Friday, August 26, 2011Last Update: 2:50 PM PT Cops May Be Liable for Trumped-Up Charges By TIM HULL

(CN) - A firefighter can sue the detectives who falsely accused him of creating two child-pornography websites, the 9th Circuit ruled, finding that the investigators had manufactured probable cause in the absence of real evidence. The federal appeals court in Seattle found that Washington State Police officers Rachel Gardner and John Sager had shown a "reckless disregard for the truth" when they arrested Spokane firefighter Todd Chism in 2008. The detectives never found any child pornography on Chism's computer and could not charge him, but they searched his house and office and detained him briefly based on a trumped-up affidavit, according to the court. Chism and his wife, Nicole, sued Gardner and Sager in Washington's Eastern District for violating their Fourth Amendment rights through judicial deception. U.S. District Judge Lonny Suko found that the investigators had qualified immunity from the suit and granted them summary judgment. The 9th Circuit voted 2-1 on Thursday for reversal. "We conclude that the Chisms have made a substantial showing of the officers' deliberate falsehood or reckless disregard for the truth and have established that, but for the dishonesty, the searches and arrest would not have occurred," Judge Richard Paez wrote for the majority. "We also conclude that the officers are not entitled to qualified immunity because the Chisms' right to not be searched and arrested as a result of judicial deception was clearly established at the time Gardner prepared and submitted her affidavit."

The detectives fixed on Chism in 2007 after receiving two separate tips from National Center for Missing and Exploited Children claiming that Yahoo's web-hosting service had found images of child pornography on two separate websites. Further investigation revealed that Nicole Chism's credit card had been used to pay the hosting fees for the websites, according to the ruling. A Bank of America employee told the detectives that the Chisms had lost a credit card in 2006, but that no fraudulent activity had been reported. Based on this information and little else, the detectives executed warrants to search the Chisms' home in Nine Mile Falls, Wash., in early 2008. They "arrested, detained, and interrogated Todd; they scoured the Chisms' home; and they seized the Chisms' computers. No child pornography was found, and criminal charges were never filed against Todd," according to the ruling. Lacking real probable cause to search and arrest Chism, the detectives resorted to using omissions and false statements to get what they needed, the appellate court found. "When Gardner drafted the affidavit, she possessed no information that Todd had ever accessed any child pornographic images, let alone the particular images that were uploaded to the ... websites," Paez wrote. "Nor did Gardner have any evidence that the images were ever downloaded by anyone. As far as Gardner knew, the only evidence linking Todd to the websites was the fact that the credit card he shared with Nicole was used to pay the hosting fees for the sites. Thus, Gardner's assertion that Todd downloaded images of child pornography was not a truthful representation of the evidence she had gathered." Quoting the confidential informant know as Deep Throat from the film "All the President's Men," Judge Sandra Ikuta argued that the majority needed simply to do what the detectives had done, that is "follow the money." "Despite the fact that this case involved a direct connection between

the Chisms' credit card and two websites populated with child pornography, the majority holds that the evidence was insufficient to support probable cause, and therefore the district court erred in granting summary judgment to the police on the basis of qualified immunity," Ikuta wrote in dissent, adding that "it is reasonable to 'follow the money' from the child pornography website, to the fees paying to host that website, to a credit card owned by the Chisms, to the address for the payee (which is the same address as the website's subscriber), and from there to the Chisms' computer." (Parentheses in original.) A spokeswoman with the Washington Attorney General's Office told the Seattle Post Intelligencer on Thursday that the state would request a review of the ruling before a full panel of the 9th Circuit.