Is it possible that we may have reached an age where being “outed” is no longer actionable?

Twenty years ago, a man named Oliver Sipple saved the life of then-President Gerald Ford. A newspaper in San Francisco reported that Sipple was gay. Sipple was “out” to some people, but not everyone he knew. So he sued the paper for invasion of privacy.

Under California law, as in most states, invasion of privacy occurs when someone publicly discloses to lots of people private (highly sensitive) facts about someone else. The facts disclosed must be the kind of facts that would be highly offensive to a reasonable person.

In the Sipple case, Sipple lost because the appellate court concluded that his gayness was not a private fact. He was “out to so many people that his being gay was hardly a private fact that he sought to keep shielded from public view.

Today, some lawyers speculate that a closeted person might potentially lose on the grounds that sexual orientation (gay or straight) is not the type of thing that would be highly offensive to a reasonable person, depending on the locale.

But that is not the case yet, as two recent cases in California illustrate.

The most recent case was filed a few weeks ago in Los Angeles, according to the Los Angeles Daily Journal, a legal newspaper. Robert Duncan had been a police officer with the LAPD since 1984. He had been promoted to a commander’s aide.

A former boyfriend of Duncan’s contacted LAPD to complain that Duncan had tried to rape him after they broke up many months earlier. The Whittier Police Department investigated the charges and dropped rape charges for lack of evidence. Nevertheless, Duncan charges, the LAPD Internal Affairs unit, which investigates officer misconduct, continued to investigate Duncan’s personal lifestyle. Duncan explained to high- ranking officials with IA that he didn’t want others to know he was gay.

Despite promises of confidentiality, Duncan charges that the IA prepared a written report that was disseminated to hundreds within LAPD. As a result of the report, Duncan claims he was outed and suffered emotional distress. The LAPD did suspend him for five days for minor timesheet violations, but nothing to do with his personal life. Duncan reported the IA misconduct to his superior, whom he alleges retaliated against him and demoted him from a commander’s aide back to a patrol officer.

Duncan is on stress leave from LAPD now.

Duncan’s attorney, Jon Cantor of Calabasas, said Duncan was never openly gay, saying that, “The LAPD is a paramilitary organization, and the fact Duncan has now been outed has already changed his career.” Cantor noted that there would be officers within LAPD who would not want to work with Duncan or support him and that would adversely affect Duncan’s career.

In Duncan’s case, it is likely that LAPD will argue that Duncan’s sexual orientation either was not a private fact, or that being gay today is not so highly offensive that it’s disclosure would cause him to be shunned and humiliated.

In another case involving a unit of law-enforcement, Romano Gatto, a lesbian, sued the San Mateo District Attorney James Fox for giving a police report to her ex-husband indicating that Gatto was a lesbian.

Gatto was embroiled in a custody battle with her ex-husband over the custody of their twelve-year-old daughter. In 1999, there was a domestic disturbance at Gatto’s San Carlos residence. Gatto’s former girlfriend came to Gatto’s home in order to attack Gatto’s current girlfriend. Police arrived and compiled a police report and later filed their report with the department. Police reports are not generally available to the public or the media.

According to a report in the National Law Journal, the San Mateo DA, James Fox, saw the report. Fox knew Gatto’s ex-husband from religious study classes they took together. So, alleges Gatto, Fox told Gatto’s ex-husband that she was a lesbian. When the ex-husband learned of this, he sought custody of their daughter.

Gatto sued the District Attorney for leaking the contents of the police report to her ex-husband.

Under the California Constitution, everyone is entitled to a right to privacy. To sue for invasion of privacy, one asserts that he or she has a protected privacy interest (i.e., one’s sexuality), that information was revealed, and that the person disclosing it did so without a substantial justification.

The DA contends that the police report was a public document and that anyone could have read it and disclosed its contents. But that’s not true, as police reports are not generally available to the public. According to Gatto’s San Francisco attorney, Steven Phillips, the case is being litigated now. Trial is expected in the November if settlement negotiations do not produce a good result for Gatto.