On Sept. 27, 2007, Jane Doe, a Luzerne County Deputy was serving a warrant in Wilkes-Barre, Pa. Deputy Doe and her partner, Deputy Brian Szumski, soon discovered that the subject of the warrant was not home, only finding a home in disarray with at least one animal carcass in it. The two deputies quickly discovered that after entering the home to serve their warrant, they had become covered in fleas.
The officers contacted headquarters for instructions and were directed to proceed to an emergency management structure, where other personnel would construct a decontamination shower. The officers were ordered to stay in their vehicle until Chief Deputy Arthur Bobbouine arrived.
Chief Deputy Bobbouine arrived with Chief Deputy Ryan Foy approximately twenty (20) minutes later. Chief Deputy Foy had a video recorder, and ordered the deputies to stay in their vehicle, laughing at their situation while they were in their now-infested cruiser, and telling them he was recording the video for "training purposes." When other personnel were unable to properly construct the decontamination shower, the deputies were advised to proceed to a nearby hospital.
Once there, Doe was ordered to wait in her cruiser while Szumski was decontaminated, which took approximately forty-five (45) minutes. Once Szumski's decontamination was complete, Foy radioed Doe, instructing her to leave her boots and socks in the cruiser and to proceed into the hospital's decontamination area. Foy continued to film her as she entered the hospital, though Doe requested that he stop filming.
A female Deputy, Joyce, met Doe at the decontamination room and read the directions for use of the chemical shampoo aloud. Joyce then left and closed the door (there was no lock), and Doe undressed and showered without incident. Afterward, Doe discovered there were no towels. Instead, she covered herself to the best of her ability with what was available: semi-transparent white paper used to cover examining tables at hospitals. Joyce then re-entered and closed the door to the decontamination area, to inspect Doe for surviving fleas.
While Joyce inspected Doe, Bobbouine and Foy surreptitiously cracked open the door to the decontamination area, with Foy again filming. Unaware of their observers, Joyce continued to inspect for fleas until she noticed a tattoo on Doe's back, whereupon she asked Doe "[w]hat‘s that s--- all over your back?" Thinking Joyce had discovered fleas, Doe moved around and brushed at her back. In the process, she noticed Bobbouine and Foy and yelled for them to leave the contamination area. One of the men asked aloud what the tattoos said, and Doe again yelled for them to leave, walked to the door, and closed it.
Later that day, Foy uploaded the video to a work computer and shared portions of his recordings with others, ridiculing the flea-bitten officers. It was later reported that Doe's buttocks were visible in Foy's recording, and that Doe's tattoo consisted of the initials of Doe's girlfriend. It is unclear whether Doe's sexual orientation was "outed" as a result of this revelation, or if it had been widely known.
In June 2008, Doe filed a complaint in the United States District Court for the Middle District of Pennsylvania against Luzerne County as a municipal defendant and against Chief Deputy Foy and Sheriff Barry Stankus in their individual capacities. In her complaint, Doe alleged that her Fourth Amendment right to be free from unreasonable searches and seizures and the Fourteenth Amendment right to privacy and comparable rights arising under Pennsylvania law were violated by showing her partially nude body and exposing her sexual orientation.
On Aug. 31, 2010, the district court dismissed Doe‘s case in its entirety. The court stated that, "[a]lthough the supposed training video was likely ill-conceived and definitely poorly executed, the case does not fall within the zone of privacy protected by the Fourteenth Amendment." The District Court further determined that Foy's observation and filming of Doe‘s partially nude body in the decontamination area fell within the special needs exception to the Fourth Amendment, given the claim that the video was made for training purposes. Doe appealed the dismissal to the United States Court of Appeals for the Third Circuit.
Although the court of appeals found that Foy's claim that he was making a training video was not credible since he used the video to ridicule Doe and Szumski, he did not actually produce a training video in spite of having ample time to do so. Because creation of a training video would not require him to film Doe having her partially nude body inspected, the court of appeals affirmed the dismissal of Doe's claim of a Fourth Amendment violation. The court of appeals reasoned that Foy's filming had neither searched nor seized Doe. Moreover, Foy had acted out of personal interest and not as part of a governmental action, and thus the filming was not a Fourth Amendment intrusion.
However, the court of appeals reinstated Doe's Fourteenth Amendment claim. Although neither the Supreme Court nor the Third Circuit had previously decided whether there was a legal privacy interest in the appearance of one's nude body, the Third Circuit found persuasive cases from the Second, Sixth and Ninth Circuit Courts of Appeal holding that there was such a privacy interest. Furthermore, because Doe expressed several times that she did not wish to be filmed, closed the door to the decontamination area for privacy, covered her body to the best of her ability with hospital paper and directed Bobbouine and Foy to leave the decontamination area several times, and because Foy showed photographs and pictures of Doe to others, the court of appeals said there was a sufficient basis for Doe's Fourteenth Amendment claim to proceed, and the case was remanded to district court for further action.
While Third Circuit precedent held that sexual orientation was a protected private matter, the court of appeals expressed doubt about Doe's claim that her privacy had been violated when she was revealed to be a lesbian. The court of appeals found that Doe had presented no evidence to establish that her sexual orientation was not previously known, and the mere discovery of initials tattooed on a person's back may be too vague to infer the existence of a romantic relationship or sexual orientation.
The case, Doe v. Luzerne County, may be read here.
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