© 2013 The Texas Lawbook.
By Natalie Posgate
Staff Writer for The Texas Lawbook
In 2007, a Brownwood, Texas police officer repeatedly raped a 15-year-old girl. He finally was caught in the act and arrested. Later that year, he pled guilty and was sentenced to serve 20 years in prison.
The physical assault case was not, however, the end of the story. The young woman now alleges in a federal lawsuit that she was victimized by the very law enforcement officers who investigated and prosecuted her case.
The victim and her lawyers are arguing before the U.S. Court of Appeals for the Fifth Circuit that two Texas Rangers, a district attorney and a sheriff used her as “sexual bait.” They contend the officials allowed the sexual assaults to continue as an investigatory tool to collect additional evidence against the police officer.
The case was brought to the Fifth Circuit after a federal court in San Angelo dismissed it last year. That court ruled the plaintiff failed to state a valid claim under Section 1983, which holds liable any person who subjects a person or causes a person to be subjected to a violation of his or her constitutional rights.
The victim submitted her appeal in July 2012.
According to a reply brief dated November 2012, the victim alleges that, because the four law enforcement officials used her as sexual bait, they violated her substantive due process rights. The brief elaborates that “police and prosecutors cannot decide to pursue a method of investigation when a known or obvious consequence is the violation of constitutional rights.”
But it might be a lengthy process for the victim and her three attorneys to obtain justice – if they get it at all. The lawsuit raises fundamental questions about how much responsibility police officers and law enforcement officials hold in regard to investigating another police officer, with whom they are not directly working and who is violating someone’s constitutional rights.
This question is unique to most Section 1983 cases, said Kurt Kuhn, one of the victim’s lawyers.
On April 30, both sides presented oral arguments at the Fifth Circuit in front of a three-judge panel, which included appellate judges Eugene Davis, Carolyn King and Jennifer Elrod.
Kuhn said he expects to hear from the Fifth Circuit within the next few months about whether they have a case. If the judges rule in the state’s favor, Kuhn said his client will request an en banc review or will appeal to the Supreme Court of the United States.
Officials with the Texas Attorney General’s Office declined to comment for this article.
Jeff Edwards and Lisa Bowlin Hobbs comprise the rest of the victim’s legal team. The Office of the Attorney General is representing the two Texas Rangers, with Assistant Solicitor General Arthur C. D’Andrea as the lead attorney. San Angelo partner Jon Mark Hogg of Jackson Walker is representing the Brown County district attorney and sheriff in the matter.
He said he took the case because it offended his notion of the constitution. “The idea that you can allow a child [to continue] to be raped by a police officer, because it makes the job [of law enforcement] easier, is why I really took the case,” he added.
According to the plaintiff’s July 2012 appeal to the Fifth Circuit, the situation began in January 2007, when Texas Ranger John Nick Hanna was summoned to Brownwood, Texas, to investigate a Brownwood police officer suspected by other officers of sexually harassing a teenage girl in the town’s Explorer group.
The officer, Sergeant Vincent Ariaz, was the leader of Explorer Post 1150, a local program associated with the Boy Scouts of America that teaches youth about law enforcement.
After some investigation, Hanna determined that Ariaz had “sexually assaulted the young girl and had used his position with the Explorers to groom her for sex,” according to the complaint. Ariaz notified his supervisor, Lieutenant Robert Bullock, about his findings, but he did not notify any parents or supervisors of Ariaz.
While on the case, Hanna also determined that Ariaz was in the process of targeting his next victim (the plaintiff of the current complaint). Instead of interviewing or investigating Ariaz, Hanna and Bullock “inexplicably stopped the investigation” and “left a confirmed sexual predator known by both to have committed a criminal offense against a child and who they believed to be grooming another child to molest in charge of young girls,” the complaint says.
Just as he had done with this first victim, Ariaz promoted his next victim to the highest rank in the program so he could “spend time alone with her,” the complaint says.
Shortly after promoting the girl, Ariaz took her to eat “in full view of other officers,” who also had knowledge that Ariaz and the plaintiff would ride together in his car “during the night shift practically every night after school ended for her in May.” The GPS tracker on Ariaz’s car often showed that they stopped “for lengthy periods of time at three isolated locations,” according to the complaint.
The other officers were disturbed by what they observed and called Ranger Hanna for help again. Hanna’s investigation on Ariaz resumed on July 5, 2007.
Four days after investigating and confirming everything other Brownwood officers had observed, Hanna had a meeting with many local law enforcement officials including Brown County District Attorney Michael Murray and Brown County Sheriff Bobby Grubbs. At the meeting, they “sanctioned and agreed with a plan to have Ariaz continue to abuse plaintiff” because they believed “the case would be stronger if they continued monitoring Ariaz and literally caught him in the act of the abuse,” the complaint says.
The same night of the July 9 meeting, Hanna installed a surveillance camera in one of the buildings he knew Ariaz took the plaintiff to “for hours in the middle of the night.”
By July 12, Hanna officially had video proof that the girl was being abused, the brief says, but he did not arrest Ariaz until five days later. Evidence included Ariaz kissing and hugging the plaintiff multiple times, as well as taking her into the courtroom and exiting later without his belt on while the girl adjusted her shirt.
According to the brief, July 12 was not the only example of abuse caught on video. Five additional, inappropriate incidents occurred on July 13, as well as a handful of others throughout the next few days.
Hanna had informed Bullock, Murray and Grubbs of the incidents, yet the four of them still did not “put a stop to the abuse or the ‘investigation’” and continued to use the girl as “bait to catch Ariaz in the act of sexual assault,” the complaint says.
Hanna arrested Ariaz July 17, after hiding in a courtroom closet and witnessing first-hand Ariaz sexually assaulting the girl.
The complaint says, while in the closet, Hanna saw the victim “sitting or lying on a table” with Ariaz over her, “touching Plaintiff’s genitalia,” yet Hanna did not intervene until Ariaz and the plaintiff returned to the courtroom a few hours later after he “observed Ariaz place his head in Plaintiff’s ‘crotch area.’ “ Even then, Hanna did not “exit the closet and end the abuse” until “several more minutes of sexual assault.”
After Hanna arrested Ariaz, the officer was indicted for 27 counts of sexual assault of a child and two counts of indecency with a child (the latter were allegations made by the first victim five months earlier), according to the complaint. He pled guilty to two counts of sexual assault and pled no contest to indecency with a child.
In 2011, the victim sued Hanna, Bullock, Murray and Grubbs, alleging the men violated her substantive due process rights by waiting too long to arrest Ariaz, thus using her as bait for the investigation, according to court documents.
Murray and Grubbs countered that they had no obligation to protect the victim’s substantive due process right because “Ariaz was not subject to their supervisory control,” according to their reply brief.
Rangers Hanna and Bullock argue in their reply brief that Hanna did not have enough evidence to convict Ariaz “until the moment he intervened” and the court “should have no interest in second-guessing a policeman’s calculated judgment to delay arrest.”
Kuhn acknowledged the case is “difficult.” But he said he couldn’t refuse a case that “raises fundamental questions about who we are as a society” and what the constitution requires.
“Most cases don’t ask those questions,” he said, but “this is one of those cases.”
Kuhn and his partner Lisa Bowlin Hobbs decided to get involved in November 2012 after fellow Austin attorney Jeff Edwards approached them and asked for help preparing the reply brief to the state’s reply. Edwards’ former partner Scott King Field had just been elected to the Texas Third Court of Appeals.
Kuhn, who handles various appellate matters, started his firm in Austin in 2011 on Texas Independence Day. As a former Texas assistant solicitor general, Kuhn’s prior experience with Section 1983 cases involved working on the state’s side. He said the current case is interesting for him because it’s the first time for him to work on the plaintiff’s side of a 1983 case.
Hobbs joined Kuhn’s firm in May 2012, giving the appellate law boutique its current name, Kuhn Hobbs PLLC. When she was 30, Hobbs became well known across the state when she became the Texas Supreme Court’s first general counsel. Most recently, she worked in the appellate section at Vinson & Elkins.
Edwards has his own firm in Austin called Edwards Law. As Edwards began his legal career and was practicing business litigation and defending companies accused of securities fraud, he realized his true passion was helping people in need and made the switch to the plaintiff’s side. Since 2003, he has been successful in numerous trials and has achieved several multi-million dollar settlements for his clients.
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