CA3: Video invasion of privacy of a police officer in the nude at work stated a Fourteenth Amendment claim (but not a Fourth Amendment claim)

In a fascinating case, plaintiff female police officer who, with another, was contaminated with fleas on the job who was sent to the county’s emergency services decontamination area and had a voyeur male officer videotaped her nudity stated a claim for relief against the county for a violation of privacy under the due process clause of the Fourteenth Amendment. She did not, however, state a Fourth Amendment claim because the offending male officer was acting on his own, not for state purposes, despite the county’s spurious claim that the video was for training purposes of how to decontaminate [which was completely undermined by how it was shared]. The court also finds that ease of electronic sharing of the video factored into the invasion of privacy. Doe v. Luzerne County, 660 F.3d 169 (3d Cir. 2011):

Although the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit, other circuits — including the Second, Sixth and Ninth Circuits — have held that such a right exists. See, e.g., Poe v. Leonard, 282 F.3d 123, 136-39 (2d Cir. 2002) (finding that plaintiff, a female civilian who was participating in a police training video, alleged sufficient facts to raise a triable issue of whether her constitutional right to privacy was violated where the male police officer surreptitiously filmed her in the dressing room while topless and without a bra); York v. Story, 324 F.2d 450, 454-56 (9th Cir. 1963) (finding that the plaintiff properly stated a claim for a violation of her constitutional right to privacy where she alleged that, while reporting a sexual assault, a male police officer deceived her into permitting him to photograph her genitals and exposed breasts under the pretext of an investigation), cert. denied, 376 U.S. 939 (1964); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 497-98 (6th Cir. 2008) (finding a privacy violation where a middle school’s surveillance cameras recorded the plaintiff students in their undergarments while in the school locker room).

Privacy claims under the Fourteenth Amendment necessarily require fact-intensive and context-specific analyses, and unfortunately, bright lines generally cannot be drawn. The difficulty in drawing a bright line is evident as we are not aware of any court of appeals that has adopted either a requirement that certain anatomical areas of one’s body, such as genitalia, must have been exposed for that person to maintain a privacy claim under the Fourteenth Amendment or a rule that a nonconsensual exposure of certain anatomical areas constitutes a per se violation. See, e.g., Poe, 282 F.3d at 136-39 (conducting a context-specific analysis); York, 324 F.2d at 454-56 (same); Brannum, 516 F.3d at 493-500 (same but in the Fourth Amendment context). We likewise refuse to draw bright lines based on anatomical parts or regions. Accordingly, we must analyze the specific circumstances under which the alleged violation occurred.

We conclude that Doe had a reasonable expectation of privacy while in the Decontamination Area, particularly while in the presence of members of the opposite sex. …