FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 14, 2020 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
BRITTNEY BROWN,
Plaintiff - Appellee,
v. No. 19-7011
ROGER FLOWERS,
Defendant - Appellant,
and
JOHN CHRISTIAN, Pontotoc County Sheriff; MIKE SINNETT,
Defendants. _________________________________
Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:17-CV-00347-RAW) _________________________________
Charles A. Schreck, Pierce Couch Hendrickson Baysinger & Green, LLP, Oklahoma City, Oklahoma (Robert S. Lafferrandre and Randall J. Wood with him on the brief), for Appellant.
Stephen J. Capron, Capron & Edwards, PLLC, Tulsa, Oklahoma, for Appellee. _________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _________________________________
MORITZ, Circuit Judge. _________________________________ Brittney Brown brought this 42 U.S.C. § 1983 case against Roger Flowers,
who at the time was a jailer at the Pontotoc County Justice Center, alleging that he
raped her while she was a pretrial detainee. Flowers sought summary judgment,
arguing that sex between him and Brown was consensual and that, regardless, he was
entitled to qualified immunity. The district court determined that a jury could find
that Flowers had coercive, nonconsensual sex with Brown and that such conduct
would have violated her clearly established rights. Accordingly, it denied Flowers’s
motion. Flowers appeals from this order. He first argues that the district court erred
in finding that the question of consent and coercion was a jury question and that it
therefore erred in finding a constitutional violation. But on this interlocutory appeal,
we generally must accept the facts as the district court found them and therefore do
not have jurisdiction to consider this argument. Flowers next argues that clearly
established law did not put him on notice that the sex was coercive or nonconsensual.
Because we find our existing caselaw on the sexual abuse of inmates clearly
established the contours of Brown’s rights, we affirm the denial of qualified
immunity.
Background
In March 2016, Brown was a pretrial detainee at the Pontotoc County Justice
Center, where Flowers worked as a jailer. 1 Flowers could communicate with
1 As explained in detail below, our jurisdiction is limited to questions of law. See Fogarty v. Gallegos, 523 F.3d 1147, 1153–54 (10th Cir. 2008). We therefore recount “the facts found by the district court and those that it likely assumed.” Id. at 1158. 2 residents of the pod where Brown was housed over an intercom and see them over
video. On March 20, 2016, Flowers used the intercom system to tell Brown to come
see him in the control tower, telling her “to hurry.” App. vol. 5, 555. Brown felt that
she had to comply with Flowers’s orders because she was in jail and “ha[d] to do
what [she was] told.” Id. at 569. She felt that jailers “have control of your whole
entire life,” including “what you get, what you don’t get, when you get to do
anything, everything.” Id. After she entered the control tower, Flowers said to
Brown, “let me see your titties” and “he lifted [Brown’s] shirt up.” Id at 556. Flowers
then began having sex with Brown. Brown began crying, which caused Flowers to
turn Brown around so that he could penetrate her from behind. Brown explained that
she did not physically resist because Flowers was “a guard and [she was] an inmate”
and so if she used physical force to resist Flowers, that resistance could result in
charges against her. Id. at 557.
After the incident, Flowers gave Brown cigarettes. Brown requested a “rape
kit” from the jail nurse, and she told her sister, biological mother, and adoptive
mother that she was “raped.” Id. at 561, 564–65. A similar incident occurred a week
later. Flowers later pleaded guilty in Oklahoma state court to two counts of second-
degree rape under an Oklahoma statute that defines sex between a guard and a
prisoner as rape. See Okla. Stat. Ann. tit. 21, § 1111(7).
Brown then filed this § 1983 action in federal district court. Relevant here, she
alleged that Flowers raped her while in custody in violation of her constitutional
rights. Flowers moved for summary judgment, arguing that he did not violate
3 Brown’s constitutional rights because Brown consented and that, regardless, he was
entitled to qualified immunity. The district court first noted that Flowers’s “guilty
plea to two counts of second-degree rape is not dispositive,” explaining that
Flowers’s criminal offense did not include coercion as an element. App. vol. 1, 106
(emphasis omitted). The district court next found that, here, “consent and coercion
are issues for the fact[]finder in this case.” Id. at 108. And the district court
determined if there was coercion, it did “not involve any use of physical force.” Id. at
111. Instead, the district court emphasized the inherently coercive nature of the
prison setting. It further explained that because Flowers gave Brown cigarettes, there
may have been “some quid pro quo” that affected Brown’s actions. Id. at 107. The
district court also credited Brown’s testimony, including that “she told family
members after the first incident that she was forced to have sex with [Flowers].” Id.
at 104. Because the district court found that whether Brown consented is a question
of fact, it determined that a jury could find that Flowers sexually abused Brown. And
because “using excessive force against prisoners in the form of sexual abuse” violates
the Constitution, the district court concluded that Flowers violated Brown’s
constitutional rights. Id. at 108 (quoting Smith v. Cochran, 339 F.3d 1205, 1215 (10th
Cir. 2003)).
Next, the district court addressed Flowers’s argument that he was entitled to
qualified immunity because “he believed the sexual activity was consensual.” Id. at
108–09. The district court criticized this argument as “conflat[ing]” the “factual
question” of consent “with a legal one.” Id. at 109. And it held that, because it is
4 clearly established that sexual abuse—including nonconsensual, coerced sex—
violates the Constitution, Flowers violated a clearly established right. Thus, the
district court found that Flowers was not entitled to qualified immunity and denied
his motion for summary judgment.
Analysis
On appeal, Flowers argues that the district court erred in finding a
constitutional violation and in finding Brown’s right clearly established. Flowers also
moves to seal a portion of the record.
I. Qualified Immunity
When reviewing a summary-judgment order denying qualified immunity,
“[w]e review the district court’s grant of summary judgment de novo, employing the
same legal standard applicable in the district court.” Thomson v. Salt Lake Cnty., 584
F.3d 1304, 1311 (10th Cir. 2009). Under that standard, we must grant Flowers
qualified immunity unless “(1) a reasonable jury could find facts supporting a
violation of a constitutional right, which (2) was clearly established at the time of
[Flowers’s] conduct.” Henderson v. Glanz, 813 F.3d 938, 952 (10th Cir. 2015).
Given the procedural posture of this case, we have jurisdiction to review
“abstract issues of law” but not the “district court’s factual conclusions.” Fancher v.
Barrientos, 723 F.3d 1191, 1198–99 (10th Cir. 2013) (second quoting Fogarty, 523
F.3d at 1154). Here, the district court determined that “consent and coercion are
issues for the fact[]finder in this case.” App. vol. 1, 108. And, even on Flowers’s
appeal from a denial of qualified immunity, we “view the facts in the light most
5 favorable to [Brown] and resolve all factual disputes and reasonable inferences in
[her] favor.” Henderson, 813 F.3d at 952. Thus, for purposes of this appeal, we must
assume that the sex was coerced and nonconsensual. Moreover, “[w]hen the factual
and legal inquiries blur because the district court fails to make its factual assumptions
explicit,” we review the record to determine which facts “the district court ‘likely
assumed.’” Fogarty, 523 F.3d at 1154 (quoting Behrens v. Pelletier, 516 U.S. 299,
313 (1996)). Therefore, “[t]hose facts explicitly found by the district court, combined
with those that it likely assumed, . . . form the universe of facts upon which we base
our legal review of whether [Flowers is] entitled to qualified immunity.” Id.; see also
Henderson, 813 F.3d at 949–50 (assuming fact that district court did not explicitly
find because fact supported district court’s conclusion to deny summary judgment
based on qualified immunity and was construed in light most favorable to nonmoving
plaintiff).
A. Constitutional Violation
On appeal, Flowers argues that the district court erred in finding a
constitutional violation. As a preliminary matter, we note that because Brown was a
pretrial detainee, she was protected by the Fourteenth Amendment. See Colbruno v.
Kessler, 928 F.3d 1155, 1162 (10th Cir. 2019). And although the district court stated
as much, it analyzed her claim as an Eighth Amendment violation. As such, it
considered both prongs of the Eighth Amendment test: the objective component, or
whether “the alleged wrongdoing was objectively harmful enough,” and the
subjective component, or whether “the officials act[ed] with a sufficiently culpable
6 state of mind.” Smith, 339 F.3d at 1212 (alteration in original) (quoting Giron v.
Corr. Corp. of America, 191 F.3d 1281, 1289 (10th Cir. 1999)). And on appeal, the
parties likewise consider both prongs.
Such an analysis is in line with our previous statement that the Eighth and
Fourteenth Amendment analyses are “identical.” Lopez v. LeMaster, 172 F.3d 756,
759 n.2 (10th Cir. 1999). But this statement is no longer good law after the Supreme
Court’s decision in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015). There, the
Court held that “the appropriate standard for a pretrial detainee’s excessive[-]force
claim is solely an objective one” and that therefore “a pretrial detainee can prevail by
providing only objective evidence that the challenged governmental action is not
rationally related to a legitimate governmental objective or that it is excessive in
relation to that purpose.” Kingsley, 135 S. Ct. at 2473–74; see also Colbruno, 928
F.3d at 1163 (“[T]here is no subjective element of an excessive-force claim brought
by a pretrial detainee.”). And because we “treat sexual abuse of prisoners as a species
of excessive-force claim,” Graham v. Sheriff of Logan Cnty., 741 F.3d 1118, 1126
(10th Cir. 2013), after Kingsley, a pretrial detainee bringing such claim is not
required to meet the “subjective element” required of Eighth Amendment excessive-
force claims, Colbruno, 928 F.3d at 1163. Thus, to make out a constitutional
violation, Brown must only demonstrate that Flowers’s conduct “was objectively
7 harmful enough to establish a constitutional violation.” Smith, 339 F.3d at 1212.
(quoting Giron, 191 F.3d at 1289). 2
In making this demonstration, Brown cites to our longstanding precedent
indicating that “[w]ith regard to . . . sexual assault claims, . . . an ‘inmate has a
constitutional right to be secure in her bodily integrity and free from attack by prison
guards.’” Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (quoting
Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993)); see also, e.g., Giron, 191
F.3d at 1290 (finding that “sexual abuse” and “rape” by guard violates Constitution);
Castillo v. Day, 790 F.3d 1013, 1020 (10th Cir. 2015) (acknowledging that “sexual
abuse” by guard violates Constitution). Thus, Flowers’s nonconsensual, coerced sex
with Brown violated her constitutional rights. See, e.g., Giron, 191 F.3d at 1290.
Relying on Graham v. Sheriff of Logan County, Flowers asserts that the
district court erred in finding that “consent and coercion are issues for the fact[]finder
in this case.” App. vol. 1, 108. In Graham, we determined that guards who had sex
2 Brown’s briefing treats the analysis of an Eighth Amendment claim as identical to the analysis of a Fourteenth Amendment claim. As such, she does not argue that, in the context of sexual abuse by prison guards, the objective standard of the Fourteenth Amendment is meaningfully different than the objective standard of the Eighth Amendment. Compare, Kingsley, 135 S. Ct. at 2473–74 (describing the Fourteenth Amendment standard as whether there is “objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose”), with Smith, 339 F.3d at 1212 (describing the objective prong of the Eighth Amendment standard as whether “the alleged wrongdoing was objectively harmful enough to establish a constitutional violation” (quoting Giron, 191 F.3d at 1289)). But because, as explained below, we affirm the district court by relying on Eighth Amendment cases, our analysis does not require us to resolve this issue here. 8 with an inmate did not violate her constitutional rights because there was
“overwhelming evidence of consent.” Graham, 741 F.3d at 1126. Flowers analogizes
the facts here to those in Graham and contends that the undisputed facts here show
that, as in Graham, there was “overwhelming evidence of consent.” Aplt. Br. 46
(quoting Graham, 741 F.3d at 1126). In doing so, he insists that we have jurisdiction
to consider this argument, claiming that it does not call for a “reconsideration of the
[d]istrict [c]ourt’s factual findings.” Rep. Br. 2. But the district court found that a
jury could find that the sex was coerced and nonconsensual. And, when considering
this interlocutory appeal, “we are not at liberty to review a district court’s factual
conclusions, such as the existence of a genuine issue of material fact for a jury to
decide.” 3 Fogarty, 523 F.3d at 1154; see also Sawyers v. Norton, 962 F.3d 1270,
1284 (10th Cir. 2020) (reasoning that “[a]lthough the [defendants] attempt to frame
[their] argument as a legal issue, they challenge the district court’s factual
determination of what a reasonable jury could infer”; concluding that it lacked
jurisdiction to review); Cox v. Glanz, 800 F.3d 1231, 1242 (10th Cir. 2015) (“When
the [d]istrict [c]ourt ‘concludes that a reasonable jury could find certain specified
facts in favor of the plaintiff, . . . we usually must take them as true—and do so even
if our own de novo review of the record might suggest otherwise as a matter of
3 Although we have jurisdiction to review the district court’s factual conclusions de novo where they are “blatantly contradicted by the record,” Flowers does not make this argument. Lewis, 604 F.3d at 1226 (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). Further, we note that the district court explicitly found that the record did not “blatantly contradict[]” Brown’s construction of facts. App. vol. 1, 105 (quoting Scott, 550 U.S. at 380). 9 law . . . .’” (third alteration in original) (quoting Lewis v. Tripp, 604 F.3d 1221, 1225
(10th Cir.2010))). Thus, we lack jurisdiction to consider Flowers’s argument, and we
affirm the district court’s conclusion that a reasonable jury could find facts
supporting Brown’s claim that Flowers violated her constitutional rights.
B. Clearly Established Law
Flowers next argues that Brown failed to demonstrate that he violated a clearly
established right. A right can be clearly established through a factually similar
“Supreme Court or published Tenth Circuit decision,” or through “the clearly
established weight of authority from other courts.” Perry v. Durborow, 892 F.3d
1116, 1123 (10th Cir. 2018) (quoting Quinn v. Young, 780 F.3d 998, 1005 (10th Cir.
2015)). Although we may “not . . . define clearly established law at a high level of
generality,” “a case directly on point” is not required. Mullenix v. Luna, 136 S. Ct.
305, 308 (2015) (per curiam) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741, 742
(2011)). Instead, “[t]he precedent must be clear enough that every reasonable official
would interpret it to establish the particular rule the plaintiff seeks to apply.” District
of Columbia. v. Wesby, 138 S. Ct. 577, 590 (2018) (emphasis added); see also
Mullenix, 136 S. Ct. at 308 (explaining that right must be “sufficiently clear that
every reasonable official would have understood that what he [or she] is doing
violates that right” (emphasis added)); cf. Hope v. Pelzer, 536 U.S. 730, 741 (2002)
(“[G]eneral statements of the law are not inherently incapable of giving fair and clear
warning, and in other instances a general constitutional rule already identified in the
decisional law may apply with obvious clarity to the specific conduct in question.”).
10 To determine whether a right is defined with sufficient specificity, we consider
the “specific context of the case.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004)
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by
Pearson v. Callahan, 555 U.S. 223 (2009)). In some cases—such as those “in the
Fourth Amendment [excessive-force] context” dealing with the “hazy border between
excessive and acceptable force”—“specificity is especially important.” Mullenix, 136
S. Ct. at 308, 312 (second quoting Brosseau, 543 U.S. at 201); see also A.N. ex rel.
Ponder v. Syling, 928 F.3d 1191, 1199 (10th Cir. 2019) (explaining “concern”
animating need for specificity “is particularly acute in Fourth Amendment cases”;
finding that more specific case was not needed to establish equal-protection right). In
other cases, a “general rule” will result in “law [that] is not extremely abstract or
imprecise under the facts [of the case], but rather is relatively straightforward and not
difficult to apply.” A.N., 928 F.3d at 1199.
Here, Brown again cites to our longstanding precedent establishing that sexual
abuse of those in jail or prison violates the Constitution. See, e.g., Giron, 191 F.3d at
1290. These cases involve similar types of abuse, including nonconsensual sex. See,
e.g., id. And notably, these cases do not delineate between sexual abuse carried out
through physical and nonphysical coercion. 4 See, e.g., Castillo, 790 F.3d at 1016,
4 We note that, on appeal, these cases involve allegations that defendants were deliberately indifferent to sexual abuse and not that the defendants themselves committed sexual abuse. See Castillo v. Day, 790 F.3d 1013, 1015 (10th Cir. 2015); Barney, 143 F.3d at 1308, 1310. Nevertheless, these cases are relevant here because they support the broader proposition for which we rely on them: our caselaw does not 11 1022 (finding constitutional violation based on sexual abuse carried out through both
physical and nonphysical coercion without differentiating between the two); Barney,
143 F.3d at 1304, 1310 (finding jailer’s conduct, which included sexual abuse where
jailer “threatened to keep [inmate] in jail longer” if she did not comply, “sufficiently
serious to constitute a violation under the Eighth Amendment”). Brown also cites to
Graham, which explained that “we think it proper to treat sexual abuse of prisoners
as a species of excessive-force claim, requiring at least some form of coercion (not
necessarily physical) by the prisoner’s custodians.” 741 F.3d at 1126 (emphasis
added).
Flowers argues that both Brown and the district court define the right at issue
at too high of a level of generality. He concedes that “Brown obviously had a
constitutional right to be free from sexual abuse while in state custody.” Aplt. Br. 25.
But he contends that her right was not clearly established here because there is no
case on point to inform him that the sex under these particular circumstances was
nonconsensual and that therefore a reasonable officer in his position would not know
that this conduct amounted to sexual abuse. In doing so, however, Flowers
misunderstands both the facts as we must construe them and our caselaw.
Flowers asserts that “the issue is whether [he] should have known that subtle,
nebulous forms of non-physical coercion before or after sexual intercourse with
Brown (giving cigarettes) violated her constitutional rights, even when everything
draw a constitutionally relevant line between sexual abuse of inmates carried out through physical coercion and that carried out through nonphysical coercion. 12 else suggested that she had consented to intercourse with him.” Aplt. Br. 24–25. But
framing the issue in this manner mischaracterizes the facts that the district court
found or “likely assumed” in determining that coercion and consent are jury
questions. Fogarty, 523 F.3d at 1154 (quoting Behrens, 516 U.S. at 313). Flowers’s
framing assumes that the district court found coercion and lack of consent based on
only his “gift of cigarettes.” Aplt. Br. 25. It is true that the district court order
explained that the cigarettes could have created coercion in the form of a quid pro
quo. But, as Brown points out, the district court also relied on her testimony, and she
testified the sex was not consensual and that afterward, she told her family she had
been “raped.” App. vol 5, 564–65. Moreover, the district court emphasized that “[t]he
power dynamics between prisoners and guards make it difficult to discern consent
from coercion.” App. vol. 1, 103 (alteration in original) (quoting Graham, 741 F.3d
at 1126). Indeed, Brown’s testimony reflects the role this power dynamic played
here. For example, Brown explained that she went to the control tower because she
was in jail and “had to do what [she] was told.” App. vol. 5, 566. Further, Brown
began crying while Flowers was penetrating her, causing Flowers to turn her around.
Thus, based on how we must construe the facts in this interlocutory appeal, there was
more than “subtle” and “nebulous” coercion here, and, contrary to Flowers’s
argument, it is not the case that “everything else suggested that [Brown] had
consented to intercourse with [Flowers].” Aplt. Br. 24–25. Therefore, Flowers’s
contention that Brown fails to “identify a single case that discusses a jailer’s ‘gift’ to
an inmate after sexual activity” does not doom Brown’s case. Rep. Br. 10.
13 In addition to misconstruing the facts, Flowers’s argument also misunderstands
our caselaw. He asserts that “the case[]law on ‘not necessarily physical[ly coercive]’
sexual relations between inmates and jailers is not the same as the law governing
forceful rape.” Aplt. Br. 33–34 (citation omitted) (quoting Graham, 741 F.3d at
1126). But, as discussed above, our caselaw does not make a distinction between
sexual abuse carried out through physical and nonphysical coercion. And we
confirmed this principle in Smith v. Cochran. There, we found a constitutional
violation for sexual abuse and rape where a state employee who “acted as the
functional equivalent of a prison guard” told an inmate that “if she did not have sex
with him[,] he would report her misconduct.” Smith, 339 F.3d at 1209, 1216. Thus,
our existing caselaw on sexual abuse of inmates is relevant and defines the contours
of Brown’s rights.
Flowers also critiques Brown’s reliance on Graham. He argues that because it
established that consensual sex does not violate the Constitution, Graham includes
“conduct that does not necessarily violate an inmate’s rights.” Aplt. Br. 27. And
therefore, he maintains, Graham does not put officers on notice of conduct that does
violate an inmate’s rights. He acknowledges Graham’s statement that prisoners’
sexual-abuse claims “requir[e] at least some form of coercion (not necessarily
physical) by the prisoner’s custodians.” 741 F.3d at 1126 (emphasis added). But he
suggests that this description of “‘not necessarily physical’ [coercion] refers to
conduct that might violate an inmate’s rights in a future case,” and that it is therefore
dicta and cannot control the outcome in this case. Aplt. Br. 27 (quoting Graham, 741
14 F.3d at 1126). True, Graham did determine that consent is a defense to a
constitutional claim for sexual abuse. 741 F.3d at 1125–26. But it also granted
summary judgment only after finding “overwhelming evidence of consent,” including
the plaintiff’s testimony. Id. at 1126. In doing so, Graham explained that “[t]he
power dynamics between prisoners and guards make it difficult to discern consent
from coercion.” Id. at 1126 (alteration in original) (quoting Wood v. Beauclair, 692
F.3d 1041, 1047 (9th Cir. 2012)). Moreover, Graham’s analysis considered the
impact of nonphysical coercion on consent. For example, it noted that one of the
guards had previously given the plaintiff a blanket and a candy bar, but that the
plaintiff “did not think that she had received any special treatment from him” and
“did not testify that the favors influenced her.” Id. at 1121, 1124. Finally, even if the
statement “not necessarily physical” was dicta in Graham, its status in that case did
not alter our past caselaw, which does not differentiate between physical and
nonphysical coercion. Accordingly, contrary to Flowers’s argument, when Graham
acknowledged that a defendant faced with a prison sexual abuse claim may assert
consent as a defense, it did not create a gap between conduct that does not violate the
Constitution—consensual sex—and conduct that clearly violates the Eighth
Amendment—physically forced nonconsensual sex.
We conclude that Flowers violated a clearly established right. We have long
held that nonconsensual, coerced sex between a jailer and an inmate violates the
Constitution. See, e.g., Giron, 191 F.3d at 1290. And cases like Castillo, Barney, and
Smith demonstrate that our caselaw does not distinguish between sexual abuse
15 accomplished through physical and nonphysical coercion. 5 See Castillo, 790 F.3d at
1016, 1021; Smith, 339 F.3d at 1216; Barney, 143 F.3d at 1304, 1310. Given the
context of this case and the facts as we must construe them in this interlocutory
appeal—the inherently coercive nature of prisons, Flowers giving Brown cigarettes,
and Brown’s testimony, including the fact that she was crying during the sex—
existing caselaw made it “clear to a reasonable officer that” Flowers’s “conduct was
unlawful.” Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (quoting Saucier v. Katz,
533 U.S. 194, 202 (2001), overruled on other grounds by Pearson v. Callahan, 555
U.S. 223 (2009)). And considering the nature of the constitutional violation—where
Flowers’s use of force was in no way related to his duties as a jailer, as opposed to
5 Brown also argues that amendments to 42 U.S.C. § 1997e(e), which regulates lawsuits brought by prisoners, clearly establishes her right. Specifically, Brown explains that previously, a prisoner could not bring an action for “mental or emotional injury suffered while in custody without a prior showing of physical injury.” § 1997e(e) (2006). But after a 2013 amendment, § 1997e(e) no longer requires prisoners to show a physical injury in order to bring an action for mental or emotional injuries that resulted from the “commission of a sexual act.” Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4 § 1101, 127 Stat. 54, 134 (2013). An evolving standard of decency informs the Eighth Amendment, and it is true that legislation can inform this standard. Atkins v. Virginia, 536 U.S. 304, 312 (2002); see also Scioners v. Lockhart, 946 F.3d 1256, 1271–72 (11th Cir. 2020) (Rosenbaum, J., concurring) (relying on 2013 amendment of § 1997e(e) as evidence of evolving standard of decency in prisoner’s sexual-abuse case). But Brown does not argue that § 1997e(e) informs the evolving standard of decency, instead concluding that § 1997e(e) clearly established her right because it demonstrates that Flowers’s conduct was “condemned by federal statute.” Aplee. Br. 14. This argument conflates conduct made actionable by federal statute with conduct that violates the Constitution. Additionally, we note that although Brown repeatedly references the fact that Flowers was guilty of rape, she does not argue that the Oklahoma legislature’s decision to criminalize all sex between guards and inmates is evidence of an evolving standard of decency. See § 1111(7). 16 being at the “hazy border between excessive and acceptable force”—a case involving
the same type of coercion and evidence of lack of consent is unnecessary to place the
unconstitutionality of Flowers’s conduct “beyond debate.” Mullenix, 136 S. Ct. at
308, 312 (first quoting Brosseau, 543 U.S. at 201; second quoting Ashcroft, 563 U.S.
at 741); cf. A.N., 928 F.3d at 1199. We therefore conclude that Flowers violated a
clearly established right, and we affirm the district court. 6
II. Motion to Seal
Flowers filed a motion to seal portions of the record, and Brown filed a motion
in opposition. The Clerk of Court provisionally sealed some of those documents and
referred the matter to us. We must now consider whether to permanently seal any of
the documents Flowers moved to seal, which consist of jail records, including a
diagram of the jail, recorded interviews that the jail conducted as part of its internal
investigation, and jail surveillance footage; deposition excerpts; discovery responses;
and arrest, court, and incarceration records of both parties. We will not permanently
seal any documents unless Flowers “overcomes a presumption in favor of access to
judicial records by ‘articulat[ing] a real and substantial interest that justifies
depriving the public of access to the records that inform our decision-making
process.’” Sacchi v. IHC Health Servs., Inc., 918 F.3d 1155, 1160 (10th Cir. 2019)
(alteration in the original) (quoting Eugene S. v. Horizon Blue Cross Blue Shield of
N.J., 663 F.3d 1124, 1135–36 (10th Cir. 2011)).
6 For similar reasons, we reject Flowers’s argument that Brown did not meet her burden below. 17 Flowers argues that the jail records should remain sealed for the safety of the
jail, as they show which areas of the jail are surveilled and the methods by which the
Sheriff investigates criminal conduct within the jail. Consistent with Flowers’s
argument, courts have sealed records out of concern for the safety of those who live
and work in jails. See Goff v. Graves, 362 F.3d 543, 550 (8th Cir. 2004) (upholding
order to seal in order “to protect prison security and informant safety”); Clark v. New
Mexico Dep’t of Corr., 58 F. App’x 789, 792 (10th Cir. 2003) (unpublished) (sealing
“report contain[ing] information that has the potential to seriously jeopardize [the
plaintiff’s] and other inmates’ safety”). Thus, we grant Flowers’s motion to seal
exhibits 42 to 59. In her briefing on this issue, Brown included a link to where her
counsel posted some of these exhibits online. Because we seal exhibits 42 to 59, we
additionally order Brown’s counsel to remove any copies of these exhibits he posted
online.
Flowers next argues that unsealing the deposition transcripts would undercut
the privacy interests of nonparties. But he does not explain how this concern
constitutes “a real and substantial interest that justifies depriving the public of access
to the records that inform our decision-making process.” Sacchi, 918 F.3d at 1160
(quoting Eugene S., 663 F.3d at 1135–36). And Flowers makes no argument for why
we should permanently seal the remainder of the record, including discovery
responses and publicly filed criminal and court records. We therefore deny Flowers’s
motion to seal to the extent it seeks to seal exhibits 1 to 41.
18 Conclusion
We conclude that Flowers violated Brown’s constitutional right to be free from
sexual abuse when he coerced Brown into having sex without her consent and that we
do not have jurisdiction to consider Flowers’s argument that the district court erred in
finding that Brown did not consent. Next, considering the facts as we must construe
them on this interlocutory appeal alongside our caselaw on the sexual abuse of
inmates, we find that this right was clearly established at the time of the violation.
We therefore affirm the district court’s order denying Flowers summary judgment.
Finally, we order that the portions of the record relating to the jail remain sealed and
that the remainder of the record be unsealed.