Las Vegas POA

Prosecutor Cannot Be Sued For Stating At Roll Call That Sergeant Was A Thief And A Liar

Written on 06/05/2021
Will Aitchison

In early 2016, Officer Edwin Diaz, a 20-year veteran working in the Narcotics Bureau of the Miami-Dade Police Department (MDPD), became the subject of an internal investiga­tion. The investigation came in the wake of several high-profile arrests of MDPD police officers. The MDPD’s investigators worked in conjunction with the Florida Department of Law Enforcement and the Miami-Dade State Attorney’s Office.

The investigation into Diaz was based on allegations that he, along with other officers in the Narcotics Bureau, was stealing money and other valu­ables from crime scenes. The County focused its investigation on Diaz as he had been named in six prior theft complaints over a ten-year period. All of the complaints had been dismissed either because the allegations were un­founded or because they could not be corroborated. The County authorized Sergeant Matthew Fryer to apply for a search warrant citing the six prior complaints against Diaz as probable cause. The search warrant was grant­ed, and the investigation ultimately culminated in a sting operation, a roadside search and seizure of Diaz’s person and car, and the interrogation and arrest of Diaz.

The State Attorney’s Office ulti­mately decided that there was insuf­ficient evidence to prosecute Diaz. Unsatisfied with this outcome, Deputy Chief Assistant State Attorney Howard Rosen attended a roll call meeting at MDPD’s Narcotics Bureau on May 6, 2016. There, in the presence of more than 40 police officers, Rosen accused Diaz of stealing from crime scenes.

Diaz sued Rosen, alleging a variety of claims against Rosen and others, in­cluding a claim that Rosen’s statements amounted to defamation of character. In particular, Diaz objected to Rosen’s statements that “the common denom­inator on numerous, numerous cases where money was missing from scenes” was Diaz. Rosen also stated that “we know that, in the past, Officer Diaz has stolen money. We just can’t prove it and charge him with a crime.” In reference to other cases Diaz had investigated, Rosen opined that “there was a serious credibility issue with Officer Diaz, so we can’t file the case.”

A federal appeals court dismissed the claim against Rosen, citing prin­ciples of prosecutorial immunity: “A prosecutor’s most basic duty is to prosecute cases in his jurisdiction on behalf of the State. Related to that duty, prosecutors may also communicate with other law enforcement agencies, officials, or employees about current or potential prosecutions. Because there remained an ongoing criminal inves­tigation into Diaz at the time of the roll call meeting, we are bound to find that Rosen was acting within the scope of his discretionary authority. Rosen’s statements to fellow law enforcement officers explaining his decision not to not prosecute Diaz as well as con­cerns he had over Diaz’s credibility as a witness clearly fall within Rosen’s discretionary authority as a prosecutor.

“Additionally, Diaz has not over­come Rosen’s qualified immunity defense as Diaz’s allegations do not establish a violation of a clearly es­tablished constitutional right. In his second amended complaint, Diaz ar­gues that Rosen’s alleged defamatory statements have irreparably damaged his credibility, both as an investigator and as a witness on behalf of the State of Florida. However, we have held that damage to reputation alone is insuffi­cient to state a 14th Amendment due process claim. Diaz has thus not alleged sufficient facts to overcome Rosen’s defense of qualified immunity.”

Diaz v. Miami-Dade County, 2021 WL 825723 (11th Cir. 2021).

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