Legal Commentary

Emotional Distress Lawsuit Based on Public Detention of Muslim Woman in Nightgown (During Search of Her Home)

By Eugene Volokh

I blogged in March about the court?s rejecting the religious accommodation claim in this case, but the court (in Jama v. United States (W.D. Wash. May 17)) has now decided that the intentional infliction of emotional distress claim could go forward:

This controversy stems from a July 2006 raid of Plaintiff?s apartment by federal and local law-enforcement authorities who were looking for evidence relating to [distribution of khat, a controlled substance].... While officers were searching her apartment, Plaintiff was wearing a nightgown, without a bra or underwear underneath. The other four detained individuals were men, two of whom were unrelated to Plaintiff. This distressed her, because her Muslim faith prohibits her from appearing in a relative state of undress or from appearing without a head scarf before unrelated males. Plaintiff is not a fluent English speaker, so she asked her uncle Mr. Hassan, who was also detained, to request a cover for her hair and body from police officers. DEA Agent Smith refused Plaintiff?s requests for modest clothing, and photographed her in the nightgown and without a head scarf. After taking the photographs, Agent Smith placed a loose piece of cloth over Plaintiff?s head.

Approximately one hour after the officers entered Plaintiff?s apartment, they moved the detainees outside. Plaintiff was still wearing nothing more than her nightgown. Because Agent Smith had failed to secure the piece of cloth, it fell off Plaintiff?s head as she was walking outside. Plaintiff, whose hands were still tied behind her back, was unable to grab the cloth and cover herself. Officers forced Plaintiff and the male detainees to move outside and sit on the ground, from which position they were visible to neighbors. Mr. Hassan again explained to police officers that Plaintiff?s religion forbade her from appearing uncovered before unrelated men, and asked that she be allowed to remain inside the apartment, or at least behind the building, from which locations neighbors would be unable to see her. Officers refused the request, thereby forcing Plaintiff to appear in a state of relative undress before unrelated males....

Plaintiff has filed a claim for outrage [also known as intentional infliction of emotional distress ?EV] against one defendant: the United States Government. Plaintiff?s outrage claim reads, in its entirety: ?By virtue of the above-described actions of agents of the United States, the United States is liable for the tort of outrage because of the extreme and outrageous conduct of [Officers Smith and Hackett] and the officers under their supervision, intentionally or recklessly inflicting severe emotional distress on Plaintiff.? Plaintiff argues that the United States Government is liable for the actions of its agents under the Federal Tort Claims Act.

To state a claim for outrage under the common law of Washington State, a plaintiff must show ?(1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) actual result to the plaintiff of severe emotional distress.? The State Supreme Court has emphasized that the first two elements pose a high bar to relief:

First, the emotional distress must be inflicted intentionally or recklessly; mere negligence is not enough. Second, the conduct of the defendant must be outrageous and extreme.... [I]t is not enough that a defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ?malice,? or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability exists only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. 

Whether a defendant?s conduct is so egregious that it constitutes the tort of outrage is normally a jury question. At the summary-judgment stage, the trial court?s function is ?to determine if reasonable minds could differ about whether the conduct was so extreme as to result in liability.? In determining whether the case should go to the jury, a trial court considers: ?(a) the position the defendants occupied; (b) whether the plaintiff was particularly susceptible to emotional distress, and if the defendants knew this fact; (c) whether the defendants? conduct may have been privileged under the circumstances; (d) whether the degree of emotional distress caused was severe as opposed to merely annoying, inconvenient, or embarrassing to a degree normally occurring in a confrontation between the parties; and (e) whether the defendants were aware that there was a high probability that their conduct would cause severe emotional distress, and they consciously disregarded it.? ...

Plaintiff has properly pled and supported a claim for outrage. Taking the facts in the light most favorable to Plaintiff, a rational jury could find that federal officials, who enjoyed a position of power over Plaintiff while conducting the search in this case, forced her to appear in a state of relative undress before unrelated men for a significant period of time. They forced her to appear in this state of undress even though she had modest clothing in the very apartment that officers were searching. A rational jury could find that police officers therefore unnecessarily degraded Plaintiff, and that this behavior ought ?to be regarded as atrocious, and utterly intolerable in a civilized community.? 

A rational jury could also find that federal agents knew full well that Plaintiff?s Muslim faith made her particularly susceptible to emotional distress under these circumstances. See Seaman, 59 P.3d at 701 (stating that a trial court should consider, inter alia, ?the position the defendants occupied[,]? and ?whether the plaintiff was particularly susceptible to emotional distress, and whether the defendants knew of this fact?). Plaintiff continuously requested modest clothing and explained that her requests were the result of sincerely held religious beliefs. Federal officials nonetheless ?consciously disregarded? the effect that their refusal was likely to have on Plaintiff. Whether such behavior is sufficiently ?outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency? is a question for the jury.

Full post as published by The Volokh Conspiracy on May 20, 2010 (boomark / email).