Wednesday, December 6, 2017

Warrant Does Not Prevent Police Officer Liability

The United States Court of Appeals for the Fourth Circuit held that some claims against the estate of a police officer  who executed a warrant that required a photograph of the defendant's erect penis survive dismissal on the pleadings

In 2014, David E. Abbott, a detective with the Manassas City Police Department in Virginia, investigated allegations that 17-year-old Trey Sims used his cellular telephone to send sexually explicit photographs and video recordings of himself to his 15-year-old girlfriend. During the course of the investigation, Abbott obtained a search warrant authorizing photographs of Sims’ naked body, including his erect penis. When Abbott executed the warrant, he allegedly demanded that Sims manipulate his penis to achieve an erection. Sims unsuccessfully attempted to comply with Abbott’s order. The civil action before us is based on these alleged events.

Abbott died before the present case was filed. Sims therefore initiated this action against Kenneth Labowitz, the administrator of Abbott’s estate under Virginia Code § 64.2-454 (the Administrator). Sims asserted claims for damages under 42 U.S.C. § 1983, alleging that the search of his person violated his Fourth Amendment right of privacy or, alternatively, his right of substantive due process under the Fourteenth Amendment. Sims also brought a claim under 18 U.S.C. § 2255(a) alleging that, as a result of the search, he was the victim of manufactured child pornography. The district court determined that the Administrator was entitled to qualified immunity on the Section 1983 claims, and accordingly dismissed that portion of Sims’ action. The court also dismissed the remainder of Sims’ complaint.

Upon our review, we reverse the district court’s judgment with respect to the Section 1983 claim alleging a Fourth Amendment violation. 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. We therefore remand Sims’ Section 1983 claim alleging a Fourth Amendment violation to the district court for further proceedings. We affirm the district court’s dismissal of Sims’ remaining claims, including his claim for damages under 18 U.S.C. § 2255(a) as an alleged victim of child pornography.

Circuit Judge King dissented

I write separately to dissent from the majority’s denial of Detective Abbott’s qualified immunity claim. With great respect for my good colleagues, their decision fails to recognize the controlling facts that undermine the § 1983 claim of plaintiff Sims. That is, Detective Abbott was acting pursuant to the advice of counsel and adhering to a court order. In my view, Abbott’s actions were entirely consistent with applicable law and the Fourth Amendment. To explain my position more fully, this dissenting opinion contains three short segments. First, I emphasize the sanctity and importance of court orders. Second, I review the controlling facts and some guiding legal principles. Finally, I explain that Detective Abbott did not contravene any constitutional right and that he is entitled to qualified immunity. Put simply, I would affirm the district court.

The warrant authorized seizure of the following

Photographs of the genitals, hands, and other parts of the body of Trey 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.


Put simply, the search warrant at issue here was properly and legally issued, it was complied with, and Detective Abbott is entitled to qualified immunity.

The Washington Post reported on the death of the officer, who committed suicide when police came to his home to arrest him on sexual misconduct charges.

A Manassas City police detective, who was the lead investigator in a controversial teen “sexting” case last year, shot and killed himself outside his home Tuesday morning as police tried to arrest him for allegedly molesting two boys he met while coaching youth hockey in Prince William County.

David E. Abbott Jr., 39, was a member of the Northern Virginia-Washington D.C. Internet Crimes Against Children Task Force and had been an officer on the Manassas City force for 14 years. In his spare time he coached 13- and 14-year-old boys in travel hockey for the Potomac Patriots program at the Prince William Ice Center in Woodbridge, club officials said. When Prince William police learned Monday of the allegations of improper contact by Abbott over a period of years, they moved quickly.

Police said they learned that Abbott had sent inappropriate text messages and emails to a 13-year-old boy he met through the hockey program. By phone and social media, Abbott had been asking the boy for sex acts for more than two years, county police said.

Detectives then learned of a second potential victim, a boy who was 13 and was also part of the Patriots hockey club in 2008 when Abbott began sending him inappropriate messages, police said. Early Tuesday, Prince William police obtained a search warrant for Abbott’s townhouse on Senea Drive in Gainesville, where he lived with his mother. Police also obtained four felony arrest warrants — two counts of indecent liberties by a custodian and two counts of use of a communication device to solicit a sexual offense.

Police arrived at the townhouse about 2:30 a.m. Tuesday, Prince William Sgt. Jonathan Perok said. Abbott refused to surrender. Aware that the detective probably had weapons, the police then evacuated some nearby townhouses as a precaution, Perok said.

(Mike Frisch)

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