Argued: September 14, 2017
from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:16-cv-00572-CMH-MSN)
M. Glasberg, Maxwelle C. Sokol, VICTOR M. GLASBERG &
ASSOCIATES, Alexandria, Virginia, for Appellant.
Bougie Judkins, BANCROFT, MCGAVIN, HORVATH & JUDKINS,
P.C., Fairfax, Virginia, for Appellee.
KING, KEENAN, and DIAZ, Circuit Judges.
BARBARA MILANO KEENAN, CIRCUIT JUDGE.
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.
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'
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
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, 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.
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."
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.
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.
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.
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
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
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 18 U.S.C. § 2255(a)(1). Sims timely filed
the present appeal.
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.
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.
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.
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 (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 shield officials
from harassment, distraction, and liability when they perform
their duties reasonably." Graham, 831 F.3d at
182 (quoting Pearson, 555 U.S. at 231). To avoid
dismissal of a complaint after a qualified immunity defense
is raised, a plaintiff must allege sufficient facts to set
forth a violation of a constitutional right, and the court
must conclude that this right was clearly established at the
time of the alleged violation. Pearson, 555 U.S. at
we may consider either prong of the qualified immunity
inquiry first, we begin by examining the constitutional right
advanced by Sims. See Estate of Armstrong ex rel.
Armstrong v. Village of Pinehurst, 810 F.3d 892, 898-99
(4th Cir. 2016). This approach is beneficial here because our
inquiry addresses "questions that do not frequently
arise" and, therefore, "promotes the development of
constitutional precedent." Pearson, 555 U.S. at
Fourth Amendment protects "[t]he right of the people to
be secure in their persons . . . against unreasonable
searches and seizures." U.S. Const. amend. IV. "The
overriding function of the Fourth Amendment is to protect
personal privacy and dignity against unwarranted intrusion by
the State." Schmerber v. California, 384 U.S.
757, 767 (1966).
search is lawful only when it is reasonable. Amaechi v.
West, 237 F.3d 356 (4th Cir. 2001). When, as in the
present case, a search involves "movement of clothing to
facilitate the visual inspection of a [person's] naked
body, " the search qualifies as a type of "sexually
invasive search." United States v. Edwards, 666
F.3d 877, 882-83 (4th Cir. 2011) (citations omitted). To
determine whether a sexually invasive search is reasonable,
we employ the test adopted in Bell v. Wolfish, 441
U.S. 520, 559 (1979). See King v. Rubenstein, 825
F.3d 206, 214-15 (4th Cir. 2016); Edwards, 666 F.3d
the Bell framework, we balance the invasion of
personal rights caused by the search against the need for
that particular search. 441 U.S. at 559. Pursuant to
Bell, we examine the search in its complete context
and consider the following factors: (1) the scope of the
particular intrusion; (2) the manner in which the search was
conducted; (3) the justification for initiating the search;
and (4) the place in which the search was performed.
present case, the scope of the intrusion and the manner in
which the search allegedly was performed involve overlapping
inquiries. At the outset, we observe that a sexually invasive
search "constitutes an extreme intrusion upon personal
privacy, as well as an offense to the dignity of the
individual." Woods v. Clemons, 89 F.3d 922, 929
(1st Cir. 1996) (citation omitted). Courts have described
such searches, including strip searches, as terrifying,
demeaning, and humiliating. Mary Beth v. City of
Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (citations
omitted). When the scope of a ...