Detective sues teen’s lawyer in Virginia ‘sexting’ case

Published 8:27 am Friday, November 14, 2014

The lead detective in a high-profile teen “sexting” case, in which Prince William County, Virginia 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.

News media and police experts said they had not heard of a case in which a detective sued a defense lawyer for defamation and that he may have a difficult time overcoming the lawyer’s First Amendment right to freedom of speech.

Detective David Abbott of the Manassas City police filed the suit in Prince William Circuit Court on Oct. 16 against Jessica Harbeson Foster, a Manassas-based defense lawyer. Foster represented the 17-year-old Manassas City teen who earlier this year 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 July 9 that her client had been arrested and his genitals photographed at the county jail.

She said Assistant Commonwealth’s Attorney Claiborne Richardson told her July 1 that the teen must either plead guilty or police would obtain an additional search warrant “for pictures of his erect penis,” for comparison with the evidence from the teen’s cellphone.

The online report 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.’ “

Abbott’s lawsuit alleges 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 email seeking comment, and Foster declined to 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 attorneys responded Wednesday with a filing that said Foster’s comments “are not defamatory” and “are not actionable because they constitute constitutionally protected opinion and rhetorical hyperbole.”

Legal representation on both sides, Dirk McClanahan for the detective and David Gogal for the lawyer, declined to 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 has 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 report that when she asked how the authorities planned to accomplish that, the prosecutor told her that “we just take [the teen] down to the hospital, give him a shot and then take the pictures that we need.”

The case went to trial in Prince William juvenile court Aug. 1, and the judge ruled that 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 nude photos of herself to the teen, was not charged.) Judge George 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.

Abbott appears to be taking a highly unusual, if not unprecedented, route by launching a libel suit against a lawyer on the other side of a case.

Dana Schrad of the Virginia Association of Chiefs of Police, Wat Hopkins, a communications professor and media law expert at Virginia Tech, and Ginger Stanley of the Virginia Press Association said they had never heard of a police officer filing a defamation suit against a lawyer. “This is a first for me, and I thought I had heard it all,” Stanley said.

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.”