by Matt Clarke

On January 12, 2017, the Fifth Circuit court of appeals dismissed the interlocutory appeal of a deputy sheriff who was a bystander when a Texas Department of Public Safety (DPS) officer conducted a roadside body-cavity search of two women.

DPS Officer Nathaniel Turner stopped Brandy Hamilton and Alexandria Randle for speeding. He smelled marijuana and told them to step out of the vehicle without allowing them to cover up their bikini-like attire. He handcuffed them, radioed for local law enforcement backup and a female officer, then searched their car. He did not discover contraband in the car.

Brazoria County Sheriff's Office Deputy Aaron Kindred and DPS Officer Amanda Bui arrived on the scene. Turner told Bui to search the women's body cavities. She asked for some gloves and he gave her the ones he had used to search the car. Bui "forcibly searched their vaginas and anuses against protest," but found nothing. The entire incident was video recorded.

Hamilton and Randle filed a civil rights action against all three officers pursuant to 42 U.S.C. § 1983. Turner and Bui settled, but Kindred filed a motion to for summary judgment asserting that he was entitled to qualified immunity because bystander liability was not clearly established for cases not involving excessive use of force.

The court held that the plaintiffs had raised claims of unlawful search and seizure and excessive use of force. It also held that there was a serious dispute as to material facts regarding the objective reasonableness of Kindred's actions which precluded summary judgment. Kindred appealed.

The Fifth Circuit agreed that the inartfully worded complaint did include a claim for excessive use of force--which is a violation of the Fourth Amendment if it occurs during a search or seizure such as an investigatory stop or arrest--and the claim had not been abandoned. Under Fifth Circuit precedent, a roadside body-cavity search is unreasonable if there were no exigent circumstances requiring the search to be conducted on the public roadside rather than at a medical facility.

The Fifth Circuit noted that an officer is subject to bystander liability if the officer knew another officer was violating an individual's constitution rights, had a reasonable opportunity to prevent the harm, and chooses not to act. The district court found a serious dispute as to the material facts regarding all three elements, but the Fifth Circuit had no jurisdiction to determine those facts on interlocutory appeal. Therefore, the appeal was dismissed.

See: Hamilton v. Kindred, 5th Cir., No. 16-40611

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