Providence County Superior Court
Plaintiff: Kathleen M. Hagerty, Esq.
Defendant: Stephen E. Breggia, Esq.; Raymond A. Marcaccio,
Esq.; Charles N. Redihan, Jr., Esq.; Thomas C. Plunkett, Esq.
Interested Party: David V. Igliozzi, Esq.; Michael J.
Lepizzera, Jr., Esq.; Christopher M. Rawson, Esq.
moving separately, seek summary judgment on the basis that
Plaintiff is a public official for purposes of defamation
actions, and the conduct alleged does not rise to the level
of "actual malice" required in such circumstances
by the U.S. Constitution. Jurisdiction is pursuant to G.L.
1956 § 8-2-14.
Facts and Travel
case emanates from the renowned "Ticketgate
Scandal" in the Cranston Police Department. On November
14, 2013, the Finance Committee of the Cranston City Council
rejected a new contract with the police union. On the next
night, Cranston Police Captain Stephen Antonucci (Captain
Antonucci) ordered, via his personal cell phone, officers to
blanket with parking tickets Wards 1 and 2, which were the
wards of the Councilmen who voted against the contract.
Residents of the two wards received a total of 128 overnight
parking tickets on the evening in question-compared to 122
issued city-wide in the preceding two months combined.
See Gregory Smith, 2 Cranston councilmen say
city police retaliated because of their police
contract votes by ticketing cars in their wards, The
Providence Journal (Dec. 17, 2013),
Mayor Allan Fung ultimately initiated an investigation of the
incident and dismissed or refunded each of the tickets
James Taricani (Mr. Taricani) was an investigative reporter
with the "I-Team" on WJAR-TV (WJAR), the local NBC
affiliate, then owned by Media General Operations, Inc.
(Media General). Defendant Christopher Lanni (Mr. Lanni)
served as WJAR's news director (collectively, Mr.
Taricani, WJAR, and Media General are sometimes referred to
as the Media Defendants). In early December 2013, Mr.
Taricani received an anonymous tip about the excessive
ticketing. He found out the tip was from Defendant Peter
Leclerc (Officer Leclerc), a current Cranston police officer. Mr.
Taricani met with Officer Leclerc who gave him information
about the ticketing and suggested that Mr. Taricani make an
open records request from the City of Cranston (the City)
concerning ticketing on the night in question. Mr. Taricani
did just that, and the information corroborated what Officer
Leclerc told him.
December 17, 2013, WJAR aired its first story about what was
happening in the Cranston Police Department, particularly
with the excessive ticketing. That report made no mention of
Plaintiff, Captain Russell Henry (Captain Henry or
Plaintiff). In late December 2013, Officer Leclerc
informed Mr. Taricani that the Plaintiff had been ordered to
use his personal cell phone to order officers to issue the
parking tickets in Wards 1 and 2.
December 23, 2013, Mr. Taricani received an email from
Defendant Ronald Jacob (Mr. Jacob), a twenty year veteran of
the Cranston police force who had retired in 2005, which
"My sources have stated that Lt. Russ Henry gave the
order to the officers to ticket the vehicles. The problem I
see with that is Lt. Henry is an extended family member of
Captain and Union President Stephen Antonucci. I hope this
information is what your [sic] getting from your sources. The
Department needs a top to bottom makeover."
December 28, 2013, Mr. Taricani received another email from
Mr. Jacob reiterating Captain Henry's involvement and
stating that the rumors were that Captain Antonucci and
Plaintiff "were riding around the two districts that
were mass ticketed and used their cell phones to contact the
officer, [sic] who had those posts to ticket certain vehicles
in those districts."
purposes of their motion for summary judgment, the Media
Defendants concede that Mr. Taricani spoke to the then Chief
of Police, Colonel Marco Palumbo (Colonel Palumbo), who twice
told him that Plaintiff was not involved in the
January 10, 2014, WJAR aired a second "Ticketgate"
story in which Mr. Taricani reported that Captain Antonucci,
the then Cranston police union president, and Captain Henry
used their personal cell phones to order other Cranston
police officers to issue tickets in the wards of the
councilors who voted against the proposed contract;
specifically, "Antonucci allegedly told his cousin, Lt.
Russell Henry, to use his personal cell phone to give the
order to issue the tickets." (Am. Compl. 3.) The segment
included an on-screen graphic that read: "Lt. Russell
Henry . . . ordered officers to issue tickets." (Am.
Compl. Ex. A.) The story also ran on WJAR's website.
Lanni, Mr. Taricani's producer, approved both stories
prior to their airing.
afternoon prior to airing the story, Mr. Taricani called the
Cranston police station looking for Captain Henry. He was not
there, but Mr. Taricani left a voice message on another
officer's phone. On the evening of January 10, 2014,
after the story aired on the 6:00 news, Captain Henry
encountered a photographer for WJAR and Captain Henry said he
was upset about the story because he was not involved. The
photographer called Mr. Taricani at home and relayed this
conversation together with Captain Henry's phone number.
Mr. Taricani then called WJAR and asked to have the story
pulled from the 11:00 news and the website. He called Captain
Henry the next day and offered him the opportunity to go on
air and tell his side of the story. Captain Henry declined.
parties now all agree that Plaintiff was not involved in the
ticketing scandal. WJAR ultimately aired a correction on
February 7, 2014.
the time preceding the WJAR stories, Mr. Jacob and Captain
Karen E. Guilbeault (Captain Guilbeault) had been in contact,
primarily by telephone, regarding various issues with the
Cranston Police Department. They were also in contact because
Mr. Jacob was in need of certain personal records from the
department, and Captain Guilbeault's position required
she liaise with retirees about such requests. The specific
content of those communications is not clear in the record,
but Captain Guilbeault is the only active member of the
Cranston Police Department with whom Mr. Jacob was in
contact, and Mr. Jacob indicated at his deposition that
Captain Guilbeault may have been the source of his
information. Plaintiff contends that the defamatory
information Mr. Jacob reported to Mr. Taricani originated
with Captain Guilbeault.
brought this action seeking compensatory and punitive damages
for libel, slander, and false light pursuant to G.L. 1956
§ 9-1-28.1, as well as negligent and intentional
infliction of emotional distress. Defendants now separately
move for summary judgment, and Mr. Jacob moves to dismiss.
the next section of a decision would be the Standard of
Review to be applied by the Court. But in this case that
standard depends on whether the Plaintiff is considered to be
a public official.
plaintiff is a public official or public figure,
plaintiff must demonstrate, by clear and convincing evidence,
"actual malice" on the part of the defendant making
the false statement:
"The constitutional guarantees require, we think, a
federal rule that prohibits a public official from recovering
damages for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made with
'actual malice'-that is, with knowledge that it was
false or with reckless disregard of whether it was false or
not." New York Times Co. v. Sullivan, 376 U.S.
254, 279-80 (1964); see Capuano v. Outlet Co., 579
A.2d 469, 472 (R.I. 1990) (holding that the "clear and
convincing" evidentiary standard applies in Rhode
Island); see also Restatement (Second)
Torts § 580A (1977).
a person is a public official is a question of law.
Capuano, 579 at 472.
Rhode Island, police officers have been held to be public
officials for the purpose of defamation actions. Hall v.
Rogers, 490 A.2d 502, 505 (R.I. 1985). In Hall,
our Supreme Court concluded that police officers fit the test
articulated by the United States Supreme Court in
Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
Id. The Court held that police officers
"have or appear to the public to have, substantial
responsibility for or control over the conduct of
governmental affairs, . . . and their position 'has such
apparent importance that the public has an independent
interest in the qualifications and performance of the person
who holds it, beyond the general public interest in the
qualifications and performance of all government
employees."' Hall, 490 A.2d at 504 (quoting
Rosenblatt, 383 U.S. at 86).
our Supreme Court is in accord with the overwhelming majority
of other courts that have considered this issue: Indeed,
"[p]olice and other law enforcement personnel are almost
always classified as public officials." Rodney A. Smolla,
Law of Defamation § 2:104 (2d ed. 2017).
was a police lieutenant being accused of unethical behavior
in his official capacity. Specifically, he was accused of
improperly using his supervisory position as a lieutenant to
order other officers to issue parking tickets-an official
act-in retaliation for adverse political decisions. Our
Supreme Court's ruling in Hall, 490 A.2d at 504,
controls. Plaintiff argues that our Supreme Court
misinterpreted the U.S. Supreme Court's holding in
Rosenblatt, 383 U.S. at 85, and that the issue
should be revisited. Plaintiff would reject a per se
rule and have a case-by-case analysis depending on the degree
of authority or notoriety of the individual officer. At oral
argument, Plaintiff's counsel argued that the Court
should determine what role the officer played in the
controversy before deciding whether or not he is a public
official. She contended further that since Captain Henry had
no role he could not be a public official.
Plaintiff is certainly free to make these arguments on appeal
to our Supreme Court, they should not, and will not, be
entertained by this Court:
"It is well settled that an opinion of [the Supreme
Court of Rhode Island] declares the law in Rhode Island and
that law must be followed by the lower courts of our judicial
system, regardless of whether that court or any of its judges
agree or disagree with our holding. As the court of last
resort in this state our decisions 'are not final because
they are infallible, but rather they are infallible only
because they are final.' . . . Therefore, lower courts .
. . must follow our established precedents." Univ.
of R.I. v. Dep't of Emp't & Training, 691 A.2d
552, 555 (R.I. 1997) (internal citations omitted).
even if our Supreme Court concluded that a per se
rule declaring all police officers public officials was not
appropriate, the facts of this case strongly support finding
that Plaintiff was a public official. Even applying the
standard that Plaintiff advocates, Plaintiff would still be
best described as a public official. The U.S. Supreme Court
"Criticism of government is at the very center of the
constitutionally protected area of free discussion. Criticism
of those responsible for government operations must be free,
lest criticism of government itself be penalized. It is
clear, therefore, that the 'public official'
designation applies at the very least to those among the
hierarchy of government employees who have, or appear to the
public to have, substantial responsibility for or control
over the conduct of governmental affairs."
Rosenblatt, 383 U.S. at 85.
by way of his supervisory position over other officers, was
in a position to appear to the public to have "control
over the conduct of governmental affairs" even more
than the average police officer. See id. Police
officers are the human face of government. They embody the
laws they are sworn to enforce, and the manner of that
enforcement is a matter of great public concern. Senior
police officers have tremendous control and discretion over
how our laws are applied, and indeed, the ticketing incident
underlying this case is a prime example of that discretion
run amok. Surely, all senior police officers-even if not all
police officers in general-have the requisite control over
the conduct of governmental affairs to fall squarely within
the definition of a public official. See id.
in Hall, our Supreme Court found a sergeant and a
special police officer to be public officials. In
Capuano, it found private municipal waste haulers to
be public figures. Also, G.L. 1956 § 11-42-4, as
amended, makes it a crime to threaten public officials and
the definition of public official includes law enforcement
argument that the role in the controversy should assist in
determining whether one is a public official would lead to
the incongruous result that a police officer could be a
public official on some occasions but not on others.
this Court concludes that Captain Henry, like all police
officers in Rhode Island, is a public official for purposes
of defamation claims. As such, he needs to show that
Defendants acted with "actual malice" to sustain
his claim. This standard applies to all his claims as
Plaintiff may not "re-baptiz[e] [his defamation claim]
as a different cause of action" to avoid the protections
of the first amendment, see Trainor v. The Standard
Times, 924 A.2d ...