July 30, 1998 98-R-0936
FROM: Christopher Reinhart, Research Attorney
RE: False Allegations Against Police Officers
You asked about statutes and causes of action for a police officer who has been the subject of false allegations.
A police officer who has been the subject of spoken false allegations may have an action for slander. Slander is defamation by spoken word or gesture (libel is defamation by written word or other permanent medium). The ability of a police officer to recover for harm caused by false accusations will depend on the nature and context of the statements and whether a privilege is involved. A police officer is also a public official and the U.S. Constitution requires a higher level of fault in defamation cases when public officials are involved. An officer must prove that the slanderous statements were made with “actual malice,” meaning knowledge of their falsity or reckless disregard of their truth.
An action for vexatious litigation or malicious prosecution may be possible if an individual brings a civil or criminal action against the officer based on false allegations. The officer may recover damages if the civil or criminal action was brought without probable cause.
SLANDER AND SLANDER PER SE
A statement is defamatory if it harms the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. There must be (1) a false or defamatory statement, (2) unprivileged communication to a third party, (3) fault amounting to at least negligence, and (4) damage to the individual's reputation in the eyes of a substantial and respectable community. A plaintiff must allege and prove actual financial damages caused by the defamation unless the slander occurred in one of several categories that are considered slander per se. Slanderous statements in these categories are inherently defamatory and damages are presumed because of their subject matter:
1. charging the commission of a crime involving moral turpitude (acts of inherent baseness,
vileness, or depravity) or to which an infamous penalty is attached;
2. charging a person with having a loathsome, contagious disease;
3. charging a woman with being unchaste;
4. charging incompetence or dishonesty in office; or
5. charging a professional person with general incompetence.
(Wright and Fitzgerald, Connecticut Law of Torts, § 147)
Category (1) includes crimes such as theft (Battista v. United Illuminating Co., 10 Conn. App. 486 (1987)) and modern opinions suggest that this category may include all allegations of felonies (Newman, Tort Remedies in Connecticut). The Restatement (Second) of Torts § 571 includes any crime punishable by imprisonment in this category.
Statements about improper conduct or lack of skill or integrity in one's profession or business must be of such a nature that they are calculated to cause injury in one's profession or business. They must charge general incompetence or lack of integrity and the comments cannot be about specific acts unless those acts are so charged as to amount to an allegation of general incompetence or lack of integrity (Moriarty v. Lippe, 162 Conn. 371 (1972), citing Proto v. Bridgeport Herald Corp., 136 Conn. 557, 566). Words of general abuse, “regardless of how rude, uncouth or vexatious” are not slanderous per se and cannot support recovery in a slander action in the absence of a showing of special damages (Moriarty, at 385).
Privileges shield individuals from liability for defamatory remarks in certain circumstances. An absolute privilege applies to acts of state and statements made in legislative and judicial proceedings. An absolute privilege has also been extended to official administrative proceedings that are “quasi-judicial” in nature (Kelley v. Bonney, 221 Conn. 549 (1992)). Absolute privileges cannot be lost as long as the comments are within the context of the privilege.
Conditional privileges arise out of an occasion but their protection may be lost due to malice, improper motive, bad faith, or excessive publication. The following situations create a conditional privilege:
1. newspapers, periodicals, radio, and television stations making “fair comment” upon
matters of public interest;
2. clergy when discussing professional matters with their parishioners;
3. physicians when discussing professional matters with their patients;
4. matters of public interest, which includes non-malicious criticism of public officials;
5. statements made in the military about military personnel;
6. statements made in response to a business inquiry (such as a reference about a former
7. statements made in the protection of a property interest;
8. transmissions of telephone and telegraph companies;
9. statements made in the course of political campaigns; and
10. artistic or literary criticism.
(Wright and Fitzgerald, Connecticut Law of Torts, §157)
Connecticut also provides statutory protection for owners and employees of television and radio stations. They are protected from liability for any damages from a defamatory statement uttered over its facilities “by or on behalf of a candidate for public office or by any other person” (CGS § 52-239). The statute does not protect someone who participates in the broadcast of the defamatory statement willfully, knowingly, and with intent to defame.
POLICE OFFICERS AS PUBLIC OFFICIALS
Defamation also has a constitutional aspect. The first amendment free speech clause protects the national interest in “uninhibited, robust, and wide-open” debate on public issues (New York Times v. Sullivan, 376 U.S. 254, 270 (1964)). A higher level of fault is required when speech involves a public official or public figure. A defamatory statement against a public official must be made with “actual malice” for a plaintiff to recover. “Actual malice” means that the statements were made with knowledge of their falsity or reckless disregard for their falsity. The defendant must have entertained serious doubts as to the truth of the statement. This standard applies to comments relating to public officials in the performance of their duties and official conduct (Kelley v. Bonney, 221 Conn. 549 (1992)).
The U.S. Supreme Court has defined a public official as someone with a “position in government that has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general interest in the qualifications and performance of all governmental employees” (Rosenblatt v. Baer, 353 U.S. 75, 86 (1966)). The Connecticut Supreme Court has ruled that a police officer is a public official because the position “has great potential for social harm and thus invites independent interest in the qualifications and performance of the person who holds the position” (Moriarty v. Lippe, 162 Conn. 371, 378 (1972)).
The plaintiff in a case of slander must allege and prove monetary losses such as lost profits, lost good will, or other adverse business losses. But when slander per se is involved, the plaintiff may recover compensation for injuries that are the natural and probable result of the communication without pleading or proving them because there is a presumed injury. It is sufficient to show general, non-pecuniary damage such as embarrassment, humiliation, or loss of reputation. Proving actual malice can also entitle a plaintiff to punitive damages (Pope, Connecticut Actions and Remedies).
VEXATIOUS SUITS AND MALICIOUS PROSECUTION
False allegations that are the subject of a civil or criminal law suit may subject the accuser to a civil action for damages. A person who commences and prosecutes a civil action without probable cause is liable for double or treble damages. If the action lacks probable cause, the other person will receive double damages; if the action is also malicious and brought with the intent to vex and trouble, the other person will receive treble damages (CGS § 52-568). A person lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted. Malice is acting with an improper purpose, which is a purpose other than to secure the proper adjudication of the claim (DeLaurentis v. City of New Haven, 220 Conn. 225 (1991)). The prior civil action may also be an administrative action (DeLaurentis).
Malicious prosecution involves a charge in a criminal trial that was without probable cause on which the accused is acquitted or discharged. The person must have initiated the proceeding by directing, requesting, or pressuring the prosecutor and this activity is the determining factor in the decision to commence the prosecution. Malice is implied by the lack of probable cause. A public prosecutor is absolutely privileged for public policy reasons.