In 2014, when Virginia resident Trey Sims was 17 years old, he was accused of sending an explicit video to his then 15-year-old girlfriend. Disapproving of their relationship, the girl’s mother performed a simple search and discovered the video, reporting Sims to authorities. He was charged with manufacturing and distributing child pornography. The girl, who had initiated the exchange by sending nude photographs of herself, was never charged.
Sims was first confined to his home and was only allowed to leave to go to school and back. He was barred from using his cell phone or any social media. Eventually, the charge was dismissed because the court couldn’t prove Sims’ age at the time the video was sent. However, later, Abbott was instructed to arrest him and hold him at a juvenile center.
It was there that Detective David E. Abbott Jr. forced Sims to pull down his pants in order to compare his anatomy with the images on the girl’s cell and took a nude picture of him, according to a lawsuit filed by Sims in May 2016. A search warrant was issued just prior authorizing Abbott to take pictures of Sims’ nude body, ‘including his erect penis.’
Abbott also sought a second warrant, according to documents, the day after Sims was arraigned on child pornography and possession charges. “Abbott informed Sims’ attorney that Abbott again proposed to take photographs of [Sims’] erect penis” to be admitted into evidence. If Sims was unable to comply with the demand, Abbott asked that he be taken to a nearby hospital “to give him an erection-producing injection.” A Virginia magistrate authorized Abbott to take the additional photographs, but before the warrant was issued, the Manassas City Police Department released a statement saying it was against department policy to pursue “invasive search procedures of suspects in cases of this nature.”
Later, Abbott was accused of molesting two young boys in an unrelated case. He committed suicide in 2015 just prior to being arrested and before Sims’ 2016 lawsuit. Because he could no longer hold Abbott accountable, Sims filed his suit against Kenneth Labowitz, the administrator of Abbott’s estate, as well as Claiborne Richardson II, the assistant Prince William commonwealth’s attorney who Sims claims originally instructed Abbott to get the warrant.
The district court decided that Labowitz was entitled to immunity and dismissed the complaint, so Sims’ filed an appeal. This month, the U.S. Court of Appeals issued a reversal of the district court’s position, stating, “Construing the facts in the light most favorable to Sims, a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment.”
Labowitz “maintains that Sims failed to produce sufficient facts to support a Fourth Amendment violation because Abbott’s search did not place him at risk of “physical harm, and because the search did not physically invade Sims’ body.” The appeals court disagreed, responding, “We cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others.”