Wednesday, October 19, 2011

Court Reaffirms Peace Officers' Constitutionally-Protected Right to Privacy While Partially Undressed

Following the Ninth Circuit, the Court of Appeals for the Third Circuit found a female deputy sheriff had a reasonable expectation of privacy while partially undressed and undergoing a decontamination process.  Doe, a deputy sheriff in Luzerne County, Pennsylvania was surreptitiously filmed by a male officer while undergoing decontamination. The male officer uploaded the video onto his work computer and called several officers into his office to view the footage.   He then put in on a county-wide server.  Doe filed a 1983 action against the county and the officer, alleging violations of her right to privacy under the Fourteenth Amendment and her right to be free from unlawful searches and seizures under the Fourth Amendment.

The trial court granted the county's motion for summary judgment. The Third Circuit reversed on the Fourteenth Amendment claim and affirmed on the search and seizure claim.  After looking to other circuits, the court concluded a deputy sheriff has a constitutionally-protected privacy interest in his/her partially clothed body. The court noted:

Although the issue of whether one may have a constitutionally protected privacy interest in his or her partially clothed body is a matter of first impression in this circuit, other circuits—including the Second, Sixth and Ninth Circuits—have held that such a right exists. See, e.g., Poe v. Leonard, 282 F.3d 123, 136–39 (2d Cir.2002) (finding that plaintiff, a female civilian who was participating in a police training video, alleged sufficient facts to raise a triable issue of whether her constitutional right to privacy was violated where the male police officer surreptitiously filmed her in the dressing room while topless and without a bra); York v. Story, 324 F.2d 450, 454–56 (9th Cir.1963) (finding that the plaintiff properly stated a claim for a violation of her constitutional right to privacy where she alleged that, while reporting a sexual assault, a male police officer deceived her into permitting him to photograph her genitals and exposed breasts under the pretext of an investigation), cert. denied, 376 U.S. 939, 84 S.Ct. 794, 11 L.Ed.2d 659 (1964); Brannum v. Overton Cnty. Sch. Bd., 516 F.3d 489, 497–98 (6th Cir.2008) (finding a privacy violation where a middle school's surveillance cameras recorded the plaintiff students in their undergarments while in the school locker room)
(Doe v. Luzerne County (3d Cir., Oct. 12, 2011, 10-3921) 2011 WL 4823387.)

The court concluded the male deputy’s filming did not implicate the Fourth Amendment because it was conducted for personal reasons.