Appeals Court Revives School Counselor’s False-Arrest Suit

By Mark Walsh — March 03, 2015 3 min read
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A federal appeals court has reinstated a Kentucky elementary school counselor’s lawsuit alleging wrongful and retaliatory arrest stemming from sexual abuse accusations by one of his students.

The 7-year-old student’s allegations were “improbable” and “facially implausible,” the appeals court held, and thus did not support a finding of probable cause that was the basis for an arrest warrant for the counselor, Richard Wesley, of Covington, Ky.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, unanimously overturned a federal district court’s ruling dismissing the counselor’s lawsuit against the police officer who pursued the charges against him. The appeals court said the police officer omitted information that would have shown the unreliability of the boy’s tale.

The court said Wesley’s lawsuit should proceed to trial.

Based on the story told in the suit, the counselor faced every educator’s worst nightmare. Wesley was the counselor at Sixth District Elementary School in Covington in 2009 when he responded to reports of a disturbance and found a boy identified as J.S. harming himself in a school hallway, court papers say. Wesley brought the boy to his office, which was in the middle of the school’s administrative center in view of several other school staff members.

Wesley counseled J.S. and contacted his mother to get her to take him to a local mental health center. During a car ride to the center, the boy told his mother that Wesley had sexually assaulted him in the school office.

The boy told a social worker, Alison Campbell, that the counselor had touched his private parts over the top of his clothing. At a later interview with the social worker and Joanne Rigney, a Covington police detective, J.S.'s allegations changed to suggest the counselor had anally sodomized him in the office the day of the disturbance, and that Wesley had assaulted him this way multiple times over the past year and had done the same with two other students.

Rigney and Campbell found little to corroborate J.S.'s allegations, other than that the boy was familiar with the interior of Wesley’s office (where he had gone for counseling many times).

The social worker nevertheless found that the boy’s charges had been substantiated, and Rigney sought an arrest warrant for Wesley, which was granted by a state magistrate.

Wesley was arrested, and he was later fired by the Covington school district. The criminal case against him, though, soon fell apart. J.S. and his mother refused to cooperate, and a grand jury declined to indict the counselor.

Wesley sued Rigney, Campbell and other defendants for false arrest and retaliatory arrest. The federal district court dismissed the case on the basis that there was probable cause for the arrest warrant.

The 6th Circuit court disagreed. In its March 2 decision in Wesley v. Campbell, the court said the state magistrate should not have found probable cause to arrest the counselor.

First, it said, “we have expressed serious concern about basing probable cause solely on the uncorroborated allegations of a child.”

J.S.'s allegations were “facially implausible,” the court said, because they involved purported sexual abuse in an office that was in the “well-traveled” administrative hub of the school.

“Rigney was aware (or should have been aware) that Wesley’s office door was open whenever he met with a student and that multiple school staff members had a direct line of sight into Wesley’s office,” the appeals court said. “Taken as true, these facts show that it would have been difficult for the severe sexual abuse J.S. described to continue for so long undetected.”

Furthermore, J.S.'s story was inconsistent and his history of psychological problems made him a less-than-reliable witness. And a medical exam found no signs of sexual assault, the court said.

Wesley’s false-arrest claim against Rigney is based on the detective’s withholding of evidence of J.S.'s unreliability from the state magistrate who issued the arrest warrant.

“If the magistrate who issued the arrest warrant had known that there were, in fact, several apparent reasons to question J.S.'s reliability, precedent would have precluded a finding of probable cause, and the warrant would not have issued,” the court said.

The appellate panel went on to also reinstate a retaliatory arrest claim against Rigney, based on the theory that the arrest of Wesley by the detective was in retaliation for Wesley’s decision to appeal the social worker’s initial finding of substantiated abuse.

So, the case is headed back to a federal district court, where Wesley can pursue his claims.

A version of this news article first appeared in The School Law Blog.