Sims v. Labowitz

Case Citation: Sims v. Labowitz, 877 F.3d 171 (4th Cir. 2017)

The Fourth Circuit Court of Appeals held that the suspect sufficiently pled that sexually invasive search was unreasonable and that the right to be free from unreasonable sexually invasive search was clearly established; but visual display of suspect’s genitalia was not intended to elicit sexual response in viewer, as required for suspect to recover damages as victim of offense of child pornography.


AFFIRMED in part, REVERSED in part, and REMANDED.

Fact Background:

In 2014, then-17-year-old Trey Sims was consensually sexting with his 15-year-old girlfriend, and sent her explicit pictures of himself. Based solely on this conduct, the Commonwealth of Virginia filed felony charges against Sims for the creation and distribution of child pornography. Detective David Abbott then obtained a search warrant authorizing him to take photographs of Sims’ genitals, including his erect penis. To execute the warrant, he took Sims to a juvenile detention center locker room, and ordered him to pull down his pants in front of himself and two other armed officers. He then ordered the teenager to masturbate in front of them, so they could get a picture of his erection. Sims was unable to do so, and Abbott later threatened to take him to a hospital and give him an erection-inducing injection to ensure they got the picture.

Procedural Background:

Sims brought 1983 action against the administrator of detective David E. Abbott’s estate, Kenneth Labowitz, alleging that the search of his person violated his Fourth Amendment. The district court determined that Defendant was entitled to qualified immunity—dismissing the case altogether. Sims appealed.


In a split decision, the fourth circuit AFFIRMED the district court’s holding that Sims sufficiently pled that the sexually invasive search of his person was unreasonable and violated his Fourth Amendment right to privacy. 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. A search is lawful only when it is reasonable. Amaechi v. West, 237 F.3d 356 (4th Cir. 2001). When as in the present case, a search involves “movement of clothing to facilitate the visual inspection of a [person’s] naked body,” the search qualifies as a type of “sexually invasive search.” United States v. Edwards, 666 F.3d 877, 882-83 (4th Cir. 2011). Requiring Sims to masturbate in the presence of others, in order to obtain a photograph of his erect genitalia, like searches involving physical penetration of genitalia, invaded Sims’ bodily integrity and constituted “the ultimate invasion of personal dignity.” Amaechi, 237 F. 3d at 363-64. This sexually intrusive search was particularly egregious in that it was intended to instill fear in Plaintiff. See Edwards, 666 F.3d at 884-85.

Accordingly, both the outrageous scope of the sexually intrusive search and the intimidating manner in which the search was conducted weigh strongly against any finding that the search was reasonable … Thus, we discern no justification for Abbott’s alleged conduct executing the search of Sim’s body, and we conclude that the semi-private location of the search did not mitigate the overall circumstances of this exceptionally intrusive search. Accordingly, we hold that Sims sufficiently alleged a violation of his Fourth Amendment right to be free from the sexually invasive search of his person.

Sims v. Labowitz, 877 F.3d 171 (4th Cir. 2017)

The Fourth Circuit REVERSED the district court’s decision to grant Defendant qualified immunity holding that “Abbott’s conduct affronted the basic protections of the Fourth Amendment, which at its core protects personal privacy and dignity against unjustified intrusion by government actors.”

because there was no justification for the alleged search to photograph Sims’ erect penis and the order that he masturbate in the presence of others, we conclude that well-established Fourth Amendment limitations on sexually invasive searches adequately could have placed any reasonable officer on notice that such police action was unlawful. See Amaechi, 237 F.3d at 365. Thus, the alleged conduct plainly did not qualify as the type of “bad guesses in gray areas” that qualified immunity is designed to protect. Braun v. Maynard, 652 F.3d 557, 560 (4th Cir. 2011).

Sims v. Labowitz, 877 F.3d 171 (4th Cir. 2017)

Sims v. Labowitz is one of the rare cases where a plaintiff was able to overcome the qualified immunity doctrine. Even still, one of the three judges agreed with the district court that the detective should be immune from liability for his conduct.

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