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HELTON v. U.S.
March 21, 2002
SHAUNA HELTON, ET AL. PLAINTIFFS,
UNITED STATES OF AMERICA.
The opinion of the court was delivered by: John D. Bates, United States District Judge.
Plaintiffs in this action brought against the United States
("defendant") exclusively under the Federal Tort Claims Act ("FTCA") are
five women who were arrested for unlawful entry in connection with an
"anti-fur" demonstration at the Neiman Marcus store at Mazza Gallerie
Mall. Complaint ¶ 5. They allege that they were placed in United
States Marshals Service custody, and that prior to arraignment they were
compelled "to remove clothing and submit to a strip and squat search."
Id. ¶ 6, ¶ 8. They further allege that six men arrested with
them were not subjected to such searches, and that the Marshals Service
routinely subjects women, but not men, to pre-arraignment strip and squat
searches. Id. ¶ 9, ¶ 10. Plaintiffs seek compensatory damages
of $1 million each for injuries suffered as a result of these "unlawful
searches and invasions of privacy." Id. ¶ 11.
Defendant moves to dismiss pursuant to Fed.R.Civ.P.12(b)(6) for failure
to state a claim upon which relief can be granted. Defendant contends,
first, that plaintiffs cannot bring a constitutionally based tort claim
against the United States under the FTCA, and second, that plaintiffs
have failed to state a claim for invasion of privacy under District of
In their Opposition, plaintiffs do not even respond to defendant's
position that constitutional claims cannot be brought against the United
States under the FTCA, and thus plaintiffs effectively concede the
point. That is for good reason, inasmuch as the law is clear that the
FTCA does not waive the sovereign immunity of the United States for
constitutional claims. See FDIC v. Meyer, 510 U.S. 471, 477-78 (1994);
Clemente v. United States, 766 F.2d 1358, 1363 (9th Cir. 1985), cert.
denied, 474 U.S. 1101 (1986): Laswell v. Brown, 683 F.2d 261, 267-68 (8th
Cir. 1982), cert. denied, 459 U.S. 1210 (1983); Birnbaum v. United
States, 588 F.2d 319, 327-28 (2d Cir. 1978). Plaintiffs' basic unlawful
search claim derives from familiar search and seizure principles under
the Fourth Amendment to the Constitution, and the contention that
plaintiffs were subjected to strip and squat searches, while male
detainees were not, raises an equal protection argument grounded in the
Fifth Amendment. Plaintiffs' claim that they were subjected to "unlawful
searches," which thus appears to be based on Fourth and Fifth Amendment
principles, is therefore dismissed.*fn1
Plaintiffs' attempt to establish some vague independent tort of
"unlawful search" that can survive dismissal is unavailing. They concede
that no such tort is recognized in the District of Columbia, see
Opposition at 4, and offer no basis upon which this Court should recognize
one in the first instance. Indeed, except to the extent that such a
common law tort might be based on constitutional principles — and
thus not be within the scope of the FTCA — it is not clear that it
would differ in any material respect from the invasion of privacy tort
plaintiffs already pursue in this action. The Court therefore declines
plaintiffs' invitation to create a new tort for "unlawful search" not
heretofore recognized in the District of Columbia.
II. Invasion of Privacy Claim
The resolution of defendant's motion to dismiss the invasion of privacy
claim under the FTCA is not so simple. Initially, defendant misstated
plaintiffs' invasion of privacy claim as one for "publicity that places
one in a false light," claiming that plaintiffs had not satisfied the
basic elements of that tort under District of Columbia law. Defendant's
Memorandum at 5. Plaintiffs, however, counter that they actually raise
claims of invasion of privacy for "intrusion upon their solitude and
seclusion," which is distinct from a "false light" tort. Plaintiffs'
Opposition at 2. As the District of Columbia Court of Appeals has
stated, "[i]nvasion of privacy is not one tort, but a complex of four,
each with distinct elements and each describing a separate interest
capable of being invaded." Wolf v. Regardie, 553 A.2d 1213, 1216-17
(D.C. 1989). The threshold question, then, is whether plaintiffs have
stated a claim satisfying the basic elements of the "intrusion upon
seclusion" prong of the invasion of privacy tort.
In Wolf, the District of Columbia Court of Appeals adopted Section 652B
of the Restatement (Second) of Torts (1977) and its characterization of a
tort for "intrusion upon seclusion":
One who intentionally intrudes, physically or
otherwise, upon the solitude or seclusion of another
or his private affairs or concerns, is subject to
liability to the other for invasion of his privacy, if
the intrusion would be highly offensive to a
553 A.2d at 1217. The court then explained the tort in more detail:
The tort of intrusion upon seclusion has three
elements: (1) an invasion or interference by physical
intrusion, by use of a defendant's sense of sight or
hearing, or by use of some other form of investigation
or examination; (2) into a place where the plaintiff
has secluded himself, or into his private or secret
concerns; (3) that would be highly offensive to an
ordinary, reasonable person.
Id. (citations omitted). The court observed that "[u]nlike some other
types of invasion of privacy, intrusion does not require as an essential
element the publication of the information obtained." Id. (citations
omitted). "In fact," the court added, "the acquisition of information is
not a requisite element of a § 652B cause of action. Rather, it is
the nature of the intrusion which initially fixes liability." Id.
(citation and footnote omitted).
The court in Wolf suggested some of the circumstances in which the tort
of intrusion upon seclusion could arise, including harassment, peeping
through windows, eavesdropping on private conversations, entering a
person's home without permission, or secretly searching a person's
belongings. Id. at 1217-18 (citations omitted). District of Columbia
case law has not defined the precise parameters of the tort. However,
although the District of Columbia courts have yet to address whether an
"unlawful" strip search would satisfy the elements of an intrusion upon
seclusion tort, other courts have recognized similar physical or visual
intrusions upon a person's body as rising to the level of possible
intrusions upon seclusion. See, e.g., Borse v. Piece Good Shops, Inc.
963 F.2d 611, 621 (3rd Cir. 1992) ("[m]onitoring collection of urine
samples appears to fall within the definition of an intrusion upon
seclusion because it involves the use of one's senses to oversee the
private activities of another"); Hidey v. Ohio State Highway Patrol,
689 N.E.2d 89, 92-93 (Ohio App. 1996) (forcing plaintiff at traffic stop
to pull pants out to observe buttocks and to unbutton blouse to expose
breast in search for drugs);*fn2 Stockett v. Tolin, 791 F. Supp. 1536
(S.D.Fla. 1992) (grabbing breasts and running fingers up shirt
constituted intrusion of plaintiff's physical solitude under Florida
law); Lake v. ...
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