Qualified Immunity

Penis Squeezing Not Protected by Qualified Immunity

Plus: FIRE fights college's vague "greater good" policy, Biden administration pushes double talk on tariffs, and more...


Genital squeezing at jail is "not related to a legitimate penological purpose" and not protected by qualified immunity. Sometimes it seems like the doctrine of qualified immunity—under which police officers and other agents of the state are protected from legal liability for some abuses and mistakes—has no limit. So it's nice to see courts at least occasionally reject ridiculous qualified immunity claims, like the idea that squeezing a detainee's genitals during a strip-search is proper and standard procedure.

Indeed, "squeezing a detainee's penis hard is not a 'proper part of a search,'" a federal appeals court has held.

The case, before the U.S. Court of Appeals for the 8th Circuit, was brought by Wilbert Glover against Minnesota corrections officer Richard Paul. Paul strip-searched Glover while Glover was jailed at the Ramsey County Adult Detention Center in St. Paul in 2015.

Paul "made me take off my jumpsuit strip search me took his hand and grasp my penis squeeze it hard and gestures," Glover alleged. After the incident, Glover sought medical care and filed a complaint against Paul, alleging that the corrections officer had violated his constitutional rights.

Paul responded by claiming that he "never touched [Glover's] genitals or otherwise touched him inappropriately" and that even if he had, he was protected by qualified immunity.

The U.S. District Court for the District of Minnesota rejected Paul's argument, concluding "that Paul's alleged actions violated Glover's clearly established constitutional right to be free from excessive force in the form of sexual assault or abuse," as the appeals court describes it. In an August 24 ruling, the court affirmed the district court's ruling.

"On appeal, Paul maintains that he is entitled to qualified immunity," noted the 8th Circuit judges in their decision:

Qualified immunity protects governmental officials from suit under 42 U.S.C. § 1983 unless a plaintiff shows that the official's alleged conduct violated a clearly established right of the plaintiff.…Because Glover was a detainee at the time of the incident, his relevant constitutional rights arise under the Due Process Clause of the Fourteenth Amendment….A detainee alleging an excessive use of force must show that the force used against him was objectively unreasonable….

Paul argues that he did not violate Glover's clearly established right under the
Fourteenth Amendment. He maintains that no constitutional violation occurred
because "manual contact with a detainee's genitals may be necessary as part of a search." And he says that there is no evidence that the strip search or his actions
during the search were performed for an improper purpose.

In determining whether Paul is entitled to qualified immunity, we must accept
facts that the district court assumed were supported by sufficient evidence….In the order denying qualified immunity, the district court stated that squeezing a detainee's penis hard is not a "proper part of a search," and that the "action does not seem inadvertent nor does Paul assert it was." The court explained that a "jury could find that squeezing a prisoner's penis hard during a strip search is not penologically necessary." We infer from these statements that the court assumed that a jury could find that Paul intentionally squeezed Glover's penis hard in a manner that was not related to a legitimate penological purpose….

Viewing the facts in the light most favorable to Glover, a jury could find that the
alleged conduct constituted sexual abuse or assault. We accept that some contact
with a detainee's genitals may be necessary and proper during a legitimate strip
search, but Paul's alleged conduct was intentional and gratuitous, and thus exceeded
the legitimate purpose of a search….A reasonable official would have understood that the conduct alleged in Glover's verified complaint constituted an unreasonable use of force that violated a detainee's right under the Fourteenth Amendment.

Full decision here.


The Foundation for Individual Rights and Expression (FIRE) is fighting a West Virginia University policy requiring faculty to "accept and encourage change that is for the greater good."


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