The Richmond Register

November 28, 2012

Ex-RPD officers appeal federal court rulings in civil case

Appeal focuses on actions taken by Commonwealth’s Attorney’s office

By Sarah Hogsed
Register News Writer

RICHMOND — Two former RPD officers are appealing several rulings in a federal civil suit that accused local prosecutors and law enforcement officers of malicious prosecution in an attempt to convict them of witness tampering.

The appeal is focusing on whether the Madison Commonwealth’s Attorney and his assistant should have been granted immunity from civil prosecution for actions they took while investigating the criminal case against Garry Murphy and Brian Hensley.

U.S. District Judge Jennifer B. Coffman dismissed in June all federal claims brought in the suit against former Sheriff Nelson O’Donnell, the Madison County Sheriff’s Office, former sheriff’s deputy Scotty Anderson and Deputy Steve King.

The remaining claims against additional defendants were settled, and the case was dismissed with prejudice Sept. 21.

Investigators had accused James J. Rogers, Murphy and Hensley of forcing a woman, April McQueen, to change her story about what the officers said was a consensual sexual encounter she had with them Oct. 27, 2009.

A Madison County jury acquitted the three men in the criminal witness tampering case, and Murphy also was acquitted on a misdemeanor assault charge for allegedly striking McQueen in the face, causing a cut lip.

Murphy and Rogers were fired from the Richmond Police Department. Hensley resigned prior to an administrative hearing.

In an unrelated case, Rogers was convicted last month in federal court of receiving child pornography and sentenced to nine years in prison, which he is currently appealing. Rogers dropped out of the civil suit, leaving Murphy and Hensley to appeal the U.S. district judge’s rulings.

Last year, Coffman ruled in the civil case that Commonwealth’s Attorney David Smith and Assistant Commonwealth’s Attorney Jennifer Smith were entitled to immunity for their actions in investigating the case and presenting it to the grand jury.

The two men are focussing their appeal on actions taken by the Smiths. They are asking the appellate court to examine whether the prosecutors were entitled to immunity when they “procured false testimony and fabricated evidence during the criminal investigation,” according to the civil appeal statement of issues.

Murphy and Hensley argued in the original civil case that they were constitutionally deprived of liberty, but the U.S. district judge dismissed the malicious prosecution claim because the men were never arrested or jailed during the proceedings against them.

In the appeal, Murphy and Hensley are questioning whether incarceration or detention is required for them to have sustained a deprivation of liberty, according to the appeal issues document.

Finally, the men are asking whether “the district court commit (sic) error when it held that Kentucky state courts would analyze the immunity issues the same and dismissed Appellants’ state law claims ...”

David and Jennifer Smith are cross-appealing, asking the appellate court to reconsider the district court’s denial of their motion for attorney’s fees, according to the cross-appeal statement of issues.

The Smiths also wrote they were planning on arguing additional grounds in support of the U.S. district court’s final order, which stated Hensley and Murphy had failed to prove their claim of malicious prosecution under federal law.

The cross-appeal also asserts Jennifer Smith is entitled to absolute immunity for a meeting she had with McQueen on Nov. 12, 2009. Coffman ruled that Smith was entitled to qualified immunity in that instance but not absolute immunity.

Sarah Hogsed can be reached at shogsed@richmondregister.com or 624-6694.