qualified privilege in District of Columbia

1995Thus, in deciding whether a particular statement is protected by a qualified privilege, we must “look[ ] to the primary motive by which the defendant is apparently inspired-” Id. at 477 .

1995“The qualified privilege is a complete defense to libel, but the defense is lost by the showing of malice.” Mosrie v. Trussell, supra, 467 A.2d at 477 (citations omitted).

1984As we have stated above, a qualified privilege exists for communications made upon a subject matter “in which the party communicating had an interest or in reference to which he had or honestly believes he has, a duty to a person having a corresponding interest ...,” Smith v. District of Columbia, supra, 399 A.2d 213 , quoting May Department Stores Company v. Devercelli, supra, 314 A.2d 767 .

1984As we have stated above, a qualified privilege exists for communications made upon a subject matter “in which the party communicating had an interest or in reference to which he had or honestly believes he has, a duty to a person having a corresponding interest ...,” Smith v. District of Columbia, supra, 399 A.2d 213 , quoting May Department Stores Company v. Devercelli, supra, 314 A.2d 767 .

1998“The communication being privileged, defendant will be presumed to have been actuated by pure motives in its publication.” Ashford v. Evening Star Newspaper Co., 41 App. D.C. 395, 405 (1914); see also Ford Motor Credit Co. v. Holland, 367 A.2d 1311, 1314 (D.C.1977) (quoting Ash-ford). 9 If malice is shown, however, then the privilege is lost. “[T]he basis, if any, for excusing dissemination of a defamatory report ... within an employment group ... is ... the existence of a qualified privilege — a privilege which can be lost if the publication occurs outside normal channels, is otherwise excess

1990Although our decisions indicate that a qualified privilege exists only if the publisher believes, with reasonable grounds, that the statement is true, see Mosrie, supra, 467 A.2d at 477 ; Chatelain, supra, 374 A.2d at 290 ; Afro-American Publishing Co. v. Jaffe, supra, 125 U.S.App.D.C. at 77 , 366 F.2d at 656 , this formulation does not mean that the requirement of “malice”, for purposes of overcoming a common law qualified privilege, is satisfied if the defendant has done no more than fail to undertake a reasonable inquiry as to the truth of the assertion prior to publication — conduct amount

2011Contrary to Mr. Payne’s argument, we have never limited the privilege to “employers or organizations reporting information on their own employees or members.” As we explained in Moss, supra, a qualified privilege may “protect[ ] the actor’s own interests, the interests of a third person or certain interests of the public.” Id. at 1024 (citation and internal quotation marks omitted).

2011Contrary to Mr. Payne’s argument, we have never limited the privilege to “employers or organizations reporting information on their own employees or members.” As we explained in Moss, supra, a qualified privilege may “protect[ ] the actor’s own interests, the interests of a third person or certain interests of the public.” Id. at 1024 (citation and internal quotation marks omitted).

2002To defeat a qualified privilege, a plaintiff must present "evidence from which a jury may fairly conclude there was malice in the utterance of the words.” Id. at 774 .

1984As we have stated above, a qualified privilege exists for communications made upon a subject matter “in which the party communicating had an interest or in reference to which he had or honestly believes he has, a duty to a person having a corresponding interest ...,” Smith v. District of Columbia, supra, 399 A.2d 213 , quoting May Department Stores Company v. Devercelli, supra, 314 A.2d 767 .

1990Although our decisions indicate that a qualified privilege exists only if the publisher believes, with reasonable grounds, that the statement is true, see Mosrie, supra, 467 A.2d at 477 ; Chatelain, supra, 374 A.2d at 290 ; Afro-American Publishing Co. v. Jaffe, supra, 125 U.S.App.D.C. at 77 , 366 F.2d at 656 , this formulation does not mean that the requirement of “malice”, for purposes of overcoming a common law qualified privilege, is satisfied if the defendant has done no more than fail to undertake a reasonable inquiry as to the truth of the assertion prior to publication — conduct amount

1983Altimont v. Chatelain, supra; Afro-American Publishing Co., Inc. v. Jaffe, 125 U.S.App.D.C. 70, 77 , 366 F.2d 649, 656 (1966).

2011In that vein, in addition to a statement made by an employer regarding the conduct of an employee, see Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 879 (D.C.1998), we have recognized the qualified common interest privilege in the context of statements that (1) were made in good faith to law enforcement authorities by private individuals regarding suspected wrongdoing, Carter, 821 A.2d at 894 ; Columbia First Bank v. Ferguson, 665 A.2d 650, 655 (D.C.1995), (2) were made to allege misconduct of a police officer to his superior, Mosrie, supra, 467 A.2d at 477 , and (3) involved

2003Nevertheless, the trial court concluded that Mr. Hahn was entitled to a qualified privilege as to the defamation claim because he had been reporting to the police and “there [was] no showing of malice.” And, with respect to Ms. Carter’s intentional infliction of emotional distress claim, there was “absolutely no evidence whatsoever of any conduct on the part of Mr. Hahn that was extreme or outrageous or that was intentionally reckless.” We turn first to the trial court’s conclusion regarding defamation and qualified privilege. “[A] qualified privilege exists when a statement about suspected wr

2009“A police officer has a qualified privilege to use reasonable force to effect an arrest, provided that the means employed are not in excess of those which the actor reasonably believes to be necessary.” Evans-Reid v. District of Columbia, 930 A.2d 930, 937 (D.C.2007) (citing Jackson v. District of Columbia, 412 A.2d 948, 955 (D.C.1980) (citing Restatement (Second) of ToRts § 18 (1965))).

2007See Edwards v. City of Philadelphia, 860 F.2d 568, 572 (3rd Cir.1988); Wing v. Britton, 748 F.2d 494, 497 (8th Cir.1984). 7 It is well established that a police officer has a qualified privilege to use reasonable force to effect an arrest, provided that the means employed are not “in excess of those which the actor reasonably believes to be necessary.” See Etheredge, 635 A.2d at 916 (quoting Jackson, 412 A.2d at 956 (citation omitted)).

2008Ladner knew or had reason to know was not true.” While, as appellees assert, our case law recognizes a qualified privilege of employers to comment about employees, see Thomas v. Howard, 168 A.2d 908, 909-10 (D.C.1961), that privilege can be lost where there is “excessive publication or express malice.” Id. at 910 .

2008Ladner knew or had reason to know was not true.” While, as appellees assert, our case law recognizes a qualified privilege of employers to comment about employees, see Thomas v. Howard, 168 A.2d 908, 909-10 (D.C.1961), that privilege can be lost where there is “excessive publication or express malice.” Id. at 910 .

2007They also asked each interviewee for both favorable and unfavorable information about Blodgett, and requested that each one treat the investigation confidentially, “to be sensitive to the privacy concerns of those involved.” In order to defeat this qualified privilege, Blodgett must either: (1) provide “extrinsic proof’ that the defendants who produced and used the report acted with express malice, or (2) demonstrate that it is “so excessive, intemperate, unreasonable, and abusive as to forbid any other reasonable conclusion than that the defendants] [were] actuated by express malice.... ” Mos

1998“The communication being privileged, defendant will be presumed to have been actuated by pure motives in its publication.” Ashford v. Evening Star Newspaper Co., 41 App. D.C. 395, 405 (1914); see also Ford Motor Credit Co. v. Holland, 367 A.2d 1311, 1314 (D.C.1977) (quoting Ash-ford). 9 If malice is shown, however, then the privilege is lost. “[T]he basis, if any, for excusing dissemination of a defamatory report ... within an employment group ... is ... the existence of a qualified privilege — a privilege which can be lost if the publication occurs outside normal channels, is otherwise excess

2002This court initially adhered to these principles when it first held that "the qualified privilege to withhold the exact location of an observation post may, under some circumstances, justify the court's refusal to allow cross-examination on that point at trial." Thompson v. United States , 472 A.2d 899 , 900 (D.C. 1984).

2002This court initially adhered to these principles when it first held that “the qualified privilege to withhold the exact location of an observation post may, under some circumstances, justify the court’s refusal to allow cross-examination on that point at trial.” Thompson v. United States, 472 A.2d 899, 900 (D.C.1984).

1990Although our decisions indicate that a qualified privilege exists only if the publisher believes, with reasonable grounds, that the statement is true, see Mosrie, supra, 467 A.2d at 477 ; Chatelain, supra, 374 A.2d at 290 ; Afro-American Publishing Co. v. Jaffe, supra, 125 U.S.App.D.C. at 77 , 366 F.2d at 656 , this formulation does not mean that the requirement of “malice”, for purposes of overcoming a common law qualified privilege, is satisfied if the defendant has done no more than fail to undertake a reasonable inquiry as to the truth of the assertion prior to publication — conduct amount

1990Although our decisions indicate that a qualified privilege exists only if the publisher believes, with reasonable grounds, that the statement is true, see Mosrie, supra, 467 A.2d at 477 ; Chatelain, supra, 374 A.2d at 290 ; Afro-American Publishing Co. v. Jaffe, supra, 125 U.S.App.D.C. at 77 , 366 F.2d at 656 , this formulation does not mean that the requirement of “malice”, for purposes of overcoming a common law qualified privilege, is satisfied if the defendant has done no more than fail to undertake a reasonable inquiry as to the truth of the assertion prior to publication — conduct amount

2024Qualified immunity is a doctrine of federal law; it shields government officials “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.” Pearson, 555 U.S. at 231 (quoting Harlow, 457 U.S. at 818 ).

1993The doctrine of qualified immunity is an affirmative defense available to government officials performing discretionary functions which generally shields them from liability for civil damages for conduct which does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 815, 818 , 102 S.Ct. 2727, 2736-37, 2738 , 73 L.Ed.2d 396 (1982).

1992Because Anderson failed to show that he "need[ed] the evidence to conduct his defense and that there are no adequate alternative means of getting at the same point," United States v. Harley, 221 U.S.App.D.C. 69, 71 , 682 F.2d 1018, 1020 (1982), he did not overcome the government's qualified privilege *492 in maintaining the secrecy of surveillance locations.

1992Because Anderson failed to show that he "need[ed] the evidence to conduct his defense and that there are no adequate alternative means of getting at the same point," United States v. Harley, 221 U.S.App.D.C. 69, 71 , 682 F.2d 1018, 1020 (1982), he did not overcome the government's qualified privilege *492 in maintaining the secrecy of surveillance locations.

1984This constitutes malice on Dr. Ingber’s part and so defeats his qualified privilege, and is also malice under the Supreme Court’s definition of New York Times v. Sullivan, 376 U.S. 254, 279-80 , 84 S.Ct. 710, 725-26 , 11 L.Ed.2d 686 (1964) (“knowledge that it was false or with reckless disregard of whether it was false or not.”) Thus, the precise analysis is that the statement by Dr. Ing-ber to the patient, Ms. McCullough, was slander per se, enjoyed a qualified privilege, but the privilege was defeated by the showing of malice on the part of Dr. Ing-ber, viz., a knowing and hence deliberate m

1984This constitutes malice on Dr. Ingber’s part and so defeats his qualified privilege, and is also malice under the Supreme Court’s definition of New York Times v. Sullivan, 376 U.S. 254, 279-80 , 84 S.Ct. 710, 725-26 , 11 L.Ed.2d 686 (1964) (“knowledge that it was false or with reckless disregard of whether it was false or not.”) Thus, the precise analysis is that the statement by Dr. Ing-ber to the patient, Ms. McCullough, was slander per se, enjoyed a qualified privilege, but the privilege was defeated by the showing of malice on the part of Dr. Ing-ber, viz., a knowing and hence deliberate m

2024See id. at 862 .

1982In Wade v. District of Columbia, D.C.App., 310 A.2d 857, 863 (1973) (en banc), we stated: “when sued [for civil wrongs] the individual police officer has a defense of good faith and reasonable belief in the validity of [his challenged acts] .. .. ” The analysis for determination of an officer’s civil liability, we indicated, is two-tiered: “The standard governing police conduct is composed of two elements[;] the first is subjective and the second is objective.

2022There appears to be no requirement that the expert’s proposed standard be the predominant or prevailing standard nationwide, so it would suffice for the expert to “‘link his testimony to [a] certification process, current literature, conference[,] or discussion with other knowledgeable professionals,’ at a national level.” Cardenas v. Muangman, 998 A.2d 303, 308 (D.C. 2010) (first alteration in 5 We note that while the doctrine of qualified immunity applies to Mr. Thurman’s excessive force and civil rights claims, see discussion infra Part III.C., “qualified immunity . . . does not preclude a

2022There appears to be no requirement that the expert’s proposed standard be the predominant or prevailing standard nationwide, so it would suffice for the expert to “‘link his testimony to [a] certification process, current literature, conference[,] or discussion with other knowledgeable professionals,’ at a national level.” Cardenas v. Muangman, 998 A.2d 303, 308 (D.C. 2010) (first alteration in 5 We note that while the doctrine of qualified immunity applies to Mr. Thurman’s excessive force and civil rights claims, see discussion infra Part III.C., “qualified immunity . . . does not preclude a

2011Reasonable jurors could conclude that Mr. Clark made his statement with “reckless indifference to its effect on [Mr. Payne’s] reputation”, id., in an effort to prevent Mr. Payne from working as a DCRA elevator inspector or to hinder his ability to work elsewhere as an elevator inspector, Moss, 580 A.2d at 1028 (trial court properly rejected motion for directed verdict on the basis of a qualified privilege where reasonable jurors could conclude that defendant Athletic Director’s statement to university authorities alleging misappropriation of funds was made with malice where evidence suggested

2011In that vein, in addition to a statement made by an employer regarding the conduct of an employee, see Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 879 (D.C.1998), we have recognized the qualified common interest privilege in the context of statements that (1) were made in good faith to law enforcement authorities by private individuals regarding suspected wrongdoing, Carter, 821 A.2d at 894 ; Columbia First Bank v. Ferguson, 665 A.2d 650, 655 (D.C.1995), (2) were made to allege misconduct of a police officer to his superior, Mosrie, supra, 467 A.2d at 477 , and (3) involved

2009Nonetheless, Scales argues that when Young decided the qualified immunity issue, it did not decide whether he could proceed with his § 1983 claim for excessive force in violation of the Fourth Amendment, because, as the Saucier court held, a “ruling on qualified immunity requires an analysis not susceptible of fusion with the question whether unreasonable force was used in making the arrest.” 533 U.S. at 197, 121 S.Ct. 2151 .

2009Nonetheless, Scales argues that when Young decided the qualified immunity issue, it did not decide whether he could proceed with his § 1983 claim for excessive force in violation of the Fourth Amendment, because, as the Saucier court held, a “ruling on qualified immunity requires an analysis not susceptible of fusion with the question whether unreasonable force was used in making the arrest.” 533 U.S. at 197, 121 S.Ct. 2151 .

2007See Edwards v. City of Philadelphia, 860 F.2d 568, 572 (3rd Cir.1988); Wing v. Britton, 748 F.2d 494, 497 (8th Cir.1984). 7 It is well established that a police officer has a qualified privilege to use reasonable force to effect an arrest, provided that the means employed are not “in excess of those which the actor reasonably believes to be necessary.” See Etheredge, 635 A.2d at 916 (quoting Jackson, 412 A.2d at 956 (citation omitted)).

2003Usually *706 these technical requirements of assault and battery are satisfied, such as here where there is no question that a battery occurred, 2 and the outcome of the case turns on the defense of privilege: A police officer has a qualified privilege to use reasonable force to effect an arrest, provided that the means employed are not “in excess of those which the actor reasonably believes to be necessary.” Id. (quoting Etheredge v. District of Columbia, 635 A.2d 908, 916 (D.C.1993)).

1995Even if a statement is defamatory, however, it may be protected by a qualified privilege if it is “(1) made in good faith, (2) on a subject in which the party communicating has an interest, or in reference to which [she] has, or honestly believes [she] has, a duty to a person having a corresponding interest or duty, (3) to a person who has such a corresponding interest.” Moss v. Stockard, 580 A.2d 1011, 1024 (D.C.1990) (citations omitted); see Collins v. Broum, 268 F.Supp. 198, 200 (D.D.C.1967) (Holtzoff, J.) (statement is qualifiedly privileged if there is “reasonable ground” for making it, “

1979For example, one who in the regular course of business is asked by a prospective employer, or a potential creditor, for information concerning a person, is entitled to the defense of qualified privilege if his reply would otherwise be regarded as defamatory.” Collins v. Brown, 268 F.Supp. 198, 200 (D.D.C., 1967).

2000Jenkins v. United States “In order to overcome this qualified privilege, the defense must show there was some vantage point in the relevant area that would not permit a clear *861 view....” See Jenkins v. United States, 541 A.2d 1269, 1272 (D.C.1988) (citation omitted; emphasis added).

1992While Jenkins produced evidence of light posts, trees, and cars in the area, he made no positive showing that these could have precluded observation of his activities. 541 A.2d at 1272 .

1998“The communication being privileged, defendant will be presumed to have been actuated by pure motives in its publication.” Ashford v. Evening Star Newspaper Co., 41 App. D.C. 395, 405 (1914); see also Ford Motor Credit Co. v. Holland, 367 A.2d 1311, 1314 (D.C.1977) (quoting Ash-ford). 9 If malice is shown, however, then the privilege is lost. “[T]he basis, if any, for excusing dissemination of a defamatory report ... within an employment group ... is ... the existence of a qualified privilege — a privilege which can be lost if the publication occurs outside normal channels, is otherwise excess

1997Thompson II, supra, 593 A.2d at 635 (citing Bush v. Lucas, 462 U.S. 367, 391 , 103 S.Ct. 2404, 2418 , 76 L.Ed.2d 648 (1983) (Marshall, J., concurring)).

1997Thompson II, supra, 593 A.2d at 635 (citing Bush v. Lucas, 462 U.S. 367, 391 , 103 S.Ct. 2404, 2418 , 76 L.Ed.2d 648 (1983) (Marshall, J., concurring)).

1997Thompson II, supra, 593 A.2d at 635 (citing Bush v. Lucas, 462 U.S. 367, 391 , 103 S.Ct. 2404, 2418 , 76 L.Ed.2d 648 (1983) (Marshall, J., concurring)).

1980Cf. Greenya v. George Washington University, 167 U.S.App.D.C. 379, 386 , 512 F.2d 556, 563 , cert. denied, 423 U.S. 995 , 96 S.Ct. 422 , 46 L.Ed.2d 369 (1975): “It is well accepted that officers and faculty members of educational institutions enjoy a qualified privilege to discuss the qualifications and character of [colleagues] if . pertinent to the functioning of the . . . institution.” Although intent is normally a factual question for the jury, a court must determine whether the plaintiff’s allegations, viewed in the light most favorable to the plaintiff, are minimally sufficient to show t

1980Cf. Greenya v. George Washington University, 167 U.S.App.D.C. 379, 386 , 512 F.2d 556, 563 , cert. denied, 423 U.S. 995 , 96 S.Ct. 422 , 46 L.Ed.2d 369 (1975): “It is well accepted that officers and faculty members of educational institutions enjoy a qualified privilege to discuss the qualifications and character of [colleagues] if . pertinent to the functioning of the . . . institution.” Although intent is normally a factual question for the jury, a court must determine whether the plaintiff’s allegations, viewed in the light most favorable to the plaintiff, are minimally sufficient to show t