Plaintiff was involved in a bar brawl, and her shirt was torn and her breasts exposed. DC Metro police officers handcuffed her behind her back and took her to jail and failed to do anything to cover her breasts or allow her to do it herself. She stated a claim for an unreasonable seizure under Los Angeles County v. Rettelle which involved a minor exposure during a raid, not hours of exposure that the police here easily could have prevented or cured. And, based on other cases, this is clearly established, so no qualified immunity. Spencer v. District of Columbia, 2016 U.S. Dist. LEXIS 27723 (D.D.C. March 4, 2016):
An early-hours brawl with a fellow nightclub patron left Brittany Spencer’s shirt torn and her breasts exposed to peering onlookers. After the police arrived and detained both combatants, Spencer alleges, they required her to remain topless at the scene and later at the station, in full view of numerous officers and her cellmate. Believing her modesty offended, she filed suit against the arresting officers for effecting an unreasonable seizure under the Fourth Amendment, and against their employer, the District of Columbia, for committing the common-law tort of intrusion upon seclusion. The Defendants now move to dismiss Spencer’s Amended Complaint. Finding that Spencer has properly pled both claims, the Court will deny the motion.
. . .
In determining whether a seizure violates the Fourth Amendment, courts weigh the extent of the intrusion against the law-enforcement interest served by its manner and duration. See L.A. Cnty. v. Rettele, 550 U.S. 609, 613-14, 127 S. Ct. 1989, 167 L. Ed. 2d 974 (2007) (per curiam). Although typical search-and-seizure cases challenge intrusions upon personal liberty as opposed to privacy, the Supreme Court has analyzed police intrusions into bodily privacy using the same balancing test. See id. at 615. In Rettele, for example, the Los Angeles County Sheriff’s Department obtained a warrant to search a house where it expected to find suspected participants in an identity-theft ring. The suspects were African-American, but, as it happened, they had sold the house to a white couple a few months earlier. The officers executed the warrant early in the morning and found the startled couple naked in bed. Despite the couple’s protests, the officers ordered them out of bed and prohibited them from covering themselves with blankets or robes. See id. at 610-12. The officers held the couple at gunpoint for approximately two minutes before permitting them to dress. Upon realizing their mistake, the officers apologized and left. See id. at 611.
The Supreme Court upheld the seizure. Requiring the couple to remain briefly unclothed was warranted, the Court reasoned, because blankets and bedding can conceal weapons, and the fact that the couple was white did not eliminate the possibility that the real suspects were elsewhere in the house. See id. at 614-15. The Court emphasized, however, that the officers were not “free to force [the couple] to remain motionless and standing for any longer than necessary,” noting its earlier recognition that “‘special circumstances, or possibly a prolonged detention,’ might render a [detention] unreasonable.” Id. at 615 (quoting Michigan v. Summers, 452 U.S. 692, 705 n.21, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981)). Central to the Court’s conclusion was that there was “no accusation that the detention … was prolonged” or that the officers “prevented [the couple] from dressing longer than necessary to protect their safety.” Id. Indeed, one of the two “was unclothed for no more than two minutes, and [the other] for only slightly more time than that.” Id.
Spencer’s Amended Complaint tracks the reasoning of Rettele. She alleges that forcing her to remain topless for “twenty to thirty minutes” outside the nightclub, Am. Compl. ¶ 21, and “several hours” at the station, id. ¶ 28, served no legitimate law-enforcement purpose. Defendants do not contend otherwise, at least at this stage of the proceedings. They argue, rather, that because the officers did not cause Spencer’s state of undress in the first place, they had no duty to assist her and therefore cannot be liable for violating her Fourth Amendment rights. See Defs.’ Mot. Dismiss 9-10. And Rettele does not control, they suggest, because the couple there was in bed and under the covers when the officers first encountered them and became exposed only when they were ordered to stand up. Unlike here, therefore, the officers affirmatively caused the couple’s exposure.
Defendants’ argument misses the mark. First, it begins from a faulty premise. An officer’s general duty to assist an arrestee experiencing harm can arise even where the officer was not the source of the harm. See Ortiz v. City of Chicago, 656 F.3d 523, 538-39 (7th Cir. 2011) (noting—where there was no allegation that officers caused the plaintiff’s health condition, which required medical attention—that officers’ failure to provide a pretrial detainee “medical care in the face of a serious health risk [can] constitute[] deliberate indifference” in violation of the Fourth Amendment); Boring v. Kozakiewicz, 833 F.2d 468, 471-74 (3d Cir. 1987) (determining—where there was similarly no allegation that officers caused or exacerbated the plaintiffs’ health conditions or injuries requiring medical attention—whether law enforcement officers had breached their duty under the Due Process Clause to “provide appropriate medical care” to pretrial detainees, id. at 471 (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S. Ct. 2979, 77 L. Ed. 2d 605 (1983))). More importantly, Defendants fail to distinguish Rettele. While the police in Rettele did, in a sense, cause the plaintiffs’ exposure by ordering them out of bed, the Supreme Court assigned little if any significance to that fact. Rather, the Court emphasized that the officers were not “free to force [the couple] to remain motionless and standing for any longer than necessary,” and that there was “no allegation that the deputies prevented [them] from dressing any longer than necessary to protect [officer] safety.” Rettele, 550 U.S. at 615 (emphases added). In other words, the Court focused on how long the plaintiffs were made to remain exposed after the officers had secured the scene, not on why they were undressed to begin with. Rettele thus confirms that police violate the Fourth Amendment when they force a detainee to remain unclothed and exposed for longer than necessary to achieve a legitimate law enforcement purpose. Because Spencer’s Amended Complaint alleges that the officers did just that, and the District offers no legitimate law enforcement purpose to rebut Spencer’s allegations, she has pled a plausible violation of the Fourth Amendment.
2. Qualified Immunity
. . .
This Court is not alone in finding that detainees have a clearly established right not to be subjected to longer-than-necessary bodily exposure at the hands of police. Confronted with similar facts, the court in Brown v. City of New York, No. 11 Civ. 1068, 2013 U.S. Dist. LEXIS 17483, 2013 WL 491926 (S.D.N.Y. Feb. 8, 2013), looked to Rettele and other Supreme Court precedents to determine that a plaintiff who had been left unclothed “for at least forty minutes” during a search “had a clearly established right not to be detained in the nude for longer than necessary to achieve valid law enforcement purposes.” 2013 U.S. Dist. LEXIS 17483, [WL] at *5. The court went on to deny summary judgment to the government on the plaintiff’s § 1983 claim that her seizure violated the Fourth Amendment, reasoning that a jury could find the seizure unreasonable because the plaintiff, much like Spencer has alleged, “was forced to remain standing and undressed for approximately 40 minutes, during which time her numerous requests to cover herself were denied,” and, “for at least part of the detention her arms were handcuffed behind her so that she could not cover herself.” 2013 U.S. Dist. LEXIS 17483, [WL] at *7 (emphases added). The officers in Brown also had not “articulated why [their] safety, or any other valid law enforcement objective, required such prolonged forced nakedness.” Id.; see also Thornton v. Fray, 429 Fed. App’x 504, *2, *5 (6th Cir. 2011) (unpublished) (rejecting qualified immunity for officers who had forced a suspect “to sit on the floor with the bottom half of her body fully exposed” for approximately two hours and refused her requests to cover herself); Hutchinson v. Lemmon, 436 Fed. App’x 210, 216 (4th Cir. 2011) (unpublished) (same for officers who “kept [a suspect] naked for a period substantially longer than necessary to secure the home and protect the officers’ safety”).
