KITSAP COUNTY, WA – In response to alleged malicious prosecution and violations of their civil rights guaranteed under the Fourth, Fifth, and Fourteenth Amendments, Jeffrey and Susan Marie Owen have filed suit in US District Court against numerous officials in Kitsap County, WA.Jeffrey Owen is the webmaster of the bondage website HouseOfGord.com, described in marketing text on the site as “The Home of Ultra-Bondage.”
The lawsuit stems from a search of the Owen’s home and subsequent misdemeanor charge entered against the Owens, alleging that the couple was operating a “sexual encounter center” at their home on West Kingston Road. The charge eventually was dismissed by a district court judge in January of 2006.
According to the lawsuit filed by the Owens last month, Eugene J. Medina, superintendent of the North Kitsap School District, contacted a Lieutenant Earl Smith of the Kitsap County Sheriff’s Dept. in April of 2005 with information that the Owens were operating a bondage website from their home.
Attorney Rob Apgood, who represents the Owens, told YNOT in an interview Friday that he believes a reporter from a local newspaper, the Kitsap Sun, supplied Medina with the URL of his client’s website. Medina then allegedly passed the URL on to Lt. Smith, who visited and reviewed the content of the site.
Following his viewing of the website, Lt. Smith approached Chief Deputy Prosecutor Jeffrey J. Jahns with the information he had developed, and the two prepared a request for a search warrant. The search warrant was granted by Kitsap County District Court Judge Marilyn Paja.
In their response to the Owen’s complaint, the County confirms that the search warrant was sought, but does not confirm or deny the other allegations made in the complaint.
Apgood told YNOT that the items listed on the search warrant did not include anything that would constitute evidence of the Owens operating a “sexual encounter center” as that term is defined by statute.
Under the language of Kitsap County Code 10.52.010 (2(l), a “sexual encounter center” is defined as “a business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration: (1) physical contact in the form of wrestling or tumbling between persons of the opposite sex; or (2) activities between male and female persons or persons of the same sex when one or more of the persons is in a state of nudity or seminude.”
“They listed [on the search warrant] whips and chains and all these marvelous things they were going to find, none of which would indicate that anybody had come to their home for the purpose of ‘wrestling or tumbling,’” Apgood said. “They didn’t seek any business records, or anything else that would indicate that my client’s home was being used as a ‘sexual encounter center’ as that term is defined” in the County Code.
Apgood challenged the validity of the search warrant, but the same judge that issued the warrant – Judge Paja – was the one ruling on the validity of the warrant. Paja ruled that the warrant was valid, despite the problems cited by Apgood.
Apgood then filed for dismissal of the misdemeanor charge on the basis that the County had failed to make their prima facie case against the Owens. This time, Judge Paja concurred, and dismissed the county’s case, agreeing that the county had failed to make their prima facie case that the Owens’ home had been operated as a “sexual encounter center.”
The County, however, did not let the issue drop, and pressed ahead with an appeal.
In light of the fact that the court ruled that the county had failed to even establish its prima facie case that the Owens had violated the law, and the fact that the county had no new evidence to present suggesting that Owens had operated a “sexual encounter center” as defined by Kitsap County Code, the decision to appeal was an unusual one – and, as it turned out, a fruitless and potentially problematic decision from a legal perspective, as well.
Apgood told YNOT Friday that it was in part the county’s decision to push ahead with an appeal in the case that led his client to file the lawsuit against the county alleging civil rights violations.
The lawsuit brought by the Owens is what is sometimes referred to as a “1983 action,” a moniker derived from the section of the US code that the claim is filed under; 42 USC §1983, the section of code that concerns “Civil action for deprivation of rights.”
42 USC §1983 holds that “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”
In addition to claims of malicious prosecution, the lawsuit contends that some items seized during the search “remain in the wrongful possession” of the sheriff’s office. In its response, the county concedes that items were seized and not returned, but denies the “remaining allegation.”
Although the claims in the Owens’ lawsuit stem from the actions the county has taken since 2005, Apgood says he believes (and the Owen’s lawsuit contends) that the story goes back to a previous conflict between Jeffrey Owen and the North Kitsap School District.
Owen had previously filed a lawsuit seeking to prevent the school district from building schools on a former Nike Missile site, a site which neighbors Owens’ property.
Apgood said that lawsuit had resulted in lingering animosity towards his client on the part of local officials, the School District in particular.
According to the Kitsap Sun, the office of Kitsap Prosecuting Attorney Russel Hauge did not return calls from the paper requesting comment on the case. The county’s response to the Owens’ lawsuit denies the claims made in the complaint or states that the respondents cannot confirm nor deny the claims.
North Kitsap School District is not represented in the response, according to the Sun, and a district spokeswoman told the paper on Tuesday that she could not comment on the lawsuit.
The county has asked that the suit be dismissed.
