U.S. 5th Circuit holds officer who was present but did not perform roadside body cavity search can potentially be liable for §1983 claim under bystander liability theory

Hamilton v. kindred, No. 16-40611(5th Cir. January 12, 2017)

This is an interlocutory appeal in a suit involving alleged unlawful body cavity searches of two women and the trial court’s denial of a Deputy Sheriff’s claim of qualified immunity.

Two women, Hamilton and Randle were pulled over by DPS Officer Turner for speeding. Turner smelled marijuana and asked the women to exit the vehicle. Both were wearing bikini bathing suits with shorts.  Turner believed he saw one of the women stick something into the front of her shorts. Turner did not allow the women to cover themselves before exiting the vehicle. He used his radio to request help from local law enforcement and a female officer to conduct a search of the women. A female Sheriff’s deputy, Bui, and another male deputy, Kindred, arrived on scene.   Bui searched the women while the male officers stood behind the patrol car. Other than being present, Kindred did not engage with the women.  No drugs were found. Both women sued all three officers under §1983. Kindred moved for summary judgment, arguing that he was entitled to qualified immunity because, at the time of the incident, bystander liability was not clearly established in the Fifth Circuit in cases not involving excessive force.  Kindred argued only a search occurred, which, even if improper, does not attribute bystander liability to him. The trial court denied the motion and Kindred filed this interlocutory appeal.

The excessive force claim is the center of the opinion as it ties the bystander liability aspects to Kindred for his presence.  For an excessive force claim, a plaintiff must then “show that she suffered (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the force used was objectively unreasonable.” The 5th Circuit agreed both women properly plead sufficient facts that, if taken as true, could qualify as excessive force. Excessive force is unconstitutional during such a seizure and a strip or body cavity search can fall within the Fourth Amendment. The court also held the Plaintiffs did not waive their bystander claims in any of the pleadings. “[A]n officer may be liable under § 1983 under a theory of bystander liability where the officer ‘(1) knows that a fellow officer is violating an individual’s constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.” The district court found that “there [was] a serious dispute as to the material facts” regarding each element of bystander liability.  Since this is an interlocutory appeal, the court held it does not have jurisdiction to review a determination factual disputes exist. Therefore, the appeal was dismissed.

If you would like to read this opinion click here. The Panel includes Justices Higginbotham, Prado, and Haynes.  Justice Prado delivered the opinion of the court. Attorney for the Appellant is listed as Christopher Robert Garza. Attorney for the Appellee is listed as Allie R. Booker.