The Arkansas Supreme Court has ruled that a woman cannot sue a state trooper for groping her during a traffic stop because she failed to explain in her complaint how the physical contact was “sexual in nature.”

Barbara Marshall alleged that Trooper Dennis Simons went far beyond a legal pat-down search, groping her on the breast and between the legs after pulling over a vehicle in which she was a passenger. When she asked him to stop, he allegedly replied, “Don't you know I'm a man with a gun?”

The dictionary definition of “grope” is “handle or fondle for sexual pleasure.” And a Phillips County Circuit Court judge denied a motion to dismiss, finding that Marshall had pleaded sufficient facts to support a claim under the Arkansas Civil Rights Act.

Police officers in Arkansas are not immune from personal liability for “malicious acts or omissions, occuring within the course and scope of their employment.”

But the Supreme Court reversed in an opinion that suggests the justices have not seen the Oscar-winning movie “Crash,” in which a cop gropes a woman during a traffic stop.

“We are remiss to see how the conclusory facts as set out in Marshall’s complaint demonstrate either malice or a conscious violation of the law,” Justice Donald L. Corbin wrote for the court.

Marshall, he said, “categorizes the touching as groping, without any further explanation as to how Simons’s contact with her was sexual in nature,” and

Her conclusion that this [pat-down] search was sexual in nature is nothing more than that, a conclusory allegation; as such, it is insufficient to establish that Simons consciously violated any existing law.

In his answer to the complaint, Simons claimed he performed a pat-down search after Marshall failed to produce identification and asked to step out of the car. He had already arrested the driver on an outstanding warrant.

But if groping is by definition sexual, what more –- at least at the pleading stage -- did Marshall need to allege? As a reader of the Northwest Arkansas Morning News put it, “If the officer groped the subject, he indeed sexually harassed the subject.”

Moreover, if Simons did not have a malicious intent, why did he allegedly say, “Don't you know I'm a man with a gun?” By allowing him to evade liability without any factual discovery in the case, the Supreme Court may have given cops a license to grope.

By Matthew Heller
5/1/07