Read more about our law firm’s Pennsylvania sexual assault lawyers.
Yesterday the Third Circuit released a unanimous precedential opinion in Reedy v. Evanson:
While working as a cashier at a convenience store, nineteen-year-old Sara R. Reedy was sexually assaulted and robbed at gunpoint by a serial sex offender. She reported the crime to the police within minutes, subjected herself to a rape kit examination, and gave detailed and consistent statements to law enforcement officers and hospital staff.
However, Detective Frank Evanson of the Cranberry Township, Pennsylvania Police Department, the lead investigator assigned to Reedy’s case, believed that Reedy had fabricated the incident to cover up her own theft of cash from the convenience store. Approximately three months later, Evanson also became the lead investigator on another sexual attack that was substantially similar to the assault on Reedy and that Evanson knew was suspected to be the work of a serial rapist. Six months after the assault on Reedy, Evanson filed a criminal complaint against her, charging her with falsely reporting a crime, theft, and receipt of stolen property. Reedy spent five days in jail. The charges against her were dropped only when the serial rapist was captured and confessed to assaulting her, to committing the theft, and to committing the other sexual assault investigated by Evanson.
As Reedy alleged, after the assault, she immediately called the police, who took her straight to the hospital, where Evanson — who had never met her before — called her a liar, asked her how much “dope” she did each day, accused her of stealing the money, watched her break down crying, and then told her to save it “because tears aren’t going to save you now.”
Three months later, another woman reported an almost identical sexual assault; the perpetrator looked the same, acted the same, and initiated the attack at the same time of night only a mile and a half from Reedy’s attack.
“Sherlock” Evanson didn’t — or chose not to — connect the dots, and three months later sought charges against Reedy, in support of which he filed an affidavit riddled with material omissions and misstatements.
Thus, six months after being sexually assaulted, Reedy was in jail for the crime of truthfully reporting sexual assault. She stayed in jail for five days awaiting a bail reduction hearing, after which she was released, with her trial scheduled for nine months later. Less than a month before her criminal trial was to begin, the serial rapist was caught in the midst of raping a third victim, after which he confessed to all three assaults.
The District Attorney was kind enough to drop the charges against Reedy.
Reedy, unsurprisingly, sued.
Unlawful seizure was her primary claim:
The Fourth Amendment provides that people are “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, … and no Warrants shall issue, but upon probable cause … .” U.S. CONST. amend. IV. It is well-established that the Fourth Amendment “prohibits a police officer from arresting a citizen except upon probable cause.” Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995) (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 169 (1972)).
Probable cause “requires more than mere suspicion[.]” Orsatti, 71 F.3d at 482. However, it does not “require the same type of specific evidence of each element of the offense as would be needed to support a conviction.” Adams v. Williams, 407 U.S. 143, 149 (1972). Rather, “probable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested.” Orsatti, 71 F.3d at 483; see also Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (“Probable cause exists if there is a ‘fair probability’ that the person committed the crime at issue.” (citation omitted).). “Probable cause need only exist as to [one of the] offense[s] that could be charged under the circumstances.” Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994). In analyzing whether probable cause existed for an arrest, we must take a “totality-of-the-circumstances approach.” Illinois v. Gates, 462 U.S. 213, 230 (1983).
The District Court granted summary judgment in Evanson’s favor, inexplicably holding that, even though the affidavit was loaded with material omissions and misstatements, and even though Detective Evanson was plainly reckless in his disregard of exculpatory facts (like the presence of an almost identical crime three months later), there still was probable cause to arrest Reedy.
The Third Circuit’s reversal of the summary judgment — along with their remand ordering the case to go to trial, and not just another round of summary judgment — packs a wallop for future unlawful seizure cases, particularly those involving rape victims:
In general, the District Court committed four types of error. First, it erred in its reconstruction of the Affidavit because it failed to consistently interpret the record in the light most favorable to Reedy and instead, contrary to the summary judgment standard, occasionally adopted interpretations that were the least favorable to Reedy. Second, the Court cited several inculpatory “facts” to support probable cause that were not actually supported by the record. Similarly, not all of Evanson’s arguably reckless omissions were actually included in the Court’s reconstructed Affidavit and analysis. Third, the Court erred in deciding that certain facts were inculpatory when they were either irrelevant or even exculpatory. Finally, the Court erred when it gave little weight to the highly significant exculpatory facts that the Landmark attack, with all of its similarities to the attack on Reedy, occurred before Evanson sought to arrest Reedy and that Evanson was responsible for investigating both attacks.
The Court goes on to describe each in detail.
The first is a powerful reaffirmation of what was already the law, law that has been inconsistently applied: when, at summary judgment in a civil rights lawsuit, a court goes back to look at the affidavit submitted by a police officer in support of an arrest, it must do so in the light most favorable for the plaintiff. It is for the jury, not the Court, to decide which parts of that affidavit were false and what the police officer’s mindset was in submitting them.
The third, however, is perhaps the most interesting. As the Third Circuit noted, “The District Court thought it inculpatory that Reedy had failed to push the panic alarm while a gun was being pointed at her, and that she had declined professional counseling when it was offered to her.” Neither of those two judgments are legal judgments — they’re moral judgments about how a woman “should” act while, and after, she is being raped.
The district court also viewed Ms. Reedy’s “failure” to push the panic alarm while a gun was being held to her head as inconsistent with the behavior of a “genuine” rape victim. See App. 34a n.7, 37a, 38a (drawing negative inferences from Ms. Reedy’s “failure” to press the panic alarm). This inference is based on the assumption that victims should engage in active forms of resistance during their sexual assault. See, e.g., State in the Interest of M.T.S., 609 A.2d 1266, 1277 (N.J. 1992) (discussing assumptions historically made by courts). This is not true. Nor is it legally permissible, Pennsylvania having eliminated the resistance requirement three decades ago. See Act of May 18, 1976, Pub. L. 120, No. 53, §§ 1-2 (codified at 18 Pa. Cons. Stat. § 3107) …
A review of ten years of research on the subject clearly reveals that active forms of physical resistance are used by only a minority of women (20-25%) who are sexually assaulted. Sarah E. Ullman, A 10-Year Update of Review and Critique of Empirical Studies of Rape Avoidance, 34 Crim. Just. & Behav. 411, 413-14 (2007). Physical resistance during a rape is particularly unlikely among women who have been sexually assaulted in the past. Id. This response to sexual assault is both understandable and more than reasonable. …
The district court further buttressed its decision by accepting as inculpatory evidence the fact that Reedy did not access counseling services. See App. 32a, 34a n.7 (drawing negative inferences from Ms. Reedy’s choice to forgo rape crisis counseling). Yet again, the research documents that this behavior is consistent with the behavior of many sexual assault victims. Empirical evidence suggests that a sizeable portion of victims do not access mental health services. See Dean G. Kilpatrick et al., Drug-Facilitated, Incapacitated, and Forcible Rape: A National Study 56 (2007).
The Third Circuit adopted that argument almost entirely:
[T]he District Court’s implication that there is a duty to attend counseling is incorrect. There is no such duty. Moreover, implicit in the Court’s conclusion that an inculpatory inference can be drawn from Reedy’s decision not to attend counseling is a value judgment about how victims ought to respond to trauma. That is a highly debatable judgment, lacking any foundation in the record. Even if there were some basis for saying that refusing counseling is inculpatory, Reedy explained why she did not want counseling, saying that her earlier experience with sexual abuse would allow her to handle the trauma. When confronted, as the District Court evidently believed it was, with two explanations for Reedy’s decision to refuse counseling – either she was lying about the assault or she believed counseling was not necessary – the Court chose to operate on the least favorable interpretation of the evidence. That was error. Likewise, Reedy’s failure to reach for a panic alarm when a gun was pointed at her and she was being sexually assaulted, which are the facts we must accept at this stage, is not in the least inculpatory.
Fact is, none of that is controversial — the International Association Chiefs of Police, for example, has argued for years that there is no “model” or “example” rape victim, no one way in which women deal with the trauma of rape, and so police officers have to evaluate accusations on a case-by-case basis.
Apparently, some police officers and departments still haven’t heard the message.
As they say, money talks. I hope it also teaches.