Metropolitan News-Enterprise


Thursday, September 6, 2001


Page 1


Ninth Circuit Upholds Dismissal of Suit Challenging ‘Witch Hunt’

En Banc Panel Says Social Service Caseworkers in Molestation Prosecution Protected by Immunity


By KENNETH OFGANG, Staff Writer/Appellate Courts


A Wenatchee, Wash. foster parent accused of child molestation in what came to be known as the “Wenatchee Witch Hunt” cannot sue social service caseworkers for violating his civil rights, an en banc panel of the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In an 8-3 decision, the court said that Robert Devereux’s suit was properly dismissed on the basis of qualified immunity. There is no constitutional right to compel officials to use or to refrain from using specific investigative techniques, Judge A. Wallace Tashima said.

Devereux was among 60 defendants charged with nearly 30,000 criminal acts involving 43 children, many of whom gave statements the defendants claimed were coerced. In February 1998, the Seattle Post-Intelligencer published a series of articles suggesting that police and social service caseworkers were overzealous, and sometimes outright abusive, in their handling of the cases.

Most of the defendants were eventually acquitted or had charges dropped—several after initially being convicted—in large part after a group of volunteer lawyers undertook to represent them.

Witnesses Recanted

Devereux, who once ran an investment company in California and was the foster father for more than 300 children, was initially charged with 335 counts of child rape and 335 counts of child molestation against two children. After witnesses recanted, he pled guilty to one count of witness tampering for warning someone that police were looking for him and one count of spanking a foster child.

He received a suspended sentence, then filed suit against the state, the city, the detective who spearheaded the investigation—originally on the basis of statements by the detective’s own foster children about other foster homes they had lived in—the state caseworkers who interviewed the children, and the police chief and public safety commissioner.

The district judge granted summary judgment to all defendants. Devereux then settled with the detective and the police chief, and appealed only as to the caseworkers, whom he accused of using coercive methods in seeking to obtain incriminating statements from the children. 

Immunity Affirmed

A divided Ninth Circuit panel ruled that the caseworkers were immune. Tashima wrote yesterday that while he found their conduct “troubling” and not to be condoned, it did not rise to the level of a constitutional violation. 

“Interviewers of child witnesses of suspected sexual abuse must be given some latitude in determining when to credit witnesses’ denials and when to discount them, and we are not aware of any federal law—constitutional, decisional, or statutory—that indicates precisely where the line must be drawn,” Tashima wrote.

State officials may be held liable, Tashima explained, if they deliberately fabricate evidence. But Devereux failed to present evidence to support such a claim, the judge said.

An official cannot be held liable, Tashima added, merely for failing to credit exculpatory evidence. Devereux had claimed that the caseworkers ignored statements by other foster children that would have cleared him.

Denial Not Believed

Tashima reasoned that “the mere fact that an interviewer did not immediately believe…a denial cannot suffice to show that the interviewer violated the Constitution by using techniques that the interviewer knew or should have known would yield false information.”

Nor are social workers required, at least at the investigative and charging stages of a case, to turn over exculpatory evidence, as prosecutors would have to under Brady v. Maryland. Even if Brady applied, the judge added, a Brady violation in and of itself does not establish that deliberate falsification occurred. 

Chief Judge Mary M. Schroeder and Judges Diarmuid F. O’Scannlain, Thomas G. Nelson, Sidney R. Thomas, Richard A. Paez, and Johnnie B. Rawlinson concurred.

Judge Ferdinand F. Fernandez concurred separately, saying there was no reason for the court to determine whether “the mere development of evidence” or the filing of charges could constitute a due process violation, even if false.

Judge Andrew J. Kleinfeld, joined by Judges Kim McLane Wardlaw and Harry Pregerson, dissented in part. Three of the defendants, Kleinfeld argued, may have violated Devereux’s civil rights by continuing to investigate after they knew or should have known that he was innocent, and/or by using techniques that were likely to produce false information.

The case is Devereux v. Abbey, 97-35781.


Copyright 2001, Metropolitan News Company