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.⁽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.

^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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