No New Substantive Due Process “Privacy” Right for Investigative Sharing of Illicit Images Without Historical Grounding

1. Introduction

Jane Doe 1, et al. v. Steven V. Sloan, et al. is a Seventh Circuit decision arising from a child-exploitation investigation in Stark County/Toulon, Illinois. In 2019, officers investigating a Dropbox folder (“Blue Breeze”) containing sexually explicit images of local underage girls provided a link to Jason Musselman, an auxiliary police officer and the Toulon Police Department’s IT worker, to help identify the victims. Musselman did assist with identifications—but he also retained the images for personal use, later discovered when he was investigated and convicted for other child pornography crimes and sentenced to 35 years’ imprisonment.

Nine victims sued Musselman under 18 U.S.C. § 2255(a) and Illinois tort law, and they also sued Sheriff Steven Sloan, Deputy/Chief Gary Bent, and municipal entities under 42 U.S.C. § 1983, alleging a violation of Fourteenth Amendment substantive due process based on giving Musselman access to the images. The district court dismissed the § 1983 claims (finding no recognized constitutional right, and alternatively qualified immunity), and entered a partial final judgment under Rule 54(b). The Seventh Circuit affirmed.

Central issue: whether the Due Process Clause protects a fundamental “privacy” liberty interest that is violated when police, during an investigation, share sexually explicit images of minors with an auxiliary/untrained person assisting the investigation—where that person later misuses and retains the images.

2. Summary of the Opinion

The Seventh Circuit held that plaintiffs failed to allege the violation of a fundamental liberty interest protected by substantive due process. Applying the Supreme Court’s modern approach—especially Washington v. Glucksberg and Dobbs v. Jackson Women’s Health Org.—the court emphasized that recognizing a new substantive due process right requires a careful description of the asserted right and a showing that it is deeply rooted in the Nation’s history and tradition. Plaintiffs relied on privacy-oriented decisions (notably York v. Story, Whalen v. Roe, and the Seventh Circuit’s Wolfe v. Schaefer), but the court found them factually and doctrinally insufficient, and largely predating the now-required historical analysis.

Because plaintiffs did not supply the requisite historical grounding—and the cited cases did not establish such a tradition—the court declined to “break new ground” by recognizing the proposed right. The court stressed that serious wrongdoing and poor investigative handling do not automatically equate to a constitutional violation, invoking DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.: the Due Process Clause does not “transform every tort committed by a state actor into a constitutional violation.”

3. Analysis

3.1 Precedents Cited

• Indep. Tr. Corp. v. Stewart Info. Servs. Corp. and Nelson v. City of Chicago
  Cited for pleading-stage posture and standards of review: at a motion to dismiss, well-pleaded facts are taken as true and viewed favorably to plaintiffs, and dismissal is reviewed de novo. These cases frame the procedural lens: even crediting plaintiffs’ allegations about foreseeable risk and investigative mishandling, the question remained whether the law recognizes the asserted constitutional right.
• Ashcroft v. Iqbal and Bell Atl. Corp. v. Twombly
  Provide the plausibility standard for complaints. Here, plausibility was not the decisive defect; rather, the court treated the core failure as the absence of a recognized substantive due process right on these facts.
• Dobbs v. Jackson Women’s Health Org.
  Supplies the modern substantive due process methodology emphasized by the panel: the Due Process Clause protects only a “select list” of unenumerated fundamental rights, defined by whether they are “deeply rooted” and essential to ordered liberty. Dobbs also underscores that historical inquiry is “essential” when recognizing any new component of liberty. The court used Dobbs as a reason to treat older “privacy” formulations with caution when they do not employ the demanded historical analysis.
• Washington v. Glucksberg
  The backbone for the court’s framework: (1) give a careful, specific description of the asserted liberty interest; (2) require grounding in national history, traditions, and practices. The panel treated plaintiffs’ request as a bid to recognize a new right and invoked Glucksberg’s instruction to “exercise the utmost care.”
• Robbin v. City of Berwyn, Christensen v. County of Boone, and Campos v. Cook County
  Seventh Circuit authority reinforcing that substantive due process claims are difficult, require careful definition, and should not be casually expanded. These cases support institutional restraint: even compelling facts do not warrant expanding substantive due process absent the demanded foundation.
• Doe v. City of Lafayette (en banc) and Doe v. Gray
  Used to show why broad “privacy” phrasing is inadequate. The right must be defined with boundaries and context; general references to privacy in medical/sexual information do not automatically entail a specific right in a specific investigative setting (Gray).
• K.C. v. Individual Members of Med. Licensing Bd. of Ind.
  Cited as an example of how courts properly define the precise claimed right (there, parents’ access to gender transition procedures for children), illustrating the “careful description” requirement.
• Khan v. Gallitano
  Cited for the “deeply rooted” standard, reinforcing that plaintiffs bear the burden of connecting the asserted liberty to history and tradition.
• York v. Story
  Plaintiffs’ principal “privacy” precedent. The court distinguished it: York involved officers coercing a woman to undress and pose, potentially implicating the Fourth Amendment, and then circulating photos within the department without investigative purpose. Here, by contrast, the sharing occurred “in the course of an investigation” for identification purposes, and the later misuse was Musselman’s independent criminal act.
• Whalen v. Roe and Wolfe v. Schaefer
  Whalen’s dicta described two strands of privacy (avoiding disclosure of personal matters; independence in important decisions). Wolfe acknowledged a possible constitutional privacy interest in certain categories of highly personal information, while noting the Supreme Court’s tendency to limit such a right. The panel found these cases too general and factually distant, and—critically—insufficient under the now-emphasized Dobbs/Glucksberg historical methodology.
• DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.
  The court relied on DeShaney to underscore a limiting principle: the Due Process Clause is not a general remedy for wrongful conduct by state actors, and not every grievous wrong is constitutional. This supports channeling remedies to statutory and common-law tort claims (which plaintiffs continued to pursue).

3.2 Legal Reasoning

1. Start with the correct doctrinal category: substantive due process is narrow.
   Plaintiffs pursued a substantive due process theory (not procedural due process and not a Fourth Amendment search/seizure theory). The court reiterated that substantive due process protects only certain unenumerated fundamental rights and that expansion is disfavored.
2. Define the right with specificity (“careful description”).
   The panel rejected plaintiffs’ broad, abstract formulations (e.g., a general right to privacy in sexual matters) as insufficiently bounded. The district court’s formulation—essentially, a right against disclosure, during a criminal investigation, of nude photos to persons without actual authority—was treated as “about right” for analytic purposes. The court noted possible factual refinements (minors; lack of training; later retention; photos pre-existed), but found that no wording solved the core problem.
3. Ask whether the carefully described right is “deeply rooted” in history and tradition.
   Under Glucksberg and Dobbs, this is the decisive step. The panel held that plaintiffs’ authorities did not establish a historically grounded liberty interest in this specific context: investigatory sharing of illicit images for identification with an assisting (but untrained) auxiliary officer/IT worker.
4. Decline to recognize a new right without the required historical showing.
   The court treated plaintiffs’ request as asking it to “break new ground.” Given the lack of historical analysis in plaintiffs’ briefing and the absence of controlling precedent, the panel refused to constitutionalize evidence-sharing protocol choices.
5. Separate moral wrongdoing from constitutional violation.
   The opinion explicitly recognized the “vile” nature of Musselman’s crimes and criticized the investigative handling as leaving “much to be desired,” but emphasized that the Constitution is not a general supervisory code for investigative best practices. Remedies remained available under § 2255(a) and tort law.

3.3 Impact

Doctrinal tightening of “privacy” under substantive due process in the Seventh Circuit. The decision reinforces that broad invocations of a constitutional “privacy right” are unlikely to succeed post-Dobbs unless anchored in the Glucksberg historical test and articulated at the correct level of specificity.

Practical effect on § 1983 claims involving mishandling of sensitive evidence. Plaintiffs alleging that investigators shared, disclosed, or mishandled sexually explicit material (even involving minors) will face steep barriers if they frame the claim as substantive due process rather than relying on statutory remedies or state tort law. The opinion signals that courts will be hesitant to treat investigatory sharing decisions—however negligent—as violations of fundamental liberty interests absent clear historical and precedential support.

Litigation strategy implications. Future plaintiffs may:

• lean more heavily on statutory causes of action (like 18 U.S.C. § 2255(a)) and state privacy torts;
• attempt alternative constitutional theories when factually available (e.g., Fourth Amendment claims where the state created or seized intimate images through coercive or unlawful means); and
• if pursuing substantive due process, provide substantial historical analysis and narrowly framed right definitions tailored to investigative contexts.

Institutional message to law enforcement (without constitutionalization). Although the court refused to impose constitutional liability, it implicitly highlights the operational risk of using untrained auxiliaries/third parties for sensitive digital evidence—risk that may be addressed through policy, training, and chain-of-custody controls, but not (on this record) through substantive due process damages actions.

4. Complex Concepts Simplified

• 42 U.S.C. § 1983: A federal statute allowing suits for money damages (and sometimes other relief) against state/local officials who, acting under color of law, violate federal rights. It does not itself create rights; it enforces rights found elsewhere (e.g., the Constitution).
• Substantive due process: A doctrine under the Due Process Clause that protects certain fundamental liberties from government interference—even if procedures were fair. Courts treat it as limited to a small set of rights meeting strict criteria.
• “Careful description” requirement (Glucksberg): Courts demand a precise statement of the alleged right, not a broad abstraction (e.g., not “privacy,” but privacy in a particular setting).
• “Deeply rooted in history and tradition” (Glucksberg/Dobbs): To recognize an unenumerated fundamental right, courts ask whether it has strong historical support in American legal tradition. Without that grounding, courts generally refuse to create the right.
• Motion to dismiss (Twombly/Iqbal): Early-stage request to end a case because, even assuming alleged facts are true, the law does not provide relief. Here, the legal insufficiency was the absence of a recognized constitutional right on these facts.
• Qualified immunity: A defense shielding individual officials from damages unless they violated clearly established law. The district court relied on it as an alternative ground, but the Seventh Circuit affirmed on the more fundamental point: no cognizable substantive due process right was alleged.
• 18 U.S.C. § 2255(a): A federal civil remedy enabling victims of specified child sexual exploitation offenses to sue perpetrators for damages—separate from constitutional claims.
• Intrusion upon seclusion (Illinois tort): A state-law privacy tort focusing on highly offensive intrusion into private affairs. The opinion emphasizes that serious wrongs may be remediable through tort even when they are not constitutional violations.

5. Conclusion

The Seventh Circuit’s decision affirms a restrained, post-Dobbs approach to substantive due process: plaintiffs must define the asserted liberty interest with specificity and demonstrate it is deeply rooted in national history and tradition. Reliance on older or generalized “privacy” cases—such as York v. Story, Whalen v. Roe, and Wolfe v. Schaefer—was insufficient to constitutionalize the investigative sharing of illicit images, even where later criminal misuse caused severe harm. The opinion’s broader significance lies in its insistence that grievous misconduct and investigative failures do not, without more, create new constitutional torts; statutory and state-law remedies remain the primary vehicles for relief in this terrain.