Tyson v. County of Sabine

Case: 21-40590 Document: 00516410447 Page: 1 Date Filed: 07/28/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 28, 2022
No. 21-40590 Lyle W. Cayce
Clerk
Melissa Tyson,
Plaintiff—Appellant,
versus
County of Sabine; David W. Boyd, Individually and in his official
capacity as Constable; Thomas N. Maddox,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:19-CV-140
Before Clement, Graves, and Costa, Circuit Judges.
Edith Brown Clement, Circuit Judge:
This appeal arises from an alleged sexual assault committed by a law
enforcement officer while he was conducting a welfare check on the plaintiff
at her home. The district court found that the officer was entitled to qualified
immunity. We AFFIRM in part, REVERSE in part, and REMAND for
further proceedings consistent with this opinion.
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I
On September 18, 2018, Wade Tyson called the Sheriff’s Department
of Sabine County, Texas, to request a welfare check on his wife, Melissa
Tyson (“Tyson”). Wade reported that he was out of town and worried about
his wife, who was home alone and distressed. Defendant Deputy David Boyd
called Tyson that evening and told her that he would visit the next morning
to conduct a welfare check. He introduced himself as a sheriff. He told her
that he handled welfare checks because he was a preacher. 1 During the call,
Tyson overheard Deputy Boyd tell other officers not to respond to Wade’s
request for a welfare check on Tyson because he was addressing it.
The next morning, Deputy Boyd showed up alone at Tyson’s home in
a plain car and wearing a shirt identifying himself as a “Sheriff.” He was not
visibly carrying a weapon. Tyson offered a handshake but, instead, Deputy
Boyd hugged her. Deputy Boyd asked if there was a place that they could
talk. She led him to chairs and a table on the side porch of the house. Before
sitting down, Deputy Boyd asked if she had security cameras or neighbors,
and he began to search the exterior of the home. Tyson said that she did not
have cameras and her neighbors were usually not home. He commented that
Tyson “must be lonely with [her] husband being gone” and “living . . . by
[herself] the majority of the time at a dead-end road.” Tyson said that she
wasn’t lonely, she was fine. She testified that she thought the officer’s
behavior was strange, but she gave him the benefit of the doubt because he
was helping her.
1
Deputy Boyd’s ministerial credentials had actually been revoked eleven years
prior because of prohibited sexual conduct. During his time as a minister, he was also sued
by church members for alleged sexual misconduct.
2
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Deputy Boyd stayed for approximately two hours, during which time
he made numerous inappropriate sexual statements and commands, which
the district court found were neither invited nor consensual. 2 For example,
Deputy Boyd told Tyson that he and fellow officers had recently seen her at
a restaurant, and he repeated sexual comments that the officers made about
her body. For example, he said that the officers talked about “what they
would like to do to [her] if they could.” He also compared the size of Tyson’s
breasts with his wife’s breasts. He pressed her to answer invasive questions
about her sex life, such as whether she and her husband would consider a
threesome and whether her husband would allow someone to watch them
having sex. And he asked for nude pictures of her husband.
At some point, Deputy Boyd received a phone call from his wife, and
he answered it on speakerphone without notifying his wife. He told his wife
that he was “running errands.” He then solicited nude photos from his wife
and made sexually explicit comments.
Tyson was troubled by Deputy Boyd’s statement to his wife that he
was not on duty, so she sought to “get some distance” from him by retreating
into her home for water. Without invitation, he followed her. Tyson gave
him the water and led him back outside.
Tyson contends that she felt forced to submit to Deputy Boyd’s sexual
misconduct because she was isolated and alone, as Deputy Boyd had pointed
2
In the proceedings below, the district court explicitly rejected defendants’ “gross
mischaracterization of this incident as” consensual. On appeal, defendants do not
challenge the district court’s finding that Tyson neither “consented to, [n]or invited,
Deputy Boyd’s [alleged] sexual assault.” And the record does not support that the district
court’s finding was clear error. See Fed. R. Civ. P. 52(a). It is obvious that “‘[c]onsent’
that is the product of official intimidation or harassment is not consent at all. Citizens do
not forfeit their constitutional rights when they are coerced to comply with a request that
they would prefer to refuse.” Florida v. Bostick, 501 U.S. 429, 438 (1991).
3
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out; she felt intimidated by his authority; and she was frightened that the
sexual harassment would escalate if she did not comply.
Tyson also testified that she felt coerced to submit to the sexual
misconduct because Deputy Boyd implicitly threatened to ticket her for
possession of drug paraphernalia. That morning, Tyson had left marijuana
paraphernalia on a table in her home, which was visible through a window
from the side porch. During their conversation, Deputy Boyd described
issuing tickets for marijuana possession to attendees of a swinger’s club. He
stated that he would sometimes “just take their stuff and then send them on
the way to the party,” but that, “most of the time,” it was his “duty to issue
a ticket.” At the time he made the comment, he was facing the window
looking into the home, and Tyson contends that from his vantage point he
could see the marijuana paraphernalia. Based on the “frequency of it coming
up,” Tyson perceived that Deputy Boyd’s story about ticketing attendees of
the swinger party was a veiled threat to coerce her into going along with the
sexual misconduct.
Tyson alleges that Deputy Boyd then sexually assaulted her on the
porch of her home. He commanded her to expose her breasts and her vagina,
and spread her labia to expose her clitoris. After a prolonged hesitation,
Tyson complied. Deputy Boyd then masturbated to ejaculation in front of
her. She closed her eyes and waited for him to finish, at which point he left.
Immediately afterwards, Tyson felt distressed and cried. Deputy
Boyd texted her multiple times following the incident—messages such as “I
saw you today” or “I haven’t heard from you”—but she did not respond.
She messaged a friend that she was “worr[ied] about him hurting [her].” She
began frequently seeing a psychotherapist and a hypnotherapist, her intimacy
with her husband significantly decreased, she gained thirty pounds, she
started carrying a gun, she put cameras up, and she generally stopped leaving
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her home. In short, the incident “changed [her] whole life,” and she isn’t
“who [she] used to be.” She reported the incident to the Texas Rangers
because she was not sure who she could trust in local law enforcement based
on Deputy Boyd’s story that he and other officers had been talking sexually
about her body. This was not the first allegation of sexual misconduct against
Deputy Boyd; at least three other complaints had been made by other people.
In April 2019, Deputy Boyd was indicted by the State of Texas and
charged with sexual assault, indecent exposure, and official oppression. See
Tex. Pen. Code §§ 22.011, 21.08, 39.03. 3 In the same month, Tyson
sued the County of Sabine, the County Sheriff, and Deputy Boyd,
individually and in his official capacity as constable, asserting claims under
42 U.S.C. § 1983 for alleged violations of her rights under the Fourth, Eighth,
and Fourteenth Amendments to the U.S. Constitution. After a series of stays
for the pending criminal proceedings, defendants moved for summary
judgment, arguing that there were no underlying constitutional violations.
The district court agreed. See Tyson v. County of Sabine, No. 9:19-CV-
140, 2021 WL 3519294, at *7 (E.D. Tex. July 14, 2021). The court found that
the Fourth Amendment claim of excessive force failed because Tyson had
not been seized, and that the Eighth Amendment claim failed because she
was not a prisoner. Id. at *3–5. As for the Fourteenth Amendment claim, the
district court found that Tyson satisfied the injury requirement under § 1983.
Id. at *5. The court also emphasized that Tyson had “not . . . consented to,
or invited, Deputy Boyd’s sexual assault” and that “Deputy
Boyd . . . abuse[d] his authority when he sexually assaulted Tyson.” Id. at
*4–5. Nevertheless, the district court concluded that Tyson’s right to bodily
integrity had not been violated because Deputy Boyd had not physically
3
These criminal proceedings are ongoing.
5
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touched her, and thus the alleged conduct did not shock the conscience. Id.
at *7.
The court dismissed the remaining claims—a Monell claim against the
County and a claim of inadequate hiring, training, and supervision against the
County and Sheriff—for lack of an underlying constitutional violation.
Tyson timely appealed the dismissal of her claims under the Fourth
Amendment and Fourteenth Amendment, as well as her claims against the
County and Sheriff.
II
We review the district court’s grant of summary judgment de novo. See
Petro Harvester Operating Co., L.L.C. v. Keith, 954 F.3d 686, 691 (5th Cir.
2020). Summary judgment is appropriate only if “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). We view the evidence in the light
most favorable to the non-movant, “drawing all justifiable inferences in [her]
favor.” Renwick v. PNK Lake Charles, L.L.C., 901 F.3d 605, 609 (5th Cir.
2018).
Deputy Boyd has invoked the defense of qualified immunity. That
doctrine “balance[s] two competing societal interests: ‘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.’” Joseph ex rel. Estate of Joseph v. Bartlett,
981 F.3d 319, 328 (5th Cir. 2020) (quoting Pearson v. Callahan, 555 U.S. 223,
231 (2009)). The defense only immunizes public officials “from liability for
civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
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At summary judgment, an officer’s good-faith assertion of qualified
immunity shifts the burden of proof to the plaintiff to show that the defense
is unavailable. The plaintiff must present evidence “(1) that the official
violated a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Morgan v. Swanson, 659
F.3d 359, 371 (5th Cir. 2011) (en banc) (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 735 (2011)).
III
Although we have discretion to begin with either prong of qualified
immunity, see Callahan, 555 U.S. at 237, we think it beneficial to first consider
whether the facts “show the officer’s conduct violated a constitutional
right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Tyson alleges a violation
of her rights under the Fourth Amendment and Fourteenth Amendment.
“[A]ll claims that law enforcement officers have used excessive
force . . . in the course of an arrest, investigatory stop, or other ‘seizure’ of a
free citizen should be analyzed under the Fourth Amendment.” Graham v.
Connor, 490 U.S. 386, 395 (1989). However, “[t]he Fourth Amendment
covers only ‘searches and seizures.’” County of Sacramento v. Lewis, 523 U.S.
833, 843 (1998). Thus, where neither a search nor a seizure took place, the
claim falls outside the Fourth Amendment and comes instead within the
substantive due process component of the Fourteenth Amendment. Id. at
843–44 (analyzing excessive-force claim arising from fatal car crash under the
Fourteenth Amendment because there had been no seizure); United States v.
Lanier, 520 U.S. 259, 272 n.7 (1997).
Neither party suggests that there was a search here, thus we consider
only whether the alleged sexual abuse occurred during a seizure.
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A
“A voluntary encounter between an officer and a citizen may ripen
into a seizure[] triggering the Fourth Amendment . . . ‘only when the officer,
by means of physical force or show of authority, has in some way restrained
the liberty of [the] citizen.’” United States v. Mask, 330 F.3d 330, 336 (5th
Cir. 2003) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)). Where, as here, the
alleged detainee had “‘no desire to leave’ for reasons unrelated to the police
presence, the ‘coercive effect of the encounter’ can be measured better by
asking whether ‘a reasonable person would feel free to decline the officers’
requests or otherwise terminate the encounter.’” Brendlin v. California, 551
U.S. 249, 255 (2007) (quoting Bostick, 501 U.S. at 435–36).
While no per se rules govern when an encounter with law enforcement
constitutes a seizure, see Florida v. Royer, 460 U.S. 491, 506 (1983),
circumstances indicative of a seizure include: “the threatening presence of
several officers”; “the display of a weapon by an officer”; “physical
touching of the person of the citizen”; and “the use of language or tone of
voice indicating that compliance with an officer’s request might be
compelled.” Mask, 330 F.3d at 337 (citing United States v. Mendenhall, 446
U.S. 544, 554 (1980)). We have also given weight to an officer “blocking an
individual’s path”; “implicit constraints on an individual’s freedom as
would be caused by retaining an individual’s” possessions, and “statements
by officers that individuals are suspected of smuggling drugs.” United States
v. Berry, 670 F.2d 583, 597 (5th Cir. Unit B 1982).
Tyson argues that the consensual welfare check transformed into a
seizure because Deputy Boyd’s story about ticketing swingers for marijuana
possession indicated that he was investigating her for marijuana possession
and thus, that she was not free to leave. She testified that she believed he
could see her marijuana paraphernalia left out on the table through the
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window from where he was sitting; that he mentioned marijuana frequently
and without reason; and that he emphasized his “duty to issue a ticket.” She
argues that he had no reason to bring up marijuana other than because he had
seen her paraphernalia inside the house.
We have recognized that statements by an officer indicating that an
individual is suspected of illegal activity are persuasive evidence that an
objectively reasonable person would not feel free to leave. See Berry, 670 F.2d
at 597 (“Statements which intimate that an investigation has focused on a
specific individual easily could induce a reasonable person to believe that
failure to cooperate would lead only to formal detention.”); see also United
States v. Gonzales, 79 F.3d 413, 420 (5th Cir. 1996) (noting officers’ statement
“that the car [the defendant] was driving was suspected of being used to
transport drugs . . . . may have pushed the encounter, which was initially
consensual, to being a Terry stop”); United States v. Zukas, 843 F.2d 179, 182
(5th Cir. 1988) (“[W]hen the police officers . . . informed [the
defendant] . . . that he was suspected of smuggling drugs,” a seizure
occurred); United States v. Galberth, 846 F.2d 983, 990 n.11 (5th Cir. 1988)
(noting officer’s instruction that defendant be “pat [ ] down for ‘possible
narcotics’” effected a seizure); United States v. Hanson, 801 F.2d 757, 761
(5th Cir. 1986) (“[W]hen [the officer] . . . informed [the defendant] that
he . . . [was] suspected of carrying drugs, a reasonable person would not have
believed that he was free to go.”). In each of these cases the officers explicitly
stated a particularized suspicion of drug possession by the individual.
By contrast, we have rejected that a person was seized simply because
they assumed that a police officer suspected them of criminal activity. In
United States v. Mask, the defendant argued that he was seized when he
overheard the officers talking about his license report information and
inferred that the officers suspected him of criminal activity. 330 F.3d at 339.
We reasoned that, although the defendant “may have surmised . . . that the
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officers had come to suspect him of illegal activity[,] [ ] this alone gives us
insufficient reason to conclude that [he] was no longer free to leave.” Id.Similarly, Tyson’s assumption that Deputy Boyd suspected her of
marijuana possession based on a story about other people caught possessing
marijuana is insufficient to effect a seizure. Deputy Boyd did not accuse
Tyson of drug possession nor explicitly indicate awareness of her drug
paraphernalia. And although he described a duty to ticket for possession, he
also said he would sometimes just confiscate the drugs and let the owner keep
going. Deputy Boyd’s story about ticketing attendees of a swinger party for
possession of marijuana would not have indicated to an objectively
reasonable, innocent person that they were suspected of wrongdoing.
Tyson also argues that she was seized because Deputy Boyd made
intimidating sexual advances while she was home alone. But she does not
argue that he ever told her she could not leave or otherwise attempted to
physically prevent her from terminating the encounter. An intimidating
police presence does not, standing alone, constitute a seizure. See Michigan
v. Chesternut, 486 U.S. 567, 575 (5th Cir. 1988).
As a matter of law, the record does not support that Tyson was seized.
The district court did not err to dismiss her Fourth Amendment claim.
B
Having determined that Tyson was not seized, we turn to her claim
that the alleged sexual abuse violated her Fourteenth Amendment rights.
1
The substantive component of the Due Process Clause under the
Fourteenth Amendment secures the “right to be free of state-occasioned
damage to a person’s bodily integrity.” Doe v. Taylor Indep. Sch. Dist.
(“Taylor ISD”), 15 F.3d 443, 450–51 (5th Cir. 1994) (en banc) (quoting
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Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981)). 4 A violation of the
right to bodily integrity follows from “behavior of the governmental officer
[that] is so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.” Lewis, 523 U.S. at 847 n.8.
We have long recognized that physical sexual abuse by a state official
violates the right to bodily integrity. See United States v. Guidry, 456 F.3d
493, 506 n.7 (5th Cir. 2007) (affirming the Fourteenth Amendment protects
“the right to be free from sexual assault” committed by a law enforcement
officer against a non-detainee); Doe v. Rains Cnty. Indep. Sch. Dist., 66 F.3d
1402, 1406 (5th Cir. 1995) (recognizing the established “liberty interest in
freedom from sexual abuse by persons wielding state authority”); Taylor
ISD, 15 F.3d at 450–51 (holding that “physical sexual abuse” by a
government actor violates a child’s right to bodily integrity).
That is because the core of the right to substantive due process
protects against the state’s “exercise of power without any reasonable
justification in the service of a legitimate governmental objective.” Lewis,
523 U.S. at 846; see also Collins v. Harker Heights, 503 U.S. 115, 126 (1992)
(“[T]he Due Process Clause of the Fourteenth Amendment was intended to
prevent government [officials] ‘from abusing [their] power, or employing it
as an instrument of oppression.’” (quoting DeShaney v. Winnebago Cnty.
Dep’t of Social Servs., 489 U.S. 189, 196 (1989))). Because the state has no
4
In its recent holding that the Constitution does not confer the right to abortion,
the Supreme Court made clear that “[n]othing in [its] opinion should be understood to cast
doubt on precedents that do not concern abortion.” Dobbs v. Jackson Women’s Health Org.,
142 S. Ct. 2228, 2277–78 (2022).
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interest in sexually abusing its citizens, sexual abuse by a state official cannot
be justified by any legitimate governmental objective.
Here, Deputy Boyd allegedly visited Tyson alone at her home under
the pretense of a welfare check and coerced her to strip for his sexual
gratification. He further ordered her to show him her clitoris while he
masturbated to her exposed body. It is beyond dispute that no legitimate state
interest can justify an officer’s use of coercion to compel the subject of a
welfare check to expose her most private body parts for his sexual enjoyment.
Nor does Deputy Boyd argue that any legitimate state interest could justify
his instructions to Tyson to perform nonconsensual sexual acts while he
masturbated.
Moreover, this is not a case of recklessness, negligence, or overzealous
policing. See Lewis, 523 U.S. at 849. The record supports a premeditated
intent to introduce sexual abuse into the welfare check because Deputy Boyd
misrepresented to Tyson that he was on duty and searched the exterior of the
home for cameras immediately upon arrival. “[C]onduct intended to injure
in some way unjustifiable by any government interest is the sort of official
action most likely to rise to the conscience-shocking level.” Id. (emphasis
added). Deputy Boyd’s alleged sexual abuse shocks the conscience and
violated Tyson’s right to bodily integrity.
Defendants argue the alleged sexual abuse does not shock the
conscience because Deputy Boyd did not effectuate it using physical force.
We disagree. Physical force is not a requirement of a violation of the right to
bodily integrity. See Windham v. Harris County, 875 F.3d 229, 242 n.17
(2017). Substantive due process violations can be based on mental coercion
alone. See Leyra v. Denno, 347 U.S. 556, 558 (1954); see also Rogers v. City of
Little Rock, 152 F.3d 790, 797 (8th Cir. 1998) (holding that officer’s use of
mental coercion to effectuate sexual assault violated the Fourteenth
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Amendment); Abeyta ex rel. Martinez v. Chama Valley Indep. Sch. Dist., 77
F.3d 1253, 1256 (10th Cir. 1996) (rejecting “that psychological abuse absent
physical contact or a threat to bodily integrity is not a deprivation of
constitutional rights”). Thus, we have recognized violations of the right to
bodily integrity where the officer never physically touched the plaintiff and
the plaintiff suffered purely psychological harm. See Petta v. Rivera, 143 F.3d
895, 903 (5th Cir. 1998); Flores v. City of Palacios, 381 F.3d 391, 400–01 (5th
Cir. 2004). The use of mental coercion rather than physical coercion to
effectuate sexual abuse is a distinction without a difference. Deputy Boyd’s
use of coercion to compel Tyson to engage in physical sex acts against her
will violated her right to bodily integrity.
Defendants also argue that Deputy Boyd’s conduct is merely verbal
harassment, which we have held does not, by itself, support a constitutional
claim. See, e.g., Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (“It is
clear that verbal abuse by a prison guard does not give rise to a cause of action
under § 1983.”); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) (same).
But the alleged sexual assault in this case involved far more than verbal
harassment. Nonconsensual stripping, prolonged nudity, and manual
manipulation of the privates for an officer’s sexual enjoyment are abusive sex
acts that physically affected Tyson’s body.
Deputy Boyd’s alleged conduct was an outrageous abuse of power that
shocks the conscience and violated Tyson’s right to bodily integrity.
2
Our holding that Deputy Boyd violated Tyson’s right to bodily
integrity is not enough to defeat the defense of qualified immunity. Tyson
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must demonstrate that the right was clearly established when the challenged
conduct occurred.
“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.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Reichle
v. Howards, 566 U.S. 658, 664 (2012)). Generally, plaintiffs point to “a
sufficiently clear foundation in then-existing precedent.” District of Columbia
v. Wesby, 138 S. Ct. 577, 589 (2018). “But that is not the only way to defeat
qualified immunity.” Villareal v. City of Laredo, 17 F.4th 532, 539 (5th Cir.
2021). “Although 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.” Hope v. Pelzer, 536
U.S. 730, 741 (2002). A “general constitutional rule already identified in the
decisional law may apply with obvious clarity to the specific conduct in
question, even though ‘the very action in question has [not] previously been
held unlawful.’” Id. (quoting Lanier, 520 U.S. at 271); see also Brosseau v.
Haugen, 543 U.S. 194, 199 (2004) (per curiam) (“Of course, in an obvious
case, [general] standards can ‘clearly establish’ the answer, even without a
body of relevant case law.”); Bartlett, 981 F.3d at 330 (explaining that the
Supreme Court’s qualified immunity precedents allow for the “rare
possibility that, in an obvious case, analogous case law is not needed because
the unlawfulness of the challenged conduct is sufficiently clear” (cleaned up)
(quoting Wesby, 138 S. Ct. at 590–91)). “The central concept is that of ‘fair
warning.’” Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc)
(quoting Hope, 536 U.S. at 740).
In other words, “[q]ualified immunity shields an officer from suit
when [he] makes a decision that, even if constitutionally deficient, reasonably
misapprehends the law governing the circumstances [he] confronted.”
Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (per curiam) (emphasis added)
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(quoting Brosseau, 543 U.S. at 198). It does not immunize those officials who
commit novel, but patently “obvious,” violations of the Constitution. Hope,
536 U.S. at 745. The Supreme Court has recently affirmed the vitality of this
principle. See Riojas, 141 S. Ct. at 53–54 (reversing the grant of qualified
immunity where the violation was “obvious” because “no reasonable [ ]
officer could have concluded that” the alleged conduct was “constitutionally
permissible”); cf. McCoy v. Alamu, 141 S. Ct. 1364 (2021) (Mem.), granting,
vacating, and remanding, 950 F.3d 226 (5th Cir. 2020) (directing
reconsideration “in light of Taylor”).
It is obvious that the right to bodily integrity forbids a law enforcement
officer from sexually abusing a person by coercing them to perform
nonconsensual physical sex acts for his enjoyment. As noted, we have long
held that physical sexual abuse by a government official violates the
Fourteenth Amendment. See Guidry, 456 F.3d at 506 n.7; Rains Cnty. Indep.
Sch. Dist., 66 F.3d at 1406; Taylor ISD, 15 F.3d at 450–52; see also Whitley v.
Hanna, 726 F.3d 631, 650–51 (5th Cir. 2013) (Elrod, J., concurring) (“Sexual
abuse by a state official is an undeniable violation of this liberty interest.”).
No degree of physical sexual abuse effected for a law enforcement officer’s
sexual gratification is justified by a legitimate governmental objective. Cf.
Riojas, 141 S. Ct. at 54 (noting the complete lack of evidence of “necessity or
exigency” justifying the officer’s conduct). Regardless whether an officer
uses physical or mental coercion, physical sexual abuse by a state official
offends the Constitution. No reasonable officer could believe otherwise.
We have little trouble finding that the constitutional offense was
obvious because the physical sexual abuse alleged here is a “particularly
egregious” and “extreme circumstance[]” of assault by a state official.
Riojas, 141 S. Ct. at 53–54. The record reflects that Deputy Boyd took
advantage of his office to become acquainted with Tyson. He used the
pretense of legitimate policy activity—a welfare check, in fact—to gain
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entrance to Tyson’s property. Upon arrival, he immediately ensured that
Tyson was isolated and that his conduct would not be observed by neighbors
or security cameras. Instead of proceeding to the welfare check, he then
sexually harassed Tyson for nearly two hours. Ultimately, he committed
physical sexual abuse by instructing her to perform nonconsensual physical
sex acts for his sexual gratification. He told her to strip her privates, to
manually manipulate her genitals, and to remain exposed while he
masturbated to ejaculation. That Deputy Boyd’s alleged physical sexual
abuse violated Tyson’s constitutional right to bodily integrity would have
been obvious to any reasonable officer.
Defendants argue that we have held allegations of “more extensive
sexual activity” insufficient to violate the right to bodily integrity. They cite
to one unpublished opinion that we find factually inapposite. See Copeland v.
Nunan, 250 F.3d 743, 2001 WL 274738 (5th Cir. 2001) (per curiam)
(unpublished).
In Copeland, we considered a prisoner’s allegations under the Eighth
Amendment that his rights were violated when a clinical pharmacist fondled
his penis and anus during a testicular examination that the prisoner requested
and during two subsequent occasions. 250 F.3d at *3. We held that the
pharmacist was entitled to qualified immunity because the prisoner “alleged
nothing beyond merely de minimis physical or psychological injuries.” Id. at
*2. By contrast, the defendants here do not challenge the district court’s
finding that Tyson’s significant psychological injuries satisfy the injury
requirement for her Fourteenth Amendment claim. See Tyson, 2021 WL
3519294, at *5. Moreover, the facts in Copeland—brief, sexual touching by a
clinical pharmacist during and subsequent to a testicular examination—are
distinct from the facts here—involuntary stripping; coerced self-touch; and
prolonged, nonconsensual exposure of a non-detainee’s privates while an
officer masturbated to ejaculation. Copeland “is too dissimilar . . . to create
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any doubt about the obviousness of [Tyson’s] right.” 5 Riojas, 141 S. Ct. at 54
n.2.
By their nature, cases addressing the most flagrant forms of
unconstitutional conduct seldom rise to the court of appeals. See McCoy, 950
F.3d at 236 (Costa, J., dissenting in part). When they do, the obviousness
exception “plays an important role in . . . ensur[ing] vindication of the most
egregious constitutional violations.” Id. No reasonable officer could believe
that it was constitutionally permissible to use the pretense of legitimate police
activity to sexually abuse a person by coercing her to perform physical sex
acts for the officer’s sexual gratification. We hold that Tyson’s right against
physical sexual abuse by a government official was clearly established.
C
Deputy Boyd argues that, even if his alleged sexual abuse of Tyson was
a clearly established violation of her constitutional rights, he cannot be held
liable because he did not act under color of law.
“It is firmly established that a defendant in a § 1983 suit acts under
color of state law when he abuses the position given to him by the State.”
West v. Atkins, 487 U.S. 42, 49–50 (1988). We have addressed the color-of-
law requirement twice before in similar circumstances. In Bennett v. Pippin,
5
Defendants also cite three district court decisions. See Guillot v. Castro, No. CV
17-6117, 2018 WL 3475294 (E.D. La. July 19, 2018); Chestang v. Alcorn State Univ., 820 F.
Supp. 2d 772 (S.D. Miss. 2011); Mims v. Oliver, No. CV H-15-644, 2017 WL 3034032 (S.D.
Tex. July 18, 2017), report and recommendation adopted, No. CV H-15-644, 2017 WL 3575706(S.D. Tex. Aug. 17, 2017). The cases are factually inapposite. All three considered
allegations of brief sexual touching over a fabric barrier. See Guillot, 2018 WL 3475294, at
*1; Chestang, 820 F. Supp. 2d at 779–80; Mims, 2017 WL 3034032, at *1. That type of
misconduct is not before us. None of the cases discuss the acts of sexual abuse alleged here:
nonconsensual stripping, prolonged nudity, coerced self-touch, and masturbation. These
cases do not leave a reasonable official with uncertainty whether the Constitution allowed
him to use his authority to coerce a person to perform sexual acts for his gratification.
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we held that a sheriff acted under color of law when he questioned the suspect
of a criminal investigation on the porch of her home then allegedly returned
later in the evening and sexually assaulted her. 74 F.3d 578, 589 (5th Cir.
1996). Although the alleged sexual assault occurred hours after the sheriff
performed his official duty of questioning the plaintiff, we found a nexus
between the assault and the sheriff’s abuse of his official authority. Id. We
recognized that the sheriff’s “relationship with [the plaintiff] grew out of
[his] investigation.” Id. at 586. In addition, he used the authority of his office
to determine her address and that she would be home alone. Id. at 589. And,
during the assault, he coerced the plaintiff into compliance by implying that
he was not subject to the rule of law because of his official office, stating: “I
can do what I want, I’m the sheriff.” Id. We also recognized that implicit
coercion resulted from the plaintiff’s status as a suspect in the sheriff’s
investigation, even though the sheriff did not explicitly verbalize a threat
about the investigation in order to effectuate the assault. Id.A decade later, we held that an assistant city attorney (ACA) acted
under color of law when he sexually assaulted two women in his private
office. See United States v. Dillon, 532 F.3d 379, 386 (5th Cir. 2008). There,
the ACA also “took advantage of his position to initially become acquainted
with his victims.” Id. He similarly ensured that the women were alone and
secluded by luring them to his office. Id. at 382. And we again recognized
the ACA’s indirect references to his power lent “an air of official authority”
to the assault, even though he “never explicitly mentioned his position as an
ACA” during the assault. Id. at 386–87. For example, with respect to one
plaintiff that sought help getting her son released on parole, we held that the
ACA’s statement that he knew “a lot of police officers and he [could] have
anybody arrested” was an implicit threat that reasonably “left her with the
impression he could have her son re-arrested at any time.” Id. at 383.
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By contrast, we held that officers did not act under color of law where
they did not use official power to facilitate their actions. See, e.g., Townsend
v. Moya, 291 F.3d 859, 860 (5th Cir. 2002) (holding that prison guard did not
act under color of law when he stabbed inmate during game of horseplay
unrelated to guard’s official duties); Delcambre v. Delcambre, 635 F.2d 407,
408 (5th Cir. Unit A Jan. 1981) (holding that on-duty chief of police did not
act under color of law when he assaulted his sister-in-law at police station
because assault arose from purely private family dispute).
The facts of this case are more akin to Bennett and Dillon. As in those
cases, Deputy Boyd’s alleged relationship with Tyson grew out of legitimate
police activity—Wade Tyson’s request for a welfare check on his wife. See
Bennett, 74 F.3d at 586; see also Dillon, 532 F.3d at 386. Deputy Boyd then
allegedly used the authority of his office to determine Tyson’s address,
whether she would be home alone, and whether she had security at her home.
See Bennett, 74 F.3d at 589. Like the ACA in Dillon, he relied on the pretense
of legitimate activity—here, a wellness check—to maneuver Tyson to a more
secluded part of her home. See 532 F.3d at 382.
And as in Bennett and Dillon, Deputy Boyd interwove sexual advances
with his authority as a law enforcement officer, lending an “air of official
authority” to the alleged sexual assault. Dillon, 532 F.3d at 386–87; see
Bennett, 74 F.3d at 589. For example, Deputy Boyd coupled a story about his
duty as an officer to ticket attendees of a swinger club for drug possession,
with inappropriate details about the swinger club and related questioning
about Tyson’s sex life with her husband. As another example, Deputy Boyd
told Tyson that he and fellow officers had been watching her in a restaurant
and talking about “what they would like to do to [her].” This statement
reasonably left Tyson with the impression that she could not trust local law
enforcement because it was unclear which officers were connected with
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Deputy Boyd. The record supports a nexus between the alleged misconduct
and Deputy Boyd’s abuse of his official authority.
Deputy Boyd argues that he did not act under color of law because he
“was not on duty” and only Tyson’s “subjective belief” supports otherwise.
But “[w]hether an officer is acting under color of state law does not depend
on his on- or off-duty status at the time of the alleged violation.” Bustos v.
Martini Club Inc., 599 F.3d 458, 464 (5th Cir. 2010). Critically, Tyson’s
“subjective belief” that Deputy Boyd was acting under color of law was born
directly from his conduct leading her to think as much. See Gomez v. Galman,
18 F.4th 769, 776 (5th Cir. 2021) (holding that two off-duty officers in plain
clothes who did not identify themselves acted under color of law during
assault because their tone of voice reasonably led plaintiff to believe they were
police officers). We also reject that Deputy Boyd did not act under color of
law simply because he did not wear a uniform or weapon. Although a uniform
and weapon can support that an officer acted under color of law, neither is
required. Id. (holding that off-duty officers not in uniform acted under color
of law); Bennett, 74 F.3d at 583 (same). Deputy Boyd verbally identified
himself as a sheriff at the outset and wore a shirt identifying himself as a
sheriff during the incident. See Galman, 18 F.4th at 776
(“Defendants’ . . . identification of themselves as officers of the law [ ] adds
to the ‘air of official authority’ that pervaded the assault.” (quoting United
States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991))).
Finally, Deputy Boyd argues that he did not act under color of law
because “the ‘real reason’ for [his] visit to her house was not related to law
enforcement, but rather to engage in sexual activity.” But officials who act
for purely personal reasons do not “necessarily fail to act ‘under color of
law.’” Tarpley, 945 F.2d at 809 (quoting Brown v. Miller, 631 F.2d 408, 411
(5th Cir. 1980)). It is only “[i]f an officer pursues personal objectives without
using his official power as a means to achieve his private aim[] [that] he has
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not acted under color of state law.” Bustos, 599 F.3d at 465 (emphasis
added).
Deputy Boyd acted under color of law during the alleged sexual abuse.
D
In summary, we hold that Deputy Boyd’s alleged sexual abuse violated
Tyson’s clearly established right to bodily integrity. Thus, Deputy Boyd is
not entitled to qualified immunity. We need not reach the claims against the
County and the Sheriff. We remand those issues to the district court to
address in the first instance. See Peña v. City of Rio Grande City, 879 F.3d 613,
621 (5th Cir. 2018).
* * *
We AFFIRM the order of the district court with respect to the
dismissal of the plaintiff’s Fourth Amendment claim. We REVERSE the
order of the district court with respect to the dismissal of the plaintiff’s
Fourteenth Amendment claim. And we REMAND for further proceedings.
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