A couple from Culpeper, Virginia, has sued the Culpeper Police Department for alleged inappropriate behavior upon discovering sexually explicit photographs on a cell phone. According to the lawsuit, the police arrested Nathan Newhard in March 2008 for DUI and possession of a firearm, and confiscated his cell phone. Upon inspecting the phone, a town police officer discovered sexually explicit photographs of his girlfriend. The officer then used the police radio system to announce the availability of the pictures to any interested police officer and several officers viewed the photographs. Shortly thereafter, Mr. Newhard claims, the police notified his employer, the County of Culpeper School System, that Mr. Newhard had nude photos on his cell phone. The school told him he would not be recommended for another term, and he resigned.
Mr. Newhard describes the litigation as a case brought to remedy “egregious and unconscionable violations of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution” and asserts counts for “deliberate indifference,” “right to privacy,” “outrageous conduct,” defamation, intentional infliction of emotional distress, and failure to train.
It will be interesting to see which claims stick. I stongly doubt the alleged facts state a valid claim for defamation (which requires a showing of falsity) or intentional infliction of emotional distress (which generally requires more extreme conduct than that alleged, as well as more severe emotional injuries). A claim that appears to be missing is tortious interference with contractual relations. If what Mr. Newhard is claiming is true, and a police officer showed a nude picture of his girlfriend to his employer for the purpose of getting him fired, that is the sort of behavior that would likely support a tortious interference claim.
With the increasing popularity of “sexting” (the practice of attaching sexually explicit photos in text messages sent between phones) and the debate surrounding its legality, it will also be interesting to see whether the alleged behavior by the Culpeper Police Department amounts to a deprivation of contstitutional rights as alleged in the Complaint. More about sexting in the clip below.