Identification Of Undercover Officers Does Not Violate Privacy Rights

Vicente Alvarado and Steve Flores were undercover police officers for the City of Albuquerque, New Mexico Police Department. In May 2004, Syra Roman called the Department to report that she had been sexually assaulted by two undercover officers. The detective taking the call asked her to obtain a physical examination and follow up with him in a couple of days, but apparently she did neither.

A week later, a detective apprehended Roman on an outstanding warrant, and told her that if she gave a statement about the alleged sexual assault she would not be booked on the warrant. She gave the statement, describing her alleged assailants. A friend of Roman’s later suggested that Alvarado and Flores were the two officers involved in the sexual assault.

On June 2, 2004, a court signed warrants to authorize searches of Alvarado’s and Flores’ houses. The judge sealed the warrants to the extent of Alvarado’s and Flores’ names and addresses, citing a potential endangerment to the officers and interference with investigative activities.

At some point, a local television station, KOB-TV, learned about the sexual assault allegations. KOB-TV broadcast the names of the officers, and also ran video footage of Alvarado and Flores each answering the door to their respective homes and telling the reporter they did not wish to comment.

During the 10:00 p.m. newscast on June 3, KOB-TV identified the officers as undercover detectives and blurred their faces. However, KOB-TV did not remove their names from the broadcast or subsequent broadcasts. On June 8, KOB-TV reported that the officers had been cleared by DNA evidence and by evidence that one of them was not in the state on the day of the alleged assault. Roman later recanted her allegations.

Alvarado and Flores and their respective spouses sued the City for defamation, false imprisonment, and violation of their constitutional right to privacy. The suit also named KOB-TV as a defendant, alleging invasion of privacy and intentional infliction of emotional distress. When a trial court dismissed the lawsuit against KOB-TV, Alvarado and Flores appealed. The federal Tenth Circuit Court of Appeals rejected the lawsuit.

The Court found that the “tort” of privacy exists when an invasion into an individual’s private life would be “highly offensive to a reasonable person.” The Court found that KOB-TV’s actions in knocking on the door did not rise to the level of being “highly offensive”:

“Alvarado and Flores do not allege that KOB-TV reporters tried to badger their way into the officers’ homes, or that they repeatedly approached Alvarado and Flores at home. Alvarado and Flores do not claim that KOB-TV obtained footage through their windows or other intrusive means. The facts as alleged by Alvarado and Flores simply cannot give rise to the claim of intrusion upon seclusion.”

The tort of invasion of privacy also exists where an individual publicly discloses private facts that are “objectionable to a reasonable person,” where there is a “lack of legitimate public interest in their information.” Alvarado and Flores contended that the disclosure of their names, their home addresses, what they looked like, and the fact that they were undercover police officers all fell within the scope of facts the disclosure of which would be objectionable.

The Court found that Alvarado and Flores could not overcome the “public interest” component of this test. The Court reasoned:

“Courts have generally treated allegations of police misconduct as worthy of public interest. To the extent First Amendment law informs our determination of whether Alvarado and Flores can allege facts showing the publicity of their identities and undercover status was not a matter of public interest in the context of the alleged sexual assault, we are among a number of courts that have found police misconduct allegations specifically and officer qualifications generally are a matter of public interest. Therefore, Alvarado’s and Flores’ privacy claim hinges on a proposed exception for undercover officers, i.e., the disclosure of their identities lacks legitimate public interest as a matter of law. We can find no precedent for such an exception, and we are not inclined to create one here merely on policy grounds, despite our concerns about the safety of undercover officers and the need to avoid disincentives for entering their profession.”

Alvarado v. KOB-TV, L.L.C., 2007 WL 2019752 (10th Cir. 2007).

This article appears in the September 2007 issue