- Associated Press - Friday, March 6, 2020

OMAHA, Neb. (AP) - A federal appeals court on Friday ordered Douglas County’s sheriff to be dismissed as a defendant from a lawsuit in which a woman alleges that one of his deputies coerced her into a sex act in 2013 and accuses the sheriff of not adequately supervising his underlings.

The ruling reverses a district judge’s 2018 decision in favor of letting a jury hear the woman’s lawsuit against Sheriff Tim Dunning. That judge, Joseph Bataillon, pointed to 15 sexual misconduct complaints that had been made against deputies who worked under Dunning dating back to 1995, saying the complaints raised concerns that Dunning and his office failed “to train or supervise its employees on sexual misconduct.”

But a three-judge panel of the 8th U.S. Circuit Court of Appeals said Friday that the prior instances of sexual misconduct were not egregious enough or similar enough to the woman’s case to demonstrate a pattern of sexual assault against members of the public by Douglas County deputies.

The Associated Press is not naming the woman, as it typically does not name alleged victims of sexual assault.

The case stems from a February 2013 incident at an Omaha park involving the woman and former Deputy Cory Cooper. An investigation found that the woman was in a parked car with her boyfriend when Cooper approached them, spotted marijuana in their car and took the woman back to his cruiser. He began questioning her about what she would do to keep her boyfriend out of trouble, and then coerced her to perform oral sex on him before she and her boyfriend were released, investigators said.

The woman reported the incident to police a few days later, but the sheriff’s office didn’t immediately investigate. Cooper wasn’t fired until three months later following another report of similar behavior by him. Cooper was initially charged with first-degree sexual assault, but he pleaded no contest in 2015 to misdemeanor counts of assault and evidence tampering and served six months in jail. As part of a plea bargain, he didn’t have to register as a sex offender.

Bataillon found that “there is sufficient evidence as a matter of law that would enable a jury to find deliberate indifference on the part of Sheriff Dunning.”

But the appeals panel reversed that ruling and ordered the lower court to enter judgment in favor of Dunning on the basis of qualified immunity.

While the prior sexual misconduct complaints were troubling, they weren’t “enough to put a supervising official on notice that a deputy might use his position and authority to separate a woman from her boyfriend at the park and coerce her to engage in sexual contact with him,” Judge Ralph Erickson wrote for the appeals panel.

The panel also rejected the woman’s assertion that Dunning failed to properly train deputies, saying the appeals court has held in previous cases “that there is no patently obvious need to train officers not to sexually assault women.”

Douglas County Chief Deputy Sheriff Tom Wheeler said Dunning would not comment on the ruling because the lawsuit against the county is still pending. Cooper is also named in the lawsuit.

Messages left for the Douglas County Attorney’s Office, which is defending Dunning, and for attorneys representing the woman were not immediately returned Friday.

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