Fifth Circuit: This Badge Wearing Serial Sexual Assaulter Is Beyond Even Our Expansive Definition Of Qualified Immunity

Legal Issues

from the 5th:-we-would-do-anything-for-cop-love-but-we-won't-do-this dept

Yikes.

Deputy Boyd stayed for approximately two hours, during which time he made numerous inappropriate sexual statements and commands, which the district court found were neither invited nor consensual. For example, Deputy Boyd told Tyson that he and fellow officers had recently seen her at a restaurant, and he repeated sexual comments that the officers made about her body. For example, he said that the officers talked about “what they would like to do to [her] if they could.” He also compared the size of Tyson’s breasts with his wife’s breasts. He pressed her to answer invasive questions about her sex life, such as whether she and her husband would consider a threesome and whether her husband would allow someone to watch them having sex. And he asked for nude pictures of her husband.

At some point, Deputy Boyd received a phone call from his wife, and he answered it on speakerphone without notifying his wife. He told his wife that he was “running errands.” He then solicited nude photos from his wife and made sexually explicit comments.

That’s only part of the extremely disturbing narrative recounted by the Fifth Circuit Court of Appeals decision [PDF]. There’s a lot more. And a lot of background. All of it adds up to something even the cop-friendliest circuit in the nation can’t condone.

And this circuit has done a lot of condoning. Perhaps it’s an effort to keep the peace — decisions that won’t antagonize Texas into seceding and becoming the cowboy-hatted North Korea of America. Or maybe it’s just the home-grown judges who tend to consider boots and badges to be indicative of being on the right side of the law, even if that means coming down on the wrong side of the Constitution.

But what’s detailed here is too much even for the Fifth Circuit. It starts with a welfare check — one Deputy David Boyd felt he should handle personally. That’s not where the evil starts. It’s where Deputy Boyd’s evil merely continues.

On September 18, 2018, Wade Tyson called the Sheriff’s Department of Sabine County, Texas, to request a welfare check on his wife, Melissa Tyson (“Tyson”). Wade reported that he was out of town and worried about his wife, who was home alone and distressed. Defendant Deputy David Boyd called Tyson that evening and told her that he would visit the next morning to conduct a welfare check. He introduced himself as a sheriff. He told her that he handled welfare checks because he was a preacher.¹

You’ll notice two things about this part of the narrative. First, the deputy was definitely not a sheriff. Perhaps he meant it colloquially but one can assume he expected Wade Tyson to believe he had all the authority he needed plus the authority he was “borrowing” from the actual sheriff to carry out this welfare check.

You’ll also notice the “1,” which refers to this footnote:

Deputy Boyd’s ministerial credentials had actually been revoked eleven years prior because of prohibited sexual conduct. During his time as a minister, he was also sued by church members for alleged sexual misconduct.

So, the deputy was not actually a preacher, as one would understand the term during a phone call. He was actually an accused sex offender who had apparently managed to stay unjailed because of his recent links to the church that booted him, as well as his current employer, which seemed unwilling to inform the public it employed a deputy who had been accused of and sued over sexual misconduct allegations.

The deputy began his visit by introducing himself as the sheriff. Then he hugged Mrs. Tyson, a completely uninvited move. He tried to move her inside but she stayed outside. He inquired about the presence of security cameras, either owned by Tyson or her neighbors. He made disparaging comments about her husband. He said she must be “lonely” without a man in the house.

What happened next follows my “yikes” intro. But it went on from there. The deputy noticed marijuana paraphernalia through the window of the house. He made references to “swingers” he had accosted about marijuana possession, noting that he cited some but let others go. Once this leverage was applied, the intensity of the deputy’s sexual assault of Tyson increased.

Tyson alleges that Deputy Boyd then sexually assaulted her on the porch of her home. He commanded her to expose her breasts and her vagina, and spread her labia to expose her clitoris. After a prolonged hesitation, Tyson complied. Deputy Boyd then masturbated to ejaculation in front of her. She closed her eyes and waited for him to finish, at which point he left.

It didn’t end there. Even if it had, it would be more than enough. But Deputy Boyd decided mere porch-side sexual assault wasn’t enough. He sent her text messages telling her he had seen her around town and wondering why she hadn’t responded to earlier text messages.

Tyson, meanwhile, saw her life disintegrating. She began seeing multiple therapists in hopes of processing the sexual assault. She gained weight. Her relationship with her husband deteriorated. She installed cameras at her house, which she rarely left following being violated by the deputy.

She reported the assault to the Texas Rangers because she felt she could not trust local law enforcement, what with Deputy Boyd informing her that other officers had been openly discussing her sexual features.

This was not Deputy Boyd’s first rape rodeo. He was indicted in April 2019 for “sexual assault, indecent exposure, and official oppression.” Tyson filed her lawsuit during this same month, adding to the proven complaints about Boyd.

The deputy — along with the county — argued immunity should be awarded because, no matter how insanely awful Deputy Boyd’s personal actions were, no clearly established rights were violated. Somehow, the district court agreed. It ruled that Tyson had not been “seized.” Nor had she been “imprisoned” when she was sexually assaulted by the deputy.

The Appeals Court agrees with the lower court as far as a “seizure” under the Fourth Amendment is concerned. Latent threats about drug paraphernalia are not enough to support this claim, according to the judges. But that’s not the end of the discussion.

If it had been nothing but that, the deputy would be free to rape another day. But he did more. And that’s what crosses the line.

We have long recognized that physical sexual abuse by a state official violates the right to bodily integrity.

The Fourteenth Amendment is still in play. And holy shit did this deputy run it the fuck over in his quest to rub one out at the taxpayers’ expense.

Here, Deputy Boyd allegedly visited Tyson alone at her home under the pretense of a welfare check and coerced her to strip for his sexual gratification. He further ordered her to show him her clitoris while he masturbated to her exposed body. It is beyond dispute that no legitimate state interest can justify an officer’s use of coercion to compel the subject of a welfare check to expose her most private body parts for his sexual enjoyment. Nor does Deputy Boyd argue that any legitimate state interest could justify his instructions to Tyson to perform non-consensual sexual acts while he masturbated.

The court is not done excoriating Deputy Boyd and his disgusting abuse of power.

Moreover, this is not a case of recklessness, negligence, or overzealous policing. The record supports a premeditated intent to introduce sexual abuse into the welfare check because Deputy Boyd misrepresented to Tyson that he was on duty and searched the exterior of the home for cameras immediately upon arrival. […] Deputy Boyd’s alleged sexual abuse shocks the conscience and
violated Tyson’s right to bodily integrity.

Unbelievably, the deputy and the county argued this assault shouldn’t “shock the conscience” because the deputy didn’t drug, restrain, physically assault, beat, tase, shoot, bind, gag, or otherwise “physically restrain” Tyson during this encounter. The court says the means don’t matter. It’s what was done under the color of law, which, in and of itself, is often enough to secure compliance.

The use of mental coercion rather than physical coercion to effectuate sexual abuse is a distinction without a difference. Deputy Boyd’s use of coercion to compel Tyson to engage in physical sex acts against her will violated her right to bodily integrity.

And that’s it for Deputy Boyd and the other defendants. The Fourth Amendment may not be implicated (but only narrowly) but the Fourteenth Amendment sure as fuck is. The defendants will get no immunity. The case goes back down to the lower court to address the obvious constitutional violations highlighted by the Appeals Court. And the now-indicted deputy has at least one civil case on top of his criminal case woes.

Filed Under: 14th amendment, 5th circuit, david boyd, melissa tyson, qualified immunity, sexual assault, sexual harassment