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