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From: BTR1701 <atropos@mac.com>
Subject: [OT] Appeals Court: Forcing a Teen to Masturbate So Cops Can Take Pictures Violates 4th Amendment
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From: BTR1701 <atropos@mac.com>
Newsgroups: rec.arts.tv
Subject: [OT] Appeals Court: Forcing a Teen to Masturbate So Cops Can Take Pictures Violates 4th Amendment
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Date: Thu, 07 Dec 2017 07:59:38 -0800
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I cannot imagine what it must be like as an appellate court judge to 
have to write these words:

    Construing the facts in the light most favorable to [Trey]
    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 4th Amendment.

I don't know which is sadder: the fact that this case -- the absolute 
nadir (so far!) of stupid teen sexting prosecutions -- even exists or 
that the lower court somehow found in favor of the officer (now 
deceased) being sued.

A cop engaged in the act of producing child pornography by attempting to 
force a teen to arouse himself while surrounded by police officers 
supposedly for the purpose of matching the teen's erect penis to photos 
the cop already had in his possession as part of a sexting 
"investigation". The officer was told by prosecutors to do this, which 
shows the twisted logic of this abhorrent request didn't spring entirely 
from the mind of Detective David Abbott. He, however, did not turn down 
the prosecution's request. The prosecutor who ordered this "production" 
of evidence was Claiborne Richardson. Unfortunately, he has the sort of 
immunity cops like Abbott can only dream about: absolute immunity. 
Richardson walks away from this with little more than reputational 
damage.

There's a judge out there somewhere with their name scrawled across a 
granted warrant request ordering a teenager to produce an erection for 
cops. Actually, there's two of them, though both go unnamed in the 
decision. (Oral arguments are embedded at the bottom of the post.) From 
the dissent's footnote:

    On this record, search warrants were issued on June 3, 2014,
    and again on July 1, 2014, by two different magistrates.
    The June warrant was the only one executed. In executing
    the June warrant, Abbott was unable to obtain some of the
    photos being sought. Because the prosecutor and the detective
    agreed that additional photos were necessary, Abbott was
    directed to seek the July warrant. That warrant was never
    executed and was voided.

And there's the judge who heard the prosecution's request to get this 
warrant and said that was fine. That judge's name is Jan Roltsch-Anoll. 
All of these justice system components worked together to put a teen in 
a room full of cops with the instructions to masturbate so a detective 
could take photos.

Abbott's representation was willing to take a chance on seeing the lower 
court's awful immunity decision upheld, despite there being nothing 
remotely sane -- much less 4th Amendment-compliant -- about law 
enforcement's actions. Detective Abbott's survivors continue his fight 
for him as Abbott killed himself in late 2015 as police tried to arrest 
him for allegedly molesting two teens he met coaching youth hockey. 
(Make of that what you will.)

The 4th Circuit Court of Appeals finds nothing at all to like about 
Abbott's pleas for qualified immunity.

    Abbott's search directed at forcing Sims to achieve an
    erection intruded "upon an area in which our society
    recognizes a significantly heightened privacy interest."
    See Winston v. Lee, 470 U.S. 753, 767 (1985). Requiring Sims
    to masturbate in the presence of others, like searches
    involving physical penetration of genitalia, constituted
    "the ultimate invasion of personal dignity". Amaechi, 237
    F.3d at 363-64; see also King, 825 F.3d at 215.

    Moreover, we observe that this sexually intrusive search
    was rendered more egregious by being conducted in a manner
    that would instill fear in Sims. See Edwards, 666 F.3d
    at 884-85. Here, Sims alleged that he was "surrounded" by
    three armed officers as he questioned whether he was
    required to submit to Abbott's orders. Upon Abbott's
    insistence, Sims ultimately attempted to comply. Sims
    further alleged that the search caused him to suffer
    emotional harm. Winston, 470 U.S. at 761-63 (explaining that 
    intrusions without risk of physical harm nonetheless damage
    the individual's sense of personal privacy and security). 
    Accordingly, both the outrageous scope of the sexually
    intrusive search and the intimidating manner in which the
    search was conducted weigh strongly against any finding that
    the search was reasonable.

    We cannot perceive any circumstance that would justify a
    police search requiring an individual to masturbate in the
    presence of others.

Abbott's estate argued the search violated no clear precedent. In other 
words, no comparative case had reached this level in the justice system 
and found ordering a teen to masturbate in front of police officers 
(while one of them photographed him) was a clearly established violation 
of the 4th Amendment. The court agrees, but notes there's a very good 
goddamn reason why there's no precedent exactly on point with this 
abysmal abuse of power.

    We further observe that the Administrator is not entitled
    to invoke qualified immunity simply because no other court
    decisions directly have addressed circumstances like those
    presented here. See Clem, 284 F.3d at 553. For good reason,
    most outrageous cases of constitutional violations rarely are 
    litigated. See K.H. ex rel. Murphy v. Morgan, 914 F.2d 846,
    851 (7th Cir. 1990) (explaining that never before had there
    been a case accusing welfare officials of selling foster
    children into slavery, but those officials nevertheless would
    not be entitled to immunity). Abbott