Kathleen Whalen thought she was doing her civic duty by helping the detective investigate an identity-theft ring. In reality, she was unwittingly helping him build a case against herself and her own disability claim.
When Kathleen Whalen agreed to speak with a badge-wearing Washington State Patrol detective who’d knocked at the door of her King County home, she thought she was doing her civic duty by helping him investigate a crime.
Detective John G. McMullen had claimed — falsely — that he was looking into an identify-theft ring when he found Whalen’s name and address handwritten on a scrap of paper.
In reality, she was unwittingly helping the detective build a case against herself and her own disability claim.
Last week, the 9th Circuit Court of Appeals ruled the detective’s ruse violated Whalen’s Fourth Amendment right to be free of warrantless search and seizures and put disability investigators on notice that the same tactic would not work in the future.
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In its opinion the three-member panel found that McMullen had “qualified immunity” from the lawsuit but the panel also underscored that the detective’s actions were unconstitutional because he was conducting an administrative fraud investigation.
The courts have in the past ruled that police can use ruses in criminal investigations but not civil matters.
Whalen’s attorney, George A. Fields, said that while there was no financial redress to his client, the ruling was nevertheless a victory.
“This is a significant ruling,” said Fields. “People with disabilities should not have to worry about whether they can trust law enforcement.”
On Friday, a spokesman for the Washington State Patrol said the agency is no longer part of the Cooperative Disability Investigation Unit (CDIU,) a federal program overseen by the Social Security Administration and the Office of the Inspector General, to which McMullen had been assigned.
Andrew Cannarsa, a spokesman with the federal agencies, said the investigation unit is waiting for guidance on the ruling from the Department of Justice and will apply it once received.
The suit was filed by Whalen after she learned that McMullen had surreptitiously recorded video inside her home using two hidden cameras and that the information he gathered during his visit had been used to deny her disability claim, according to the 2017 suit filed in U.S. District Court.
According to the suit, McMullen was working as an investigator with the CDIU when he was asked in 2011 to look into Whalen’s claim.
Whalen, now 55, had applied for Social Security Disability and Supplemental Security Income benefits due to her diagnosis of cervical dystonia, a condition her attorney likened to Parkinson’s disease. She claimed to have memory loss, weakness and difficulty standing and walking.
The Washington Disability Determination Services division asked the CDIU to investigate, saying Whalen’s medical evidence did not support her reported diagnosis and that she appeared to be using a wheelchair inconsistently.
McMullen knocked on the door of Whalen’s home wearing his badge and identified himself as a state police detective investigating identity fraud, the suit claims. He invited her out to his vehicle where he had her complete a questionnaire and look through photographs of “suspects,” the suit claims. The ruse was designed, the officer told the courts, to allow him to observe Whalen’s “responses and bodily movements.”
Because Whalen believed she had been a victim of identity theft, she invited McMullen into her home so she could provide him with contact information of a potential suspect, court documents allege.
The report later submitted included McMullen’s observations about Whalen’s speech, dexterity and writing ability. It also noted that Whalen’s wheelchair, inside her home, was “being used as a blanket holder” and did not appear to be used often.
According to the suit, the Washington Disability Determination Services division denied Whalen’s disability claim but did not bring any civil, administrative or criminal actions against her. She learned of McMullen’s deception when she appealed the decision, the suit claims.
Fields, Whalen’s lawyer, said disability decisions should be based on a complex analysis of medical, vocational and educational factors that cannot be adequately assessed in a one-hour fraud investigation.
He said Whalen was granted Supplemental Security Income disability benefits and is still appealing her claim for regular Social Security Disability benefits.