On July 28, 2022, the Fifth Circuit Court of Appeals decided Tyson v. Cnty. Of Sabine[i], in which the court had to decide whether a deputy’s sexual misconduct with a citizen was a constitutional violation and if so, whether the deputy was entitled to qualified immunity. The relevant facts of Tyson are as follows:
On September 18, 2018, Wade Tyson called the Sheriff’s Department of Sabine County, Texas, to request a welfare check on his wife, Melissa Tyson (“Tyson”). Wade reported that he was out of town and worried about his wife, who was home alone and distressed. Defendant Deputy David Boyd called Tyson that evening and told her that he would visit the next morning to conduct a welfare check. He introduced himself as a sheriff. He told her that he handled welfare checks because he was a preacher. During the call, Tyson overheard Deputy Boyd tell other officers not to respond to Wade’s request for a welfare check on Tyson because he was addressing it.
The next morning, Deputy Boyd showed up alone at Tyson’s home in a plain car and wearing a shirt identifying himself as a “Sheriff.” He was not visibly carrying a weapon. Tyson offered a handshake but, instead, Deputy Boyd hugged her. Deputy Boyd asked if there was a place that they could talk. She led him to chairs and a table on the side porch of the house. Before sitting down, Deputy Boyd asked if she had security cameras or neighbors, and he began to search the exterior of the home. Tyson said that she did not have cameras and her neighbors were usually not home. He commented that Tyson “must be lonely with [her] husband being gone” and “living . . . by [herself] the majority of the time at a dead-end road.” Tyson said that she wasn’t lonely, she was fine. She testified that she thought the officer’s behavior was strange, but she gave him the benefit of the doubt because he was helping her.
Deputy Boyd stayed for approximately two hours, during which time he made numerous inappropriate sexual statements and commands, which the district court found were neither invited nor consensual. For example, Deputy Boyd told Tyson that he and fellow officers had recently seen her at a restaurant, and he repeated sexual comments that the officers made about her body. For example, he said that the officers talked about “what they would like to do to [her] if they could.” He also compared the size of Tyson’s breasts with his wife’s breasts. He pressed her to answer invasive questions about her sex life, such as whether she and her husband would consider a threesome and whether her husband would allow someone to watch them having sex. And he asked for nude pictures of her husband.
At some point, Deputy Boyd received a phone call from his wife, and he answered it on speakerphone without notifying his wife. He told his wife that he was “running errands.” He then solicited nude photos from his wife and made sexually explicit comments.
Tyson was troubled by Deputy Boyd’s statement to his wife that he was not on duty, so she sought to “get some distance” from him by retreating into her home for water. Without invitation, he followed her. Tyson gave him the water and led him back outside.
Tyson contends that she felt forced to submit to Deputy Boyd’s sexual misconduct because she was isolated and alone, as Deputy Boyd had pointed out; she felt intimidated by his authority; and she was frightened that the sexual harassment would escalate if she did not comply.
Tyson also testified that she felt coerced to submit to the sexual misconduct because Deputy Boyd implicitly threatened to ticket her for possession of drug paraphernalia. That morning, Tyson had left marijuana paraphernalia on a table in her home, which was visible through a window from the side porch. During their conversation, Deputy Boyd described issuing tickets for marijuana possession to attendees of a swinger’s club. He stated that he would sometimes “just take their stuff and then send them on the way to the party,” but that, “most of the time,” it was his “duty to issue a ticket.” At the time he made the comment, he was facing the window looking into the home, and Tyson contends that from his vantage point he could see the marijuana paraphernalia. Based on the “frequency of it coming up,” Tyson perceived that Deputy Boyd’s story about ticketing attendees of the swinger party was a veiled threat to coerce her into going along with the sexual misconduct.
Tyson alleges that Deputy Boyd then sexually assaulted her on the porch of her home. He commanded her to expose her breasts and her vagina, and spread her labia to expose her clitoris. After a prolonged hesitation, Tyson complied. Deputy Boyd then masturbated to ejaculation in front of her. She closed her eyes and waited for him to finish, at which point he left.
Immediately afterwards, Tyson felt distressed and cried. Deputy Boyd texted her multiple times following the incident—messages such as “I saw you today” or “I haven’t heard from you”—but she did not respond. She messaged a friend that she was “worr[ied] about him hurting [her].” She began frequently seeing a psychotherapist and a hypnotherapist, her intimacy with her husband significantly decreased, she gained thirty pounds, she started carrying a gun, she put cameras up, and she generally stopped leaving her home. In short, the incident “changed [her] whole life,” and she isn’t “who [she] used to be.” She reported the incident to the Texas Rangers because she was not sure who she could trust in local law enforcement based on Deputy Boyd’s story that he and other officers had been talking sexually about her body. This was not the first allegation of sexual misconduct against Deputy Boyd; at least three other complaints had been made by other people.
Tyson subsequently sued the County of Sabine, the Sheriff, and Deputy Boyd for violating her rights under the Fourth and Fourteenth Amendments. The district court granted summary judgment for Deputy Boyd for the Fourth Amendment excessive force claim because it found that Tyson had not been seized and granted summary judgment for Boyd on the Fourteenth Amendment bodily integrity claim because Tyson had not been physically touched. The claims against the county were dismissed as the court found no underlying violation. Tyson appealed to the Fifth Circuit Court of Appeals.
The court of appeals first discussed qualified immunity. The court noted that in order for a plaintiff to defeat qualified immunity, the plaintiff must show (1) that the government official violated the plaintiff’s rights, and (2) that the law was clearly established such that every reasonable officer in the same situation would have known he was violating the plaintiff’s rights. The second prong of the test to defeat qualified immunity is normally established by court precedent that was in existence at the time of the alleged violation that was similar enough to provide the government official with fair warning that the conduct was unlawful. However, the court also noted that there is one more way for a plaintiff to show that the law was clearly established. Specifically, when a government official’s conduct is obviously unlawful to every reasonable officer, then the law is also said to be “clearly established,” and this is so even absent similar court precedent.
Issue One: Did Deputy Boyd violate Tyson’s Constitutional rights?
A. The Fourth Amendment
The court then set out to determine if Tyson was seized under the Fourth Amendment during her encounter with Boyd. The court noted several relevant legal principles and stated
A voluntary encounter between an officer and a citizen may ripen into a seizure triggering the Fourth Amendment . . . ‘only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of [the] citizen.'” United States v. Mask, 330 F.3d 330, 336 (5th Cir. 2003) (quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).[iii]
The court also noted factors they consider when determining if an encounter is a seizure under the Fourth Amendment. The court stated
While no per se rules govern when an encounter with law enforcement constitutes a seizure, circumstances indicative of a seizure include: “the threatening presence of several officers”; “the display of a weapon by an officer”; “physical touching of the person of the citizen”; and “the use of language or tone of voice indicating that compliance with an officer’s request might be compelled.” Mask, 330 F.3d at 337 (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)).[iv]
After examining the facts of the case, the court of appeals held that Tyson was not seized under the Fourth Amendment because the officer did not physically seize her nor did he tell her that she could not leave. While Tyson argued that Boyd told her that he issued citations for marijuana possession at a swingers club, he did not accuse her of possessing marijuana, and Tyson’s subjective belief that Deputy Boyd saw marijuana in her residence is insufficient to establish a seizure under the Fourth Amendment.
B. The Fourteenth Amendment
The court next set out to determine if Deputy Boyd violated Tyson’s rights under the Fourteenth Amendment during the encounter. The court discussed the relevant legal principles and stated
The substantive component of the Due Process Clause under the Fourteenth Amendment secures the “right to be free of state-occasioned damage to a person’s bodily integrity.” Doe v. Taylor Indep. Sch. Dist. (“Taylor ISD“), 15 F.3d 443, 450-51 (5th Cir. 1994) (en banc) (quoting Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981)). A violation of the right to bodily integrity follows from “behavior of the governmental officer [that] is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Lewis, 523 U.S. at 847 n.8.
We have long recognized that physical sexual abuse by a state official violates the right to bodily integrity. See United States v. Guidry, 456 F.3d 493, 506 n.7 (5th Cir. 2007) (affirming the Fourteenth Amendment protects “the right to be free from sexual assault” committed by a law enforcement officer against a non-detainee); Doe v. Rains Cnty. Indep. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995) (recognizing the established “liberty interest in freedom from sexual abuse by persons wielding state authority“); Taylor ISD, 15 F.3d at 450-51 (holding that “physical sexual abuse” by a government actor violates a child’s right to bodily integrity).[v]
Deputy Boyd argued that since he did not physically touch Tyson, he did not violate her bodily integrity. The court of appeals disagreed and stated
Defendants argue the alleged sexual abuse does not shock the conscience because Deputy Boyd did not effectuate it using physical force. We disagree. Physical force is not a requirement of a violation of the right to bodily integrity. See Windham v. Harris County, 875 F.3d 229, 242 n.17 (2017). Substantive due process violations can be based on mental coercion alone. See Leyra v. Denno, 347 U.S. 556, 558, 74 S. Ct. 716, 98 L. Ed. 948 (1954); see also Rogers v. City of Little Rock, 152 F.3d 790, 797 (8th Cir. 1998) (holding that officer’s use of mental coercion to effectuate sexual assault violated the Fourteenth Amendment); Abeyta ex rel. Martinez v. Chama Valley Indep. Sch. Dist., 77 F.3d 1253, 1256 (10th Cir. 1996) (rejecting “that psychological abuse absent physical contact or a threat to bodily integrity is not a deprivation of constitutional rights”). Thus, we have recognized violations of the right to bodily integrity where the officer never physically touched the plaintiff and the plaintiff suffered purely psychological harm. See Petta v. Rivera, 143 F.3d 895, 903 (5th Cir. 1998); Flores v. City of Palacios, 381 F.3d 391, 400-01 (5th Cir. 2004). The use of mental coercion rather than physical coercion to effectuate sexual abuse is a distinction without a difference. Deputy Boyd’s use of coercion to compel Tyson to engage in physical sex acts against her will violated her right to bodily integrity.[vi]
Thus, the court of appeals held that Deputy Boyd violated Tyson’s right to bodily integrity under the Fourteenth Amendment when he ordered her to expose private parts of her body, to touch herself, and masturbated as she did so, even though he did not physically touch her.
As such, Tyson has satisfied the first prong of the test to defeat qualified immunity.
Issue Two: Did Deputy Boyd violate clearly established law?
The court first noted that the law may be considered “clearly established,” even absent similar court precedent, if the conduct is obviously unlawful to every other reasonable officer. The court stated
Although earlier cases involving ‘fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002). A “general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has [not] previously been held unlawful.'” Id. (quoting Lanier, 520 U.S. at 271); see also Brosseau v. Haugen, 543 U.S. 194, 199, 125 S. Ct. 596, 160 L. Ed. 2d 583 (2004) (per curiam) (“Of course, in an obvious case, [general] standards can ‘clearly establish’ the answer, even without a body of relevant case law.”); Bartlett, 981 F.3d at 330 (explaining that the Supreme Court’s qualified immunity precedents allow for the “rare possibility that, in an obvious case, analogous case law is not needed because the unlawfulness of the challenged conduct is sufficiently clear” (cleaned up) (quoting Wesby, 138 S. Ct. at 590-91)).[vii]
The court then stated that it is obvious to every reasonable officer that sexually abusing a person is a violation of the Constitution, specifically the Fourteenth Amendment. The court stated
It is obvious that the right to bodily integrity forbids a law enforcement officer from sexually abusing a person by coercing them to perform nonconsensual physical sex acts for his enjoyment. As noted, we have long held that physical sexual abuse by a government official violates the Fourteenth Amendment. See Guidry, 456 F.3d at 506 n.7; Rains Cnty. Indep. Sch. Dist., 66 F.3d at 1406; Taylor ISD, 15 F.3d at 450-52; see also Whitley v. Hanna, 726 F.3d 631, 650-51 (5th Cir. 2013) (Elrod, J., concurring) (“Sexual abuse by a state official is an undeniable violation of this liberty interest.”). . . Regardless whether an officer uses physical or mental coercion, physical sexual abuse by a state official offends the Constitution. No reasonable officer could believe otherwise.[viii]
Therefore, the court of appeals held that Tyson had also satisfied the second prong of the qualified immunity test, in that the law was clearly established that sexual abuse by coercion violates the Fourteenth Amendment.
Issue Three: Did Deputy Boyd act under the “color of law” during his encounter with Tyson?
Section 1983 requires that the government official act under the “color of law” rather than as a private citizen, in order to be liable for a Constitutional violation. Deputy Boyd argued that he was off-duty and went to Tyson’s residence for personal reasons, rather than official reasons.
The court of appeals first noted that a government official is acting “under the color of law when he abuses the position given to him by the state.”[ix] The court also stated
It is only “[i]f an officer pursues personal objectives without using his official power as a means to achieve his private aim [that] he has not acted under color of state law.[x]
In Tyson’s case, Deputy Boyd met Tyson because Tyson’s husband legitimately called the sheriff’s department to conduct a welfare check on his wife. He then went to Tyson’s residence and checked for cameras as he met with her. He was wearing a shirt that said “sheriff” when he went to Tyson’s residence. Then, during the welfare check, he maneuvered Tyson to a secluded area of her home and interwove inappropriate sexual advances into the conversation, which culminated in him having her reveal private parts of her body, touch those private parts, and he masturbated in front of her as she did so. The court held that this was sufficient to be considered “under the color of law.”
As such, the court of appeals reversed the decision of the district court that granted qualified immunity to Boyd on the Fourteenth Amendment claim and remanded the case back to the district court.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 21-40590 (5th Cir. Decided July 28, 2022)
[ii] Id. at 1-6
[iii] Id. at 9
[iv] Id. at 10 (emphasis added)
[v] Id. at 13-14 (emphasis added)
[vi] Id. at 15-16 (emphasis added)
[vii] Id. at 17-18 (emphasis added)
[viii] Id. at 18-19 (emphasis added)
[ix] Id. at 22
[x] Id. at 27 (emphasis added)