White v. Fraternal Order of Police

• Decision Date: 19 September 1990
• Docket Number: No. 89-7079,89-7079
• Citation: 285 U.S.App.D.C. 273,909 F.2d 512
• Parties: , 17 Media L. Rep. 2137 Robert C. WHITE, Appellant, v. FRATERNAL ORDER OF POLICE, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 512

909 F.2d 512

285 U.S.App.D.C. 273, 17 Media L. Rep. 2137

Robert C. WHITE, Appellant, v. FRATERNAL ORDER OF POLICE, et al., Appellees.

No. 89-7079.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 23, 1990.

Decided July 13, 1990.

Rehearing and Rehearing En Banc

Denied Sept. 19, 1990.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 88-0679).

Peter E. Derry, with whom John J. Pyne, Chevy Chase, Md., was on the brief, for appellant.

Cameron Cohick, with whom Dennis A. Davison, Washington, D.C., was on the brief, for appellee, Fraternal Order of Police.

Kevin T. Baine, with whom David C. Kiernan and Betsy K. Wanger, Washington, D.C., were on the brief, for appellees, The Washington Post and Nat. Broadcasting Co., Inc.

Before WALD, Chief Judge, MIKVA, and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Robert C. White appeals a grant of summary judgment in favor of the defendants. 707 F.Supp. 579. White, a Captain in the Washington, D.C. Metropolitan Police Department ("MPD") sued the appellees, the Fraternal Order of Police ("FOP"), The Washington Post Company ("the Post"), and National Broadcasting Company, Inc. ("NBC") for invasion of privacy and defamation. Each appellee published statements about a controversy generated when White underwent a routine drug test required for his promotion from Lieutenant to Captain. Among other items, the appellees published the true facts that White's first urine sample initially tested positive for marijuana and that a second urine sample, which was taken and transported under irregular circumstances, tested negative.

Because we find that the publications at issue involved a legitimate matter of public concern--the fitness for office of a public official and possible improprieties in police drug testing--we hold that White's claims of injury from publication of "private facts" must fail.

We also uphold the district court's determination that no defamation or "false light" claims could succeed against the media defendants--the Post and NBC--because their publications were not capable of bearing a defamatory meaning or placing White in a false light. Alternatively, we hold that the Post was protected by a privilege to publish fair and accurate reports on governmental proceedings. NBC, however, does not enjoy the benefit of this alternative holding because it broadcasted a report reflecting the gist of the charges investigated in the governmental proceeding without ever attributing any of the stated facts to the proceeding. We decline to decide whether media defendants enjoy a First Amendment privilege of neutral reportage because it is not essential to reach this issue in order to resolve the claims against the Post and NBC. We affirm the grant of summary judgment to the media defendants on all counts.

We reverse, however, the award of summary judgment for the FOP on the defamation and "false light" invasion of privacy claims. The FOP sent letters to the U.S. Attorney and the Mayor of the District of Columbia, reporting apparent procedural irregularities in the MPD drug testing program that warranted an investigation; the MPD subsequently conducted such an investigation. The letters, however, contained material capable of defamatory meaning, namely, that White was a candidate for a high position in the MPD who had used an illegal drug and had engaged in bribery to ensure his promotion. Therefore, a jury is responsible for determining whether the letters actually conveyed a defamatory meaning and whether White can establish the other elements of defamation and "false light" invasion of privacy. We hold that the FOP enjoys only a qualified privilege, inter alia, to report the alleged misconduct of a police officer to his superiors, Mosrie v. Trussell, 467 A.2d 475 (D.C.1983), and that the jury must determine whether the FOP overreached this privilege because malice fueled its actions.

I. BACKGROUND

In April 1985, then-Lieutenant White was nominated for promotion to Captain in the MPD and required to pass a physical exam, including a urine test for drugs. White submitted a urine sample to the Police and Fire Department Clinic. There, the sample was subjected to an Enzyme Multiple Immunoassay Test ("EMIT test"), which showed a positive result for marijuana. The standard operating procedure when an EMIT test showed a positive result was to forward the urine sample to the CompuChem laboratory in North Carolina for confirmation of the initial result. Instead, White was notified of the positive result and brought back to the Clinic to submit a second sample.

The next day, White's original and second urine samples were hand-carried by a member of the MPD to the CompuChem lab in North Carolina. Such hand-delivery by a member of the MPD was also a departure from normal procedures as was the testing of the second sample by CompuChem without first subjecting it to an EMIT test at the Clinic. The CompuChem lab found both samples to be drug-free. White was promoted to Captain, and later became head of the Department's narcotics squad.

In 1987, some two years after White's EMIT test, two employees of the Police and Fire Department Clinic, Mrs. Marguerite Anastasi and Officer Vernon Richardson, contacted the FOP, informing it of the results of White's tests and the irregularities in the conduct of the tests. As a result, the FOP's attorney reported the allegations to the U.S. Attorney, Joseph DiGenova, by letter dated July 15, 1987. The Chairman of the FOP sent a second letter, dated July 28, 1987, reporting the allegations to Mayor Marion Barry. The two letters, which were virtually identical, concluded with attestations of truth signed by Anastasi and Richardson.

After describing the irregular procedures employed for White's drug tests, the letters stated that Lieutenant Noyes, the Administrative Lieutenant at the Clinic, said to Richardson: "I am giving you a direct order not to tell anyone about what went on." The letters also reported that Lieutenant Noyes accompanied White to the men's room when he gave his second urine sample, that the urine samples were removed from the clinic and returned later the same day by an officer who normally would not handle urine samples, and that the top lock on the laboratory door was then left unsecured overnight before the samples were sent to CompuChem.

The letters stated that the EMIT test on the first urine sample indicated a high level of cannabinoids that "should easily have been confirmed" by the CompuChem lab, and that it was "highly unusual" for such a result not to be confirmed. The letters concluded:

Officer Richardson and Mrs. Anastasi are convinced that there is a systematic effort to subvert the integrity of the drug testing procedures at the Police and Fire Clinic and to manipulate the procedures so that desired results can be obtained.

After citing the "known involvement of [high ranking police] officials in the May 1985 incident involving Captain White," the letters continued:

[I]t appears that drug testing procedures have been subverted to protect one and possibly more MPD officials from the results of positive urinalysis tests.... If the system has been corrupted, the ramifications are wide-spread. If records have been falsified, false statements made, or testing procedures subverted for gain (such as promotion), it is likely that criminal as well as ethical violations have been committed. [Footnote]

The footnote following this passage stated:

Possible statutory violations include 18 U.S.C. Section 201 (bribery); D.C.Code Sections 22-712 (bribery); 22-723 (tampering with physical evidence); and 1-619.1 (standards of conduct).

In response to the FOP letter, Mayor Barry referred the matter to the Chief of Police, Maurice Turner, who in turn created the "Cox Committee," headed by Assistant Police Chief Ronal Cox, to investigate the matter. After extensive investigation, the Committee issued a report to Chief Turner in December 1987. The Cox Committee found that the police officials had deviated from standard operating procedures and noted "that it was readily foreseeable that taking the second sample would generate the very suspicion that it has that favoritism, in the form of special attention or something worse, was being shown to a police official." The Committee concluded, however, that there had been no tampering with the specimens. As a result of these findings, the Police Chief reprimanded several high level officials not including White.

On August 25, 1987 and on eight occasions thereafter, the Post published articles concerning the FOP's allegations and the Cox Committee's investigation of those allegations. None of the Post articles mentioned Captain White by name and his picture was never shown. The August 25 article, however, identified White's rank and assignment, noting that after the drug tests "[t]he Lieutenant received his Captain's bars and became commander of the department's narcotics branch and later served on the department's Adverse Action Panel, which decides whether to fire police officers who have tested positive for drugs."

On September 28, 1987, NBC's WRC-TV (Channel 4) broadcasted a report which mentioned White by name and displayed his photograph. Pat Collins delivered the report on location in front of the Police and Fire Clinic. Using dramatic intonation, Collins presented an account of the questionable handling of White's drug tests. Collins' facts were essentially the same as those presented in the FOP letters, but he did not attribute the facts to the letters or the Cox Committee investigation. Upon completion of the report, the broadcast cut to anchorman Jim Vance in the studio who offered a terse conclusion: "A three-man task force assigned to investigate the matter is expected to issue a report soon."

White filed suit against each appellee,...