Brandy Kane v. Shawn Barger

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-3027
_____________
BRANDY KANE,
Appellant
v.
SHAWN BARGER, in his Individual Capacity as a Police
Officer for the Borough of Coraopolis
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(No. 2-15-cv-00846)
District Judge: Honorable Mark R. Hornak
_____________
Submitted Under Third Circuit L.A.R. 34.1(a)
June 12, 2018
Before: CHAGARES, GREENBERG, and FUENTES,
Circuit Judges
(Opinion filed: August 22, 2018)
_____________
Noah Geary, Esq.
Washington Trust Building, Suite 225
Washington, PA 15301
Attorney for Appellant
Mark R. Lane, Esq.
Dell, Moser, Lane & Loughney, LLC
Two Chatham Center, Suite 1500
112 Washington Place
Pittsburgh, PA 15219
Attorney for Appellee
_____________
OPINION OF THE COURT
_____________
FUENTES, Circuit Judge.
On June 27, 2013, Brandy Kane went to the hospital
and reported that she may have been the victim of a sexual
assault. That night, Officer Shawn Barger of the Coraopolis
Police Department went to the hospital to interview Kane
regarding the possible assault. At that time, Kane says Barger
told her to bring the clothes she wore during the alleged
incident to him at the police station.
The next day, Kane—accompanied by a friend—
brought her clothes to the police station. While there,
contrary to department policy, Barger met alone with Kane in
a back room of the station. Then, also in violation of
2
department policy, Barger used his personal cell phone to
photograph intimate areas of Kane’s body.
During this encounter, Barger touched Kane twice.
First, rather than relying on Kane to do so, Barger pulled
Kane’s shorts down to photograph a bruise on her right
buttock. At this point, Kane says she “felt something touch
her butt crack which caused her to jump.” 1 Second, again
without asking Kane to do so, Barger pulled Kane’s tank top
down to expose a bruise on her upper chest.
Kane says that, while photographing her, Barger
repeatedly asked about her breasts, vagina, and buttocks. In
this regard, Barger persistently inquired if Kane sustained
injuries to her vagina. Despite Kane’s consistent denials,
Barger’s relentless questioning led Kane to expose her vagina
to him.
After photographing Kane, Officer Barger failed to
document the clothing evidence that Kane provided.
Moreover, when Kane later reported Barger’s actions, he
gave inconsistent accounts of his behavior. Indeed, while
Barger initially denied photographing Kane at all—let alone
with his cell phone—he later admitted he lied because he did
not want his girlfriend to be jealous that he photographed
Kane.
Against this background, Kane alleges that Barger
violated her Fourteenth Amendment right to bodily integrity
by—in the course of purportedly interviewing her about her
alleged sexual assault—touching her and using his personal
1
Ohio App. 173.
3
cell phone to photograph her intimate areas in violation of
department policy. The District Court granted summary
judgment in favor of Barger, finding that—even if Barger’s
conduct was unlawful—he was still immune from suit under
the exacting “clearly established” prong of our qualified
immunity analysis.
Viewing the record in the light most favorable to
Kane, which supports an inference that Barger acted for
personal gratification rather than investigative ends, we hold
that Barger’s conduct shocks the conscience and violated
Kane’s right to bodily integrity. We further hold that the
right at issue was clearly established at the time of Barger’s
conduct. Accordingly, we will reverse and remand for further
proceedings.
I.
A. 2
In the early morning of June 27, 2013, Kane—then 20
years old—was arrested and charged with disorderly conduct,
underage drinking, resisting arrest, and escape. After being
released from jail that day, Kane—who had “blacked out”
from alcohol consumption—grew concerned that she may
have been sexually assaulted because she was not wearing
pants when she was arrested, she had a large amount of
vaginal discharge, and she could not recall what happened.
Because of these concerns, Kane went to the hospital that
2
Because we are reviewing a claim of qualified immunity, we
recount the facts in the light most favorable to Kane. Karns
v. Shanahan, 879 F.3d 504, 520 (3d Cir. 2018).
4
night for both a psychiatric evaluation and a rape kit
examination. As part of the rape kit examination, a doctor
photographed injuries to Kane’s arms, shoulders, knees, and
legs.
That evening, Officer Barger—then 40 years old—
went to the hospital to collect the rape kit. Barger also
interviewed Kane in the presence her mother and a victim
advocate. The parties dispute what occurred next. While
Kane maintains that Barger told her to bring the clothes she
wore during the purported assault to him at the police station
the following day, Barger contends that Kane came to the
station to get her cell phone. In any event, the next day,
Kane—and her friend, Cayla Combs—went to the Coraopolis
Police Station with the clothes she wore during the alleged
incident.
At the station, Kane and Combs both met separately
with Barger. Contrary to department policy, Kane and Barger
met alone in a back room of the station. Kane asserts that
Barger closed the hallway door. However, while Barger
admits that he directed Kane to the back room, he says that
the door to the hallway was open. During this meeting, in
further violation of department policy, Barger used his
personal cell phone to photograph Kane’s intimate areas,
including her breasts and buttocks.
At the outset, Barger asked Kane if she had bruising on
or around her intimate areas. Kane told Barger that the
hospital photographed all of her injuries except for a bruise
on her right buttock. Barger then asked Kane if he could
photograph the bruise on her right buttock. In so doing,
5
Barger said he had a special application on his personal cell
phone for taking photographs. 3 Kane agreed.
Before Barger photographed Kane’s right buttock,
Kane pulled down her gym shorts to expose that area.
Thereafter, without asking Kane to do so, Barger pulled
Kane’s shorts down further to more fully expose the bruise on
her right buttock so he could photograph it. 4 At this point,
Kane “felt something touch her butt crack which caused her
to jump.” 5 Barger denies touching Kane’s buttocks and
maintains that he only moved the tag on the back of Kane’s
shorts.
Kane says that Barger repeatedly asked about her
breasts, vagina, and buttocks while holding his personal cell
phone and photographing her. Because Barger kept asking
about her buttocks, Kane asked if he wanted to photograph
her other injuries. Barger answered in the affirmative.
Altogether, Kane believes Barger photographed her between
3
Barger says, and his official report reflects, that the
department’s digital camera was inoperative. However, his
report also failed to mention that he photographed Kane using
his personal cell phone.
4
In his deposition, Barger described his attempt as
“unsuccessful” because the application would “freeze” when
he “would take a photograph.” App. 212. Nevertheless, in a
request for admission, Barger agreed that he “took
photographs of Brandy Kane in the Coraopolis Borough
Police Station.” App. 252. In any event, Barger concedes
that he intended to photograph Kane.
5
Ohio App. 173.
6
four and eight times. Nevertheless, Kane does not know for
sure because she did not see any photographs or hear a
camera “click.” Barger admits that he attempted to
photograph Kane between five and seven times.
During that first round of photographing, Barger twice
asked Kane if she had injuries to her vagina. She responded
in the negative both times. Barger later told Kane that the
photographs did not save and asked her if he could retake
them. Kane agreed. Kane contends that, during this second
round of photographing, Barger again asked her if she had
injuries to her vagina. Kane again responded in the negative.
However, despite her repeated denials, at some point Kane
exposed her vagina to Barger. Kane also asserts that Barger
looked at her vagina. While Kane is unsure whether Barger
photographed her vagina, she asserts he made her “feel like
he did” because “he kept asking about it.” 6
At one point, after Barger asked about a bruise on
Kane’s chest, he—again without having Kane do so—pulled
her tank top down to expose her upper chest area. After
Barger did so, Kane held her tank top where Barger
positioned it so he could photograph the bruise on her upper
chest area. While Kane’s breasts were not fully exposed, her
upper chest was. Kane contends that Barger also had her sit
on a table so he could photograph her inner thighs. Barger
denies this and says that Kane merely stood on the opposite
side of the desk. Kane further maintains that Barger
instructed her to pull her shorts up to her bikini line so he
could photograph her inner thighs.
6
Ohio App. 174.
7
After photographing Kane, Barger said he would
continue his investigation. Kane then left the police station.
Barger later interviewed a number of possible witnesses to
Kane’s sexual assault. However, Barger failed to document
the clothing evidence that Kane brought to him at the station.
While Barger asserts that Kane’s clothing was given to an
“evidence officer to take custody of,” he claims he does not
know what happened to those items. 7
Kane’s mother later reported Barger’s conduct to the
Allegheny County Police Department. Then, on July 9, Kane
met with Allegheny County Detective Michael Kuma to
discuss the photographs that Barger had taken. After meeting
with Kane, Kuma began investigating Barger. During
Kuma’s first interview with Barger, Barger denied
photographing Kane at all in the back room of the station, let
alone with his personal cell phone. Nevertheless, during a
follow-up interview with Kuma, Barger admitted that he
photographed Kane using his personal cell phone.
According to Kuma’s official report, Barger explained
that he lied about photographing Kane because he was
worried that his girlfriend might become jealous upon
learning he had done so. Kuma further reported that Barger
said he took six or seven photographs of Kane’s upper chest,
buttocks, inner thighs, and the front and back of her legs.
Kuma also said that Barger told him he deleted the photos.
Barger concedes that he lied in his initial meeting with Kuma.
However, Barger maintains that—while he attempted to
7
Ohio App. 210.
8
photograph Kane—he did not delete photographs of Kane
because his phone never saved them in the first place. 8
Ultimately, Barger consented to disciplinary action for
“serious violations of departmental policy,” including using
his cell phone—instead of department equipment—to
photograph Kane, interviewing and photographing a female
without a fellow officer or witness present, and failing to
initially provide a full disclosure of the underlying incident. 9
Barger was also removed from the investigation into Kane’s
alleged sexual assault and suspended for two weeks without
pay.
B.
Subsequently, Kane filed this civil rights action under
42 U.S.C. § 1983 alleging that Barger violated her Fourteenth
Amendment right to bodily integrity during his investigation
into whether she was the victim of a sexual assault. Barger
8
Kuma later used an extraction device to review
approximately thirteen thousand photographs on Barger’s
personal cell phone. During his review, Kuma could not
conclusively identify any photographs of Kane. However,
Kuma did find a photograph of an unidentifiable woman—
who could have been Kane—whose pants were pulled down
to expose her buttocks. While Kuma maintains that the
device should have recovered any photographs of Kane that
Barger deleted, he explained that “[i]n [his] experience using
the [extraction] device, there is no hard and fast rule that it
downloads everything.” SA 464.
9
Ohio App. 245.
9
moved for summary judgment on two grounds. First, he
argued that his conduct—even when viewed in the light most
favorable to Kane—did not violate Kane’s right to bodily
integrity. Second, he asserted that—even if he violated
Kane’s right to bodily integrity—he was entitled to qualified
immunity.
The District Court granted summary judgment for
Barger on qualified immunity grounds. Two aspects of the
decision below warrant mention here.
On one hand, the District Court stated that, “although
it did not involve direct sexual contact, Officer Barger’s
conduct in the course of his duties, considered as a whole,”
could be “sufficiently appalling in terms of violating Kane’s
bodily integrity to be considered conscious-shocking [sic] for
purposes of the constitutional tort that Kane advances in this
case.” 10 On this point, the District Court observed that
“[t]here is little question that the record here would amply
support a finding that the conduct to which Officer Barger has
admitted was improper and highly inappropriate.” 11
However, the District Court did not ultimately decide
whether Barger violated Kane’s right to bodily integrity.
Rather, the District Court found that, even if Barger violated
Kane’s rights, her claim would still fail under “the exacting
standard of the ‘clearly established’ prong of the qualified
immunity analysis.” 12 In so holding, the District Court noted
10
Ohio App. 29.
11
Ohio App. 22.
12
Ohio App. 29.
10
that—in light of the law at the time of Barger’s conduct—it
could not conclude that “every reasonable police officer in
Officer Barger’s position would have known that his
particular conduct in photographing or attempting to
photograph Kane in what is alleged to be a sexually-
gratifying manner and in violation of [] professional and
Departmental standards during an investigation into her
possible sexual assault deprived Kane” of her right to bodily
integrity. 13 This appeal followed. 14
II.
“Qualified immunity shields government officials from
civil damages liability unless the official violated a statutory
or constitutional right that was clearly established at the time
of the challenged conduct.” 15 We conduct a two-step inquiry
to determine whether a government official is entitled to
qualified immunity. “First, we ask whether the facts—taken
in the light most favorable to the nonmoving party—show
that a government official violated a constitutional right.” 16
“Second, we ask whether that right was clearly established at
the time of the official’s actions.” 17
13
Ohio App. 31.
14
The District Court had jurisdiction under 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s grant of summary
judgment. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002).
15
Reichle v. Howards, 566 U.S. 658, 664 (2012).
16
Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015).
17
Id.
11
A.
Kane argues that Barger violated her substantive due
process right to bodily integrity by touching her and using his
personal cell phone to photograph her intimate areas in
violation of department policy while supposedly interviewing
her about her alleged sexual assault. To demonstrate that her
substantive due process rights were violated, Kane must
establish that “the particular interest at issue is protected by
the substantive due process clause,” and that “the
government’s deprivation of that protected interest shocks the
conscience.” 18 We address each element in turn.
With regard to the first element, we have recognized
that “[i]ndividuals have a constitutional liberty interest in
personal bodily integrity that is protected by the Due Process
Clause of the Fourteenth Amendment.” 19 The Supreme Court
has also specifically observed that “the ‘liberty’ specially
protected by the Due Process Clause includes the right[] . . .
to bodily integrity.” 20 With this context, as the District Court
rightly observed, “Kane had a right to not have her bodily
integrity violated by a police officer investigating her
potential sexual assault.” 21
18
Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008).
19
Phillips v. Cty. of Allegheny, 515 F.3d 224, 235 (3d Cir.
2008); see also Black by Black v. Ind. Area Sch. Dist., 985
F.2d 707, 709 n.1 (3d Cir. 1993) (noting that the Fourteenth
Amendment protects a liberty interest in bodily integrity).
20
Washington v. Glucksberg, 521 U.S. 702, 720 (1997)
(citation omitted).
21
Ohio App. 31.
12
Accordingly, we must proceed to the second element
of our substantive due process inquiry: specifically, whether
Barger’s conduct shocks the conscience. While “only the
most egregious official conduct” can shock the conscience, 22
“[t]he level of culpability required for behavior to shock the
conscience largely depends on the context in which the action
takes place.” 23 In this regard, we have observed that “[i]n a
hyperpressurized environment, such as a high-speed police
chase, intent to harm is required.” 24 However, “where
deliberation is possible and officials have the time to make
unhurried judgments, deliberate indifference is sufficient.” 25
Here, there is no indication that Barger faced circumstances
calling for quick decision-making while photographing Kane.
To the contrary, Barger had time for “actual deliberation.”26
Accordingly, the standard here is deliberate indifference,
which requires “a conscious disregard of a substantial risk of
serious harm.” 27
22
Chainey, 523 F.3d at 219 (citation and quotation marks
omitted).
23
L.R. v. Sch. Dist. of Philadelphia, 836 F.3d 235, 246 (3d
Cir. 2016); see also Cty. of Sacramento v. Lewis, 523 U.S.
833, 847 (1998) (noting that the “measure of what is
conscience shocking is no calibrated yard stick”).
24
L.R., 836 F.3d at 246 (citation and quotation marks
omitted).
25
Id. (citation and quotation marks omitted).
26
Lewis, 523 U.S. at 851.
27
L.R., 836 F.3d at 246 (citation and quotation marks
omitted).
13
Against this background, Barger contends that Kane’s
substantive due process claim fails because he did not
“commit[] a serious battery that shocks the conscience.” 28 In
support, Barger relies on out-of-circuit cases in which
conduct he describes as “well beyond anything alleged
against [him]” was found to not be conscience-shocking. 29
For example, Barger cites the Eighth Circuit’s decision in
Hawkins v. Holloway. 30 In Hawkins, male police officers
alleged that their sheriff violated their substantive due process
rights by groping them and making lewd comments. 31 In
rejecting the officers’ argument, the Court explained that,
while the sheriff’s conduct was “perverted,” the officers’
“allegations of inappropriate sexual contact on the sheriff’s
part [] fall into the category of misconduct for which no
constitutional remedy is available.” 32
Barger also cites two unpublished district court cases
from the Seventh Circuit, Nagle v. McKernan, 33 and Decker
v. Tinnel. 34 In Nagle, the plaintiff alleged that a fire marshal
violated her right to bodily integrity while inspecting her
place of employment by cornering her in her office, leaning
28
Appellee’s Br. at 16.
29
Appellee’s Br. at 21.
30
316 F.3d 777 (8th Cir. 2003).
31
Id. at 784–85.
32
Id. at 785.
33
No. 07 C 680, 2007 WL 2903179 (N.D. Ill. Sept. 28, 2007).
34
No. 2:04-CV-227, 2005 WL 3501705 (N.D. Ind. Dec. 20,
2005).
14
against her body, and breathing on her while intimately
pressing his face against the back of her head and neck. 35
The Northern District of Illinois disagreed, concluding that—
while his behavior was “strange and inappropriate”—the fire
marshal’s conduct did not shock the conscience. 36
Likewise, in Decker, the plaintiff—an 18-year-old
woman—alleged that a police officer violated her right to
bodily integrity during a police ride-along by touching her
breasts and thighs, kissing her, and repeatedly making
sexually suggestive comments. 37 While the Northern District
of Indiana characterized the officer’s conduct as “improper
and reprehensible,” it nevertheless held that it “d[id] not rise
to the level of a constitutional violation” that shocked the
conscience. 38
We are not persuaded. As explained, wholly contrary
to department policy, Barger met with Kane—then
considered a possible sexual assault victim—alone in the
back room of the police station. During that encounter,
Barger charted a course that, viewed in the light most
favorable to Kane, violated her right to bodily integrity and
shocks the conscience. In the back room, in further violation
of department policy, Barger photographed intimate areas of
Kane’s body with his personal cell phone. In the course of
taking the photos, Barger personally pulled Kane’s shorts and
tank top down to expose her right buttock and upper chest,
35
Nagle, 2007 WL 2903179 at *1.
36
Id. at *2.
37
Decker, 2005 WL 3501705 at *1–2.
38
Id. at *9.
15
rather than having Kane do so herself. Moreover, when
Barger tugged her shorts, Kane “felt something touch her butt
crack which caused her to jump.” 39 Further, while Kane
repeatedly said her vagina was not injured, Barger’s incessant
questioning about her vagina ultimately caused Kane to
expose her vagina to him.
Barger’s conduct after his encounter with Kane only
underscores a conscience-shocking disregard for Kane’s right
to bodily integrity. Indeed, after photographing Kane, Barger
failed to document the clothing evidence that Kane provided.
That evidence remains unaccounted for. Moreover, after
Kane reported Barger’s conduct, Barger initially lied to
outside investigators and said he never photographed Kane,
let alone with his personal cell phone. On this point, after
Barger came clean with investigators, he said he lied because
he did not want his girlfriend to be jealous of the fact that he
photographed Kane.
Altogether, the record—again, viewed in the light most
favorable to Kane—supports the inference that Barger acted
for his own personal gratification, rather than investigative
ends, in both touching Kane and photographing her intimate
bodily areas with his personal cell phone in violation of
department policy. That is conscience-shocking behavior.
Thus, Barger violated Kane’s right to bodily integrity. 40
39
Ohio App. 173.
40
To be clear, today’s holding is limited to the facts of this
case and by no means suggests that photographing and/or
touching a possible sexual assault victim during an
investigation is a de facto violation of the right to bodily
integrity. Indeed, we can conceive of many legitimate
16
B.
Having found Kane’s right to bodily integrity was
violated, we now ask if that right was clearly established at
the time of Barger’s conduct. 41
“A clearly established right is one that is sufficiently
clear that every reasonable official would have understood
that what he is doing violates that right.” 42 “We do not
require a case directly on point” to find that a right was
clearly established. 43 Rather, “[t]o be clearly established,” a
right need only have “a sufficiently clear foundation in then-
existing precedent.” 44 In this inquiry, “[w]e look first to
applicable Supreme Court precedent.” 45 However, “[e]ven if
none exists, it may be possible that a robust consensus of
cases of persuasive authority in the Courts of Appeals could
investigative reasons for engaging in such conduct. Here,
however, by acting in a manner that could be interpreted as
prioritizing his personal gratification over his investigative
duties, Barger fell on the wrong side of the line.
41
See Fields v. City of Philadelphia, 862 F.3d 353, 361 (3d
Cir. 2017) (noting that “we look at the state of the law” when
the underlying conduct occurred “[t]o determine whether the
right [was] clearly established”).
42
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citation and
quotation marks omitted).
43
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
44
District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018).
45
L.R., 836 F.3d at 247–48.
17
clearly establish a right for purposes of qualified
immunity.” 46
“Defining the right at issue is critical to this inquiry,”
and “[w]e must frame the right in light of the specific context
of the case, not as a broad general proposition.” 47 This does
not mean that “an official action is protected by qualified
immunity unless the very action in question has previously
been held unlawful.” 48 Accordingly, “it need not be the case
that the exact conduct has previously been held unlawful so
long as the contours of the right are sufficiently clear.” 49 Said
another way, we do not require a case “directly mirror[ing]
the facts” at hand, so long as “there are sufficiently analogous
cases that should have placed a reasonable official . . . on
notice that his actions were unlawful.” 50 As such, “officials
46
Id. at 248 (alteration, citation, and quotation marks
omitted).
47
Id. (citation and quotation marks omitted).
48
Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also
Hope v. Pelzer, 536 U.S. 730, 741 (2002) (explaining that
“[a]lthough earlier cases involving ‘fundamentally similar’
facts can provide especially strong support for a conclusion
that the law is clearly established, they are not necessary to
such a finding”).
49
Kedra v. Schroeter, 876 F.3d 424, 450 (3d Cir. 2017)
(citation and quotation marks omitted); see also id. at 451–52
(admonishing against defining a right in a narrow and fact-
bound way for purposes of qualified immunity).
50
L.R., 836 F.3d at 249.
18
can still be on notice that their conduct violates established
law even in novel factual circumstances.” 51
Here, the right at issue is an individual’s right not to be
sexually fondled and illicitly photographed by a police officer
investigating his or her case, for the officer’s own
gratification. Thus, based on the above, “[t]he ultimate
question is whether the state of the law when the offense
occurred” gave Barger “fair warning” that his conduct
violated this right. 52 We conclude that it did.
Intuitively, it seems absurd to analyze whether the
right to be free from an officer’s sexual assault was clearly
established by case law at the time of Barger’s conduct. This
is because, given the egregiousness of Barger’s violation of
Kane’s personal security and bodily integrity, the right here is
so “obvious” that it could be deemed clearly established even
without materially similar cases. 53 Indeed, while Barger has
not been convicted of a crime, his actions—viewed in the
light most favorable to Kane—resemble the crime of indecent
51
Hope, 536 U.S. at 741.
52
L.R., 836 F.3d at 247 (citation and quotation marks
omitted).
53
Hope, 536 U.S. at 741; see also White v. Pauly, 137 S. Ct.
548, 552 (2017) (per curiam) (noting, in the Fourth
Amendment context, that “general statements of the law are
not inherently incapable of giving fair and clear warning to
officers” in “an obvious case” (citations and quotation marks
omitted)).
19
assault in Pennsylvania, where Barger’s conduct occurred. 54
Under Pennsylvania law, “indecent contact” is defined as
“[a]ny touching of the sexual or other intimate parts of the
person for the purpose of arousing or gratifying sexual desire,
in any person.” 55 By touching Kane’s intimate areas for his
own personal gratification, that is effectively what Barger did
here. 56
Further, at the time of Barger’s conduct, both our case
law and that of other circuits placed Barger on notice that he
acted unconstitutionally. In this regard, our decision in Doe
v. Luzerne Cty. 57 is illustrative. In Doe, we held that male
police officers violated a female colleague’s Fourteenth
Amendment right to privacy by videotaping her partially
unclothed body without her consent in a showering area. 58
While Doe did not involve the specific right to bodily
integrity, Doe and the present matter both involved male
police officers who deceptively used recording devices to
capture images of the intimate bodily areas of vulnerable
54
See 18 Pa. Cons. Stat. § 3126(a)(1) (providing that “[a]
person is guilty of indecent assault if the person has indecent
contact with the complainant . . . for the purpose of arousing
sexual desire in the person . . . without the complainant’s
consent”).
55
Id. § 3101.
56
See Malley v. Briggs, 475 U.S. 335, 341 (1986) (explaining
that qualified immunity does not protect “those who
knowingly violate the law”).
57
660 F.3d 169 (3d Cir. 2011).
58
Id. at 175–78.
20
females. Without doubt, Barger’s “specific conduct” is
“sufficiently factually similar” to our decision in Doe to have
placed him on notice that his conduct was unconstitutional. 59
Thus, in light of these factual similarities, Doe announced a
“sufficiently clear” right to personal bodily security that
“applie[d] with obvious clarity” at the time Barger acted. 60
Analogous cases from other circuits underscore that
the right here was clearly established. For example, in
Haberthur v. City of Raymore, the Eighth Circuit reversed the
dismissal of a plaintiff’s substantive due process claim based
on an officer’s sexual misconduct. 61 There, the plaintiff
alleged that the officer reached under her shirt, fondled her
chest, and caressed her body while making sexually
suggestive remarks. 62 In finding that the plaintiff stated a
claim, the Court characterized the officer’s conduct as
“intrusive, demeaning, and violative of [the plaintiff’s]
personal integrity.” 63
59
Kedra, 876 F.3d at 449 n.19 (citation and quotation marks
omitted).
60
Id. at 450 (citation and quotation marks omitted); see also
Brown v. Muhlenberg Twp., 269 F.3d 205, 211 n.4 (3d Cir.
2001) (“If the unlawfulness of the defendant’s conduct would
have been apparent to a reasonable official based on the
current state of the law, it is not necessary that there be
binding precedent from this circuit so advising.”).
61
119 F.3d 720, 724 (8th Cir. 1997).
62
Id. at 721, 724.
63
Id. at 724.
21
Similarly, in Fontana v. Haskin, the Ninth Circuit
analyzed a highway patrol officer’s conduct toward a plaintiff
who was handcuffed and detained in the back of a patrol
car. 64 On the way to the police station, the defendant officer
sat next to the plaintiff in the back seat while his partner
drove. 65 At that time, the officer inappropriately put his arm
around the plaintiff and massaged her shoulders. 66 The
officer also made sexually suggestive statements concerning
the plaintiff’s appearance and relationship status. 67 While the
case was decided on Fourth Amendment grounds because the
plaintiff was handcuffed during the encounter, the Court
held—in the alternative—that the officer’s sexual predation
“was egregious and outrageous and shocks the conscience as
a matter of law” under the Fourteenth Amendment. 68
With this context, it is clear that—at the time Barger
acted—the law provided fair warning that his sexual
misconduct toward Kane was unlawful. As such, the right
was clearly established for purposes of qualified immunity.
III.
For the foregoing reasons, we reverse the District
Court’s grant of summary judgment and remand for further
proceedings consistent with this opinion.
64
262 F.3d 871, 875 (9th Cir. 2001).
65
Id.
66
Id.
67
Id.
68
Id. at 882 n.7.
22