Appendix — Myers v. Morris
Supreme Court brief1987
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SSpreinie VOUTT, U.S,
FILED
YUN 11 1987
No. RG-9N} 5 |
JOSEPH F. SPANIOL, JR.
K
IN THE
Supreme Court of the United States
October Term, 1986
GREG MYERS, etc., et al.,
ee |
a Petitioners,
R. KATHLEEN-MORRIS, etc.,
Respondent,
and
DONALD BUCHAN, etc., et al.,
“i Petitioners,
R. KATHLEEN MORRIS, etc.,
Respondent,
and
DANIEL J. MEGER, etc., et al.,
- Petitioners,
R. KATHLEEN MORRIS, etc.,
: Respondent,
and
CHARLES LALLAK, etc., et al.,
ne Petitioners,
R. KATHLEEN MORRIS, etc.,
Respondent.
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Eighth Circuit
JOINT APPENDIX
HANLEY, HERGOTT & HUNZIKER KURZMAN, GRANT, MANAHAN,
Thomas J. Hunziker BLUTH AND BARKER
701 Fourth Ave. S., Suite 1400 Marc G. Kurzman
Minneapolis, Minnesota 55415 Counsel of Record
(612) 338-6990 Carol Grant
Attorneys for Petitioners 2404 Stevens Avenue South
Charles and Carol Lallak Minneapolis, Minnesota 55404
(612) 871-9004
Counsel for Petitioners
Greg Myers and Donald Buchan
and
DUNKLEY AND BENNETT, P.A.
Michael D. Madigan
701 Fourth Ave. S., Suite 1400
Minneapolis, Minnesota 55415
(612) 339-1290
Attorneys for Petitioners
Jeffrey and Jennifer Lallak
ANTHONY L. NOTERMAN, ESQ.
P.O. Box 158
Shakopee, Minnesota 55379
(612) 445-3844 and
MURPHY, BLANCHAR & ELLIOTT
Patrick H. Elliott
7407 Wayzata Boulevard
Minneapolis, MN 55426-1675
(612) 546-4472
Attorney for Petitioners Meger
1987/EXECUT EAMILAW LINES DIV., 93 W Lille Canada Rd., St. Paul, MN 55117 / (612) 483-8793/800-326-6322 1
ALL THE PETITIONERS IN THE
MYERS, ET AL V. MORRIS, ET AL CASE
Greg Myers and Jane Myers, individually and as parents and
natural guardians of Andy Myers, Amy Myers, and Brian
Myers, minors.
REESE
ALL RESPONDENTS IN THE MYERS,
ET AL VY. MORRIS, ET AL CASE
Scott County and R. Kathleen Morris, Scott County Attorney;
Scott County Human Services and Peg Subby, its Director of
Human Services; Thomas Price, and Phipps-Yonas Price, P.A.;
Paul Thomsen, Guardian Ad Litem; Doris Wilker, Social
Worker; and other employees of Scott County Human Services
whose names and titles are unknown; and Douglas Tietz, Scott
County Sheriff; Deputy Sheriffs Norm Pint, Patrick Morgan
and Michael Busch and City County of Jordan Minnesota, and
Alvin Erickson, Jordan Chief of Police.
ALL THE PETITIONERS IN THE
BUCHAN, ET AL V. MORRIS ET AL CASE
Donald Buchan and Cindy Buchan, individually and as parents
and natural guardians of Courtney B. Buchan, Melissa Ellen
Buchan and William Donald Buchan, minors.
xe Oe
ALL THE RESPONDENTS IN THE
BUCHAN, ET AL V. MORRIS, ET AL CASE ~—
Scott County, R. Kathleen Morris, Scott County Attorney;
Scott County Human Services, Peg Subby, its Director of
Human Services; Thomas Price, Phipps, Yonas and Price,
P.A., Michael Shea, Shea and Associates,
A-2
Diane Johnson, Guardian ad litem, John Manahan, Guardina
ad litem,
Doris Wilker, Social Worker; Mary Tafs, Social Worker; Judy
Dean, Social Worker; Susan DeVries, Psychologist; other
employees of Scott County whose names and titles are
unknown; Douglas Tietz, Sheriff of Scott County.
ALL THE PETITIONERS IN THE
LALLACK, ET AL V. MORRIS, ET AL CASE
Charles Lallack and Carol Lallack, husband and wife; and
Jeffrey Lallack and Jennifer Lallack, minors, by Charles
Lallack and Carol Lallack, their parents and natural guardians.
ae eee
ALL THE RESPONDENTS IN THE
LALLACK, ET AL V. MORRIS, ET AL CASE
Scott County; Scott County Board of Commissioners; Scott
County Attorney’s Office; R. Kathleen Morris, Scott County
Attorney; Scott County Sheriff’s Department; Douglas Tietz,
Scott County Sheriff; Michael M. Busch, Scott County Deputy
Sheriff; Patrick Morgan, Scott County Deputy Sheriff; David
Einertson, Scott County Deputy Sheriff; Norm Pint, Scott
County Deputy Sheriff; Other employees of Scott County
Sheriff’s Department whose names and titles are unknown;
Scott County Human Services Department; Rachel Paff, Social
Worker with Scott County Human Services Department; Other
employees of Scott County Human Services Department whose
names and titles are unknown;
Larry Norring, Officer with Jordan Police Department,
Thomas L. Price, and Phipps-Yonas & Price, P.A.
A-3
ALL THE PETITIONERS IN THE
MEGER, ET AL V. MORRIS, ET AL CASE
Daniel J. Meger and Wanda Lou Meger, individually and as
parents and natural guardians of Brian Meger and Chad Meger,
minors,
222445
ALL THE RESPONDENTS IN THE
MEGER, ET AL. V. MORRIS, ET AL CASE
Scott County, a Political Subdivision of the State of Minnesota;
R. Kathleen Morris, individually and in her official capacity as
attorney for Scott County; Scott County Board of Commis-
sioners; Scott County Welfare Department and Margaret Sub-
by, it’s Director of Human Services; Scott County Sheriff’s
Department and it’s Deputies, Patrick Morgan and Michael
Busch; Doris Wilker, Social Worker, Scott County Welfare
Department; Joel Kaufmann, psychologist, Scott County
Welfare Department; Jane McNaught, and Center for Child
and Family Therapy; B. A. Bershow, M.D., and Burnsville
Family Physicians, P.A.; John Doe and Mary Doe and other
employees of Scott County whose names and titles are
unknown,
B-1
IN THE
United States Bistrict Court
DISTRICT OF MINNESOTA
FOURTH DIVISION
GREG MYERS and JANE MYERS,
individually and as parents and
natural guardians of Andy Myers,
Amy Myers and Brian Myers, minors,
Plaintiffs, Civil No. 4-84-1066
vs. FIRST AMENDED COMPLAINT
SCOTT COUNTY and R. KATHLEEN
MORRIS, SCOTT COUNTY ATTORNEY,
SCOTT COUNTY HUMAN SERVICES,
and PEG SUBBY, ITS DIRECTOR OF
HUMAN SERVICES, THOMAS PRICE,
and PHIPPS-YONAS & PRICE, P.A.,
PAUL THOMSEN, GUARDIAN AD LITEM,
DORIS WILKER, SOCIAL WORKER, AND
OTHER EMPLOYEES OF SCOTT COUNTY
HUMAN SERVICES WHOSE NAMES AND
TITLES ARE UNKNOWN, AND DOUGLAS
TIETZ, SCOTT COUNTY SHERIFF,
Defendants.
Plaintiffs, for their Complaint herein, allege:
JURISDICTIONAL STATEMENT
(1) This action arises under, and jurisdiction is based upon
U.S. Code Title 42, Section 1983 and Section 1988. The plain-
tiffs are persons within the jurisdiction of the United States who
B-2
have been depnived of their rights, privileges, and immunities
secured under the laws and Constitution of the United States.
The defendanits having injured the plaintiffs causing them
damages in exicess of Ten Thousand Dollars ($10, 000.00), ex-
clusive of interest and costs.
GENERAL ALLEGATIONS
(2) Plaintiffs Greg and Jane Myers are residents of Jordan,
Scott County, Minnesota. Plaintiffs are husband and wife, mar-
ried on 4/28/78. They have three minor children, Andy, born
6/16/72, age 14; Amy, born 4/8/79, age 5; and Brian, born
4/25/82, age 2.
(3) Defendant R. Kathleen Morris is the County Attorney and
chief legal officer and agent of Scott County.
(4) Defendant Douglas Tietz is the County Sheriff and agent
of Scott County. Defendant Sheriff Tietz failed to properly
supervise deputy sheriffs and negligently allowed them to act at
the direction of the County Attorney, defendant Morris, who
was acting as an investigator and initiator of charges against
Plaintiffs Greg and Jane Myers. Defendant Sheriff Tietz was
grossly negligent in failing to properly supervise deputy sheriffs
and allowing them to work at the direction of defendant Morris
in depriving the plaintiffs and their minor children herein of
their statutory and constitutional rights.
(5) Defendant Doris Wilker is a social worker employed by
Scott County Human Services. In addition to the other actions
alleged below she acted as the primary questioner and inter-
rogator of the minor plaintiffs and in this capacity subjected
them to emotional trauma and psychological abuse as a result of
coercive and cruel questioning techniques and also as a result of
her failure to attempt to corroborate statements by the Myers’
children which exculpated their parents.
(6) Defendant Paul Thomsen is the court appointed guardian
ad litem for the Myers’ children. Defendant Thomsen in addi-
tion to the other acts alleged herein, also engaged in a pattern of
activity which was coercive and abusive to the minors placed
under his direction by the Court in violation of his legal duties,
in that he also interrogated the Myers’ children in an attempt to
B-3
elicit additional accusatory reponses from them as well as per-
mitting defendant Morris and defendant Wilker to question and
interrogate the children under circumstances where it was ap-
parent that their emotional and psychological well-being was
threatened. Defendant Thomsen permitted and participated in
the isolation and confinement of the Myers’ children in an at-
tempt to coerce them into making responses which would be
favorable for the State’s case against their parents.
(7) Defendant Thomas Price practices in an association
known as Phipps-Yonas & Price. In addition to the other ac-
tions alleged herein, defendant Price served defendant R.
Kathleen Morris by providing her with psychological evalua-
tions of the Myers’ children. In addition to providing these
evaluations, defendant Price interrogated the Myers’ children
and manipulated them psychologically and transmitted the con-
firmation of allegations to defendant R. Kathleen Morris in
negligent disregard of the truth of those confirmations. Further-
more, defendant Price held himself out as a ‘‘psychotherapist’’
but was really practicing psychology, which requires a licence,
when in fact Mr. Price held no licensure or certification by the
State, a misdemeanor within the ambit of M.S.A. § 148.97.
(8.1) On or about February 6, 1984, the defendants Scott
County, Scott County Welfare Department, Peg Subby, and R.
Kathleen Morris caused, through their agents and under color
of law, the forcible removal of the plaintiffs’ three minor
children from the plaintiffs’ home.
(8.2) Defendants conspired to deprive the minor children
herein of their rights under M.S.A § 13.40, subd. 2, the so-
called ‘‘Tennessen warning,’’ which is binding upon all social
workers but not police.
(8.31) Defendants conspired to violate M.S.A. § 626.556,
specifically including but not limited to subd. 10.
(8.32) Defendants conspired to violate M.S.A. § 260.165.
(8.4) Defendants conspired to violate Minnesota Department
of Public Welfare Regulations set forth in 12 M.C.A.R. § 2.207,
insofar as there was no attempt to place the children voluntarily
or seek alternatives to ensure the safety of the children, there
was no attempt to contact the family, nor were other legally
necessary prerequisite steps taken prior to petitioning a court
B-4
for authorization to intervene.
(9) Defendant Morris then filed a criminal complaint against
plaintiff Greg Myers in Scott County District Court, alleging
numerous instances and counts of sexual abuse committed by
Greg Myers upon his own children and upon other minor
children.
(10) The defendants deliberately refused to disclose the loca-
tion of the three children to plaintiff Greg Myers.
(11) Jane Myers appeared in Scott County Family Court for
the purpose of re-establishing contact between her husband and
his three children.
(12) After this appearance by her, defendants deprived Jane
Myers of contact with or knowledge about her children.
(13) Also after this Court appearance by plaintiff Jane Myers,
defendant Morris filed a criminal Complaint against her in Scott
County District Court also alleging numerous instances and
counts of sexual abuse committed by her upon her own children
as well as other minor children.
(14) Defendant R. Kathleen Morris has, in the prosecution of
criminal charges against the plaintiff, violated the laws and
Constitution of the United States, the State of Minnesota and
the Canons of Ethics governing the practice of law in her pro-
secution of the plaintiffs.
(15) Specifically, R. Kathleen Morris has:
(15.1) Destroyed material evidence in the form of audio and
video tapes of interviews with alleged child victims, rather than
disclose this potentially exculpatory material to defense counsel;
(15.2) Hid, covered up and withheld exculpatory evidence
gathered at the State’s direction by police and investigatory per-
sonnel;
(15.3) Threatened child witnesses who were potentially State’s
witnesses with jail, other punitive incarceration, and with
threats that they would not see their parents again unless those
witnesses gave testimony incriminating the accused adults;
and
(15.4) Interrogated child witnesses using severely coercive
methods which resulted in psychological disorders and traumas
to these witnesses;
(15.5) Intimidated and accused child witnesses of lying if they
B-5
did not deliver incriminating testimony and lied to child
witnesses by telling them that their siblings had already made in-
criminating staements about their parents;
(15.6) Encouraged child witnesses through role playing to col-
lectively vent accusations;
(15.7) Offered bribes, in an effort to obtain prosecution
witnesses;
(15.8) Suborned perjury of major prosecution witness in ex-
change for plea bargaining concessions;
(15.9) Entered into an illegal plea bargain which was con-
tingent upon an after the fact evaluation of the usefulness of the
convict’s testimony to the prosecution;
(15.10) Misrepresented the nature of the plea bargain entered
into with convicted child molester, James Rud to victims of his
acts;
(15.11) Misrepresented the interrogation of child witnesses by
a social worker as interrogation by a psychotherapist when in
fact that person was unlicenced as a psychotherapist; and
(15.12) Represented to the trial court and defense counsel that
Family Court appointees, foster parents, guardians ad litem,
and social workers were not engaged in collecting information
for the prosecution.
(16) These actions by defendant R. Kathleen Morris alleged in
this Complaint she took while acting in her capacity and office
as an elected official and agent for Scott County. These actions
went beyond her official capacity as prosecutor insofar as she
acted as an investigator.
(17) All of the actions alleged herein represent the official
deliberate policy or custom of the office of Scott County At-
torney and the Scott County Board.
(18) The aforesaid arrests, confinement, separation of the
family and interference with the family relation were made
under color of the statutes, ordinances, regulations, customs
and usages of the State of Minnesota and deprived plaintiffs of
their rights, privileges and immunities under the United States
Constitution and laws, specifically including but not limited to
United States Constitution Article XIV, Section 1, in that plain-
tiffs have been deprived of their liberty without due process of
law; United States Constitution Article IV, in that plaintiffs
B-6
have been denied their right to be secure in their persons and
home and from having their persons seized without warrant
issued upon probable cause, supported by oath or affirmation;
and United States Code, Title 42, Section 1983, in that plaintiffs
have been deprived of their rights, privileges and immunities
secured by the United States Constitution and laws by defen-
dants acting upon color of Minnesota statutes, ordinances,
regulations, customs and usage, and the freedom of religion
guaranteed plaintiffs under the First Amendment to the United
States Constitution.
(19) The aforesaid actions by defendants were acts in fur-
therance of a conspiracy. Defendants and specifically R.
Kathleen Morris and her office were engaged in a publicly cam-
paign against child abuse and incest. Part of this campaign in-
volved the invention by defendant Morris and others of a ‘‘sex
ring’’ in Jordan, Minnesota. Defendants attempted to legitimize
this invented ‘‘sex ring’’ by producing a large number of arrests
and prosecutions in Jordan for sexual abuse of children. Defen-
dants thus in furtherance of this conspiracy recklessly sought
out plaintiffs as candidates for prosecution. These arrests were
thus made without making any adequate substantiated inquiries
regarding the welfare of the plaintiffs’ minor children and
without probable cause and in willful disregard of plaintiffs’
rights, privileges and immunities secured by the United States
Consititution and the law and Constitution of the State of
Minnesota.
(20) The defendants by failing to make reasonable inquiries
before removing the Myers’ children from the family home and
by initiating a criminal prosecution against Greg Myers and
Jane Myers without probable cause, in addition to being guilty
of conspiracy as described in the preceding paragraph, were
grossly negligent. As a result of this gross negligence, and of the
other acts and omissions of the other defendants herein as
previously alleged, plaintiffs have been greatly damaged, in
that they have suffered great mental duress and anguish, have
been wrongfully arrested and deprived of their liberty,
wrongfully confined, have been caused to suffer damage to their
family relations, have_suffered alienation of affection between
parent and child, have suffered injury to their reputations and
B-7
have been greatly damaged in their enjoyment of their home
and community and currently live in a state of fear of reprisal
and other unwarranted governmental action by all of the
aforesaid defendants and other officials of Scott County.
(21) As a further result of their gross negligence the minor
plaintiffs Andy, Amy, and Brian Myers have been caused to
suffer emotional and psychological harm which has and will
continue to damage their maturation, growth and development.
(22) All of the aforesaid acts, restraints, interferences, arrests
and imprisonments were committed with a willful indifference
to the rights of plaintiffs so as to subject defendant and each of
them to punitive damages pursuant to the provisions of the
statutes and common law of the United States of America.
(23) Because of the matters set forth in all of the preceding
paragraphs hereof, plaintiffs have been forced to retain an at-
torney to seek vindication of their rights and to assure them of
the further peaceful enjoyment of their rights as residents of
their community and the State of Minnesota and the United
States.
WHEREFORE, plaintiffs demand judgment of defendants
and each of them, as follows:
(1) For an award of compensatory damamges in the amount
of Twenty Four Million Dollars ($24,000,000.00).
(2) For punitive damages in an amount sufficient to deter
defendants and other similarly situated, from committing such
acts as are alleged in this complaint in the future, in an amount
of Ten Million Dollars ($10,000,000.00).
(3) For plaintiffs’ attorney’s fees in connection with this
action.
(4) For temporary and permanent injunction enjoining defen-
dants and each of them, and all other officials of Scott County
from taking any actions in reprisal for plaintiffs’ having in-
stituted this action or for any other reason.
(5) For such other relief as the Court may deem just or
equitable.
/S/Marc G. Kurzman
Marc G. Kurzman
Carol Grant
KURZMAN, MANAHAN
& PARTRIDGE
601 Butler Square
100 North Sixth Street
Minneapolis, Minnesota 55403
(612) 333-4403
Attorney for Plaintiffs.
Dated:
C-1
IN THE
United States istrict Court
DISTRICT OF MINNESOTA
FOURTH DIVISION
Donald Buchan and Cindy
Buchan, individually and as
parents and natural guardians
of Courtney Beth Buchan, —
Melissa Ellen Buchan, and
William Donald Buchan,
minors,
Plaintiffs, Civil No.
VS.
COMPLAINT
Scott County and R.
Kathleen Morris, Scott Coun-
ty Attorney, Scott County
Human Services, and Peg
Subby, its director of Human
Services, Thomas Price, and
Phipps-Yonas & Price, P.A.,
Michael Shea, and Shea &
Associates, P.A., Diane
Johnson, guardian ad litem,
John Manahan, guardian ad
litem, Doris Wilker, social
worker, Mary Tafs, social
worker, Judy Dean, social
worker, Susan DeVries
psychologist, and other
employees of Scott County
Human Services whose names
and titles are unknown, and
Douglas Tietz, Scott County
Sheriff,
Defendants.
Plaintiffs, for their Complaint herein, allege:
JURISDICTIONAL STATEMENT
(1) This action arises under, and jurisdiction is based upon
U.S. Code Title 42, Section 1983 and Section 1988. The plain-
tiffs are persons within the jurisdiction of the United States who
have been deprived of their rights, privileges, and immunities
secured under the laws and Constitution of the United States.
The defendants having injured the plaintiffs causing them
damages in excess of Ten Thousand Dollars ($10,000.00), ex-
clusive of interest and costs.
GENERAL ALLEGATIONS
(2) Plaintiffs Donald and Cindy Buchan are residents of Jor-
dan, Scott County, Minnesota. Plaintiffs are husband and wife,
married on April 1, 1978. They have three minor children,
Melissa Ellen, born August 2, 1979, age 5; Courtney Beth, born
August 25, 1981, age 3; and William Donald, born December 4,
1982, age 1.
(3) Defendant R. Kathleen Morris is the County Attorney and
chief legal officer and agent of Scott County.
(4) Defendant Douglas Tietz is the County Sheriff and agent
of Scott County. Defendant Sheriff Tietz failed to properly
supervise deputy sheriffs and negligently allowed them to act at
the direction of the County Attorney, defendant Morris, who
was acting as an investigator and initiator of charges against
plaintiffs Donald and Cindy Buchan. Defendant Sheriff Tietz
was grossly negligent in failing to properly supervise deputy
sheriffs and allowing them to work at the direction of defendant
C-3
Morris in depriving the plaintiffs and their minor children
herein of their statutory and constitutional rights.
(5) Defendants Doris Wilker, Mary Tafs and Judy Dean are
social workers employed by Scott County Human Services. In
addition to the other actions alleged below they acted as the
primary questioners and interrogators of the minor plaintiffs
and in this capacity subjected them to coercive and cruel ques-
tioning techniques and also as a result of their failure to attempt
to corroborate statements by the Buchans’ children which ex-
culpated their parents.
(6) Defendants Diane Johnson and John Manahan are the
court appointed guardians ad litem for the Buchans’ children.
Defendants Johnson and Manahan, in addition to the other acts
alleged herein, also engaged in a pattern of activity which was
coercive and abusive to the minors placed under their direction
by the Court in violation of their legal duties, in that they also
interrogated the Buchans’ children in an attempt to elicit addi-
tional accusatory responses from them as well as permitting
defendant Morris and defendants Wilker, Tafs and Dean to
question and interrogate the children under circumstances
where it was apparent that their emotional and psychological
well-being was threatened. Defendants Johnson and Manahan
permitted and participated in the isolation and confinement of
the Buchans’ children in an attempt to coerce them into making
responses which would be favorable for the State’s case against
their parents.
(7) Defendant Thomas Price practices in an association
known as Phipps-Yonas & Price. In addition to the other ac-
tions alleged herein, defendant Price served defendant R.
Kathleen Morris by providing her with psychological evalua-
tions of the Buchans’ children. In addition to providing these
evaluations, defendant Price interrogated the Buchans’ children
and manipulated them psychologically and transmitted the con-
firmation of allegations to defendant R. Kathleen Morris in
negligent disregard of the truth of these confirmations. Further-
more, defendant Price held himself out as a ‘‘psychotherapist’’
but was really practicing psychology, which requires a license,
when in fact Mr. Price held no licensure of certification by the
State, a misdemeanor within the ambit of M.S.A. § 148.97.
C-4
(8) Defendant Susan DeVries is a licensed psychologist who
performed psychological consulting services for Scott County
on a contract basis and as such, was acting under color of State
law.
(9) Defendant Michael Shea is a licensed psychologist who
practices with Shea & Associates, P.A., providing consulting
services for Scott County on a contract basis and, as such, was
acting under color of State law.
(8.1) On or about June 4, 1984, the defendants Scott County,
Scott County Welfare Department, Peg Subby, Doris Wilker,
Mary Tafs, Judy Dean, Thomas Price, Susan DeVries, Michael
Shea, Douglas Tietz and R. Kathleen Morris caused, through
their agents and under color of law, the forcible removal of the
plaintiffs’ three minor children from the plaintiffs’ home.
(8.2) Defendants conspired to deprive the minor children
herein of their rights under M.S.A. § 13.40, subd. 2, the so-
called ‘“Tennessen warning,’’ which is binding upon all social
workers but not police.
(8.31) Defendants further conspired to violate M.S.A. §
626.556, specifically including but not limited to subd. 10.
(8.32) Defendants further conspired to violate M.S.A. §
260.165.
(8.4) Defendants conspired to violate Minnesota Department
of Public Welfare Regulations set forth in 12 M.C.A.R. § 2.207,
insofar as there was no attempt to place the children voluntarily
or seek alternatives to ensure the safety of the children, there
was no attempt to contact the family, nor were other legally
necessary prerequisite steps taken prior to petitioning a court
for authorization to intervene.
(9) Defendant Morris then filed a criminal complaint against
plaintiffs Donald Buchan and Cindy Buchan in Scott County
District Court, alleging numerous instances and counts of sex-
ual abuse committed by them upon their own children and upon
other minor children.
(10) Defendant R. Kathleen Morris has, in the prosecution of
criminal charges against the plaintiff, violated the laws and
Constitution of the United States, the State of Minnesota and
the Canons of Ethics governing the practice of law in her pro-
secution of the plaintiffs.
C-5
(15) Specifically, R. Kathleen Morris has:
(15.1) Destroyed material evidence in the form of audio and
video tapes of interviews with alleged child victims, rather than
disclose this potentially exculpatory material to defense counsel;
(15.2) Hid, covered up and withheld exculpatory evidence
gathered at the State’s direction by police and investigatory
personnel;
(15.3) Threatened child witnesses who were potentially State’s
witnesses with jail, other punitive incarceration, and with
threats that they would not see their parents again unless those
witnesses gave testimony incriminating the accused adults;
and
(15.4) Interrogated child witnesses using severely coercive
methods which resulted in psychological disorders and traumas
to these witnesses;
(15.5) Intimidated and accused child witnesses of lying if they
did not deliver incriminating testimony and lied to child
witnesses by telling them that their siblings had already made in-
criminating statements about their parents;
(15.6) Encouraged child witnesses through role playing to col-
lectively vent accusations;
(15.7) Offered bribes, in an effort to obtain prosecution
witnesses;
(15.8) Suborned perjury of a major prosecution witness in ex-
change for plea bargaining concessions;
(15.9) Entered into an illegal plea bargain which was con-
tingent upon an after the fact evaluation of the usefulness of the
convict’s testimony to the prosecution;
(15.10) Misrepresented the nature of the plea bargain entered
into with convicted child molester, James Rud to victims of his
acts;
(15.11) Misrepresented the interrogation of child witnesses by
a social worker as interrogation by a psychotherapist when in
fact that person was unlicensed as a psychotherapist; and
(15.12) Represented to the trial court and defense counsel that
Family Court appointees, foster parents, guardians ad litem,
and social workers were not engaged in collecting information
for the prosecution.
(16) These actions by defendant R. Kathleen Morris alleged in
C-6
this Complaint she took while acting in her capacity and office
as an elected official and agent for Scott County. These actions
went beyond her official capacity as prosecutor insofar as she
acted as an investigator.
(17) All of the actions alleged herein represent the official
deliberate policy or custom of the office of Scott County At-
torney and the Scott County Board.
(18) The aforesaid arrests, confinement, separation of the
family and interference with the family relation were made
under color of the statutes, ordinances, regulations, customs
and usages of the State of Minnesota and deprived plaintiffs of
their rights, privileges and immunities under the United States
Constitution and laws, specifically including but not limited to
United States Constitution Article XIV, Section 1, in that plain-
tiffs have been deprived of their liberty without due process of
law; United States Constitution Article IV, in that plaintiffs have
been denied their right to be secure in their persons and home
and from having their persons seized without warrant issued
upon probable cause, supported by oath or affirmation; and
United States Code, Title 42, Section 1983, in that plaintiffs
have been deprived of their rights, privileges and immunities
secured by the United States Constitution and laws by defen-
dants acting upon color of Minnesota statutes, ordinances,
regulations, customs and usage.
(19) The aforesaid actions by defendants were acts in fur-
therance of a conspiracy. Defendants and specifically R.
Kathleen Morris and her office were engaged in a publicity cam-
paign against child abuse and incest. Part of this campaign in-
volved the invention by defendant Morris and others of a ‘‘sex
ring’’ in Jordan, Minnesota. Defendants attempted to legitimize
this invented ‘‘sex ring’’ by producing a large number of arrests
and prosecutions in Jordan for sexual abuse of children. Defen-
dants thus in furtherance of this conspiracy recklessly sought
out plaintiffs as candidates for prosecution. These arrests were
thus made without making any adequate substantiated inquiries
regarding the welfare of the plaintiffs’ minor children and
without probable cause and in willful disregard of plaintiffs’
rights, privileges and immunities secured by the United States
Constitution and the law and Constitution of the State of
C-7
Minnesota.
(20) The defendants by failing to make reasonable inquiries
before removing the Buchans’ children from the family home
and by initiating a criminal prosecution against Donald Buchan
and Cindy Buchan without probable cause, in addition to being
guilty of conspiracy as described in the preceding paragraph,
were grossly negligent. As a result of this gross negligence, and
of the other acts and omissions of the other defendants herein as
previously alleged, plaintiffs have been greatly damaged, in that
they have suffered great mental duress and anguish, have been
wrongfully arrested and deprived of their liberty, wrongfully
confined, have been caused to suffer damage to their family
relations, have suffered alienation of affection between parent
and child, have suffered injury to their reputations and have
been greatly damaged in their enjoyment of their home and
community and currently live in a state of fear of reprisal and
other unwarranted governmental action by all of the aforesaid
defendants and other officials of Scott County.
(21) As a further result of their gross negligence the minor
plaintiffs Courtney, Melissa and William Buchan have been
caused to suffer emotional and psychological harm which has
and will continue to damage their maturation, growth and
development.
(22) All of the aforesaid acts, restraints, interferences, arrests
and imprisonments were committed with a willful indifference
to the rights of plaintiffs so as to subject defendants and each of
them to punitive damages pursuant to the provisions of the
statutes and common law of the United States of America.
(23) Because of the matters set forth in all of the preceding
paragraphs hereof, plaintiffs have been forced to retain an at-
torney to seek vindications of their rights and to assure them of
the further peaceful enjoyment of their rights as residents of
their community and the State of Minnesota and the United
Sates.
WHEREFORE, plaintiffs demand judgment of defendants
and each of them, as follows:
(1) For an award of compensatory damages in the amount of
Fifteen Million Dollars ($15,000,000.00).
(2) For punitive damages in an amount sufficient to deter
C-8
defendants amd other similarly situated, from committing such
acts as are alleged in this complaint in the future, in an amount
of Ten Milliom Dollars ($10,000,000.00)
(3) For plaintiffs’ attorney’s fees in connection with this
action.
(4) For temporary and permanent injunction enjoining defen-
dants and eaclh of them, and all other officials of Scott County
from taking any actions in reprisal for plaintiffs’ having in-
stituted this aiction or for any other reason.
(5) For such other relief as the Court may deem just or
equitable.
/S/Marc G. Kurzman
Marc G. Kurzman
Carol Grant
KURSMAN, MANAHAN &
PARTRIDGE
601 Butler Square
100 North Sixth Street
Minneapolis, Minnesota 55403
(612) 333-4403
Attorney for Plaintiffs
Dated: 11/19/84
« Ciey
D-1
IN THE
United States Bistrict Court
DISTRICT OF MINNESOTA
FOURTH DIVISION
Civil File No.
Charles Lallak and Carol
Lallak, husband and wife;
and Jeffrey Lallak and Jen-
nifer Lallak, minors, by
Charles Lailak and Carol
Lallak, their parents and
natural guardians,
Plaintiffs,
VS.
Scott County; Scott County
Board of Commissioners;
Scott County Attorney’s Of-
fice; R. Kathleen Morris, COMPLAINT
Scott County Attorney; Scott
County Sheriff’s Department;
Douglas Tietz, Scott County
Sheriff; Michael M. Bush,
Scott County Deputy Sheriff; JURY TRIAL
Patrick Morgan, Scott Coun- DEMANDED
ty Deputy Sheriff; David
Einertson, Scott County
Deputy Sheriff; Norman
Pint, Scott County Deputy
D-2
Sheriff; Other employees of
Scott County Sheriff’s
Department whose names
and titles are unknown; Scott
County Human Services
Department; Rachel Paff,
Social Worker with Scott
County Human Services
Department; Other employees
of Scott County Human Ser-
vices Department whose
names and titles are
unknown; City of Jordan;
Jordan City Council; Gail
Anderson, former mayor of
Jordan; Donald Tillman,
Mayor of Jordan; Jordan
Police Department; Alvin
Erickson, Jordan Police
Chief; Larry Norling, Officer
with Jordan Police Depart-
ment; Other employees of
Jordan Police Department
whose names and titles are
unknown; Thomas L. Price,
and Phipps-Yonas & Price,
P.A..,
Defendants.
Plaintiffs, as for their Complaint, state and allege as follows:
1. At all times material hereto Plaintiffs were residents of
Scott County, Minnesota.
2. Upon information and belief, all of the Defendants named
herein are residents of Scott County, Minnesota.
3. Jurisdiction in this case is based upon Section 1331 of Title
28 of the United States Code. Federal question jurisdiction is
based upon Section 1983 of Title 42 of the United States Code.
As further enumerated below, Plaintiffs are persons within the
D-3
jurisdiction of the United States District Courts who have been
deprived of their rights, privileges and immunities secured under
the laws and Constitution of the United States.
4. Plaintiffs Charles Lallak and Carol Lallak are husband and
wife. Plaintiffs Jeffrey Lallak and Jennifer Lallak are their
minor children, born respectively August 27, 1969 (15 years old)
and October 26, 1970 (14 years old).
5. Defendant Scott County is, and at all times material hereto
was, an entity duly organized and existing under and by virtue
of Minnesota law.
6. Defendant Board of Commissioners is, and at all times
material hereto was, a governmental body of Scott County.
7. Defendants County Attorney’s office, Sheriff’s Depart-
ment and Human Services Department are, and at all times
material hereto were, agencies of Scott County.
8. Defendant R. Kathleen Morris is, and at all times material
hereto was, the County Attorney and chief legal officer and
agent of Scott County.
9. Defendant Douglas Tietz is, and at all times material hereto
was, the Sheriff and agent of Scott County.
10. Upon information and belief, Defendants Michael M.
Bush, Patrick Morgan, David Einertson and Norman Pint are,
and at all times material hereto were, Deputy Sheriffs and
agents of Scott County.
11. Upon information and belief, Defendant Rachel Paff is,
and at all times material hereto was, a Social Worker and agent
of Scott County.
12. Defendant City of Jordan is, and at all times material
hereto was, a municipal corporation organized under and pur-
suant to Minnesota Statute § 414.01, ef seq.
13. Defendant City Council is, and at all times material hereto
was, a governing body of the City of Jordan.
14. Defendant Police Department is, and at all times material
hereto was, an agency of the City of Jordan.
15. Defendant Gail Anderson was the Mayor of the City of
Jordan until the summer of 1984.
16. Defendant Donald Tillman is the Mayor for the City of
Jordan, having commenced his term of office in the summer of
1984.
D-4
17. Defendant Alvin Erickson is, and at all times material
hereto was, the Chief Police Officer and agent of the City of
Jordan.
18. Defendant Larry Norling is, and at all times material
hereto was, a police officer and agent of the City of Jordan.
19. Defendant Thomas L. Price practices in an association
known as Phipps-Yonas & Price, P.A. At all times material
hereto, Defendant Price held himself out as a
‘*psychotherapist’’ but was really practicing psychology, which
requires a license, when in fact Defendant Price heid no license
or certification by the State. Furthermore, Defendant Price
assisted Defendant Morris and the other Defendants by pro-
viding her with psychological evaluation of various children
allegedly abused by the Lallaks.
20. Beginning in February of 1984, Defendants and their
agents wrongfully, unlawfully and in derogation of Plaintiffs’
constitutional rights, began interrogating Plaintiffs about
alleged child sex abuse and incest. Said interrogations occurred
repeatedly until May 23, 1984.
21. On or about May 23, 1984, Defendants, and specifically
R. Kathleen Morris, wrongfully, unlawfully and in derogation
of Plaintiffs’ constitutional rights filed a criminal complaint
alleging six counts of criminal sexual conduct. Based upon said
criminal complaint, Defendants wrongfully, unlawfully and in
derogation of Plaintiffs’ constitutional rights imprisoned
Charles and Carol Lallak and, furthermore, forebode the
Lallak parents from contacting the Lallak children.
22. In the investigation and prosecution of the criminal
charges against the Lallaks, Defendants, and specifically R.
Kathleen Morris acted in a reckless and grossly negligent
manner.
23. In addition to actions taken in the capacity of chief pro-
secutor for and agent of Scott County, Defendant R. Kathleen
Morris also took actions which exceeded her official capacity
and further acted in the capacity of administrator and
investigator.
24. In addition to actions taken in their capacity as agents for
Scott County, Defendants Douglas Tietz, Michael M. Bush,
Patrick Morgan, David Einertson and Norman Pint exceeded
D-5
the scope of their agency; all of said actions were wrongful,
unlawful and in derogation of Plaintiffs’ constitutional rights.
25. In addition to actions taken in their capacity as agents for
the City of Jordan, Defendants: Alvin Erickson and Larry
Norling exceeded the scope of their agency; all of said actions
were wrongful, unlawful and in derogation of Plaintiffs’ con-
situtional rights.
26. In pertinent part, all of the actions alleged herein repre-
sent the official deliberate policy, or were taken pursuant to the
guidelines of, Scott County, the Scott County Board of Com-
missioners, the Scott County Sheriff’s Department, the Scott
County Welfare Department, the City of Jordan, Jordan City
Council and the Jordan Police Department.
FIRST CAUSE OF ACTION
27. Realleges and incorporates by reference Paragraphs 1
through 26 herein.
28. The aforesaid arrests, confinement, separation of the
family and interference with the family relation were made
under color of the statutes, ordinances, regulations, customs
and usages of the State of Minnesota and deprived Plaintiffs of
their rights, privileges and immunities under the United States
Constitution and laws. Without limitation, Defendants’ con-
duct hus been violative of Plaintiffs’ rights as enumerated in the
First, Fourth, Fifth, Ninth and Fourteenth Amendments to the
United States Constitution and Section 1983 of Title 42 of the
United States Code.
29. The aforesaid actions by Defendants were acts in fur-
therance of a conspiracy. Defendants, and specifically R.
Kathleen Morris and her office, were engaged in a publicity
campaign against child abuse and incest. Part of this campaign
involved the invention by Defendant Morris and others of a
**sex ring’’ in Jordan, Minnesota. Defendants attempted to
legitimize this invented ‘‘sex ring’’ by producing a large number
of arrests and prosecutions in Jordan for sexual abuse of
children. In furtherance of this conspiracy, Defendants reck-
lessly sought out the Lallaks as candidates for prosecution.
These arrests were thus made without making any adequate
D-6
substantiated inquiries regarding the welfare of the Plaintiffs’
minor children and without probable cause and in willful
disregard of Plaintiffs’ rights, privileges and immunitites
secured by the United States constitution and the law and Con-
stitution of the State of Minnesota.
30. As a direct and proximate result of the foregoing, Plain-
tiffs have suffered and will continue to suffer damages in the
form of, without limitation, lost wages and benefits, medical ex-
penses, mental anguish and suffering, loss of reputation,
damages to their family relations, and alienation of affection
between parent and child.
31. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted wiilful indifference to the rights
of Plaintiffs so as to subject Defendants, and each of them, to
liability for punitive damages pursuant to the applicable statutes
and common law.
SECOND CAUSE OF ACTION
32. Realleges and-incorporates by reference Paragraphs 1
through 31 herein.
33. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted a malicious prosecution of the
Lallaks.
34. As a direct and proximate result of the foregoing, Plain-
tiffs have suffered and will continue to suffer damages in the
form of, without limitation, lost wages and benefits, medical ex-
penses, mental anguish and suffering, loss of reputation,
damages to their family relations, and alienation of affection
between parent and child.
35. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted willful indifference to the rights
of Plaintiffs so as to subject Defendants, and each of them, to
liability for punitive damages pursuant to the applicable statutes
and common law.
THIRD CAUSE OF ACTION
36. Realleges and incorporates by reference Paragraphs 1
D-7
through 35 herein.
37. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted an abuse of process as to the
Lallaks. ;
38. As a direct and proximate result of the foregoing, Plain-
tiffs have suffered and will continue to suffer damages in the
form of, without limitation, lost wages and benefits, medical ex-
penses, mental anguish and suffering, loss of reputation,
damages to their family relations, and alienation of affection
between parent and child.
39. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted willful indifference to the rights
of Plaintiffs so as to subject Defendants, and each of them, to
liability for punitive damages pursuant to the applicable statutes
and common law.
FOURTH CAUSE OF ACTION
40. Realleges and incorporates by reference Paragraphs 1
through 39 herein.
41. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted a false imprisonment of the
Lallaks.
42. As a direct and proximate result of the foregoing, Plain-
tiffs have suffered and will continue to suffer damages in the
form of, without limitation, lost wages and benefits, medical ex-
penses, mental anguish and suffering, loss of reputation,
damages to their family relations, and alienation of affection
between parent and child. -
43. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted willful indifference to the rights
of Plaintiffs so as to subject Defendants, and each of them, to
liability for punitive damages pursuant to the applicable statutes
and common law.
FIFTH CAUSE OF ACTION
44. Realleges and incorporates by reference Paragraphs |
through 43 herein.
D-8
45. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted libel as to the Lallaks.
46. As a direct and proximate result of the foregoing, Plain-
tiffs have suffered and will continue to suffer damages in the
form of, without limitation, lost wages and benefits, medical ex-
penses, mental anguish and suffering, loss of reputation,
damages to their family relations, and alienation of affection
between parent and child.
47. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted willful indifference to the rights
of Plaintiffs so as to subject Defendants, and each of them, to
liability for punitive damages pursuant to the applicable statutes
and common law.
SIXTH CAUSE OF ACTION
48. Realleges and incorporates by reference Paragraphs 1
through 47 herein.
49. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted slander as to the Lallaks.
50. As a direct and proximate result of the foregoing, Plain-
tiffs have suffered and will continue to suffer damages in the
form of, without limitation, lost wages and benefits, medical ex-
penses, mental anguish and suffering, loss of repuation,
damages to their family relations, and alienation of affection
between parent and child.
51. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted willful indifference to the rights
of Plaintiffs so as to subject Defendants, and each of them, to
liability for punitive damages pursuant to the applicable statutes
and common law.
SEVENTH CAUSE OF ACTION
52. Realleges and incorporates by reference Paragraphs |
through 51 herein.
53. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted a tortious invasion of Plaintiffs’
privacy.
dent Cis
D-9
54. As a direct and proximate result of the foregoing, Plain-
tiffs have suffered and will continue to suffer damages in the
form of, without limitation, lost wages and benefits, medical ex-
penses, mental anguish and suffering, loss of reputation,
damages to their family relations, and alienation of affection
between parent and child.
55. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted willful indifference to the rights
of Plaintiffs so as to subject Defendants, and each of them, to
liability for punitive damages pursuant to the applicable statutes
and common law.
EIGHTH CAUSE OF ACTION
56. Realleges and incorporates by reference Paragraphs 1
through 55 herein.
57. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted extreme and outrageous conduct
which intentionally or recklessly caused severe emotional harm,
said actions constituting an intentional infliction of emotional
distress without economic or social justification.
58. As a direct and proximate result of the foregoing, Plain-
tiffs have suffered and will continue to suffer damages in the
form of, without limitation, lost wages and benefits, medical ex-
penses, mental anguish and suffering, loss of reputation,
damages to their family relations, and alienation of affection
between parent and child.
59. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted willful indifference to the rights
of Plaintiffs so as to subject Defendants, and each of them, to
liability for punitive damages pursuant to the applicable statutes
and common law.
NINTH CAUSE OF ACTION
60. Realleges and incorporates by reference Paragraphs 1
through 59 herein.
61. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments resulted directly and proximately from the
D-10
wrongful acts and omissions, gross negligence and breach of
duties of the Defendants.
62. As a direct and proximate result of the foregoing, Plain-
tiffs have suffered and will continue to suffer damages in the
form of, without limitation, lost wages and benefits, medical ex-
penses, mental anguish and suffering, loss of reputation,
damages to their family relations, and alienation of affection
between parent and child.
63. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted willful indifference to the rights
of Plaintiffs so as to subject Defendants, and each of them, to
liability for punitive damages pursuant to the applicable statutes
and common law.
TENTH CAUSE OF ACTION
64. Realleges and incorporates by reference Paragraphs 1
through 63 herein.
65. Defendants Scott County, Scott County Board of Com-
missioners, Scott County Attorney’s Office, Scott County
Sheriff’s Department, Scott County Welfare Department, City
of Jordan, Jordan City Council, Jordan Mayor’s office and
Jordan Police Department failed to adequately supervise and
train their respective agents.
66. As a direct and proximate result of the foregoing, Plain-
tiffs have suffered and will continue to suffer damages in the
form of, without limitation, lost wages and benefits, medical ex-
penses, mental anguish and suffering, loss of reputation,
damages to their family relations, and alienation of affection
between parent and child.
67. All of the aforesaid acts, restraints, interferences, arrests
and imprisonments constituted willful indifference to the rights
of Plaintiffs so as to subject Defendants, and each of them, to
liability for punitive damages pursuant to the applicable statutes
and common law.
WHEREFORE, Plaintiff respectfully prays for judgment
against Defendants, and each of them, as follows:
1. For an award of compensatory damages in an amount in
excess of Fifty Thousand Dollars ($50,000.00).
+ il
D-11
2. For an award of punitive damages in an amount in excess
of Fifty Thousand Dollars ($50,000.00).
3. For a temporary and permanent injunction restraining and
enjoining Defendants, and each of them, from taking any ac-
tions in reprisal for Plaintiffs having instituted this action or for
any other reason.
4. For their costs, disbursements, attorneys’s fees, and
witness fees pursuant to the provisions of 42 U.S.C. § 1988 and
other applicable laws.
5. For such other and further relief as the Court deems fair,
just and equitable.
DATED: November 19, 1984.
HANLEY, HERGOTT & HUNZIKER
By /S/Thomas J. Hunziker
Thomas J. Hunziker
701 Fourth Avenue South, Suite 1400
Minneapolis, MN 55415
Telephone: (612) 338-6990
Attorneys for Plaintiffs Charles Lallak
and Carol Lallak
and
DUNKLEY AND BENNETT, P.A.
By /S/Michael D. Madigan
Michael D. Madigan
701 Fourth Avenue South, Suite 1400
Minneapolis, MN 55415
Telephone: (612) 339-1290
Attorneys for Plaintiffs Jeffrey Lallak
and Jennifer Lallak
E-1
IN THE
United States Bistrict Court
DISTRICT OF MINNESOTA
FOURTH DIVISION
Daniel J. Meger and Wanda Lou Meger, in-
dividually and as parents and natural guar-
dians of Brian Meger and Chad Meger,
minors,
Plaintiffs, COMPLAINT
versus DEMAND FOR
JURY TRIAL
Scott County, a Political Subdivision of the
State of Minnesota; R. Kathleen Morris, in-
dividually and in her official capacity as at-
torney for Scott County; Scott County
Board of Commissioners; Scott County
Welfare Department and Margaret Subby,
it’s Director of Human Services; Scott
County Sheriff’s Department and it’s
Deputies, Patrick. Morgan and Michael
Busch; Doris Wilker, Social Worker, Scott
County Welfare Department; Joel Kauf-
mann, psychologist, Scott County Welfare
Department; Jane McNaught, and Center
for Child and Family Therapy; B. A. Ber-
show, M.D., and Burnsville Family Physi-
cians, P.A.; John Doe and Mary Doe and
other employees of Scott County whose
names and titles are unknown,
Defendants.
E-2
PLAINTIFFS’, for their Complaint herein, allege as follows:
JURISDICTIONAL STATEMENT
(1) This action arises under, and jurisdiction is based upon
United States Code Title 42, Section 1983 and Section 1985.
Plaintiffs are persons within the jurisdiction of the United
States and have been deprived of their rights, privileges, and im-
munities secured under the Laws and Constitution of the United
States. Defendants have injured the Plaintiffs causing them
damages in excess of Ten Thousand and 00/100’s ($10,000.00)
Dollars, exclusive of interest and costs.
UNIVERSAL ALLEGATIONS
(2) Plaintiffs Daniel J. Meger and Wanda Lou Meger are
residents of the City of Jordan, County of Scott, State of Min-
nesota. Plaintiffs are husband and wife, having been married on
May 7, 1977. Plaintiffs have two minor children, namely: Brian
Meger, born July 20, 1975, age 9; and Chad Meger, born
September 16, 1978, age 6.
(3) Defendant R. Kathleen Morris is a Resident of the County
of Scott, State of Minnesota, and is the chief legal officer and
agent of Scott County.
(4) Defendant Scott County Board of Commissioners is the
entity responsible for the political and legal actions of Scott
County. All actions complained of hereinafter represent the of-
ficial and negligent supervisory policies of the Scott County
Board of Commissioners, and Scott County.
(5) Defendant Margaret Subby was at all times relevant herein
the Director of Scott County Human Services and in that
capacity failed to properly supervise employees under her direc-
tion and allowed said employees to deprive Plaintiffs of their
civil and constitutional rights under color of State Law.
(6) Defendant Scott County Sheriff’s Department failed to
properly supervise its employees in that it impliedly relinquished
control of Defendant Deputy Sheriffs’ Pat Morgan and Michael
Busch to R. Kathleen Morris, for the purpose of suborning
a
E-3
potential perjury by witnesses that were subject to Defendants
coercion, and were particularily vulnerably by virtue of age and
or mental infirmities.
(7) Defendant Doris Wilker and other social workers were
employed by Scott County Human Services. In addition to
other actions, further alleged below, Defendants acted as
primary questioners and interrogators of the minor Plaintiffs
and in this capacity subjected them to severe emotional and
psychological trauma, and abuse resulting from their cruel and
coercive questioning techniques.
(8) Defendant Joel Kaufman is and at all times relevant herein
was a licensed psychologist employed by Scott County and in
that capacity acted to further the conspiracy be serving to pro-
vide Defendant R. Kathleen Morris with psychological evalua-
tions of minor Plaintiffs and in addition to providing these
evaluations, Defendant Kaufman interrogated and manipulated
the minor Plaintiffs psychologically and transmitted false and
misleading allegations to Defendant R. Kathleen Morris.
(9) Defendant Jane McNaught is a licensed psychologist who
practices with the Center for Child and Family Therapy pro-
viding consulting services for Scott County on a contract basis
and in that capacity acted to further the conspiracy by serving to
provide Defendants R. Kathleen Morris and Scott County
Human Services with psychological evaluations and reports that
were false and misleading and the product of her coercive and
intimidating techniques of interrogation. Said evaluations and
reports were provided by Defendant Jane McNaught while act-
ing under color of State Law.
(10) Defendant B. A. Bershow, M.D., is a medical doctor
who practices with Burnsville Family Physicians, P.A., pro-
viding medical examinations for Scott County on a contract
basis and in such capacity provided Defendants R. Kathleen
Morris and Scott County Human Services with evaluations and
reports that were false and misleading. Said Defendant also in-
terrogated the minor Plaintiffs herein in a manner that was
coercive and manipulative so as to further the conspiracy al-
leged herein while acting under color of State Law.
(11) Defendants John Doe and Mary Doe and other
E-4
employees of Scott County whose names and titles are
unknown, committed acts in furtherance of the deprivation to
Plaintiffs due process and equal protection of law by their inten-
tional and negligent action as alleged herein.
(12) On or about June 5, 1984, Defendants Scott County,
Scott County Welfare Department, Margaret Subby, Doris
Wilker, Joel Kaufman, Patrick Morgan, Michael Busch and R.
Kathleen Morris, caused through their agents and under color
of State Law, the removal of Plaintiffs two minor children from
Plaintiffs home.
(13) Defendants R. Kathleen Morris, Doris Wilker and other
employees of Scott County, conspired to coerce and intimidate
Plaintiff Wanda Lou Meger by false and misleading representa-
tions under color of State Law to sign a document allowing for
the voluntary placement of the minor Plaintiffs herein in foster
care.
(13a) defendants failed to advise Plaintiff Wanda Lou Meger
of her statutory right to have counsel available prior to signing
the placement document.
(13b) Defendants willfully and deceitfully misrepresented to
Plaintiff Wanda Lou Meger that her minor children would be
returned to the family home within 72 hours.
(13c) Defendants willfully maligned and impugned the
character of Plaintiff Daniel J. Meger, making allegations of
physical and sexual abuse so as to coerce Plaintiff Wanda Lou
Meger to sign the voluntary placement documents.
(13d) Defendants conspired to deprive the minor children
herein of their rights under Minnesota Statutes Annotated Sec-
tion 13.40, subd. 2, the so-called ‘‘Tennessen warning,’’ which
is binding upon all social workers but not police.
(13e) Defendants further conspired to violate Minnesota
Statutes Annotated Section 626.556, specifically including, but
not limiting to subd. 10.
(13f) Defendants further conspired to deprive Plaintiffs of
their rights through their total abrogation of and failure to com-
ply with the safeguards provided in Minnesota Statutes An-
notated Section 260, et seq.
(14) Defendant R, Kathleen Morris with the knowledge and
’
E-5
consent of Scott County and other Defendants named herein,
exercised power and authority not properly vested in her capa-
city as chief legal counsel and agent of Scott County further
continuing the forced destruction of Plaintiff’s family unit in
the absence of any formal criminal charges.
(15) defendant has in the furtherance of the persecution of
Plaintiffs, violated the Laws and the Constitution of the United
States, the State of Minnesota and the Cannons of Ethics gover-
ning the practice of Law in her malicious persecution of the
Plaintiffs.
(16) Specifically, Defendant R. Kathleen Morris has:
(16a) Caused Plaintiffs Daniel J. Meger and Wanda Lou
Meger to have to endure the uncertainty and trauma of
threatened criminal prosecution. Said threats being founded in
malice and without probable cause thus perverting the pro-
secutorial function and duties.
(16b) Destroyed material evidence in the form of audio and
video tapes of interviews with the minor Plaintiffs herein and
with other alleged child victims, rather than disclose this poten-
tially exculpatory mataerial to Plaintiffs counsel.
(16c) Hid, covered up and withheld exculpatory evidence
gathered at the State’s direction by police and investigatory
personnel.
(16d) Threatened the minor Plaintiffs herein and other child
witnesses who were potential State’s witnesses with jail, other
punitive incarceration, and with threats that they would not see
their parents again unless they gave testimony incriminating the
accused adults.
(16e) Interrogated the minor Plaintiffs herein and other child
witnesses using severely coercive methods which resulted in
psychological disorders and traumas to the minor Plaintiffs
herein.
(16f) Intimidated and accused the minor Plaintiffs herein and
other child witnesses of lying if they did not deliver in-
criminating testimony and lied to minor Plaintiffs herein and
other child witnesses by telling them that their siblings had
already made incriminating statements about their parents.
(16g) Encouraged minor Plaintiffs herein and other child
er
E-6
witnesses through role playing to collectively vent accusations.
(16h) Offered bribes, in an effort to obtain prosecution
witnesses.
(16i) Suborned perjury of a major prosecution witness in ex-
change for plea bargaining concessions.
(16j) Represented to the Family Court and Plaintiffs counsel
that Family Court appointees, foster parents, guardians ad
litems, and social workers were not engaged in collecting infor-
mation for the prosecution.
(16k) That Defendant R. Kathleen Morris did falsely,
maliciously and wantonly impute to Plaintiffs Daniel J. Meger
and Wanda Lou Meger by then and there in the presence and
hearing of a third party, falsely, maliciously and wantonly say-
ing of and concerning Plaintiffs that they were guilty of heinous
sexual abuse of their minor children.
(161) That Defendant R. Kathleen Morris further falsely,
maliciously and wantonly caused said allegations of sexual
abuse to be published in a medium available to the general
public causing severe emotional distress to Plaintiffs Daniel J.
Meger and Wanda Lou Meger and irreprably damaging their
standing in the community.
(17) Further all of the actions alleged herein represent the of-
ficial deliberate policy of the office of County Attorneys and the
County Board.
(18) The aforesaid false imprisonment, confinement, separa-
tion of the family and interference with the family relation were
made under color of the statutes, ordinances, regulations,
customs and usages of the State of Minnesota and deprived
Plaintiffs of their rights, privileges and immunities under the
United States Constitution and laws, specifically including but
not limited to United States Constitution Article XIV, Section
q, in that Plaintiffs have been deprived of their liberty without
due process of law; United States Constitution Article IV, in
that Plaintiffs have been denied their right to be secure in their
persons and home and from having their persons seized without
warrant issued upon probable cause, supported by oath or affir-
mation; and United States Code, Title 92, Section 1983, in that
Plaintiffs have been deprived of their rights, privileges and im-
E-7
munities secured by the United States Constitution and laws by
Defendants acting upon color of Minnesota statutes, or-
dinances, regulations, customs and usage.
(19) The aforesaid actions by Defendants were acts in fur-
therance of a conspiracy. Defendants and specifically R.
Kathleen Morris and her officers and agents were engaged in a
publicity campaign against child abuse and incest. Part of this
campaign involved the invention by Defendant Morris and
others of a ‘‘sex ring’’ in Jordan for sexual abuse of children.
Defendants thus in furtherance of this conspiracy recklessly
sought out Plaintiffs as candidates for prosecution. These
threats of prosecution were thus made without making any ade-
quate substantiated inquiries regarding the welfare of the Plain-
tiffs minor children and without probable cause and in willful
disregard of Plaintiffs rights, privileges and immunities secured
by the United States Constitution and the Law and Constitution
of the State of Minnesota.
(20) The Defendants, by failing to make reasonable inquiries
before removing the minor Plaintiffs herein from the home and
by inducing Plaintiff Wanda Lou Meger to sign a voluntary
placement document under the spector of threatened criminal
prosecution, in addition to being guilty of conspiracy were
grossly negligent. As a result of this gross negligence, and of
other acts and omissions of the other Defendants herein as
previously alleged, Plaintiffs have been greatly damaged, in that
they have suffered great mental duress and anguish, have been
caused to suffer damage to their family relations, have suffered
alienation of affection between parent and child, have suffered
injury to their reputations and have been greatly damaged in
their enjoyment of their home and community and currently
live in a state of fear of reprisal and other unwarranted govern-
mental action by all of the aforesaid Defendants and other of-
ficials of Scott County.
(21) As a further result of their gross negligence the minor
Plaintiffs have been falsely imprisoned and caused to suffer
emotional and psychological harm which has and will continue
to damage their maturation, growth and development.
(22) All of the aforesaid acts, restraints, interferences and
_~<« =-- -—
E-8
false imprisonments were committed with a willful indifference
to the rights of Plaintiffs so as to subject Defendants and each
of them to punitive damages pursuant to the provisions of the
statutes and common law of the United States of America.
(23) Because of the matters set forth in all of the preceding
paragraphs hereof, Plaintiffs have been forced to retain an at-
torney to seek vindication of their rights and to assure them of
the further peaceful enjoyment of their rights as residents of
their community and the State of Minnesota and the United
States. |
WHEREFORE, Plaintiffs demand Judgment of Defendants
and each of them, as follows:
1. For an award of compensatory damages in the amount of
Seven Million Five Hundred Thousand and 00/100’s
($7,500,000.00) Dollars. ?
2. For punitive damages in an amount sufficient to deter
Defendants and others similarly situated, from committing such
acts as are alleged in this Complaint in the future, in an amount
of Fifteen Million and 00/100’s ($15.000,000.00) Dollars.
3. For temporary and permanent injunction enjoining Defen-
dants and each of them, and all other officials of Scott County
from taking any actions in reprisal for Plaintiffs having in-
stituted this action or for any other reason.
4. For such other and further relif as to the Court may deem
just and equitable.
MURPHY, BLANCHAR &
ELLIOTT
/S/Patrick H. Elliott
Patrick H. Elliott
Attorney I.D. No. 134661
Attorney for Plaintiffs
7407 Wayzata Boulevard
Minneapolis, MN 55426-1675
(612) 546-4472
Dated: Jan. 22, 1985
fe eee as bow
Dated: Jan. 22, 1985
E-9
ANTHONY L. NOTERMAN, ESQ.
/S/Anthony L. Noterman
Anthony L. Noterman
Attorney I.D. No. 79984
Attorney for Plaintiffs
P.O. Box 158
Shakopee, MN 55379
(612) 445-3844
¥
i
»
P
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 85-5243
Greg Myers, etc., et al.,
Appellees,
v.
R. Kathleen Morris, Scott
County Attorney,
Appellant.
se ee *
Duane Rank, et al.,
Appellees,
Vv.
R. Kathleen Morris, Scott
County Attorney,
Appellant. Appeals from the United
States District Court for
aw os the District of Minnesota.
Charles Lallak, etc., et al.,
Appellees,
Vs
R. Kathleen Morris, Scott
County Attorney,
Appellant.
** ee *
Donald Buchan, etc., et al.,
Appellees,
Vv.
R. Kathleen Morris, Scott
County Attorney,
Appellant.
** *# * *
Daniel J. Meger, etc., et al.,
Appellees,
v.
R. Kathleen Morris, Scott
County Attorney,
Appellant.
* eek *
Robert Bentz, etc., et al.,
Appellees,
Vv.
R. Kathleen Morris, Scott
County Attorney,
Appellant.
*e ee *
Thomas Brown, et al.,
Appellees,
Vv.
R. Kathleen Morris, Scott
County Attorney
Appellant.
xe * * *
F-3
George B. Gould,
Appellee,
Vv.
R. Kathleen Morris, Scott
County Attorney,
Appellant.
No. 85-5244
Greg Myers, etc., et al.,
Appellees,
Vv.
Norm Pint, et al.,
Appellants.
*ee ee *
Charles Lallak, etc., et al.,
Appellees,
v.
Michael M. Busch, et al.,
Appellants.
“ese &* *
Donald Buchan, etc., et al.,
Appellees,
¥,
Norm Pint, et al.,
Appellants.
*e ee *
Daniel J. Meger, etc., et al.,
Appellees,
v.
Patrick Morgan, et al.,
Appellants.
F-4
*e ee *
Robert Bentz, etc., et al.,
Appellees,
v.
Michael Busch, et al.,
Appellants.
No. 85-5253
Donald Buchan, Cindy
Buchan, individually and as
parents and natural guardians
of Courtney B. Buchan,
Melissa Ellen Buchan, and
William Donald Buchan,
minors,
Appellees,
v.
Scott County, R. Kathleen
Morris, Scott County At-
torney, Scott County Human
Services, Peg Subby, its
Director of Human Services,
Thomas Price, Phipps, Yonas
& Price, P.A., Michaei Shea,
Shea and Associates, Doris
Wilker, Social Worker, Mary
Tafs, Social Worker, Judy
Dean, Social Worker,
Susan DeVries, Psychologist,
Appellants,
and other Employees of Scott
County Human Services
whose names and titles are
unknown, and Douglas Tietz,
Scott County Sheriff, and
F-5
Deputy Sheriffs Norm Pint,
Patrick Morgan, and Michael
Busch.
No. 85-5257
Robert Bentz and Lois Bentz,
individually and as parents
and natural guardians of
Marlin Bentz, William Bentz
and Anthony Bentz, minors,
Appellants,
v.
Scott County, R. Kathleen
Morris, Scott County At-
torney; Margaret Subby,
Scott County Welfare
Department/Director of
Human Services; Doris
Wilker, Social Worker, Scott
County Welfare Department;
Michael Busch, Patrick
Morgan and Norman Pint,
Scott County Deputy
Sheriffs;
Michael Shea, Leslie Faricy,
Appellees,
Michael Shea and Associates;
Earl Barrett; Cindy Christ;
and John Doe and Mary
Roe; and other employees of
Scott County Human Ser-
vices whose names and titles
are unknown.
F-6
No. 85-5261
Greg Myers and Jane Myers,
et al.,
| Appellees,
Vv
Douglas Tietz, Scott County
Sheriff,
Appellant.
*es 2 @
Charies Lallak and Carol
Lallak, et al.,
Appellees,
v
Douglas Tietz, Scott County
Sheriff,
Appellant.
sss @ @
Donald Buchan, Cindy
Buchan, et al.,
Appellees,
v.
Douglas Tietz, Scott County
Sheriff,
Appellant.
No. 85-5336
Robert Bentz, Lois Bentz, in-
dividually and as parents and
natural guardians of Marlin
Bentz, William Bentz and
Anthony Bentz,
Appellants,
¥.
Scott County, R. Kathleen
Morris, Margaret Subby,
Doris Wilker, Paul Thomsen,
Guardian Ad Litem,
Appellees,
Michael Busch, Patrick
Morgan, Norman Pint, Earl
Barrett, Cindy Crist, John
Doe, Mary Roe.
No. 85-5408
Donald Buchan, Cindy
Buchan, individually and as
parents and natural guardians
of Courtney B. Buchan,
Melissa Ellen Buchan and
William Donald Buchan,
minors,
Appellants,
Vv.
Scott County, R. Kathleen
Morris, Scott County At-
torney; Scott County Human
Services, Peg Subby, its
Director of Human Services;
Thomas Price, Phipps, Yonas
& Price, P.A.,
Appellees,,
Michael Shea, Shea and
Associates, Doris Wilker,
Social Worker; Mary Tafs,
Social Worker; Judy Dean,
Social Worker; Susan
|g Fa eA a
F-8
DeVries, Psychologist; other
employees of Scott Human
Services whose names and
titles are unknown, Douglas
Tietz, Sheriff of Scott
County.
No. 85-5409
Greg Myers and Jane Myers,
individually and as parents
and natural guardians of
Andy Myers, Amy Myers and
Brian Myers, minors,
Appellants,
v.
Scott County and R.
Kathleen Morris, Scott Coun-
ty Attorney; Scott County
Human Services and Peg
Subby, its Director of
Human Services;
Thomas Price, and Phipps,
Yonas Price, P.A.,
Appellees,
Paul Thomsen, Guardian Ad
Litem; Doris Wilker, Social
Worker; and other
Employees of Scott County
Human Services whose names
and titles are unknown; and
DOuglas Tietz, Scott County
Sheriff; Deputy Sheriffs
Norm Pint, Patrick Morgan
and Michael Busch and City
County of Jordan Minnesota,
and Alvin Erickson, Jordan
Chief of Police.
F-9
No. 85-5412
Charles Lallak and Carol
Lallak, husband and wife;
and Jeffrey Lallak and Jen-
nifer Lallak, minors, by
Charles Lallak and Carol
Lallak, their parents and
natural guardians,
Appellants,
v.
Scott County; Scott County
Board of Commissioners;
Scott County Attorney’s Of-
fice; R. Kathleen Morris,
Scott County Attorney; Scott
County Sheriff’s Department,
Douglas Tietz, Scott County
Sheriff; Michael M. Busch,
Scott County Deputy Sheriff,
Patrick Morgan, Scott Coun-
ty Deputy Sheriff; David
Einertson, Scott County
Deputy Sheriff; Norman
Pint, Scott County Deputy
Sheriff; Other employees of
Scott County Sheriff’s
Department whose names
and titles are unknown; Scott
County Human Services
Department; Rachel Paff,
Social Worker with Scott
County Human Services
Department; Other employees
of Scott County Human Ser-
vices Department whose
names and titles are
unknown;
F-10
Larry Norring, Officer with
Jordan Police Department,
Thomas L. Price, and
Phipps-Yonas & Price, P.A.,
Appellees.
No. 85-5007
Greg Myers and Jane Myers,
individiually and as parents
and natural guardians of An-
dy Myers, Amy Myers and
Brian Myers, minors,
Appellants,
i
Scott County and R.
Kathleen Morris, Scott Coun-
ty Attorney; Scott County
Human Services and Peg
Subby, its Director of
Human Services; Thomas
Price, and Phipps-Yonas &
Price, P.A.,
Paul Thomsen, Guardian Ad
Litem,
Appellee,
Doris Wilker, Social Worker,
and other employees of Scott
County Human Services
whose names and titles are
unknown; and Douglas Tietz,
Scott County Sheriff, Deputy
Sheriffs Norm Pint, Patrick
Morgan and Michael Busch,
and City County of Jordan,
Minnesota and Alvin
Erickson, Jordan Chief of
Police. Appellants,
F-11
No. 86-5008
Donald Buchan, Cindy
Buchan, individually and as
parents and natural guardians
of Courtney B. Buchan,
Melissa Ellen Buchan and
William Donald Buchan,
minors,
Appellants,
ws
Scott County, R. Kathleen
Morris, Scott County At-
torney; Scott County Human
Services, Peg Subby, its
Director of Human Services;
Thomas Price, Phipps, Yonas
& Price, P.A. Michael Shea,
Shea and Associates,
Diane Johnson, Guardian ad
Litem, John Manahan, Guar-
dian ad witem,
Appellees,
Doris Wilker, Social Worker;
Mary Tafs, Social Worker;
Judy Dean, Social Worker;
Susan DeVries, Psychologist;
other employees of Scott
County Human Services
whose names and titles are
unknown, Douglas Tietz,
Sheriff of Scott County.
No. 86-5076
Coralene Rawson, individual-
ly and as a parent and
F-12
natural guardian of Sarah
Rawson,
Appellant,
wa
Scott County; R. Kathleen
Morris, Scott County At-
torney; Scott County Human
Services and Peg Subby,
Director of Scott County
Human Services;
Diane Johnson, Guardian ad
Litem of Sarah Rawson;
John Manahan; Guardian ad
Litem of Sarah Rawson,
Appellees,
Doris Wilker, Social Worker
for Scott County Human Ser-
vices; Karen Kandig, Social
Worker for Scott County
Human Services, Douglas
Tietz, Scott County Sheriff,
Michael Busch, Scott County
Deputy Sheriff, Hubert H.
Humphrey III, as Minnesota
Attorney General and in-
dividually, Norman Coleman,
as Assistant Minnesota At-
torney General and in-
dividually, Michael Jordan,
as Attorney General and in-
dividually; Charles Balck, as
Assistant Ramsey County At-
torney, and Individually,
Wright Walling, Attorney for
Sarah Rawson and Diane
Johnson, guardians ad
Litem,
Appellee.
AP Se oon tel he Sai ae
F-13
Submitted: May 13, 1986
Filed: February 3, 1987
Before ROSS, Circuit Judge, FLOYD R. GIBBON, Senior Cir-
cuit Judge, and ARNOLD, Circuit Judge.
ROSS, Circuit Judge.
Before us are the consolidated appeals in eight civil rights lawsuits
which grew out of a child sexual abuse investigation in Jordan,
Minnesota, during 1983-84. Thirteen of the fifteen plaintiffs in
these cases were charged by Scott County Attorney, R. Kathleen
Morris, with criminal sexual activity involving one or more minor
children.
The investigation began in September 1983 with the arrest of
James Rud, a person who later entered a plea of guilty to multiple
i counts of child sexual abuse. Thirteen of the plaintiffs in these cases
4 were arrested and charged between January 11, 1984, and June 4,
1984. Where minor children were residing in the home, they were
removed on temporary police holds after a parent’s arrest and
subsequently placed in foster care. The two plaintiffs who were
never charged nevertheless lost temporary custody of their children.
One criminal case involving two of the plaintiffs in these appeals
went to trial, and the County lost. Upon the acquittal of these
plaintiffs, the advice of therapists and guardians that testifying at
additional trials would be against the best interests of the juvenile
. witnesses and the development of an investigation into alleged
homicides, the county attorney dismissed all pending charges
against the plaintiffs and others. The plaintiffs then filed these
civil rights lawsuits against Morris and various other defendants.
eg eee ee
Appealable Orders
The appeals are from a decision by the district court! to deny
\In re Scott County Master Docket, 618 F.Supp. 1534 (D. Minn. 1985), the
Honorable Harry H. MacLaughlin, United States District Judge for the District
of Minnesota.
F-14
certain motions for summary judgment and to grant others. All of
the defendants, including many who are not before us in these
appeals, moved for summary judgment in the district court on the
basis of absolute and qualified immunity from suit and other
grounds. The district court denied the motions submitted by (1)
Scott County Attorney R. Kathleen Morris; (2) Scott County
Sheriff Douglas Tietz; (3) four of the sheriff’s deputies, Michael
Busch, Patrick Morgan, Norm Pint and David Einertson, and (4) a
therapist, Susan DeVries. The district court entered summary judg-
ment in favor of (1) Jordan police officer Larry Norring; (2)
guardians ad litem Diane Johnson, John Manahan and Paul
Thomsen; (3) therapists Thomas Price and Phipps-Yonas & Price,
P.A., Michael Shea, Leslie Faricy and Shea & Associates, PA., and
(4) a court-appointed attorney, Wright Walling.
The orders entering summary judgment in favor of the police
officer, guardians ad litem, certain therapists and a court- ap-
pointed attorney were certified for review under FED. R. CIV. P.
54(b). The appeals by the prosecutor, sheriff, sheriff’s deputies and
a therapist contesting the denial of their motions for summary
judgment are appealable on the basis of the limited exception
created in Mitchell v. Forsyth, 105 S.Ct. 2806, 2815, 2816 (1985),
for denials of motions for summary judgment asserting immunity
defenses. See Wright v. South Arkansas Regional Health Center,
Inc., 800 F.2d 199, 202-03 (8th Cir. 1986); White v. Pierce County,
797 F.2d 812, 814 (9th Cir. 1986).
The Plaintiffs
The plaintiffs in these cases came to the attention of law enforce-
ment personnel in the following sequence of events. On September
26, 1983, Chris Brown? reported to Larry Norring of the Jordan,
Minnesota police department that James Rud, a resident of the
Valley Green trailer park in Jordan, Minnesota, had been sexually
2Christine Brown is not a party to these appeals.
F-15
abusing her daughter, S. Krahl. Then Judy Kath? made a complaint
concerning Rud’s abuse of her daughter, V. Kath. Norring per-
formed a warrantless arrest of Rud on September 26, 1983.
Criminal charges were soon brought, and as the investigation con-
tinued, additional criminal complaints were filed against Rud, ulti-
mately totalling 108 counts of sexual abuse involving many
children. He eventually entered a guilty plea and is serving a term of
imprisonment.
After Rud had been arrested and charged and child victims were
being questioned, other child victims of Rud were identified and
acts of sexual abuse by other adults were described. The magnitude
of the job of questioning Rud victims soon exceeded the capacity of
the small Jordan police department. By October 1, 1983, Jordan
police chief Alvin Erickson requested investigative assistance from
the Minnesota Bureau of Criminal Apprehension (BCA).
Norring and three BCA officers interviewed children until in
early November 1983, the Scott County sheriff’s department en-
tered the investigation and the BCA withdrew. Norring was as-
signed to assist in the investigation, and he maintained investigative
contact with S. Krahl and her brother, J. Krahl, and V. Kath (all
Rud victims). By the end of November 1983, eight persons had been
formally charged including Chris Brown, Judy Kath and Robert
Rawson. (Robert Rawson was implicated by two Rud victims as a
person who had sexually < oused them.)4
In interviews with Larry Norring on January 10 and 11, 1984, S.
Krahl, J. Krahl and V. Kath described acts of sexual abuse by
plaintiffs Tom and Helen Brown. Investigation by law enforcement
personnel into James Rud charges was still in progress as of this
date. Deputy sheriff Michael Busch swore out criminal complaints
incorporating Norring’s report of these interviews, on the basis of
which Busch obtained arrest warrants. Tom and Helen Brown were
arrested on January 11, 1984, by Norring, Busch and deputy sheriff
3Judy Kath is not a party to these appeals.
4Robert Rawson is not a party to these appeals.
F-16
Patrick Morgan. Two minor children, J. Brown and B. Brown,
were removed from the home on January 11, 1984.
In interviews with detectives Busch and Morgan on January 12,
13, and 20, 1984, S. Krahl and J. Brown described acts of abuse by
plaintiffs Robert and Lois Bentz. Morgan swore out criminal com-
plaints on the basis of these statements and obtained arrest war-
rants. Robert and Lois Bentz were arrested on January 20, 1984,
and their three minor children were removed from the home on that
date. The Bentz children were not questioned until after their
parents had been arrested.°
Another Rud victim, K. Fossen, implicated plaintiff Greg Myers
as did J. Brown and B. Brown. These children described acts of
abuse by Myers during interviews on February 6, 1984, with detec-
tives Busch and Morgan. Busch and Morgan performed a warrant-
less arrest of Greg Myers on February 6, 1984, and deputy sheriffs
Norm Pint and David Menden were assigned by deputy sheriff
David Einertson to remove three minor children from the Myers’
home. Busch swore out a criminal complaint against Greg Myers on
February 8, 1984. The two older Myers children were not ques-
tioned until after Greg Myers’ arrest. The youngest, aged two, was
not questioned.
By March 1984, V. Kath (one of the two Rud victims who had
previously described sexual abuse upon themselves by Robert Raw-
son) also stated that Robert Rawson had been abusing his daughter
S. Rawson. On March 22, 1984, detectives Busch and Morgan
removed S. Rawson from her home over the protests of her mother,
plaintiff Coralene Rawson. Within four days a neglect petition was
filed based upon statements by S. Rawson to the sheriff’s deputies
after she had been removed from her home. On March 31, 1984,
’Additional charges were brought against Robert and Lois Bentz on July 23, 1984,
based on interviews with the Bentz children, J. Brown and two victims of James
Rud (S. Krahl and K. Fossen). Deputy sheriff Norman Pint was the complaining
witness, and the criminal complaint incorporated statements by the children
concerning games of nude hide and seek, sodomy, oral sex and sexual acts
involving a cat in which they had been forced by Robert and Lois Bentz to
participate.
F-17
plaintiff Coralene Rawson was arrested and charged with sexually
abusing S. Rawson.
In interviews with detectives Busch and Pint on May 5, 15, and
22, 1984, the two older Myers children implicated plaintiff Jane
Myers (their mother) and plaintiffs Charles and Carol Lallak and
Duane and Dee Rank. On May 23, 1984, Busch swore out criminal
complaints and obtained warrants for the arrest of Jane Myers, the
Lallaks and the Ranks, and, with detective Pint, arrested the Lal-
laks and Ranks. Jane Myers presented herself at the Scott County
jail. The Myers children had previously been removed from the
home upon the arrest of Greg Myers. The Ranks had no minor
children, and the Lallaks’ children had been living with relatives
outside of Jordan since shortly after Greg Myers’ arrest.
Donald and Cindy Buchan had sought examination by a physi-
cian and interviews with deputy sheriffs for their daughter, M.
Buchan, after Greg Myers’ arrest. M. Buchan was a close friend of
the Myers’ daughter, and the Myers had babysat for the Buchan
children. Through May 1984, M. Buchan reported no abuse. On
May 30, 1984, however, Morris was engaged in trial preparation
with the Myers’ daughter, A. Myers. A. Myers stated that M.
Buchan was her friend and that persons who had hurt M. Buchan
were A. Myers’ parents and M. Buchan’s father (but not mother).
Because Donald Buchan was a Scott County deputy sheriff, the
BCA rather than the sheriff’s office investigated. On June 4, 1984,
Special Agent Patrick Shannon of the BCA participated in inter-
views with the two older Myers children and M. Buchan, all of
whom implicated plaintiffs Donald and Cindy Buchan in acts of
sexual abuse. Agent Shannon performed a warrantless arrest of the
Buchans on June 4, 1984, and swore out criminal complaints on
June 6, 1984.° The three minor Buchan children were removed from
home on the day of their parents’ arrest.
By November 1983, the older son of plaintiffs Daniel and Wanda
Meger, and possibly their younger son, had been identified as
victims of James Rud. The children were living at home, receiving
6Agent Shannon is not a party to these appeals.
F-18
counselling by Scott County Human Services personnel and being
questioned by Scott County authorities. On June 5, 1984, the older
child described to detectives Busch and Morgan sexual abuse by
Daniel Meger. Both children subsequently told Busch and Morgan
about acts of anal penetration with fingers and objects and oral
sexual activity performed upon them by both parents. On June 14,
1984, the older child told a physician of sexual abuse by both
parents. In July or August 1984, both children described sexual
abuse by their parents and a grandmother to a private therapist
hired when the parents’ attorney requested assessment by a private
psychologist in lieu of Scott County Human Services personnel.
When her older son’s statements about Daniel Meger were com-
municated to plaintiff Wanda Meger on June 5, 1984, she signed a
document authorizing voluntary placement of the children in foster
care. However, she states that she was pressured and misled into
signing the agreement. The voluntary placement was rescinded in
August 1984, at which time the Scott County Human Services
Department filed a neglect petition. The Megers were never arrested
or charged.
Discovery
After the prosecutor dismissed all outstanding charges, the Min-
nesota Attorney General’s office assumed responsibility both for
any additional criminal proceedings which might develop and for
the pending proceedings in the Scott County Court, Family Divi-
sion [family court]. On behalf of the state, the BCA and FBI
conducted an intensive investigation into why the criminal charges
had been dropped and whether there existed probable cause to
bring additional charges of sexual abuse or homicide. These agents
recommended to the state Attorney General that no credible evi-
dence existed in support of homicide allegations, and insufficient
evidence existed to justify new sexual abuse charges. The Attorney
General issued a report entitled Report on Scott County Investiga-
tions, Hubert H. Humphrey III, Attorney General (Feb. 12, 1985).
In addition, in March 1985, plaintiff Cindy Buchan filed a
te pa ane RA RRS I. oti
AEE APR he 60 ha LON
Gea Wi
F-19
petition with the Governor of Minnesota seeking the removal of R.
Kathleen Morris from office for malfeasance. See Bush v. Perpich,
370 N.W.2d 886, 887 (Minn. 1985). The governor established a
commission which conducted hearings and took testimony, id. at
888, including some from parties to these appeals.
Besides the volumes of testimony and other evidence generated
by these two investigations, substantial discovery occurred in con-
nection with the criminal proceedings, in particular the trial against
Robert and Lois Bentz, and the family court proceedings, in parti-
cular the Myers and Buchan trials in 1984-85.
Beyond the discovery developed in connection with the state
investigations, criminal proceedings and family court matters, the
parties to these civil rights cases submitted affidavits and other
materials to the district court in support of and in opposition to the
defendants’ summary judgment motions. Furthermore, the district
court declined to stay discovery pending the outcome of these
appeals. counsel for the Buchan plaintiffs, for example, has as-
serted in a brief that as of the date when briefs were prepared, “[i]n-
fact, discovery in this case is virtually completed by court order on
February 14, 1986.” Matters developed in discovery which had not
been presented to the district court were discussed in various briefs,
and we issued two orders in April 1986 permitting expansion of the
record before us to include these materials as well as additional
documents in response to the supplemented record.
As the result of all of this discovery, a massive multi- volume fact-
filled record is before us in connection with these appeals. We reject
the plaintiffs’ assertion that we should now ignore this record and
decide these appeals on the basis of the pleadings alone. See, e.zg.,
Kompare v. Stein, 801 F2d 883, 889 (7th Cir. 1986), reasoning that
in determining immunity issues, it is not necessary to accept as true
allegations which are wholly without factual support in a record
which contains, among other items, evidence developed at the civil
rights plaintiffs’ prior criminal trial.
We are aware of our duty to view the facts in the light most
favorable to the non-movant, but only genuine issues of mate-
rial fact can defeat a motion for summary judgment. Mere
allegations are insufficient to raise a genuine issue. The [plain-
F-20
tiffs] argue for an exception to this rule because the district
court limited discovery on the grounds that qualified immu-
nity protects government officials from suit (including discov-
ery), as well as from the payment of monetary damages. The
district court’s limitation of discovery was proper, particularly
because the [plaintiffs] had the opportunity to explore the
facts in the previous criminal proceedings.
Id. at 886 (emphasis in original).
The Challenged Conduct
Although phrased in terms of conspiracy, fraud, malice, coercion
and violation of constitutional rights and state law, the actual
conduct of which the plaintiffs complain amounts to prosecution,
handling of evidentiary material, arrest, interrogation of children
and separation of parents from children. These acts, plaintiffs
assert, caused them to suffer injuries including loss of liberty, loss of
employment, emotional distress, alienation of affection between
parent and child, injury to reputation and other harms.
The plaintiffs allege that the prosecutor abused the power of her
office in the manner in which she initiated or threatened prosecu-
tions, handled evidentiary material and otherwise conducted mat-
ters preliminary to and encompassed within the institution of
criminal charges. The prosecutor is also alleged to have erroneously
advised law enforcement personnel that probable cause existed to
arrest various plaintiffs.
The sheriff’s deputies allegedly arrested plaintiffs without proba-
ble cause and deceived judicial officers as to the reliability of
statements by children on which judicial determinations of proba-
ble cause were based. The sheriff allegedly failed to intercede to
prevent abuses by his deputies an7 the prosecutor.
The prosecutor, sheriff’s deputies, as well as guardians, therapists
and a court-appointed attorney are alleged to have interrogated
children for an improper purpose (conspiring to elicit fabricated
accusations against the plaintiffs) and in an improper manner (using
methods so flawed that they inevitably produced false and fabri-
cated accusations). :
, |
F-21
Various defendants are also alleged to have contributed in one or
more ways to the separation of parents from their children. The
sheriff’s deputies, for example, removed minor children from their
homes on “police holds” pursuant to MINN. STAT. ANN. §
260.165(1)(c)(2) (west 1982) upon the arrest of various plaintiffs.
The prosecutor may have approved the summary removal of
children from the plaintiffs’ custody and certainly approved the
initiation of neglect proceedings in the family court. She also in-
duced one plaintiff to sign a voluntary placement agreement. Cer-
tain therapists advised the family court against visitation between
plaintiffs and children. Guardians allegedly advised in favor of
foster care, recommended against parental visitation and refused to
divulge the location of foster care placements.
We have examined the claims of immunity and other defenses
asserted by each defendant with respect to these acts, and we
conclude that each defendant is entitled to summary judgment for
the reasons set forth below. Accordingly, we affirm in part and
reverse in part and remand for further proceedings consistent with
this opinion.
PROSECUTOR
Initiating Prosecutions and Handling Evidence
All of the plaintiffs have sued Scott County Attorney R.
Kathleen Morris for her role in the initiation of criminal proceed-
ings against them and her handling of evidentiary material. They
allege variously that she filed or threatened to file criminal com-
plaints against them recklessly, maliciously, fraudulently and
without adequate investigation; that she caused the Bentz plaintiffs
to endure a criminal trial; that she resisted certain plaintiffs’ pretrial
release from custody upon reasonable terms; that she entered into a
plea bargain with James Rud which was illegal; that she suborned
perjury of a major prosecution witness (James Rud) in exchange for
plea bargaining concessions; that she made or caused misrepresen-
tations to the court during family court proceedings; that she
caused witnesses to give false and unfavorable testimony; that she
F-22
withheld potentially exculpatory evidence, and that she destroyed
two items of evidence.
Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) established that
a prosecutor is absolutely immune from a suit for damages under 42
U.S.C. § 1983 for alleged civil rights violations committed in “initi-
ating a prosecution and in presenting the State’s case.” These func-
tions, “intimately associated with the judicial phase of the criminal
process,” as opposed to investigative “police work” or administra-
tive duties, must be absolutely shielded in the interests of the office,
the judicial system and society.’
Thus a prosecutor does not, in a civil rights action for damages,
7See Imbler v. Pachtman, 424 U.S. 409, 424-27 (1976):
If a prosecutor had only a qualified immunity, the threat of § 1983 suits
would undermine performance of his duties no Less than would the threat
of common-law suits for malicious prosecution. A prosecutor is duty
bound to exercise his best judgment both in deciding which suits to bring
and in conducting them in court. The public trust of the prosecutor’s office
would suffer if he were constrained in making every decision by the
consequences in terms of his own potential liability in a suit for damages.
Such suits could be expected with some frequency, for a defendant often
will transform his resentment at being prosecuted into the ascription of
improper and malicious actions to the State’s advocate. * * * Further, if the
prosecutor could be made to answer in court each time such a person
charged him with wrongdoing, his energy and attention would be diverted
from the pressing duty of enfercing the criminal law.
The affording of only a qualified immunity to the prosecutor also could
have an adverse effect upon the functioning of the criminal justice system.
Attaining the system’s goal of accurately determining guilt or innocence
requires that both the prosecution and the defense have wide discretion in
the conduct of the trial and the presentation of evidence. The veracity of
witnesses in criminal cases frequently is subject to doubt before and after
they testify * * * . If prosecutors were hampered in exercising their
judgment as to the use of such witnesses by concern about resulting
personal liability, the triers of fact in criminal cases often would be denied
relevarit evidence.
The ultimate fairness of the operation of the system itself could be
weakened by subjecting prosecutors to § 1983 liability. Various post-trial
procedures are available to determine whether an accused has received a
fair trial. * * * [Their] focus should not be blurred by even the subconscious
knowledge that a post-trial decision in favor of the accused might result in
the prosecutor’s being called upon to respond in damages for his error or
mistaken judgment.
F-23
have to defend prosecutorial mistakes if those mistakes occurred in
the performance of a function recognized as inherent in the prose-
cutor’s role as an advocate. Moreover, because the immunity de-
pends not upon the defendant’s status as a prosecutor but upon the
“functional nature of the activities” of which a plaintiff complains,
id. at 430, immunity for performance of inherently prosecutorial
functions is not defeated by allegations of improper motivation
such as malice, vindictiveness or self- interest. See, e.g., Wahl v.
Mclver, 773 F.2d 1169, 1173 (11th Cir. 1985); Lerwill v. Joslin, 712
F.2d 435, 441 (Oth Cir. 1983). Similarly, allegations of abusive,
illegal or unethical conduct must fail if they represent an attempt to
impose damages liability for acts encompassed in the initiation or
conduct of adversarial proceedings by a prosecutor.
Accordingly, the decision to file charges is protected, even in the
face of accusations of: vindictive prosecution, Wahl v. Mclver,
supra, 773 F.2d at 1173; or reckless prosecution without adequate
investigation, id.; Glick v. Koenig, 766 F.2d 265, 269 (7th Cir. 1985);
Henzel v. Gerstein, 608 F.2d 654, 657 (Sth Cir. 1979); or prosecution
without jurisdiction, Wahl v. McIver, supra, 773 F2d at 1173;
Lerwill v. Joslin, supra, 712 F.2d at 438 (even if with malice); or
conspiracy to prosecute for a crime that never occurred, Rachuy v.
Murphy Motor Freight Lines, Inc., 663 F.2d 57, 58 (8th Cir. 1981).
Similarly, threatening criminal prosecution is within the scope of
absolute immunity. Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th
Cir. 1982); Henzel v. Gerstein, supra, 608 F.2d at 657.
Other acts encompassed within the protected function of initiat-
ing a case include instituting the termination of parental rights even
if allegedly without notice to the parent, Martin v. Aubuchon, 623
F.2d 1282, 1285 (8th Cir. 1980); procuring a warrant for the arrest of
a charged defendant, Lerwill v. Joslin, supra, 712 F.2d at 438, and
advocating a particular level of bail, id. at 438, 439. A “prosecutor’s
activities in the plea bargaining context” warrant absolute immu-
nity, Jaylor v. Kavanagh, 640 F.2d 450, 453 (2d Cir. 1981) (despite
alleged misrepresentations). Cf. McGruder v. Necaise, 733 F.2d
1146, 1148 (Sth Cir. 1984) (claim alleging efforts to intimidate a civil
rights plaintiff into dismissing a damages suit in exchange for
F-24
dismissal of criminal charges held barred by absolute immunity -
because “[t]he decision to initiate, maintain, or dismiss criminal
charges is at the core of the prosecutorial function.”).
As for the handling of evidentiary material, allegations that a
prosecutor knowingly offered, used or presented false, misleading
or perjured testimony at trial or before a grand jury do not defeat
absolute prosecutorial immunity, regardless of how reprehensible
such conduct would be if it occurred. Jmbler v. Pachtman, supra,
424 U.S. at 413, 416, 431; Jones v. Shankland, 800 F.2d 77, 80 (6th
Cir. 1986); Morrison v. City of Baton Rouge, 761 F.2d 242, 248 (Sth
Cir. 1985) (even if with malice); Fullman v. Graddick, 739 F.2d 553,
559 (lth Cir. 1984).
The same is true for allegations of withholding or suppressing
exculpatory evidence. Jmbler v. Pachtman, supra, 424 U.S. at 413,
416, 431; White v. Murphy, 789 F.2d 614, 615-16 (8th Cir. 1986)
(conspiracy to conceal an unlawful arrest and suppress favorable
evidence); Campbell v. Maine, 787 F.2d 776, 777-78 (Ist Cir. 1986)
(conspiracy to frame the complainant and failure to disclose ex-
culpatory evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963)); Fullman v. Graddick, supra, 739 F.2d at 559 (conspiracy to
withhold material evidence helpful to the defense); Henzel v. Ger-
stein, supra, 608 F.2d at 657 (suppressing exculpatory evidence).
Forcing a witness to testify and securing the attendance of wit-
nesses “is associated with the judicial process and * * * any claim
against a prosecutor arising from that activity is barred by absolute
immunity.” Hamilton v. Daley, 777 F.2d 1207, 1213 (7th Cir. 1985)
(despite allegations that the prosecutor knew the testimony to be
given would be false). Soliciting and suborning perjured testimony
does not create liability in damages for a prosecutor “acting as an
advocate in a judicial proceeding.” Tylor v. Kavanaugh, Supra 640
F.2d at 452. Accord rachyt V. Murphy Motor Freight Lines, Supra,
617 F.2d 320, 322 (2d Cir.), cert. evidence); Lee v. Willins, 617 F.2d
320, 322 (2d Cir.), cert. denied, 449 U.S. 861 (1980) (subjecting the
complainant to the ordeal of criminal trial by allegedly falsifying
evidence and coercing perjured testimony).
In short, with the possible exception of the alleged destruction of
rab a te
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F-25
evidence, all of the previously enumerated claims against Morris are
barred by absolute prosecutorial immunity, because they represent
an effort to impose liability for her role in initiating adversarial
proceedings and presenting the prosecutor’s case. On the basis of
the foregoing authorities and the reasons for the immunity as
discussed in Jmbler v. Pachtman, supra, 424 U.S. at 424-27, Morris
is entitled to summary judgment as to these claims and allegations.
Destruction of Evidence
As for the two items of evidence which were destroyed, the first
was R. Kathleen Morris’ 1984 appointments calendar.* The calendar
is alleged to have significance with respect to two issues: (1) the
earliest date at which Morris became actively involved in the events
giving rise to these lawsuits and (2) the frequency of her contacts
with children.
The plaintiffs assert that Morris, acting as an investigator, be-
came actively involved in ferreting out candidates for prosecution in
November 1983. They rely on a statement attributed to Jordan
police officer Larry Norring by FBI agent Robert Erwin after an
interview between the two on - December 19, 1984. Norring is _
quoted by Erwin as stating that Morris “got actively involved in the
investigation around November 1983.” In the same report, however,
Norring is quoted as saying that Morris or her staff began inter-
viewing children in the spring (of 1984). Morris identified the date
at which she began interviewing children as February 1984.
Since the calendar was for 1984, it could not have been used to
establish Morris’ activities in November 1983. The calendar there-
fore is without evidentiary significance with respect to the issue of
®Morris contends that the calendar was discarded in a routine fashion in Novem-
ber 1984 when she received her new calendar for 1985 (which included the month
of December 1984). However, on November 20, 1984, the Lallaks served Morris
with a proposed nondestruct order attached to their civil rights complaint. The
order directed preservation of “calendars” among other “documents”. While the
proposed nondestruct order was not signed by a magistrate until December 10,
1984, Morris had been placed on notice that the Lallaks were seeking access to the
calendar.
F-26
whether Morris’ initial involvement began in 1983.
The next issue on which the calendar might have had some
relevance was the frequency of Morris’ contacts with the children
during 1984. The central theory of the plaintiffs’ claims is that the
children were questioned by a great many people including Morris,
law enforcement officers, health professionals and others, all parti-
cipating in a conspiracy to elicit fabricated accusations against the
plaintiffs.
Morris, while denying conspiracy, does not deny that the children
were questioned extensively by many people. Nor does she place
any specific numerical limit or estimate on the number of overall
contacts she had with suspected victims. Thus the calendar, if we
accept the plaintiffs’ characterization of its contents as true, at most
might have served to corroborate the uncontradicted assertion that
Morris frequently interviewed children. We therefore perceive no
constitutional significance in the destruction of the 1984 calendar.
The other item of evidence which Morris is alleged to have
destroyed was a videotape of an interview with the two older Myers
children taped at the St. Lawrence State Park Quarry Camp-
grounds where various children indicated acts of abuse had oc-
curred. There is a conflict in the record concerning whether the tape
contained evidence favorable to the plaintiffs. However, the record
contains four unrebutted affidavits that Morris had nothing to do
with making or destroying the tape.
Detective Pint’s affidavit asserts that on May 22, 1984, he deter-
mined “without any instructions or requests from the county attor-
ney’s office” to videotape an interview at the Quarry Campgrounds
with the two children. He taped the interview in the presence of
detective Busch, guardian ad litem Paul Thomsen and therapist
Tom Price. When he determined that the audio and visual quality of
the tape was too poor for subsequent use, he taped over it on May
29, 1984, in a subsequent visit to the campgrounds without the
children. According to Pint, Morris “did not give [Pint] any instruc-
tions concerning the preservation or erasure of the tape.” Nor to his
knowledge did Morris ever see the tape.
Detective Busch’s affidavit asserts that “Kathleen Morris did not,
: ee a NE ee Oe rE ee ce
F-27
to [Busch’s] knowledge, see the tape and, to [Busch’s] knowledge,
did not order or request that it be erased.” Detective Einertson had
general supervisory authority over detectives Pint, Busch and
Morgan during the investigation. Einertson’s affidavit states that he
never viewed the tape and that he “never received any requests for
such a videotape from Kathleen Morris nor did he ever receive any
instructions from her to destroy or erase such tapes as may have
been made.” Morris states by affidavit that she “at no time viewed
the videotape and did not advise or instruct anyone to erase or
otherwise destroy its contents.”
Plaintiffs point to no evidence at all to the contrary. At this stage
in these proceedings we are searching for genuine issues of material
fact. An unsupported allegation that Morris was responsible for the
tape’s destruction may not proceed to trial on a record which
contains no more than bare allegations that the four affiants testify-
ing to ‘the contrary are lying. Because we find no constitutional
significance in the destruction of the calendar and no support for
Morris’ alleged involvement in the erasure of the videotape, we need
not decide whether we agree with the Seventh Circuit that allega-
tions of destruction of evidence by a prosecutor are barred by
absolute immunity. See Heidelberg v. Hammer, 577 F.2d 429, 432
(7th Cir. 1978).
Arrests
R. Kathleen Morris had no direct role in procuring or executing
arrest warrants or performing warrantless arrests. However, she did
advise officer Norring and deputies Busch, Morgan and Pint that in
her opinion facts related to her constituted probable cause to arrest
and charge the plaintiffs. Her opinions in this respect certainly
contributed causally to the plaintiffs’ arrests. We hold that in
providing advice to law enforcement officials concerning the exist-
ence of probable cause and the prospective legality of arrests,
Morris was functioning in a quasi-judicial capacity as a prosecutor
initiating the formal judicial process. Cf. Henderson v. Lopez, 790
F.2d 44 (7th Cir. 1986) (absolute immunity shields county attorney
F-28
for function of advising county officials of the legality of detaining
the plaintiff in jail). She therefore has ab*=*e immunity from suit
for her performance of this function.
Questioning Children
All of the plaintiffs have sued R. Kathleen Morris for her role in
questioning children. We conclude that she has absolute immunity
for this function in the circumstances of these cases.
Imbler v. Pachtman, supra, 424A U.S. at 431 n.33, recognized that
in some circumstances, obtaining, reviewing and evaluating evi-
dence may serve as a necessary and integral part of the quasi-
judicial functions of initiating a prosecution or presenting the gov-
ernment’s case.
We recognize that the duties of the prosecutor in his role as
advocate for the State involve actions preliminary to the initia-
tion of a prosecution and actions apart from the courtroom.
A prosecuting attorney is required constantly, in the course of
his duty as such, to make decisions on a wide variety of
sensitive issues. These include questions of whether to present
a case to a grand jury, whether to file an information, whether
and when to prosecute, whether to dismiss an indictment
against particular defendants, which witnesses to call, and
what other evidence to present. Preparation, both for the
initiation of the criminal process and for a trial, may require
the obtaining, reviewing, and evaluating of evidence. At some
point, and with respect to some decisions, the prosecutor no
doubt functions as an administrator rather than as an officer
of the court. Drawing a proper line between these functions
may present difficult questions, but this case does not require
us to anticipate them.
(Emphasis added.)
At least six federal circuit courts have recognized that not all
interrogation of witnesses or securing of evidence by other means is
necessarily investigative “police work” when performed by a prose-
cutor. Each of these courts has recognized circumstances in which a
prosecutor’s fact-finding, interrogation or other evidence-gathering
4
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F-29
function was so inherent in the decision whether to initiate a
prosecution or in the preparation necessary to present a case that
absolute immunity was appropriate for that function in those cir-
cumstances.
In Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir. 1979), cert.
denied, 453 U.S. 913 (1981), a decision related to Mitchell v.
Forsyth, supra, the Third Circuit considered evidence- gathering an
advocatory rather than investigative or administrative function to
the extent that securing additional information is essential to facili-
tate the decision whether to initiate prosecution.
We recognize that the decision of the Attorney General, or a
prosecuting attorney, to initiate a prosecution is not made in a
vacuum. On occasion, the securing of additional information
may be necessary before an informed decision can be made.
To grant a prosecuting attorney absolute immunity over his
decision to initiate a prosecution while subjecting him to
liability for securing the information necessary to make that
decision would only foster uninformed decisionmaking and
the potential for needless actions. We believe that the right to
make the decision without being subject to suit must include
some limited right to gather necessary information. At the
same time, we are sensitive to the possibility that this narrow
exception could be distorted to include all of a prosecutor’s
investigative activities. We hold only that to the extent that the
securing of information is necessary to a prosecutor’s decision
to initiate a criminal prosecution, it is encompassed within the
protected, quasi-judicial immunity afforded to the decision
itself.
Id. at 1215 (emphasis added).°
9The Third Circuit remanded the Forsyth case to the district court for the
following determination:.
{I]f the decision to authorize the wiretaps was made by the Attorney
General in an attempt to secure information to determine whether to
initiate a criminal prosecution, then he is entitled to absolute immunity
from suit challenging that decision. Without a statement of the district
court’s analysis, we are unable to determine whether the Attorney General’s
conduct meets that test.
Forsyth v. Kleindienst, 599 F.2d 1203, 1216 (3d Cir. 1979), cert. denied, 453 U.S.
913 (1981). On remand, the Attorney General who had ordered the wiretaps
expressly denied that the surveillance had been intended to facilitate an advoca-
tory decision, as the Supreme Court noted in Mitchell v. Forsyth, 105 S.Ct. 2806,
2810 (1985).
F-30
The plaintiffs’ grievance with respect to Morris’ role in question-
ing children is that she allegedly used the interviews to coerce
perjured statements from young and vulnerable witnesses. The
Ninth, Second and Seventh Circuits have addressed similar claims
concerning prosecutors who allegedly coerced or induced false testi-
mony from witnesses, finding these allegations barred by absolute
immunity. See, e.g., Demery v. Kupperman, 735 F2d 1139 (9th Cir.
1984), cert. denied, 469 U.S. 1127 (1985), concluding that when
conferring with potential witnesses is for the purpose of deciding
whether to file a charge, the interrogation function shares in the
absolute prosecutorial immunity for initiating criminal proceedings.
We think that conferring with potential witnesses for the
purpose of determining whether to initiate proceedings is
plainly a function “intimately associated with the judicial
phase of the criminal process,” * * * and is therefore a quasi-
judicial function “to which the reasons for absolute immunity
apply with full force.”
Id. at 1144 (citation omitted). Accord Lee v. Willins, supra, 617
F.2d at 322, reasoning that the injuries which flow from coercion of
false testimony, i.e., trial and imprisonment, are the same injuries
which result from the decision to prosecute, and Jmbler v. Pach-
tman absolutely shields a prosecutor from having to answer in
damages for injuries flowing from the initiation of criminal pro-
ceedings. See also Heidelberg v. Hammer, supra, S77 F.2d at 432
(“[C]harges that the prosecutors induced witnesses to commit per-
jury are barred by the immunity doctrine.”).
In addition, some investigative case preparation can be regarded
as an integral component of case presentation. In Atkins v. Lan-
ning, 556 F.2d 485 (lOth Cir. 1977), for example, a prosecutor was
engaged in initiating criminal proceedings against a large group of
drug distributors. As part of an ongoing investigation leading to the
identification of additional participants in the scheme, “the district
attorney unfortunately caught appellant in the general dragnet,” id.
at 487. The Tenth Circuit decided that absolute immunity attended
the prosecutor’s acts because the function being performed was
“preparing and presenting a case,” id. at 488.
Some leeway is needed to perform the function of assembling
F-31
the state’s case. * * * While it is true that some investigative
work is necessarily a prerequisite to the preparation of a
prosecuting attorney’s case, this does not automatically change
the nature of his function to resemble that of a police officer.
Id. (citation omitted.) See also Demery v. Kupperman, supra, 735
F.2d at 1144, reasoning that “conferring with potential witnesses
regarding their knowledge of underlying events is plainly part of a
prosecutor’s preparation of his case” and therefore immune. Cf.
Cook v. Houston Post, 616 F.2d 791, 793 (Sth Cir. 1980), with
regard to a prosecutor interviewing witnesses before presenting their
testimony to a grand jury: “Not all of an advocate’s work is done in
the courtroom. For a lawyer to properly try a case, he must confer
with witnesses, and conduct some of his own factual investigation.”
In Morris’ circumstances, all functions of which the plaintiffs
complain post-dated the filing of criminal charges against James
Rud. It soon became clear that Rud had engaged in criminal activity
with others, but the number of culpable persons was not known in
the fall and winter of 1983-84.
As known or suspected victims were interviewed, they described
abuse by other adults and identified other child victims. Some of
the information emerging from these interviews was already known
to law enforcement personnel, and some was new. In part, because
much of the sexual contact described by the children took the form
of “games” involving groups of adults and children, new informa-
tion was revealed along with merely corroborative material in vari-
ous interviews.
In our view, when a victim during questioning regarding a crime
committed by one person indicates that others participated, the
prosecutor’s role in determining the complicity of others is neces-
sary to the function of deciding whether to initiate additional
criminal proceedings. The prosecutor in the Scott County cases had
an ongoing responsibility to evaluate whether probable cause ex-
isted to charge additional persons with the abuse of previously
identified victims (e.g., Browns, Bentzes, Myerses, Rawson, Lal-
laks, Ranks, Buchans, Megers) as well as to determine whether
cause existed to charge previously identified perpetrators with vic-
F-32
timizing additional children (e.g., Rud, Bentzes, Lallaks).
The plaintiffs’ connection with these cases grew out of the James
Rud prosecution in the sense that nine of the plaintiffs, Tom and
Helen Brown, Robert and Lois Bentz, Greg Myers, Daniel and
Wanda Meger and Charles and Carol Lallak, were all incriminated
by Rud victims (among others) in interviews after the initiation of
criminal proceedings against James Rud. Coralene Rawson was
implicated by her daughter who had by then been identified as a
victim of Robert Rawson. Robert Rawson had previously been
arrested as a participant in sexual activities involving James Rud.
After the arrest of Greg Myers (largely on the testimony of a Rud
victim), his children implicated Jane Myers, Duane and Dee Rank
and Donald and Cindy Buchan and added additional incriminating
information regarding Charles and Carol Lallak. Thus only the
prosecution of Jane Myers, the Ranks, and the Buchans lacked a
direct connection to conferences with victims of James Rud.'°
In addition, by May 1984, Morris was preparing for trials ex-
pected to begin in the summer of 1984. She engaged in court
preparation sessions involving the review of witnesses’ statements
and the introduction of various prospective witnesses to the court-
room setting. From a chronological viewpoint, there was no point
between the arrest and filing of charges against James Rud in
September 1983 and the dismissal of charges against the other
\0The impression created by the pleadings is that the goal of the investigation was
to induce children to incriminate their own parents. However, with the exception
of Jane Myers, Coralene Rawson and the Buchans, the plaintiffs were not
arrested on the basis of any information obtained from their own children. The
interviews in which the Myers children and S. Rawson implicated their mothers
occurred well after the arrests of their fathers. (The Myers children were not
interviewed at all until after their father’s arrest.) M. Buchan was questioned by
BCA Agent Shannon only after two of the Myers children had described her as a
victim of their own parents and hers. The Bentz children were not interviewed
until after their parents’ arrest for crimes described by other children. The record
does not indicate when the Brown children were first interviewed, but the arrests
of Tom and Helen Brown were based on statements by other children. The Ranks
had no minor children. The Lallak children resided elsewhere after the arrest of
Greg Myers, and the Lallaks’ arrest had no connection with any interrogation of
their own children. The Megers, who were never arrested, had consented to
interviews when their children were identified as Rud victims by November 1983.
F-33
defendants in October 1984 when Morris was not either deciding
whether to prosecute persons who had been accused or preparing
for trial of persons who had been charged, or both.
In these circumstances, we conclude that Morris is absolutely
immune from having to defend her role in the interviewing of
children. Such involvement as she had in the questioning of children
was an integral part of her advocatory functions, i.e., her ongoing
prosecutorial responsibilities to decide whom to charge and to
prepare for the presentation of her cases.
Separation of Parents From Children
As for the separation of the Brown, Bentz, Myers, Buchan,
Rawson and Meger plaintiffs from their children, a member of
Morris’ staff initiated the neglect proceedings in family court on
behalf of the Scott County Human Services Department. Morris
signed and approved the neglect petitions.
This court has previously held a county attorney absolutely
immune for the function of initiating juvenile dependency and
neglect proceedings. Martin v. Aubuchon, supra, 623 F.2d at 1285.
See also Walden v. Wishengrad, 745 F.2d 149, 152 (2d Cir. 1984)
(attorney for county department of social services has absolute
immunity for the initiation of child protective litigation). Cf. Mazor
v. Shelton, 637 ESupp. 330, 334-35 (N.D. Cal. 1986) (role of social
worker in filing proceedings to protect abused minors is func-
tionally comparable to prosecutor’s initiation of the judicial process,
thus warranting absolute immunity). Morris has absolute immunity
for damage claims arising from this function."!
\'Prior to the filing of neglect petitions, however, Morris may have taken other
steps contributing to the separation of parents and children. As an example, she
may have approved or directed the removai of children from their homes upon
the arrest of one or both parents. In this regard, see the discussion of qualified
immunity for this function infra with respect to the sheriff’s deputies.
F-34
CONSPIRACY
Despite Morris’ absolute immunity for her prosecutorial func-
tions, those who allegedly conspired with her do not share her
immunity. We therefore examine the allegations that the actions of
the other defendants which contributed to the arrest of the plain-
tiffs, accusations against them and separation from their children
were performed not for legitimate purposes but as part of a con-
spiracy to violate the plaintiffs’ civil rights.
The heart of the plaintiffs’ case is their position that the children’s
accounts of sexual abuse were false and the prosecutor, sheriff,
sheriff’s deputies, guardians, therapists, a court-appointed attorney,
and a police officer conspired among themselves and with others'?
to extract fabricated accusations from children in order to target the
plaintiffs for prosecution. The alleged purpose of the conspiracy
was to invent a “sex ring” as part of a publicity campaign against
child abuse and incest undertaken by the conspirators in order to
advance the career of the prosecutor.
In Wright v. South Arkansas Regional Health Center, Inc., su-
pra, 800 F.2d at 202-05, we addressed a claim that for constitu-
tionally impermissible purposes a state employee initiated an
investigation and reported false accusations of crime to criminal
justice authorities. The alleged motive for the investigation and
fabricated accusations in Wright was to retaliate for the plaintiff’s
prior exercise of first amendment rights and to convert the investi-
gative process into a forum for the aggrandizement of the defen-
dant’s career (“* * * to get [the plaintiff] out of his hair and make a
big name for [the defendant],” id. at 204). The actual conduct in
Wright, investigating and reporting criminal activity, if not distorted
by impermissible motives, was lawful, and the defendant of course
denied knowledge or belief that any information he had provided to
authorities was false.
\2Additional alleged conspirators variously include social workers, Scott County
Human Services Department personnel, officials of Jordan, Minnesota, and
others who are not before us in these appeals.
i
4
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R
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F-35
This court therefore had to consider whether an assertion of
qualified immunity could be defeated by the charge that facially
legitimate investigative and reporting functions had in reality been
corrupted into a strategem for the ventilation of false accusations.
In Wright as in the Scott County cases, a record had been created,
and we examined the record for facts and inferences which, viewed
in the plaintiff’s favor, would create a genuine issue of improper
purpose. The same inquiry is appropriate here.
Other than the Lallaks’ claim that officer Norring personally
disliked them and Greg Myers, no motive beyond a collective intent
to advance the prosecutor’s career through publicity is even alleged
in the Scott County cases. There is no inference in the pleadings,
record or even briefs that Morris, the sheriff and his deputies or the
other alleged conspirators (except for Norring) had the slightest
interest in targeting these particular plaintiffs for any personal
motives. Even acquaintance is not alleged except for the previous
working relationship between Donald Buchan and the sheriff’s
department and Norring’s connection with Greg Myers and the
Lallaks. Why this diverse group of personalities and offices should
have cooperated with each other in a scheme to advance R.
Kathleen Morris’ career is clarified nowhere in the pleadings, record
or briefs. Moreover, the record contains evidence wholly inconsis-
tent with this allegation of common purpose. Specifically the record
strongly suggests that the investigative effort was riddled with per-
sonality conflicts and jurisdictional frictions among, for example,
the prosecutor and the sheriff, the sheriff and the Jordan police
chief, and even the sheriff and the BCA.”
As for the guardians, therapists and court-appointed attorney,
13Also inconsistent with the conspiracy claim is the fact that while the plaintiffs
allege a conspiracy among the defendants to extract fabricated accusations from
children, they make no effort to account for similar accusations from noncon-
spirators. Both Daniel and Wanda Meger, for example, reported that their sons
had told them of acts of sexual abuse by Charles and Carol Lallak. Similarly, the
youngest Myers child, a two year old boy, was not questioned. However, an
examination by a pediatrician revealed physical evidence which in the physician’s
opinion was consistent with, although not conclusive evidence of, a history of
anal sexual penetration.
F-36
most of the injuries which these persons allegedly conspired with
others to inflict preceded their employment and any involvement in
these cases. Like the other defendants, these private parties are
alleged to have conspired with Morris and others to arrest the
plaintiffs, separate them from their children and coerce fabricated
accusations, all as part of a conspiracy to invent a sex ring.
However, none of the defendant guardians and therapists in these
appeals (or the attorney for S. Rawson) was employed to assist a
child until after that child had already been removed from home
upon the arrest of one or both parents, and the family court had
determined that a juvenile protection matter existed. Custody of
each such child was by then in the family court, and the child was
living in foster care.
The acts which these persons performed, attending court appear-
ances, making recommendations to the family court, questioning
children about their version of events and reporting statements and
opinions concerning abuse were expressly or implicitly within their
professional duties. The family court expressly authorized the
guardians, for example, to participate in interviews between wards
and law enforcement personnel. The plaintiffs attack various deci-
sions by the guardians, therapists and attorney, for example to
recommend against visitation, as proof of conspiratorial purpose.
In essence, they contend that the performance of their duties by
these professionals was directed and tainted by a conspiratorial
purpose to frame the plaintiffs.
As in Wright, id. at 204, we conclude that the plaintiffs’ asser-
tions of conspiratorial purpose amount to no more than unsup-
ported allegations of malice. See Ashelman v. Pope, 793 F.2d 1072,
1078 (9th Cir. 1986) (“[A]llegations that a conspiracy produced a
certain decision should no more pierce the actor’s immunity than
allegations of bad faith, personal interest or outright malevo-
lence.”). We think that more than-the mere recitation of an im-
proper state of mind such as malice, bad faith, retaliatory motive or
conspiracy is required to defeat qualified immunity for conduct
which, absent that state of mind, would be constitutionally accept-
able or protected by immunity.
F-37
We therefore decide that a conclusory and unsupported allega-
tion of conspiratorial purpose fails to defeat an assertion of quali-
fied immunity by a defendant otherwise entitled to that defense. We
conclude, in addition, that the pleadings and record are deficient to
create a triable issue as to the participation by any of the defendants
in these appeals in a conspiracy to violate the plaintiffs’ civil rights.
Many people believed that children had been abused by the
plaintiffs. Within the realm of their various professional responsibi-
lities, they acted upon that belief. A commonly held belief that a
crime has been committed is not a conspiracy. Various people
engaged in investigating and reporting suspected criminal activity
does not amount to conspiracy. We look for a genuine factual issue
of concerted activity toward an unlawful objective. See Adickes v.
S. H. Kress & Co., 398 U.S. 144, 152 (1970) (to create a genuine
issue Of conspiracy, plaintiffs had to point to at least some facts
which would suggest that the defendants “reached an understand-
ing” to violate their rights). See also Deck v. Leftridge, 771 F.2d
1168, 1170 (8th Cir. 1985) (“allegations of a conspiracy must be
pleaded with sufficient specificity and factual support to suggest a
‘meeting of the minds’ [directed] “toward an unconstitutional ac-
tion * * * .,”) (citations omitted).
We have found inadequate record support to create a genuine
issue of concerted activity directed at a common goal to achieve an
unlawful purpose. Therefore, the pleading deficiencies and lack of
evidence of substance sufficient to create a submissible issue of fact
require the dismissal of the plaintiffs’ conspiracy claims. Next we
examine the defendants’ conduct to determine whether, in the
absence of a conspiracy, the conduct itself violated clearly es-
tablished constitutional norms.
DEPUTY SHERIFFS
Arrests
Detectives Busch, Morgan and Pint are defendants in the Bentz,
Myers, Lallak and Buchan cases. Detectives Busch and Morgan are
F-38
also defendants in the Meger case. Busch was the criminal com-
plainant and an arresting officer in the Myers and Lallak cases.
Morgan was the criminal complainant in the Bentz case and an
arresting officer in the Myers and. Lallak cases. Pint was the
criminal complainant in July 1984 when additional charges were
filed against the Bentz plaintiffs on information received from K.
Fossen, S. Krahl, J. Brown, and the Bentz children. Other than
their role in seeking and performing arrests, the deputies have been
sued for their conduct in interviewing various children and contrib-
uting to the separation of plaintiffs from their children.
The allegations against detectives Busch, Morgan and Pint
amount to the following: (1) that they sought arrest warrants, swore
out criminal complaints and performed arrests without probable
cause, (2) that they deceived the judicial officers who found proba-
ble cause, (3) that they used improper questioning techniques in
interrogating minor witnesses and (4) that they caused the separa-
tion of parents and children. We first address the issues of arrest
without probable cause and deception of judicial officers.
MINN. STAT. ANN. § 609.342(1)(a) (West 1964 and Supp. 1987)
defines as criminal sexual conduct in the first degree “sexual pene-
tration with another [if] the complainant is under 13 years of age
and the actor is more than 36 months older than the complainant.”
Section 609.343(1)(a) defines as criminal sexual contact in the sec-
ond degree “sexual contact with another person [if] the complainant
is under 13 years of age and the actor is more than 36 months older
than the complainant” even if the sexual contact was not coerced.
Section 609.05 imposes criminal liability on one who intentionally
aids, conspires with or procures the other to commit a crime.
Plaintiffs Robert and Lois Bentz, Greg and Jane Myers and Charles
and Carol Lallak assert that the deputies lacked probable cause to
arrest them for commission of these offenses.
Probable cause “is a reasonable ground for belief of guilt.” It
means “less than evidence which would justify *** conviction [but]
more than bare suspicion:”
Probable cause exists where “the facts and circumstances
within their [the officers’] knowledge and of which they had
F-39
reasonably trustworthy information [are] sufficient in them-
selves to warrant a man of reasonable caution in the belief
that” an offense has been or is being committed.
Brinegar v. United States, 338 U.S: 160, 175-76 (1949) (citations
omitted).
In dealing with probable cause, however, as the very name
implies, we deal with probabilities. These are not technical;
they are the factual and practical considerations of everyday
life on which reasonable and prudent men, not legal techni-
cians, act.
Id. at 175. See also Hannah vy. City of Overland, 795 F.2d 1385,
1389 (8th Cir. 1986):
This Court often has addressed the issue of probable cause. We
previously have stated that [ijn determining whether probable cause
exists to make a warrantless arrest, a court will consider whether the
totality of facts based on reasonably trustworthy information
would justify a prudent person in believing the individual arrested
had committed . . . an offense. Probable cause is to be assessed in
terms of the circumstances confronting a reasonably cautious police
officer at the time of the arrest, and the arresting officer is entitled
to consider the circumstances, including arguably innocent conduct,
in light of his training and experience. “[T]he probability, and not a
prima facie showing, of criminal activity is the standard of probable
cause.”
(Citations omitted.)
Plaintiffs assert that the existence of probable cause for their
arrests is a factual determination which should be made in the first
instance by the district court. They contend that the only function
of this court in the context of the present appeals is to determine
whether the fourth amendment right to be free from arrest without
probable cause was clearly established, which of course it was, when
the plaintiffs were arrested. Therefore, plaintiffs reason, because
the right to be free from arrest based on less than probable cause
was clearly established in 1984, these cases should be remanded for
trial on the merits concerning whether probable cause existed in fact
for the arrests.
F-40
We think that this argument misconstrues the nature of the
inquiry we are required to make on appeal from the denial of a
pretrial motion asserting qualified immunity for the function of
procuring and making arrests. The issue for immunity purposes is
not probable cause in fact but “arguable” probable cause. Floyd v.
Farrell, 765 F.2d 1, 5 (st Cir. 1985) (“[S]eeking an arrest warrant is
‘objectively reasonable’ so long as the presence of probable cause is
at least arguable. * * * We think this rule can be extended to
warrantless arrests as well * * * ”).
Malley v. Briggs, 106 S.Ct. 1092 (1986) indicates that an officer
requesting an arrest warrant will be shielded by qualified immunity
for that function unless judged on an objective basis, “no officer of
reasonable competence would have requested the warrant.” Id. at
1099 n.9. “Only where the warrant application is so lacking in
indicia of probable cause as to render official belief in its existence
unreasonable * * * will the shield of immunity be lost.” Jd. at 1098.
Defendants will not be immune if, on an objective basis, it is
obvious that no reasonably competent officer would have
concluded that a warrant should issue; but if officers of
reasonable competence could disagree on this issue, immunity
should be recognized.
Id. at 1096 (emphasis added). We therefore review the information
before the deputy sheriffs when they swore out criminal complaints
and performed arrests to determine whether no reasonably compe-
tent officer would have sought to arrest the Bentz, Myers and
Lallak plaintiffs on the basis of the known facts and circumstances.
Robert and Lois Bentz were arrested on January 20, 1984, on the
basis of accounts by two ten year old children (interviewed sepa-
rately) who had not been in contact with each other for month or
more. The parents of one of the children, neighbors of the Bentz
family, had been arrested nine days previously. Therefore, that child
had not, as alleged, been “isolated and confined” for a prolonged
period in foster care before making the statements which incrimi-
nated the Bentzes. Both children, in accounts that were consistent
with each other and not identical, explicitly described “hide and
seek” games at the Bentz residence in which children were required
to perform and submit to acts of oral sex with Robert and Lois
F-4]
Bentz. Other children previously interviewed had named the Bentz
children as victims of abuse by other adults.
The arrest of Greg Myers was based upon statements provided by
three children. One, a twelve year old girl, had been interviewed
only once before by law enforcement personnel and was living at
home with her parents. She had previously been identified by other
children as a victim of sexual involvement with adults and children.
These circumstances and the absence of any known reason why she
would fabricate accusations against anyone are circumstances re-
counted by detective Busch to establish her reliability. Her mother
was within hearing distance of the interview in which this child
implicated Greg Myers (and others). This child described games of
hide and seek, tag and musical baseball in which sexual activity
between adults and children figured prominently, and she identified
Greg Myers by name and as a policeman with the Jordan police
department.
The other two informants, the nine and ten year old children of
plaintiffs Tom and Helen Brown, described incidents at the Quarry
Campgrounds. The Brown children had been placed in foster care
and were not living in the third child’s neighborhood at the time of
their statements. One of the Browns’ children described an assault
on himself by Greg Myers in Myers’ truck which the child described
as a Chevrolet, 4 X 4 green pickup with a snowplow and camper.
After the warrantless arrest of Greg Myers but before detective
Busch swore out a criminal complaint on February 8, 1984, Myers
admitted being present at the campgrounds in the time frame
described by the Browns’ children and acknowledged the presence
there of the Browns’ children during that period. He also acknowl-
edged that he had driven a green, 4 X 4 Chevrolet pickup truck with
a white camper to the campgrounds.
Jane Myers and Charles and Carol Lallak were arrested on the
basis of statements made by the two older Myers children, then
twelve and five years old, on three occasions in May 1984. They
described incidents at the Quarry Campgrounds where Greg Myers
and three other children had already indicated the presence of the
Myers family during the time frame described. The incidents, some
F-42
involving group kinds of sexual activity, were described with speci-
ficity. In addition, other children had previously implicated the
Lallaks, i.e., a child of Chris Brown and a son of Daniel and
Wanda Meger. Greg Myers had by then failed two polygraph tests
on the issue of sexual contact with children, lending credibility to
the accounts by his own children of sexual abuse by Greg Myers in
conjunction with others.
These accounts were not hearsay or anonymous tips, but were
detailed descriptions of criminal activity by suspected victim-
eyewitnesses whose names and ages were known to the deputies and
were provided to the judicial officers who also found probable
cause. In no case did an arrest occur on the basis of only one child’s
account, although in Minnesota, to support a prosecution for
sexual abuse of a child, the testimony of a juvenile victim need not
be corroborated. See MINN. STAT. ANN. § 609.347(1) (Supp.
1987) in effect in 1984. As for the suggestion that the age and
particular vulnerabilities of young children should render their
statements less credible, we reject the inference that law enforce-
ment personnel are necessarily less entitled to rely on details of
criminal activity described by children than those described by
adults. In light of the facts and circumstances before the deputies,
we conclude that their conduct in seeking and performing the
arrests was objectively reasonable. At the very least, officers of
reasonable competence could have differed as to probable cause.
Malley v. Briggs, supra, 106 S.Ct. at 1096."
Deception of Judicial Officers
The Bentz, Myers and Lailak plaintiffs also contend that detec-
tives Busch, Morgan and Pint perpetrated a fraud upon the judicial
officers who found probable cause to arrest and charge these
plaintiffs. The essence of the alleged deception was the representa-
\4The Ninth Circuit was satisfied that the considerably less substantial informa-
tion available to deputy sheriffs in White v. Pierce County, 797 F.2d 812, 815-16
(9th Cir. 1986) established probable cause to believe that a child had been abused
and could legally be taken into custody.
F-43
tion that the child informants were reliable and their statements
credible.
If the allegations of judicial deception represent an attempt to
hold the officers accountable for some subjective state of mind such
as malice, bad faith or improper motivation, such claims are barred
by qualified immunity if the conduct (procuring and making arre-
sts) was objectively reasonable, as we have held that it was. See
Malley v. Briggs, supra, 106 S.Ct. at 1096: “Under the Harlow
standard * * * an allegation of malice is not sufficient to defeat
immunity if the defendant acted in an objectively reasonable man-
ner.” See also Floyd v. Farrell, supra, 765 F.2d at 6 (evidence that
the true motive for the plaintiff’s arrest was malice, rather than the
arresting officer’s bona fide belief that probable cause existed, is
irrelevant to a qualified immunity defense if, viewed objectively, an
officer in the same circumstances could reasonably have believed he
had probable cause). “The objective focus of the Harlow test
precludes us from undercutting [a] finding of objectively reasonable
belief with inquiries into actual motives or beliefs.” Jd. Accord
Hannah v. City of Overland, supra, 795 F.2d at 1390 (“If there was
probable cause to arrest [plaintiff], based on an objective reason-
ableness standard, the subjective motivations of the arresting police
officers are irrelevant”).
Construed liberally, the allegations of judicial deception may
state a claim that the deputies deliberately or recklessly incorporated
known falsehoods into their reports, criminal complaints and war-
rant applications. If this claim were true, then the deputies’ sworn
representations as to the existence of probable cause would be
perjury or close to it, and perjury is not objectively reasonable
conduct. “Where the judicial finding of probable cause is based
solely on information the officer knew to be false or would have
known was false had he not recklessly disregarded the truth, not
only does the arrest violate the fourth amendment, but the officer
will not be entitled to good faith immunity.” Olson v. Tyler, 771
F.2d 277, 282 (7th Cir. 1985).
However, a substantial preliminary showing of dishonesty is
necessary to obtain even an evidentiary hearing in an attempt to
F-44
impeach a warrant application which on its face reveals probable
cause. “Mere unfounded and unsupported allegations that the war-
rant was not based on probable cause, but rather upon false state-
ments, and deception are not sufficient to subject officials to the
cost and burdens of trial.” Fullman v. Graddick, supra, 739 F.2d at
562. Accord Rodgers v. Lincoln Towing Service, Inc., 771 F.2d 194,
200-01 (7th Cir. 1985) (in the absence of identified facts indicating
that an arresting officer knew his informants were lying, the officer
was entitled to arrest on the basis of statements establishing proba-
ble cause).
In analogous circumstances, the Supreme Court has indicated
that bare allegations of misrepresentation do not suffice to under-
mine the presumption of validity accorded an affidavit supporting a
warrant request. See Franks v. Delaware, 438 U.S. 154, 171 (1978)
(challenge to the veracity of a search warrant affidavit in a criminal
proceeding):.
There is, of course, a presumption of validity with respect to
the affidavit supporting the search warrant. 70 mandate an
evidentiary hearing, the challenger’s attack must be more than
conclusory and must be supported by more than a mere desire
to cross- examine. There must be allegations of deliberate
falsehood or of reckless disregard for the truth, and those
allegations must be accompanied by an offer of proof. They
should point out specifically the portion of the warrant affi-
davit that is claimed to be false; and they should be accompa-
nied by a statement of supporting reasons. Affidavits or sworn
or otherwise reliable statements of witnesses should be
furnished, or their absence satisfactorily explained. Allega-
tions iof negligence or innocent mistake are insufficient. i The
deliberate falsity or reckless disregard whose impeachment is
permitted today is only that of the affiant, not of any nongov-
ernmental informant.
(Emphasis added.) Accord United States v. Garcia, 593 F.2d 77, 79-
80 (8th Cir. 1979).
The plaintiffs have not even approached this standard of specific-
ity. No facts have been recited which would indicate that any of the
deputies actually believed the plaintiffs were innocent or the
children were lying when the deputies acted on the children’s state-
F-45
ments. The complaints contain conclusory assertions of conspiracy,
“confinement” of children and intensive questioning.'’ But plain-
tiffs point to no record evidence which directly or even inferentially
suggests perjury by the deputies whether through fabricating
charges themselves or through vouching for statements which they
had actual knowledge or should have known were false.
If the plaintiffs’ theory is that because of alleged inadequate
investigation or flawed interrogation, the deputies should not have
believed the children’s statements, we reiterate that assertions of
lack of due care will not suffice to undermine the presumptive
validity of a sworn statement submitted to obtain a warrant. Franks
v. Delaware, supra, 438 U.S. at 171. To overcome this presumption
requires no less than a specific affirmative showing of dishonesty by
the applicant. Jd. We are presented with no factual specificity or
record support for the contention that the deputies deliberately
falsified reports or reported falsehoods of which they were or
should have been aware. The Bentz, Myers and Lallak plaintiffs
have failed to make a preliminary showing adequate to overcome
the presumed validity of warrant applications which on their face
contained information that competent officers could reasonably
believe amounted to probable cause. Thus the qualified immunity
to which the deputies are entitled by virtue of Malley v. Briggs,
supra, is not defeated by the plaintiffs’ allegations of judicial
deception.
Questioning Children
We have discussed the absence of support for the contention that
detectives Busch, Morgan and Pint either falsified reports or kno-
wingly incorporated falsehoods into their warrant applications. We
have also noted the absence of any factual specificity or evidentiary
indication of conspiracy involving these officers. The plaintiffs have
alleged, however, that the deputies’ interrogation conduct was so
~
\SThe record reveals that “confinement” of children refers to their placement in
foster care rather than the circumstances in which they were interviewed.
F-46
improper that in essence only fabricated accusations could have
emerged from the interview sessions.
We examine the specific interrogation conduct identified in the
record to determine whether it so exceeded accepted legal norms for
the questioning of witnesses and victims that the interrogating
detectives knew or should have known their conduct would violate
the rights of accused persons. We do not think it sufficient for
purposes of this inquiry to determine only whether fourth, fifth,
sixth and fourteenth amendment rights were clearly established in
1984. Our inquiry is whether from a 1984 perspective the law was
clearly established that the conduct in which the deputies engaged
would violate such rights.'*
When no record has been created, only the pleadings are availa-
ble as a source from which to identify the nature of the allegedly
objectionable conduct. However, as in these cases, once affidavits
and other materials have been added to the pleadings to clarify and
define the nature of the challenged conduct, we do not ignore these
materials. We do construe the facts revealed by these materials and
all reasonable inferences therefrom in favor of the nonmoving
parties when identifying the acts complained of so as to determine
whether acts of these kinds were in violation of constitutional
standards clearly established at the time. Mitchell v. Forsyth, supra,
'6Qualified immunity would be meaningless if it could be defeated merely by the
recitation of some well-recognized right and a conclusory allegation that the
defendant infringed it. To determine a qualified immunity defense, the court must
focus on the specific nature of the conduct complained of and the state of the law
with respect to the identified conduct at the time the official acted. In Mitchell v.
Forsyth, for example, the fourth amendment right to be free from unreasonable
searches was certainly clearly established when the attorney general ordered
wiretaps. What was not clearly established was whether the specific conduct in the
context indicated (warrantless wiretapping for domestic national security pur-
poses) was clearly constitutionally proscribed. See also Davis v. Scherer, 104 S.Ct.
3012, 3022 (1984) (Brennan, J., concurring in part and dissenting in part):
In order to determine whether a defendant has violated a plaintiff’s clearly
established rights, it would seem necessary to make two inquiries * * * : (1)
which particular act or omission of the defendant violated the plaintiff’s
federal rights, and (2) whether governing case or statutory law would have
given a reasonable official cause to know, at the time of the relevant events,
that those acts or omissions violated the plaintiff’s rights.
icant ie
F-47
105 S.Ct. at 2816; Kompare v. Stein, supra, 801 F-2d at 886, 889.
As clarified and given substance by the record, the plaintiffs’
primary objections to the deputies’ interrogation conduct concern
the frequency with which children were questioned and the contin-
ued questioning of some children after they initially denied sexual
abuse. There is evidence that some children who were questioned in
these cases consistently denied having been abused and then later
made accusations. Others initially denied abuse but talked about
“bad secrets” and exhibited fear and sadness when the topic of
sexual activity was introduced. Some children recounted events and
later recanted them. Others who had initially denied abuse later
gave detailed accounts of group “parties” and “games” in which
sexual assaults on children had occurred.
Besides extensive and frequent questioning, the plaintiffs have
adduced evidence that leading questions, photographs of suspects
and information concerning statements by other children were used
in some questioning sessions. There is some evidence that an atmo-
sphere was created in which children were encouraged to make
revelations.
We do not resolve whether any or all of these questioning tech-
niques were used. There is sufficient evidence in the record to create
a triable issue that some or all of this conduct occurred. We address
only whether, if these interviewing techniques were used, it was
clearly established at the time (if even today) that they were in
violation of constitutional standards protecting accused persons
from suggestive or coercive interrogation of witnesses and victims.
We have been furnished with no evidence of any generally ac-
cepted standard concerning how often and in what circumstances a
child who is a suspected victim or who has been identified by others
as a victim of sexual abuse may legitimately be questioned without
compromising his or her effectiveness as a witness and without
conflicting with the rights of any persons subsequently accused by
the child. The uncertainty surrounding acceptable investigative
techniques for suspected child sexual abuse derives in part from the
unique reluctance of victims of this crime to acknowledge that it has
occurred. The record contains materials documenting the reluctance
F-48
of juvenile sexual abuse and incest victims to disclose the expe-
rience.'’ See, e.g., F SINK AND G. GRAEF, In the Courtroom or
the Clinic: Intervention Problems and Solutions with Childhood
Sexual Abuse (paper presented at 62nd Annual Meeting of Ameri-
can Orthopsychiatric Association, April 1985 by Frances Sink,
Ph.D., Harvard Medical School instructor in child development
and psychopathology):
In the clinical setting, a child’s reluctance to disclose sexual
abuse and seek help or redress is viewed as a reaction com-
monly associated with abuse. * * * Children consciously and
unconsciously deny memories of their abuse. In some cases,
the child’s fear of retaliation if they disclose is so strong that
they force themselves to pretend and not let on to anyone that
the abuse occurred, even with direct questioning. Additionally,
the painful feelings associated with the abuse, cannot be toler-
ated by the child and must be repressed along with memories
of the events. * * * When disclosure becomes possible, it takes
place in a partial, halting fashion: approaching the threatening
material and backing away, revealing abuse, then denying it.
This process has been called the “No- Maybe- Sometimes- Yes-
” syndrome.
Id. at 3-5 (emphasis in original). Accord State v. Myers, 359
N.W.2d 604, 610 (Minn. 1984):
If the victim of a burglary failed to report the crime
promptly, a jury would have good reason to doubt that per-
son’s credibility. A young child subjected to sexual abuse,
however, may for some time be either unaware or uncertain of
the criminality of the abuser’s conduct. * * * [U]ncertainty
becomes confusion when an abuser who fulfills a caring-
17The record contains at least one clear example of this problem. In January 1984,
shortly after her parents arrest, B. Brown, then nine years old, adamantly denied
to an examining physician that she had ever experienced sexual abuse by family
members or others. Her brother, age ten, had already reported to the doctor that
an older stepbrother had abused her. When the doctor confronted B. Brown with
her brother’s statement, she still denied the experience. Meanwhile, on the same
day or shortly thereafter, the stepbrother, then eighteen years old, gave detective
Morgan a detailed account of repeated acts of sexual abuse he had performed
upon B. Brown and hef brother. The stepbrother also described warning his
stepsister not to tell. The stepbrother’s account of these events does not appear to
be contested by anyone connected with these cases.
F-49
parenting role in the child’s life tells the child that what seems
wrong to the child is, in fact, all right. Because of the child’s
confusion, shame, guilt, and fear, disclosure of the abuse is
often long delayed.
See also Report on Scott County Investigations, Hubert H. Hum-
This text is long and has been trimmed here. Open the source document for the complete record.
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