(CN) - Police officers must face claims that they defamed a state trooper who spent his off-duty hours as a nightclub disc jockey, the Massachusetts Appeals Court ruled.
The Massachusetts State Police authorizes trooper Anthony Dear to moonlight as a DJ in Boston-area nightclubs when he is off duty.
Elite Productions had arranged to have Dear host a Thanksgiving Eve party at 33 Restaurant and Lounge in 2006, but the trooper ultimately attended the party solely as a patron. That night, the Boston fire department deemed the club overcrowded and issued an abatement order.
When Police Sgt. John Devaney and Sgt. Detective Kevin McGill issued a pair of premises inspection notices on Dec. 7, they wrote that "Mr. Anthony Dear-promoter, contributed to overcrowding, and patron safety affected."
Neither officer had actually seen the party firsthand, but they apparently learned through Elite's website that it had promoted the event.
They also wrote an incident report stating that Dear owned Elite Productions and the company violated local laws governing alcohol and entertainment, including "underage patrons consuming alcohol, assaults, disorder, fire code violations and overserved intoxicated patrons."
"Mr. Dear has appeared at Boston Licensing Board hearings and has stated to Boston police officers that he was working in an undercover capacity, which the officers found to be false," the report continued.
Dear and Elite lost their performance dates, and Dear has not worked as a DJ since 2007.
A state police investigation cleared Dear of wrongdoing and accused Devaney of misusing his authority.
Dear sued Devaney and McGill for defamation and intentional interference with advantageous relationship. The trial court dismissed the case, stating that Dear failed to state damages and that the officers had absolute immunity.
A three-judge appellate panel reversed last week, allowing Dear to continue his case.
The police statements were not privileged because Dear was not a party to the Boston Licensing Board hearing, nor was he present, according to the ruling.
"Absolute privilege does not extend to statements made by police officers so far removed from any quasi-judicial proceedings that would test the truth or falsity of such assertions," Justice Scott Kafker wrote for the panel.
The officers' statements would not even be protected by qualified privilege, he added.
"Given the seriousness of the charges, the investigation and report were at best incomplete and speculative, and at worst reckless or malicious," the opinion states. "Besides checking Elite's web site and noticing Dear's presence, the officers did no follow-up investigation before publishing serious charges of wrongdoing."
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