The Court of Appeals has reinstated a false arrest and malicious prosecution lawsuit filed by an Orange County school teacher who was arrested for Endangering the Welfare of a Child arising from her classroom supervision of a three-year-old special needs child. The law firm of Bergstein & Ullrich, LLP, and Scott A. Korenbaum, Esq., represents the plaintiff.
The case is Pehush v. Ashworth, issued on December 4, 2018. Plaintiff taught at a private school, which called the police to report that plaintiff had allegedly abused the child by (1) placing the student in the corner of the classroom with a divider on the desk, preventing her seeing the other children; (2) allowing the child to each lunch 45 minutes to an hour after the other children ate lunch; (3) cancelling the child's session with a speech therapist; (4) disallowing the child from going to gym class; and (5) keeping the child in a wet diaper for an extended period of time. When Detective Ashworth arrived at the school, her investigation revealed the facts were less incriminating than the initial report. For example, Plaintiff isolated the child because she was acting out but still gave her 1:1 attention during the school day behind standard cardboard dividers to focus the child's attention; the student's diapers were changed throughout the day; and the child was never in distress. Ashworth did not speak with the teaching assistant who was present in the classroom (who would have exonerated Pehush), and her interview notes with plaintiff did not accurately reflects what plaintiff told her about the incident.
While the district court granted Ashworth qualified immunity on the basis that she had arguable probable cause to make the arrest, the Court of Appeals says the jury can rule in plaintiff's favor, and the case is remanded for trial. The Endangering statute is "unconscionably" broad, as one of the Second Circuit judges stated at oral argument. It says that a person violates the statute if she "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." If the defendant was "aware that the conduct may likely result in harm to the child," she can be arrested. The jury can find that Ashworth had no basis to find that plaintiff violated the statute.
The Circuit (Calabresi, Katzmann and Lohier) says that "there are reasons to doubt Ashworth's credibility" because her "report memorializing her interview with Pehush is at best inaccurate and at worst intentionally misleading" on various material facts, such as when the girl ate her lunch and why Pehush isolated her from the other students (she was consistently throwing things around). Also, while Ashworth arrested plaintiff based on secondhand reports from school administrators, the jury can find she ignored exculpatory evidence from a second classroom aide, Crosby. "Most importantly . . . Detective Ashworth testified that Crosby told her that Pehush worked with [E.H.] throughout the day, and Crosby's sworn statement that E.H. 'was kept in the room with only' Pehush when other students went to the gym supports that claim." Also, Crosby told Ashworth that Pehush worked one-on-one with the student all day. In addition, Ashworth did not "take . . . easy investigative steps" to further investigate the allegations, suggesting "that she had made up her mind based solely on . . . secondhand reports." Put another way, the jury can find that "no reasonable officer would think that E.H. was at risk of meaningful injury," as required under the Endangering statute.
Interesting side-note to this case. Plaintiff brought a state law false arrest claim against the Town of Wallkill. The district court dismissed that claim because it found that Ashworth had qualified immunity based on "arguable probable cause," a standard that allows many police officers off the hook. Plaintiff argued that the Town may still be held liable even if the arresting officer had qualified immunity, so long as no probable cause existed for the arrest. The Second Circuit has said that municipal liability cannot attach when the arresting officer has qualified immunity, but that case said that in the course of a brief discussion in Kass v. City of New York (2d Cir. 2017). The Second Circuit remands the state law claim to the district court, suggesting that the language in Kass might not be binding after all.
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