The Massachusetts Appeals Court ruled today that a state trooper will get his day in court to make the case that two Boston detectives libeled him in a report on overcrowding at a nightclub where he sometimes moonlighted as a DJ.
In its ruling, which overturns a lower court's ruling against Trooper Anthony Dear, the court said a report by detectives John Devaney and Kevin McGill of the BPD licensing division did not have "absolute immunity" against a defamation claim.
In the report, the detectives said the event company for Dear was working as a DJ in 2006 had a consistent record of overcrowding clubs that hired it and that Dear had something to do with that.
The two detectives said they were protected from a defamation suit because they had compiled it as part of a judicial proceeding - in this case upcoming hearings by the Boston Licensing Board and the Mayor's Office of Consumer Affairs and Licensing on the now closed 33 Restaurant and Lounge [2].
But the court ruled that the hearings were about 33 and that Dear was not a direct party to that - especially since on the night at question he was not at the club as a DJ - and that Dear should be given the chance to make his legal case why he'd been libeled by the statements about him:
They were made during the investigation, not the prosecution, of the license suspension proceedings. They were made by police officers, not lawyers or prosecutors. For the most part, the report does not contain witness statements, but the officers' own speculation or recounting of unidentified hearsay. They are also directed not at a party to the proceeding but at someone who is not even present at the proceeding. As he was neither a party nor a witness at the proceeding, Dear had no opportunity to test the validity of the statements at the proceeding. Also, there is nothing in the record to suggest that the licensing board or MOCAL contemplated any such proceeding against Dear or Elite at the time the report was prepared, or even afterwards, as neither Dear nor Elite was a licensee. Nor did Devaney or McGill contemplate such proceedings against Dear; although McGill's deposition testimony indicates that he believed he could have sought criminal charges against Dear, he did not do so. Instead, McGill stated that he was merely providing information to the licensing board so that it could determine whether further investigation was appropriate.