(concurring in part, dissenting in part).
[¶ 56.] I respectfully dissent on issue one.
[¶ 57.] The primary purpose of 42 U.S.C. § 1983 is “to aid in the ‘preservation of human liberty and human rights.’ ” Jackson v. Griffin, 1986 WL 6920, *3 (N.D.Ill.1986) (quoting Owen v. City of Independence, 445 U.S. 622, 636, 100 S.Ct. 1398, 1408, 63 L.Ed.2d 673, 684 (1980) (quoting Congressional Globe, 42d Cong., 1st Sess. App. 68 (1871) (Rep.Shellabarger))). Further, “[s]eetion 1983 stands for the com*150mitment that American society ‘is to be governed by law and to protect the rights of those without power against oppression at the hands of the powerful.’ ” Id. (quoting Blackmun, Harry A., Section 198S and Federal Protection of Individual Rights - Will the Statute Remain Alive or Fade Away?, 60 NYULRev 1, 28 (1985)).
[¶ 58.] To establish a cause of action under § 1983, one must prove two elements. “First, a plaintiff must allege that defendant or defendants acted under color of state or territorial law. Second, the plaintiff must allege that the action taken deprived him of a federal right.” Id. (quoting Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572, 577 (1980); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1732, 56 L.Ed.2d 185, 193 (1978); Texaco Inc. v. Pennzoil Co., 784 F.2d 1133, 1145 (2d Cir.1986); Barnier v. Szentmiklosi, 565 F.Supp. 869, 870 (E.D.Mich.1983)).
[¶ 59.] Under certain circumstances, a public officer, such as a police officer in the present case, may raise the defense of “qualified immunity” to avoid liability under § 1983. We have previously held that “[t]o find whether qualified immunity applies, the test is to ask if the officer’s conduct violated clearly established statutory or constitutional rights a reasonable officer would have known at the time.” Horne v. Crozier, 1997 SD 65, ¶ 6, 565 N.W.2d 50, 52 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982) (citations omitted)). In the present case, to overcome the first element of the Home test, Hart must “allege the violation of a clearly established constitutional or statutory right” See Comfort v. Town of Pittsfield, 924 F.Supp. 1219, 1227 (D.Maine 1996) (emphasis added). If the right which is alleged to have been violated is clearly established, “the court assumes that the police officer in question knew of this right.” Id. Further, “if the right is clearly established, qualified immunity will only be denied if a reasonable officer should have known that the challenged conduct violated that established right.” Id. (citing Rodriguez v. Comas, 888 F.2d 899, 901 (1st Cir.1989)). In discussing application of qualified immunity, the Maine District Court stated,
[t]he Supreme Court has extended qualified immunity generously, imposing a heavy burden on plaintiffs to establish liability, [citation omitted.] This policy is justified on a variety of grounds, not least of which is a fear that “personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” [citation omitted.]
Id.
[¶ 60.] In the present case, Hart is seeking damages under § 1983 based upon the manner in which Miller allegedly approached her at her apartment during his investigation. According to Hart, Miller looked at her provocatively, and she inferred from Miller’s actions he wanted sex from her. It is undisputed Miller did not physically touch Hart and Hart consented to Miller’s entry into her apartment. Hart’s allegations in her complaint involved actions committed by a police officer acting under color of state law; therefore, the first element of a § 1983 cause of action is easily satisfied. Where the conflict arises is with the second element; was Hart deprived by Miller of a constitutional right? Further, was this constitutional right clearly established so as to attack Miller’s defense of qualified immunity.
[¶ 61.] The main question before this Court is whether a police officer’s alleged “leering and provocative looks” and his question “what were they going to do about [the marijuana]” amounts to a violation of a “clearly established constitutional right.” 10 Hart contends for the first time *151in this case that Miller’s conduct violated her liberty interest in her own physical safety and right to bodily integrity. It is the well-settled rule of this Court that if a party fails to raise an issue at the trial court level, it would be inappropriate to consider this issue for the first time on appeal. See Grand State Property, Inc. v. Woods, Fuller, Shultz & Smith, 1996 SD 139, ¶ 19, 556 N.W.2d 84, 88 (citing Mayrose v. Fendrich, 347 N.W.2d 585 (S.D.1984)). The majority, however, has disregarded this rule and considered this issue for the first time. Therefore, I will address it also.
[¶ 62.] The cases cited by the majority to support their reversal and remand of this issue are clearly distinguishable. In Antia v. Thurman, 914 F.Supp. 256, 257 (N.D.Ill.1996), Antia was allegedly detained based upon her Hispanic ethnicity and was subject to numerous derogatory comments about “Puerto Rican girls.” In Rogers v. City of Little Rock, Arkansas, 152 F.3d 790, 794-95 (8th Cir.1998), a police officer stopped a woman, followed her home, entered the residence, and raped the woman. In Haberthur v. City of Raymore, Missouri, 119 F.3d 720, 721 (8th Cir.1997), Haberthur was followed by Officer Untrif, who ultimately placed his hand under her sweatshirt and fondled her breast, chest and side, and also propositioned her to go back to his place. The present case does not contain such a clear-cut liberty interest violation as the previously mentioned cases. We are not presently faced with a situation where a police officer has made specific sexual comments, touched the plaintiff, or committed a sexual assault upon the plaintiff. Instead, we are faced with whether an alleged “leering look” and a vague, ambiguous comment rises to the level of deprivation of a constitutional right.
[¶ 63.] To establish that Officer Miller is hable to Hart, Hart must show that Miller’s “conduct violates ... clearly established constitutional or statutory rights.” See Horne, 1997 SD 65, ¶¶ 6-7, 565 N.W.2d at 52-53. A review of case law from other jurisdictions reveals that various jurisdictions have found that a person has a right to bodily privacy, a right to protection against unreasonable bodily intrusions and the right to be free from unwelcome sexual fondling, touching or other “egregious sexual contact.” See Rogers, 152 F.3d at 795-96. Most often, these rights have been applied in the situations where the officer has made an outright sexual comment or contact with the plaintiff. See e.g., United States v. Lanier, 520 U.S. 259, 267-71, 117 S.Ct. 1219, 1226-28, 137 L.Ed.2d 432, 442-46 (1997) (involving the sexual assault by a state judge); McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191, 1197 (4th Cir.1996), cert. denied, 519 U.S. 819, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996) (discussing abusive sexual conduct in a state facility); Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450-52 (5th Cir.1994) (finding liberty interest in bodily integrity in a case involving sexual abuse of school children by a teacher); Sepulveda v. Ramirez, 967 F.2d 1413, 1415-16 (9th Cir.1992) (establishing right to bodily privacy case where parolee observed while providing urine sample); Haberthur, 119 F.3d at 723 (recognizing the right to be free from unwelcome sexual fondling, touching or other egregious contact where a police officer had fondled a woman’s breasts). Only one case could be found that contained facts similar to the present case. In Reeve v. Oliver, 41 F.3d 381 (8th Cir.1994), the court .was faced with the intentional touching and rubbing of Reeve’s back and staring at Reeve’s chest by a Des Moines, Iowa Animal Control Officer. Reeve’s ultimately brought an action against Officer Oliver alleging that he “deprived her of ‘liberty and privacy interests and equal protection rights in being free from sexual harassment by a *152State actor.’ ” Id. at 382. The Eighth Circuit Court of Appeals found that Reeve had no claim and held,
[Reeve] has failed to allege a constitutional violation. Though Oliver’s alleged conduct may have been improper, it does not rise to the level of a constitutional violation. Reeve’s arguments that she was somehow deprived of her Fourteenth Amendment rights of privacy, liberty, and equal protection are without merit. As we stated in Gregory v. City of Rogers, 974 F.2d 1006, 1009 (8th Cir.1992), cert. denied, [507 U.S. 913], 113 S.Ct. 1265, 122 L.Ed.2d 661 (1993), “Many harms, though caused by a state actor, do not fall within the scope of section 1983, for section 1983 does not turn the Fourteenth Amendment into a font of tort law that supersedes the tort systems already available under individual state laws. ” Reeve must look to state law for a remedy.
Id. at 383 (emphasis added). Hart has failed to show that she suffered a harm within the scope of § 1983.
[¶ 64.] The majority is saying that based upon Miller’s prior alleged acts, intent is required under a § 1983 action. This analysis by the majority is totally outside the scope of a § 1983 action. “It is well established that specific intent is not a prerequisite to liability under § 1983.” See Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir.1992) (citations omitted). In determining liability under § 1983, we must look to what happened during the particular encounter to determine whether a constitutional right has been violated. What does an analysis of Miller’s intent based upon these other instances prove in this § 1983 action? I submit nothing.
[¶ 65.] Although Trooper Miller’s conduct is not exemplary, that in and of itself does not equal a violation of a clearly established constitutional right. Basing a claim such as this on such a subjective basis as to what was intended by one looking at someone else, would seem to open up the flood gates to any ingenious theory for a § 1983 claim. Will we be next dealing with a mind reader? This decision, I submit, opens up a “font of tort law” in this jurisdiction; therefore, I would affirm issue one.
[¶ 66.] I concur in the remaining issues.
. Whether a look was in fact "leering and provocative” would be a question for the jury to answer. However, how does one go about proving that a look was leering and provocative? How do you define this type of look? How would you instruct a jury on this ques*151tion? Would you be required to submit expert testimony to distinguish a “leering and provocative” look from any other look? Does the mere fact that Hart said it was “leering and provocative” carry the burden of proof that it is? If so, is this not very subjective?