Arkansas Cops Denied Immunity in Reality TV Privacy Case

ST. LOUIS (CN) – The Eighth Circuit denied immunity Friday to three Arkansas police officers accused of privacy violations over the release of records about sex abuse claims against “19 Kids and Counting” reality TV star Josh Duggar.

Josh Duggar speaks in favor of an abortion law at the Arkansas state capitol on Aug. 29, 2014. (AP Photo/Danny Johnston, File)

The plaintiffs, four of Duggar’s sisters, originally sued In Touch Weekly, Washington County, Arkansas, the city of Springdale, and the three officers, alleging invasion of privacy.

In Touch, Washington County and Springdale were all dismissed as defendants, but the individual officers – Rick Hoyt, Kathy O’Kelley and Ernest Cate – were not.

The three-judge panel found Friday that a lower court properly denied sovereign immunity to the officers, citing the 1977 case of Whalen vs. Roe, in which the Supreme Court determined that one component of the protection of the right to privacy embodied in the 14th Amendment is an individual’s interest in avoiding disclosures of personal matters.

“We have repeatedly recognized the existence of a right to confidentiality since the Supreme Court’s pronouncement in Whalen,’ U.S. Circuit Judge Lavenski Smith wrote in the 15-page opinion. “Just as we have recognized informational privacy’s limits by denying its application in less-than egregious cases, we have also defined its reach by describing the types of cases in which the right would proscribe official behavior.”

Smith continued, “Government officials are entitled to protection from liability for innocuous disclosures, but we will uphold genuine constitutional limits on governmental disclosure in the appropriate circumstance. Being identified as a minor victim of sexual abuse is markedly more intrusive than being identified as a survivalist, failed police academy applicant, or over-stressed police chief.”

Smith was joined on the panel by U.S. Circuit Judges Roger Wollman and Steven Grasz.

The defendants’ attorney, R. Justin Eichmann of Harrington Miller, forwarded a statement from the city of Springdale when asked for comment. The city said its legal counsel is reviewing the opinion while pointing out that the city was previously dismissed from the case.

“This is not a decision on the merits of the case. The city of Springdale and the individual defendants will have no further comment at this time,” the statement said.

Lead attorneys for the four Duggar sisters did not immediately respond to an email seeking comment.

The sisters say they were all under the age of 16 when Springdale police began investigating allegations that they had been sexually assaulted by their brother Josh. All five of them claim police investigators promised their statements would remain confidential and would not be disclosed to the public.

The statute of limitations barred criminal charges from being filed against Josh.

One of the sisters’ attorneys, Sarah Coppola Jewell with the Daniels Law Firm in Fayetteville, Arkansas, said during a hearing last year before the Eighth Circuit that the incidents were not reported when they allegedly occurred in 2002 and 2003.

Instead, a tip in 2006 led law enforcement to start investigating. Her clients were taken to a “safe space” and were told that their statements would remain confidential. No charges were ultimately filed due to the statute of limitations, adding to the expectation of privacy, Jewell said.

The attorney told the court their statements were not made public until 10 years later in a poorly redacted document. She said even though her clients’ names were redacted, easily traceable information such as their parents’ names weren’t. Adding to her clients’ humiliation, she said, were the explicit details contained in the documents regarding the alleged abuse.

Josh Duggar became a household name by virtue of being the first of the “19 Kids and Counting” celebrated on the TLC reality show of the same name.

The network canceled the show in July 2015, two months after In Touch Weekly began publishing investigative reports detailing the 2006 child molestation investigation.

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