basis of this report, Respondent sued 
Petitioner for defamation.

1. Is the report absolutely privileged under the Consti­
tution and laws of the United States?

2. Is the report privileged, absent any showing of malice, 
under the Constitution and laws of the United States?

Constitutional and Statutory Provisions Involved

This case involves the First, Fifth and Fourteenth 
Amendments to the Constitution of the United States.

This case also involves 18 U.S.C. §§241, 242, and 42 
U.S.C. §§1983, 1985, which are fully set out in Appendix B 
at pp. 4a-6a, infra.

Statement

Respondent, Joseph F. Filliben, Jr., filed a complaint in 
the Superior Court of the State of Delaware on July 26, 
1966, alleging that Petitioner, Joseph Ben Jackson, Jr., 
made false charges of police brutality against Respondent 
to the U.S. Attorney at Wilmington, Delaware. (Com­
plaint, para. 7). Petitioner moved in his answer, Sept. 16, 
for a dismissal of the complaint on the ground that any 
statements he may have made were privileged. He sub­
sequently moved for judgment on the pleadings on the 
grounds that he had an absolute privilege to report viola­



3

tions of federal law to the appropriate federal official; and, 
alternatively, that malice could not be shown and there­
fore, under the doctrine of New York Times v. Sullivan, 
376 U.S. 254 (1964), he could not be subjected to liability 
for his statement regarding Respondent, This motion was 
denied by order, without opinion, May 18, 1967.

At trial Respondent introduced evidence that Petitioner 
had sent a letter (P. Ex. #1 ; App. C, pp. 8a-13a, infra) 
to the Police Commissioner, Respondent’s highest supe­
rior, and that a copy of this letter had been received by 
the F.B.I. The letter states that in accordance with the 
Commissioner’s instructions, petitioner was submitting the 
letter “as an official complaint of abuse by Police.” (App. 
p. 8a, infra).

The letter describes incidents which arose out of peti­
tioner’s arrest by Respondent Filliben, a police sergeant, 
the night of December 2, 1965. Briefly it states that Peti­
tioner had been driving to work the night of December 2 
when he was stopped by Sergeant Filliben who ordered 
him out of the car, grabbed him when he did get out and 
held him while another officer handcuffed his hands behind 
his back, “causing unbearable pain.” “I was then thrown 
to the ground. I tried to get up several times but each 
time I was knocked back down. Sergeant Filliben then told 
one of the officers to hold me down and he immediately 
complied by dropping down upon me with his knee.” (App. 
pp. 9a-10a, infra). While on the ground Petitioner asked 
the officer holding him to loosen the handcuffs because they 
were hurting him, but was told to shut up. Subsequently, 
the letter goes on, the patrol wagon came, and when Peti­
tioner objected to getting into it Sergeant Filliben 
“grabbed me and slammed me back down on the ground.” 
(App. p. 10a, infra). Petitioner again asked to have his 
handcuffs loosened. He was put in the wagon and taken, 
eventually, to the station.



4

All during the ride I was begging and pleading for 
relief of the pain on my wrist. . . . After I was taken 
into the station the officer who had told me fin the 
patrol wagon] that he didn’t have a key to fit the 
handcuffs on my wrists, selected one from a bunch of 
keys in his possession and caused me to bend over 
with my head almost between my knees. He then un­
locked the handcuffs. My wrists were terribly bruised. 
. . . (App. pp. lOa-lla, infra).

The letter goes on to describe repeated demands by Ser­
geant Filliben as to whether Petitioner was going to have 
the case continued, and to relate a conversation containing 
the only mention of “police brutality” in the letter.

[At the station] I started to make a third call to 
borrow money to get my automobile that was left at 
the scene with the motor running and lights on because 
the Sgt. told me that it would be impounded but was 
told to hang up. Sgt. Filliben then asked me again if I 
was going to have the case continued? I said to him “I 
really don’t know. I have often read and heard of police 
brutality but had no idea that I would ever experience 
it.” Sgt. Filliben then said, “you’re lucky. Ten years 
ago I would have black jacked you.” . . .  I said, “With 
hand cuffs on!” He said, “That’s right boy you’re 
lucky.” . . .

. . . The next morning while sitting on a bench in 
the hall of the Public Building reading a newspaper 
at about 8:40 A.M., Sgt. Filliben approached me and 
said, “Ben are you going to have this case continued!” 
I said nothing. He repeated the question and I did 
not answer him. He then said, “All right boy, I just 
gave you your last chance” as though to threaten me. 
(App. pp. lla-12a, infra).



5

At trial Respondent introduced evidence which, consid­
ered most favorably for Respondent, basically differed 
from the account given in Petitioner’s letter only in alleg­
ing certain provocative acts by Petitioner at the time of 
his arrest, and in alleging that Petitioner had fallen rather 
than been thrown to the ground.1

At the close of Respondent’s case, which included testi­
mony by Petitioner, the latter moved for a directed ver­
dict which was granted on the ground that Respondent 
had failed to prove that the charge of police brutality was 
made to the U.S. Attorney, as alleged in the complaint.

On appeal to the Supreme Court of the State of Dela­
ware, Petitioner argued that the judgment below should be 
affirmed on the ground, among others, that Petitioner could 
not be held liable in defamation on the evidence presented 
consistently with the First Amendment and the doctrine 
announced in New York Times Co. v. Sullivan, 376 U.S. 
254 (1964). The Court found that the evidence showed a 
publication of the charge of “police brutality” to the Police 
Commissioner, Respondent’s highest superior, and to the 
F.B.I., and therefore, since the variance between the com­
plaint and the pleadings consisted solely in the identity

1 Respondent’s evidence indicated that while driving from work 
in uniform hut in his own ear he had noticed Petitioner speeding, 
and had pursued and stopped Petitioner with the aid of other offi­
cers. Petitioner had initially refused to get out of his car, and had 
eventually emerged cursing and waving his arms about, at which 
point he was grabbed and handcuffed. Respondent’s evidence indi­
cated that Petitioner had then fallen to the ground and that, be­
cause of his efforts to kick, Respondent ordered an officer to hold 
him down. Petitioner was later carried to the wagon, dropped to 
the ground when he kicked, and eventually placed in it. (See Tr. 
12, 14, 15, 19, 51, 52, 54.)

The evidence also indicated that Respondent Filliben subse­
quently charged Petitioner with speeding, failing to stop at the 
command of a police officer, disorderly conduct and resisting arrest, 
and that after a hearing on all of these charges, Petitioner was 
convicted only of disorderly conduct (Tr. 40-44). Respondent’s 
witnesses never denied that Sergeant Filliben had in fact grabbed



6

of the persons to whom the charges were made, direction 
of the verdict on this basis was unjustified. The Court 
further ruled that the charge of police brutality was not 
fatally vague, and finally that, assuming Respondent was 
a public official within the meaning of Times v. Sullivan, 
supra, the issue of malice was a matter for the jury.

Petitioner seeks review of this judgment on the basis 
that it is final within the meaning of 28 U.S.C. §1257. This 
Court had often said that the requirements of finality must 
be given a practical, not a technical construction. See, 
e.g., Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949); 
Pope v. Atlantic Coast Line R. Co., 345 U.S. 379 (1953). 
It is Petitioner’s contention, developed more fully, infra, 
pp. 8-14, that the allegedly defamatory utterance was 
protected under the Constitution and statutes of the United 
States, and particularly the First Amendment, and there­
fore that there is no issue for a jury in this case. The 
considerations of judicial economy central to 28 U.S.C. 
§1257 dictate that this case be finally disposed of now, 
rather than remanded for a new trial which would probably 
result in a verdict for Respondent,2 another appeal, and 
another Petition for Certiorari. Further, denying Petitioner

and held Petitioner while another officer handcuffed him or that 
Respondent had ordered another officer to hold Petitioner, whose 
hands were handcuffed behind his back, on the ground. Nor did 
Respondent’s witnesses deny any of the other significant elements 
of the story outlined in Petitioner’s letter, such as Petitioner’s com­
plaints regarding the tight handcuffs, the fact that these com­
plaints were ignored, and Respondent’s various intimidating and 
demeaning comments. Most significantly, Respondent never denied 
that the conversation in which Peitioner mentioned “police bru­
tality”—and it is this reported conversation that was the basis of 
the libel action—took place as described in the letter.

2 At any new trial Petitioner would have the heavy burden, 
under the law and particularly the test of malice established by the 
court below, of persuading a jury of the complete truth of the 
entire account of the incident outlined in the letter, in the face of 
testimony by four police officers, supported by one private citizen, 
in their refutation of a charge of police brutality.



7

relief now will finally deny him the essential right not to be 
forced to submit, in order to vindicate his right to speak, to 
further lengthy and expensive litigation with its inherent 
dangers of coerced settlement and its inevitable chill on 
First Amendment rights. See, e.g., Mills v. Alabama, 384 U.S. 
214, 221 (1966) (concurring opinion); Dombrowski v. Pfil­
ter, 380 U.S. 479 (1965); and see Construction Laborers v. 
Curry, 371 U.S. 542 (1963); Mercantile National Bank v. 
Lcmgdeau, 371 U.S. 555 (1963). Cf. Washington Post Co. 
v. Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966); Greenwood 
v. Peacock, 384 U.S. 808, 829 (1966) (dictum) (dealing 
with 28 U.S.C. §2283).3

Reasons for Granting the Writ 
Introduction

This case involves the right of a private citizen to report 
an alleged abuse by a police sergeant of rights protected 
by the Constitution and statutes of the United States to 
that officer’s highest superior and to the F.B.I., authorities 
charged with responsibility for investigating and prevent­
ing such law violations. On a record which, considered 
most favorably for Respondent, fails to negate Petitioner’s 
honest belief in the published charge of “police brutality,” 
the Court below found that Petitioner could be held liable 
in defamation. In numerous cases concerning the exclu­
sion of illegally obtained evidence this Court has pointed 
to the absence of significant deterrents to police abuse and 
has recognized the extraordinary difficulty that citizens 
have in proving a case of such abuse. See, e.g., Miranda 
v. Arizona, 384 U.S. 436 (1966). To permit the police to

3 The mere fact that it is conceivable that a new trial in this case 
cotild result in a judgment for Petitioner is not conclusive. See, 
e.g., Mills v. Alabama, supra, 384 U.S. at 217, 221, 222 and n. 1; 
cf. Dombrowski v. Pfister, supra, 380 U.S. at 487; Mercantile Na­
tional Bank v. Langdeau, supra, 371 U.S. at 573.



8

use defamation actions to punish any citizen who dares to 
complain to authorities whose responsibility it is to pre­
vent such abuse is intolerable and inconsistent with the 
principles recently enunciated in New York Times Co. v. 
Sullivan, 376 U.S. 254 (1964).

I.
Petitioner Cannot Be Held Liable in Defamation on 

the Basis of a Statement Alleging That Respondent 
Police Sergeant Had Violated Rights Protected Under 
the Constitution and Statutes of the United States, 
Published to Authorities Responsible for Investigating 
and Preventing Such Law Violations.

It is Petitioner’s contention that he had an absolute 
privilege to report alleged police brutality to the Police 
Commissioner, Respondent’s highest superior, and to the 

and therefore that there should be no judicial in­
quiry in a defamation suit into the truth of his allegation 
or into his motives in making it. To subject persons in 
Petitioner’s position to defamation suits in which they 
must prove to a jury’s satisfaction the truth4 of any re­
ports they have made would greatly increase the difficulty 
of enforcing the laws governing police conduct, and place 
an intolerable burden on First Amendment rights. See, 
e.g., Note, 78 Yale L.J. 156, 163, 170 (1968). Moreover, 
where publication is only to authorities responsible for 
investigating such law violations, the accused has an oppor­
tunity to answer the charges in the course of any inves­
tigation and, unless the charges are found to be substan­
tiated, his reputation should not suffer significantly.

4 In bolding that a finding of malice could be made on this evi­
dence the court in effect held that Petitioner could be held liable 
unless the allegations contained in his letter were in fact true.



9

An absolute privilege to report law violations to author­
ities responsible for investigating and prosecuting such 
violations has previouly been recognized by this Court. 
See, e.g. In re Quarles, 158 U.S. 532 (1895); Vogel v. 
Gruaz, 110 U.S. 311 (1884). But cf. White v. Nicholls, 3 
How. 266, 44 U.S. 266 (1845); Foltz v. Moore McCormack 
Lines, Inc., 189 F.2d 537 (2nd Cir.), cert, denied, 342 U.S. 
871 (1951). Federal law clearly ought to govern any re­
ports made to the F.B.I. Cf. Thomas v. Loney, 134 U.S. 
372 (1890); Foltz v. Moore McCormack Lines, Inc., supra.* 6 
Similarly, federal law ought to govern reports of alleged 
violation of federal statutes-—here 18 U.S.C. §§241, 242 
and 42 U.S.C. §§1983, 19856—and of the federal constitu­
tion—here the right not to be punished without due process 
of law—when these reports are made to persons respon­
sible for seeing that such violations do not occur. (The 
Police Commissioner, as Petitioner’s highest superior, is 
in a position to penalize any such law violations by pro­
viding for the discipline of the guilty officer.) Obviously 
it would be intolerable to allow a State to frustrate the 
implementation of federally protected rights by imposing 
its own restrictions on the ability of persons to seek redress 
for the violation of such rights. Therefore this Court could 
find Petitioner’s letter protected by an absolute privilege 
simply as a matter of federal lawr.

But in addition, the right to report law violations free 
from the fear of defamation suits is, under these circum­
stances, of constitutional dimension. In In re Quarles, 
supra, this Court held that the right to inform a U.S.

6 Thus the U. S. Attorney in Delaware asserted his right in this 
case to refuse to disclose in the State court proceedings any in­
formation he had obtained from Petitioner. See Becord in Su­
perior Court Nos. 23, 24 and authorities cited, including State of 
North Carolina v. Carr, 386 F.2d 129 (4th Cir. 1967). See also 
Touhy v. Bagen, 340 U.S. 462 (1950).

6 See generally Pierson v. Bay, 386 U.S. 547 (1967).



10

Marshall of a law violation was a right “secured by the 
Constitution of the United States,” 158 U.S. at 537-538; 
and see Bridges v. California, 314 U.S. 252, 277 and n. 21 
(1941). And in New York Times Co. v. Sullivan, 376 U.S. 
254 (1964), this Court looked to the common law of de­
famation in fashioning the limits imposed by the First 
Amendment on a state’s ability to allow actions for de­
famation by public officials. An absolute privilege to 
speak free from any fear of liability in defamation has 
long been recognized at common law in a variety of cir­
cumstances, including judicial and quasi-judicial or ad­
ministrative proceedings, and any necessary preliminaries 
to such proceedings. See generally P rosser, T orts §109 
(1964) ; 1 H arper  & J a m es , T orts §§5.22, 5.23 (1956); 
R e s t a t e m e n t , T orts §§585, 586, 587 (1938). Cf. Pier­
son v. Ray, 386 U.S. 547 (1967). And in many jur­
isdictions this absolute privilege has been specifically held 
to cover informal complaints of law violations made to 
police7 or prosecutors. In addition to this Court’s deci­
sions in In re Quarles and Vogel v. Gruaz, supra, see, e.g., 
Gabriel v. McMullin, 127 Iowa 426, 103 N.W. 355 (1905); 
Worthington v. Scribner, 109 Mass. 487; Wells v. Toogood, 
165 Mich. 677, 131 N.W. 124 (1911); U.S, v. Moser, 4 
Wash. C.C. 726; Rott v. Yarbrough, 112 Tex. 179, 245 
S.W. 676 (1922); Burg v. Boas, 231 F.2d 788 (9th Cir. 
1956) (dictum); see generally R e st a t e m e n t , T orts §587 
(1938); P rosser, T orts §109 at 800 (1964). This Court

7 The allegation of police brutality would of course, if true, con­
stitute a violation not only of federal law but also of state laws, 
and it would therefore be appropriate to report such a violation to 
the Police Commissioner. But in any event, a report of any law 
violation to the Police Commissioner ought be absolutely privileged 
as a necessary preliminary to quasi-judicial disciplinary proceed­
ings. Cf. Sullivan v. Crisona, 283 N.Y. Supp.2d 62 (1967) (abso­
lute privilege covers Bar Association Grievance Committee pro­
ceedings) .



11

should grant certiorari to determine whether a balancing 
of the interests involved does not, under the First Amend­
ment and the principles enunciated in New York Times 
Co. v. Sullivan, 376 U.S. 254 (1964), require an absolute 
privilege to report law violations to proper authorities.

II.

Petitioner Cannot Be Held Liable in Defamation on 
the Basis of a Report to Proper Authorities Regarding 
Alleged Violation by a Police Sergeant of Rights Pro­
tected Under the Constitution and Statutes of the United 
States Where the Record Shows No Malice Under the 
Standards Laid Down in New York Times Co. v. Sul­
livan, 376 U.S. 254 (1964).

Whether or not Petitioner’s report is protected by an 
absolute privilege, as argued supra, pp. 8-11, it is 
at least protected by the qualified privilege outlined in 
New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 
The Court below based its decision on the assumption that 
Respondent police sergeant was a public official within 
the meaning of Times v. Sullivan, but purported not to 
decide that question. However, there should be no doubt 
that a defamation suit by a police sergeant, a person with 
“substantial responsibility for or control over the conduct 
of governmental affairs,” whose qualifications and per­
formance are of particular interest to the public (Rosen­
blatt v. Baer, 383 U.S. 75, 85, 86 (1966)), on the basis of 
a report accusing him of violating rights protected under 
the Constitution and laws of the United States, a matter 
of enormous and legitimate public interest, should be gov­
erned by the principles enunciated in Times v. Sullivan. 
See, e.g., St. Amant v. Thompson, 390 U.S. 727 (1968) 
(deputy sheriff); Henry v. Collins, 380 U.S. (1965) (chief



12

of police) ; Pape v. Times, 354 F.2d 558 (7th Cir. 1965) 
(deputy chief of detectives and police lieutenant) ; Sucho- 
mel v. Suburban Life Newspapers, Inc., 84 111. App. 2d 239, 
228 N.E.2d 172 (1967) (police sergeant); Gilligan v. King, 
48 Misc.2d 212, 264 N.Y. Supp.2d 309 (1965) (police lieu­
tenant) ; Oswalt v. Slate-Record Co., 158 S.E.2d 204 (S.C. 
S.Ct. 1967) (police officer); see generally Bertelsman, Libel 
and Public Men, 52 A.B.A.J. 657, 661, 662 (1966).

Moreover, Petitioner’s report would be protected at 
least by a qualified privilege under common law doctrines 
of greater importance, and more universally accepted, than 
that raised to constitutional dimensions in Times v. Sul­
livan. Thus it has long been held that no action in de­
famation will lie in the absence of malice for a complaint 
to proper authorities regarding the conduct of public 
employees. See, e.g., P rosser , T orts §110 (1964); R esta te­
m e n t , T orts §598 and comment (c) (1938); Ca sen o te , 51 
Colum. L.J. 244 (1951). And the right to report law 
violations to police or prosecutors has traditionally been 
protected if not by an absolute privilege, supra, p. 10, at 
least by a qualified privilege. See, e.g., Sivaaley v. United 
States, 376 F.2d 857 (U.S. Ct. Claims 1967); Annot., 140 
A.L.R. 1466 (1942).

The court below held that the issue of malice was for the 
trier of fact But the question of whether, as a matter of 
law, malice can be found on this record, is one for this 
Court. See New York Times Co. v. Sullivan, 376 U.S. 254, 
285 and n. 26 (1964).

The allegedly defamatory charge at issue in this case 
is one of police brutality, an expression of Petitioner’s 
opinion based on facts outlined in his letter. Since the 
claim of defamation was based only on this statement of 
opinion, and not on specific factual statements, it is argu­
able that no action for defamation lies at all. See Gar­
rison v. Louisiana, 379 U.S. 64, 77 and n. 10 (1964). In



13

any event, a defense of fair comment must be afforded 
under Times v. Sullivan for an bonest expression of 
opinion based upon privileged, as well as true, statements 
of fact, 376 U.S. at 292 n. 30. See generally Noel, Defa­
mation of Public Officers and Candidates, 49 Colum. L.J. 
875, 879 (1949). It was for Respondent to defeat this 
defense by a showing of malice—a showing that Petitioner’s 
allegation of police brutality was unsupported except by 
statements of fact made with knowledge that they were 
false or with reckless disregard of whether they were 
false or not, Times v. Sullivan, 376 U.S. at 279-280. In 
fact, Petitioner’s allegation was supported by numerous 
statements in his letter which were never even denied by 
Respondent: The allegations that he was held on the 
ground while handcuffed behind his back; that the hand­
cuffs were excruciatingly tight and his continual pleas 
to loosen them ignored; and that Sergeant Pilliben made 
numerous demeaning and intimidating comments. More­
over, Respondent Pilliben introduced no evidence denying 
that the conversation relating to police brutality took 
place as described in the letter, which was admitted into 
evidence in full.8 In that conversation Sergeant Pilliben, 
when Petitioner implied that he had been subjected to 
police brutality, not only failed to deny, but implicitly 
acknowledged the truth of the allegation. (App. 12a, infra) 
Certainly these facts would alone support an honest belief9 
by Petitioner that he had been subjected to police brutality. 
Respondent’s proof that certain of the facts reported in 
the letter were false seems therefore irrelevant.

8 See n. 1, pp. 5-6, supra.
9 The fact that an opinion is unreasonable is immaterial. See, 

e.g., New York Times v. Sullivan, supra, 376 U.S. at 292, n. 30; 
Noel, Defamation of Public Officers and Candidates, 49 Colum’ 
L.J. 875, 879 (1949).



14

Moreover, the insignificant discrepancies between Peti­
tioner’s and Respondent’s versions10 cannot constitutionally 
support a finding of malice. See e.g., Pickering v. Board 
of Educ., 291 U.S. 563 (1968); New York Times Co. v. 
Sullivan, 376 U.S. 254, 286, 289 (1964). It is inevitable 
that an event like this will produce somewhat different 
versions and interpretations of exactly what happened.11 
To allow a jury to find malice solely on the basis of such 
discrepancies as exist between Petitioner’s story and the 
evidence Respondent introduced would be to subject vir­
tually every person complaining of police abuse to the 
risk of damages and to place an intolerable burden on 
the rights of citizens to seek redress for legitimate griev­
ances.

10 Respondent’s witnesses testified that Petitioner acted provoca­
tively at the time of his arrest—cursing and waving his arms— 
and after he was handcuffed—-kicking at the officers. And Respon­
dent’s witnesses indicated that Petitioner fell or was dropped, 
rather than pushed, to the ground.

11 Petitioner in this case was arrested for speeding at midnight, 
after a long day, on his way back to work; he testified that he was 
not driving fast and the evidence indicated that he was never con­
victed on the charges for speeding or for failing to heed an officer’s 
signal; he was pursued and stopped by an officer driving in an 
ordinary car, and he testified that he did not know what was 
going on when he was asked to get out of his car. It is understand­
able, even accepting completely the version of the incident most 
favorable to Respondent’s case, that Petitioner might feel that each 
assertion of police authority from the initial order to get out of his 
car on, was unwarranted, that he was justified in resisting such 
assertions and, therefore, that the entire incident represented an 
abuse by the police of his rights. In this context it is perfectly 
possible for him to have believed that he was pushed to the ground 
even if, in fact, he fell or was dropped.



15

For the Foregoing Reasons, Certiorari Should 
Be Granted

Respectfully submitted,

Louis L. R edding

400 Farmers Bank Building 
919 Market Street 
Wilmington, Delaware 19801

J ack  Green b er g  
J am es M. N abrit , III 
M ic h a e l  M e l t sn e r  
M elvyn  Z arr 
E liza b eth  B. DuB ois 

10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioner



APPENDIX



APPENDIX A

Opinion Below

I n  t h e

S u p r e m e  C ourt op t h e  S tate  op D elaw are 

No. 43, 1968

J o se ph  F. F il l ib e n , J r.,
Plaintiff Below, Appellant, 

v.

J o se ph  B e n  J a ck so n , J r .,

Defendant Below, Appellee.

October 25, 1968

W olcott, Chief Justice; C arey and H e r r m a n n , JJ., sitting.
Upon appeal from the Superior Court. Reversed and 

remanded.
Harold Leshem, of Booker, Leshem, Green & Shaffer, 

Wilmington, for plaintiff below, appellant.
Louis L. Redding, Wilmington, for defendant below, 

appellee.
Carey, Justice:

The appellant, Joseph F. Filliben, Jr., brought suit in 
Superior Court against the appellee, Joseph Ben Jackson, 
Jr., seeking damages for an alleged defamation. After 
plaintiff’s case in chief was completed, the trial Court di-

la



2a

rected a verdict in favor of the defendant. It is this ruling 
which is now questioned.

The appellant, who was a police officer, alleged in his 
complaint that the appellee maliciously made formal 
charges against him to the United States Attorney, know­
ing them to be false. According to the complaint, the 
alleged untrue charges accused him of “police brutality.” 
At the trial, the appellee admitted that he did have a 
conversation with the Federal District Attorney, but the 
record does not disclose precisely what statements were 
then made by the appellee. There was introduced into evi­
dence, however, a letter written by appellee to Joseph 
Errigo, who was at the time Commissioner of Public Safety 
for the City of Wilmington. It was also shown that a copy 
of that letter was delivered to the Federal Bureau of In­
vestigation. This letter, admitted into evidence without 
objection, constituted the basis of the complaint.

The motion for directed verdict was based on the ground 
that there was a fatal variance in that there was no proof 
of any defamatory statement made to the United States 
Attorney as alleged in the complaint. The Court’s ruling 
was based solely upon that ground. Appellant argues that 
the ruling was incorrect because, when the letter was ad­
mitted into evidence without objection, the pleadings were 
impliedly amended under Superior Court Civil Rule 15(b). 
We agree with that contention.

Rule 15(b) is precisely the same as the Federal Rule of 
Civil Procedure bearing the same designation. Under it, 
failure to object to the admission of testimony is an implied 
consent to the amendment. 3 Moore’s Federal Practice 
(2nd ed.) 994; Eisenrod v. Utley, 211 F. 2d 678. Such is the 
situation in the present case. The evidence showed a pub­
lication to the Commissioner of Public Safety (appellant’s 
highest superior) and to the Federal Bureau of Investiga­
tion, rather than to the United States District Attorney;



3a

the variance consisted solely in tile identity of the persons 
to whom the charges were made. Direction of the verdict 
was accordingly unjustified.

Appellee’s brief raises for the first time two additional 
arguments to support his contention that the judgment 
should be affirmed despite the error mentioned above. Al­
though these contentions have not been passed upon by 
the Court below, we will rule upon them for the guidance 
of the trial Judge in the future handling of the case.

The first contention is that the letter written by appellee 
“is so vague, inconclusive and nebulous that it could not 
justify a verdict that defendant made a defamatory ut­
terance relating to plaintiff.” This proposition, in our opin­
ion, is a matter for the trier of fact. A jury could rea­
sonably find that the letter charges the appellant with the 
use of excessive and unjustified physical force in arresting 
the appeellee which, in our opinion, is the equivalent of 
“police brutality;” indeed, appellant testified that, if the 
charges had been found to be true, they would have justi­
fied his dismissal from the force. We find no merit in this 
argument.

Secondly, appellee contends that the appellant, as a po­
lice sergeant, was a public official within the meaning of 
New York Times Company v. Sullivan, 376 U. S. 254, 84 
S. Ct. 710, and that there Was no showing of malice as de­
fined in that case. Assuming, without deciding, that appel­
lant was a “public officer,” we are of the opinion that the 
issue of malice is a matter for the trier of fact. The appel­
lant denied the truth of the charges; their nature is such 
that the jury could properly find that appellee actually 
knew they were false. Such a finding would suffice to dem­
onstrate malice, under the Sullivan rule, supra. See Ross 
v. News-Journal Company,------ Storey----- , 228 A. 2d 531.

The judgment below must be reversed and remanded for 
further proceedings consistent herewith.



4a

APPENDIX B
Constitutional and Statutory Provisions Involved 

18 U.S.C. §241
§241. Conspiracy against rights of citizens

If two or more persons conspire to injure, oppress, 
threaten, or intimidate any citizen in the free exercise or 
enjoyment of any right or privilege secured to him by the 
Constitution or laws of the United States, or because of 
his having so exercised the same; or

If two or more persons go in disguise on the highway, 
or on the premises of another, with intent to prevent or 
hinder his free exercise or enjoyment of any right or 
privilege so secured—

They shall be fined not more than $5,000 or imprisoned 
not more than ten years, or both.

18 U.S.C. §242
§242. Deprivation of rights under color of law

Whoever, under color of any law, statute, ordinance, 
regulation, or custom, willfully subjects any inhabitant of 
any State, Territory, or District to the deprivation of 
any rights, privileges, or immunities secured or protected 
by the Constitution or laws of the United States, or to 
different punishments, pains, or penalties, on account of 
such inhabitant being an alien, or by reason of his color, 
or race, than are prescribed for the punishment of citizens, 
shall be fined not more than $1,000 or imprisoned not 
more than one year, or both.



5a

28 U.S.C. §1257
§1257. State courts; appeal; certiorari

Final judgments or decrees rendered by the highest 
court of a State in which a decision could be had, may be 
reviewed by the Supreme Court as follows:

(1) By appeal, where is drawn in question the validity of 
a treaty or statute of the United States and the decision is 
against its validity.

(2) By appeal, where is drawn in question the validity 
of a statute of any state on the ground of its being repug­
nant to the Constitution, treaties or laws of the United 
States, and the decision is in favor of its validity.

(3) By writ of certiorari, where the validity of a treaty 
or statute of the United States is drawn in question or 
where the validity of a State statute is drawn in question 
on the ground of its being* repugnant to the Constitution, 
treaties or laws of the United States, or where any title, 
right, privilege or immunity is specially set up or claimed 
under the Constitution, treaties or statutes of, or commis­
sion held or authority exercised under, the United States. 
June 25, 1948, c. 646, 62 Stat. 929.

42 U.S.C. §1983
§1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, 
regulation, custom, or usage, of any State or Territory, 
subjects, or causes to be subjected, any citizen of the 
United States or other person within the jurisdiction 
thereof to the deprivation of any rights, privileges, or 
immunities secured by the Constitution and laws, shall 
be liable to the party injured in an action at law, suit in 
equity, or other proper proceedings for redress. R.S. 
§1979.



6a

42 U .S .C . §1985

§1985. Conspiracy to interfere with civil rights—Pre­
venting officer from performing duties

(1) If two or more persons in any State or Territory 
conspire to prevent, by force,, intimidation, or threat, any 
person from accepting or bolding any office, trust, or place 
of confidence under the United States, or from discharging 
any duties thereof; or to induce by like means any officer 
of the United States to leave any State, district, or place, 
where his duties an an officer are required to be performed, 
or to injure him in his person or property on account of 
his lawful discharge of the duties of his office, or while 
engaged in the lawful discharge thereof, or to injure his 
property so as to molest, interrupt, hinder, or impede 
him in the discharge of his official duties;

(2) If two or more persons in any State or Territory 
conspire to deter, by force, intimidation, or threat, any 
party or witness in any court of the United States from 
attending such court, or from testifying to any matter 
pending therein, freely, fully, and truthfully, or to in­
jure such party or witness in his person or property on 
account of his having so attended or testified, or to in­
fluence the verdict, presentment, or indictment of any grand 
or petit juror in any such court, or to injure such 
juror in his person or property on account of any ver­
dict, presentment, or indictment lawfully assented to by 
him, or of his being or having been such juror; or if 
two or more persons conspire for the purpose of impeding, 
hindering, obstructing, or defeating, in any manner, the 
due course of justice in any State or Territory, with in­
tent to deny to any citizen the equal protection of the laws, 
or to injure him or his property for lawfully enforcing, or 
attempting to enforce, the right of any person, or class 
of persons, to the equal protection of the law;



7a

(3) If two or more persons in any State or Territory 
conspire or go in disguise on the highway or on the prem­
ises of another, for the purpose of depriving, either di­
rectly or indirectly, any person or class of persons of the 
equal protection of the laws, or of equal privileges and 
immunities under the laws; or for the purpose of prevent­
ing or hindering the constituted authorities of any State 
or Territory from giving or securing to all persons within 
such State or Territory the equal protection of the law; 
or if two or more persons conspire to prevent by force, 
intimidation, or threat, any citizen who is lawfully entitled 
to vote, from giving his support or advocacy in a legal 
manner, toward or in favor of the election of any lawfully 
qualified person as an elector for President or Vice Presi­
dent, or as a Member of Congress of the United States; 
or to injure any citizen in person or property on account 
of such support or advocacy; in any case of conspiracy 
set forth in this section, if one or more persons engaged 
therein do, or cause to be done, any act in furtherance of 
the object of such conspiracy, whereby another is injured 
in his person or property, or deprived of having and 
exercising any right or privilege of a citizen of the United 
States, the party so injured or deprived may have an 
action for the recovery of damages, occasioned by such 
injury or deprivation, against any one or more of the 
conspirators. E.S. §1980.



8a

APPENDIX C

Letter from Petitioner to the Police Commissioner

605 S. Heald Street 
Wilmington, Delaware 
December 5, 1965

Joseph A. Errigo 
Commissioner of Police 
Department of Public Safety 
Public Building 
Wilmington, Delaware

Dear Mr. Errigo:
As per your instructions I am submitting this letter to 

you as an official complaint of abuse by Police.
On Thursday night, December 2, 1965, between 11:30 and 

midnight, I was a victim of unprovocative abuse by uni­
formed city policeman. At 8 :00 P.M., Thursday, December 
2, 1965 I was excused from work at General Motors to at­
tend the funeral of Andrew Smith at Mother A.U.M.P. 
Church, 819 French Street, to perform the last rites over 
him in my capacity as High Priest of Royal Arch Masons 
of Delaware. It was agreed that I would return to work 
to finish the shift.

Shortly after 11:30 P. M., on the date mentioned above, I 
was travelling alone in my automobile west on Delaware 
Avenue. I was attired in a tuxedo because I could change 
to my work clothes later. As I travelled in a westerly di­
rection there was one automobile in front of me and one 
directly behind. Upon approaching Adams Street I indi­
cated a left turn with my directional signals. After I made 
the bend to the right I indicated a left turn approaching



9a

Jackson Street. The car directly behind me started blow­
ing Ms born and pulled over to the left across the double 
lines and drove up as far as my left rear door. Not know­
ing what his intentions were I was forced to continue turn­
ing right to avoid an accident. As I continued on Delaware 
Avenue and then to Pennsylvania Avenue, the automobile 
mentioned before was still in front of me in the left lane. 
The automobile behind me continued to blow the horn and 
weave across the double lines and then back behind me.

After I passed Harrison Street, I indicated a left turn 
at the next intersection which would have been Franklin 
Street. The automobile in front of me in the left lane 
stopped and I applied my brakes to stop. The automobile 
behind me again crossed the double lines and stopped and 
about the same time another automobile approaching on 
the right stopped directly beside me. Emerging from the 
automobile in front of me was a uniform policeman and as 
he came in my direction he was inquiring as to what was 
the matter. A uniformed policeman emerged from the car 
on the right and snatched open the front door and almost 
simultaneously another uniform policeman whom I recog­
nized to be Sgt. Filliben emerged from the car that had 
been behind me and was now stopped on my left snatched 
open the left front door and in extremely harsh demanding 
tones said “Ben get out of the car”. I said, “what hap­
pened!” Sgt. Filliben then said “Ben get the hell out of the 
car, dammit”. I asked him again what I had done. He then 
said “Are you going to get out Ben, or do I have to take 
you out!” The officer on the right, whom I did not recog­
nize told me I had better get out and went around the back 
of my automobile and as I stood up Sgt. Filliben yoked me 
around the neck twisting it while the officer that went 
around the back of my automobile put my hands' behind 
my back and snapped hand cuffs on my wrist causing un­



10a

bearable pain. I was then thrown to the ground. I tried 
to get up several times but each time I was knocked back 
down. Sgt. Filliben then told one of the officers to hold me 
down and he immediately complied by dropping down upon 
me with his knee. I tried vainly to get up. I asked the of­
ficer repeatedly to let me up and loosen the hand cuffs. 
I  told him that the hand cuffs were hurting me. He said 
“Shut up”. I asked him why couldn’t I get up. He said, 
“because I don’t want you to.”

During this time Sgt. Filliben walked to the south side 
of Pennsylvania Avenue and said something to a man that 
was standing there. The man then disappeared. Traffic 
continued to move but to my knowledge no one stopped.

When Sgt. Filliben returned he said that the wagon was 
coming. I was then picked up from the ground and the 
Sgt. said, “Put him in the wagon”. I said, “Wait a minute 
please and will someone please tell me what I have done!” 
The Sgt. said, “Put him in the wagon”. I asked “Why do 
I have to go in the Patrol Wagon!” Sgt. Filliben at this 
instant grabbed me and slammed me back down on the 
ground and said, “Let him stay there until he decides to 
get up”. After a few minutes he asked if I was ready to 
get up, I asked him to please get me up and loosen the 
hand cuffs. I was picked up and put into the patrol wagon. 
I asked the officer in the back with me to loosen the hand 
cuffs or take them off because the pain was getting worse. 
He informed me that he did not have a key to fit them. The 
driver of the patrol wagon then proceeded to answer a call 
in the vicinity of 6th and Wallaston Streets. There they 
picked up a woman. After this the driver went past the 
police station and over 11th Street Bridge to pick up a man. 
All during the ride I was begging and pleading for relief 
of the pain on my wrist.



11a

After I was taken into the station the officer who had told 
me that he didn’t have a key to fit the hand cuffs on my 
wrists, selected one from a hunch of keys in his possession 
and caused me to bend over with my head almost between 
my knees. He then unlocked the hand cuffs. My wrists 
were terribly bruised, particularly the left one.

After a few sighs of relief I asked the officer, commonly 
known as the turn key what my bail was. He said, “I don’t 
know Ben, I haven’t received any charge”. Sgt. Filliben 
then came down the steps and said, “You’ve got plenty of 
them. Speeding, Disorderly Conduct, Resisting Arrest, and 
Assault and Battery on a Police Officer.” In amusement 1 
asked, “When did all this happen?” The Sgt. then replied, 
“That’s what you are charged with”. He then asked me if 
I wanted to have the case continued? I told him that I 
didn’t know, but I would like to know what my bail was. 
He said that it would probably be around $1000.00 and 
again inquired if I wanted to continue the case. I told 
him that I didn’t know and all I wanted at the time was 
to get out of there. I asked if I could sign my own “O.R.” 
and was refused instantly. I was told I would have to get 
someone to bail me out or stay there. I asked if I could use 
the telephone and the turn key told me “yes”. Sgt. Filliben 
wanted to know who I was going to call, I told him “Junius”. 
He said “who!” “Reynolds! Do you think he will come 
and get you?” I told him that I thought that he would. He 
again inquired as to whether I wanted the case continued. 
Again I told him that I didn’t know. I called Reynolds and 
made the arrangements to be released. I then asked the 
turn key if I could call General Motors to tell them that 
I had been detained at Police Headquarters. He gave me 
permission to do so. I started to make a third call to bor­
row money to get my automobile that was left at the scene 
with the motor running and lights on because the Sgt. told



12a

me that it would be impounded but was told to hang up. 
Sgt. Filliben then asked me again if I was going to have 
the case continued? I said to him “I really don’t know”. 
I have often read and heard of police brutality but had no 
idea that I would ever experience it.” Sgt, Filliben then 
said, “you’re lucky. Ten years ago I would have black 
jacked you”. I said, “What did you say?” I would have 
black jacked you ten years ago, you’re lucky boy.” I said, 
“With hand cuffs on?” He said, “That’s right boy you’re 
lucky.” He then demanded that I tell him whether or not 
I was going to have the case continued. I asked him what 
was the urgency and if he was on day work. He told me he 
was on 4 to 12. He then said, “I ’ll tell you what you’re going 
to do”. You’re going to have this case tomorrow morning 
and if it is continued I will turn in my stripes. He then 
went up stairs.

Reynolds came and I was released. I asked Sgt. Sullivan 
for a permit to release my car and he gave it to me. The 
next morning while sitting on a bench in the hall of the 
Public Building reading a newspaper at about 8 :40 A. M., 
Sgt. Filliben approached me and said, “Ben are you going 
to have this case continued?” I said nothing. He repeated 
the question and I did not answer him. He then said, “all 
right boy, I just gave you your last chance” as though to 
threaten me.

I have always had an excellent relationship with the 
members of the police department. Many of them know me 
as a former city official in the capacity of City Auditor. 
Prior to that office many of them had escorted me to the 
banks in the city protecting tax money when I was the 
Deputy Tax Collector.

I am at a complete loss beyond comprehension as to 
why I was administered such abuse by men who are sup­
pose to be protectors of the citizens of Wilmington.



13a

My cries for “Help” would have been in vain because 
who would stop to question uniformed police. The officers 
were each riding in separate cars, none of which were po­
lice cars.

I  am appealing to you to investigate this incident thor­
oughly as to why it happened.

Respectfully yours,

/ s /  J o s e p h  B. J a c k s o n  J r.
Joseph B. Jackson Jr.



MEilEN  PRESS INC. —  N. Y C. «^g^ i»2 ?9