By Gretchen Schuldt
Dunn County is not liable for the sexual assault of a jail inmate by a corrections officer who previously had been disciplined for touching females in his care and passing notes for them, the state Supreme Court ruled Wednesday.
“No reasonable fact finder could conclude that Dunn County was the causal, moving force behind the sexual assault,” Justice Annette K. Ziegler wrote for the majority in the 5-2 decision. She was joined by Justices Rebecca Grassl Bradley, Rebecca F. Dallet, Brian Hagedorn, and Patience D. Roggensack.
Justice Jill J. Karofsky, joined by Justice Ann Walsh Bradley, dissented.
“The majority's failure to hold Dunn County accountable is akin to standing idly by as the fire burns,” Karofsky wrote.
Corrections Officer Ryan Boigenzahn put his hand down inmate Rachel Slabey’s pants as she lay in her bunk, Ziegler wrote. He pulled it out when she said “no.”
Boigenzahn, who had repeatedly been given training and participated in reviews about the jail’s anti-fraternization policies, had been suspended in 2015 for three days for violating them. The violations centered around things like touching and passing notes between inmates, both forbidden. Boigenzahn at first denied passing the notes, then admitted it when reminded that he could be fired for lying.
Inmates said Boigenzahn seemed “obsessed” with one inmate, even watching her sleep, Ziegler said.
About nine months after Boigenzahn’s return from suspension, an inmate told a sergeant that Boigenzahn accepted a note, “sexual in nature,” from another inmate, referred to as B.S. A surveillance video showed that Boigenzahn spent about 12 minutes out of camera range near B.S.’s bunk.
He was placed on leave and later fired.
A month or so after that, Slabey was overheard talking about Boigenzahn, Ziegler said. Slabey said Boigenzah “must have stuck his hand down somebody else’s pants, too.”
A criminal investigation ensued, and the assault, which occurred in March 2016, was confirmed. Boigenzahn eventually was convicted of second-degree sexual assault by corrections staff. Dunn County Circuit Judge Rod W. Smeltzer sentenced him to two years in prison followed by five years of extended supervision.
Slabey sued, alleging the county violated her civil rights because it was “deliberately indifferent to a substantial risk of harm to Slabey by failing to thoroughly investigate, appropriately discipline, and adequately supervise Boigenzahn."
Dunn County Circuit Judge Maureen D. Boyle granted summary judgment to Dunn County, saying that "There is no evidence that (Dunn County's) training practices were constitutionally deficient and that the County was aware of the deficiency and failed to abate the deficiency."
The state Court of Appeals affirmed the decision, and Slabey appealed to the Supreme Court.
“The issue in this case is not whether Boigenzahn committed a sexual assault,” Ziegler wrote. “He did, and what he did to Slabey was terribly wrong. But a claim against Boigenzahn is not the claim we analyze today.”
To prevail, Ziegler said, Slabey must show that the county caused the constitutional rights violation. In attempting to do so, Slabey did not meet the high standards set by the U.S. Supreme Court, Ziegler said.
“Dunn County is entitled to summary judgment because there is insufficient evidence for a reasonable fact finder to conclude that Dunn County was the moving force behind her being sexually assaulted,” Ziegler said. “Boigenzahn sexually assaulting Slabey was the result of his action, which was completely forbidden by Dunn County and the criminal law.”
Karofsky, in dissent, said an estimated 25% to 41% of incarcerated women are sexually abused.
“When sexual abuse does occur, it is incumbent on the judicial system to hold to account those who are responsible in order to protect vulnerable inmates,” she wrote. “It is here where the majority falls short.”
The court majority “allows the county to escape all responsibility for (1) ignoring clear warning signs that former Dunn County correctional officer Ryan Boigenzahn had engaged in inappropriate and escalating behavior with female inmates, and (2) creating the circumstances that allowed Boigenzahn to sexually assault Rachel Slabey while she was incarcerated in the Dunn County Jail.”
And after Boigenzahn returned from suspension, she wrote, then-Sheriff Dennis P. Smith “did not bar Boigenzahn from having further unsupervised contact with female inmates; in fact, he did not assign any staff to further monitor or investigate Boigenzahn at all. Instead, the Sheriff sent an officer who violated jail policies, lied to officials, and raised such serious red flags that multiple inmates reported him despite fears of retaliation, back to guard female inmates on the lightest-staffed shift with little to no monitoring. And that is how former officer Boigenzahn accessed, cornered, and sexually assaulted Slabey on March 25, 2016.”
“When municipalities take inmates into custody, they assume a responsibility to protect them from sexual assault,” she wrote.
If the justice system is unwilling to hold municipalities accountable, she said, measures designed to eliminate sexual assault behind bars “are reduced to little more than a perfunctory policy for correctional staff to sign, then freely disregard. Dunn County threw a match into the tinderbox when it sent Boigenzahn back to guard female inmates.”
(T)he Sheriff sent an officer who violated jail policies, lied to officials, and raised such serious red flags that multiple inmates reported him despite fears of retaliation, back to guard female inmates on the lightest-staffed shift with little to no monitoring.
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