The Police Department, the Blog and Defamation

This post examines an opinion the Supreme Court of New Hampshire recently issued in a civil case:  McCarthy v. Manchester Police Department, 2015 WL 5559880 (2015). As usual, the court begins the opinion by explaining how, and why, the lawsuit arose:

On April 8, 2011, William Socha was working on a construction site in Manchester. At around noon, Socha noticed a truck parked on the site and went to tell the driver to move the vehicle. As he approached, he saw that the man in the driver's seat had his pants down, exposing his genitalia. Socha also observed a young female in the truck's passenger seat. The passenger appeared to Socha to be about twelve years old and to have some kind of disability, possibly Down syndrome.

Socha called the police, but, by the time [a Manchester Police Department] officer arrived, the vehicle had left. Socha gave the officer a description of the truck, its license plate number, and a physical description of the driver. He described the driver as a white male in his forties with a `bigger’ build and a balding hairline, and said he was wearing a white `Sherwin Williams’ sweatshirt. The police determined that the truck was registered to [McCarthy], who resided in Allenstown. A short time later, a detective from the Allenstown Police Department observed [McCarthy] arrive at his residence in a truck matching the description and license plate number Socha had provided.

The detective also observed that [McCarthy] was wearing a white `Sherwin Williams’ sweatshirt. [McCarthy] told the detective he had been in Manchester around 12:30 p.m. that day to pick up a friend and her daughter. The MPD filed a complaint charging [McCarthy] with indecent exposure and lewdness, and arrested him pursuant to a warrant.

By April 11, the MPD had not identified the female passenger whom Socha had described. In an effort to identify her, Sgt. Rousseau posted an entry on the MPD blog, describing the incident and stating, in relevant part, that `[d]etectives of the MPD Juvenile Division now say McCarthy, 41, was in fact the man who was exposing himself in the vehicle. McCarthy was subsequently arrested [and] charged with one count of indecent exposure.’ The entry then asked for information concerning the identity of the female passenger.

No passenger was ever identified. On the day of the plaintiff's criminal trial, Socha failed to come to court, and the State entered a nolle prosequi.

McCarthy v. Manchester Police Department, supra.  You can, if you are interested, find a news story about the investigation here.

McCarthy – the plaintiff -- then filed this civil lawsuit

against the defendants, alleging that Rousseau's post on the MPD blog stating that the plaintiff was `in fact’ guilty of the crime was defamatory. The defendants moved to dismiss, arguing that they were immune from suits that were not authorized by [New Hampshire Revised Statutes] chapter 507–B. See [NewHampshire Revised Statutes]  507–B:5 (`No governmental unit shall be held liable in any action to recover for bodily injury, personal injury or property damage except as provided by this chapter or as is provided or may be provided by other statute’).

The trial court construed the defendants' position to be that they were immune because the plaintiff's defamation claim constituted an intentional tort, which they argued was barred under [New Hampshire Revised Statutes] 507–B:5. The plaintiff objected to the motion. Initially, the trial court appeared to be of the view that [NewHampshire Revised Statutes] 507–B:2, an exception to municipal immunity, authorized suits against municipalities for claims based upon negligent (or perhaps reckless) conduct, but not intentional conduct. [New Hampshire Revised Statutes] RSA 507–B:2.

The court therefore considered whether defamation constituted an intentional tort under the statute. Finding no New Hampshire authority on point, the court relied upon a Massachusetts appellate court decision which held that, under that state's municipal immunity statute, all forms of defamation fall within the statute's definition of an intentional tort for which municipalities are immune from suit. See Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 976 N.E.2d 830 (Massachusetts Court of Appeals 2012).

McCarthy v. Manchester Police Department, supra. 

After the prosecutor dismissed the criminal prosecution, McCarthy

subsequently brought this action against the defendants, alleging that Rousseau's post on the MPD blog stating that [he] was `in fact’ guilty of the crime was defamatory. The defendants moved to dismiss, arguing that they were immune from suits that were not authorized by [New Hampshire Revised Statutes] 507–B. See § 507–B:5 (`No governmental unit shall be held liable in any action to recover for bodily injury, personal injury or property damage except as provided by this chapter or as is provided or may be provided by other statute’). The trial court construed the defendants' position to be that they were immune because the plaintiff's defamation claim constituted an intentional tort, which they argued was barred under § 507–B:5. The plaintiff objected to the motion. Initially, the trial court appeared to be of the view that § 507–B:2, an exception to municipal immunity, authorized suits against municipalities for claims based upon negligent (or perhaps reckless) conduct, but not intentional conduct. See § 507–B:2.

The court therefore considered whether defamation constituted an intentional tort under the statute. Finding no New Hampshire authority on point, the court relied upon a Massachusetts appellate court decision which held that, under that state's municipal immunity statute, all forms of defamation fall within the statute's definition of an intentional tort for which municipalities are immune from suit. See Barrows v. Wareham Fire Dist., 82 Mass.App.Ct. 623, 976 N.E.2d 830 (2012).

McCarthy v. Manchester Police Department, supra. 

The Supreme Court went on to explain that

[f]ollowing Barrows, the trial court ruled that the plaintiff's claim constituted an intentional tort for purposes of § 507–B. It then concluded that, in order to avoid constitutional infirmity, the municipal immunity statute had to be construed consistently with the sovereign immunity statute, § 541–B:19, with respect to liability for intentional torts. See Huckins v. McSweeney, 166 N.H. 176, 90 A.3d 1236 (New Hampshire Supreme Court 2014); see also § 541–B:19, I(d) (providing that the state and state employees are immune from suit for `[a]ny claim arising out of an intentional tort, including . . . libel [and] slander . . . provided that the employee . . . reasonably believes . . . that his conduct was lawful, and provided further that the acts complained of were within the scope of official duties of the employee’). Consistent with § 541-B:19, I(d), the court found the defendants would be entitled to immunity unless Sgt. Rousseau acted beyond the scope of his official duties or did not reasonably believe that his conduct was lawful, and the court ruled it would conduct a pretrial evidentiary hearing in order to make these determinations.

McCarthy v. Manchester Police Department, supra. 

The opinion goes on to explain that in response to McCarthy’s motion asking the trial court to reconsider its original order, the court clarified that order:

The court recognized that a claim for defamation falls within the definition of `personal injury’ under § 507–B:1,III(a) and that, unlike §541–B:19, I(d), § 507–B:1, III(a) does not classify the types of claims that constitute `personal injury] as intentional torts. See § 507B:1, III(a) (defining `[p]ersonal injury’ as `[a]ny injury to the feelings or reputation of a natural person, including but not limited to . . . libel, slander, or the publication or utterance of other defamatory or disparaging material’). The court explained, however, that whether the plaintiff's claim was for intentional defamation or for negligent defamation, the claim was excepted from municipal immunity under § 507–B:5 only if it arose `out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises.’ § 507–B:2.

Because the plaintiff's defamation claim did not relate to motor vehicles or premises, the court next addressed [McCarthy’s] assertion that application of the municipal immunity statute so as to bar his claim would violate his right to equal protection of the law under Part I, Article 14 of the State Constitution. See N.H. CONST. pt. I, art. 14. Because the plaintiff's equal protection argument was based on the premise that he would have had a viable cause of action if the defamatory conduct at issue had been committed by a state actor rather than a municipal actor, the court again considered the circumstances under which the sovereign immunity statute, [New Hampshire Statutes] chapter 541–B, would bar the plaintiff's claim. After doing so, the court reaffirmed its original order that the plaintiff's claim would be barred by §541–B:19, I(d) unless Rousseau (1) was acting beyond the scope of his official duties, or (2) did not reasonably believe that he was acting lawfully when he made the blog post. Noting that the plaintiff did not contest that Rousseau had acted within the scope of his duties, the court scheduled an evidentiary hearing to resolve the second issue.

McCarthy v. Manchester Police Department, supra. 

The court held the hearing, at which Sergeant Rousseau testified.  McCarthy v. Manchester Police Department, supra.  After the hearing, the court ruled that

`[i]n light of the facts known to Sergeant Rousseau at the time he made the blog post, the circumstances under which the post was made, and the content of the entire post, the sergeant reasonably believed that he was acting lawfully when he posted the blog entry and stated [the plaintiff] “was in fact the man who was exposing himself in the vehicle.” Therefore, sovereign immunity, like municipal immunity, would bar plaintiff's defamation claim. In the absence of disparate treatment between the immunity statutes, application of the municipal immunity statute in this case does not violate equal protection, and thus is appropriate.’

McCarthy v. Manchester Police Department, supra. 

McCarthy appealed, raising two issues:

First, the plaintiff argues that the trial court erred in ruling that defamation is always an intentional tort for purposes of the municipal immunity statute, [New Hampshire Statutes] chapter 507–B, and that the trial court's reliance upon Barrows is misplaced. Second, the plaintiff contends that, assuming the trial court erred in classifying defamation as an intentional tort, the municipal immunity statute is unconstitutional insofar as it bars this action.

The plaintiff asserts that, because § 541–B:19, I(b) implicitly waives sovereign immunity for negligence actions against the state, his negligent defamation action would succeed against a state actor. If true, the dissimilarity between the two statutory schemes results in the law treating individuals injured by municipal employee negligence differently from those injured by state employee negligence. This disparity, he contends, renders the municipal immunity statute violative of his equal protection rights under Part I, Article 14 of the New Hampshire Constitution.

McCarthy v. Manchester Police Department, supra. 

The Supreme Court began its analysis of McCarthy’s arguments by explaining that

[New Hampshire] § 507–B:5 provides that `[n]o governmental unit shall be held liable in any action to recover for bodily injury, personal injury or property damage except as provided by this chapter or as is provided or may be provided by other statute.’ One exception to § 507–B:5 is set forth in § 507–B:2, which states, in relevant part, that `[a] governmental unit may be held liable for damages in an action to recover for bodily injury, personal injury or property damage caused by its fault or by fault attributable to it, arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises.’ `Personal injury’ is defined, in relevant part, as `[a]ny injury to the feelings or reputation of a natural person, including but not limited to . . .  libel, slander, or the publication or utterance of other defamatory or disparaging material.’ § 507–B:1, III(a).

We do not read the provisions of § 507–B:5 in isolation. Although the combined import of §§ 507–B:2 and :5bars all tort actions against municipalities that do not have `a nexus between the claim and the [municipality's] ownership, occupation, maintenance, or operation of a motor vehicle or premises,’ Dichiara v. Sanborn Reg'l Sch. Dist., 165 N.H. 694, 82 A.3d 225 (New Hampshire Supreme Court 2013), in Huckins we held that `it is unconstitutional for the State to immunize itself or its municipalities from liability for intentional torts committed by government employees when those torts are not grounded on a reasonable belief in the lawfulness of the disputed act.’ Huckins, supra (emphasis omitted). Consequently, for [New Hampshire Statutes] chapter 507–B to be constitutionally valid, it must be construed to permit intentional tort claims against municipal actors who do not have a reasonable belief in the lawfulness of their conduct, regardless of whether the claims have a nexus to motor vehicles or premises.

McCarthy v. Manchester Police Department, supra. 

The Court then applied the above analysis to his arguments, noting that the

short answer to [McCarthy’s] first claim of error is that he is wrong in arguing that the trial court ruled that all defamation claims constitute intentional tort claims under the municipal immunity statute. Although the court's initial order on the motion to dismiss did contain some language to this effect, its ruling reconsidering that order recognized that the limitation on tort actions found in §507–B:2 depends upon the nexus between the claim and motor vehicles or premises.  Thus, even if the plaintiff is correct in asserting that a claim for negligent defamation is cognizable under § 507–B:2, the claim at issue here does not meet the terms of that statute because it has no nexus with the defendants' ownership, occupation, maintenance, or operation of motor vehicles or premises. Accordingly, because there is no statutory authorization for the plaintiff's claim, it is barred by §507–B:5.

This brings us to the plaintiff's constitutional challenge to the trial court's ruling. Although the plaintiff's brief is not entirely clear on the point, his argument appears to be that, because the sovereign immunity statute does not contain the exception for liability arising out of ownership, occupation, maintenance or operation of motor vehicles or premises found in the municipal immunity statute, compare § 541–B:19, I(b) with § 507–B:2, his claim for negligent defamation would be cognizable pursuant to § 541–B:19, I(b) if brought against a state actor, thus demonstrating the type of disparate treatment of similarly situated persons that is prohibited by the State Constitution.

The efficacy of this argument hinges upon the plaintiff's contention that § 541–B:19, I(d) bars defamation claims against state actors only in the case of intentional defamation. If, instead, § 541–B:19, I(d) also bars claims for negligent and reckless defamation against state actors, as the trial court decided, then the plaintiff's claim would fail even if the defendants here had been state actors, and the plaintiff, therefore, would not have been denied equal treatment.

McCarthy v. Manchester Police Department, supra. 

The Supreme Court therefore found that the trial court judge

correctly determined that § 541–B:19, I(d) grants sovereign immunity against all claims for defamation arising out of the conduct of state actors, provided that they were acting within the scope of their official duties and with a reasonable belief that their conduct was lawful.

[Section] 541–B:19, I(d) provides, in part, that the state does not waive its sovereign immunity for

`[a]ny claim arising out of an intentional tort, including ... libel [and] slander ... provided that the employee whose conduct gives rise to the claim reasonably believes, at the time of the acts or omissions complained of, that his conduct was lawful, and provided further that the acts complained of were within the scope of official duties of the employee for the state.’

McCarthy v. Manchester Police Department, supra. 

The court went on to explain that defamation

`is made up of the twin torts of libel and slander—the one being, in general, written while the other in general is oral. . . .’ W. Keeton, Prosser and Keeton on Torts § 111, at 771 (5th ed. 1984); see also 50 Am. Jur. 2d Libel and Slander § 1 (2006) (`The tort of defamation includes libel and slander’). Liability for defamation has two distinct intent elements. See Duchesnaye v. Munro Enterprises, Inc., 125 N.H. 244, 480 A.2d 123 (New Hampshire Supreme Court 1984).

First, a defendant can act either intentionally or negligently in communicating defamatory material. Duchesnaye v. Munro Enterprises, Inc., supra; see also Restatement (Second) of Torts § 577, at 201 (1977). Second, when concerning a private person, a defendant can either `(a) know[ ] that the statement is false and that it defames the other, (b) act[ ] in reckless disregard of these matters, or (c) act[ ] negligently in failing to ascertain’ the truth. Restatement (Second) of Torts, supra § 580B, at 221–22.

McCarthy v. Manchester Police Department, supra. 

The Supreme Court went on to explain that,

[n]evertheless, regardless of whether a defendant intentionally publishes material that is negligently fact-checked or negligently publishes material that intentionally defames, the cause of action is the same: defamation. We have found no controlling precedent, and the plaintiff points to none, that establishes intentional defamation and negligent defamation as two distinct causes of action. 

In contrast, in the case of some other torts, the law recognizes separate causes of action for intentional conduct, on the one hand, and negligent conduct, on the other. See, e.g., e.g., Morancy v. Morancy, 134 N.H. 493, 593 A.2d 1158 (New Hampshire Supreme Court 1991) (`Having previously recognized the tort of negligent infliction of emotional distress, there is no logical reason why we should not now recognize the tort of intentional infliction of emotional distress’); Patch v. Arsenault, 139 N.H. 313, 653 A.2d 1079 (New Hampshire Supreme Court 1995) (outlining the separate standards for intentional misrepresentation and negligent misrepresentation).

When the legislature placed libel and slander within the list of torts in § 541–B:19, I(d) for which sovereign immunity is not waived, and did not specifically define them in another way, we assume it gave the words their plain and ordinary meaning. See Appeal of the Local Government Center, 165 N.H. 790, 804, 85 A.3d 388 (New Hampshire Supreme Court 2014).

We conclude that, because libel and slander are not recognized as involving separate causes of action based upon the actor's mental state, the legislature intended to place those two torts, without regard to the intent with which they are committed, within the classification of `intentional torts’ listed in § 541B:19, I(d), as to which the state retains its sovereign immunity. Thus, the plaintiff's defamation action would have been barred even if the defendants had been state actors.

Because both the municipal and sovereign immunity statutes bar the plaintiff's action, there is no disparate treatment under the law and thus no constitutional violation.

McCarthy v. Manchester Police Department, supra.