Officers Have to Face Suit

JUDGE DENIES IMMUNITY, RULES CASE CAN PROCEED IN FAKE-DRUG SCANDAL

A federal judge has ruled that two Dallas police officers at the
center of the city's fake-drug scandal are not immune from a
civil-rights lawsuit brought by a woman who says she was falsely
arrested in 2001.

The decision by Dallas-based U.S. District Judge Ed Kinkeade, who is
presiding over several similar lawsuits against the city and other
police officers, allows the case to proceed and could mean that Senior
Cpl. Mark Delapaz and Officer Eddie Herrera will give testimony
related to the cases.

The ruling, released Thursday, relates only to a lawsuit filed last
year by Betty Jenkins, 53, a Dallas woman arrested in 2001 on a felony
drug charge based on narcotics evidence that later tested as billiards
chalk. But it signals that the judge might deny pending claims of
qualified immunity - a defense that can exempt officers from liability
if they make mistakes on the job - in other suits in which Mr. Delapaz
and Mr. Herrera are defendants. The judge had not ruled as of late
Friday.

Rockwall attorney Joe Tooley, who represents Mr. Delapaz and Mr.
Herrera, said he planned to explore a number of options before his
clients would submit to depositions - sworn testimony that occurs
during the pre-trial discovery portion in lawsuits.

"Given the court's ruling, the pendency of several other civil cases
and related proceedings, we must proceed with the utmost caution to
protect the interests of the officers and review all options
available," Mr. Tooley said.

Even if Mr. Delapaz and Mr. Herrera agreed to give depositions, it is
unclear whether the men would assert their Fifth Amendment right
against self-incrimination because they potentially are targets of an
ongoing investigation into the fake-drug arrests by a Dallas County
special prosecutor.

Mr. Tooley could respond to the ruling by appealing the judge's
decision or asking him to reconsider. He also could seek an agreement
with plaintiffs' attorneys to postpone the depositions.

Also named in the suit are the city of Dallas, former Police Chief
Terrell Bolton and a former narcotics division supervisor, Deputy
Chief William Turnage.

Assistant City Attorney Jason Schuette declined to comment because the
litigation is ongoing. Don Tittle, who represents Ms. Jenkins, and Ed
Voss Jr., the attorney for several officers and Mr. Bolton, could not
be reached for comment Friday.

Rights Violated?

Ms. Jenkins' lawsuit is similar to several others filed in Dallas
federal court by people arrested in fake-drug cases in 2001. Her
lawsuit contends that Mr. Delapaz and Mr. Herrera violated her rights
by making false statements to secure a warrant for her arrest in April
2001 on a first-degree felony drug charge.

A federal jury acquitted Mr. Delapaz in November of charges that he
violated the civil rights of four innocent people arrested in cases
involving fake drugs in 2001. Federal prosecutors argued that Mr.
Delapaz lied in arrest warrants about seeing drug transactions in an
effort to bolster the cases.

Like many of the arrests that spawned the scandal, drug evidence
seized in Ms. Jenkins' case received a false positive when officers
used their portable plastic field kits to test for narcotics.

A group of corrupt informants paid by police to help them catch drug
dealers have testified that they fooled Mr. Delapaz and other officers
by framing people with billiard chalk packaged as though it were
cocaine or methamphetamine. In all, more than 24 people were arrested
based on bogus evidence, and more than 80 cases were dismissed.

Ms. Jenkins' criminal attorney said in 2001 that Ms. Jenkins said an
informant came into her home and planted the drug evidence in a
bathroom before police raided minutes later.

But Ms. Jenkins, who had several prostitution and drug arrests on her
record, pleaded guilty to the drug charge in August 2001 and was
sentenced to 15 years in prison. Later, a more sophisticated
laboratory test revealed that the substance she was arrested for
contained less than 1 percent cocaine. She was released from jail in
October 2002.

In his ruling, Judge Kinkeade stated that if the facts Ms. Jenkins
alleges in her suit are true, then Mr. Delapaz and Mr. Herrera would
not be granted immunity.

Her lawsuit and others like it filed in federal court in Dallas are in
the preliminary stages. The officers could be dismissed from the suit
before any trial if the judge later finds that the evidence doesn't
support Ms. Jenkins' claims.

The parties also could agree to settle the case out of court or a jury
could render a verdict after trial.

Immunity Defense

Some officers and others with knowledge of the 2001 cases have been
deposed.

Others named in the suits, including an officer central to some of the
fake-drug arrests, Senior Cpl. David Larsen, are waiting until the
judge decides whether they have a qualified immunity.

Such an immunity defense is in place to prevent officers from being
found liable in court for mistakes, said Dan Boyd, a Dallas civil
lawyer who has pending litigation against the city related to police
conduct.

"A policeman shouldn't be held civilly liable for mere negligence," he
said. "But when you get into intentional wronging, or malicious
wrongdoing, then it usually fits into the exceptions."

Mr. Voss, the attorney for Mr. Bolton and some officers named in the
suits, recently asked the judge to decide whether the men have the
same immunity - a move that, for now, has postponed their tentatively
scheduled depositions. Judge Kinkeade has yet to reply to those
motions. It's unknown whether the judge's ruling signals how he might
address motions related to immunity defense for Mr. Bolton and police
officers.

For example, Mr. Bolton's role as a high-ranking supervisor might be
seen differently from that of Mr. Delapaz and Mr. Herrera because he
was far removed from street-level decisions.