The Richmond Register

Crime

January 5, 2014

Federal court upholds prosecutors’ immunity

Three ex-RPD officers accused them of malicious action

RICHMOND — A federal court of appeals has upheld a lower court’s ruling that the commonwealth’s attorneys involved in the prosecution of three former Richmond police officers are immune from civil charges of malicious prosecution and abuse of power.

The Sixth Circuit affirmed the U.S. District Court’s decision that Commonwealth’s Attorney David Smith and his wife, Assistant Commonwealth’s Attorney Jennifer Smith, cannot be sued for actions they took in bringing criminal charges against Garry Murphy and Brian Hensley in a 2009 witness tampering and fourth-degree assault case.

The two men, and another defendant, James J. Rogers, were found not guilty in criminal court in 2010.

The investigation, which was conducted by the Madison County Sheriff’s Office, came from “an offensive, but largely consensual sexual” encounter they had with a woman, April McQueen, on Oct. 29. 2009, according to the appeals court ruling.

During the incident, which the three officers said included bondage, sadism and masochism, McQueen suffered an injury to her face.

She told deputies who later investigated that she did not want to perform one of the acts and was slapped until she consented to it, which she said made her angry and sickened her, according to the appeals court ruling.

However, McQueen later changed her story to say the entire incident was consensual and her injury may have been accidental. That was after she spoke to Rogers, who later drove her to the sheriff’s office so she could give a second, revised statement, according to the narrative of the appeals court ruling.

The Smiths chose to pursue a charge of intimidating a participant in a legal process against the three men and a fourth-degree assault charge against Murphy. No sex-crime charges were filed.

A jury in March 2010 found the men not guilty on all counts, however Rogers and Murphy were dismissed from the RPD. Hensley resigned.

Murphy, Hensley and Rogers then filed a lawsuit accusing the Smiths, then Madison County Sheriff Nelson O’Donnell, two deputies, two of McQueen’s neighbors and her landlord of malicious prosecution, abuse of criminal process, violation of privacy rights, defamation and conspiracy to violate civil rights.

Rogers later dropped out of the lawsuit after he was convicted and sentenced in federal court to nine years in prison on a child-pornography charge unrelated to the incident involving McQueen.

In June 2012, a U.S. District Court judge dismissed the plaintiffs’ malicious-prosecution claims because they failed to show they were constitutionally deprived of liberty. The three men were not arrested or incarcerated during the proceedings against them.

The plaintiffs also failed to show they “suffered a constitutional deprivation or a deprivation of a right conferred by a federal statute,” the court ruled, and dismissed the abuse-of-process claim made in the original complaint.

The only claims left in the civil suit were against the Smiths, and the two former officers appealed the decision to U.S. Court of Appeals.

The higher court agreed with the district court’s ruling and added that both the Smiths had absolute immunity in the actions they took in bringing charges against Murphy and Hensley because they were acting within the capacity of their jobs as commonwealth’s attorneys.

However, the court of appeals did not reverse the lower court’s decision to not require the former officers to pay for the Smiths’ attorney fees.

Murphy and Hensley could ask the U.S. Supreme Court to review the case.

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