Hess v. Garcia, No. 22-1550 (7th Cir. 2023)
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Hess, a 17-year-old student, was required to participate in a ride-along with Hammond Officer Garcia. Her complaint describes a day-long sequence of inappropriate comments and questions punctuated by unwelcome physical sexual contact. Garcia allegedly rubbed his arm against her breast, repeatedly placed his hand on Hess’s thigh, put his hand on her buttocks, stated that Hess wanted to become a prostitute, and, while in a secluded location, asked another officer if he wanted to have sex with Hess. After Hess’s ride along, another female classmate participated in the course-required ride with Garcia. When the classmate told Hess that Garcia had acted inappropriately, the girls reported their experiences.
Hess sued Garcia and Chief Doughty in their individual capacities under 42 U.S.C. 1983. The Seventh Circuit affirmed the dismissal of the claim against Doughty for lack of allegations of the requisite level of involvement in the alleged violations. The court reversed the dismissal of the claim against Garcia. It is well established that sexual assault by a government official acting under the color of law can violate the Equal Protection Clause as sex discrimination, the Fourth Amendment right “of the people to be secure in their persons,” and the right to bodily integrity protected by the Due Process Clause. The court rejected arguments that the alleged conduct was simply “boorish” and not serious enough to implicate the Constitution. Sexual assault is an intentional act that never serves a legitimate governmental purpose.
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