Jane Doe 1 v. Steven V. Sloan

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 25-1917, 25-1918 & 25-1919
J ANE D OE 1, et al.,
Plaintiffs-Appellants,
v.
STEVEN V. SLOAN, et al.,
Defendants-Appellees.
____________________
Appeals from the United States District Court for the
Central District of Illinois.
Nos. 1:23-cv-01035, -36 & -37 — Jonathan E. Hawley, Judge.
____________________
A RGUED FEBRUARY 17, 2026 — D ECIDED A PRIL 14, 2026
____________________
Before BRENNAN, Chief Judge, and R IPPLE and T AIBLESON ,
Circuit Judges.
T AIBLESON, Circuit Judge. In 2019, law enforcement in the
small town of Toulon, Illinois, was investigating a collection
of sexually explicit images of local underage girls stored on
an online file-sharing service. As part of that investigation, of-
ficers sent a link to the files to Jason Musselman, an “auxiliary
police officer” and IT employee for the Toulon Police Depart-
ment. Musselman was supposed to help police identify the

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2 Nos. 25-1917, 25-1918 & 25-1919
underage girls, and he did. But he also kept the images for his
own use—a fact discovered years later, when Musselman was
investigated for and convicted of other child pornography of-
fenses.
Musselman is currently serving a 35-year sentence for cre-
ating, possessing, and sharing child pornography. In addi-
tion, nine of Musselman’s victims sued him under state tort
law and a federal law that allows victims of child pornogra-
phy offenses to recover from perpetrators; those claims are
continuing in the district court and are not at issue in this ap-
peal. The victim-plaintiffs also sued two local police officers
and their employers under 42 U.S.C. § 1983, claiming that the
officers violated their substantive due process rights under
the Fourteenth Amendment when they gave Musselman ac-
cess to their sexually explicit images. The district judge
granted defendants’ motions to dismiss those § 1983 claims,
and plaintiffs appeal those dismissals.
We affirm the judgment below. Although Musselman’s
crimes were vile, plaintiffs have not alleged a viable substan-
tive due process claim.
I. Background1
In January of 2019, the Stark County, Illinois, Sheriff’s Of-
fice learned about a Dropbox file referred to as “Blue Breeze,”
which contained sexually explicit images of local underage
1 At the motion to dismiss stage, the court takes all well-pleaded alle-
gations as true and views them in the light most favorable to the plaintiffs.
See Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir.
2012). We therefore recite here the pertinent “factual allegations of the op-
erative complaint without vouching for their truth.” Nelson v. City of Chi-
cago, 992 F.3d 599, 602 (7th Cir. 2021).

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Nos. 25-1917, 25-1918 & 25-1919 3
girls. Defendant Steven Sloan, the Sheriff of Stark County, as-
signed the Blue Breeze investigation to defendant Gary Bent,
who was both a Deputy Sheriff of Stark County and Chief of
the Toulon Police Department. Toulon is a small town and the
county seat of Stark County.
Deputy Bent sought Musselman’s help with the Blue
Breeze investigation. At the time, Musselman was an auxil-
iary police officer for the Toulon Police Department. Mussel-
man also worked as the “I.T. person for the department,” and
he had previously served as Stark County’s Emergency Ser-
vices Disaster Agency (“ESDA”) Director. In these capacities,
Musselman had “regularly participated in official investiga-
tions … that involved the internet and electronic information
technology.” Musselman was not, however, a formal em-
ployee of the Stark County Sheriff’s Office, nor had he re-
ceived training in investigative protocols for handling child
pornographic materials.2
Musselman agreed to help identify the girls depicted in
the Blue Breeze images, and Deputy Bent provided him with
the Dropbox link. Musselman reviewed the images, and, as
promised, helped with identifications. But—unbeknownst to
the other defendants—Musselman kept the images on his per-
sonal computer for his own viewing and distribution.
A few years later, in 2021, law enforcement began investi-
gating Musselman for child pornography offenses, including
creating child pornography using a hidden camera in a
2 Plaintiffs emphasize that when Musselman returned his ESDA lap-
top to the County in 2015, it contained “an image of children or young
adults engaged in acts of sexual conduct,” as well as indicia that other
pornographic images had been deleted.

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4 Nos. 25-1917, 25-1918 & 25-1919
tanning bed in his home. During that investigation, agents
discovered Blue Breeze images in Musselman’s possession,
including nude or partially nude images of at least one of the
plaintiffs here. Musselman pleaded guilty to child pornogra-
phy offenses and was sentenced to 35 years’ imprisonment.
Plaintiffs sued Musselman in three separate civil actions
that have been consolidated for discovery proceedings and
for purposes of this appeal. The complaints alleged claims un-
der 18 U.S.C. § 2255(a), which provides a cause of action for
victims of certain crimes committed against minors, and un-
der Illinois common law for intrusion upon seclusion. Plain-
tiffs later added claims against Sheriff Sloan, Deputy Bent,
Stark County, and the City of Toulon, alleging intrusion upon
seclusion under Illinois law and violations of their Fourteenth
Amendment substantive due process rights under 42 U.S.C.
§ 1983. Sheriff Sloan, Deputy Bent, Stark County, and the City
of Toulon moved to dismiss these claims.
The district court granted these motions to dismiss in part.
The judge dismissed all the § 1983 claims on the grounds that
plaintiffs had failed to allege a violation of a recognized con-
stitutional right. Even if they had, the district judge found that
any such right was not clearly established, meaning that qual-
ified immunity would shield Sheriff Sloan and Deputy Bent
from liability. The district court also dismissed the intrusion-
upon-seclusion claims against Sheriff Sloan, Deputy Bent, and
Stark County, but not against the City of Toulon. The district
court granted plaintiffs’ motion for final judgment under Fed.
R. Civ. P. 54(b), and plaintiffs now appeal the dismissal of
their § 1983 claims.

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Nos. 25-1917, 25-1918 & 25-1919 5
II. Discussion
We review the district court’s dismissal de novo. Nelson v.
City of Chicago, 992 F.3d 599, 603 (7th Cir. 2021). “To survive a
motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plau-
sible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
On appeal, plaintiffs maintain that their complaints raise cog-
nizable substantive due process claims.
The Due Process Clause of the Fourteenth Amendment
provides that no state shall “deprive any person of life, lib-
erty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1. Under longstanding Supreme Court prece-
dent, that clause protects not only procedural rights but also
some substantive ones—specifically, “a select list of funda-
mental rights that are not mentioned anywhere in the Consti-
tution” but that are “deeply rooted in [our] history and tradi-
tion” and “essential to our Nation’s ‘scheme of ordered lib-
erty.’” Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 237
(2022) (citations omitted) (alteration in original). It is that type
of fundamental substantive right under the Due Process
Clause that plaintiffs seek to vindicate through their § 1983
claims.
Generally, § 1983 allows plaintiffs to sue state actors who
violate their “rights” under “the Constitution and laws” of the
United States. But a “person seeking relief under section 1983
for a violation of h[er] Fourteenth Amendment right to sub-
stantive due process faces a difficult task.” Robbin v. City of
Berwyn, 108 F.4th 586, 589 (7th Cir. 2024) (citation omitted).
Articulating a substantive due process right requires “a ‘care-
ful description’ of the asserted fundamental liberty interest”

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6 Nos. 25-1917, 25-1918 & 25-1919
claimed to be violated. Washington v. Glucksberg, 521 U.S. 702,
721 (1997) (citations omitted); see, e.g., Christensen v. County of
Boone, 483 F.3d 454, 462 (7th Cir. 2007). Once articulated, that
specific interest must be grounded in “[o]ur Nation’s history,
legal traditions, and practices.” Glucksberg, 521 U.S. at 721.
Both the Supreme Court and our court have cautioned that
the “scope of substantive due process is very limited,” and
that judges should be “reluctant to expand the concept.” Cam-
pos v. Cook County, 932 F.3d 972, 975 (7th Cir. 2019) (citations
omitted).
The parties debate at length about how to define the al-
leged right that defendants violated when they gave Mussel-
man access to the plaintiffs’ images. The complaints use vari-
ous 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 Plaintiff[s’] private sexual images.” But plaintiffs do not de-
fend those formulations on appeal, and for good reason: They
are too broad to capture the precise interest at stake here be-
cause they omit key factual details that are critical to “set[ting]
the boundaries of the liberty interest” at stake. Doe v. City of
Lafayette, 377 F.3d 757, 769 (7th Cir. 2004) (en banc); cf., e.g.,
Doe v. Gray, 75 F.4th 710, 717 (7th Cir. 2023) (“A general recog-
nition of a privacy right in certain medical or sexual infor-
mation is not enough to show a more specific privacy right in
one’s sexual preference or gender identity during a criminal or
child welfare investigation, especially one involving allegations
of child sexual abuse.” (emphasis added)).
The district court improved on the complaints’ formula-
tions, defining the right as “the right to be free from one’s
nude photos that are the subject of an ongoing criminal

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Nos. 25-1917, 25-1918 & 25-1919 7
investigation being disclosed in furtherance of the investiga-
tion to individuals without actual authority to access them.”
Plaintiffs suggest adding to this formulation that the pictures
depicted minors and that the recipient permanently retained
the pictures without authority.3 Defendants, for their part, ad-
vocate for a formulation that specifies that the pictures were
“already created” and that the recipient was an individual
working on the investigation.
As this debate reflects, defining the claimed right in a case
like this one is not an exact science. The district judge’s for-
mulation seems about right. See, e.g., Glucksberg, 521 U.S. at
723 (defining “right to commit suicide which itself includes a
right to assistance in doing so”); K.C. v. Individual Members of
Med. Licensing Bd. of Ind., 121 F.4th 604, 624 (7th Cir. 2024) (de-
fining parents’ “right to access gender transition procedures
for their children”); City of Lafayette, 377 F.3d at 769 (defining
“right to enter the parks to loiter or for other innocent pur-
poses”). And both plaintiffs and defendants propose reason-
able additions, including that the nude images were of minors
and that the officers did not create the images themselves. But
further wordsmithing would be wasted here, because none of
these formulations describes a fundamental liberty interest
protected by the Due Process Clause.
Plaintiffs rely on case law to carry their burden of showing
that their claimed right reflects “a liberty deeply rooted in our
3 Specifically, plaintiffs propose to define the right as: “The right to be
free from one’s nude photos taken while a minor and constituting child
sexual assault material that are the subject of an ongoing criminal investi-
gation being given copies of the nude photos in furtherance of the inves-
tigation to individuals without actual authority to permanently retain cop-
ies of them.”

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8 Nos. 25-1917, 25-1918 & 25-1919
history and tradition.” Khan v. Gallitano, 180 F.3d 829, 834 (7th
Cir. 1999). But none of their cases support such a historical
tradition.
To start, plaintiffs principally rely on York v. Story, 324 F.2d
450 (9th Cir. 1963), to argue that the Due Process Clause cre-
ates a constitutional privacy right that prohibits defendants’
conduct here. But York—a Ninth Circuit case that predated
Glucksberg’s definition of substantive due process—involved
egregious police conduct quite distinct from Sheriff Sloan’s
and Deputy Bent’s actions. The York plaintiff went to the po-
lice department to file assault charges, where a male officer
took her to a locked room and, over her objections, directed
her to undress and pose in revealing positions while he took
pictures of her without “any lawful or legitimate purpose.”
Id. at 452. The officer later told the York plaintiff that the pic-
tures had not come out. Id. But that was a lie: The officer cir-
culated the pictures within the police department, and two
other officers subsequently made and circulated more cop-
ies—all without any investigative purpose. Id. The Ninth Cir-
cuit observed that taking the photographs might have consti-
tuted an “unreasonable search” under the Fourth Amend-
ment. Id. at 454. But it ultimately concluded that the entire
course of conduct violated the plaintiff’s privacy rights under
the Due Process Clause of the Fourteenth Amendment. Id. at
454–56.
To complement York, plaintiffs rely on Whalen v. Roe, 429
U.S. 589 (1977), and “its Seventh Circuit progeny,” particu-
larly Wolfe v. Schaefer, 619 F.3d 782 (7th Cir. 2010). But those
cases are even further afield. In Whalen, the Supreme Court
considered “whether the State of New York may record … the
names and addresses of all persons who have obtained,

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Nos. 25-1917, 25-1918 & 25-1919 9
pursuant to a doctor’s prescription, certain drugs.” 429 U.S. at
591. In the course of answering that question (yes), the Court
observed that its constitutional “privacy” cases have involved
both “the individual interest in avoiding disclosure of per-
sonal matters” and “the interest in independence in making
certain kinds of important decisions.” Id. at 599–600. Citing
Whalen, we then observed in Wolfe that there may be “a con-
stitutional right to the privacy of medical, sexual, financial,
and perhaps other categories of highly personal infor-
mation”—but noted that the Supreme Court “has seemed
more interested in limiting” such a right “than in its recogni-
tion and enforcement.” Wolfe, 619 F.3d at 785–86 (holding
plaintiff’s Due Process privacy rights were not violated when
defendants publicly disclosed that plaintiff was the subject of
confidential investigations for violations of state law).
To describe these cases is to distinguish them, both factu-
ally and legally. Unlike Sheriff Sloan and Deputy Bent, the
York defendants executed an arguably unconstitutional
Fourth Amendment “search”—implicating a constitutional
provision that has no application here—and then distributed
those images outside the context of any investigation. Whalen
and Wolfe offer only broad observations about “privacy” in
the context of disputes that bear no resemblance to this one.
And all these cases predate the Supreme Court’s recent and
extensive treatment of a constitutional “privacy right” and
substantive due process, Dobbs, 597 U.S. at 235–40, without
engaging in the careful historical analysis that is now re-
quired. Thus, none of plaintiffs’ cases, nor any we can find,
demonstrate a fundamental liberty interest against the police
sharing, in the course of an investigation, sexually explicit im-
ages of minors with an untrained auxiliary officer who is in-
vestigating those images.

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10 Nos. 25-1917, 25-1918 & 25-1919
That means that for plaintiffs’ claims to prevail, we would
have “to break new ground” and recognize plaintiffs’ claimed
right as one protected by the Due Process Clause for the first
time—a request that requires us to “exercise the utmost care.”
Glucksberg, 521 U.S. at 720 (citation omitted). Identifying
rights that are “deeply rooted in this Nation’s history and tra-
dition” and without which “neither liberty nor justice would
exist” as we know it, id. at 720–21 (citations omitted), requires
“a careful analysis of the history of the right at issue.” Dobbs,
597 U.S. at 238; see also id. at 239 (“Historical inquiries of this
nature are essential whenever we are asked to recognize a
new component of the ‘liberty’ protected by the Due Process
Clause.”). But plaintiffs have made no effort to conduct that
historical inquiry or to show that their claimed right satisfies
the Glucksberg criteria. Without a principled grounding in his-
tory, tradition, or precedent, we decline to recognize a new
substantive due process right today.
We reach this conclusion notwithstanding the seriousness
of plaintiffs’ allegations and the real harm that Musselman
caused. 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 below. See
DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189,
202 (1989) (Due Process Clause “does not transform every tort
committed by a state actor into a constitutional violation”).
The district court correctly dismissed the § 1983 claims,
and its judgment is
AFFIRMED.

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