David BEARD; Theo Downs, as next friend of Peggy Shumway; Peggy Shumway; Edward Gariepy, as next friend of Alyssa Chappa; Alyssa Chappa; Tamara Bleau, as next friend of Robert Cook; Robert Cook; Ronald Ford, Sr., as next friend of Ronald Ford, Jr.; Ronald Ford, Jr.; Nancy Huskinson, as next friend of Stacy Huskinson; Stacy Huskinson, Plaintiffs-Appellees, v. WHITMORE LAKE SCHOOL DISTRICT, Defendant, Charmaine Balsillie; Brian Carpenter; Jay Munz; Wendy Lemons; Sue Langen, Defendants-Appellants. David Beard; Theo Downs, as next friend of Peggy Shumway; Peggy Shumway; Edward Gariepy, as next friend of Alyssa Chappa; Alyssa Chappa; Tamara Bleau, as next friend of Robert Cook; Robert Cook; Ronald Ford, Sr., as next friend of Ronald Ford, Jr.; Ronald Ford, Jr.; Nancy Huskinson, as next friend of Stacy Huskinson; Stacy Huskinson, Plaintiffs-Appellees, v. Whitmore Lake School District; Charmaine Balsillie; Brian Carpenter; Jay Munz; Wendy Lemons; Sue Langen, Defendants, R. Mayrand, Officer, Defendant-Appellant.
Nos. 03-1904, 03-1942
United States Court of Appeals, Sixth Circuit.
April 4, 2005
402 F.3d 598
C. New and Material Evidence Claim
Longworth‘s final claim is that this Court should remand the case in light of new and material evidence of her mental disability. See
III.
For the foregoing reasons, we AFFIRM the district court‘s grant of summary judgment in favor of the Commissioner.
Before: GUY and ROGERS, Circuit Judges; DOWD, District Judge.*
ROGERS, Circuit Judge.
The defendants in this
The actions of the defendants in this case were unconstitutional. However, at the time the searches occurred, the law regarding the reasonableness of a strip search under these circumstances was not clearly established. The denial of summary judgment is therefore reversed.
I. Background
On May 24, 2000, a student in the second-hour gym class at Whitmore Lake High School reported to her gym teacher, Brian Carpenter, that her prom money had been stolen at some point during the class. The school principal was absent on the date of the incident, so the acting principal, school teacher Charmaine Balsillie, was advised of the theft. Balsillie called the police to report the incident and asked two female teachers, Sue Langen and Wendy Lemons, and one male teacher, Jay Munz, to assist her.
When Balsillie arrived at the gymnasium, the male students were in the boys’ locker room, and the female students were in the gymnasium. Lemons, Langen, and the female students searched the gymnasium and the female students’ backpacks. Balsillie then went to the boys’ locker room and told Carpenter that the police were on their way. At this time, Balsillie noticed Munz heading towards the shower area. Carpenter told Balsillie that they had searched the male students’ backpacks, but had failed to locate the money. By the time Balsillie exited the locker room, Police Officer Mayrand had arrived.
Munz and Carpenter were the only defendants that participated in the search of the male students in the boys’ locker room. Carpenter searched book bags and lockers, while Munz searched the boys individually in the shower room. The search consisted of the boys’ individually lowering their pants and underwear and removing their shirts.2 The boys were not physically touched. The teachers claim that the police arrived and came into the boys’ locker room after about one-half of the boys had been searched. According to the teachers, Mayrand told Carpenter to continue searching the students and that teachers had “a lot more leeway” than police officers when it came to searching students. About twenty boys were searched.
II. Analysis
The defendants appeal the district court‘s denial of their motion for qualified immunity in this
The searches performed on the students in this case were unconstitutional. However, at the time the searches were performed, the law did not clearly establish that the searches were unconstitutional under these circumstances. The denial of summary judgment is accordingly reversed.
Although the denial of a motion for summary judgment is generally considered interlocutory and not appealable, a denial based on a determination that the defendant is not entitled to qualified immunity may be reviewed on appeal. Solomon v. Auburn Hills Police Dept., 389 F.3d 167, 172 (6th Cir.2004) (citing Phelps v. Coy, 286 F.3d 295, 298 (6th Cir.2002)). When reviewing a district court‘s denial of qualified immunity, all facts are to be taken in the light most favorable to the plaintiffs5 and the only issues appropriate for review are those that are “strictly legal.” Id. (citing Phelps, 286 F.3d at 299). Because the availability of qualified immunity is a legal question, we review the decision of the district court de novo. Id. (citing Thomas v. Cohen, 304 F.3d 563, 568 (6th Cir.2002)).
The doctrine of qualified immunity protects government officials who perform
A. The Searches Violated the Fourth Amendment
The initial inquiry in determining whether a grant of qualified immunity is proper is whether the facts asserted, taken in the light most favorable to the plaintiffs, establish a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). In this case, approximately twenty male students were searched, in the absence of individualized suspicion and without consent, in the hopes of locating missing money. Approximately five female students were searched under similar circumstances, but were also required to remove their clothes in the presence of one another. Under these circumstances, the searches were a violation of the Fourth Amendment. Assuming arguendo that Officer Mayrand was aware of these circumstances when ordering the female students to be searched, his conduct was also unlawful.
As explained by the Supreme Court in New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), a school search violates the Fourth Amendment when the school undertakes a search of a student that is unreasonable. In T.L.O., a school official searched a student‘s purse for cigarettes after the student had been caught smoking in the restroom. Id. at 328, 105 S.Ct. 733. Upon searching the purse, the school official found a pack of cigarettes and rolling papers, which were often used by students to smoke marijuana. Id. A further search of the purse revealed marijuana, a pipe, plastic bags, a substantial quantity of single dollar bills, an index card that listed the names of students owing her money, and two letters implicating her in marijuana dealing. Id. The court held that the Fourth Amendment applies to searches conducted by school authorities, id. at 336-37, 105 S.Ct. 733, but rejected strict adherence to a probable cause requirement. Id. at 341, 105 S.Ct. 733. Rather, the legality of a school search depends on its reasonableness under all the circumstances. Id. Determining the reasonableness of a school search involves a twofold inquiry: first, was the action justified at its inception; and second, was the search reason-
We assume, without holding, that the searches of both the male and female students were justified at their inception. That is, some search of the persons and effects of students may be warranted when substantial property has been reported recently stolen. The courts have held that lack of individual suspicion does not ipso facto render a search unreasonable. In the school context, the T.L.O. court expressly refrained from so holding. Id. at 342 n. 8, 105 S.Ct. 733. See also Skinner v. Ry. Labor Executives Ass‘n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (upholding policy of drug testing railway employees who violate safety rules or who are involved in accidents in the absence of individualized suspicion); Nat‘l Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (upholding drug testing of customs officials who carry a firearm or work in drug interdiction in the absence of individualized suspicion); Mich. Dep‘t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (upholding sobriety checkpoints performed in the absence of individualized suspicion).
The scope of the searches in the instant case, however, viewing the facts in the light most favorable to the plaintiffs, does not pass constitutional muster. In making this determination, we are guided by the Supreme Court‘s analysis in Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), which sets forth the relevant criteria for evaluating searches performed in the absence of individual suspicion. In Vernonia, the Court held to be reasonable a school‘s system policy of randomly drug testing student athletes even in the absence of individualized suspicion. Id. at 664-65, 115 S.Ct. 2386. In so deciding, the Court looked to three factors: (1) the student‘s legitimate expectation of privacy, (2) the intrusiveness of the search, and (3) the severity of the school system‘s needs that were met by the search. Id. In Vernonia, the Court found the drug testing policy to be constitutional because student athletes had a decreased expectation of privacy by virtue of the voluntary nature of their participation, the invasion of the students’ privacy was minimal, and the threat to the school system from unfettered drug use was great. Id. at 654-65, 115 S.Ct. 2386.
1. The Scope of the Searches of the Male Students
In light of the factors set forth in Vernonia, the searches performed on the male students in this case were in violation of the Fourth Amendment. First, the privacy interest here was great. Students of course have a significant privacy interest in their unclothed bodies. See T.L.O., 469
Second, the character of the intrusion was far more invasive than the character of the urinalyses in Vernonia, where students remained fully clothed. Also unlike in Vernonia, the searches were likely to disclose much more than the limited information (presence of drugs) at issue in Vernonia. The boys were required to lift their shirts and to remove both their pants and underwear.
Third, the governmental interest, though of some weight, was not as great as in cases like Vernonia. School administrators have a real interest in maintaining an atmosphere free of theft. But, a search undertaken to find money serves a less weighty governmental interest than a search undertaken for items that pose a threat to the health or safety of students, such as drugs or weapons. See Oliver v. McClung, 919 F.Supp. 1206, 1218 (N.D.Ind.1995) (finding that a strip search for money was not reasonable, but noting that the same search may have been reasonable if undertaken to find drugs or weapons). In addition, the lack of individualized suspicion also makes the government‘s interest less weighty. The government may have a comparatively strong interest in searching a particular student reasonably suspected of theft, because of the likelihood that the search will be successful. Such interest is diluted considerably when, instead of one, two, or three students, the school officials search over twenty students, without reason to suspect that any particular student was responsible for the alleged theft. In that case the intrusive search of each individual is that much less likely to be successful.
The highly intrusive nature of the searches, the fact that the searches were undertaken to find missing money, the fact that the searches were performed on a substantial number of students, the fact that the searches were performed in the absence of individualized suspicion, and the lack of consent, taken together, demonstrate that the searches were not reasonable. Accordingly, under T.L.O. and Vernonia, the searches violated the Fourth Amendment.
2. The Scope of the Searches of the Female Students
The searches of the female students also violated the Fourth Amendment. Because the searches of the female students were similar in many respects to those performed on the male students, we only briefly describe the factors that render the searches unconstitutional. As with the male students, the female students did not consent to the search, nor was there reason to suspect that any particular stu-
The fact that the searches of the females were highly intrusive, the fact that the searches occurred in the presence of other students, the lack of consent, the absence of individualized suspicion, and the fact that the searches were undertaken to find money, taken together, demonstrate that the searches performed on the females in this case were not reasonable. The searches accordingly violated the Fourth Amendment.
3. Officer Mayrand
Assuming arguendo that Officer Mayrand was aware of the numerous factors that rendered the searches in this case unconstitutional, then Mayrand‘s action in ordering the searches of the female plaintiffs was also unlawful.
Section 1983, provides, in relevant part, that
Every person who, under color of statute, ordinance, regulation, custom, or usage, of any State ... subjects or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
B. The Law Did Not “Clearly Establish” That The Searches Were Unconstitutional
Although the defendants participated in this constitutionally impermissible search, they are nevertheless protected from civil liability if their actions did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. 2727. The law, at the time the searches were conducted, did not clearly establish that the searches were unreasonable under the particular circumstances present in this case. Accordingly, the defendants are entitled to qualified immunity.
“When determining whether a right is ‘clearly established,’ we ‘look first to decisions of the Supreme Court, then to
At the time of the search at issue, the prior law involving strip searches of students did not clearly establish that the defendants’ actions in this case were unconstitutional. The Supreme Court cases on school searches, T.L.O. and Vernonia, set forth basic principles of law relating to school searches, yet do not offer the guidance necessary to conclude that the officials here were, or should have been, on notice that the searches performed in this case were unreasonable. See T.L.O., 469 U.S. at 336-43, 105 S.Ct. 733; Vernonia, 515 U.S. at 652-65, 115 S.Ct. 2386.
The Supreme Court has recently instructed that, for purposes of the “clearly established” inquiry, the analysis “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 599, 160 L.Ed.2d 583 (2004) (quoting Saucier, 533 U.S at 201, 121 S.Ct. 2151). Accordingly, cases “cast at a high level of generality,” will only be sufficient to clearly establish the unlawfulness of the defendants’ actions where the conduct at issue is “obviously” a violation based on the prior cases. Id. This is not such an obvious case.
In T.L.O., the Court announced that school searches should be subject to a reasonableness standard. 469 U.S. at 341, 105 S.Ct. 733. In determining whether a particular search is reasonable, the Court announced a two-pronged, multi-factor test that weighs the students’ interest in privacy against the school‘s interest in maintaining a safe learning environment. Id. at 341-43, 105 S.Ct. 733. Yet, the Court did little to explain how the factors should be applied in the wide variety of factual circumstances facing school officials today. Accordingly, T.L.O. is useful in “guiding us in determining the law in many different kinds of circumstances“; but is not “the kind of clear law” necessary to have clearly established the unlawfulness of the defendants’ actions in this case. See Brosseau, 125 S.Ct. at 599 (quoting Pace v. Capobianco, 283 F.3d 1275, 1283 (11th Cir. 2002)). In fact, this court has previously recognized that “the reasonableness standard articulated in New Jersey v. T.L.O., has left courts later confronted with the issue either reluctant or unable to define what type of official conduct would be subject to a
The Sixth Circuit cases involving student strip searches also do not clearly establish the unconstitutionality of the searches in the instant case. Indeed, in
Finally, we recognize that, at the time the searches were conducted, the Seventh Circuit had held that the strip search of a student in particular circumstances was not reasonable. See Doe v. Renfrow, 631 F.2d 91 (7th Cir.1980) (nude body search of a 13-year-old girl following an alert by police dog). In addition, some district courts in other circuits have held student strip searches to be unreasonable in cases more closely analogous to the instant case. See Bell v. Marseilles Elementary Sch., 160 F.Supp.2d 883, 891 n. 9 (N.D.Ill.2001); Konop v. Northwestern Sch. Dist., 26 F.Supp.2d 1189, 1201 (D.S.D.1998); Oliver, 919 F.Supp. at 1218; Bellnier v. Lund, 438 F.Supp. 47 (N.D.N.Y.1977).
These cases were not sufficient to establish clearly the unlawfulness of the defendants’ actions in this case. In the “rare instances” where it is proper to seek guidance from outside this circuit, the law will only be clearly established where the cases from outside this circuit “both point unmistakably to the unconstitutionality of the conduct complained of and [are] so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting.” Williams, 936 F.2d at 885. The cases dealing with school strip searches from courts in other circuits are not “clearly foreshadowed by applicable direct authority,” and therefore do not clearly establish that the searches in this case were unreasonable.
III. Conclusion
Because the searches in this case did not violate clearly established law, the defendants are entitled to qualified immunity. The denial of summary judgment is accordingly REVERSED.