Circuit Judge Taibleson, writing for the panel in Jane Doe 9 v. Sloan, wrote that the officers' conduct "left much to be desired" but did not amount to a constitutional violation.
The case stems from a 2019 Stark County investigation into a Dropbox file labeled "Blue Breeze" containing sexually explicit images of local underage girls. Deputy Gary Bent, who served simultaneously as a Deputy Sheriff and Chief of the Toulon Police Department, enlisted Jason Musselman, an auxiliary officer and IT employee, to help identify the victims.
Musselman was not a formal employee of the Sheriff's Office and had received no training in protocols for handling child pornography evidence. He helped identify the girls, then kept the images on his personal computer for his own use. Years later, law enforcement discovered the images during a separate investigation. Musselman pleaded guilty to child pornography offenses and was sentenced to 35 years in prison.
Nine victims sued Musselman, Sheriff Steven Sloan, and Deputy Bent, alleging the officers violated their substantive due process rights by sharing their images with someone lacking proper authority or training. The district court dismissed the constitutional claims while allowing state tort and federal statutory claims against Musselman to proceed.
On appeal, 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 the scope of substantive due process is "very limited" and that judges should be "reluctant to expand the concept."
The plaintiffs relied on York v. Story, a 1963 Ninth Circuit case in which an officer forced a woman to undress and photographed her without any lawful purpose. The Seventh Circuit distinguished York, calling it "egregious police conduct quite distinct" from the defendants' actions and noting that York involved conduct potentially amounting to a Fourth Amendment search.
The panel rejected the plaintiffs' framing of a new fundamental right to be free from the disclosure of nude photos in criminal investigations to unauthorized individuals. The court found the plaintiffs made no effort to conduct the historical inquiry required under 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 added that the Due Process Clause is not a vehicle for judges to fashion evidence-sharing protocols in child pornography cases.
The decision leaves intact the victims' remaining claims, 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.