Appeal from Superior Court, King County; 90-2-14801-7. Honorable Anne Ellington, Judge.
Authored by Charles W. Johnson. Concurring: Barbara Durham, Richard P. Guy, Barbara A. Madsen, Philip A. Talmadge, Richard B. Sanders. Dissenting: James M. Dolliver, Gerry L. Alexander, Charles Z. Smith
The opinion of the court was delivered by: Johnson
JOHNSON, J. -- This is a defamation case in which we are asked to decide whether citizen complaints regarding police conduct are absolutely privileged under either the federal and state constitutions or common law. Washington State Patrol Trooper Davis Richmond sued Thompson for defamation on the basis of a letter Thompson sent to the Governor's Office. In the letter, Thompson alleged Trooper Richmond assaulted him and threatened to "blow his head off" following a routine traffic stop. A jury awarded Trooper Richmond $15,000, and the Court of Appeals affirmed. In addition, Thompson challenges the jury verdict on the basis of insufficient evidence of actual malice. Thompson also challenges the trial court's jury instructions. We affirm.
Trooper Richmond stopped Thompson for speeding and cited him for going 67 miles per hour in a 55-mile-per-hour speed zone on State Route 2 near Leavenworth. Although Thompson insisted his cruise control was set at 55 or 57, he eventually signed the ticket and drove away.
A short time later, Thompson returned to the area where he had been stopped and noticed that Trooper Richmond had pulled over another car. Thompson approached the driver of that car, Eric Hanson, while Trooper Richmond was in his patrol car writing Hanson a ticket. Thompson told Hanson he thought the trooper's radar was defective and asked Hanson if he felt he deserved the ticket. Hanson said he had been speeding and refused Thompson's invitation to protest the ticket with him. When Trooper Richmond saw Thompson talking to Hanson, he immediately returned to Hanson's car.
Trooper Richmond testified he told Thompson in a very stern voice to move away from Hanson's car and commanded him to leave the area or he would be arrested. Trooper Richmond says he never touched Thompson or threatened to shoot or kill him but did tell him:
If you think you are going to follow me around and hound me and butt into each contact, you are wrong.
On any stop I make, that person may step out with a gun. If they do and you are parked in front of me, I could never return fire without fear of hitting you, which means I can't stop cars as long as you keep butting in.
Report of Proceedings (Nov. 8, 1993) at 30-40.
Thompson testified that while he was talking with Hanson, Trooper Richmond yelled at him to "quit interfering with [his] stop" and then pushed him on the shoulder two or three times and said something to the effect, "I ought to blow your brains out." Thompson explained:
I felt him push me two or three times in the shoulder. There seemed to be a long pause. He was just staring at me, just very, very angry, and then it just seemed like an eternity, at least for the moment anyway, and then he reached down somewhere near his side, got this most awful look on his face and said something to the effect, 'I ought to blow your brains out.'
Report of Proceedings-B (Nov. 9, 1993) at 75.
Neither Hanson nor his passenger, Patricia Hahler, heard Trooper Richmond threaten Thompson or see Trooper Richmond push Thompson. But Hanson testified the situation was very tense, and that when Trooper Richmond returned to Hanson's car, he "squared off" with Thompson and instructed Thompson to step away from the car "in a verbally forceful manner." Dep. of Hanson at 11. Hanson further explained:
You know, as best, what I can say there is it was very loudly spoken, very forcefully spoken, aggressively spoken. It was such that he approached Dr. Thompson at my car. And what I do recall is him verbally leading him back or forcing him back from my vehicle within, you know, inches from each other's face. So basically he was, approached him face to face and was verbally instructing him to step back from the car.
Following the incident, Thompson unsuccessfully challenged the infraction in Chelan County, both in District and Superior Court. In both proceedings the Judge found the infraction had occurred. Thompson did not mention the alleged touching or threat at the hearing in either proceeding, arguing only that he could not have been speeding because his cruise control had been set at 55.
During the Chelan County proceedings, Thompson contacted Sharon Tucker at the Governor's Office for Constituent Affairs. Thompson told Tucker that Trooper Richmond threatened to "blow his head off." Thompson sent a letter to Tucker relating the same allegation:
Upon turning around, we saw that he had stopped another motorist, so, seeing no harm in it, I decided to stop and ask the other motorist if he felt he was doing the speed Richmond was accusing him of. I got out of my car and walked back to the other car, to ask the other motorist his opinion. Richmond, whose car was behind the motorist, jumped out of his car and rushed toward me, and began accusing me of interfering with his stop; he was very angry and began pushing me backwards toward my car and unclipped his pistol and began threatening to 'blow my brains out.'. . .
Richmond only backed off his threat to shoot me after I pointed out he would have to kill my wife and the other motorist if he didn't want any witnesses. He continued to push me, now threatening to take me in and book me on unspecified charges. . . . I wish to file assault and attempted murder charges against this man. . . . This man almost costed [sic] me my life and I intend to see that Justice is rendered. *fn1
Tucker brought Thompson's allegations to the attention of the State Patrol, which conducted an internal investigation to determine whether Trooper Richmond's conduct was unbecoming or unprofessional. The investigating officer determined that Thompson's charges were unfounded and closed the investigation less than one month after it had been initiated. The State Patrol took no further action with regard to Thompson's complaint.
Trooper Richmond filed this action in July 1990, alleging defamation, malicious prosecution, and outrage. *fn2 Thompson counterclaimed, alleging violations of the Thompsons' civil rights and various torts, including assault. The trial court granted Thompson's motion for summary judgment on Trooper Richmond's outrage and malicious prosecution claims. The court denied a motion to dismiss the defamation claim, rejecting Thompson's argument that his letter was absolutely privileged based upon the right to petition under the federal and state constitutions.
Following three days of testimony, the jury rejected all of Thompson's cross claims, found in Trooper Richmond's favor on his defamation claim, and awarded him $15,000. Both parties appealed to this court. This court transferred the appeal to Division One of the Court of Appeals. Division One affirmed in Richmond v. Thompson, 79 Wash. App. 327, 901 P.2d 371 (1995). We granted Thompson's petition for review.
Thompson and amicus curiae American Civil Liberties Union of Washington (ACLU-W) ask this court to recognize an absolute privilege under the First Amendment, the Washington Constitution and common law barring defamation actions by police officers against citizens who complain to appropriate agencies about the conduct of police officers. They contend that the New York Times Co. v. Sullivan *fn3 qualified privilege is inadequate in a case like this because individual complaints to public agencies about police misconduct implicate constitutional interests far more important than the constitutional interests at stake in criticism of other public officials. We are not persuaded that an absolute privilege is constitutionally mandated and, therefore, hold the trial court did not err in applying the New York Times qualified privilege. We will not review Thompson's claim for a common law absolute privilege because this issue was not raised at trial.
New York Times Co. v. Sullivan ushered in a new era in which courts recognized the need to protect some false statements under the First Amendment. Before New York Times, courts held individuals strictly liable for defamatory statements, attributing no constitutional value to false statements. Under the law as it existed in this state before New York Times and the law currently applied to private individuals, Trooper Richmond would have to prove Thompson negligently made a defamatory statement that caused damages. Taskett v. KING Broadcasting Co., 86 Wash. 2d 439, 445, 546 P.2d 81 (1976).
New York Times, however, established a qualified privilege under the First Amendment for statements concerning public officials. Under this qualified privilege, a public official cannot recover for defamation unless he or she establishes the defendant made the defamatory statement with actual malice, that is, knowledge of its falsity or with reckless disregard for whether it was false or not. *fn4 New York Times, 376 U.S. at 283. Underlying this rule is the recognition that a rule that protects only the right to utter the truth chills protected speech. The Court explained that some false statements are protected because:
A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions and to do so on pain of libel judgments virtually unlimited in amount leads to a comparable 'self-censorship.' Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They ...