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A student who claimed her constitutional rights were violated when she was allegedly sexually assaulted and harassed on a police ride-along can bring a claim against a Hammond police officer, but not the city’s chief of police, the 7th Circuit Court of Appeals ruled Wednesday.
The appellate court affirmed the United States District Court for the Northern District of Indiana’s dismissal of a claim against the police chief but reversed and remanded the claim brought against the officer in the case.
According to court records, Zailey Hess was a 17-year-old student in February 2019, when one of her classes required her to participate in a ride-along with a police officer.
On Feb. 15, 2019, Hess went on a ride-along with Officer Jamie Garcia of the Hammond Police Department.
Hess alleged in her complaint that her day with Garcia consisted of a sequence of inappropriate comments and questions punctuated by unwelcome physical sexual contact.
After Hess’s ride-along, another female classmate participated in the course-required ride, also with Garcia. When the classmate told Hess that Garcia had acted inappropriately with her, the two students reported their experiences to a teacher.
Defendant John Doughty was Hammond’s police chief at the time.
Hess sued Garcia and Doughty in their individual capacities under 42 U.S.C. § 1983 for violating her constitutional rights, invoking the equal protection clause of the 14th Amendment, the Fourth Amendment and the due process clause of the 14th Amendment.
Doughty and Garcia filed separate motions to dismiss. The district court granted both motions and dismissed all claims with prejudice.
Hess appealed.
The 7th Circuit affirmed the dismissal of the claim against Doughty but reversed the dismissal of the claim against Garcia and remanded the case.
Senior Judge David Hamilton wrote the opinion for the appellate court.
According to the 7th Circuit, Hess plausibly alleged facts supporting liability under the theories of the 14th Amendment equal protection clause, the Fourth Amendment and the 14th Amendment due process clause as to Garcia.
“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 certainly permissible,” Hamilton wrote.
The district court had 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.
The court reversed dismissal on that theory for two reasons.
“First, identifying a similarly situated individual is not necessary at the pleading stage so long as the complaint plausibly alleges differential treatment motivated by plaintiff’s membership in a group that is distinct for equal protection purposes,” Hamilton wrote. “Second, in equal protection cases plausibly alleging sexual assault or sexual harassment, the identification of a similarly situated individual is not necessary at any procedural stage.”
According to Hamilton, Garcia characterized his behavior as nothing more than “boorish flirtation,” “arguably presented 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 continue to reject the idea that a police officer’s sexual assault or sexual harassment serves any legitimate governmental interest,” Hamilton wrote.
Further, the 7th Circuit declined to recognize a category of constitutionally permissible sexual assault by a public official.
According to Hamilton, 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.
Hamilton noted Garcia’s argument that reversing dismissal would open the 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 disagree with the premise. We will not close the federal courthouse doors to people sexually assaulted by government officials acting under color of law,” Hamilton wrote.
In affirming the dismissal of all claims against Doughty, the appellate court held that the allegations Hess made did not plausibly allege that Doughty played a role at the level required to impose personal liability, and that Hess has not identified any amendments she could make to the complaint to cure the problem.
Judge John Lee concurred.
Judge Frank Easterbrook concurred and joined all except for the section of the court’s opinion that covered substantive due process.
Easterbrook cited Graham v. Connor, 490 U.S. 386 (1989), which he said showed that substantive due process was not the way to analyze Hess’ contentions. Graham dealt with bodily injury inflicted both directly and indirectly by officers’ misconduct.
“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,” Easterbrook wrote.
The case is Zailey Hess v. Jamie Garcia, Officer, and John Doughty, Chief, 22-1550.
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