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  • WisBar News
    March 14, 2016

    Police, County have Immunity from Alleged Negligence in Sex Assault Case

    Joe Forward

    March 14, 2016 – A police department and a county facing allegations that they were negligent in a sexual assault inves​tigation, allowing a perpetrator to continue the assaults, has immunity from the negligence lawsuit, a ​state appeals court has ruled.

    Defendants, including the City of Berlin Police Department and Green Lake County, lost their “governmental immunity” argument in circuit court, which ruled that a “known danger” exception applied to block police from asserting governmental immunity.

    But in Recore v. County of Green Lake, 2015AP1301 (March 2, 2016), a three-judge panel for the District II Court of Appeals reversed the circuit court, concluding investigators were immune because the child abuse investigation involved “discretionary acts” that are immune, and the “known danger” exception did not apply.

    In 2011, the principal at an elementary school in Berlin notified police that a first-grader had made inappropriate sexual advances toward another student. The boy, D.B., told police that his Uncle Rob taught him about “humping” and showed him nude photos.

    Police notified social services, which “screened the allegations” within 24 hours as required under state law. They learned that the boy’s uncle showed him “pictures of adults humping,” and also learned the uncle may have touched the boy’s private areas.

    The county referred the case to law enforcement because the uncle was not a “caregiver.” Police interviewed the boy again. He said his uncle showed him pictures of people engaging in sex and punched D.B.’s genitals over his clothing when angry.

    D.B’s mother said she wasn’t aware of any abuse, but the uncle, her half-brother, had previously babysat for D.B. Police interrogated the uncle, who said the boy saw his parents having sex, and he never showed him nude photos or touched him.

    Ultimately, the investigating officer told D.B.’s mother that the case would not be referred for criminal charges. The district attorney agreed that no charges should issue.

    Two years later, D.B. began displaying more behavioral problems. An investigation revealed that D.B. had been sexually assaulted by his uncle for a number of years. Charged with sexual assault of a child, the uncle pleaded no contest.

    D.B.’s mother, on his behalf, sued the county and the police department, alleging negligence in the 2011 investigation of sexual assault against D.B.

    Immunity Applies

    Alleging negligence, D.B.’s mother argued that the uncle was a “known danger” and police had a duty to warn D.B’s parents that the uncle posed a threat to D.B. But the appeals court ruled that police used their discretion, and discretion is immune.

    “D.B.’s objection is to the scope of the investigation, inferring that the police should have somehow deduced or learned through additional investigation that Uncle Rob was in fact assaulting D.B.,” Appeals Court Judge Paul Reilly wrote.

    “The ‘how’ and ‘scope’ of the investigation performed by the Police Department is a discretionary act rather than a ministerial duty,”

    The panel also ruled that the “known danger” exception did not apply. Police interviewed D.B., his mother, and the uncle. None of the facts presented to police demonstrated a “compelling danger” that D.B. was being abused, the panel ruled.

    D.B. also argued that the county was negligent because social services defined the uncle as a “noncaregiver,” which did not require the county to investigate.

    “The scope and breadth of the County’s investigation of the reported abuse falls within their discretion rather than being a ministerial act,” Judge Reilly wrote.

    “The scope of the investigation by the County, including whether Uncle Rob was a ‘caregiver,’ is a determination that is not ‘absolute, certain and imperative, involving merely the performance of a specific task.'”

    Even if the uncle should have been considered a “primary caregiver” since he was a relative and babysat, the county still used discretion in making that determination, and discretionary acts are immune from a negligence lawsuit, the panel concluded.

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