Appellant/plaintiff, Wardlow, seeks review of a final summary judgment whereby the trial court dismissed with prejudice two counts from the complaint. This opinion is concerned with the count seeking damages for alleged defamation of character; it constitutes a separate, distinct cause of action within the framework of the multi-count complaint.
The pertinent allegations, succinctly stated, are that the appellant was refused employment by the Key West Police Department and was subjected to ridicule, embarrassment, distress and damage to his reputation in the community as a result of having been spoken of in a slanderous manner and context by the City of Miami Police Department's Deputy Commander of Internal Security. It was asserted that the Deputy Commander, Robert M. Murphy, upon request for information about Charles Wardlow, had told a named police captain in Key West that appellant, a former police officer with the City of Miami, was guilty of certain felonious criminal acts.
The City of Miami set forth as one of its affirmative defenses that the deputy commander, as a public officer, has absolute privilege from liability, and, thus, is shielded and rendered immune against a suit for damages based upon allegations of defamation.
Generally, the rule of privilege has been recognized in favor of public officers, whether such privilege is absolute or qualified, as immunizing them from suit for libel or slander for statements made in connection with the performance of judicial, legislative, and executive functions of government, either state, federal or local. The rationale of this rule has been said to be grounded on public policy, the law recognizing certain communications as privileged and, as such, not within the rules imposing liability for defamation. Privileged communications are divided into two general classes, namely: (1) those which are absolutely privileged, and (2) those which are qualifiedly or conditionally privileged. The fundamental distinction between the two lies in the fact that the former excludes liability for a defamatory statement or publication although it may have been made with actual malice, whereas the latter does not protect a defendant who has acted maliciously. See generally, 20 Fla.Jur. Libel and Slander (1958) and 50 Am.Jur.2d Libel and Slander (1970).
A review of the leading Florida cases on the issue of privilege shows that the executive officials of government, including county managers, are absolutely privileged as to defamatory publications made in connection with the performance of duties and responsibilities of their office. McNayr v. Kelly, 184 So.2d 428 (Fla. 1966).
The question before us in the cause sub judice, is whether a deputy commander of internal security for a municipal police department is to be accorded absolute privilege or a qualified privilege, and, if the latter obtains, whether material issues of fact remain as to the existence of malice, which would, thus, preclude summary judgment.
We are concerned with the concept of limitation of the seemingly growing across-the-board absolute privilege philosophy — that is, we must define the level where the defense of privilege ceases to be considered absolute and the lesser degree of protection, qualified privilege, arises.
Initially, it is understood that each case must be judged on an individual basis, but it is imperative that certain guidelines be further established for the sake of a common sense analysis to be incorporated into the interpretation of libel and slander cases.
The Restatement of Torts, 2d, Chapter 25, (1977) addresses, generally, the question of absolute privilege at the state level, as construed by the courts, at 255:
The Restatement, supra., speaks to the protection of inferior state officers who have allegedly committed defamation against another in the course of their official duties, § 598 A, at 284:
We are of the opinion that the appellee/defendant, a lieutenant with the City of Miami Police Department, holding the position of deputy commander of internal security, is qualifiedly privileged. His duties are, without doubt, important to the city's police department and its citizens, but not sufficiently exalted to warrant absolute immunity. The United States Supreme Court in Barr v. Matteo,
The summary judgment is, therefore, reversed on the issue of absolute privilege, and remanded to the trial court for further proceedings to determine whether actual malice existed, which would have to be proved in order to vitiate the qualified privilege.
Appellant's second point on appeal dealing with the rights of law enforcement officers while under investigation, § 112.532, Florida Statutes (1974), has been considered and determined to be without merit. We affirm the trial court order on this issue.
Accordingly, we reverse and remand on the issue of privilege, and affirm as to the second point appealed.
PEARSON, Judge (dissenting).
I would affirm. It is sufficient to state that on the basis of the authorities cited and the reasoning contained in this opinion, I am of a contrary point of view. I believe the communication was "absolutely" privileged and would hold, as stated in McNayr v. Kelly, 184 So.2d 428 (Fla. 1966), that "executive officials of government are absolutely privileged as to defamatory publications made in connection with the performance of the duties and responsibilities of their office to the same extent as such absolute immunity is afforded to members of the legislative and judicial branches of government.