DAVID C. YOUNG, Plaintiff-Appellant,
TODD J. WILHAM and JOURNAL PUBLISHING COMPANY, Defendants-Appellees.
FROM THE DISTRICT COURT OF BERNALILLO COUNTY Valerie Huling,
Stephen E. Lane Albuquerque, NM Vega Lynn Law Offices, LLC
Rosario D. Vega Lynn Albuquerque, NM for Appellant
Peifer, Hanson & Mullins, P.A. Charles R. Peifer Lauren
Keefe Gregory P. Williams Albuquerque, NM for Appellees
MILES HANISEE, Judge.
Plaintiff David Young brought defamation and false light
invasion of privacy claims against Defendants Todd Wilham and
Journal Publishing Company concerning a number of statements
contained within articles written by Wilham, a reporter, and
published in the Albuquerque Journal (the
Journal), a local newspaper for which he worked. The
articles questioned aspects of Plaintiff's dichotomous
service to the Albuquerque Police Department (APD) as a paid
civilian employee and an unpaid reserve officer. The district
court dismissed some of Plaintiff's claims pertaining to
the published statements under Rule 1-012(B)(6) NMRA and
granted Defendants summary judgment on the others. Plaintiff
appeals both dispositive orders. He also appeals the district
court's legal conclusion that he is a public official
who, under New York Times Co. v. Sullivan, 376 U.S.
254, 283-86 (1964), must prove Defendants acted with
"actual malice" in publishing the challenged
articles. Plaintiff also contends that rejection of his
claims deprives him of heightened protections afforded only
by the New Mexico Constitution. We affirm.
Plaintiff was employed as a civilian by APD. Beginning in
1999, he was assigned to APD's Special Investigations
Division (SID) as a fleet manager and certified technical
specialist. Plaintiff was responsible for setting up and
monitoring electronic surveillance in support of SID
operations, during which he frequently worked alongside
detectives in the field. When this sparked safety concerns,
the SID commander asked that Plaintiff be trained as a
reserve officer so that he could carry a gun and a badge when
assisting with field operations. In 2005 Plaintiff resumed
work with SID as a civilian technician, certified also to act
as a reserve officer during SID operations. At the time, SID
was short two detectives, so a supervisory APD lieutenant
obtained authorization for Plaintiff to assist SID in a
tactical capacity during enforcement activities.
In this arrangement, Plaintiff (as a civilian employee) set
up and monitored electronic surveillance for SID operations,
and also (as a reserve officer) performed undercover
detective work when asked to do so by SID supervisors.
According to one such supervisor, it was not uncommon for
Plaintiff to switch between both roles in the same SID
operation. Plaintiff was entitled to be paid for the work he
performed as a civilian technician, but reserve officers are
volunteers who receive no pay for their work. Yet there is no
dispute that neither Plaintiff nor SID supervisors adequately
documented the amount of time Plaintiff spent performing each
of his roles. According to Plaintiff, he accounted for
reserve officer time by adjusting his time sheets, deducting
that time he spent performing reserve officer duties from the
total time he recorded in a given shift. For example, if
Plaintiff worked until one o'clock in the morning and had
spent one hour performing reserve officer duties, he would
record on his time sheet that he had only worked until
midnight. Thus, Plaintiff explained that the civilian duties
for which he was paid as an APD employee were in fact
differentiated from his unpaid volunteer activities as a
reserve officer. However, Plaintiff's time sheets did not
show any deductions, and there were no "other
contemporaneous records" reflecting the differentiation
between Plaintiff's paid and unpaid overtime activities.
Reporting for the Journal, Defendant Wilham obtained
Plaintiff's time sheets and payroll information through a
public records request. Wilham also obtained court and arrest
records from the operations in which Plaintiff participated.
Upon his comparison of the documents, Wilham concluded that
Plaintiff had been impermissibly paid for performing reserve
officer duties, including instances in which he made
arrests-a function not allowed reserve officers. That is
because the dates and times when Plaintiff recorded making
arrests overlapped with time periods for which Plaintiff
reported and was paid overtime. To allow "time for . . .
[APD] to start an independent investigation and to figure out
what [Plaintiff's] status was before any story was
published[, ]" Wilham provided the information he had
gathered to APD's police chief, Ray Schultz, one week
before the first article was published. Wilham also made
three requests of APD for additional documents, but it was
only after publication of his first story that APD responded.
Also prior to publication, Wilham contacted APD's public
information officer to request an interview with Plaintiff
and unsuccessfully attempted to contact Plaintiff directly.
Wilham eventually spoke with Plaintiff's attorney, but
Plaintiff never responded to Wilham and no interview with
Plaintiff was arranged by APD. In fact, APD ordered Plaintiff
and his supervisors not to speak with Wilham and told them
that "Chief Schultz was going to handle it."
Between August 19, 2009, and October 20, 2009, the
Journal published a series of articles concerning
Plaintiff and the APD reserve officer program. Earlier
articles focused on Plaintiff's reserve officer
activities-stating that Plaintiff made arrests and collected
overtime pay for doing police work-in the context of
explaining that state law and city ordinance prohibited
reserve officers from making arrests and being paid for
reserve-related work. Later articles reported on APD's
reserve officer program more generally, including APD's
temporary suspension of it and changes APD made to it
subsequent to an internal investigation. The Journal
published additional aspects of the story as its series
evolved, including that many of the cases based on arrests
Plaintiff made had been dismissed, the "cozy"
relationship between Plaintiff and high-ranking APD
officials, and the $175, 000 settlement the city paid to
three women who had been arrested by Plaintiff.
In 2012 Plaintiff sued Defendants, seeking damages for
defamation and false light invasion of privacy. Plaintiff
claimed that the published articles defamed him by: (1)
characterizing him as a "wannabe cop, " (2) stating
that he fraudulently collected pay for reserve officer
activities, (3) stating that he lacked proper training to
perform police functions, (4) stating that he had committed
illegal and unethical conduct, (5) stating that he was not a
police officer, (6) asserting that he had violated APD
standard operating procedures and New Mexico law in actions
as a reserve officer, (7) asserting that he had engaged in
misconduct in his work as a reserve officer, and (8)
suggesting that he was responsible for the suspension of the
APD reserve officer program. Plaintiff also claimed that
Defendants "placed him before the public in a false
light by . . . labeling [him as] a 'wannabe cop[, ]'
. . . stating that he had collected overtime pay for
perform[ing r]eserve [o]fficer duties[, ] and attempting to
portray him as unqualified to perform police functions."
Defendants moved to dismiss the entirety of Plaintiff's
complaint for failure to state a claim pursuant to Rule
1-012(B)(6). The district court granted Defendants'
motion in part, allowing Plaintiff to proceed only with his
claims of defamation and false light invasion of privacy
"aris[ing] from Defendants' statements concerning
Plaintiff's collection of overtime pay and the related
statements concerning Plaintiff's collection of overtime
pay while making arrests and performing police work."
Following discovery, Defendants moved for summary judgment.
Finding that Plaintiff was a public official and thus
applying the actual malice standard set forth in New York
Times Co., the district court granted Defendants'
motion because Plaintiff produced no evidence that Defendants
acted with actual malice. This appeal followed.
On appeal, Plaintiff argues that the district court committed
reversible error when it: (1) deemed Plaintiff a "public
official" required to establish "actual
malice" in order to succeed on his claims of defamation
and false light, (2) applied Rule 1-012(B)(6) to dismiss
Plaintiff's defamation and false light claims arising
from Defendants' characterization of Plaintiff as a
"wannabe cop, " (3) granted Defendants summary
judgment on the remaining claims, and (4) failed to afford
Plaintiff protections conferred by the New Mexico
District Court Properly Found That Plaintiff Is a Public
Official and That the New York Times Co.
"Actual Malice" Standard Applies to Both His
Defamation and False Light Claims
Whether a plaintiff is a public official is a question of law
that we review de novo. See Marchiondo v. Brown,
1982-NMSC-076, ¶ 24, 98 N.M. 394, 649 P.2d 462; see
also Davis v. Devon Energy Corp., 2009-NMSC-048, ¶
12, 147 N.M. 157, 218 P.3d 75. "Ascertaining the status
of [a] plaintiff is necessary since it dictates the standard
of proof applicable in the law suit." Coronado
Credit Union v. KOAT Television, Inc.,
1982-NMCA-176, ¶ 33, 99 N.M. 233, 656 P.2d 896. A
private plaintiff need only prove that the defendant acted
negligently in publishing a defamatory statement, see
Newberry v. Allied Stores, Inc., 1989-NMSC-024, ¶
17, 108 N.M. 424, 773 P.2d 1231, whereas a public official
must prove that the defendant acted with actual malice.
New York Times Co., 376 U.S. at 279-80. This heavier
burden on "public official" plaintiffs reflects
"a profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and
wide-open, and that it may well include vehement, caustic,
and sometimes unpleasantly sharp attacks on government and
public officials." Id. at 270. Notably for
purposes of this appeal, plaintiffs deemed public officials
"must hurdle the same constitutionally-based limitations
on false light recovery as apply to defamation claims."
Andrews v. Stallings, 1995-NMCA-015, ¶
59, 119 N.M. 478, 892 P.2d 611; see also Restatement
(Second) of Torts § 652E (1977) (providing that a false
light claim is actionable only if "the actor had
knowledge of or acted in reckless disregard as to the falsity
of the publicized matter and the false light in which the
other would be placed"); see also id. cmt. d
(explaining that in Time, Inc. v. Hill, 385 U.S. 374
(1967), the United States Supreme Court "held that the
rule of New York Times Co. . . . also applies to
false-light cases" and that despite some uncertainty as
to the state of Time, Inc. as applied to private
individuals after Gertz v. Robert Welch,
Inc., 418 U.S. 323 (1974), "the
reckless-disregard rule would [still] apply if the plaintiff
is a public official or public figure").
While Plaintiff concedes that New Mexico case law clearly
establishes that police officers are public officials for
purposes of defamation claims, see Ammerman v. Hubbard
Broadcasting, Inc., 1977-NMCA-127, ¶ 12, 91 N.M.
250, 572 P.2d 1258, he argues that the district court erred
in classifying him as a public official because as a
reserve officer, he lacked the status or authority
characteristic of public officials. We are not persuaded.
In Ammerman, this Court recognized police officers
"from the lowest to the highest rank" as public
officials, citing with approval state court cases from across
the country holding patrolmen to be public officials.
Id. As one such court explained, although patrolmen
are "the lowest in rank of police officials[, ]"
their "duties are peculiarly governmental in character
and highly charged with the public interest."
Coursey v. Greater Niles Twp. Pub. Corp., 239 N.E.2d
837, 841 (Ill. 1968) (internal quotation marks omitted). The
Coursey court reasoned that "[t]he abuse of a
patrolman's office can have great potentiality for social
harm; hence, public discussion and public criticism directed
towards the performance of that office cannot
constitutionally be inhibited by threat of prosecution under
[s]tate libel laws." Id. And the Tenth Circuit
The cop on the beat is the member of the department who is
most visible to the public. He possesses both the authority
and the ability to exercise force. Misuse of this authority
can result in significant deprivation of constitutional
rights and personal freedoms . . . . The strong public
interest in ensuring open discussion and criticism of his
qualifications and job performance warrant the conclusion
that he is a public official.
Gray v. Udevitz, 656 F.2d 588, 591 (10th Cir. 1981).
Thus, it is the plaintiff officer's influence,
responsibility, and control-and, critically, the potential
abuse thereof-rather than his title, level of certification,
or visibility that justifies his designation as a
"public official" for defamation and false light
purposes. See Britton v. Koep, 470 N.W.2d
518, 522-24 (Minn. 1991) (holding that a probation officer
was a "public official" based on the fact that
under state law, probation officers possessed authority
similar to police officers and because "[t]he same
opportunity to exploit the probation officer's official
position exists . . . as for other peace officers").
Despite his concurrent status as a civilian employee and
reserve officer, Plaintiff was a commissioned, sworn law
enforcement officer who wore a department-issued uniform when
performing his reserve officer duties. He was issued a
detective badge and assigned by APD to perform undercover
detective work. He carried a gun, made arrests, identified
himself as an officer or detective in criminal complaints,
and appeared in court as such. It was precisely
Plaintiff's conduct as a reserve officer-specifically
carrying a detective badge, announcing his status as a
detective, and making arrests while appearing to be paid, all
of which were beyond Plaintiff's authority-that was the
subject of Defendants' reporting.
Plaintiff's view that even if Ammerman applies
to him it would only be "to the times [Plaintiff] was
operating as a reserve officer and not when he was operating
as a civilian employed by APD" is unavailing. That is
because the resolution of Plaintiff's status as a private
individual or public official necessarily focuses on the
subject matter of the allegedly defamatory statements, i.e.,
whether or not the statements concerned a matter of public
interest or related to Plaintiff's "public
official" conduct. See Furgason v. Clausen,
1989-NMCA-084, ¶ 33, 109 N.M. 331, 785 P.2d 242
(explaining that in determining a defamation plaintiff's
status, the court's "examination focuses on whether
the defamatory material concerns a public controversy or
topic of legitimate public concern, together with the nature
and extent of [the plaintiff's] participation in the
controversy"); see also New York Times Co., 376
U.S. at 279-80 (announcing the rule that "prohibits a
public official from recovering damages for a defamatory
falsehood relat[ed] to his official
conduct unless he proves that the statement was made
with 'actual malice' " (emphasis added)). Here,
Defendants' statements criticized Plaintiff's conduct
as a reserve officer, not his activities as a civilian, and
concerned the larger public controversy regarding management
of APD's reserve officer program. Even if Defendants'
interpretation of Plaintiff's time sheets was incorrect
as Plaintiff alleges, it does not change the fact that the
published statements related to Plaintiff's conduct as a
reserve officer, i.e., that of a public official.
We hold that Plaintiff acted under the color of authority of
a sworn police officer, and his use of that authority is what
Defendants called into question in the series of articles
they published in the Journal. As such, the district
court correctly determined Plaintiff to be a public official
for purposes of his defamation and false light invasion of
The District Court Properly Dismissed Plaintiff's Claims
Related to Defendants' Characterization of Him as a
Plaintiff argues that the district court erred when it
dismissed his defamation and false light invasion of privacy
claims premised upon Defendants' published
characterization of Plaintiff as a "wannabe cop."
Plaintiff alludes as well to other published statements he
contends the district court was wrong to declare not
defamatory as a matter of law. He fails, however, to develop
specific arguments to support these further contentions. Just
as defendants "do not bear the burden to discern how
[an] article has defamed [a plaintiff, ]" we will not
guess at what Plaintiff's undeveloped arguments may be.
Andrews, 1995-NMCA-015, ¶ 14 (explaining that
defamation plaintiffs "must plead precisely the
statements about which they complain" (internal
quotation marks and citation omitted)); see Headley v.
Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M.
339, 110 P.3d 1076 (declining to entertain a cursory argument
that included no explanation of the party's argument and
no facts that would allow this Court to evaluate the claim).
We therefore limit our review to Plaintiff's challenge to
the district court's ruling that the descriptive term
"wannabe cop" was not defamatory as a matter of
Standard of Review
We review a district court's dismissal of a claim under
Rule 1-012(B)(6) de novo. Delfino v. Griffo,
2011-NMSC-015, ¶ 9, 150 N.M. 97, 257 P.3d 917. A
district court's ruling that a statement is not
defamatory as a matter of law is also reviewed de novo.
See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.
2005). Likewise, "the question of whether a statement
portrays an individual in a false light . . . is a matter of
law to be determined by the court[, ]" which we review
de novo. Alves v. Hometown Newspapers, Inc., 857
A.2d 743, 751 (R.I. 2004).
A Rule 1-012(B)(6) motion to dismiss for failure to state a
claim "tests the legal sufficiency of the
complaint[.]" Derringer v. State,
2003-NMCA-073, ¶ 5, 133 N.M. 721, 68 P.3d 961. "In
determining the sufficiency of a defamation pleading,
[courts] consider whether the contested statements are
reasonably susceptible of a defamatory connotation."
Davis v. Boeheim, 22 N.E.3d 999, 1003 (N.Y. 2014)
(internal quotation marks and citation omitted). "An
action for defamation lies only for false statements of fact
and not for statements of opinion." Mendoza v.
Gallup Indep. Co., 1988-NMCA-073, ¶ 4, 107 N.M.
721, 764 P.2d 492. The same is true for false light claims.
See Rinsley v. Brandt, 700 F.2d 1304, 1307 (10th
Cir. 1983) (explaining that "the defense available in a
defamation action that the allegedly defamatory statements
are opinions, not assertions of fact, is also available in a
false light privacy action"). If a statement is
"unambiguously opinion, the trial court may properly
rule as a matter of law." Mendoza,
1988-NMCA-073, ¶ 5.
"Wannabe Cop" Is a Statement of Opinion and
Therefore Absolutely Privileged Speech
The parties disagree whether "wannabe cop" reflects
Defendants' opinion of Plaintiff-in which case the
district court properly found it was not defamatory as a
matter of law-or could be interpreted as a factual
allegation-in which case a jury would have to decide whether
it was defamatory. Defendants argue that their use of the
term "wannabe cop" is non-actionable opinion
because in conjunction with the characterization, they
disclosed supporting facts. Plaintiff argues that Defendants
failed to disclose why they characterized Plaintiff as a
"wannabe cop, " thus making resolution of the
claims fact-dependent and therefore inappropriate for
dismissal under Rule 1-012(B)(6).
As this Court and many others have acknowledged, "[n]o
task undertaken under the law of defamation is any more
elusive than distinguishing between fact and opinion."
Moore v. Sun Publ'g Corp., 1994-NMCA-104, ¶
24, 118 N.M. 375, 881 P.2d 735 (alteration, internal
quotation marks, and citation omitted); see Ollman v.
Evans, 750 F.2d 970, 978 (D.C. Cir. 1984) ("While
courts are divided in their methods of distinguishing between
assertions of fact and expressions of opinion, they are
universally agreed that the task is a difficult one.").
The challenge arises from the fact that "expressions of
'opinion' may often imply an assertion of objective
fact." Milkovich v. Lorain Journal Co., 497
U.S. 1, 18 (1990); cf. Abbas v. Foreign Policy Group,
LLC, 783 F.3d 1328, 1338-39 (2015) (considering whether
questions posed in an article may themselves be defamatory
and, while acknowledging that "a question's wording
or tone or context sometimes may be read as implying
the writer's answer to that question[, ]" affirming
dismissal under Fed.R.Civ.P. 12(b)(6) and noting its refusal
to "usher D.C. law down such a new and uncertain
road"). This is particularly true where the facts
underlying the so-called opinion are not fully disclosed
because the danger exists that "a writer could escape
liability for accusations of defamatory conduct simply by
using, explicitly or implicitly, the words 'I think.'
" Milkovich, 497 U.S. at 19 (alteration,
internal quotation marks, and citation omitted). New Mexico
courts presented with this question must consider three
things: "(1) the entirety of the publication[, ] (2) the
extent that the truth or falsity may be determined without
resort to speculation[, ] and (3) whether reasonably prudent
persons reading the publication would consider the statement
as an expression of opinion or a statement of fact."
Marchiondo, 1982-NMSC-076, ¶ 35. "If the
material as a whole contains full disclosure of the facts
upon which the publisher's opinion is based and which
permits the reader to reach his own opinion, the court in
most instances will be required to hold that it is a
statement of opinion, and absolutely privileged."
Id. ¶ 56 (alteration, internal quotation marks,
and citation omitted); see also Restatement (Second)
of Torts § 566 (1977) ("A defamatory communication
may consist of a statement in the form of an opinion, but a
statement of this nature is actionable only if it implies the
allegation of undisclosed defamatory facts as the basis for
the opinion."). In other words, "when a speaker
outlines the factual basis for his conclusion, his statement
is protected by the First Amendment." Partington
v. Bugliosi, 56 F.3d 1147, 1156 (9th Cir.
1995). That is because when "the bases for the
conclusion are fully disclosed, no reasonable reader would
consider the term anything but the opinion of the author
drawn from the circumstances related." Id.
(omission, internal quotation marks, and citation omitted);
see Marchiondo, 1982-NMSC-076, ¶ 57 (explaining
that "the crucial difference between statement of fact
and opinion depends upon whether ordinary persons hearing or
reading the matter complained of would be likely to
understand it as an expression of the speaker's or
writer's opinion, or as a statement of existing
fact" (alteration, internal quotation marks, and
citation omitted)); cf. Hotchner v. Castillo-Puche,
551 F.2d 910, 913 (2d. Cir. 1977) (explaining that an
expression of opinion may be actionable "when a negative
characterization of a person is coupled with a clear but
false implication that the author is privy to facts about the
person that are unknown to the general reader"). This
type of opinion cannot be false and therefore is not
actionable, even if defamatory. See Kutz v. Indep.
Publ'g Co., 1981-NMCA-147, ¶ 7, 97 N.M. 243,
638 P.2d 1088.
In Standing Committee on Discipline of United States
District Court for Central District of California v.
Yagman, 55 F.3d 1430, 1439 (9th Cir. 1995), the Ninth
Circuit provided a helpful discussion and illustration of the
dichotomy between actionable and non-actionable opinion
statements. Writing for the court, Judge Kozinski noted that
the Restatement (Second) of Torts § 566
"distinguishes between two kinds of opinion statements:
those based on assumed or expressly stated facts, and those
based on implied, undisclosed facts." Yagman,
55 F.3d at 1439; see also Kutz, 1981-NMCA-147,
¶ 26 (Donnelly, J., specially concurring) (describing
the "two kinds of expressions of opinion" as
articulated in the Restatement (Second) of Torts). Judge
Kozinski offered the example "I think Jones is an
alcoholic, " which he described as "an expression
of opinion based on implied facts . . . because the statement
gives rise to the inference that there are undisclosed facts
that justify the forming of the opinion[.]"
Yagman, 55 F.3d at 1439 (internal quotation marks
and citations omitted). Such a statement would be actionable
because it fails to provide the reader or listener with the
factual basis for the speaker's conclusion that Jones is
an alcoholic, thus making the statement potentially
defamatory. Id. By contrast, the following is a
non-actionable statement: "Jones moved in six months
ago. He works downtown, and I have seen him during that time
only twice, in his backyard around 5:30 seated in a deck
chair with a drink in his hand. I think he must be an
alcoholic." Id. (alteration, omission, internal
quotation marks, and citation omitted). Here, where the
speaker has provided the specific factual basis for his
opinion that Jones is an alcoholic, his conclusion is
considered pure opinion-i.e., non-defamatory as a matter of
law-because the reader or listener has the ability to draw
his or her own conclusion as to whether Jones is an
Judge Sack's leading treatise on defamation provides
additional helpful illustrations:
To say that a man is 'insane' may be defamatory; but
to explain first that he, a political newcomer, is planning a
campaign against the most popular politician in the county
makes it clear that 'insanity' reflects no more than
the speaker's view of the candidate's judgment or
chances of success. The statement is hyperbolic and is not
Robert D. Sack, Sack on Defamation § 4:3.2 at
4-48 (4th ed. ...