Harasz v. Katz
327 F. Supp. 3d 418
D. Conn.2018Background
- Plaintiffs George Harasz and Douglas Wirth, foster/adoptive parents, were arrested in 2011 after DCF and police received reports that a young adopted child ("Doe #9") disclosed sexual abuse; Wirth was acquitted and charges against Harasz were later dropped.
- Key evidence: (1) a forensic interview of Doe #9 on Aug. 11, 2011 (video and certified transcript), (2) a prior disclosure reported by treating psychologist Dr. Carol Kagel (Aug. 3), and (3) a reported disclosure to DCF social worker Elizabeth Ferreira (Aug. 12).
- Detective James Kennedy prepared and swore an arrest‑warrant affidavit recounting the forensic interview and referencing Kagel and Ferreira reports; Judge Taylor issued the warrant.
- Plaintiffs sued under 42 U.S.C. § 1983 and state law for fabrication of evidence, malicious prosecution, false arrest, and related claims against Kennedy, Ferreira, and the Town of Glastonbury (some defendants previously dismissed).
- On cross‑motions for summary judgment the court (Haight, S.D.N.Y.) reviewed the videotape/transcript, expert affidavit from Plaintiffs (Dr. Lothstein), and investigative records and concluded Plaintiffs produced no admissible evidence of deliberate fabrication by Kennedy or Ferreira.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fabrication of evidence by Kennedy (arrest affidavit quotes/misstatements) | Kennedy knowingly misquoted/mischaracterized Doe #9's words (e.g., "Daddy grabbed his weiner", "stop it daddy") and omitted/contextualized facts to inculpate Harasz | Kennedy relied on the forensic interview, Kagel and Ferreira reports; discrepancies are misstatements/reporting errors or conflation, not deliberate fabrication | Court: No genuine issue that Kennedy deliberately fabricated evidence; discrepancies amount to reporting errors or conflation; summary judgment for Kennedy granted |
| Fabrication of evidence by Ferreira (reports to DCF) | Ferreira fabricated or coached disclosures (suspicious timing and frequent contacts with Dr. Kagel; inconsistencies with forensic interview) | Ferreira made first‑hand reports of what Doe #9 told her; inconsistencies are explainable by child’s developmental issues; no admissible evidence she fabricated reports | Court: Plaintiffs offered only speculation; no material dispute that Ferreira fabricated evidence; summary judgment for Ferreira granted |
| Malicious prosecution (as to Kennedy) | Arrest and prosecution were initiated without probable cause and with malice based on fabricated evidence | Warrant was supported by affidavit and corroborating reports; issuance of warrant creates presumption of probable cause; any errors not knowing/reckless falsity | Court: Plaintiffs failed Franks‑type showing of knowing/reckless falsity; probable cause existed; malicious prosecution claim fails; summary judgment for Kennedy granted |
| Qualified immunity (Kennedy & Ferreira) | Defendants are not entitled to immunity if they knowingly fabricated evidence or acted maliciously | Even if conduct imperfect, actions were objectively reasonable in pressured child‑abuse investigation; established precedent affords deference and immunity | Court: Qualified immunity applies alternatively; defendants protected given reasonableness and lack of evidence of knowing fabrication |
Key Cases Cited
- Nimely v. City of New York, 414 F.3d 381 (2d Cir. 2005) (expert may not testify to witness credibility)
- Masson v. New Yorker Magazine, 501 U.S. 496 (U.S. 1991) (quotation marks ordinarily signal verbatim quotation and bear on credibility/accuracy)
- Costanich v. Department of Social and Health Services, 627 F.3d 1101 (9th Cir. 2010) (use of quotation marks in investigative reports can support a fabrication inference when quotes are false)
- Reynolds v. County of San Diego, 224 F.3d 1034 (C.D. Cal. 2016) (distinguishing deliberate fabrication from reporting errors or conflation of evidence)
- Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89 (2d Cir. 1999) (reasonableness standard and qualified immunity for child‑protective investigations)
- Morse v. Fusto, 804 F.3d 538 (2d Cir. 2015) (qualified immunity unavailable where defendant knowingly fabricated evidence)
- Garnett v. Undercover Officer C0039, 838 F.3d 265 (2d Cir. 2016) (elements of fabrication of evidence claim under § 1983)
- Franks v. Delaware, 438 U.S. 154 (U.S. 1978) (standard to overturn a warrant based on knowing or reckless falsehoods in affidavit)
- Malley v. Briggs, 475 U.S. 335 (U.S. 1986) (qualified immunity for officers who seek warrants that reasonably appear to establish probable cause)
- Pearson v. Callahan, 555 U.S. 223 (U.S. 2009) (qualified immunity framework)
- Harlow v. Fitzgerald, 457 U.S. 800 (U.S. 1982) (objective reasonableness standard for qualified immunity)
- V.S. v. Muhammad, 595 F.3d 426 (2d Cir. 2010) (deference to caseworkers; qualified immunity where assessing physician reliability would be unreasonable)