{"id":9232,"date":"2013-10-05T08:26:22","date_gmt":"2013-08-09T08:27:40","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-08-09T08:27:40","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=9232","title":{"rendered":"CA5: 1983 claim police used plaintiff as sexual bait to arrest a police officer and failure to protect fails on qualified immunity"},"content":{"rendered":"

Plaintiff\u2019s 1983 claim of the police using her as sexual bait to arrest a police officer and failure to protect fails on qualified immunity. Whitley v. Hanna<\/a>, 726 F.3d 631 (5th Cir. 2013)*:<\/p>\n

<\/p>\n

On appeal, Whitley presents two theories of liability she asserts warrant reversal of the district court’s decision. First, relying on our decision in Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir. 1994) (en banc), Whitley argues that Appellees are liable under \u00a7 1983 for acting with deliberate indifference to her constitutional rights by engaging in an investigation premised on catching Ariaz (the primary constitutional wrongdoer) in the act of abusing her. Second, citing to Hale v. Townley, 45 F.3d 914 (5th Cir. 1995), Whitley asserts that Appellees are liable under \u00a7 1983 under a theory of bystander liability because they failed to stop Ariaz, a fellow officer, from violating Whitley’s fundamental liberty interest in her bodily integrity.fn2 Lastly, Whitley contends that the district court erred in denying her motion to amend her complaint.<\/p>\n

fn2 Whitley also asserts that she has sufficiently stated a constitutional violation under Rochin v. California, because Appellees’ conduct shocked the conscience. See 342 U.S. 165, 166, 172-74 (1952) (conduct “shock[ed] the conscience” and violated the Due Process Clause where arresting police officers ordered doctors to pump suspect’s stomach to induce him to vomit two morphine capsules). During oral argument, Whitley expressly limited the grounds on which she sought relief and it thus is unclear whether she is still pursuing a claim under Rochin’s shocks-the-conscience standard.<\/p>\n

As will be discussed, however, the alleged facts do not rise to the level of shocking the conscience: Whitley has not alleged that Appellees themselves sexually abused her; at best, she has shown that Appellees conducted a deficient investigation and failed to intervene earlier. Such circumstances do not conform to the extreme cases in which the shocks-the-conscience standard typically has been satisfied. See, e.g., Morris v. Dearborne, 181 F.3d 657, 668 (5th Cir. 1999) (teacher fabricated sexual abuse charges against a student’s father); Rogers v. City of Little Rock, Ark., 152 F.3d 790, 797 (8th Cir. 1998) (police officer raped woman in her house after stopping her for traffic violation).<\/p><\/blockquote>\n

We address each of her theories below, and conclude that Whitley fails to state a claim under either her deliberate indifference or bystander liability theory.3 Our conclusion that Whitley fails to state a claim as to any of the Appellees also resolves the question of qualified immunity raised in Hanna and Bullock’s motion to dismiss. See Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 410 (5th Cir. 2009) (“If we determine that the alleged conduct did not violate a constitutional right, our inquiry ceases because there is no constitutional violation for which the government official would need qualified immunity.”); Hampton v. Oktibbeha Cnty. Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir. 2007). …<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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