Again?  I'm not sure what category to put this post in.  For lack of a better category, it belongs in etiquette. 

Anyway, a woman gave some risque mobile phone photos to her boyfriend.  The boyfriend is pulled over by the cops, and in the process the police officers discover the photos.  They decide to have a "viewing party" of sorts.  The woman sues, as noted by On Point News here.  (The complaint is linked here.)  What to make of this lawsuit?

First, it's just a sad commentary on our society.  Lawsuits involving everyday average people whose racy photos were passed around beyond their intended audience.  Sexting may or may not be your thing, but seriously folks.  Can you do a little due diligence about your partners before going down this path?

The case itself?  On Point casts a shadow on some of the claims raised in the complaint.  On the federal front the complaint seems to contain a "deliberate indifference" /equal protection claim and a right to privacy / right to be free from unreasonable searches and seizures claim.  I'm not sure what to make of it, except that different claims and doctrinal bases seemed to be mixed together. 

At the end of the day, will the plaintiff have viable claims against the police officers who engaged in the conduct?  Probably.  It's tough to say how the federal claims will pan out - nothing really seems to fit nicely.  Here's what one court had to say about *vaguely* similar facts (Cawood v. Haggard, 327 F. Supp. 2d 863, 880 (E.D. Tenn. 2004)):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

"the Constitution does not encompass a general right to nondisclosure of private information." J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir. 1981). While an informational right to privacy exists, not all disclosures of private information will trigger constitutional protection. The Sixth Circuit has instructed that such claims must be analyzed as: (1) whether the interest at stake is either a fundamental right or one implicit in the concept of ordered liberty; and (2) the government's interest in disseminating the information must be balanced against the individual's interest in keeping the information private. DiSanti, 653 F.2d at 1090-91; Bloch v. Ribar, 156 F.3d 673, 684 (6th Cir. 1998). In reviewing the nature of the information at issue, i.e., the video of Cawood and Clark's sexual activities, the Court is constrained to conclude that this information does not rise to the level of a fundamental right or a right implicit in the concept of ordered liberty.
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The defendants concede that there was no investigational or other official reason for Worley and the other officers to view the surveillance videotape from Cawood's office. While the officers' behavior demonstrates a lack of professionalism at best, it does not rise to the level of a constitutional violation for which § 1983 remedies are available. The video contained not just documentation of Cawood's private sexual conduct, but of his alleged criminal activity in trading sexual favors for a reduction in legal fees. Such suspected criminal acts do not carry with them a corresponding right to confidentiality. Further, the videotape was destined to become public inasmuch as it was evidence to be used, and was in fact used, in the criminal prosecution of Cawood. Finally, while many members of the community may have learned of the videotape by word of mouth, Cawood's press conference in which he publicly confirmed the existence of the videotape and the nature of its contents only added fuel to the fire and likely sparked further interest in the tape. Any privacy interest that existed when the video was viewed by Worley and others was necessarily waived by Cawood's voluntary public statement. Cawood cannot sustain a constitutional claim for invasion of privacy and the defendants shall be awarded summary judgment on such claim.

This case is plenty different.  As a public-facing matter, I would not want to be the judge who dismisses the case brought against police officers who decided to have a "viewing party" with risque mobile phone photos.  There is obviously no investigational rationale at play.  Nevertheless, the above case illustrates the difficulties in bringing a general 1983/privacy claim based on disclosure of information.  (The officers will raise a qualified immunity argument but I think they lose that one.)