Saturday, March 09, 2013

Pedophilia Hysteria: Ninth Circuit Court Of Appeals Hears Case No. 11-17474, Demaree v. Wal-Mart Stores, Over Bogus Child Porn Allegation

Pedophilia hysteria took center stage during a hearing conducted by three judges of the Ninth Circuit Court of Appeals in Tucson, AZ on March 6th, 2013. The case is designated 11-17474, Demaree v. Wal-Mart Stores Inc., and it involves a couple, Anthony and Lisa Demaree, who are suing a Walmart store in Peoria, AZ for reporting suspected child porn after the store processed a number of photographs, some of which included pictures of their children in a bathtub. During the hearing, the Demaree family’s lawyer argued that Walmart committed fraud by not disclosing to customers that employees would look at their photographs and was also negligent because untrained clerks were given the authority to make assumptions about the content of the pictures and report them to police, while lawyers for Walmart argued that under Arizona statute, employees who report child abuse without malice are immune from prosecution and there was no indication of malice in this case. No decision was rendered on March 6th.

Pertinent Legal Documents:

-- Opening Brief of Appellant (56 pages): The Demarees lay out their case against Walmart and cite a number of other similar cases as precedents.

-- Reply Brief of Appellant (37 pages): The Demarees reply to Walmart's response.

Background: On August 29th, 2008, upon return from a vacation in San Diego, Anthony Demaree, accompanied by his wife and three young children, took a memory stick containing 144 digital images of photographs of family activities such as play-time, bath-time, and in-house activities to the photo-processing department of the Walmart Supercenter in Peoria, AZ. These images included photos of their three daughters (then aged 5, 4 and 1½) which involved bath-time and play-time nudity. Without making any attempt to contact the family for clarification, a Walmart employee, concerned about the content of eight of the bath-time pictures, contacted supervisors with concerns that they may have been images of child pornography. Walmart reported the Demarees to the Peoria Police Department, who in turn reported Demaree and his wife to the Arizona Child Protective Services Agency [CPS].

Without any court order and without any probable cause to believe the photographs were in fact sexually exploitative of the children, CPS then took the kids away for 2½ days and for the next 32 days released them to their grandparents under the proviso that the Demarees would continue to be deprived of physical custody of their children. It was only after the Demarees were able to present evidence showing innocent bath-time activity with no sexual touching to a Maricopa County Superior Court judge in a juvenile court dependency proceeding brought by the state that on October 3rd, 2008, the court found the parents' testimony credible and ordered the parents’ right to full physical custody of their children to be restored. However, this decision did not end the Demarees' travail. The State of Arizona, acting through the Attorney General and CPS, and acting in concert with a Detective from the Peoria Police Department, kept the juvenile dependency proceeding going before the court until it was finally dismissed on May 21st, 2009. Plaintiffs’ parents have also sued those parties in two separate actions: Demaree v. Krause, et al., CV 11-46-PHX-ROS and Demaree v. State of Arizona, et al.,, CV2009-028094. In the interim between October 2008 and May 2009, the Demarees were placed on a central registry of sex offenders, and Lisa was suspended from her job at a local school for a year. They estimate they've spent $75,000 on legal fees.

In 2009, the couple sued the city of Peoria and the State Attorney General’s office for defamation. They also sued Walmart for failing to tell them that they had an unsuitable print policy and could turn over photos to law enforcement without the customer’s knowledge. The couple lost the initial hearing after a federal judge sided with Walmart, ruling that employees in Arizona cannot be held liable for reporting suspected child pornography. Determined to recover their good name, the Demarees appealed to the 9th Circuit Court of Appeals

It's obvious why the Demarees are suing the city of Peoria and the state of Arizona, and I hope both these entities end up being held liable and having to shell out some serious bucks. What's unclear is why they are suing Walmart, when Walmart merely set the train of events in motion. The Opening Brief explains their case against Walmart, to include the specific counts (after the jump):

-- COUNT ONE - CONSUMER FRAUD [FAC]: The Demarees allege that Walmart's conduct violated A.R.S. §44-1522(A), the Arizona Consumer Fraud Act (ACFA), because Walmart concealed from A.J. Demaree that it had a so-called unsuitable print policy and that it had established no standards for determining what constitutes child abuse or child pornography without any doubt, nor had it adequately trained its personnel to make such a determination (assuming that this could even be accomplished in the first instance). Walmart failed to tell the plaintiff that it would decide for itself whether any photographs supplied by a customer on a computer memory stick contained nudity of a minor of any kind. And, if so, Walmart would then decide whether to turn those photographs over to the police. Demaree separately noted that he had taken similar photos into a Walgreen outlet in the past and Walgreen never questioned them, which would imply a lack of horizontal consistency as to when a store would report suspect photos to law enforcement.

-- COUNT TWO - FALSE LIGHT INVASION OF PRIVACY: The Demarees allege that Walmart violated their privacy by allowing the photographs to be viewed by third parties who alleged the photographs [which depicted simply children in various stages of nudity with no sexual touching or sexual acting out depicted] contained child pornography and/or evidence of child abuse.

-- COUNT THREE - NEGLIGENCE: The Demarees allege that in acting as aforesaid, Defendant Walmart breached its duty by failing to use reasonable care in its dealings with Plaintiffs.

-- COUNT FOUR: Requests punitive or exemplary damages because Defendant Walmart acted with malice and/or bad faith consciously disregarding a substantial risk that its conduct might significantly injure the plaintiffs' rights.

While the plaintiffs do not seek to hold Walmart responsible for what the government's overreach, they do claim that Walmart was fully aware that consequences of precisely the type suffered by the plaintiffs could flow from Walmart’s policy of referring photographs to the police because Walmart had been sued in the past for essentially the same results that occurred to the Demarees here.

Walmart's Response: I have been unable to find specific documents online detailing Walmart's response. However, the Reply Brief contains many portions of Walmart's arguments. Walmart claims Plaintiffs have offered no evidence it acted out of malice or ill will toward the Demarees, although A.R.S. §13-3559 sets a good faith immunity standard rather than a malice standard. Walmart next claims Plaintiffs' claim of consumer fraud is based on Walmart's report to the police. Walmart also claims statutory immunity because of federal legislation designed to prevent child abuse and neglect. Walmart also continues to claim that what happened to Plaintiffs as a result of Walmart calling the police regarding these photographs was not foreseeable.

1 comment:

  1. Still bitching about this subject I see. Figures.