No Qualified Immunity for Officer’s Conduct with Sexual Assault Victim

Kane v. Barger, 2018 (3rd Cir. 2018)

Officer Shane Barger was dispatched to a hospital to interview a sexual assault victim. (A physician had already taken photographs of the victim’s injuries during a medical examination.) During the interview, Barger instructed the victim to come to the Coraopolis Police Department with the clothes she was wearing at the time of the assault. Upon arrival at the police department, Barger took the victim, alone, to a back room and photographed intimate areas of her body.

The victim claimed that Barger touched her upper chest and her buttocks as he photographed her with his personal cell phone. Barger questioned the victim about her breasts, vagina and buttocks, persistently asking whether she sustained injuries to her vagina. Though she repeatedly denied having visible injuries to her vagina, Barger’s relentless questioning led her to show her vagina to him.

Barger initially lied to investigators about using his cell phone to photograph the victim. After further questioning, he admitted he had lied, explaining he didn’t want his girlfriend to be jealous of the photos. Barger was disciplined for violating department policy and he received a two-week suspension. The victim then sued Officer Barger, alleging he touched and photographed her for his own gratification. A district court granted qualified immunity to Barger, ruling the right to be free from violation of bodily integrity was not “clearly established.” The victim appealed.

The appellate court reversed, stating, “ 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 ’s personal security and bodily integrity, the right here is so ‘obvious’ that it could be deemed clearly established even without materially similar cases.” The court held Barger’s alleged conduct “shocks the conscience,” and the right “not to be sexually fondled and illicitly photographed by a police officer” during an investigation was clearly established. There will be no qualified immunity for Officer Barger.

Most officers know better. Maybe Officer Barger did, too. But this isn’t a unique situation. The court cited similar cases and we’ve discussed similar situations in Xiphos (see Sims v. Labowitz, 2017 (4th Cir. 2017), from the December 2017 issue). Remember, part of having one another’s back is watching out for ethical violations and saving fellow officers from themselves, when possible.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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