Furgason v. Clausen

P.2d 242 FURGASON, James M.

Plaintiff-Appellant,

Christopher Donrey, CLAUSEN Corporation,

a Nevada authorized to do Donrey

business in New Mexico as Out Advertising Company,

door also dba

Donrey Group pub Media dba and/or

lishing Alamogordo Daily News,

Defendants-Appellees.

No. 10841. Appeals

Court of of New Mexico.

Oct. 1989.

Certiorari Denied Dec. 1989. Durrett, Durrett,

Lisa K. W. Charles Durrett, Durrett, P.C., Alamogor- Jordan & do, plaintiff-appellant. for Wilson, Rank, K. Rory Frank L. Wilson Rank, Alamogordo, defendants-appel- for & lees.

OPINION DONNELLY, Judge. appeals

Appellant Furgason James M. granting summary judgment an order dismissing complaint his libel Clausen, Christopher against defendants Donrey, Alamogordo Daily and the report of publishing News for a false his (1) We discuss: the court arrest. whether determining publication erred fair-report protected (2) privilege; whether the district court appel- determining erred the status lant; (3) propriety summary judg- We ment. reverse.

Appellant proprietor the owner and Driving While Intoxicated and Alcohol- “Furgi’s Alamogordo. Pub” He also night ism was Thursday arrested appointed an advisory to serve on com- abuse of negli- chemical substance and mayor mittee chosen to deal with gent deadly weapon. use of a involving driving issues alcoholism and Furgason, James M. 1407 Rock- Committee). (Mayor’s while intoxicated On wood, popular who owns the bar and 9, 1987, January appellant’s home was bur- store, package Dr., Furgi’s, 817 Scenic glarized, among and the items stolen were p.m. Thursday night was arrested at 9:45 pistol. his wallet and a Several la- weeks allegedly being sniffing after observed ter, 22, 1987, January identifying on a man paint. Furgason M. himself as James was arrest- The story reported, among news also oth- by city police charges ed officer on things, “[according report er to the paint sniffing carrying pistol and as a Department Safety Greg Public officer weapon. concealed The individual arrested Cavelli, Furgason sniffing paint was in the carrying showing was a driver’s license his covered restroom entrance of the 10th picture bearing name, address, but and Station,” Street Conoco Service that a personal appellant. other data of At the Furgason search of revealed that he was police time of the arrest the man told carrying a .357 caliber revolver tucked into years age, he 32was that he was unem- waistband, following his and that his arrest ployed, and that he had no vehicle. “Furgason was booked into the Otero Clausen, morning The next defendant County $3,500 Jail under a bond and is reporter employed by Alamogordo Dai- arrainged scheduled to be before [sic] [a News, ly reports pre- reviewed arrest magistrate judge], Friday afternoon.” pared by city police. newspaper The newspaper Several hours after the was customarily published reports of the names published, city police, attending while persons police. arrested the local On magistrate arraignment, learning Furgason that the court discover- name James M. appearing ed that the and report on the arrest was the arrested identified appellant, Furgason imposter, same as that of as James M. was an Clausen dis- report falsely cussed the arrest with Detective that he had informed Officer Cavelli Ray Bailey Captain Furgason, Truman Nix of the that he was M. James and that Alamogordo Department. Police Both offi- the driver’s license he had shown cers confirmed that arrested was the driver’s license which had been Furgason. appellant’s had been identified as James M. stolen earlier home. subsequently individual arrested was iden- typed copy Clausen also received a of a charged tified as Garland Erven was Stoppers’ city Crime news release from the having burglarized appellant’s resi- with police soliciting public information from the Subsequent investigation dence. revealed concerning burglary appellant’s appellant’s that Erven had altered driver’s describing burglary home as the placed photograph license and his own over Stoppers’ crime of the week. The Crime picture appellant on the license. among news release stated that the items appellant’s and a .357 stolen were wallet Thereafter, January in its 1987 edi- magnum revolver. newspaper printed page front tion the reporting impersonat- had story that Erven prepared story publi- a news Clausen using appellant by ed a driver’s license concerning Furgason cation the facts of the wallet, appellant’s which had taken from arrest, published January which appel- during burglary been stolen Alamogordo edition of the noon January 1987. lant’s home Daily para- lead News. The headline and graphs reported, of the article against filed suit defendants Appellant sniffing paint

Bar owner accused of defamation, January alleging that the and seek- prominent newspaper article was libelous A local bar owner who punitive damages. serves on the Committee for actual 27, 1987, long republication defendants filed a ments so as the is a February On report of an complaint for failure fair and accurate official or motion to dismiss or, alternatively, seeking public proceeding. The Restatement to state a claim (1977) (Second) hearing, the of Torts articulates summary judgment. After a granting privilege entered an order as follows: district court summary judgment. The order recited in publication defamatory matter newspaper gave article which part that the concerning report in a of an another privileged under rise to this lawsuit was proceeding official action or or of a privilege, report fair and accurate meeting open public that deals abused, appellant privilege was not privi- with a matter of concern is figure,” a “limited that defen- leged if the is accurate and com- malice, not act that defen- plete abridgement dants did with or a fair of the oc- of the news reported. dants did not know the content currence negligently fail article was false or did not 294, 731 P.2d at 1338. Id. false, recognize article was that the privi Determination of whether summary defendants were entitled to alleged lege applies to material to be de judgment as a matter of law. famatory law to decided is a be by the court. Credit Union v. Coronado I. FAIR AND ACCURATE REPORT Inc., 233, Television, 99 N.M. 656 KOAT PRIVILEGE (Ct.App.1982). P.2d 896 subject of The news article which is the report privilege protects The fair by using in- this suit was written Clausen though publisher against liability even the formation obtained from the arrest reported. may not believe the material Id. city police report, conversations offi- wifh However, may privilege be abused cials, independently obtained information published account is discolored where posited by inquiries after Clausen garbled proceedings from that of the or clerk, city and information contained reported, publisher which are where telephone directory. local adds comments or- draws conclusions or paragraphs The first two of the news of his which are defam insinuations own person identified the arrested as article atory appellant. of the character of 41, Rockwood, Furgason, 1407 “James M. 541, Dreyfus, 26 N.M. 191 P. Henderson v. package popular bar and who owns Co.; (1919); 442 v. Pub. Stover Journal * * * store, Furgi’s, Drive after 817 Scenic City Moritz v. Kansas Star see also allegedly being sniffing paint.” observed 32, (1953); Haynik 364 Mo. 258 S.W.2d 583 para- together The headline with the lead Zimlich, 16, 30 Ohio Misc.2d 508 N.E.2d person arrested as graph also identified (1986). qualify for the 195 order to fair served on prominent local bar owner who report privilege newspaper is not re Committee. quired reprint report verba tim; may abridge summarize or instead argues district court Appellant that the News, New York its contents. Lavin v. complaint determining in his erred Cir.1985); (3d Appleby 757 F.2d finding that the news actionable based on a Gazette, Hampshire 395 Mass. Dailey the fair and privileged under article 478 N.E.2d 721 report privilege. v. Jour accurate Stover Co., 105 N.M. 731 P.2d Publishing nal Press, v. Associated Bufalino denied, 484 U.S. (Ct.App.1985), cert. Cir.1982), (2d the court con- F.2d (1987), 230, 98 L.Ed.2d 189 108 S.Ct. of the rule contained sidered breadth privilege as a report the fair reaffirmed (Second) of Torts Section 611 Restatement defamation. As defense an action for (1977), holding: “[ojnly reports of official Stover, observed by or records made or released statements by report privilege public agency protected are of the fair essence § by privilege. Statements made lower-level liability no will attach for is that agen- employees that do not reflect official defamatory state- republication of the cy support privilege.” action cannot appear did not in the arrest report. The (Emphasis original.) additionally added facts which were not contained in report the arrest conclusively (Second) As observed Restatement identified the arrested being as Torts, supra, Section comment h: appellant. Because most of the material by An arrest an officer is an official contained the first two paragraphs of action, report and a of the fact of the the article was not drawn from the arrest charge arrest or of the by of crime made report, the additional material and conclu- in making the officer or returning the by sions drawn defendants affirmatively arrest is therefore within the conditional identifying appellant as the same privilege by covered this Section. On the charged, arrested and are per- outside the other hand by po- statements made imeters of the fair and report accurate complainant lice or or other wit- privilege. (Second) See Restatement prosecuting nesses or attorney as Torts, supra, comment h. The re- to the facts of the case or the evidence article, however, mainder of the was either expected given yet part are not protected by the fair and accurate judicial proceeding or of the arrest privilege or challenged by is not appellant privileged itself and are not under this being factually inaccurate or defam- Section. atory.1 In a defamation action the bears the proving burden of abuse of a also assert that the ma Defendants privilege. Zimlich; conditional Haynik v. terial contained the headline and first Philadelphia Mathis v. Newspapers, paragraphs two of the article were within F.Supp. (E.D.Pa.1978). 455 406 scope privilege of the because the infor mation was drawn provided from facts case, In the instant excep with the by city police Clausen officers and from person arrested, tion of the name of the employees in the office mayor. of the We headline and first paragraphs two of the disagree. Not all information by released 23, January alleged by 1987 news article city or state officials to the media falls appellant defamatory to be consisted of within the ambit of the fair and accurate appear matters which did not in the arrest report privilege. City See Bender v. report prepared by city Instead, police. of Seattle, 582, 99 Wash.2d 664 P.2d 492 paragraphs the headline and two lead con (1983) (en banc). generally Annota concerning appel tained information tion, Reliance on Facts Not Stated or Re lant, occupation his position, and official Publication, to in Support erroneously and identifying appellant to ferred Fair Comment in the same individual as the Defense arrested Defamation Case, (1963). 90 A.L.R.2d 1279 See also charged by police with the commis Annotation, Privilege At Specifically sion of two criminal offenses. Defamation: taching Report To News Criminal Ac the headline and first paragraphs two tivities Based on Supplied factually the article stated that the arres Information by Safety Public Sta “prominent tee was a local bar owner” who Officers—Modem tus, (1986). 47 A.L.R.4th 718 As observed “serves on the Committee for Bender, Driving While Intoxicated and Alcoholism” and that he was arrested on Some courts have afforded two criminal offi charges. privilege The headline and article also stat cers an absolute as to state “41,” appellant, age ed as a fact that “who ments or communications made in the popular store, package performance See, bar and owns of official e.g., duties. Furgi’s, Drive, Urchisin, 6, (Fla. 817 Scenic was arrested Hauser v. So.2d * * * allegedly being 1970); after Jasper, Ky. observed sniff Catron v. (1946). courts, paint.” by The material added Clausen 198 S.W.2d 322 Most complaint only appellant paragraphs 1. The amended set first two article. out verbatim the headline and of the content privi conclusionary material contained in the however, only qualified hold that See, lege e.g., paragraphs Carr Wat headline and two lead of the attaches. (1961); kins, 177 A.2d 841 indicating 227 Md. appellant article was in fact McNeal, 76 So.2d 222 Miss. arrested, Krebs v. the same as the individual Davidson, 133 (1955); Mullens scope of the fair and was not within 13 A.L.R.2d 887 57 S.E.2d W.Va. report privilege. accurate police officers in Statements releasing information to II. OF APPELLANT STATUS important functions of press serve the Our determination that the headline informing educating about question right portions of the article were practices. The law enforcement however, privi- in public, report does not outside the fair and accurate inform the gratuitous to make state lege dispositive clude a license of whether the dis- a case or concerning the facts of granting ments trict court erred defendants’ par of other disparaging the character summary judgment. Defen- motion ties to an action. argue portion if dants that even of the scope privi- outside the article falls 600-601, 664 P.2d at 504. Id. at public figure lege, appellant is a limited of an arrest Except where necessitating proof that the content of the Annotation, privileged, as observed privilege article not covered Newspaper Report Actionability False published false and that defendants Arrested, 93 A.L. Has Been That Plaintiff material with actual malice. (1979), newspaper reports R.3d publication Defendants assert that their plaintiff has falsely state that the which alleged by appellant the material to be de- generally have been held been arrested famatory was the result of a mistaken a of action for the courts to state cause misrepresentation by and identification injure reputa- they tend to the libel because Erven. Defendants further contend that subject of the person tion of the who is the appellant forward with has failed to come expose report, and tend to any opposition evidence in to their motion ridicule, disgrace, contempt. or See Dil- Shattuck, 202, summary judgment indicating that a 11 P.2d 543 for v. 36 N.M. lard Schoolitz, (1932); to whether v. 105 material factual issue exists as see also Roscoe (1970); 310, maliciously. v. they published Ariz. 464 P.2d 333 Walker such article 361, Press, 160 417 P.2d Associated Colo. publisher The fact that a writer or (1966); Printing 486 Rimmer v. Chadron party mistakenly incorrectly or identifies a 533, (1953); Co., 806 156 Neb. 56 N.W.2d published generally material not a Co., 675 Dispatch Pub. Luper v. Black West, action for defamation. See defense an (Okla.Ct.App.1983); Auto P.2d 1028 Inc.; 1984). (Utah Philadelphia Newspapers, 286 Mathis v. Baggs, v. 678 P.2d Inc. Kennedy, 3 F.2d Washington Post Co. v. article, except- text the Although the (D.C.Cir.1925); 207 v. Gazette Hatfield paragraphs, was drawn ing the two initial 593, Co., P. 382 Printing 103 Kan. 175 information contained largely from Annotation, (1918). Libel generally See lead report, the headline and two arrest Sufficiency and Slander: Identifica information and paragraphs consisted of Complained by tion Matter by or reached defen- of Plaintiff conclusions obtained Defamatory, 100 A.L.R.2d 218 to matters contained dants extraneous part turns in on whether The focus instead did not consist of the arrest and privileged, published material was press release form of a information false, its whether the material was whether generally or other data disseminated appellant, the sta publication injured and affirmatively indi- public. material Such Independent appellant. Kutz v. tus See same appellant was in fact the cated that (Ct. 243, Co., 1088 97 N.M. 638 P.2d Pub. charged with criminal person arrested and (Second) App.1981). Restatement that, exception See also conduct. hold with We Annotation, (1977); 580(A) (B) arrested, of Torts & of the individual of the name

337 Newspaper Report False false, Actionability atory statement of fact the infor Arrested, supra. Has Been That privileged, mation was not and that defen Plaintiff dants negligently recognize failed to Brown, v. Marchiondo 98 N.M. the statement was false proximately 394, (1982), supreme our court P.2d injured 1986, See SCRA plaintiff. proof required standard of articulated the Civ.UJI 13-1002. to establish a defamation action wherein public plaintiff public is a official or by appellant’s As shown affidavit filed in figure. or Determination whether not a support of summary judg- his motion for figure public is a is relevant in ment, mayor April he was named determining required proof, standard 8, 1986, to serve on the Mayor’s Commit- of an and the status individual as either a Appellant tee. appoint- contends his official, private public figure, public per or ment to the committee did result in not his question son law to constitutes attaining public the status of a official or court. Marchiondo v. determined that, public figure and time Brown. also v. Goodrich Gannett article in published, no meet- (D.Del.1980); Corona F.Supp. ings held, of the committee had been ever Television, do Credit Union KOAT Inc. oath, given he was never he never com- g Gertz Robert Followin mayor municated with or other commit- Welch, Inc., 418 U.S. 94 S.Ct. committee, concerning tee members (1974), the court in Marchion L.Ed.2d 789 knowledge to his the committee do held that where a plaintiff in a def approxi- was “otherwise non-existent until public amation is either a official action mately ago [April one month 1988].” public figure, allegedly or where an de figures” “public “public terms famatory statement involved matter of officials” precisely have been defined. concern, upon it is “incumbent In Gertz stated Court that the standard prove that the defendant acted enunciated in New York Times Co. v. Sul (with knowledge with actual of falsi malice livan, 376 U.S. 84 S.Ct. ty disregard truth).” inor reckless (1964), L.Ed.2d 686 which bars media liabili Id. 98 N.M. at 649 P.2d at 470. Reck ty for defamation of a absent disregard less of the truth is not measured malice, applies public to both officials and by reasonably prudent whether a public figures. The Court then character published would or have inves have would ized New York Times as having defined tigated publishing; before there must be public figures pro permit accorded constitutional sufficient evidence the conclusion “who, by that defendant fact entertained serious tections as those reason of the doubts as to truth of the communica notoriety vigor of or the their achievements 1986, tion. SCRA Civ. In a UJI 13-1009. they pub and which success with seek required defamation action where malice attention, properly pub lic’s are classed proven, by to be malice must be established 342, Id. figures.” lic 418 at 94 S.Ct. at U.S. evidence. Sands v. convincing clear and 3008. Gertz figures” “public that observes Mexico, Forum New American G.I. of part types: for the consist two most of Inc., (Ct.App. 611 97 N.M. 642 P.2d occupy positions per such those who of also Annota 1982); See 13-1009. UJI Civ. they power suasive and influence that are tion Libel and Slander: Constitutes What figures public purposes, deemed for all Actual Constitu Malice Within Federal figures, consisting public those [limited of] Requiring tional Rule Public Officials the fore who have thrust themselves to Figures Actual and Public to Show Mal controversy in particular public front of ice, (1968). 20 998 A.L.R.3d order to influence the resolution involved. See also issues Restatement plaintiff in a defamation ac Where Torts, 580(A), supra, (Second) com of public figure public tion nor a is neither Am., Antwerp c; Diamond Exch. official, only prove ment he the materi need that v. Better Business Bureau Marico Inc. published al a defam by defendants was 338 Court, Inc. v. County, Superior Cal.App.3d Ariz. P.2d

pa 130 637 106 (1980). (1981). Cal.Rptr. 347 out the Gertz sets test for deter public fig a limited appellant Was mining “public whether an individual is a public by ure or virtue his owner figure.” The test determination includes ship appointment of a or his local business and, public controversy of whether a exists Mayor’s to the Committee? We conclude so, if extent the nature and of the individu he was not. participation controversy. al’s in that Gertz In the Court stated the per Whether the nature and extent of a determining basis for who constitutes a participation controversy son’s in a sub public “public figure” figure” “limited or jects public figure him to the status of a as follows: gauged ascertaining the extent to which participation controversy in the is volun may

In an some instances individual tary, to which individual has the extent notoriety fame pervasive achieve such or access channels of commu to the effective figure public that he for all becomes nication, prominence and the of his role purposes in all contexts. More com- See also Pub. Co. controversy. Curtis monly, voluntarily injects an individual Butts, 388 U.S. S.Ct. particular pub- himself or into a is drawn L.Ed.2d 1094 thereby controversy lic becomes a figure public range a limited is- for determining appellant whether persons sues. either case such as- public figure is a defamation limited special prominence sume the resolu- purposes, examination on whether focuses questions. tion defamatory material concerns a * * * general clear evidence of Absent topic controversy legitimate public or community, notoriety fame or concern, together with nature and ex pervasive involvement affairs appellant’s participation tent of in the con society, an individual should not be Bell, N.J.Super. Vassallo troversy. public personality deemed a all as- (App.Div.1987). 534 A.2d 724 pects preferable It is re- his life. above, by the criteria conclude Tested we public-figure question duce to a more determining erred the trial court meaningful looking to the na- context “public appellant figure” was a partic- ture and extent of individual’s Here, public figure.” neither the “limited ipation controversy giv- particular appellant’s burglarized, fact home rise the defamation. appellant appointed had fact that been 351-352, Id. 418 U.S. 94 S.Ct. at 3012-13. Committee, he the fact that Press, also v. Associated Bell establishment, liquor was the owner of a (D.D.C.1984). A F.Supp. 128 is not nor the that an arrested fact individual was “public figure” solely considered because him, who him to the claimed to be elevated charged as a defen he has been criminal “public figure” pub- status of a or “limited Ass’n, Digest dant, v. Reader’s Wolston figure.” Similarly, we lic determine that 157, 2701, 61 L.Ed.2d 450 443 U.S. 99 S.Ct. appellant “public not a official” courts, (1979), sought has relief Baer, 75, Rosenblatt v. defined 383 U.S. Time, Firestone, Inc. v. 424 96 U.S. (1966). 86 L.Ed.2d S.Ct. 15 597 (1976), in S.Ct. L.Ed.2d 154 or is Supreme Rosenblatt the United States reported controversy in a volved parameters of who Court discussed this media. Courts which have considered observing, public.official, constitutes a recognized have that an individu issue also * * * businessman, “public It is that the official” prominence al’s as a without clear more, person designation applies very at least to relegate does such to the not among govern- figure. hierarchy those Wilson public status of a have, Scripps-Howard Broadcasting appear ment who to employees or Costa, have, (6th Cir.1981); public responsi- Rancho La to substantial F.2d 371 bility sought for or over the control conduct of on a alleged bench warrant governmental affairs. person lewdness.” In subsequent- fact the * * * ly plaintiff arrested was Bell, not the Theo government position Where a but another individual. The importance court apparent has such that dis- plaintiff’s missed complaint, finding, public independent has an interest in the among things, other qualifications and was a performance of the “public figure” it, and could not beyond establish that general who holds defendant acted with malice in public qualifications publishing interest in the report. this performance instant case differs government employ- all ees, appellant private Bell both elements we identified in New public not a figure. York present Times are and the New York Times standards apply. malice 13-1009, Under UJI Civ. in order sup- [Footnotes omitted.] port defamation, a claim appellant must 85-86, Id. at at 675-76. prove S.Ct. negligently publish- defendants ed the communication and: Rosenblatt, public As discussed offi- * * * negligently generally failed encompass govern- cials those defendants] to check on have, falsity the truth or employees appear ment who to the publication. prior communication possess public to responsibility substantial for or control govern- over the conduct of “negligent” may The term relate either Here, mental affairs. there was no show- to an act or a failure to act. that members of the Commit- act, “negligent,” An to be must be one any tee had official status. Under the reasonably which prudent person criteria, appellant above cannot be deemed would involving foresee as an unreason- “public official.” injury reputation able risk of person, another and such a which relegate order to an individual to the care, exercise of ordinary would not do. “public status of a within official” the con- Rosenblatt, Times, text New York A summary judgment motion for in a Gertz, the position individual’s must one necessarily defamation action involves de beyond which elevates him that of a mere termination of the evidentiary substantive private individual. The Court in Gertz dis- proof standard of apply that would at a requirement, noting, this cussed trial on the merits. Anderson Liberty public figures Public officials and usually Lobby, 477 U.S. 106 S.Ct. enjoy significantly greater access to the Applying L.Ed.2d 202 the above channels of effective communication and herein, authorities to the record we deter hence opportunity have a more realistic mine appellant publi the time of the at pri- to counteract than false statements cation in issue was a limited normally enjoy. vate individuals Private figure Thus, nor a pur official. individuals are therefore more vulnerable poses determining proof standard of injury, pro- interest in the state required appellant’s to establish claim of tecting correspondingly greater. them is ruling on defamation and the defendants’ [Footnote omitted.] summary judgment motion for the factual inquiry upon turns issue of whether at 3009. Id. S.Ct. published negligently defendants the arti points Defendants’ out that answer brief question. cle in UJI Civ. 13-1003. See identity this is a case of mistaken and that precedent involving is no there New Mexico III. OF SUMMARY PROPRIETY this kind of factual situation. Defendants JUDGMENT urge Press, that Bell v. Associated 584 (D.D.C.1984), upon Based our determination as a F.Supp. applied 128 herein. Bell, that, appellant matter of law because was plaintiff, professional In a football public figure, public figure, a limited and the a player member of 1979 National official, League Pittsburg or a constitutional stan Champion Football Steel- the ers, proof appli- malice is not reported story “being was in as dard of of actual a news

340 give deposition in ment statements publication in issue. Ant- and to the See

cable Am., conflicting concerning rise Inc. v. Bet- inferences werp Diamond Exch. of issues, Maricopa County, judgment should summary factual Business Bureau ter of Instead, Inc., proof of re- granted. Mahona-Jojanto, the standard not be Inc. appellant negligence. is that of quired of Bank New Mexico. See also N.S.L. v. of Annota- generally Bingham, 13-1009. UJI Civ. Excess Ins. Co. v. 106 National tion, 325, Protection (Ct.App.1987). Constitutional P.2d 537 State N.M. 742 of Defamatory Statements Re- Allegedly Here, appellant response to the Individual, 33 A.L.R.4th Private garding summary judgment, relied in motion for (1984). 212 part depositions upon the defendant dispute that do not the arti- Defendants testified, among other Clausen. Clausen appellant’s reporting the fact of arrest cle things, at the time he wrote article that do deny Defendants that was erroneous. copy he had a of the Crime negligently. they acted Stoppers’ report detailing concerning facts generally

Questions negligence prior burglary appellant’s are is- home. fact for fact finder. Roscoe v. Stoppers report sues of also indicated Crime 105 N.M. 734 appel Title Ins. from among U.S. that the items taken Life (1987); v. 1272 Schear Board pistol P.2d lant’s and his home were wallet. Comm’rs, N.M. P.2d County 687 report arrest indicated Inc., Mahona-Jojanto, person possession had in his arrested Mexico, Bank New 79 N.M. v. appellant’s N.S.L. pistol to that similar taken (1968), supreme 442 P.2d court prior burglary. addi home in the Clausen applicable mo- succinctly stated the rules tionally deposition stated his when summary judgment defamation tions for he arrest he “noticed that read the actions, observing that: arrested], you if age of the individual [the genu- birth, as existence of a all doubts to the use but the date of would be against resolved space ine issue of fact must be officer had written * * * movant, dep- affidavits says age actually his Clausen what was.” appraised in the on file must be discrepancy ositions he concluded this indicated respondent. aspect most to the favorable “probably” merely a error. Clausen math Also, permissible inferences all favorable he wrote also testified that the time respondent from facts estab- knowledge did initial article he “not have determining must be lished who was ever arrested] [the considered requiring an of fact trial whether issue being owner represented himself exists. Furgi’s.” Moreover, may minds dif- where reasonable A us indi- review record before on the issue of whether defendants fer appellant’s response to the cates that mo- judgment negligent summary is not were judgment summary tion reveals ex- must be and the matter resolved proper conflicting issues of fact istence of material Treat, Trujillo the finder fact. See concerning negligently defendants whether (Ct.App.1988); 752 P.2d 250 107 N.M. appellant in fact reported that Philadelphia Newspa- Mathis see also same arrested for substance abuse Inc. pers, weapon, negligent deadly use of a so summary judgment. con- being preclude as to

Summary judgment extreme summary judgment, sidering motion for with caution and remedy, employed is to be presented view all mer the court must matters for trial cannot be substituted light most favor- fact found considered issues of material are its where summary judg- party opposing Corp., 97 able to the Balloon to exist. Jelso v. World support right to a trial on (Ct.App.1981); Ma ment so as to N.M. P.2d Gonzalez, 103 the issues. Gonzalez v. v. Bank New hona-Jojanto, N.S.L. 157, (Ct.App.1985). P.2d dep N.M. affidavits or Similarly, where Mexico. appropriate is to Summary judgment not summary judg are used to resist ositions fact, Although issue of but to deter- determine an I majority’s con- one exists. Pharmaseal Laborato- if mine plaintiff clusion that pub- not a limited ries, Goffe, Inc. 90 N.M. 568 P.2d figure,1 lic I would rest affirmance on oth- contradictory The fact that in- grounds. er I believe that defendants are may testimony ferences be drawn from the independent (1) not liable for two reasons: concerning of Clausen whether defendants their protected article was by the common negligently appellant identified as the same privilege law publish a fair of an person who was arrested and criminally record, public (2) they did not charged by summary renders degree act with the required fault Knapp v. Frater- judgment improper. liability imposed. to be Eagles, nal Order 106 N.M. 738 P.2d fair-report Both the privilege and the re- (Ct.App.1987). The issue of defendants quirement of fault derive from constitution- alleged negligence properly cannot be re- principles public policy al of the utmost solved as a matter of law but is a matter to importance society. to a free A wooden by be determined the trier of fact. application legal of these signifi- rules can summary judgment The order of is re- cantly protection they provide diminish the versed and cause is remanded for fur- vigilant press. to a Because I believe proceedings opin- ther consistent with this opinion the majority imposes an excessive ion. media, burden on respectfully the news I IT IS SO ORDERED. dissent. APODACA, J., concurs. A. THE FAIR-REPORT PRIVILEGE HARTZ, J., dissents. stated, recently As this court “The es HARTZ, Judge (dissenting). report privilege sence of the fair is that no liability respectfully republication I dissent. I would affirm will attach for the * * * defamatory long the district court. statements so as point developed respect liquor by naming 1. The record on this is not as to his establishment might and, it be. The matter was first "Furgi’s” raised apparently, by spend the business argument defendants in their rebuttal at oral advertising, including substantial sums on Nevertheless, summary judgment their motion. $1,000 newspaper a month on ads. Plaintiff appears plaintiff public it was a limited intentionally injected person thus his name and figure respect with to the issue of substance ality into the consciousness as both a states, majority abuse. As the whether a purveyor liquor public-spirited and as a citi public figure respect a limited with to a con working zen to control the abuse of that sub troversy is determined the extent to which (I any way criticize stance. do not mean to controversy person’s participation by plaintiff. may Such these actions conduct voluntary and the extent to which that only good marketing good but citizen also has access to channels of effective communica who, ship. persons Yet most because of their Proxmire, tion. See Hutchinson v. 443 U.S. status, proving the burden of actual malice have 133-36, 2675, 2687-88, 99 S.Ct. 61 L.Ed.2d 411 could be termed order to recover for libel (1979). Plaintiff seems to have met both tests. citizens.) good respect plaintiff’s access With voluntarily He involved himself in the issue in media, although inadequate the record is affidavit, First, respects. as stated in his he two issue, plaintiff expect on this one would Alamogordo mayor called the to ask to serve misrepre necessary any had the access to rebut Driving While on the Committee against only appointed him. Not was he a sub Intoxicated and Alcoholism. He was sentations 8, 1986, advertiser, reap apparently committee on he also to the pointed stantial April Although there regard, on October 1986. personality. it well-known local In this meetings been no of the committee from had appeared on is of some interest that a retraction appointment until the time of the the time of his paper page the front (the of the next edition of the 23, 1987, January committee was article on story Sunday paper) after the inaccurate non-entity. April met on not a total It had appeared page plaintiff on the back about original appointment. the week before his Unlimited, newspaper. Dean Steaks Inc. v. Cf. Also, enough me received attention from the it er, (3d Cir.1980) (meat market that F.2d 264 reporter Clausen saw the arrest dia that when record, figure great advertises a deal is limited recognized Furgason as a mem he Mr. story attacking respect wholesomeness with Second, mayor’s ber of the committee. sells). of the meat merely of a local business. was not the owner public eye injected with He his name into the 342 public parents an official record. of a republication is a fair and accurate The

the public proceeding.” rape an or deceased victim sued for invasion of report of official Co., Publishing v. Journal privacy report- 105 the victim’s Stover when name was 294, 1335, 291, (Ct.App.1985), 1338 P.2d ed The “At N.M. 731 the station. Court wrote: denied, 897, least, rt. 484 U.S. 108 S.Ct. very the the Fourteenth First and ce 230, adopted We L.Ed.2d 189 98 not the exposing Amendments will allow (Sec formulation of the Restatement press liability for truthfully publishing to (1977), ond) 611 that an of Torts Section public information released to the offi- concerning pro official action or article an cial court records.” Id. 496, 95 S.Ct. at at ceeding privileged if the article “is accu result, explaining 1047. In this the Court abridgement complete and or a fair rate wrote: majority The reported.” the occurrence society in which each individual [I]n on official re agrees that articles based has but limited time and resources with may privi within the ports of arrests come opera- which at to observe first hand the Philadelphia Newspa v. See Mathis lege. government, tions of his he relies neces- Inc., (E.D.Pa.1978); pers, F.Supp. 455 406 sarily press bring to him in upon Lexleon, Inc., Md.App. 199, v. 58 472 Steer opera- form the those convenient facts of v. (1984); Biermann Pulitzer A.2d 1021 accordingly responsibility tions. Great Co., Publishing (Mo.App. 87 627 S.W.2d placed report news upon the media to supra, 1981); Restatement, 611 comment § fully accurately proceedings of Short News-Journal h. 58 Del. Cf. government, doc- and official records and 592, 6, aff'd, 107, 212 A.2d 205 A.2d 58 Del. public open uments are the basic (1965) (IRS seized). of assets report governmental operations. data With- provided by press out the information Policy 1. Constitutional and Public many representa- most of us of our Underpinnings intelligent- tives unable would be to vote commentators, According to some opinions ly register the adminis- * * * * fair-report privi- mandates Constitution government generally tration of Hill, Privacy * * See lege. * Defamation crime, prose- commission The Amendment, the First Under Colum.L. resulting it, judicial from cutions 1205, Restatement, (1976); Rev. 1219-20 proceedings arising prosecu- (“If supra, report 611 comment b question tions are without events ... proceeding official is accurate or a legitimate concern to the and con- abridgment, action cannot constitu- fair an responsibility of sequently fall within the maintained, tionally either for def- be operations of press right or for of the amation invasion government. Time, generally See Medico v. privacy.”). 491-92, Id. 95 S.Ct. at 1044-45. (3d Cir.1981) F.2d 143-46 — B.J.F., U.S. -, Florida Star (discussing, adopting, without view 105 L.Ed.2d 458-59 S.Ct. fair-report privi- is a constitutional there (1989) news release (reproduction Although Su- lege). the United States is con rape victim named reached the preme Court has not protected, despite state statute stitutionally requires adop- of whether Constitution barring publication of vic media of names totality, in its it has privilege tion offenses). tims of sexual using privilege, adopted the core of the sure, To the information broadcast sup- language recognizes the values report of Cox was not only an accurate Cox privilege as a whole. porting information, true. Cohn, official was also Broadcasting Corp. v. U.S. case, suggest Cox (1975), any does 43 L.Ed.2d 95 S.Ct. report, however protects every Constitution first and fourteenth held that Court inaccurate, record or regarding prohibit to the Constitution amendments do, quoted how- proceeding. passages sta- liability upon a television imposition ever, society and the value that our a statement reflect accurately reporting tion for

343 lege place reports scope on news is broader in than the condition our Constitution business, privileges). particularly the business al enforcement. of law Third, privilege should not be limited reproductions to public pro- verbatim of a components of the com- important Three ceeding spoke or record. Cox of the role of are corollaries to the privilege law mon press present govern- to the facts of First, because propositions stated Cox. operations ment “in 420 form.” the admin- public’s need to evaluate of the convenient U.S. at 95 press S.Ct. at 1044. The government, reporting official istration of permitted abridge must be the record important statements is even government convey literary style the record with government wrong. cor- This when capture that can the reader’s attention. So justifying the reasons ollary is one of long press preserves gist as the or fact that statements made rule that “[t]he record, “sting” privilege of the official upset false will not proceedings were apply. concept should Because the of the privilege, reporter not even when the “sting” of an official record is central to that the statements were false and knew my disagreement with the I majority, dis- anyway.” v. reported them Stover Jour- length. cuss it at some Publishing 105 N.M. at 731 nal Restatement, supra, P.2d at 1338. Accord Sting 2. 611 comment a. § noted, already adopted As Stover Second, press public for the to assist the fair-report privi that the Restatement view action, evaluating government it must lege applies if a news article “is accurate enjoy privilege supplement its complete abridgement or a fair of the proceeding of an official or record with Restatement, reported.” occurrence su background accurate information. See El necessary “It is not pra, 611. § [the World, v. Greco Leather Prods. Co. Shoe every exact in immaterial detail be article] (E.D.N.Y.1985) Inc., F.Supp. 623 1043 precision to that demand or that it conform (addition background material did not reporting.” ed in technical or scientific Id. protection statutory remove article from privilege only if at comment f. The fails fair-report privilege), on other aff'd “convey[s] impres an erroneous the article (2d Cir.1986). grounds, 806 F.2d 392 Cer this expression sion.” Id. A shorthand tainly is in the interest for the privilege applies if the doctrine is that press to scrutinize who it is that the “sting” preserves article of the official arresting. there is no such are “Where Magazine, record. Ricci v. Venture scrutiny is true in some totalitarian —as (D.Mass.1983); F.Supp. disappear countries—individuals sometimes 16, 21, Zimlich, 30 Misc.2d Haynik v. Ohio a trace and without knowl without Com.Pl.1986). (Ohio 508 N.E.2d edge accountability.” Bell v. Associat (D.C.Cir. examples or omissions Press, A few of errors F.Supp. ed fair-report privilege 1984). law, did not defeat the a condition Under the common publishing may addi be instructive. Crittendon privilege al abused Corp., 714 only if the addi Combined Communications defamatory tional matter (Okla.1985), a station P.2d 1026 television defamatory unprivileged. matter is tional reported malpractice trial which Restatement, True state supra, 605A. § performing an 581A, gynecologist was accused of privileged, are id. at Section ments re- The station unnecessary hysterectomy. jeop they always can added without so contended that Although ported that the ardizing privilege. a conditional “perfectly healthy,” generally removed uterus fair-report privilege is not expert witness admitted plaintiff’s id. at whereas privilege, a conditional see considered actually a minor cervi- c, had that the uterus a and the same 599 comments Section expert testified that But the supple cal irritation. respect to apply with rule should ninety per- occurs in over abnormality matter. menting report with truthful a fair nothing in the privi cent of women id., (fair-report 611 comment a Cf perfectly precise language____ Media hysterecto- report justified pathologist’s reports may permissibly focus sting that the my. [of trials] The court stated occurrences, on the more dramatic Dudley accurate. broadcast interesting. exclusion of less Times, 550 S.W.2d Daily Branch Farmers protect- privilege the (Tex.Civ.App.1977), Id. at 1567. The test is whether an ordi- plaintiff had reporting that ed an article nary reasonably reader could draw a more property the theft of charged abridge- with derogatory been conclusion from the $168,000, official record reasonably when the ment than could be drawn worth charge only complete report: was for theft showed that plain- more than property $50 worth [A]pplying a common sense standard of property was worth tiff claimed that interpretation report, expected lay of the report $7,000. An accurate than less it could not found that I conclude that be sting. had the same abridgement would have was an unfair one * * * * question The critical is whether protection illustrate the Two other cases report of a trial occurrence can reason- of “excul- despite omission privilege describing the oc- ably interpreted as be Sciandra plaintiff in The patory” matter. way conveys a materi- currence (1963) 595, 187 A.2d 586 Lynett, 409 Pa. ally greater defamatory sting than would Police by New York State stopped technically conveyed by a correct meeting of Apalachin during the famous not, report abridged report. If less figures. The alleged organized crime require- not offended the fairness has story a news complained about plaintiff report A full of all the details ment. report of the official state taken from an incident, including eye- the two this story information meeting. The omitted ges- that the reports, the claims witness (1) plaintiff’s having report, such threat, judge’s deci- ture was a and the by the state without released been sever, attorney’s as Ricci’s sion to as well (2) his birth date. charges being filed and version, susceptible no less would be that he (The would have revealed birth date sting deroga- conveying a being read as have been the young too abridged plaintiff tory to than was to him in rape of a attributed convicted actually report made. story.) report and the news the official both Id. at 1568. summary was held that Yet the court Ricci v. substantially correct. Privilege Protects Fair-Report 3. fair defendant Magazine, Venture in This Case Defendants plain- stating that the published an article statement allegedly libelous Whether an trial; a witness at a tiff had threatened for the question is a of law privileged plaintiff’s did not article Marchiondo to determine. court charac- objected at trial to the attorney had Brown, 649 P.2d 98 N.M. gesture as a plaintiff’s terization of the principles discussed Applying the disputed the accusation. and had threat case, find I would the facts of this above to Keeton, authority on Judge a noted Robert privileged as article in to be law, need not the article tort held Comparison of the article of law. matter ex- contrary assertions. He such contain arti- reveals that the the arrest record with plained: nothing than a more cle was in substance accu- requirement of fairness and (1) abridgement of the [T]he combination of relevant to a racy only to matter extends (2) infor- report, and accurate official arrest is, defamatory sting claimed concerning plaintiff. Because mation —that the com- bearing upon whether matter sting the ar- preserved abridgement susceptible of reasonably munication protected report, the article is rest sense____ derogatory interpretation in a fair-report privilege. need be neither * * * ^[******] [A] “fair and exhaustive accurate” in detail nor report was James Rockwood, Alamogordo, New The arrest record M. Furgason, states that residing Mexico, and the arrestee that the ter written. That should not be the source on June 1945. Assume born liability. descrip- of Read v. News-Journal contained no further arrest record Cf. (Del.1984) (“An 474 A.2d ac article un- the arrestee. Then the tion of premised tion for defamation cannot be privileged. por- questionably would be solely style on defendant’s or utilization of bases tion of the article which reporting judicial proceed vivid words is as follows: his claim require If ing.”) we news articles to be prominent A local bar owner who precision, with meticulous the re written on the Committee serves sulting soporific style hinder the dis would Driving Intoxicated and Alcohol- While semination of information to the night Thursday arrested ism was more than if New York Times v. Sulli Co. negli- of chemical substance abuse van, 376 U.S. 84 S.Ct. 11 L.Ed.2d deadly weapon. of a gent use (1964) particular, were overruled. I Furgason, M. 1407 Rock- JameS require paragraph would not the lead wood, popular who owns the bar and say that the information comes from an store, Dr., Furgi’s, package 817 Scenic police report. only Not does the p.m. Thursday night 9:45 was arrested at paragraph story explicitly third allegedly being sniffing after observed state, “According report by Depart paint. Safety Greg Officer Cavel ment of Public para- of the same two A second version li,” naturally but also the reader would might read: graphs the source of the information infer report records that a Official police, personal rather than obser was the 4, 1945, Furgason, M. June James born reporter. by the See Medico v. vation Rockwood, was arrested Thurs- 17; Time, Inc., 643 F.2d at 139 n. Ricci v. chemical sub- day night for abuse of Inc., F.Supp. Magazine, Venture deadly negligent use of a stance 1570; Publishing Foley v. Lowell Sun alleg- after weapon. He was arrested Mass.App.Ct. 519 N.E.2d 601 sniffing paint. edly being observed (1988), 404 Mass. 533 N.E.2d 196 aff'd, Furgason, of 1407 Rock- James M. package popular bar and wood owns case, however, difficulty in is The this store, Furgi’s, and serves on the to defen- records available Driving Intoxicated While Committee he the article dant Clausen when wrote Alcoholism. name, address, and more than the included is either Everything in the second version person. The of the arrested date of birth report of the complete accurate and that the arrestee was arrest record stated (at record least with hypothesized arrest old, thirty-two years six feet unemployed, arrestee) or is identity of the respect to the tall, sixty-five inches one hundred six being No one could unchallenged as true. hair, weight, with brown blue pounds Juxtaposing being privileged. a its doubt listed complexion. It eyes and a fair record and complete report of an official arrestee a among property on the subject journalist cannot true information thirty-four cents wallet and brown if the second version liability. addition, morning Yet that same change. para published privileged, gave so must be Safety Department Clau- the Public retrospect one can Although sen, coincidentally, a Crime graphs. apparently para burglary the two reporting between Stopper see differences news release Re- Furgason’s article and home. published from the earlier at graphs a month were, among version, es burglary differences would ported stolen second sting items, wallet. The of the revolver and a ordinary reader. cape the other information; it adding this Nor does article omitted is identical. two versions An astute “abridged” sniff record. headline, “Bar owner accused informa- knew of the omitted sting. The chief who change the observer paint,” the arrestee surmized that might have is that tion the two versions between difference owner, but was bar prominent not the newspaper bet appearing in the the one Imposition related occurrence. of such a stole the bar owner’s individual who Thus, requirement inevitably license. one and drivers’ would burden the wallet abridgement was un- claim that important could free flow of information to the “exculpatory” infor- it omitted Moreover, fair because public. if neces- even it were suspicion might have directed mation that sary published to measure article plaintiff. away from against report both the arrest and the * * * release, Stopper report Crime a “full Nevertheless, fair-report privilege being susceptible would be no less read The article was a fair protects defendants. conveying sting derogatory plaintiff of the official record because abridgement actually abridged report than was the sting police report. conveyed the of the Magazine, made.” Ricci v. Venture official arrest sting report” F.Supp. at 1568. A “full would Furgason” that “James M. this case was imply still sniffing paint other was arrested arrested. sting by the That is not altered crimes. other information the arrest inclusion of my If I am correct characterization of contrary, the information record. On the record, sting of the arrest then the person confirms describing the arrested privileged. Every- entire article must be it undermines his identification more than thing in the article not taken from identifying information plaintiff. arrest record was accurate information precise presumably that was most —and Furgason, M. of 1407 about James full pointed plaintiff: to most reliable — unchallenged Rockwood or was otherwise (with spelling of the last name the unusual stated, already adding in this lawsuit. As name), address, home birth date and social summary information to a fair of truthful plaintiff. security number were all those of report subject an official should not discrepancies Although there were some publisher liability. to News media fre- employment (such age incorrect as an put- of quently provide the useful service status), explained as a con- these could be proceedings in ting official statements or person’s the arrested intoxi- sequence of per- Background information on a context. cation, at least de- his desire to avoid —or subject is the of an official accusa- son who business, or er- lay publicity injuring his — generally newsworthy. The fair-re- tion is event, any arresting ror officer. so as port privilege should not be construed includ- privileged can be without an article infor- discourage reporting of such to report from the official

ing every detail mation. question the might lead a reader to Magazine, Ricci v. Venture See sting. important that inclusion

Inc. What is FAULT OF DEFENDANTS B. copy of the arrest the article of a verbatim Basis the Fault 1. Constitutional change materially what record would not Requirement ordinary reader would conclude Pulitzer Biermann v. the article. See are not liable also because Defendants Publishing Co. (privilege applies to required fault they acted without arrest, doc- though some official even publishing the article. In New Mexico identity of on might cast doubt uments recover plaintiff prove negligence to must arrested). as the Brown, Marchiondo v. for defamation. negli 649 P.2d at 470. N.M. at by the existence My is not affected view from the constitu gence standard follows release. That Stopper news of the Crime id.; The requirement of fault. tional report are sufficient- the arrest release and — at -, B.J.F., Florida Star v. U.S. to the release was ly that reference distinct (liabil L.Ed.2d at 459 S.Ct. concerning the required in the article figures is private ity for defamation protect- To be of the arrest. public record “ordinary under a standard evaluated reporting fair-report privilege by the ed Supreme The United States negligence”). action, should not publisher an official behind that explained the rationale every Court abridgement include a fair have to Welch,Inc., cases, however, purpose requirement in v. Robert has the of advanc Gertz 323, 340-41, 2997, 3007, 418 U.S. S.Ct. promot the first amendment interest in (1974): 41 L.Ed.2d 789 ing the flow of information and ideas. We Although expect juries weigh erroneous statement of cannot first amend worthy pro- of constitutional principles adequately fact is not ment when determin tection, it is nevertheless inevitable ing the standard of specific care. Even * * * * of er- free debate jury importance [P]unishment instructions on the inducing ror runs the risk of a cautious surely first amendment would be insuffi and restrictive exercise of the constitu- Indeed, perhaps cient for the task. guaranteed speech tionally freedoms chief function of the first amendment is to press. recognize Our decisions protect against speech attitudes toward liability compels a rule of strict likely by jury. which are to be reflected publisher guarantee broadcaster rights first amendment are at “[W]here * * * accuracy his factual assertions stake, jury flexibility dangerous may self-censorship. lead to intolerable jurors likely represent inasmuch as are Allowing liability only the media to avoid majoritarian unpopular attitudes toward proving injurious the truth of all Tribe, speakers and ideas.” L. American adequate pro- statements does not accord 12-13, (2d Law at 882 Constitutional tection to First Amendment liberties. As ed.1988). Therefore, litiga in defamation the Court stated New York Times Co. judiciary responsi tion the must shoulder Sullivan, supra, at 279: [376 U.S.] [84 bility protection for the of first amendment S.Ct. at “Allowance of defense 710] responsibility values. This includes careful truth, proving with the burden of it on appellate findings review of of fault defendant, only does not mean that cases, non-jury after tri defamation even speech false will be deterred.” The First Appellate als. courts should conduct “an .requires protect Amendment that we independent of the record review both to be protect speech in to some falsehood order speech question actually that the in sure that matters. unprotected category falls within perimeters any unprotect to confine the of Scrutiny 2. The Need Judicial for of category acceptably ed within narrow lim Applied by the Standard Care of protected in an effort to that its ensure the Trier Fact of expression will not inhibited.” Bose purpose require of the fault Because U.S., Inc., Corp. v. Consumers Union of ment is to minimize undesirable self-censor 485, 505, 1949, 1962, 80 466 U.S. 104 S.Ct. closely scrutinize claims ship, courts must (1984) (reversing L.Ed.2d 502 trial court’s fact from negligence prevent of to triers of malice). finding of actual Accord Harte- excessively setting standards that could Communications, Inc. v. Con Hanks im coverage. Negligence is an press chill — -, naughton, U.S. 109 S.Ct. concept. jury An instruction to the precise (1989) (affirming jury’s 105 L.Ed.2d 562 meaning negligence in a def on the Restatement, malice). verdict of actual See probably achieve no amation case can (advocating appellate k 580B comment § an instruction greater precision than such finding negligence in def review any other tort case. See SCRA cases). Corp. v. amation Bose Con Cf. (uniform jury instruction Civ.UJI 13-1009 Inc., U.S., 466 U.S. sumers Union of defamation, adopts traditional for which (Rehnquist, at 1969 n. 2 518 n. S.Ct. negligence ordi language used to define (factual J., dissenting) justi is more review context). imprecision ordi nary tort Such jury). finding fied when problem. pose significant narily does not necessary solely oversight is not Judicial public policy is usual tort case no the stan requirements minimum for to set rein to giving jury wide violated legal fault. as to dard of ordinary care Uncertainty what constitutes determine self- can itself cause undesirable re standard prudent person. The reasonably for a censorship. Harte-Hanks Communi negligence defamation quirement of — Restatement, cations, identity Connaughton, Inc. v. U.S. at as the arrestee. See -, Second, 588. supra, 109 S.Ct. at L.Ed.2d at 611 comment defen- b. reviewing carefully and By facts articulat may negligent simply dants have been for ing why a defendant has satis defamation believing was the who requirements of satisfy fied or failed to had been arrested. law, encourage courts adherence to respect With theory to the first of liabili- in reporting practices minimize sound ty, Judge Keeton has that the concluded self-censorship. See appropriate Robert fault than merely must be more the omis- son, First and the Amend Defamation sion of evidence which a reasonable Welch, ment: In Praise v. Robert Gertz person might contrary an draw inference (1976). 256-57 Tex.L.Rev. appearing He wrote: article. Tribe, first the words Professor “[T]he argued Supreme It may be Court understood to re amendment should be recognizing decisions the constitutional develop quire the states to bodies of law requirement respect of fault with to ac- markedly clearer and more coherent than curacy derogatory of fact statement negli customary law of common necessarily modify precedents so earlier (foot Tribe, gence.” supra, L. at 882-83 regarding reports proceedings omitted). note summary me- compel judgment for Moreover, jury ultimately even when a challenge dia as to any defendants in a defamation vindicates defendant failing incompleteness case, litigation may the burden of the itself contentions or evidence contra- disclose impact. a substantial deleterious have reported. I do dictory correctly to that trial, despite proba- of the costs of Fear not conclude that such invariable rule an success, may bility publi- of ultimate deter require- implicit in the constitutional important of an news item. See cation Nevertheless, ment is clear of fault. Anderson, Libel and Press Self-Censor- showing merely contradictory evi- 435-36 ship, 53 Tex.L.Rev. upon persons dence which reasonable therefore, Summary judgment, serves an might findings come to different is insuf- protecting first function essential displayed show that ficient to defendant In defamation cases amendment interests. disregard the accu- unreasonable justifiably cannot resolve all “courts racy report. fairness of the procedures against summary doubts use of Inc., Magazine, Ricci v. Venture important the interests are not all because F.Supp. 1571. at preserving jury of trial.” Id. at on the side theory The second defendants 469. —that negligent concluding were in that the ar- in Meaning 3. The Fault the Con- plaintiff rested was the of —raises text This Case go in reporter of how far a must of second-guessing an record. official arrest Leading authorities have articulated the meaning of formulations of the above meaning negligence in the defamation of negligence suggest publisher that of a a negli- “with publishing as an article context negligent if he defamatory statement not truth,” disregard for the Ricci v. Ven- gent sufficiently the has checked out statement F.Supp. Magazine, at ture believing it. to have a reasonable basis for grounds to lack of reasonable or “with Thus, failing liability would not result from Restatement, supra, in its truth.” believe inquiry might be reason- to make an W. at 230-31. Accord 580B comment § state- if to “nail down” the able one wanted Keeton, and Freedom the Defamation of ment, already long as the information so Press, Tex.L.Rev. 1227-28 rea- statement available makes belief in this could of defendants case The fault to the one A situation similar sonable. ways: arising one two viewed be in Bell v. Press. before us arose Associated First, negligent may have defendants been imposter claim- Police arrested an officers omitting certain items from the article star; report- plaintiffs ing to football defendant on be a might have cast doubt ed that the athlete had been Thus, arrested. within the standard of care. if this liability, explaining: court denied typical negligence case, were a I would agree summary judgment improp- If the was Associated Press were to be held * * * liable, er on of negligence. the issue it would have to on As ex- above, that, plained however, theory respect with to even what first amend- appeared public figure ment at to be a values stake in a involved in defamation action proceeding, require judicial official duty scrutiny beyond had a what proceeding to on the as it would appropriate. was otherwise be Courts police implications reflected official and court must consider for first the. first conducting pains- records without amendment in permitting interests a find- taking investigation accuracy into the liability jury and restrict discretion reports identity and the accordingly. light mandate, of that person charged. Such a rule would have review of day the events of the on which consequence of delaying significantly published article me convinces publication concerning public of news reversal impose would too burdensome a figures who charged are with criminal operation of care the everyday on standard offenses, halting publication or of our hews media. reports altogether. such Because such day On the article Clausen con- consequences are inconsistent with the morning formed to his usual schedule. values embodied in the First Amend- begin That schedule would Daily ment, impose the law does not such bur- News at a.m. about 7:30 Sometime before press. on the dens [Footnote omitted.] go a.m. Department 8:30 he would at 132. Capital City Id. See Wilson v. Safety (DPS), Public then to the Po- State Press, 315 So.2d 393 (La.Ct.App.3d Cir. City lice office and on to Hall visit 1975) (no negligence relying on court, municipal magistrate court, and oth- press arrest); release of Horvath Ashta departments'. stop er He would also Med.L.Rptr. Telegraph, bula 1982 funeral home to see if any there were (no (Ohio App.1982) negligence WL publish. Usually obituaries he would arrested; identifying duty no to in to his return office between 10:00and 10:30 Sanford, person); terview the accused B. prepare a.m. and his stories for an 11:00 Privacy: Libel and The Prevention and a.m. deadline. The occasionally deadline (1985) (dis Litigation 8.4.3.3 Defense of bit, delayed although layout could be negligence rely cusses whether it paper completed by needed to be noon source). Capi an official But see Melon v. press run, for the so that distribution of Press, (La.Ct.App.lst City tal 407 So.2d 85 begin paper p.m. could about 12:30 1981). Although Cir. the court Bell 23, 1987, January On Clausen received public figure found that copy the DPS a from Records Office the considering only and therefore was wheth arrest record and the officer’s handwritten malice, the er defendant acted with actual report relating Furgason. to M. James He expressed the function the concern about documents, permitted copy not to the was applies equally our case. ing press the to reading he After the but took notes. ar- Alamogordo greater there would be le report, record and the officer’s rest Clau- gitimate public interest in the arrest of sen, customary prac- in accordance with his of a than the out-of-state arrest tice, upstairs to went to talk detectives to nationally prominent player. football if they anything see could add more with Legal the Application 4. Standard respect spoke to the case. He with Detec- to the Facts in this Case Ray Bailey Captain Nix. tive and Richard dispute. Although discrepancies there are The essential facts are not in between parties offi- sure, agree police on accounts of Clausen and the To be even when the the facts, negligence concerning that jury typical the in a cers their discussions the morning, they they spoke responsibility agree about still determin- case bears (undoubt- nature the offense the conduct was the bizarre whether defendant’s to steps took reasonable check out his sto- referring to the conduct itself but edly discussing by prominent bar Besides the matter with being ry. committed to its owner). Bailey, After this discussion Clausen Clausen obtained Detective to to DPS Records Office City went back the a list of the members of the Hall report, which up Stopper pick the Crime mayor’s committee and checked that the typed he first arrived. not been when had Furgason mayor’s on list had the same the plain- burglary to report related the police report as in the and the address weeks earlier. Clausen tiffs home three telephone number as that listed same work ask if Bailey’s office to then returned to city directory the Furgi’s to both the the the arrest was gun the involved telephone directory. He noticed the dis- plaintiff. He reported one stolen same age on crepancy the and birth date between might insurance fraud inquired whether Records the arrest record and asked DPS Bailey told testified that involved. Clausen the The em- employee about matter. office if it was the same him that he did not know probably just responded that it was ployee that there was dis- gun; Bailey testified (which rea- arithmetic error would be a description of the crepancy between overly concerned about the not to be son description gun in and the the arrest height weight reported on the specific plain- gun provided by that had been record). newspaper office arrest At burglary. Clausen noted tiff after the DPS confirm his recollec- called to Clausen report mentioned that Stopper the Crime on the of the essential facts stated tion plaintiff reported a stolen wallet. anoth- He also checked with arrest record. left the DPS At about 9:30 a.m. Clausen to if newspaper staff see er member spent five ten minutes the State to Furgason’s build seemed description of log. reviewing From Police office (It fit. not clear whether Clausen to Hall, City he asked he where there went to Furgason member whether asked the staff list the members the clerk for the specifically thin” or asked “tall and Alcoholism and Committee six appeared he be six feet whether recog- He Driving Intoxicated. had While pounds.) inches tall and “Furgason” on the arrest the name nized certainly ques- Although had Clausen of a member of being the name record arrest, reported pursued he tions about He confirmed “Jim committee. variety of sources. questions with those belonged Furgason” of “1407 Rockwood” responses he received confirmed then continued with committee. He Nothing in person arrested. identity of the routine, checking magis- with the his usual anyone respon- suggests that the record Hall, court, City other offices at trate main- publication article’s* for the sible municipal then court. home and funeral its doubts as to truth substantial tained finish, municipal court to waiting for While Moloney published. it was before custom, newspa- he, his called the as was Co., Wash.App. Publishing Tribune stories city editor know what per to let the 613 P.2d he picked up. he Clausen testified had evaluating the conduct of of Fur- To assist in arraignment planned to attend a.m.; arraignment helpful newspaper, gason at 10:00 but review department, returned thoughts Clausen acts of the moved to 11:00a.m. Bailey. Between 10:30 a.m. of Detective to his office about those particularly a.m., a.m., person he thought or 11:20 Bailey and 11:00 he the 10:30 testified that in typed the Furgason story and the asked what plaintiff. wrote When arrested was a.m, he Shortly 11:00 before the morn- obituaries. Clausen in talked about with he magistrate check on the court to called the ing, he answered: in- and was arraignment Furgason of thought I I there I told him believe arraignment would be formed that the something it didn’t make sense. wrong, afternoon. conversa- say, just a casual Like I it was sense, just make And said it didn’t tion. rou- of Clausen’s requirements the Given being arrested of his caliber deadline, a man Clausen newspaper and the tine statement, permanent stain, I I chemical abuse. made the can leave a misidentifica- only 43$ that he had believe some- of tion the arrested remediable. him, sense, thing on which didn’t make prompt prominent A correction to the either. effect that one was never in fact arrested talking just Restatement,

And he was about the should erase the case blot. See particular. (factors And I told him I was still supra, 580B comment h to be § Week, going to run the of Crime the assessing negligence considered are the though even he was arrested for element, chemi- promoted time the interest cal abuse. publication, potential damage and the plaintiff). Bailey testified that the arrest bothered day. him the whole He had discussed it weighing public’s for prompt, need Then, “just the other detectives. like with reporting concerning informative the con- lightning, bolt of Around a hit us.” 2:30 government, of particularly duct its afternoon, or 3:00 in the while the detec- operation justice system, of the criminal coffee, having tives were he realized that against potential injury to individual might arrested have obtained society members resulting from the me- plaintiff’s burglary identification in the delay publication dia’s failure to while all plaintiff’s residence. followed, I leads are believe that the bal- view, my defendants did not act with ance must be struck favor of the negligent disregard in report- for the truth interest, expressed as in the first and four- plaintiff had been arrested. De- teenth amendments to the Constitution. fendants’ were actions reasonable under When, here, press as an objectively has general circumstances. Arrests are accuracy reasonable basis to credit the matters of concern. See Cox Broad- breaking news, publi- an official 491-92, Corp. Cohn, casting v. 420 U.S. at delayed cation need not be to double check apparent 95 S.Ct. at 1044-45. The arrest in accuracy report. of the official To particular importance would this case impose liability on defendants on the record - plaintiff. because of status of There- would this case create unrealistic bur- fore, publishing story in the earliest media, on our particularly dens news possible appropriate. edition was Yet time daily newspaper. respectfully small-town I presented very constraints Clausen with dissent. investigation. opportunity little for a full Spirit Holy Ass’n for Unification Christianity New York Times World 49 N.Y.2d 424 N.Y.S.2d (Ct.App.1979) 399 N.E.2d (court takes into account that article was * * * “composed exigencies under Sanford, P.2d 262 deadline.”);

publication supra, B. Mexico, of New STATE (discusses negligence in the 8.4.7 con- Plaintiff-Appellee, news). sure, newspa- text of “hot” To be per story that one has arrested for been damage to one’s crime can cause serious CRISLIP, Defendant-Appellant. Patrice reputation; but Clausen had reasonable No. 10480. story was true. grounds to believe that out. and address checked No name Appeals Court of of New Mexico. discrepancy weight of such apparent Nov. 1989. substantial doubt on the accura- cast Moreover, report. unlike cy 21, 1989. Certiorari Denied Dec. cases, proper retrac- many defamation damage virtually all the remedy tion could plaintiff’s reputation. Although an ar- charges by dismissal of the

rest followed

Case Details

Case Name: Furgason v. Clausen

Court Name: New Mexico Court of Appeals

Date Published: Oct 10, 1989

Citation: 785 P.2d 242

Docket Number: 10841

Court Abbreviation: N.M. Ct. App.