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In bizarre case, 4th Circuit panel finds forced erections unconstitutional

By Cyrus Farivar . . . A federal appeals court ruled Tuesday in favor of a Virginia man who, as a teen, was once ordered by a lower court to be photographed while masturbating in the presence of armed police officers.

That warrant was ostensibly part of an ongoing sexting investigation into the then-teen, Trey Sims, who had exchanged explicit messages with his then-15-year-old girlfriend. Her mother reported the incident to the Manassas City Police Department in January 2014.

Eventually, the detective assigned to the case, David Abbott, obtained a signed warrant to take photographs of Sims’ naked body—including “the suspect’s erect penis”—so that he could compare them to Sims’ explicit messages.

When this bizarre effort was unsuccessfully attempted, Abbott then obtained a second warrant authorizing police to escort Sims to a hospital for an “erection-inducing injection.” This injection ultimately never took place after massive public outcry.

Abbott committed suicide in December 2015 when officers came to arrest him on separate charges relating to pedophilia.

Ultimately, Sims served one year of probation. By early 2016, Sims sued Abbott’s estate, alleging violations of the Fourth Amendment, among other accusations.

Lawyers representing the Abbott estate argued that their client was shielded by “qualified immunity,” the notion in American law that generally protects law enforcement officers in gray-area situations from legal liability.

In a 2-1 majority opinion, the 4th US Circuit Court of Appeals found Tuesday that the initial warrant against Sims was an “obvious, unconstitutional violation.”

The 4th Circuit ruled that Sims’ lawsuit against the estate of the now-deceased officer who had led the sexting investigation, David Abbott, could move forward. “We cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others,” two of the 4th Circuit judges wrote. “Sexually invasive searches require that the search bear some discernible relationship with safety concerns, suspected hidden contraband, or evidentiary need.”

The case will now be sent back down to a federal district court in Alexandria, Virginia.

Source: ars TECHNICA

Also: Here’s an additional article about the decision by Jacob Sullum for Reason magazine.

This topic contains 48 replies, has 2 voices, and was last updated by  Kurt 1 month ago.

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  • #29384 Reply

    Jerry P.

    Is it me or is anyone else scared to death at what’s happening in the world…?

    • #29400 Reply

      freedomwriter

      Indeed. It is very scary this was a 2-1 decision and not 3-0!

      • #29456 Reply

        Kathy

        What in the world is happening to our society? This is one of the most haeinous things I have ever heard of. Just like the so called sex therapy program, showing so’s pictures to see if they get an erection. The way I see it, Sex Offenders are SET UP TO FAIL !!!

        • #29513 Reply

          Paul

          The Criminal Justice system in the US is set up to cause people who are released from it after committing a Felony to fail. Any good paying job won’t take you because of you being a Felon. Then with Sex offenders, it’s a Double wammy. As you are put on a list and shunned by society and can’t move or live anywhere because they keep changing the law on when and where you can live and The list also determines how you live because even the people that would hire a felon won’t hire a sex offender. Your guilty until they say you aren’t

        • #29871 Reply

          Tim Lawver

          Fact:

          The very first time I viewed, ” children naked in photos” was during a plethysmegraph test\evaluation in 1993. The state of Wisconsin DOC demanded it. I believed I could prove my innocence.

          So yea they keep their own stash of CP! For medicinal purposes?

    • #29498 Reply

      Donna Mcs

      I am terrified of where this is all going. Enough is enough. Who can we trust? Certainly not the police. And the judges, I agree, why wasn’t this 3-0. Seems like a no brainer to me.

      • #29554 Reply

        aleta

        It never ceases to amaze me. They make you wear an ankle monitor so you’re chained like a dog {which in some states it’s illegal to chain a dog}then they expect you to pay an enormous amount of money in order to wear it but being on the registry makes it impossible for you to find a job so you can’t afford to pay for it so they throw you back in jail. What a bunch of horse crap that is. So everybody’s out there checking the registry to see if there are any sex offenders living nearby but the sex offender might be right next door and never got caught yet. It’s all about the government trying to rob people. The whole thing makes me sick and Pennsylvania is the worst I’ve ever seen. Let these people move on with their lives. They made a mistake. They served there time in prison. I’m now 70 years old. I was raped by my uncle when I was in my 20’s. I moved on with my life and never gave it a second thought after that. I’m married with four children and a bunch of grandchildren and even two great grandchildren. I didn’t need counseling I prayed for God to forgive him for what he did and then threw it away.

      • #29873 Reply

        Tim Lawver

        Ma’am
        Just you wait till facial recognition devices are in play. Thanks to an effort spearheaded by Chuck Schumer (NY Dem) the FBI database is now open to use the devices. These devices auto search faces and, like the registries, will be used to assist law enforcement and the general public through the impositions of Affirmative Disability and Restraint. Both public and private devices will be used.

        In airports to identify individuals moving through the complex. It may indeed catch persons on the ,”no fly list”, and restraint placed thereby. A school perhaps may note or act upon a face flagged in a database that is connected to past behavior. I can definitely see the devices in stores that identify shoplifters. Se LA vi!

    • #29509 Reply

      Jo

      Absolutely out of line. The lunatics are running the asylum and that’s pretty scary.

    • #29609 Reply

      RM

      What I don’t get (after reading the court’s decision) is this:

      The search warrants were for the search of photographs, not for photographs to be taken.

      This whole thing is making me sick, very sick.

      Good luck to you Mr. Sims.

  • #29388 Reply

    ABOLISH Registry

    What an utterly disgusting action by the government. The United States of Dysfunctional.

  • #29393 Reply

    gonzo

    To be clear this pertains to “forced” erections only, correct? All kidding aside, when did anyone decide forcing an erection on someone else did NOT constitute assault? A bizarre case indeed … “ordered by a lower court to be photographed while masturbating in the presence of armed police officers.” Each one involved should be charged with sexual assault and made to register.

    “When the going gets weird, the weird turn pro.” ~ Hunter S. Thompson

    • #29396 Reply

      Dorothy

      YES. Being on the registry would be so fitting for all those involved in this horrendous action.

    • #29446 Reply

      Kendal

      Gonzo, give them time and all other erections will be unconstitutional…

      • #29874 Reply

        Tim Lawver

        Genital mutilation as it relates to circumcision.

        Funny how the left sees circumcision as Normal!

  • #29401 Reply

    Eldon

    How sad. Wonder how all the politicians and law enforcement will spin this? Am learning to not trust the judicial system and that problem begins with our politicians. They will all scream about this mistreatment, but they do not have the decency to stop this. Everyone should be sending this kind of horrible stuff to their elected official and tell them to see to it this kind of stuff stops. In this case, the now deceased officer’s supervisor should pay the price – incarcerate him and let the inmates deal with him, as the judicial system will try to protect all who knew about this. Totally sick

  • #29405 Reply

    ABOLISH Registry

    What is missing is who are the others involved. Like who as a fair and reasonable judge signed those warrants ? What other officers or fa pursued this type action, a series of felonies by most standards, but then he was in a position of power. Teens are curious about sex and it is normal I SAID NORMAL for them to flirt and learn, find boundaries etc with their peers. This is not the 16th century. I’m getting very angry over the federalized sex crimes. Our grandparents got married and did responsible thing as teens. Enough get the … government out of too many things that are family centric. Christ since people are born naked why not just make that a crime too, that way you CAN REGISTER EVERYONE AND STEAL SOME MORE MONEY.

    • #29494 Reply

      SW

      It reminds me of the detective who tried to force a nurse to take an unconscious patient’s blood. Force, the answer to everything.

      • #29875 Reply

        Tim Lawver

        Taking of the right to remain silent. Erosion by demanded speech. Carrier of government message. Indentured Servant all. Liberty!

        T.D.A.L.

  • #29406 Reply

    freedomwriter

    We are too worried about making kids sex offenders for sending sexts! Never read the story of a kid killing themselves or others over that or even over being molested or raped. There is an endless list of them killing themselves or others over bullying. So what should really be important?

    • #29663 Reply

      Jonny everyman

      Um many survivors of child abuse kill themselves. Yes the registry sucks but let’s not pretend sex abuse isn’t a big deal

  • #29410 Reply

    ABOLISH Registry

    Who knows the name of the Judge that signed those warrants? I’m for serious who signed that?

  • #29442 Reply

    ABOLISH Registry

    The “registry” any registry is the wrong path with none of us winning. The government here is broken. I will serve GOD not a broken government.

  • #29451 Reply

    Tim Lawver

    WOW!

    OUR government is behaving unconstitutionally on a regular basis.

    No wonder others want to blow us up!

    MAYBE WE DESERVE IT?

  • #29450 Reply

    Maestro

    Well, well, well, look at that, eh!
    The officer involved with the case ended up killing himself for being a suspect in child pornography.
    Are we surprised or shocked? Shouldn’t be.
    And these are the people that the public trusts.
    Ahahahahahahahaha!!!! Personally, I’m glad he’s dead. But why doesn’t THIS kind of story make national news?

    And to the person who said that pretty soon just having an erection will be a crime – you ain’t kiddin’!

    As for being the 16th century, hell, in the 16th century it was common place for teens to marry adults.
    The only hang ups about sex back in the olden days was sex out of wedlock.
    This has gotten insane.

    I still say someone (like the family of this teen boy who was forced to get an erection) should sue the Kanka family for starting this madness and then sue the state governments; the governor, the mayor and whoever else they can. Surely there’s a lawyer out there who would love to make a name for himself and make some $$$ in the process.

    • #29608 Reply

      Tod Siegel

      Two Comments – how does this differ with PPG’s – if you had to take this test, you know what I am talking about – it wasn’t ‘photographed’ but it sure as hell was recorded – I wonder if this ruling would affect therapists/PO’s from forcing the offender to take them?

      Didn’t know the cop killed himself, but how is this any different than Roy Moore, who we all know crossed the line many times, was banned from a mall (just like rso’s are now), assaulted (allegedly) a 14yo and 16yo – allegedly, with his history means likely. Has the ultra evangelical christian ‘values’ – see how many pastors have been caught with other men, and molested underage boys/girls – the ultimate in hipocracy – oh, not to mention, that the so called president of the US (aka Cheesus) not only offended adult women, but teens as well. This story goes as far as them quoting the bible saying that jesus’ mom was a young teen and that what he was doing (Moore) was supported by the bible. Yet, these good old southern boys are are the ones making the registry hell – maybe now we know why. The president and Alabama would rather have a sex offender (not officially) in one of the highest offices in the US, than someone from the other party, WTH is wrong with our country? Can we put a stamp on Moore’s and Trumps passports too?

      • #29665 Reply

        Jonny everyman

        You can be forced to take a ppg as a stipulation of parole or probation. When you are under state custody you lose some of your constitutional rights.

        The reason this instance was not okay is that it was during an investigation. Until convicted you obtain all your constituonal rights (his were violated)

      • #29813 Reply

        Virginia Graf

        I don’t care what Moore or Trump said many years ago. I do care that women are coming forward only after there is fame and money to be made. There are a lot of crazy women. I use to like Megan Kelly but then i listened to her book tape and all i could think of was “poor little rich girl) she came forward 10 years later to help some helpless women after she had gained by this man she accused. fame and million. Look what she wore when she interviews Putin. I was embarrassed. She looked like she was auditioning for a high class porn movie. Not suitable business attire for a TV Political interview. If a women can’t set things straight when she faces unwanted advances or sexual language she is not much of a feminist. A women’s attitude and style can stop the behavior and if it does not then she probably is dealing with a real pedophile who needs to be arrested not the dumb man who needs a lesson in good taste
        There are so many double standards and this is not a Republican or Democrats issue. It is a fairness issue and constitutional issue. Maybe Politicians will think twice after they see how easy it is to have your life ruined by one or two dumb mistakes which should not be a crime punished with a life sentence. Each of us should write these legislators the accused and ones on the side line and point out how bad these laws and our justice system has become so punitive, expensive. Most sexual cases are settled by intimidated plea bargaining because the accused does not have to money to hire good lawyers

  • #29493 Reply

    SW

    I have long felt that we are at the point of 1938. We are at a crossroads; we can either continue toward fascist Germany or we could change direction. I think the election of Trump signals the direction taken to me. With a supreme court leaning now to the right, and so many people following an us vs them mindset, I don’t see much progress for any cases reaching that level of the court system.

    I sincerely hope I’m wrong.

    • #29603 Reply

      Maestro

      What makes all you Trump haters think that having a Democrat liberal in office (especially an old woman like Hillary) would be any better?
      Liberals are “victims” of the damn wind blowing through their hair without their consent.
      Most all liberals are feminists, and most all feminists are man-haters who think we ALL rape women.

      Wanna know how mental the liberal left is? Have you heard of this ridiculousness? I saw this last year and my jaw hit this floor. Here’s what things would be like with a liberal in office so please lay off the Trump attacks and open your eyes people:

      https://www.google.com/amp/s/amp.cnn.com/cnn/2016/12/02/us/baby-its-cold-outside-cover-trnd/index.html

      That right there is just NUTS on every level.

      • #29666 Reply

        Jonny everyman

        Well maestro it’s because I have yet to see a conservative judge do anything against the registry.

        Don’t forget in Smith v. Doe all the dissenters were left leaning judges.

        You are fine to hold your beliefs but you’re a fool if you think any conservative politician is against the registry.

      • #29876 Reply

        Tim Lawver

        Your argument leaves out the male union members who generally vote dem end masse. This is especially true with public unions, dems run program grants.
        Just saying don’t omit the lawyers either!

  • #29492 Reply

    mine

    I know that everyone wants to keep things clean, but I just can’t….so watch out! I’ve been watching this grand-story about the registry for some time and I can’t believe that it has come to this in the United States. If the registry is SUPPOSE to protect people from “so called” SO’s, WHO is going to protect the public from the POLICE and PROSECUTORS who, themselves, are guilty. (I wonder how many police and prosecutors beat off in the shower thinking of their own illegal fantasies). F*ckg police and prosecutors and NOW even Judges. The word “Hypocrites” don’t even touch these people.

  • #29503 Reply

    RobinAdmin

    The dissenting judge is Robert Bruce King of West Virginia. He’s a 77-year-old judge who was appointed to the Circuit by President Clinton in 1998. His dissent, which can be read at the bottom of the majority’s opinion, is mostly a defense of the doctrine of Qualified Immunity.

    • #29555 Reply

      ABOLISH Registry

      Thank you for that

      • #29556 Reply

        ABOLISH Registry

        The federal judge USA just hearing the previous case right? What local Judge signed those warrants? Those represent felony actions.

    • #29877 Reply

      Tim Lawver

      Judge objected to jurisdictional matters.

      Our federal government has no business feinting real interest in interpersonal relationships. PERIOD!

      It’s a boundary issue LOL

  • #29502 Reply

    Rick from PA

    Really, the horror of it all! Two teenagers exchanging pictures of themselves naked. Who could have ever imagined that two bundles of raging hormones would want to look at naked pictures of the opposite sex? These two young people deserve to be locked up, put on the registry and publicly humiliated for the rest of their lives for such unimaginable behavior!

    I’m with the others who suggested that someone needs to identify the judge who signed that order. It’s 1692 in Salem, Massachusetts all over again, but this time we’re on a hunt for anyone we can accuse of being a sex offender. Joe McCarthy would be leading the charge if he were still alive. Shame on this nation for letting our fear overcome our decency and humanity.

  • #29506 Reply

    Kathy

    This is so disturbing!!Who is the judge who ordered the warrant to do such a disgusting thing to a kid in a room full of armed police officers? It’s beyond disturbing!

  • #29516 Reply

    Steve

    We need accurate information about the suicide rate of SOs. How can we attain this? How can we track this? While I was in jail, I listened to the radio how a pastor caught in a sting couldn’t bear the humiliation and shame and committed suicide while he was out on bail. There must be a better way for handling our offenses. We must give hope when all hope seems lost. We must care for one another. I’m committed to working with all of you to find better ways to reduce our suicide rates.

  • #29519 Reply

    Lori/OK VOICES

    I am simply mortified! Outrageous and heinous!

  • #29527 Reply

    Sue Wearethepeople

    So who are the real victim’s in this story? What are people thinking? These are our children that we are to love and protect. They should not be scorned like this. It is said that a child’s brain does not fully mature till 25 years of age. I guess playing doctor is out of the question anymore.

  • #29533 Reply

    Darrel Hoffman

    Trying to make this kid get a boner in front of everyone and then when that didn’t happen (for obvious reasons) this pervert wants to inject the boy with a drug to cause one and then kills himself when he becomes a suspect in a child sex crime himself. Unbelievable!!!! You really can’t make this one up. And what about the judge who signed the original warrant? Shouldn’t he be charged with aiding and abetting a molestation? Here in Michigan, that officer would’ve been charged with child sexually abusive activity-a 20-year felony and HE would end up on the registry. But seeing this happened in the “wonderful” Commonwealth of Virginia, such a thing being done by the cops and judges doesn’t surprise me. My brother is doing time for a sex crime there that happened over 30 years ago and in spite of the fact that he already did 23 years in Michigan for the same thing, that judge couldn’t see fit to give him time served, send him back to Michigan, and let us handle him. So much for Virginia, one of the founding states! They want a pound of flesh for every little offense and there is no such thing as mercy there. It’s not a place I would want to live in.

  • #29549 Reply

    Terry

    Did you read this:

    Abbott committed suicide in December 2015 when officers came to arrest him on separate charges relating to pedophilia.

    Go into the body of this text and click on “committed Suicide” 5th paragraph down from the top and read his story…WOW!

    Looks like he was the criminal here. So sad on all accounts.

    Can’t trust anyone…period.

  • #29551 Reply

    obvious answers

    I have said it before and I will say it again.. It will be as true the first time as it will be the last time..
    The registry was never in place to protect and peasantry, children, women, puppy’s ect…
    The entire thing is an evil joke by an evil and corrupt organization that will NEVER be stopped in the courts because it owns the courts, just like it owns the police, the legislatures,the persecuting attorneys and the defense attorney’s and the prisons….dyh!
    How much power and money is being raked in? Even your “paid attorney is making a gold mine, do you really think they would give it up?? And it is the perfect system because they sue your own back words fear of the dark and boogeymen and self imposed moral standards…

    Look how many of your leaders and government officials have been caught doing horrendous crimes worse then anything you may even have dreamt about..hmm..how many of them ever see jail or glimpse a registry? none? go figure..
    So while you are shamed into cowering in the corners the true monsters are preying on everyone and everything still..
    Think about it.. for every imaginary “win” how many losses do you take.. When do you want to be a human again? 1st thing you have to do is break the shame game they have covered you in.. your smart..you will figure the rest out I am sure.

  • #29595 Reply

    Saddles

    While a lot of these articles on NARSOL are good this article cuts to the bone, a man forced to get an errection, why not force the man to say 2 and 2 make five. Sure this situation is very improper and is in itself an invasion of privicy. I wonder if the local newspaper should let those people know what government is doing or way doing behind everybodys back. While these sexting things as well as other sexual encounters appear to be controling aspect by police its a cash cow for them.
    Police or authorities are to be peace officers. In these cases of sexting who are they really protecting, who are they really serving when all of this is a made up seneiro or are they duping all that say I am curious yellow.
    Their is a word called collusion that seems police seem to ignore and authorities want to justify themselves. Does not God justify the man? I noticed in the article ” explicit message” so they could compare this forced invaision of one man’s sexual organs. Would they do this to a female?. Did not God even clothe them after they both ate the fruit, and please remember who ate the fruit first.
    Now Robin has a good article here that is posted and yes that is as downgrading as authorities can get not to mention this whole set-up by those that abuse God’s authority and appear to want to use man’s authority above Gods. Should we all look for signs… or read the signs…. I guess some can’t read the sign’s…….
    Now here’s an article I believe everybody on here should read about a lot of this confusion.:http://www.skepticfiles.org/skep2/sex002.htm

  • #29844 Reply

    Kurt

    This really was a bizarre case with an odd set of facts.

    But the good thing about it, from the perspective of the defense bar and civil rights advocates, is that the 4th Circuit makes it clear that even if a search warrant was properly issued by a judge and based on probable cause, and the warrant specifically names a certain thing that the cops can look for and seize, THE MANNER IN WHICH THE COPS BEHAVE while trying to execute (carry out) the warrant MUST BE REASONABLE.

    A search warrant is not a blank check for cops to do anything they want while searching, and they can’t trample on other people’s rights in unreasonable and unnecessary ways in search of the things listed in the warrant.

    I’d like to see this applied more often to no-knock raids, or the B.S. “knock and announce” searches where the cops show up at your door at 5 a.m., knock for 2 seconds, scream “POLICE- SEARCH WARRANT” three times as quickly as they can (using up maybe 3 more seconds), and then smash the door off its hinges and send a commando team in with machineguns and grenades, before the occupant of the home can even fully wake up and roll out of bed.

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