The Volokh Conspiracy
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Monday's federal appellate decision in Wesley v. Campbell (6th Cir. Mar. 2, 2015) holds that "plaintiff Richard Wesley, formerly an elementary school counselor and child behavioral specialist" was entitled to sue police officer Joanne Rigney for false arrest (in violation of the Fourth Amendment). The facts (including the quite unpleasant allegations) are long and complicated, as is the court's reasoning, but here's an excerpt from the court's analysis:
Both claims arose from the same incident, in which one of Wesley's then-students [7-year-old J.S.] accused Wesley of sexually assaulting him and two other students in an office at the school's administrative center. Rigney waited almost three months after the student made his allegations before seeking a warrant for Wesley's arrest and then omitted from her application a range of material facts demonstrating the unreliability of the student and his allegations. Taken together, those omissions thoroughly undermined the existence of probable cause. Because the district court's improper finding of probable cause supported its decisions to dismiss the complaint, we reverse the district court's judgment and remand the case for trial….
The case against Wesley fell apart soon [after the arrest]. J.S. and his mother refused to cooperate with the prosecution's investigation, and the state's attorney concluded that the case could not be tried. At her request, a grand jury declined to indict Wesley, and the charges were dismissed. Nearly a year later, on February 15, 2010, an administrative hearing officer summarily reversed [social worker Alison] Campbell's finding of substantiated abuse.
J.S.'s uncorroborated allegations were legally insufficient to create probable cause. While adopting a presumption of reliability for eyewitness allegations, those cases also contain an important limiting factor: Probable cause is created only by eyewitness allegations that are "reasonably trustworthy" and thus probable cause does not exist where "there is an apparent reason for the officer to believe that the eyewitness was lying, did not accurately describe what he had seen, or was in some fashion mistaken regarding his recollection." …
Here, as the district court noted, probable cause for Wesley's arrest was "based solely on [J.S.]'s statements." Hence, Wesley's complaint stated a claim for false arrest under Rule 12(b)(6) as long as he alleged facts allowing the fact-finder to infer some "apparent reason to question [J.S.]'s reliability."
Wesley's complaint meets that burden. It contains the following factual allegations bearing on J.S.'s reliability as a witness: (1) J.S. was a young child; (2) Wesley's office (where the alleged abuse occurred) was located at the center of the school's "administrative hub," within the line of sight of other adult staff members; (3) J.S.'s allegations about the abuse were inconsistent; (4) J.S. suffered from a history of serious psychological and emotional disturbances; (5) Rigney required J.S. to undergo a medical examination and that examination showed no evidence consistent with his allegations of sexual abuse; and (6) Rigney's investigation failed to uncover any evidence corroborating any aspect of the abuse J.S. alleged. Taken together, the "totality of the[se] circumstances" raises doubts about J.S.'s reliability that are clearly "above the speculative level." We discuss these factual allegations in turn.
First, like other circuits, we have expressed serious concern about basing probable cause solely on the uncorroborated allegations of a child. See, e.g., United States v. Shaw, 464 F.3d 615, 624 (6th Cir. 2006); Stoot v. City of Everett, 582 F.3d 910, 919-20 (9th Cir. 2009); Cortez v. McCauley, 478 F.3d 1108, 1116 (10th Cir. 2007). In Shaw, we held that a young child's uncorroborated hearsay allegations were too unreliable to form the basis for probable cause. Although Shaw involved hearsay allegations (rather than direct allegations, as is the case here), its underlying reliability rationale remains relevant. See Diana Younts, Evaluating and Admitting Expert Opinion Testimony in Child Sexual Abuse Prosecutions, 41 Duke L.J. 691, 697 (1991) ("[S]tudies examining children's suggestibility have found children to be prone to conforming their stories to the beliefs of the questioning adult."), quoted in United States v. LeBlanc, 45 F. App'x 393, 399 n.1 (6th Cir. 2002). In Stoot, the Ninth Circuit correctly read Shaw to reflect concerns about all uncorroborated allegations by children, not just those involving hearsay.
Indeed, it appears that no federal court of appeals has ever found probable cause based on a child's allegations absent some other evidence to corroborate the child's story…. Indeed, some cases have expressed heightened concerns about the reliability of child-witnesses' allegations when, as here, there are other indicia of unreliability.
We are, of course, all too aware of the difficulties facing police investigations into child sexual abuse. We recognize that a child-victim's testimony often plays an important role in prosecuting the perpetrators of this serious and disturbing crime. Nevertheless, we conclude that J.S.'s young age is a factor bearing on the reliability of his accusations and that Rigney (and the district court) should have given it appropriate weight.
Second, we note that the implausibility of a witness's accusations is also germane to determining the existence of probable cause…. Without question, J.S.'s allegations against Wesley were facially implausible. According to Wesley's complaint, "J.S. claimed … that on multiple occasions over a one year period, Plaintiff had anally sodomized him while they were in Plaintiff's office." Wesley alleged that this office was in an extremely well-traveled hallway at the center of the school's "administrative hub," located between the faculty mailroom and the principal's office and directly facing the school secretary's desk. Wesley has alleged that Rigney was aware (or should have been aware) that Wesley's office door was open whenever he met with a student and that multiple school staff members had a direct line of sight into Wesley's office. Taken as true, these facts show that it would have been difficult for the severe sexual abuse J.S. described to continue for so long undetected.
The complaint also alleges that J.S. struggled unsuccessfully to tell a consistent story with regard to the details, severity, and duration of the sexual abuse he endured. Specifically, in the first telling, J.S. accused Wesley of a single act of over-the-clothes touching. Six days later, this story had escalated to repeated anal sodomy, occurring multiple times over the course of a year.
A "child's inconsistent identifications cast doubt on [his] reliability." … Although it is true that an eyewitness's allegations need not be perfectly consistent in order to establish probable cause, we conclude that J.S.'s inconsistent stories should have suggested to Rigney that he was unreliable.
Similarly, J.S.'s history of psychological problems supported an inference that he was a less reliable witness than a psychologically healthy child. Wesley has alleged that, at the time Rigney sought his arrest, she was aware of J.S.'s "severe mental and emotional problems"—problems that included violent fantasies and suicidal impulses and that had previously led to his psychiatric hospitalization for at least two weeks. Clearly, "mental illness can indeed be relevant to a witness's credibility." Mental illness also bears more heavily on credibility when, as in J.S.'s case, "the witness suffered from the condition at the time of the events" he described.
Furthermore, the results of J.S.'s medical examination, which showed no evidence of anal sodomy or other abuse-related injury, also undermine Ahlers's presumption of veracity. "Such 'negative' or 'inconclusive' results … may be exculpatory even where they do not provide definitive evidence on a particular issue," because they "'demonstrate that a number of factors which could link the defendant to the crime do not.'" …
Finally, Rigney's inability to uncover any evidence corroborating J.S.'s story (despite her efforts to do so) further undermines the allegation's presumed reliability. "In cases involving very young child victims, the courts have repeatedly emphasized the need for some evidence in addition to the statements of the victim to corroborate the allegations and establish probable cause." In Shaw, for example, we declined to find probable cause where the police failed to "ma[k]e any effort whatsoever to corroborate the [witness's hearsay] allegations before taking [the defendant] into custody." In this case, Rigney did make an effort to investigate J.S.'s story, but found "no information from [the people she interviewed] other than [that] Plaintiff had always acted professionally and appropriately."
For the reasons explained above, we conclude that Wesley plausibly alleged that Rigney effected his arrest without probable cause. Taken as true, Wesley's allegations also plausibly show that Rigney is not entitled to qualified immunity, because her application for an arrest warrant contained omissions that were "deliberate … or showed reckless disregard for the truth" and were "material to the finding of probable cause."
As a threshold matter, it seems clear that Rigney's decision to withhold evidence of J.S.'s unreliability was material, because it is clearly established that witness allegations fail to sustain probable cause when there is "apparent reason to question the person's reliability." If the magistrate who issued the arrest warrant had known that there were, in fact, several "apparent reason[s] to question" J.S.'s reliability, precedent would have precluded a finding of probable cause, and the warrant would not have issued.
In addition, Rigney's omissions demonstrate "deliberate[ness]" or a "reckless disregard for the truth," given that any reasonable officer would have recognized the importance of J.S.'s reliability on the question of probable cause. Put another way, any reasonable officer would have known that the gaps in J.S.'s credibility would be "the kind of thing the judge would wish to know." Hence, qualified immunity was inappropriate, because it is clearly established that "[p]olice officers cannot, in good faith, rely on a judicial determination of probable cause when that determination was premised on an officer's own material misrepresentations to the court."