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Dismissal of undercover officers' suit upheld

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NEWS MEDIA UPDATE   ·   TENTH CIRCUIT   ·   Privacy   ·   July 25, 2007

NEWS MEDIA UPDATE   ·   TENTH CIRCUIT   ·   Privacy   ·   July 25, 2007

Dismissal of undercover officers’ suit upheld

  • Two undercover police officers sued a New Mexico television station for invasion of privacy and intentional infliction of emotional distress after it revealed their identities.

July 25, 2007  ·   A federal appeals court in Denver (10th Cir.) has upheld the dismissal of a lawsuit against a television station that revealed the identities of two undercover police officers.

The lawsuit stems from a June 2004 story by Albuquerque’s KOB-TV in which the station divulged the identities of Albuquerque, N.M., officers Vicente Alvarado and Steve Flores.

The pair had been accused of sexual assault, and after issuing search warrants, a state judge sealed the documents. The officers’ names were eventually provided by a third party to the television station.

The officers were never charged and were eventually cleared.

The officers and their wives sued the station for invasion of privacy and intentional infliction of emotional distress after the station ran stories that included their names and video of the officers answering the door to their homes. After learning that the men were undercover officers, the station blurred the faces.

Alvarado and Flores said the station published private facts that had no newsworthiness, doing so “with negligence, gross negligence, or recklessness.” The station, the officers said, “intruded into their private seclusion, thereby giving unreasonable publicity to their private lives.”

In its July 13 ruling, the court said a claim for invasion of privacy by public disclosure of private facts requires two things to be sustained: a “disclosure which would be objectionable to a reasonable person” and “a lack of legitimate public interest in the information.”

The court said an individual’s home address and image are not private facts. The officers said they received threats after the broadcasts, creating publicity the court said would be “objectionable to a reasonable person.”

However, the court said “publicity of undercover police officers allegedly involved in a sexual assault … qualifies as a matter of public interest in First Amendment law, and we have no reason to perceive a significant difference in New Mexico tort law.”

The court said it is up to New Mexico to expand its tort liability to the disclosure of undercover officers’ names. The court, however, warned that doing so could implicate First Amendment concerns, saying “it is far from clear whether and how such a law might coexist with the freedom of the press.”

The court also said the officers’ claim of intrusion fails because there was no evidence the station used intrusive means to gather video footage of the men.

In claiming intentional infliction of emotional distress, Alvarado and Flores argued that the station acted outrageously by repeatedly broadcasting their names and status as undercover officers while knowing that doing so would create special risks to the officers.

However, the court said “accurate news reporting – even when it is likely to have an adverse impact on the subjects of the report – usually does not give rise to an action for intentional infliction of emotional distress.”

The appeals court said courts have generally held that publishing in such a situation “is not conduct ‘beyond all possible bounds of decency,’ ‘atrocious’, or ‘utterly intolerable,'” the elements required to sustain such a claim.

(Alvarado v. KOB-TV, Media Counsel: Geoffrey D. Rieder, Foster & Reider, P.C., Albuquerque, N.M.)SH

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