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WHITE v. FOP

February 16, 1989

ROBERT C. WHITE, Plaintiff,
v.
FRATERNAL ORDER OF POLICE, ET AL., Defendants



The opinion of the court was delivered by: GASCH

 HONORABLE OLIVER GASCH, SENIOR UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 This is a case brought by plaintiff Robert C. White ("White"), a Captain in the Washington Metropolitan Police Department ("MPD"), alleging invasion of privacy and defamation against the Fraternal Order of Police ("FOP"), the Washington Post Company ("the Post"), and the National Broadcasting Company, Inc. ("NBC").

 BACKGROUND FACTS

 The parties have substantial disagreement about the relevance of certain facts to the issues in this case; nonetheless, the following facts are not in dispute.

 In April 1985, White was nominated for promotion from the position of Lieutenant to Captain in the Washington Metropolitan Police Department. As a condition of promotion, plaintiff was required to undergo and pass a physical examination, including a urine test for drugs. On May 30, 1985, White submitted a urine sample for drug testing at the Police and Fire Department Clinic ("the Clinic"). Plaintiff's urine sample, identified only by a number, along with other samples, was tested at the Clinic using an Enzyme Multiple Immunoassay Test ("EMIT test"). The test performed on plaintiff's sample indicated a positive result for cannabis (marijuana). *fn1" White was notified of the positive result and he was instructed to return to the clinic to submit a second urine specimen. The standard operating procedure when an EMIT test result was positive was simply to forward the sample to the CompuChem, Inc. laboratory in North Carolina for confirmation of the EMIT test results. Plaintiff's submission of a second urine sample was not in accordance with the standard operating procedure at the Clinic. *fn2"

 Sometime in 1987, Mrs. Marguerite Anastasi and Officer Vernon Richardson, two employees of the Police and Fire Clinic who were involved with the MPD drug testing program, contacted defendant Fraternal Order of Police and informed the FOP of several irregularities they had observed in MPD drug testing procedures. Among other things, these employees related specific details about the circumstances surrounding the performance of plaintiff's drug tests and the handling of plaintiff's urine samples. Counsel for the FOP, Robert E. Deso, reported the employees' allegations to the United States Attorney for the District of Columbia, Joseph DiGenova, by letter dated July 15, 1987. Officer Gary W. Hankins, Chairman of the FOP, reported the allegations to Mayor Marion S. Barry, Jr., by letter dated July 28, 1987. *fn3" These letters form the basis of White's claims against the FOP.

 After an introductory paragraph, both letters review the background of Mrs. Anastasi and Officer Richardson. Mrs. Anastasi, a civilian employee of the MPD for 24 years, was involved with drug testing procedures at the Clinic since the inception of the program in 1982. At the time of plaintiff's test in 1985, she supervised the officers who conducted EMIT drug testing at the Clinic. Letters at para. 2. Officer Vernon Richardson, who was appointed to the MPD in 1973, conducted the great majority of the EMIT drug tests performed at the Clinic since 1984. Officer Richardson conducted the EMIT test that was performed on plaintiff's first urine sample on May 30, 1985. Letters at para. 3.

 The letters go on to describe in great detail the events that transpired on May 30, 1985, the date on which plaintiff's urine test was performed, from the perspective of Officer Richardson. In addition to the irregularities discussed above, the letters also state several other important pieces of information regarding the handling of plaintiff's urine sample. The letters allege that Lieutenant Noyes, an officer superior to Officer Richardson, became very agitated upon discovering the identity of the individual who had provided the positive EMIT test. *fn4" After plaintiff was brought back to the Clinic and a second sample was collected, Lieutenant Noyes also allegedly stated to Officer Richardson, "I am giving you a direct order not to tell anyone about what went on." Letters at para. 7. The letters also allege that on the morning of May 31, 1985, before the samples were forwarded for confirmation, the officer who opened the drug lab discovered that the top lock on the laboratory door was unsecured. Letters at para. 9.

 The letters further state that it was "highly unusual" that plaintiff's urine sample was not confirmed by the CompuChem lab because the EMIT test on plaintiff's first urine sample quantitatively indicated a high level of THC. *fn5" Mrs. Anastasi reported that she was advised about what transpired by Officer Hayes, who was also present at the Clinic on May 30, 1985. Mrs. Anastasi stated that she attempted to discuss the events of May 30 with the Administrative Director of the Clinic, but he refused to speak to her about the matter. Letters at para. 10. The letter also states that Officer Richardson, while testifying as a representative of the Clinic in an MPD adverse action hearing, "was shocked" to see the plaintiff sitting as a member of the Adverse Action Panel. Letters at para. 11.

 The letters go on to make several allegations which bear no apparent relationship to the plaintiff. The letters allege that a Sergeant Kent Pulliam reportedly remarked that Lieutenant Noyes and a Sergeant John Harding "had on more than one occasion covered up for MPD officials who submitted urine samples for drug testing which resulted in pending positive tests." Letters at para. 11.

 The letters also report that since February 1987, several administrative changes occurred at the Clinic, which in the opinions of Officer Richardson and Mrs. Anastasi, "severely compromised the integrity of the drug program." Letters at para. 12. The letters also indicate that Officer Richardson reported a number of problems to MPD officials including a deliberate falsification of a record. Letters at para. 12. The letters also allege that Officer Richardson has been ordered by Lieutenant Irish (who replaced Lieutenant Noyes) "not to discuss his complaints with anyone." Letters at para. 12.

 Additionally, the letters state that in June 1987, "Officer Richardson discovered that seven consecutive dates of drug screening records were missing from the files." Letters at para. 13. The letters indicate that Officer Richardson and Mrs. Anastasi believe that the records were removed for an improper purpose. Id.

 The letters also state that "Officer Richardson and Mrs. Anastasi are convinced that there is a systematic effort to subvert the integrity of the drug testing procedures at the Police and Fire Clinic and to manipulate the procedures so that desired results can be obtained." Letters at para. 14. The letters further state:

 
While it appears that drug testing procedures have been subverted to protect one and possibly more MPD officials from the results of positive urinalysis tests, it is also quite possible that procedures have been subverted to report positive results on certain individuals whose tests may not have been positive, thus causing them to lose their employment. If the system has been corrupted, the ramifications are wide-spread. If records have been falsified, false statements made, or testing procedures subverted for gain (such as promotion), it is likely that criminal as well as ethical violations have been committed.

 Letters at para. 14. The above paragraph concludes with a footnote that states that possible statutory violations include bribery, tampering with physical evidence, and breach of standards of conduct. The letters conclude with a promise of cooperation on behalf of Mrs. Anastasi and Officer Richardson. Letters at para. 15.

 The defendant the Washington Post published articles on August 25, September 19, 22, and 24, November 20, 1987, and January 16, 17, 22, and 25, 1988 concerning the FOP's allegations and the Cox Committee's investigation of those allegations. These articles form the basis of White's claims against the Post. Three of the articles that discussed the specific circumstances surrounding plaintiff's urine testing indicated that a second sample was obtained from plaintiff on the same day as the first sample and that the second sample was reported to be free of drugs. *fn7" These articles did not indicate, however, that plaintiff's first urine test was not confirmed. The article published on January 17, 1988 stated that both the first and the second samples were free of drugs. None of the Post articles mentioned the plaintiff by name, nor was plaintiff's picture included with any of the articles.

 On September 28, 1987, National Broadcasting Company, Inc.'s Channel 4 broadcast a report that forms the basis of White's claim against NBC. NBC asserts that the broadcast was a report on the FOP allegations and the investigation of the Cox Committee. White argues that the broadcast was about him and not about the Cox Committee. The NBC report indicated plaintiff's name and displayed his photograph. That broadcast did not indicate that plaintiff's initial positive screening urine test was determined subsequently to be free of drugs.

 Plaintiff's complaint alleges counts of invasion of privacy and defamation against each defendant. Each of the defendants previously moved to dismiss the case for failure to state a claim. Extraneous materials (affidavits) were submitted by FOP as enclosures to their memorandum of points and authorities in support of their motion to dismiss. Plaintiff, in response, submitted extraneous materials as part of his memorandum in opposition to FOP's motion. With respect to FOP, therefore, the motion to dismiss was to be treated as a motion for summary judgment. The Court heard argument on September 13, 1988 and decided that these matters should be considered as motions for summary judgment with respect to all parties. Presently, all three defendants have agreed to have their motions treated as motions for summary judgment.

 DISCUSSION

 In Part I of the discussion, the Court reviews the appropriate standard for granting summary judgment. In Part II, the Court reviews the plaintiff's claims for invasion of privacy. In Part III, the Court considers the plaintiff's defamation claims. In Part IV, the Court considers whether, as an alternative holding, defendants are entitled to summary judgment on the basis of privileges they assert. The privilege theories are considered separately because of their potential applicability to the invasion of privacy claims as well as plaintiff's defamation claims.

 I. STANDARD FOR SUMMARY JUDGMENT

 A motion for summary judgment is properly granted when "there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). All undisputed facts and "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam).

 In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), the Supreme Court stated:

 
At the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. . . . There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. . . . If the evidence is merely colorable, . . . or is not significantly probative, . . . summary judgment may be granted.

 477 U.S. at 249-50 (citations omitted).

 In Washington Post Co. v. Keogh, 125 U.S. App. D.C. 32, 365 F.2d 965 (D.C. Cir. 1966), cert. denied, 385 U.S. 1011, 17 L. Ed. 2d 548, 87 S. Ct. 708 (1967), the Court stated:

 
In the First Amendment area, summary procedures are even more essential. For the stake here, if harassment succeeds, is free debate. One of the purposes of the Times principle, in addition to protecting persons from being cast in damages in libel suits filed by public officials, is to prevent persons from being discouraged in the full and free exercise of their First Amendment rights with respect to the conduct of their government.

 365 F.2d at 968. See McBride v. Merrell Dow and Pharmaceuticals, Inc., 230 U.S. App. D.C. 403, 717 F.2d 1460, 1467 (D.C. Cir. 1983) (reiterating same).

 II. INVASION OF PRIVACY

 Plaintiff includes a count for invasion of privacy against each defendant. Because plaintiff does not specify his theory of recovery, for purposes of this motion, the Court must consider all possible theories upon which plaintiff could recover. In Dresbach v. Doubleday & Co., Inc., 518 F. Supp. 1285 (D.D.C. 1981), the Court briefly reviewed the background of this tort.

 
Invasion of privacy was not an early common law action, but was adopted in various forms by courts and legislatures beginning in the early twentieth century on the inspiration of a law review article by Samuel D. Warren and (later to be Justice) Louis D. Brandeis, The Right to Privacy, 4 Harvard L. Rev. 193 (1890). The cause of action described in the article was based on the right "to be let alone", free from the unauthorized publication of matters concerning one's private life, habits, acts, and relations. The injury to be redressed was to the feelings and sensibilities of the person, (rather than to his reputation in the community as in a defamation action), and the truth or falsehood of the publication was irrelevant, as was the ill will or culpability of the author. However, the right of privacy described in the article did not prohibit publication of matter of public of general interest.

 Id. at 1287.

 Prosser stated that "the law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff 'to be let alone.'" W. Prosser, W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts § 117, at 851 (5th ed. 1984) [hereinafter " Prosser on Torts "]. These torts include appropriation, intrusion, publication of private facts, and placing the plaintiff in a "false light in the public eye." See id. § 117; see also R. Smolla, Law of Defamation § 10.01 (1986).

 The plaintiff concedes that irregularity in the Police Department's Drug Testing Program is a matter of public concern. See Defendant FOP's Statement of Material Facts As To Which There Is No Genuine Issue at para. 10; Plaintiff's response to FOP's Statement of Facts at para. 10. Plaintiff argues, however, that the letters, articles, and broadcast are actionable because their main focus is about plaintiff -- not about irregularities in the Police Department's Drug Testing Program. Plaintiff's Response to FOP's Statement of Facts at para. 10. The Court finds plaintiff's argument to be untenable.

 The public clearly has a legitimate concern in knowing about possible corruption within the Police Department. In particular, a strong public interest exists in knowing whether normal drug testing procedures were subverted to protect a high-ranking police official who was subsequently assigned to be the head of the Police Department's narcotics squad. Additionally, a strong public interest exists in knowing whether police officers are receiving disparate treatment within the MPD drug testing program. Because an essential element ...


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