PETER EVANS, DETREE JORDAN, Plaintiffs-Appellees, versus CITY OF ZEBULON, GA, ROBERT LOOMIS, individually and in his official capacity as Police Chief of the City of Zebulon, GA, Defendants, DENIS STEPHENS, Defendant-Appellant.
No. 02-16424
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
November 18, 2003
D. C. Docket No. 01-00009-CV-JTC-3. [PUBLISH]
(November 18, 2003)
ANDERSON, Circuit Judge:
Officer Denis Stephens, of the Zebulon, Georgia, police force, appeals the district court‘s order denying his motion for summary judgment on the basis of qualified immunity. Plaintiffs-appellees Peter Evans and Detree Jordan contend in their action under
I. BACKGROUND
A. Factual Background1
On the evening of January 22, 1999, Peter Evans and Detree Jordan were driving from Atlanta to Statesboro, where the two were students at Georgia Southern University. Evans was the driver and Jordan the passenger of the vehicle,
At approximately 8 o‘clock that evening, Zebulon Police Officer Denis Stephens clocked Evans‘s and Jordan‘s car traveling 72 m.p.h. in a 45 m.p.h. zone. Stephens pulled the car to the side of the road2 and asked Evans about their destination. After hearing Evans‘s explanation of where he and Jordan were going and how they got where they were, Stephens ordered the men to exit the car. Evans consented to a search of the car and to a pat down. Stephens searched the car for about five minutes. On the video tape, Stephens later says that he found a beer can in the car but he did not display any can in front of the video camera, though it was Stephens‘s usual habit to display such items. Evans and Jordan assert that Stephens did not, in fact, find a beer can. Several times during the course of the traffic stop, Evans put a piece of candy in his mouth. Each time, Stephens asked him to remove
Stephens issued Evans a citation for speeding. He then asked Evans to submit to a chemical analysis of the alcohol content in his breath. Evans replied that he wanted to speak to his lawyer, and Stephens placed Evans under arrest for D.U.I. refusal and for speeding. Stephens requested computer checks of the men and their vehicle. The check returned an outstanding parole violation warrant for a black male with the last name Jordan and a birthday matching that on Jordan‘s license. Based on these matches, Stephens placed Jordan under arrest for violating parole.3 During a pat down of Jordan, Stephens says that he found a beer pop top. The pop top is not visible in the tape and Stephens did not display it for the camera. As with the alleged beer can, Evans and Jordan claim Stephens did not in fact find a pop top.
Stephens placed Evans and Jordan in his patrol car and a tow truck was summoned. While waiting for the tow truck, Stephens again searched the interior of the car and the trunk. He and the other officers also searched the ground and roadside around the rental car. When the tow truck arrived, Stephens transported Evans and Jordan to the Pike County Jail.
At the jail, Stephens handcuffed Evans and Jordan to a bench outside of the
Evans and Jordan were issued jumpsuits and placed in the general population
B. Procedural History
Evans and Jordan filed suit under
The court denied Stephens‘s motion for summary judgment on the search claim, holding that the plaintiffs had alleged an unconstitutional search, conducted without reasonable suspicion and in an unconstitutionally intrusive manner. The court held that Stephens was not entitled to qualified immunity for the search as alleged. The court held that Bell v. Wolfish, 441 U.S. 520 (1979), and Justice v. City of Peachtree, 961 F.2d 188 (11th Cir. 1992), clearly established that, absent reasonable suspicion, a strip search involving physical contact and use of an object to probe the subject‘s anal and genital areas was unconstitutional. Stephens brings this interlocutory appeal challenging the district court‘s denial of his motion for summary judgment, arguing that the appellees have not stated a violation of their constitutional rights and that he is entitled to qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985);
II. STANDARD OF REVIEW
We review a district court‘s order denying summary judgment de novo. Wilson v. Jones, 251 F.3d 1340, 1342 (11th Cir. 2001). We must first decide whether the plaintiffs have alleged a constitutional violation and, if so, whether the constitutional right alleged to have been violated was clearly established at the time of the alleged violation. Id. (citing McElligot v. Foley, 182 F.3d 1248, 1254 (11th Cir. 1999)). A government official is entitled to qualified immunity for liability arising out of his discretionary actions unless those actions violated a clearly established federal right of which a reasonable person would have known. Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The Supreme Court has recently articulated the appropriate standard: “the salient question ... is whether the state of the law ... [at the relevant time] gave the ... [officers] fair warning that their alleged treatment of Hope was unconstitutional.” Hope, 536 U.S. at 741. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a
III. DISCUSSION
This appeal presents two questions regarding the legality of the searches. The first is whether the strip search was justified in its inception, and the second is whether the search was conducted in a constitutional manner. Each question also raises the issue of qualified immunity. We will address the inception of the search first.
A. Inception of Search
Arrestees who are to be detained in the general jail population can constitutionally be subjected to a strip search only if the search is supported by reasonable suspicion that such a search will reveal weapons or contraband. Wilson, 251 F.3d at 1343. Stephens argues that he had reasonable suspicion to believe that Evans and Jordan were concealing drugs. We conclude, however, that these searches were not supported by reasonable suspicion.
Stephens advances a myriad of factors that, he argues, support a reasonable suspicion that Evans and Jordan were concealing drugs beneath their clothing or in their body cavities, but none of these factors, alone or in combination, provide such
The instant facts are insufficient to permit a strip search involving contact with the anus and genitals. The justification required to conduct a search increases with the degree of intrusiveness of a search, see Justice, 961 F.2d at 192, and the scope of the search must be commensurate with the officer‘s reasonable suspicions, see Terry v. Ohio, 392 U.S. 1, 19 (1968). Cf. Justice, 961 F.2d at 194 (reasonable suspicion to strip search an arrestee in custody was
The record also reveals that both Evans and Jordan were subjected to a pat down search at the scene of the traffic stop and again when they arrived at the jail. Stephens conducted two searches of the car during the traffic stop, and he and the
Stephens is entitled to qualified immunity, however, because as of January 22, 1999, the law was not clearly established that an arrestee could not constitutionally be strip searched under the conditions alleged. In Wilson, we granted qualified immunity to a Shelby County, Alabama, sheriff for his security policy of strip searching all arrestees detained in the general jail population, regardless of the presence or absence of reasonable suspicion that an arrestee concealed weapons or contraband. We held that Bell and Justice did not clearly establish that reasonable suspicion was required to perform those searches. 251 F.3d at 1344-46. Because the law was unclear until 2001 when Wilson was decided, Stephens did not have fair warning in 1999 that reasonable suspicion was
B. Manner of the Search
The appellees also asserted that the manner in which the searches were conducted violated their constitutional rights. In Bell, the Supreme Court explained that
[t]he test of reasonableness under the Fourth Amendment . . . requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it was conducted, the justification for initiating it, and the place in which it is conducted.
441 U.S. at 559. The highly intrusive nature of strip searches and body cavity searches is widely recognized, fraught as they are with the inherent potential to degrade, demean, dehumanize, and humiliate. Justice, 961 F.2d at 192. There is a danger that the search will be conducted in “an abusive fashion.” Bell, 441 U.S. at 560. “Such an abuse cannot be condoned. The search must be conducted in a reasonable manner.” Id.
Courts considering the reasonableness of the manner in which strip searches
Considering these factors, we are persuaded that the appellees have testified in deposition to details with regard to the strip searches that, if believed by a jury, could demonstrate that the searches were performed in an unreasonable and unconstitutional manner. Although Stephens testified to a much different search, we relate the facts according to the appellees’ account, as we must in this summary judgment posture. Evans and Jordan were not searched in a private place, but were
Having determined the existence of triable issues of fact with regard to the constitutionality of the manner in which the searches were conducted, we must now determine if triable issues of fact remain with regard to Stephens‘s qualified immunity defense. The defense of qualified immunity will entitle Stephens to summary judgment unless the law was clearly established, either by materially similar precedent, Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002); Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002), or by general legal principles that
We readily conclude that there are no materially similar precedents that provided Stephens fair warning of the unconstitutionality of his conduct. The only two cases considering the manner in which a strip search was performed decided at the time of the searches at issue and which could have provided fair warning to Stephens are Bell and Justice.15 While the Bell Court cautioned that “on occasion a security guard may conduct the search in an abusive fashion,” 441 U.S. at 560, the Court provided no factual context to give definition to what constitutes an abusive search. Justice held that a strip search conducted in a minimally intrusive manner was reasonable, but did not indicate what might constitute an unreasonable search.
The appellees argue that the force used during the search was clearly unconstitutional, relying on cases denying police officers qualified immunity for claims of excessive force used to effectuate an arrest. See Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002);
These marked differences are highlighted by the analysis applied in these excessive force cases. The excessive force analysis considers (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect is actively resisting arrest or attempting to evade arrest. Lee, 284 F.3d at 1197-98 (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). This analysis, tailored to the arrest context, does not provide sufficient guidance to the reasonableness of the manner in which a strip search is conducted. The severity of the arrestee‘s suspected crime, for example, may be relevant to the justification for the search, but is probably irrelevant to the reasonableness of the manner in which the search is conducted. The significant factual and doctrinal differences between the cases
The appellees argue that the conduct alleged was so egregious that it obviously violated Bell‘s general warning against abusive searches even though this statement in Bell was not tied to any factual context. See Hope, 536 U.S. at 741 (“a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful“) (quotation, citation and alteration omitted); cf. Willingham v. Loughnan, 321 F.3d 1299, 1303 (11th Cir. 2003) (“an official‘s conduct could run so far afoul of constitutional protections that fair warning was present even when particularized caselaw was absent“) (citing Priester, 208 F.3d at 926).
We hold that the general legal principles stated in Bell and Justice do not apply with such obvious clarity to the facts of this case that no reasonable officer
Even under the appellees’ version of the facts, an objectively reasonable officer could have concluded that the conduct alleged here with respect to two resistant subjects did not violate the subjects’ constitutional rights. Jordan testified that when Stephens ordered him to remove his clothes, he removed his hands from the wall, turned around to face Stephens, and protested. A reasonable officer in these circumstances could have interpreted this as resistance to the search, and could have reasonably believed that the application of some force, including a choke hold, to facilitate the search would not violate the Constitution. Cf. Post, 7 F.3d at 1559.
The law was not clearly established at the time of these searches that
Stephens also lacked fair warning that his verbal abuse could violate the Constitution. Several courts have noted that verbal abuse does not usually rise to a level of a constitutional violation. This court, for example, has held that verbal taunts by other inmates do not pose a serious risk to the prisoner‘s health or safety under the Eighth and Fourteenth Amendments. Edwards v. Gilbert, 867 F.2d 1271, 1274 n.1 (11th Cir. 1989). Cf. McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) (threatening language and gestures of a corrections officer do not generally violate an inmate‘s Eighth Amendment rights). Other courts have held that verbal
In holding that a reasonable officer would not be compelled, simply from the general principles stated in Bell and Justice, to conclude that the manner in which these searches were conducted was unconstitutional, we emphasize that the
In sum, under the circumstances here -- the application of some physical force to keep apparently resistant arrestees against the wall during the search, and anal and genital contact with a slender object, all accompanied by verbal abuse but in the absence of any injury or anal penetration -- the law was not clearly established at the time that the searches would violate appellees’ rights under the Fourth Amendment.18 The doctrine of qualified immunity recognizes “the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of public authority,” Marsh, 268 F.3d at 1031 n.8 (quoting Butz v. Economou, 438 U.S. 478, 506 (1978)).
IV. CONCLUSION
The evidence adduced by the appellees and the reasonable inferences therefrom, if believed by a jury, could support the conclusion that Stephens subjected Evans and Jordan to a strip search and body cavity search without reasonable suspicion that these searches would reveal contraband and that Stephens conducted those searches in an unreasonable manner, in violation of Evans‘s and Jordan‘s Fourth Amendment rights. However, because the law was not clearly established that reasonable suspicion was required to conduct the searches at issue, Stephens is entitled to summary judgment on the basis of qualified immunity for claims based on the initiation of those searches. Also, because the law was not clearly established at the time that a search could not constitutionally be conducted in the manner alleged, Stephens is entitled to summary judgment on the basis of qualified immunity for those claims based on the manner in which the search was
Accordingly, the judgment of the district court holding that the search was unconstitutional, both with respect to the initiation of the searches and with respect to the manner in which the searches were conducted, is affirmed. But the judgment of the district court holding that Stephens is not entitled to qualified immunity, both with respect to the initiation of the searches and with respect to the manner thereof, is reversed. This case is therefore remanded with instructions to enter judgment for Stephens.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
I respectfully dissent as to Part III. B. of the majority opinion. The majority concludes that a jury could find that “the searches were performed in an unreasonable and unconstitutional manner.” The majority further concludes, however, that Stephens is entitled to qualified immunity on the plaintiffs’ claims in that regard “because the law was not clearly established at the time that a search could not constitutionally be conducted in the manner alleged ....” Bell v. Wolfish, 441 U.S. 520, 560 (1979) established the law at least by general statements. The opinion stated: “Such an abuse [conducting a search in an abusive fashion] cannot be condoned. The searches must be conducted in a reasonable manner.” I submit that any reasonable and competent officer would know that the conduct as alleged here was mentally and physically abusive and unreasonable. While the decision to search may be subject to the defense of qualified immunity, it was part of a continuum of circumstances that further demonstrates the egregiously abusive and unreasonable manner of the search itself. The conduct, as alleged, was manifestly overreaching.
The following quotes from Hope v. Pelzer, 536 U.S. 730 (2002) are pertinent:
In assessing whether the Eighth Amendment violation here met the
Harlow test, the Court of Appeals required that the facts of previous cases be “‘materially similar’ to Hope‘s situation.” 240 F.3d, at 981. This rigid gloss on the qualified immunity standard, though supported by Circuit precedent, is not consistent with our cases.
Id. at 739 (footnote omitted).
...For a constitutional right to be clearly established, its contours “must be sufficiently clearthat a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell [v. Forsyth, 472 U.S. 511,] 535, n. 12; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
....
The obvious cruelty inherent in this practice should have provided respondents with some notice that their alleged conduct violated Hope‘s constitutional protection against cruel and unusual punishment. Hope was treated in a way antithetical to human dignity-he was hitched to a post for an extended period of time in a position that was painful, and under circumstances that were both degrading and dangerous. This wanton treatment was not done of necessity, but as punishment for prior conduct. Even if there might once have been a question regarding the constitutionality of this practice, the Eleventh Circuit precedent of Gates and Ort, as well as the DOJ report condemning the practice, put a reasonable officer on notice that the use of the hitching post under the circumstances alleged by Hope was unlawful. The “fair and clear warning,” Lanier, 520 U.S., at 271, that these cases provided was sufficient to preclude the defense of qualified immunity at the summary judgment stage.
Regardless of Hope, in Willingham v. Loughnan, 321 F.3d 1299, 1302 (11th Cir. 2003) this court stated:
Decisions of this court before the Supreme Court‘s Hope decision demonstrate that the law of the Circuit harmoniously complies with the Supreme Court‘s reminder. We have repeatedly acknowledged the possibility that a general statement of the law might provide adequate notice of unlawfulness in the right circumstances. For example, before the Supreme Court‘s decision in Hope, this court en banc specifically stated that “general statements of law” were capable of giving fair warning of unconstitutional official behavior:
We acknowledge that preexisting case law, tied to the precise facts, is not in every situation essential to establish clearly the law applying to the circumstances facing a public official so that a reasonable official would be put on fair and clear notice that specific conduct would be unlawful in the faced, specific circumstances. Some general statements of law are capable of giving fair and clear warning in some circumstances: the occasional “obvious clarity” cases per Lanier.
Marsh v. Butler County, Alabama, 268 F.3d 1014, 1031 n. 9 (11th Cir. 2001) (internal citations omitted); see also, e.g., Jenkins v. Talladega City Bd of Educ., 115 F.3d 821, 825 n. 3 (11th Cir. 1997) (en banc) (stating “general principles of [decisional] law can provide fair warning” if constitutional rule applies with “obvious clarity” to circumstances facing defendant); Lee v. Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002) (recognizing exception to requirement for factually similar cases where conduct so clearly unlawful that preexisting caselaw unnecessary); Rodriguez v. Farrell, 280 F.3d 1341, 1350 n. 18 (11th Cir. 2002) (“We very occasionally encounter the exceptional case in which a defendant
officer‘s acts are so egregious that preexisting, fact-specific precedent was not necessary to give clear warning to every reasonable (by which we, in the qualified immunity context, always mean every objectively reasonable) officer that what the defendant officer was doing must be ‘unreasonable’ within the meaning of the Fourth Amendment.“); Skrtich v. Thornton, 280 F.3d 1295, 1304 n. 9 (11th Cir. 2002) (“[S]ome conduct is so obviously contrary to constitutional norms that even in the absence of caselaw, the defense of qualified immunity does not apply.“); Brent v. Ashley, 247 F.3 1294, 1303 n. 10 (11th Cir. 2001) (noting general statements of law capable of giving fair warning to officials); Priester v. City of Riviera Beach, Florida, 208 F.3d 919, 926 (11th Cir. 2000) (stating conduct which lies at core of Fourth Amendment prohibition makes unlawfulness readily apparent without preexisting caselaw; defense of qualified immunity not allowed); Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997) (same). It is not news to us that official conduct may be so egregious that further warning and notice beyond the general statement of law found in the Constitution or the statute or the caselaw is unnecessary; when we first decided this case, we did not believe that precedents with materially similar facts are always needed to overcome the defense of qualified immunity.
I submit, considering the totality of the circumstances and the general statements of law in Bell, that the alleged facts depict conduct so egregious as to foreclose the allowance of qualified immunity for the claims addressed in Part III. B.