LF: Appeals Court: Forcing A Teen To Masturbate So Cops Can Take Pictures Is A Clear Violation Of Rights

Title: Appeals Court: Forcing A Teen To Masturbate So Cops Can Take Pictures Is A Clear Violation Of Rights
Source: TechDirt
URL Source: https://www.techdirt.com/articles/2 ... s-clear-violation-rights.shtml
Published: Dec 6, 2017
Author: Tim Cushing
Post Date: 2017-12-08 09:33:42 by Deckard
Keywords: None
Views: 3693
Comments: 54

from the well-no-shit dept

I cannot imagine what it must be like as an appellate court judge to have to write these words (h/t Brad Heath):

Construing the facts in the light most favorable to [Trey] 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.

I don't know which is sadder: the fact that this case -- the absolute nadir (so far!) of stupid teen sexting prosecutions -- even exists or that the lower court somehow found in favor of the officer (now deceased) being sued.

A cop engaged in the act of producing child pornography by attempting to force a teen to arouse himself while surrounded by police officers supposedly for the purpose of matching the teen's erect penis to photos the cop already had in his possession as part of a sexting "investigation." The officer was told by prosecutors to do this, which shows the twisted logic of this abhorrent request didn't spring entirely from the mind of Detective David Abbott. He, however, did not turn down the prosecution's request. The prosecutor who ordered this "production" of evidence was Claiborne Richardson. Unfortunately, he has the sort of immunity cops like Abbott can only wish they had: absolute immunity. Richardson walks away from this with little more than reputational damage.

There's a judge out there somewhere with their name scrawled across a granted warrant request ordering a teenager to produce an erection for cops. Actually, there's two of them, though both go unnamed in the decision [PDF]. (Oral arguments are embedded at the bottom of the post.) From the dissent's[!] footnote:

On this record, search warrants were issued on June 3, 2014, and again on July 1, 2014, by two different magistrates. See Supp. J.A. 72, 76. The June warrant was the only one executed. In executing the June warrant, Abbott was unable to obtain some of the photos being sought. Because the prosecutor and the detective agreed that additional photos were necessary, Abbott was directed to seek the July warrant. That warrant was never executed and was voided.

And there's the judge who heard the prosecution's request to get this warrant and said that was fine. That judge's name is Jan Roltsch-Anoll. All of these justice system components worked together to put a teen in a room full of cops with the instructions to masturbate so a detective could take photos.

Abbott's representation was willing to take a chance on seeing the lower court's awful immunity decision upheld, despite there being nothing remotely sane -- much less Fourth Amendment-compliant -- about law enforcement's actions. Detective Abbott's survivors continue his fight for him as Abbott killed himself in late 2015 as police tried to arrest him for allegedly molesting two teens he met coaching youth hockey. (Make of that what you will.)

The Fourth Circuit Court of Appeals finds nothing at all to like about Abbott's pleas for qualified immunity.

Abbott’s search directed at forcing Sims to achieve an erection intruded “upon an area in which our society recognizes a significantly heightened privacy interest.” See Winston v. Lee, 470 U.S. 753, 767 (1985). Requiring Sims to masturbate in the presence of others, like searches involving physical penetration of genitalia, constituted “the ultimate invasion of personal dignity.” Amaechi, 237 F.3d at 363-64; see also King, 825 F.3d at 215.
Moreover, we observe that this sexually intrusive search was rendered more egregious by being conducted in a manner that would instill fear in Sims. See Edwards, 666 F.3d at 884-85. Here, Sims alleged that he was “surrounded” by three armed officers as he questioned whether he was required to submit to Abbott’s orders. Upon Abbott’s insistence, Sims ultimately attempted to comply. Sims further alleged that the search caused him to suffer emotional harm. Winston, 470 U.S. at 761-63 (explaining that intrusions without risk of physical harm nonetheless damage the individual’s sense of personal privacy and security). Accordingly, 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.

Nothing.

We cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others.

Abbott's estate argued the search violated no clear precedent. In other words, no comparative case had reached this level in the justice system and found ordering a teen to masturbate in front of police officers (while one of them photographed him) was a clearly established violation of the Fourth Amendment. The court agrees, but notes there's a very good goddamn reason why there's no precedent exactly on point with this abysmal abuse of power.

We further observe that the Administrator is not entitled to invoke qualified immunity simply because no other court decisions directly have addressed circumstances like those presented here. See Clem, 284 F.3d at 553. For good reason, most outrageous cases of constitutional violations rarely are litigated. See K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (explaining that never before had there been a case accusing welfare officials of selling foster children into slavery, but those officials nevertheless would not be entitled to immunity). Abbott’s conduct affronted the basic protections of the Fourth Amendment, which at its core protects personal privacy and dignity against unjustified intrusion by governmental actors.

The dissent actually believes Abbott should still be granted immunity because a) he obtained warrants and b) he consulted with Commonwealth prosecutors (namely, Claiborne Richardson, whose reputation should be just as worthless as Abbott's) before obtaining them. If we follow this line of thinking, we are being asked to absolve all officers of egregious misconduct so long as certain procedural steps are followed before they go off the deep end. In fact, it asks to reward officers (and other government employees) who can find support from equally-questionable colleagues for their actions. According to the dissent, the whole rotten barrel should be excused from punishment because the rot was caused by several bad apples, rather than a single, rogue actor.

Even worse, if you're going to choose a qualified immunity hill to die on, why would you choose the one containing cops and prosecutors taking photographs of a masturbating teen? What possible public service could a decision in the detective's favor possibly provide? All it would do is create one more line an Appeals Court has yet to draw, allowing cops to force minors to strip and masturbate as long as they have a warrant. But that's what Judge Robert B. King apparently wants: no precedential declaration that forcing minors to masturbate in the presence of officers is a clear violation of established rights. But that's the way the system works. It so insulates police officers and prosecutors from accountability, no one at the bottom level of this pathetic prosecutorial food chain took any action to stop this from happening until after two warrants were issued and one was executed.

True fact: people in these positions can stop at any time. They don't need to wait for clearly-established precedent from high-level federal courts. No one forces prosecutors to suggest taking photos of a teen's erect penis and insane requests from prosecutors can always be turned down by law enforcement officers. But no one did anything to head off the clear rights violation. And once it was done, Detective Abbott tried to Nuremberg his way out of it and the Commonwealth's attorney -- Claiborne Richardson -- ducked out of the public eye as soon as the shit started hitting the fan. The legacy of everyone involved, from the detective executing the warrant to the juvenile court judge who granted time for it to be executed should be tarnished forever.

That this Abbott guy killed himself while facing arrest on pedophilia charges kinda makes the issue quite clear. But still, he didn't act alone.

Forcing a teen to masturbate is like forcing me to take money. Besides, the headline is a lie.

That's only a down payment on the charges that should have been hanged around the neck of that cop,and every other cop that was there witnessing this that didn't stop it from happening and arrest the SOB's responsible.

Being hired to enforce the law does NOT mean you are immune to arrest for breaking the law.

In the entire history of the world,the only nations that had to build walls to keep their own citizens from leaving were those with leftist governments.

And the cop cheer leaders here wonder why so many have no respect for the badge'd costume clowns.

Never Pick A Fight With An Old Man He Will Just Shoot You He Can't Afford To Get Hurt

"If there are no dogs in Heaven, then when I die I want to go where they went." (Will Rogers)

Perhaps you would enjoy examining the evidence to make that determination for yourself.

Seems like mass arrest of the police present is in order, and that prosecutorial and judicial immunity should be lifted here.

Never Pick A Fight With An Old Man He Will Just Shoot You He Can't Afford To Get Hurt

"If there are no dogs in Heaven, then when I die I want to go where they went." (Will Rogers)

The Libertarians and ignorant assholes on this forum (not sure which description fits t-pain-in-the-ass best) believe that any behavior which does not harm others through force or fraud should be allowed.

I merely pointed out (ten years ago) that would, therefore, include masturbation in public. Since that shut him up, I had forgotten all about it.

T Paper is both a LIBERALterian and a KOOKIFONIA asshole. If you put Commie Sanders and Thomas Jefferson in a blender, mixed it up, drank it down and later took a shit in KOOKIFONIA... you'd have a T-paper.

Willingly lives in a high tax, Nazi gun and business regulated, sanctuary SHITHOLE called KOOKIFONIA... and then, from the safety of his shithole, questions others about their patriotism.

He's worthless scum. The only thing he's good for is turning oxygen into carbon dioxide.

Forcing a teen to masturbate in front of someone is sick. You sound like a pedophile with this sick post you made.

Forcing someone to masturbate and taking pictures to satisfy one's personal perversion does not fit the criteria of "behavior which does not harm others through force or fraud".

At least the pervert cop had the decency to save the taxpayers the cost of a trial.

Using his sicko beliefs, misterwhite claims that a public display of masturbation is NOT an attempt to force people to watch him.

Ten years ago, I pointed this fact out to the dumb masturbator. Unable to refute this truth, misterwhite has been hiding from debate ever since.

It's easy to question the patriotism of you and misterwhite, seeing you both lie about our Constitution, and libertarianism, at every opportunity.

Your silly stupidities about millions of Californians, outvoted by other millions of socialists, will soon be shown to be idiotic, when the state (and nation) goes bankrupt.

Keep paying the taxes that KOOKIFONIA uses to fund the lawyers that defend the states lawsuits. lol

Who made you the gatekeeper for this analysis? Yourself, a biased PRO Police State POMPOM Girl?

NYS is the highest taxed state in the 50. KOOKIFONIA is number 3. Both are over regulated with excessive ordinances and laws. I left NYS and all my family behind so I didn't feed the machine (with taxes) that supplied my chains. I took all my guns and funds (my pension)... and left for good.

Its a nice day today. It is about 76 degrees F. Tyme for the hammock and the cool breeze + a six pack.

The mystery here is why you're defending an oaf (misterwhite) stuck on masturbation.

Here's a clown who's PROUD of leaving his family, in order to protect his pension? ---

Are you that fuckin stupid to think I'm defending White? I don't defend anyone. White is perfectly capable of kicking your ass, mentally.

White has always ran away and hid behind the bozo, --- like a little girl, --- whenever he's challenged. --- He's a mental mess..

In addition to your recent comment: " Forcing a teen to masturbate is like forcing me to take money. ---- misterwhite " - ??? I don't even want to speculate what that means.

I think you would be well advised to refrain from further comments on this topic, to keep from further damaging your reputation.

Never Pick A Fight With An Old Man He Will Just Shoot You He Can't Afford To Get Hurt

"If there are no dogs in Heaven, then when I die I want to go where they went." (Will Rogers)

Yes. And by citing such extreme public behavior which would be allowed under Libertarianism, I ended the discussion.

Are you also proud of: " Forcing a teen to masturbate is like forcing me to take money. ---- misterwhite " ???

Never Pick A Fight With An Old Man He Will Just Shoot You He Can't Afford To Get Hurt

"If there are no dogs in Heaven, then when I die I want to go where they went." (Will Rogers)

He ended the discussion by running away, --- after I pointed out that libertarians supported the rule of law, which includes jail sentences for public sexual displays by weirdos like misterwhite/robertpausen...

Never Pick A Fight With An Old Man He Will Just Shoot You He Can't Afford To Get Hurt

"If there are no dogs in Heaven, then when I die I want to go where they went." (Will Rogers)

While you,and every dictator in history have disagreed,and think that what people need is an iron fist or a hangman to prevent them from making decisions on their own.

You fit right in with the medieval Popes,Hitler,Stalin,Mao,Korean Fat Boy,and every other dictator.

My only question is "WHY do you still live here in America,when you hate freedom so much?

In the entire history of the world,the only nations that had to build walls to keep their own citizens from leaving were those with leftist governments.

Ahhh,so you enjoyed profiting from the revenue of a nanny dictatorship state,but being the selfish prick that you are,the instant you could collect a pension you took your marbles and ran away.

In the entire history of the world,the only nations that had to build walls to keep their own citizens from leaving were those with leftist governments.

Uhhhh,doesn't THIS make YOU a Libertarian in what passes for you OWN mind? You can't cheer something on and then act like you are offended by it.

In the entire history of the world,the only nations that had to build walls to keep their own citizens from leaving were those with leftist governments.

from the well-no-shit dept

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.