Civil Rights — strip search — improper touching – harm — intent

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Summary judgment was inappropriate in a case where a prisoner alleged a jail guard gratuitously fondled his genitals during a strip search, when the district court ruled that plaintiff presented evidence of “only de minimis injury,” had “suffered at most an assault and battery,” and didn’t present evidence of defendant’s subjective intent.

“An unwanted touching of a person’s private parts, intended to humiliate the victim or gratify the assailant’s sexual desires, can violate a prisoner’s constitutional rights whether or not the ‘force’ exerted by the assailant is significant. [Citations.] Indeed, sexual offenses need not involve any touching—think of indecent exposure, voyeurism, and child pornography that does not depict sex acts. … Sexual offenses forcible or not are unlikely to cause so little harm as to be adjudged de minimis, that is, too trivial to justify the provision of a legal remedy. They tend rather to cause significant distress and often lasting psychological harm.

“As for the district judge’s other ground for granting summary judgment in favor of the defendant—absence of evidence of ‘subjective intent’—it is true that if the defendant had no intention of humiliating the plaintiff or deriving sexual pleasure from fondling his private parts, but was merely overzealous in conducting the pat down and strip search, there was no deliberate violation of a constitutional right and so no basis for the suit. But subjective intent (a redundancy: intent is a mental state, hence subjective), unless admitted, has to be inferred rather than observed; judges and jurors are not mind readers. The plaintiff alleges that he complained vociferously to the defendant about the pat down and strip search while they were going on, to no avail. We don’t see how the defendant’s conduct if correctly described by the plaintiff could be thought a proper incident of a pat down or search, and the defendant doesn’t contend that it could be; his defense rather is that his conduct has been misdescribed.”

Reversed and remanded.

12-1657 Washington v. Hively

Eastern District of Wisconsin, Randa, J., Posner, J.

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