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Hart v. Miller4/19/2000
onable bodily intrusions and the right to be free from unwelcome sexual fondling, touching or other "egregious sexual contact." See Rogers, 152 F3d at 795-96. Most often, these rights have been applied in the situations where the officer has made an outright sexual comment or contact with the plaintiff. See e.g., United States v. Lanier, 520 US 259, 267-71, 117 SCt 1219, 1226-28, 137 LEd2d 432, 442-46 (1997) (involving the sexual assault by a state judge); McWilliams v. Fairfax County Bd. of Supervisors, 72 F3d 1191, 1197 (4thCir 1996), cert. denied, 519 US 819, 117 SCt 72, 136 LEd2d 32 (1996) (discussing abusive sexual conduct in a state facility); Doe v. Taylor Indep. Sch. Dist., 15 F3d 443, 450-52 (5thCir 1994) (finding liberty interest in bodily integrity in a case involving sexual abuse of school children by a teacher); Sepulveda v. Ramirez, 967 F2d 1413, 1415-16 (9thCir 1992) (establishing right to bodily privacy case where parolee observed while providing urine sample); Haberthur, 119 F3d at 723 (recognizing the right to be free from unwelcome sexual fondling, touching or other egregious contact where a police officer had fondled a woman's breasts). Only one case could be found that contained facts similar to the present case. In Reeve v. Oliver, 41 F3d 381 (8thCir 1994), the court was faced with the intentional touching and rubbing of Reeve's back and staring at Reeve's chest by a Des Moines, Iowa Animal Control Officer. Reeve's ultimately brought an action against Officer Oliver alleging that he "deprived her of 'liberty and privacy interests and equal protection rights in being free from sexual harassment by a State actor.'" Id. at 382. The Eighth Circuit Court of Appeals found that Reeve had no claim and held,
[Reeve] has failed to allege a constitutional violation. Though Oliver's alleged conduct may have been improper, it does not rise to the level of a constitutional violation. Reeve's arguments that she was somehow deprived of her Fourteenth Amendment rights of privacy, liberty, and equal protection are without merit. As we stated in Gregory v. City of Rogers, 974 F2d 1006, 1009 (8thCir 1992), cert. denied, [507 US 913], 113 SCt 1265, 122 LEd2d 661 (1993), "Many harms, though caused by a state actor, do not fall within the scope of section 1983, for section 1983 does not turn the Fourteenth Amendment into a font of tort law that supersedes the tort systems already available under individual state laws." Reeve must look to state law for a remedy. Id. at 383 (emphasis added). Hart has failed to show that she suffered a harm within the scope of § 1983.
[ ] The majority is saying that based upon Miller's prior alleged acts, intent is required under a § 1983 action. This analysis by the majority is totally outside the scope of a § 1983 action. "It is well established that specific intent is not a prerequisite to liability under § 1983." See Caballero v. City of Concord, 956 F2d 204, 206 (9thCir 1992) (citations omitted). In determining liability under § 1983, we must look to what happened during the particular encounter to determine whether a constitutional right has been violated. What does an analysis of Miller's intent based upon these other instances prove in this § 1983 action? I submit nothing.
[ ] Although Trooper Miller's conduct is not exemplary, that in and of itself does not equal a violation of a clearly established constitutional right. Basing a claim such as this on such a subjective basis as to what was intended by one looking at someone else, would seem to open up the flood gates to any ingenious theory for a § 1983 claim. Will we be next dealing with a mind reader? This decision, I submit, opens up a "font of tort law" in this jurisdiction; therefore, I would
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