Update: This post has been updated to correct a description of which line of a search warrant was crossed out by Manassas City police detective David E. Abbott, and to note that a police press release on the case remains online.
The lead detective in a high-profile teen “sexting” case from last summer, in which Prince William County authorities sought to take sexually explicit photos of a 17-year-old teen to compare with the evidence, has filed a defamation lawsuit against the teen’s attorney for making critical comments about the investigation in The Washington Post.
Media and police experts said they had not heard of a case where a detective sued a defense attorney for defamation, and that he may have a difficult time overcoming the attorney’s First Amendment right to freedom of speech.
Detective David E. Abbott of the Manassas City Police Department filed the suit in Prince William Circuit Court on Oct. 16 against Jessica Harbeson Foster, a Manassas-based defense attorney. Foster represented the 17-year-old Manassas City teen who was facing charges of distributing child pornography, for allegedly texting a sexually explicit video of himself to his 15-year-old girlfriend.
Foster told The Post, in an article published online on July 9, that her client had already been arrested and his genitals photographed at the county jail. She said Assistant Commonwealth’s Attorney Claiborne Richardson told her on July 1 that the teen must either plead guilty or police would obtain another search warrant “for pictures of his erect penis,” for comparison to the evidence from the teen’s cell phone.
The online article concluded with this paragraph, which is the subject of Abbott’s complaint:
“Foster said Detective Abbott told her that after obtaining photos of the teen’s erect penis he would ‘use special software to compare pictures of this penis to this penis. Who does this? It’s just crazy.'”
That paragraph, and any mention of Abbott, was not included in a similar story on the topic published in the newspaper on July 10.
Abbott’s lawsuit claims that Foster’s comment “materially misstates Abbott’s discussions with Foster,” and that claiming such an investigative approach was “crazy” in turn “asserts unfitness to perform the duties of his office or employment, with a direct intention to bring Abbott under scrutiny from the media and from the public.”
Abbott did not respond to an e-mail seeking comment and Foster declined comment. The lawsuit alleges that Abbott suffered “intense media and public scrutiny, embarrassment, shame…injury to his reputation as a law enforcement official…hundreds of emails that included pornographic or threatening material…telephone calls threatening death or other actions.” The detective also suffered “severe emotional distress…which resulted in counseling with a psychologist and the need for medication.”
Foster’s lawyers responded Wednesday with a filing which said Foster’s comments “are not defamatory” and “are not actionable because they constitute constitutionally protected opinion and rhetorical hyperbole.” The lawyers on both sides, Dirk McClanahan for the detective and David J. Gogal for the lawyer, declined comment on the case Wednesday. Manassas City Police Chief Douglas Keen said Abbott filed the suit independently and did not consult him, and Keen said he had no position on the civil case.
The case attracted attention in part because Abbott obtained not one but two search warrants seeking to take photos of the teen defendant’s genitalia. Foster said in the July 9 article that when she asked how the authorities planned to accomplish that, the prosecutor Richardson told her that “we just take him down to the hospital, give him a shot and then take the pictures that we need.”
A review of the search warrants showed that Abbott actually crossed out a line that requested “a photograph of the suspect’s erect penis.” But then a second search warrant for the same material was obtained on July 1. Before the second warrant could be executed, the July 9 story appeared and the prosecution decided against following through with it.
The case went to trial in Prince William juvenile court on Aug. 1, and the judge ruled there was sufficient evidence to convict the teen, based on the location of his phone when the video was texted and the messages exchanged between the two teens. [The girlfriend, who sent naked photos of herself to the teen, was not charged.] But Judge George M. DePolo placed the teen on probation for a year and said he would consider dismissing the case in 2015 if the teen stayed out of trouble, and off social media, for a year.
Later that afternoon, the Manassas City police issued a two-page press release explaining why they pursued the case so fervently and saying that the Prince William prosecutors did not have a policy of seeking permanent convictions of juveniles for child pornography, nor did they seek to have juveniles placed on the sex offender registry. The release also placed responsibility for the two genitalia-photo search warrants directly on Richardson, rather than the lead investigator, Abbott, saying that the detective “was instructed by a member of the Commonwealth’s Attorney’s office” to obtain both search warrants.
[The release has since been removed from the Manassas City police website.] The release remains posted on the police’s “Crime Reports” page here.
In his lawsuit, the detective alleges that not only did Foster defame him by calling the investigation “crazy,” but that she misstated what Abbott told her about the case. “Foster’s statement” to The Post, the detective’s lawsuit states, “provides that Abbott, himself, would obtain the photos and use ‘special software to compare pictures of this penis to this penis.’ This statement implies that Abbott conceived of the idea, that he desired to obtain the photographs, that he would take actual photographs, and that he would personally execute the comparison.”
Foster’s lawyers responded by filing an e-mail Wednesday that Abbott sent to Foster on June 14. Abbott wrote that the teen “preferred us take pictures of his genitals to compare and prove that it is in fact his penis in the movie…The comparison process is quite extensive and I have reached out to Homeland Security where I am a TFO and they have agreed to assist — however I only want to go this route if you think there will be a trial.”
Abbott appears to be taking a very rare, if not unprecedented, route by launching a libel suit against an attorney on the other side of a case. Dana Schrad of the Virginia Association of Chiefs of Police, Wat Hopkins, a communications professor and medialaw expert at Virginia Tech, and Ginger Stanley of the Virginia Press Association all said they had never heard of a police officer filing a defamation suit against an attorney. “This is a first for me and I thought I had heard it all,” Stanley said. Schrad provided a database of defamation cases filed by police officers, maintained by Americans for Effective Law Enforcement, mostly against media outlets. But it includes one case where a judge ruled a Texas officer could not sue an attorney and his clients for defamation based on a letter the attorney sent to the officer.
Megan Rhyne, executive director of the Virginia Coalition for Open Government, said, “I don’t know that it’s never happened, of course. I just haven’t heard of it.” She also said that, “Police officers may have more dangerous jobs than other public employees, but they are public employees. And with that comes the rough and tumble world where members of the public are not happy with you or some aspect of government you may be a part of. But that criticism of government is what the First Amendment is all about. It is essential to democracy for people to be able to make critical, or positive, statements about their government without fear of reprisal.”
Rhyne also noted that “opinion, hyperbole included, is a defense to a claim that something is defamatory. Defamatory statements are false statements that cause harm. If a statement is opinion, it is not a statement of fact.” She cited the U.S. Supreme Court opinion in Gertz v. Welch, which stated that, “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”