Cops May Be Liable for Trumped-Up Charges

By TIM HULL
Courthouse News Service
Aug. 30, 2011

(CN) - A firefighter can sue the detectives who falsely accused him of creating two child-pornography websites, the 9th Circuit ruled, finding that the investigators had manufactured probable cause in the absence of real evidence.

The federal appeals court in Seattle found 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. The detectives never found any child pornography on Chism's computer and could not charge him, but they searched his house and office and detained him briefly based on a trumped-up affidavit, according to the court.

Chism and his wife, Nicole, sued Gardner and Sager in Washington's Eastern District for violating their Fourth Amendment rights through judicial deception. U.S. District Judge Lonny Suko found that the investigators had qualified immunity from the suit and granted them summary judgment.

The 9th Circuit voted 2-1 on Thursday for reversal.

"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."

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