F I L E D
United States Court of Appeals
Tenth Circuit
July 13, 2007
PU BL ISH
Elisabeth A. Shumaker
UNITED STATES COURT O F APPEALS Clerk of Court
TENTH CIRCUIT
VICEN TE ALV AR AD O, YV ETTE
ALV ARA DO, STEV E FLO RES,
PR ISC ILLA FLO RES, TH O MAS
GU TIERREZ, BEVERLY
GU TIERREZ,
Plaintiffs-Appellants, No. 06-2001
v.
KOB-TV, L.L.C. (Channel 4 N ew s),
Defendant-Appellee.
Appeal from the United States District Court
for the District of New M exico
(D.C. No. CIV-05-750)
Jason Bowles, (B.J. Crow with him on the briefs) Bowles & Crow, Albuquerque,
New M exico for Plaintiffs-Appellants.
Geoffrey D. Rieder, (Travis G. Jackson, with him on the brief) Foster & Rieder,
P.C., Albuquerque, New M exico, for Defendant-Appellee.
Before KELLY, EBEL, and GORSUCH, Circuit Judges.
EBEL, Circuit Judge.
Two former undercover police officers for the City of Albuquerque brought
suit against a local television station, KOB-TV, for broadcasting their identities
and their undercover status in the context of their suspected involvement in an
alleged incident of sexual assault. The officers w ere never charged, and about a
week after the broadcasts, the city police department announced publicly that it
had concluded the officers were not involved in the alleged sexual assault. The
officers sued KOB-TV for invasion of privacy and intentional infliction of
emotional distress. The district court dismissed their claims under Fed. R. Civ. P.
12(b)(6). W hile we are sympathetic to the difficult and potentially dangerous
situation undercover officers face after having their identities revealed to the
public, we agree with the court below that the officers’ allegations do not support
a tort claim for either invasion of privacy or emotional distress. Because
Alvarado and Flores fail to state a claim upon which relief can be granted, it is
unnecessary for us to reach the issue of whether KOB-TV’s First Amendment
defense merited dismissal of the claims. Accordingly, we AFFIRM dismissal of
their claims.
I. BACKGROUND
Vicente Alvarado and Steve Flores were undercover police officers for the
City of Albuquerque in early 2004. According to the facts alleged by Alvarado
and Flores in their complaint, around M ay 3, 2004, Syra Roman called the
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Albuquerque Police Department to report that she had been sexually assaulted by
two undercover officers. The detective taking the call asked her to obtain a
physical examination and follow up with him within a couple of days, but
apparently she did neither. A week later, a detective with the police department
apprehended Roman on the basis of an outstanding warrant, and told her that, if
she gave a statement about the alleged sexual assault, she would not be booked on
that warrant. She gave the requested statement, describing her alleged assailants,
and the police department released her. A couple of weeks later, one of Roman’s
friends contacted the detective who had taken Roman’s statement. The friend
suggested that Alvarado and Flores were the two officers involved in the sexual
assault.
On June 2, a police department captain told A lvarado and Flores to report
to the deputy chief’s office about some allegations, but they were not told the
nature of those allegations. The same day, a state district judge signed warrants
to authorize searches of their homes and vehicles. The judge sealed the warrants
to the extent of Alvarado’s and Flores’s names and addresses, citing potential
endangerment to the officers and interference with investigative activities.
However, the court order sealing the warrants was not addressed to KOB-TV, nor
did it mention the press generally.
At a time uncertain, someone provided KOB-TV with information about the
sexual assault allegations and the investigation, naming Alvarado and Flores. O n
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June 3, KOB-TV ran newscasts at 6 p.m. and 10 p.m. about the investigation in
which Alvarado and Flores w ere named as being accused of the sexual assault.
KOB-TV also ran video footage of Alvarado and Flores each answering the door
to their respective homes and telling the reporter that they did not wish to
comment.
At some point, someone informed KOB-TV that Alvarado and Flores w ere
undercover narcotics officers. During the 10 p.m. newscast on June 3, KO B-TV
announced that the news station had learned they were undercover detectives and
therefore blurred their faces. However, KOB-TV did not remove their names
from that broadcast or subsequent broadcasts. KOB-TV ran coverage of the
investigation for several days and posted the news stories on the internet,
although no charges w ere brought. On June 8, KOB-TV reported that the officers
had been cleared by DNA evidence and by evidence that one of the officers was
not in the state on the day of the alleged assault. Furthermore, the accuser,
Roman, later recanted her allegations. But according to Alvarado and Flores, the
damage was done. They claim their “lives have been threatened since the time
that their names and identities were released to the general public,” and they
continue to “fear for their lives and that of their families.”
Alvarado and Flores and their respective spouses, Yvette Alvarado and
Priscilla Flores (collectively, “Plaintiffs”), brought suit against the City of
Albuquerque for defamation, false imprisonment and violations of their
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constitutional right to privacy. 1 The suit also named KOB-TV as a defendant,
alleging invasion of privacy and intentional infliction of emotional distress.
Plaintiffs specifically claimed that KOB-TV “violat[ed] a court order” and
“subject[ed] Plaintiffs . . . to serious physical harm or even death.” The City
removed the entire action to federal court because the Plaintiffs brought a claim
under 42 U.S.C. § 1983 and 5 U.S.C. § 552a(b), thus stating a federal question
providing for federal district court jurisdiction under 28 U.S.C. § 1331.
The United States District Court of the District of New M exico ruled for
KOB-TV on a Rule 12(b)(6) motion to dismiss. Alvarado v. KOB-TV, LLC, No.
05-750, slip op. (D.N.M . Nov. 14, 2005). The court held that Plaintiffs’
allegations “d[id] not meet the contours” of invasion of privacy and intentional
infliction of emotional distress. Id. at 10-13. The court concluded also that, on
1
Officer Thomas G utierrez and his wife, Beverly Gutierrez, also were
plaintiffs in the combined suit against the City of Albuquerque and KOB-TV.
The Albuquerque Police Department questioned officer Gutierrez in connection
with the alleged sexual assault, but KOB-TV did not mention him in any of its
broadcasts about the investigation. The Gutierrez Plaintiffs also appeal this
district court’s ruling, but they do not allege in their complaint or on appeal that
KOB-TV injured them. Because Article III standing requires that a plaintiff
allege an injury-in-fact that has a causal connection to the defendant and is
redressable by a favorable court decision, Opala v. W att, 454 F.3d 1154, 1157
(10th Cir. 2006), and because w e have sua sponte authority to examine A rticle III
standing, Rector v. City & County of D enver, 348 F.3d 935, 942 (10th Cir. 2003),
we hold that Thomas and Beverly Gutierrez do not have standing to bring this
appeal.
W e observe as well that after Beverly Gutierrez filed a notice of appeal, she
moved before the district court to dismiss herself from the case, and the district
court granted that motion. However, she never removed herself from this appeal.
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the facts alleged, the First Amendment would bar relief through tort law. Id.
Further, the court decided that even if the order sealing Alvarado and Flores’s
names from the search warrants applied to the media, it would have been an
unconstitutional prior restraint. Id. at 9. Because the district court concluded that
the plaintiffs’ claims against KOB-TV failed as a matter of law , it did not convert
KOB-TV’s motion to dismiss into one seeking summary judgment, despite the
fact that the parties had submitted to the court evidence outside the pleadings. Id.
at 5.
This appeal followed. W e have jurisdiction over an appeal from a final
order of dismissal from a district court, pursuant to the district court’s amended
order of dismissal under Fed. R. Civ. P. 54(b). See 28 U.S.C. § 1291.
II. D ISC USSIO N
A. Standard of Review
W e review de novo a district court’s decision on a Rule 12(b)(6) motion for
dismissal for failure to state a claim. Jojola v. Chavez, 55 F.3d 488, 490 (10th
Cir. 1995). “W e must accept all the well-pleaded allegations of the complaint as
true and must construe them in the light most favorable to the plaintiff.” David v.
City & County of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996). “W e look for
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plausibility in th[e] complaint.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955,
1970 (2007). 2
In reviewing a Rule 12(b)(6) motion to dismiss, our first step is to review
the factual allegations that should have been considered by the district court. See,
e.g., Prager v. LaFaver, 180 F.3d 1185, 1188 (10th Cir. 1999). On a Rule
12(b)(6) motion, if “matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one for summary judgment
and disposed of as provided in Rule 56, and all parties shall be given reasonable
opportunity to present all material made pertinent to such a motion by Rule 56.”
Fed. R. Civ. P. 12(b). “[I]n general, a motion to dismiss should be converted to a
2
In Bell Atlantic, the Supreme Court stated that the old standard, “a
complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief” is “best forgotten as an incomplete, negative
gloss on an accepted pleading standard.” Bell Atlantic Corp., 127 S. Ct. at 1968-
69. Although the Supreme Court was not clear on the articulation of the proper
standard for a Rule 12(b)(6) dismissal, its opinion in Bell Atlantic and its
subsequent opinion in Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), suggest
that courts should look to the specific allegations in the complaint to determine
whether they plausibly support a legal claim for relief. See Iqbal v. Hasty, 2007
U.S. App. LEXIS 13911 (2d Cir. 2007) (considering Bell Atlantic and Erickson
and concluding that a “plausibility” standard was w hat the Supreme Court
intended).
Although we now restate our Rule 12(b)(6) standard in order to bring it into
compliance with Bell Atlantic, we emphasize that in this case our decision would
be the same regardless of whether we used the old “no set of facts” standard, see,
e.g., David, 101 F.3d at 1352, or adopt either a plausibility standard or a
requirement that the complaint include factual allegations sufficient to “raise a
right to relief above the speculative level.” Bell Atlantic Corp., 127 S. Ct. at
1965.
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summary judgment motion if a party submits, and the district court considers,
materials outside the pleadings.” Prager, 180 F.3d at 1188. However,
notwithstanding the usual rule that a court should consider no evidence beyond
the pleadings on a Rule 12(b)(6) motion to dismiss, “the district court may
consider documents referred to in the complaint if the documents are central to
the plaintiff's claim and the parties do not dispute the documents’ authenticity.”
Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002). “The failure
to convert a 12(b)(6) motion to one for summary judgment where a court does not
exclude outside materials is reversible error unless the dismissal can be justified
without considering the outside materials.” G FF Corp. v. Associated W holesale
Grocers, 130 F.3d 1381, 1384 (10th Cir. 1997) (emphasis added).
In the proceedings below, Plaintiffs submitted to the district court a copy of
the court order sealing Alvarado’s and Flores’s names and addresses, and KOB-
TV submitted a certified transcript of excerpts of the audio portion of at least
some of the broadcasts in question and a DVD containing copies of those
broadcasts. In a hearing on the motion, the court acknowledged it had reviewed
the transcript of the broadcasts. KOB-TV described some aspects of the video for
the court, arguing that Flores’s image was too fuzzy to identify him, and that the
broadcasts never gave the addresses of either Flores or Alvarado. Plaintiffs
argued that they needed an opportunity to conduct discovery on “all of the
broadcasts, exactly what they . . . released,” adding that they were “not sure
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[KOB-TV] produced all of them.” Plaintiffs also argued that dismissal on a Rule
12(b)(6) motion was inappropriate because they needed discovery on “the
circumstances under which [Alvarado’s and Flores’s names were] disclosed and
what [KOB-TV] knew.”
On appeal, Alvarado and Flores argue that the district court “impermissibly
view ed all of the facts in the light most favorable to the Defendant,” and that it
ruled “prematurely” on the motion to dismiss and should have accorded them an
opportunity for “full discovery.” 3 Although the district court stated it did not rely
on the parties’ additional submissions, there would have been no error for the
court to consider the court order sealing Alvarado’s and Flores’s identities, as the
sealing order was “central” to Plaintiffs’ claims against KOB-TV and “the parties
do not dispute the document[’s] authenticity.” See id. However, the transcript
and copy of the broadcasts likely should have been excluded, since Plaintiffs
argued to the district court that KOB-TV may not have released all of the relevant
portions of the broadcasts. 4
3
Alvarado and Flores do not argue expressly that the district court should
have excluded KOB-TV’s broadcast submissions from consideration or that the
court should have converted the R ule 12(b)(6) motion to a m otion for sum mary
judgment. But because our review of a motion to dismiss is de novo, we consider
what pleadings and attachments the district court relied on for its conclusions of
law, and whether it was proper to resolve the case on a 12(b)(6) motion.
4
Although Alvarado and Flores have attached excerpts of the certified
transcript to the appellate record, “we will not consider evidence that was not
before the district court.” W ilburn v. M id-South Health Dev., Inc., 343 F.3d
(continued...)
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Yet, in this case “dismissal can be justified without considering the outside
materials,” G FF Corp., 130 F.3d at 1384, because w e agree with the district court
that, given the facts alleged in Alvardo’s and Flores’s complaint, their claims fail
as a matter of law. Therefore, any error on the part of the district court in not
excluding the broadcasts from the motion to dismiss was harmless. W e conclude
that the district court properly proceeded to dispose of the claims against KOB-
TV on a Rule 12(b)(6) motion.
B. Invasion of Privacy Claim
Alvarado and Flores allege that KOB-TV invaded their privacy by
broadcasting their names and images on local television. They claim that KOB-
TV “with negligence, gross negligence, or recklessness published private facts
about Plaintiffs and intruded into their private seclusion, thereby giving
unreasonable publicity to their private lives” and “had no newsworthiness or other
privilege” to do so. However, New M exico follows most states in defining
privacy torts strictly. W e conclude that the facts as alleged by Alvarado and
Flores cannot state a claim for invasion of privacy.
4
(...continued)
1274, 1281 (10th Cir. 2003). This rule, articulated in the context of reviewing a
lower court’s decision on summary judgment, applies with equal force to the
documents not properly before the district court on a motion to dismiss.
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New M exico recognizes the tort of invasion of privacy and its four
categories: false light, intrusion, publication of private facts, and appropriation.
Andrews v. Stallings, 892 P.2d 611, 625 (N .M . Ct. App. 1995); see also M cNutt
v. N.M . State Tribune Co., 538 P.2d 804, 807 (N.M . Ct. App. 1975)
(characterizing the four torts as having in common “the right to be let alone”).
Plaintiffs’ complaint does not specify which categories their claims fall within,
but the factual allegations relate only to the torts of intrusion and publication of
private facts. 5
“Intrusion into solitude appears to be based on the manner in which a
defendant obtains information, and not what a defendant later does with the
information, which is covered by the public-disclosure-of-private-facts branch.”
Fernandez-W ells v. Beauvais, 983 P.2d 1006, 1010 (N.M . Ct. App. 1999); see
also M oore, 881 P.2d at 743 (commenting, in dictum, that intrusion is “distinct
from but related to trespass,” and “involves an invasion of the plaintiff's ‘private’
space or solitude – eavesdropping on private conversations or peeping through the
bedroom window, for example” (quotation omitted)); M cNutt, 538 P.2d at 808
(defining the tort as an “intrusion upon the plaintiff’s physical solitude or
5
Alvarado and Flores do not allege that KOB-TV published false
information about the sexual assault allegations (only that the allegations
themselves were false), nor that KOB-TV appropriated their image for
commercial purposes. See M oore v. Sun Publ’g Corp., 881 P.2d 735, 743 (N .M .
Ct. App. 1994) (elaborating on the required elements of false light and
appropriation).
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seclusion or into his private affairs” (alterations, quotation omitted)). New
M exico has not outlined the specific contours of this particular tort. Therefore,
we follow the lead of New M exico courts defining privacy torts generally, see,
e.g., M cNutt, 538 P.2d at 808, and M oore, 881 P.2d at 743, and thus look for
guidance to Prosser & Keeton on Torts (W . Page Keeton ed. 5th ed. 1984)
(hereinafter “Prosser & Keeton”) and the Restatement (Second) of Torts
(“Restatement”).
The comments to the Restatement are particularly helpful, suggesting that
the tort of intrusion becomes actionable only when it is deemed “highly offensive
to a reasonable person,” and usually involves a physical invasion into someone’s
space. Restatement § 652B & cmts. b and d. “The invasion may be by physical
intrusion into a place in which the plaintiff has secluded himself, as when the
defendant forces his way into the plaintiff's room in a hotel or insists over the
plaintiff's objection in entering his home.” Id. cmt. b. “[T]here is no liability for
knocking at the plaintiff's door, or calling him to the telephone on one occasion or
even two or three, to demand payment of a debt. It is only when the telephone
calls are repeated with such persistence and frequency as to amount to a course of
hounding the plaintiff, that becomes a substantial burden to his existence, that his
privacy is invaded.” Id. cmt. d; see also Prosser & Keeton § 117, at 855 (“[t]here
is no tort when the landlord stops by on Sunday morning to ask for the rent”).
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Alvarado and Flores do not allege that KOB-TV reporters tried to badger
their way into the officers’ homes, or that they repeatedly approached the
Alvarado and Flores at home. Although the tort of intrusion may be implicated
“when the plaintiff . . . is merely in the seclusion of his home,” id. at 856,
Alvarado and Flores do not claim that KOB-TV obtained footage through their
windows or other intrusive means. 6 The facts as alleged by Alvarado and Flores
simply cannot give rise to the claim of intrusion upon seclusion, and thus the
district court properly dismissed this claim.
The appellants likewise fail to state a claim for the alternate theory of
invasion of privacy – public disclosure of private facts. The tort of public
disclosure is defined in New M exico as “disclosure which would be objectionable
to a reasonable person, and a lack of legitimate public interest in the
information.” Fernandez-W ells, 983 P.2d at 1008 (citing Prosser & Keeton § 117,
at 856-57 and Restatement § 652D). 7 Unlike defamation, there is no requirement
that the publicized information be false. M cNutt, 538 P.2d at 808 (citing Prosser
6
W ere we to consider, in addition to the pleadings, the broadcasts
themselves in reviewing this appeal from a motion to dismiss, we would note that
both A lvarado and Flores answered and opened their respective front doors,
where a KOB-TV reporter and TV camera waited. As such, they voluntarily acted
to bring themselves temporarily out of the seclusion of their homes. See
Restatement § 652B cmt. c and d (“Nor is there liability for observing him or
even taking his photograph while he is walking on the public highway;” “[t]here
is no liability for knocking at the plaintiff's door.”).
7
Publicity also is an element of public disclosure of private facts, which
obviously is met here. See Fernandez-W ells, 983 P.2d at 1008.
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§ 117). The tort of publication of private facts “involves the publication of true
but intimate or private facts about the plaintiff, such as matters concerning the
plaintiff's sexual life or health.” M oore, 881 P.2d at 743 (quotation omitted).
The questions, then, are whether the disclosures of publication of the
following facts, which Alvarado and Flores allege KOB-TV broadcast, would be
objectionable to a reasonable person, and whether there is a lack of legitimate
public interest in the information:
• Alvarado’s and Flores’s names;
• their home addresses, by virtue of film footage of each plaintiff answering
his door at home, under appellants’ theory that Albuquerque’s
neighborhoods are very unique and it would be easy to identify where
someone lived by such footage;
• what they look like/their personal appearance, by virtue of the same film
footage; and
• the fact that Flores and Alvarado were undercover police officers for the
Albuquerque Police Department.
A New M exico appellate court dealt with a somewhat similar fact pattern in
M cNutt. There, police officers engaged in a gun battle with two members of a
group known as the “Black Berets” and killed both of them. 538 P.2d at 806. A
new spaper printed the names and addresses of the officers, allegedly “because
they would not cooperate in giving the details” about the incident. Id. at 807.
After the article was published, several officers and members of their families
received threatening phone calls. Id. The M cNutt court concluded that the
officers’ addresses were not, as a matter of law, “private facts.” Id. at 808.
Because “[t]he address of most persons appears in many public records . . . which
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are available to public inspection,” “an individual’s home address is a public fact
and . . . its mere publication, without more, cannot be viewed as an invasion of
privacy.” Id. Likewise, a person’s image in and of itself is not a “private fact.”
Some commentators suggest that while pictures made of someone “without [their]
consent in a private place” may trigger liability, “anything visible in a public
place can be recorded and given circulation by means of a photograph.” Prosser
& Keeton § 117 at 859. 8 But Plaintiffs’ complaint here does not allege that KOB-
TV obtained images of Alvarado and Flores w ithout their consent or in a private
place.
However, Alvarado and Flores allege public disclosure of a unique private
fact – their status as undercover officers. The M cNutt court had reasoned that
“[t]he plaintiff cannot complain when an occupation in which he publicly engages
is called to public attention,” 538 P.2d at 808 (quotation omitted), but here the
appellants were not “publicly engage[d]” in being undercover police officers.
Alvarado and Flores argue that undercover officers face special risks in that, if
their identities are revealed, they are more likely than publicly-known officers to
8
The Fifth Edition of Prosser & Keeton cautions readers that “m erely
because a fact is one that occurred at a public place . . . or merely because it can
be found in a public record, does not mean that it should receive widespread
publicity if it does not involve a matter of public concern.” § 117 at 859.
However, we look first to N ew M exico cases as the source of N ew M exico tort
law, and the M cNutt court relied on the availability of names and addresses in the
public record in concluding that the officers failed to state a claim. In any event,
we conclude that reporting on alleged misconduct of police officers is a “matter
of public concern.” See infra.
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be targets for revenge. In fact, they allege that they received threats as a result of
the broadcasts. Publicity of this kind of information is “objectionable to a
reasonable person.”
For Alvarado and Flores to state a claim under the tort of public disclosure
of private facts, they must allege a lack of a legitimate public interest. “[N]ot all
matters are of legitimate public interest.” Gilbert v. M edical Econs. Co., 665
F.2d 305, 307 (10th Cir. 1981) (applying Colorado law). In Gilbert, we endorsed
the position taken by the R estatement (Second) of Torts on what type of matters
are of public interest:
The line is to be drawn w hen the publicity ceases to be the giving of
information to which the public is entitled, and becomes a morbid and
sensational prying into private lives for its own sake with which a
reasonable member of the public, with decent standards, would say that
he had no concern.
Id. at 307-08 (quoting Rest. § 652D cmt. h). As New M exico courts also rely on
the Restatement to define the contours of public disclosure of private facts, we
believe they would agree.
Courts have generally treated allegations of police misconduct as worthy of
public interest. See, e.g., Cowles Publ’g Co. v. W ash. State Patrol, 748 P.2d 597,
605 (W ash. 1988) (“W e . . . conclude that a law enforcement officer's actions
while performing his public duties or improper off duty actions in public which
bear upon his ability to perform his public office do not fall within the activities
to be protected under the Comment [h] to § 652D of Restatement (Second) of
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Torts as a matter of ‘personal privacy.’”); Santillo v. Phila. Newspapers, Inc., 21
Pa. D. & C. 4th 413, 419 (Pa. Com. Pl. 1993) (“Police officers have no valid basis
for believing that criminal conduct committed by them in their official capacity
will not be publicized for all to read.”).
To the extent First Amendment law informs our determination of whether
Alvarado and Flores can allege facts showing that publicity of their identities and
undercover status in the context of the alleged sexual assault was not a matter of
public interest, we are among a number of courts that have found that police
misconduct allegations specifically and officer qualifications generally are a
matter of public interest in First Amendment analyses. 9
9
Because we hold that Alvarado and Flores’s claims must be dismissed for
failure to state a claim, we do not reach the question of w hether KOB-TV ’s First
Amendment defense would bar their claims. See United States v. Cusumano, 83
F.3d 1247, 1250 (10th Cir. 1996) (en banc) (“[F]ederal courts should address
constitutional questions only when necessary to a resolution of the case or
controversy before it.”).
However, we observe that state law now defines torts involving publication
to take into account First Amendment restrictions announced by the Supreme
Court. See, e.g., Newberry v. Allied Stores, Inc., 773 P.2d 1231, 1236 (N .M .
1989); see also Restatement § 652D, Special Note. Specifically, the
determination of what is a “legitimate concern to the public” often dovetails w ith
the explanation for “public official” designations for purposes of analyzing a
publisher’s First Amendment defense. See New York Times Co. v. Sullivan, 376
U.S. 254, 282-83 (1964) (holding that under the First Amendment, published
criticism of a public official in matters that are of interest to the public is not
actionable absent actual malice on the part of the publisher); Garrison v.
Louisiana, 379 U.S. 64, 77 (1964) (“The New York Times . . . public-official rule
protects the paramount public interest in a free flow of information to the people
concerning public officials, their servants. To this end, anything which might
touch on an official's fitness for office is relevant. Few personal attributes are
(continued...)
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Street level policemen . . . [have] such apparent importance that the
public has an independent interest in the qualifications and performance
of the person who holds [such a position] . . . . M isuse of his authority
can result in significant deprivation of constitutional rights and personal
freedoms, not to mention bodily injury and financial loss. The strong
public interest in ensuring open discussion and criticism of his
qualifications and job performance w arrant the conclusion that he is a
public official.
Gray v. Udevitz, 656 F.2d 588, 591 (10th Cir. 1981) (quotation omitted). See
also M einers v. M oriarity, 563 F.2d 343, 352 (7th Cir. 1977) (“The public is
certainly interested in an important and special way in the qualifications and
performance of federal agents, such as the defendants here, whose decisions to
search and to arrest directly and personally affect individual freedoms.”); Coursey
v. Greater Niles Twp. Publ’g Corp., 239 N.E.2d 837, 841 (Ill. 1968) (noting that
“the public has a far greater interest in the qualifications and conduct of law
enforcement officers, even at, and perhaps especially at, an ‘on the street’ level”).
An officer’s alleged involvement in a sexual assault, even if off-duty, surely bears
upon his or her qualifications and fitness to be a police officer. Publicity of
undercover police officers allegedly involved in a sexual assault thus qualifies as
a matter of public interest in First Amendment law , and we have no reason to
perceive a significant difference in New M exico tort law.
9
(...continued)
more germane to fitness for office than dishonesty, malfeasance, or improper
motivation, even though these characteristics may also affect the official's private
character.”).
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Therefore, Alvarado and Flores’s privacy claim hinges on a proposed
exception for undercover officers, i.e., that disclosure of their identities “lacks
legitimate public interest” as a matter of law. W e can find no precedent for such
an exception, and we are not inclined to create one here merely on policy
grounds, despite our concerns about the safety of undercover officers and the
need to avoid disincentives for entering their profession.
There are many individuals who enter official roles knowing that there are
inherent risks in doing so. All police officers, not just those undercover, face a
risk of violent retaliation simply by having their names associated w ith an arrest
or investigation. It would be impossible for courts to quantify the amount of risk
that a person faces in having his or her name in the news, and to carve out an
exception on that basis for purposes of tort law. In addition to the difficulty w e
would face in applying such a rule, we observe that such an exception could run
afoul of the First Amendment.
Alvarado and Flores point to a federal law, 50 U.S.C. § 421, that
criminalizes disclosure of the identity of covert intelligence agents as support for
a policy exception for undercover officers generally. However, 50 U.S.C. § 421
only criminalizes the disclosure of the identity of federal (not city or state)
undercover agents, and only when that disclosure comes from someone who “had
authorized access to classified information that identifies a covert agent,” had
authorized access to classified information and “learns the identity of a covert
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agent,” or was engaged in “a pattern of activities intended to identify and expose
covert agents.” In other words, Congress arguably has not significantly
implicated the public’s interest in an open discussion of law enforcement
personnel, because the law only applies to disclosure by someone who had
authorized access to classified information (e.g., a government official) or
someone engaged in a “pattern” with the intention of exposing agents. Section
421 does not represent a national policy of criminalizing publicity of a covert
agent’s identity. If New M exico’s tort law is to be expanded to assign liability
for such conduct, it will be up to New M exico to do so. Indeed, our exercise in
judicial restraint ought not to be misread as an effort to preclude the people of the
State of New M exico from deciding for themselves w hether to assign liability in
tort to the public disclosure of the names or appearance of undercover police
officers. To be sure, any rule of law adopted in this area would implicate core
and vital First Amendment values, and it is far from clear whether and how such a
law might coexist with the freedom of the press. But any foray into these thickets
is, in the first instance, for the instruments of government in the State of New
M exico, not us, and therefore are not issues we need reach today.
M oreover, courts have not defined the tort of public disclosure of private
facts in a way that would obligate a publisher to parse out concededly public
interest information, e.g., sexual assault allegations against two members of the
police department, from allegedly private facts, e.g., the officers’ identities and
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undercover status. W e have held that publication of a person’s photograph and
name w as in the public interest when it was “substantially relevant to a
newsworthy topic,” in that case, medical malpractice, and because the additional
identifying information “strengthen[ed] the impact and credibility of the article.”
Gilbert, 665 F.2d at 308. Other courts also appear to give “public interest” status
to new s material on an aggregate basis, rather than itemizing what in the news
report would qualify and what could remain private. See, e.g., Ross v. M idw est
Commc’ns, Inc., 870 F.2d 271, 274-75 (5th Cir. 1989) (ruling on a privacy claim
where a television show about the potential innocence of an accused rapist used a
rape victim’s first name and photograph of her house at the time of the rape,
holding that not only was the story behind the rape “a matter of legitimate public
interest,” but also using her name and picture of her residence helped “persuade
the public, and in turn authorities, to a particular view of particular incidents”).
In short, for Alvarado and Flores to state a claim under the tort of public
disclosure of private facts, they must be able to allege facts from which we could
conclude that the publication was not in the public interest. Because allegations
of police misconduct are in the public interest, and because there is no exception
in the law for undercover officers, Alvarado’s and Flores’s claim cannot survive a
Rule 12(b)(6) motion to dismiss.
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C. Claim s for Intentional Infliction of Em otional Distress
Alvarado and Flores also fail to state a claim for intentional infliction of
emotional distress, a tort that requires extreme conduct on the part of the
defendant. Even if we assume KOB-TV was aware of the sealing order shielding
Alvarado’s and Flores’s identities from the search warrants, we cannot conclude
as a matter of law that KOB-TV’s actions qualify for the type of conduct that
could trigger liability under a claim of intentional infliction of emotional distress.
New M exico law follows the Restatement (Second) of Torts § 46 in
defining the tort of intentional infliction of emotional distress:
One who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for
such em otional distress, and if bodily harm to the other results from it,
for such bodily harm. The extreme and outrageous conduct must be so
outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.
Newberry v. Allied Stores, Inc., 773 P.2d 1231, 1239 (N.M . 1989) (quotation
omitted). According to the Restatement, the tort is actionable for reckless
conduct, 10 defined as “deliberate disregard of a high degree of probability that the
emotional distress will follow,” “and also where he knows that such distress is
10
It is not clear that New M exico recognizes the recklessness standard for
this tort, but cases have referred to that standard in dicta. See, e.g., Andrews, 892
P.2d at 624; Akutagawa v. Laflin, Pick & Heer, P.A., 126 P.3d 1138, 1143-44
(N.M . Ct. App. 2005). Because we hold that KOB-TV’s conduct does not trigger
liability even under that lower standard, we need not decide whether New M exico
courts would apply it.
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certain, or substantially certain, to result from his conduct.” Restatement
(Second) of Torts § 46 cmt. i. “A s a threshold matter, the trial court should
determine as a matter of law whether the conduct at issue reasonably may be
regarded as so extreme and outrageous that it will permit recovery under the tort
of intentional infliction of emotional distress.” Trujillo v. N. Rio Arriba Elec.
Coop., 41 P.3d 333, 343 (N.M . 2001) (quotation omitted). “W hen reasonable
persons may differ on that question, it is for the jury to decide, subject to the
oversight of the court.” Id. (quotation omitted).
Courts regularly hold that upsetting but true news reports do not constitute
conduct so extreme and outrageous as to permit recovery. Specifically, a New
M exico court has stated that “[a]s a general proposition, accurate publication of
newsworthy events does not give rise to a cause of action for intentional infliction
of emotional distress.” Andrews, 892 P.2d at 625. Other courts agree. See, e.g.,
Lowe v. Hearst Commc’ns, Inc., 414 F. Supp. 2d 669, 676 (W .D. Tex. 2006)
(concluding that the “[p]ublication of truthful, albeit embarrassing, information
has again and again been determined not to constitute extreme and outrageous
conduct”); Conroy v. Kilzer, 789 F. Supp. 1457, 1468 (D. M inn. 1992) (holding
that statements that “accuse a public official of misconduct” are not “as a matter
of law . . . sufficiently extreme and outrageous”); M unoz v. Am. Lawyer M edia,
L.P., 512 S.E.2d 347, 351 (Ga. Ct. App. 1999) (concluding that “the tort of
intentional infliction of emotional distress will not provide a remedy to a plaintiff
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when the news media truthfully reports an actual newsworthy event, even if the
event was so insulting as naturally to humiliate, embarrass or frighten the
plaintiff”). 11 Although this rule of thumb is at least in part a reflection of First
Amendment constraints on tort law, see, e.g., Howell v. N.Y. Post Co., 612
N.E.2d 699, 705 (N.Y. 1993), it also serves to help the court “determine as a
matter of law” whether the complained-of publication is “so extreme and
outrageous,” Trujillo, 41 P.3d at 343, as to give rise to liability.
New M exico courts generally have construed the tort of intentional
infliction of emotional distress narrowly in the context of press coverage. One
11
W e note, however, that the Fourth Circuit has reversed dismissal of an
intentional infliction of emotional distress claim based on news reports, holding
that “[d]epending upon the circumstances surrounding the publication and the
nature of the defamatory charge, a defamatory publication could be so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of
decency.” Hatfill v. New York Times Co., 416 F.3d 320, 336 (4th Cir. 2005)
(quotation omitted). The New York Times had identified the plaintiff as being
suspected of involvement in anthrax mailings and published columns comm enting
directly on the suspect – not just the investigation. Id. at 325-28. The Fourth
Circuit held that the plaintiff’s allegations supported a claim for intentional
infliction of emotional distress, even if “the relevant constitutional limitations”
eventually could bar the claim. Id. at 336-37.
W e likew ise do not find that New M exico has a per se rule that prohibits a
claim of intentional infliction of emotional distress if it is based on the
publication of news reports. The “general proposition” announced in A ndrews,
892 P.2d at 625, that “accurate publication of newsworthy events does not give
rise to a cause of action for intentional infliction of emotional distress,” is not
tantamount to a categorical bar. Instead, we conclude that Alvarado and Flores
fail to state a claim because they have not alleged facts upon which “reasonable
persons [could] differ,” Trujillo, 41 P.3d at 343, as to whether the material in
KOB-TV’s broadcasts or KOB-TV’s news-gathering methods were extreme or
outrageous.
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New M exico court concluded that there was no intentional infliction of emotional
distress when a newspaper reported on the plaintiff’s controversial land purchase,
resulting in a zoning dispute that created title problems, and then published an
article suggesting that the plaintiff, a local politician, might sue his own village
over the zoning dispute. Andrew s, 892 P.2d at 625. The A ndrew s court
concluded that news coverage of zoning requests and politicians’ statements could
not be “beyond all bounds of decency” or “utterly intolerable,” and therefore
could not form the basis of an emotional distress claim. Id. Likewise, the federal
district court in New M exico declined to allow a claim when Business Week
magazine published an article referring to a former business leader’s transsexual
status. “[T]he references to Plaintiff's transsexual status w ere highly relevant to
the central inquiry of the article. In short, there is nothing extreme or outrageous
about Defendants' conduct.” Schuler v. M cGraw-Hill Cos., 989 F. Supp. 1377,
1391 (D .N.M . 1997), aff’d 145 F.3d 1346, 10th Cir. 1998 (table).
The mere broadcast of Alvarado’s and Flores’s identities and undercover
status, as facts revealed in the course of “accurate publication of newsworthy
events,” is not actionable as intentional infliction of emotional distress. Andrews,
892 P.2d at 625. But Alvarado and Flores argue that KOB-TV acted outrageously
by broadcasting their names and the fact that they were undercover police officers
repeatedly for four days even after being advised of their covert status, and
possibly after learning of the risks of that publicity or the fact that a court had
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sealed documents relating to their undercover status. Alvarado and Flores contend
that this conduct is actionable as intentional infliction of emotional distress, and
argue that further discovery was warranted to ascertain whether KOB-TV knew of
the court order sealing Alvarado’s and Flores’s names.
But even if publishers are aware that their actions could result in third
parties making threats to the individuals identified in the news, courts considering
the issue generally find that publishing news under those circumstances is not
conduct “beyond all possible bounds of decency,” “atrocious,” or “utterly
intolerable.” The Sixth Circuit found a plaintiff could not create a jury question
on the issue of intentional infliction of emotional distress w hen two reporters
published photographs of an undercover officer, one of them captioned “Know
Your Enemies,” accompanied by a “news article decrying the activities of
undercover narcs in the Ann Arbor area.” Ross v. Burns, 612 F.2d 271, 272 (6th
Cir. 1980). Even though the court seemed skeptical of the article’s
newsw orthiness, the court concluded that “[w]e cannot believe that these acts fall
within the meaning of ‘extreme and outrageous’ conduct contemplated by the
drafters of the Restatement.” Id. at 724. In another example, the media revealed
the identity of a foreign judge who was threatened by a Colombian drug cartel
and had taken up a quiet residence in Detroit. A state court found that
“defendants’ conduct was not so outrageous or extreme to establish liability in
tort in light of the fact that plaintiffs used their own names and did not attempt to
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completely hide their identities while in D etroit.” Duran v. The Detroit News,
Inc., 504 N.W .2d 715, 720 (M ich. Ct. App. 1993).
It is true that courts sometimes need the benefit of additional discovery to
decide whether the content and reasonableness of a defendant’s alleged conduct
falls within the tort of intentional infliction of emotional distress. See, e.g.,
Parnell v. Booth Newspapers, Inc., 572 F. Supp. 909, 920 (W .D. M ich. 1983)
(declining to grant summary judgment on an emotional distress claim against a
newspaper that published photos of the plaintiff in news articles on prostitution,
contrasting its decision with that in Ross w here “the ruling was on a motion for a
judgment n.o.v.”). However, we conclude that even if KOB-TV knew about the
court order sealing Alvarado’s and Flores’s identities from the search w arrants,
KOB-TV’s broadcasts would not have been “so outrageous” as to be actionable.
Significantly, the order is not directed at the news media generally nor at KOB-
TV specifically. 12
M ore importantly, Alvarado and Flores do not allege that KOB-TV knew of
any actual or likely threats against the undercover agents. Instead, under the facts
put forth by Alvarado and Flores, KOB-TV at most was aware only of the
inherent risks involved with publicizing the names and pictures of undercover
12
At the district court hearing on the motion to dismiss, Plaintiffs conceded
that the court sealing order was not directed at the media and argued that it was
merely “an additional fact” for the court to consider.
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officers. That imputed knowledge hardly equates with recklessly or intentionally
causing severe emotional distress.
In short, the weight of authority suggests that accurate news reporting –
even when it is likely to have an adverse impact on the subjects of the report –
usually does not give rise to an action for intentional infliction of emotional
distress, and Alvarado and Flores have alleged no facts that support an exception
to the general rule. W e affirm dismissal of this claim.
III. C ON CLU SIO N
Although we appreciate the risks faced by undercover agents such as
Alvarado and Flores, tort law sets a high bar for invasion of privacy and
intentional infliction of emotional distress claims. The district court correctly
concluded that the Appellants here failed to state a claim, and therefore dismissal
under Rule 12(b)(6) was proper. W e AFFIRM the decision of the district court.
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