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Top court rules police can face libel suits

- The Washington Times - Friday, July 27, 2007

ANNAPOLIS — Police officers can be sued for libel if they make false statements on a warrant, Maryland's highest court ruled.

The decision Wednesday allows two former members of a notorious special police unit in Baltimore's Southwestern Police District to sue two other police officers who were investigating the unit for a wide array of crimes.

Former officers Robert Leo Donald Smith and Vicki Mengel claimed that Officers Scott Danielczyk and John Jendrek lied on a warrant to search their police lockers and then leaked the affidavit to the media.

The Maryland Court of Appeals rejected the defendants' argument that they were protected by unlimited immunity because search warrants are part of the judicial process. Officers have, at best, qualified immunity, the court holds.

"That privilege is subject to being lost if it is abused — if the officer knows that the statements are false or makes them with reckless disregard of whether they are true or false, or makes them for some improper purpose," retired Judge Alan M. Wilner wrote for the unanimous Court of Appeals.

Otherwise, Judge Wilner wrote, defendants would have no other way to defend their reputation.

"The allegedly false statements made to the judge and leaked to the press remain out there, with no ability on the part of appellants, outside a defamation action, to prove that they were false and maliciously made," Judge Wilner wrote.

The Southwestern District Flex Squad was disbanded last year after two women claimed they were raped by one of its officers, Jemini Jones, in separate incidents. Mr. Jones was acquitted of the first charge in January and prosecutors dismissed the other case in April.

As part of the investigation into the first rape charge, Officers Danielczyk and Dendrek applied for a warrant to search the Flex Squad office and certain lockers in the office. The search yielded drugs.

A second affidavit was then sworn out by the investigating officers, this time stating that "each" officer of the squad violated state drug laws. Officer Danielczyk also stated in the affidavit that he had "prior knowledge" that Miss Mengel and Mr. Jones had "been implicated in the theft of" cell phones of people she arrested, and that "allegations" were made against them "as to the planting of controlled dangerous substances on citizens in an effort to knowingly make false arrests."

Mr. Smith, who was the sergeant in charge of the squad, and Miss Mengel, an investigator, denied any wrongdoing.

The appeals court ruling noted that no charges are filed against either Mr. Smith or Miss Mengel, "and, so far as this record reveals, there appears to be no continuing investigation into their conduct."

Despite the court's ruling, the complaining officers must still prove defamation in court, said Karen S. Hornig, chief counsel for the police department.

"I don't see how [Mr. Smith and Miss Mengel] would prove that two police officers acted with a rancorous motive," Miss Hornig said. "The plaintiffs have a long and tough road to hoe. They've won a battle but they haven't won the war."