United States District Court, District of Columbia
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
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
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. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998)
(photograph exposing plaintiffs' naked body to others constituted tort of
intrusion upon seclusion); Sanchez-Scott v. Alza Pharmaceuticals,
103 Cal.Rptr.2d 410 (Cal.App. 2001) (presence of drug salesman in
examining room while woman undressed for physical examination amounted to
an intrusion upon seclusion).
The Court concludes that under District of Columbia law plaintiffs have
stated a claim for intrusion upon seclusion based on their allegations of
a strip and squat search ordered by the Marshals Service. Particularly
in light of Section 652B of the Restatement, specifically relied upon by
the court in Wolf, this Court concludes that the District of Columbia
courts would find that the alleged strip search of plaintiffs satisfies
the elements of the tort of an intrusion upon seclusion. Reading the
complaint in the light most favorable to the plaintiffs, they could
establish the three elements for a claim of intrusion upon seclusion
under District of Columbia law.
First, plaintiffs could show that the alleged strip and squat search
conducted by the Marshals Service invaded or interfered with —
visually and perhaps physically — their "interest" in remaining
clothed and shielding their naked bodies from others. Second, it is
apparent that plaintiffs have secluded their naked bodies within their
clothes. In the language of Comment c to Section 652B, one throws
clothes "about his person" to cover his body from others; thus,
plaintiffs secluded their bodies behind their clothes from the view of
others, and the Marshals Service allegedly intruded into that "place" and
those private concerns. Finally, it is clear that a strip search can be
humiliating and degrading. Being forced — allegedly without legal
justification — to strip and squat in view of law enforcement
officials to determine if one has any concealed contraband would be
highly offensive to a reasonable person. As the Seventh Circuit noted in
Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983), one of
the first federal appellate cases to consider the constitutionality of a
strip search of a person arrested for a misdemeanor, visual strip
searches are "demeaning, dehumanizing, undignified, humiliating,
terrifying, unpleasant, embarrassing, repulsive, signifying degradation
and submission." 723 F.2d at 1272 (citing Tinetti v. Wittke, 620 F.2d 160
(7th Cir. 1980)) ("In short, we can think of few exercises of authority
by the state that intrude on the citizen's privacy and dignity as
severely as the visual anal and genital searches practiced here.").
Accordingly, the Court concludes that the District of Columbia would
recognize an intrusion upon seclusion tort based on the actions of
the Marshals Service as alleged here, and that plaintiffs could establish
the elements of that tort.*fn3
Even if plaintiffs can establish the elements of intrusion upon
seclusion, defendant counters that District of Columbia law limits the
availability of invasion of privacy to the bounds recognized by the
United States Constitution. See Defendant's Reply at 2. Defendant reads
Jackson v. District of Columbia, 412 A.2d 948 (D.C. 1980), as holding
that in order to prove a claim for invasion of privacy, the invasion must
rise to the level of a violation of the right to privacy protected by the
Constitution. In Jackson, the District of Columbia Court of Appeals
stated that "the Jacksons are precluded from bringing a tort claim for
invasion of privacy, for the right of privacy is cognate to the values
and concerns protected by constitutional guarantees." 412 A.2d at 954
(quoting Afro-American Publishing Co. v. Jaffe, 366 F.2d 649, 654 (D.C.
Cir. 1966) (en banc)). As the defendant then puts it, "plaintiffs here
must be able to show that the Deputy Marshals violated the Constitution
in order to assert a tort claim based on District of Columbia law."
Defendant's Reply at 3.
Defendant misreads Jackson. There, plaintiffs brought suit for
mistaken arrest, raising claims for false arrest, false imprisonment,
negligence, and invasion of privacy based on local police and federal
agents breaking into the house of the wrong Michael Jackson. The family
brought damages suits based on the mistaken arrests in both Superior
Court and United States District Court, the latter a constitutional
claim. The federal court granted summary judgment against plaintiffs,
which was affirmed on appeal, finding that the arrest was reasonable and
based on probable cause. See Jackson v. Young, 600 F.2d 280 (D.C. Cir.
1979). The District of Columbia Court of Appeals, relying on the federal
court ruling, found that collateral estoppel precluded the claims brought
in Superior Court:
In addition to the (uncontested) bar against
reasserting a deprivation of the constitutional right
of privacy, we conclude that the Jacksons are
precluded from bringing a tort claim for invasion of
privacy, for "(t)he right of privacy . . . (is)
cognate to the values and concerns protected by
constitutional guarantees." Afro-American Publishing
Co. v. Jaffe, 125 U.S.App.D.C. 70, 75, 366 F.2d 649,
654 (1966) (en banc) (footnote omitted). A tort claim
for invasion of privacy may be successfully asserted
only if the claimant has suffered an unreasonable and
serious interference with protected interests. Id.
The district court's findings that the arrest was
reasonable and that the mistake was unintentional
accordingly preclude this claim.
412 A.2d at 954 (emphasis added).
Hence, the holding of Jackson is a routine application of collateral
estoppel principles — because the federal court held that the
arrest was reasonable and the mistake unintentional, the arrest did not
rise to an unreasonable and serious interference of a protected
interest, which is a key element for an invasion of privacy claim, and
plaintiffs were precluded from relitigating that issue in Superior Court.
Jackson does not hold broadly that a tort claim for invasion of privacy
can only be brought if the allegations would also be a deprivation of the
constitutional right to privacy, and defendant's selective quote from
Jackson does not support that proposition. Jackson simply does not
address the situation here, where no prior judicial resolution of
reasonableness has already been made.
To the extent, then, that defendant's point is that a claim for
intrusion upon seclusion which is otherwise actionable under state
— here, District of Columbia — law is barred under the FTCA
because the challenged conduct also violates the Constitution, that point
is not well-taken. See, e.g., Rhodes v. United States, 55 F.3d 428, 432
n. 5 (9th Cir. 1995) (FTCA action permitted based on conduct violative of
Constitution and also constituting false imprisonment under state law);
Garcia v. United States, 896 F. Supp. 467, 474-75 (E.D.Pa. 1995) (fact
that FTCA does not waive sovereign immunity for constitutional claims
does not bar state common law tort claims under FTCA for strip search);
see also Carlson v. Green, 446 U.S. 14, 19-20, 23 (1980) (observing that
identical conduct could give rise to both FTCA and Bivens claims).*fn4
Plaintiffs may proceed with an intrusion upon seclusion claim under the
FTCA notwithstanding that the alleged conduct might also violate the
Fourth Amendment and therefore support a constitutional tort claim
distinct from the FTCA.
Indeed, even if defendant were correct in asserting that plaintiffs
must show that the Marshals Service violated the Constitution in order to
prevail on their invasion of privacy (i.e., intrusion upon seclusion)
claim, it is likely that plaintiffs could do so. If the Deputy Marshals
did not have an individualized reasonable suspicion that plaintiffs
— charged only with misdemeanors of unlawful entry — were
concealing weapons, drugs, or other contraband, the strip and squat
search may have violated the Fourth Amendment's prohibition against
unreasonable searches. There is a significant body of case law holding
that police or prison officials may not strip search an individual
arrested for misdemeanors or other minor offenses unless there is
reasonable suspicion that the individual is concealing contraband or
weapons. Most federal courts of appeals have ruled — some dating
back over two decades — that strip searches of individuals arrested
for minor offenses violate the Fourth Amendment unless the individual is
reasonably suspected of concealing weapons, drugs, or other contraband.
See, e.g., Wilson v. Jones, 251 F.3d 1340 (11th Cir. 2001) (strip search
of woman arrested for drunk driving unconstitutional); Roberts v. Rhode
Island, 239 F.3d 107, 112 (1st Cir. 2001) (strip search of arrestee for
minor offense held unconstitutional); Masters v. Crouch, 872 F.2d 1248
(6th Cir. 1989) (police may not strip search individuals arrested for
non-violent minor offenses when there is no reasonable basis for
believing that the arrestee is carrying weapons or contraband); Weber v.
Dell, 804 F.2d 796, 802 (2nd Cir. 1986) ("Fourth Amendment precludes
prison officials from
performing strip searches of arrestees charged with
misdemeanors or other minor offenses absent reasonable suspicion that the
arrestee is concealing weapons or other contraband."); Jones v. Edwards,
770 F.2d 739, 741 (8th Cir. 1985) (body cavity search of individual
charged with misdemeanor ruled unconstitutional); Stewart v. County of
Lubbock, 767 F.2d 153 (5th Cir. 1985) (holding strip search policy
unconstitutional as applied to misdemeanants awaiting bond absent
reasonable suspicion); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir.
1984) (strip search of individual arrested for minor traffic offense held
unconstitutional absent reasonable suspicion that arrestee carrying or
concealing contraband); Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984)
(strip search of individual with expired car tags unconstitutional where
no circumstances indicated he might have been concealing contraband or
weapons); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir.
1983) (striking down Chicago's strip search policy as applied to
misdemeanors); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir. 1981)
(strip search of a woman charged with driving while intoxicated was
unconstitutional); see also Newkirk v. Sheers, 834 F. Supp. 772, 787-89
(E.D.Pa. 1993) (strip searches of minor females arrested for criminal
trespass at animal rights protest were unconstitutional).
Although almost every federal court of appeals has ruled that strip
searches of individuals arrested for nonviolent misdemeanors or other
minor offenses violate the Fourth Amendment absent "reasonable
suspicion," this Circuit has yet to address the issue. The District
Court reached the issue in Doe v. Berberich, 704 F. Supp. 269 (D.D.C.
1988), which involved a strip search of two women arrested on federal
park property for smoking marijuana in their car. Before they placed the
women in a holding cell, the officers ordered strip searches because they
suspected the women were concealing contraband or evidence. In an action
for constitutional violations under 42 U.S.C. § 1983 and tort claims
under the FTCA,*fn5 the court found that the officers had reasonable
cause to strip search the women because they had been smoking marijuana
and marijuana was found in the car. Id. at 271. The court's central
holding is in line with virtually every other decision on this issue:
"[t]here must be reasonable suspicion that the category of offenders
subject to strip searches might possess weapons or contraband." Id. The
court then held that the strip searches were constitutional even though
plaintiffs were charged only with misdemeanors, because the police had
complied with governing regulations and had reasonable suspicion to
believe plaintiffs were concealing contraband or drugs, given the nature
of the offense of possession of a controlled substance. Id. at 272.
That is not to say that this wealth of case law holding that strip
searches of arrestees charged with misdemeanors or other minor offenses
are unconstitutional absent reasonable suspicion means that plaintiffs
can proceed with a claim for violation of their constitutional rights.
The law is clear that constitutional tort claims are not actionable under
the FTCA, see FDIC v. Meyer, 510 U.S. at 477-78, and plaintiffs have
brought this action solely under the FTCA. But their claims for common
law invasion of privacy — specifically the tort of intrusion upon
seclusion — are actionable under the FTCA, and survive defendant's
motion to dismiss. Even if defendant were right (which it is
not) in interpreting Jackson to make an invasion of privacy (or intrusion
upon seclusion) claim coextensive with a constitutional tort claim, that
would not preclude pursuit of the common law claim under the FTCA. And at
this early stage of the proceedings, in light of the overwhelming authority
questioning the constitutionality of strip and squat searches like those
alleged here, the Court simply cannot conclude that plaintiffs have
failed to state a claim for intrusion upon seclusion, even if they were
required to show a violation of the constitutional right to privacy in
order to do so.
When assessing a motion to dismiss under Rule 12(b)(6), plaintiffs'
factual allegations must be presumed true and should be liberally
construed in their favor. Phillips v. Bureau of Prisons, 591 F.2d 966,
968 (D.C. Cir. 1979); Alexander v. FBI, 971 F. Supp. 603, 607 (D.D.C.
1997). Plaintiffs must be given every favorable inference that may be
drawn from their allegations of fact. Scheuer v. Rhodes, 416 U.S. 232,
236 (1974). The complaint should be dismissed only if it appears beyond
doubt that no set of facts proffered in support of plaintiffs' claim
would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46
(1957); Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987).
Here, the Court liberally construes plaintiffs' invasion of privacy
claim as one for intrusion upon seclusion. Moreover, the allegation of a
strip and squat search without reasonable suspicion that plaintiffs were
concealing weapons or contraband satisfies the elements of intrusion upon
seclusion as stated in the Restatement and Wolf v. Regardie. Although
the Court reaches no conclusion as to the merits of plaintiffs' claims,
it finds that they have sufficiently stated claims — invasion of
privacy under the specific prong of intrusion upon seclusion — for
which relief can be granted under the FTCA. Thus, the Court dismisses
plaintiffs' constitutional claims for unreasonable searches under the
Fourth Amendment, and dismisses plaintiffs' claims for discriminatory
searches in violation of their equal protection rights. However,
plaintiffs' claims under the Federal Tort Claims Act for intrusion upon
seclusion may go forward.
Defendant's motion to dismiss is therefore granted in part and denied
in part. A separate order will be issued on this date.
For the reasons stated in the Memorandum Opinion issued on this date,
it is hereby ORDERED that:
1. Defendant's motion to dismiss plaintiffs' claims brought under the
Federal Tort Claims Act for an "unlawful search" based on violations of
the Constitution is GRANTED.
2. Defendant's motion to dismiss plaintiffs' claims brought under the
Federal Tort Claims Act based on an alleged denial of equal protection
under the Constitution is GRANTED.
3. Defendant's motion to dismiss plaintiffs' claims brought under the
Federal Tort Claims Act for invasion of privacy, specifically the tort of
intrusion upon seclusion, is DENIED.