Four of the 13 defendants in a federal lawsuit filed by former officers of the Richmond Police Department are seeking a dismissal of the lawsuit.
The lawsuit was filed Oct. 25 by James J. Rogers, Garry Murphy, and Brian Hensley against Sheriff Nelson O’Donnell, the Madison County Sheriff’s Office, David Smith, commonwealth’s attorney; Jennifer Smith, assistant commonwealth’s attorney; Scotty Anderson, former Madison County Sheriff’s deputy; Steve King, Madison County Sheriff’s employee; and Bobbi Judd, Tina Grant and Vivian Madden, Richmond residents.
In addition, the lawsuit names five Jane and John Does who may have caused injury or damages to Rogers, Murphy and Hensley, the lawsuit stated.
Rogers, Murphy and Hensley filed the complaint against all 13 defendants, “ ... due to their malicious, intentional and negligent actions in attempting to indict and convict plaintiffs of crimes they did not commit.”
The lawsuit stems from a March trial of the three former officers. They were acquitted of charges of tampering with a witness or intimidating a participant in a legal process.
Madison County Sheriff’s investigators had accused the men of forcing April McQueen to change her story about what the men claimed was a consensual sexual encounter she had with them on Oct. 27, 2009.
Murphy also was acquitted on a misdemeanor assault charge. He was accused of striking McQueen in the face, cutting her lip.
An administrative hearing on disciplinary charges before the Richmond City Commission resulted in the termination of Murphy and Rogers. Hensley resigned prior to the hearing.
The suit lists 12 counts against the defendants; including two counts of malicious prosecution, abuse of criminal process, defamation, one count each of violation of privacy acts, public disclosure of private acts, false light, conspiracy to violate civil rights, failure to supervise, negligent hiring, supervision and retention and outrage.
All counts list a variety of allegations against the defendants, citing they had no probable cause to initiate criminal charges, lack of sufficient evidence, violating Murphy’s, Rogers’ and Hensley’s constitutional rights, issuing false statements, disseminating false information and showing intentional and reckless conduct.
Through the suit, the three men seek a trial by jury, a compensatory award and punitive damages, attorney’s fees and other relief to which they may be entitled.
On Tuesday, O’Donnell, Anderson and King all filed a motion through their attorney, Lexington-based lawyer Derek Humfleet, asking that the lawsuit against them be dismissed.
According to an answer to the ex-police officers’s lawsuit, O’Donnell, King and Anderson cannot be sued.
“The complaint is barred by the doctrines of absolute immunity, Eleventh Amendment immunity, sovereign immunity, qualified immunity, governmental immunity, and/or official immunity,” according to the answer.
In addition, the answer also said that the men acted “in accordance with the letter and spirit of all applicable law,” and that they were performing actions in “good faith” in the furtherance of government functions and that their actions were taken as part of their official duties, “without malice,” and that the claims against the men should be dismissed.
The answer also stated that the request for punitive damages by Murphy, Rogers and Hensley are barred by the Fourth, Fifth, Sixth and Fourteenth Amendments.
The answer asks that the lawsuit against O’Donnell, King and Anderson be dismissed, that they be awarded reasonable attorney’s fees and costs, and “that they be granted any and all other relief to which they may appear reasonably entitled.”
On Nov. 17, Bobbi Judd also filed a motion for dismissal through attorney Jimmy Dale Williams.
“The complaint fails to state a Federal claim against the defendant, Bobbi Judd, there being no allegations that this defendant was acting under color of state law or that she had any official capacity in which to act under color of state law as a law enforcement officer or otherwise,” according to a draft order for dismissal filed by Williams.
The motion to dismiss said that Murphy, Rogers and Hensley should be required to add April McQueen as a defendant, if the court would not dismiss the lawsuit against Judd, or if that was not possible, to give Judd an extension of time in which to answer the lawsuit.
The motion stated that the complaint against Judd failed to “state sufficient facts,” and failed to make a claim against Judd in excess of $75,000.
“The complaint purports to state a claim against this defendant (Judd) on the basis of the conduct of April McQueen ... and complete relief cannot be afforded to all parties in this action in the absence of April McQueen ... ,” according to the motion.
No ruling had been filed on either motion for dismissal as of Wednesday.