Hess v. Garcia

Dist. Ct. erred in granting defendant-police officer’s motion to dismiss plaintiff-17-year-old student’s section 1983 action, alleging that defendant violated her equal protection and due process rights under 14th Amendment, as well as her 4th Amendment rights, when defendant subjected her to sexual harassment while plaintiff was in defendant’s squad car during class assignment to go on “ride along” with law enforcement officer. While case law varies on several doctrinal pathways to support instant sexual harassment claim, sexual assault by official acting under color of law has potential remedies under either equal protection or due process clauses under 14th Amendment. In this regard, plaintiff sufficiently alleged either equal protection or substantive due process claim, where she asserted that defendant touched her in sexually offensive ways while she was in squad car, as well as suggested to another police officer that plaintiff wanted to be prostitute. Also, same allegations supported plaintiff’s Fourth Amendment claim, since “seizure” by police officer for Fourth Amendment purposes does not require that seizure occur during criminal investigation. Fact that plaintiff did not identify similarly-situated individual whom defendant treated more favorably did not defeat her equal protection claim. Dist. Ct., though, did not err in dismissing plaintiff’s similar claim against defendant-police chief, where complaint failed to allege sufficient facts to establish that police chief, as police officer’s supervisor, played some role in alleged harassment by either facilitating, approving or ignoring officer’s offensive conduct.