Case Information
*1 Before E ASTERBROOK , H AMILTON , and L EE , Circuit Judges . H AMILTON , Circuit Judge
. This suit arises from a seventeen- year-old student’s class assignment to go on a “ride along” with law enforcement. According to the complaint, this ride along quickly strayed from its educational purpose as the of- ficer repeatedly sexually assaulted and harassed the student. She has sued both the officer and the local police chief under 42 U.S.C. § 1983 for violating her constitutional rights.
The district court granted both defendants’ motions to dis- miss with prejudice for failure to state a claim. We affirm dis- missal of the claim against the chief of police. Plaintiff did not plead facts suggesting the chief had a requisite level of in- volvement in the alleged violations for personal liability un- der 42 U.S.C. § 1983.
W e reverse dismissal of the claim against the officer. It is well established that sexual assault by a government official acting under color of law violates the Constitution. Cases from different circuits have relied on different constitutional provisions, but they have agreed on that bottom line, holding that sexual assault can violate the Fourteenth Amendment Equal Protection Clause as sex discrimination, the Fourth Amendment right “of the people to be secure in their per- sons,” and the right to bodily integrity protected by the Four- teenth Amendment Due Process Clause. We reject the defense argument that the alleged conduct was simply “boorish” and not serious enough to implicate the Constitution. We decline the invitation to draw lines between constitutional and un- constitutional sexual assaults by government officials acting under color of law. Sexual assault is an intentional act that never serves a legitimate governmental purpose.
Because we are considering this case on the pleadings, we do not decide which of the three constitutional theories pro- vides the best path for litigation. The complaint should have survived the motion to dismiss under each theory. If it be- comes necessary later to focus on doctrinal differences among these theories, jury instructions applying them to actual evi- dence may provide the best opportunity to do so.
I. Factual and Procedural Background
We accept the factual allegations in the complaint as true
and draw reasonable inferences in plaintiff’s favor because we
are reviewing de novo a dismissal on the pleadings for failure
to state a claim. E.g.,
Word v. City of Chicago
,
A. The Ride Along
When plaintiff Zailey Hess was a seventeen -year-old stu- dent, one of her classes required her to participate in a ride along with a police officer. On February 15, 2019, Hess went on a ride along with defendant Jamie Garcia of the Ham- mond, Indiana, police. Officer Garcia picked Hess up in his private vehicle and drove her to the police station before his shift began. Garcia introduced Hess to other officers around the station before leading her to the parking lot. Hess got into the patrol vehicle and put on her seatbelt.
The complaint describes a day-long sequence of inappropriate comments and questions punctuated by unwelcome physical sexual contacts. When Hess got into the patrol car, Officer Garcia immediately began touching her , reaching over and rubbing his arm against her breast while adjusting the seatbelt she had already secured. Throughout the ride along, Officer Garcia repeatedly reached across the center console to place his hand on Hess’s thigh. Even outside the vehicle, Garcia’s sexual groping continued. Garcia drove Hess to a gas station in what Hess described as a bad area of town where the cashier worked behind bulletproof glass. Hess and Garcia went inside the store. Hess got in line behind Garcia, who told her to move to stand in front of him. When Hess did so, Officer Garcia placed his hand on her buttocks.
Throughout the ride along, Garcia also asked Hess about her dating and sex life. While on patrol, Garcia told Hess he was going to find a prostitute for her. Gar cia stopped a woman he assumed was a prostitute, introduced Hess, and told the woman that Hess wanted to become a prostitute her- self.
Late in the evening, Garcia and other officers made an ar- rest. After leaving the scene, Garcia drove Hess to a secluded ar ea where they met another Hammond police officer. In this secluded area, Garcia spoke to the other officer through open car windows and repeatedly asked the other officer if he wanted to have sex with Hess, who stayed in the car, terrified.
After Hess’s ride along, another female classmate partici- pated in the course- required ride, also with Officer Garcia. When the classmate told Hess that Garcia had acted inappro- priately with her, the two students reported their experiences to a teacher. Defendant John Doughty was the Hammond po- lice chief at the time.
B. This Lawsuit
Hess sued Garcia and Chief Doughty in their individual
capacities under 42 U.S.C. § 1983. Although a complaint need
not plead legal theories, e.g.,
Koger v. Dart
,
II. Analysis
“To survive a motion to dismiss, a complaint must contain
su fficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’ A claim has facial plausibil-
ity when … [it] pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
Ashcroft v. Iqbal
, 556 U.S. 662, 678
(2009), quoting
Bell Atlantic Corp. v. Twombly
,
A.
Common Ground Across the Circuits
In similar cases, different circuits have taken several doc-
trinal paths to a common ground: sexual assault by an official
acting under color of law violates the constitutional rights of
the victim. E.g.,
United States v. Giordano
,
Seventh Circuit precedents involving sexual assault by an
official acting under color of law approve of the Fourteenth
Amendment Equal Protection and Due Process Clause theo-
ries of liability. E.g.,
Doe v. Smith
,
Several other circuits say that sexual assault by an official
violates the Equal Protection Clause. E.g.,
Jennings v. Univ. of
North Carolina
,
Some courts apply the Fourth Amendment to similar facts
and reject Fourteenth Amendment theories.
Dickey v. United
States
,
Other circuits say th at these claims are best analyzed not
as Fourth Amendment violations but as violations of the right
to bodily integrity protected by the Fourteenth Amendment
Due Process Clause.
Tyson v. County of Sabine
, 42 F.4th 508,
514–20 (5th Cir. 2022) (favoring Fourteenth Amendment the-
ory over Fourth Amendment where officer went to woman’s
home for welfare check and sexually abused her);
Martinez v.
Hongyi Cui
,
Some cases rejecting the Fourth Amendment for the Four- teenth say that the Fourth Amendment applies only when the c hallenged conduct occurred in the context of a criminal in- vestigation. E.g., Poe , 282 F.3d at 136 (“The Fourth Amend- ment is not the proper source of Poe’s constitutional right be- cause Pearl’s objectionable conduct occurred outside of a criminal investigation….”); Jones , 104 F.3d at 628 (rejecting Fourth Amendment theory because “the harm inflicted did not occur in the course of an attempted arrest or apprehension of one suspected of criminal conduct”).
With respect, that narrow view of the Fourth Amendment
seems to be contrary to Supreme Court precedent. For exam-
ple, in
City of Ontario v. Quon
,
As we explain next, Hess has plausibly alleged facts sup- porting liability under the theories of the Fourteenth Amend- ment Equal Protection Clause, the Fourth Amendment, and the Fourteenth Amendment Due Process Clause. At this early procedural stage, we leave all three of these doctrinal lanes open on remand, and we see no basis for requiring plaintiff to choose just one or two while federal courts are sorting out these theories. Alternative legal theories for relief for the same injury can present procedural challenges at trial but are cer- tainly permissible.
B. Equal Protection
The district court held that Hess failed to allege a violation
of the Equal Protection Clause because her complaint did not
identify a similarly situated individual whom Garcia treated
more favorably.
Z.H.
,
First, we repeat that even in cases where identification of
a similarly situated individual may be necessary at trial, such
identification is not required in the pleadings.
FKFJ, Inc. v. Vil-
lage of Worth
,
11 Second, naming a similarly situated person who was not
subjected to sexual misconduct by a public official is
unnecessary even at later stages of litigation. As a matter of
evidence in equal protection or discrimination cases,
comparators may help a plaintiff undermine a defendant’s
offered justification for his treatment of the plaintiff. But we
recognize that requiring a comparator “would elevate form
over substance” where the facts alleged “clearly suggest
harassment by public officials that has no conceivable
legitimate purpose.”
Geinosky
,
Counsel for Garcia made the surprising assertion in brief- ing and at oral argument that there could be a governmental interest served by the conduct alleged here. Counsel sug- gested that Garcia “was making for an exciting ride along” with his “frankly innocuous” yet “perhaps boorish conduct.” Garcia’s briefing repeats the characterization of his behavior as nothing more than “boorish flir tation,” “arguably pre- sented in a joking fashion intended to make the ride-along more sensational but not dangerous.” Perhaps the defense might try to persuade a jury with that theory— a matter we leave to the district court in the first instance —but we con- tinue to reject the idea that a police officer’s sexual assault or sexual harassment serves any legitimate governmental inter- est.
To state a claim under the Equal Protection Clause, Hess
had to allege plausibly that Garcia “discriminated against
[her] base d on [her] membership in a definable class.”
Word
,
C. Fourth Amendment
To state a claim under the Fourth Amendment, a plaintiff
must show that a search or seizure occurred and that the
search or seizure was unreasonable. See, e.g.,
Carlson v. Buko-
vic
, 621 F.3d 610, 618 (7th Cir. 2010). Hess’s complaint sup-
ports the theory that seizures occurred through sexual touch-
ing without consent, see
id.
at 620– 21 (whether officer’s touch
constituted seizure was question for jury considering all cir-
cumstances, including consent and governmental purpose),
and through being driven to a remote area where Garcia re-
peatedly asked another officer if he wanted to have sex with
13 Hess. See
Brendlin v. California
,
A Fourth Amendment seizure can occur regardless of whether an officer is involved in a criminal investigation:
In our view, the reason why an officer might en-
ter a house or effectuate a seizure is wholly ir-
relevant to the threshold question whether the
Amendment applies. What matters is the intru-
sion on the people’s security from governmen-
tal interference. Therefore, the right against un-
reasonable seizures would be no less trans-
gressed if the seizure … was undertaken to col-
lect evidence … or on a whim, for no reason at
Garcia argues that Hess waived her right to the application of the
Fourth Amendment to her claims by not addressing the district court’s
finding of “withdrawal” in her opening brief before this court. We disa-
gree. Hess put squarely before this court the merits of her claim that Gar-
cia’s conduct violated her constitutional right to be free from sexual as-
sault by a government official. “When an issue or claim is properly before
the court, the court is not limited to the particular legal theories advanced
by the parties, but rather retains the independent power to identify and
apply the proper construction of governing law.”
Kamen v. Kemper Finan-
cial Servs.
,
all. As we have observed on more than one oc- casion, it would be “anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behav- ior.”
Soldal v. Cook County
,
A seizure “can take the form of ‘physical force’ or a ‘show
of authority’ that ‘in some way restrain[s] the liberty’ of the
person.”
Torres v. Madrid
,
Not all touches by officers rise to the level of seizures un-
der the Fourth Amendment, of course, but sexual assaults do.
The Fourth Amendment protects the “right of the people to
be secure in their persons … against unreasonable searches
and seizures.” U.S . Const. amend. IV. It is “the only part of the
Constitution directly addressing seizures of the person by po-
lice.”
Gumz v. Morrissette
,
Hess has also plausibly alleged a seizure in anothe r way.
A person is seized if, considering the totality of the circum-
stances, a reasonable person in the situation would not feel
free to leave.
Carlson
,
Because Hess plausibly alleged that a seizure occurred, we
consider whether she plausibly alleged that the seizure was
unreasonable. To assess reasonableness, we look to the gov-
ernmental purpose served by the challenged conduct, “bal-
ancing the need to search [or seize] against the invasion which
the search [or seizure] entails.”
Terry
,
No governmental interest is served by a state actor sex-
ually assaulting anyone. We agree with Judge Loken: “there
is nothing inappropriate or unusual in imposing virtually
per
se
Fourth Amendment liability on police officers who misuse
their power to arres t or otherwise seize a person by commit-
ting sexual assaults.”
Rogers
,
D. Substantive Due Process
The district court also found that Hess’s complaint failed
to allege a plausible claim under the Due Process Clause of
the Fourteenth Amendment.
Z.H.
, 2022 WL 857035, at *3–5.
We also reverse dismissal on this ground. Our precedents
have recognized a substantive due process right against sex-
ual assault by state actors in cases where no search or seizure
occurred. See
Alexander v. DeAngelo
,
In response to these precedents, Garcia asks us to draw lines between sexual assault that is unconstitutional and sex- ual assault that, in his view, is not severe enough to implicate the Constitution. We decline to do so.
Before digging into the substantive due process jurispru-
dence, we acknowledge that the Fourth Amendment will of-
ten provide the proper avenue for litigating a claim of sexual
assault by an official acting under color of law. When “the
Fourth Amendment provides an explicit textual source of
constitutional protection against [a particular] sort of physi-
cally intrusive governmental conduct, that Amendment, not
the more generalized notion of ‘substantive due process,’
must be the guide for analyzing these claims.”
Graham v. Con-
nor
, 490 U.S. 386, 395 (1989). The Supreme Court has even
noted that
Rochin v. California
,
Further, the Fourth Amendment is triggered only by a
search or seizure. Substantive due process under the Four-
teenth Amendment still protects people from unconstitu-
tional conduct committed under color of law when neither a
search nor seizure occurs. The Supreme Court has cautioned
that
Graham
“does not hold that all constitutional claims relat-
ing to physically abusive government conduct must arise un-
der either the Fourth or Eighth Amendments; rather,
Graham
simply requires that if a constitutional claim is covered by a
specific constitutional provision … the claim must be ana-
lyzed under the standard appropriate to that specific
provision, not under the rubric of substantive due process.”
Lewis
,
Hess has alleged that Garcia seized her, but Garcia has dis- puted those allegations. At this stage of the case, we will not restrict Hess to a Fourth Amendment theory if her complaint also pleads facts that set out a plausible Fourteenth Amend- ment substantive due process theory. It does so.
The Due Process Clause is violated by an infringement of
a fundamental right through an abuse of government power
that “‘shock[s] the conscience’ of federal judges.”
Collins v.
City of Harker Heights
,
The Supreme Court explains how to analyze whether an
action shocks the conscience by focusing on “tort law’s spec-
trum of culpability.”
Lewis
, 523 U.S. at 848. That spectrum
spans different degrees of
intent
, not different degrees of
harm
.
Id.
at 849. Illustrating this point, the Supreme Court found no
conscience- shocking conduct where an officer unintentionally
killed a motorist during a chase,
id
. at 836, while it found con-
science- shocking conduct where officers intentionally had
medical professionals induce vomiting in a suspect to retrieve
evidence,
Rochin
,
The alleged sexual assaults here were intentional, so re- gardless of whether they were severe, they would fall toward the worse end of the culpability spectrum, which is concerned with intent, not with the degree of harm caused by the behav- ior at issue. Sexual assault invades bodily integrity and cannot serve a governmental purpose. An officer’s sexual assault while acting under color of law is conscience-shocking.
The district court disagreed. It focused on the level of harm that it assumed Garcia’s conduct caused, noting that “[v]ery serious batteries, such as rape and egregious sexual conduct, have been held as conscience-shocking,” but that Garcia’s conduct was “not as severe” as that in other cases of officer sexual abuse and thus “did not rise to the level neces- sary” to violate the right to bodily integrity. Z.H. , 2022 WL 857035, at *3–4.
With respect, we disagree with this attempt to draw a line between const itutional and unconstitutional sexual assaults. The court’s inquiry into whether the sexual assault was “seri- ous” enough to be conscience-shocking reads too much into the use of that word in Alexander . 329 F.3d at 916. There, a woman argued that officers v iolated her right to bodily integ- rity by threatening her with 40 years of prison time unless she agreed to wear a wire while exchanging sex for money. Id. at 914– 15. In analyzing her claim, this court noted that the right to bodily integrity “is infringed by a serious, as distinct from a nominal or trivial, battery,” and that rape “is not only a bat- tery, but a very serious battery, and a rape committed under color of state law is therefore actionable” as a due process vi- olation. Id. at 916 (citations omitte d). Alexander did not say that some sexual assault is “nominal or trivial” or anything further about which batteries are serious or not. Alexander did not set the floor for a sexual battery qualifying as “serious” at rape and did not alter the Supreme Court’s instruction that shocks-the-conscience analysis focus on the spectrum of in- tent balanced against relevant governmental interest. [9]
The most egregious examples of an offense do not change
the floor for what conduct is criminal or unconstitutional. The
right to bodily integrity is not made harder to violate by the
fact that even worse cases come along, such as where an
officer present during a sexual assault victim’s hospital exam-
ination coerced her into going to a private room and removing
her clothing while he touched her and photographed her gen-
italia on his personal phone,
Kane
,
We decline to recognize a category of c onstitutionally per-
missible sexual assault by a public official. An officer acting
under color of law does not avoid violating the Constitution
by sexually assaulting a member of the public but stopping
short of rape or use of force at the level federal judges might
consider extreme. Otherwise, line drawing would be impos-
sible. We asked counsel for Garcia where this line should be
and received no answer except that wherever the line is for a
sexual assault to qualify as a violation of bodily integrity, that line required worse conduct than Garcia’s. We will not engage
in such line drawing. Accord,
Tyson
,
Where, as here, a plaintiff plausibly alleges sexual assault by a public official acting under color of law, that plaintiff has stated a claim for a violation of her right to bodily integrity protected under the Fourteenth Amendment. Such conduct shocks the conscience because it is intentional and serves no governmental purpose.
E.
Claims Against Chief Doughty
We affirm the dismissal with prejudice of all claims against
Chief Doughty. In Section 1983 suits, officials are held ac-
countable only for their own misconduct.
Kemp v. Fulton
County
,
This complaint alleges that Chief Doughty “permitted” the ride along while knowing another officer had accused Garcia of acting inappropriately “with females.” In briefing before the district c ourt, Hess clarified that by “permitted,” the complaint meant that Chief Doughty “failed to issue an order prohibiting Officer Garcia from having female ride alongs.” These allegations do not plausibly allege that Chief Doughty played a role at the level required to impose per- sonal liability. Further, Hess has not identified any amend- ments she could make to the complaint to cure the problem, so the district court correctly dismissed the claim against Chief Doughty with prejudice.
To sum up, Hess’s complaint plausibly alleges claims un- der the Fourteenth Amendment Equal Protection Clause, the Fourth Amendment, and the Fourteenth Amendment Due Process Clause. On a final note, counsel for Garcia said at oral argument that reversing dismissal would open proverbial floodgates and that this is not the kind of case federal courts want to hear “every time that incidents such as these” occur involving conduct “as frankly innocuous” as Garcia’s. We dis- agree with the premise. We will not close the federal court- house doo rs to people sexually assaulted by government offi- cials acting under color of law. The dismissal of plaintiff’s claims against Chief Doughty is AFFIRMED. The dismissal of her claims against Officer Garcia is REVERSED, and the case is REMANDED for proceedings consistent with this opinion.
E ASTERBROOK , Circuit Judge concurring. I concur in the judgment and join all but Part II.D of the court’s opinion.
Part II.D states that sexual assault by a police officer may
be condemned under “substantive due process.” At least two
decisions in this circuit say this.
Alexander v. DeAngelo
, 329
F.3d 912, 916 (7th Cir. 2003);
Wudtke v. Davel
,
I fi nd them (and equivalent decisions in other circuits)
hard to reconcile with
Graham v. Connor
, 490 U.S. 386, 395
(1989), which holds that, when the Fourth Amendment sup-
plies “an explicit textual source of constitutional protection
against [a particular] sort of physically intrusive governmen-
tal conduct, that Amendment, not the more generalized no-
tion of ‘substantive due process,’ must be the guide for ana-
lyzing these claims.” See also
Sacramento v. Lewis
,
Dobbs v. Jackson Women’s Health Organization
, 142 S. Ct.
2228 (2022), reiterated that substantive due process is limited
to a few “fundamental” rights with strong historical prove-
nance but no other constitutional footing.
Alexander
and
Wudtke
treat “bodily integrity” as the qualifying “fundamen-
tal” right, but this takes us back to
Graham
. The Fourth
Amendment reads directly on bodily integrity, and
Graham
tells us that the rules that Amendment supplies for searches
and seizures cannot be avoided by invoking substantive due
process. Like the panels in
Alexander
and
Wudtke
, the dissent-
ing Justices in
Dobbs
contended that bodily integrity is a fun-
damental right that receives protection through substantive
due process.
One norm under the Fourth Amendment is that courts evaluate reasonableness objectively. See, e.g., Torres v. Madrid , 141 S. Ct. 989 (2021); Whren v. United States , 517 U.S. 806 (1996) . It does not matter what the police think or intend nor what the private party believes. Move to substantive due pro- cess, though, and we ask whether conduct shocks the con- science. Whether the conscience involved is that of a judge, a juror, an officer, or a private party, the inquiry is subjective. And whether conduct shocks a particular conscience lacks historical provenance as a legal standard. This approach was created by the Supreme Court from whole cloth in the Twen- tieth Century, long after the Due Process Clauses were pro- posed and ratified.
If the Supreme Court had held that substantive due pro- ce ss provides the right way to analyze offensive physical touching or threats of rape in remote locations that amount to seizures, that would be that. Dobbs insisted that it was not dis- turbing any line of decisions, other than holdings about abor- tion. But Graham shows that by 1989 it was established that substantive due process is not the way to analyze Hess’s contentions. Graham was all about bodily injury inflicted both directly and indirectly by officers’ misconduct, so bodily in- tegrity cannot be an escape hatch out of Graham ’s purview. Police are accountable for objectively unreasonable searches and seizures, but they are not liable just because jurors are disgusted by an officer’s loutish behavior.
Notes
[1] Based on Hess’s youth and the nature of the allegations, the district court allowed Hess to sue without making her name public. At oral argu- ment on appeal, we questioned the need and justification for continuing the secrecy since Hess was by then an adult. Hess agreed to use her real name in the caption and other documents.
[2] See also, e.g.,
United States v. Dillon
,
[3] A different, statutory holding in
Doe v. Smith
was abrogated by
Fitz-
gerald v. Barnstable School Committee
,
[4] See also
Smith v. Ray
,
[5] Garcia argues that Hess waived her equal protection theory. We dis- agree. The district court addressed equal protection on the merits, and Hess’s brief before this court engaged with that ruling. We also disagree with the district court’s suggestion that the theory was “as good as” waived before that court. Z.H. , 2022 WL 857035, at *5. Hess’s response brief in the district court set forth the proper standard of review and said clearly why the complaint adequately alleged a violation: It is plausible that Garcia subjected Hess to groping and sexual harassment because Hess is female. Further development of the obvious connection between sexual misconduct and sex discrimination is not necessary to state a claim under an equal protection theory.
[6] Other circuits agree. E.g.,
Fontana
,
[7] The district court found that Hess withdrew the Fourth Amendment
theory,
Z.H.
,
[8] The Supreme Court has long recognized the right to bodily integrity
as an essential component of our liberty protected by the Fourteenth
Amendment’s due process clause. See
Vacco v. Quill
, 521 U.S. 793, 807
(1997) (noting the right to refuse medical treatment is grounded in “well
established, traditional rights to bodily integrity and freedom from un-
wanted touching”); see also
Cruzan v. Director, Mo. Dep’t of Health
, 497 U.S.
261, 269 (1990) (“Before the turn of the century, this Court observed that
‘no right is held more sacred, or is more carefully guarded, by the common
law, than the right of every individual to the possession and control of his
own person, free from all restraint or interference of others, unless by clear
and unquestionable authority of law.’”), quoting
Union Pac. Ry. Co. v.
Botsford
,
[9] This district court case was not the first in this c ircuit to dismiss sex-
ually abusive official conduct as falling below some unclear bar of egre-
giousness. In
Decker v. Tinnel
, the court found that an offic er’s sexual as-
saults of his ride-along passenger did not shock the conscience. No. 2:04-
CV-227, 2005 WL 3501705 (N.D. Ind. Dec. 20, 2005). There, the officer
asked his young ride-along passenger if she would strip for him, forcibly
kissed her multiple times trying to “stick[] his tongue down [her] throat,”
“forced his hand between her closed thighs,” and grabbed her breasts.
Id.
at *1–2. The court reasoned the conduct was not “serious” enough to im-
plicate the Due Process Clause because “each touching or kissing incident
lasted only a matter of seconds, and concluded when Decker either
pushed Tinnel away, or told him ‘no.’”
Id.
at *7–9. The Third Circuit cited
this case and was “not persuaded” by its reasoning that an intentional in-
trusion into bodily integrity was not “serious” enough to be conscience-
shocking.
Kane v. Barger
,
[10] See also
Vazquez v. County of Kern
,