## Facts

- Donald Towne was wanted in New Hampshire in connection with abducting his three children.
- Kenneth Cope, a law-enforcement officer, located Towne in North Carolina, arrested him on the fugitive matter, and took him to jail.
- After the arrest, Cope communicated with the county sheriff who was responsible for Towne’s safekeeping in the jail.
- Towne alleged Cope made false and defamatory oral statements to the sheriff, including that Towne was a “nutty right-wing extremist”; that Towne tried to bribe a witness; that Towne beat his children and that they were dirty and half-starved, had lice, and had insect bites all over them; that Towne skipped out on debts; that Towne had a violent history; and that Towne said he would kill his children and himself if his ex-wife tried to find him.
- Towne sued Cope for slander, seeking compensatory and punitive damages, and alleged the statements were made with malice.
- Cope asserted qualified (conditional) privilege as an affirmative defense and sought judgment in his favor in the trial court.
- The trial court entered judgment for Cope, and Towne appealed.

## Issues

1. Whether a law-enforcement officer’s statements to a sheriff, made immediately after arresting a fugitive and in the course of placing the arrestee in jail, were made on a qualifiedly privileged occasion.
2. If the occasion was qualifiedly privileged, whether Towne produced evidence raising a genuine issue of material fact that Cope acted with actual malice (or otherwise abused the privilege) so as to avoid judgment as a matter of law.

## Decision

- The court held that the communication from one officer who had just arrested Towne to the sheriff charged with Towne’s safekeeping in jail was made on a qualifiedly privileged occasion as a matter of law.
- Because the occasion was privileged, the law presumed Cope acted in good faith, and Towne bore the burden to show actual malice to defeat the privilege.
- The record disclosed no genuine issue of material fact that Cope acted with actual malice or abused the privilege.
- The trial court’s judgment for Cope was affirmed.

## Legal Principles

- Qualified (conditional) privilege in defamation is grounded in public policy: it does not make the words nondefamatory, but it rebuts the inference of malice that would otherwise be implied, and makes falsity and actual malice essential to recovery.
- A communication is qualifiedly privileged when made in good faith on a subject in which the speaker has an interest or duty, to a person with a corresponding interest or duty, on a proper occasion, and in a manner warranted by the occasion.
- The privilege attaches to the occasion of publication; the defendant bears the burden of showing facts that establish the privileged occasion.
- Once a privileged occasion is shown, the law presumes the defendant acted in good faith; the plaintiff must prove actual malice to destroy the privilege.
- Where qualified privilege is established, the plaintiff cannot rely on conclusory allegations to avoid judgment; the plaintiff must produce evidence that would permit a finding of actual malice or abuse of the privilege.

## Conclusion

The North Carolina Court of Appeals affirmed judgment for Officer Cope on Towne’s slander claim because Cope’s statements to the sheriff responsible for Towne’s custody were made on a qualifiedly privileged occasion, and Towne failed to show evidence of actual malice sufficient to defeat that privilege.


Towne v. Cope, 233 S.E.2d 624 (1977)