Tyson v. County of Sabine

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

July 28, 2022

No. 21-40590 Lyle W. Cayce

Clerk

Melissa Tyson,

Plaintiff—Appellant,

versus

County of Sabine; David W. Boyd, Individually and in his official

capacity as Constable; Thomas N. Maddox,

Defendants—Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:19-CV-140

Before Clement, Graves, and Costa, Circuit Judges.

Edith Brown Clement, Circuit Judge:

This appeal arises from an alleged sexual assault committed by a law

enforcement officer while he was conducting a welfare check on the plaintiff

at her home. The district court found that the officer was entitled to qualified

immunity. We AFFIRM in part, REVERSE in part, and REMAND for

further proceedings consistent with this opinion.

No. 21-40590

I

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. 1 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.

1

Deputy Boyd’s ministerial credentials had actually been revoked eleven years

prior because of prohibited sexual conduct. During his time as a minister, he was also sued

by church members for alleged sexual misconduct.

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No. 21-40590

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. 2 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

2

In the proceedings below, the district court explicitly rejected defendants’ “gross

mischaracterization of this incident as” consensual. On appeal, defendants do not

challenge the district court’s finding that Tyson neither “consented to, [n]or invited,

Deputy Boyd’s [alleged] sexual assault.” And the record does not support that the district

court’s finding was clear error. See Fed. R. Civ. P. 52(a). It is obvious that “‘[c]onsent’

that is the product of official intimidation or harassment is not consent at all. Citizens do

not forfeit their constitutional rights when they are coerced to comply with a request that

they would prefer to refuse.” Florida v. Bostick, 501 U.S. 429, 438 (1991).

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No. 21-40590

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

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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.

In April 2019, Deputy Boyd was indicted by the State of Texas and

charged with sexual assault, indecent exposure, and official oppression. See

Tex. Pen. Code §§ 22.011, 21.08, 39.03. 3 In the same month, Tyson

sued the County of Sabine, the County Sheriff, and Deputy Boyd,

individually and in his official capacity as constable, asserting claims under

42 U.S.C. § 1983 for alleged violations of her rights under the Fourth, Eighth,

and Fourteenth Amendments to the U.S. Constitution. After a series of stays

for the pending criminal proceedings, defendants moved for summary

judgment, arguing that there were no underlying constitutional violations.

The district court agreed. See Tyson v. County of Sabine, No. 9:19-CV-

140, 2021 WL 3519294, at *7 (E.D. Tex. July 14, 2021). The court found that

the Fourth Amendment claim of excessive force failed because Tyson had

not been seized, and that the Eighth Amendment claim failed because she

was not a prisoner. Id. at *3–5. As for the Fourteenth Amendment claim, the

district court found that Tyson satisfied the injury requirement under § 1983.

Id. at *5. The court also emphasized that Tyson had “not . . . consented to,

or invited, Deputy Boyd’s sexual assault” and that “Deputy

Boyd . . . abuse[d] his authority when he sexually assaulted Tyson.” Id. at

*4–5. Nevertheless, the district court concluded that Tyson’s right to bodily

integrity had not been violated because Deputy Boyd had not physically

3

These criminal proceedings are ongoing.

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No. 21-40590

touched her, and thus the alleged conduct did not shock the conscience. Id.

at *7.

The court dismissed the remaining claims—a Monell claim against the

County and a claim of inadequate hiring, training, and supervision against the

County and Sheriff—for lack of an underlying constitutional violation.

Tyson timely appealed the dismissal of her claims under the Fourth

Amendment and Fourteenth Amendment, as well as her claims against the

County and Sheriff.

II

We review the district court’s grant of summary judgment de novo. See

Petro Harvester Operating Co., L.L.C. v. Keith, 954 F.3d 686, 691 (5th Cir.

2020). Summary judgment is appropriate only if “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). We view the evidence in the light

most favorable to the non-movant, “drawing all justifiable inferences in [her]

favor.” Renwick v. PNK Lake Charles, L.L.C., 901 F.3d 605, 609 (5th Cir.

2018).

Deputy Boyd has invoked the defense of qualified immunity. That

doctrine “balance[s] two competing societal interests: ‘the need to hold

public officials accountable when they exercise power irresponsibly and the

need to shield officials from harassment, distraction, and liability when they

perform their duties reasonably.’” Joseph ex rel. Estate of Joseph v. Bartlett,

981 F.3d 319, 328 (5th Cir. 2020) (quoting Pearson v. Callahan, 555 U.S. 223,

231 (2009)). The defense only immunizes public officials “from liability for

civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

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At summary judgment, an officer’s good-faith assertion of qualified

immunity shifts the burden of proof to the plaintiff to show that the defense

is unavailable. The plaintiff must present evidence “(1) that the official

violated a statutory or constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Morgan v. Swanson, 659

F.3d 359, 371 (5th Cir. 2011) (en banc) (quoting Ashcroft v. al-Kidd, 563 U.S.

731, 735 (2011)).

III

Although we have discretion to begin with either prong of qualified

immunity, see Callahan, 555 U.S. at 237, we think it beneficial to first consider

whether the facts “show the officer’s conduct violated a constitutional

right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Tyson alleges a violation

of her rights under the Fourth Amendment and Fourteenth Amendment.

“[A]ll claims that law enforcement officers have used excessive

force . . . in the course of an arrest, investigatory stop, or other ‘seizure’ of a

free citizen should be analyzed under the Fourth Amendment.” Graham v.

Connor, 490 U.S. 386, 395 (1989). However, “[t]he Fourth Amendment

covers only ‘searches and seizures.’” County of Sacramento v. Lewis, 523 U.S.

833, 843 (1998). Thus, where neither a search nor a seizure took place, the

claim falls outside the Fourth Amendment and comes instead within the

substantive due process component of the Fourteenth Amendment. Id. at

843–44 (analyzing excessive-force claim arising from fatal car crash under the

Fourteenth Amendment because there had been no seizure); United States v.

Lanier, 520 U.S. 259, 272 n.7 (1997).

Neither party suggests that there was a search here, thus we consider

only whether the alleged sexual abuse occurred during a seizure.

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No. 21-40590

A

“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 (1968)). Where, as here, the

alleged detainee had “‘no desire to leave’ for reasons unrelated to the police

presence, the ‘coercive effect of the encounter’ can be measured better by

asking whether ‘a reasonable person would feel free to decline the officers’

requests or otherwise terminate the encounter.’” Brendlin v. California, 551

U.S. 249, 255 (2007) (quoting Bostick, 501 U.S. at 435–36).

While no per se rules govern when an encounter with law enforcement

constitutes a seizure, see Florida v. Royer, 460 U.S. 491, 506 (1983),

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 (1980)). We have also given weight to an officer “blocking an

individual’s path”; “implicit constraints on an individual’s freedom as

would be caused by retaining an individual’s” possessions, and “statements

by officers that individuals are suspected of smuggling drugs.” United States

v. Berry, 670 F.2d 583, 597 (5th Cir. Unit B 1982).

Tyson argues that the consensual welfare check transformed into a

seizure because Deputy Boyd’s story about ticketing swingers for marijuana

possession indicated that he was investigating her for marijuana possession

and thus, that she was not free to leave. She testified that she believed he

could see her marijuana paraphernalia left out on the table through the

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No. 21-40590

window from where he was sitting; that he mentioned marijuana frequently

and without reason; and that he emphasized his “duty to issue a ticket.” She

argues that he had no reason to bring up marijuana other than because he had

seen her paraphernalia inside the house.

We have recognized that statements by an officer indicating that an

individual is suspected of illegal activity are persuasive evidence that an

objectively reasonable person would not feel free to leave. See Berry, 670 F.2d

at 597 (“Statements which intimate that an investigation has focused on a

specific individual easily could induce a reasonable person to believe that

failure to cooperate would lead only to formal detention.”); see also United

States v. Gonzales, 79 F.3d 413, 420 (5th Cir. 1996) (noting officers’ statement

“that the car [the defendant] was driving was suspected of being used to

transport drugs . . . . may have pushed the encounter, which was initially

consensual, to being a Terry stop”); United States v. Zukas, 843 F.2d 179, 182

(5th Cir. 1988) (“[W]hen the police officers . . . informed [the

defendant] . . . that he was suspected of smuggling drugs,” a seizure

occurred); United States v. Galberth, 846 F.2d 983, 990 n.11 (5th Cir. 1988)

(noting officer’s instruction that defendant be “pat [ ] down for ‘possible

narcotics’” effected a seizure); United States v. Hanson, 801 F.2d 757, 761

(5th Cir. 1986) (“[W]hen [the officer] . . . informed [the defendant] that

he . . . [was] suspected of carrying drugs, a reasonable person would not have

believed that he was free to go.”). In each of these cases the officers explicitly

stated a particularized suspicion of drug possession by the individual.

By contrast, we have rejected that a person was seized simply because

they assumed that a police officer suspected them of criminal activity. In

United States v. Mask, the defendant argued that he was seized when he

overheard the officers talking about his license report information and

inferred that the officers suspected him of criminal activity. 330 F.3d at 339.

We reasoned that, although the defendant “may have surmised . . . that the

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officers had come to suspect him of illegal activity[,] [ ] this alone gives us

insufficient reason to conclude that [he] was no longer free to leave.” Id.

Similarly, Tyson’s assumption that Deputy Boyd suspected her of

marijuana possession based on a story about other people caught possessing

marijuana is insufficient to effect a seizure. Deputy Boyd did not accuse

Tyson of drug possession nor explicitly indicate awareness of her drug

paraphernalia. And although he described a duty to ticket for possession, he

also said he would sometimes just confiscate the drugs and let the owner keep

going. Deputy Boyd’s story about ticketing attendees of a swinger party for

possession of marijuana would not have indicated to an objectively

reasonable, innocent person that they were suspected of wrongdoing.

Tyson also argues that she was seized because Deputy Boyd made

intimidating sexual advances while she was home alone. But she does not

argue that he ever told her she could not leave or otherwise attempted to

physically prevent her from terminating the encounter. An intimidating

police presence does not, standing alone, constitute a seizure. See Michigan

v. Chesternut, 486 U.S. 567, 575 (1988).

As a matter of law, the record does not support that Tyson was seized.

The district court did not err to dismiss her Fourth Amendment claim.

B

Having determined that Tyson was not seized, we turn to her claim

that the alleged sexual abuse violated her Fourteenth Amendment rights.

1

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

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Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981)). 4 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).

That is because the core of the right to substantive due process

protects against the state’s “exercise of power without any reasonable

justification in the service of a legitimate governmental objective.” Lewis,

523 U.S. at 846; see also Collins v. Harker Heights, 503 U.S. 115, 126 (1992)

(“[T]he Due Process Clause of the Fourteenth Amendment was intended to

prevent government [officials] ‘from abusing [their] power, or employing it

as an instrument of oppression.’” (quoting DeShaney v. Winnebago Cnty.

Dep’t of Social Servs., 489 U.S. 189, 196 (1989))). Because the state has no

4

In its recent holding that the Constitution does not confer the right to abortion,

the Supreme Court made clear that “[n]othing in [its] opinion should be understood to cast

doubt on precedents that do not concern abortion.” Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228, 2277–78 (2022).

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No. 21-40590

interest in sexually abusing its citizens, sexual abuse by a state official cannot

be justified by any legitimate governmental objective.

Here, Deputy Boyd allegedly visited Tyson alone at her home under

the pretense of a welfare check and coerced her to strip for his sexual

gratification. He further ordered her to show him her clitoris while he

masturbated to her exposed body. It is beyond dispute that no legitimate state

interest can justify an officer’s use of coercion to compel the subject of a

welfare check to expose her most private body parts for his sexual enjoyment.

Nor does Deputy Boyd argue that any legitimate state interest could justify

his instructions to Tyson to perform nonconsensual sexual acts while he

masturbated.

Moreover, this is not a case of recklessness, negligence, or overzealous

policing. See Lewis, 523 U.S. at 849. The record supports a premeditated

intent to introduce sexual abuse into the welfare check because Deputy Boyd

misrepresented to Tyson that he was on duty and searched the exterior of the

home for cameras immediately upon arrival. “[C]onduct intended to injure

in some way unjustifiable by any government interest is the sort of official

action most likely to rise to the conscience-shocking level.” Id. (emphasis

added). Deputy Boyd’s alleged sexual abuse shocks the conscience and

violated Tyson’s right to bodily integrity.

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 (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

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No. 21-40590

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.

Defendants also argue that Deputy Boyd’s conduct is merely verbal

harassment, which we have held does not, by itself, support a constitutional

claim. See, e.g., Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (“It is

clear that verbal abuse by a prison guard does not give rise to a cause of action

under § 1983.”); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) (same).

But the alleged sexual assault in this case involved far more than verbal

harassment. Nonconsensual stripping, prolonged nudity, and manual

manipulation of the privates for an officer’s sexual enjoyment are abusive sex

acts that physically affected Tyson’s body.

Deputy Boyd’s alleged conduct was an outrageous abuse of power that

shocks the conscience and violated Tyson’s right to bodily integrity.

2

Our holding that Deputy Boyd violated Tyson’s right to bodily

integrity is not enough to defeat the defense of qualified immunity. Tyson

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must demonstrate that the right was clearly established when the challenged

conduct occurred.

“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.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Reichle

v. Howards, 566 U.S. 658, 664 (2012)). Generally, plaintiffs point to “a

sufficiently clear foundation in then-existing precedent.” District of Columbia

v. Wesby, 138 S. Ct. 577, 589 (2018). “But that is not the only way to defeat

qualified immunity.” Villareal v. City of Laredo, 17 F.4th 532, 539 (5th Cir.

2021). “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 (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 (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)). “The central concept is that of ‘fair

warning.’” Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc)

(quoting Hope, 536 U.S. at 740).

In other words, “[q]ualified immunity shields an officer from suit

when [he] makes a decision that, even if constitutionally deficient, reasonably

misapprehends the law governing the circumstances [he] confronted.”

Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (per curiam) (emphasis added)

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(quoting Brosseau, 543 U.S. at 198). It does not immunize those officials who

commit novel, but patently “obvious,” violations of the Constitution. Hope,

536 U.S. at 745. The Supreme Court has recently affirmed the vitality of this

principle. See Riojas, 141 S. Ct. at 53–54 (reversing the grant of qualified

immunity where the violation was “obvious” because “no reasonable [ ]

officer could have concluded that” the alleged conduct was “constitutionally

permissible”); cf. McCoy v. Alamu, 141 S. Ct. 1364 (2021) (Mem.), granting,

vacating, and remanding, 950 F.3d 226 (5th Cir. 2020) (directing

reconsideration “in light of Taylor”).

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.”).

No degree of physical sexual abuse effected for a law enforcement officer’s

sexual gratification is justified by a legitimate governmental objective. Cf.

Riojas, 141 S. Ct. at 54 (noting the complete lack of evidence of “necessity or

exigency” justifying the officer’s conduct). 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.

We have little trouble finding that the constitutional offense was

obvious because the physical sexual abuse alleged here is a “particularly

egregious” and “extreme circumstance[]” of assault by a state official.

Riojas, 141 S. Ct. at 53–54. The record reflects that Deputy Boyd took

advantage of his office to become acquainted with Tyson. He used the

pretense of legitimate policy activity—a welfare check, in fact—to gain

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entrance to Tyson’s property. Upon arrival, he immediately ensured that

Tyson was isolated and that his conduct would not be observed by neighbors

or security cameras. Instead of proceeding to the welfare check, he then

sexually harassed Tyson for nearly two hours. Ultimately, he committed

physical sexual abuse by instructing her to perform nonconsensual physical

sex acts for his sexual gratification. He told her to strip her privates, to

manually manipulate her genitals, and to remain exposed while he

masturbated to ejaculation. That Deputy Boyd’s alleged physical sexual

abuse violated Tyson’s constitutional right to bodily integrity would have

been obvious to any reasonable officer.

Defendants argue that we have held allegations of “more extensive

sexual activity” insufficient to violate the right to bodily integrity. They cite

to one unpublished opinion that we find factually inapposite. See Copeland v.

Nunan, 250 F.3d 743, 2001 WL 274738 (5th Cir. 2001) (per curiam)

(unpublished).

In Copeland, we considered a prisoner’s allegations under the Eighth

Amendment that his rights were violated when a clinical pharmacist fondled

his penis and anus during a testicular examination that the prisoner requested

and during two subsequent occasions. 250 F.3d at *3. We held that the

pharmacist was entitled to qualified immunity because the prisoner “alleged

nothing beyond merely de minimis physical or psychological injuries.” Id. at

*2. By contrast, the defendants here do not challenge the district court’s

finding that Tyson’s significant psychological injuries satisfy the injury

requirement for her Fourteenth Amendment claim. See Tyson, 2021 WL

3519294, at *5. Moreover, the facts in Copeland—brief, sexual touching by a

clinical pharmacist during and subsequent to a testicular examination—are

distinct from the facts here—involuntary stripping; coerced self-touch; and

prolonged, nonconsensual exposure of a non-detainee’s privates while an

officer masturbated to ejaculation. Copeland “is too dissimilar . . . to create

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any doubt about the obviousness of [Tyson’s] right.” 5 Riojas, 141 S. Ct. at 54

n.2.

By their nature, cases addressing the most flagrant forms of

unconstitutional conduct seldom rise to the court of appeals. See McCoy, 950

F.3d at 236 (Costa, J., dissenting in part). When they do, the obviousness

exception “plays an important role in . . . ensur[ing] vindication of the most

egregious constitutional violations.” Id. No reasonable officer could believe

that it was constitutionally permissible to use the pretense of legitimate police

activity to sexually abuse a person by coercing her to perform physical sex

acts for the officer’s sexual gratification. We hold that Tyson’s right against

physical sexual abuse by a government official was clearly established.

C

Deputy Boyd argues that, even if his alleged sexual abuse of Tyson was

a clearly established violation of her constitutional rights, he cannot be held

liable because he did not act under color of law.

“It is firmly established that a defendant in a § 1983 suit acts under

color of state law when he abuses the position given to him by the State.”

West v. Atkins, 487 U.S. 42, 49–50 (1988). We have addressed the color-of-

law requirement twice before in similar circumstances. In Bennett v. Pippin,

5

Defendants also cite three district court decisions. See Guillot v. Castro, No. CV

17-6117, 2018 WL 3475294 (E.D. La. July 19, 2018); Chestang v. Alcorn State Univ., 820 F.

Supp. 2d 772 (S.D. Miss. 2011); Mims v. Oliver, No. CV H-15-644, 2017 WL 3034032 (S.D.

Tex. July 18, 2017), report and recommendation adopted, No. CV H-15-644, 2017 WL 3575706

(S.D. Tex. Aug. 17, 2017). The cases are factually inapposite. All three considered

allegations of brief sexual touching over a fabric barrier. See Guillot, 2018 WL 3475294, at

*1; Chestang, 820 F. Supp. 2d at 779–80; Mims, 2017 WL 3034032, at *1. That type of

misconduct is not before us. None of the cases discuss the acts of sexual abuse alleged here:

nonconsensual stripping, prolonged nudity, coerced self-touch, and masturbation. These

cases do not leave a reasonable official with uncertainty whether the Constitution allowed

him to use his authority to coerce a person to perform sexual acts for his gratification.

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we held that a sheriff acted under color of law when he questioned the suspect

of a criminal investigation on the porch of her home then allegedly returned

later in the evening and sexually assaulted her. 74 F.3d 578, 589 (5th Cir.

1996). Although the alleged sexual assault occurred hours after the sheriff

performed his official duty of questioning the plaintiff, we found a nexus

between the assault and the sheriff’s abuse of his official authority. Id. We

recognized that the sheriff’s “relationship with [the plaintiff] grew out of

[his] investigation.” Id. at 586. In addition, he used the authority of his office

to determine her address and that she would be home alone. Id. at 589. And,

during the assault, he coerced the plaintiff into compliance by implying that

he was not subject to the rule of law because of his official office, stating: “I

can do what I want, I’m the sheriff.” Id. We also recognized that implicit

coercion resulted from the plaintiff’s status as a suspect in the sheriff’s

investigation, even though the sheriff did not explicitly verbalize a threat

about the investigation in order to effectuate the assault. Id.

A decade later, we held that an assistant city attorney (ACA) acted

under color of law when he sexually assaulted two women in his private

office. See United States v. Dillon, 532 F.3d 379, 386 (5th Cir. 2008). There,

the ACA also “took advantage of his position to initially become acquainted

with his victims.” Id. He similarly ensured that the women were alone and

secluded by luring them to his office. Id. at 382. And we again recognized

the ACA’s indirect references to his power lent “an air of official authority”

to the assault, even though he “never explicitly mentioned his position as an

ACA” during the assault. Id. at 386–87. For example, with respect to one

plaintiff that sought help getting her son released on parole, we held that the

ACA’s statement that he knew “a lot of police officers and he [could] have

anybody arrested” was an implicit threat that reasonably “left her with the

impression he could have her son re-arrested at any time.” Id. at 383.

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By contrast, we held that officers did not act under color of law where

they did not use official power to facilitate their actions. See, e.g., Townsend

v. Moya, 291 F.3d 859, 860 (5th Cir. 2002) (holding that prison guard did not

act under color of law when he stabbed inmate during game of horseplay

unrelated to guard’s official duties); Delcambre v. Delcambre, 635 F.2d 407,

408 (5th Cir. Unit A Jan. 1981) (holding that on-duty chief of police did not

act under color of law when he assaulted his sister-in-law at police station

because assault arose from purely private family dispute).

The facts of this case are more akin to Bennett and Dillon. As in those

cases, Deputy Boyd’s alleged relationship with Tyson grew out of legitimate

police activity—Wade Tyson’s request for a welfare check on his wife. See

Bennett, 74 F.3d at 586; see also Dillon, 532 F.3d at 386. Deputy Boyd then

allegedly used the authority of his office to determine Tyson’s address,

whether she would be home alone, and whether she had security at her home.

See Bennett, 74 F.3d at 589. Like the ACA in Dillon, he relied on the pretense

of legitimate activity—here, a wellness check—to maneuver Tyson to a more

secluded part of her home. See 532 F.3d at 382.

And as in Bennett and Dillon, Deputy Boyd interwove sexual advances

with his authority as a law enforcement officer, lending an “air of official

authority” to the alleged sexual assault. Dillon, 532 F.3d at 386–87; see

Bennett, 74 F.3d at 589. For example, Deputy Boyd coupled a story about his

duty as an officer to ticket attendees of a swinger club for drug possession,

with inappropriate details about the swinger club and related questioning

about Tyson’s sex life with her husband. As another example, Deputy Boyd

told Tyson that he and fellow officers had been watching her in a restaurant

and talking about “what they would like to do to [her].” This statement

reasonably left Tyson with the impression that she could not trust local law

enforcement because it was unclear which officers were connected with

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No. 21-40590

Deputy Boyd. The record supports a nexus between the alleged misconduct

and Deputy Boyd’s abuse of his official authority.

Deputy Boyd argues that he did not act under color of law because he

“was not on duty” and only Tyson’s “subjective belief” supports otherwise.

But “[w]hether an officer is acting under color of state law does not depend

on his on- or off-duty status at the time of the alleged violation.” Bustos v.

Martini Club Inc., 599 F.3d 458, 464 (5th Cir. 2010). Critically, Tyson’s

“subjective belief” that Deputy Boyd was acting under color of law was born

directly from his conduct leading her to think as much. See Gomez v. Galman,

18 F.4th 769, 776 (5th Cir. 2021) (holding that two off-duty officers in plain

clothes who did not identify themselves acted under color of law during

assault because their tone of voice reasonably led plaintiff to believe they were

police officers). We also reject that Deputy Boyd did not act under color of

law simply because he did not wear a uniform or weapon. Although a uniform

and weapon can support that an officer acted under color of law, neither is

required. Id. (holding that off-duty officers not in uniform acted under color

of law); Bennett, 74 F.3d at 583 (same). Deputy Boyd verbally identified

himself as a sheriff at the outset and wore a shirt identifying himself as a

sheriff during the incident. See Galman, 18 F.4th at 776

(“Defendants’ . . . identification of themselves as officers of the law [ ] adds

to the ‘air of official authority’ that pervaded the assault.” (quoting United

States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991))).

Finally, Deputy Boyd argues that he did not act under color of law

because “the ‘real reason’ for [his] visit to her house was not related to law

enforcement, but rather to engage in sexual activity.” But officials who act

for purely personal reasons do not “necessarily fail to act ‘under color of

law.’” Tarpley, 945 F.2d at 809 (quoting Brown v. Miller, 631 F.2d 408, 411

(5th Cir. 1980)). 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

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not acted under color of state law.” Bustos, 599 F.3d at 465 (emphasis

added).

Deputy Boyd acted under color of law during the alleged sexual abuse.

D

In summary, we hold that Deputy Boyd’s alleged sexual abuse violated

Tyson’s clearly established right to bodily integrity. Thus, Deputy Boyd is

not entitled to qualified immunity. We need not reach the claims against the

County and the Sheriff. We remand those issues to the district court to

address in the first instance. See Peña v. City of Rio Grande City, 879 F.3d 613,

621 (5th Cir. 2018).

* * *

We AFFIRM the order of the district court with respect to the

dismissal of the plaintiff’s Fourth Amendment claim. We REVERSE the

order of the district court with respect to the dismissal of the plaintiff’s

Fourteenth Amendment claim. And we REMAND for further proceedings.

21