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No Immunity for Dead Cop's Unconstitutional Sexual Violation of Teen

By George Khoury, Esq. on December 13, 2017 | Last updated on March 21, 2019

In the case of Sims v. Labowitz, the Federal Court of Appeals for the Fourth Circuit recently overturned the lower court's dismissal of the Fourth Amendment 42 USC 1983 claim against the now deceased officer, David Abbott. However, several other claims that were also dismissed, including one against the prosecutor, were left undisturbed or unchallenged.

Qualified immunity is one of the strongest protections police officers have to defend themselves from alleged constitutional violations they commit. But when obvious lines are crossed, even the dead can be made to stand trial. The facts of this case are rather disturbing, but do provide a clear example of when an officer should absolutely know what an obvious constitutional violation looks like.

Facts of the Case

In 2014, when Sims was 17 years old, he was investigated as a result of sexts (sexually explicit text messages) of himself found on his 15-year-old girlfriend's phone. The officer in charge of the investigation, Abbott, obtained a warrant that actually authorized him to take nude photographs of Sims, including photographs of his erect penis, presumably for comparison to the sext messages.

When Abbott executed the warrant, he instructed Sims to masturbate in front of others in order to achieve an erection. And if this wasn't shocking enough, after Sims was arrested and arraigned for sexting his girlfriend, another warrant was obtained that authorized him to be injected with medication to induce an erection so that a photograph could be taken. That warrant was never executed, but that seems to be mostly due to the fact that a public outcry led the local police department to actual think about what they were about to do.

The felony child pornography charges against Sims were eventually dropped after he completed probation and other court imposed terms.

On Appeal

While the district court found Abbott (or actually his estate) was entitled to qualified immunity, the appellate court didn't see it that way. In assessing qualified immunity, courts look to whether a reasonable officer would know their conduct was a constitutional violation. The Fourth Circuit bluntly noted that:

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.

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