Easton v. City of Boulder, Colo.

• Decision Date: 28 October 1985
• Docket Number: No. 83-1970,83-1970
• Citation: 776 F.2d 1441
• Parties: Daniel EASTON, Karl Easton and Jacqualine Easton, Plaintiffs/Appellants, v. The CITY OF BOULDER, COLORADO, David Allen, individually and as police officer, Boulder, Colorado, Ken Sundberg, individually and as police officer, Boulder, Colorado, Defendants/Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1441

776 F.2d 1441

Daniel EASTON, Karl Easton and Jacqualine Easton Plaintiffs/Appellants, v. The CITY OF BOULDER, COLORADO, David Allen, individually and as police officer, Boulder, Colorado, Ken Sundberg, individually and as police officer, Boulder, Colorado Defendants/Appellees.

No. 83-1970.

United States Court of Appeals Tenth Circuit.

Oct. 28, 1985.

David S. Williamson of Newport, R.I. (Bruce P. Shaffer, Boulder, Colo., with him on the brief), for plaintiffs/appellants.

Thomas L. Kanan (Theodore S. Halaby and Leslie L. Schluter with him on the brief) of Halaby & McCrea, Denver, Colo., for defendants/appellees.

Before LOGAN and McWILLIAMS, Circuit Judges, and BOHANON, Senior District Judge. ^*

BOHANON, Senior District Judge.

This appeal is taken by Karl Easton and Jacqualine Easton from the trial court's dismissal before trial of their claims of negligent and intentional infliction of emotional distress. Daniel Easton also appeals the Directed Verdict granted against him by the trial court at the conclusion of the plaintiffs' presentation of evidence at trial. All of appellants' claims stem from the alleged wrongful arrest of Daniel Easton by the individual appellant police officers in 1981. We find that the rationale given by the district court for its decision to direct the verdict against Daniel Easton was suspect, given the current state of the law, but we must on the record before us affirm the result reached. We also affirm the trial court's dismissal of the claims of Karl and Jacqualine Easton.

Facts

On October 19, 1981, the parents of a Boulder, Colorado, boy contacted the Boulder Police Department to report that their son Michael had been sexually molested on the previous day. Police Officer Robert Wands responded to the complaint and interviewed Michael's step-father, Michael (also known as "Mikey"), a five year old playmate of Michael named Damian who had witnessed one of two sexual assaults described by Michael, and Damian's mother. Officer Wands' report states that Michael was four years old; however, it also gives Michael's birthday, December 10, 1977, revealing that Michael actually lacked some two months being four.

Officer Wands' report indicates that Michael's step-father became aware of the incidents in question while preparing Michael for bed on October 18, 1981. Michael was talking about events of the day and related to his father that he had met a man in the apartment complex where he and his parents resided and had gone to the man's apartment where a non-violent sexual assault occurred. Later that afternoon the same man approached Michael and Damian as they were playing on the west side of the apartment complex. At his suggestion the boys followed the man to a laundry room in a nearby apartment complex where the man made a tent out of an old blanket. The man crawled under the tent and had the boys join him, then sexually assaulted Michael again. When Michael's father asked Michael to show him the apartment where the man took Michael, he pointed to apartment No. 218.

When interviewed personally by Officer Wands, Michael's own statements confirmed, with added detail, all the facts related by his father. Wands' separate interview of Damian also corroborated all the facts given by Michael and by his father with respect to the assault Damian witnessed. When asked by Officer Wands to accompany him and show him the man's apartment, Michael again pointed to No. 218. Damian also indicated that apartment No. 218 was the man's residence. Damian and Michael together led Wands to the laundry room where the second assault took place. There Wands found a blanket, which both boys identified as the one the man had used to make a tent, and a black vinyl chair. Upon checking the manager's records on apartment No. 218, Wands found it to be inhabited by Daniel Easton, one of the plaintiffs in the instant action. Wands questioned the apartment manager, obtained a physical description of Easton, and learned that Easton had lived at the complex for four years and was quiet and a loner with few if any friends visiting him at the apartment complex. Wands' report also noted that Easton had "been observed in the past staring at the children playing in the common area of the apartment complex."

After Officer Wands concluded his investigation, there was no further police action in the case until October 26, 1981, when the case was assigned to the defendant appellee Detective David Allen of the Crimes Against Persons Bureau. Detective Allen had had little experience with juveniles and after reviewing Wands' report he decided to wait until the following day, when the defendant appellee Detective Kenneth Sundberg, a juvenile detective, was available to assist in interviewing the children.

Michael was interviewed, in the presence of his stepfather, in their apartment on the morning of October 27. Most of the interview was recorded, and subsequently transcribed. The questions were asked by Detective Sundberg. Michael's responses to Detective Sundberg's questions were somewhat confused and differed in some particulars from the account reported earlier by Officer Wands. The transcript appears to indicate that by the time of the later interview Michael recalled only one encounter with the man, that being the occurrence involving the blanket tent in the laundry room when Michael and the man were accompanied by Damian. This time Michael denied that he had been in the man's "house" (apartment) and also denied that he had previously said he had been in the "house." He did, however, again indicate by pointing that apartment No. 218 was the man's residence. His description of the events in the laundry room was still consistent with the account reported by Wands. Michael described the man as having brown collar length hair, which was consistent with the description of Easton given to Wands by the apartment manager.

At the end of the interview, after the tape recorder was turned off, Michael was sitting on his stepfather's lap when the stepfather noticed a man coming out of his apartment across the complex and asked Michael "Is that the man?" According to Detective Sundberg's testimony at trial "[a]t that point, his son slunk down into his chest and said an audible 'Yes,' and then tucked his head into his father's chest." Detective Sundberg indicated that the way Michael shyed away from Easton when making the identification convinced Sundberg that Michael was not at all confused and that a positive identification had been made.

Subsequently, the detectives approached the man identified by Michael and, without advising him of the nature of their investigation or placing him under arrest, obtained identification establishing that he was Daniel Easton. The detectives then visited the managing office of the apartment complex and obtained a copy of the rental agreement for apartment 218 which corroborated Officer Wands' earlier report that Daniel Easton was the only resident.

Later that same day, Detective Sundberg returned to the apartment complex to interview Damian. The five year old's description of the sexual assault in the laundry room was consistent with all previous accounts. In this interview, however, Damian related that after the laundry room incident the man took the boys to his apartment and showed them around. Damian denied that there was any sexual assault at that time. He confirmed that the apartment he had previously shown Officer Wands was the one where the man who assaulted Michael lived. Damian's physical description of the man was at variance with Michael's in that he said the man's hair color matched his own, which is light brown to blond, and was not like the dark brown hair of another individual who was present at the time of Damian's interview. ¹ Daniel Easton has dark brown hair.

In the late afternoon of the day when Michael and Damian were interviewed, Detective Allen, with Detective Sundberg's assistance, drafted an affidavit for a warrant to arrest Daniel Easton for commission of the crime of sexual assault on a child. Because of this document's importance to our discussion in this case, the affidavit's statement of facts establishing grounds for issuance of an arrest warrant are quoted at length in the margin. ²

It should be noted that the affidavit does not give all the information known to the police at the time it was prepared. Among other items not mentioned were Michael's initial account of a sexual assault in the man's apartment, Michael's repeated identification of apartment No. 218 as belonging to the man and the fact that the apartment manager's records showed Easton rented that apartment. The affidavit also makes no reference to Damian's account of the events in question.

When the affidavit was completed, it was reviewed by Detective Allen's supervisor, Sargeant Hendry, and then by attorney Robert Keatley, the police legal advisor. By then it was after 5:00 p.m. on a Friday evening and the detectives had to take the affidavit to the home of Boulder County Court Judge David Torke to get the warrant issued. Judge Torke took Detective Allen's oath on the affidavit and then, based solely on the facts stated therein, signed the warrant for David Easton's arrest. Detectives Allen and Sundberg arrested Easton at approximately 7:00 p.m. at the Colorado University School of Music, where he was a student. Easton spent the night in the Boulder County jail before being released on bail the following afternoon at his first court appearance. Easton's parents, Karl and Jacqualine Easton, the other two plaintiff/appellants in this matter, attended this court appearance and Daniel lived with them in New York City, subject to bond restrictions, for the following five weeks. At the end of that period, the Boulder District Attorney's Office decided not to file formal charges, and Easton was discharged from his bond obligations.

Thereafter, on May 5, 1982, appellants brought this...