In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 22-1550 ZAILEY HESS, Plaintiff-Appellant, v.
JAMIE GARCIA, Officer, and JOHN DOUGHTY, Chief, Defendants-Appellees. ____________________
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:21-cv-00101-JD-MGG — Jon E. DeGuilio, Chief Judge. ____________________
ARGUED FEBRUARY 9, 2023 — DECIDED JULY 5, 2023 ____________________
Before EASTERBROOK, HAMILTON, and LEE, Circuit Judges. HAMILTON, Circuit Judge. This suit arises from a seventeen- year-old student’s class assignment to go on a “ride along” with law enforcement. According to the complaint, this ride along quickly strayed from its educational purpose as the of- ficer repeatedly sexually assaulted and harassed the student. She has sued both the officer and the local police chief under 42 U.S.C. § 1983 for violating her constitutional rights. 2 No. 22-1550
The district court granted both defendants’ motions to dis- miss with prejudice for failure to state a claim. We affirm dis- missal of the claim against the chief of police. Plaintiff did not plead facts suggesting the chief had a requisite level of in- volvement in the alleged violations for personal liability un- der 42 U.S.C. § 1983. We reverse dismissal of the claim against the officer. It is well established that sexual assault by a government official acting under color of law violates the Constitution. Cases from different circuits have relied on different constitutional provisions, but they have agreed on that bottom line, holding that sexual assault can violate the Fourteenth Amendment Equal Protection Clause as sex discrimination, the Fourth Amendment right “of the people to be secure in their per- sons,” and the right to bodily integrity protected by the Four- teenth Amendment Due Process Clause. We reject the defense argument that the alleged conduct was simply “boorish” and not serious enough to implicate the Constitution. We decline the invitation to draw lines between constitutional and un- constitutional sexual assaults by government officials acting under color of law. Sexual assault is an intentional act that never serves a legitimate governmental purpose. Because we are considering this case on the pleadings, we do not decide which of the three constitutional theories pro- vides the best path for litigation. The complaint should have survived the motion to dismiss under each theory. If it be- comes necessary later to focus on doctrinal differences among these theories, jury instructions applying them to actual evi- dence may provide the best opportunity to do so. No. 22-1550 3
I. Factual and Procedural Background We accept the factual allegations in the complaint as true and draw reasonable inferences in plaintiff’s favor because we are reviewing de novo a dismissal on the pleadings for failure to state a claim. E.g., Word v. City of Chicago, 946 F.3d 391, 393 (7th Cir. 2020). A. The Ride Along When plaintiff Zailey Hess was a seventeen-year-old stu- dent, one of her classes required her to participate in a ride along with a police officer. On February 15, 2019, Hess went on a ride along with defendant Jamie Garcia of the Ham- mond, Indiana, police. Officer Garcia picked Hess up in his private vehicle and drove her to the police station before his shift began. Garcia introduced Hess to other officers around the station before leading her to the parking lot. Hess got into the patrol vehicle and put on her seatbelt. The complaint describes a day-long sequence of inappropriate comments and questions punctuated by unwelcome physical sexual contacts. When Hess got into the patrol car, Officer Garcia immediately began touching her, reaching over and rubbing his arm against her breast while adjusting the seatbelt she had already secured. Throughout the ride along, Officer Garcia repeatedly reached across the center console to place his hand on Hess’s thigh. Even outside the vehicle, Garcia’s sexual groping continued. Garcia drove Hess to a gas station in what Hess described as a bad area of town where the cashier worked behind bulletproof glass. Hess and Garcia went inside the store. Hess got in line behind Garcia, who told her to move to stand in front of him. When Hess did so, Officer Garcia placed his hand on her buttocks. 4 No. 22-1550
Throughout the ride along, Garcia also asked Hess about her dating and sex life. 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 her- self. Late in the evening, Garcia and other officers made an ar- rest. After leaving the scene, Garcia drove Hess to a secluded area where they met another Hammond police officer. In this secluded area, Garcia spoke to the other officer through open car windows and repeatedly asked the other officer if he wanted to have sex with Hess, who stayed in the car, terrified. After Hess’s ride along, another female classmate partici- pated in the course-required ride, also with Officer Garcia. When the classmate told Hess that Garcia had acted inappro- priately with her, the two students reported their experiences to a teacher. Defendant John Doughty was the Hammond po- lice chief at the time. B. This Lawsuit Hess sued Garcia and Chief Doughty in their individual capacities under 42 U.S.C. § 1983. Although a complaint need not plead legal theories, e.g., Koger v. Dart, 950 F.3d 971, 974– 75 (7th Cir. 2020), the complaint made clear that Hess was in- voking the Equal Protection Clause of the Fourteenth Amend- ment, the Fourth Amendment, and the Due Process Clause of the Fourteenth Amendment. Defendants Doughty and Garcia filed separate motions to dismiss. The district court granted both motions and dismissed all claims with prejudice. Z.H. v. No. 22-1550 5
Garcia, No. 3:21-CV-101 JD, 2022 WL 857035, at *6 (N.D. Ind. Mar. 21, 2022). This appeal followed. 1 II. Analysis “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibil- ity when … [it] pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A. Common Ground Across the Circuits In similar cases, different circuits have taken several doc- trinal paths to a common ground: sexual assault by an official acting under color of law violates the constitutional rights of the victim. E.g., United States v. Giordano, 442 F.3d 30, 47 (2d Cir. 2006) (“victims [have] a right under the Fourteenth Amendment to be free from sexual abuse by a state actor”); United States v. Shaw, 891 F.3d 441, 444–45, 450 (3d Cir. 2018) (affirming conviction of correctional officer who raped pre- trial detainee for violating constitutional right to bodily integ- rity); United States v. Sepulveda, 64 F.4th 700, 703–04 (5th Cir. 2023) (same for police officer who committed sexual assault); Sexton v. Cernuto, 18 F.4th 177, 184, 192–93 (6th Cir. 2021) (re- jecting qualified immunity for official who facilitated sexual
1 Based on Hess’s youth and the nature of the allegations, the district court allowed Hess to sue without making her name public. At oral argu- ment on appeal, we questioned the need and justification for continuing the secrecy since Hess was by then an adult. Hess agreed to use her real name in the caption and other documents. 6 No. 22-1550
assault, violating victim’s right to bodily integrity); Johnson v. Phillips, 664 F.3d 232, 239 (8th Cir. 2011) (law was “clearly es- tablished in this circuit that the commission of a sexual assault by a government official acting under color of law constitutes a violation of due process that shocks the conscience”); United States v. Gonzalez, 533 F.3d 1057, 1064 (9th Cir. 2008) (“In- cluded in the liberty protected by the Fourteenth Amendment is the concept of personal bodily integrity and specifically ‘the right to be free from certain sexually motivated physical as- saults….’”), quoting United States v. Lanier, 520 U.S. 259, 262 (1997). 2 Seventh Circuit precedents involving sexual assault by an official acting under color of law approve of the Fourteenth Amendment Equal Protection and Due Process Clause theo- ries of liability. E.g., Doe v. Smith, 470 F.3d 331, 337–38 (7th Cir. 2006) (concluding that sexual abuse by school dean may vio- late Equal Protection or Due Process Clauses); 3 Wudtke v. Davel, 128 F.3d 1057, 1062–63 (7th Cir. 1997) (same for sexual assault by school superintendent). The parties have not cited
2 See also, e.g., United States v. Dillon, 532 F.3d 379, 382–83 (5th Cir. 2008) (city attorney who raped misdemeanants violated constitutional right to bodily integrity); Rogers v. City of Little Rock, 152 F.3d 790, 794 (8th Cir. 1998) (acknowledging due process right to be free from sexual touch- ing by officials); Doe by Doe v. Hillsboro Independent School Dist., 81 F.3d 1395, 1406 (5th Cir. 1996) (“At least since 1987, the law has been clearly established that … physical sexual abuse by a school employee violates” due process right to bodily integrity); Dang Vang v. Toyed, 944 F.2d 476, 479 (9th Cir. 1991) (noting “constitutional right to be free from sexual as- sault”). 3 A different, statutory holding in Doe v. Smith was abrogated by Fitz- gerald v. Barnstable School Committee, 555 U.S. 246 (2009). No. 22-1550 7
and we have not found a factually analogous case from this circuit addressing a Fourth Amendment theory of liability. Several other circuits say that sexual assault by an official violates the Equal Protection Clause. E.g., Jennings v. Univ. of North Carolina, 444 F.3d 255, 273–74, 279 (4th Cir. 2006) (sexual assault is “a ‘severe’ example of sexually harassing behavior” that violates Constitution as sex discrimination); Johnson v. Martin, 195 F.3d 1208, 1211 (10th Cir. 1999) (clearly estab- lished that official sexually harassing private citizen violates clause). Some courts apply the Fourth Amendment to similar facts and reject Fourteenth Amendment theories. Dickey v. United States, 174 F. Supp. 3d 366, 370–71 (D.D.C. 2016) (analyzing officer fondling of genitalia during search under Fourth Amendment); Jones v. District of Columbia, No. 00-1773 (RJL), 2002 U.S. Dist. LEXIS 27746, at *10–12 (D.D.C. Sept. 28, 2002) (analyzing sexual misconduct during arrest under Fourth Amendment, rejecting due process theory); see also Fontana v. Haskin, 262 F.3d 871, 882 (9th Cir. 2001) (“Sexual misconduct by a police officer … generally is analyzed under the Four- teenth Amendment; sexual harassment by a police officer of a criminal suspect during a continuing seizure is analyzed un- der the Fourth Amendment.”). 4 Other circuits say that these claims are best analyzed not as Fourth Amendment violations but as violations of the right to bodily integrity protected by the Fourteenth Amendment Due Process Clause. Tyson v. County of Sabine, 42 F.4th 508,
4 See also Smith v. Ray, 409 F. App’x 641, 649 (4th Cir. 2011) (non-prec-
edential) (“sexual assault by a police officer clearly violates the security interests protected by the Fourth Amendment”). 8 No. 22-1550
514–20 (5th Cir. 2022) (favoring Fourteenth Amendment the- ory over Fourth Amendment where officer went to woman’s home for welfare check and sexually abused her); Martinez v. Hongyi Cui, 608 F.3d 54, 56, 58 (1st Cir. 2010) (same for rape by physician); Poe v. Leonard, 282 F.3d 123, 125, 136–37 (2d Cir. 2002) (same for officer recording woman undressing); Rogers, 152 F.3d at 796 (same for rape by officer, noting the “violation here is different in nature from one that can be analyzed un- der the fourth amendment reasonableness standard,” as “[n]o degree of sexual assault by a police officer acting under color of law could ever be proper”); Jones v. Wellham, 104 F.3d 620, 628 (4th Cir. 1997) (same for rape by officer after traffic stop); Haberthur v. City of Raymore, 119 F.3d 720, 724 (8th Cir. 1997) (favorably citing Wellham for point that sexual assault outside an arrest can violate bodily integrity). Some cases rejecting the Fourth Amendment for the Four- teenth say that the Fourth Amendment applies only when the challenged conduct occurred in the context of a criminal in- vestigation. E.g., Poe, 282 F.3d at 136 (“The Fourth Amend- ment is not the proper source of Poe’s constitutional right be- cause Pearl’s objectionable conduct occurred outside of a criminal investigation….”); Jones, 104 F.3d at 628 (rejecting Fourth Amendment theory because “the harm inflicted did not occur in the course of an attempted arrest or apprehension of one suspected of criminal conduct”). With respect, that narrow view of the Fourth Amendment seems to be contrary to Supreme Court precedent. For exam- ple, in City of Ontario v. Quon, 560 U.S. 746 (2010), the Court expressly rejected the argument that the Fourth Amendment did not apply to searches of pagers and text messages because their owners were not under criminal investigation. The No. 22-1550 9
Court wrote: “It is well settled that the Fourth Amendment’s protection extends beyond the sphere of criminal investiga- tions. ‘The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government,’ without regard to whether the government actor is investigating crime or performing an- other function.” 560 U.S. at 755–56, quoting Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 613–14 (1989) (citation omitted). As we explain next, Hess has plausibly alleged facts sup- porting liability under the theories of the Fourteenth Amend- ment Equal Protection Clause, the Fourth Amendment, and the Fourteenth Amendment Due Process Clause. At this early procedural stage, we leave all three of these doctrinal lanes open on remand, and we see no basis for requiring plaintiff to choose just one or two while federal courts are sorting out these theories. Alternative legal theories for relief for the same injury can present procedural challenges at trial but are cer- tainly permissible. B. Equal Protection The district court held that Hess failed to allege a violation of the Equal Protection Clause because her complaint did not identify a similarly situated individual whom Garcia treated more favorably. Z.H., 2022 WL 857035, at *5. We reverse dis- missal on this theory for two reasons. First, identifying a sim- ilarly situated individual is not necessary at the pleading stage so long as the complaint plausibly alleges differential treatment motivated by plaintiff’s membership in a group that is distinct for equal protection purposes. Second, in equal protection cases plausibly alleging sexual assault or sexual 10 No. 22-1550
harassment, the identification of a similarly situated individ- ual is not necessary at any procedural stage.5 First, we repeat that even in cases where identification of a similarly situated individual may be necessary at trial, such identification is not required in the pleadings. FKFJ, Inc. v. Vil- lage of Worth, 11 F.4th 574, 590 (7th Cir. 2021) (“we have con- sistently held a plaintiff need not identify a similarly situated entity in its complaint”); Capra v. Cook County Bd. of Review, 733 F.3d 705, 717 (7th Cir. 2013) (reversing dismissal based on failure to name similarly situated comparator in complaint); Geinosky v. City of Chicago, 675 F.3d 743, 748 n.3 (7th Cir. 2012) (reversing dismissal: “Even the more demanding pleading re- quirements under Iqbal and Twombly do not require a plaintiff to identify specific comparators in a complaint.”); see gener- ally Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510–12 (2002) (reversing dismissal because plaintiff alleging employment discrimination need not plead elements of McDonnell Douglas method of proof, including comparator: “Given that the prima facie case operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading standard for discrimination cases.”).
5 Garcia argues that Hess waived her equal protection theory. We dis-
agree. The district court addressed equal protection on the merits, and Hess’s brief before this court engaged with that ruling. We also disagree with the district court’s suggestion that the theory was “as good as” waived before that court. Z.H., 2022 WL 857035, at *5. Hess’s response brief in the district court set forth the proper standard of review and said clearly why the complaint adequately alleged a violation: It is plausible that Garcia subjected Hess to groping and sexual harassment because Hess is female. Further development of the obvious connection between sexual misconduct and sex discrimination is not necessary to state a claim under an equal protection theory. No. 22-1550 11
Second, naming a similarly situated person who was not subjected to sexual misconduct by a public official is unnecessary even at later stages of litigation. As a matter of evidence in equal protection or discrimination cases, comparators may help a plaintiff undermine a defendant’s offered justification for his treatment of the plaintiff. But we recognize that requiring a comparator “would elevate form over substance” where the facts alleged “clearly suggest harassment by public officials that has no conceivable legitimate purpose.” Geinosky, 675 F.3d at 748. “The nature of the harm is such that there is virtually no scenario imaginable where sexual harassment … is substantially related to important governmental objectives.” Bohen v. East Chicago, 799 F.2d 1180, 1187 (7th Cir. 1986). Accordingly, no comparator is necessary in cases of sexual assault or sexual harassment by government officials because there is no legitimate governmental purpose for such actions. 6 Counsel for Garcia made the surprising assertion in brief- ing and at oral argument that there could be a governmental interest served by the conduct alleged here. Counsel sug- gested that Garcia “was making for an exciting ride along” with his “frankly innocuous” yet “perhaps boorish conduct.” Garcia’s briefing repeats the characterization of his behavior as nothing more than “boorish flirtation,” “arguably pre- sented in a joking fashion intended to make the ride-along more sensational but not dangerous.” Perhaps the defense
6Other circuits agree. E.g., Fontana, 262 F.3d at 880 (repeating “there can be no ‘countervailing governmental interest’ to justify sexual miscon- duct”); Doe v. Taylor Independent School Dist., 15 F.3d 443, 452 (5th Cir. 1994) (“Obviously, there is never any justification for sexually molesting a schoolchild, and thus, no state interest [served.]”). 12 No. 22-1550
might try to persuade a jury with that theory—a matter we leave to the district court in the first instance—but we con- tinue to reject the idea that a police officer’s sexual assault or sexual harassment serves any legitimate governmental inter- est. To state a claim under the Equal Protection Clause, Hess had to allege plausibly that Garcia “discriminated against [her] based on [her] membership in a definable class.” Word, 946 F.3d at 396, quoting Nabozny v. Podlesny, 92 F.3d 446, 453 (7th Cir. 1996). The complaint describes Garcia’s abuse of his position of authority by groping Hess, telling another male officer he should have sex with Hess in a remote location, ask- ing Hess about her sexual experience, and seeking out a pros- titute to ask for “tips” on behalf of Hess for her supposed fu- ture in the profession. All during a ride along meant to edu- cate a student about law enforcement. There is no suggestion here that Garcia was an “equal opportunity harasser” who sexually assaulted men as well as women. Plaintiff’s allega- tions easily support an inference that Garcia acted this way based on Hess’s sex. C. Fourth Amendment To state a claim under the Fourth Amendment, a plaintiff must show that a search or seizure occurred and that the search or seizure was unreasonable. See, e.g., Carlson v. Buko- vic, 621 F.3d 610, 618 (7th Cir. 2010). Hess’s complaint sup- ports the theory that seizures occurred through sexual touch- ing without consent, see id. at 620–21 (whether officer’s touch constituted seizure was question for jury considering all cir- cumstances, including consent and governmental purpose), and through being driven to a remote area where Garcia re- peatedly asked another officer if he wanted to have sex with No. 22-1550 13
Hess. See Brendlin v. California, 551 U.S. 249, 255 (2007) (“sei- zure occurs if ‘in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave’”), quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980) (principal opinion). In ad- dition to pleading these facts with obvious ties to the Fourth Amendment—and even though plaintiffs need not plead le- gal theories, e.g., Johnson v. City of Shelby, 574 U.S. 10, 12 (2014); Reed v. Columbia St. Mary’s Hospital, 915 F.3d 473, 479 (7th Cir. 2019)—the complaint explicitly alleges a Fourth Amendment violation. 7
7 The district court found that Hess withdrew the Fourth Amendment
theory, Z.H., 2022 WL 857035, at *1 n.1, and the issue was not raised before this court until oral argument. However, we disagree with the district court over withdrawal and exercise our discretion to review the Fourth Amendment theory. All parties understood that the complaint raised a Fourth Amendment theory. Each defendant’s motion to dismiss ad- dressed the Fourth Amendment, and Hess’s briefs cited precedent for ap- plying the Fourth Amendment. The district court seems to have relied on one sentence from plaintiff’s briefing to find withdrawal: “Rather than beat a dead horse, Plaintiff ZH is comfortable with the Court ruling that only the 14th Amendment applies.” That statement was conditional, premised on the district court denying the motion to dismiss on the Four- teenth Amendment theory. As plaintiff explained, such a denial would allow the lawsuit to proceed, and plaintiff could refine legal theories later. Nowhere did Hess indicate she did not want the district court to rule on the merits of the Fourth Amendment even if that court rejected her Four- teenth Amendment theories. In fact, plaintiff wrote that if the court dis- missed the Fourth Amendment theory, “Plaintiff seeks leave to amend.” Allowing Hess’s Fourth Amendment theory to fall away would be unfair considering how clearly her complaint invoked the Fourth Amendment and how persistently she briefed the issue on the merits before the district court. 14 No. 22-1550
A Fourth Amendment seizure can occur regardless of whether an officer is involved in a criminal investigation: In our view, the reason why an officer might en- ter a house or effectuate a seizure is wholly ir- relevant to the threshold question whether the Amendment applies. What matters is the intru- sion on the people’s security from governmen- tal interference. Therefore, the right against un- reasonable seizures would be no less trans- gressed if the seizure … was undertaken to col- lect evidence … or on a whim, for no reason at
Garcia argues that Hess waived her right to the application of the Fourth Amendment to her claims by not addressing the district court’s finding of “withdrawal” in her opening brief before this court. We disa- gree. Hess put squarely before this court the merits of her claim that Gar- cia’s conduct violated her constitutional right to be free from sexual as- sault by a government official. “When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Kamen v. Kemper Finan- cial Servs., 500 U.S. 90, 99 (1991); see also Williams-Guice v. Board of Educ., 45 F.3d 161, 163 (7th Cir. 1995) (“litigants’ failure to address the legal ques- tion from the right perspective does not render us powerless to work the problem out properly. A court of appeals may and often should do so un- bidden rather than apply an incorrect rule of law to the parties’ circum- stances”). As explained above, different courts allow similar claims to pro- ceed under several legal theories. The circuits’ conflicting opinions about the appropriate constitutional theories for officials’ sexual assaults present an unusual situation where there is value in considering which constitu- tional path or paths best fit Hess’s claim. By analyzing Hess’s claim under the Fourth Amendment, we are not identifying sua sponte a claim that the plaintiff did not bring. Instead, we are properly addressing a legal theory that fits the claim squarely before us. See United States v. Robl, 8 F.4th 515, 528 n.32 (7th Cir. 2021). No. 22-1550 15
all. As we have observed on more than one oc- casion, it would be “anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behav- ior.” Soldal v. Cook County, 506 U.S. 56, 69 (1992), quoting Camara v. Municipal Court, 387 U.S. 523, 530 (1967). Hess does not re- ceive less protection against unreasonable seizures under the Fourth Amendment because she encountered Officer Garcia in her role as a student learning about law enforcement rather than as a criminal suspect. A seizure “can take the form of ‘physical force’ or a ‘show of authority’ that ‘in some way restrain[s] the liberty’ of the person.” Torres v. Madrid, 141 S. Ct. 989, 995 (2021), quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). “It must be recognized that whenever a police officer accosts an individual and re- strains his freedom to walk away, he has ‘seized’ that person.” Terry, 392 U.S. at 16. Physically grabbing someone is likely to be a seizure because it is likely to restrict movement, at least briefly. “The fleeting nature of some seizures by force un- doubtedly may inform what damages a civil plaintiff may re- cover…. But brief seizures are seizures all the same.” Torres, 141 S. Ct. at 999. Not all touches by officers rise to the level of seizures un- der the Fourth Amendment, of course, but sexual assaults do. The Fourth Amendment protects the “right of the people to be secure in their persons … against unreasonable searches and seizures.” U.S. Const. amend. IV. It is “the only part of the Constitution directly addressing seizures of the person by po- lice.” Gumz v. Morrissette, 772 F.2d 1395, 1404 (7th Cir. 1985) 16 No. 22-1550
(Easterbrook, J., concurring). Sexual assault intrudes into bod- ily security and is quite literally a “seizure,” restricting free- dom of movement even if briefly. An officer who sexually as- saults someone while acting under color of law has seized the victim for Fourth Amendment purposes. Hess has also plausibly alleged a seizure in another way. A person is seized if, considering the totality of the circum- stances, a reasonable person in the situation would not feel free to leave. Carlson, 621 F.3d at 618; see also Mendenhall, 446 U.S. at 554. Late in the evening, Garcia drove Hess to a se- cluded 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. Similarly, Hess alleges that Garcia groped her buttocks after he instructed her to stand in front of him in a gas station line. Hess notes that the station was in “a bad area,” and it is plausible that a reasonable person would not feel free to walk away from Garcia, who provided her trans- portation. Garcia made the point repeatedly in briefing and at oral argument that Hess never asked to end the ride along. There is no requirement that a person ask whether she is free to leave before a seizure can occur. E.g., Fox v. Hayes, 600 F.3d 819, 833 (7th Cir. 2010) (“whether a person asks permission to leave is but one factor among many in the arrest analysis”). Because Hess plausibly alleged that a seizure occurred, we consider whether she plausibly alleged that the seizure was unreasonable. To assess reasonableness, we look to the gov- ernmental purpose served by the challenged conduct, “bal- ancing the need to search [or seize] against the invasion which the search [or seizure] entails.” Terry, 392 U.S. at 21, quoting Camara, 387 U.S. at 534–35, 536–37. Even when challenged No. 22-1550 17
conduct promotes a governmental interest, the Supreme Court cautions that searches and seizures must not be under- taken lightly. “Even a limited search of the outer clothing for weapons [to protect officer safety] constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps hu- miliating experience.” Id. at 24–25. Sexually motivated grop- ing is an even more severe intrusion upon personal security. No governmental interest is served by a state actor sex- ually assaulting anyone. We agree with Judge Loken: “there is nothing inappropriate or unusual in imposing virtually per se Fourth Amendment liability on police officers who misuse their power to arrest or otherwise seize a person by commit- ting sexual assaults.” Rogers, 152 F.3d at 801 (Loken, J., con- curring in part, dissenting in part). Hess plausibly alleged that an unreasonable seizure occurred. D. Substantive Due Process The district court also found that Hess’s complaint failed to allege a plausible claim under the Due Process Clause of the Fourteenth Amendment. Z.H., 2022 WL 857035, at *3–5. We also reverse dismissal on this ground. Our precedents have recognized a substantive due process right against sex- ual assault by state actors in cases where no search or seizure occurred. See Alexander v. DeAngelo, 329 F.3d 912, 916 (7th Cir. 2003); Wudtke, 128 F.3d at 1063. In response to these precedents, Garcia asks us to draw lines between sexual assault that is unconstitutional and sex- ual assault that, in his view, is not severe enough to implicate the Constitution. We decline to do so. 18 No. 22-1550
Before digging into the substantive due process jurispru- dence, we acknowledge that the Fourth Amendment will of- ten provide the proper avenue for litigating a claim of sexual assault by an official acting under color of law. When “the Fourth Amendment provides an explicit textual source of constitutional protection against [a particular] sort of physi- cally intrusive governmental conduct, that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” Graham v. Con- nor, 490 U.S. 386, 395 (1989). The Supreme Court has even noted that Rochin v. California, 342 U.S. 165 (1952), which for- mulated the “shocks the conscience” test in substantive due process law that we discuss below, was decided before the Court held that the Fourth Amendment applies to the States through the Due Process Clause of the Fourteenth Amend- ment, and that the Rochin stomach-pumping case “today would be treated under the Fourth Amendment, albeit with the same result.” County of Sacramento v. Lewis, 523 U.S. 833, 849 n.9 (1988). At the same time, as a panel of this court, we also follow circuit precedents recognizing a substantive due process theory in cases of sexual assault under color of law. Further, the Fourth Amendment is triggered only by a search or seizure. Substantive due process under the Four- teenth Amendment still protects people from unconstitu- tional conduct committed under color of law when neither a search nor seizure occurs. The Supreme Court has cautioned that Graham “does not hold that all constitutional claims relat- ing to physically abusive government conduct must arise un- der either the Fourth or Eighth Amendments; rather, Graham simply requires that if a constitutional claim is covered by a specific constitutional provision … the claim must be ana- lyzed under the standard appropriate to that specific No. 22-1550 19
provision, not under the rubric of substantive due process.” Lewis, 523 U.S. at 833, quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997). Substantive due process may apply when, “outside the context of a seizure, … a person [is] injured as a result of police misconduct.” Id. at 844 (giving example of a due process claim existing if an officer crashes into and injures a person outside the context of that officer attempting a sei- zure). Hess has alleged that Garcia seized her, but Garcia has dis- puted those allegations. At this stage of the case, we will not restrict Hess to a Fourth Amendment theory if her complaint also pleads facts that set out a plausible Fourteenth Amend- ment substantive due process theory. It does so. The Due Process Clause is violated by an infringement of a fundamental right through an abuse of government power that “‘shock[s] the conscience’ of federal judges.” Collins v. City of Harker Heights, 503 U.S. 115, 126 (1992), quoting Rochin, 342 U.S. at 172; see also Tun v. Whitticker, 398 F.3d 899, 902 (7th Cir. 2005). Case law has established a fundamental right to bodily integrity that includes the right to be free from sexual assault. See Wudtke, 128 F.3d at 1062 (“Her liberty claim of a right to bodily integrity is … the type of claim that has often been recognized as within substantive due process.”). Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022), did not mention or undermine the right to bodily integrity. In fact, the Court’s opinion emphasized twice that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion…. It is hard to see how we could be clearer.” Id. at 2277–78, 2280. Rather, Dobbs refused to recognize “the right to an abortion” under the Due Process Clause and said that substantive due process must be “guided 20 No. 22-1550
by the history and tradition that map the essential components of our Nation’s concept of ordered liberty.” Id. at 2242, 2248. The right to bodily integrity (also referred to as “personal security”) has long been recognized in law, including by Blackstone, who traced the right to the Magna Carta. 1 William Blackstone, Commentaries *123–25 (citing the Magna Carta in listing absolute rights including “the right of personal security” and “the right of personal liberty”). 8 The Supreme Court explains how to analyze whether an action shocks the conscience by focusing on “tort law’s spec- trum of culpability.” Lewis, 523 U.S. at 848. That spectrum spans different degrees of intent, not different degrees of harm. Id. at 849. Illustrating this point, the Supreme Court found no conscience-shocking conduct where an officer unintentionally killed a motorist during a chase, id. at 836, while it found con- science-shocking conduct where officers intentionally had medical professionals induce vomiting in a suspect to retrieve evidence, Rochin, 342 U.S. at 166, 173. The nature or extent of the harm was not the Court’s focus. Accord, Jackson v. Indian
8The Supreme Court has long recognized the right to bodily integrity as an essential component of our liberty protected by the Fourteenth Amendment’s due process clause. See Vacco v. Quill, 521 U.S. 793, 807 (1997) (noting the right to refuse medical treatment is grounded in “well established, traditional rights to bodily integrity and freedom from un- wanted touching”); see also Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261, 269 (1990) (“Before the turn of the century, this Court observed that ‘no right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’”), quoting Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) (“The right to one’s person may be said to be a right of complete immunity: to be let alone.”) (citation omitted). No. 22-1550 21
Prairie School Dist. 204, 653 F.3d 647, 655 (7th Cir. 2011) (noting action intended to injure is most likely to rise to level of con- science-shocking); Wudtke, 128 F.3d at 1063–64 (reversing dis- missal of claim alleging sexual assault because though “merely negligent action by the state official would not be enough for a substantive due process claim … [the alleged facts] amount to far more than negligence”). The alleged sexual assaults here were intentional, so re- gardless of whether they were severe, they would fall toward the worse end of the culpability spectrum, which is concerned with intent, not with the degree of harm caused by the behav- ior at issue. Sexual assault invades bodily integrity and cannot serve a governmental purpose. An officer’s sexual assault while acting under color of law is conscience-shocking. The district court disagreed. It focused on the level of harm that it assumed Garcia’s conduct caused, noting that “[v]ery serious batteries, such as rape and egregious sexual conduct, have been held as conscience-shocking,” but that Garcia’s conduct was “not as severe” as that in other cases of officer sexual abuse and thus “did not rise to the level neces- sary” to violate the right to bodily integrity. Z.H., 2022 WL 857035, at *3–4. With respect, we disagree with this attempt to draw a line between constitutional and unconstitutional sexual assaults. The court’s inquiry into whether the sexual assault was “seri- ous” enough to be conscience-shocking reads too much into the use of that word in Alexander. 329 F.3d at 916. There, a woman argued that officers violated her right to bodily integ- rity by threatening her with 40 years of prison time unless she agreed to wear a wire while exchanging sex for money. Id. at 914–15. In analyzing her claim, this court noted that the right 22 No. 22-1550
to bodily integrity “is infringed by a serious, as distinct from a nominal or trivial, battery,” and that rape “is not only a bat- tery, but a very serious battery, and a rape committed under color of state law is therefore actionable” as a due process vi- olation. Id. at 916 (citations omitted). Alexander did not say that some sexual assault is “nominal or trivial” or anything further about which batteries are serious or not. Alexander did not set the floor for a sexual battery qualifying as “serious” at rape and did not alter the Supreme Court’s instruction that shocks-the-conscience analysis focus on the spectrum of in- tent balanced against relevant governmental interest.9 The most egregious examples of an offense do not change the floor for what conduct is criminal or unconstitutional. The right to bodily integrity is not made harder to violate by the fact that even worse cases come along, such as where an
9 This district court case was not the first in this circuit to dismiss sex- ually abusive official conduct as falling below some unclear bar of egre- giousness. In Decker v. Tinnel, the court found that an officer’s sexual as- saults of his ride-along passenger did not shock the conscience. No. 2:04- CV-227, 2005 WL 3501705 (N.D. Ind. Dec. 20, 2005). There, the officer asked his young ride-along passenger if she would strip for him, forcibly kissed her multiple times trying to “stick[] his tongue down [her] throat,” “forced his hand between her closed thighs,” and grabbed her breasts. Id. at *1–2. The court reasoned the conduct was not “serious” enough to im- plicate the Due Process Clause because “each touching or kissing incident lasted only a matter of seconds, and concluded when Decker either pushed Tinnel away, or told him ‘no.’” Id. at *7–9. The Third Circuit cited this case and was “not persuaded” by its reasoning that an intentional in- trusion into bodily integrity was not “serious” enough to be conscience- shocking. Kane v. Barger, 902 F.3d 185, 193–94 (3d Cir. 2018) (finding of- ficer’s behavior conscience-shocking where he “acted for his own personal gratification … in both touching Kane and photographing her intimate bodily areas”). We are similarly unpersuaded. No. 22-1550 23
officer present during a sexual assault victim’s hospital exam- ination coerced her into going to a private room and removing her clothing while he touched her and photographed her gen- italia on his personal phone, Kane, 902 F.3d at 189–90, where an officer sent to a woman’s house for a wellness check forced her to strip and touch her own genitalia while he mastur- bated, Tyson, 42 F.4th at 512, 514, or where an officer sexually assaulted a woman in her home after seeing her address on her driver’s license during a traffic stop, Stidham v. Jackson, No. 2:07cv00028, 2009 WL 792961, at *1–3 (W.D. Va. Mar. 24, 2009). These cases and the one before us today differ factually and may differ in terms of severity and appropriate damages if liability is proven, but they all involve the alleged violation of bodily integrity through conscience-shocking official ac- tion. We decline to recognize a category of constitutionally per- missible 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. Otherwise, line drawing would be impos- sible. We asked counsel for Garcia where this line should be and received no answer except that wherever the line is for a sexual assault to qualify as a violation of bodily integrity, that line required worse conduct than Garcia’s. We will not engage in such line drawing. Accord, Tyson, 42 F.4th at 520 (denying qualified immunity and rejecting argument that lack of force defeated claim: “No degree of physical sexual abuse effected for a law enforcement officer’s sexual gratification is justified by a legitimate governmental objective …. [P]hysical sexual 24 No. 22-1550
abuse by a state official offends the Constitution. No reasona- ble officer could believe otherwise.”) (citations omitted). 10 Where, as here, a plaintiff plausibly alleges sexual assault by a public official acting under color of law, that plaintiff has stated a claim for a violation of her right to bodily integrity protected under the Fourteenth Amendment. Such conduct shocks the conscience because it is intentional and serves no governmental purpose. E. Claims Against Chief Doughty We affirm the dismissal with prejudice of all claims against Chief Doughty. In Section 1983 suits, officials are held ac- countable only for their own misconduct. Kemp v. Fulton County, 27 F.4th 491, 497–98 (7th Cir. 2022); see also Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”). To claim personal liability against a supervisor for a supervisee’s conduct, a plaintiff must plausibly allege that the supervisor played some role in
10 See also Vazquez v. County of Kern, 949 F.3d 1153, 1166 (9th Cir. 2020)
(“it is ‘obvious’ that a juvenile corrections officer should not sexually har- ass or abuse a juvenile ward as [such conduct] is always wrong”); Johnson, 664 F.3d at 239 (“[I]t [is] clearly established in this circuit that the commis- sion of a sexual assault by a government official acting under color of law constitutes a violation of due process that shocks the conscience.”); Fon- tana, 262 F.3d at 875, 882 n.8 (reversing dismissal of claim based on officer sexually harassing arrested woman in back of squad car on the way to booking and noting that no qualified immunity would apply because the conduct was inherently wrong); Stoneking v. Bradford Area School Dist., 882 F.2d 720, 727 (3d Cir. 1989) (“sexual molestation of a student could not possibly be deemed an acceptable practice … [so] a student's right to be free from such molestation may be viewed as clearly established even be- fore” relevant 1977 Supreme Court precedent). No. 22-1550 25
the conduct through facilitation, approval, or turning “a blind eye for fear of what they might see.” Id. at 498, quoting Mat- thews v. City of East St. Louis, 675 F.3d 703, 708 (7th Cir. 2012). This complaint alleges that Chief Doughty “permitted” the ride along while knowing another officer had accused Garcia of acting inappropriately “with females.” In briefing before the district court, Hess clarified that by “permitted,” the complaint meant that Chief Doughty “failed to issue an order prohibiting Officer Garcia from having female ride alongs.” These allegations do not plausibly allege that Chief Doughty played a role at the level required to impose per- sonal liability. Further, Hess has not identified any amend- ments she could make to the complaint to cure the problem, so the district court correctly dismissed the claim against Chief Doughty with prejudice. To sum up, Hess’s complaint plausibly alleges claims un- der the Fourteenth Amendment Equal Protection Clause, the Fourth Amendment, and the Fourteenth Amendment Due Process Clause. On a final note, counsel for Garcia said at oral argument that reversing dismissal would open proverbial floodgates 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 dis- agree with the premise. We will not close the federal court- house doors to people sexually assaulted by government offi- cials acting under color of law. The dismissal of plaintiff’s claims against Chief Doughty is AFFIRMED. The dismissal of her claims against Officer Garcia is REVERSED, and the case is REMANDED for proceedings consistent with this opinion. 26 No. 22-1550
EASTERBROOK, Circuit Judge concurring. I concur in the judgment and join all but Part II.D of the court’s opinion. Part II.D states that sexual assault by a police officer may be condemned under “substantive due process.” At least two decisions in this circuit say this. Alexander v. DeAngelo, 329 F.3d 912, 916 (7th Cir. 2003); Wudtke v. Davel, 128 F.3d 1057, 1062–63 (7th Cir. 1997). Defendants have not asked us to over- rule them. Given the principle of party presentation, see United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020), I would stop there. My colleagues continue, however, with language favorable to those holdings. I find them (and equivalent decisions in other circuits) hard to reconcile with Graham v. Connor, 490 U.S. 386, 395 (1989), which holds that, when the Fourth Amendment sup- plies “an explicit textual source of constitutional protection against [a particular] sort of physically intrusive governmen- tal conduct, that Amendment, not the more generalized no- tion of ‘substantive due process,’ must be the guide for ana- lyzing these claims.” See also Sacramento v. Lewis, 523 U.S. 833, 849 n.9 (1998). My colleagues acknowledge those decisions but believe that we are bound by Alexander and Wudtke. Yet neither Alexander nor Wudtke mentions Graham, and we are supposed to follow the Justices when there is a conflict. Part II.C of today’s opinion holds, correctly, that the Fourth Amendment supplies an appropriate means to analyze Of- ficer Garcia’s conduct. It follows that substantive due process does not. Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), reiterated that substantive due process is limited to a few “fundamental” rights with strong historical prove- nance but no other constitutional footing. Alexander and No. 22-1550 27
Wudtke treat “bodily integrity” as the qualifying “fundamen- tal” right, but this takes us back to Graham. The Fourth Amendment reads directly on bodily integrity, and Graham tells us that the rules that Amendment supplies for searches and seizures cannot be avoided by invoking substantive due process. Like the panels in Alexander and Wudtke, the dissent- ing Justices in Dobbs contended that bodily integrity is a fun- damental right that receives protection through substantive due process. 142 S. Ct. at 2319, 2322, 2328 (Breyer, J., dissent- ing). The majority in Dobbs was not persuaded, and that deci- sion binds us. One norm under the Fourth Amendment is that courts evaluate reasonableness objectively. See, e.g., Torres v. Madrid, 141 S. Ct. 989 (2021); Whren v. United States, 517 U.S. 806 (1996). It does not matter what the police think or intend nor what the private party believes. Move to substantive due pro- cess, though, and we ask whether conduct shocks the con- science. Whether the conscience involved is that of a judge, a juror, an officer, or a private party, the inquiry is subjective. And whether conduct shocks a particular conscience lacks historical provenance as a legal standard. This approach was created by the Supreme Court from whole cloth in the Twen- tieth Century, long after the Due Process Clauses were pro- posed and ratified. If the Supreme Court had held that substantive due pro- cess provides the right way to analyze offensive physical touching or threats of rape in remote locations that amount to seizures, that would be that. Dobbs insisted that it was not dis- turbing any line of decisions, other than holdings about abor- tion. But Graham shows that by 1989 it was established that substantive due process is not the way to analyze Hess’s 28 No. 22-1550
contentions. Graham was all about bodily injury inflicted both directly and indirectly by officers’ misconduct, so bodily in- tegrity cannot be an escape hatch out of Graham’s purview. Police are accountable for objectively unreasonable searches and seizures, but they are not liable just because jurors are disgusted by an officer’s loutish behavior.