'Sexting' Lawsuit: Manassas Man's Rights Privacy Violated

MANASSAS, VA — A four-year legal battle over privacy rights by a Manassas man in an infamous "sexting" case — stemming from his 2014 arrest as a teenager on child pornography charges after he exchanged sexually explicit videos with his then-girlfriend — was decided in his favor this week. Trey Sims filed a lawsuit against a Prince William County prosecutor and a now-deceased Manassas City police officer saying his Fourth Amendment rights had been violated during the investigation.

The U.S. Court of Apppeals for the 4th Circuit, in overturning the lawsuit's dismissal in U.S. District Court by a 2-1 decision, said Tuesday that a warrant requiring then 17-year-old Trey Sims to be photographed by police with his genitals exposed was an "obvious, unconstitutional violation."

Sims was charged with child pornography after exchanging sexually explicit videos with his then-15-year-old-girlfriend and ultimately spent a year probation and completed 100 hours of community service before the case was dismissed.

It had gone went viral when prosecutors planned to take sexually explicit photos of the teen, going so far as proposing to inject the boy with chemicals to cause sexual arousal so they could compare the photo to ones he sent to his girlfriend. Prosecutors decided against using the search warrant photos and allowed a warrant for a second set of photos to expire.

Sims was charged with two felony counts of manufacturing and possessing child pornography after the girl's mother told police her 15-year-old daughter had been sent unsolicited "pornographic videos" after "repeatedly being told to stop," police said at the time. Virginia's sexting law allows prosecutors to charge minors as felons in certain cases.

Manassas City Police detective David E. Abbott Jr. was the lead investigator, and Assistant Commonwealth's Attorney Clairborne Richardson was the lead prosecutor. Abbott committed suicide in December 2015 while police were trying to arrest him on unrelated pedophilia charges. Richardson was dismissed from the lawsuit last year by U.S. District Judge Claude M. Hilton.

In keeping the lawsuit alive, the 4th Circuit ruled that, in the words of Circuit Judge Barbara Milano Keenan, "We cannot perceive any circumstance that would justify a police search requiring an individual to masturbate in the presence of others. Sexually invasive searches require that the search bear some discernible relationship with safety concerns, suspected hidden contraband, or evidentiary need."

Abbott filed an unusual defamation lawsuit against the teen's lawyer for statements made to the press. Abbot quietly dropped the suit in November 2015. He had ordered Sims to masturbate in front of two uniformed officers. That didn't work, so the warrant was issued that allowed police to take him to a hospital for "an erection-inducing injection."

Sims' guardian, Carlos Flores Laboy, told the Washington Post at the time that the demand for more photos was ironic. "They're using a statute that was designed to protect children from being exploited in a sexual manner to take a picture of this young man in a sexually explicit manner."

As it is, Keenan pointed out in her ruling that the initial photos taken by Abbott were never used as evidence in juvenile court but that the judge still found reason to find Sims guilty of possessing child pornography.

In dissent, Judge Robert Bruce King wrote: "No reasonable police officer or lawyer would have considered this search warrant, duly issued by the Virginia magistrate, to violate a clearly established constitutional right."

The lawyer for Abbott's estate, Julia Judkins, told the Post she's uncertain about her next move. She could seek to have the entire 4th Circuit rehear the case, appeal it to the U.S. Supreme Court and return to district court in Alexandria and go on with the trial.

Sims' attorney, Vic Glasberg, told the newspaper that the ruling did not create new law. “It is settled law that the mere issuance of a warrant by a magistrate — who in Virginia need not even be a lawyer — does not immunize an officer who requests or executes an unreasonable warrant. The issue was: is it unreasonable for police officers to force a minor to take down his pants and manipulate his penis for a photograph. Most people agree it is. This is what the court held, and also that Detective Abbott should have known it."

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