Smith v. Danielczyk

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HEADNOTE: Robert Leo Donald Smith, et al. v. Scott Danielczyk, et al. No. 133, September Term, 2006 Police officers have qualified, but not absolute immunity for defamatory statements made in application for search warrant. IN THE COURT OF APPEALS OF MARYLAND No. 133 September Term, 2006 _______________________________________ ROBERT LEO DONALD SMITH, ET AL. v. SCOTT DANIELCZYK, ET AL. _______________________________________ Bell, C.J. Raker Cathell Harrell Battaglia Greene Wilner, Alan M. (Retired, Specially Assigned) JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: July 25, 2007 The principal issues in this case are what, if any, privilege or immunity police officers have (1) for m aking allegedly false defam atory statements in an application for a search warrant, and (2) for voluntarily disclosing those statements to the news media.1 We shall hold that, to the extent they may apply under the particular factual circumstances, police officers have the common law qualified immunity enjoyed generally by public officials and the statutory protection afforded by the State Tort Claims Act or the L ocal Gov ernment T ort Claims A ct, but that they do not enjoy any ab solute privileg e or imm unity. BACKGROUND On M ay 5, 2006, ap pellants, Ro bert Smith a nd Vick i Meng el, filed in the C ircuit Cou rt for Baltimo re City a on e-co unt c omp laint for d efam ation agai nst S cott D anie lczyk and Jo hn Jen drek, ap pellees. T hat com plaint w as dism issed on motion , with pr ejudice . Ordinarily, in reviewing the dismissal of a complaint on motion, we look only to the allegations in the complaint and any exhibits incorporated in it and assume the truth of all well-pled facts in the complaint as well as the reasonable inferences that may be drawn from those relevant and material facts. Ricketts v. R icketts, 393 Md. 479, 491-92, 903 A.2d 857, 864 (2006), quoting from Porterfield v. Mascari II, Inc., 374 Md. 402, 414, 1 In this context, the terms privilege and immunity are often used interchang eably. To the e xtent there is a privilege, imm unity from liab ility tends to follow . -1- 823 A.2 d 590, 59 7 (2003); see also Debbas v. Nelson, 389 Md. 364, 372, 885 A.2d 802, 807 (2 005). Maryland Rule 2-322(c) provides, however, that if, on a motion to dismiss for failure of the complaint to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 2-501 [which governs motions for summary judgment]. Rule 2-322(c) adds that, in that event, the parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 2 -501. Three defenses were raised in the motion to dismiss, but they all fit, at least in a general w ay, within the am bit of an ass ertion that the c omplaint f ailed to state a c laim upon which relief could be granted.2 Althoug h no extran eous ma terial was attac hed to either the complaint or the motion to dismiss in this case, appellees made certain factual averments in the memorandum they filed in support of their motion and attached as exhibits to that memorandum copies of applications for certain search warrants, the warrants themselves, an d an undated an d unsigned doc ument that purports to be a return 2 Appellees motion, as supplemented in their memorandum in support of the motion, sou ght to dism iss the com plaint on the grounds th at (1) the plain tiffs failed to comply and allege com pliance w ith a statutory notice provision a nd, as a resu lt, their claim was barred as a matter of law, (2) the defendants were immune from liability for defamation by reason of an absolute and qualified privilege, and (3) the complaint failed to set forth a prima facie case of defamation. -2- identifying material seized pursuant to one of the warrants. In their response to the motion , appella nts alleg ed add itional fa cts that w ere not m entione d in the c ompla int. Because the court dismissed the complaint without explanation, it is not clear whether any of that material was, in fact, considered. The record does not indicate that the extraneous documents or averments were excluded by the court, however, so we mus t assu me th at the y were considered . Ordinarily, theref ore, we w ould be ob liged to treat the cour t s ruling as the grant of su mmary judg ment for a ppellees an d review it in that light. Under Maryland Rule 2-501(f), summary judgment may properly be entered only if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law . In makin g that determ ination, all facts set before th e court and all inferences that may fairly be drawn from those facts must be considered in the light most favora ble to the non-m oving p arty, in this c ase the a ppellan ts. See Un ited Servs. A uto Ass n v. Riley, 393 M d. 55, 66-67 , 899 A.2d 819, 825 -26 (2006 ); Haas v. Lockheed Martin, Corp., 396 M d. 469, 4 78-79 , 914 A .2d 735 , 740-4 1(200 7). Regrettably, some of the relevant facts are not presented with the greatest clarity or even in the proper m anner. 3 Because there seems to be no dispute regarding the 3 Facts that a party wishes a court to consider in deciding a motion should be set forth in the motion, in an attachment to the motion, or in a pleading or motion already before the cou rt, not in a memo randum of law or a resp onse to such a m emora ndum . A memo randum may pro perly disc uss the r elevan t facts, b ut it is not th e place to plead them. Moreover, having decided to add extraneous facts, not then part of the record, appellees -3- extraneous material appended to appellees motion to dismiss and none of the relevant factual ave rments by ap pellees in their m emorand um or m ade by appe llants in respo nse to the motion were con troverted, w e shall regard the exhibits a nd the add itional averm ents as simply supp lementing the allegation s in the com plaint and c onsider the relevant fac ts pled in th e com plaint, as so supp lemen ted. See Pen sion Ben. G uar. Corp . v. White Consol. Ind., 998 F.2d 1192 , 1196 (3 rd Cir. 1993). Appellants Rob ert Smith and Vick i Mengel w ere Baltimore City police officers assigned to a seven-m ember F lex Squad in the Sou thwest D istrict. Smith, a serg eant, was the supervisor of the squad. Mengel was an investigator. The Flex Squad came under scrutiny when a woman claimed that she had been raped by a police officer in the Flex Squad office.4 On December 29, 2005, in furtherance of an investigation into the rape charge and p ursuant to applications mad e by appellees, who w ere police officers assigned to that investigation, warrants were issued to search the office of the Flex Squad and certain lockers located in the office. In the execution of those warrants, which occurred at about 2:00 that same afternoon, co ntrolled dangerous sub stances were discovered in a duffel bag under one officer s desk, in a second officer s desk drawer, and in a third officer s jacket pocket. On the wall of the office, a vial with white residue was were obliged to present those facts in an affidavit made on personal knowledge, which they did not do. Any new facts contained in a response by appellants also were required to be supp orted by affid avit. 4 That officer, who is not involved in this case, wa s charged criminally but, we are advised, was acquitted. -4- discovered. No contraband was discovered from Smith or Mengel, who were not present at the office th at da y, or, a pparently, fro m their desks , lock ers, o r other pr operty. Promptly after the search was conducted, appellees prepared an application for another warrant to searc h the Flex Squad office and various loc kers and containers located there. It is the affidavit accompanying the application for that warrant that forms the basis of this lawsuit. In their affidavit, appellees recited the execution of the initial warrants, described the contraband that was discovered, and stated that the office was used by the entire Flex Squad, including Officers Smith and Mengel. They expressed the belief that probable cause existed that the narcotics laws of the State have been violated by each of the above named officers, and that it is reasonable that additional contraband may be concealed within their individual lockers. (Emphasis added). The affiants noted that, [a]s of now, only the lockers belonging to Officers Hatley, Jones, Nagovich, and Ali have been identified. They added, however, that [a]ffiant Danielczyk also has prior knowledge that Officers Jones and Mengel have been implicated in the theft of cellular phones belonging to arrestees and that allegations against Officers Jones and Mengel have been made as to the planting of controlled dangerous substances on citizens in an effort to knowingly make false arrests. The affidavit gives no details with respect to the allegations regarding the theft of cell phones or the planting of CDS on citizens, or as to the basis of Danie lczyk s p rior kno wledg e. Upon those allegations, appellees stated that there was probable cause to believe -5- that all seven officers, including Smith and Mengel, were violating the controlled dangerous substance laws and were using the Southwest District Flex Office and the lockers of Officers Hatley, Jones, Nagovick, and Ali to facilitate their illegal activity. Curiously, although the affidavit clearly alleged, and, indeed, was largely based on, information discovered as a result of the search conducted earlier that afternoon, on Decem ber 29, 200 5, the judge to whom it was prese nted stated th at it was [s]w orn to before me and subscribed in my presence this 27th day of September, 2005. (E mphasis added). There is no explanation in this record of why the affidavit is dated more than two m onths b efore m ost of th e inform ation on which it is based was re ceived . Appellees attached as an exhibit to their motion to dismiss an unsigned, undated, unwitnessed, unattested Return, indicating that a warrant was issued and was executed at or about 5:00 p.m. on December 29, 2005, and listing the items allegedly seized from the office described in the warrant. Among those items were ziplock bags containing pills, white powder, and green leafy substance, cellular phones, electric scales, counterfeit CDs and DVDs, and pornographic magazines. The purported return does not indicate whether any of that material was discovered in the desk, locker, or other property of Smith or Meng el. In their com plaint, appella nts alleged, in r elevant par t, that: (1) prior to December 29, 2005, they had not observed any member of the Flex Squad unlawfully possessing or distributing any controlled dangerous substances -6- and wer e not, themselves, invo lved in su ch ac tivity, (2) appellees acted in reckless disregard of the truth and falsely accused the Plain tiffs of comm itting crim es wh ile emp loyed as B altimore City Polic e Off icers, (3) appellees falsely stated, on the scant evidence set forth in the affidavit, that they believed there was sufficient probable cause to believe that Smith was violatin g the C DS law s and w as using the Flex Offic e to fac ilitate illeg al activity, (4) they falsely stated th at Meng el had bee n implicated in the theft of cell phones and had planted CDS o n citizens in order to knowingly make false arrests, (5) they knew or shou ld have know n that Smith and M engel were prov iding loya l serv ice to the D epar tmen t and wer e not eng aged in an y illeg al ac tivity, (6) the false s tatements, inc luding the f alse stateme nt that appe llees hones tly believed that Smith and Mengel were involved in drug crimes, were set forth for the malicious p urpose of embarras sing [Sm ith and M engel] and causing the m to be su bject to public ridicule, scorn, dishonor, and embarrassmen t and to ruin their careers as Baltimo re City Polic e Off icers, (7) the false statements were leaked by the Defendants to members of the media for the express purpose of causing publication of the false statements, and (8) as a direct result of appellees malicious defamation Smith s police powers were suspended on January 13, 2006, and they both have suffered great emotional -7- trauma and other damage, including the ruination of their police careers.5 Appellees moved to dismiss the complaint on the grounds that appellants had failed to comply with the m andatory notice provisions of the Local Gove rnment Tort Claims Act (LGTCA), that as writers of a criminal warrant, they were immune from a defamation suit by absolute and qualified privilege, and that the complaint failed to allege a prima fac ie case of defamation upon which relief could be granted. Those defenses were explicated in some greater detail in an accompanying memorandum. As to the notice re quirem ent, app ellees po inted ou t that M aryland C ode, § 5 -304(b ) of the C ts. & Jud. Proc. Article (CJP), which is part of the LGTCA, prohibits an action for unliquidated damages against a local government or its employees unless notice of the claim is given within 180 days after the injury. The notice, they added, must be in writing and state the time, pla ce, and cause o f the inju ry. The defense of absolute immunity was based on a line of Maryland cases holding that person s participating in the judicial p rocess enjo y an absolute im munity from liability for making defamatory statements in the course of judicial proceedings. The judicial system, they contended, could not fu nction without absolute im munity to protect officers 5 Although we are unable to find in the complaint an allegation by Mengel that her police powers were suspended, there is an unrebutted statement in appellants joint response to the motion to dismiss, no t excluded by the court, that th ey admit that their police pow ers were su spended . (Emph asis added ). In appellan ts brief in this C ourt, Mengel states that, at some point, she retired from the police department because of injuries s ustained in the line of duty. -8- from civil liab ility for statements m ade in app lications for se arch war rants. In add ition to this absolute im munity, appelle es asserted a qualified im munity for disc retionary acts comm itted by po lice off icers w ithout ac tual ma lice, i.e., an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff. The complaint, they urged, was bereft of any facts that support a claim of evil or rancor ous mo tive. Finally, urging that appellants were public figures or public officials, appellees contended that, unde r New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 , 11 L. Ed. 2d 686 (1964) and its progeny, appellants were required to show that appellees also acted with what may be called Constitutional malice, that is, that they had actual knowledge that their statem ents were false or acte d in reckless disregard o f whethe r the stateme nts were true o r false, and th at appellants h ad not don e so. App ellees conten ded, as w ell, that, under common law principles, appellants had not pled that there had been a publication for purposes of a defamation suit that the issuance of a search warrant does not constitute publication, that they had not shown that the statements complained of were f alse, and that they h ad faile d to alleg e actua l dama ges. It does not appear that any of the parties requested a hearing on the motion. On August 3, 2006, the court granted the motion, without a hearing, without any explanation or assignm ent of reaso ns, but with prejudice, an d this appea l ensued. A ppellants obviously be lieve that the c ourt dismisse d their com plaint on the ground o f absolute -9- immunity, for that is the only issue raised or addressed in their initial brief in the Court of Special Appeals. We granted certiorari on our own initiative, prior to proceedings in the Court of Special A ppeals, to co nsider wh ether police o fficers do, in deed, poss ess absolute immunity fo r defama tory statements m ade in an a pplication fo r a search w arrant. It is evident, now that we have the record and the appellees responsive brief, that other issues may also be in the case, although we may quickly dispose of them. DISCUSSION Statutory Notice As we have observed, CJP § 5-304(b) provides that an action for unliquidated damages may not be brought against a local government or its employees unless notice of the claim required by this section is given within 180 days after the injury. The notice must be in w riting and m ust state the tim e, place, and cause of th e injury, and, in Baltimore City, it must be given to the C ity Solicitor.6 See § 5-304(c). Section 5-304(d) provides, however, that, unless the defendant can affirmatively show that its defense has been prejudiced by lack of required notice, upon motion and for good cause shown the 6 Alth ough the Balt imore City Police D epar tmen t is a S tate, not a City, a gency (see Clea v. City of Baltimore, 312 Md. 662, 541 A.2d 1303 (1988)), it is defined as a local govern ment for pu rposes of LG TCA . See CJP § 5-301(d)(21). Thus, employees of the Depa rtment a re regar ded as l ocal go vernm ent em ployees. See CJP § 5- 301(c). City police officers therefore have the protection and immunity provided by LGTCA . Because this action was against city police officers, the City was entitled to the notice required by § 5-304. -10- court m ay enterta in the su it even th ough th e requir ed notic e was n ot given . Although appellees claimed in their motion to dismiss and accompanying memorandum that appellants had failed to comply with that requirement, they offered no facts in support of that argu ment. It was, indeed, a bald, un supported allegation. In response, a ppellants po inted out tha t they had filed s uit against ap pellees with in six months o f the tortious a ct, that the City So licitor had acc epted servic e of the co mplaint, and that, in any event, they sent notice to the City on June 23, 2006, which, they claimed, was also within six months. They did not attach a copy of the notice to their response. A fair reading of the complaint indicates that two acts of defamation were alleged the making of false statements in the application for the search warrant and the voluntary disclosure of those statements by appellees to the news media. Notwithstanding the obviously incorrect date given by the judge on the affidavit, it is evident that the first of those events occurred on December 29, 2005, when all parties agree the application was, in fact, made. The second, at least inferentially, occurred some time later, although when is not alleged. The complaint was filed May 5, 2006. When appellees complained that the City, which was not sued, had not received a separate notice of the claim, such a notice was sent to the City on June 23, 2006. Apart from the information supplied in the complaint, which set forth everything that would be required in a separate notice, the separate no tice itself was given w ithin180 da ys after Dece mber 29 , 2005, and would therefo re be tim ely. -11- Appellee s argume nt, as set forth in their brief, is that th e giving of timely notice is a condition preceden t to filing suit, that co mpliance with that co ndition mu st be alleged in the complaint, and, as the notice was not given prior to the filing of suit and the complaint therefore did not and could not alleged compliance, the complaint must be dismissed. For that proposition, appellees cite Neuenschwander v. Wash. San. Com., 187 Md. 67, 48 A.2d 593 (1946) and Rios v. M ontgom ery Cou nty, 386 M d. 104, 8 72 A.2 d 1 (20 05). Those cases, and others, do, indeed, regard the notice requirement as a condition precedent to the ability to maintain an action against a local government or, under the LGTCA , against its employees, and we do not depart from that precept here. In those cases, however, and in the others in which we have similarly enforced the notice requirement, timely and sufficient notice was not given at all and the lawsuit was filed after the period for giving the notice had expired. That is not the case here. Not only was a separate n otice given within the tim e allowed , prior to the dism issal of the co mplaint, but the complaint, itself, was filed within the 180-day period allowed and provided all of the info rmation require d to be c ontaine d in the n otice. As we have long made clear, the purpose of the notice requirement is to apprise local governments of possible liability at a time when they can conduct their own investigation into the relevant facts, w hile evidence and the rec ollection of witnesses are still fresh . See Faulk v. Ewing, 371 M d. 284, 298 -99, 808 A .2d 1262 , 1272 (20 02); Rios v. Montgomery County, supra, 386 Md. at 126-27, 872 A.2d at 14 . That purpose has -12- clearly been served here, so the fact that the complaint was filed prior to the sending of the notice d oes not co nstitute a grou nd for dism issing the co mplaint. Ev en if, in a pur ely technical sense, the notice should precede the complaint, appellees have failed to allege, much less affirmatively show, that they were prejudiced. If the Circuit Court dismissed the complaint on this ground, it erred.7 Sufficiency of Allegations The gravamen of the complaint consisted of the statements by appellees that appellants were violating the controlled dangerous substance laws of the State, that they were using the police office and lockers to facilitate their illegal activity, and that Mengel had been implicated in the theft of cellular phones and had planted controlled dangerous substances on citizens in an effort to knowing ly make false arrests. Those stateme nts are obviou sly accusa tions of crimina l activity on the part o f appe llants. The complaint alleges that those statements were false and that appellees knew or 7 There is another sub-issue that, in light of our conclusion that there was at least substantial, if n ot full, comp liance with CJP § 5- 304, we need not re solve. In resp onse to appellees m otion to dism iss, appellants p ointed out th at they had no t sued Baltim ore City and, for that reason, were not required to give the statutory notice to the City. In Ennis v. Crenca, 322 Md. 285, 587 A.2d 485 (1991), we held that, where a local official is sued for his or her own conduct that is not in furtherance of the local government s business and no action is brought against the local government itself, notice under § 5-304 need not be given to the local government. In that case, we held that the official, sued for making defamatory statements to the news media, was acting in her own personal and political interest and not that of the county. It is not necessary for us to determine whether the principles enunciated in Ennis would apply here. -13- should have known that they were false. It alleges that, in making those statements, appellees acted in reckless disregard of the truth and that they were made for the malicious p urpose of embarras sing [app ellants] and c ausing them to be subjec t to public ridicule, scorn , dishonor, an d embarra ssment an d to ruin their c areers as B altimore C ity Police Of ficers. Th e false statem ents, the com plaint adds, w ere leaked by appellees to members of the news media for the express purpose of causing pub lication of the false statements. As a direct result of the malicious defam ation, Smith s police pow ers were suspended on January 13, 2006, and both plaintiffs have suffered great emotional trauma and oth er dam age, inc luding the ruin ation of their po lice care ers. Appellees raise three objections with respect to those allegations. First, they contend that, as police officers, appellants are public officials subject to the more rigorous standards of New York Times v. Sullivan, and that they may not recover for defamation unless they plead and show that appellees had actual kn owledge that their stateme nts were false or acted with reckless disregard of whether those statements were true or false. The allegations of the comp laint, they aver, fail to satisfy that exacting standard. They regard the allegations that they acted with malice and reckless disregard of truth as mere buzz words. Although this Co urt does not seem to h ave ruled directly on the matter, it appears to be well-settled, in part from opinions of the U.S. District Court for Maryland, that police officers, from pa trol officers to chiefs, are regarded f or New York Times purposes -14- as public officials.8 To recover, therefore, appellants will have to prove, by clear and convincing evidence, that appellees acted with what has been termed Constitutional malice, i.e., that they either knew their statements were false or acted with reckless disrega rd of w hether th ey were t rue or f alse. The complaint alleges that the statements charging criminal behavior on the part of appellants were false and were made with reckless disregard of truth or falsity. The complaint is very thin with respect to facts supporting the averment of reckless disregard, and it may well be that appellees have a right to further detail. There is enough there, howev er, to preclud e, on a first m otion to dism iss, a dismissal with prejudice. If the court regarded the allegations as merely conclusory and insufficient, it should have permitted appellants to amend their complaint, if they properly can, to provide a greater factual basis. Thus, if the court s dismissal with prejudice was based on the insufficiency of the 8 See Seymour v. A.S. Abell Co., 557 F. Su pp. 951 (D . Md. 198 3); Carroll v. City of Westminster, 52 F. Sup p. 2d 546 (D. Md . 1999); Thuma v. Hearst Corp., 340 F. Supp. 867 (D.M d. 1972); Fearnow v. Chesapeake Telephone, 104 M d. App . 1, 68, 65 5 A.2d 1, (1995 ), rev d on other grounds, 342 M d. 363, 6 76 A.2 d 65 (1 996). See also Gray v. Udevitz, 656 F.2d 588 (10th Cir. 1981) ; Coughlin v. Westinghouse Broad. and Cable, Inc., 780 F.2d 340 (3 rd Cir. 1985) ; McKinley v. Baden, 777 F.2d 1017 (5 th Cir. 1985) ; Meiners v. Moriar ity, 563 F.2d 343 (7 th Cir. 1977) ; Mercer v. City of Cedar Rapids, 308 F.3d 840 (8 th Cir. 2002) ; Smith v. R ussell, 456 So. 2 d 462 (Fla . 1984); Reed v. Northwestern Pub. Co., 530 N .E.2d 474 (Ill. 1988); Roche v. Egan, 433 A.2d 757 (M e. 1981); NAACP v. Moody, 350 So. 2 d 1365 (M iss. 1977); Malerba v. Newsday, 406 N.Y.S.2d 552 (N.Y.A .D. 1978) ; Dellinger v . Belk, 238 S.E.2 d 788 (N .C. App. 1 977); McClain v. Arnold, 270 S.E.2 d 124 (S.C . 1980); Starr v. Beckley Newspapers Corp., 201 S.E.2d 911 (W.Va. 1974). We have held law enforcement officers to be public officials for purposes of the c omm on law public o fficial im munity fr om tort l iability for n egligen t condu ct. Williams v. Baltimore, 359 Md. 101 , 138, 753 A.2d 4 1, 61 (2000). -15- allegations to withstand a New York Times defense, it abused its discretion. That is true a s well with respect to ap pellees argu ment that the complain t failed to allege the elements of the common law tort of defamation. To present a prima fac ie common law case for defamation, a plaintiff must plead and prove four things: that the defendant made a defamatory statement to a third person; that the statement was false; that the defendant was legally at fault in making the statement; and that the plaintiff thereby suffered harm. Gohari v. Darvish, 363 Md. 42, 54 , 767 A.2d 321 , 327 (2001), quoting from Rosenberg v. Helinski, 328 Md. 664 , 675, 616 A.2d 8 66, 871 (1992). Word s that fa lsely impu te crimin al cond uct to a p laintiff a re defa matory. A.S. Abell Co. v. Barnes, 258 M d. 56, 26 5 A.2d 207 (1 970), cert. denied, 403 U.S. 921, 91 S. Ct. 2224, 29 L. Ed. 2d 700 (19 71). That the complaint was sufficient to allege the false imputation of criminal conduct to appellants does not seem to be contested by appellees and, in any event, is clear. Appellees make the curious argument that the complaint does not alleg e that the false sta temen ts were ever pu blished or com munic ated to a third pa rty. In making that argum ent, they ignore entirely the allegation that the statements were leaked to the news media and, instead, rely on Picone v . Talbott, 29 Md. App. 536, 546, 349 A.2d 615, 620-21 (1975) and Bartlett v. Ch risthilf, 69 Md. 219, 224, 14 A. 518. 51920 (1888) for the proposition that statements made in an application for a warrant are not publish ed. Th ose cas es do n ot, in any w ay, suppo rt that pro position . Bartlett, as we sha ll see, did not inv olve an d had n othing to do w ith a wa rrant. Picone, misconstruing some -16- language in Bartlett, did hold that statements made in an application for arrest warrant were privileged, but it did not ho ld that such statements are no t published. Whether a person has a privilege to make defamatory statements in a warrant application has nothing to do with whether the statements are published. Appellees argument regarding falsity is even more peculiar. They claim that [n]o where in the complaint do Appellants allege that these statements have been proved false, and therefore, they utterly fail to satisfy an element of the tort of defamation. (Emphasis added). A plaintiff does not have to allege that defamatory statements have alrea dy, previo usly b een p rove d fal se, but on ly that they are so. Falsity will have to be proved a t trial. We hav e already add ressed app ellees conte ntion that the c omplaint f ails to suff iciently alle ge reck less disre gard of truth an d need not rep eat that d iscussio n. Finally, appellees argue that the complaint fails to allege actual damages. That argument seem s to be based on the f act that the plaintiffs neither lost their jobs nor w ere charged with a crime in relation to the execution of the search warrant. Appellees overlook the allegation that appellees conduct caused appellants to have their police powers suspended, which would seem, by fair inference, to have precluded them from fulfilling the d uties of a po lice officer a nd thus ad versely affec t their emplo yment. Privilege/Immu nity The crux of this case is whether appellees enjoyed either an absolute or qualified -17- privilege to make the statements they made in their application for the search warrant and then voluntarily to share those statements with the news media. Although we have done this before, it would be helpful at the outset to define and distinguish these two kinds of privileges, or immunities. In Di Blasio v. Kolodner, 233 M d. 512, 5 22, 197 A.2d 2 45, (1964), we explained: An absolute privilege is distinguished from a qualified privilege in that the former provides immunity regardless of the purpose or motive of the defendant, or the reasonableness of his conduct, while the latter is conditioned upon the absenc e of m alice an d is forf eited if it is abused . See also Minor v. Novotny, 304 Md. 164 , 167, 498 A.2d 2 69, 270 (1985). Appellee s maintain th at they have an absolute pr ivilege with respect to state ments made in an application for search warrant because such an application is part of the judicial process and this Court has long recognized that statements made in the course of the judicial process are protected by an absolute privilege that is not defeated even if the statements are made maliciously. Appellants contend that an application for a search warrant is not part of the judicial process and therefore defamatory statements in such an applica tion are n ot abso lutely privil eged. The starting point for ou r analysis is a trilogy of c ases decide d on the sa me day in June, 1 888. T he first o f those cases, Maulsby v. Reifsnider, 69 Md. 143, 14 A. 505 (1888) involved whether statements made by an attorney in the course of a judicial proceeding were subject to an absolute or qualified privilege. The court defined the practical -18- difference in terms of whether the statements were relevant to the proceeding. If the privilege is absolute, relevance or irrelevance is immaterial; the only issue is whether they were made in the course of a judicial proceeding. If the privilege is qualified, the statements would not be protected unless they were relevant. Rejecting English precedent, which afforded an absolute privilege to attorneys statements, the Court opted for the qua lified privilege , holding tha t if counse l in the trial of a c ause malic iously slanders a party, or witness or any other person in regard to a matter that has no reference or relation to, or connection with, the case before the Court, he is and ought to be answerable in an action by the party injured. Id. at 162, 14 A . at 510. (Em phasis in original). As we shall ex plain, the Co urt later mod ified that view somew hat. The se cond c ase, Hunck el v. Voneiff, 69 Md. 179, 14 A. 500 (1888) concerned the nature of the privilege possessed by a witness, and in con trast to the pos ition taken in Maulsby with respe ct to an attorne y, the Court co ncluded th at a witness had an ab solute privilege, explaining: The case now before us is not that of an advocate but of a witness, and in our o pinion it is of th e greatest im portance to the administration of justice that witnesses should go upon the stand with their minds absolutely free from apprehension that they may subject themselves to an action of slander for what they may sa y while g iving th eir testim ony. Id. at 187, 14 A. at 501. (Em phasis in original). In reaching that conclusion, and in contrast to what it had done in Maulsby, the Court decided to follow the English approach, which provided an absolute privilege for -19- witnesses, notwithstanding that the weight of then-existing American cases was in favor of a more limited privilege. The Court adopted not just the English decisions, but the law on this subject as they have laid it down, Id. at 193, 14 A. at 504, including the rationale for those decisions. For that, the Court turned in particular to two cases the judges response to the House of Lords in Dawkins v. Rokeby, Law Rep. 7 H.L., 744, and Chief Judge Cockburn s opinion in Seama n v. Nether clift, Law Rep., 2 C.P. Div.,53. It is clear from both of those cases that the absolute privilege afforded to witnesses under English law was limited to what he says or writes in giving evidence before a Court of justice, Hunc kel, at 189, 14 A. at 502, quoting from Dawkins, to the extent of what he says in course of his examination, Hunckel, at 189, 14 A. at 502, quoting from Seam an. The Court noted Chief Judge Cockburn s caveat that what he says before he enters or after he has left the witness-box is not privileged. Hunckel, 69 Md. at 190, 14 A. at 502. The rationale for the rule, as articulated in Dawkins, was that public policy requires that witnesses should give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice. Hunckel, at 189, 14 A. at 502, quoting from Dawkins. The th ird case , Bartlett v. Ch risthilf, 69 Md. 219, 14 A. 518 (1888) concerned the privilege to be acco rded state men ts ma de by parties to a lawsuit in their pleadings and motions. In a way, it is the mo st relevant of the three cas es becaus e it was sub sequently misconstrued by the Court of Special Appeals in Picon e v. Talb ott, 29 Md. App. 536, 349 -20- A.2d 6 15 (19 75) and has bee n misco nstrued by appellees. In the course of a lawsuit brought by Muir against Whiting and Bartlett in the equity court in Baltimore, Bartlett and Christhilf were appointed by the court as coreceivers of the firm that apparently was the subject of that litigation. Several weeks later, Christhilf f iled a petition in the underlying case alleging that Bartlett w as unlaw fully withholding assets from the receivership, obstructing collection of the firm s assets, and acting in contempt of the court s authority, and that he had embezzled money belonging to the firm. Bartlett answered the petition, but before any hearing could be held, the litigation that had produced the receivership was settled and dismissed. Bartlett then sued Christhilf fo r libel and m alicious abu se of proc ess. The issu e presented , with respec t to the libel coun t, was wh ether the statem ents in Ch risthilf s petition, file d in the equ ity case, were absolutely privileged. Adopting the approach taken in Hunckel, the Court held that those statem ents were protected by an absolute privilege. In that regard, the Court stated: It is stated in a work of high authority that an action for defamation will not lie for anything sworn or stated in the course of a judicial proceeding before a Court of competent jurisdiction, suc h as defam atory bills or proce edings filed in chancery, or in the ecclesias tical Courts, o r affidavits contain ing fals e and sc andalo us asse rtions ag ainst oth ers. Therefore, if a man goes before a justice of the peace and exhibits articles against the plaintiff containing divers false and scandalous charges concerning him, the plaintiff cannot have an action for a libel in respect of any matter contained in such articles, for the party preferring them has pursued the ordinary course of justice in such a case; and if actions -21- should be permitted in such cases, those who have just cause for comp laint would not dare to compla in, for fear of infin ite vexation. Id. at 223-24, 14 A. at 518, quoting in part from 2 Addison on Torts, § 1092 (Wood s Ed.) (Emphasis add ed). The Court observed that there was a large collection of cases where parties have from time to time attempted to get damages for slanderous and malicious charges contained in affidavits made in the course of a judicial proceeding but that in no one instance has the action been held to be maintainable. Bartlett, at 224, 14 A. at 519 (Emphasis add ed). More re cently, the Cou rt has revised some of the seman tic distinctions, co me to view the privilege possessed by counsel, witnesses, and parties as essentially the same and theref ore as app lying to both ev identiary and n on-eviden tiary statements, an d to extend the absolute privilege to documents and reports prepared for use in judicial proceedings, even if not actually filed in the proceeding. Some of those revisions were announced in Kennedy v. Cannon, 229 Md. 92, 9697, 182 A.2d 54, 57 (1962) where, after quoting at length from Maulsby (dealing with the privilege enjoyed by attorneys), the Court explained that [w]hat was characterized in that case as a qualified privilege for communications, conditioned on their being pertinent or relevant to a judicial proceeding, without regard to the motive of the speaker, is referred to by modern text writers and in case law as an absolute privilege. The Court continued: -22- This absolute immunity extends to the judge as well as witnesses and parties to the litigation, for de famatory statements u ttered in the co urse of a trial o r contained in pleadings, a ffidavits, dep ositions, and other docu ments directly related to the case. (citation o mitted). An absolute privilege is distinguished from a qualified privilege in that the former provides immunity regardless of the purpose or motive of the def endant, or th e reasonab leness of h is conduc t, while the latter is cond itioned upo n the absen ce of ma lice and is forfeite d if it is ab used. Kennedy, 229 M d. at 97, 182 A.2d at 57 . The exten sion of the p rivilege to rep orts prepared for use in judicial proceedings was announced in Adams v. Peck, 288 Md. 1, 415 A.2d 292 (19 80). Those cases involved actual judicial proceedings testimony, argument of counsel, and pleading s and docum ents prepared for, filed, or presen ted in court. In several cases Gersh v. Ambrose, 291 M d. 188, 4 34 A.2 d 547 ( 1981) , Odyniec v. Schneider, 322 Md. 520, 526-28, 588 A.2d 786, 788-90 (1991), and Reichardt v. Flynn, 374 Md. 361, 823 A.2d 566 (2003) we recognized that the absolute privilege for judicial proceedings could apply in certain administrative proceedings as well, depending on (1) the nature of the public function of the proceeding, and (2) the adequacy of proced ural saf eguard s whic h will m inimize the occ urrenc e of de famato ry stateme nts. Gersh v. Ambrose, supra, 291 Md. at 197, 434 A.2d at 551-52. None of those cases, howe ver inv olved s tateme nts mad e in an a pplicatio n for an arrest or search warra nt. The issue of whe ther stateme nts made in a warran t application e njoy an abso lute privilege, on the theory that an application presented to a judge is in the nature of a -23- judicial proceeding, has never been decided by this Court, although the emphasized language quoted above from Bartlett v. Ch risthilf did lead the Court of Special Appeals, in Picone v . Talbott, supra, 29 Md. App. 536, 546, 349 A.2d 615, 620-21, to hold that stateme nts mad e in an a pplicatio n for an arrest w arrant w ere abs olutely priv ileged. Appellees also rely on that language and on Picone. Some explanation is in order. As w e obser ved, Bartlett v. Ch risthilf did not invo lve an app lication for a w arrant, but rather a petition filed in court in an on-going lawsuit, which the Court held was protected by an absolute privilege. Consistent with its holding in the two other cases decided contemporaneously, the Court iterated the general rule that an action for defamation will not lie for anything sworn or stated in the course of a judicial proceeding before a Court of competent jurisdiction, such as defamatory bills or proceedings filed in chancery, or in the ecclesiastical Courts, or affidavits containing false and scandalous assertions against others. Bartlett, 69 M d. at 223 -34, 14 A. at 51 8-19. Then follows, immediately, the language in question, that we italicized, regarding proceedings before a justice of the peace. Without any analysis, the Court of Special Appeals in Picone assumed that the example given of a man who goes before a justice of the peace and exhibits articles against the plaintiff containing divers false and scandalous charges concerning him must have referred to an application for an arrest warrant, for it relied on that language as direct preced ent in ho lding th at statem ents in su ch an a pplicatio n were absolu tely privileg ed. A -24- careful ex amination of the role a nd jurisdiction of justices of the peace in 1888 cas ts serious doubt o n the va lidity of tha t assum ption. As noted in Yantz v. Warden, 210 M d. 343, 3 47, 123 A.2d 6 01, 608 (1956 ), cert. denied, 352 U.S.932, 77 S. Ct. 236, 1 L.Ed. 2d 167, the office of justice of the peace dates back to co lonial times. Ju stices of the p eace serve d as conse rvators of th e peace in th eir respec tive cou nties an d had th e jurisdic tion con ferred b y law, w hich ch anged over tim e. They had power to issue both arrest and search warrants, but they also had trial jurisdiction in civil cases involving $100 or less and in misdemeanor criminal cases, and that appeared to be their principal function See Maryland Code (1888), Art. 52, dealing almost exclusively with the civil trial jurisdiction of the justices of the peace; also Arms trong T homa s, P ROCEDURE IN J USTICE C ASES (1906 ); John H . B. Latr obe, T HE J USTICES P RACTICE UNDER T HE L AWS O F M ARYLAND, (7th ed. 188 0). See also State v. Ward, 95 Md. 118, 121, 51 A. 844, 848-49 (1902) and Hall v. State , 5 Md . App. 3 94, 396, 247 A.2d 548, 549 (1968). It was thus possible for a person to [go] before a justice of the peace and exhibit[] articles against the plaintiff containing divers false and scanda lous ch arges c oncern ing him in a w ide varie ty of con texts. That statement in Bartlett, seized upon in Picone, has no spe cial referenc e to applications for arrest or search warrants. It follows the general statement that an action for defamation will not lie for anything sworn or stated in the course of a judicial proceeding before a C ourt of com petent jurisdic tion (emp hasis adde d) and, mo re likely -25- than not, had reference to what was, in fact, before the Court in Bartlett a pleading or other document filed by a party in a pending judicial proceeding or one that inaugurated such a proceeding. We can think of no reason for the Court to go off on a tangent and express an opinion regarding a matter that was not then before it and that had no connectio n with the m atter that was before it. At best, it would apply to a warrant application only if the presentation of such an application constitutes or is in the nature of a judicia l procee ding fo r purpo ses of d etermin ing a pr ivilege o r immu nity. In that regard, we note that, in Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 89 L. Ed.2d 271 (1986), the Supreme Court, in an action under 42 U.S.C. § 1983, denied an absolute privilege for the procuring of an arrest warrant based on an affidavit that failed to establish probable cause. Rejecting the officer s attempt to analogize his application for an arrest warrant to the seeking of an indictment by a prosecutor, which, in Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed.2d 128 (1976), the Court had held to be absolutely privileged, the Malley Court observed that, although a vital part of the administration of criminal justice, the act of applying for a warrant is further removed from the judicial phase of criminal proceedings than the act of a prosecutor in seeking an indictment and that the judicial process will on the whole benefit from a rule of qualified rather than absolute immunity. Malley, 475 U.S. at 342-43, 106 S. Ct. at 1097, 89 L. Ed.2d at 279-80. Perhaps more to the point, the Court observed that the distinction between a search warrant and an arrest warrant would not make a difference in the degree -26- of imm unity acco rded th e offic er who applied for the w arrant. Id. at 344 n. 6, 10 6 S. Ct. at 1098 n.6, 89 L . Ed.2d at 280 n .6. See also Kalina v. Fletcher, 522 U.S . 118, 118 S . Ct. 502, 139 L. Ed. 2d 471 (1997) (denying absolute immunity to a prosecutor for making false statements in an app lication for arrest warrant). 9 Malley is both instructive and persuasive, as, notwithstanding that it was a § 1983 action and not one fo r defama tion, it rests on a so lid comm on law fo undation. A s we did in Gill v. Ripley, 352 Md. 754, 768, 724 A.2d 88, 95 (1999), we acknowledge and adopt the precept confirmed in Burns v. Reed, 500 U.S. 478, 486, 111 S. Ct. 1934, 1939, 114 L. Ed.2d 547, 558 (1991) that the official seeking absolute immunity bears the burden of 9 Compare Burns v. Reed, 500 U.S. 478, 111 S. Ct. 1934, 114 L . Ed.2d 547 (199 1), where the Court held that a prosecutor was entitled to absolute immunity in connection with his appearance at a probable cause hearing. The defendant had already been arrested and charged with shooting her two children. The probable cause hearing, at which the prosecuto r examine d police w itnesses, wa s for the pu rpose of o btaining a w arrant to search the defendant s home. The evidence indicated that there were two kinds of procedures used in th e Indiana court with resp ect to warrants. The g eneral procedure was simply to present an affidavit of probable cause; the other, used in Burns, was a closed-door evidentiary hearing at which the prosecutor called witnesses and presented evidence. The Supreme Court viewed the prosecutor s role in that second kind of proceeding appearing before a judge and presenting evidence in support of a motion for a search warrant as involving his role as advocate for the State rather than as an investigating officer. Id. at 491, 111 S. Ct. at 1942 , 114 L. Ed.2d at 56 1. The Court also considered such a proceeding as connected with the initiation and conduct of a prosecution, particularly where the hearing occurs after arrest, as was the case here. Id. at 492, 111 S. Ct. at 194 2, 114 L. Ed.2d a t 562. Several times in the O pinion, the Court cited Malley, with apparent approval. We do not read Burns, which involved a prosecutor who traditionally enjoys absolute immunity for prosecutorial functions, as circumscribing Malley, which involved a police officer, who does not traditionally enjoy abso lute i mmunity, but o nly qu alified public off icial imm unity. -27- showing that such immunity is justified for the function in question, because [t]he presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties. An application for a search warrant may be said to be in the nature of a judicial proceeding because the application must be made to a judge and because the issuance of a warrant is a judicial act. On the other hand, unlike the kinds of statements to which we have accorded an absolute privilege, an application for search warrant, at least in the ordinary case, is not made in the course of an existing judicial proceeding and does not inaugurate or necessarily lead to one. It is, as the Malley Court concluded, several steps removed from a judicial proceeding. Moreover, the presentation of a search warrant application is almost always ex parte, often occurring at the judge s home during the evenin g hour s, with little or no ab ility to test the accura cy of the a ffiant s averm ents. Absent some knowledge to the contrary, the judge necessarily assumes good faith and truthfulness on the part of the affiant and looks to see only whether those averments, assuming them to be true, suffice to establish probable cause to believe that incriminating eviden ce will b e foun d at the p lace or o n the pe rson to b e search ed. See Volodarsky v. Tarachanskaya, 397 Md. 291, 306-07, 916 A.2d 991, 1000 (2007); also Franks v. Delaware, 438 U.S. 154, 169 , 98 S. Ct. 2674, 2683 , 57 L. Ed.2d 667 , 680 (1978): The usual reliance o f our legal system on adve rsary proceedings itself should be an indication that an ex parte inquiry is likely to be less vigorous. The magistrate has no acquaintance with the information that may contradict the -28- good f aith and reason able ba sis of the affian t s allega tions. The pre-s earch proc eeding w ill frequently be m arked by has te because of the understandable desire to act before the evidence disappears; this urgency will not always permit the magistrate to make an extended independent examination of the aff iant or o ther wi tnesses . The normal trappings of a judicial proceeding are thus lacking. In that regard, the presentation of an app lication for search warran t may be more akin to an investigatory proceeding rather than a judicial one. Although a warrant application is not in the nature of an administrative proceeding, as in Gersh and Reichardt, it is, we think, sufficiently removed from the normal jud icial proceed ing to invok e the cavea ts noted in tho se cases; i.e., in determining whether an absolute privilege should apply to defamatory statements made in a search warrant application, we should look to the nature of the public function of the proceeding and the adequacy of procedural safeguards that will minimize the occurrence of defamatory statements. In doing so, we are convinced, as was the Malley Court, that defa mato ry stateme nts m ade i n an application f or se arch war rant shou ld be protecte d by a qualified, not an absolute, privilege. A critical un derpinning to allowing an absolu te privilege fo r statements m ade in the course o f a judicial pro ceeding is th at, because s uch a pro ceeding is n ormally adversarial in nature, there is usually the ability to test the veracity of thos e statemen ts and to publicly rebut them. Witnesses can be cross-examined; contradictory evidence can be presented. A neutral fact-finder, after examining all of the evidence presented, can -29- decide what is believable and what is not. Through that process, false statements can be exposed for what they are. Even in sub-proceedings that may themselves be ex parte in nature, such as requests f or tempor ary restraining ord ers, the oppo rtunity exists later in the case to expose and sanction false statements. That is the counterweight to allowing parties, witnesses, and attorneys to speak freely in the course of judicial proceedings, unhamp ered by the fear of being sued for w hat th ey say. That counterweight simply does not exist with respect to search warrant applications, and that affects both the public nature of the proceeding and the search for procedural safeguards to minimize defamatory statements. Although the application must be supported by an affidavit under oath or affirmation, the process is not adversarial; nor is it an engine for the disco very of truth. T he judge h ears only one s ide of the sto ry told by the police, w ho are seekin g a neces sary p ermissio n to invade a C onstitutio nallyprotected z one of pr ivacy, and, as no ted, the judge often has n o practical ab ility to determ ine the v eracity of the aff iant s alle gations . We denied an absolute privilege in a somewhat analogous situation in McD ermott v. Hughley, 317 Md. 12, 561 A.2d 1038 (1989), where, following a meeting between a police e mployee and his superv isor, calle d to disc uss the e mployee s men tal status, a psychologist who was present at the meeting sent a report to the employer containing defamatory statements. In a subsequent defamation action, the psychologist argued that the situation w as akin to an administrativ e proceed ing and tha t he had an absolute -30- privilege. We rejected that argument, pointing out that, unlike a judicial or administrative proceeding, there was no public hearing adversary in nature; no compellable witnesses were sworn or cross-examined; no reviewable opinion or analysis was generated; and, most significantly, [the plaintiff] did not have the opportunity to present his side of the story. Id. at 26, 561 A.2d at 1045. In Gersh v. Ambrose, supra, 291 Md. 188, 434 A.2d 547, w e denie d abso lute imm unity for d efama tory statem ents ma de at a p ublic he aring. Compare Miner v. Novotny, supra, 304 Md. 164, 498 A.2d 269 (absolute privilege allowed f or brutality com plaint mad e against de puty sheriff tha t was subje ct to testing in administrativ e hearing u nder Law Enforce ment Of ficers Bill of Rights law ); Odyniec v. Schneider, supra, 322 M d. 520, 588 A.2d 78 6 (absolute privilege fo r statements m ade in connectio n with statuto ry health claims a rbitration proc eeding); Reichardt v. Flynn, supra, 374 Md. 361, 823 A.2d 566 (absolute privilege for complaint made against teacher that was subject to testing in administrative hearings before county and State school boards). The rationale for being cautious about extending an absolute privilege to an ex parte search warrant proceeding was well-stated in Franks v. Delaware, supra, 438 U.S. at 168, 98 S. Ct. at 2682, 57 L. Ed.2d at 680: [t]he requirement that a warrant not issue but upon probable cause, supported by Oath or affirmation, would be reduced to a nullity if a police o fficer wa s able to use deliberately falsif ied allegation s to demo nstrate probable cause, and, having misled the magistrate, then was able to remain confident that -31- the ploy w as wo rthwh ile. Unlike statements made in the course of judicial proceedings, or even administrative contested case proceedings subject to the protections of an Administrative Procedu re Act, statem ents made in a search w arrant applic ation may ne ver be sub ject to testing, notwithstanding the prospect of a Franks hearing. Indeed, their veracity is not likely ever to be te sted in a crim inal procee ding unles s (1) they conc ern a perso n who is subseque ntly arrested and charged, (2 ) evidence seized in the search is of fered into evidence against the person, and (3) the defendant can show, through evidence, that the statements w ere not just fa lse but we re deliberate m isstatements o r were m ade with reckless disregard of truth or falsity. This case is a good example: the warrant application was made on December 29, 2005, and eighteen months later, there has yet to be any criminal proceeding instituted ag ainst appellees, and, so far as this record reveals, there appears to be no continuing investigation into their conduct. The allegedly false statements made to the judge and leaked to the press remain out there, with no ability on the part of appellants, outside a defamation action, to prove that they were false and maliciously made. For these reasons, we hold that statements made in an application for search warrant are not protected by an absolute privilege.10 As noted , police offic ers are pub lic 10 As part of their argum ent that statements made in a warrant application are subject to an absolute privilege, appellees cite Di Blasio v. Kolodner, 233 Md. 512, 52933, 197 A..2d 245, 249-51 (1964) as holding that allegations contained in criminal -32- officia ls and th erefore enjoy the comm on law immu nity posse ssed by su ch off icials. Williams v. Baltimore, 359 M d 101, 13 7-39, 753 A.2d 41 , 60-62 (20 00); Bradshaw v. Prince G eorge s C ounty, 284 Md. 294, 302-03, 396 A.2d 255, 260-61 (1979). That immunity protects the officer from liability for non-malicious negligent conduct committed in the performance of discretionary acts in furtherance of the officer s official duties. See Mu thukum arana v. M ontgom ery Cou nty, 370 Md. 447, 479, 805 A.2d 372, 391 (200 2); Lovelace v. Anderson, 366 Md. 690 , 704-05, 785 A .2d 726, 734 (200 1); James v . Prince G eorge s C ounty, 288 Md. 315, 323, 418 A.2d 1173, 1178 (1980). As we recently reconfirmed in Lee v. Cline, 384 Md. 245 , 258-59, 863 A .2d 297, 305 (200 4), however, the Maryland common law qualified immunity enjoyed by public officials in the perform ance of d iscretionary acts is quite limited a nd is gene rally applicable o nly in negligen ce ac tions or d efam ation actio ns ba sed o n alle gedly negligent conduct. (Emphasis added). It does not apply to liability based on most so-called intentional torts. Id. See also D iPino v. D avis, 354 M d. 18, 49 , 729 A .2d 354 , 370-7 1 (199 9). The complaint against appellees charges knowing, intentional, and malicious, not charge are absolutely privileged. Di Blasio holds no such thing. The defamation action in that case was based on the filing of a civil action for criminal conversation, which, despite its name, was a tort not a crime, in which a husband could recover civil damages against another man who had sexual intercourse with his (the plaintiff s) wife. Upon the adoption of Art. 46 of the Md. Declaration of Rights, the tort was effectively abolished by this Co urt as be ing in v iolation of that A rticle. See Kline v. Ansell, 287 Md. 585, 414 A.2d 929 (19 80). -33- negligent, conduct. On those allegations, the complaint was not subject to dismissal on the bas is of co mmo n law q ualified immu nity. In addition to the comm on law qualified im munity, Baltimore City police officers enjoy an indirect statutory qualified immunity under LGTCA. In contrast to the protecti on aff orded t o State p ersonn el unde r the Sta te Tort C laims A ct, Ma ryland C ode, § 12-105 of the S tate Govt. Article and C JP § 5-522(b), 11 local government employees do not pos sess a d irect imm unity from liability for t heir tortio us con duct un der LG TCA . They may be sued, and judgments may be entered against them. The protection afforded by LGTCA is two-fold. If the action alleges that the conduct was within the scope of the defendant s employment, the local government must provide a legal defense for the employee. C JP § 5-30 2(a). In additio n, unless the e mployee is fo und to hav e acted w ith actual malice, the plaintiff may not execute on a judgment recovered against the employee, C JP § 5-30 2(b), but, rathe r, subject to cer tain limits, the loca l governm ent is 11 State Govt. Article, § 12-105 provides that State personnel, a term that is defined in § 12-101, shall have the immunity from liability described under § 5-522(b) of the Courts an d Judicial Pr oceeding s Article. CJP § 5-522(b ), in turn, provid es that State personnel are imm une from suit in cou rts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence, and for which the State or its units have waived immunity under Title 12, Subtitle 1 of the State Government Article, even if the damages exceed the limits of that waiver. Subject to certain conditions and limitations, State Govt. Art., § 12-104 waives the State s sovereign immunity in tort actions. Under this construct, therefore, an action based on the tortious conduct of a State employee who qualifie s as State person nel is ag ainst the State, no t the em ployee. -34- liable on the ju dgment. 12 That prote ction may be broader tha n the com mon law immunity in that it does not appear to exc lude liability for intentional torts, so long as they were committed within the scope of employment and without actual malice. Because of the construct of LGTCA, however, the complaint against appellees is not subject to dismissal by reason of this indirect statutory immunity. That immunity will have relevance only if a judgment is entered against appellees. Finally, we turn to the questio n of wh at immun ity, if any, appellees ha ve with respect to the alleged disclosure to the news media of defamatory averments in the warrant application. As n oted, the complaint charg es that the false statements w ere leaked by the Defendants to members of the media for the express purpose of causing publication of the false statements. Surely, there is no absolute privilege or immunity for that kind of conduct; police officers cannot have a greater privilege to disseminate defamatory material to the news media than they have to include it in an application presented to a judge. Whether dissemination of defamatory material to the news media is protected by a qualified privilege depends on (1) whether it is part of the officer s official duties to make such a dissemination, and (2) whether the officer acts with malice in doing so. 12 Malice, in this context, means an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate. See Shoe maker v . Smith, 353 Md. 143, 163-64, 725 A.2d 549, 560 (1999). -35- To the extent there is a standard, it appears to be stated in Restatement (Second) of Torts, § 598A: An oc casion ma kes a pub lication cond itionally privileged if an inferior a dministrative officer of a state or any of its subdivisions who is not entitled to an absolute privilege makes a d efamato ry commun ication requ ired or perm itted in the perf orman ce of h is offic ial duties . That standard was applied in Rippett v. B emis, 672 A.2d 82 (Me. 1996), a case that arose out o f a publicize d report by a co nvicted fe lon that the p olice had im properly returned to h im a rifle that, d ue to his status as a conv icted felon, h e was no t entitled to possess. A detective charged with investigating that claim appeared on television and reported that the charge was false, that the rifle had been given to the felon s wife, whereupon the wife sued for defamation. Reversing a summary judgment for the detectiv e, the co urt ado pted the princip le stated in Rest atemen t (Seco nd) of Torts, § 598A. Noting th at there wa s a departm ental policy proh ibiting public s tatements regarding d epartmen tal investigation s, the Main e court con cluded tha t there was a t least a genuine iss ue of fac t as to whe ther the detec tive s remark s were req uired or per mitted in the perf orman ce of h is offic ial duties , and tha t made summ ary judgm ent inap propria te. The court went on to note, as does Comment a. to § 598A, that the conditional privilege may be lost by the publishers s knowledge or reckless disregard as to the falsity of the statements, or by the publication of the defamatory matter for some improper purpose. A Kentucky court cited § 598A in holding that a police chief, accused of defaming -36- another police officer by appearing on television and accusing the officer of being a racist, did not enjo y an abso lute priv ilege, bu t only a qu alified o ne. See Lanier v. Higgins, 623 S.W.2d 914 (Ky. App. 1981). The court noted that the chief was not involved in a judicial proceeding and that the communication was not made in the discharg e of a ny statutory duty. Massachusetts has been even less generous to police officers who make defamatory statements to the press. In Draghetti v. Chmielewski, 626 N.E.2d 862 (Mass. 1994), a police chief was sued for defamation based on remarks he made to a newspaper reporter regarding an investigation into whether another police officer had violated certain ethica l rules. App ealing a jud gment fo r the plaintiff, th e defend ant claimed that, as police chief, he had a duty, and therefore a conditional privilege, to speak to the press about the matter. The Massachusetts Supreme Judicial Court rejected that defense, concluding that a police chief has no official duty to report internal investigations to the press. Id. at 867. In those cases where the court had recognized a conditional privilege, the statements were made to a narrow group who shared an interest in the communication. In none of them, the court said, were the defamatory statements made to a new spaper of gen eral circu lation. Id. Comp are Burk e v. Town of Walpo le, 405 F.3d 66 (1 st Cir. 2005), where the U.S. Court of Appeals for the First Circuit concluded that Massac huse tts w ould likel y reco gniz e a qu alified privile ge fo r stateme nts m ade b y a police chief to a group of concerned citizens. -37- Some guidance in this area may also be found in Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993). In that case, a prosecutor was sued under 42 U.S.C. § 1983 for (1) fabricating evidence during a lengthy investigation and eventually ob taining an in dictment u pon the pr esentation o f that fabrica ted eviden ce to the grand ju ry, and (2) mak ing false ass ertions, includ ing of the f abricated ev idence, at a press conference held to announce the indictment. The Court concluded that the prosecutor had only qualified immunity in both situations. As to the first, it viewed the prosecutor s role as more of an investigator than an advocate for the State and thus accorded the same qualified immunity that a detective would have. As to the second, which is th e more rele vant here, th e Court co nfirmed th at while p rosecutors, lik e all attorneys, were entitled to abs olute imm unity from de famation liability for statemen ts made du ring the cou rse of judicia l proceedin gs and relev ant to them . . . most stateme nts made out of court received only good faith immunity. Id. at 277, 113 S. Ct. at 2617-18, 125 L. Ed.2d at 228-29. Following the functional approach that it had previously taken with respect to privileges, the Court added that [c]omments to the media have no functiona l tie to the judicial p rocess just be cause they are made by a p rosecutor and that, although statements to the press may be an integral part of a prosecutor s job and may serve a vital public function, they do not involve the initiation of a prosecution, the presentation of the State s case in court, or actions preparatory for these functions. Id, at -38- 277-78, 113 S. Ct. at 2617-18, 125 L. Ed.2d at 229.13 We believe that the principle set forth in § 598A of the Restatement provides the proper balance. To the extent that a police officer may qualify as an inferior administrative officer of the State or a subdivision of the State, the officer has a qualified privilege to make a defamatory communication required or permitted in the performance of his [ or her] o fficial d uties. 14 That privileg e, as we ob served, is sub ject to being lo st if it is abused if the office r knows that the statem ents are false or makes them with reckless disregard of whether they are true or false, or makes them for some improper purpose. CONCLUSION For the reasons noted, the judgment of the Circuit Court will be reversed and the case remanded for further proceedings. The complaint should not have been dismissed with prejudice. Ultimately, of course, in order to prevail in light of the constraints of New 13 In reaching that conclusion, the Supreme Court adopted the view that had previously been taken by most of the Federal Courts of Appeals. This Court has also adopte d the fu nctiona l appro ach in d etermin ing the is sue of privileg e. See Gill v. Ripley, 352 M d. 754, 770 , 724 A.2d 88, 96 (19 99); Parker v . State, 337 Md. 271, 287, 653 A.2d 436, 44 4 (199 5). 14 We are, of course, aware that many police agencies have public information officials whose fu nction it is it communicate w ith the news med ia. Whether ordinary police officers are required or permitted to engage in such communications in the furtherance of their official duties is a factual matter which, when relevant, must be pled and proved. -39- York Times and the common law and statutory immunities possessed by appellees, appellants will be required to prove, among other elements of the tort of defamation: (1) that the statements complained of were, indeed, false; (2) that appellees made the statements either knowing that they were false or with reckless disregard of whether they were true or false; (3) that they made the statements with actual common law malice without justification or excuse and with an evil or rancorous motive influenced by hate; and (4) with respect to the communication to the news media, that appellees were neither required nor permitted to make such communications to the media in the performance of their official duties or did so for an improper purpose. JUDGMENT OF CIRCUIT COURT FOR BALTIMORE CITY REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS; COSTS TO BE PAID BY APPELLEES. -40-

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