False police reports are privileged against defamation claims. But the precise nature of that privilege is not always clear. Is it a qualified privilege, subject to being lost through abuse or bad faith, or is it an absolute immunity that insulates all statements to police against defamation claims no matter the intentions of the speaker? The distinction can make all the difference in cases where reports are made to the police not for the purpose of actually reporting crime, or to enforce obedience to the law, or to see that guilty people are punished, but for the purpose of harassing another individual. The nature of the privilege for defamatory statements made to the police will generally depend on the context and timing in which the statements at issue were made.
In Virginia, reports to the police enjoy at least conditional protection. The uncertainty lies in whether that protection can be elevated to “absolute” status. A qualified privilege exists where a communication is made in good faith, on a subject in which the communicating party has an interest or owes a duty, to a party who has a corresponding interest or duty. Citizens are generally thought to have an interest, if not a duty, in keeping the streets safe by identifying potential criminals to the police, and the police obviously have a corresponding interest in receiving that information, so statements made to the police meet the basic test for qualified privilege. (See also Marsh v. Commercial & Sav. Bank of Winchester, 265 F. Supp. 614, 621 (W.D. Va. 1967) (finding statements made by bank tellers to the police were protected by qualified privilege)).
Statements made in the course of a “judicial proceeding” are subject to absolute protection. Moreover, the Virginia Supreme Court recently held that statements preliminary to such a proceeding may also be entitled absolute protection. Under the court’s test, communications made outside of court but preliminary to proposed judicial proceedings will be absolutely privileged from defamation liability where (1) the statement is made preliminary to a proposed judicial proceeding; (2) the statement is “material, relevant or pertinent” to the proceeding; (3) the proceeding is contemplated in good faith and is under serious consideration; and (4) the communication is disclosed only to persons having an interest in the proposed proceeding. Thus, if police reports are considered “preliminary” to a judicial proceeding, one could certainly argue that reports to police may be protected by the absolute judicial privilege.
Most states apply only a qualified privilege for false statements to the police, reasoning that qualified privilege affords sufficient protection to people who report suspected criminal activity to the police, and that no additional protection is needed or socially desirable for those who would make intentionally false and malicious defamatory statements to law enforcement. In a 2012 ruling of the Circuit Court of Loudoun County, Virginia, the court seemed to be open to the idea of applying an absolute judicial privilege to police reports made in good faith. As evidenced by last week’s adoption of a federal magistrate judge’s report, however, the trend appears to be towards applying only a qualified privilege.
In Fields v. Sprint Corporation, Neal Fields sued Sprint for defamation based on what he claimed was a false report to the police that he stole a cell phone case from one of its Chesterfield stores. According to the complaint, a store employee confronted him when a box cutter fell out of his pocket. Fields explained that he used the box cutter for work and invited the employee to search him for stolen items. The employee declined to do so and allowed Fields to leave the store. No alarms went off. The employee called the police anyway and claimed that Fields had stolen a case. The police showed up at Fields’ place of employment with an arrest warrant and let him away in handcuffs. Fields was suspended from his job without pay, defaulted on his mortgage, and lost his health insurance. The charges were eventually dropped, and Fields sued for defamation.
In evaluating the privilege issue, the big question the court had to address was whether reporting an alleged crime to the police–thereby initiating a criminal investigation–should be considered “preliminary” to a proposed judicial proceeding. If so, such statements could be subject to absolute judicial immunity; if not, they would only be entitled to the more-limited qualified privilege.
The court drew a distinction between statements made to police in response to their inquiries in connection with an existing investigation and statements made to the police that initiate an investigation. Virginia has never extended absolute privilege to mere potential litigation, so the court reasoned that “there exists some point in the lead-up to litigation that triggers absolute privilege.” It was unnecessary to demarcate that exact point in this particular case because making an initial complaint is “the earliest possible point in the potential litigation timeline.” Therefore, the court held, initial complaints made to the police accusing someone of committing a crime come too early in the judicial process to be considered “preliminary” to a judicial proceeding for purposes of the absolute-judicial-privilege test.
It makes sense, the court continued, that such statements should only be entitled to qualified privilege. “The Court does not believe that a policy encouraging individuals to speak freely about a controversy gives them an unfettered right to create the controversy.” (Emphasis in original). Moreover, one reason absolute judicial privilege exists is because there are other safeguards in judicial proceedings against false statements, such as liability for perjury and the applicability of the rules of evidence. Those protections do not exist in the context of initial reports to police.
Here, the Sprint employee’s statement to the police was protected by a qualified privilege, but the complaint alleged facts sufficient to show that the privilege was abused in that the defamatory accusations were made with common-law malice (i.e., a sinister or corrupt motive). Therefore, the magistrate judge recommended that Sprint’s motion to dismiss be denied. On September 12, 2017, the district judge adopted the magistrate’s findings, adding that for absolute privilege to attach, the statements must be “related to a proceeding contemplated in good faith.” In this case, the allegations were that the police report was made for reasons other than to catch a potential shoplifter, so the report was not protected by absolute privilege.