TREY SIMS v. KENNETH E. LABOWITZ
US Court of Appeals for the Fourth Circuit, Keenan, Initial issue Dec. 5, 2017, Re-Issued March 14, 2018,
Qualified Immunity – A detective was not entitled to qualified immunity where he had a juvenile masturbate in front of three officers in order to photograph the juvenile’s erect penis pursuant to a search warrant

(Dissent – King – The detective obtained two search warrants and was acting at the direction of a prosecutor. Therefore he should be entitled to qualified immunity. Qualified immunity should also apply to the Child Pornography claim)

Changes:
Amicus filed by the Children’s Justice Fund
Switched reversal into a remand
Added citation to the Sexual Exploitation of Children statute
Previously affirmed dismissal of claim for damages as a victim of child pornography, switched to vacate and remand for consideration
Deleted previous language explaining why this wasn’t child pornography

Facts (according to the lawsuit):
In 2014, Virginia detective David Abbott was investigating allegations that Sims (17 years old) used his cellular phone to send a picture of his erect penis to his girlfriend (15 years old).
Sims was charged, but the case was dismissed when Sims decided not to plead guilty.
At the direction of the prosecutor, Detective Abbott obtained a search warrant to photograph Sims, including “[p]hotographs of the genitals, and other parts of the body of [Sims] that will be used as comparisons in recovered forensic evidence from the victim and suspect’s electronic devices. This includes a photograph of the suspect’s erect penis.”
The prosecutor obtained a detention order for Sims and Sims was transported by Abbott from home to a juvenile detention center. In the locker room of the detention center, Abbott ordered Sims to “pull down his pants so that photos could be taken of his penis.” After Sims complied, Abbott instructed Sims “to use his hand to manipulate his penis in different ways” to obtain an erection. However, Sims was unable to achieve an erection. Nonetheless, Abbott took photographs of Sims’ flaccid penis using Abbott’s cellular telephone.
The next day, Sims was arraigned on charges of possession and distribution of child pornography. Abbott informed Sims’ attorney that Abbott again “proposed to take photographs of [Sims’] erect penis” to be used as evidence. Abbott also stated that if Sims could not achieve an erection, Sims would be taken “to a hospital to give him an erection-producing injection.”
Abbott applied for and obtained a second search warrant from a Virginia magistrate which authorized additional photographs of Sims’ naked body, including his erect penis.
Before the second search warrant was executed, however, both the Manassas City Police Department and the Prince William County Commonwealth’s Attorney (their local prosecutor) condemned the first search of Sims and made public statements that the police conduct here was inappropriate. Abbott was directed not to execute the second search warrant.
Sims filed suit against Abbott as well as the prosecutor in the case, arguing that ordering him to masturbate was a violation of the Fourth Amendment and that the prosecutor guided the officer in pursuing repeated, unnecessary search warrants.
Prior to trial, the case was dismissed due to qualified immunity against the officer and absolute immunity against the prosecutor.
Sims appealed dismissal against the officer, arguing that any reasonable officer would have known that ordering a minor to masturbate in order to take a picture of his erect penis would be a violation of the Fourth Amendment (Unreasonable Search) as well as the Fourteenth Amendment (Due Process).

Held:
The Fourth Circuit agreed with Sims. 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.

Qualified Immunity – Police officers are protected from suit by “qualified immunity.” Qualified immunity protects officers from civil suit so long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Qualified Immunity – Constitutional rights are “clearly established” when the Supreme Court or other binding court decides an issue sufficiently clearly that “every reasonable official would have understood that what he is doing violates the law.”

Qualified Immunity – Qualified immunity is designed to protect officers from “bad guesses in gray areas” and ensures that they are liable only for crossing “bright lines.”

Note: A line is considered “bright” by the courts if the issue was decided in an opinion. That line may not appear as “bright” to an officer who may not have time to read dozens of cases a month, which is why these legal updates are provided to you.

Qualified Immunity – For a Maryland police officer, law is “clearly established” when the Supreme Court, 4th Circuit, Court of Appeals of Maryland, or Court of Special Appeals of Maryland has decided an issue beyond question.

Qualified Immunity – While qualified immunity is usually decided by whether a previous court opinion has placed the issue “beyond debate,” extreme behavior that no reasonable officer would think was constitutional would also qualify.

From the Case: Abbott “is not entitled to invoke qualified immunity simply because no other court decisions directly have addressed circumstances like those presented here.” “For good reason, most outrageous cases of constitutional violations rarely are litigated.” While no court opinion has held that you can’t make a juvenile masturbate in order to take a picture of his erect penis, “well-established Fourth Amendment limitations on sexually invasive searches adequately would have placed any reasonable officer on notice that such police action was unlawful.”

Sexually Invasive Searches – A search must be reasonable based on a balance of factors: (1) the scope of the particular intrusion; (2) the manner in which the search was conducted; (3) the justification for initiating the search; and (4) the place in which the search was
performed.

Sexually Intrusive Search – Scope – A strip search involves an “extreme intrusion upon personal privacy,” but for any search that exceeds visual inspection of a naked body “the magnitude of the intrusion is even greater.”

From the Case: Requiring Sims to masturbate in the presence of others, like searches involving physical penetration of genitalia, constituted “the ultimate invasion of personal dignity.”

Sexually Intrusive Search – Manner – A sexually intrusive search should be done in a way that minimizes the intrusion into personal privacy and allows the suspect to retain dignity to the degree reasonably possible

Sexually Intrusive Search – Juveniles – A sexually invasive search must be performed with “extreme caution” when conducted on a minor as they are “especially susceptible to possible traumas” associated with these searches.

From the Case: Sims, a juvenile, was forced to masturbate in front of three armed officers. When he was unable to become aroused, he was threatened. In light of this, “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.”

Sexually Intrusive Search – Justification – The greater the justification, the more reasonable an intrusive will be considered. Sexually invasive searches must be justified based on a safety concern, suspected hidden contraband, or need to recover evidence.

From the Case: We cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others. Moreover, the photographs taken were not necessary to prove the case at trial as there was substantial additional evidence available.

Sexually Intrusive Search – Location – A sexually intrusive search must be performed in a private area unless urgent issues require immediate action. The more invasive a search, the more private the area must be.

From the Case: The locker room in a juvenile facility would have been acceptable for a more limited search, but “the semi-private location of the search did not mitigate the overall circumstances of this exceptionally intrusive search.”

Search Warrant – A valid search warrant does not allow the officer to execute it unreasonably.

From the Case: The search warrant to photograph Sims’ penis did not authorize Abbot to require Sims to masturbate in the presence of the three officers

Child Pornography – A victim of child pornography is entitled to damages of “no less than $150,000.”

Child Pornography – Civil Recovery – To sue for damages as the victim of child pornography, it must be demonstrated that there has been a violation of certain federal crimes related to child pornography

From the Case: Because the district court judge did not decide whether this had occurred, the case was sent back to determine whether Det. Abbott violated federal law related to child pornography

Child Pornography – Child pornography is defined as lascivious conduct (conduct tending to excite; lust; indecent; obsecene).

Child Pornography – In determining whether material is “lascivious,” courts consider several factors:
(1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area;
(2) whether the setting of the visual depiction is sexually suggestive
(3) whether the child is depicted in an unnatural pose or inappropriate attire
(4) whether the child is fully or partially clothed or nude;
(5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.