North Dakota Supreme Court hears defamation suit

The North Dakota Supreme Court is hearing a case regarding the termination of a Bismarck Police Officer. In 2017 a state prosecuting attorney for Burleigh County informed the Bismarck Police Department that she would no longer use the officer’s testimony in criminal cases because of credibility issues. The officer was fired and sued the city of Bismarck for wrongful termination and alleged gender discrimination. The officer also filed a discrimination action against the states Department of Labor and Human Rights. The prosecuting attorney submitted the exact letter she sent the police department alongside two affidavits. The department expressed what the prosecuting attorney did was fine and among her job description. In return the terminated officer filed a defamation case against the prosecuting attorney.

A district judge ruled on behalf of the prosecuting attorney stating that the letter written was privileged communication. The terminated officer appealed to the Supreme Court stating that the prosecuting attorney’s letter was not part of her job description, therefore not privileged.

The prosecuting attorney’s analysis included all officers in the Bismarck Police Department. These officers were reviewed in case they had to testify on criminal cases. It was not an investigation of just the terminated officer, or an investigation at all. It was said that the prosecuting attorney was following protocol and vetting the officers in case they had to testify and to see their credibility.

The attorney representing the terminated police officer states that the prosecuting attorney could have notified and informed the officer’s supervisor of any issues that was discovered in her investigation. It was stated that the state’s prosecuting attorney sent a basic letter to the police department with the only purpose to get the police officer fired.

It is not uncommon for attorneys to make determinations about officers and turn over information that they feel might hurt a case according to the attorney representing the state prosecuting attorney.

The attorney representing the terminated officer states that the investigation was done on the prosecuting attorneys own time, and it is not part of any judicial proceeding. The attorney also stated that the prosecuting attorney should not be allowed absolute immunity, and at most should receive only qualified immunity.

The Supreme Court will rule in the defamation case later. A jury trial in the terminated officer’s federal suit against the city of Bismarck is set for the beginning of 2021. With a lot of playing pieces it will be interesting to see if the prosecuting attorney was following her job description, or acted outside her scope of work.