As Brazoria County Sheriff’s Deputy Aaron Kindred delightfully explained, “I ain’t getting up close and personal with your women areas.” Not that someone wasn’t about to, but Kindred was too much of a gentleman to conduct his own probe, as the Fifth Circuit Court of Appeals explained.

On Memorial Day weekend in 2012, Hamilton and Randle were pulled over by DPS Officer Turner for speeding. Turner smelled marijuana and asked the women to exit the vehicle. Hamilton was wearing a bikini bathing suit, and Randle was similarly dressed. Turner did not allow the women to cover themselves before exiting the vehicle. He used his radio to request help from local law enforcement and a female officer to conduct a search of the women. On the radio, Turner stated that the car smelled like marijuana and that one of the women “had the zipper open on her pants, or Daisy Duke shorts, whatever they are.”

It’s like they were asking for it. Not the “Daisy Dukes,” but the pungent odor of weed. After all, where there’s a smoke, there could be fire. Or pot, if they hadn’t already smoked it, which would explain the smell. But there could be some left, and the police would never forgive themselves if they didn’t find it.

Bui arrived, she parked next to Turner’s patrol car. When he had completed the vehicle search, Turner informed Bui and Kindred that he had finished the search but wanted Bui to search the women. Bui asked the men if they had any gloves, and Turner gave her the gloves he had used to search the vehicle.

From the outside, one might suspect that the use of gloves in the course of a digital body cavity search is for the benefit of the victim, perhaps not to introduce things into a person’s body that shouldn’t be there. But as this shows, where gloves used for a car search were repurposed, such a suspicion would be mistaken. The welfare of the person into whose body fingers were about to be unceremoniously introduced was never the concern at all.

Turner and Kindred stood together behind the car while Bui performed the body cavity search. During the search, Turner told Kindred: “I don’t know if she stuck something in her crotch or this one did.”

Ignorance provides the latitude to do whatever a cop wants. It’s always a curious thing that knowledge, knowing where to search, serves to preclude searches elsewhere, while having no clue whatsoever whether the place to be searched might hold evidence allows cops to do as they please.

Randle, who had been standing by Hamilton’s car, was escorted to Bui’s patrol car. Kindred was still standing behind Turner’s vehicle. When Bui performed the body cavity search on Randle, Randle began to scream: “That is so fucked up! I am so done!” Hamilton yelled at her a couple times to “calm down” and “be quiet.” Randle sounded as if she was crying when she again said, “Man, this is so fucked up!” After the searches were complete, Hamilton stated to Turner that “it was going to the extreme” to have someone “put their fingers up your stuff.”

Indeed, it is most assuredly “going to the extreme” for police to forcibly put their fingers in a person’s vagina and anus when there is no basis to believe that anything is concealed there, or when the best possible justification is that they might find some marijuana. But hey, think of the children. Not that way.

That the digital penetration violated the women’s constitutional rights wasn’t in issue. It did. The question presented was whether Aaron Kindred, who stood there, watched and did nothing, could be held liable for “bystander liability,” or was protected by qualified immunity.

In Whitley v. Hanna, 726 F.3d 631 (5th Cir. 2013), this Court stated that “an officer may be liable under § 1983 under a theory of bystander liability where the officer ‘(1) knows that a fellow officer is violating an individual’s constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.”

Fifth Circuit law provides for liability for an officer who fails to prevent another officer from violating a person’s constitutional rights. Great news, right? All circuits should do so. All circuits don’t. Whether called the “integral participant” rule, or the “team effort” approach, officers are held liable for only their own conduct, even if the conduct of other officers, obviously wrong, is happening in front of their face.

But even then, the requirement isn’t merely that they be present for conduct any idiot would know to be obviously unconstitutional, but conduct “clearly established” by the courts to be a constitutional violation.

At the time of the incident, it was clearly established in the Fifth Circuit that an officer could be liable as a bystander in a case involving excessive force if he knew a constitutional violation was taking place and had a reasonable opportunity to prevent the harm. See Hale v. Townley, 45 F.3d 914, 918 (5th Cir. 1995). And “[o]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Roe, 299 F.3d at 409 (quoting Hope v. Paltzer, 536 U.S. 730, 741 (2002)).

Did the Fifth Circuit drop the hammer on Aaron Kindred for watching the donkey show? Not exactly. While it did reject his appeal of the denial of qualified immunity, it didn’t end the question.

The district court found that “there [was] a serious dispute as to the material facts” regarding each element of bystander liability. We lack jurisdiction to review the district court’s determination that a genuine factual dispute exists. Kinney, 367 F.3d at 347–48. Because we find that excessive force applies in this case and disputes of material fact remain, Kindred’s appeal is DISMISSED.

While there was confusion as to legal issues raised, whether the plaintiffs were pursing excessive force, whether it was part of their bystander liability claim, it’s hard to see where there was a serious dispute of material fact involved. Bui stuck her fingers in the women while Kindred stood there and watched. While he didn’t get a pass (yet), he also didn’t get the hammer that should have come down on his head for letting two women be raped before his cop eyes.