In 2018, Wade Tyson called the Sheriff’s Department of Sabine County, Texas, to request a welfare check on his wife, Melissa Tyson. Wade reported that he was out of town and worried about his wife, who was home alone and distressed. Defendant Deputy David Boyd called Tyson that evening and told her that he would visit the next morning to conduct a welfare check. He introduced himself as a sheriff. He told her that he handled welfare checks because he was a preacher.
The next morning, Boyd showed up alone at Tyson’s home in a plain car and wearing a shirt identifying himself as a “Sheriff.” He was not visibly carrying a weapon. Tyson offered a handshake but, instead, Boyd hugged her. Boyd asked if there was a place that they could talk. She led him to chairs and a table on the side porch of the house. Before sitting down, Boyd asked if she had security cameras or neighbors, and he began to search the exterior of the home. Tyson said that she did not have cameras and her neighbors were usually not home.
He commented that Tyson must be lonely with her husband being gone and living by herself the majority of the time at a dead-end road. Tyson said that she wasn’t lonely, she was fine. She testified that she thought the officer’s behavior was strange, but she gave him the benefit of the doubt because he was helping her. Boyd stayed for approximately two hours, during which time he made numerous inappropriate sexual statements and commands, which the district court found were neither invited nor consensual.
At some point, Boyd received a phone call from his wife, and he answered it on speakerphone without notifying his wife. He told his wife that he was running errands. He then solicited nude photos from his wife and made sexually explicit comments. Tyson was troubled by Boyd’s statement to his wife that he was not on duty, so she sought to get some distance from him by retreating into her home for water. Without invitation, he followed her. Tyson gave him the water and led him back outside.
Tyson contends that she felt forced to submit to Boyd’s sexual misconduct because she was isolated and alone, as Boyd had pointed out; she felt intimidated by his authority; and she was frightened that the sexual harassment would escalate if she did not comply.
Tyson also testified that she felt coerced to submit to the sexual misconduct because Boyd implicitly threatened to ticket her for possession of drug paraphernalia. That morning, Tyson had left marijuana paraphernalia on a table in her home, which was visible through a window from the side porch.
Tyson alleges that Boyd then sexually assaulted her on the porch of her home. He commanded her to expose her breasts and her vagina, and spread her labia to expose her clitoris. After a prolonged hesitation, Tyson complied. Boyd then masturbated to ejaculation in front of her. She closed her eyes and waited for him to finish, at which point he left. Immediately afterwards, Tyson felt distressed and cried. Boyd texted her multiple times following the incident—messages such as “I saw you today” or “I haven’t heard from you”—but she did not respond.
She messaged a friend that she was worried about him hurting her. She began frequently seeing a psychotherapist and a hypnotherapist, her intimacy with her husband significantly decreased, she gained thirty pounds, she started carrying a gun, she put cameras up, and she generally stopped leaving her home.
She reported the incident to the Texas Rangers. This was not the first allegation of sexual misconduct against Boyd; at least three other complaints had been made by other people.
In April 2019, Boyd was indicted by the State of Texas and charged with sexual assault, indecent exposure, and official oppression. In the same month, Tyson sued the County of Sabine, the County Sheriff, and Boyd, individually and in his official capacity as constable, asserting claims under 42 U.S.C. § 1983 for alleged violations of her rights under the Fourth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
The court found that the Fourth Amendment claim of excessive force failed because Tyson had not been seized, and that the Eighth Amendment claim failed because she was not a prisoner. As for the Fourteenth Amendment claim, the district court found that Tyson satisfied the injury requirement under § 1983. Nevertheless, the district court concluded that Tyson’s right to bodily integrity had not been violated because Boyd had not physically touched her, and thus the alleged conduct did not shock the conscience.
The court dismissed the remaining claims—a Monell claim against the County and a claim of inadequate hiring, training, and supervision against the County and Sheriff—for lack of an underlying constitutional violation. The 5th reversed on the 14th amendment claim.
A. Constitutional violation – Fourth amendment
A voluntary encounter between an officer and a citizen may ripen into a seizure triggering the Fourth Amendment only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of the citizen. See Mask.
Tyson argues that the consensual welfare check transformed into a seizure because Boyd’s implicit threats for marijuana possession indicated that he was investigating her for marijuana possession and thus, that she was not free to leave. We have recognized that statements by an officer indicating that an individual is suspected of illegal activity are persuasive evidence that an objectively reasonable person would not feel free to leave. By contrast, we have rejected that a person was seized simply because they assumed that a police officer suspected them of criminal activity. See Mask. Tyson’s assumption that Boyd suspected her of marijuana possession based on a story about other people caught possessing marijuana is insufficient to effect a seizure.
Tyson also argues that she was seized because Boyd made intimidating sexual advances while she was home alone. But she does not argue that he ever told her she could not leave or otherwise attempted to physically prevent her from terminating the encounter. The record does not support that Tyson was seized.
B. Constitutional violation – Fourteenth amendment
The substantive component of the Due Process Clause under the Fourteenth Amendment secures the right to be free of state-occasioned damage to a person’s bodily integrity. We have long recognized that physical sexual abuse by a state official violates the right to bodily integrity. See Guidry.
Here, Boyd allegedly visited Tyson alone at her home under the pretense of a welfare check and coerced her to strip for his sexual gratification. He further ordered her to show him her clitoris while he masturbated to her exposed body. It is beyond dispute that no legitimate state interest can justify an officer’s use of coercion to compel the subject of a welfare check to expose her most private body parts for his sexual enjoyment. Boyd’s alleged sexual abuse shocks the conscience and violated Tyson’s right to bodily integrity.
Defendants argue the alleged sexual abuse does not shock the conscience because Boyd did not effectuate it using physical force. We disagree. Physical force is not a requirement of a violation of the right to bodily integrity. See Windham.
Defendants also argue that Boyd’s conduct is merely verbal harassment, which we have held does not, by itself, support a constitutional claim. See Siglar. But the alleged sexual assault in this case involved far more than verbal harassment. Nonconsensual stripping, prolonged nudity, and manual manipulation of the privates for an officer’s sexual enjoyment are abusive sex acts that physically affected Tyson’s body.
Deputy Boyd’s alleged conduct was an outrageous abuse of power that shocks the conscience and violated Tyson’s right to bodily integrity.
C. Clearly established
A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Generally, plaintiffs point to a sufficiently clear foundation in then-existing precedent. But that is not the only way to defeat qualified immunity. In an obvious case, general standards can clearly establish the answer, even without a body of relevant case law. The central concept is that of fair warning.
It is obvious that the right to bodily integrity forbids a law enforcement officer from sexually abusing a person by coercing them to perform nonconsensual physical sex acts for his enjoyment. As noted, we have long held that physical sexual abuse by a government official violates the Fourteenth Amendment. See Guidry. We have little trouble finding that the constitutional offense was obvious because the physical sexual abuse alleged here is a particularly egregious and extreme circumstance of assault by a state official.
D. Color of Law
Boyd argues that he did not act under color of law because he was not on duty and only Tyson’s subjective belief supports otherwise. But whether an officer is acting under color of state law does not depend on his on- or off-duty status at the time of the alleged violation. See Bustos.
In summary, we hold that Boyd’s alleged sexual abuse violated Tyson’s clearly established right to bodily integrity. Thus, Boyd is not entitled to qualified immunity. We need not reach the claims against the County and the Sheriff. We remand those issues to the district court to address in the first instance.
We AFFIRM the order of the district court with respect to the dismissal of the plaintiff’s Fourth Amendment claim. We REVERSE the order of the district court with respect to the dismissal of the plaintiff’s Fourteenth Amendment claim. And we REMAND for further proceedings.