Despite the woman being raped twice by the same man, the judge says the police are not liable for exercising discretionary judgment.
By CARY DAVIS
Published May 30, 2003
NEW PORT RICHEY - A New Port Richey woman was raped and severely beaten in December 1998, her left eye swollen shut and her mouth bloody with 15 broken teeth. Twenty-nine days later, authorities say, she was raped again, by the same man.
The woman filed suit last year against the city of New Port Richey and two detectives, alleging that the second rape could have been prevented if police had properly investigated the first assault.
The lawsuit lays out a pattern of alleged negligent police work, beginning with the refusal of the department's chief detective to believe the victim's account of the first rape. Police did not send out a semen sample for testing. They did not test evidence collected from the woman's house. Less than a month after that first attack, police responded to a burglar alarm at the woman's home but they did not go inside. The rapist, prosecutors say, was hiding inside. After police left, the rapist struck again.
But those allegations, all supported by the public record, might not be enough to support a claim of negligence against the Police Department in civil court.
Circuit Judge Stanley Mills indicated at a hearing Thursday that he was leaning toward throwing out the woman's negligence claims against the city and two detectives, Jackie Pehote and William Barrus.
The Florida Supreme Court, the judge said, has made it clear that law enforcement agencies are not liable for exercising discretionary judgment during an investigation, regardless of the consequences. "(Police) probably had no duty to come at all" to the burglar alarm, Mills said.
The judge took the matter under advisement, saying he would rule after reviewing case law.
Mills, however, ruled the lawsuit will proceed against Barrus and Pehote on the issue of intentional infliction of emotional distress. The lawsuit alleges that the detectives shared their doubts with the victim's friends, even asking them to encourage the woman to "tell the truth." The suit also alleges that after the second rape, Pehote asked the 41-year-old victim: "How could you be so stupid to move back into your house?"
The suit claims the detectives' actions damaged the woman's reputation and forced her to seek psychological help. Mills said the city also could be held liable for intentional infliction of emotional distress, but only if the jury clears the detectives on those grounds.
The Times is withholding the woman's identity because she is a victim of a sexual crime.
A Pasco jury did not share the detectives' doubts, taking just one hour to convict John A. Casteel of sexual battery in August 2001. Casteel lived three blocks from the victim and had just been released from prison after serving 14 years for a 1983 rape. He is now serving a life sentence.
Peter Walsh, the city's attorney for the civil case, argued Thursday that under the law, "there is no duty that New Port Richey owes to a citizen to protect them from a criminal."
The detectives, he said, "owed no special duty to catch this crook and perform a perfect investigation."
An internal affairs investigation cleared Pehote of any wrongdoing, but faulted Barrus for failing to submit the semen sample in a timely fashion after the first rape.
Craig LaPorte, an attorney for the victim, argued that given the totality of the circumstances, police had a responsibility to protect the woman after the first rape, especially when they responded to the burglar alarm just before the second attack.
"They took their duty very lightly," LaPorte said.
But Mills said the law is as clear as it is harsh.
"I'm going to follow the law," Mills said Thursday. "It doesn't mean I have to like it."
