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A Teen Sexting Case Revealed How Judges Let Police Invade Children’s Privacy

Jay Schweikert

Whether the police have the right to force your teenage son to
masturbate in front of them in order to incriminate himself is a
legal question few parents would think they’d have to
consider.

And yet Trey Sims’ legal guardians had to do exactly that.
In an effort to prosecute the 17-year-old for sexting his
15-year-old girlfriend, Manassas police detective David Abbott
obtained a search warrant authorizing him to take
“photographs of [Sims’] genitals,” including
“a photograph of the suspect’s erect penis.”
According to court documents, in the process of
executing the search warrant, Abbott took the teenager to a
juvenile detention center, took him to a locker room and, with two
uniformed, armed officers looking on, ordered Sims to pull down his
pants.

After taking pictures with his cell phone of the
teenager’s genitals, Abbot then ordered the minor to
masturbate so that he could take a picture of his erection. Sims
tried but failed to comply with the officer’s orders; Abbott
later threatened Sims’ lawyer that, if police couldn’t
get a picture of the teenager’s erection by forcing the kid
to masturbate, he would obtain a photo of the teenager’s
engorged genitals by subjecting him to “an erection-producing
injection” at a hospital.

The overcriminalization
of personal behavior and qualified immunity for officers is a
dangerous mix.

The facts of this case are outrageous, but sadly, they’re not
the product of any single bad actor or law. On the contrary, they
reflect a criminal justice system that’s structurally broken at
almost every level. And the only reason that police never obtained
the pictures they demanded under court order from Sims was that
there was a massive public outcry after news reports emerged about the case in 2014,
and the police let the search warrant expire. (Sims, however,
continued to face felony charges for sexting his girlfriend,
eventually living under probation for a year before the courts
dismissed those charges.)

It wasn’t until this month — more than three years after
Sims was taken to that locker room — that a federal appeals
court issued a decision in his favor: By a divided
2-1 vote, the court held that a reasonable police officer should
have known it was unlawful to order a teenage boy to masturbate in
front of him and other officers.

Notably, though, that meant that one judge felt that police
should, indeed, have the right to do force children to masturbate
in front of them in order to incriminate themselves.

First and foremost, the fact that Sims’ initial conduct was
criminalized at all speaks to the staggering breadth of substantive
overcriminalization. The activity for which Sims was charged was a
consensual, mutual exchange of nude pictures and videos between two
teenagers in a lawful relationship (in Virginia, it’s
legal
for a 17-year-old and 15-year-old to have sex).

Sexting between teenagers is commonplace, and often an innocuous part of flirtation and sexual
expression
in the digital age. If the taking of or delivery of
pictures were non-consensual, or if one party was of the age of
majority, that would be a legal issue to address; for parents, such
behavior might well be concerning, if not deserving of some
proportionate punishment. But to brand Sims a child pornographer
under Virginia law is to say that a teenager’s consensual, (mostly)
non-harmful conduct merits one of our society’s most severe
punishments and social stigmas.

The criminal law is a blunt instrument and incarceration is an
extreme remedy; both are poorly equipped to address nuanced social
problems and should be a last resort for the most dangerous
antisocial behavior. Instead, they’ve become the reflexive default
for any behavior that certain segments of society find
problematic.

And the legislative predilection for criminalization is
compounded by the judiciary’s failure to insist that the government
offer any justification for putting someone behind bars. In the
vast majority of cases, the state doesn’t have to show that
criminalization serves any legitimate interest, and the defendant
is not even permitted to introduce evidence to the
contrary.

Further, the obscene invasion of Sims’ privacy shows just
how permissive courts are in letting cops search you almost
anywhere, in any manner, and for any reason. Even when police have
unlawful motives for stopping you — like racial discrimination —
a detention is still legally permissible so
long as there’s probable cause for something, including minor
traffic violations. Alerts from drug-sniffing dogs (i.e.,“probable cause creating” dogs) are
nearly always enough for a search, even if such alerts are barely more reliable than a coin flip.

And before admitting you to jail, state officials may conduct an invasive strip search,
no matter what you were arrested for (even traffic offenses), and
regardless of whether there’s any reason to suspect you have
contraband.

So it’s outrageous but ultimately unsurprising that the
judicial system’s cavalier disregard for personal privacy, as
guaranteed by the U.S. Constitution, has led us to the point that a
judge can authorize and police will execute a “search”
that effectively amounts to the sexual assault of a teenager.
Whatever the supposed harm of Sims’ underlying behavior,
there is no doubt that a police officer forcing a teenager to
masturbate in front of armed adults under threat of a frightening
medical procedure is vastly worse than a teenager consensually
sexting his girlfriend.

And the difficulty that Sims has faced in vindicating his
constitutional rights shows how police operate with almost no
accountability for their actions. Following his ordeal, Sims filed
a civil rights lawsuit against Abbott, arguing that his
“search” violated his right of privacy under the Fourth
Amendment. Incredibly, the district court dismissed Sims’
complaint, finding that the detective was entitled to
“qualified immunity” for his actions. In other words,
even assuming that ordering a teenager to masturbate in front of
the police was unlawful, the law was not “clearly
established” enough for Abbott to know for sure that it was
unlawful.

In qualified immunity doctrine, “clearly established
law” usually requires not just a clear legal rule, but a
prior case with functionally similar facts. The perverse result of
this standard is that police will get immunity in the most
egregious cases, precisely for the reason that the most extreme
kind of misconduct is less likely to have occurred in the past.

The Fourth Circuit did reverse this dismissal and permit
Sims’ case to proceed, but even that was a close call. The
panel decision was 2-1; the argument made in the dissent, had it
been accepted by one other judge, would have granted Abbott total
immunity, going so far as to say that Abbott’s actions were
lawful.

Sims’ case shows that we have a system in which the
legislative branch is permitted to criminalize whatever it wants,
with effectively no judicial oversight; police investigations are
invasive, unchecked, and can cause far greater harm than the
underlying criminal act; and it is nearly impossible to hold police
liable for unlawful misconduct. Until we address those systemic
problems, we should expect more tragic cases like this one.

Jay
Schweikert
is a policy analyst with the Cato Institute’s
Project on Criminal Justice.