10th Circuit: Cops can’t pursue privacy claim over news report

Friday, July 20, 2007

A federal appeals court has upheld a lower court’s dismissal of a lawsuit filed by two undercover police officers against a New Mexico television station after it broadcast their names.

Vicente Alvarado and Steve Flores, undercover narcotics officers for the Albuquerque Police Department, sued KOB-TV after a 2004 broadcast identified the two as suspects in a sexual-assault case. Alvarado and Flores, along with their spouses, alleged invasion of privacy and intentional infliction of emotional distress by the initial television report. A federal judge dismissed the officers’ claims, and the officers appealed.

In the 10th U.S. Circuit Court of Appeals' July 13 decision Alvarado v. KOB-TV, L.L.C., Judge David Ebel wrote, “While we are sympathetic to the difficult and potentially dangerous situation undercover officers face after having their identities revealed to the public, we agree with the court below that the officers’ allegations do not support a tort claim for either invasion of privacy or emotional distress.”

Alvarado and Flores’ claim for invasion of privacy was based primarily on an allegation of public disclosure of a unique private fact — their status as undercover officers. For this claim to be valid, the three-judge panel ruled, there must be a lack of “legitimate public interest” in the information.

“To the extent First Amendment law informs our determination of whether Alvarado and Flores can allege facts showing that publicity of their identities and undercover status in the context of the alleged sexual assault was not a matter of public interest, we are among a number of courts that have found that police misconduct allegations specifically and officer qualifications generally are a matter of public interest in First Amendment analyses,” Ebel wrote for the unanimous panel.

Addressing the emotional-distress claim, the court further sided with the television station, stating in its opinion, “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.”

In June 2004, KOB-TV ran newscasts naming Alvarado and Flores as suspects in the sexual assault under investigation and aired video footage of Alvarado and Flores answering the doors to their homes. Upon being informed that the officers were undercover narcotics policemen, KOB-TV blurred the men's faces in subsequent broadcasts. The station did continue to use their names and identify them as undercover officers.

After the officers were cleared of charges, KOB-TV reported that DNA and alibi evidence had proven them innocent, and that the accuser recanted her allegations against them. Alvarado and Flores said the initial broadcast caused more damage than could be fixed by the follow-up reports, and the two claimed that their lives had been threatened since the release of their identities as undercover officers.

The court refused in this case to create an exception for undercover officers in regard to news reports, however.

“All police officers, not just those undercover, face a risk of violent retaliation simply by having their names associated with an arrest or investigation. It would be impossible for courts to quantify the amount of risk that a person faces in having his or her name in the news and to carve out an exception on that basis … such an exception could run afoul of the First Amendment,” the panel said.