Jessie Casella says she only intended the nude photos of her contained in her cell phone to be enjoyed by her boyfriend. Now she is suing over their public exhibition –- allegedly by a Culpeper, Va., police sergeant who saw them after her boyfriend's arrest.

Culpeper's finest

Police found the photos in the cell phone, which Casella had given Nathan Newhard when he went on a trip, during a search of his possessions. Sgt. Matt Borders allegedly published them by alerting other officers over the police radio system that they “were available for viewing.”

Accepting Borders' generous invitation, several officers “not associated with the arrest” of Newhard took time off from less pressing duties to travel to Culpeper police headquarters “to view the private picture messages,” Casella says in a complaint filed last week.

An Arkansas man recently got national publicity after he alleged that employees of a McDonald's misappropriated nude photos of his wife from the cell phone which he had left in the restaurant. Phillip Sherman's suit stated only negligence claims under state law.

But Casella has included federal civil-rights claims in her case against Borders and the police department because, she says, the Equal Protection Clause of the 14th Amendment “prohibits those acting under the color of law from making a disparaging publication of a person which causes injury to the reputation of the person and deprives her of liberty or a property interest.”

She is seeking unspecified compensatory damages and $350,000 in punitive damages. Newhard has filed a similar suit, alleging he was forced to resign from his job as a teacher after a school official learned of the nude photos of his girlfriend.

An unnamed Culpeper police officer arrested Newhard early on March 30, 2008 for driving under the influence and possession of a firearm. Later that day, Casella alleges, “the cellular telephone came into the hands of Defendant Sergeant Borders,” who told other officers in the station house about the photos and then sent out the radio alert.

“Now her life is a living hell because she never knows when a cop is trying to get too friendly and if he’s seen her naked,” Casella's attorney, Emmett F. Robinson of Lake Ridge, Va., tells On Point.

A threshold legal issue in the case, however, may be whether the publication of nude photos that are an accurate representation of Casella is “disparaging” or defamatory. In Kiesau v. Bantz, 686 N.W.2d 164 (2004), the Iowa Supreme Court said a deputy sheriff could sue a fellow officer for publishing a photo of her with her breasts exposed, but that photo had been digitally altered.

It's also not clear how Casella can overcome the federal courts' general disapproval of cases which would “make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States.”

In a due process case, the U.S. Supreme Court has ruled that an injury to a person's reputation is not “either 'liberty' or 'property' by itself sufficient” to deserve constitutional protection. Paul v. Davis, 424 U.S. 693 (1976).

According to Robinson, the publication of Casella's photos denied her equal protection because “if Ms. Casella was a man then her pictures would have been treated differently.” Moreover, she suffered not only harm to her reputation, but also an injury to her “right to be free from state intrusion into personal privacy.”

But citing Roe v. Wade, the Paul court defined the “zones of privacy” created by constitutional guarantees as “matters relating to marriage, procreation, contraception, family relationships, and childrearing and education.” Any interest Casella had in her “private picture messages” does not seem to fit that definition.

Newhard may have a stronger case since “a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities” is actionable under the 14th Amendment.

By Matthew Heller
3/31/09