qualified privilege in Maryland

2019James v. Prince George's County , 288 Md. 315 , 323-24, 418 A.2d 1173 (1980) ("[o]nce it is established that the individual is a public official and the tort was committed while performing a duty which involves the exercise of discretion, a qualified immunity attaches; namely, in the absence of malice, the individual involved is free from liability"); Robinson v. Bd. of County Comm'rs for Prince George's County , 262 Md. 342 , 347, 278 A.2d 71 (1971) ("when acting in a discretionary capacity public officials, to enjoy immunity, must act without malice").

2019James v. Prince George's County , 288 Md. 315 , 323-24, 418 A.2d 1173 (1980) ("[o]nce it is established that the individual is a public official and the tort was committed while performing a duty which involves the exercise of discretion, a qualified immunity attaches; namely, in the absence of malice, the individual involved is free from liability"); Robinson v. Bd. of County Comm'rs for Prince George's County , 262 Md. 342 , 347, 278 A.2d 71 (1971) ("when acting in a discretionary capacity public officials, to enjoy immunity, must act without malice").

2012Hanrahan v. Kelly, 269 Md. 21, 29-30 , 305 A.2d 151, 156 (1973) (citing Wetherby v. Retail Credit Co., 235 Md. 237, 241 , 201 A.2d 344, 347 (1964)). “‘An absolute privilege is distinguished from a qualified privilege in that the former provides immunity regardless of the purpose or motive of the defendant, or the reasonableness of his conduct, while the latter is conditioned upon the absence of malice and is forfeited if it is abused.’ ” Smith v. Danielczyk, 400 Md. 98, 117 , 928 A.2d 795, 806 (2007) (quoting Di Blasio v. Kolodner, 233 Md. 512, 522, 197 A.2d 245, 250 (1964)).

2012Hanrahan v. Kelly, 269 Md. 21, 29-30 , 305 A.2d 151, 156 (1973) (citing Wetherby v. Retail Credit Co., 235 Md. 237, 241 , 201 A.2d 344, 347 (1964)). “‘An absolute privilege is distinguished from a qualified privilege in that the former provides immunity regardless of the purpose or motive of the defendant, or the reasonableness of his conduct, while the latter is conditioned upon the absence of malice and is forfeited if it is abused.’ ” Smith v. Danielczyk, 400 Md. 98, 117 , 928 A.2d 795, 806 (2007) (quoting Di Blasio v. Kolodner, 233 Md. 512, 522, 197 A.2d 245, 250 (1964)).

2019James v. Prince George's County , 288 Md. 315 , 323-24, 418 A.2d 1173 (1980) ("[o]nce it is established that the individual is a public official and the tort was committed while performing a duty which involves the exercise of discretion, a qualified immunity attaches; namely, in the absence of malice, the individual involved is free from liability"); Robinson v. Bd. of County Comm'rs for Prince George's County , 262 Md. 342 , 347, 278 A.2d 71 (1971) ("when acting in a discretionary capacity public officials, to enjoy immunity, must act without malice").

2019James v. Prince George's County , 288 Md. 315 , 323-24, 418 A.2d 1173 (1980) ("[o]nce it is established that the individual is a public official and the tort was committed while performing a duty which involves the exercise of discretion, a qualified immunity attaches; namely, in the absence of malice, the individual involved is free from liability"); Robinson v. Bd. of County Comm'rs for Prince George's County , 262 Md. 342 , 347, 278 A.2d 71 (1971) ("when acting in a discretionary capacity public officials, to enjoy immunity, must act without malice").

2016As to privileges in defamation cases, in Smith v. Danielczyk, 400 Md. 98, 117 , 928 A.2d 795, 806 (2007), we explained that “[a]n absolute privilege is distinguished from a qualified privilege in that the former provides immunity regardless of the purpose or motive of the defendant, or the reasonableness of his conduct, while the latter is conditioned upon the absence of malice and is forfeited if it is abused.” (Citation and internal quotation marks omitted).

2016As to privileges in defamation cases, in Smith v. Danielczyk, 400 Md. 98, 117 , 928 A.2d 795, 806 (2007), we explained that “[a]n absolute privilege is distinguished from a qualified privilege in that the former provides immunity regardless of the purpose or motive of the defendant, or the reasonableness of his conduct, while the latter is conditioned upon the absence of malice and is forfeited if it is abused.” (Citation and internal quotation marks omitted).

2026Although Maryland appellate courts have cited the decision only for its qualified privilege holding,9 9 Cf. Piscatelli v. Smith, 424 Md. 294, 307 (2012) (citing Wetherby for the proposition that “[i]n some circumstances, an absolute or qualified privilege defeats a claim of defamation, if the defendant did not abuse that privilege.”); Hanrahan v. Kelly, 269 Md. 21, 29-30 (1973) (citing Wetherby for the proposition that “[a]bsent a finding of express malice, a conditional privilege, if not abused, defeats the libel action.”); Orrison v. Vance, 262 Md. 285, 292 (1971) (citing Wetherby in support

2017Although the issue of abuse of a qualified privilege is typically reserved for the finder of fact, “the plaintiff must produce facts, admissible in evidence, demonstrating the de *361 fendant abused the privilege, in order to generate a triable issue for the fact-finder.” Piscatelli, supra, 424 Md. at 307 , 35 A.3d 1140 (citing Hanrahan, supra, 269 Md. at 29 , 305 A.2d 151 ).

2001Marchesi, 283 Md. at 135-36 , 387 A.2d at 1131 (internal citations omitted); see McDermott v. Hughley, 317 Md. 12, 28 , 561 A.2d 1038, 1046 (1989) (“A statement is accorded a qualified privilege ‘only when the occasion shows that the communicating party and the recipient have a mutual interest in the subject matter, or some duty with respect thereto.’ ” (quoting Simon v. Robinson, 221 Md. 200, 206 , 154 A.2d 911 (1959))).

2001Marchesi, 283 Md. at 135-36 , 387 A.2d at 1131 (internal citations omitted); see McDermott v. Hughley, 317 Md. 12, 28 , 561 A.2d 1038, 1046 (1989) (“A statement is accorded a qualified privilege ‘only when the occasion shows that the communicating party and the recipient have a mutual interest in the subject matter, or some duty with respect thereto.’ ” (quoting Simon v. Robinson, 221 Md. 200, 206 , 154 A.2d 911 (1959))).

2024In Malley, the Supreme Court held that “the same standard of objective reasonableness that [it] applied in the context of a suppression hearing in Leon . . . defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest.” 475 U.S. at 344 (footnote omitted).

2024In Malley, the Supreme Court held that “the same standard of objective reasonableness that [it] applied in the context of a suppression hearing in Leon . . . defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest.” 475 U.S. at 344 (footnote omitted).

2012Stressing the distinction between these doctrines, this Court has noted that “[a]n absolute privilege is distinguished from a qualified privilege in that the former provides immunity regardless of the purpose or motive of the defendant, or the reasonableness of his conduct, while the latter is conditioned upon the absence of malice and is forfeited if it is abused.” Smith v. Danielczyk, 400 Md. 98, 121 , 928 A.2d 795, 808-09 (2007) (quoting Kennedy v. Cannon, 229 Md. 92, 97 , 182 A.2d 54, 57 (1962)).

2012Stressing the distinction between these doctrines, this Court has noted that “[a]n absolute privilege is distinguished from a qualified privilege in that the former provides immunity regardless of the purpose or motive of the defendant, or the reasonableness of his conduct, while the latter is conditioned upon the absence of malice and is forfeited if it is abused.” Smith v. Danielczyk, 400 Md. 98, 121 , 928 A.2d 795, 808-09 (2007) (quoting Kennedy v. Cannon, 229 Md. 92, 97 , 182 A.2d 54, 57 (1962)).

2000Id. at 303 , 396 A.2d 255 .

1979They are “protected by a qualified immunity against civil liability for non-malicious acts performed within the scope of [their] authority.” Id. at 303.

2024This is because the Supreme Court of the United States has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Id., 129 S. Ct. at 815 ; see also Saucier v. Katz, 533 U.S. 194 , 201, 121 S. Ct. 2151 , 2156 (2001) (same); Hunter v. Bryant, 502 U.S. 224, 227 , 112 S. Ct. 534, 536 (1991) (per curiam) (same).

2024This is because the Supreme Court of the United States has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Id., 129 S. Ct. at 815 ; see also Saucier v. Katz, 533 U.S. 194 , 201, 121 S. Ct. 2151 , 2156 (2001) (same); Hunter v. Bryant, 502 U.S. 224, 227 , 112 S. Ct. 534, 536 (1991) (per curiam) (same).

1986Martinez , indubitably, precludes Jackson from asserting the State law immunity defense to the § 1983 civil rights violation charged in count II of the appellants’ declaration. 1 Nevertheless, because Jackson was, at the time of the shooting, a police officer in the performance of his duty, he is entitled to a qualified immunity which protects him from liability for official acts performed in “good faith.” Pierson v. Ray, 386 U.S. 547 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967); see also Nixon v. Fitzgerald, 457 U.S. 731 , 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982).

1986Martinez , indubitably, precludes Jackson from asserting the State law immunity defense to the § 1983 civil rights violation charged in count II of the appellants’ declaration. 1 Nevertheless, because Jackson was, at the time of the shooting, a police officer in the performance of his duty, he is entitled to a qualified immunity which protects him from liability for official acts performed in “good faith.” Pierson v. Ray, 386 U.S. 547 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967); see also Nixon v. Fitzgerald, 457 U.S. 731 , 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982).

2024In WBAL-TV Division, The Hearst Corp. v. State, 300 Md. 233, 243-44 (1984), the Court assumed, without deciding, that the First Amendment and Article 40 of the Maryland Declaration of Rights recognized “a qualified privilege to withhold unpublished material obtained during the news gathering process.” Under the qualified privilege, the right to withhold unpublished material would yield if the journalist had relevant information, if the information was unavailable from another source outside of the news media, and if the government had a compelling and overriding interest in its disclosure.

2024In WBAL-TV Division, The Hearst Corp. v. State, 300 Md. 233, 243-44 (1984), the Court assumed, without deciding, that the First Amendment and Article 40 of the Maryland Declaration of Rights recognized “a qualified privilege to withhold unpublished material obtained during the news gathering process.” Under the qualified privilege, the right to withhold unpublished material would yield if the journalist had relevant information, if the information was unavailable from another source outside of the news media, and if the government had a compelling and overriding interest in its disclosure.

1999In Williams v. Prince George’s County, 112 Md.App. 526, 550, 685 A.2d 884 (1996), Judge Davis spoke for this Court in stating that the actions of law enforcement officers in the course of their duties are discretionary acts and that only a showing of malice will defeat an officer’s qualified immunity in the course of performing such acts: Unquestionably, the actions of police officers within the scope of their law enforcement function are quintessential discretionary acts.

1999In Williams v. Prince George’s County, 112 Md.App. 526, 550, 685 A.2d 884 (1996), Judge Davis spoke for this Court in stating that the actions of law enforcement officers in the course of their duties are discretionary acts and that only a showing of malice will defeat an officer’s qualified immunity in the course of performing such acts: Unquestionably, the actions of police officers within the scope of their law enforcement function are quintessential discretionary acts.

2003Chief Judge Murphy continued in Darvish: Conditional or qualified privileges [T]he common law recognized that a person ought to be shielded against civil liability for defamation where, in good faith, he publishes a statement in the furtherance of his own legitimate interest, or those shared in common with the recipient or third parties ... * * ❖ According to the Restatement (Second) of Torts § 595(1), a qualified privilege may be claimed where the defendant believes “there is information that affects a sufficiently important interest of the recipient,” and where the publication may be made “w

2003Chief Judge Murphy continued in Darvish: Conditional or qualified privileges [T]he common law recognized that a person ought to be shielded against civil liability for defamation where, in good faith, he publishes a statement in the furtherance of his own legitimate interest, or those shared in common with the recipient or third parties ... * * ❖ According to the Restatement (Second) of Torts § 595(1), a qualified privilege may be claimed where the defendant believes “there is information that affects a sufficiently important interest of the recipient,” and where the publication may be made “w

2000See Jacron Sales Co. v. Sindorf, 276 Md. 580, 600 , 350 A.2d 688 (1976)(The question of whether a defamatory statement is entitled to a qualified privilege is a question of law for the circuit court).

2000See Jacron Sales Co. v. Sindorf, 276 Md. 580, 600 , 350 A.2d 688 (1976)(The question of whether a defamatory statement is entitled to a qualified privilege is a question of law for the circuit court).

2002After reviewing three analogous cases involving constitutional tort damage claims against individual police officers, the Court specifically rejected the officer’s “argument that a public official, guilty of violating a plaintiffs rights under the Maryland Constitution, should be entitled to a qualified immunity from compensatory damages based upon the absence of malice.” Id. at 684 , 541 A.2d 1303 .

2002After reviewing three analogous cases involving constitutional tort damage claims against individual police officers, the Court specifically rejected the officer’s “argument that a public official, guilty of violating a plaintiffs rights under the Maryland Constitution, should be entitled to a qualified immunity from compensatory damages based upon the absence of malice.” Id. at 684 , 541 A.2d 1303 .

2015For example, in Walker v. D’Alesandro, 212 Md. 163, 169 , 129 A.2d 148 (1957), the Court held that the public official privilege was not “confined in the law of torts to matters of defamation.” Likewise, in Carr v. Watkins, 227 Md. 578, 582 , 177 A.2d 841 (1962), the Court held that the qualified privilege enjoyed by certain police officers when performing their duties applies not only to a claim for defamation but also to claims for invasion of privacy, divulging information without legal right, malicious interference with contract of employment, and conspiring to cause termination of employm

2015For example, in Walker v. D’Alesandro, 212 Md. 163, 169 , 129 A.2d 148 (1957), the Court held that the public official privilege was not “confined in the law of torts to matters of defamation.” Likewise, in Carr v. Watkins, 227 Md. 578, 582 , 177 A.2d 841 (1962), the Court held that the qualified privilege enjoyed by certain police officers when performing their duties applies not only to a claim for defamation but also to claims for invasion of privacy, divulging information without legal right, malicious interference with contract of employment, and conspiring to cause termination of employm

2001If those three conditions are met, the public official enjoys a qualified immunity in the absence of “malice.” City of District Heights, 123 Md.App. at 516 , 719 A.2d 998 (quoting Thomas v. City of Annapolis, 113 Md.App. 440, 452 , 688 A.2d 448 (1997)); see also Wilson v. Jackson, 66 Md.App. 744, 749 , 505 A.2d 913 (1986) (quoting Leese v. Baltimore County, 64 Md.App. 442, 479 , 497 A.2d 159 (1985), overruled on other grounds by Harford County v. Town of Bel Air, 348 Md. 363 , 704 A.2d 421 (1998), and citing Richard J.

2001If those three conditions are met, the public official enjoys a qualified immunity in the absence of “malice.” City of District Heights, 123 Md.App. at 516 , 719 A.2d 998 (quoting Thomas v. City of Annapolis, 113 Md.App. 440, 452 , 688 A.2d 448 (1997)); see also Wilson v. Jackson, 66 Md.App. 744, 749 , 505 A.2d 913 (1986) (quoting Leese v. Baltimore County, 64 Md.App. 442, 479 , 497 A.2d 159 (1985), overruled on other grounds by Harford County v. Town of Bel Air, 348 Md. 363 , 704 A.2d 421 (1998), and citing Richard J.

2013See, e.g., Gohari, 363 Md. at 58 , 767 A.2d 321 (statements by former employer about a former employee who listed employer as a reference); McDermott v. Hughley, 317 Md. 12, 28-29 , 561 A.2d 1038 (1989) (listing examples of employer/employee cases and noting that "[a]n individual also has a qualified privilege to publish anything in his own interest protecting his own reputation against defamation"); Hanrahan, 269 Md. at 28 , 305 A.2d 151 (statements among parties to a real estate transaction); Davidson v. Seneca Crossing Section II Homeowner’s Ass’n, Inc., 187 Md.App. 601, 646 , 979 A.2d 260

2013See, e.g., Gohari, 363 Md. at 58 , 767 A.2d 321 (statements by former employer about a former employee who listed employer as a reference); McDermott v. Hughley, 317 Md. 12, 28-29 , 561 A.2d 1038 (1989) (listing examples of employer/employee cases and noting that "[a]n individual also has a qualified privilege to publish anything in his own interest protecting his own reputation against defamation"); Hanrahan, 269 Md. at 28 , 305 A.2d 151 (statements among parties to a real estate transaction); Davidson v. Seneca Crossing Section II Homeowner’s Ass’n, Inc., 187 Md.App. 601, 646 , 979 A.2d 260

2014The qualified immunity doctrine, as described by the United States Supreme Court, provides that, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” *475 Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). 19 .

2014The qualified immunity doctrine, as described by the United States Supreme Court, provides that, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” *475 Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). 19 .

2001In Fresh v. Cutter, 73 Md. 87, 92 , 20 A. 774, 775 (1890), a case involving slander and a qualified privilege, we stated “[i]f ... the statement be made in response to an inquiry, it would undoubtedly be privileged.” (Citations omitted).

2001In Fresh v. Cutter, 73 Md. 87, 92 , 20 A. 774, 775 (1890), a case involving slander and a qualified privilege, we stated “[i]f ... the statement be made in response to an inquiry, it would undoubtedly be privileged.” (Citations omitted).

2026Although Maryland appellate courts have cited the decision only for its qualified privilege holding,9 9 Cf. Piscatelli v. Smith, 424 Md. 294, 307 (2012) (citing Wetherby for the proposition that “[i]n some circumstances, an absolute or qualified privilege defeats a claim of defamation, if the defendant did not abuse that privilege.”); Hanrahan v. Kelly, 269 Md. 21, 29-30 (1973) (citing Wetherby for the proposition that “[a]bsent a finding of express malice, a conditional privilege, if not abused, defeats the libel action.”); Orrison v. Vance, 262 Md. 285, 292 (1971) (citing Wetherby in support

2003They include Orr ison v. Vance, 262 Md. 285, 292 , 277 A.2d 573, 576 (1971), where we extended a qualified privilege to a person who had reported a potentially dangerous, and possibly illegal, situation to appropriate authorities.