Circuit Judge Taibleson, writing for the court, held that while the officers' handling of the evidence "left much to be desired," the conduct did not violate the substantive due process rights of the victims under the Fourteenth Amendment.
The case arose from a Stark County, Illinois, investigation into a Dropbox file labeled "Blue Breeze," which contained sexually explicit images of local underage girls. Deputy Gary Bent, who served as both a Deputy Sheriff and Chief of the Toulon Police Department, enlisted Jason Musselman to help identify the victims.
Musselman was an auxiliary police officer and the department's IT employee, but he was not a formal employee of the Sheriff's Office and had received no training in investigative protocols for handling child pornography. He successfully helped identify the girls but subsequently kept the images on his personal computer for his own use.
Years later, law enforcement discovered the images in Musselman's possession during a separate investigation. Musselman pleaded guilty to child pornography offenses and was sentenced to 35 years in prison. Nine victims subsequently sued Musselman, Sheriff Steven Sloan, and Deputy Bent.
The victims alleged that the officers violated their substantive due process rights by sharing their images with someone lacking proper authority or training. The district court had previously granted partial dismissal, eliminating the constitutional claims while allowing state tort and federal statutory claims against Musselman to proceed.
In affirming the dismissal, Judge Taibleson emphasized that articulating a substantive due process right requires a "careful description" of a liberty interest "deeply rooted in [our] history and tradition." The court noted that the scope of substantive due process is "very limited" and that judges should be "reluctant to expand the concept."
The plaintiffs relied heavily on *York v. Story*, a 1963 Ninth Circuit case involving an officer who forced a woman to undress and posed for photographs without any lawful purpose. The Seventh Circuit distinguished *York*, noting it involved "egregious police conduct quite distinct" from the defendants' actions, including conduct that might have constituted an unreasonable search under the Fourth Amendment.
The court rejected the plaintiffs' attempt to define a new fundamental right to be free from the disclosure of nude photos in criminal investigations to unauthorized individuals. The panel concluded that the plaintiffs made no effort to conduct the required historical inquiry or show that their claimed right satisfied the criteria established in *Washington v. Glucksberg*.
"We reach this conclusion notwithstanding the seriousness of plaintiffs' allegations and the real harm that Musselman caused," Judge Taibleson wrote. The court determined that the Due Process Clause is not a vehicle for judges to fashion evidence-sharing protocols in child pornography cases.
The ruling allows the victims' remaining claims to proceed, including federal statutory claims under 18 U.S.C. § 2255 and state tort claims for intrusion upon seclusion against Musselman and the City of Toulon.