Monday, October 6, 2003
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Court Rules Officer Qualifiedly Immune in Abuse Investigation
Ninth Circuit Panel Issues Pair of Rulings in Rights Suits Stemming From Washington Child Sex Scandal
By DAVID WATSON, Staff Writer
The police officer who spearheaded an investigation that led to later discredited sex abuse charges against dozens of parents and foster parents in Wenatchee, Wash. is entitled to qualified immunity in suits by two of those accused, the Ninth U.S. Circuit Court of Appeals ruled Friday.
In separate rulings by the same three-judge panel, the court said two different district judges in the Eastern District of Washington erred in denying motions for summary judgment brought by Detective Robert Perez.
Perez led the investigation, which started when his own foster children claimed they had been molested while living with previous foster parents.
Eventually 60 defendants were 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. Some in the media dubbed the investigation the “Wenatchee Witchhunt.”
Each of the plaintiffs in the cases decided yesterday spent five years in prison. Ralph Gausvik was convicted after a jury trial, while Henry H. Cunningham confessed after a lengthy interrogation by Perez and pled guilty.
Both were freed after the Washington Court of Appeals questioned the reliability of the accusations and prosecutors sought dismissal of the charges. Both men sued Perez, the City of Wenatchee, and other officials involved in investigating the charges, alleging civil rights violations under 42 U.S.C. Sec. 1983.
Writing for the panel in both cases, Senior Judge Donald P. Lay of the Eighth Circuit, sitting by designation, rejected claims that Perez violated clearly established constitutional standards in investigating the allegations against the two men.
Lay cited the Ninth Circuit’s 2001 en banc decision in Devereaux v. Abbey, 263 F.3d 1070, which also involved claims arising out of the Wenatchee prosecutions. In that 8-3 ruling, which affirmed the decision of a divided three-judge panel, Judge A. Wallace Tashima explained for the majority that there is no constitutional right to compel officials to use or to refrain from using specific investigative techniques.
The plaintiff in Devereaux had settled with Perez and the Wenatchee police chief, and the claims considered by the en banc panel were against social service caseworkers.
Devereaux, Lay said, holds that while a clearly established right not to be prosecuted based on fabricated evidence exists, a plaintiff seeking to prove a violation of that right must show either that officials continued their investigation after they knew or should have known the plaintiff was innocent or that they used investigative techniques so coercive and abusive that they knew or should have known false information would result.
Neither Cunningham nor Gausvik met the Devereaux standard, Lay said.
Cunningham claimed Perez should not have continued to question Cunningham’s two daughters after they initially denied their father had sexually abused them.
“Perez’s conduct, while inappropriate, does not satisfy Devereaux,” Lay wrote. “Cunningham must produce more than mere allegations that Perez used improper interview techniques.”
Gausvik’s allegation that Perez used overbearing tactics in questioning Gausvik’s own children and those of Gausvik’s girlfriend, with whom he was living, was similarly insufficient to meet the Devereaux test, Lay explained.
Gausvik’s and Cunningham’s allegations that Perez failed to preserve exculpatory evidence also failed to establish a constitutional violation, the judge said.
Gausvik claimed Perez exaggerated the evidence of abuse in preparing an affidavit, and Cunningham alleged the detective failed to collect physical evidence that could have exonerated him. Both men charged that Perez failed to document interviews in which alleged victims denied having been abused.
But Lay said a showing of bad faith was necessary to make out a due process and Fourteenth Amendment violation based on failure to gather and preserve evidence.
“While Perez’s investigative work may have been negligent or incomplete, it was not conducted in bad faith,” the judge said.
Lay also rejected Cunningham’s contention that the eight-hour interrogation that led to his confession was coercive. The judge noted that while Perez told Cunningham he had put people in prison, stated that Cunningham’s cooperation could lead to treatment rather than imprisonment, and refused Cunningham’s request to call his therapist, Perez did not yell at Cunningham, use or threaten violence, or refuse him breaks for food or water.
“When viewing the totality of the circumstances, Perez’s conduct did not undermine Cunningham’s free will,” Lay said. “Other cases finding coercion have been far more outrageous.”
Judge Ronald M. Gould and Senior Judge Warren J. Ferguson concurred.
Cunningham’s lawyer, Glenn S. Draper of Seattle, said he plans to seek en banc review of the ruling in his client’s case and noted that several state and federal suits against the detective by other plaintiffs are pending.
“Perez isn’t out of the woods yet,” he said.
He said the court had ignored some of the most damning evidence presented against Perez, including that he told one of Cunningham’s daughters she would be kept in a mental institution until she confirmed the abuse and that he showed Cunningham’s confession to the other daughter and later lied about having done so.
“I fail to see how the Constitution allows police officers to do that,” he said.
The cases are Cunningham v. Perez, 02-35792, and Gausvik v. Perez, 02-35902.
Copyright 2003, Metropolitan News Company