Two Pima County parents whose children were temporarily removed from their custody in 2016 after a detective appeared to lie to a judge to obtain a search warrant obtained a $400,000 judgment last week to settle a federal civil rights lawsuit against three state employees.
Gretchen and Karl Daschke sued the State of Arizona and Pima County in 2017 for actions taken by employees of the Pima County Sheriff’s Department (PCSD) and the Arizona Department of Child Safety (DSC). Those actions led to two teenaged boys being removed from the parents’ care for several days in 2016 despite no evidence of abuse or immediate danger.
On Aug. 12, U.S. District Judge Jennifer Zipps signed a judgment finalizing the $400,000 settlement involving DCS employees Valerie Brown, Mildred Jimenez, and Gerardo Talamantes. The settlement will be paid by taxpayers, not the individual employees.
The judgment comes on top of $700,000 which Pima County agreed to pay the Daschke family last November for the actions of PCSD Det. Theodore Hartenstein.
Court records show Hartenstein was assigned to investigate 19 illegal house parties in Tucson-area homes during the summer of 2016. In late November 2016, the detective contacted Karl Daschke to arrange an interview with his son ZD, whom Hartenstein suspected was involved in planning or promoting the house parties.
The father did not consent to his son being interviewed without a parent or attorney present. Then on Dec. 13, Hartenstein drafted an affidavit for a search warrant which was approved by a Pima County judge to look for evidence in the Daschke house and vehicles that would show ZD was involved with the house parties.
The warrant permitted investigators to take a DNA sample and fingerprints from ZD to compare to physical evidence taken from one of the house parties attended by dozens of youth. However, the warrant also allowed detectives to download “all texts, photos, and other media” found on “any of the cell phones or electronic devices” belonging to any family member, even though nothing in the affidavit connected the parents or ZD’s siblings to the criminal activity.
Eventually, ZD pleaded guilty to one count of criminal trespass in connection to his attendance at one of the house parties.
In September 2019, Zipps ruled in the federal lawsuit that it appeared Hartenstein engaged in “judicial deception” with the judge who authorized the search warrant. Zipps noted the detective’s search warrant affidavit “contained several false or misleading statements and omissions” and that is was likely that Hartenstein and another detective “acted recklessly or intentionally.”
The judge also ruled the Daschkes could pursue a claim of First Amendment retaliation against Hartenstein who called the DCS hotline on Dec. 15, 2016, two days after the father refused to allow ZD to be questioned alone. The detective said he made the call to report ZD’s suspected criminal activity and possible drug and alcohol use.
Pima County officials settled with the family a few weeks after Zipps’ ruling, while Daschke family attorney Michael Garth Moore continued to address the claims against DCS.
Earlier this summer Moore reached a $400,00 settlement with the three DCS workers who got involved with the family after Hartenstein’s call. That includes Talamantes, the case manager, as well as his supervisor Jimenez and co-worker Brown.
Talamantes interviewed ZD’s younger brother on Dec. 20, 2016 at the youth’s school without parental notice. Other interviews were conducted with ZD, his parents, and an adult son who lived at the home.
Court records show Hartenstein was allowed by DCS employees to be present during some of the interviews, even though his criminal investigation was ongoing.
Talamantes noted he believed the parents were “unwilling” to take additional action to address ZD’s substance abuse issues, despite conducting ongoing drug testing. On Dec. 22, 2016, the case manager announced the intention to remove ZD and the younger brother from the home, which was done the next day.
Days later a superior court judge ordered the children returned to the parents’ care. The family then retained Moore to pursue civil rights claims against the State of Arizona and Pima County.
The part of the Daschke lawsuit against DCS alleged the case worker and other staff members removed ZD and his brother from their home without the requisite court order despite no “imminent” danger from abuse or neglect. Zipps agreed, ruling there was no “exigency to justify removing ND and ZD on the spot, without first obtaining a court order.”
A settlement between DCS and the family was reported to Zipps in July, and on Aug. 12 she signed the formal judgment against the three DCS employees. Under state law the judgment will be paid by the employer, not the individual employees.
