PAL Football Board of Directors

This is an action to recover damages or the alleged libel, slander, negligent hiring and training and negligent supervision of the defendant police officer by the defendant county. It has been alleged by the complainant man that on November 6, 2005, he was present at the Athletic League Sports Complex at a football game and following the game, directed a combative, disgruntled park patron out of the park and advised the defendant police officer. The complainant alleges that thereafter, he was sitting in his truck when the police officer, in the presence and hearing of others, spoke to him stating that he smell marijuana in the complainant’s track. The complainant contends he was not engaging in the use or marijuana possession and that the police officer refused to arrest him when he challenged him to do so.

On November 9, 2005, the police officer allegedly submitted a written report of the criminal incident to the County Police Department to a Lieutenant. The complainant claims the report was false and was disseminated to the Police Athletic League in a board meeting with the intent to damage his employment, good name, reputation, and credit. The complainant claims he was thereafter terminated from his contract with the Police Athletic League (PAL) in December 2005.

The County and the police officer seek an order granting summary judgment dismissing the complaint asserted against them. The adduced testimony establishes that the police officer was on duty at his job as a police officer and was present on November 6, 2005 at the PAL football field to observe a football game between twelve year olds from Huntington and the South Shore League to help defray any problems as there were previous complaints about the conduct of the players/coaches/referees on the playing field with regard to yelling and not controlling their conduct. The police officer was observing the game with a PAL Board member, and when the game was over, spotted the complainant’s green van. The police officer wanted to let the complainant know there was nothing further he could do about the woman who complained to him, to advise the complainant that he was leaving, and also, because the police officer’s his first van was green when he began his job, he thought the complainant ‘s van might have been the same one. The complainant testified to purchasing the van from PAL. When the police officer approached the van, the complainant was seated inside. Standing by the driver’s side windows, both police officers testified they could smell criminal marijuana coming from the van when the van window was opened, there was smoke in the vehicle, and one of them stated the complainant’s eyes appeared bloodshot. The complainant denied that he had been smoking marijuana when the police officer questioned him and challenged the police officer to arrest him. The police officer did not arrest him and he walked away. At his next work day, the complainant prepared the written memo directed to his supervising officer concerning his observations of the complainant at the PAL complex. Upon receiving the report, the complainant’s boss who was employed by PAL and was responsible for hiring the complainant, advised him that his supervising officer made a request for the complainant to take a drug test which he did approximately two weeks later. Thereafter, a meeting was called by the supervising officer with the PAL Board, for which the supervising officer and the police officer were board members, to discuss the situation and make a determination as to whether or not the complainant’s employment should be continued. A copy of police officer’s report was disseminated to the board. After a vote by the PAL Board, it was decided that the complainant’s contract, which was due to expire was not to be renewed. The complainant had been working for PAL for seventeen years.

The supervising officer recommended that the criminal complainant seek employment with another Board member. The complainant subsequently commenced work with the other board member. It was the complainant’s testimony that due to medical issues that he has been unable to work since the early spring of 2006 in that job. He testified to the effect that he has since been working full time for the County Transit as a bus driver and has a license. He arrived at the PAL Sports Complex on Furrows Road for a football game, but had no duties or responsibilities there, although he was a board member for the South Shore Football League. He was alone when he drove his green van which he bought from the PAL about a year prior. He met up with his friends. He watched the whole game from about the second quarter on while sitting in his truck at about the 25 or 30 yard line on the east side of the field in an areas designated as a parking area for board members. A woman joined him in the front passenger seat for about fifteen minutes in his vehicle towards the end of the game. Another man also spoke to him from outside the van on the woman’s side. The friend left before the game ended and the woman left when the game ended. He left his vehicle for a time and returned to it after some incidents occurred about the field. He testified that he had been smoking cigarettes in his vehicle and after the incidents, smoked about three when he got back into his van and was approached by the police officer. When he opened his window, the police officer asked him if he was smoking or in criminal possession of marijuana but the denied it and challenged the police officer to arrest him. The following week, his supervisor asked him to take a drug test. He testified that he told his supervisor he was afraid to take the drug test because he smoked pot on Columbus Day. He later testified that he did not say that he took a drag of a marijuana cigarette and that prior to November 6, 2005 he never smoked or in possession of marijuana. He testified that he submitted to the drug test.

His supervisor later showed him a copy of the report prepared by the police officer and given to the supervising officer. The complainant’s supervisor did not give him a copy, he stated, but when the supervisor wasn’t looking, he made a copy of the report on the fax machine, kept the copy and showed it to his fiancé. He also testified that although he had been working, he had not filed income taxes for the last five years prior to the <a href="

In her affidavit, the woman set forth that the complainant was not into marijuana possession at the PAL facility as she was watching the majority of the football game with him. However, the complainant testified she was only watching the game with him for about fifteen minutes.

The complainant bases his defamation claim upon the report prepared by the police officer. In reviewing the same, it is determined as a matter of law that the report is non-actionable opinion and is also protected by qualified privilege.

In the instant action it is determined that a qualified privilege has attached given the facts and circumstances in this action. It is determined that the moving defendant has demonstrated that a good faith, bona fide communication was made between an officer and his supervisor upon a subject which directly affects the officer in his overseeing the games with PAL in that PAL has a zero tolerance for drug use which is adverse to the tenants of the organization and detrimental to the goals set for the children who participate in PAL activities, also because the complainant was employed by PAL as an independent contractor, and also because marijuana use is not a legal activity. The parties demonstrated a legal, oral, and societal interest to speak, and the communication was made to persons with a corresponding interest as the supervising officer was a member of the PAL Board as well as being the police officer’s superior officer. The police officer was also a member of the PAL board as was the member of the PAL Football Board of Directors. The criminal report is determined to contain a flow of information between persons with common interest which should not be impeded; the statements of common interest were made to a fellow employee of the County Police Department and member of the PAL Board on a subject concerning alleged drug possession and drug use on the PAL fields during children’s games.

The shield provided by a qualified privilege is dissolved if a complainant demonstrates that the defendant spoke with malice. The privilege will be lost where the statement was not made for its stated purpose or if it was made with malice that is to say with ill will, spite, or culpable recklessness. After a finding that the defendant sustained its burden of demonstrating that the statements were protected by a qualified privilege, the burden then shifts to the complainant to demonstrate that the defendant spoke with m dice either under the common-law or constitutional standard. Under common law, malice meant spite or ill will, whereas constitutional malice requires a showing that a defendant acted with knowledge that her statements were false or with reckless disregard of whether they were false. Accordingly, to overcome this prima facie showing, the complainant has to establish that malice was the one and only cause for the publication. In a defamation context, malice includes spite, ill will and knowledge that the statements are false or reckless disregard as to whether they are false. Spite and ill will refer to the speaker’s motivation for making the allegedly defamatory comments, not to the defendant’s general feelings about the complainant. Thus a trial issue is raised only if a jury could reasonably conclude that malice was the one and only cause for the publication. In the instant action, no trial issue is raised in that, the record does not support that a jury could reasonably conclude that malice was the one and only cause for the publication. Based upon the foregoing application of the four factors set forth above, and considering the totality of the circumstances, it is determined that the words contained in the report constitute non-actionable opinion. Accordingly, that part of the criminal complaint premised upon defamation is dismissed with prejudice.

The complainant has also asserted causes of action sounding in negligence by the police officer in making the alleged defamatory report; negligence and gross negligence by the County in the training, hiring, supervision of the police officer based upon his failing to comply with the laws, rules and regulations governing police misconduct; the failure to investigate, discipline and remove police officers who failed to comply with laws, rules and regulations governing police misconduct, constituting deliberate indifference to the plaintiffs constitutional right.

Accordingly, the cause of action asserted against the police officer for negligence in writing the report is dismissed as a matter of law; and the causes of action asserted against the County for negligence and gross negligence in the hiring, retention and supervision of the defendant are dismissed as a matter of law. criminal incident and did not pay any taxes.

In the instant action it is determined that a qualified privilege has attached given the facts and circumstances in this action. It is determined that the moving defendant has demonstrated that a good faith, bona fide communication was made between an officer and his supervisor upon a subject which directly affects the officer in his overseeing the games with PAL in that PAL has a zero tolerance for drug use which is adverse to the tenants of the organization and detrimental to the goals set for the children who participate in PAL activities, also because the complainant was employed by PAL as an independent contractor, and also because marijuana use is not a legal activity. The parties demonstrated a legal, oral, and societal interest to speak, and the communication was made to persons with a corresponding interest as the supervising officer was a member of the PAL Board as well as being the police officer’s superior officer. The police officer was also a member of the PAL board as was the member of the PAL Football Board of Directors. The report is determined to contain a flow of information between persons with common interest which should not be impeded; the statements of common interest were made to a fellow employee of the County Police Department and member of the PAL Board on a subject concerning alleged drug possession and drug use on the PAL fields during children’s games.

The shield provided by a qualified privilege is dissolved if a complainant demonstrates that the criminal defendant spoke with malice. The privilege will be lost where the statement was not made for its stated purpose or if it was made with malice that is to say with ill will, spite, or culpable recklessness. After a finding that the defendant sustained its burden of demonstrating that the statements were protected by a qualified privilege, the burden then shifts to the complainant to demonstrate that the defendant spoke with m dice either under the common-law or constitutional standard. Under common law, malice meant spite or ill will, whereas constitutional malice requires a showing that a defendant acted with knowledge that her statements were false or with reckless disregard of whether they were false. Accordingly, to overcome this prima facie showing, the complainant has to establish that malice was the one and only cause for the publication. In a defamation context, malice includes spite, ill will and knowledge that the statements are false or reckless disregard as to whether they are false. Spite and ill will refer to the speaker’s motivation for making the allegedly defamatory comments, not to the defendant’s general feelings about the complainant. Thus a trial issue is raised only if a jury could reasonably conclude that malice was the one and only cause for the publication. In the instant action, no trial issue is raised in that, the record does not support that a jury could reasonably conclude that malice was the one and only cause for the publication. Based upon the foregoing application of the four factors set forth above, and considering the totality of the circumstances, it is determined that the words contained in the report constitute non-actionable opinion. Accordingly, that part of the criminal complaint premised upon defamation is dismissed with prejudice.

In the instant action it is determined that a qualified privilege has attached given the facts and circumstances in this action. It is determined that the moving defendant has demonstrated that a good faith, bona fide communication was made between an officer and his supervisor upon a subject which directly affects the officer in his overseeing the games with PAL in that PAL has a zero tolerance for drug use which is adverse to the tenants of the organization and detrimental to the goals set for the children who participate in PAL activities, also because the complainant was employed by PAL as an independent contractor, and also because marijuana use is not a legal activity. The parties demonstrated a legal, oral, and societal interest to speak, and the communication was made to persons with a corresponding interest as the supervising officer was a member of the PAL Board as well as being the police officer’s superior officer. The police officer was also a member of the PAL board as was the member of the PAL Football Board of Directors. The report is determined to contain a flow of information between persons with common interest which should not be impeded; the statements of common interest were made to a fellow employee of the County Police Department and member of the PAL Board on a subject concerning alleged drug possession and drug use on the PAL fields during children’s games.

The shield provided by a qualified privilege is dissolved if a complainant demonstrates that the defendant spoke with malice. The privilege will be lost where the statement was not made for its stated purpose or if it was made with malice that is to say with ill will, spite, or culpable recklessness. After a finding that the defendant sustained its burden of demonstrating that the statements were protected by a qualified privilege, the burden then shifts to the complainant to demonstrate that the defendant spoke with m dice either under the common-law or constitutional standard. Under common law, malice meant spite or ill will, whereas constitutional malice requires a showing that a defendant acted with knowledge that her statements were false or with reckless disregard of whether they were false. Accordingly, to overcome this prima facie showing, the complainant has to establish that malice was the one and only cause for the publication. In a defamation context, malice includes spite, ill will and knowledge that the statements are false or reckless disregard as to whether they are false. Spite and ill will refer to the speaker’s motivation for making the allegedly defamatory comments, not to the defendant’s general feelings about the complainant. Thus a trial issue is raised only if a jury could reasonably conclude that malice was the one and only cause for the publication. In the instant action, no trial issue is raised in that, the record does not support that a jury could reasonably conclude that malice was the one and only cause for the publication. Based upon the foregoing application of the four factors set forth above, and considering the totality of the circumstances, it is determined that the words contained in the report constitute non-actionable opinion. Accordingly, that part of the complaint premised upon defamation is dismissed with prejudice.

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