CHICAGO (CN) - An underage teen who was sexually assaulted cannot sue the officer who left the severely intoxicated girl with her three future attackers, a federal judge ruled.
The girl, who sued anonymously, said Officer Mark Del Boccio of Arlington Heights, Ill., should have helped her. But U.S. District Judge Edmond Chang ruled that Del Boccio "neither created nor increased the danger" in leaving her with the three males, "just as the officer found her."
An attorney for the victim, Steven Garstki, told Courthouse News that the officer should answer for his poor decision.
"We all recognize that civil servants have an important role to play and we don't want to hold them accountable for every blunder or mishap," Garstki said in an interview. "But somehow, from 'blunders and mishaps,' that line of case law is now being used to protect conduct like this."
"This is not one of those usual cases where there are allegations that need to be proved down the road," he added. "[The defendants] couldn't contest the facts because the complaint is pleaded right out of the police's own investigation. This was directly out of an internal affairs report."
Del Boccio encountered the victim when he responded to a 911 call about teenagers drinking and smoking beside an apartment complex Dumpster in May 2009. The property is located in Arlington Heights and Mount Prospect.
Most of the group left after the apartment site manager called the police, but Jane Doe and three males remained.
Del Boccio witnessed the trio carrying Doe toward "a secluded area." Doe was so intoxicated that she could not stand up by herself, her head was down and her eyes were closed. One of the young men had to hold her up from behind. After speaking to the young males, Del Boccio permitted the teenagers to leave and take the girl home.
When the site manager asked Del Boccio what happened, Del Boccio explained that the three young men were taking Doe home. The officer then told police dispatch that the subjects of the 911 call were gone on arrival, called off Officer Patrick Spoerry, who had also been dispatched to the scene, and drove away.
The site manager called 911 again after Del Boccio left when he saw the three males carry Doe into the apartment complex laundry room.
This time, Mount Prospect police officers responded to the call and found the young men raping Doe in the laundry room. All three were arrested and one was sentenced to six years in prison, according to the court. The decision gives the age of only Christopher Balodimas, who was 20 years old at the time of the assault.
Doe sued Arlington Heights and Del Boccio for violating her Fourth and 14th Amendment rights.
Last week, U.S. District Judge Edmond Chang dismissed the suit last week, finding that "a police officer would not reasonably have known that calling off another officer or falsely relaying to dispatch that the scene was clear could violate the constitutional rights of a victim of third-party violence."
"Plaintiff contends that her constitutional rights were violated when Del Boccio failed to properly investigate the 911 complaint and, instead, decided to 'cover his trail' by calling off Officer Spoerry and reporting to dispatch that the subjects of the complaint were not at the scene," he wrote.
However, "the only plausible constitutional violation in this case stems from the allegation that Del Boccio called off Officer Spoerry, who had also been dispatched to the scene," the decision states. "But it is not clearly established that calling off another police officer violates a constitutional right."
"Plaintiff alleges that she was extremely intoxicated and on her way to a secluded area with three males when Del Boccio arrived at the apartment complex," Chang wrote. "Plaintiff was already in a dangerous situation. The question is whether Del Boccio did anything to increase the danger to plaintiff. Increasing the danger means that the state did 'something that turned a potential danger into an actual one, rather than that it just stood by and did nothing to prevent private violence.'"
"Even assuming that, but for Del Boccio's call, Officer Spoerry would have arrived on the scene before plaintiff was raped and conducted a more thorough investigation, plaintiff's claim cannot advance under the governing law," he added.
Garstki, the attorney, pointed out that Chang relied on qualified immunities.
"The exception to these is when police conduct increases the risk of harm," Garstki said. "I think that the facts of this case clearly show that this falls within that exception because the increase was great."
"The original rational for protecting police was relevant to negligence, not willful conduct," he said. "But layers are being added that go beyond that. There have always been immunities, but people recognize that if the government and public servants are not held accountable, then we have instances like this."
Garstki added that he plans on appealing or asking the court to reconsider its decision, "whatever avenue's available to us in order to continue to seek justice for our client."
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