1

The Honorable Robert T. Dawson, United States District Judge for the Western

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-3492

___________

Alex Sylvester, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas.

Doug Fogley; Steve Clemmons; *

Col. Don Melton, *

*

Appellees. *

___________

Submitted: April 21, 2006

Filed: October 18, 2006 (corrected 11/1/06)

___________

Before LOKEN, Chief Judge, BOWMAN and BYE, Circuit Judges.

___________

BOWMAN, Circuit Judge.

This appeal asks whether members of the Arkansas State Police (ASP) violated

a criminal investigator's constitutional right to privacy by investigating an allegation

that the investigator had sexual relations with a crime victim during the course of the

underlying criminal investigation. Like the District Court,1

 we hold that there was no

constitutional violation in this case.
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I.

In January 2003, Sonya Hawkins (Mrs. Hawkins) notified the ASP that she and

her husband (Mr. Hawkins) believed that an employee was embezzling from the

company that the Hawkinses co-owned. Sergeant Steve Clemmons assigned the

embezzlement investigation to Corporal Alex Sylvester, a criminal investigator with

the ASP. In August 2003, Mr. Hawkins complained to Clemmons that Sylvester had

engaged in an affair with Mrs. Hawkins during the investigation and that the affair

hurt the embezzlement case. Clemmons reported the allegations to his supervisor,

Lieutenant Doug Fogley, who reported the allegations to his supervisor, Captain Mike

Davidson. Fogley assigned Clemmons to investigate the allegations. Fogley also

notified Sylvester that the ASP was going to investigate allegations made by Mr.

Hawkins in a complaint filed with the ASP claiming that Sylvester had had an affair

with Mrs. Hawkins while Sylvester was on duty.

Clemmons interviewed Sylvester and Mrs. Hawkins, who both denied that they

had engaged in sexual relations. In September 2003, a polygraph examination of

Sylvester indicated that his denial of a sexual relationship with Mrs. Hawkins was

deceptive. When Sylvester was informed of the polygraph results, he admitted that

he had engaged in sexual intercourse with Mrs. Hawkins at his residence in April

2003. Sylvester admits that he met Mrs. Hawkins "in the course of his duties as a state

police officer." Appellant's Brief at 6. Mrs. Hawkins later corroborated that she and

Sylvester had sexual intercourse at Sylvester's house. When asked why she had been

at Sylvester's house, Mrs. Hawkins explained that she had called Sylvester during the

duty day to ask him questions about her case. Sylvester told her that he needed better

copies of three documents. Mrs. Hawkins explained that the documents that Sylvester

was requesting were at her office and that she could deliver those documents to

Sylvester at his house after work. During Mrs. Hawkins's visit to Sylvester's house,

the two had sexual intercourse.
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When the state prosecutor learned about Sylvester's conduct, the prosecutor

wrote a letter to the ASP that included the following statement:

Obviously the State is not in a position to proceed with the prosecution

of this case based upon Mr. Sylvester’s conduct. Mr. Sylvester’s actions

were not only grossly improper, but they culminated in the dismissal of

a case where a victim was essentially robbed of $300,000.00. The

criminal case, in my opinion, had a good likelihood of conviction on

several of the charges. This has also caused this office to question the

veracity of any investigation or representation made by Mr. Sylvester in

the past or future. While that is unfortunate, I am sure you can

understand that a prosecutor must trust the investigating officer without

question. We trust that his professionalism and willingness to seek

justice will override any ulterior motive or personal feeling that may

develop in a case. Unfortunately, we cannot assume this is true with this

investigator any longer.

Letter by John C. Riedel (Sept. 19, 2003). A federal prosecutor had a similar response

when he learned about Sylvester's conduct and lies. Shortly after Sylvester learned

that Mr. Hawkins had complained about the sexual relationship between Sylvester and

Mrs. Hawkins but before Sylvester had admitted to the conduct, Sylvester contacted

the federal prosecutor to assure the prosecutor that any allegations that Sylvester had

been sexually involved with a witness in the case were untrue. When the prosecutor

later learned that Sylvester admitted to having sexual relations with a witness in one

of his investigations, the prosecutor advised the ASP "that Corporal Sylvester's

credibility was now an issue with respect to future cases because of his conduct and

statements to me." Declaration of Steven N. Snyder (June 21, 2005). The prosecutor

further stated, however, that he had decided not to prosecute the embezzlement case

based on insufficient facts.

In late September 2003, Clemmons reported the results of his investigation to

Fogley. Fogley then reported to Davidson that Sylvester had violated a number of the
2

"Officers shall conduct themselves at all times, both on and off duty, in such

manner as to reflect most favorably on the ASP. Conduct unbecoming an officer shall

include that which brings the ASP into disrespect or reflects discredit upon the officer

as a member of the ASP, or that which impairs the operations or efficiency of the ASP

or officer." ASP Pol'y & P. Manual § 4.080, ¶ 1.

3

"Officers shall conduct their personal business affairs in a manner that does not

discredit or otherwise bring the ASP into disrepute or compromise the officers' ability

to perform their duties." Id. § 4.080, ¶ 2.

4

"Officers shall not engage in sexual contact while on duty . . . ." Id. § 4.080,

¶ 21.

5

"Officers shall not use their official position . . . for personal . . . gain." Id.

§ 4.080 ¶ 9.

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Rules of Conduct in the ASP Policy and Procedure Manual, including rules

prohibiting untruthfulness, insubordination, unbecoming conduct,2

 disreputable

personal conduct,3

 and on-duty sexual conduct.4 Fogley did not mention the rule

prohibiting abuse of position.5

 Fogley recommended that Sylvester receive a five-day

suspension and be transferred out of the Criminal Investigation Division (CID).

Fogley specifically addressed the sexual-conduct allegations:

I realize in this day and time, acts between two consenting adults are

usually viewed as strictly the business of the parties involved

[regardless] of moral issues. However, in this instance the sexual

relationship between Sylvester and Mrs. Sonya Hawkins completely

compromised a $300,000.00 embezzlement investigation and resulted in

a dismissal of charges. Sylvester's behavior also reflected adversely on

the [ASP]'s reputation for honesty, integrity, and professionalism.

Mem. from Fogley to Davidson (Oct. 2, 2003). 

Davidson then reported to his supervisor, Major J.R. Howard, explaining that

the investigation involved three issues: sexual behavior, actions that damage criminal
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prosecutions, and untruthfulness. Addressing the first issue, Davidson stated that it

was his "opinion that while the off-duty, consen[s]ual affair violates God's law it isn't

a violation of ASP policy and therefore, with regards to this issue, I recommend no

disciplinary action be taken." Memo. from Davidson to Howard (Oct. 8, 2003).

Davidson characterized the other two issues, however, as "much more serious." Id.

Davidson wrote, "It is evident that because of Sylvester and [Mrs. Hawkins]'s actions,

a sizeable embezzlement investigation was compromised. . . . When actions on or off

duty affect a policeman's credibility and ability to follow through with their jobs, then

an officer must be accountable for those actions, even if they aren't initially a violation

of policy." Id. Davidson also condemned Sylvester's blatant violation of the

truthfulness policy. Davidson recommended that Sylvester receive a thirty-day

suspension, a reduction in rank, and a transfer to highway-patrol duties.

A Disciplinary Review Board (DRB) convened to review the allegations and

make a recommendation to Colonel Don Melton, who at the time was the Director of

the ASP. The DRB determined that Sylvester had violated rules prohibiting

insubordination, untruthfulness, and improper conduct. As to the improper-conduct

rule, the DRB stated, "While conducting a criminal investigation, [Sylvester] engaged

in a consensual sexual relationship with one of the victims. This brings the [ASP] into

disrespect, reflects discredit upon the officer as a member of the agency and impairs

the operation and efficiency of the department." Letter from DRB to Melton (Nov.

14, 2003). The DRB recommended that Sylvester receive a fifteen-day suspension,

a reduction in rank, and a transfer from the CID to the Highway Patrol.

Before Melton could act on the DRB's recommendation, the ASP initiated

another investigation of inappropriate conduct by Sylvester. The ASP looked into

allegations that while Sylvester was conducting an arson investigation, he gave a tour

of his house to the two female suspects, made sexual comments, made sexual

advances toward one of the suspects, and gave out his personal e-mail address

(studdly10@hotmail.com) rather than his ASP e-mail address. A DRB convened to
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review the results of that investigation. Finding that Sylvester had violated rules

prohibiting unprofessional behavior and unbecoming conduct, the DRB recommended

that Sylvester receive a letter of reprimand and be transferred from the CID.

After reviewing the results of the investigations and the recommendations of

the DRB, Melton discharged Sylvester. Sylvester appealed the discharge decision to

the ASP Commission, which conducted a hearing. Melton's deposition was made a

part of the hearing record. In his deposition, Melton made clear that his discharge

decision was based in large part on Sylvester's untruthfulness. Relevant here is

Melton's testimony relating to Sylvester's sexual relations with Mrs. Hawkins.

Responding to a suggestion by Sylvester's attorney that Sylvester had engaged in

private, consensual, off-duty sexual activity, Melton stated that Sylvester's sexual

activity "occurred during the investigation of which Mrs. Hawkins was one of the

victims." Deposition of Melton at 14:17–18 (July 7, 2004). When Sylvester's

attorney asked Melton when an investigation ends, Melton answered, "[O]ur work

doesn't stop till the prosecution has ended." Id. at 15:23–24. When asked whether the

Rules of Conduct prohibit an investigator from engaging in sexual activity with

witnesses and victims, Melton said that investigators must be detached during an

investigation and should not have any relationships "that would sway, influence

testimony, or make them partial to one person or the other. They're strictly fact

finders." Id. at 17:16–18. Sylvester's attorney insisted on referring to Sylvester's

conduct as private, consensual sex. Melton responded, "I think we disagree on . . . the

relationship. The relationship is this woman, Mrs. Hawkins, was involved . . . as a

victim in the investigation of a substantial embezzlement investigation. . . . It is

unprofessional in any department I've ever been involved in to get involved in

personal relationships with anybody involved in fact finding criminal investigations."

Id. at 21:17–25. Melton iterated that "Sylvester met this woman due to his being

assigned to a criminal investigation. That [sexual] relationship started as a result of

that." Id. at 23:4–6. Ultimately, Melton testified that it is "improper conduct by a

state police investigator during an official investigation" to have sex with a victim of
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the crime being investigated. Id. at 26:8–9. Despite Melton's testimony, the ASP

Commission reinstated Sylvester (without back pay) and transferred him from the CID

to the Highway Patrol.

Unhappy with the ASP Commission's decision, Sylvester sued Clemmons and

Fogley, contending that they violated Sylvester's constitutional rights: "The

investigation of the Plaintiff by Defendants violated the well established rights to

private, intimate sexual activities of the Plaintiff protected under the liberty clause of

the Fourteenth Amendment to the Constitution of the United States" as well as "the

Plaintiff's right to privacy as recognized by the Arkansas Supreme Court as being

embodied in the Arkansas State Constitution." Sylvester's Complaint at 4, ¶¶ 21–22.

Sylvester also sued Melton, contending that he violated Sylvester's constitutional

rights by failing to train employees on privacy rights. The defendants moved for

summary judgment, arguing that Sylvester's constitutional rights had not been

violated, but even if they had been, then the defendants were entitled to qualified

immunity. Agreeing, with the defendants in all respects, the District Court granted

summary judgment to the defendants.

The District Court asked whether an "investigation into a sexual relationship

between a police officer and a principal in an investigation violates that officer's right

of privacy." Sylvester v. Fogley, 383 F. Supp. 2d 1135, 1139 (W.D. Ark. 2005).

Addressing Sylvester's argument that his sexual conduct happened off duty, the

District Court held that Sylvester's relationship with Mrs. Hawkins was "inextricably

linked to his employment" because Sylvester met her during the course of the criminal

investigation and had sex with her "when the pair met to exchange documents related

to the embezzlement case." Id. at 1140–41. The court found it "axiomatic that having

a sexual affair with a principal to a criminal investigation affects that investigation.

The evidence shows a clear and discernable negative impact on [Sylvester]'s ability

to perform his job, both in the embezzlement investigation and in the future, stemming

from his sexual relationship with [Mrs. Hawkins]." Id. at 1141. The court further
-8-

noted that the "ASP investigation into the distinct portion of [Sylvester]'s private life

was justified by the realistic potential for there to be a substantial impact on [his] job

performance resulting from the affair. A criminal investigator's personal involvement

with parties to an investigation could very likely affect his judgment, objectivity, and

credibility." Id. at 1142. Concluding that "a sexual relationship between an officer

and a principal in an investigation clearly has the potential of compromising that

officer's ability to conduct the investigation impartially and credibly," the court held

that the ASP's investigation of Sylvester's sexual relationship with Mrs. Hawkins did

not violate Sylvester's constitutionally protected privacy rights. Id. at 1143. The court

similarly concluded that the claim against Melton failed as a matter of law.

The District Court also held that the defendants were entitled to qualified

immunity, stating that "when presented with evidence that a police officer had

compromised his duties by engaging in a sexual relationship with a principal in an

investigation, reasonable police-department officials would not understand an

investigation into that conduct to be a privacy violation unless the investigation went

beyond its constitutional scope by delving into matters not legitimately related to the

officer's job performance." Id. at 1144. The Court suggested that the ASP may have

had a duty to investigate Mr. Hawkins's allegations: "[F]ailing to conduct an

investigation may have exposed the ASP to liability of a different kind by turning a

blind eye to inappropriate police conduct in violation of department policy. Further

misconduct by [Sylvester] may have eventually turned attention to the ASP's failure

to take disciplinary action with prior knowledge of [Sylvester]'s behavior. It is more

reasonable to expect an ASP official to investigate complaints of misconduct than to

allow police officers to compromise the objectives of the ASP in any manner as long

as they do so off-duty." Id.

Sylvester appeals only the dismissal of his claims against Clemmons and

Fogley. Sylvester asserts, "This lawsuit is not about whether [Sylvester] should . . .
-9-

have been punished for lying. Rather, it regards whether the [ASP] should have even

investigated the consensual, sexual relationship at all." Sylvester's Brief at i.

II.

We review de novo the District Court's grant of summary judgment to the

defendants. Mayer v. Nextel W. Corp., 318 F.3d 803, 806 (8th Cir.), cert. denied, 540

U.S. 823 (2003). Summary judgment is proper only if the evidence, viewed in the

light most favorable to Sylvester and giving him the benefit of all reasonable

inferences, shows that there are no genuine issues of material fact and that the

defendants are entitled to judgment as a matter of law. See id.; Fed. R. Civ. P. 56(c).

Sylvester contends that his fundamental right of privacy prohibited the ASP

from investigating his sexual relations with Mrs. Hawkins. Sylvester essentially

argues that when Mr. Hawkins complained to the ASP that Sylvester's sexual relations

with Mrs. Hawkins were threatening the embezzlement case, the ASP was required

to inform Mr. Hawkins that the Constitution bestows upon Sylvester the unfettered

right to engage in sexual intercourse with crime victims during the course of his

investigation of the underlying crime without interference from the ASP. We

disagree.

Procedural-due-process rights emanate from "the words of the Due Process

Clause of the Fourteenth Amendment: 'No State shall . . . deprive any person of life,

liberty, or property, without due process of law.'" Walker v. City of Kansas City, 911

F.2d 80, 93 (8th Cir. 1990), cert. denied, 500 U.S. 941 (1991). Sylvester does not

assert procedural-due-process rights, however, but instead asserts a substantive

privacy right. We have stated that "the source of 'substantive due process' is

somewhat more obscure" than procedural due process. Id. "Obscure" might best

describe the right of privacy. Although the right of privacy is not found in the text of

the Constitution, the Supreme Court has identified this penumbral right in the
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emanations from various amendments. Griswold v. Connecticut, 381 U.S. 479, 484

(1965) (explaining that Supreme Court "cases suggest that specific guarantees in the

Bill of Rights have penumbras, formed by emanations from those guarantees that help

give them life and substance" and that guarantees in various amendments "create

zones of privacy"); see Olmstead v. United States, 277 U.S. 438, 478 (1928)

(Brandeis, J., dissenting) (propounding that the Constitution confers upon individuals

a privacy right against the government "to be let alone—the most comprehensive of

rights and the right most valued by civilized men," a right that must be protected

against "every unjustifiable intrusion by the Government upon the privacy of the

individual"). The Supreme Court recently explained, "Liberty protects the person

from unwarranted government intrusions into . . . private places. In our tradition the

State is not omnipresent in the home. . . . Liberty presumes an autonomy of self that

includes freedom of thought, belief, expression, and certain intimate conduct."

Lawrence v. Texas, 539 U.S. 558, 562 (2003); see also Whalen v. Roe, 429 U.S. 589,

599–600 (1977) (explaining that the right of privacy generally involves either "the

individual interest in avoiding disclosure of personal matters" or "the interest in

independence in making certain kinds of important decisions").

Even if "certain intimate conduct" is protected as a liberty/privacy right, the

exact contours of that right are unknown and identifying the precise standard of

review to be applied to the government's interference with that right can be

formidable. For example, in Lawrence the Supreme Court struck down a Texas

statute criminalizing homosexual sodomy because the "statute further[ed] no

legitimate state interest which can justify its intrusion into the personal and private

life of the individual." 539 U.S. at 578 (emphasis added). This language implies that

the Court applied a rational-basis standard of review instead of a strict-scrutiny

standard, inferring that the right to engage in homosexual sodomy is not a

fundamental right. Id. at 586 (Scalia, J., dissenting) (asserting that the Court struck

down the sodomy statute by applying rational-basis review and without holding that

the right to engage in homosexual sodomy is a fundamental right). Approximately
6

Our review of numerous cases involving police-department investigations of

their members' sexual conduct reveals that police officers generally have a right of

privacy in their private sexual relations. Courts have not, however, applied the same

standard of review when analyzing the constitutionality of police-department

investigations into this behavior. See, e.g., Fugate v. Phoenix Civil Servs. Bd., 791

F.2d 736, 741 (9th Cir. 1986) (applying rational-basis review to reject a police

officer's privacy claim where the officer's sexual behavior was not private,

compromised the officer's performance, and threatened to undermine the police

department's morale and reputation); Shawgo v. Spradlin, 701 F.2d 470, 483 (5th Cir.)

(applying rational-basis review to hold that a police department's prohibition of offduty dating and cohabitation did not violate police officer's privacy rights), cert.

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one year before the Supreme Court decided Lawrence, the Arkansas Supreme Court

held "that the fundamental right to privacy implicit in our law protects all private,

consensual, noncommercial acts of sexual intimacy between adults." Jegley v. Picado,

80 S.W.3d 332, 350 (Ark. 2002) (explaining that although the Arkansas Constitution

does not explicitly guarantee a fundamental right of privacy, such a right is implicit

in various provisions of the Arkansas Constitution and in various statutes, rules, and

precedent). Classifying this privacy right as a fundamental right, the court applied

strict scrutiny to determine the constitutionality of a state statute criminalizing

homosexual sodomy: "When a statute infringes upon a fundamental right, it cannot

survive unless a compelling state interest is advanced by the statute and the statute is

the least restrictive method available to carry out the state interest." Id. (citation,

quotations and alteration omitted). Because no compelling state interest justified the

sodomy statute, the court ruled that the statute was unconstitutional. Id.

Sylvester asks us to extend the principles developed in Lawrence and Jegley to

hold that he has a fundamental right to engage in the conduct at the heart of this case.

To our knowledge, no court has held that a police officer has a fundamental privacy

right that precludes a police department from investigating a citizen's complaint that

the officer had sexual relations with a crime victim during the course of the

investigation involving that victim.6

 In our view, however, we need not determine
denied, 464 U.S. 965 (1983); Thorne v. City of El Segundo, 726 F.2d 459, 468–71

(9th Cir. 1983) (applying heightened level of scrutiny to hold that police department

violated a job applicant's right of privacy by investigating her private, off-duty, nonjob-related, sexual affair with a police officer), cert. denied, 469 U.S. 979 (1984);

Briggs v. N. Muskegon Police Dep't, 563 F. Supp. 585, 590–91 (W.D. Mich. 1983)

(applying heightened scrutiny to hold that police department violated a police officer's

privacy rights by investigating the officer's off-duty, adulterous affair that did not

affect the officer's job performance); Jackson v. Howell, 577 F. Supp. 47, 50–51

(W.D. Mich. 1983) (applying rational-basis review in case involving facts similar to

those in Sylvester's case to conclude that a police department does not violate an

officer's privacy rights by investigating the officer's off-duty sexual relations with a

person he met while on duty because the police department "has an interest in seeing

that its officers do not use their official positions to solicit female complainants");

Shuman v. City of Philadelphia, 470 F. Supp. 449, 460 (E.D. Pa. 1979) (conceding

"that the Police Department has an interest and may legitimately investigate some

areas of personal, sexual activities engaged in by its employees where those activities

impact upon job performance," but stating that "investigations which exceed the

bounds set by the legitimate needs of the [Police] Department trample upon [a police

officer's] constitutionally protected zones of privacy"); Fabio v. Civil Serv. Comm'n,

414 A.2d 82, 84, 89–90 (Pa. 1980) (applying strict scrutiny to hold that police

department's investigation of a police officer's off-duty sexual relations with his wife's

eighteen-year-old sister did not violate the officer's privacy rights). But see Marcum

v. McWhorter, 308 F.3d 635, 643 (6th Cir. 2002) (holding that a deputy sheriff's

"decision to enter into an intimate, sexual relationship and cohabitation with a married

woman is [not] a fundamental right deeply rooted in the Nation's history and tradition

or implicit in the concept of ordered liberty" such that it enjoys constitutional

protection).

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whether Sylvester's sexual conduct is protected as a fundamental privacy right because

we would reach the same result applying either the strict-scrutiny standard of review

or the rational-basis standard of review. Therefore, we will simply assume, without

deciding, that the fundamental right to privacy under either the United States

Constitution or the Arkansas Constitution encompasses Sylvester's conduct. Based
7

We recognize that the Supreme Court in Kelley v. Johnson, 425 U.S. 238,

240–41, 247–48 (1976), applied rational-basis review to uphold a police-department

regulation limiting the style and length of police officers' hair against a right-ofprivacy claim. Because the standard of review does not dictate the outcome of

Sylvester's appeal, we will err on the safe side by applying strict scrutiny here.

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on that assumption, we will apply strict scrutiny to the ASP's investigation of

Sylvester's sexual relations with Mrs. Hawkins.7

The strict-scrutiny standard is a familiar one. To survive strict scrutiny, the

defendants must show that their investigation of Sylvester's sexual relations with Mrs.

Hawkins "advances a compelling state interest and is narrowly tailored to serve that

interest." Republican Party of Minn. v. White, 416 F.3d 738, 749 (8th Cir. 2005), cert.

denied, 126 S. Ct. 1165 (2006). We conclude that the defendants have met both

prongs of the strict-scrutiny standard.

First, we conclude that a police force has a compelling interest in precluding a

criminal investigator from having sexual relations with witnesses or victims involved

in an underlying criminal investigation. The criminal-justice system—a bedrock of

our democracy—must maintain the public's respect and trust. The public places

special trust in criminal investigators because these officers are responsible for

collecting evidence that might deprive a citizen of his life, liberty, or property.

Citizens have the right to expect that criminal investigators are impartially

investigating crimes as neutral, detached fact-finders and not abusing their positions

of trust. Justice cannot be achieved when state agents place their personal interests

above the public's trust.

To advance the fair and unbiased administration of justice, criminal

investigators must respect the rights of those suspected of committing a crime. A

person under investigation would certainly be interested in knowing whether the

state's investigator is having sexual relations with the alleged crime victim and chief
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accuser. If a criminal investigator freely engaged in sexual relations with the victims

and witnesses involved in the underlying investigation, claims by criminal defendants

of unreliable evidence and false accusations would be plentiful. The investigator's and

the victim's or witness's credibility would be impugned by the sexual relations. As

demonstrated by the testimony of the ASP officials and the state prosecutor in this

case, Sylvester's credibility was damaged in exactly this manner. An employee

suspected of embezzling $300,000 from a family-owned business will never be

brought to justice because Sylvester's conduct compromised the prosecution. 

The police force has another compelling interest in prohibiting sexual relations

between criminal investigators and crime victims: victims should be confident that

police officers are striving to bring perpetrators to justice and are not exploiting crime

victims. A criminal investigator permitted to have sexual relations with crime victims

could use his authority to sexually exploit those victims. See, e.g., Jackson v. Howell,

577 F. Supp. 47, 48 (W.D. Mich. 1983) (noting that a crime victim "expressed some

concern for her safety because she had been having an affair" with a police officer

who was investigating her case). Even the possibility of such exploitation is

intolerable.

Finally, Sylvester claims that he was constitutionally entitled to be free from an

investigation by his employer into his sexual relations with Mrs. Hawkins because the

embezzlement investigation had been or was nearly completed at the time. This is an

unfortunate and naive view of an investigator's role in the prosecution of a criminal

defendant. As explained by Melton, a criminal investigator's work does not end until

the prosecution of the case ends. The state has a compelling interest in ensuring that

the integrity of criminal prosecutions is never questioned because an investigator

engaged in sexual activity with a witness or victim involved in the underlying criminal

investigation.
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Second, we conclude that the ASP's investigation of Mr. Hawkins's allegations

was narrowly tailored to serve the state's compelling interest in administering a fair

and unbiased criminal-justice system. The ASP's investigation focused on whether

Sylvester had sexual relations with a crime victim while in the process of conducting

a criminal investigation involving that victim. The ASP limited its investigation to

conduct that could interfere with Sylvester's work performance and that could

negatively impact the ASP's mission of providing essential governmental services.

Cf. Thorne v. City of El Segundo, 726 F.2d 459, 471 (9th Cir. 1983) (holding that

police department's investigation of the private, off-duty sexual activities of an

applicant for a position with the department was not narrowly tailored to meet the

police department's interests because there was no showing that such activities

impacted the applicant's work performance); Swope v. Bratton, 541 F. Supp. 99, 108

(W.D. Ark. 1982) (explaining that a police officer has a right to engage in sexual

activities free from governmental intrusion unless those activities interfere with the

officer's "work performance or the efficiency of the governmental service").

The ASP was not interested in learning about Sylvester's private, non-jobrelated sexual activity. The ASP became interested in Sylvester's sexual activity only

when a crime victim in an embezzlement case complained that Sylvester's sexual

relations with the other crime victim in the same case were damaging the case. As the

District Court explained, Sylvester's sexual activity was job-related. Sylvester met

Mrs. Hawkins after he was assigned to investigate the embezzlement case. While on

duty in his office, Sylvester talked to Mrs. Hawkins about her case and told her that

he needed documents essential to the investigation. The pair arranged to have Mrs.

Hawkins deliver the documents to Sylvester's home. It was during this visit that

Sylvester and Mrs. Hawkins had sexual intercourse. The ASP's investigation of this
8

Because we conclude that Sylvester's constitutional rights were not violated,

we need not and do not address the District Court's qualified-immunity holding.

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job-related conduct was narrowly tailored to serve the ASP's compelling interest in

maintaining the integrity and effectiveness of the criminal justice system.8

III.

For the reasons discussed, we affirm the District Court's grant of summary

judgment to the defendants.

LOKEN, Chief Judge, concurring in the result only.

______________________________