Dirksen Federal Courthouse, Chicago
CHICAGO — A federal appeals panel has agreed a group of women lack a legal pathway to continue litigation against a downstate police agency for allegedly allowing improper access to evidence used in child pornography prosecution.
The plaintiffs, whose identities are not disclosed, said the issue dates to 2019 when the Stark County Sheriff’s Office learned of “Blue Breeze,” a Dropbox file containing sexually explicit images of local girls. According to their allegations, Sheriff Steven Sloan assigned the investigation to Gary Bent, a deputy sheriff and Toulon Police Chief. They say Bent then sought help identifying victims from Jason Musselman, an auxiliary Toulon officer who served on the department’s information technology staff and had been the county’s Emergency Services Disaster Agency director.
Musselman became the subject of a different child pornography investigation in 2021, through which authorities learned he still had Blue Breeze images in his possession. He is now serving a 35-year prison sentence.
The plaintiffs, at least one of whose images was in the Blue Breeze files, lodged three different civil suits against Musselman. Those actions were consolidated for discovery and now include claims against the county, city, Sloan and Bent, all of whom have moved to dismiss the intrusion upon seclusion and 14th Amendment allegations.
The plaintiffs are represented by attorneys from the firm of Hasselberg Grebe Snodgrass Urban & Wentworth, of Peoria.
U.S. District Judge Jonathan Hawley, of the Central District of Illinois in Peoria, dismissed the due process claims, finding a failure to allege violation of a recognized constitutional right and, even if that allegation were sufficient, Sloan and Bent could avoid prosecution under qualified immunity. He further dismissed the intrusion claims against all parties except for Toulon.
The plaintiffs challenged Hawley’s ruling before the U.S. Seventh Circuit Court of Appeals. Judge Rebecca Taibleson wrote the panel’s opinion, filed April 14; Judges Michael Brennan and Kenneth Ripple concurred.
“The parties debate at length about how to define the alleged right that defendants violated when they gave Musselman access to the plaintiffs’ images,” Taibleson wrote, after calling the underlying crimes "vile."
“The complaints use various formulations to describe the claimed right, including the ‘right to the privacy of sexual highly personal matters’ and the ‘right to avoid the nonconsensual dissemination of access to plaintiffs’ private sexual images.’ But plaintiffs do not defend those formulations on appeal, and for good reason: They are too broad to capture the precise interest at stake here because they omit key factual details that are critical to ‘set(ting) the boundaries of the liberty interest’ at stake.”
The panel cited a 2004 en banc Seventh Circuit ruling, Doe v. City of Lafayette, and its 2003 opinion, Doe v. Gray, regarding the pleading requirements when the allegations implicate a criminal or child welfare investigation. Taibleson said Judge Hawley “improved on the complaints’ formulations, defining the right as ‘the right to be free from one’s nude photos that are the subject of an ongoing criminal investigation being disclosed in furtherance of the investigation to individuals without actual authority to access them.’ ”
But the government defendants stressed the importance of the images as already existing and that the recipient, Musselman, was working in a professional capacity on the investigation.
Saying Judge Hawley’s “formulation seems about right,” Taibleson added that although both sides made reasonable proposals to add to the description, “further wordsmithing would be wasted here, because none of these formulations describes a fundamental liberty interest protected by the Due Process Clause.”
The panel said the plaintiffs premised their arguments on preceding cases that are both distinguishable from their allegations and also “predate the Supreme Court’s recent and extensive treatment of a constitutional “privacy right” and substantive due process,” a reference to the landmark 2022 ruling in Dobbs v. Jackson Women’s Health Organization.
Although Musselman was an untrained auxiliary officer, the panel said, finding for the plaintiffs would require recognizing a new right suitable for due process protection and doing so without a showing of a suitable historical inquiry.
“We reach this conclusion notwithstanding the seriousness of plaintiffs’ allegations and the real harm that Musselman caused,” Taibleson wrote. “As defendants acknowledged at oral argument, their handling of the Blue Breeze files left much to be desired. But the Due Process Clause is not a vehicle for judges to fashion evidence-sharing protocols in child pornography cases. Not every wrong is a constitutional one, and plaintiffs continue to press their statutory and common-law tort claims.”
