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March 21, 2002


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 Columbia law.
I. Constitutional Claims
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 reasonable person.
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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