A federal appeals panel will allow a woman to revive her lawsuit against a police officer she accused of sexual abuse during a ride-along when she was a high school student in Hammond, Ind.
Zailey Hess sued Hammond police officer Jamie Garcia and Chief John Doughty regarding the February 2019 ride-along, a class assignment. U.S. District Judge Jon DeGuilio, chief judge of the Northern District of Indiana, dismissed Hess’ complaint for lack of standing. She challenged that ruling before the U.S. Seventh Circuit Court of Appeals, which issued its opinion July 5.
Judge David Hamilton wrote the panel’s opinion; Judges Frank Easterbrook and John Lee concurred. The panel said Hess’ complaint didn’t sufficiently allege liability or involvement on the part of Chief Doughty, but reversed dismissal with respect to Officer Garcia.
According to Hamilton, Hess’ complaint paints the ride-along as “a day-long sequence of inappropriate comments and questions punctuated by unwelcome physical sexual contacts.” She alleged Garcia “immediately began touching her” when she entered his patrol car, “reaching over and rubbing his arm against her breast while adjusting the seatbelt she had already secured,” then repeatedly placing his hand on her thigh.
Hess further alleged Garcia put a hand on her buttocks while inside a gas station, repeatedly asked about Hess’ dating and sex life and, according to Hamilton, “while on patrol, Garcia told Hess he was going to find a prostitute for her. Garcia stopped a woman he assumed was a prostitute, introduced Hess, and told the woman that Hess wanted to become a prostitute herself.”
The panel explained sexual assault can constitute a violation of the 14th Amendment’s equal protection or due process clauses, as well as the Fourth Amendment right “of the people to be secure in their persons.” Hamilton the panel didn’t consider which theory was most plausible legally, only that Hess’ “complaint should have survived the motion to dismiss under each theory.”
Hamilton said Hess didn’t need to identify a similarly situated individual to bring an equal protection claim because when the allegations involved a government official and sexual assault or harassment, “there is no legitimate governmental purpose for such actions.” Even so, Garcia’s lawyers argued he “was making for an exciting ride along” with his “frankly innocuous” yet “perhaps boorish conduct,” a contention the panel found was perhaps only relevant to a district court jury.
Regarding her Fourth Amendment claim, the panel said “Hess’ complaint supports the theory that seizures occurred through sexual touching without consent.” Hamilton added that “not all touches by officers rise to the level of seizures under the Fourth Amendment, of course, but sexual assaults do.”
Garcia argued Hess never asked to leave the ride-along, but the panel said it was reasonable she felt she could not: Garcia provided her transportation, instructed her where to stand inside the gas station and, at one point late in the evening, “drove Hess to a secluded area where he met another male police officer and asked him repeatedly if he wanted to have sex with Hess. It is plausible that a reasonable person in this situation would not feel free to leave.”
In arguing against Hess’ due process claims, Hamilton wrote, “Garcia asks us to draw lines between sexual assault that is unconstitutional and sexual assault that, in his view, is not severe enough to implicate the Constitution. We decline to do so.”
Hess accused Garcia of intentional conduct, the panel said, and disagreed with Judge DeGuilio’s finding that what Garcia stands accused of doing was “not as severe” as other allegations of sexual abuse and assault against other police officers “and thus ‘did not rise to the level necessary’ to violate the right to bodily integrity,” Hamilton wrote.
“The most egregious examples of an offense do not change the floor for what conduct is criminal or unconstitutional,” he continued. “The right to bodily integrity is not made harder to violate by the fact that even worse cases come along. … We decline to recognize a category of constitutionally permissible sexual assault by a public official. 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.”
Dismissal of the claims against Chief Doughty was appropriate, the panel said, because during district court arguments Hess clarified her allegation he “permitted” the ride-along despite an earlier accusation against Garcia meant he “failed to issue an order prohibiting Officer Garcia from having female ride-alongs,” which is not sufficient to establish his personal liability.
Finally, the panel said, it rejected an argument from Garcia’s lawyers that “reversing dismissal would open proverbial floodgates,” Hamilton wrote, “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.”
Hess has been represented by attorney Christopher Cooper, of Griffith, Indiana.
Garcia has been represented by attorney Shana D. Levinson, of Levinson & Levinson, of Merrillville, Indiana.
Doughty has been represented by attorneys John M. McCrum and Ryan A. Cook,of Eichhorn & Eichhorn, of Hammond, Indiana.