Sexual Assault & Harassment

     Monthly Law Journal Article: Civil Liability for Sexual Assault and Harassment by Officers, 2008 (2) AELE Mo. L.J. 101.
     A county sheriff hired a deputy, who was allegedly provided with little or no training. The deputy was first assigned duties as a jailer, and later as a "road deputy." During his last week on the job, after resigning to pursue a position with the state Department of Corrections, he encountered a female employee at a convenience store who asked his advice on some legal problems. She declined his offer to go on a date with him. Learning that she had several outstanding arrest warrants, and owed approximately $800 in fees and fines, he drove to the store on his last day on the job, arrested her, and transported her to the jail, telling her that he would not have done so if she had agreed to the date. At the jail, the deputy bet a jailer that he could get the arrestee to reveal her breasts. He then told the arrestee that he could get her fines reduced if she would show him her breasts, and she eventually complied. He then allegedly grabbed her exposed breast. She sued the deputy and the sheriff, claiming that the sheriff failed to properly train the deputy. The deputy was also arrested and pled guilty to second degree sexual assault. The deputy had received a policy manual, but had not been required to read it, and, in fact, did not read it. He was scheduled to attend a training academy, but had not yet attended it at the time of the incident. The trial court found the deputy liable, as well as the sheriff in his official capacity, while granting the sheriff qualified immunity in his individual capacity. A federal appeals court overturned the inadequate training liability, noting that there was no duty specified in state statutes for sheriffs to train subordinates not to sexually assault detainees, and that there had been no past pattern of such conduct by the sheriff's deputies that would have put him on notice about the need for such training. Additionally, since a reasonable officer would know that intentionally sexually assaulting a detainee was illegal, and the deputy admitted that he knew "that such conduct was impermissible," the plaintiff failed to show that the lack of training caused the assault. Parrish v. Ball, #08-3517, 2010 U.S. App. Lexis 2748 (8th Cir.).
     A woman claimed that a police officer, after repeatedly urging her to have her husband arrested, then insisted that she ride in his vehicle, rather than her own, to go to the police station. In the car, he allegedly touched and caressed her hand, stating that he wanted to date her. Upholding the denial of summary judgment for the officer in the woman's lawsuit for violating her Fourth Amendment rights, a federal appeals court found that a seizure occurred, in that the woman was captive in a moving police car under the officer's control, and had a clearly established right to be free of his sexual overtures and repeated touches while in his control. Wilson v. Wilkins, #09-5416, 2010 U.S. App. Lexis 976 (Unpub. 6th Cir.).
     A woman allegedly raped by a police officer contended that the city had acted with deliberate indifference to her constitutional rights in failing to properly supervise the officer. She pointed to prior incidents, including the city becoming aware that the officer was dating and having sex with a minor, that he consumed too much alcohol or was drugged at a bar, and that he was found on the rooftop of a building with cracked ribs. She also asserted that he had previously left his badge and uniform with a minor, damaged his patrol car, did not respond in a timely manner to a car accident, and failed to perform a field sobriety test when he finally responded. While many of these incidents were not similar to the alleged rape, the fact that the city and a sergeant allegedly knew of the officer's sex with a minor who could not legally consent justified denying the city's motion for summary judgment on the claim that this made it predictable that the rape was a consequence of the failure of the city to adequately investigate, supervise, and/or fire him. Arnold v. City of San Antonio, #SA-07-CA-877, 2009 U.S. Dist. Lexis 32744 (W.D. Tex.).
     A woman who claimed that she was sexually assaulted by a former police officer claimed that her rape was the result of the police chief's failure to adequately supervise the officer. A federal appeals court found that summary judgment for the police chief and city were proper because there was insufficient evidence that the police chief acted with deliberate indifference. While the chief knew of four prior excessive force and unlawful arrest allegations against the officer, all arising from the same incident, prior to the alleged rape, there were no accusations that the officer engaged in sexual misconduct. In the absence of a pattern of similar incidents involving sexual misconduct, the plaintiff could not establish deliberate indifference as required for a failure to supervise claim. The appeals court did, however, uphold a jury's award of $50,000 in compensatory and $250,000 in punitive damages against the former officer, and rejected arguments that the punitive damage award was excessive. Lewis v. Pugh, No. 07-40662, 2008 U.S. App. Lexis 17748 (Unpub. 5th Cir.).
     City was entitled to partial summary judgment in lawsuit by woman over officer's alleged improper sexual behavior towards her. The court rejected the plaintiff's argument that the city's failure to produce and use training materials specifically focused on improper sexual behavior was sufficient to establish a genuine issue as to whether inadequate training caused the officer's actions. The court noted that the city had numerous policies mandating ethical conduct, including towards arrestees. Teal v. City of Houston, Civil Action H-06-3726, 2007 U.S. Dist. Lexis 80675 (S.D. Tex.).
     Two men, now in their 40's could not pursue their claims against the City of Los Angeles and the Boy Scouts of America concerning their alleged sexual abuse by a police officer in the 1970's when they participated in a police department Explorer Scout program. Under a California statute, such claims must be brought before the victim's 26th birthday, unless the defendant knew or had reason to know of the unlawful sexual conduct by an employee or agent, and failed to take "reasonable steps, and to implement reasonable safeguards, to avoid acts of unlawful sexual conduct in the future by that person." The California Supreme Court upheld the dismissal of the lawsuit on statute of limitations grounds, finding that the plaintiffs failed to make specific enough allegations concerning the defendants' knowledge of the officer's alleged past sexual misconduct with minors to bring their case within the cited exception to the statute. Doe v. City of Los Angeles, No. S142546, 2007 Cal. Lexis 12186.
     Woman allegedly fondled by a deputy sheriff who attempted to kiss her while he had been on duty for the county failed to show that the county's lack of policies regarding sexual harassment caused his conduct. The deputy himself acknowledged that, due to his law enforcement training, he knew that it was wrong to touch females in an inappropriate manner when he came into contact with them in the course of his duties. The plaintiff was, however, awarded $25,000 against the deputy himself, who had come to her home in response to her 911 call seeking help for her brother, who had overdosed on drugs. Currie v. Haywood County, Tennessee, No. 06-5683, 2007 U.S. App. Lexis 8530 (6th Cir.).
     While a constable's alleged sexual assault on a woman, if true, violated a clearly established constitutional right, the plaintiff failed to show a connection between the alleged assault and the failure of a supervisor to report a prior alleged incident of sexual misconduct by the constable. Claims for alleged inadequate supervision or training are rejected. Atwood v. Town of Ellington, No.3:04cv207, 2007 U.S. Dist. Lexis 176 (D. Conn.).[N/R]
     Even though police officer initially encountered woman at police station where she was filling out paperwork concerning accident, he did not act under color of state law in motioning for her to come and see him, or in subsequently calling her on her cell phone and suggesting that they have an encounter of a "romantic" nature. At no point during these interactions did he state that he wanted to discuss official police business, or assert police authority, so that he and the city were entitled to dismissal of constitutional claims for violation of the right to privacy and equal protection. Federal trial court could properly, however, keep jurisdiction over state law claim for intentional infliction of emotional distress arising from the officer's actions. Chavez v. Guerrero, No. 06C2180, 2006 U.S. Dist. Lexis 91475 (N.D. Ill.).  [N/R]
     Oregon intermediate appeals court overturns $81,260 jury award against city in lawsuit arising from alleged sexual abuse, by a police officer, of a teenager involved in a police Explorer youth program. The court found that the lawsuit was time-barred under a two-year statute of limitations and that the plaintiff's claim accrued at the time the abuse allegedly occurred, not later when he testified before a grand jury proceeding concerning the incidents years later. Court rejects the plaintiff's theory that it was not until the grand jury proceeding that he had enough information to know that the city may have caused his injuries by ignoring reports of the officer's alleged abusive tendencies. T.R. v. Boy Scouts of America, No. 0206-5750, 133 P.3d 353 (Ore. App. 2006). [N/R]
     Female motorist's allegation that a state patrol officer, during a routine traffic stop, touched her outside of her pants near the vaginal area, and then placed his hand underneath her clothing, inserting at least one finger into her vagina, if true, was sufficient to state a federal civil rights claim for sexual battery and sexual assault against the officer individually. The Georgia State Patrol and Department of Public Safety, however, were state agencies not subject to a lawsuit for damages under 42 U.S.C. Sec. 1983, and claims under state law were barred by sovereign immunity for losses resulting from assault, battery, or false imprisonment, based on an exception to a statute waiving sovereign immunity for certain injuries caused by governmental employees. Davis v. Standifer, No. A05A1292, 621 S.E.2d 852 (Ga. App. 2005). [N/R]
     City was properly held liable, under Michigan state law, for police officer's alleged criminal sexual conduct towards three female motorists during separate traffic stops. Intermediate appeals court upholds judgment of $2.625 million against city on the basis of jury verdict awarding drivers $7.5 million, and allocating 35% of the fault to the city. Court rejects argument that the damages awarded were excessive. The lawsuit was brought under a state civil rights statute under a sexual harassment claim. Diamond v. Witherspoon, No. 252657, 696 N.W.2d 770 (Mich. App. 2005). [N/R]
     Liability insurance policy issued to city did not provide coverage for police officer and another city employee on claims that they allegedly sexually assaulted arrestees because their alleged conduct was outside the scope of their employment. Employers Mutual Casualty Company v. Mallard, No. 02-10786, 402 F.3d 1085 (11th Cir. 2005). [N/R]
     Sheriff did not act in a policy-making capacity for the county when he allegedly engaged in statutory rape of mentally handicapped female minor by using his police vehicle's lights and siren to pull over vehicle in which she was a passenger. County, therefore, could not be held liable, in federal civil rights lawsuit, for sheriff's actions. Wooten v. Logan, No. 02-5753, 92 Fed. Appx. 143 (6th Cir. 2004). [N/R]
     County sheriff could be held vicariously liable for on-duty sexual assault by deputy if the complainant shows that he was aided in committing the attack by his position as a law enforcement officer. Doe v. Forrest, Vt., #2002-184, 2004 VT 37, 2004 Vt. Lexis 103 (2004). [2004 LR Jul]
     Alabama sheriff had Eleventh Amendment immunity from federal civil rights lawsuit over alleged rape of burglary victim by deputy sheriff dispatched to assist her, as he acted, under state law, on behalf of the state, not the county. Sheriff also had absolute immunity from state law official capacity claims and discretionary function immunity from individual capacity claims for negligent hiring, supervision, or training of the deputy, under state law. McClure v. Houston County, Alabama, 306 F. Supp. 2d 1160 (M.D. Ala. 2003). [N/R]
     Woman's claim that she was raped by a military recruiter on U.S. government premises did not entitle her to pursue liability claims against the government under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b)(1) and 2680(h). Claims for alleged negligent hiring and supervision of alleged assailant were barred because they arose from alleged intentional misconduct, coming within an "intentional tort" exclusion from the FTCA's waiver of governmental immunity. Verran v. United States, 305 F. Supp. 2d 765 (E.D. Mich. 2004). [N/R]
     Officer acted in a personal capacity only and not within the scope of his employment when he allegedly embraced motorist who he stopped and arrested for driving under the influence of alcohol and later allegedly attempted to kiss her when she returned to retrieve her driver's license. Employer of officer, therefore, could not be held vicariously liable for his actions. Cockrell v. Pearl River Valley Water Supply District, No. 2002-CA-02090-SCT, 865 So. 2d 357 (Miss. 2004). [N/R]
     Federal appeals court reverses trial judge's grant of summary judgment to city in lawsuit brought by female motorist who claimed that police officer broke into her home and sexually assaulted her after obtaining her home address from her driver's license during traffic stop which might have been aimed solely at finding out where she lived. Court speculates that Illinois Supreme Court might find that the officer, because of his assertion of his official authority, acted within the scope of his employment, triggering a duty, on the part of the city, to indemnify the officer for any judgment against him. Doe v. City of Chicago, No. 03-2221, 2004 U.S. App. Lexis 3811 (7th Cir. 2004). [2004 LR Apr]
     County and sheriff were not liable, under either Ohio state law or federal civil rights law, for a deputy's sexual advances made towards a minor girl while off duty, even though he was in uniform and using a county-owned van to transport his daughter and her friends home from a movie. Deputy acted outside of the scope of his employment and did not act "under color" of law. Ramey v. Mudd, No. 02CA14, 798 N.E.2d 57 (Ohio App. 2003). [2004 LR Feb]
     Commissioner of public safety was not entitled to qualified immunity from liability for state trooper's alleged lewd and suggestive comments to female motorist while strip-searching her during a traffic stop. He was allegedly aware of trooper's propensities towards misconduct with female motorists, but backed down on a decision to fire him, returning him to duty on the highways instead. Clancy v. McCabe, #01-P-806, 790 N.E.2d 1126 (Mass. App. 2003). [2003 LR Sep]
     Police superintendent could be sued for liability for alleged sexual abuse of eighth grade female student by police officer assigned to school, based on alleged failure to properly select, train, evaluate and supervise the officer. Plaintiff was entitled to conduct discovery to see if the officer's record revealed a pattern of "aggressive behavior or sexual misconduct" sufficient to put the superintendent on notice that he was not an appropriate person to assign to the school. Perez v. Fajardo, 257 F. Supp. 2d 467 (D. Puerto Rico 2003). [N/R]
     While a release agreement signed by an alleged victim of sexual assault by a former city police officer was voluntarily entered into in exchange for a plea agreement on pending intoxicated driving charges, a federal trial court ruled that there were "relevant public interests" which barred enforcement of the release. The court noted the evidence supporting the sexual assault claim and ruled that enforcement of the release could adversely affect a public interest in deterring police misconduct. Oliver v. City of Berkley, 261 F. Supp. 2d 870 (E.D. Mich. 2003). [N/R]
     Allegedly coercing a woman facing cocaine charges into performing oral sex for money with another police officer as part of a sting operation to arrest the officer on soliciting for prostitution charges may have been a battery and violated the woman's due process rights. Federal appeals court holds, however, that officer who allegedly fraudulently threatened woman with 40 years sentence if she did not cooperate was entitled to qualified immunity, since it would not have been obvious to a reasonable officer that this violated her constitutional rights. Sting operation against officer did not violate his rights. Alexander v. Deangelo, #02-3124, 329 F.3d 912 (7th Cir. 2003). [2003 LR Aug]
     Federal appeals court upholds award of $1 in nominal damages and $7,428 in attorneys' fees against city which allegedly took no action and began no investigation of woman's complaints to police chief and mayor that a police officer with whom she had broken off an affair was harassing her and stalking her while on the job and in uniform. Attorneys' fee award, court states, should put police departments and cities "on notice" that they cannot simply ignore such complaints. Murray v. City of Onawa, Iowa, No. 02-2626, 323 F.3d 616 (8th Cir. 2003). [2003 LR Jul]
     Police commissioner should not be required to give a deposition in a lawsuit claiming that county police officers engaged in sexual abuse when he had no personal knowledge of the incident involved, and there were other, lower ranking officials who could provide evidence on the county's policies and procedures for addressing alleged sexual abuse by officers. Murray v. County of Suffolk, 212 F.R.D. 108 (E.D.N.Y. 2002). [N/R]
     Police chief was not entitled to qualified immunity on detainee's claim that officer falsely arrested him and then tried to sexually molest him. Complaint presented sufficient allegations that the city ignored a known or obvious risk that the officer was highly likely to engage in sexual misconduct and abuse of power and inadequately screened him. Romero v. City of Clanton, 220 F. Supp. 2d 1313 (M.D. Ala. 2002). [2003 LR Feb.]
     While city could not be held vicariously liable for police officer's alleged sexual abuse of juvenile participants in police department's Explorer program, it did have a duty to protect the youths against such abuse and there was a genuine issue of fact as to whether that duty had been breached. Doe v. City of Murrieta, No. E029190, 126 Cal. Rptr. 2d 213 (Cal. App. 2002). [2003 LR Jan]
     Sheriff could not be held liable for "acquiescing" in deputy's alleged "improper conduct" with female passenger in his vehicle when he never learned of it until after a lawsuit was filed; deputy who filed bankruptcy could not be sued for this conduct when plaintiff took no steps in court to object to the discharge of the claim or to seek an exception to the discharge. Moor v. Madison County Sheriff's Department, No. 00-6004, 30 Federal Appendix 417 (6th Cir. 2002). [2002 LR Jun]
     Female motorist arrested after vehicle accident stated a claim for sexual harassment against officer who allegedly sat in the back seat of the patrol car with her during the ride to the police station, engaging in "inappropriate" touching and sexual propositions; no reasonable officer could believe that the alleged conduct did not violate the arrestee's rights under the Fourth Amendment. Fontana v. Haskin, #99-56629, 262 F.3d 871 (9th Cir. 2001). [2002 LR Apr]
     337:7 Federal trial court rules that a California sheriff is a county official rather than state official and therefore could be sued in his official capacity for damages under 42 U.S.C. Sec. 1983 on claim that he had a policy or custom which encouraged deputies to "violate the civil rights of women"; lawsuit based on deputy's alleged rape of woman in her home, where he came to investigate domestic violence complaint, could proceed. Roe v. County of Lake, 107 F. Supp. 2d 1146 (N.D. Cal. 2000).
     328:62 $625,000 settlement in lawsuit claiming that Chicago police officer drove woman to his apartment after arresting her and then raped her. Doe v. City of Chicago, Circuit Court, Cook County, Ill, reported in The Chicago Tribune, Section 2, page 2 (Feb. 11, 2000).
     333:141 U.S. Supreme Court strikes down federal Violence Against Women Act (VAWA) as unconstitutional; some plaintiffs were attempting to use statute to assert claims arising out of alleged sexual assaults by law enforcement personnel. United States v. Morrison, #99-5, 120 S. Ct. 1740 (2000).
     328:62 Federal government was not liable for officer's alleged rape of female motorist when officer's actions were outside of the scope of his employment; federal appeals court rejects "apparent authority" as a basis for liability under the Federal Tort Claims Act. Primeaux v. U.S., No. 97-2691, 181 F.3d 876 (8th Cir. 1999).
     319:109 Officer who allegedly raped female motorist he followed home after stopping her for traffic offense liable for $100,000 in damages; officer acted "under color of law," constituting civil rights violation; city and police chief were not liable, absent any showing of an official policy or custom. Rogers v. City of Little Rock, #97-2286, 97-2556, 152 F.3d 790 (8th Cir. 1998).
     306:95 Update: U.S. Supreme Court denies review of federal appeals court's overturning of $452,000 award against town for officer's alleged sexual molestation of woman he stopped for speeding. Sewell v. Town of Lake Hamilton, 117 F.3d 488 (11th Cir. 1997), cert. denied, 118 S.Ct. 852 (1998).
     306:94 Police officer who sexually abused eleven-year-old school girl while off-duty did not act under color of state law and there could be no federal civil rights liability for him or police chief, despite fact that officer first met girl outside school where he provided security and served as a "good-will" ambassador for the department. Roe v. Humke, 128 F.3d 1213 (8th Cir. 1997).
     305:78 Woman's allegation that officer followed her home and came to her workplace, sexually fondling her and threatening to give her a speeding ticket, stated federal civil rights claim. Haberthur v. City of Raymore, Missouri, 119 F.3d 720 (8th Cir. 1997).
     304:62 Federal appeals court overturns $452,000 award against town for officer's alleged sexual molestation of woman he stopped for speeding and took to police station, threatening to "ruin her life" with drug charge unless she undressed and lay naked on the floor; alleged failure to train and supervise was not cause of incident, court rules, since officer should have obviously known, without any training or supervision, that this was wrong. Sewell v. Town of Lake Hamilton, 117 F.3d 488 (11th Cir. 1997).
     302:24 Town not liable for police officer's sexual molestation of 13-year-old girl at police station when it had no reason to know that he would molest a child and no policy of deliberate indifference to such conduct; officer's alleged prior adulterous conduct with a fellow officer's girlfriend did not alter result; officer, convicted of child molestation, liable for $600,000. West v. Waymire, 114 F.3d 646 (7th Cir. 1997).
     293:74 Florida federal court declines to dismiss lawsuit against sheriff for negligent retention and supervision of deputy who allegedly threatened to take female motorist to jail unless she had sex with him, and then sexually battered her; suit claimed that deputy made similar propositions to other female motorists but that sheriff failed to investigate Battista v. Cannon, 934 F.Supp. 400 (M.D. Fla 1996).
     296:120 Update: Federal appeals court upholds $1 million award to woman raped by on-duty police officer, and trial court ruling that there was no basis for liability by county; decision by police chief to return same officer to duty, ten years previously, after earlier accusation of rape, was insufficient basis to impose liability on county for later incident Jones v. Wellham, 104 F.3d 620 (4th Cir. 1997).
     296:126 Officer did not act "under color of state law" or violate woman's constitutional rights by breaking into her apartment and allegedly raping her; officer had earlier gained admission to apartment under pretense of discussing police business, but had exited and woman had closed door before he broke back in again Almand v. DeKalb County, 103 F.3d 1510 (11th Cir. 1997).
     297:141 Deputy acted "under color of state law" when he allegedly sexually assaulted female motorist after stopping her for traffic violations; sheriff could be liable on basis of allegations of inadequate training, retention, and supervision Johnson v. Cannon, 947 F.Supp. 1567 (M.D. Fla 1996).
     283:110 Federal appeals court upholds $2 million judgment against county sheriff for alleged rape of woman suspected of shooting her husband following domestic dispute; county, however, was entitled to new trial on claims against it, since trial judge deprived it of the right to a jury trial by commencing bench trial within minutes of reinstating county as a defendant in federal civil rights lawsuit Bennett v. Pippin, 75 F.3d 578 (5th Cir. 1996).
     268:62 City to pay $45 million to settle claim based on officer's alleged sexual battery of 13-year-old girl while searching her home for weapons; trial court award included $61 million in compensatory damages, as well as $31 million in punitive damages against exofficer Doe v. Tanabe, 28 (19). Bus Insurance 4, LA Co (Cal Super Ct 1994).
     275:166 California appeals court rules that city did not have a duty, under state law, to provide legal defense for officer accused by informant of committing sexual battery on her at his residence while on vacation; alleged sexual acts did not occur within the scope of officer's employment San Diego Police Officers Ass'n v. City of San Diego, 29 Cal.App.4th 1736, 35 Cal.Rptr.2d 253 (1994).
     Jury awards $785,000, including $450,000 in punitive damages, to two men harassed (and one sexually molested). by officer who stopped them for traffic violations Doe v. Village of Darien, U.S. Dist. Ct. Wis, Chicago Daily Law Bulletin, p. 3 (July 25, 1994).
     273:139 Claim that village knew that officer had previously allegedly attempted to solicit sexual favors in exchange for dropping traffic citations yet took no remedial action was sufficient to state federal civil rights claim against village Carney v. White, 843 F.Supp. 462 (E.D. Wis 1994).
     Rhode Island Supreme Court overturns $250,000 punitive damages award to woman sexually assaulted by police officer, but also holds that trial judge erred in awarding only $1 in compensatory damages because of lack of evidence of monetary loss or medical expenses Trainor v. Town of North Kingstown, 625 A.2d 1349 (RI 1993).
     City liable for $200,000 for officer's sexual assault and false arrest of female auto passenger; city had knowledge of officer's propensity for violence and failed to take preventative action Parrish v. Luckie, 963 F.2d 201 (8th Cir. 1992).
     California Supreme Court holds city liable for $150,000 to woman who was raped by on-duty police officer who had detained her; officer was acting within the scope of his employment at the time and city was vicariously liable Mary M v. City of Los Angeles, 285 Cal.Rptr. 99, 814 P.2d 1341 (Cal 1991).
     City was not liable for officer's rape of woman during on duty hours; rape was not within scope of employment or foreseeable. Mary Anna M. v. City of Los Angeles, 246 Cal.Rptr. 487 (Cal.App. 1988).
     Man who filed 26 previous lawsuits allowed to proceed with suit claiming he was given traffic citation when he refused officer's demand that he suck his penis Young v. Kunde, 698 F.Supp. 163 (E.D. Wis 1988).
     City liable for officer's sexual assault of arrestee because of custom of failing to investigate or act on complain of police sexual misconduct Harris v. City of Pagedale, 821 F.2d 499 (8th Cir. 1987).
     City not liable for on-duty officer's sexual assault, despite prior incidents Wedgeworth v. Harris, 592 F.Supp. 155 (WD Wis 1984).