Court of Appeals Rules That "Known Danger" Exception to Governmental Immunity Is Inapplicable to Law Enforcement Investigation of Sexual Abuse
Author: Sara Mills
The Wisconsin Court of Appeals recently examined the “known danger” exception to governmental immunity available under Wis. Stat. § 893.80(4). In Recore v. County of Green Lake, 2015AP001301 (recommended for publication) the court held that a police department’s investigation of sexual abuse allegations “falls within a discretionary analysis” and as such is entitled to immunity. It further held that the “known danger” exception cannot apply when no one actually knew that the perpetrator of the abuse was dangerous. Finally, it held that a County’s investigation under Wisconsin’s mandatory reporting law, Wis. Stat. § 48.981, was entitled to immunity.
The facts giving rise to the case are certainly tragic, as they involve the sexual abuse of a minor. In 2011, D.B. was a first-grader in Berlin, Wisconsin. He began to exhibit sexualized behavior toward classmates that was understandably concerning to his school’s principal. The principal contacted the Police School Liaison Officer about the incident and also advised the officer that when questioned about the behavior, D.B. reported that his “Uncle Rob” told him about it and showed him pictures of naked people on his cell phone.
The Liaison Officer referred the allegations to Green Lake County’s social services department, which screened the allegations per their department rules within 24 hours. The screening determined that not only had D.B. been exposed to inappropriate photos, D.B.’s uncle had also inappropriately touched D.B. while D.B. was at a relative’s home. The department therefore referred the abuse allegations back to law enforcement.
At that point, the Liaison Officer interviewed D.B. and D.B.’s mother. The uncle in question was D.B.’s mother’s half-brother. D.B.’s mother said she was unaware of any inappropriate behavior. The officer also interviewed Uncle Rob, who denied all allegations. The officer determined that, based on his investigation, he would not refer the case for criminal charges but would forward the information to the district attorney. The DA decided not to issue charges.
Two years later, in 2013 and now approximately a third-grader, D.B. “began to exhibit additional behavioral problems and an investigation revealed that Uncle Rob had been sexually abusing D.B. for a number of years.” ¶ 8. Uncle Rob ultimately pled no contest to first-degree sexual assault of a child. D.B., by his mother, sued the County of Green Lake and the Police Department, alleging that their negligent initial investigation in 2011 resulted in Uncle Rob’s further sexual assaults of D.B. The County and the Police Department responded with motions seeking dismissal on grounds of immunity. The trial court denied defendants’ motions on the ground that the “known danger” exception to government immunity under Wis. Stat. § 893.80(4) applied and they were not entitled to immunity. The exception “precludes immunity where a known and compelling danger creates a ministerial duty to act on the part of public officers or employees. No immunity exists when there is a known present danger of such force that the time, mode and occasion for performance is evident with such certainty that nothing remains for the exercise of judgment and discretion.” ¶ 15 (internal citations and quotations omitted).
On appeal, the court of appeals reversed. D.B. argued that the County and Police Department were not entitled to immunity because Uncle Rob was a dangerous person and the police should have discovered that fact during their 2011 investigation. The Court of Appeals disagreed: "[T]he scope and breadth of the investigation by the Police Department clearly falls within a discretionary analysis and as such the police are entitled to immunity. The 'known danger' exception does not apply as no one actually knew that Uncle Rob was dangerous in 2011." ¶ 12. The “known danger” exception “is a subset of the ministerial duty exception.” ¶ 15.
According to D.B., his behavior—acting out sexually and reporting that he had been shown inappropriate pictures—evidenced a compelling, dangerous condition. The appellate court disagreed. “D.B.’s objection is to the scope of the investigation, inferring that the police should have somehow deduced or learned through additional investigation that Uncle Rob was in fact assaulting D.B.” ¶ 17.
"Given the full scope of the police investigation, including the information provided by D.B., his mother, and the mirandized statement of Uncle Rob, there are no facts demonstrating that a 'compelling danger' existed requiring immediate 'self-evident' or 'particularized' action on the part of the police. D.B.’s mother admits that no one actually knew in 2011 that her half brother was in fact abusing D.B. … While D.B.’s mother posits that Uncle Rob was dangerous and that Christensen should have known as much, she herself agrees that the record simply does not establish that anyone actually knew Uncle Rob was a danger in 2011." ¶ 18.
The court of appeals also rejected D.B.’s arguments against immunity for the County. D.B. argued that Uncle Rob was a “caregiver” as that term is used in Wis. Stat. § 48.981(1)(am) and that the County’s failure to properly apply the statute was ministerial in nature, which would preclude immunity. During its screening investigation in 2011, the County did not define Uncle Rob as a “primary” caregiver because Uncle Rob did not live with D.B. and only occasionally babysat him.
The appellate court held that the County’s conclusions as to whether Uncle Rob was a “caregiver” were clearly discretionary acts entitled to immunity. Further, the fact of whether Uncle Rob was or was not a “caregiver” was not determinative of the question of whether immunity applies. “The County’s determination of ‘caregiver’ status goes to the question of negligence, not immunity, and does not change our analysis.” ¶ 26.