A federal judge has dismissed the city of Spokane and two of its police detectives from a lawsuit brought by a teenage girl who contends she was raped two years ago in a city fire station by an on-duty firefighter.
Senior U.S. District Court Judge Fred Van Sickle granted a motion for summary judgment dismissing the city and its detectives before the case went to a jury trial but left in place remaining damage claims sought by the teenager against fired city firefighter Daniel W. Ross.
The 35-year-old firefighter was fired a month after the February 2006 incident in a northwest Spokane fire station.
The girl, who was 16 at the time of the incident, alleged she was raped. Identified only as “Jane Doe,” she filed the suit seeking $6 million after the city rejected her claim for damages.
Immediately after the incident was reported to police, detectives Neil Gallion and Joe Peterson responded to the fire station and told Ross to delete sexually explicit photos he had taken during the encounter with the girl.
The police officers claimed they were acting in the girl’s best interests, but her attorney argued in the suit that the detectives destroyed evidence.
“While the court finds that Mr. Ross was acting under color of state law at the time of the events giving rise to this lawsuit, the facts do not show, under federal law, that a city policy or custom or the city’s hiring, training or supervision program caused (Jane Doe) to be subjected to an alleged sexual assault,” the judge said in a 29-page ruling dismissing the city from the suit.
Under Washington law, the judge said, the “undisputed facts do not show that the city knew or should have known that Ross would engage in sexual activity at the fire station.”
“Furthermore, while the officers’ order to delete Ross’ digital photographs of Jane Doe may be deemed negligent, the undisputed facts demonstrate that the officers’ conduct was designed to protect (her) based on a mistaken belief of the law at the time,” the judge said.
The ruling leaves in place the plaintiff’s claims against Ross for deprivation of her civil rights, assault and battery, and negligent infliction of emotional distress.
The federal judge dismissed another cause of action, sexual exploitation of a minor, because no criminal charges were filed against Ross by Spokane County Prosecuting Attorney Steve Tucker.
“We are pleased with the outcome,” City Attorney Howard Delaney said in a statement. Some of the legal issues were complex, and the court did an excellent job of analyzing the law and the facts.”
The city was represented by Assistant City Attorney Rocky Treppiedi. He did not provide comment in the city’s statement.
Attorney J. Scott Miller, who represents the plaintiff, said he will ask the court within 10 days to reconsider its dismissal ruling. If that isn’t granted, Miller said, he intends to appeal to the 9th U.S. Circuit Court of Appeals within 30 days.
The appeal, he said, would center on the judge’s ruling that the city was not responsible for the actions of Ross even when he was on duty in a city-owned fire station with other firefighters.
Additionally, Miller said, he would appeal the dismissal of the city for the actions of its detectives who investigated the incident and ordered deletion of the photos, leaving his client without key evidence of wrongdoing by a city employee.
“We will appeal dismissal of the city for the police officers’ decision that they now admit was a crime,” Miller said. “At the time, Detective Gallion thought that mere possession of child pornography wasn’t a crime, that it had to be posted on the Internet. He now knows he was wrong.”
The judge did not dismiss the plaintiff’s civil rights claim against Ross, contending he was “acting under color of law.”
“Based on the facts presented, it is apparent that Ross invoked the powers of his position to promote and carry out the sexual conduct,” the judge said.
In not dismissing Ross from the suit, the judge said the question whether the teenage girl was sexually assaulted at the fire station “is a disputed material issue.” Through his attorney, Ross argued the encounter was consensual.
“It is thus apparent that an issue of fact exists for the jury to decide,” the judge said.
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