From Undermining Child Protection Statutes to Creating Exceptions to Prohibitions Against Racial Discrimination in Public Accommodations: The Unsettling Consequences of Mischaracterizing the Police Reporting Privilege

Abstract

Historically, an absolute immunity from tort liability was extended to participants in judicial and quasi-judicial proceedings for statements made relevant to those proceedings; a qualified immunity, lost if malice were present, was extended to individuals for statements made in the public interest, such as reports to the police. These immunity doctrines are commonly known as the judicial or quasi-judicial privilege on the one hand, and the public interest or police reporting privilege on the other. The privileges date back centuries; few doctrines appeared more established, or less controversial. More recently, however, state courts of last resort have chosen to rule on the nature of these privileges with the result that, for the first time in the four hundred-year history of privilege law, a court of last resort has actually held the police reporting privilege to be absolute. These recent rulings are thus broadening the negative impact of the mischaracterization of the police reporting privilege; the rulings have already undermined child and elder protection statutes as well as statutes prohibiting racial discrimination in public accommodations.

It is the thesis of this article that no authority exists in support of the notion that reports to the police are absolutely privileged and that attempts to conjure such authority can have unsettling consequences that reach far beyond the common law of torts. The article begins with a review of the history and doctrine relevant to the privileges applied to judicial proceedings and police reports. It then analyzes the appropriate application of these privileges in situations where police reports ultimately serve as the basis for commencing judicial proceedings. Next, the article analyzes cases from the two states-Oregon and California-where court holdings recently departed significantly from established privilege doctrine and mischaracterized the privilege applicable to police reports. Finally, the article highlights the unsettling consequences, including and especially the unsettling consequences in the areas of civil rights and child protection that result when the police reporting privilege is so mischaracterized.

Keywords: police reporting privilege, tort liability, immunity doctrine, judicial privilege, quasi-judicial privilege, absolute privilege, racial discrimination, torts, civil rights, privilege doctrine, child protection, elder abuse