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28 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

PAUL A. STOOT, SR., and TAMMIE L.

STOOT, husband and wife, and as parents

and guardians of PAUL A. STOOT II; and

PAUL A. STOOT II, a minor child,

Plaintiffs,

v.

CITY OF EVERETT, a municipal

corporation, and OFFICER/DETECTIVE 

JON A. JENSEN, and JANE DOE JENSEN

and the marital community thereof,

Defendants.

Case No. C05-1983TSZ

ORDER

I. INTRODUCTION

This matter comes before the Court on a Motion for Summary Judgment by Defendants

City of Everett and Detective Jon A. Jensen, docket no. 27. The Court has considered the

Defendants’ Motion, the Opposition filed by Plaintiffs Paul A. Stoot, Sr., Tammie L. Stoot, and

Paul A. Stoot II, the Defendants’ Reply, and the supporting exhibits and declarations submitted

by the parties. The Court heard oral argument from the parties on Friday, April 20, 2007, and

now being fully informed enters the following Order.

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28 ORDER - 2

II. BACKGROUND

On December 23, 2003, Ms. Nickey Johnson reported that Paul A. Stoot II (“Paul II”) had

sexually molested her daughter, A.B., in the summer of 2002. Compl., docket no. 8, ¶ 3.3. At

the time of the allegation, Paul II was 13 years old and in the eighth grade. Id. ¶ 3.8. A.B. was

three years old and Paul II was twelve in the summer of 2002 when the alleged molestation

occurred. Id. ¶ 3.3. On December 23, 2003, Ms. Johnson met with Everett Police Officer

Margaret Anders and provided a written statement setting forth the facts of the alleged

molestation. Anders Decl., docket no. 29, Exs. A, B. According to Ms. Johnson’s written

statement, she opened the door to A.B.’s room and saw A.B. with her pants down rubbing her

genitals. Id., Ex. A. A.B. told her mom that the reason she was touching herself was because,

“Paul [II] touched [her] there.” Id. at 1. According to A.B., Paul II had pulled down his pants,

taken out his penis, pulled A.B.’s pants down and rubbed his penis on A.B.’s genital area. Id.

Officer Anders completed a report and provided it to the detectives unit at the Everett Police

Department. Id., Ex. B. That ended Officer Anders’ involvement in this matter.

On December 24, 2003, the file was assigned to defendant Detective Jon Jensen as a

“rape of a child” investigation. Jensen Decl., docket no. 28, Ex. A. At the time of the

assignment, Detective Jensen had been a police officer for approximately 24 years, had been

assigned to the Special Assault Unit for five years, and had undergone approximately 280 hours

of training devoted specifically to child sexual assault and abuse cases. Id. ¶ 2. In addition,

Detective Jensen had undergone 32 hours of training focused specifically on forensic child

interviewing techniques, and had conducted numerous child interviews. Id.

Detective Jensen interviewed Ms. Johnson and A.B. on January 8, 2004. Jensen Decl.,

docket no. 28, Ex. A. Detective Jensen felt that Ms. Johnson had done a reliable and accurate

job of obtaining information from A.B., without “leading” or “planting” a suggested story. Id. ¶

4. Detective Jensen felt A.B. had average to above-average intelligence, and possessed excellent 

verbal and communication skills for a child her age. Id., Ex. A, at 1. Detective Jensen felt A.B.

was telling the truth at all times during the interview, with regard to Paul II’s actions. Id. ¶ 5. 

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1

 In addition, Detective Jensen’s report reflects that A.B. made similar allegations against

another boy named “Preston,” alleging he “puts his poo poo in my pee pee.” See Jensen Decl.,

docket no. 28, Ex. A, at 4. Detective Jensen asked a few additional questions about “Preston,”

but then told A.B. he “wanted to talk more about Paul and not talk about Preston anymore.” See

id., Ex. A, at 4-5.

2

 Paul II’s parents both worked at Greater Trinity Missionary Baptist Church in Everett,

about a block from Voyager Middle School.

ORDER - 3

During the interview, A.B. stated that Paul II put his penis on her privates, told her to “taste” his

penis, and licked her vagina. Id., Ex. A, at 3-4. Detective Jensen states in his declaration that he

did not introduce Paul II’s name into the conversation, id. ¶ 5, and notes that A.B. identified

other members of the Stoot family, which made Detective Jensen believe she understood she

was referring to Paul II as the alleged suspect. Id. A.B. also stated that she licked Paul II’s

penis and he licked her bottom. Id., Ex. A, at 6.1

Before having any contact with Paul II, Detective Jensen spoke with Snohomish County

prosecutors regarding interviews with juvenile suspects age 12 or older. From his conversations

with prosecutors, Detective Jensen concluded that an interview with Paul II, without parental

notification, was acceptable so long as he (1) treated a request for a parent the same as a request

for counsel; and (2) gave a Miranda warning and had the juvenile sign the waiver form. Id. ¶ 6. 

On January 15, 2004, Detective Jensen contacted Voyager Middle School, where Paul II

was a student. Id., Ex. A, at 7. Detective Jensen told Bry Nelson, the Principal at Voyager

Middle School, that he was coming to the school to interview Paul II. Id. He told Ms. Nelson

not to contact Paul II’s parents, and that he would contact them after the interview.2

 See id.

Paul II arrived at Principal Nelson’s office, and Detective Jensen introduced himself and

directed Paul II to sit at a table. See id. Detective Jensen gave Paul II the Everett Police

Department Constitutional Rights form, and read him the Miranda warning. Id., Ex. B. Paul II

signed the waiver. Detective Jensen further recalls that he saw Paul II’s name on a list of honor

roll students in the Principal’s office, but his recollection of the timing of this event lacks

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3

 Detective Jensen’s prior testimony in a hearing in the criminal proceedings against Paul

II directly contradicts his sworn declaration:

Q. At some point, did you determine how well Paul Stoot Jr. was doing in

school?

A. Yes. During the point when he was writing his statement, I was walking

around the principal’s office and his name was listed on an honor role [sic]

in his office.

Andrews Decl., docket no. 43, Ex. 9B (Testimony of Detective Jonathan Jensen). Detective

Jensen’s sworn declaration recollects a different version of these facts.

When I entered Principal Bry Nelson’s office before interviewing Paul II, I

noticed a list on the wall indicating that Paul II was on the current honor

roll. This suggested to me that Paul II would be capable of understanding

the Miranda warnings and of making a voluntary and knowing waiver of his

rights if he chose to do so.

Jensen Decl., docket no. 28, ¶ 7.

ORDER - 4

credibility.3

Detective Jensen contends that during the interview he never yelled at Paul II or used his

physical presence to intentionally intimidate him. Jensen Decl., docket no. 28, ¶ 9. Detective

Jensen recalls that Paul II was calm and never cried during an interview that lasted for close to

two hours. Id. Detective Jensen also notes that Paul II never indicated a desire to speak with his

parents or an attorney. Id. Paul II recalls thinking he had to “just . . . sit there and do what he

said,” the “door being closed and the blinds being closed,” and “two hours [that] seemed to last

forever, with no bathroom, no break, or even a drink of water.” See Paul II Decl., docket no. 37,

at 3. Paul II did not understand that he could stop the interview, did not understand that he

could have his parents with him, and did not understand that he could have an attorney with him. 

See Andrews Decl., docket no. 43, Ex. 9-D, at 134.

Detective Jensen asked Paul II about A.B.’s allegations: he asked if Paul II touched her

with his penis, licked her vagina, or put his penis in her mouth. Jensen Decl., docket no. 28, Ex.

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28 ORDER - 5

A at 8. Paul II denied sexual contact with A.B. Id. ¶ 9. Detective Jensen utilized an interview

technique of “blaming the victim” for the inappropriate activity, assuring Paul II that A.B.

“probably initiated the contact and it was most likely her fault.” Id. Paul II eventually admitted

during the course of the two hour interview that he had engaged in sexual contact with A.B. Id.

Detective Jensen alleges he did not make any promises to Paul II. Id. Paul II remembers being

promised that charges would not be pressed if he admitted to the contact, and that he would only

have to see a counselor. See Andrews Decl., docket no. 43, Ex. 9-D, at 135. 

After Paul II’s admission of sexual contact, Detective Jensen asked him to write down his

version of events, which he did. Jensen Decl., docket no. 28, Ex. A, at 11. The written

statement admitted that Paul II “rubbed on [A.B.’s] vagina 2 times with clothes on then one time

for a couple of second [sic] with clothes off.” Id., Ex. C. Paul II did not sign the statement. Id.

Detective Jensen subsequently contacted Paul II’s mother and notified her that he had taken a

written statement from Paul II. Id., Ex. A, at 11.

On July 2, 2004, Snohomish County Deputy Prosecuting Attorney John E. Stansell filed

an Affidavit of Probable Cause in the Superior Court of the State of Washington in and for

Snohomish County, Juvenile Division. Christie Decl., Ex. A. Prosecuting Attorney Janice Ellis

charged Paul II with Child Molestation in the First Degree. Id., Ex. B. Thereafter, Paul II

underwent a psychological evaluation. Judge Ronald Castleberry subsequently granted Paul II’s

Motion to Suppress his confession on the basis of the Court’s finding that Paul II was

“susceptible to being manipulated and would not be the type that would question authority

figures.” Id., Ex. C. Judge Castleberry also found that Paul II “did not make a knowing and

intelligent waiver of his Miranda rights.” Id. Paul II’s written statement was inadmissible, and

his oral statements were suppressed. During the subsequent criminal trial in December 2004,

Judge Thomas J. Wynne ruled that A.B. lacked the mental capacity and memory to retain an

independent recollection of the alleged 2002 molestations. Christie Decl., docket no. 30, Ex. D. 

Accordingly, the Court ruled that A.B. would not be permitted to testify at trial. Id. As a result,

the charges against Paul II were dismissed with prejudice on January 7, 2005.

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28 ORDER - 6

Plaintiffs assert causes of action for violation of Paul II’s Fourth, Fifth, Sixth and

Fourteenth Amendment rights under 42 U.S.C. § 1983. Plaintiffs also bring a state law claim for

intentional infliction of emotional distress. The City of Everett and Detective Jensen move for

summary judgment on all claims.

III. DISCUSSION

Summary judgment is appropriate where there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving

party bears the initial burden of demonstrating the absence of a genuine issue of material fact. 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden,

the opposing party must show that there is a genuine issue of fact for trial. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must present

significant and probative evidence to support its claim or defense. Intel Corp. v. Hartford

Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). 

In order to defeat a motion for summary judgment, the non-moving party must make more

than conclusory allegations, speculations, or argumentative assertions that material facts are in

dispute. Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994). In ruling on a motion for

summary judgment, the Court may only consider evidence that would be admissible at trial, and

may not consider inadmissible hearsay. Key Bank of Puget Sound v. Alaskan Harvester, 738 F.

Supp. 398, 401 (W.D. Wash. 1989).

For purposes of this motion for summary judgment, reasonable doubts as to the existence

of material facts are resolved against the moving party and inferences are drawn in the light most

favorable to the opposing party. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.

2000). However, if no factual showing is made in opposition to a motion for summary

judgment, the district court is not required to search the record sua sponte for some genuine

issue of material fact. See Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1029

(9th Cir. 2001) (“The district court may limit its review to the documents submitted for the

purposes of summary judgment and those parts of the record specifically referenced therein.”)

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28 ORDER - 7

(emphasis added).

A. 42 U.S.C. § 1983 – Detective Jensen

Personal liability under 42 U.S.C. § 1983 may follow individual involvement in

unconstitutional conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified

immunity, however, provides broad protection to government officials, and safeguards “all but

the plainly incompetent or those who knowingly violate the law . . . .” Malley v. Briggs, 475

U.S. 335, 341 (1986); see also Saucier v. Katz, 533 U.S. 194, 205 (2001). Detective Jensen

contends he is entitled to qualified immunity from suit. 

The Ninth Circuit follows a two-step inquiry in considering qualified immunity. The

Court must first determine if the evidence, taken in the light most favorable to the plaintiff,

shows that a constitutional violation occurred. Kennedy v. City of Ridgefield, 411 F.3d 1134,

1141 (9th Cir. 2005). If a constitutional violation occurred, the Court must determine whether

the law underlying the constitutional violation was “clearly established” at the time of the

violation. Id. In this second step, the Court decides if the individual made a reasonable mistake

about what the law requires. Id. at 1142.

1. Fifth Amendment

Plaintiffs assert that Detective Jensen violated Paul II’s Fifth Amendment rights through a

coercive interrogation in disregard of Paul II’s right against self-incrimination. Plaintiffs allege

that Paul II was not allowed to leave the principal’s office, and did not knowingly waive his

Miranda rights. Plaintiffs allege that Paul II failed to understand his right to remain silent, did

not understand his right to counsel, and was coerced into a confession through improper

questioning. In support of this argument, Plaintiffs submit the testimony of Drs. Whitehill and

Robinson, who opine that Paul II’s “confession” looked like a classic coerced and fabricated

confession. See Andrews Decl., docket nos. 42, 43, Exs. 9A, 9B.

In the state proceedings, Judge Castleberry concluded that “[a]t the time of the signing, it

would have appeared to Detective Jensen,” but that Paul II “lacked the capacity to understand

his rights” and “could not make an intelligent or knowing waiver of his rights.” Andrews Decl.,

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28 ORDER - 8

docket no. 30, Ex. 1 (Findings & Order on CrR 3.5 Hearing) at 2. Judge Castleberry concluded

that Paul II’s confession was the “product of impermissible coercion,” and suppressed the

confession. Id., Ex. 1 at 2-3. Defendants argue that even if Paul II’s Miranda rights were

violated during his interrogation in the principal’s office, there is no cognizable remedy under §

1983 because the failure to give an effective Miranda warning does not give rise to a Fifth

Amendment cause of action under § 1983. Plaintiffs contend that Paul II’s Fifth Amendment

rights were violated because his confession was coerced by Detective Jensen. Defendants note

that Detective Jensen read Paul II his Miranda warning, and that Paul II signed a waiver form. 

See Jensen Decl., docket no. 28, ¶ 7.

In Chavez v. Martinez, 538 U.S. 760 (2003), the Supreme Court overruled a line of cases

that held a violation of Fifth Amendment rights as a result of a coercive interrogation would

support a § 1983 action, even where the coerced statements were never used in a criminal

proceeding. The Supreme Court rejected the view that the Fifth Amendment was offended by

“coercive interrogation practices that are destructive of human dignity,” Martinez v. City of

Oxnard, 270 F.3d 852, 857 (9th Cir. 2001); the Court concluded that a § 1983 claim for a Fifth

Amendment violation required the use of the coerced statements in a “criminal case.” Chavez,

538 U.S. at 765. The Supreme Court declined to define “criminal case,” as used in the Fifth

Amendment:

In our view, a “criminal case” at the very least requires the initiation of legal proceedings. 

. . . We need not decide today the precise moment when a “criminal case” commences; it

is enough to say that police questioning does not constitute a “case” any more than a

private investigator’s precomplaint activities constitute a “civil case.” 

Id. at 766-67. Thus, “the act of coercing a statement from a suspect, in and of itself, is not an act

in violation of the Fifth Amendment self-incrimination clause upon which a § 1983 claim may

be predicated.” Crowe v. County of San Diego, 303 F. Supp. 2d 1050, 1087 (S.D. Cal. 2004). 

To the extent Paul II alleges a Fifth Amendment violation as the basis for his § 1983 claim, the

statements from his coerced confession must have been used against him in a “criminal case.”

The parties dispute whether Paul II’s statements were used against him in a “criminal

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28 ORDER - 9

case.” Criminal charges against Paul II were based on his confession to Detective Jensen, and

the statements of the alleged victim, A.B. However, Paul II’s confession was suppressed and

was not used against him at trial.

The analysis of the plurality in Chavez strongly suggests that the Fifth Amendment

privilege is a “trial right.” See id. at 767 (citing United States v. Verdugo-Urquidez, 494 U.S.

259, 264 (1990) (“The privilege against self-incrimination guaranteed by the Fifth Amendment

is a fundamental trial right of criminal defendants. Although conduct by law enforcement

officials prior to trial may ultimately impair that right, a constitutional violation occurs only at

trial” (emphases added; citations omitted)); see also Withrow v. Williams, 507 U.S. 680, 692

(1993) (describing Fifth Amendment as a “‘trial right’”)). Based on this analysis, the district

court in Crowe found that “criminal case,” as used in the Fifth Amendment, necessarily was

limited to a “criminal trial,” or “a proceeding at which a defendant’s guilt is determined.” 303 F.

Supp. 2d at 1091. Crowe rejected the notion that use of coerced statements in grand jury

proceedings, or at a hearing to determine whether the boys should be tried in adult rather than

juvenile court, constituted use in a “criminal case.” Id. at 1088.

In this case, Judge Castleberry held a hearing pursuant to Washington’s Criminal Rule

3.5 (the “CrR 3.5 hearing”), for the purpose of determining the admissibility of Paul II’s

confession. Andrews Decl., docket no. 42, Ex. 9 (Transcript of Proceedings). Detective Jensen,

Paul II, and various experts testified regarding Paul II’s understanding of his waiver of rights, at

the time of his confession. See Andrews Decl., docket no. 33, Ex. 1 (Findings and Order on

CrR 3.5 Hearing). Judge Castleberry concluded the statements were the “product of

impermissible coercion,” and suppressed all statements by Paul II. Id. Plaintiff argues that Paul

II was compelled to be a witness against himself, in a criminal case, because he was faced with

his own confession at the CrR 3.5 hearing. However, like the pretrial hearing and grand jury

proceedings in Crowe, Paul II was not forced to confront his coerced statements in a criminal

proceeding where his guilt would be determined. Rather, the pretrial CrR 3.5 hearing merely

determined the admissibility of the statements in future proceedings. 

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 Even if the Court were to find that Paul II’s Fifth Amendment rights were violated, the

Court would find that the violation of his rights was not clearly established in light of Chavez. 

Our views on the proper scope of the Fifth Amendment’s Self-Incrimination

Clause do not mean that police torture or other abuse that results in a confession is

constitutionally permissible so long as the statements are not used at trial; it simply

means that the Fourteenth Amendment’s Due Process Clause, rather than the Fifth

Amendment’s Self-Incrimination Clause, would govern the inquiry in those cases

and provide relief in appropriate circumstances.

Chavez, 538 U.S. at 773. A Fifth Amendment violation for a coercive interrogation was

not clearly established where Detective Jensen provided Paul II with a Miranda warning,

and could reasonably have believed that Paul II understood his rights. Andrews Decl.,

docket no. 30, Ex. 1 (Findings & Order on CrR 3.5 Hearing) at 2. Accordingly, even if

Detective Jensen made a mistake as to what the law required, Detective Jensen is entitled

to qualified immunity from suit for claims regarding his violation of Paul II’s Fifth

Amendment rights.

ORDER - 10

The fact that the hearing could have ultimately led to Paul II’s confronting his own

incriminating statements at trial, in violation of the Fifth Amendment, does not itself effect a

constitutional violation. See Verdugo-Urquidez, 494 U.S. at 264 (“Although conduct by law

enforcement officials prior to trial may ultimately impair that right, a constitutional violation

occurs only at trial . . .”). The CrR 3.5 hearing is not unlike the 707 hearing considered in

Crowe: the guilt of the defendant was ultimately not at issue. The Court finds “criminal case,”

as used in Chavez, means “criminal trial,” a proceeding at which a defendant’s guilt is

determined. Accordingly, Paul II has failed to make out a cognizable § 1983 claim for violation

of his Fifth Amendment privilege against compelled self-incrimination, and Defendants are

entitled to summary judgment on this claim.4

2. Sixth Amendment Rights

The Complaint alleges that Paul II was deprived of his right to counsel. Compl., docket

no. 8, ¶ 4.2(d). The Defendants interpret this as a § 1983 claim pursuant to the Sixth

Amendment right to counsel, which attaches only after an adversarial proceeding is commenced. 

See Massiah v. United States, 377 U.S. 201, 206 (1964). Defendants move for summary

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28 ORDER - 11

judgment on the grounds that no criminal proceedings were brought at the time of the interview. 

Plaintiffs do not respond. The Court finds no violation of Paul II’s Sixth Amendment rights. 

Defendants are entitled to summary judgment on this claim.

3. Fourth Amendment Rights

Plaintiffs also assert that Detective Jensen violated Paul II’s Fourth Amendment rights

because he “lacked probable cause to arrest or custodially interrogate Paul II at his school . . . .”

See Response, docket no. 32, at 15. Plaintiffs assert that any detention of Paul II was in

violation of his Fourth Amendment rights. Defendants counter that the questioning of Paul II at

his school was not a custodial interrogation or arrest, and that any arrest was supported by

probable cause.

(a) Custodial interrogation.

Plaintiffs Fourth Amendment claims are based on the presumption that Paul II was

“arrest[ed] or custodially interrogat[ed] . . . at his school.” If Paul II’s questioning at the school

was not custodial, Plaintiffs’ § 1983 claim for a violation of Fourth Amendment rights cannot

stand. Defendants argue that Paul II was not under arrest or in custody during his questioning at

the school. The Defendants contend there is no evidence Paul II was threatened if he refused to

speak with Detective Jensen, no evidence Paul II asked to leave, and no evidence that Detective

Jensen refused to let him leave. 

In determining whether an individual was in custody, “the ultimate inquiry is simply

whether there [was] a ‘formal arrest or restraint on freedom of movement’ of the degree

associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting

Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). “[T]he initial determination of custody

depends on the objective circumstances of the interrogation, not on the subjective views

harbored by either the interrogating officers or the person being questioned.” Stansbury v.

California, 511 U.S. 318, 323 (1994). The Court considers “how a reasonable man in the

suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420,

442 (1984).

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28 ORDER - 12

Detective Jensen explained to Paul II that he was “required” to read Miranda rights before

he could talk to him. Jensen Decl., docket no. 28, Ex. A, at 13. This could have led a

reasonable student to believe he was in custody or under arrest. Indeed, Paul II states in his

declaration that he “thought [he] just had to sit there and do what [Detective Jensen] said.” Paul

II Decl., docket no. 37, at 3. Moreover, Detective Jensen understood from his discussions with

prosecuting attorney John Stansell that Miranda warnings were required “since the interview

was to take place at a school where the child was not free to leave.” Jensen Decl., docket no.

28, ¶ 6. Taking every inference in favor of the non-moving party, the Court must conclude that

Paul II’s questioning was custodial. See, e.g., State v. D.R., 84 Wn.App. 832, 838, review

denied, 132 Wn.2d 1015 (1997) (holding D.R. was in custody when questioned by a detective,

in the principal’s office, at his school because the detective did not inform him he was free to

leave, D.R. was only 14-years-old, the principal’s office is a naturally coercive environment for

children of his age, and the interrogation was accusatory in nature).

(b) Probable cause.

The Defendants argue that even if Paul II’s interrogation was custodial, it was not

improper because there was probable cause to believe Paul II committed a crime. See Tennessee

v. Garner, 471 U.S. 1, 8 (1985). Probable cause exists where, “under the totality of

circumstances known to the arresting officers, a prudent person would have concluded that there

was a fair probability that [the defendant] had committed a crime.” United States v. Potter, 895

F.2d 1231, 1233-34 (9th Cir. 1990). 

Defendants claim that Detective Jensen had probable cause because the conduct alleged

by A.B. and her mother met the definition of child molestation in the first degree and because

Detective Jensen was acting pursuant to A.B.’s claim that Paul II touched her vagina. Plaintiffs

argue that Detective Jensen’s investigation was based only on mere suspicion after the “confused

statement” of a “very young girl.” Plaintiffs cite to numerous deficiencies in Detective Jensen’s

interview of A.B., including the questions he asked and the answers given by A.B. Detective

Jensen contends that the hearsay statements of A.B. to her mother and his own interview of A.B.

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establish probable cause.

On December 19, 2003, A.B.’s mother walked into the room where A.B. was playing and

“she had her pants down and was touching her self (sic).” Anders Decl., docket no. 29, Ex. B

(Johnson Statement) at 1. A.B.’s mother questioned her about what she had been doing.

[A.B.] said [Paul] pulled down his pants & pulled his little thing out & pulled her

pants down & put it on her. I asked did it hurt she said no. I said did it go inside?

she said no? I asked where the pastor was she said not @ home and tammie the

(mom) was @ the church. Annessa the 16 year old daughter was down stairs and

[A.B.] and Paul were in the room.

* * *

I said did he say anything when he did this? she said don’t tell people or mommy?

Id., Ex. B at 1-2. On December 23, 2003, Everett police officer Margaret Anders spoke with

A.B.’s mother. Officer Anders made an initial report which recounted the statements by A.B. to

her mother, which was forwarded to Detective Jensen. Id., Ex. B at 3.

Detective Jensen interviewed A.B. on January 8, 2004. Jensen Decl., docket no. 28,

Ex. A. Detective Jensen’s interview of A.B. took place approximately 18 months after the

alleged sexual molestation by Paul II. Detective Jensen felt A.B. had average to above-average

intelligence, and possessed excellent verbal and communication skills for a child her age. Id.,

Ex. A, at 1. Detective Jensen felt A.B. was telling the truth at all times during the interview,

with regard to Paul II’s actions. Id. ¶ 5. A.B. stated that Paul II put his penis on her privates,

told her to “taste” his penis, and licked her vagina. Id., Ex. A, at 3-4. Detective Jensen’s report

indicates he did not introduce Paul II’s name into the conversation, id. ¶ 5, and that A.B.

distinguished other members of the Stoot family. Id. A.B. also stated that she licked Paul II’s

penis and he licked her bottom, and she identified the location in the Stoot home where the

alleged sexual molestation took place. Id., Ex. A, at 9. A.B. also identified “Preston” as another

child that she had previous sexual contact with. Id., Ex. A, at 11. 

Courts have generally permitted law enforcement officers to establish probable cause

based only on the testimony of a sexual assault victim, without additional corroborating

evidence, even when the evidence is contradictory. Absent an indication to the contrary, a

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 The Court asked Mr. Christie: “You would concede it’s factual as to whether there was

probable cause to arrest before the interview?” Mr. Christie responded: “Reasonable minds

could differ on that.” Rough Tr. at 10.

ORDER - 14

police officer is entitled to rely upon information supplied by the victim of an alleged sexual

assault. E.g. Clay v. Conlee, 815 F.2d 1164, 1168 (8th Cir. 1987); Easton v. City of Boulder,

Colo., 776 F.2d 1441, 1449-50 (10th Cir. 1985). In Easton, the Court expressly noted that the

accusations of three and five year old children contained “significant” discrepancies, and the

possibility that the testimony would be inadmissible in court. However, the Court held that the

children’s accusations established probable cause. Easton, 776 F.2d at 1449-50. Underlying

Easton was the realization that in many child molestation cases, the only available evidence is

the testimony of children. See id.

Under the circumstances of this case, whether Detective Jensen had probable cause to

believe Paul II committed the crime of child molestation presents a difficult and close question. 

However, at oral argument Defendants’ counsel conceded – for purposes of the qualified

immunity analysis, at least – that reasonable minds could differ as to whether Detective Jensen

had probable cause to arrest Paul II before the questioning at the school.5

 If Detective Jensen

did not have probable cause, then a custodial interrogation of Paul II was in violation of his

Fourth Amendment rights.

Because Defendants concede that reasonable minds could differ with regard to whether

Detective Jensen had probable cause, the Court proceeds to the second step of the Saucier

analysis and must determine whether the law underlying the constitutional violation was “clearly

established” at the time of the violation. Id. In this second step, the Court decides whether

Detective Jensen made a reasonable mistake about what the law requires. Id. at 1142.

(c) Clearly established.

Taking every inference in favor of Paul II, Detective Jensen did not have probable cause

before the interview and Paul II’s custodial interrogation was in violation of his Fourth

Amendment rights. If Detective Jensen made a reasonable mistake about what the law requires,

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however, he is still entitled to qualified immunity. 

A police officer is generally entitled to rely on information supplied by the victim of an

alleged sexual assault. Clay, 815 F.2d at 1168. Courts have not distinguished between firsthand accusations made by three and five year old children, even where the testimony contains

discrepancies. Easton, 776 F.2d at 1449-50. Probable cause does not follow hearsay statements

by parents as to what they were told by two-year old and three-year old sexual assault victims. 

Shaw, 464 F.3d at 625; Cortez, 478 F.3d at 1119-20. However, Shaw suggests that an interview

of a child sexual assault victim may be required to establish probable cause. See Shaw, 464

F.3d at 626. Detective Jensen interviewed the alleged victim in this case. To the extent

Detective Jensen violated Paul II’s rights by questioning him in a custodial situation without

probable cause, he reasonably could have believed his conduct was lawful. A reasonable officer

in Detective Jensen’s position could have believed that the statements by the victim established

probable cause, notwithstanding the significant amount of time between the accusations by A.B.

and the alleged molestation, and A.B.’s young age. Accordingly, Detective Jensen is entitled to

qualified immunity with regard to Paul II’s § 1983 claims for violation of his Fourth Amendment

rights, and is entitled to summary judgment on this claim.

4. Fourteenth Amendment Rights

Plaintiffs assert that Detective Jensen violated Paul II’s Fourteenth Amendment rights by

coercing his confession and by destroying notes taken by the Detective during the interview. In

order for conduct to sustain a claim under the Fourteenth Amendment it must “shock the

conscience” and violate the “decencies of civilized conduct.” See County of Sacramento v.

Lewis, 523 U.S. 833, 846-47 (1998). The Constitution does not guarantee “due care” on behalf

of government officials: liability for negligently inflicted harm falls beneath the threshold of

constitutional due process. Id. at 848-49. 

Defendants note that conduct far more shocking and coercive than the allegations in this

case has been found not to violate the Fourteenth Amendment:

While it is true that the interrogation lasted for eight hours, [interrogator] Perez did

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 Plaintiffs also allege that Detective Jensen violated Paul II’s Fourteenth Amendment

rights by destroying his notes of the interrogation. This claim, however, was not plead in the

Complaint and cannot be raised for the first time at summary judgment. Moreover, similar

claims have been rejected by the Ninth Circuit. Cunningham, 345 F.3d at 812 (“failure to

preserve or collect potential exculpatory evidence does not violate the Due Process Clause

unless the officer acted in bad faith.”).

ORDER - 16

not refuse to give Cunningham a break for food or water. Perez also never yelled

and failed to use violence or the threat of violence. Perez’s questions may have

unsettled Cunningham, but mere emotionalism and confusion do not invalidate

confessions. Further, continuing to question a suspect after the suspect claims he

is innocent does not constitute coercion and is often necessary to achieve the truth. 

Perez’s suggestion that Cunningham’s cooperation could lead to treatment rather

than prison is also not coercive. Similarly, Perez’s statement that he has put

people in prison did not contribute to undermining Cunningham’s free will. 

Officers are allowed to recite the sentence a suspect may receive if found guilty.

Cunningham v. City of Wenatchee, 345 F.3d 802, 810 (9th Cir. 2003) (internal citations

omitted). Promises, threats, and coercion of the type which form the basis of Plaintiffs’

Fourteenth Amendment claim have been considered by the Ninth Circuit; such claims have not

been held to form the basis for a Fourteenth Amendment violation. 

While the Court considers the fact that Paul II was a minor, the conduct at issue in this

case is far less egregious than the conduct outlined in Cunningham. Detective Jensen’s conduct

cannot be said to “shock the conscience.” Judge Castleberry noted in his Order from the CrR

3.5 hearing that:

18. At the time of the signing, it would have appeared to Detective Jensen that

Defendant understood his rights; however, Defendant lacked the capacity to

understand his rights and the Defendant could not make an intelligent or

knowing waiver of his rights. The general rule is that a child over the age

of 12 may be interviewed without presence of parents and may make a

waiver of rights.

Andrews Decl., docket no. 30, Ex. 1 (Findings & Order on CrR 3.5 Hearing) at 2. Under all the

circumstances, and taking every inference in Paul II’s favor, Detective Jensen did not violate his

Fourteenth Amendment rights through an unduly coercive or improper interrogation.6

 Because

the Court finds no constitutional violation, the Court does not reach the second step of the

Saucier analysis. 

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Detective Jensen is entitled to qualified immunity from suit and summary judgment is

therefore granted in his favor on all claims under 42 U.S.C. § 1983.

B. 42 U.S.C. § 1983 – City of Everett

Plaintiffs also assert claims against the City of Everett under § 1983. There is no

respondeat superior liability under § 1983; local government units may only be sued for injury

where the constitutional deprivation arises from a government custom or official policy. Monell

v. Dept. of Soc. Servs., 436 U.S. 658, 691-92 (1978). Absent a constitutional violation, there

can be no municipal liability under § 1983. Id. at 692. Considering the facts of this case in the

light most favorable to the Plaintiffs, Detective Jensen violated Paul II’s Fourth Amendment

rights when he questioned him in a custodial situation without probable cause. Under Monell,

however, municipal liability requires a government custom or official policy which resulted in

the violation. See Monell, 436 U.S. at 691.

Plaintiffs allege two unconstitutional policies which they allege subject the City of

Everett to liability under § 1983. Plaintiffs first urge that the City, as a matter of course,

disregarded its own policy to require a child victim specialist to interview young children. 

Detective Jensen conducted “scores” of child sexual assault interviews, and Plaintiffs allege that

the City of Everett’s choice to use Detective Jensen – a “street detective” – in lieu of a trained

specialist was an unconstitutional policy and custom that resulted in a violation of Paul II’s

constitutional rights. However, this argument is unsupported in law or fact. The Ninth Circuit

has explicitly held in the sexual abuse context that “no constitutional due process right to have

child witnesses, in a child sexual abuse investigation, interviewed in a particular manner or

pursuant to a certain protocol.” Devereaux v. Perez, 218 F.3d 1045, 1053 (9th Cir. 2000). 

Moreover, there is no evidence that Detective Jensen was unqualified to interview A.B. The

evidence before the Court is that Detective Jensen had 280 hours of training focused on child

physical and sexual abuse, and an additional 32 hours of training on forensic child interviewing

techniques. Jensen Decl., docket no. 28, ¶ 2. In light of Detective Jensen’s training and

Devereaux, there is no basis for Plaintiffs’ claim that the City of Everett had an unconstitutional

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policy or custom that resulted in a violation of Paul II’s constitutional rights.

Plaintiffs second argument is that the City failed to properly train and supervise Detective

Jensen with regard to his interview of juveniles. Plaintiffs contend that City policies for

interrogation of juvenile suspects were “likely to lead to improper interrogations and false

confessions in violation of the constitution,” because they did not record interrogations. 

However, no constitutional violation resulted from Detective Jensen’s questioning. See

Cunningham, 345 F.3d 802. A constitutional violation, if any, resulted from Detective Jensen’s

reasonable, but mistaken, view that his interview of A.B. established probable cause for the

custodial interview of Paul II.

Plaintiffs have failed to identify facts in support of their claim that a government custom

or policy resulted in a violation of Paul II’s constitutional rights; accordingly, Plaintiffs’ § 1983

claims against the City of Everett are barred. See Monell, 436 U.S. at 691-92.

C. Outrage

Plaintiffs have also asserted a cause of action against Detective Jensen and the City of

Everett for intentional infliction of emotional distress (“outrage”). The tort of outrage requires

proof of three elements: (1) extreme and outrageous conduct, (2) intentional or reckless

infliction of emotional distress, and (3) actual result to plaintiff of severe emotional distress. 

See, e.g., Kloepfel v. Bokor, 149 Wn. 2d 192, 195-96 (2003). A claim for intentional infliction

of emotional distress must be predicated on behavior “so outrageous in character, and so extreme

in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.” Grimsby v. Samson, 85 Wn. 2d 52, 59 (1975). 

The tort of outrage “does not extend to mere insults, indignities, threats, annoyances, petty

oppressions, or other trivialities.” Id. Plaintiffs “must necessarily be hardened to a certain

degree of rough language, unkindness and lack of consideration.” Id. 

The Court must first determine if the conduct complained of may reasonably be regarded

as extreme and outrageous, thus warranting a factual determination by the jury. E.g. Robel v.

Roundup Corp., 148 Wn. 2d 35 (2002). The Courts have set a high standard for sufficiently

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outrageous conduct. Id. at 49 (“[T]he standard for an outrage claim is admittedly very high (by

which we mean that the conduct supporting the claim must be appallingly low) . . .”). The tort is

sustainable only where the conduct is extreme and outrageous. Kloepfel, 149 Wn. 2d 192

(harassment and death threats, including hundreds of phone calls over a course of years was

sufficiently outrageous); Robel, 148 Wn.2d 35 (harassing and calling an injured employee

“bitch” and the C-word, “acting out” fake back injuries, and pretending to call L & I was

sufficiently outrageous). Courts have refused to extend the tort of outrage to insults, threats and

minor indignities. Grimsby, 85 Wn. 2d at 59.

Under all the circumstances of this case, Detective Jensen’s actions cannot reasonably be

characterized as “atrocious,” or “utterly intolerable in a civilized community.” Detective

Jensen’s interrogation of Paul II was undertaken after his interview with A.B., who had

identified Paul II as engaging in illegal sexual contact with her. Detective Jensen’s actions were

undertaken during the course of legitimate police business and cannot be described as

“outrageous in character” or “extreme in degree.” Accordingly, the Defendants are entitled to

summary judgment on this claim.

III. CONCLUSION

For the reasons stated in this Order, Defendants’ Motion for Summary Judgment, docket

no. 27, is GRANTED. The Clerk is directed to enter judgment in favor of Defendants

dismissing this case with prejudice.

IT IS SO ORDERED

 DATED this 26th day of April, 2007.

AThomas S. Zilly

United States District Judge

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