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RICHMOND, Va. (AP) — A federal appeals court has reinstated a lawsuit against the estate of a former police detective who took explicit photos of a teenager during a "sexting" investigation.
A lower court judge had tossed out the lawsuit filed by Trey Sims, who was 17 at the time the photos were taken in 2014. Sims had been charged with producing child pornography for sending sexually explicit photos of himself to his 15-year-old girlfriend.
As police investigated the case, Detective David Abbott with Manassas police obtained a warrant authorizing photographs of Sims' erect penis, ostensibly for the sake of comparing those photos to the ones in the video. According to court documents, Abbott ordered Sims to masturbate to achieve an erection. When that failed, Abbott took pictures of Sims' penis anyway.
Later, Abbott obtained a second warrant for a medical injection to that would induce an erection. When the warrant became public, though, police and prosecutors backed down in the face of a public outcry. A year later, Abbott committed suicide when police prepared to arrest him on an unrelated child sex-abuse charge.
Sims filed a civil suit alleging the photographs amounted to an unconstitutional search because of the extreme invasion of privacy. U.S. Senior Judge Claude Hilton dismissed the case last year. But in a ruling published Tuesday, the 4th U.S. Circuit Court of Appeals in Richmond reinstated the lawsuit.
"We cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others," Judge Barbara Milano Keenan wrote in an opinion joined by Judge Albert Diaz. Both Keenan and Diaz are appointees of President Barack Obama.
Judge Robert King, appointed by President Bill Clinton, dissented. He emphasized that Abbott was acting to execute a warrant that had been approved by a magistrate and obtained in consultation with a prosecutor.
Julia Judkins, the attorney for Abbott's family, said the family is considering its options, including requesting a rehearing of the case by the full 4th Circuit court.
Judkins said the defense disputes the allegation that Abbott required Sims to masturbate in connection with obtaining the photographs.
Sims' lawyer, Vic Glasberg, said the photographs are clear evidence of what happened and that the facts aren't really in dispute.
"Everybody knows that this was wrong," Glasberg said.