Metropolitan News-Enterprise


Wednesday, February 12, 2003


Page 1


Alleged Detention of Employees by Officers Investigating Company Is Cause for Rights Suit, Court Says


By a MetNews Staff Writer


Six former employees of a company investigated by Washington state law enforcement officers may sue the officers for allegedly holding them incommunicado and threatening them with further detention in order to gain their cooperation, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel agreed with U.S. District Judge Robert Bryan of the Western District of Washington that the officers who conducted the 1999 raid on the Puyallup, Wash. offices of Ear-Tec Hearing Aid Specialists are not entitled to qualified immunity.

“When law enforcement officers investigate an organization suspected of criminal wrongdoing, they may not ignore the civil rights of the organization’s employees,” Judge Ronald Gould wrote for the appeals court. “Although officers are entitled to act vigorously to gain information and to prevent the flight of the culpable, our Constitution requires that officers heed employees’ rights in the process—.Considering the facts in the light most favorable to the employees, we hold that the officers violated the employees’ clearly established Fourth Amendment rights.”

Ear-Tec’s owner was convicted two years ago of theft, conspiracy, and lying to a state agency and sentenced to five years in prison, and the company was banned from providing services to injured workers. The state Department of Labor and Industries had earlier ordered the company to pay more than $800,000 in restitution.

Investigators said the company, which was contracted to provide hearing aids to injured workers under the state workers’ compensation system, fraudulently billed the state for needless repair and replacement of hearing aids that were in good working order.

But the six plaintiffs in the federal suit, four of them recent hires, said they knew nothing of the fraudulent practices. They were at work and planning to attend an office party two days before Christmas, they said, when the officers came in to execute a warrant and told them they had to remain in a waiting room until they were individually interrogated in a back room.

They were also not allowed to go to the restroom unattended, retrieve their personal possessions, make telephone calls, or answer the office telephone when it rang, they said, and each employee was detained in this manner for anywhere from one hour forty-five minutes to four hours, 45 minutes before completing a tape recorded interrogation and being released.

One of the plaintiffs said she refused to submit to interrogation, following which she was taken back to the waiting room and held for another two and a half hours before being brought back to the room where the interviews were taking place. She gave a statement, she said, only because she believed she would not be released otherwise.

Also present that day were four children, whose employee/parents had brought them to attend the office party. The parents were not permitted to call their spouses, they claimed, so the children were forced to remain for 45 minutes before the adult daughter of another employee was allowed to take them from the premises.

Gould agreed that under the facts as alleged by the plaintiffs, the detentions would violate the Fourth Amendment, since there was neither probable cause to believe the plaintiffs had committed a crime nor exigent circumstances justifying the scope of the detentions.

The judge agreed with the defendants that they could legitimately detain the plaintiffs during the search in order to prevent them from fleeing in the event incriminating evidence was found, or from obtaining weapons. But compelling the employees to give statements, in circumstances resembling custodial interrogation, was “a serious intrusion upon the sanctity of the person,” Gould said.

Under controlling Supreme Court precedent, the judge explained, a person who may have knowledge of a crime, but cannot be arrested due to lack of probable cause, may be detained briefly for questioning. But if the police go further than is necessary, such as by removing the person from the scene for further questioning, the high court has ruled, the Fourth Amendment is violated.

Gould went on to reject the claim that the prolonged and intrusive detentions were necessary to prevent the employees from alerting other Ear-Tec offices to the raid. “That is a legitimate interest but a short-lived one,” he wrote, because the same agencies could have searched the other offices at about the same time.

If, on the other hand, they were not searching the other offices at the same time, “restricting the plaintiffs’ telephone use was almost pointless: the plaintiffs could warn conspirators at the other offices of the investigation once they were released.”

Senior Judge Robert R. Beezer and Judge Marsha S. Berzon concurred in the opinion.

The case is Ganwich v. Pierce County, 01-35677.


Copyright 2003, Metropolitan News Company