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Daycare Owner Loses|Case Against Detective

(CN) - The owner of a home-based daycare center failed to prove that a Colorado sheriff's detective had her license stripped in retaliation for her alleged refusal to cooperate in a sexual abuse investigation, the 10th Circuit ruled.

Karen McBeth voluntarily surrendered her license to run her Littleton, Co., home-based daycare center after allegations that her adult son had sexually assaulted his daughter and her friend at the home.

McBeth then accused Colorado Department of Human Services employees Terry Santi and Kathi Wagoner, and Arapaho County Sheriff's Detective Jeffrey Himes, of violating her constitutional rights.

McBeth claimed that the DHS employees coerced her into giving up her license after Himes told them that she was not cooperating with the investigation, because she had consulted with an attorney and demanded a warrant before giving up her records.

The district court found that Santi and Warner were entitled to qualified immunity on all counts and granted Himes immunity on all counts but McBeth's retaliation claim.

Himes appealed, arguing that he's entitled to qualified immunity, regardless of motive, because he did not violate any clearly established constitutional right.

The Denver-based appellate panel agreed with the detective, citing the U.S. Supreme's Court's 2006 ruling in Hartman v. Moore, which established that the "causation required in a First Amendment retaliatory prosecution claim connecting a retaliatory motive to the adverse action taken by the defendant is 'but-for causation, without which the adverse action would not have been taken.'"

McBeth, then, had to prove that the DHS employees would not have asked her to give up her license if Himes had not called them and reported her alleged failure to cooperate.

"She has not done so," Judge David Ebel wrote for the three-judge panel.

Colorado state law allows DHS to suspend the license of any individual who refuses to provide records in an investigation. DHS can also suspend a daycare license if anyone who lives with the licensee is charged with an "unlawful sexual offense."

"Himes contends that his alleged complaint to DHS could not have caused DHS to seek suspension of McBeth's daycare license because DHS already possessed the legal authority to suspend McBeth's license and would have done so even in the absence of his complaint," Ebel wrote.

"Here, Santi and Wagoner had reasons to seek the suspension of McBeth's license; accordingly, McBeth cannot prove the causation element of her retaliation claim. Himes is therefore entitled to summary judgment on the ground of qualified immunity on this claim, because he did not violate any clearly established right possessed by McBeth, even if he called DHS with the motive to retaliate against McBeth."

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