Brandy Kane v. Shawn Barger

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-3027

_____________

BRANDY KANE,

Appellant

v.

SHAWN BARGER, in his Individual Capacity as a Police

Officer for the Borough of Coraopolis

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(No. 2-15-cv-00846)

District Judge: Honorable Mark R. Hornak

_____________

Submitted Under Third Circuit L.A.R. 34.1(a)

June 12, 2018

Before: CHAGARES, GREENBERG, and FUENTES,

Circuit Judges

(Opinion filed: August 22, 2018)

_____________

Noah Geary, Esq.

Washington Trust Building, Suite 225

Washington, PA 15301

Attorney for Appellant

Mark R. Lane, Esq.

Dell, Moser, Lane & Loughney, LLC

Two Chatham Center, Suite 1500

112 Washington Place

Pittsburgh, PA 15219

Attorney for Appellee

_____________

OPINION OF THE COURT

_____________

FUENTES, Circuit Judge.

On June 27, 2013, Brandy Kane went to the hospital

and reported that she may have been the victim of a sexual

assault. That night, Officer Shawn Barger of the Coraopolis

Police Department went to the hospital to interview Kane

regarding the possible assault. At that time, Kane says Barger

told her to bring the clothes she wore during the alleged

incident to him at the police station.

The next day, Kane—accompanied by a friend—

brought her clothes to the police station. While there,

contrary to department policy, Barger met alone with Kane in

a back room of the station. Then, also in violation of

2

department policy, Barger used his personal cell phone to

photograph intimate areas of Kane’s body.

During this encounter, Barger touched Kane twice.

First, rather than relying on Kane to do so, Barger pulled

Kane’s shorts down to photograph a bruise on her right

buttock. At this point, Kane says she “felt something touch

her butt crack which caused her to jump.” 1 Second, again

without asking Kane to do so, Barger pulled Kane’s tank top

down to expose a bruise on her upper chest.

Kane says that, while photographing her, Barger

repeatedly asked about her breasts, vagina, and buttocks. In

this regard, Barger persistently inquired if Kane sustained

injuries to her vagina. Despite Kane’s consistent denials,

Barger’s relentless questioning led Kane to expose her vagina

to him.

After photographing Kane, Officer Barger failed to

document the clothing evidence that Kane provided.

Moreover, when Kane later reported Barger’s actions, he

gave inconsistent accounts of his behavior. Indeed, while

Barger initially denied photographing Kane at all—let alone

with his cell phone—he later admitted he lied because he did

not want his girlfriend to be jealous that he photographed

Kane.

Against this background, Kane alleges that Barger

violated her Fourteenth Amendment right to bodily integrity

by—in the course of purportedly interviewing her about her

alleged sexual assault—touching her and using his personal

1

App. 173.

3

cell phone to photograph her intimate areas in violation of

department policy. The District Court granted summary

judgment in favor of Barger, finding that—even if Barger’s

conduct was unlawful—he was still immune from suit under

the exacting “clearly established” prong of our qualified

immunity analysis.

Viewing the record in the light most favorable to

Kane, which supports an inference that Barger acted for

personal gratification rather than investigative ends, we hold

that Barger’s conduct shocks the conscience and violated

Kane’s right to bodily integrity. We further hold that the

right at issue was clearly established at the time of Barger’s

conduct. Accordingly, we will reverse and remand for further

proceedings.

I.

A. 2

In the early morning of June 27, 2013, Kane—then 20

years old—was arrested and charged with disorderly conduct,

underage drinking, resisting arrest, and escape. After being

released from jail that day, Kane—who had “blacked out”

from alcohol consumption—grew concerned that she may

have been sexually assaulted because she was not wearing

pants when she was arrested, she had a large amount of

vaginal discharge, and she could not recall what happened.

Because of these concerns, Kane went to the hospital that

2

Because we are reviewing a claim of qualified immunity, we

recount the facts in the light most favorable to Kane. Karns

v. Shanahan, 879 F.3d 504, 520 (3d Cir. 2018).

4

night for both a psychiatric evaluation and a rape kit

examination. As part of the rape kit examination, a doctor

photographed injuries to Kane’s arms, shoulders, knees, and

legs.

That evening, Officer Barger—then 40 years old—

went to the hospital to collect the rape kit. Barger also

interviewed Kane in the presence her mother and a victim

advocate. The parties dispute what occurred next. While

Kane maintains that Barger told her to bring the clothes she

wore during the purported assault to him at the police station

the following day, Barger contends that Kane came to the

station to get her cell phone. In any event, the next day,

Kane—and her friend, Cayla Combs—went to the Coraopolis

Police Station with the clothes she wore during the alleged

incident.

At the station, Kane and Combs both met separately

with Barger. Contrary to department policy, Kane and Barger

met alone in a back room of the station. Kane asserts that

Barger closed the hallway door. However, while Barger

admits that he directed Kane to the back room, he says that

the door to the hallway was open. During this meeting, in

further violation of department policy, Barger used his

personal cell phone to photograph Kane’s intimate areas,

including her breasts and buttocks.

At the outset, Barger asked Kane if she had bruising on

or around her intimate areas. Kane told Barger that the

hospital photographed all of her injuries except for a bruise

on her right buttock. Barger then asked Kane if he could

photograph the bruise on her right buttock. In so doing,

5

Barger said he had a special application on his personal cell

phone for taking photographs. 3 Kane agreed.

Before Barger photographed Kane’s right buttock,

Kane pulled down her gym shorts to expose that area.

Thereafter, without asking Kane to do so, Barger pulled

Kane’s shorts down further to more fully expose the bruise on

her right buttock so he could photograph it. 4 At this point,

Kane “felt something touch her butt crack which caused her

to jump.” 5 Barger denies touching Kane’s buttocks and

maintains that he only moved the tag on the back of Kane’s

shorts.

Kane says that Barger repeatedly asked about her

breasts, vagina, and buttocks while holding his personal cell

phone and photographing her. Because Barger kept asking

about her buttocks, Kane asked if he wanted to photograph

her other injuries. Barger answered in the affirmative.

Altogether, Kane believes Barger photographed her between

3

Barger says, and his official report reflects, that the

department’s digital camera was inoperative. However, his

report also failed to mention that he photographed Kane using

his personal cell phone.

4

In his deposition, Barger described his attempt as

“unsuccessful” because the application would “freeze” when

he “would take a photograph.” App. 212. Nevertheless, in a

request for admission, Barger agreed that he “took

photographs of Brandy Kane in the Coraopolis Borough

Police Station.” App. 252. In any event, Barger concedes

that he intended to photograph Kane.

5

App. 173.

6

four and eight times. Nevertheless, Kane does not know for

sure because she did not see any photographs or hear a

camera “click.” Barger admits that he attempted to

photograph Kane between five and seven times.

During that first round of photographing, Barger twice

asked Kane if she had injuries to her vagina. She responded

in the negative both times. Barger later told Kane that the

photographs did not save and asked her if he could retake

them. Kane agreed. Kane contends that, during this second

round of photographing, Barger again asked her if she had

injuries to her vagina. Kane again responded in the negative.

However, despite her repeated denials, at some point Kane

exposed her vagina to Barger. Kane also asserts that Barger

looked at her vagina. While Kane is unsure whether Barger

photographed her vagina, she asserts he made her “feel like

he did” because “he kept asking about it.” 6

At one point, after Barger asked about a bruise on

Kane’s chest, he—again without having Kane do so—pulled

her tank top down to expose her upper chest area. After

Barger did so, Kane held her tank top where Barger

positioned it so he could photograph the bruise on her upper

chest area. While Kane’s breasts were not fully exposed, her

upper chest was. Kane contends that Barger also had her sit

on a table so he could photograph her inner thighs. Barger

denies this and says that Kane merely stood on the opposite

side of the desk. Kane further maintains that Barger

instructed her to pull her shorts up to her bikini line so he

could photograph her inner thighs.

6

App. 174.

7

After photographing Kane, Barger said he would

continue his investigation. Kane then left the police station.

Barger later interviewed a number of possible witnesses to

Kane’s sexual assault. However, Barger failed to document

the clothing evidence that Kane brought to him at the station.

While Barger asserts that Kane’s clothing was given to an

“evidence officer to take custody of,” he claims he does not

know what happened to those items. 7

Kane’s mother later reported Barger’s conduct to the

Allegheny County Police Department. Then, on July 9, Kane

met with Allegheny County Detective Michael Kuma to

discuss the photographs that Barger had taken. After meeting

with Kane, Kuma began investigating Barger. During

Kuma’s first interview with Barger, Barger denied

photographing Kane at all in the back room of the station, let

alone with his personal cell phone. Nevertheless, during a

follow-up interview with Kuma, Barger admitted that he

photographed Kane using his personal cell phone.

According to Kuma’s official report, Barger explained

that he lied about photographing Kane because he was

worried that his girlfriend might become jealous upon

learning he had done so. Kuma further reported that Barger

said he took six or seven photographs of Kane’s upper chest,

buttocks, inner thighs, and the front and back of her legs.

Kuma also said that Barger told him he deleted the photos.

Barger concedes that he lied in his initial meeting with Kuma.

However, Barger maintains that—while he attempted to

7

App. 210.

8

photograph Kane—he did not delete photographs of Kane

because his phone never saved them in the first place. 8

Ultimately, Barger consented to disciplinary action for

“serious violations of departmental policy,” including using

his cell phone—instead of department equipment—to

photograph Kane, interviewing and photographing a female

without a fellow officer or witness present, and failing to

initially provide a full disclosure of the underlying incident. 9

Barger was also removed from the investigation into Kane’s

alleged sexual assault and suspended for two weeks without

pay.

B.

Subsequently, Kane filed this civil rights action under

42 U.S.C. § 1983 alleging that Barger violated her Fourteenth

Amendment right to bodily integrity during his investigation

into whether she was the victim of a sexual assault. Barger

8

Kuma later used an extraction device to review

approximately thirteen thousand photographs on Barger’s

personal cell phone. During his review, Kuma could not

conclusively identify any photographs of Kane. However,

Kuma did find a photograph of an unidentifiable woman—

who could have been Kane—whose pants were pulled down

to expose her buttocks. While Kuma maintains that the

device should have recovered any photographs of Kane that

Barger deleted, he explained that “[i]n [his] experience using

the [extraction] device, there is no hard and fast rule that it

downloads everything.” SA 464.

9

App. 245.

9

moved for summary judgment on two grounds. First, he

argued that his conduct—even when viewed in the light most

favorable to Kane—did not violate Kane’s right to bodily

integrity. Second, he asserted that—even if he violated

Kane’s right to bodily integrity—he was entitled to qualified

immunity.

The District Court granted summary judgment for

Barger on qualified immunity grounds. Two aspects of the

decision below warrant mention here.

On one hand, the District Court stated that, “although

it did not involve direct sexual contact, Officer Barger’s

conduct in the course of his duties, considered as a whole,”

could be “sufficiently appalling in terms of violating Kane’s

bodily integrity to be considered conscious-shocking [sic] for

purposes of the constitutional tort that Kane advances in this

case.” 10 On this point, the District Court observed that

“[t]here is little question that the record here would amply

support a finding that the conduct to which Officer Barger has

admitted was improper and highly inappropriate.” 11

However, the District Court did not ultimately decide

whether Barger violated Kane’s right to bodily integrity.

Rather, the District Court found that, even if Barger violated

Kane’s rights, her claim would still fail under “the exacting

standard of the ‘clearly established’ prong of the qualified

immunity analysis.” 12 In so holding, the District Court noted

10

App. 29.

11

App. 22.

12

App. 29.

10

that—in light of the law at the time of Barger’s conduct—it

could not conclude that “every reasonable police officer in

Officer Barger’s position would have known that his

particular conduct in photographing or attempting to

photograph Kane in what is alleged to be a sexually-

gratifying manner and in violation of [] professional and

Departmental standards during an investigation into her

possible sexual assault deprived Kane” of her right to bodily

integrity. 13 This appeal followed. 14

II.

“Qualified immunity shields government officials from

civil damages liability unless the official violated a statutory

or constitutional right that was clearly established at the time

of the challenged conduct.” 15 We conduct a two-step inquiry

to determine whether a government official is entitled to

qualified immunity. “First, we ask whether the facts—taken

in the light most favorable to the nonmoving party—show

that a government official violated a constitutional right.” 16

“Second, we ask whether that right was clearly established at

the time of the official’s actions.” 17

13

App. 31.

14

The District Court had jurisdiction under 28 U.S.C. § 1331.

We have jurisdiction under 28 U.S.C. § 1291. We exercise

plenary review over the District Court’s grant of summary

judgment. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002).

15

Reichle v. Howards, 566 U.S. 658, 664 (2012).

16

Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015).

17

Id.

11

A.

Kane argues that Barger violated her substantive due

process right to bodily integrity by touching her and using his

personal cell phone to photograph her intimate areas in

violation of department policy while supposedly interviewing

her about her alleged sexual assault. To demonstrate that her

substantive due process rights were violated, Kane must

establish that “the particular interest at issue is protected by

the substantive due process clause,” and that “the

government’s deprivation of that protected interest shocks the

conscience.” 18 We address each element in turn.

With regard to the first element, we have recognized

that “[i]ndividuals have a constitutional liberty interest in

personal bodily integrity that is protected by the Due Process

Clause of the Fourteenth Amendment.” 19 The Supreme Court

has also specifically observed that “the ‘liberty’ specially

protected by the Due Process Clause includes the right[] . . .

to bodily integrity.” 20 With this context, as the District Court

rightly observed, “Kane had a right to not have her bodily

integrity violated by a police officer investigating her

potential sexual assault.” 21

18

Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008).

19

Phillips v. Cty. of Allegheny, 515 F.3d 224, 235 (3d Cir.

2008); see also Black by Black v. Ind. Area Sch. Dist., 985

F.2d 707, 709 n.1 (3d Cir. 1993) (noting that the Fourteenth

Amendment protects a liberty interest in bodily integrity).

20

Washington v. Glucksberg, 521 U.S. 702, 720 (1997)

(citation omitted).

21

App. 31.

12

Accordingly, we must proceed to the second element

of our substantive due process inquiry: specifically, whether

Barger’s conduct shocks the conscience. While “only the

most egregious official conduct” can shock the conscience, 22

“[t]he level of culpability required for behavior to shock the

conscience largely depends on the context in which the action

takes place.” 23 In this regard, we have observed that “[i]n a

hyperpressurized environment, such as a high-speed police

chase, intent to harm is required.” 24 However, “where

deliberation is possible and officials have the time to make

unhurried judgments, deliberate indifference is sufficient.” 25

Here, there is no indication that Barger faced circumstances

calling for quick decision-making while photographing Kane.

To the contrary, Barger had time for “actual deliberation.”26

Accordingly, the standard here is deliberate indifference,

which requires “a conscious disregard of a substantial risk of

serious harm.” 27

22

Chainey, 523 F.3d at 219 (citation and quotation marks

omitted).

23

L.R. v. Sch. Dist. of Philadelphia, 836 F.3d 235, 246 (3d

Cir. 2016); see also Cty. of Sacramento v. Lewis, 523 U.S.

833, 847 (1998) (noting that the “measure of what is

conscience shocking is no calibrated yard stick”).

24

L.R., 836 F.3d at 246 (citation and quotation marks

omitted).

25

Id. (citation and quotation marks omitted).

26

Lewis, 523 U.S. at 851.

27

L.R., 836 F.3d at 246 (citation and quotation marks

omitted).

13

Against this background, Barger contends that Kane’s

substantive due process claim fails because he did not

“commit[] a serious battery that shocks the conscience.” 28 In

support, Barger relies on out-of-circuit cases in which

conduct he describes as “well beyond anything alleged

against [him]” was found to not be conscience-shocking. 29

For example, Barger cites the Eighth Circuit’s decision in

Hawkins v. Holloway. 30 In Hawkins, male police officers

alleged that their sheriff violated their substantive due process

rights by groping them and making lewd comments. 31 In

rejecting the officers’ argument, the Court explained that,

while the sheriff’s conduct was “perverted,” the officers’

“allegations of inappropriate sexual contact on the sheriff’s

part [] fall into the category of misconduct for which no

constitutional remedy is available.” 32

Barger also cites two unpublished district court cases

from the Seventh Circuit, Nagle v. McKernan, 33 and Decker

v. Tinnel. 34 In Nagle, the plaintiff alleged that a fire marshal

violated her right to bodily integrity while inspecting her

place of employment by cornering her in her office, leaning

28

Appellee’s Br. at 16.

29

Appellee’s Br. at 21.

30

316 F.3d 777 (8th Cir. 2003).

31

Id. at 784–85.

32

Id. at 785.

33

No. 07 C 680, 2007 WL 2903179 (N.D. Ill. Sept. 28, 2007).

34

No. 2:04-CV-227, 2005 WL 3501705 (N.D. Ind. Dec. 20,

2005).

14

against her body, and breathing on her while intimately

pressing his face against the back of her head and neck. 35

The Northern District of Illinois disagreed, concluding that—

while his behavior was “strange and inappropriate”—the fire

marshal’s conduct did not shock the conscience. 36

Likewise, in Decker, the plaintiff—an 18-year-old

woman—alleged that a police officer violated her right to

bodily integrity during a police ride-along by touching her

breasts and thighs, kissing her, and repeatedly making

sexually suggestive comments. 37 While the Northern District

of Indiana characterized the officer’s conduct as “improper

and reprehensible,” it nevertheless held that it “d[id] not rise

to the level of a constitutional violation” that shocked the

conscience. 38

We are not persuaded. As explained, wholly contrary

to department policy, Barger met with Kane—then

considered a possible sexual assault victim—alone in the

back room of the police station. During that encounter,

Barger charted a course that, viewed in the light most

favorable to Kane, violated her right to bodily integrity and

shocks the conscience. In the back room, in further violation

of department policy, Barger photographed intimate areas of

Kane’s body with his personal cell phone. In the course of

taking the photos, Barger personally pulled Kane’s shorts and

tank top down to expose her right buttock and upper chest,

35

Nagle, 2007 WL 2903179 at *1.

36

Id. at *2.

37

Decker, 2005 WL 3501705 at *1–2.

38

Id. at *9.

15

rather than having Kane do so herself. Moreover, when

Barger tugged her shorts, Kane “felt something touch her butt

crack which caused her to jump.” 39 Further, while Kane

repeatedly said her vagina was not injured, Barger’s incessant

questioning about her vagina ultimately caused Kane to

expose her vagina to him.

Barger’s conduct after his encounter with Kane only

underscores a conscience-shocking disregard for Kane’s right

to bodily integrity. Indeed, after photographing Kane, Barger

failed to document the clothing evidence that Kane provided.

That evidence remains unaccounted for. Moreover, after

Kane reported Barger’s conduct, Barger initially lied to

outside investigators and said he never photographed Kane,

let alone with his personal cell phone. On this point, after

Barger came clean with investigators, he said he lied because

he did not want his girlfriend to be jealous of the fact that he

photographed Kane.

Altogether, the record—again, viewed in the light most

favorable to Kane—supports the inference that Barger acted

for his own personal gratification, rather than investigative

ends, in both touching Kane and photographing her intimate

bodily areas with his personal cell phone in violation of

department policy. That is conscience-shocking behavior.

Thus, Barger violated Kane’s right to bodily integrity. 40

39

App. 173.

40

To be clear, today’s holding is limited to the facts of this

case and by no means suggests that photographing and/or

touching a possible sexual assault victim during an

investigation is a de facto violation of the right to bodily

integrity. Indeed, we can conceive of many legitimate

16

B.

Having found Kane’s right to bodily integrity was

violated, we now ask if that right was clearly established at

the time of Barger’s conduct. 41

“A clearly established right is one that is sufficiently

clear that every reasonable official would have understood

that what he is doing violates that right.” 42 “We do not

require a case directly on point” to find that a right was

clearly established. 43 Rather, “[t]o be clearly established,” a

right need only have “a sufficiently clear foundation in then-

existing precedent.” 44 In this inquiry, “[w]e look first to

applicable Supreme Court precedent.” 45 However, “[e]ven if

none exists, it may be possible that a robust consensus of

cases of persuasive authority in the Courts of Appeals could

investigative reasons for engaging in such conduct. Here,

however, by acting in a manner that could be interpreted as

prioritizing his personal gratification over his investigative

duties, Barger fell on the wrong side of the line.

41

See Fields v. City of Philadelphia, 862 F.3d 353, 361 (3d

Cir. 2017) (noting that “we look at the state of the law” when

the underlying conduct occurred “[t]o determine whether the

right [was] clearly established”).

42

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citation and

quotation marks omitted).

43

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

44

District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018).

45

L.R., 836 F.3d at 247–48.

17

clearly establish a right for purposes of qualified

immunity.” 46

“Defining the right at issue is critical to this inquiry,”

and “[w]e must frame the right in light of the specific context

of the case, not as a broad general proposition.” 47 This does

not mean that “an official action is protected by qualified

immunity unless the very action in question has previously

been held unlawful.” 48 Accordingly, “it need not be the case

that the exact conduct has previously been held unlawful so

long as the contours of the right are sufficiently clear.” 49 Said

another way, we do not require a case “directly mirror[ing]

the facts” at hand, so long as “there are sufficiently analogous

cases that should have placed a reasonable official . . . on

notice that his actions were unlawful.” 50 As such, “officials

46

Id. at 248 (alteration, citation, and quotation marks

omitted).

47

Id. (citation and quotation marks omitted).

48

Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also

Hope v. Pelzer, 536 U.S. 730, 741 (2002) (explaining that

“[a]lthough 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”).

49

Kedra v. Schroeter, 876 F.3d 424, 450 (3d Cir. 2017)

(citation and quotation marks omitted); see also id. at 451–52

(admonishing against defining a right in a narrow and fact-

bound way for purposes of qualified immunity).

50

L.R., 836 F.3d at 249.

18

can still be on notice that their conduct violates established

law even in novel factual circumstances.” 51

Here, the right at issue is an individual’s right not to be

sexually fondled and illicitly photographed by a police officer

investigating his or her case, for the officer’s own

gratification. Thus, based on the above, “[t]he ultimate

question is whether the state of the law when the offense

occurred” gave Barger “fair warning” that his conduct

violated this right. 52 We conclude that it did.

Intuitively, it seems absurd to analyze whether the

right to be free from an officer’s sexual assault was clearly

established by case law at the time of Barger’s conduct. This

is because, given the egregiousness of Barger’s violation of

Kane’s personal security and bodily integrity, the right here is

so “obvious” that it could be deemed clearly established even

without materially similar cases. 53 Indeed, while Barger has

not been convicted of a crime, his actions—viewed in the

light most favorable to Kane—resemble the crime of indecent

51

Hope, 536 U.S. at 741.

52

L.R., 836 F.3d at 247 (citation and quotation marks

omitted).

53

Hope, 536 U.S. at 741; see also White v. Pauly, 137 S. Ct.

548, 552 (2017) (per curiam) (noting, in the Fourth

Amendment context, that “general statements of the law are

not inherently incapable of giving fair and clear warning to

officers” in “an obvious case” (citations and quotation marks

omitted)).

19

assault in Pennsylvania, where Barger’s conduct occurred. 54

Under Pennsylvania law, “indecent contact” is defined as

“[a]ny touching of the sexual or other intimate parts of the

person for the purpose of arousing or gratifying sexual desire,

in any person.” 55 By touching Kane’s intimate areas for his

own personal gratification, that is effectively what Barger did

here. 56

Further, at the time of Barger’s conduct, both our case

law and that of other circuits placed Barger on notice that he

acted unconstitutionally. In this regard, our decision in Doe

v. Luzerne Cty. 57 is illustrative. In Doe, we held that male

police officers violated a female colleague’s Fourteenth

Amendment right to privacy by videotaping her partially

unclothed body without her consent in a showering area. 58

While Doe did not involve the specific right to bodily

integrity, Doe and the present matter both involved male

police officers who deceptively used recording devices to

capture images of the intimate bodily areas of vulnerable

54

See 18 Pa. Cons. Stat. § 3126(a)(1) (providing that “[a]

person is guilty of indecent assault if the person has indecent

contact with the complainant . . . for the purpose of arousing

sexual desire in the person . . . without the complainant’s

consent”).

55

Id. § 3101.

56

See Malley v. Briggs, 475 U.S. 335, 341 (1986) (explaining

that qualified immunity does not protect “those who

knowingly violate the law”).

57

660 F.3d 169 (3d Cir. 2011).

58

Id. at 175–78.

20

females. Without doubt, Barger’s “specific conduct” is

“sufficiently factually similar” to our decision in Doe to have

placed him on notice that his conduct was unconstitutional. 59

Thus, in light of these factual similarities, Doe announced a

“sufficiently clear” right to personal bodily security that

“applie[d] with obvious clarity” at the time Barger acted. 60

Analogous cases from other circuits underscore that

the right here was clearly established. For example, in

Haberthur v. City of Raymore, the Eighth Circuit reversed the

dismissal of a plaintiff’s substantive due process claim based

on an officer’s sexual misconduct. 61 There, the plaintiff

alleged that the officer reached under her shirt, fondled her

chest, and caressed her body while making sexually

suggestive remarks. 62 In finding that the plaintiff stated a

claim, the Court characterized the officer’s conduct as

“intrusive, demeaning, and violative of [the plaintiff’s]

personal integrity.” 63

59

Kedra, 876 F.3d at 449 n.19 (citation and quotation marks

omitted).

60

Id. at 450 (citation and quotation marks omitted); see also

Brown v. Muhlenberg Twp., 269 F.3d 205, 211 n.4 (3d Cir.

2001) (“If the unlawfulness of the defendant’s conduct would

have been apparent to a reasonable official based on the

current state of the law, it is not necessary that there be

binding precedent from this circuit so advising.”).

61

119 F.3d 720, 724 (8th Cir. 1997).

62

Id. at 721, 724.

63

Id. at 724.

21

Similarly, in Fontana v. Haskin, the Ninth Circuit

analyzed a highway patrol officer’s conduct toward a plaintiff

who was handcuffed and detained in the back of a patrol

car. 64 On the way to the police station, the defendant officer

sat next to the plaintiff in the back seat while his partner

drove. 65 At that time, the officer inappropriately put his arm

around the plaintiff and massaged her shoulders. 66 The

officer also made sexually suggestive statements concerning

the plaintiff’s appearance and relationship status. 67 While the

case was decided on Fourth Amendment grounds because the

plaintiff was handcuffed during the encounter, the Court

held—in the alternative—that the officer’s sexual predation

“was egregious and outrageous and shocks the conscience as

a matter of law” under the Fourteenth Amendment. 68

With this context, it is clear that—at the time Barger

acted—the law provided fair warning that his sexual

misconduct toward Kane was unlawful. As such, the right

was clearly established for purposes of qualified immunity.

III.

For the foregoing reasons, we reverse the District

Court’s grant of summary judgment and remand for further

proceedings consistent with this opinion.

64

262 F.3d 871, 875 (9th Cir. 2001).

65

Id.

66

Id.

67

Id.

68

Id. at 882 n.7.

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