Revealing Undercover Police Officer's Identity Not Privacy Violation in New Mexico

To keep the police misconduct theme going here at the CMLP, I'll expand on a short post I read by Eugene Volokh on the Volokh Conspiracy. Volokh notes:

Revealing an undercover police officer's identity is not tortious in New Mexico, even when the speaker is aware that publicizing these identities may help others commit crimes against police officers; so the Tenth Circuit held last Friday in Alvarado v. KOB-TV.

In the lawsuit, Alvarado v. KOB-TV, 06-2001 (10th Cir. Jul. 13, 2007), the police officers claimed, among other things, that KOB-TV invaded their privacy when it broadcast a story about their alleged involvement in a sexual assault.

What makes this case interesting and unique is that the officers based their privacy claims on the public disclosure of their status as undercover officers.

Under New Mexico law, the privacy tort at issue in Alvarado, which is generally called "public disclosure of private facts," requires the disclosure of intimate or private facts that would be objectionable to a reasonable person. In addition, there must be a lack of legitimate public interest in the information for a privacy claim to succeed.

Noting that courts have generally treated allegations of police misconduct as worthy of public interest, the 10th Circuit rejected creating a broad rule that would shield the identities of undercover police officers:

Alvarado and Flores's privacy claim hinges on a proposed exception for undercover officers, i.e., that disclosure of their identities "lacks legitimate public interest" as a matter of law. We can find no precedent for such an exception, and we are not inclined to create one here merely on policy grounds . . . . Because allegations of police misconduct are in the public interest, and because there is no exception in the law for undercover officers, Alvarado's and Flores's claim cannot survive . . . .


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