In a case involving a woman raped twice, a judge rules that in shoddy investigations, police cannot be sued for negligence.
By CARY DAVIS
Published June 26, 2003
NEW PORT RICHEY - A woman with a bloodied face and 15 broken teeth said she had been raped. New Port Richey police detectives didn't believe her, didn't even bother to send out evidence for testing. Twenty-nine days later the woman's burglar alarm went off, but police didn't go in to investigate.
Minutes after police left, the rapist, who had been hiding inside, struck again.
The woman, after basically solving the case herself, sued the city of New Port Richey and two detectives.
On Wednesday, a judge essentially gutted her case.
No matter how shoddy the investigation might have been, ruled Pasco-Pinellas Circuit Judge Stanley Mills, the police cannot be held liable for negligence. Florida courts have made it clear, the judge said, that public safety agencies and their employees cannot be sued over discretionary judgments made during the course of an investigation, regardless of the consequences.
"Harsh as the result may be in this case, it is the duty of the trial court to follow the precedent established by the appellate courts," Judge Mills wrote in his ruling.
Lawyers for the woman, whose identity is being withheld because she is a rape victim, declined to comment on the ruling, saying they will study Mills' four-page order before deciding how to proceed.
Mills ruled that the case will proceed to trial on the woman's claim of intentional infliction of emotional distress. But legal experts said Wednesday that the woman faces an uphill battle. Intentional infliction of emotional distress is much more difficult to prove than negligence, the experts said.
"Most cases of intentional infliction of emotional distress in Florida fail," said Joe Little, a professor at the University of Florida's Levin College of Law. That's because the burden of proof is especially high, Little said, and in this case would require evidence that police meant to inflict emotional damage, or at least knew their actions would have harmful consequences for the victim.
J. Larry Hart, a New Port Richey attorney who specializes in personal injury and criminal defense law, said of the woman's chances of prevailing at trial: "Certainly the number of bullets in the gun have been reduced."
The first attack occurred in the victim's New Port Richey home on Dec. 5, 1998. The woman, then 41, told police she had been beaten, bound, gagged and raped at knifepoint by a stranger.
Jackie Pehote, the department's chief detective, told the woman that she didn't believe her, according to case records. A semen sample taken from the victim sat in a refrigerator at the department instead of being sent out for testing. The investigation was declared inactive two weeks after the assault.
The woman had a burglar alarm installed in her house, and in the early morning hours of Jan. 3, 1999, it went off. Two New Port Richey officers went to her house, but they did not go inside. Minutes later, prosecutors say, the rapist struck again.
Again, Pehote doubted the woman, and police did little to investigate the case, according to a review of public documents by the St. Petersburg Times. The break in the case did not come until four months after the second rape, when the woman saw her attacker in a convenience store. Police charged John A. Casteel with both assaults.
In August 2001, a Pasco jury deliberated for one hour before convicting Casteel, who lived three blocks from the woman and had served 14 years in prison for a 1983 rape. Casteel now is serving a life sentence.
An internal affairs investigation cleared Pehote of any wrongdoing, but faulted Detective William Barrus for failing to submit the semen sample in a timely fashion.
In a hearing last month, the attorney for the city and Detectives Pehote and Barrus argued that under the law, crime victims aren't entitled to a perfect investigation.
That argument is grounded in a long line of Florida appeals court decisions, Mills wrote in his ruling.
Among them: a1985 Florida Supreme Court case involving the decision of Daytona Beach firefighters to take a scheduled shift change as flames engulfed a house. The house burned unattended until backups arrived.
The state's high court ruled that the homeowner could not sue for negligence because the decision to go ahead with the shift change was a "discretionary" function. And discretionary functions, the court held, fall under the umbrella of sovereign immunity, a legal principle that shields governmental agencies from liability.
The court's interpretation of the law serves an important public policy function, experts said. Police would be hampered - and public safety would suffer - if officers had to constantly worry about defending themselves against lawsuits.
"The greater good is the thing that ultimately wins out," said Hart. "That's the price of having to serve the public at large. Whether or not that's good or bad policy is another matter. But it's the policy."
