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No immunity for officer who charged wrong suspect

Peter Vieth//October 29, 2020

No immunity for officer who charged wrong suspect

Peter Vieth//October 29, 2020

A Pulaski County sheriff’s deputy does not have qualified immunity in a civil rights lawsuit filed by a woman he mistakenly charged with felony drug distribution, a federal judge has ruled.

The woman contends the deputy lacked probable cause because of his sloppy investigation. The woman was locked up for a week before another officer realized she was not the intended target of the drug investigation.

The Oct. 13 denial of the deputy’s summary judgement motion appears to be the first published opinion from newly commissioned U.S. District Judge Thomas T. Cullen, who took office just a month before.

The case is Trail v. Cressell (VLW 020-3-519).

Wrong suspect

The plaintiff’s story goes back to 2013, as retold in Cullen’s opinion. David Cressell was a detective with the Pulaski County sheriff’s office. He used a confidential informant to purchase a small amount of the sedative diazepam from a female county resident.

Based on information from a colleague, Cressell wrongly concluded the seller was Linda Trail, who had once lived in Pulaski but was then living in North Carolina. Even though the informant could not identify a photo of Trail as the person who sold the pills, Cressell did not question that he had the right name.

Ten months later, Cressell presented his case to a grand jury, naming Linda Trail as the person who had unlawfully distributed the pills. The grand jury indicted Trail, and her name went into a national database.

Three years after the indictment, Trail was arrested on the Virginia warrant in Burlington, North Carolina. She was jailed for about a week before Pulaski County deputies transported her to Virginia. A “conscientious sheriff’s deputy” determined that Trail was not the person who sold the drug and secured her release.

Qualified immunity sought

Cressell moved for summary judgment saying the evidence showed he had probable cause to secure an indictment against Linda Trail. Cressell invoked the doctrine of qualified immunity which shields law enforcement offices from civil liability for actions that do not violate clearly established rights which would be known to a reasonable person.

The qualified immunity doctrine has been sharply criticized this year in the outcry over reports of police brutality. Criminal justice reform advocates say the federal court doctrine has been misused to protect officers who should be liable for use of excessive force and other misconduct.

Cullen rejected the qualified immunity defendant and concluded the case should move to trial because Cressell lacked probable cause to charge Trail.

‘Lynn’ versus ‘Linda’

Judge Thomas T. Cullen
Judge Thomas T. Cullen

Cullen recounted the misguided investigation. The informant told Cressell she could purchase “nerve pills” from a woman named Lynn who lived with a man named Jason Ayers on Case Knife Road outside the town of Pulaski.

The informant said “Lynn” had cancer and had recently had surgery.

After the controlled purchase of 20 pills for $20, the informant called Cressell and said that Lynn’s last name was “Trail.” Cressell asked another detective for help identifying the target. The colleague incorrectly advised Cressell that his target was Linda Carol Trail. That person was listed in records as a witness to an earlier assault on Jason Ayers. The colleague told Cressell that Linda Trail had been recovering from cancer treatment.

Cressell obtained a nine-year-old photograph of Linda Trail, but his informant was unable to identify the person depicted as the person who sold the pills.

Although the informant’s inability to identify the Trail photo gave him pause, he did not take any steps to investigate the discrepancy in the first names. He obtained an indictment which led to Trail’s arrest and detention in 2017.

‘Reasonable’ standard

Not every law enforcement mix-up amounts to a lack of probable cause, Cullen said, reviewing the case law.

“Ultimately, the court must differentiate, as a matter of law, between reasonable human errors and misjudgments caused by a lack of diligence or professional care,” Cullen wrote.

Cressell was warranted in initially relying on the mistaken information that his target was named Linda Trail, Cullen said.

“But he seriously erred in ending his preindictment inquiry there,” the judge said.

Despite valid concerns about the reliability of the information, Cressell took no “additional investigative steps to solidify the identification.” He didn’t run the name through criminal databases to obtain a last-known address or prior criminal record. He didn’t investigate the purported connections with Jason Ayers or do any surveillance at the residence where the pills were purchased. He never obtained a more recent photo of Linda Trail to show to his informant.

“These simple investigative tools were each available to Cressell, but he did not take advantage of any of them,” Cullen wrote.

Deference to the grand jury on the probable cause issue is lost if an officer recklessly omits material information in his grand jury testimony, Cullen said.

Ultimately, Cullen faulted Cressell for charging someone associated only with the house where the drug buy occurred, not with the actual crime under investigation.

Cullen said he was mindful that qualified immunity is a “critical safeguard” for law enforcement.

“Recognizing this, courts should refrain from de novo nitpicking or holding officers to unreasonable standards that are incongruent to the harsh realities of day-to-day police work. The court does not believe it has done so in this case. The record here raises genuine issues of material fact related to the reasonableness of the officer’s investigation and, relatedly, vital constitutional considerations. In order to protect those interests, this case should proceed,” Cullen wrote.

Trail is represented by Jonathan E. Halperin and Andrew Lucchetti of Glen Allen. Cressell is represented by Jim H. Guynn Jr. of Salem.

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