Among the most ridiculous cases of the year, the search warrant in Manassas, Virginia to photograph the erect penis of a 17-year-old boy charged with sexting his girlfriend stands apart. To describe what happened there as “crazy” is to be tepid. It was totally batshit crazy and every person complicit in the insanity was a flaming nutjob.
Jessica Harbeson Foster, who represented the teen, said as much. Well, she was kinder.
Foster told The Post, in an article published online on July 9, that her client had already been arrested and his genitals photographed at the county jail. She said Assistant Commonwealth’s Attorney Claiborne Richardson told her on July 1 that the teen must either plead guilty or police would obtain another search warrant “for pictures of his erect penis,” for comparison to the evidence from the teen’s cell phone.
The online article 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.’”
See? Under the circumstances, a rather restrained expression of opinion. So naturally, Detective David Abbott, unsatisfied with being ridiculed for his involvement in the execution of a warrant to force a teenage boy to have an erection so it could be photographed, has chosen instead to add a new source of ridicule to the mix. He’s suing Foster for defamation.
Abbott’s lawsuit claims 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.”
What is meant by “materially misstates?”
“Foster’s statement” to The Post, the detective’s lawsuit states, “provides that Abbott, himself, would obtain the photos and use ‘special software to compare pictures of this penis to this penis.’ This statement implies that Abbott conceived of the idea, that he desired to obtain the photographs, that he would take actual photographs, and that he would personally execute the comparison.”
I don’t think “materially misstates” means what they think it does. But that said, what about the harm this causes the sensitive detective?
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.”
So the intense media and public scrutiny was Foster’s fault, and not the fault of Abbott’s having obtained a warrant to force a teen to have an erection so it could be photographed and compared? And could there be a better reason for this cop to feel “embarrassment, shame” than being a willing participant in something so embarrassing and shameful?
The Manassas City police department is making an effort to distance itself from the underlying fiasco, issuing a press release shifting the blame to the Assistant Commonwealth’s Attorney, Claiborne Richardson.
The release also placed responsibility for the two genitalia-photo search warrants directly on Richardson, rather than the lead investigator, Abbott, saying that the detective “was instructed by a member of the Commonwealth’s Attorney’s office” to obtain both search warrants.
Just following orders, eh? The old Nuremberg defense. Yeah, that’s persuasive. Of course, it was Abbott’s name on the warrant, and at no time did Abbott say or do anything to suggest he wasn’t all-in on the dick pics. Indeed, until news of this outrage went public, there was always the possibility he could get a medal for his bravery and a photo of his own in the local papers for “hero cop saves society from sexting teen by erect penis comparison.” So proud.
This suit, like its underlying scenario, is totally, out of the park, crazy. Aside from the fact that “crazy” is Foster’s opinion, shared by pretty much every human being aware of the case, and therefore not a statement of fact susceptible to defamation, the comment as to Abbott was in his capacity as a detective, a government agent.
Independent of the right to express an opinion as to the insanity of an outrageous and offensive means of obtaining evidence in a prosecution is the right to challenge government action, including the conduct of government agents in the course of pursuing that action. Foster wasn’t speaking to “good ol’ Dave Abbott, who lives around the corner and down the road apiece,” but Manassas City Police Detective David Abbott who signs warrants to take pictures of a teenage boy’s erect penis.
So Det. Abbott is all butthurt about the fact that he is now despised and ridiculed around the country for what he did? Bummer. The solution, detective, is not to sign off on a warrant for erect penis pics of teenagers.
And while prosecutor Richardson, not to mention the judge who signed off on the warrant, Jan Roltsch-Anoll, are clearly worthy of ridicule and derision for their roles in this disgrace, that doesn’t mean that the cop willing to get his hands dirty escapes responsibility for his role. So Detective Abbott, if you don’t want the world to think you’re some sick, disgusting pervert, don’t be one.
Unfortunately, Virginia has no anti-SLAPP statute, which means that Abbott will likely get a free-ride on this effort to blame Foster for the natural reaction to his own conduct.
H/T Alfred L. “Rob” Robertson, Jr.