CIVIL RIGHTS-IMMUNITY-QUALIFIED IMMUNITY-CLEARLY ESTABLISHED-SEXUAL ASSAULT

Kane v Barger, 2018 U.S. Court of Appeals, Third Cir., LEXIS 23575, (August 22, 2018) Fuentes, J.  On June 27, 2013, Brandy Kane went to the hospital and reported that she may have been the victim of a sexual assault. That night, Officer Shawn Barger of the Coraopolis Police Department went to the hospital to interview Kane regarding the possible assault. At that time, Kane says Barger told her to bring the clothes she wore during the alleged incident to him at the police station. The next day, Kane—accompanied by a friend—brought her clothes to the police station. While there, contrary to department policy, Barger met alone with Kane in a back room of the station. Then, also in violation of department policy, Barger used his personal cell phone to photograph intimate areas of Kane’s body. During this encounter, Barger touched Kane twice. First, rather than relying on Kane to do so, Barger pulled Kane’s shorts down to photograph a bruise on her right buttock. At this point, Kane says she “felt something touch her butt crack which caused her to jump.” Second, again without asking Kane to do so, Barger pulled Kane’s tank top down to expose a bruise on her upper chest. Kane says that, while photographing her, Barger repeatedly asked about her breasts, vagina, and buttocks. In this regard, Barger persistently inquired if Kane sustained injuries to her vagina. Despite Kane’s consistent denials, Barger’s relentless questioning led Kane to expose her vagina to him. After photographing Kane, Officer Barger failed to document the clothing evidence that Kane provided. Moreover, when Kane later reported Barger’s actions, he gave inconsistent accounts of his behavior. Indeed, while Barger initially denied photographing Kane at all—let alone with his cell phone—he later admitted he lied because he did not want his girlfriend to be jealous that he photographed Kane. After this background, Kane alleges that Barger violated her Fourteenth Amendment right to bodily integrity by—in the course of purportedly interviewing her about her alleged sexual assault—touching her and using his personal cell phone to photograph her intimate areas in violation of department policy. The District Court granted summary judgment in favor of Barger, finding that—even if Barger’s conduct was unlawful—he was still immune from suit under the exacting “clearly established” prong of our qualified immunity analysis. Viewing the record in light most favorable to Kane, which supports an inference that Barger acted for personal gratification rather than investigative ends, we hold that Barger’s conduct shocks the conscience and violated Kane’s right to bodily integrity. We further hold that the right at issue was clearly established at the time of Barger’s conduct. Accordingly, we will reverse and remand for further proceedings.