Privacy Law

4th Circuit allows claim against estate of cop for taking photos of teen's penis in sexting probe

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4th Circuit

The 4th U.S. Circuit Court of Appeals in Richmond, Virginia.

A federal appeals court has reinstated a lawsuit that claims a police officer violated a teen’s Fourth Amendment rights by ordering the youth to masturbate for a penis photograph in a sexting investigation.

The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals reinstated the claim in a suit by a Virginia man who was 17 when the officer transported him to a juvenile detention center for the penis photo, according to the Dec. 5 opinion (PDF). The Washington Post and Ars Technica have stories.

The officer, David Abbott, allegedly wanted to compare an erection photo to a photo the teen had sent to his 15-year-old girlfriend. Abbott and two other armed officers were allegedly present during the photo.

Abbott committed suicide in 2015 before officers could arrest him on unrelated charges of soliciting sex acts on via text message with a 13-year old boy, according to Ars Technica. Abbott was a member of an internet crimes against children task force. The suit was against his estate.

The appeals court said a reasonable police officer would have known that attempting to obtain a photo of a minor’s erect penis, by ordering him to masturbate in the presence of others, would unlawfully invade the youth’s right of privacy under the Fourth Amendment.

The youth was unable to achieve an erection by masturbating, but photos were still taken. Abbott then sought to forcibly inject the youth with erection-producing medication, the suit had alleged. He obtained a search warrant, but it was not carried out amid publicity. The first photos were never used in the case.

A charge of felony possession of child pornography against the youth was dismissed after he completed terms of probation.

The appeals court upheld dismissal of the claim for attempting to medicate the youth for more photos, reasoning that “mere verbal threats directed toward [the youth’s] attorney did not rise to the level of a constitutional violation.”

A judge had previously dismissed a claim against the prosecutor who approved the search warrant, and the plaintiff did not appeal that decision.

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