Cops Face Liability for Fleabag Video Antics

     PHILADELPHIA (CN) – The 3rd Circuit revived claims that sheriff’s officers violated a female deputy’s privacy rights by filming her naked as she went through a flea-decontamination process, and then sharing the film with others under the guise of “training.”

     Jane Doe says she was deputy sheriff with five years under her belt when she had to serve a bench warrant in Wilkes-Barre, Pa. Once the partners left the disheveled house, which was littered with trash and even a dead cat, they found fleas crawling all over their bodies.
     Chief Deputy Arthur Bobboiune soon arrived at the scene along with Deputy Chief Ryan Foy and two other deputies.
     Foy, a superior officer, had brought a video camera and immediately began filming Doe and her partner as they awaited instruction in a police cruiser.
     “Doe requested to exit the vehicle because of the high temperature and the fleas’ continual biting,” according to the complaint. But Bobbouine and Foy refused to limit the spread of fleas.
     “Foy continued to film the scene, allegedly laughing at Doe and Szumski’s plight and taunting them,” the court summarized. “Doe testified at her deposition that she asked Foy to stop filming on at least four specific occasions during the events in question, but that he continued and told her at least one time to ‘shut up’ because it was for ‘training purposes.'”
     Bobbouine then ordered the flea-bitten deputies to use a decontamination facility at Mercy Hospital.
     “As Doe approached, Foy exited the hospital and walked toward her, filming all the while,” the court said. “Doe testified that she again demanded that Foy stop filming but that Foy refused and reiterated that he was filming for training purposes.”
     After showering in private, a female deputy had to examine Doe for remaining fleas. When Doe could not find towels, the other deputy told her to wrap her private areas with anything she could find.
     Doe says she found a roll of semi-transparent thin paper, like that used to cover a doctor’s examination table. Since she was still wet from the shower, however, the paper allegedly became more transparent.
     “At this point, Doe’s back was facing the door; most of her back, shoulders and legs were completely exposed, and the thin paper, which could have been semi-transparent, was wrapped around her buttocks and breasts,” according to the court.
     “While Joyce examined Doe for fleas, Bobbouine and Foy, unbeknownst to the two female deputies, opened the decontamination area’s door approximately a foot and observed Doe. Foy began filming again. After viewing Doe for some unknown period of time, Bobbouine said, in reference to a tattoo on Doe’s back, ‘What’s that shit all over your back?'”
     Doe says she repeatedly yelled at Bobbouine and Foy to leave.
     Once the other deputy had closed the door and finished the exam, Doe received hospital scrubs and went to the police station.
     Foy uploaded the video onto his work computer later that day and called several male and female officers into his office to view the footage, according to the court.
     “It is not clear what Foy showed those congregated in his office,” the court said, noting that one female deputy, Mandy Leandri, had testified that she left in disgust when Foy showed a picture of the “bare buttocks” of Szumski, Doe’s partner.
     “Foy saved several still images, as well as the video of the day’s events … in a public computer folder entitled, ‘Brian’s ass,’ which Doe testified could have been viewed by anyone who had access to the Luzerne County network.”
     Leandri, the deputy who was originally disgusted by the folder’s eponymous photo, took another peek at the images seven months later in April 2008. After seeing the picture of Doe’s back tattoo, she and a colleague mocked Doe about it.
     Leandri then reported the folder to her superior who removed the files, which included five still photos of Doe and Szumski and an edited video clip of the incident.
     “Only two of the photos depicted Doe: one was the close-up of her bare back and the other showed Doe’s hips, bare back, and bare shoulders,” the court said. “In both photos, the outline of Doe’s buttocks covered only by thin, wet hospital paper was visible.”
     Doe claims, however, “that an unknown individual was captured on video stating that he could see her ‘boobies’ and that somebody should grab something to ‘cover [Doe] up.'” She also testified that Bobbouine “made a statement captured on video that he ‘could see [Doe’s] ass.'”
     She filed suit anonymously in June 2008 against Luzerne County and Foy under the Fourth and 14th Amendments. Sheriff Barry Stankus is named as a defendant in the latest incarnation of the suit.
     Last year, however, U.S. District Judge Richard Caputo dismissed the entire case.
     He said that, “although the supposed training video was likely ill-conceived and definitely poorly executed,” the case did not fall within the zone of privacy protected by the 14th Amendment.
     But a three-judge panel of the 3rd Circuit disagreed. “Doe had a reasonable expectation of privacy while in the decontamination area, particularly while in the presence of members of the opposite sex,” Judge D. Brooks Smith wrote for the court. “The decontamination area is a large showering facility, and Doe permitted only Joyce, a female deputy, to enter for the purpose of combing Doe’s hair in an effort to remove any remaining fleas. Upon entering the Decontamination Area, Joyce closed the heavy wooden door to shield Doe’s privacy but could not lock it because the door had no locking mechanism. The record, viewed in the light most favorable to Doe, does not support the assertion that Doe expressly or implicitly consented to Bobbouine and Foy’s opening the door or filming the events inside the decontamination area. In fact, Doe testified that she was unaware that Bobbouine and Foy were observing her until Bobbouine spoke, and that she repeatedly asked Bobbouine and Foy to leave the decontamination area to no avail. Joyce then closed the decontamination area’s door to again shield Doe’s privacy. Doe clearly had a reasonable expectation of privacy while in the decontamination area under these circumstances.”
     “On the record before us, the aforementioned factors overwhelmingly weigh in Doe’s favor,” he added. The type of records at issue include photographs of Doe while she is partially dressed and an edited video of Doe that may include images of, among other things, Doe’s exposed breasts and/or buttocks. The potential harm of nonconsensual disclosure is exacerbated by the existence of the Internet, where one can upload image and video files and irretrievably share them with the world in a matter of moments. Doe’s alleged harm could be aggravated by the context of the disclosure, most notably the facts that the video of the events was shown to others within the workplace and that the alleged violations involved superior officers abusing their authority. The adequacy of safeguards to prevent unauthorized disclosure also favors Doe because there is evidence that Foy saved the Doe files in a public computer folder, which Doe testified could have been viewed by anyone with access to the Luzerne County network.”
     The court said Foy’s claim, that Bobbouine ordered him to create a training video of the decontamination process, “is, at best, suspect.”
     While Bobbouine testified that he did not know why Foy was filming, Leandri had even testified that Bobbouine and Foy were overheard discussing “how they would tell everyone they were making a training video so that no one would question why they were filming.”
     “Third … Foy uploaded the video and showed it to other officers as a joke, not in the context of a training video,” the court said. “Finally, no training video was ever produced from the footage Foy shot that day. Thus, a reasonable jury could conclude that Foy’s training video explanation was a pretext to mask his misconduct.”
     While the court revived Doe’s 14th Amendment privacy claims, it affirmed dismissal of the Fourth Amendment search-and-seizure claim and the failure-to-train claim.

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