Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided. I’m Alan Mygatt-Tauber.
This week we’re discussing Sims v. Labowitz, a Fourth Circuit case addressing an attempt by a police officer to get photos of a minor’s erect penis as part of a child pornography investigation.
In 2014, Detective David Abbott of the Manassas City Police Department in Virginia investigated allegations that Trey Sims, a 17 year old boy, used his cell phone to send sexually explicit photos and videos of himself to his 15 year old girlfriend. As part of the investigation, Abbott obtained a search warrant authorizing photos of Sims’ naked body, including his erect penis, for comparison purposes. When executing the warrant, he allegedly demanded that Sims masturbate in front of him and two other officers to achieve an erection. Sims was unable to comply. Abbot took photos of Sims flaccid penis. He later sought a second warrant, which was not executed.
Before Sims filed suit, Abbott was charged with possession of child pornography and committed suicide. Sims therefore sued Kenneth Labowitz the executor of Abbot’s estate. The District Court dismissed the claim, holding that Abbott was entitled to qualified immunity for his actions. Sims appealed to the Fourth Circuit.
In a 2-1 decision, the Fourth Circuit reversed the decision, holding that a reasonable police officer would have known that attempting to obtain a photograph of a minor’s erect penis, by ordering him to masturbate in the presence of others, would unlawfully evade the child’s right to privacy under the Fourth Amendment.
The Commonwealth of Virginia charged Sims with violation of state laws against the creation and distribution of child pornography. Detective Abbott, after consulting with the Commonwealth’s attorney, sought a warrant to photograph Sims’s genitals, including his erect penis. Abbott detained Sims and took him to a juvenile detention center. In a locker room in the center, Abbott and two uniformed, armed officers, executed the warrant. It was at this point that Abbott told Sims to masturbate to achieve an erection.
Following this failure, Abbott obtained a second warrant from a different magistrate, again authorizing photos of Sims’s naked body, including his erect penis. Before this second warrant was executed, however, the Manassas City Police Department issued a statement that department policy did not allow such searches and the Commonwealth’s attorney condemned the first search. The Commonwealth agreed that it would not use the photos obtained in executing the first warrant.
The juvenile court reduced the charges to felony possession of child pornography, found there was sufficient evidence to convict Sims, even without the photographs, but did not make a finding of guilt. It suspended imposition of sentence for one year. Sims complied with all the terms of his probation and the charges against him were dismissed.
Sims argued on appeal that any reasonable officer would have known that this conduct violated his Fourth Amendment right to privacy, and therefore the administrator was not entitled to qualified immunity.
The Administrator argued that Sims failed to allege sufficient facts to support a Fourth Amendment violation because the search did not place Sims at risk of physical harm and because it did not physically invade his body. Alternatively, he argued that even if the search violated the Fourth Amendment, the right was not clearly established at the time of the search, because Abbott acted pursuant to a validly issued search warrant.
The Court sided with Sims. It began with an examination of the constitutional right. It began with the recognition that the overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State. Furthermore, the Court noted that a search is only lawful when it is reasonable. When dealing with a sexually invasive search, which this clearly was, the Court balances the invasion of personal rights caused by the search against the need for that particular search. The Court looks to the scope of the particular intrusion; the manner in which the search was conducted; the justification for initiating the search; and the place where the search was performed.
Here, the sexually invasive search constituted an extreme intrusion upon personal privacy as well as an offense to the dignity of the individual. When the scope of the search exceeds a visual inspection of the naked body, the magnitude of the intrusion is even greater. While the search of Sims was not physically invasive not put him at risk of physical harm, it was nevertheless exceptionally intrusive according to the majority.
Here, Abbott sought to do more than inspect Sims – he took photographs. And he attempted to photograph him in a sexually aroused state. The manner that he employed to achieve that end, ordering Sims to masturbate to obtain an erection, required that Sims perform a sex act in the presence of three armed officers. This, the Court held, constituted the ultimate invasion of personal dignity, on par with a physical penetration of genitalia. This invasion was rendered more egregious because it was conducted in a manner that would instill fear in Sims.
Turning to the justification or the search, the Court noted that the Commonwealth ultimately agreed not to use the photographs as evidence, and the juvenile court concluded that there was sufficient evidence to convict – thus there was no evidentiary need to seek a photo of Sims’s erect penis. But even if the evidence had been useful, the majority could not perceive of any circumstance that would justify a police search requiring an individual to masturbate in the presence of others. Thus, the semi-private location of the search did not mitigate the overall circumstances of the search. Thus, the Court majority found that Sims sufficiently alleged a violation of his Fourth Amendment rights.
It then examined the second prong of the qualified immunity test, whether Abbott should have known that seeking a photo of Sims’s erect penis and to require him to masturbate in the presence of others, was clearly unlawful at the time the search occurred.
The majority noted that there is no requirement that the exact conduct at issue need not have been previously deemed unlawful to be clearly established. Rather, the Court must determine if the pre-existing law makes apparent the unlawfulness of the officer’s conduct.
The Court held that both it and the Supreme Court had developed an entire body of jurisprudence establishing limits on sexually intrusive searches, identifying nine cases that dealt with the subject. It further noted several district court cases allowing visual inspection of a suspect’s genitalia, but all of them involved an evidentiary need to confirm certain characteristics of the genitalia and none required an erection or masturbation in the presence of others.
The majority also noted that Sims’s status as a minor was a further cause for concern for Abbott. Given this combination of factors, the Court had no trouble concluding that Abbott, and thus his administrator, was not entitled to qualified immunity in this case.
The Court then addressed the Administrator’s argument that the presence of a warrant immunized Abbott’s conduct. While recognizing that warrants usually provide a shield of immunity, due to the participation of a neutral magistrate, the Court noted that such a warrant does not confer immunity if it was objectively unreasonable for the officer to rely on it. Here, the obvious invasion of Sims’s person, in clear violation of the Fourth Amendment, made it objectively unreasonable to rely on the warrant.
The Court then quickly upheld the District Court’s decision dismissing a claim for damages against Abbott for creating child pornography under federal law. Because that law requires a lascivious intent which was lacking here, the District Court was correct to dismiss this charge.
Judge Robert King dissented. He made three arguments – first, he emphasized the sanctity and importance of court orders, second he reviewed guiding legal principles and third he held that Abbott did not violate any Constitutional right.
He began his dissent with an examination of the importance of the rule of law, and the role complying with judicial orders plays in that. He believed that since Abbott was in possession of a valid search warrant authorized by a judge, he had no right to disobey the order to search Sims. He was concerned that finding liability, despite the existence of a warrant, could lead police officers to second-guess court orders in other contexts.
Judge King also found it relevant that Abbott did not seek the warrant on his own. Rather, he sought the warrant only after consulting with, receiving advice from, and complying with the directives of the Commonwealth’s Attorney’s office. The intercession of both the attorney and the judge should be enough to grant Abbott qualified immunity, according to King.
He concluded his analysis by noting that Abbott was further entitled to qualified immunity under Supreme Court precedent. Searches executed pursuant to a warrant are presumptively reasonable, therefore King does not believe that Abbott violated Sims’s Fourth Amendment rights. He further argues that even if some Fourth Amendment right was violated, it was not clearly established, as the right must be defined at a high level of particularity. Judge King points out that almost all of the decisions the majority relied upon dealt with unwarranted searches. Thus, there was a dearth of precedent warning Abbott that he should disregard the warrant in this case. The dissent points out that, in fact, TWO different magistrates signed off on these searches, although only one search was actually executed. Given these facts, he felt he had no choice but to dissent.
While I agree with the outcome of this case from a policy standpoint, I believe that under the law of qualified immunity as it is currently recognized, the dissent has the better legal argument. And that, right there, is the problem with qualified immunity in this country. The fact that there is even some debate about the validity of this search is dismaying to say the least. But of the four judges to examine the question of whether Detective Abbott was wrong, they are evenly split, 2-2. What is more dismaying than Detective Abbott executing these searches is that two different magistrates and a Commonwealth Attorney approved of the idea of taking pictures of the erect penis of a minor child because he took pictures and videos of himself and shared them with his girlfriend. At no point, until after public pressure came to bear, leading to the non-execution of the second warrant, did anyone stop and think that this might be inappropriate. Clearly, there is something amiss here. That three officers of the Court could sign off on this warrant, and another 2 judges could determine that this officer’s conduct fell within a gray area justifying immunity, indicates to me that it is time to seriously re-evaluate the qualified immunity doctrine. Hopefully, the Supreme Court will heed Justice Thomas’s recent call to do just that.
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