Copyright 2006 Law Bulletin Publishing Company All Rights Reserved Chicago Daily Law Bulletin
October 26, 2006 Thursday
SECTION: Pg. 10006
LENGTH: 1491 words
HEADLINE: Police officer's relationship not protected
BYLINE: JAMES G. SOTOS
BODY:
Today's column considers the scope of the Constitution's right to privacy in the context of reviewing a police officer's effort to overturn his firing based on an investigation into allegations that he was having sex with a crime victim in a case he was investigating.
In January 2003, Sonya Hawkins notified the Arkansas State Police that she and her husband believed that an employee was embezzling large sums of money from the company the Hawkins's co-owned. Corporal Alex Sylvester was assigned to the case and, at some time during his investigation, began a secret affair with Hawkins.
Sylvester's investigation led to a suspect being identified, who was subsequently charged with serious criminal offenses relating to the embezzlement. However, during the course of the criminal case, Hawkins' husband learned of the affair and advised State Police authorities, who began an investigation. Sylvester initially denied that he and Hawkins had sexual relations. After a polygraph examination of Sylvester indicated deception, however, Sylvester admitted to the relationship. After learning of the affair, the local prosecutor concluded that the criminal case for embezzlement had been compromised and dismissed the charges. Shortly thereafter, accusations surfaced that Sylvester propositioned another crime victim in a case he was investigating. Sylvester was discharged from the Arkansas State Police, though he was later reinstated without back pay and transferred from the Criminal Investigation Division to the Highway Patrol.
Unhappy with the transfer and denial of back pay, Sylvester filed a federal civil rights lawsuit against Sergeant Steve Clemmons and Lieutenant Doug Fogley, both of whom were involved in investigating him for the affair. In his lawsuit, Sylvester alleged that the investigation of his affair with Hawkins violated "well-established rights to private, intimate sexual activities protected under the liberty clause of the Fourteenth Amendment to the Constitution."
U.S. District Judge Robert T. Dawson of the Western District of Arkansas granted summary judgment in favor of the defendants on the grounds that the Constitution did not protect Sylvester's right to engage in sexual relations with a crime victim in a case he was investigating. Sylvester appealed.
The 8th U.S. Circuit Court of Appeals affirmed. Writing for the court, Judge Pasco M. Bowman began by observing that both the existence and parameters of a right to privacy under the Constitution are somewhat amorphous:
" `Obscure' might best describe the right of privacy. Although the right of privacy is not found in the text of the Constitution, the Supreme Court has identified this penumbral right in the emanations from various amendments. Griswold v. Connecticut, 381 U.S. 479, 484, (1965).... The Supreme Court recently explained, `Liberty protects the person from unwarranted government intrusions into ... private places. In our tradition the State is not omnipresent in the home.... Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.' Lawrence v. Texas, 539 U.S. 558, 562 (2003)."
Bowman explained that, even if "certain intimate conduct" is protected as an aspect of privacy, identifying the standard of review to the government's interference with such conduct is a daunting task:
"[I]n Lawrence the Supreme Court struck down a Texas statute criminalizing homosexual sodomy because the `statute further[ed] no legitimate state interest that can justify its intrusion into the personal and private life of the individual.' ... This language implies that the Court applied a rational-basis standard of review instead of a strict-scrutiny standard, inferring that the right to engage in homosexual sodomy is not a fundamental right.... about one year before the Supreme Court decided Lawrence, the Arkansas Supreme Court held `that the fundamental right to privacy implicit in our law protects all private, consensual, noncommercial acts of sexual intimacy between adults.' Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332, 350 (Ark. 2002).... Classifying this privacy right as a fundamental right, the court applied strict scrutiny to determine the constitutionality of a state statute criminalizing homosexual sodomy: `When a statute infringes upon a fundamental right, it cannot survive unless a compelling state interest is advanced by the statute and the statute is the least restrictive method available to carry out the state interest.' ... Because no compelling state interest justified the sodomy statute, the court ruled that the statute was unconstitutional."
The 8th Circuit sidestepped the question of whether a fundamental privacy right was at stake because the Court concluded that the government's investigation of Sylvester survived constitutional scrutiny under either a rational basis standard or under strict scrutiny:
"Sylvester asks us to extend the principles developed in Lawrence and Jegley to hold that he has a fundamental right to engage in the conduct at the heart of this case. To our knowledge, no court has held that a police officer has a fundamental privacy right that precludes a police department from investigating a citizen's complaint that the officer had sexual relations with a crime victim during the course of the investigation involving that victim. In our review, however, we need not determine whether Sylvester's sexual conduct is protected as a fundamental privacy right because we would reach the same result applying either the strict-scrutiny standard of review or the rational-basis standard of review. Therefore, we will simply assume, without deciding, that the fundamental right to privacy under either the U.S. Constitution or the Arkansas Constitution encompasses Sylvester's conduct. Based on that assumption, we will apply strict scrutiny to the ASP's investigation of Sylvester's sexual relations with Hawkins."
Having avoided the question of whether a fundamental right was at stake, the Court of Appeals set forth the standards that the State Police needed to satisfy in order to sustain its investigation of Sylvester under strict scrutiny:
"To survive strict scrutiny, the defendants must show that their investigation of Sylvester's sexual relations with Hawkins `advances a compelling state interest and is narrowly tailored to serve that interest.' Republican Party of Minn. v. White, 416 F.3d 738, 749 (8th Cir. 2005), cert. denied, 126 S.Ct. 1165 (2006)."
In light of that standard, Bowman explained that the State Police clearly had a compelling interest in preventing its criminal investigators from having sex with witnesses or victims involved in underlying criminal investigations:
"The criminal-justice system -- a bedrock of our democracy -- must maintain the public's respect and trust. The public places special trust in criminal investigators because these officers are responsible for collecting evidence that might deprive a citizen of his life, liberty, or property. Citizens have the right to expect that criminal investigators are impartially investigating crimes as neutral, detached fact-finders and not abusing their positions of trust. Justice cannot be achieved when state agents place their personal interests above the public's trust.... If a criminal investigator freely engaged in sexual relations with the victims and witnesses involved in the underlying investigation, claims by criminal defendants of unreliable evidence and false accusations would be plentiful. The investigator's and the victim's or witness's credibility would be impugned by the sexual relations. As demonstrated by the testimony of the ASP officials and the state prosecutor in this case, Sylvester's credibility was damaged in exactly this manner. An employee suspected of embezzling $300,000 from a family-owned business will never be brought to justice because Sylvester's conduct compromised the prosecution."
Similarly, the Appeals Court concluded that the State Police's investigation of the relationship between Sylvester and Hawkins was narrowly tailored to serve the state's compelling interest in a fair and unbiased criminal justice system:
"The ASP's investigation focused on whether Sylvester had sexual relations with a crime victim while in the process of conducting a criminal investigation involved that victim. The ASP limited its investigation to conduct that could interfere with Sylvester's work performance and that could negatively impact the ASP's mission of providing essential governmental services.... The ASP was not interested in learning about Sylvester's private, nonjob related sexual activity. The ASP became interested in Sylvester's sexual activity only when a crime victim in an embezzlement case complained that Sylvester's sexual relations with the other crime victim in the same case were damaging the case. As the District Court explained, Sylvester's sexual activity was job-related."
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