E-Newsletter Edition: October 17, 2007
Response Provided By: Tim Longo
Always note that state law may be more restrictive on police power than the U.S. Constitution.
Can an officer be sued for defamation if they include untruthful or purposely misleading information on a warrant request?
Law enforcement is one of few professions where actions or inactions can bring about a flood of liabilities; criminal, civil, and almost always the administrative arena. The Smith i case serves as an example of such a dilemma.
At the heart of this commentary is the civil case that arose out of these most interesting facts. While not necessarily an anomaly in American jurisprudence, it is a rare occasion when both the appellants and appellees in a lawsuit are law enforcement officers, and particularly when the underlying issues which gave rise to the litigation arose out of alleged criminal misconduct.
In Smith, two police officers bring a defamation claim against criminal investigators, members of their own department, who were given the daunting and ever unpopular task of investigating their own. The facts arise from an allegation of criminal misconduct on the part of a Baltimore City Police officer, Jemini Jones. In December of 2005, two female arrestees alleged that they were sexually assaulted by Jones in exchange for their release from custody on narcotic charges. The officer was subsequently acquitted of the first criminal charge, and the second was dismissed by the prosecution.
During the course of the department’s criminal investigation into the matter, two search warrants were sought and later executed at the offices of the Southwestern Police District’s Flex Squad. The Southwestern District is one of nine police districts in Baltimore. Each of the nine districts are staffed by a large contingent of patrol resources, an administrative staff component, a street level drug enforcement unit, and a plainclothes operational squad, typically known as the Flex Squad. The primary mission of the flex squad, although subject to the direction of its supervision, is to respond to prevailing crime issues occurring throughout the district.
The scope of the warrants in question focused on the squad’s office and the lockers and desks of its personnel. The officers bringing the lawsuit, Officers Smith and Mengel, were members of the squad; the respondents to the suit, Officers Danielczyk and Jendrek, were the criminal investigators and the affiants of the warrants that are relevant to this litigation.
During the initial stages of their investigation into the alleged sexual assaults, Danielczyk and Jendrek applied for a search warrant for the squad’s office. The warrant was reviewed by a judicial officer, signed, and later executed. The search resulted in the discovery of suspected controlled dangerous substances. It was the second warrant and the actions of the affiants, however, that created the problem which led to the lawsuit.
In the application for the second warrant, Danielczyk and Jendrek alleged that each of the squad’s officers, to include appellants Smith and Mengel, were violating the narcotics laws of Maryland. Officer Danielczyk further alleged in the affidavit that he had prior knowledge that Mengel and one other officer in the unit had previously been implicated in a theft investigation involving a cell phone. However, he failed to set out the basis for such knowledge in his affidavit. Danielczyk further alleged that Mengel had been involved in the planting of drugs on subjects in an effort to initiate arrests.
The affidavit for the second warrant was reviewed by a judicial officer, signed, and later executed at the Southwestern District Flex Squad office. The search yielded suspected controlled dangerous substances, cellular phones, electric scales, counterfeit CDs and DVDs, and pornographic magazines. It is unclear from the warrant return whether any of these items were recovered from the desk, locker, or other property belonging to the appellants.
Smith and Mengel purport that subsequent to the execution of these warrants, Danielczyk and Jendrek knowingly and intentionally “leaked” information to the press that was false and that such intentional disclosure caused Smith and Mengel “to be subject to public ridicule, scorn, dishonor, and embarrassment” and was intended to “ruin their careers as Baltimore Police Officers”.
A defamation action was filed in the Circuit Court for Baltimore City. Danielczyk and Jendrek, through counsel, asserted the following defenses; (1) Smith and Mengel have failed to comply with the statutory notice requirements set out in the Maryland Rules, thus their claim was barred as a matter of law, (2) that they (Danielczyk and Jendrek) are immune from liability for defamation by reason of absolute and qualified immunity, and (3) that Smith and Mengel failed to set forth a prima facie case of defamation. The circuit court dismissed the claim with prejudice.
Although the Court of Appeals considered these other aspects of the case on appeal, specifically proper service under Maryland rules of procedure and the proper ruling of the trial court on a motion to dismiss, the most important aspect of the ruling for our purposes is their resolution of the following issue.
What, if any, privilege or immunity police officers have (1) for making allegedly false defamatory statement in an application for a search warrant, and (2) for voluntarily disclosing those statements to the news media.
The simple question here is whether statements in an affidavit of probable cause for a search warrant are the same as statements made in the course of a judicial process for which the courts have consistently found absolute immunity. If the answer to that question is yes, than those statements, even if false, remain privileged and cannot serve as the basis for a claim of defamation.
While there is much in the way of precedent on the issue of absolute privilege with regard to testimony before a trial court, the present issue had never been decided by the Court of Appeals of Maryland. In their analysis of the case law, the Maryland Court of Appeals found particular guidance in the case of Malley v. Briggs. ii
In Malley, the Supreme Court denied an absolute privilege for the procuring of an arrest warrant based on an affidavit that failed to establish probable cause. Although an important part of the judicial phase in a criminal proceeding, the Court found that the application for a warrant is further removed than the acts of a prosecutor seeking an indictment. Unlike an arrest warrant, which typically results in a criminal prosecution, a search warrant does not necessarily result in a judicial proceeding. Moreover, the presentation of a search warrant is almost always ex parte, and is dependent on the sole presentation of the affiant based on the information contained within the affidavit in support of probable cause. The veracity of the statements made in the warrant, notwithstanding a Franks iii hearing, are likely never tested and subject to scrutiny as to their accuracy unless, (1) they concern a person who is subsequently arrested and charged, (2) evidence seized in the search is offered into evidence against that person, and (3) the defendant can show, through evidence, that the statements were not just false but were deliberate misstatements or were made with reckless disregard for the truth.
Neither Smith nor Mengel were ever arrested or prosecuted for a crime. They were never afforded the opportunity to challenge evidence or the statements in support of probable cause for the warrant used to acquire that evidence. But not for an action of defamation, they would have no ability to prove that the allegations made against them were false and maliciously made.
Therefore, defamatory statements made in the application of a search warrant should be protected only by a qualified, not an absolute, privilege. Under Maryland common law, qualified immunity does not apply to liability based on intentional torts.
Notwithstanding, the Local Government Torts Claim Act (LGTCA), provides a broader immunity than the common law providing protection for intentional torts, so long as they were committed within the scope of employment and without malice. The court found, however, that the LGTCA would only provide guidance at such time a judgment was entered against the appellees and would not provide the basis or a dismissal by reason of indirect statutory immunity. With respect to whether or not the appellants could prevail on their defamation claim requires that they prove the elements of the intentional tort of defamation in light of the constraints of New York Times v. Sullivan.iv
The New York Times case requires that when the moving party in an action for defamation is a public figure or public official they are required to show not only that the statements were false, but that the parties making the statement acted with “Constitutional malice”, that is, that they had actual knowledge that the statements were false or they acted in reckless disregard of whether the statements were true or false. The present case presents yet another twist in that the appellants here are contending that the information was released to the press for the purpose of damaging appellants’ reputations and ultimately their careers. With respect to that point, Smith and Mengel would have to show that neither Danielczyk nor Jendrik were required nor permitted to make such communications to the media in the performance of their official duties or did so for an improper purpose.
As the case was remanded to the Circuit Court for further proceedings, some would suggest that Officers Smith and Mengel have a long road ahead of them in an effort to prove their claim of defamation. Whether they prevail or not, this much is clear, police officers are expected to tell the truth; when they don’t and they do so with malice, they should be prepared to face the consequences.
Smith v. Danielczyk, 928 A.2d 795 (2007).
Malley v. Briggs, 475 U.S. 335 (1986).
Franks v. Deleware, 438 U.S. 169 (1978).
New York Times v. Sullivan, 376 U.S. 254 (1964).