Monday, November 25, 2013

The Police Officer, Facebook and "Connecticut Romance"

This post examines an opinion the Superior Court ofConnecticut recently issued in a civil case:  Dzamko v. Dossantos, 2013 WL 5969531 (2013). To understand the issues the judge is addressing in this opinion, it is necessary to understand how the case arose.   

According to this opinion, this is why Joseph Dzamko sued Joseph C. Dossantos:

In 2012, the defendant, Joseph C. Dossantos, initiated sexually explicit conversations in an internet chat room, optimistically labeled `Connecticut Romance.’ Dossantos mistakenly believed that he was communicating with two fourteen-year-old girls. In fact, as courtwatchers will already surmise, the `fourteen-year-old girls’ were, in fact, police detectives.

Dossantos, who was forty years old, wanted his correspondents to believe that he was younger than he was. To bolster his claim, he sent three digital images of `himself’ to one of the `girls.’ Unhappily, the images were not images of Dossantos. They were, rather, images of the plaintiff, Joseph Dzamko (`Joseph’), appropriated by Dossantos from Joseph's Facebook page. 

The images of Joseph were not themselves compromising. They were perfectly normal photographs. But the context in which Dossantos used them plainly made it appear that the person thus depicted was engaged in sexually predatory behavior.

The detective receiving the transmissions recognized the person so depicted. It was Joseph. By malign fate, Joseph was a police officer in another town and had been a Police Academy classmate of the detective. The detective forwarded the images of Joseph to Internal Affairs.

Internal Affairs investigated, and Joseph had to tell his wife, Sarah Dzamko (`Sarah’) what had happened. The investigating officers eventually traced Joseph's Facebook images to Dossantos. Dossantos, confronted with the evidence, admitted that he had not only sent Joseph's images to the detective as images of himself but that he had done the same thing with at least twenty other females (or persons who he presumed to be females) on the internet.

Forensic review of Dossantos' computer revealed that these transmissions had occurred in the context of sexually explicit conversations. All of this caused Joseph and Sarah great distress.

Dzamko v. Dossantos, supra. 

The opinion also notes that on April 9, 2013,

Joseph and Sarah commenced this action against Dossantos by service of process. Their Revised Complaint consists of ten counts, but four of these counts (the Second, Sixth, Seventh, and Tenth Counts) have been withdrawn. Three additional counts (the First, Third, and Eighth Counts) are not the subject of the motion now before the court and can be ignored for present purposes.

That leaves three counts in contention: the Fourth Count (alleging publicity placing Joseph in a false light), the Fifth Count (alleging intentional infliction of emotional distress as to Joseph), and the Ninth Count (alleging intentional infliction of emotional distress as to Sarah).

Dzamko v. Dossantos, supra. 

For a summary of how someone initiates a civil suit in Connecticut, check out this site.  As it notes, someone who sues another person must file, among other things, a Complaint, with the court and then arrange to have the Complaint and a Summons served on the person(s) being served.  As Wikipedia explains, a Complaint must include a number of elements, one of which is statements of the causes of action the plaintiff is asserting against the defendant.  And as Wikipedia notes, that is usually contained in

a numbered list of legal allegations (called `counts’), with specific details about application of the governing law to the each count. In this section plaintiff usually cites existing Law, previous decisions of current court, decisions of the higher appellate courts, and cases from other courts, - as an analogy to resolve similar questions of law.

So, as the paragraph quoted earlier above notes, Dzamkos’ original Complaint included ten counts, but they withdrew four of those, leaving six counts.  Dzamko v. Dossantos, supra.  In this opinion, the judge is ruling on Dossantos’ Motion to Strike

the Fourth, Fifth, and Ninth Counts . . . [of the Complaint]. The Motion contends that these counts fail to state claims upon which relief can be granted.

Dzamko v. Dossantos, supra.  In other posts, I have explained what such a motion (made under Rule 12(b)(6) of the Federal Rules of Criminal Procedure) is intended to do.  Basically, it argues that the count or counts the motion targets do not state a cause of action that is viable under applicable law, so the count(s) must be dismissed as legally insufficient.  As I have noted, this is a way a defendant can get rid of all or part of a lawsuit without having to go to trial.

Here, the judge analyzed Dossantos’ arguments regarding  the three counts of the Dzamkos’ Complaint in numerical order, beginning with the Fourth Count, which asserted a cause of action for false light – publicity.  Dzamko v. Dossantos, supra.  If you are interested in learning more about that cause of action, check out this prior post.

The judge began his analysis of the false light - publicity cause of action by noting that

[t]he Fourth Count alleges that Dossantos publicized Joseph “in a way that placed him in a false light before the public and members of his profession.” Our Supreme Court adopted this form of the more general tort of invasion of privacy in Goodrich v. Waterbury Republican–American, Inc.,188 Conn. 107, 438 A.2d 1317 (Connecticut Supreme Court1982).

As Goodrich explains, `a false light invasion of privacy occurs if “(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”’ Goodrich v. Waterbury Republican–American, supra (quoting 3 Restatement (Second) of Torts § 652E (1977)). . . .

Dzamko v. Dossantos, supra. 

The judge then analyzed the extent to which the Dzamkos had adequately pled these two elements, noting that the first is that the

false light in which Joseph was placed would be highly offensive to a reasonable person. This element plainly appears from the Revised Complaint. The offensiveness is not in the four corners of the transmitted images. Joseph conceded at the hearing that the images are perfectly normal photographs that are not offensive when simply displayed on a Facebook page. 

The offensiveness lies in the context in which Dossantos transmitted the images. The context would make it appear to a reasonable person that Joseph was a sexual predator. That was exactly the inference drawn by the detective receiving the images.

In this regard, the case is analogous to Braun v. Flynt, 726 F.2d 245 (U.S. Court of Appeals for the 5th Circuit 1984). Braun was a performer in a Texas amusement park who did an act with `Ralph the Diving Pig.’ Larry Flynt, a well-known publisher of raunchy magazines, obtained her photograph and published it in Chic magazine in the company of photographs of ill-clad women.

This caused Braun great embarrassment, and she recovered substantial damages for false light publicity. On appeal, the 5th Circuit agreed that, `the publication of Mrs. Braun's picture in the “Chic Thrills” section of the magazine was fully capable of conveying a false impression of Ms. Braun.’  Braun v. Flynt, supra.

Dzamko v. Dossantos, supra.  The judge noted that the Braun court’s analysis

is applicable here. The transmitted images of Joseph are not themselves sexual in nature. But the context in which they were sent strongly implies that Joseph was not a `wholesome person.’ In this context, the transmission of these images would be highly offensive to a reasonable person.

Dzamko v. Dossantos, supra. 

The judge then addressed the second element of the cause of action, which is that

Dossantos had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which Joseph would be placed. The Revised Complaint sufficiently pleads that Dossantos deliberately pilfered Joseph's Facebook images and sent them to numerous females in a highly sexual and unsavory context.

Dossantos would plainly have known that the transmitted images were of someone other than himself and similarly would have been fully aware of the context in which the images were being transmitted. Under these circumstances, the second element is adequately pled.

Dzamko v. Dossantos, supra. 

He then took up the Fifth Count, which alleged a cause of action for intentional infliction of emotional distress upon Joseph Dzamko.  Dzamko v. Dossantos, supra.  The judge noted, first, that the elements

of this cause of action are `(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe.’ Perez–Dickson v. City of Bridgeport, 304 Conn. 483, 43 A.3d 69 (Connecticut Supreme Court 2012). . . .

Dzamko v. Dossantos, supra.  

The judge found that, with regard to the first element noted above,

the Revised Complaint sufficiently alleges facts from which it could reasonably be inferred that, at a minimum, Dossantos should have known that emotional distress would be the likely result of his conduct. It is very well known that images transmitted on the internet are not likely to remain private for very long.

All too often, they are retransmitted to the world. Think of the much-publicized issue of `sexting’ images sent by clueless teenagers. These images, once sent to a single, supposedly private source, end up being resent to hundreds, and soon thousands, of other people. Any reasonable person could foretell that eventually someone was going to recognize the person in the images transmitted by Dossantos and draw conclusions that would, in turn, cause that person to suffer emotional distress.

Dzamko v. Dossantos, supra.  

He noted, in passing, that

Dossantos denies that his conduct was extreme and outrageous, but he cannot do that with a straight face. The test is whether `the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim, Outrageous!’ Perez–Dickson v. City of Bridgeport, supra. This is such a case.

Dzamko v. Dossantos, supra.   Dossantos did not “dispute the remaining elements” of this cause of action.  Dzamko v. Dossantos, supra.  

Finally, the judge took up the Ninth Count of the Dzamkos’ Complaint, which alleged a cause of action for intentional infliction of emotional distress upon Sarah Dzamko.  Dzamko v. Dossantos, supra. He noted that this count

alleges intentional infliction of emotional distress as to Sarah. That count alleges that Dossantos' conduct `was carried out with the knowledge that it probably would cause . . . Sarah ... to suffer emotional distress.’

This is not, as Dossantos argues, an allegation of bystander emotional distress, such as that of a witness to an automobile accident. Dossantos' conduct implied that Joseph was a sexual predator. This would naturally reflect on Joseph's spouse and cause her great personal embarrassment and natural concern for her own personal health quite apart from the distress she may have experienced from observing Joseph's own travail.

Under these circumstances, the tort of intentional infliction of emotional distress with respect to Sarah has been adequately pleaded.

Dzamko v. Dossantos, supra.  

The judge therefore denied Dossantos’ motion to strike these counts, leaving them as viable elements in the case. Dzamko v. Dossantos, supra.  

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