Courtney Richmond v. City of Brooklyn

essentially employee acting scope an who shall was not within the of his Marshall was work, employment when the accident occurred. traveling for rather than to compensation con- work. In the workers’ is affirmed. text, going and com- exception this ing “journey” excep- as the rule is known

tion, compensation and “authorizes when injury by employee

an occurs suffered traveling for the employee

while the ” Co., employer.... Custer v. Ins. Hartford (en (Mo.Ct.App.2005) S.W.3d

banc). above, however, As recounted Mis- Courtney RICHMOND, employee

souri courts have stated that an Appellant/Cross- traveling employer is not for an when the Appellee, simply get travel is to or leave from the work, employee’s place of as was the case v. Studebaker, here. at 842 S.W.2d 229. CENTER, CITY OF BROOKLYN mu- traveling Marshall was therefore not for nicipal corporation; Brian Robert at Lombardi the time of the accident.3 Bruce, individually capacity his reasons, foregoing For the we conclude as a officer in the Police De- partment undisputed that the facts show that Mar- Cen- 2001) employee company (employee traveling used a van to drive to the home from work- airport casino), meeting to attend a Id. at trade show. related at a overruled on oth return, Upon by grounds Hampton Big Boy his he drove van to his home er Steel Erec tion, (Mo.2003) (en sleep night. morning, banc). for the Id. The next 121 S.W.3d 220 driving he was involved in an accident while way the van on his to work. Id. at 119-20. reject 3. We Fackrell’s contention that Lom court concluded that could find the bardi had the to control Marshall purpose applicable dual doctrine because the (and time of the accident that Marshall was employee only commuting was not to work Lombardi) traveling therefore because occurred, when the accident but also re agreed Lombardi to reimburse him for his turning separate trip. from business Id. at law, travel costs. Under Missouri this fact contrast, traveling 120-21. In Marshall was support alone has been insufficient to a con purpose returning for the sole home from employee acting clusion an within place returning his work was not scope employment responde- of his in the separate trip serving any See, business other superior e.g., Pyle context. v. United purpose. dual States, The other cases cited Fack (8th Cir.1987) unsupportive rell on this issue are also of her (applying concluding Missouri law and purpose claim appli that the dual doctrine is employee, petty an in the United cable, all involved situations in which Navy, acting States scope was not within the employee returning sep an home from a employment of his when he was involved in task, employer-related trip arate rather an accident while en route from Naval Train employee's place than the station, normal of work. ing permanent duty School to his Co., See Custer Ins. 174 S.W.3d though Navy pay even the United States Hartford (en banc) (Mo.Ct.App.2005) (employee ing mileage trip); him for the Studebaker cf. Garden, traveling golf Inc., orga home from a tournament v. Nettie's Flower 842 S.W.2d employer); 1992) nized his (Mo.Ct.App. (recognizing Medrano v. Marshall Inc., (Mo. Contracting Elec. "employee acting 173 S.W.3d 333 an scope is not within the work, Ct.App.2005) (employee traveling employment traveling home from even class); employer-sponsored night though employer’s Smith v. he uses his motor vehi B, cle”). (Mo.Ct.App. District II A & 59 S.W.3d 558 Flesland, individually ter; Garrett police officer capacity as a Department of the

in the Police Center; Reynolds, Mike capacity

individually in his Depart- in the Police Brooklyn Center, City of

ment of the

Appellees/Cross-Appellants. 05-3770, 05-3771.

Nos. of Appeals, States Court

United

Eighth Circuit. 16, 2006.

Submitted: June

Filed: June

damages, while cross-ap- Officer Bruce peals the district court’s denial of immunity. For the reasons discussed be- low, we reverse the district court’s denial of qualified immunity entry and direct judgment for Officer Bruce.

I. BACKGROUND 29, 2001, April Brooklyn po- On Center anonymous tip lice received an that drugs being were sold from three identified Bruce, rooms at a local Motel 6. Officers Reynolds dispatched Flesland and were the Motel 6. The officers at all knocked rooms, they response three but received a only one room. The officers were presented argument Counsel be- entry room, they allowed into that where half of the appellant-cross/appellee was marijuana smelled marijuana and observed Paul, Paul Applebaum of St. Minnesota. cigarettes. proceeded The officers then Also appearing on brief was Scott W. the motel’s front desk and obtained a Swanson. guest list. Officer Bruce called one of the presented argument Counsel who on be- two remaining phone, rooms on his cell half of the appellee-cross/appellant was and Richmond answered. Officer Bruce Bloomington, Jon. K. Iverson of Minneso- identify did not According himself. appearing ta. Also on the brief Jason Richmond, Officer Bruce buy- asked about J. Kuboushek. ing drugs, simply and Richmond hung up Bruce, phone. on the other MELLOY,1 Before SMITH hand, claimed that he made no mention of GRUENDER, Judges. Circuit drugs and that he pretended he had dialed GRUENDER, Judge. Circuit wrong number.

Courtney call, Richmond sued the After phone the officers re- Center, room, Minnesota and three of turned to motel officers, Bruce, police its Robert Garrett Richmond came to the door. The officers Reynolds, Flesland and Mike alleged spoke through partially Richmond rights door, civil from a arising open violations informing they him that had search of Richmond in A his motel room. received a report possible about narcotics activity found that Officer Bruce conducted in his room. Richmond stated that search in an Tyrone unreasonable man- his name was Johnson and gave ner but that the search did not cause date of birth. The requested officers injury result, actual to Richmond. As a computer check of the name and date of the district court reduced the birth and received a response of “not on $35,000 “nominal” award to one file.” The officers informed Richmond dollar. appeals Richmond reduction that believed given he had a false Heaney 1. The Honorable Gerald W. Melloy, desig- retired Honorable Michael J. who was nated, August 47E, opinion pursuant 2006. This is filed to 8th Circuit Rule remaining panel replace Judge Heaney panel. members of the and the on the Rich- fingers into two or three reinserted told soon name. around.” “moved them Courtney Richmond anus and mond’s name real outstanding during was an yelled there and swore admitted en- officers arrest. though for his he warrant felt and testified Richmond. arrested the room tered retrieved raped. The tissue being he contained 3.7 from Richmond’s buttocks a small search revealed ensuing of cocaine. grams shirt marijuana in Richmond’s amount of Rich- $1,300 in cash and over pocket prosecu- criminal In Richmond’s state pag- phones, as cell pants, as well the 3.7 tion, suppressed court the state request- The officers and “tear-offs.”2 ers illegal the fruit of an grams cocaine real Richmond’s check of computer aed search, Richmond charges against and the had sev- that Richmond name and learned the Richmond later filed were dismissed. Offi- narcotic arrests. felony previous eral City of against the instant action that he be- Richmond informed Bruce cer Bruce, and Flesland and Center Officers concealing likely was lieved Richmond under 42 claiming damages Reynolds, Bruce and that on his drugs person search. § for an unreasonable U.S.C. Officer “crotch his area.” to check going the defendants’ district denied The court Richmond, hand- held Flesland on judgment based summary for motion him prevent to cuffed, the elbow above alia, a inter immunity, finding, qualified Officer away pivoting. pulling from fact as to of material question disputed and let Richmond’s belt Bruce unbuckled and search occurred body-cavity whether the Offi- ground. fall to Richmond’s not immunity was concluding that Richmond’s boxer lowered cer Bruce then as set forth on the facts appropriate visually inspect- hands and shorts two pursue did not genitalia The defendants touching, Richmond’s Richmond. ed, without interlocutory appeal. Bruce observed Officer buttocks. buttocks. clenching his Richmond was four-day jury ato proceeded The case Flesland that Officer Richmond testified the officers claims that Richmond’s trial on table, while him over then bent strip search unreasonable performed an testified and Flesland Bruce Officers force, search, used excessive body-cavity own at forward on Richmond leaned battery. The assault and committed there was request and that Officer Bruce’s jury spe- submitted district court him. in front of When no table interroga- special form with cial verdict forward, Bruce ob- Officer positioned (1) no officer jury found tories. from protruding of tissue piece served force, or battered assaulted used excessive put Bruce buttocks. Officer cavity (2) body Richmond; alleged and, Officer according to glove a latex (3) occur; did not of Richmond search of the tissue Bruce, the corner grabbed jus- to present were circumstances exigent motion, con- avoiding quick swiping awith search, one oc- had cavity tify body skin, threw with Richmond’s tact (4) reasonable curred; had the officers to Rich- According to the ground. tissue (5) search; strip support suspicion Rich- mond, penetrated Bruce did not conduct and then Officer retrieve tissue anus for sale. package narcotics baggie, bag- plastic used are the corners "Tear-offs” away rest of gies torn tied off and (6) manner;3 search in a Katz, reasonable case.” Saucier v. direct cause of 150 L.Ed.2d 272

injury Despite to Richmond. finding (2001). We review the district court’s de- of no actual damages jury and a instruc- termination of immunity de novo. that, tion stating in the absence of dam- Hill v. McKinley, 311 F.3d ages, $1, damages nominal should be the Cir.2002). Where immunity is $35,000. damages awarded nominal asserted in a motion for as a law, matter of we view the facts in the

Richmond moved for a new trial on the light most prevailing party favorable issues of whether search caused at trial. See id. In particular, rely we damages, actual whether the officers had findings factual special on the suspicion to conduct a verdict form making whether our qualified Officer Flesland immu- behaved reasonably nity Franklin, body ruling. and whether a Littrell v. cavity Cir.2004). search occurred. Officer Bruce moved On some of these judgment as a matter of law special findings based on prevailed at tri- qualified immunity al, and for a reduction of while on others the pre- defendants nominal award to $1. vailed. To the extent facts covered district court post-trial denied all motions special interrogatory affect the qualified save Officer Bruce’s motion to reduce the immunity analysis, we must view those nominal damages to Richmond now $1. in light facts most favorable to the appeals the reduction of nominal jury’s special verdict.

and the denial of his motion for a new trial The Fourth Amendment reason

on the issue of whether he suffered actual a strip ableness of search turns on damages, “the while Officer Bruce cross-ap- scope particular intrusion, peals the man the denial of immunity and ner in conducted, which it is justifica exclusion of certain evidence. tion it, for initiating place in which II. DISCUSSION it is conducted.” Wolfish, Bell v. 520, 559, 60 L.Ed.2d 447 We first address Officer Bruce’s (1979). The regarding location, facts cross-appeal of the denial of post-trial justification and scope of the strip motion for search aas matter of law in the instant case relatively based are on well-de immunity. “Qualified fined. It undisputed is immunity protects government search official place took in from liability in a Richmond’s motel room. section 1983 un action regard justification, less With the official’s conduct there is no clearly violated a challenge appeal established constitutional to the statutory finding or right of which a the officers person reasonable had reasonable suspicion would Munn, have known.” Henderson conduct a v. search. Jones v. Cf. (8th Cir.2006). Edwards, (8th F.3d To deter Cir. 1985) mine whether an (finding officer is qual entitled to search anof arrestee ified immunity, we ask first whether violated the Fourth Amendment where au officer’s conduct violated a constitutional had thorities no suspicion reasonable right, and second whether right contraband). weapons concealed With clearly established at the time of the depri regard scope, jury rejected Rich light vation “in of the specific context of testimony mond’s body cavity jury 3. The found that Officer during Flesland’s con- duct search was reasonable. glove a latex wearing Bruce was Officer only other testimo- occurred. the tissue from Rich- when he retrieved of the search scope regarding ny mond’s buttocks. visual-only inspection aof that it consisted buttocks, fol- genitals and Richmond’s dispute not The defendants do from his of tissue removal by the lowed jury’s finding that Officer appeal the swiping quick buttocks with clenched search in an unreason conducted the motion. of Richmond’s manner violation able are facts to resolve most difficult Therefore, we rights. Fourth Amendment the search. regarding manner those directly prong of the to the second proceed that, Richmond was while undisputed It is immunity analysis, which asks the elbow held above handcuffed and right constitutional whether the asserted Flesland, Littrell, Bruce unbuckled Officer Officer established. See clearly belt, fall Richmond’s let right clearly A is established F.3d at 584.4 lowered Rich- and then ground right are so only if the contours of the hands. The with two boxer shorts incident that a at the time defined interrogatory special given posi was not defendant’s jury then Flesland whether that what he to resolve tion would have understood table, as the law. Parks Pom over a doing bent violated Cir.2004). eroy, rather Richmond alleged, F.3d guesses in own at Officer for bad on his “Officials are liable leaned forward areas; transgress in front of are liable gray with no table request Bruce’s Hall, lines.” Davis However, specifi- ing bright did find him. Cir.2004). Whether conduct re- Flesland’s cally that Officer of law that question is a clearly established of Richmond strip garding Hill, F.3d at 902.5 de novo. 311 that we review undisputed Finally, it is reasonable. determine whether immunity quently, we need not qualified in instructs that 4. Saucier finding a supported constitu- stage, the evidence a summary judgment analyses at the the instant case. prong violation in the first tional court should address expressly de- immunity analysis and leaving ques by this 5. district court erred whether a constitu- a matter of law cide as ruling Bruce’s jury. on Officer In tion to the facts based on violation occurred tional a matter of law based for as motion Hill, F.3d at plaintiff. See 311 asserted court stat qualified immunity, the district ("This that even if inquiry first so is made 903 evidence ... contains ed that "the record established, clearly a right is asserted jury that the law a conclude for sufficient might 'set it was violated determination unreasonable searches —deter prohibiting the basis principles which will become forth manner, justifi scope, by the search’s mined clearly estab- holding a that a for ” cation, clearly established location—was 200, Saucier, U.S. at (quoting 533 lished.’ search, the law’s and that time of the However, 2151)). does not Saucier S.Ct. 121 evi actions was application Defendant's analysis first-prong perform the compel us to ana have The district court should dent.” parties where the a trial on the after merits law without question a matter of lyzed this as appeal. We raised the issue on have not Littrell, 388 F.3d regard jury’s verdict. post-verdict naturally performed have ("The immunity is issue of at 584-85 defen- analysis a case where the first-prong in court, rather than question law finding jury's disputed appeal the dants province of the jury, 'It is the occurred, to decide: see violation constitutional facts, the predicate jury disputed determine 902-03, Hill, de- but we have F.3d at 311 immunity law is one of here, question where, defendants to do so clined ” (quoting Peterson v. for the court.’ sufficiency evi- challenge did not 469, n. 6 Cir. Plymouth, F.3d 473 60 finding a constitutional dence for the 1995))). violation, Littrell, Conse- 388 F.3d see We hold officer in grounds by other v. Campbell, Unwin position (1st the defendant’s would not 124, have Cir.1988), F.2d abrogated by understood that the search of Rich Jones, Johnson v.

mond in his motel room would violate his (1995) 2151, 132 L.Ed.2d 238 (abrogating rights. constitutional in April law Unwin). was clear that searches should case, In this the standards for privacy be conducted in an area as from removed hygiene clearly were only met because public possible compromis view as without the officers present arrestee were ing legitimate security concerns. See search, for the strip the motel room was Lockhart, Franklin v. 883 F.2d 656- view, isolated public officers were (8th Cir.1989) (holding that body visual Richmond, the same sex as and Officer cavity prison searches of inmates conduct sanitary wore a glove. latex Rich- ed view of four within to six other inmates mond claims the search was per- did not violate the Fourth Amendment be formed a degrading, humiliating or abu- any cause measures taken to pri increase sive manner because he was restrained would vacy implicate legitimate prison se search, during the he was not allowed to concerns); curity Bogans, see also Hill v. lower his shorts, own and boxer (10th Cir.1984) (find 735 F.2d Flesland bent him over ing the manner of a search of an table First, for the search. while the spe- arrestee unreasonable where it was con cial verdict form did not ask the ducted station area lobby specific make a finding as to whether Offi- about”). “ten to twelve ... milling people cer Flesland forcibly bent Richmond over The law was also clear that strip searches table, the jury did find specifically that should be conducted officials of the Officer Flesland’s conduct during the same sex as the individual to be searched. search was reasonable. This indicates E.g., Island, Roberts v. Rhode strongly that jury rejected when the Rich- (1st Cir.2001); see also Justice v. testimony that the search included City, Peachtree body cavity it rejected also Cir.1992). Finally, the law clear that concurrent testimony about Officer Fles- performed searches should be in a land bending him over a table hygienic fashion and not a degrading, during Therefore, the viewing search. the humiliating or abusive fashion. Selt Cf light evidence in the most favorable to the Delo, (8th zer-Bey 961, v. 66 F.3d 962-63 verdict, reject we aspect this of Rich- Cir.1995) (holding plaintiff stated a allegation.

valid Fourth Amendment search-and-sei Next, we zure claim examine the alleged where he law as of April that he was 2001 subjected to see if it put to sexual would have a comments about his reason- able officer anatomy and on notice rubbing lowering of his buttocks with hand- cuffed nightstick during searches); arrestee’s and boxer see shorts Bell, 560, search, also for a strip 441 at U.S. 99 while S.Ct. 1861 another officer (stating that held arm, it is the upper unreasonable to conduct arrestee’s would be a strip search “in fashion”); an held to be degrading, abusive humiliating and abu- Fair, (1 v. 164, Bonitz 804 F.2d sive. As examples st of an unreasonably Cir.1986) (holding body-cavity search, un abusive searches Bell cited cases that in- where, alia, reasonable inter searching the volved the use of “insultingly suggestive officers wore a single pair of gloves while remarks and banal but terrifying expres- searching multiple inmates), overruled on sions of aggression guards like those of

1009 require officers does to Amendment of nakedness in the time threatening or less intrusive intrusive use least ‘kick merely to ass’ or up [the] ‘put foot [a] instead a search but to effectuate means United prisoner,” humbled ass’ of objectively reasonable range of permits Levi, F.Supp. 439 v. ex rel. States Wolfish Farmington, Shade v. conduct.” (D.N.Y.1977), on other rev’d of 114, 147 Cir.2002). 1054, In this 1061 524, Bell, at 441 by U.S. grounds suspicion case, officers had reasonable 560, Bell, U.S. 1861, by cited concealing evidence “by drawing of blood and S.Ct. to con- position in a and were person his in other personnel medical other than and non-abusive hygienic private, duct a example, environment —for than a medical rather than risk spot, strip search of privacy in the by police if it [done] were during of the evidence disposing stationhouse,” such because transportation of course unjustified element would “invite v. Bar- States See United police station. pain,” and risk of infection personal Cir.2002) row, 733, 735-36 384 U.S. California, Schmerber proof possession (addressing an issue 16 L.Ed.2d 771-72, 86 S.Ct. hands arrestee with where an created 560, 99 Bell, U.S. (1966), cited managed dispose his back behind cuffed had also been Strip searches S.Ct. 1861. cocaine in the back seat bag of crack hu- unreasonably degrading, to be found car). Indeed, jury in the patrol aof of- “beatings where and abusive miliating cir- exigent specifically found case instant body- [visual-only accompany these ten body cavity even a to support cumstances searches, ... the correctional cavity] clearly es- search, No had one occurred. fre- the searches administer officers who put a would have legal standards tablished abusive, humiliat- insulting, make quently that, in these on notice jokes intimidating comments ing circumstances, objectively it was particular searches,” Arru during course ar- the handcuffed lower unreasonable Berman, F.Supp. da to accom- boxer shorts pants and restee’s (internal marks (D.Mass.1981) quotation search, rather to risk than plish Bonitz, 804 F.2d at omitted), cited arres- by waiting until the loss evidence case, jury specifically In the instant hand- where in an environment tee was force, apart use excessive found no Malley v. See required. were not cuffs testimony re- rejected from 335, 341, 106 S.Ct. Briggs, were body cavity there garding (1986) quali- (noting that 89 L.Ed.2d attempted officers allegations no plainly “all but immunity protects fied while conduct- humiliation pain inflict knowingly vio- or those incompetent cite does not search. Richmond ing the law”). Therefore, Bruce is Officer late the intimidating or insulting, of any evidence immunity. to entitled offi- jokes by the or humiliating comments cers. III. CONCLUSION is enti- un it Officer argues that conclude that We

Richmond Accordingly, immunity. con degrading to to or tled reasonably abusive arguments Bruce’s re reach Officer he while we do strip search duct the evidence of certain the exclusion regarding own to lower his strained, and thus unable the reduction arguments shorts, rather than boxer pants and trial on or a new of station for nominal him to the transport the dis- remand to damages. We However, actual Fourth “[t]he strip search. 1010 ” fying degradation to vacate and ....

trict court with instructions submission omitted)). (citation entry quotations and internal judgment for Bruce consis- Considering strip enter Officer the nature opinion. strip with this courts a tent have held that constitutional private, e.g., search be should conducted SMITH, dissenting. Judge, Circuit Rock, 730, Young City Little 249 F.3d (8th Cir.2001), disagree majority’s qualified 736 in a hygienic I with the man- ner, Evans, immunity e.g., conclusion and therefore re- 407 F.3d at 1277. Al- dissent. spectfully though strip a search need not be conduct- manner, ed in the least it intrusive must be majority, As stated our conducted in a Ev- non-abusive manner. immunity analysis focuses on whether ans, Bell, (citing 407 F.3d 1281 clearly possessed a established 560, (noting 99 S.Ct. 1861 even strip to be free from a forcible search right jail corrections officers in cannot conduct place that took in the field rather than in a strip searches of incarcerated inmates environment, jail- such controlled fashion”)). “an abusive right clearly Whether a estab- house. question is a law that we lished review subjected The officers Richmond to an McKinley, 311 de novo. Hill F.3d unnecessarily intimidating invasive (8th Cir.2002). search. Although the search was conduct- person’s A free from a right strip to be ed in the privacy relative of a motel room search conducted in an unreasonable man using male gloves, officers sterile no clearly ner is See Bell v. established. urgency justified forcibly strip searching 520, 559-60, Wolfish, 441 U.S. Reynolds handcuffed arrestee. (1979). However, 60 L.Ed.2d 447 testified that no exigent circumstances ex- inquiry is it precise: clearly our more Was isted, and the record lacks sufficient evi- established that the forcible search of dence support jury’s finding suspect in the investigative pur field for exigent present. circumstances were poses unreasonable? Evans v. Cf. Moreover, field searches are not com- Stephens, F.3d Cir. mon—all three officers testified that 2005) (en banc) (“Seldom general does have suspect never searched a in the reasonably’ standard such put as ‘to act field before or since search of Rich- officers on notice that certain conduct will may mond—and excite increased fear and violate federal law: Fourth Amendment Evans, intimidation. See F.3d at 1281 intensely specific.”). law is fact (noting that plaintiffs were searched in “an clearly closet, I believe that the place,” es- abnormal a broom rather A strip cell, tablished. search conducted with than “a dedicated medical ex- bathroom”). courtesy the utmost room, is nonetheless inher- amination even ently humiliating degrading. Investigative usually Swain v. strip searches involve (1st Spinney, Cir.1997); request subject F.3d officer’s of a Chic., Mary Beth v. City G. search to clothing. remove his or her own Cir.1983) Ventura, (recognizing E.g., Way v. County “magnitude Cir.2006); Evans, personal of invasion 1276-77; Swain, rights” represents, 117 F.3d at 4. Non- characterizing it “demeaning, dehuman- consensual and forcible field searches izing, undignified, humiliating, terrifying, of restrained arrestees are not a matter of unpleasant, embarrassing, repulsive, signi- investigation routine law enforcement inci- objectively An to arrest.

dent known that forc- should have per- physically restrained

ible removal inspection clothing, coupled

son’s buttocks, a level involves genitalia justifica- requires more intrusion facts establish. than the instant

tion dissent. respectfully

I therefore Petitioner, MEJIA-PEREZ,

Margarito Attorney GONZALES, General

Alberto States; Michael Cher the United Department

toff, Secretary Security, Respondents.

Homeland

No. 06-2033. Appeals, Court of

United States

Eighth Circuit. represented petitioner who Counsel 15, 2007. June Submitted: Wichita, KS. Lisk of was Sandrine July 2007. Filed: respon- represented Counsel AUSA, of Mary Madigan, Jo dent MN. Minneapolis, MURPHY, BOWMAN, and Before SHEPHERD, Judges. Circuit BOWMAN, Judge. Circuit Request filed a Mejia-Perez Margarito and Nat- Immigration Asylum with (INS) (now Depart- uralization Service (DHS)) Security on Oc- Homeland ment of not act on The INS did tober 20, 2003, until October application with a Notice Mejia-Perez it served when inadmissibili- him with charging Appear hear- a removal conducted ty. The DHS date, and on January ing on

Case Details

Case Name: Courtney Richmond v. City of Brooklyn

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 21, 2007

Citation: 490 F.3d 1002

Docket Number: 05-3770, 05-3771

Court Abbreviation: 8th Cir.