Alvarado v. KOB-TV, (10th Cir. 2007)

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PUBLISH

UNITED STATES COURT

OF APPEALS

TENTH CIRCUIT

VICENTE ALVARADO, YVETTE

ALVARADO, STEVE FLORES,

PRISCILLA FLORES, THOMAS

GUTIERREZ, BEVERLY

GUTIERREZ,

Plaintiffs-Appellants,

v.



KOB-TV, L.L.C. (Channel 4 News),

Defendant-Appellee.

No. 06-2001

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CIV-05-750)

Jason Bowles, (B.J. Crow with him on the briefs) Bowles & Crow,

Albuquerque,

New Mexico for Plaintiffs-Appellants.



Geoffrey D. Rieder, (Travis G. Jackson, with him on the brief) Foster & Rieder,

P.C., Albuquerque, New Mexico, for Defendant-Appellee.

Before KELLY, EBEL, and

GORSUCH, Circuit Judges.

EBEL, Circuit Judge.

Two former undercover police officers for the City of Albuquerque

brought suit against a local television station, KOB-TV, for broadcasting their

identities and their undercover status in the context of their suspected

involvement in an alleged incident of sexual assault. The officers were never

charged, and about a week after the broadcasts, the city police department

announced publicly that it had concluded the officers were not involved in the

alleged sexual assault. The officers sued KOB-TV for invasion of privacy and

intentional infliction of emotional distress. The district court dismissed their

claims under Fed. R. Civ. P. 12(b)(6). While we are sympathetic to the difficult

and potentially dangerous situation undercover officers face after having their

identities revealed to the public, we agree with the court below that the officers'

allegations do not support a tort claim for either invasion of privacy or emotional

distress. Because Alvarado and Flores fail to state a claim upon which relief can

be granted, it is unnecessary for us to reach the issue of whether KOB-TV's First

Amendment defense merited dismissal of the claims. Accordingly, we AFFIRM

dismissal of their claims.

I. BACKGROUND

Vicente Alvarado and Steve Flores were undercover police officers for the

City of Albuquerque in early 2004. According to the facts alleged by Alvarado

and Flores in their complaint, around May 3, 2004, Syra Roman called the

Albuquerque Police Department to report that she had been sexually assaulted by

two undercover officers. The detective taking the call asked her to obtain a

physical examination and follow up with him within a couple of days, but

apparently she did neither. A week later, a detective with the police department

apprehended Roman on the basis of an outstanding warrant, and told her that, if

she gave a statement about the alleged sexual assault, she would not be booked

on that warrant. She gave the requested statement, describing her alleged

assailants, and the police department released her. A couple of weeks later, one

of Roman's friends contacted the detective who had taken Roman's statement.

The friend suggested that Alvarado and Flores were the two officers involved in

the sexual assault.

On June 2, a police department captain told Alvarado and Flores to report

to the deputy chief's office about some allegations, but they were not told the

nature of those allegations. The same day, a state district judge signed warrants

to authorize searches of their homes and vehicles. The judge sealed the warrants

to the extent of Alvarado's and Flores's names and addresses, citing potential

endangerment to the officers and interference with investigative activities.

However, the court order sealing the warrants was not addressed to KOB-TV, nor

did it mention the press generally.

At a time uncertain, someone provided KOB-TV with information about

the sexual assault allegations and the investigation, naming Alvarado and Flores.

On June 3, KOB-TV ran newscasts at 6 p.m. and 10 p.m. about the investigation

in which Alvarado and Flores were named as being accused of the sexual assault.

KOB-TV also ran video footage of Alvarado and Flores each answering the door

to their respective homes and telling the reporter that they did not wish to

comment.

At some point, someone informed KOB-TV that Alvarado and Flores

were

undercover narcotics officers. During the 10 p.m. newscast on June 3, KOB-TV

announced that the news station had learned they were undercover detectives and

therefore blurred their faces. However, KOB-TV did not remove their names

from that broadcast or subsequent broadcasts. KOB-TV ran coverage of the

investigation for several days and posted the news stories on the internet,

although no charges were brought. On June 8, KOB-TV reported that the

officers had been cleared by DNA evidence and by evidence that one of the

officers was not in the state on the day of the alleged assault. Furthermore, the

accuser, Roman, later recanted her allegations. But according to Alvarado and

Flores, the damage was done. They claim their "lives have been threatened since

the time that their names and identities were released to the general public," and

they continue to "fear for their lives and that of their families."

Alvarado and Flores and their respective spouses, Yvette Alvarado and

Priscilla Flores (collectively, "Plaintiffs"), brought suit against the City of

Albuquerque for defamation, false imprisonment and violations of their

constitutional right to privacy.(1) The suit also

named KOB-TV as a defendant,

alleging invasion of privacy and intentional infliction of emotional distress.

Plaintiffs specifically claimed that KOB-TV "violat[ed] a court order" and

"subject[ed] Plaintiffs . . . to serious physical harm or even death." The City

removed the entire action to federal court because the Plaintiffs brought a claim

under 42 U.S.C. 1983 and 5 U.S.C. 552a(b), thus stating a federal question

providing for federal district court jurisdiction under 28 U.S.C. 1331.

The United States District Court of the District of New Mexico ruled for

KOB-TV on a Rule 12(b)(6) motion to dismiss. Alvarado v. KOB-TV, LLC, No.

05-750, slip op. (D.N.M. Nov. 14, 2005). The court held that Plaintiffs'

allegations "d[id] not meet the contours" of invasion of privacy and intentional

infliction of emotional distress. Id. at 10-13. The court concluded also that, on

the facts alleged, the First Amendment would bar relief through tort law. Id.

Further, the court decided that even if the order sealing Alvarado and Flores's

names from the search warrants applied to the media, it would have been an

unconstitutional prior restraint. Id. at 9. Because the district court concluded

that the plaintiffs' claims against KOB-TV failed as a matter of law, it did not

convert KOB-TV's motion to dismiss into one seeking summary judgment,

despite the fact that the parties had submitted to the court evidence outside the

pleadings. Id. at 5.

This appeal followed. We have jurisdiction over an appeal from a final

order of dismissal from a district court, pursuant to the district court's amended

order of dismissal under Fed. R. Civ. P. 54(b). See 28 U.S.C. 1291.

II. DISCUSSION

Standard of Review

We review de novo a district court's

decision on a Rule 12(b)(6) motion

for dismissal for failure to state a claim. Jojola v. Chavez, 55 F.3d 488, 490

(10th Cir. 1995). "We must accept all the well-pleaded allegations of the

complaint as true and must construe them in the light most favorable to the

plaintiff." David v. City & County of Denver, 101 F.3d 1344, 1352 (10th Cir.

1996). "We look for plausibility in th[e] complaint." Bell Atlantic Corp. v.

Twombly, 127 S. Ct. 1955, 1970 (2007).
name="txt2">(2)

In reviewing a Rule 12(b)(6) motion to dismiss, our first step is to review

the factual allegations that should have been considered by the district court.

See, e.g., Prager v. LaFaver, 180 F.3d 1185, 1188 (10th Cir. 1999). On a Rule

12(b)(6) motion, if "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 56, and all parties shall be given reasonable

opportunity to present all material made pertinent to such a motion by Rule 56."

Fed. R. Civ. P. 12(b). "[I]n general, a motion to dismiss should be converted to a

summary judgment motion if a party submits, and the district court considers,

materials outside the pleadings." Prager, 180 F.3d at 1188. However,

notwithstanding the usual rule that a court should consider no evidence beyond

the pleadings on a Rule 12(b)(6) motion to dismiss, "the district court may

consider documents referred to in the complaint if the documents are central to

the plaintiff's claim and the parties do not dispute the documents' authenticity."

Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002). "The failure

to convert a 12(b)(6) motion to one for summary judgment where a court does not

exclude outside materials is reversible error unless the dismissal can be justified

without considering the outside materials." GFF Corp. v. Associated Wholesale

Grocers, 130 F.3d 1381, 1384 (10th Cir. 1997) (emphasis added).

In the proceedings below, Plaintiffs submitted to the district court a copy

of the court order sealing Alvarado's and Flores's names and addresses, and

KOB-TV submitted a certified transcript of excerpts of the audio portion of at

least some of the broadcasts in question and a DVD containing copies of those

broadcasts. In a hearing on the motion, the court acknowledged it had reviewed

the transcript of the broadcasts. KOB-TV described some aspects of the video

for the court, arguing that Flores's image was too fuzzy to identify him, and that

the broadcasts never gave the addresses of either Flores or Alvarado. Plaintiffs

argued that they needed an opportunity to conduct discovery on "all of the

broadcasts, exactly what they . . . released," adding that they were "not sure

[KOB-TV] produced all of them." Plaintiffs also argued that dismissal on a Rule

12(b)(6) motion was inappropriate because they needed discovery on "the

circumstances under which [Alvarado's and Flores's names were] disclosed and

what [KOB-TV] knew."

On appeal, Alvarado and Flores argue that the district court "impermissibly

viewed all of the facts in the light most favorable to the Defendant," and that it

ruled "prematurely" on the motion to dismiss and should have accorded them an

opportunity for "full discovery."(3) Although

the district court stated it did not rely

on the parties' additional submissions, there would have been no error for the

court to consider the court order sealing Alvarado's and Flores's identities, as the

sealing order was "central" to Plaintiffs' claims against KOB-TV and "the parties

do not dispute the document['s] authenticity." See id. However, the transcript

and copy of the broadcasts likely should have been excluded, since Plaintiffs

argued to the district court that KOB-TV may not have released all of the

relevant portions of the broadcasts.(4)

Yet, in this case "dismissal can be justified without considering the outside

materials," GFF Corp., 130 F.3d at 1384, because we agree with the district court

that, given the facts alleged in Alvardo's and Flores's complaint, their claims fail

as a matter of law. Therefore, any error on the part of the district court in not

excluding the broadcasts from the motion to dismiss was harmless. We conclude

that the district court properly proceeded to dispose of the claims against KOB-TV on a Rule

12(b)(6) motion.

B. Invasion of Privacy Claim

Alvarado and Flores allege that KOB-TV invaded their privacy by

broadcasting their names and images on local television. They claim that KOB-TV "with

negligence, gross negligence, or recklessness published private facts

about Plaintiffs and intruded into their private seclusion, thereby giving

unreasonable publicity to their private lives" and "had no newsworthiness or

other privilege" to do so. However, New Mexico follows most states in defining

privacy torts strictly. We conclude that the facts as alleged by Alvarado and

Flores cannot state a claim for invasion of privacy.

New Mexico recognizes the tort of invasion of privacy and its four

categories: false light, intrusion, publication of private facts, and appropriation.

Andrews v. Stallings, 892 P.2d 611, 625 (N.M. Ct. App. 1995); see also

McNutt

v. N.M. State Tribune Co., 538 P.2d 804, 807 (N.M. Ct. App. 1975)

(characterizing the four torts as having in common "the right to be let alone").

Plaintiffs' complaint does not specify which categories their claims fall within,

but the factual allegations relate only to the torts of intrusion and publication of

private facts.(5)

"Intrusion into solitude appears to be based on the manner in which a

defendant obtains information, and not what a defendant later does with the

information, which is covered by the public-disclosure-of-private-facts branch."

Fernandez-Wells v. Beauvais, 983 P.2d 1006, 1010 (N.M. Ct. App. 1999); see

also Moore, 881 P.2d at 743 (commenting, in dictum, that intrusion is "distinct

from but related to trespass," and "involves an invasion of the plaintiff's 'private'

space or solitude ­ eavesdropping on private conversations or peeping through

the bedroom window, for example" (quotation omitted)); McNutt, 538 P.2d at

808 (defining the tort as an "intrusion upon the plaintiff's physical solitude or

seclusion or into his private affairs" (alterations, quotation omitted)). New

Mexico has not outlined the specific contours of this particular tort. Therefore,

we follow the lead of New Mexico courts defining privacy torts generally, see,

e.g., McNutt, 538 P.2d at 808, and Moore, 881 P.2d at 743, and thus look

for

guidance to Prosser & Keeton on Torts (W. Page Keeton ed. 5th ed. 1984)

(hereinafter "Prosser & Keeton") and the Restatement (Second) of Torts

("Restatement").

The comments to the Restatement are particularly helpful, suggesting that

the tort of intrusion becomes actionable only when it is deemed "highly offensive

to a reasonable person," and usually involves a physical invasion into someone's

space. Restatement § 652B & cmts. b and d. "The invasion may be by physical

intrusion into a place in which the plaintiff has secluded himself, as when the

defendant forces his way into the plaintiff's room in a hotel or insists over the

plaintiff's objection in entering his home." Id. cmt. b. "[T]here is no liability for

knocking at the plaintiff's door, or calling him to the telephone on one occasion

or even two or three, to demand payment of a debt. It is only when the telephone

calls are repeated with such persistence and frequency as to amount to a course of

hounding the plaintiff, that becomes a substantial burden to his existence, that his

privacy is invaded." Id. cmt. d; see also Prosser & Keeton § 117, at

855 ("[t]here

is no tort when the landlord stops by on Sunday morning to ask for the rent").

Alvarado and Flores do not allege that KOB-TV reporters tried to badger

their way into the officers' homes, or that they repeatedly approached the

Alvarado and Flores at home. Although the tort of intrusion may be implicated

"when the plaintiff . . . is merely in the seclusion of his home," id. at 856,

Alvarado and Flores do not claim that KOB-TV obtained footage through their

windows or other intrusive means.(6) The

facts as alleged by Alvarado and Flores

simply cannot give rise to the claim of intrusion upon seclusion, and thus the

district court properly dismissed this claim.

The appellants likewise fail to state a claim for the alternate theory of

invasion of privacy ­ public disclosure of private facts. The tort of public

disclosure is defined in New Mexico as "disclosure which would be objectionable

to a reasonable person, and a lack of legitimate public interest in the

information." Fernandez-Wells, 983 P.2d at 1008 (citing Prosser & Keeton

§

117, at 856-57 and Restatement § 652D).
name="txt7">(7) Unlike defamation, there is no

requirement that the publicized information be false. McNutt, 538 P.2d at 808

(citing Prosser § 117). The tort of publication of private facts "involves the

publication of true but intimate or private facts about the plaintiff, such as

matters concerning the plaintiff's sexual life or health." Moore, 881 P.2d at 743

(quotation omitted).

The questions, then, are whether the disclosures of publication of the

following facts, which Alvarado and Flores allege KOB-TV broadcast, would be

objectionable to a reasonable person, and whether there is a lack of legitimate

public interest in the information:

Alvarado's and Flores's names;

their home addresses, by virtue of film footage of each plaintiff answering

his door at home, under appellants' theory that Albuquerque's

neighborhoods are very unique and it would be easy to identify where

someone lived by such footage;

what they look like/their personal appearance, by virtue of the same film

footage; and

the fact that Flores and Alvarado were undercover police officers for the

Albuquerque Police Department.

A New Mexico appellate court dealt with a somewhat similar fact pattern

in McNutt. There, police officers engaged in a gun battle with two members of a

group known as the "Black Berets" and killed both of them. 538 P.2d at 806. A

newspaper printed the names and addresses of the officers, allegedly "because

they would not cooperate in giving the details" about the incident. Id. at 807.

After the article was published, several officers and members of their families

received threatening phone calls. Id. The McNutt court concluded that the

officers' addresses were not, as a matter of law, "private facts." Id. at 808.

Because "[t]he address of most persons appears in many public records . . . which

are available to public inspection," "an individual's home address is a public fact

and . . . its mere publication, without more, cannot be viewed as an invasion of

privacy." Id. Likewise, a person's image in and of itself is not a "private fact."

Some commentators suggest that while pictures made of someone "without [their]

consent in a private place" may trigger liability, "anything visible in a public

place can be recorded and given circulation by means of a photograph." Prosser

& Keeton § 117 at 859.(8) But

Plaintiffs' complaint here does not allege that

KOB-TV obtained images of Alvarado and Flores without their consent or in a

private place.

However, Alvarado and Flores allege public disclosure of a unique private

fact ­ their status as undercover officers. The McNutt court had reasoned that

"[t]he plaintiff cannot complain when an occupation in which he publicly

engages is called to public attention," 538 P.2d at 808 (quotation omitted), but

here the appellants were not "publicly engage[d]" in being undercover police

officers. Alvarado and Flores argue that undercover officers face special risks in

that, if their identities are revealed, they are more likely than publicly-known

officers to be targets for revenge. In fact, they allege that they received threats as

a result of the broadcasts. Publicity of this kind of information is

"objectionable

to a reasonable person."

For Alvarado and Flores to state a claim under the tort of public disclosure

of private facts, they must allege a lack of a legitimate public interest. "[N]ot all

matters are of legitimate public interest." Gilbert v. Medical Econs. Co., 665

F.2d 305, 307 (10th Cir. 1981) (applying Colorado law). In Gilbert, we endorsed

the position taken by the Restatement (Second) of Torts on what type of matters

are of public interest:

The line is to be drawn when the publicity ceases to be the giving of

information to which the public is entitled, and becomes a morbid and

sensational prying into private lives for its own sake with which a

reasonable member of the public, with decent standards, would say that

he had no concern.

Id. at 307-08 (quoting Rest. § 652D cmt. h). As New Mexico courts also rely on

the Restatement to define the contours of public disclosure of private facts, we

believe they would agree.

Courts have generally treated allegations of police misconduct as worthy of

public interest. See, e.g., Cowles Publ'g Co. v. Wash. State Patrol, 748

P.2d 597,

605 (Wash. 1988) ("We . . . conclude that a law enforcement officer's actions

while performing his public duties or improper off duty actions in public which

bear upon his ability to perform his public office do not fall within the activities

to be protected under the Comment [h] to § 652D of Restatement (Second) of

Torts as a matter of 'personal privacy.'"); Santillo v. Phila. Newspapers, Inc., 21

Pa. D. & C. 4th 413, 419 (Pa. Com. Pl. 1993) ("Police officers have no valid

basis for believing that criminal conduct committed by them in their official

capacity will not be publicized for all to read.").

To the extent First Amendment law informs our determination of whether

Alvarado and Flores can allege facts showing that publicity of their identities and

undercover status in the context of the alleged sexual assault was not a matter of

public interest, we are among a number of courts that have found that police

misconduct allegations specifically and officer qualifications generally are a

matter of public interest in First Amendment analyses.
name="txt9">(9)

Street level policemen . . . [have] such apparent importance that the

public has an independent interest in the qualifications and

performance of the person who holds [such a position] . . . . Misuse of

his authority can result in significant deprivation of constitutional

rights and personal freedoms, not to mention bodily injury and financial

loss. The strong public interest in ensuring open discussion and

criticism of his qualifications and job performance warrant the

conclusion that he is a public official.

Gray v. Udevitz, 656 F.2d 588, 591 (10th Cir. 1981) (quotation omitted). See

also Meiners v. Moriarity, 563 F.2d 343, 352 (7th Cir. 1977) ("The public is

certainly interested in an important and special way in the qualifications and

performance of federal agents, such as the defendants here, whose decisions to

search and to arrest directly and personally affect individual freedoms.");

Coursey v. Greater Niles Twp. Publ'g Corp., 239 N.E.2d 837, 841 (Ill. 1968)

(noting that "the public has a far greater interest in the qualifications and conduct

of law enforcement officers, even at, and perhaps especially at, an 'on the street'

level"). An officer's alleged involvement in a sexual assault, even if off-duty,

surely bears upon his or her qualifications and fitness to be a police officer.

Publicity of undercover police officers allegedly involved in a sexual assault thus

qualifies as a matter of public interest in First Amendment law, and we have no

reason to perceive a significant difference in New Mexico tort law.

Therefore, 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, despite our concerns about the safety of undercover officers and the

need to avoid disincentives for entering their profession.

There are many individuals who enter official roles knowing that there are

inherent risks in doing so. All police officers, not just those undercover, face a

risk of violent retaliation simply by having their names associated with an arrest

or investigation. It would be impossible for courts to quantify the amount of risk

that a person faces in having his or her name in the news, and to carve out an

exception on that basis for purposes of tort law. In addition to the difficulty we

would face in applying such a rule, we observe that such an exception could run

afoul of the First Amendment.

Alvarado and Flores point to a federal law, 50 U.S.C. 421, that

criminalizes disclosure of the identity of covert intelligence agents as support for

a policy exception for undercover officers generally. However, 50 U.S.C. 421

only criminalizes the disclosure of the identity of federal (not city or state)

undercover agents, and only when that disclosure comes from someone who "had

authorized access to classified information that identifies a covert agent," had

authorized access to classified information and "learns the identity of a covert

agent," or was engaged in "a pattern of activities intended to identify and expose

covert agents." In other words, Congress arguably has not significantly

implicated the public's interest in an open discussion of law enforcement

personnel, because the law only applies to disclosure by someone who had

authorized access to classified information (e.g., a government official) or

someone engaged in a "pattern" with the intention of exposing agents. Section

421 does not represent a national policy of criminalizing publicity of a covert

agent's identity. If New Mexico's tort law is to be expanded to assign liability

for such conduct, it will be up to New Mexico to do so. Indeed, our exercise in

judicial restraint ought not to be misread as an effort to preclude the people of

the State of New Mexico from deciding for themselves whether to assign liability

in tort to the public disclosure of the names or appearance of undercover police

officers. To be sure, any rule of law adopted in this area would implicate core

and vital First Amendment values, and it is far from clear whether and how such

a law might coexist with the freedom of the press. But any foray into these

thickets is, in the first instance, for the instruments of government in the State of

New Mexico, not us, and therefore are not issues we need reach today.

Moreover, courts have not defined the tort of public disclosure of private

facts in a way that would obligate a publisher to parse out concededly public

interest information, e.g., sexual assault allegations against two members of the

police department, from allegedly private facts, e.g., the officers' identities and

undercover status. We have held that publication of a person's photograph and

name was in the public interest when it was "substantially relevant to a

newsworthy topic," in that case, medical malpractice, and because the additional

identifying information "strengthen[ed] the impact and credibility of the article."

Gilbert, 665 F.2d at 308. Other courts also appear to give "public interest" status

to news material on an aggregate basis, rather than itemizing what in the news

report would qualify and what could remain private. See, e.g., Ross v. Midwest

Commc'ns, Inc., 870 F.2d 271, 274-75 (5th Cir. 1989) (ruling on a privacy claim

where a television show about the potential innocence of an accused rapist used a

rape victim's first name and photograph of her house at the time of the rape,

holding that not only was the story behind the rape "a matter of legitimate public

interest," but also using her name and picture of her residence helped "persuade

the public, and in turn authorities, to a particular view of particular incidents").

In short, for Alvarado and Flores to state a claim under the tort of public

disclosure of private facts, they must be able to allege facts from which we could

conclude that the publication was not in the public interest. 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

a Rule 12(b)(6) motion to dismiss.

C. Claims for Intentional Infliction of Emotional Distress

Alvarado and Flores also fail to state a claim for intentional infliction of

emotional distress, a tort that requires extreme conduct on the part of the

defendant. Even if we assume KOB-TV was aware of the sealing order shielding

Alvarado's and Flores's identities from the search warrants, we cannot conclude

as a matter of law that KOB-TV's actions qualify for the type of conduct that

could trigger liability under a claim of intentional infliction of emotional distress.

New Mexico law follows the Restatement (Second) of Torts § 46 in

defining the tort of intentional infliction of emotional distress:

One who by extreme and outrageous conduct intentionally or recklessly

causes severe emotional distress to another is subject to liability for

such emotional distress, and if bodily harm to the other results from it,

for such bodily harm. The extreme and outrageous conduct must be so

outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.

Newberry v. Allied Stores, Inc., 773 P.2d 1231, 1239 (N.M. 1989) (quotation

omitted). According to the Restatement, the tort is actionable for reckless

conduct,(10) defined as "deliberate disregard

of a high degree of probability that the

emotional distress will follow," "and also where he knows that such distress is

certain, or substantially certain, to result from his conduct." Restatement

(Second) of Torts § 46 cmt. i. "As a threshold matter, the trial court should

determine as a matter of law whether the conduct at issue reasonably may be

regarded as so extreme and outrageous that it will permit recovery under the tort

of intentional infliction of emotional distress." Trujillo v. N. Rio Arriba Elec.

Coop., 41 P.3d 333, 343 (N.M. 2001) (quotation omitted). "When reasonable

persons may differ on that question, it is for the jury to decide, subject to the

oversight of the court." Id. (quotation omitted).

Courts regularly hold that upsetting but true news reports do not constitute

conduct so extreme and outrageous as to permit recovery. Specifically, a New

Mexico court has stated that "[a]s a general proposition, accurate publication of

newsworthy events does not give rise to a cause of action for intentional

infliction of emotional distress." Andrews, 892 P.2d at 625. Other courts agree.

See, e.g., Lowe v. Hearst Commc'ns, Inc., 414 F. Supp. 2d 669, 676 (W.D. Tex.

2006) (concluding that the "[p]ublication of truthful, albeit embarrassing,

information has again and again been determined not to constitute extreme and

outrageous conduct"); Conroy v. Kilzer, 789 F. Supp. 1457, 1468 (D. Minn.

1992) (holding that statements that "accuse a public official of misconduct" are

not "as a matter of law . . . sufficiently extreme and outrageous"); Munoz v. Am.

Lawyer Media, L.P., 512 S.E.2d 347, 351 (Ga. Ct. App. 1999) (concluding that

"the tort of intentional infliction of emotional distress will not provide a remedy

to a plaintiff when the news media truthfully reports an actual newsworthy event,

even if the event was so insulting as naturally to humiliate, embarrass or frighten

the plaintiff").(11) Although this rule of

thumb is at least in part a reflection of

First Amendment constraints on tort law, see, e.g., Howell v. N.Y. Post Co.,

612

N.E.2d 699, 705 (N.Y. 1993), it also serves to help the court "determine as a

matter of law" whether the complained-of publication is "so extreme and

outrageous," Trujillo, 41 P.3d at 343, as to give rise to liability.

New Mexico courts generally have construed the tort of intentional

infliction of emotional distress narrowly in the context of press coverage. One

New Mexico court concluded that there was no intentional infliction of emotional

distress when a newspaper reported on the plaintiff's controversial land purchase,

resulting in a zoning dispute that created title problems, and then published an

article suggesting that the plaintiff, a local politician, might sue his own village

over the zoning dispute. Andrews, 892 P.2d at 625. The Andrews court

concluded that news coverage of zoning requests and politicians' statements

could not be "beyond all bounds of decency" or "utterly intolerable," and

therefore could not form the basis of an emotional distress claim. Id. Likewise,

the federal district court in New Mexico declined to allow a claim when Business

Week magazine published an article referring to a former business leader's

transsexual status. "[T]he references to Plaintiff's transsexual status were highly

relevant to the central inquiry of the article. In short, there is nothing extreme or

outrageous about Defendants' conduct." Schuler v. McGraw-Hill Cos., 989 F.

Supp. 1377, 1391 (D.N.M. 1997), aff'd 145 F.3d 1346, 10th Cir. 1998 (table).

The mere broadcast of Alvarado's and Flores's identities and undercover

status, as facts revealed in the course of "accurate publication of newsworthy

events," is not actionable as intentional infliction of emotional distress.

Andrews, 892 P.2d at 625. But Alvarado and Flores argue that KOB-TV acted

outrageously by broadcasting their names and the fact that they were undercover

police officers repeatedly for four days even after being advised of their covert

status, and possibly after learning of the risks of that publicity or the fact that a

court had sealed documents relating to their undercover status. Alvarado and

Flores contend that this conduct is actionable as intentional infliction of

emotional distress, and argue that further discovery was warranted to ascertain

whether KOB-TV knew of the court order sealing Alvarado's and Flores's names.

But even if publishers are aware that their actions could result in third

parties making threats to the individuals identified in the news, courts

considering the issue generally find that publishing news under those

circumstances is not conduct "beyond all possible bounds of decency,"

"atrocious," or "utterly intolerable." The Sixth Circuit found a plaintiff could not

create a jury question on the issue of intentional infliction of emotional distress

when two reporters published photographs of an undercover officer, one of them

captioned "Know Your Enemies," accompanied by a "news article decrying the

activities of undercover narcs in the Ann Arbor area." Ross v. Burns, 612 F.2d

271, 272 (6th Cir. 1980). Even though the court seemed skeptical of the article's

newsworthiness, the court concluded that "[w]e cannot believe that these acts fall

within the meaning of 'extreme and outrageous' conduct contemplated by the

drafters of the Restatement." Id. at 724. In another example, the media revealed

the identity of a foreign judge who was threatened by a Colombian drug cartel

and had taken up a quiet residence in Detroit. A state court found that

"defendants' conduct was not so outrageous or extreme to establish liability in

tort in light of the fact that plaintiffs used their own names and did not attempt to

completely hide their identities while in Detroit." Duran v. The Detroit News,

Inc., 504 N.W.2d 715, 720 (Mich. Ct. App. 1993).

It is true that courts sometimes need the benefit of additional discovery to

decide whether the content and reasonableness of a defendant's alleged conduct

falls within the tort of intentional infliction of emotional distress. See, e.g.,

Parnell v. Booth Newspapers, Inc., 572 F. Supp. 909, 920 (W.D. Mich. 1983)

(declining to grant summary judgment on an emotional distress claim against a

newspaper that published photos of the plaintiff in news articles on prostitution,

contrasting its decision with that in Ross where "the ruling was on a motion for a

judgment n.o.v."). However, we conclude that even if KOB-TV knew about the

court order sealing Alvarado's and Flores's identities from the search warrants,

KOB-TV's broadcasts would not have been "so outrageous" as to be actionable.

Significantly, the order is not directed at the news media generally nor at KOB-TV

specifically.(12)

More importantly, Alvarado and Flores do not allege that KOB-TV knew

of any actual or likely threats against the undercover agents. Instead, under the

facts put forth by Alvarado and Flores, KOB-TV at most was aware only of the

inherent risks involved with publicizing the names and pictures of undercover

officers. That imputed knowledge hardly equates with recklessly or intentionally

causing severe emotional distress.

In short, the weight of authority suggests that accurate news reporting ­

even when it is likely to have an adverse impact on the subjects of the report ­

usually does not give rise to an action for intentional infliction of emotional

distress, and Alvarado and Flores have alleged no facts that support an exception

to the general rule. We affirm dismissal of this claim.

III. CONCLUSION

Although we appreciate the risks faced by undercover agents such as

Alvarado and Flores, tort law sets a high bar for invasion of privacy and

intentional infliction of emotional distress claims. The district court correctly

concluded that the Appellants here failed to state a claim, and therefore dismissal

under Rule 12(b)(6) was proper. We AFFIRM the decision of the district court.

FOOTNOTES

Click footnote number to return to corresponding location in the text.

1. Officer Thomas

Gutierrez and his wife, Beverly Gutierrez, also were

plaintiffs in the combined suit against the City of Albuquerque and KOB-TV.

The Albuquerque Police Department questioned officer Gutierrez in connection

with the alleged sexual assault, but KOB-TV did not mention him in any of its

broadcasts about the investigation. The Gutierrez Plaintiffs also appeal this

district court's ruling, but they do not allege in their complaint or on appeal that

KOB-TV injured them. Because Article III standing requires that a plaintiff

allege an injury-in-fact that has a causal connection to the defendant and is

redressable by a favorable court decision, Opala v. Watt, 454 F.3d 1154, 1157

(10th Cir. 2006), and because we have sua sponte authority to examine Article III

standing, Rector v. City & County of Denver, 348 F.3d 935, 942 (10th Cir.

2003), we hold that Thomas and Beverly Gutierrez do not have standing to bring

this appeal.

We observe as well that after Beverly Gutierrez filed a notice of appeal,

she moved before the district court to dismiss herself from the case, and the

district court granted that motion. However, she never removed herself from this

appeal.

2.In Bell Atlantic, the Supreme Court

stated that the old standard, "a

complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief" is "best forgotten as an incomplete, negative

gloss on an accepted pleading standard." Bell Atlantic Corp., 127 S. Ct. at

1968-69. Although the Supreme Court was not clear on the articulation of the proper

standard for a Rule 12(b)(6) dismissal, its opinion in Bell Atlantic and its

subsequent opinion in Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), suggest

that courts should look to the specific allegations in the complaint to determine

whether they plausibly support a legal claim for relief. See Iqbal v. Hasty,

2007

U.S. App. LEXIS 13911 (2d Cir. 2007) (considering Bell Atlantic and Erickson

and concluding that a "plausibility" standard was what the Supreme Court

intended).

Although we now restate our Rule 12(b)(6) standard in order to bring it

into compliance with Bell Atlantic, we emphasize that in this case our decision

would be the same regardless of whether we used the old "no set of facts"

standard, see, e.g., David, 101 F.3d at 1352, or adopt either a plausibility

standard or a requirement that the complaint include factual allegations sufficient

to "raise a right to relief above the speculative level." Bell Atlantic Corp., 127 S.

Ct. at 1965.

3. Alvarado and Flores do not argue expressly

that the district court should

have excluded KOB-TV's broadcast submissions from consideration or that the

court should have converted the Rule 12(b)(6) motion to a motion for summary

judgment. But because our review of a motion to dismiss is de novo, we consider

what pleadings and attachments the district court relied on for its conclusions of

law, and whether it was proper to resolve the case on a 12(b)(6) motion.

4. Although Alvarado and Flores have attached

excerpts of the certified

transcript to the appellate record, "we will not consider evidence that was not

before the district court." Wilburn v. Mid-South Health Dev., Inc., 343 F.3d

1274, 1281 (10th Cir. 2003). This rule, articulated in the context of reviewing a

lower court's decision on summary judgment, applies with equal force to the

documents not properly before the district court on a motion to dismiss.

5. Alvarado and Flores do not allege that

KOB-TV published false

information about the sexual assault allegations (only that the allegations

themselves were false), nor that KOB-TV appropriated their image

for

commercial purposes. See Moore v. Sun Publ'g

Corp., 881 P.2d 735, 743 (N.M.

Ct. App. 1994) (elaborating on the required elements of false light and

appropriation).

6. Were we to consider, in addition to the

pleadings, the broadcasts

themselves in reviewing this appeal from a motion to dismiss, we would note that

both Alvarado and Flores answered and opened their respective front doors,

where a KOB-TV reporter and TV camera waited. As such, they voluntarily

acted to bring themselves temporarily out of the seclusion of their homes. See

Restatement § 652B cmt. c and d ("Nor is there liability for observing him or

even taking his photograph while he is walking on the public highway;" "[t]here

is no liability for knocking at the plaintiff's door.").

7. Publicity also is an element of public

disclosure of private facts, which

obviously is met here. See Fernandez-Wells, 983 P.2d at 1008.

8. The Fifth Edition of Prosser & Keeton

cautions readers that "merely

because a fact is one that occurred at a public place . . . or merely because it can

be found in a public record, does not mean that it should receive widespread

publicity if it does not involve a matter of public concern." § 117 at 859.

However, we look first to New Mexico cases as the source of New Mexico tort

law, and the McNutt court relied on the availability of names and addresses in the

public record in concluding that the officers failed to state a claim. In any event,

we conclude that reporting on alleged misconduct of police officers is a "matter

of public concern." See infra.

9. Because we hold that Alvarado and Flores's

claims must be dismissed for

failure to state a claim, we do not reach the question of whether KOB-TV's First

Amendment defense would bar their claims. See United States v. Cusumano,

83

F.3d 1247, 1250 (10th Cir. 1996) (en banc) ("[F]ederal courts should address

constitutional questions only when necessary to a resolution of the case or

controversy before it.").

However, we observe that state law now defines torts involving publication

to take into account First Amendment restrictions announced by the Supreme

Court. See, e.g., Newberry v. Allied Stores, Inc., 773 P.2d 1231, 1236 (N.M.

1989); see also Restatement § 652D, Special Note. Specifically, the

determination of what is a "legitimate concern to the public" often dovetails with

the explanation for "public official" designations for purposes of analyzing a

publisher's First Amendment defense. See New York

Times Co. v. Sullivan, 376

U.S. 254, 282-83 (1964) (holding that under the First Amendment, published

criticism of a public official in matters that are of interest to the public is not

actionable absent actual malice on the part of the publisher); Garrison v.

Louisiana, 379 U.S. 64, 77 (1964) ("The New York Times . . . public-official rule

protects the paramount public interest in a free flow of information to the people

concerning public officials, their servants. To this end, anything which might

touch on an official's fitness for office is relevant. Few personal attributes are

more germane to fitness for office than dishonesty, malfeasance, or improper

motivation, even though these characteristics may also affect the official's private

character.").

10. It is not clear that New Mexico

recognizes the recklessness standard for

this tort, but cases have referred to that standard in dicta. See, e.g., Andrews,

892 P.2d at 624; Akutagawa v. Laflin, Pick & Heer, P.A., 126 P.3d 1138, 1143-44

(N.M. Ct. App. 2005). Because we hold that KOB-TV's conduct does not

trigger liability even under that lower standard, we need not decide whether New

Mexico courts would apply it.

11. We note, however, that the Fourth

Circuit has reversed dismissal of an

intentional infliction of emotional distress claim based on news reports, holding

that "[d]epending upon the circumstances surrounding the publication and the

nature of the defamatory charge, a defamatory publication could be so outrageous

in character, and so extreme in degree, as to go beyond all possible bounds of

decency." Hatfill v. New York Times Co., 416 F.3d 320, 336 (4th Cir. 2005)

(quotation omitted). The New York Times had identified the plaintiff as being

suspected of involvement in anthrax mailings and published columns commenting

directly on the suspect ­ not just the investigation. Id. at 325-28. The Fourth

Circuit held that the plaintiff's allegations supported a claim for intentional

infliction of emotional distress, even if "the relevant constitutional limitations"

eventually could bar the claim. Id. at 336-37.

We likewise do not find that New Mexico has a per se rule that prohibits a

claim of intentional infliction of emotional distress if it is based on the

publication of news reports. The "general proposition" announced in Andrews,

892 P.2d at 625, that "accurate publication of newsworthy events does not give

rise to a cause of action for intentional infliction of emotional distress," is not

tantamount to a categorical bar. Instead, we conclude that Alvarado and Flores

fail to state a claim because they have not alleged facts upon which "reasonable

persons [could] differ," Trujillo, 41 P.3d at 343, as to whether the material in

KOB-TV's broadcasts or KOB-TV's news-gathering methods were extreme or

outrageous.

12. At the district court hearing on the

motion to dismiss, Plaintiffs

conceded that the court sealing order was not directed at the media and argued

that it was merely "an additional fact" for the court to consider.

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