CA4: Officer who obtained court order for minor ptf to be detained and to get an erection so police could photograph it gets no QI; this isn’t remotely reasonable

Plaintiff was a 17 year old that allegedly sent a picture of his erection to his 15 year old girlfriend. Defendant obtained a court order for plaintiff to be transported to a juvenile detention center to masturbate to get an erection so the police could photograph it as evidence so they could charge him with child pornography. Any reasonable police officer had to know that such a court order is unreasonable on its face, and it states a § 1983 claim. This case completely fails the defense of qualified immunity. Sims v. Labowitz, 877 F.3d 171 (4th Cir. Dec. 5, 2017), opinion reissued, 2018 U.S. App. LEXIS 6311 (4th Cir. Mar. 14, 2018).

Upon our review, we reverse the district court’s judgment with respect to the Section 1983 claim alleging a Fourth Amendment violation. Construing the facts in the light most favorable to Sims, a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment. We therefore remand Sims’ Section 1983 claim alleging a Fourth Amendment violation to the district court for further proceedings.

. . .

In the present case, the scope of the intrusion and the manner in which the search allegedly was performed involve overlapping inquiries. At the outset, we observe that a sexually invasive search “constitutes an extreme intrusion upon personal privacy, as well as an offense to the dignity of the individual.” Wood v. Clemons, 89 F.3d 922, 929 (1st Cir. 1996) (citation omitted). Courts have described such searches, including strip searches, as terrifying, demeaning, and humiliating. Mary Beth v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (citations omitted). When the scope of a search exceeds a visual inspection of an individual’s naked body, the magnitude of the intrusion is even greater. See Amaechi, 237 F.3d at 363-64.

In King v. Rubenstein, we addressed the invasive nature and manner of a search of an inmate who was subjected to surgery to remove penile implants. 825 F.3d at 214-15. We explained that the surgery required cutting “beneath the skin into a sensitive, private body part,” and involved “risk, trauma, and pain,” as well as emotional anguish. Id. at 215. In holding that the inmate sufficiently alleged that the surgery was an unreasonable search under the Fourth Amendment, we stated that the nature of the surgery itself violated the inmate’s “interest of bodily integrity,” which “involves the most personal and deep-rooted expectations of privacy.” Id. (citation omitted).

Although the intrusion suffered by Sims was neither physically invasive nor put him at risk of direct physical harm, the search nonetheless was exceptionally intrusive. First, as alleged by Sims, Abbott sought to do more than visually inspect Sims’ genitalia. He attempted to photograph Sims’ penis in a sexually aroused state. Further, the manner that Abbott employed to execute the warrant, namely, ordering Sims to masturbate to obtain an erection, required that Sims perform a sex act in the presence of three armed officers. Such alleged conduct necessarily invaded Sims’ bodily integrity even though no part of Sims’ body was penetrated or physically harmed. Abbott’s search directed at forcing Sims to achieve an erection intruded “upon an area in which our society recognizes a significantly heightened privacy interest.” See Winston v. Lee, 470 U.S. 753, 767, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985). Requiring Sims to masturbate in the presence of others, like searches involving physical penetration of genitalia, constituted “the ultimate invasion of personal dignity.” Amaechi, 237 F.3d at 363-64; see also King, 825 F.3d at 215.
Moreover, we observe that this sexually intrusive search was rendered more egregious by being conducted in a manner that would instill fear in Sims. See Edwards, 666 F.3d at 884-85. Here, Sims alleged that he was “surrounded” by three armed officers as he questioned whether he was required to submit to Abbott’s orders. Upon Abbott’s insistence, Sims ultimately attempted to comply. Sims further alleged that the search caused him to suffer emotional harm. Winston, 470 U.S. at 761-63 (explaining that intrusions without risk of physical harm nonetheless damage the individual’s sense of personal privacy and security). Accordingly, both the outrageous scope of the sexually intrusive search and the intimidating manner in which the search was conducted weigh strongly against any finding that the search was reasonable.

Under the Bell framework, we next consider the justification for the search. See 441 U.S. at 559. Abbott sought to obtain photographs of Sims’ erect penis for an evidentiary purpose, namely, to compare these photographs with the forensic evidence obtained from the cellular telephones seized from Sims and his girlfriend. However, the Commonwealth ultimately agreed not to use the photographs of Sims’ body as evidence, and the juvenile court nevertheless concluded that the evidence was sufficient to find that Sims had committed the offense of possession of child pornography. Thus, the record demonstrates that there was no evidentiary need to seek a photograph of Sims’ erect penis. See Winston, 470 U.S. at 765-66 (holding that because the prosecutor had substantial evidence available regarding the origin of the bullets sought to be extracted from the defendant via surgery, the need for surgery was reduced).

We cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others. See id. at 767 (explaining that when searches intrude upon heightened privacy interests, a more substantial justification is required). Sexually invasive searches require that the search bear some discernible relationship with safety concerns, suspected hidden contraband, or evidentiary need. See Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981). Thus, we discern no justification for Abbott’s alleged conduct executing the search of Sims’ body, and we conclude that the semi-private location of the search did not mitigate the overall circumstances of this exceptionally intrusive search. Accordingly, we hold that Sims sufficiently alleged a violation of his Fourth Amendment right to be free from the sexually invasive search of his person.

And what was the judge thinking that ordered an erection?

The cop involved committed suicide when he was about to be arrested for allegedly molesting two young boys. And he wanted this youth to masturbate in front of him?

See techdirt: Appeals Court: Forcing A Teen To Masturbate So Cops Can Take Pictures Is A Clear Violation Of Rights by Tim Gushing and WaPo: Detective violated law when searching teen in ‘sexting’ case, federal appeals court rules by Tom Jackman

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