Sims v. Labowitz, No. 16-2174

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: BARBARA MILANO KEENAN, Circuit Judge
• Citation: 885 F.3d 254
• Parties: Trey SIMS Plaintiff–Appellant, v. Kenneth E. LABOWITZ, Administrator pursuant to Code of Va. sect. 64.2-454 of the Estate of David E. Abbott, Defendant–Appellee, and Claiborne Richardson, Defendant. Children's Justice Fund; Child USA, Amici Supporting Appellant.
• Docket Number: No. 16-2174
• Decision Date: 14 March 2018

885 F.3d 254

Trey SIMS Plaintiff–Appellant,
v.
Kenneth E. LABOWITZ, Administrator pursuant to Code of Va. sect. 64.2-454 of the Estate of David E. Abbott, Defendant–Appellee,
and
Claiborne Richardson, Defendant.

Children's Justice Fund; Child USA, Amici Supporting Appellant.

No. 16-2174

United States Court of Appeals, Fourth Circuit.

Argued: September 14, 2017
Decided: March 14, 2018

Vacated in part, affirmed in part, and remanded by published opinion. Judge Keenan wrote the majority opinion, in which Judge Diaz joined. Judge King wrote a dissenting opinion.

Victor M. Glasberg, Maxwelle C. Sokol, Victor M. Glasberg & Associates, Alexandria, Virginia, for Appellant. Julia Bougie Judkins, Bancroft, McGavin, Horvath & Judkins, P.C., Fairfax, Virginia, for Appellee.

Before KING, KEENAN, and DIAZ, Circuit Judges.

BARBARA MILANO KEENAN, Circuit Judge:

ON REHEARING

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

885 F.3d 258

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).¹ 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.² Sims also brought a claim for damages under 18 U.S.C. § 2255 alleging that, as a result of the search, he was the victim of manufactured child pornography in violation of 18 U.S.C. § 2251(a). 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 vacate 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 also vacate the district court's dismissal of Sims' claim for damages under 18 U.S.C. § 2255 as an alleged victim of child pornography, and remand that claim for consideration by the district court in the first instance. We affirm the district court's dismissal of Sims' remaining claims.

I.

Sims alleged the following facts, which we accept as true in our review of the district court's dismissal of the complaint under Federal Rule of Civil Procedure 12(b)(6). See Zak v. Chelsea Therapeutics Int'l, Ltd. , 780 F.3d 597, 601 (4th Cir. 2015). In June 2014, the Commonwealth of Virginia filed felony charges against Sims as a juvenile for manufacturing and distributing child pornography in violation of Virginia Code §§ 18.2-374.1,

885 F.3d 259

18.2-374.1:1. The charges arose based on Sims' conduct of "film[ing] a video of himself and fondling his erect penis" and sending the video to his minor girlfriend using his cellular telephone. After Sims declined to enter into a plea agreement, the Assistant Commonwealth's Attorney for Prince William County, Virginia, Claiborne T. Richardson, II, sought a nolle prosequi, and the juvenile court dismissed the charges against Sims.

The investigation against Sims continued and, at Richardson's direction, Abbott obtained a search warrant from a Virginia magistrate. The warrant authorized a search for "[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."

Richardson and Abbott also obtained a detention order for Sims, which authorized Abbott to transport Sims from his home to a juvenile detention center. In a "locker room" in the center, Abbott and two uniformed, armed officers executed the search warrant. 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 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, the Manassas City Police Department issued a statement explaining that the department's policy did not permit "invasive search procedures of suspects in cases of this nature." Additionally, the Prince William County Commonwealth's Attorney, Paul B. Ebert, condemned the first search of Sims.

Sims' attorney filed a motion to quash the second search warrant. Before the juvenile court ruled on the motion, Richardson informed the court that the Commonwealth "would let the warrant expire without service." Richardson also stipulated that he would not use as evidence the photographs of Sims' penis that had been taken pursuant to the first search warrant.

After the juvenile court reduced the charges to felony possession of child pornography, the court found that the evidence was sufficient to convict Sims but did "not make a finding of guilt[ ]" and suspended imposition of sentence for one year. The court ordered Sims to comply with certain terms of probation, including performing 100 hours of community service, barring Sims from "access to social media," and prohibiting Sims from sending "text messages." After Sims completed the terms of his probation in August 2015, the court dismissed the charge against him.

The Administrator filed a motion to dismiss with prejudice under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion, concluding that the Administrator was entitled to qualified immunity on the Section 1983 claims. The district court also dismissed Sims' claim for damages brought under

885 F.3d 260

18 U.S.C. § 2255. Sims timely filed the present appeal.

II.

A.

We first consider Sims' argument that his right of privacy under the Fourth Amendment was violated when Abbott attempted to obtain a photograph of Sims' erect penis and ordered him to masturbate in the presence of others. Sims contends that any reasonable officer would have known that this conduct violated Sims' Fourth Amendment right of privacy and that, therefore, the Administrator was not entitled to the protection of qualified immunity.

In response, the Administrator maintains that Sims failed to allege sufficient facts to support a Fourth Amendment violation because Abbott's search did not place Sims at risk of physical harm, and because the search did not physically invade Sims' body. The Administrator alternatively contends that even if Abbott's conduct violated the Fourth Amendment, such right was not clearly established at the time of the search because Abbott acted pursuant to a validly issued search warrant. We disagree with the Administrator's arguments.

We review de novo the district court's dismissal of Sims' complaint on the ground of qualified immunity. Ridpath v. Bd. of Governors Marshall Univ. , 447 F.3d 292, 306 (4th Cir. 2006). As previously explained, we construe the facts alleged in the light most favorable to Sims. Id. at 309.

The doctrine of qualified immunity shields government officials from liability for civil damages when their conduct does not violate clearly established constitutional or other rights that a reasonable officer would have known. Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ; Graham v. Gagnon , 831 F.3d 176, 182 (4th Cir. 2016). Qualified immunity seeks to balance two interests, namely, the "need to hold public officials accountable when they exercise power irresponsibly and the need to...