In Pennsylvania, Police Supervisors Have Absolute Immunity For Defamatory Comments Made About Subordinates In Course Of Duty

Jerry Fulare is a member of the Board of Supervisors of Logan Township, Pennsylvania. In 2002, the Board hired a new Chief of Police. Because he had not previously worked as a police officer in Pennsylvania, he had to pass a state certification examination. Two officers later reported to the Township’s solicitor and manager that the new Chief of Police had engaged in improprieties during the examination process.

During a regular public meeting of the Board on September 23, 2004, Fulare said that the individual who administered the certification examination to the Chief suspected a conspiracy by officers of the Police Department against the new Police Chief with respect to his certification examination. Fulare commented that the “conspiracy theory hits the nail on the head.” At a later Board meeting, Fulare revealed that a deputy attorney general had told him that there were “numerous serious misconduct issues with the Police Department that the Board should address” and that it should “hire a good attorney and clean the place up.” Moreover, Fulare commented that he found the “conspiracy theory pretty interesting.”

The two officers who reported the possible misconduct during the examination sued Fulare for defamation and for violation of their civil rights. A federal court of appeals rejected the lawsuit, finding Fulare’s comments absolutely privileged under Pennsylvania law.

As the Court phrased it, Pennsylvania’s doctrine of absolute privilege for high public officials “is unlimited and exempts a high public official from all civil suits for damages arising out of false defamatory statements and even from statements or actions motivated by malice, provided the statements are made or the actions are taken in the course of the official’s duties or powers and within the scope of his authority, or as it is sometimes expressed, within his jurisdiction.”

The officers argued that Fulare’s comments fell outside the privilege since he violated the Township’s written policy that the Board would broach such matters first to the Township manager who would then follow up on the matter. Rebuffing the argument, the Court held that a “chain of command” breach would not be relevant to the defamation claim: “It is immaterial that Fulare’s source of information for the allegedly defamatory statements was derived from activity arguably in contravention of the chain of command. Instead, it is the content and context of the statements that must be the focus of the immunity analysis.”

Because Fulare’s statements were protected by absolute immunity, the Court found the officers could not sue him for defamation even if Fulare made the statements knowing they were false.

Heller v. Fulare, 2006 WL 1843291 (3rd Cir. 2006).

This article appears in the August 2006 issue