April 01, 2015

Officer Lacked Probable Cause for Arrest Warrant Based on Child’s Inconsistent and Uncorroborated Statement

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Wesley v. Campbell, 2015 WL 859457 (6th Cir.). 

Child alleged abuse at a time and place which would have likely had many witnesses, there was no medical evidence, and other alleged child victims denied abuse. Further, officer acted recklessly in omitting facts from the affidavit requesting an arrest warrant and was not clearly entitled to qualified immunity. 

A seven-year-old child was found by a school counselor harming himself outside of class. The counselor brought him into his office, which was located in the ‘administrative hub,’ in the midst of many staff offices. The staff later stated there were two other students in the office and another counselor remained with the three students when the counselor left to call the seven-year-old’s mother. The counselor recommended the mother take the child to a mental health center. The counselor followed the family there because the child had a long history of behavioral problems. He had previously recommended the child be evaluated and believed the mother had not done so. 

The child told his mother on the car ride that the counselor had touched his private area over his clothes when they were alone in the office. The mother contacted child protective services (CPS). The CPS investigator and a police officer interviewed the child at the child advocacy center a few days later and his report of abuse was more severe. He said the counselor had raped him and that this abuse had been going on for a year and the counselor had abused two other students at the school. 

A team of social workers interviewed all the children who had records of appointments with the counselor. All the children interviewed, over 30 children, reported no inappropriate behavior by the counselor. 

A medical exam of the child revealed no signs of abuse. CPS substantiated the report of abuse against the counselor and the school terminated his employment. The officer filed an affidavit for an arrest warrant and the counselor was arrested. The case quickly unraveled in court when the child and his mother refused to cooperate with the prosecutor. 

The counselor then filed a civil rights suit under § 1983 for false arrest and negligent investigation. The district court granted motions to dismiss by the officer finding she had probable cause to arrest and had qualified immunity. The counselor appealed. 

The United States Court of Appeals for the Sixth Circuit reversed.

The Sixth Circuit examined the wrongful arrest claim, which was dismissed on a 12(b)(6) motion. It observed that the district court had wrongly held the counselor’s claim needed to make a ‘substantial’ showing rather than the correct ‘plausibility’ showing. 

The Sixth Circuit noted that for qualified immunity, an officer violates well-established case law if they make known material omissions or show reckless disregard for the truth. A probable cause determination analyzes the totality of the circumstances known to the officer including inculpatory and exculpatory information.

Case law is divided on whether firsthand statements, without more, are sufficient for probable cause. However, even those cases that hold that they are sufficient require the statements be ‘reasonably trustworthy.’ Under these circumstances, the officer should have had doubts about: the trustworthiness including the child’s young age, the alleged assaults were in a location visible to many other staff, the child’s statements were inconsistent, there was no medical evidence of abuse, and the child had a history of psychological issues. 

Because the officer failed to disclose some of these pertinent facts in the affidavit, her actions showed a reckless disregard for the truth. Thus, the district court erred in granting the dismissal based on qualified immunity.