Maryland's highest court says that police officers can be sued for libel if they make false statements to obtain a search warrant, clearing the way for two members of the now disbanded Southwestern District "flex squad" to pursue a lawsuit against two other city officers who were investigating their conduct.
The unanimous opinion, issued by the Maryland Court of Appeals on Wednesday, overturns a decision by Circuit Judge M. Brooke Murdock, who dismissed a $1.5 million lawsuit filed last year by Sgt. Robert Smith and former Detective Vicki Mengel. In doing so, the appeals court rejected the investigating detectives' claim that they enjoyed blanket immunity because obtaining a warrant is part of the judicial process.
Retired Judge Alan M. Wilner, who wrote the opinion, noted that judges often approve search warrants during off-hours and at their homes, "with little or no ability to test the accuracy of" allegations made to support the warrant request.
In their affidavit, Detective Sgt. Scott Danielczyk and Detective John P. Jendrek swore that they had reason to believe drugs were stashed in desk drawers and lockers used by flex squad members, and that the officers were planting evidence on citizens to make false arrests.
Though drugs were indeed recovered from the station house during a subsequent raid, no charges resulted against Smith and Mengel, who both denied wrongdoing.
Paul M. Blair Jr., president of the city's Fraternal Order of Police, said the ruling "opens a Pandora's box" that could cause a chilling effect among officers pursuing delicate cases.
"Why would you want to write a warrant if courts are now saying the defendant can sue" before charges are brought, Blair said.
"You could cost the city millions of dollars defending officers because every defense attorney would tell their clients to sue the police."
But Byron L. Warnken, a professor at the University of Baltimore School of Law, said, "I can't imagine [the ruling] having more than a minimal and short-term impact on the business of preparing, submitting, and executing search warrants."
"The only people who enjoy absolute immunity are judges, and even that's not absolute," he said.
The search warrant was obtained shortly after a woman accused other members of the flex squad of raping her in late December of 2005.
The supporting affidavit asserted that "Officer Vicki Mengel [and the other members of the squad] are violating the [drug] laws" and used the station to "facilitate their illegal activity." It also referred to allegations that Mengel and Smith were involved in the "planting of controlled dangerous substances on citizens in an effort to knowingly make false arrests."
Karen S. Hornig, the chief legal counsel for the Police Department, who is representing the detectives being sued, said, "These two officers were simply doing their jobs."
Wilner wrote that once the contents of the search warrant became public, the accused officers had little recourse except to address their concerns in a lawsuit.
"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," he said.
The impact on reporters, who often cite official documents as a source for news stories, should be minimal, said Diana Huffman, a journalism professor at the University of Maryland.
"I would argue a search warrant signed by a judge is a pretty strong source," Huffman said.
A city police spokesman said an investigation into the other misconduct allegations against flex squad members is continuing.
The allegation that triggered the investigation led to rape charges against three other flex squad members. One of them, Jemini Jones, was acquitted, while charges against the other two were dropped.
Mengel, who had been suspended with pay since gambling charges were lodged against her in November 2005, left the police force last year. The gambling charge resulted in a finding of probation before judgment, meaning it can later be wiped from her record, court records show. Smith was still assigned to the Southwestern District as of April.
Clarke F. Ahers, a lawyer representing Smith and Mengel, could not be reached for comment.