Judge Rules that a Female Officer Did Not Violate Plaintiff’s Constitutional Rights

On April 8, 2011, Judge Sean Cox, U.S. District Court Judge for the Eastern District of Michigan, issued an Opinion and Order Granting the Defendants’ Motion for Summary Judgment. Partner Ethan Vinson, of the Firm’s Livonia office, represented the police officer in this case.

The plaintiff was arrested on July 10, 2009 for operating a motor vehicle while intoxicated. The Plaintiff was traveling the wrong way on the I-94 service drive because he thought it was one way. A police officer, observing the Plaintiff’s driving, activated the overhead lights and pulled the Plaintiff’s car over. The Plaintiff had three female passengers in the car. Upon detecting the odor of alcohol upon the Plaintiff, the Plaintiff was asked to step out of the car and field sobriety testes were conducted. The plaintiff failed the sobriety test and blew .098 on the PBT.

It was at that time the Plaintiff was advised that he was being placed under arrest, handcuffed and a pat-down search was conducted. The arresting officer, a female, conducted the pat-down search of the Plaintiff. The plaintiff claims his rights were violated because the pat-down search was done by a female officer. The Plaintiff did not object to the female officer conducting the search nor did he request that he be searched by a male officer instead of the female officer. The Plaintiff claims that his Muslim religion prohibits a woman from touching a man between the knees and the waist. However, the Plaintiff did not tell the officer that he was Muslim.

The Court granted the Defendants’ motion to dismiss the case holding that the Plaintiff does not have a constitutional right to have a pat-down search conducted by someone of his own gender. The plaintiff also claimed that the pat-down search constituted a sexual assault under State law. The Court dismissed that claim holding that to the extent he was seeking to hold the officer criminally liable for conducting a pat-down search, he failed to state a claim as a private citizen and has no authority to initiate either a federal or State criminal prosecution. The Court also dismissed the Plaintiff’s intentional infliction of emotional distress claim holding that the officer’s actions did not rise to a level of extreme and outrageous conduct to support such a claim.

Ethan Vinson is a partner in our Livonia office where he concentrates his practice on civil litigation defense, municipal law, employment and labor law and commercial litigation. He can be reached by calling (734) 261-2400 or evinson@cmda-law.com.