The Ninth Circuit has handed down a major ruling that a firefighter can sue detectives who accused him falsely of creating two child-pornography websites. The Ninth Circuit panel ruled in an opinion written by Judge Richard Paez that Washington State Police officers Rachel Gardner and John Sager had shown a “reckless disregard for the truth” when they arrested Spokane firefighter Todd Chism in 2008.
There was no child porn found at the time on Chism’s computer. Yet, they searched his house and office and detained Chism based on an affidavit found by the court to be composed of manufactured evidence. The ruling reversed the decision of U.S. District Judge Lonny Suko, who found the detectives had qualified immunity despite the lack of evidence.
The initial suspicion was based on tips to Washington’s Missing and Exploited Children Task Force (MECTF). The panel noted:
We first observe that Gardner’s affidavit contained several false statements and omissions. The first false statement contained in Gardner’s affidavit was her assertion that, “[b]ased on the information received from NCMEC about the images downloaded by Todd M. Chism, it is likely to believe he was using internet service at his residence and/or his business office.” Gardner’s allusion to “images downloaded by Todd M. Chism” is inaccurate. When Gardner drafted the affidavit, she possessed no information that Todd had ever accessed any child pornographic images, let alone the particular images that were uploaded to the qem and foel websites. Nor did Gardner have any evidence that the images were ever downloaded by anyone. As far as Gardner knew, the only evidence linking Todd to the websites was the fact that the credit card he shared with Nicole was used to pay the hosting fees for the sites. Thus, Gardner’s assertion that Todd downloaded images of child pornography was not a truthful representation of the evidence she had gathered.
The second false statement contained in Gardner’s affidavit was her assertion that the Chisms’ credit card was “used to purchase the images of child pornography from the website.” This statement was false because the Chisms’ credit card was not used to buy images of child pornography. Rather, the Chisms’ card was used to pay hosting fees for the sites to which illegal images were uploaded at some unknown time, date, and location. Gardner’s statement that the Chisms’ card purchased child pornographic images was therefore patently false.
Gardner’s affidavit also contained several serious omissions. First, Gardner omitted her discovery that the IP addresses that were used to open the offending Yahoo! user accounts and websites were traced to people other than the Chisms. Second, Gardner omitted the fact that a third IP address—69.147.83.18—was used to log in to both the first and second user accounts on June 18, 2007, and that this IP address was never traced. Third, Gardner omitted the fact that Nicole shared the 6907 credit card account with Todd, even though Nicole’s name—not Todd’s—was associated with the two user accounts. Fourth, Gardner did not report that the user accounts contained nonsensical identifying information.
The panel found evidence that the detectives knowingly entered misleading or false information to make up for the lack of evidence: “When Gardner drafted the affidavit, she possessed no information that Todd had ever accessed any child pornographic images, let alone the particular images that were uploaded to the … websites . . . Nor did Gardner have any evidence that the images were ever downloaded by anyone. As far as Gardner knew, the only evidence linking Todd to the websites was the fact that the credit card he shared with Nicole was used to pay the hosting fees for the sites. Thus, Gardner’s assertion that Todd downloaded images of child pornography was not a truthful representation of the evidence she had gathered.”
Judge Ikuta dissented and insisted that the link to the credit card was enough and the other false or misleading information should not bar the use of immunity:
In All the President’s Men, Deep Throat famously advised two investigative journalists that in order to find the truth, they had to “follow the money.” In United States v. Gourde, we endorsed this maxim, holding that payment of subscription fees to a site on which child pornography is available was sufficient to support probable cause for a search warrant. 440 F.3d 1065, 1071 (9th Cir. 2006) (en banc). Despite the fact that this case involved a direct connection between the Chisms’ credit card and two websites populated with child pornography, the majority holds that the evidence was insufficient to support probable cause, and therefore the district court erred in granting summary judgment to the police on the basis of qualified immunity. In doing so, the majority tram- ples on controlling precedent and defies common sense. I respectfully dissent.
Here is the entire opinion: 10-35085
Source: Courthouse News
Jonathan Turley
I should point out that the extreme example of bad prosecution that this case reminded me of was this:
http://www.law.northwestern.edu/wrongfulconvictions/exonerations/ilCruzSummary.html
A hispanic gang member was accused of and wrongly prosecuted and convicted of the kidnapping, rape and murder of a little white girl. During the investigation, the actual murder confessed to the crime, while he was being prosecuted for a very similar rape/murder, but the prosecutors stuck to their fabricated case against Mr. Cruz. Two successive politician/prosecutors held the office of county State’s Attorney and pursued this prosecution. Several police officers and lower-ranking prosecutors were actually criminally charged with the conspiracy, but were acquitted.
(Two interesting side notes: Mr. Cruz’ death sentence was appealed to the Illinois Supreme Court, which upheld the sentence – in fact the majority opinion in the case cited “overwhelming physical evidence” supporting the conviction and sentence, when even the prosecutors had to admit that there was essentially no physical evidence linking Mr. Cruz to the murder. Also, the names of the two politician/prosecutors who led the case against Mr. Cruz, Joe Burkett and Jim Ryan, are missing from the Wikipedia articles on the case…)
JeffD
1, August 31, 2011 at 10:12 am
….
quote:
The panel found evidence that the detectives knowingly entered misleading or false information to make up for the lack of evidence.
———————————
I’m sorry to be so cynical, but I wouldn’t be surprised to find that this is all too common. In this case it was an accusation against someone who would have a degree of privilege in the perception of most judges (a firefighter) and the charges were based on a fairly uncommon and extreme type of crime. When it’s a previously convicted gang member, how much freedom to typical prosecutors/police feel they have in “interpreting” what little evidence they may have in an investigation? How many judges (themselves often former prosecutors and in some cases former police officers) knowingly turn a blind eye to such fallacies?
Frankly – glad to play my small part!
Should the allegations be true, the officers involved should not only be sued by the plaintiff, but they should have to reimburse the taxpayers for the expenses incurred by the investigation. Furthermore they should be fired and barred from any future private or public law enforcement jobs. Lastly they should face criminal charges as well. All because of this:
quote:
The panel found evidence that the detectives knowingly entered misleading or false information to make up for the lack of evidence.
There’s an all too easy troll joke in that comment, Frankly. 😉
Harry – sadly, no.
Tom – this is one of the reasons the courts are so important and placing extraneous limits on either access to, or awards from, so damaging. Some times the only recourse is the court and the only corrective is a punishment fitting the scale or damage of the offense. the treatment of individuals at the hands of corporations, the government and really any well heeled individual will be much worse if we restrict access or awards artificially.
Now if only there were a Richard posting here I could respond to every Tom, Dick or Harry 😀
Could somebody please explain what J. Brian Harris, Ph.D., P.E., said?
“We conclude that the Chisms have made a substantial showing of the officers’ deliberate falsehood or reckless disregard for the truth and have established that, but for the dishonesty, the searches and arrest would not have occurred,” Judge Richard Paez wrote for the majority.
Wait? The victims of the false accusation had to, themselves, pursue this case? The government wasn’t trying to clean up its own house here? I guess I shouldn’t be surprised…
Who watches the watchmen? Evidently, it’s the individual citizens.
(Also, in the ruling, a judge mentions something to the effect that logged IP addresses weren’t linked to the accused. Judges really need to wake up and learn that IP addresses on server logs don’t have clear one-to-one relationships with individuals or even physical locations! In this case the judge seems to think that the IP address in a sense “clears” the accused, but it’s garbage-in-garbage-out either way.
http://arstechnica.com/tech-policy/news/2011/08/why-ip-addresses-cant-always-find-file-swappers.ars
)
Within the field of human folly sometimes named “Information Theory” there may be useful information yet to be fully grasped and understood by the legal establishment.
For a goodly number of years, I was a member of the Institute of Electrical and Electronics Engineers’ Information Theory Society IEEE-ITS). While I remain an IEEE member, my current income led me to drop my ITS membership.
Nonetheless, I reckon that I have some remaining useful grasp of information and information theory. Consider the following aspect of my understanding of information theory.
As I understand communication, it includes symbolic transmission and reception of information. As I understand communication theory, any communication symbol may convey any amount of meaning and any meaning may be conveyed by any number of communication symbols.
Thus, it is possible, in principle and in fact, using communication theory methodologies, to map the text of this Turley Blawg thread onto any whimsically chosen example of plausibly illegal child pornography.
There is thus no way to prove that this thread does not itself contain, in symbolic form, a specific instance of illegal child pornography.
In my younger days, I took a college class in “American Government,” in which I came upon the notion that an intent of “the founding fathers (and mothers?)” was to replace the rule of man (then the King of England?) with the rule of law.
I have a hunch that the rule of law, in the United States of America, worked rather well for a while. Only, things kept happening, deemed undesirable, for which no relevant law existed, and so a law was added to the rule of law.
Somewhat in the manner of eating cooked frog’s legs (capture a frog and some of the water around the frog, so the frog does not notice an alarming temperature change, and heat the water slowly enough that the frog is never alarmed, and the frog goes to sleep and then its legs go down one’s gullet), adding one law at a time never activates any human alarms: what possible harm can one more law do, anyway?
When, however, there are so many laws that demand obedience and there is no one who knows how many laws there are, the rule of law is necessarily replaced by the rule of man (or woman?), because only the lawyers and judges have entitled themselves to determine what the law was when something happened, and no one can actually predict what the law will turn out to be regarding anything anyone does. Robert Benson, in “The Interpretation Game, How Lawyers and Judges Make the Law” is a decent account, for me, from an information theory viewpoint.
It is one thing to employ an analytical-reductionist method to deal with isolated incidents and quite another to have a system which the police officers in question on this thread could actually have understood sufficiently well as to have been able to avoid sincerely confabulating purported (id est, false) evidence in a sincere effort to catch a perp who, alas and only after the fact, has evidently been shown to not have perpetrated the crime in question.
Two movies come to my mind. My Cousin Vinny. The Star Chamber.
This decision helps make the case law what it should be.
Thank You one and all….
AY,
No problemo!
The 9th Circuit made the right decision and took a stand against the infallibility of police in the courts.
AY, what AN said. Some folks just like to nitpick and find fault. Makes me think of the Biblical metaphor about motes and logs.
AY, The point being… those who know you wouldn’t give it a passing thought… No big deal…
Initially, the blog posting identified the state as Texas, so it was an easy mistake to make, IMHO… I thought that it took place in Texas, too, until SM pointed it out… Only a jerk would make an issue out of it…
YW AN,
I got raked over the coals fairly well yesterday when I did not read the associated articles banner page. I ass=u+me(d), and it came true, that the cover thread was speaking about El Paso, TX. That mistake will not happen for awhile, I can assure you.
“The initial suspicion was based on tips to Washington’s Missing and Exploited Children Task Force (MECTF). ” -Jonathan Turley
This is the crux of it, IMO:
We have the “Suspicious Activity Reports” (SARs); Operation TIPS (or some twist of TIPS — some say that it’s in play) and our lovely “See Something, Say Something” programs…
(AY, Thanks for that snippet…)
Carol,
Could you please elaborate?
“the majority holds that the evidence was insufficient to support probable cause, and therefore the district court erred in granting summary judgment to the police on the basis of qualified immunity. In doing so, the majority tram- ples on controlling precedent and defies common sense. I respectfully dissent.”
Seems to me it is common sense that if it was insufficient to support probable cause that is sensible, and common enough to be understood.
Great Opinion:
“We conclude that the Chisms have made a substantial showing of the officers’ deliberate falsehood or reckless disregard for the truth and have established that, but for the dishonesty, the searches and arrest would not have occurred,” Judge Richard Paez wrote for the majority. “We also conclude that the officers are not entitled to qualified immunity because the Chisms’ right to not be searched and arrested as a result of judicial deception was clearly established at the time Gardner prepared and submitted her affidavit.”
Is the decision that the majority found that you cannot include fabricated allegations, but the minority said that the fabricated allegations are irrelevant if the true allegations are sufficient?