DocketNumber: No. 12-P-721
Citation Numbers: 83 Mass. App. Ct. 285
Judges: Kafker
Filed Date: 2/14/2013
Status: Precedential
Modified Date: 6/25/2022
The primary issue presented is whether defamatory statements made by police officers in their report of their investigation of an entertainment license violation are absolutely privileged. The officers were sued for defamation and intentional interference with advantageous relationships. The plaintiff, Anthony Dear, a State trooper, was accused of causing or contributing to licensing violations and other illegal activities related to his off-duty activities for an event production company. We conclude that the defendants’ statements are protected by a qualified privilege and not an absolute privilege, and that summary judgment was improperly allowed as there are material issues of disputed fact regarding whether the defendants published the statements knowing the defamatory matter to be false or with reckless disregard of the truth.
Background. On Dear’s appeal from the entry of summary judgment against him, we summarize the evidence in the light most favorable to him. Dragonas v. School Comm. of Melrose, 64 Mass. App. Ct. 429, 430 (2005). Dear is employed as a State trooper. In the late 1990s, Dear sought and received permission to perform outside work as a disc jockey (DJ) in nightclubs in and around Boston. In 2006, Dear worked with a production company known as Elite Productions (Elite); through Elite, Dear worked in various nightclubs.
The defendants, Sergeant John Devaney and Sergeant Detective Kevin McGill, are Boston police officers whose primary duties are to inspect Boston nightclubs for safety violations. Devaney is McGill’s supervisor. They act as agents of thé Boston licensing board (licensing board), which issues and regulates restaurant and alcohol licenses, and the mayor’s office of consumer affairs and licensing (MOCAL), which has jurisdiction over entertainment licenses.
On November 22, 2006, Dear attended a Thanksgiving eve party at an establishment called 33 Restaurant and Lounge (33). Although he had been scheduled to work as a DJ that evening, he did not; he was, however, present at 33. That evening the Boston fire department inspected 33 and issued an abatement order alleging that 33 was overcrowded. The abatement order did not mention Dear or Elite. On December 7, Devaney and McGill, who were not present at 33 on the evening of November
In addition, Devaney and McGill wrote Boston police department incident report no. 060669544 (report), which contains most of the statements that form the basis of the defamation action.
Finally, the report recommended: “It is my belief that the Licensing Board should direct all licensed premises in the city that they should not use ‘Elite Productions’ and Mr. Dear to promote events at nightclubs without proper notification and adherence to all rules and regulation of the Licensing Board.”
The November 22 violation of overcrowding was investigated
The summary judgment record includes the deposition testimony of Dear, Devaney, and McGill. Dear denied that he was the owner of Elite or that he was paid by Elite. Rather, he was one of Elite’s marketed DJs. Dear also denied that he had any financial arrangements with the licensed establishments beyond acting as a DJ. He stated that he was present in the cited premises as a DJ or patron but not as a promoter. He also denied that he violated any rules or regulations of the licensing board or MOCAL, or that he had any control over the number of people being admitted to the various establishments. He also denied ever representing that he was acting in an undercover capacity as alleged in the report.
Devaney stated in his deposition that events promoted by Elite were cited numerous times for violations. He stated that he had relied on Elite’s Web site, or Dear’s presence at a nightclub, to make the connection between an Elite promotional event and the premises cited for overcrowding and other violations. McGill also stated that Elite had banners in the establishment when it was promoting an event. Both Devaney and Mc
The nightclubs at which Dear and Elite worked that received citations terminated their relationships with Dear and Elite. Dear last worked as a DJ in 2007.
The motion judge dismissed Dear’s defamation and intentional interference with advantageous relationship claims on summary judgment.
“[Dear’s] claim that [Devaney and McGill] interfered with his employment with the Massachusetts State Police must fail because [Dear] has claimed no actual damages as a result of any alleged interference.
“As for [Dear’s] relations with various nightclubs, . . .*290 [Dear] cannot rely on the statements that form the basis of his defamation claim for which [Devaney and McGill] are entitled to summary judgment, and [Dear] does not allege with specificity any other statements made by [Devaney and McGill] that would support an inference that [they] knowingly induced the breaking of [Dear’s] relationship with any nightclub.”
Discussion. 1. Summary judgment standard. When summary judgment has been granted pursuant to Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002), we review de nova whether “there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012). As the evidence must be construed favorably to the nonmoving party, “all doubt as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment.” Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert. denied, 459 U.S. 970 (1982), quoting from Gross v. Southern Ry., 414 F.2d 292, 297 (5th Cir. 1969).
2. Absolute or qualified privilege on defamation claim. The first issue that we must decide is whether the statements made by Devaney and McGill in their report and license inspection notice are protected by an absolute or only a qualified privilege. “An absolute privilege provides a defendant with a complete defense to a defamation suit even if the defamatory statement is uttered maliciously or in bad faith.” Mulgrew v. Taunton, 410 Mass. 631, 634 (1991). In contrast, a qualified or conditional privilege immunizes a defendant from liability unless the defendant publishes the defamatory matter knowing it to be false, or with reckless disregard as to its truth or falsity. See ibid. “The rule in Massachusetts has long been that absolute privilege is limited to comparatively few cases.” Vigoda v. Barton, 348 Mass. 478, 484 (1965). See Ezekiel v. Jones Motor Co., 374 Mass. 382, 385 (1978) (absolute privilege “is limited to cases in which public policy or the administration of justice requires complete immunity”). If the absolute privilege does apply, Devaney and McGill are entitled to judgment as a matter of law, regardless of any showing of malice. See Visnick v. Caulfield, 73 Mass. App. Ct. 809, 812-813 (2009).
The privilege has also been further extended to statements “made in the context of a proposed judicial proceeding” but prior to the actual commencement of the judicial part of proceedings. Correllas, 410 Mass. at 321. See Sriberg v. Raymond, 370 Mass. 105, 109 (1976) (“Where a communication to a prospective defendant relates to a proceeding which is contemplated in good faith and which is under serious consideration, it is our view that the privilege should attach”); Fisher, supra at 366 (“The privilege extends to circumstances where the statements are made preliminary to a proposed or contemplated judicial proceeding”). That extension of the
An absolute privilege has also been extended to witness statements made to the police. See Correllas, supra at 320-321 (“statements made to police or prosecutors prior to trial are absolutely privileged if they are made in the context of a proposed judicial proceeding”). An absolute privilege has not, however, been extended to police officers’ own investigatory reports.
With these precedents and principles in mind, we conclude that the statements made here are not protected by an absolute privilege. They were made during the investigation, not the prosecution, of the license suspension proceedings. They were made by police officers, not lawyers or prosecutors. For the
Devaney and McGill contend that summary judgment was properly allowed even if they had only a qualified privilege. “Statements made by public officials while performing their official duties are conditionally privileged.” Mulgrew, 410 Mass, at 635.
3. Intentional interference with advantageous relations. “To make a successful claim for intentional interference with advantageous relations, a plaintiff must prove that (1) he had an advantageous relationship with a third party (e.g., a present or prospective contract or employment relationship); (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant’s interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant’s actions.” Blackstone v. Cashman, 448 Mass. 255, 260 (2007). See Weber v. Community Teamwork, Inc., 434 Mass. 761, 781-782 (2001). Although Dear sought recovery for interference with both his relationship with the State police and his employment in the Boston nightclub industry, on appeal he challenges only the allowance of summary judgment on his claim related to interference with his advantageous relations with the nightclub industry.
We conclude that summary judgment should not have been allowed on this claim. The first, second, and fourth prongs are clearly satisfied here, construing the evidence in favor of Dear. Dear submitted sufficient evidence to establish an ongoing
In dispute is whether Devaney and McGill knowingly or recklessly made false statements in their report and their conversations with nightclub owners regarding Dear’s activities. Those statements, for the reasons discussed above, are not protected by absolute immunity and therefore could form the basis of an intentional interference with advantageous relations claim. They may establish interference with advantageous relations by improper means. See Draghetti v. Chmielewski, 416 Mass. 808, 817 (1994) (“Even if [police chief] could have accomplished the same result by proper means, he may not use the improper means of misrepresentation”). There are also material issues of disputed fact regarding whether Devaney and McGill had an improper motive — personal animus against Dear — in preparing their report and pressuring nightclub owners to discontinue his services. See ibid. (improper motive established if police chief acted “based on retaliation or ill will toward [plaintiff], rather than the good of the police department”).
Conclusion. Summary judgment was improperly allowed on Dear’s claims of defamation and intentional interference with his advantageous relations with the nightclub industry, and those claims are remanded to the Superior Court for further proceedings.
So ordered.
The report was prepared by McGill at the direction of, and based on information received from, Devaney.
According to Dear, Devaney and McGill also made statements, not included
Dear also asserted claims for various other intentional and negligent torts, which were likewise dismissed on summary judgment. Dear raises no arguments pertaining to those other claims here.
The word “pertinent” is “not to be construed narrowly.” Aborn v. Lipson, 357 Mass. 71, 73 (1970). Devaney’s and McGill’s statements at the hearing are therefore protected by an absolute privilege.
Witnesses testify under oath and are subject to cross-examination at hearings before MOCAL. Licensees may also present evidence. Dear, however, was neither a licensee nor otherwise a party to the proceeding.
We need not, however, and do not, rule categorically on the privileged status of police investigatory reports in general. Our holding is more fact-specific. See infra. We further note that cases in other jurisdictions have mostly treated police reports under the rubric of a qualified privilege. See Annot., Immunity of Police or Other Law Enforcement Officer from Liability in Defamation Action, 100 A.L.R. 5th 341, 377-382 (2002).
Dear has not argued that a qualified privilege does not apply.
If he introduces admissible evidence of anti-Asian animus by Devaney and McGill, see note 3, supra, Dear could also proceed on a theory of racism as improper motive.