The Manassas City police detective who was criticized by a defense attorney for attempting to take sexually explicit photos of her client in a high-profile “sexting” case last year has withdrawn his defamation lawsuit against the attorney, court records show.
Several media and law experts said that they had not heard of a suit like the one filed in October 2014 by Detective David E. Abbott, who was at the center of a media storm after it was reported that he sought search warrants to take photos of a teen’s genitalia, to compare with explicit phone video received by the teen’s girlfriend. The teen’s attorney, Jessica H. Foster, said to The Washington Post, “Who does this? It’s just crazy.”
Abbott took offense and sued over the remark. Neither he nor his attorney, Dirk McClanahan, would say why he dropped the suit a year later.
Abbott was the lead investigator in the case against the Manassas City teen, and he had already obtained one set of photos of the teen’s genitalia. Following an uproar, Prince William County prosecutors and Abbott decided against taking a second set of photos. After a trial in August 2014, the teen was placed on probation with the charges to be dismissed after a year.
Moments after the trial ended, the Manassas City police issued a news release saying that Abbott “was instructed by a member of the Commonwealth’s Attorney’s office to obtain a search warrant in order to photograph, for evidentiary purposes, the genitalia of the defendant.” The prosecutor, Claiborne Richardson II, then “authorized a second search warrant seeking a photograph of the erect penis of the defendant,” the police news release stated.
Two months later, Abbott sued Foster. He said that her statement that his actions were “crazy” was an assertion of “unfitness to perform the duties of his office or employment” and that it harmed his reputation. The detective alleged that as a direct result of Foster’s statement, he had severe emotional distress, depression and nausea, and required counseling and medication.
Abbott also said that Foster’s criticism was false because he planned to seek the help of the Department of Homeland Security for “comparative analysis of a juvenile’s genitals,” not analyze it himself, and had told Foster as much. But Foster’s attorneys filed a June 2014 e-mail from Abbott to Foster in which the detective said Homeland Security had told him, “I would need pictures of [the teen] erect.”
David J. Gogal, Foster’s attorney, wrote in a court brief that Foster’s statements “constitute constitutionally protected opinion as well as rhetorical hyperbole not actionable as defamation.” He also said Foster’s references to Abbott’s role in the case “are at least substantially true, as further evidenced by the email” sent by Abbott to Foster.
“Challenging a government action as ‘crazy,’ ” Gogal wrote, “is not defamatory.”
Abbott’s attorney, McClanahan, said Foster’s statement “does not express an opinion that is relative in nature. . . . Instead, it asserts a false factual allegation” because Abbott would not personally be doing the comparison. McClanahan also argued that “police officers are not public officials” who must prove that a statement was made with actual malice.
Prince William Circuit Court judges all recused from the case, which was assigned to retired Loudoun County Circuit Court Judge Thomas D. Horne. Horne had overruled one attempt by Foster to have the case completely dismissed.
But with the case still pending, Abbott filed a motion Oct. 29 to nonsuit, or withdraw, the case. On Monday, Horne granted the motion.
McClanahan declined to say whether he planned to refile it. Abbott did not respond to an e-mail seeking comment.
Gogal and Foster declined to comment and would not say how much the year of litigation cost Foster or whether her malpractice insurance covered the costs.