Norwood v. Bain ( 1998 )

Rehearing en banc granted by order filed 7/9/98;
published opinion filed 5/13/98 is vacated.
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSEPH H. NORWOOD, individually
and as representative of a class of
citizens,
Plaintiff-Appellant,
v.
No. 96-2164
W. C. BAIN, JR., individually and in
his official capacity as Director of
Public Safety for the City of
Spartanburg Police Department;
CITY OF SPARTANBURG,
Defendants-Appellees.
JOSEPH H. NORWOOD, individually
and as representative of a class of
citizens,
Plaintiff-Appellee,
v.
No. 96-2184
W. C. BAIN, JR., individually and in
his official capacity as Director of
Public Safety for the City of
Spartanburg Police Department;
CITY OF SPARTANBURG,
Defendants-Appellants.
Appeals from the United States District Court
for the District of South Carolina, at Spartanburg.
G. Ross Anderson, Jr., District Judge.
(CA-95-1016-3-7)
Argued: June 5, 1997
Decided: May 13, 1998
Before WILKINS and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, vacated and remanded in part by published opinion.
Senior Judge Phillips wrote the opinion, in which Judge Michael
joined. Judge Wilkins wrote an opinion concurring in part and dis-
senting in part.
_________________________________________________________________
COUNSEL
ARGUED: W. Gaston Fairey, FAIREY, PARISE & MILLS, P.A.,
Columbia, South Carolina, for Appellant. Andrew Frederick Linde-
mann, ELLIS, LAWHORNE, DAVIDSON & SIMS, P.A., Columbia,
South Carolina, for Appellees. ON BRIEF: Rochelle R. McKim,
FAIREY, PARISE & MILLS, P.A., Columbia, South Carolina, for
Appellant. William H. Davidson, II, James M. Davis, Jr., ELLIS,
LAWHORNE, DAVIDSON & SIMS, P.A., Columbia, South Caro-
lina; H. Spencer King, III, Cathy Hoefer Dunn, LEATHERWOOD,
WALKER, TODD & MANN, P.C., Spartanburg, South Carolina, for
Appellees.
_________________________________________________________________
OPINION
PHILLIPS, Senior Circuit Judge:
Joseph H. Norwood, individually and as representative of a class,
brought this § 1983 action challenging police conduct at a stop and
search checkpoint set up at the entry to a charity motorcycle rally.
The district court granted declaratory relief but declined to award
damages on Norwood's Fourth Amendment claim stemming from the
physical search of motorcycle riders' clothing and containers and
upheld the temporary seizure of the riders at the stationary check-
point. On the parties' cross-appeals, we affirm, except to the extent
the district court failed to enter an award of nominal damages on the
2
class members' unlawful search claim. As to that, we vacate and
remand with instructions to award nominal damages on that claim.
I.
The events giving rise to this action involve a charity motorcycle
rally held for the benefit of the American Red Cross ("Red Cross")
on September 11, 1994, at the Spartanburg, South Carolina fair-
grounds. Sometime in May 1994, as the event's organizers were
beginning plans for the motorcycle rally, representatives of the Red
Cross and motorcycle clubs from various areas of northwestern South
Carolina requested assistance from the Spartanburg Department of
Public Safety ("SDPS") in maintaining order at the event. At a plan-
ning meeting, Captain Doug Horton of the SDPS was informed that
organizers expected up to 3500 participants, possibly including mem-
bers of two rival motorcycle gangs, the "Hell's Angels" and the "Pa-
gans." After considering the matter, Horton believed that security for
the event (which included a motorcycle ride to the fairgrounds fol-
lowed by a motorcycle show and country music concert) could be
provided by twelve to fifteen off-duty officers.
Following up, in July, Horton held a meeting of members of the
SDPS's "reserve officers" force who on occasions provided off-duty
security service for events. At the meeting, he told them of the possi-
bility that motorcycle gang members might be attending the Rally and
asked them to listen out for any information as to possible "prob-
lems." Following the meeting, one of the reserve force members, Carl
McKinney, sought Horton out and advised him that an unidentified
friend at work had told McKinney that an unidentified person had
reported to McKinney's friend that a confrontation at the Rally
between the Hell's Angel and Pagan gangs was planned. Horton was
further advised that gang members could not be visually identified
because it was planned that they would "drop their colors"--not wear
identifying insignia.
Horton then sought specific advice on motorcycle gang behavior
from others. A former police instructor on gang tactics referred him
to Lt. Ron Cook of the South Carolina Law Enforcement Division
(SLED), who was an expert on motorcycle gangs. Cook responded
with information respecting the Hell's Angels and Pagans. Specifi-
3
cally, he advised that they were in an ongoing territorial struggle for
"control" of South Carolina gang operations which was then claimed
by the Hell's Angels but challenged by the Pagans. As a result, there
had been two violent altercations between the groups in recent
months, one in Myrtle Beach and one in New Jersey, both of which
resulted in physical injuries. Lt. Cook also advised Horton that there
were several local area motorcycle gangs affiliated with the Hell's
Angels who might be inclined to intervene.
Armed with this information, Horton went in early August to SDPS
Chief W.C. Bain and told him for the first time about the upcoming
Rally and of the feared potential for trouble. Bain then called a gen-
eral meeting of the Rally organizers for August 24 to consider the
matter of security. Before the general meeting, Bain conferred with
Horton and Cook and received from them an update on the situation
as they understood it. At the general meeting, Cook repeated the
information he had given Horton. Also, at the meeting, Chief Bain
announced that the SDPS would take over and be responsible for
security at the Rally and that the security measures would include
some form of screening for weapons at the entrance to the Rally area.
To this end, Bain had a training session on motorcycle gang behav-
ior patterns conducted for Department officers on September 1. At it,
they were instructed on gang identifying marks and insignia and
"weapons of choice." These weapons consisted, per the instruction
given, of guns and a variety of blunt instruments such as heavy
wrenches which were reportedly often carried in motorcycle "saddle-
bags." Following this session, Cook reported to Bain and Horton on
September 6 that he had received information that members of the
Hell's Angels would be attending the Rally and that the Pagans had
been ordered to join in a ride to an undisclosed location on the day
before the scheduled Rally.
Based on the information received, Chief Bain on September 6
directed that all available officers in his department be required to
work on the day of the Rally and ultimately assigned 75 for specific
security duty at the site. He also requested assistance from other law
enforcement agencies, including members of SLED. SLED, on
Lt. Cook's recommendation, approved use of one of its helicopters to
aid in surveillance, but declined any further participation. According
4
to the testimony of SLED officials, they declined participation
because of a determination that the potential for violence, according
to their intelligence assessment, did not support a need for the size
force otherwise assembled by Bain. Tr. Vol. 1, pp. 188-91. And, they
specifically determined not to participate in the entry search proce-
dure directed by Chief Bain, because of general doubts, based on their
experience, of its need, and specifically because"due to the informa-
tion that there would be a large number of family groups and regular
civilians at this function, we just felt that our agency would not be
involved in screening." Tr. Vol. 1, p. 139.
On the day of the rally, a single checkpoint was established on a
public street outside the "cattle gate" entrance to the fairgrounds. The
checkpoint was visible from a distance and persons on motorcycles
were told that they could enter the fairgrounds on foot without pass-
ing through the checkpoint if they parked their motorcycles in the
parking lot. Officers were instructed to allow anyone to walk freely
through the gates.
Persons on motorcycles, however, were stopped, and had their
licenses examined, their licenses and persons videotaped, and some
had their motorcycle "saddlebags," or integral motorcycle compart-
ments, or unworn clothing searched for weapons. The original plan
had envisioned that physical searches of particular persons and their
effects were to be conducted only after a hand-held metal detector
(magnetometer) suggested the presence of a weapon in their clothing
or on their motorcycles. The proximity of the metal on the motorcy-
cles, however, soon made it apparent that the use of these devices was
ineffectual for the purpose and they were abandoned in favor of phys-
ical searches of the interiors of saddlebags and unworn clothing. No
consent to any of these searches was sought or given. Of the 107
members of the class, 74 had their motorcycle saddlebags, or integral
compartments, or unworn clothing searched in this manner.1 So far as
_________________________________________________________________
1 As revealed by audio-videotapes made at the scene and introduced as
evidence at trial, the procedure followed was this. Each motorcycle was
stopped at the checkpoint. This sometimes led to long lines of motorcy-
cles awaiting entry. At the checkpoint, all persons on each motorcycle,
drivers and passengers alike, were required to provide photographic iden-
5
the record reveals, no weapons were detected at the checkpoint, nor
was any member of either of the rival motorcycle gangs identified as
such.
Norwood's class action complaint alleged that this conduct violated
in various ways the Fourteenth and Fourth Amendment rights of class
members and it sought injunctive and monetary relief against the City
of Spartanburg and compensatory and punitive damages against Bain
in his individual capacity. Specifically, the claim was that stopping
the class members at the checkpoint and subjecting them there to
extensive videotaping of their persons and licenses was an unreason-
able seizure of their persons and that the ensuing physical inspection
of the interiors of motorcycle saddlebags and integral compartments
_________________________________________________________________
tification to an attending officer. Some had their identifications prepared
for display as they reached the checkpoint.
Approximately thirty feet away a video camera operated by a law-
enforcement officer filmed the activities. The officer on station took the
proffered photographic identifications, confirmed that they resembled the
holders and then handed them to the cameraman. The cameraman then
held the identification up to the camera, read aloud the individual's
name, address, and license number, and handed it back to the first offi-
cer.
Sometime during this process, a third and sometimes fourth officer
conducted a physical search of some of the riders' motorcycle saddle-
bags, other closed compartments, and unworn clothing. Most persons
stopped at the checkpoint were not wearing jackets but had placed them
on the back-ends of their motorcycles. When that was the case, the offi-
cer would take the garment, reach inside the pockets, and conduct a
physical search of its contents. Similar searches were made of the interi-
ors of integral compartments and attached saddlebags of all motorcycles
that had them. These searches were conducted by the officer having the
rider open the compartment or saddlebag and then looking inside. In
some cases, this involved taking articles out of the container, in others,
feeling around inside the container.
At the conclusion of the search, each driver was allowed to enter the
fairgrounds. The total process for each motorcycle lasted from one to two
minutes. The officers were at all times polite and civil, wishing those
stopped "a good day" as they entered the fairgrounds.
6
and the unworn clothing of members of the class was an unreasonable
search of their property that violated their Fourth and Fourteenth
Amendment rights.2 Following discovery, the district court denied
cross-motions for summary judgment. In doing so, the court rejected
Bain's motion for summary judgment on grounds of qualified immu-
nity and concluded that, as a matter of law, Bain was acting as the
policy-making official for the City in planning and executing the
checkpoint procedures challenged by the class.
The case then went to trial on the Fourth Amendment claims and
the defenses raised by Bain and the City. When the jury was unable
to reach a verdict, the parties agreed to allow decision by the court
on the evidentiary record. The district court concluded that the initial
seizure by stopping and videotaping the class members at the check-
point was reasonable, and so did not violate their Fourteenth and
Fourth Amendment rights. The court further concluded that the
searches of motorcycle saddlebags and compartments and the riders'
unworn clothing were unreasonable in light of the lack of individual-
ized suspicion, and on this basis, gave a declaratory judgment of
Fourth Amendment violation by these searches against both Bain and
the City. Finding no evidence of actual damages, however, the court
declined to award any monetary relief, including nominal damages,
for that violation.
Both parties appealed. Norwood challenges the district court's
holding that the checkpoint videotaping procedures did not violate
class members' Fourth Amendment rights and the court's failure to
award any monetary relief for the search violation that the court did
find. The City and Bain challenge the district court's entry of declara-
tory relief on the Fourth Amendment search claim, contending that
the court erred both in finding a violation and in concluding that the
right violated was clearly established for purposes of Bain's qualified
immunity defense.
_________________________________________________________________
2 In addition, the complaint alleged a First Amendment violation,
claiming that the search and seizure was an infringement on associational
and free-speech rights. The district court rejected this claim on summary
judgment and that determination is not challenged in this appeal.
7
II.
We first address whether the checkpoint procedures other than the
physical searches of unworn clothing and closed container interiors
violated class members' Fourth Amendment rights. The district court
held that they did not and we agree.
Persons stopped for any purpose at motorist "checkpoints" set up
by government officials on public highways and streets have been
seized for Fourth Amendment purposes. See United States v.
Martinez-Fuerte, 428 U.S. 543, 556 (1976). If the seizure is not rea-
sonable, it violates the person's Fourth Amendment rights. See
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450 (1990)
("[Q]uestion [is] whether such seizures are `reasonable' under the
Fourth Amendment."). Whether particular checkpoint seizures are
reasonable is determined by balancing the gravity of the public inter-
est sought to be advanced and the degree to which the seizures do
advance that interest against the extent of the resulting intrusion upon
the liberty interests of those stopped. See Sitz , 496 U.S. at 450-55
(confirming and applying balancing analysis as proper test of check-
point seizures' constitutionality); see also Brown v. Texas, 443 U.S.
47, 50-51 (1979) (recognizing balancing analysis as proper test for
constitutionality of all "seizures that are less`intrusive' than a tradi-
tional arrest").
Applying this balancing analysis, the Supreme Court has upheld
the constitutionality of government checkpoints set up to detect
drunken drivers, Sitz, 496 U.S. at 444, and illegal immigrants,
Martinez-Fuerte, 428 U.S. at 543, so long as they involve no more
than an "initial stop . . . and the associated preliminary questioning
and observation by checkpoint officers." Sitz , 496 U.S. at 450-51. In
doing so, the Court has determined that the gravity of the public inter-
ests that such stops seek to advance and the general efficacy of check-
point stops in advancing those interests outweigh the minimal
intrusions on protected Fourth Amendment liberty interests that are
caused by the brief stops required for such limited questioning and
observation. But, the Court has also cautioned that"[d]etention of
particular motorists for more extensive . . . testing may require satis-
faction of an individualized suspicion standard." Sitz, 496 U.S. at 451
(citation omitted). And, applying these general principles, the Court
8
has recognized that an initially reasonable seizure may be transformed
into an unreasonable one by further intrusions not based upon individ-
ualized suspicion or consent. See United States v. Brignoni-Ponce,
422 U.S. 873, 881-82 (1975).
In recognition of these established principles, Norwood has con-
ceded for purposes of this case that the initial stops effected by this
checkpoint, so long as they involved nothing more than the stops
themselves and "preliminary questioning and observation by the
checkpoint officers" respecting possible weapon possession, would
have been reasonable seizures.3 But, Norwood then contends that the
further intrusion on privacy and personal security interests caused by
the videotaping procedures made the initially reasonable seizures
unreasonable.
The district court concluded--as Norwood has now conceded--
that under the Sitz balancing analysis the initial stop for brief ques-
tioning and observation was reasonable in view of the gravity of the
public interest and the minimal intrusion upon protected liberty inter-
ests such a seizure entailed. And, then addressing Norwood's conten-
tion that the videotaping took the intrusion over the line of initial
reasonableness, the district court rejected it. In the court's view,
because the class members had no reasonable expectation of personal
privacy while in a public place, videotaping them at the checkpoint
added nothing to the intrusion upon protected interests with which the
Sitz balancing analysis is concerned. See JA 695 (order). While we
think that view of the matter not an adequate one to meet Norwood's
contention, we agree with the ultimate conclusion that the videotaping
did not make what is conceded to have been a reasonable initial
checkpoint seizure an unreasonable one.
Starting from his concession for purposes of the case that the initial
_________________________________________________________________
3 In view of this concession, we need not address that possible issue.
We observe, however, that the situation presented by the merely sus-
pected threat of violence at a local event differs sufficiently from the
documented risks of drunken driving on a state's highways and of illegal
immigrant crossings of national borders to make the issue, though not
necessarily its resolution, a significantly different one than those
addressed in Sitz and Martinez-Fuerte .
9
stop for brief questioning and observation would have passed muster
under established Fourth Amendment checkpoint jurisprudence, the
question raised by Norwood is whether the videotaping procedure so
increased this allowable intrusion as to tip the Sitz-test balance. And
that, under the established principles, requires looking at both the
objective and subjective aspects of this added intrusion. See Sitz, 496
U.S. at 451-52 (recognizing and applying both in assessing extent of
intrusion at sobriety checkpoint).
The objective aspect concerns "the duration of the seizure and the
intensity of the investigation." See id. at 452. Here, the record indi-
cates that the entire seizure, including that part devoted to the vid-
eotaping procedure, lasted no more than a minute or two for any class
member. That seems well within tolerable durational limits for any
effective weapons checkpoint seizure. Cf. id. at 448 (characterizing 25
seconds for sobriety check seizure as "minimal".)
As to the intensity of this particular aspect of the checkpoint inves-
tigation, it actually added nothing to the intensity of that being con-
ducted by the eyes and ears of the checkpoint officers; it merely
provided a photographic record of what was being directly observed
by those officers. Cf. United States v. Espinoza , 641 F.2d 153, 165-67
(4th Cir. 1981) (affirming admission of photographic evidence made
at search scene where officers had legal right to view items). While
we do not minimize the added degree of annoyance and resentment
surely generated by this procedure, and indeed might question its
actual utility for the asserted purpose of intercepting weapons and
preventing violence, we nevertheless do not believe it added signifi-
cantly to the intensity of the investigative procedures.
The subjective aspect of this particular intrusion concerns the
degree of "fear and surprise" that it could generate in those subjected
to it. See Sitz, 496 U.S. at 452-53. Here again, without minimizing the
added degree of aggravation surely generated by this questionably rel-
evant procedure, we do not believe it could possibly have generated
the sort of "fear and surprise" with which the Sitz balancing analysis
is concerned. The checkpoint was one clearly visible to and readily
avoided without penalty by anyone approaching it; the videotaping
was not done randomly so as to imply any special interest in particu-
lar persons stopped; and it was done in a civil manner that did not
10
involve any element of threat or force. See Martinez-Fuerte, 428 U.S.
at 558-59.
Accordingly, though this videotaping procedure may well have
pushed to the limit the kind of "brief questioning and observation"
that may accompany valid checkpoint seizures without individualized
suspicion, we conclude that under the circumstances it did not make
unreasonable the checkpoint seizures whose reasonableness in other
respects has been conceded for purposes of this case.
III.
We next consider whether the physical searches of the class mem-
bers' clothing, saddlebags, and integral motorcycle compartments
violated their Fourteenth and Fourth Amendment rights. The district
court held that they did and we agree.
It is undisputed that these searches of the interiors of closed con-
tainers and clothing of motorists stopped at a checkpoint were made
without consent, without warrants, and without probable cause (or
any lesser form of individualized suspicion). Accordingly, it is axiom-
atic, and not actually disputed, that the searches violated the Four-
teenth and Fourth Amendment rights of these motorcycle riders
unless justified by some special circumstance recognized as creating
an exception to the warrant and probable cause requirements. See
Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973) (so hold-
ing as to vehicle search "conducted in the unfettered discretion of
[law enforcement officials], who did not have a warrant, probable
cause, or consent") (footnote omitted).
Bain and the City invoke two alternative grounds of justification
for the searches: (1) that they were made incident to operation of a
constitutionally valid checkpoint; or (2) that they were valid as "ad-
ministrative searches" regulating access to a sensitive facility in order
to prevent harm to those within. We take these in turn, and conclude
that neither justified the searches.
A.
The fact that a warrantless, unconsented search of a motorist's
effects is made at and incident to a valid non-border checkpoint sei-
11
zure is not, standing alone, a special circumstance allowing it to be
made without probable cause. At least since the decision in United
States v. Ortiz, 422 U.S. 891 (1975), it has been clear that the limited
exception to the individualized suspicion requirement that justifies
temporary seizures of motorists at properly operated checkpoints does
not serve also to allow searches of the motorists' persons or effects.
Ortiz flatly held that "at checkpoint stops removed from the border
and its functional equivalents, officers may not search private vehicles
without consent or probable cause." Id. at 896-97 (footnote omitted).
The City attempts to distinguish Ortiz on the basis that the check-
point stops at issue in that case were discretionary ones that affected
only three percent of passing vehicles, whereas those here affected all
motorcycle riders seeking to pass beyond. The Ortiz Court, however,
rejected just such an attempted distinction based upon the relatively
greater regularity of a particular checkpoint's operation. In holding
that such searches were just as unreasonable when made at a
randomly-operated checkpoint as were those made by"roving
patrols," the Court said that
[t]he greater regularity attending the stop does not mitigate
the invasion of privacy that a search entails. Nor do check-
point procedures significantly reduce the likelihood of
embarrassment. Motorists whose cars are searched, unlike
those who are only questioned, may not be reassured by see-
ing that the [authorities] search[ ] other cars as well.
Id. at 895.
Indeed, while the Supreme Court's motorist checkpoint decisions
make plain that temporary seizures at regularized motorist check-
points may be reasonable, none suggests that more extended seizures
of the person, much less searches of the person or his effects may also
be conducted without individualized suspicion as an incident of the
checkpoint's operation. To the contrary, the Court's decisions have
emphasized that to extend checkpoint seizures past the brief time
required for "preliminary questioning and observation" or to conduct
searches of those seized requires individualized probable cause to
arrest or to search. See Sitz, 496 U.S. at 451 (holding that more
extended seizure than that associated with initial sobriety checkpoint
12
stop "may require satisfaction of an individualized suspicion stan-
dard"); Martinez-Fuerte, 428 U.S. at 567 (holding that after brief
questioning at illegal immigrant checkpoint, any further invasive con-
duct must "`be based on consent or probable cause'") (quoting
Brignoni-Ponce, 422 U.S. at 882); see also Wilkinson v. Forst, 832
F.2d 1330 (2d Cir. 1987) (applying above principles in finding indis-
criminate pat-down searches of known Ku Klux Klan members enter-
ing rally site unconstitutional despite record of violent behavior at
similar affairs).
We therefore conclude that the searches were not justified solely
because conducted at and as an incident of a regularized checkpoint
operation.
B.
Bain and the City principally rely for justification of these suspi-
cionless searches by analogizing them to searches under the formal
entry-search programs at airports and sensitive facilities such as
courthouses that have been uniformly upheld by the lower federal
courts.4 See e.g., United States v. Epperson, 454 F.2d 769 (4th Cir.
1972) (upholding airport search conducted under precursor to FAA
blanket-search program, on modified Terry-analysis); United States v.
Edwards, 498 F.2d 496 (2d Cir. 1974) (same; on fact-specific balanc-
ing analysis of reasonableness); Downing v. Kunzig, 454 F.2d 1230
(6th Cir. 1972) (upholding courthouse-entry search conducted under
GSA blanket search program on comparable reasonableness analysis);
United States v. Davis, 482 F.2d 893 (9th Cir. 1973) (upholding air-
port search conducted under FAA's 1973 blanket search program as
a form of "administrative screening search"). The contention is that
_________________________________________________________________
4 The Supreme Court has not had occasion to address directly the con-
stitutionality of such blanket area-entry searches, but recently has
observed that blanket suspicionless searches, such as those "now routine
. . . at entrances to courts and other official buildings" "may rank as `rea-
sonable'." Chandler v. Miller, 117 S. Ct. 1295, 1305 (1997).
State courts have also generally upheld these blanket search programs
on the same basis as have the lower federal courts. See, e.g., People v.
Hyde, 524 P.2d 830 (Cal. 1974).
13
the searches here were a comparable form of area-entry search at a
sensitive facility that should be upheld on the same basis.
We disagree. The claimed analogy breaks down at every critical
point in the proper Fourth Amendment analysis. Whether upholding
the airport and courthouse search programs as a species of "adminis-
trative search" or under a straightforward fact-specific balancing
inquiry into their "reasonableness," the courts have emphasized
aspects of those programs that critically distinguish them from the
sort of ad hoc localized search procedure employed here.5
Specifically, the courts have emphasized the following factors as
critical, under a balancing analysis, to the constitutionality of the air-
port and courthouse searches. First, those searches were conducted
_________________________________________________________________
5 Though it is not directly relevant to our analysis, we observe that
there is not a firm consensus as to the exact theory upon which area-entry
blanket suspicionless searches may be justified. Some believe that "ad-
ministrative search" theory as developed in the closely-regulated industry
context, see, e.g., United States v. Biswell, 406 U.S. 311 (1972) (licensed
gun dealer), is the only viable one since the Terry-justification theory
cannot serve because of the lack of any degree of ingoing individualized
suspicion. See, e.g., Davis, 482 F.2d at 907-8; see generally 4 W.
LaFave, Search & Seizure, § 10.6(c) (3d ed. 1996). Others are wary of
importing that theory from the closely-regulated industry context, but
consider that the searches can be upheld as "reasonable" under a straight-
forward balancing of necessity and efficacy against intrusiveness. See
Edwards, 498 F.2d at 498 & n.5 (Friendly, J.) (pointing out that import-
ing administrative search theory, while that one"most nearly applicable"
to these searches, would present difficulties and holding that airport
searches could be upheld by facing directly the"issue of reasonable-
ness").
This court has not had occasion to consider the appropriate theory of
justification for blanket entry-point suspicionless searches. For purposes
of addressing the contentions of Bain and the City in this case, it suffices
that, as Judge Friendly observed in Edwards, the question under any the-
ory ultimately turns on whether such searches are"reasonable" under a
traditional balancing analysis. See United States v. Albarado, 495 F.2d
799, 804-05 (2d Cir. 1974) (drawing from both Terry and the "adminis-
trative search" decisions in defining airport blanket search issue as
"whether in the totality of circumstances such a search is reasonable").
14
under programs formally promulgated by responsible federal agencies
for nationwide application under agency oversight. See Davis, 482
F.2d at 896-904 (reciting FAA's role in promulgating and implement-
ing blanket airport search program); Downing, 454 F.2d at 1231
(reciting GSA's comparable role in respect of courthouses and other
guarded facilities). The programs addressed on-going risks or threat-
ened risks of violence at these particular facilities whose serious con-
sequences and nationwide scope were fully and indisputably
documented in the public records. See, e.g., United States v. Pulido-
Baquerizo, 800 F.2d 899, 901 (9th Cir. 1986) (emphasizing statistical
evidence of increased risk of terrorism at airports); Downing, 454
F.2d at 1231 & n.1 (taking judicial notice of "outbreaks" of acts of
violence at or threatened at federal buildings). The violence experi-
enced or threatened at those facilities was by conduct whose very
unpredictability made specific advance identification of its likely per-
petrators impossible and blanket searches of all persons seeking entry
to the facility therefore the only feasible means of intercepting weap-
ons and explosives. See, e.g., United States v. Moreno, 475 F.2d 44,
48-49 (5th Cir. 1973) (so emphasizing in respect of aircraft hijacking
threat).
Finally, and most critically, under those programs physical
searches, either of persons or their effects were conducted only after
physically unobtrusive electronic screening devices had raised indi-
vidualized suspicion by indicating the possible presence of weapons
or explosives. In consequence, the search procedures involved no
more intrusion than was necessary to achieve their limited purpose of
preventing entry rather than detecting and apprehending criminals.
See Davis, 482 F.2d at 908 (so holding, in upholding airport blanket
searches as a form of "administrative screening search"); cf.
Albarado, 495 F.2d at 805-06 (applying this requirement in separately
assessing magnetometer screening and follow-up physical "frisking"
procedures employed under airport search program).
As the courts most intensively analyzing the airport/courthouse
blanket search procedures expressly noted, upholding them required
recognizing a new exception--spawned by a new national exigency--
to the probable cause requirement. See, e.g., Davis, 482 F.2d at 908-
12 (pointing out inapplicability of Terry-search exception and relying
on "administrative search" analogy); Albarado, 495 F.2d at 803-04
15
(drawing on both Terry-search and "administrative search" precedents
to recognize related but new exception). In consequence, what
emerged was a carefully constrained special exception of quite nar-
row scope. It permits blanket suspicionless searches of all persons and
their effects at the entry points to particular areas only where: the pur-
pose is the administrative one of preventing the entry of weapons or
explosives rather than the detection and apprehension of criminals;
the risk of violence from the introduction of weapons or explosives
is reliably established as a significant possibility; because of the
impossibility of identifying possible carriers by any other practical
means, blanket searches of all seeking entry is the only feasible way
to achieve the administrative purpose and is demonstrably an effica-
cious way of achieving it; and the procedure employed is one of
which advance notice is given and which, by permitting physical
searches only after electronic screening has created individualized
suspicion, insures that the means are not more intrusive than required
to achieve the purely preventive purpose. See id.
Simply to state the exception is to demonstrate the difficulty of
applying it to justify the kind of localized, ad hoc search procedure
at issue in this case. Reflecting the difficulty, the federal courts that
have been asked to uphold comparable local area-entry searches on
this basis have consistently declined to do so, finding the airport/
courthouse exception not applicable for various reasons. See, e.g.,
Wilkinson, 832 F.2d at 1339-1340 (holding airport/courthouse search
exception not applicable to justify first-instance pat-down frisk of all
persons seeking entry to violence-threatened KKK rally; preliminary
magnetometer screening required to make intrusion reasonable on
balance); Wheaton v. Hagan, 435 F. Supp. 1134 (M.D.N.C. 1977)
(holding airport-search exception not applicable to random drug and
weapons searches of rock-concert patrons at entrance to municipal
auditorium: danger posed "substantially less;" procedure not as effec-
tive; intrusion greater because random and not preceded by electronic
screening); Collier v. Miller, 414 F. Supp. 1357 (S.D. Tex. 1976)
(holding airport exception not applicable to random searches for alco-
holic beverages and containers of persons attending events at public
stadium: risk of violence not equivalent; procedures not as effective;
intrusion more substantial because of discretionary administration);
Gaioni v. Folmar, 460 F. Supp. 10 (N.D. Ala. 1978) (same, as to ran-
dom entry searches for drugs and alcohol at civic center rock concert:
16
danger not equivalent; intrusion greater because of discretionary
administration; consent from advance notice not constitutionally
inferable); Stroeber v. Commission Veteran's Auditorium, 453 F.
Supp. 926 (S.D. Iowa 1977) (holding random searches of persons
attending rock concert at public auditorium not justified on Terry-
analogy: no individualized suspicion established before physical
search conducted).6
The physical searches here were not justified under the airport/
courthouse exception for the same reasons emphasized by these fed-
eral decisions. In the first place, the locally-confined, episodic vio-
_________________________________________________________________
6 Bain and the City refer us to no federal decision, and we are aware
of none, upholding comparable local area-entry searches. And, they
make no effort to distinguish any of the federal decisions uniformly find-
ing them not justified by analogy to the airport/courthouse search deci-
sions or otherwise. They rely only on two state court decisions upholding
blanket weapons searches of public school students, People v. Dukes,
580 N.Y.S.2d 850 (N.Y. Cr. Ct. 1992); In the interest of F.B., 658 A.2d
1378 (Pa. Super. 1995), and one upholding, with some critical judicial
adjustments, a formally promulgated pre-admittance visual search proce-
dure at a professional football stadium, Jensen v. City of Pontiac, 317
N.W.2d 619 (Mich. App. 1982). Assuming that they properly apply the
exception, all three are readily distinguishable on their facts in applying
it.
In the school-search cases, as those courts emphasized, the procedures
were conducted pursuant to formally promulgated board of education
directives; were administered on blanket, non-discretionary bases that
utilized mechanical screening before any physical search; and involved
public school students having reduced levels of privacy expectation. See
New Jersey v. T.L.O., 469 U.S. 325 (1985).
In Jensen as the court properly emphasized, the search procedure was
conducted pursuant to a formally promulgated directive by the responsi-
ble state agency to deal with a documented, ongoing pattern of serious
injuries sustained by spectators from thrown beverage containers; as
modified by the court, it required non-discretionary searches of all per-
sons having the visible means of carrying such concealed objects; and it
allowed only visual, non-touching inspections of clothing or containers
opened upon request by persons who had been given the option of
removing any forbidden objects or declining to allow the visual inspec-
tion.
17
lence threatened here, hence the public interest in its prevention, was
nowhere near the widespread, ongoing violence and commensurate
public interest addressed by the federal blanket search programs.
Next, the reality and imminence of any violence threatened here was
not a matter of documented public record, but was based only on
anecdotal, necessarily speculative information the most specific of
which was provided third-hand by an anonymous source.7 Relatedly,
the ad hoc search procedure set up to deal with the perceived threat
could not be considered a "regulatory scheme" of the sort courts have
considered necessary to treating area-entry searches as a species of
"administrative search."
The search procedure employed here was not one driven, as were
the airport/courthouse search programs, by necessity for lack of any
practical alternative means for preventing violence. The record indi-
cates that a not inconsiderable police force had been assembled and
was available for patrolling and monitoring the rally area, and that the
means for general electronic and helicopter surveillance of the area
was also present. Those alternative means obviously may not have
been completely effective in preventing the feared violence. That they
were available, however, makes it impossible to say here what was
thought critical to upholding the airport/courthouse blanket search
programs: that there literally was no other feasible alternative having
any chance of success. And, in this connection, it is significant that
the state law enforcement agency, fully aware of the nature of the
threat of violence and of the alternative means available to deal with
_________________________________________________________________
7 By this assessment we do not mean to belittle or second-guess the
perception of threatened violence upon which Chief Bain ultimately
acted or the precautionary measures that he thought the threat as he per-
ceived it warranted. That the information of an impending confrontation
may have been unfounded all along is beside the point. So is the possibil-
ity that the threat was a real one that dissipated in the interval. In either
event, prudence and responsibility dictated that the threat be treated with
the seriousness it received. The question is only whether the final step of
conducting suspicionless searches of these claimants' personal effects
nevertheless overstepped the bounds of reasonableness established by the
Fourth Amendment.
18
it, was doubtful that more was needed and specifically questioned the
propriety of the search procedure.8
Furthermore, the procedure was not, as conceived, a practically
efficacious one for preventing the introduction of weapons by anyone
who might be carrying them, or even just by all members of particular
suspect groups. Instead, as designed and administered, this procedure
was more a sieve than an essentially fool-proof scheme such as the
airport/courthouse search programs for preventing entry of any weap-
ons or explosives into a threatened area or facility. Here, only those
who sought to ride their motorcycles into the fairgrounds were sub-
jected to the search procedure. Anyone who parked his motorcycle
was allowed entry without search. So far as appears, such a person
could carry into the area any weapons or explosives that would have
been the targets of search at the checkpoint. While it is conceivable
that some persons carrying weapons may have been deterred from
seeking entry simply because of the known existence of the check-
point, there is no evidence that even this occurred.
Closely related to this general lack of efficacy in the overall proce-
dure, the checkpoint searches made were not in fact blanket searches
even of those who entered the checkpoint. Apparently as a matter of
discretionary judgment of those operating the checkpoint, only those
persons riding motorcycles that had saddlebags or other closed com-
partments or who carried unworn clothing were subjected to physical
searches. So far as appears, whether one's clothing was searched
depended upon whether it was being worn. The whole search proce-
dure at the checkpoint therefore involved a discretionary selective
process not based on individualized suspicion and indeed not reason-
ably adapted to the ultimate purpose.
_________________________________________________________________
8 To justify a warrantless search or seizure as reasonable does not
require government proof that no less intrusive means than those
employed were available to achieve the asserted purpose of the search or
seizure, see Illinois v. Lafayette, 462 U.S. 640, 647-48 (1983); but the
availability of such alternatives is relevant to the reasonableness of the
government agents' failure to recognize or pursue them, hence to the rea-
sonableness of the search or seizure conducted. See United States v.
Sharpe, 470 U.S. 675, 687-88 (1985). It is on the latter basis that we con-
sider the alternatives available here.
19
Finally, the physical searches here were not preceded by any form
of unobtrusive mechanical screening giving rise to individualized sus-
picion. Because such a first-stage, non-physical screening process
makes the procedure no more intrusive than necessary to achieve its
limited preventive purpose, it has been considered critical by courts
upholding as reasonable the airport and courthouse search programs.
Its absence here critically distinguishes those decisions and the proce-
dures that they upheld.9
We therefore conclude that the district court did not err in holding
that the physical searches challenged here violated the Fourteenth and
Fourth Amendment rights of those class members who were subjected
to them.
IV.
We next consider whether, as Norwood claims, the district court
erred in declining to award any monetary relief, including nominal
damages, for the Fourth Amendment violation that it found and
declared.10 Specifically, the question presented is whether, under con-
trolling legal principles, the proof supported an award of compensa-
tory damages for actual injury sustained by class members; or, if
actual injury was not proved, of "presumed" damages; or if neither
_________________________________________________________________
9 Bain and the City seem to suggest, see Appellees' Br. at 32, that
when, as here, preliminary mechanical screening proves infeasible, it is
simply excused and suspicionless physical searches thereupon become
reasonable under the airport/courthouse blanket search exception. No
authority for this suggestion is cited and we do not think it may be
implied from the principal decisions recognizing the exception. Beyond
that, we do not think that the exception could survive as a reasonable one
if such an open invitation to evasion were incorporated.
10 We must address this issue because without regard to whether, as we
discuss in Part IV, Bain was entitled to qualified immunity on the claim
for damages, the City remains liable for any damages that may be
awarded. The district court's ruling that Bain was the official policy-
maker for the City in setting up and directing conduct of the checkpoint
and that the City was therefore liable for any constitutional violations in
its conduct has not been challenged on this appeal. And, the City has no
immunity to such an award. See Owen v. City of Independence, 445 U.S.
622 (1980).
20
was available, at least of nominal damages. We conclude that the
court did not err in declining to award compensatory damages either
for actual injury proven or as presumed damages, but did err in
declining to award nominal damages.11
A.
Compensatory damages may be recovered in § 1983 actions for
proven violations of constitutional right, but only for any actual harms
caused by the violation and not for the violation standing alone. Carey
v. Piphus, 435 U.S. 247 (1978) (procedural due process); Memphis
Community Sch. District v. Stachura, 477 U.S. 299 (1986) (proce-
dural due process and First Amendment). Actual harms resulting from
conduct that violated the right may include economic loss, physical
injury, or emotional distress. See, e.g. , Blackburn v. Snow, 771 F.2d
556 (1st Cir. 1985) (emotional distress caused by illegal strip search);
Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987) (pain and suffering
and medical expense caused by police brutality to person in custody).
Here, the district court concluded that no such actual harm result-
ing from conduct of the physical searches was proven. There was no
evidence of any loss of or damage to property nor of any physical
injury or even touching sustained in the course of the searches. The
only evidence of emotional distress came in the form of testimony by
Norwood and four other class members that they felt annoyance,
humiliation, and indignity at being subjected to the searches. None
testified that their emotional upset was caused by oppressive or threat-
ening conduct by the checkpoint officers; instead, from all that
appears, that conduct was civil and non-threatening throughout the
process. Under the circumstances, we agree with the district court that
this testimony failed to prove emotional distress other than any that
may have been experienced as a sense of indignity from the very vio-
lation of constitutional right. And, that, as indicated, is not a compen-
sable harm in § 1983 litigation.
_________________________________________________________________
11 Norwood also claimed punitive damages, which the district court of
course denied in declining to award any compensatory damages. Because
there is no proof of the kind of bad faith or deliberate overreaching that
would support such an award, we affirm that ruling without further dis-
cussion.
21
Accordingly, the district court did not err in finding that Norwood
had failed to prove a compensable actual harm from the physical
searches. See Aubin v. Fudala, 782 F.2d 280 (1st Cir. 1983) (compa-
rable failure to prove actual harm from unlawful search of claimants'
residence).
B.
In a fall-back position, Norwood contends that if actual harm was
not sufficiently proven, the circumstances here were such that an
award of substantial "presumed damages" was warranted. We dis-
agree.
Carey and Stachura both acknowledge that in some circumstances,
"presumed damages" may be awarded for constitutional violations in
the absence of proof of actual harm, though neither found such an
award warranted in the circumstances before the court. See Carey,
435 U.S. at 264; Stachura, 477 U.S. at 310-11. This is said in
Stachura to occur where compensation is sought"for an injury that
is likely to have occurred but difficult to establish." Id. By definition,
that situation is not presented where the specific right claimed to have
been violated is one whose violation will, if it results in any actual
harm, present no difficulty in proving either the harm or its extent.
Violation of the specific Fourth Amendment right not to be unreason-
ably searched that was claimed here is just such a right. There was
no inherent difficulty in proving any economic or physical or emo-
tional harm that may have resulted or in quantifying the amount of
that harm under established damages law. See Stachura, 477 U.S. at
312 (holding that "no rough substitute for compensatory damages was
required" where the existence and extent of any"monetary and non-
monetary harms caused by [the constitutional violation]" could prop-
erly be assessed by the jury).
The problem here was not that the claim was such that proof either
of compensable harm or its extent was inherently difficult, but that
proof of actual harm simply was not forthcoming. Accordingly, the
district court did not err in declining to award"presumed" damages.
C.
Norwood's final fall-back position is that the class was entitled to
an award at least of nominal damages for the found violation. The dis-
22
trict court declined to award even nominal damages on the assumed
authority of this court's split panel decision in Ganey v. Edwards, 759
F.2d 337 (4th Cir. 1985). We agree with Norwood that in so ruling,
the court erred.
Ganey dealt only indirectly with the specific question of entitle-
ment of right to an award of at least nominal damages once a viola-
tion of constitutional right has been established. Its specific holding
was only that an award of nominal damages was not necessary to
establishing that for attorney fee purposes under 42 U.S.C. § 1988 a
claimant was a prevailing party. See Ganey, 759 F.2d at 340. In so
holding, the Ganey court did, however, assume that the Supreme
Court's decision in Carey had not, as it seemed literally to do, see
Carey, 435 U.S. at 267 ("will be entitled"), held that in such circum-
stances a claimant is entitled of right to an award of nominal dam-
ages. See Ganey, 759 F.2d at 340. To the extent Ganey rested on that
assumption, it has since been shown to be an erroneous one by the
Supreme Court's decision in Farrar v. Hobby, 506 U.S. 103 (1992),
which expressly recognized that Carey established the right to a nom-
inal damage award in that circumstance. See id. at 112 ("Carey obli-
gates a court to award nominal damages when a plaintiff establishes
the violation of [a constitutional right] but cannot prove actual
injury").
Accordingly, we will vacate that portion of the district court's
judgment that denies any monetary relief and remand for entry of an
award of nominal damages not to exceed $1.00.
V.
There remains the question whether, as Bain contends, the district
court erred in holding that he was not entitled to qualified immunity
on the physical search claim.12
_________________________________________________________________
12 That issue as it now comes to us could be thought to have little legal
or practical significance--either to the ultimate result in this case or as
a matter of precedent. The award's nominal amount and the fact that in
any event the City will remain liable for it makes Bain's immunity a mat-
ter of no practical consequence. The limited precedential authority of any
fact-specific application of qualified immunity doctrine makes resolution
of that issue here of limited legal significance. Be that as it may, the issue
is properly presented and requires decision.
23
The basic qualified immunity principles, though not always their
application, are clear. Two questions require resolution (if contested):
(1) whether the particular right allegedly violated was one clearly
established at the time, and (2) if so, whether a reasonable person in
the state-official's position would have known that doing what he did
(or directed) would violate it. Pritchett v. Alford, 973 F.2d 307, 312-
13 (4th Cir. 1992). Because qualified immunity is an affirmative
defense, the party asserting it must, to prevail upon it, prove either
that (1) the right was not a clearly established one at the time alleg-
edly violated, see Mitchell v. Forsyth, 472 U.S. 511, 535 (1985) or
(2) even if the right was then clearly established, a reasonable person
in his position could nevertheless have believed that his conduct
would not violate it, see Anderson v. Creighton , 483 U.S. 635, 646
n.6 (1987).
In determining whether the right at issue was clearly established (a
pure question of law), the proper focus is not upon the right at its
most general level but at the level of its application to the specific
conduct being challenged. Pritchett, 973 F.2d at 312. And in deter-
mining whether a reasonable person in the state-official's position
could have believed that what he did (or directed) would not violate
that particularized right, a court must take into account the informa-
tion then actually or constructively in his possession and any exigen-
cies of time and circumstances that reasonably could have affected his
perception (possibly a mixed fact/law question). See id. at 312-13.
The right violated here was the Fourth Amendment right not to
have one's effects searched by state officials without a warrant, or
probable cause, or consent, unless under one of the judicially recog-
nized exceptions such as exigency or border-entry. At its more partic-
ularized level, it was the right not to have such a search conducted at
an area-entry checkpoint set up, on the basis of information that vio-
lence involving weapon use by motorcycle riders might occur at a
planned event, to prevent the introduction of weapons by that particu-
lar suspect group into the area.
Bain's challenge to the district court's ruling is only to the court's
conclusion that the right--which we have now held was violated--
was not, however, at the time a clearly established one. He does not
contend that though the right was violated, there were exigencies of
24
time or circumstance that nevertheless made it reasonable for him to
believe that ordering and directing the searches would not do so. See
id. Nor could he. This is not a situation where a police officer was
confronted with a fast-moving situation involving immediate threat to
himself or others that required quick action on perhaps a mistaken
perception of the true circumstances. In such situations, qualified
immunity principles may require finding a resulting violation of right
nevertheless excusable as a reasonable one under the circumstances.
See, e.g. Gooden v. Howard County, 954 F.2d 960, 967 (4th Cir.
1992) (en banc). That is not the situation here, where Bain's decision
was one taken after unhurried deliberation and with ample opportu-
nity for reflection and counsel.
His argument therefore rests entirely on the contention that, as a
matter of law, the right violated here was not one clearly established
at the critical time. And, specifically, the contention is that it was at
least reasonably arguable under then extant law that the searches were
justified either because made incident to seizures at a valid motorist
checkpoint, or because they were comparable to the airport and court-
house blanket searches that have been upheld under the special excep-
tion found warranted in those contexts.
A "survey of the legal landscape" as it then existed directly refutes
the contention that among reasonable police officers in Bain's posi-
tion either exception was even arguably applicable. 13 To demonstrate
this, it suffices to recapitulate the survey of relevant decisional law we
made in the course of finding the right violated.
The Supreme Court's decision in Ortiz, 422 U.S. at 896-97, had by
then flatly held that the mere fact that circumstances justify temporary
suspicionless seizures of motorists for observation and questioning at
_________________________________________________________________
13 As we have recognized, though there are obvious differences in the
methodology and purposes of the two, our review of the "clearly-
established" issue in qualified immunity cases and of the "clearly-
established" or "new-rule" issue in application of the retroactivity rule of
Teague v. Lane, 489 U.S. 288, 299-310 (1988), involve essentially paral-
lel surveys of the legal landscape. See O'Dell v. Netherland, 95 F.3d
1214, 1223, 1225 (4th Cir. 1996) (en banc), aff'd, 117 S. Ct. 1969
(1997).
25
"motorist checkpoints" does not also justify searches of their vehicles
and personal effects without individualized suspicion.
As to whether extant law could reasonably have been thought by
"police chiefs of reason" in Bain's position to justify the searches
under the airport/courthouse exception, extant decisional law was
comparably at odds with the possibility. To summarize: the Supreme
Court had not then addressed the reach of that exception past its appli-
cation in the airport/courthouse context; the one federal court of
appeals decision, that of the Second Circuit in Wilkinson v. Forst that
had addressed its application to an ad hoc search procedure at a local
event had held on facts quite close to those here at issue that it could
not be applied to justify previously unscreened physical searches at
the entry to a violence-threatened event; at least four federal district
court decisions addressing local situations comparable to that here in
issue, including one from this circuit, had at that time come to the
same conclusion.
Against this array of lower federal court decisions uniformly find-
ing the exception not applicable in local event contexts because of
critical intrinsic distinctions from the airport/courthouse context, Bain
is unable to cite any federal decision to the contrary and we are aware
of none. He relies entirely on three state court decisions: two uphold-
ing blanket searches of public school children for weapons and drugs
in response to a documented record of weapons and drug-ban viola-
tion; the third upholding a tightly constrained consensual inspection
of containers capable of carrying beverage bottles into a professional
football stadium in response to documented evidence of patron inju-
ries from thrown bottles. Assuming proper application in those cases
(irrelevant to the landscape survey purpose) each, as indicated, is crit-
ically distinguishable from the situation here at issue. See Part II,
ante.
This being the relevant legal landscape at the time in issue, it could
be said to support a conclusion that the right here was not then clearly
established (because the non-applicability of one or the other excep-
tion was not clearly established) only on two bases. First, that police
chiefs in Bain's position may not be held to awareness and basic
understanding of the principal decisional law that defines that land-
scape. Second, that missing from this landscape is any authoritative
26
decision flatly holding the airport/courthouse exception not applicable
to an indistinguishable factual situation.
The first basis cannot be accepted. While the legal awareness and
understanding of police chiefs (and comparable executive officers)
cannot be perfectly equated with that of "jurists of reason" in assess-
ing comparable legal landscapes for related purposes, it must be held
at least to the basic level posited. The requirement of qualified immu-
nity doctrine that courts in judicial review are to assess that same
landscape necessarily assumes that level of accountability.
The second basis has long since been rejected. "`Clearly estab-
lished' in this context includes not only already specifically adjudi-
cated rights, but those manifestly included within more general
applications of the core constitutional principle invoked." See
Pritchett, 973 F.2d at 314.
Accordingly, we conclude that the district court did not err in find-
ing Bain not entitled to qualified immunity.
VI.
We affirm the district court's decisions that the videotaping proce-
dures at the checkpoint did not make the seizures unreasonable; that
the physical searches of class members' effects were unreasonable,
hence violated their Fourth Amendment rights; that the class members
had not proved entitlement to substantial compensatory damage or to
punitive damages; and that Chief Bain was not entitled to qualified
immunity for the search violation found by the court. We find error
in the district court's decision that the class members were not enti-
tled to an award of nominal damages for the proven violation of their
rights. We therefore vacate that portion of the district court's judg-
ment and remand with directions to enter a judgment in behalf of
those class members whose personal effects were searched for nomi-
nal damages not to exceed $1.00.
SO ORDERED
27
WILKINS, Circuit Judge, concurring in part and dissenting in part:
The majority correctly recognizes that, based on the information
available to law enforcement, the checkpoint stop and videotaping of
Plaintiffs and their driver's licenses by Spartanburg, South Carolina
police officers1 as Plaintiffs entered a fairgrounds for a charity motor-
cycle rally to benefit the Red Cross was not violative of the Fourth
Amendment. However, the majority erroneously determines that the
physical search of Plaintiffs' unworn clothing and motorcycle saddle-
bags violated their rights under the Fourth Amendment. To the con-
trary, Spartanburg's interest in protecting public safety by preventing
members of warring rival motorcycle gangs from carrying concealed
weapons into a crowded public event, the extent to which the search
reasonably was thought to advance that interest, and the modest
degree of intrusion upon those individuals who were subject to the
search clearly weigh in favor of a conclusion that the search was rea-
sonable. Accordingly, I would hold that the search did not transgress
constitutional bounds. Furthermore, even if the majority were correct
that a portion of the search was unconstitutional, Chief of Police Bain
nevertheless would be entitled to qualified immunity because it was
not clearly established in September 1994, when the rally took place,
that this search was unreasonable.
I.
The guarantee of privacy and security from unreasonable govern-
mental intrusion provided by the Fourth Amendment long has been
recognized as fundamental to the maintenance of a free society. See
Camara v. Municipal Ct. of the City & County of San Francisco, 387
U.S. 523, 528 (1967). The Fourth Amendment provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affir-
_________________________________________________________________
1 Plaintiffs named as Defendants the City of Spartanburg and W. C.
Bain, Jr., individually and in his official capacity as the Chief of the
Spartanburg Police Department. For ease of reference, I refer to Defen-
dants collectively as "Spartanburg."
28
mation, and particularly describing the place to be searched,
and the persons or things to be seized.
U.S. Const. amend. IV.2 Simply put, this amendment guarantees that
governmental intrusions into privacy by means of searches or seizures
will be reasonable. Typically, this reasonableness requirement acts as
a constraint on governmental authority to undertake a search or sei-
zure in the absence of individualized suspicion. See Chandler v.
Miller, 117 S. Ct. 1295, 1298 (1997). In addition, a search performed
without a warrant is unreasonable per se unless it fits within a nar-
rowly defined exception to the warrant requirement. See, e.g.,
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States
v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en banc). Neverthe-
less, "neither a warrant nor probable cause, nor, indeed, any measure
of individualized suspicion, is an indispensable component of reason-
ableness in every circumstance." National Treasury Employees Union
v. Von Raab, 489 U.S. 656, 665 (1989). Instead, a determination of
reasonableness compels a weighing of the governmental interest
prompting the invasion; the effectiveness of the intrusion, i.e., the
degree to which the intrusion reasonably is thought to advance the
governmental interest; and the magnitude of the intrusion upon the
individuals affected, from both a subjective and objective standpoint.
See Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 455 (1990);
id. at 451-55 (applying test); Von Raab, 489 U.S. at 665 (explaining
that when "a Fourth Amendment intrusion serves special governmen-
tal needs, beyond the normal need for law enforcement, it is necessary
to balance the individual's privacy expectations against the Govern-
ment's interests to determine whether it is impractical to require a
warrant or some level of individualized suspicion in the particular
context"). Compare United States v. Davis, 482 F.2d 893, 908-12 (9th
Cir. 1973) (explaining that an entry search at an airport was not
unconstitutional despite a lack of individualized suspicion or warrant,
because a very real chance of danger to the public existed from allow-
ing concealed weapons or explosives onto a commercial airliner, the
search method was effective, the degree of intrusion was the least
possible to accomplish the goal, and all those entering were subjected
to the same treatment), with Wheaton v. Hagan , 435 F. Supp. 1134,
_________________________________________________________________
2 The Fourth Amendment is enforceable against the states through the
Fourteenth Amendment. See Ker v. California, 374 U.S. 23, 30 (1963).
29
1145-46 (M.D.N.C. 1977) (holding pat-down searches and searches
of purses and clothing for drugs and alcohol by officers stationed at
the door of a coliseum were not constitutional because there was little
public necessity and the degree of intrusion was high and was exacer-
bated by the fact that officials exercised discretion concerning whom
to search). Here, the question is whether consideration of Spartan-
burg's interest in public safety, the effectiveness of the search, and the
intrusion experienced by the individuals who entered the rally on
motorcycles and whose unworn clothing and motorcycle saddlebags
were searched weighs in favor of a conclusion that the search was
violative of the Fourth Amendment.
A.
The first factor to be considered is the governmental need. "[T]he
proffered special need ... must be substantial--important enough to
override the individual's acknowledged privacy interest, [and] suffi-
ciently vital to suppress the Fourth Amendment's normal requirement
of individualized suspicion." Chandler, 117 S. Ct. at 1303. The haz-
ard giving rise to the alleged special need must be a concrete danger,
not merely a hypothetical one. See id. Although evidence that the
problem has manifested itself previously is not always necessary to
demonstrate the concreteness of the potential harm, such evidence
bolsters an argument that a harm is sufficiently tangible to give rise
to a special need. See id. Compare Skinner v. Railway Labor Execu-
tives' Ass'n, 489 U.S. 602, 606-08 (1989) (holding that a concrete
special need existed for random drug testing in part because of evi-
dence of drug and alcohol abuse by railroad employees), and
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654-65 (1995)
(explaining that a sharp rise in drug use by student athletes supported
school officials' assertion that random drug testing without individu-
alized suspicion was warranted), with Chandler , 117 S. Ct. at 1303
(noting that Georgia failed to demonstrate concrete harm to support
drug testing of candidates for public office in absence of evidence that
Georgia had a particular problem with state officeholders abusing
drugs).
Although the majority attempts to downplay the amount and reli-
ability of the information Spartanburg possessed, a significant quan-
tity of information indicated a very real possibility of an extremely
30
dangerous situation--an armed confrontation between large numbers
of violent, rival motorcycle gang members at a public event. First,
reserve officer Carl McKinney learned from a coworker who had
been involved with a motorcycle gang that a confrontation between
the Hell's Angels and Pagans was planned during the rally and that
because the gang members intended to "drop their colors,"3 law
enforcement officers would not be able to identify them. McKinney
passed this information along to his superiors. Second, Lieutenant
Ron Cook, an expert on motorcycle gangs employed by the South
Carolina Law Enforcement Division (SLED), advised Spartanburg
that the Hell's Angels and Pagans were engaged in an ongoing con-
flict for territorial control of South Carolina. He further advised that
this turf struggle had led to at least two violent public altercations
among gang members during the past several months, one in South
Carolina and one in New Jersey. According to Cook, the Pagans had
threatened retribution following these incidents. Cook further
informed Spartanburg that motorcycle gang members often carry
weapons concealed in their motorcycle saddlebags. 4 Third, one of the
chairpersons of the event requested that Spartanburg officers investi-
gate an individual whom the chair had learned was planning to attend
the event. This investigation disclosed that the individual was a
known member and organizer of the Hell's Angels. The chairperson
later informed Spartanburg that this individual had expressed an inter-
est in the rally, but would not commit concerning whether the Hell's
Angels would attend. Fourth, in the weeks prior to the rally, Cook
learned from a Virginia State Police intelligence report that the
Pagans had been directed by their leadership to make a mandatory
ride to an undisclosed location on the day prior to the Spartanburg
rally. Further, Cook received information that the Hell's Angels
would be attending a rally in Cherokee, North Carolina scheduled for
the same weekend as the Spartanburg rally and that the group planned
to attend the Spartanburg rally after leaving North Carolina. Finally,
on the evening before the event, one of the chairpersons of the rally
_________________________________________________________________
3 "Colors" are insignia worn to identify membership in a particular
motorcycle gang. When members of a motorcycle gang"drop their col-
ors," these insignia are not worn so that identification of the gang mem-
ber is more difficult.
4 Cook indicated that the weapons likely to be carried were ball peen
hammers with leather straps, large wrenches, and guns.
31
telephoned a Spartanburg official to advise him that as many as 3,000
to 4,000 bikers from the Cherokee rally were going to converge on
the South Carolina event and to express concerns regarding security.
Under these circumstances, it cannot be seriously disputed that the
governmental interest at stake was an extremely grave and genuine
matter of public safety.
The majority argues that because the nature of the harm was local
and episodic, public interest in the searches was far less than that sup-
porting blanket searches at airports and courthouses pursuant to
nationwide regulations. Of course the majority is correct that the type
of harm presented here was different in scope from that justifying
searches at airports and courthouses, but so was the scope of the
search. I do not suggest that the danger faced by Spartanburg would
warrant checkpoint searches at all motorcycle rallies nationwide or at
all large public events conducted in Spartanburg. Because there was
no attempt to justify a search of nationwide scope, it is mystifying
why the majority believes it necessary to focus on whether a special
need that was national in extent was present. Cf. Vernonia Sch. Dist.
47J, 515 U.S. at 648-50, 654-65 (applying balancing test to hold that
a local drug testing program for student athletes was constitutional
despite lack of warrant or individualized suspicion).
The majority also faults Spartanburg for implementing the check-
point search based on information supplied to law enforcement offi-
cers rather than evidence presented to a legislative or administrative
body and memorialized in public records. But, a rule that a special
need cannot support a search absent a harm established in public
records is artificial and unworkable. Undoubtedly, a warrantless
search designed to avert great harm, which could be avoided only by
an extremely unintrusive type of search applied in a very evenhanded
manner would be reasonable and thus would not violate the Fourth
Amendment simply because it was not authorized by legislation or a
regulatory scheme. For example, suppose law enforcement officials
received reliable information that two individuals were transporting a
large quantity of explosives by vehicle into a specified city by a speci-
fied route in order to blow up a museum where a popular, but contro-
versial, exhibit was on public display. Obviously, under these facts a
massive danger to public safety exists that could be averted only by
intercepting the would-be bombers. Balancing the severity of the
32
harm, the effectiveness of the proposed response, and the minimal
intrusion to the individuals subjected to a search leads to one conclu-
sion. Law enforcement officials could properly stop all motorists trav-
eling into the area on the identified route and conduct a cursory search
of the interior and trunk of the vehicles. Such action would be reason-
able and within constitutional bounds.
Under the circumstances presented here, a special governmental
interest existed in protecting the public. Spartanburg possessed con-
crete information that armed, rival motorcycle gangs, the members of
which could not be identified, planned to attend the rally. And, the
potential for a violent eruption appeared real in light of past alterca-
tions between the two groups. Given the large number of participants
expected for the rally and the potential for a massive, violent confron-
tation, Spartanburg clearly possessed a genuine and substantial need
to safeguard the public.
B.
The second factor, the effectiveness of the search, focuses on "the
degree to which [it] advances the public interest." Sitz, 496 U.S. at
453 (internal quotation marks omitted). Compare Chandler, 117
S. Ct. at 1304 (noting that "Georgia's certification requirement [was]
not well designed to identify candidates who violate antidrug laws"
because the testing date was known in advance so that abusers could
refrain from using drugs prior to the test), with Vernonia Sch. Dist.
47J, 515 U.S. at 663 (explaining that random drug testing of student
athletes was an effective means of addressing a drug abuse problem
in the student body as a whole because the problem was caused at
least in part by students' imitation of the student athletes' drug use).
In analyzing this factor, however, we recognize that our review must
leave "the decision as to which among reasonable alternative law
enforcement techniques should be employed to deal with a serious
public danger" to "the governmental officials who have a unique
understanding of, and a responsibility for, limited public resources,
including a finite number of police officers." Sitz, 496 U.S. at 453-54.
There can be little question that searching Plaintiffs' unworn cloth-
ing and motorcycle saddlebags was an effective means of preventing
the type of weapons motorcycle gang members were purportedly car-
33
rying from finding their way into the public fairgrounds. Indeed, no
other law enforcement effort would have worked as well. Because the
metal detectors the officers first attempted to employ in order to avoid
individualized searches were ineffective, an effective method of
search less intrusive than the one employed was not possible. And,
without the checkpoint search, Spartanburg would not have obtained
individualized suspicion that specified individuals possessed weapons
until the gang members already had entered into the fairgrounds,
become a part of the large crowd, and brandished or used their weap-
ons. By that time, the threat of a violent confrontation would have
been fully realized. See Davis, 482 F.2d at 910 (noting in support of
a conclusion that airport checkpoint searches are constitutional that
"[l]ittle can be done to balk the malefactor after [weapons or explo-
sives are] successfully smuggled aboard[ a commercial aircraft], and
as yet there is no foolproof method of confining the search to the few
who are potential hijackers").
Furthermore, the fact that individuals were permitted to walk into
the fairgrounds without being searched provided that they parked
their motorcycles outside the fairgrounds does not mean that the
search method employed was ineffective.5 Cf. McMorris v. Alioto,
567 F.2d 897, 899 (9th Cir. 1978) (search must be no more intrusive
than necessary to be reasonably effective). The information available
to Spartanburg indicated that motorcycle gang members not infre-
quently carried weapons in their motorcycle saddlebags. Thus, it was
reasonable for Spartanburg to conclude that the likelihood for the
transportation of weapons into the fairgrounds was less for individu-
als who parked their motorcycles outside and walked to the rally.
And, it is important to realize that these weapons could not have been
concealed easily in the tight T-shirts and blue jeans--or less--worn
by the majority of the bikers on that very hot September afternoon.
Additionally, even if reasonable law enforcement officials could have
concluded that a search of the individuals entering the fairground on
foot would have been more thorough, it is not within our province to
question the decisions of officials concerning a choice of law enforce-
ment techniques among reasonable alternatives.
_________________________________________________________________
5 It is worth noting that Cook was stationed outside the pedestrian
entrance gate to attempt to identify any notorious gang members entering
on foot.
34
C.
Finally, the degree of intrusion, both objective and subjective, suf-
fered by individuals submitting to the search indicates that the check-
point search of Plaintiffs' unworn clothing and motorcycle saddlebags
was constitutional. The objective intrusion suffered by an individual
is "measured by the duration of the seizure and the intensity of the
investigation." Sitz, 496 U.S. at 452. The subjective level of intrusion
measures how the method chosen minimizes or enhances fear and sur-
prise on the part of those searched or detained. See id. Here, the
objective intrusion experienced by Plaintiffs was certainly more than
minimal. While the searches were very brief, the intensity of a visual
search of the interior of private belongings undoubtedly was objec-
tively intrusive. However, the intrusiveness of the search was less-
ened by the fact that the entrants to the fairgrounds were informed
that they would be subjected to the search only if they wished to enter
on motorcycle and would be permitted to enter without a search if
they chose to park their motorcycles and enter as pedestrians. All of
those who entered the fairgrounds on motorcycles with unworn cloth-
ing or saddlebags were subjected to the search. See id. (explaining
that a checkpoint search where all entrants are searched is considera-
bly less intrusive than a search by roving patrols that exercise discre-
tion over whom to stop and search); see also Turner v. Dammon, 848
F.2d 440, 446-47 (4th Cir. 1988) (explaining that"[t]he cases uphold-
ing warrantless administrative searches clearly establish that these
rules require certainty, regularity, and neutrality in the conduct of the
searches"). Accordingly, the search was no more intrusive than that
required to protect against the harm Spartanburg sought to avoid. See
McMorris, 567 F.2d at 899; see also Wilkinson v. Forst, 832 F.2d
1330, 1340-41 (2d Cir. 1987) (holding that pat-down searches for
weapons of all entrants into a Ku Klux Klan rally were excessive, that
future searches by magnetometer were permissible, and "that more
intrusive measures might be justified by future events").
D.
In sum, a genuine and substantial threat to public safety existed that
created a special need beyond that of the traditional law enforcement
goals of apprehension and detection of criminal conduct; the method
chosen to address that need effectively advanced the public interest
35
in a manner that could not have been equaled by a scheme requiring
individualized suspicion or a warrant; and the intrusion suffered by
those individuals who submitted to the search, while not insignificant,
was no greater than necessary to achieve the desired goal. Therefore,
a balancing of these factors clearly demonstrates that the search con-
ducted was reasonable and thus not violative of the Fourth Amendment.6
_________________________________________________________________
6 The decision of the Supreme Court in United States v. Oritz, 422 U.S.
891 (1975), and the decision of this court in United States v. Gallagher,
557 F.2d 1041 (4th Cir. 1977) (per curiam), are not to the contrary. In
Ortiz, in addressing whether a checkpoint search of vehicles for illegal
aliens that was not conducted at the border or its functional equivalent
was constitutional, the Supreme Court remarked that"at traffic check-
points removed from the border and its functional equivalents, officers
may not search private vehicles without consent or probable cause."
Ortiz, 422 U.S. at 896-97. In Gallagher, we echoed this concern stating:
[There is a] long-recognized distinction between border searches
and those taking place in interior locations. "Travellers may be
... stopped in crossing an international boundary because of
national self protection ...." "[S]earches of this kind may in cer-
tain circumstances take place not only at the border itself, but at
its functional equivalents as well." At points other than the bor-
der or its functional equivalent, however, officers may not search
private vehicles absent consent or probable cause.
Gallagher, 557 F.2d at 1043 (citations omitted) (second & fourth alter-
ations in original).
Despite their broad language, Ortiz and Gallagher can be distin-
guished. First, the Ortiz Court did not apply the Sitz balancing test. Sec-
ond, an application of that test to the facts of Ortiz leads to the
conclusion that the searches at issue there were violative of the Constitu-
tion. Finally, and most importantly, Ortiz addressed the situation pre-
sented when law enforcement officers attempt to justify a traffic check-
point search by reference to illegal alien interdiction efforts. Because
Ortiz was addressing only a checkpoint to prevent illegal immigration,
it does not address whether there could be other potential harms that
might justify checkpoint searches of automobiles for other reasons. Addi-
tionally, in Gallagher, this court held that the search at issue was a bor-
der search, so its statement concerning searches away from the border
was dictum.
36
II.
Even if the majority were correct that Spartanburg deprived Plain-
tiffs of their Fourth Amendment rights by searching their unworn
clothing and motorcycle saddlebags at the entrance checkpoint, the
question remains whether Chief of Police Bain should be held person-
ally liable for damages. Government officials performing discretion-
ary functions are entitled to qualified immunity from liability for civil
damages to the extent that "their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known." E.g., Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Qualified immunity protects "all but the plainly incompe-
tent or those who knowingly violate the law." Malley v. Briggs, 475
U.S. 335, 341 (1986). It protects law enforcement officers from "bad
guesses in gray areas" and ensures that they are liable only "for trans-
gressing bright lines." Maciariello v. Sumner , 973 F.2d 295, 298 (4th
Cir. 1992). Thus, although the exact conduct at issue need not have
been held to be unlawful in order for the law governing an officer's
actions to be clearly established, the existing authority must be such
that the unlawfulness of the conduct is manifest. See Anderson v.
Creighton, 483 U.S. 635, 640 (1987); Pritchett v. Alford, 973 F.2d
307, 314 (4th Cir. 1992) (explaining that "[t]he fact that an exact right
allegedly violated has not earlier been specifically recognized by any
court does not prevent a determination that it was nevertheless
`clearly established' for qualified immunity purposes" and that
"`[c]learly established' in this context includes not only already spe-
cifically adjudicated rights, but those manifestly included within more
general applications of the core constitutional principle invoked"). As
we recently reiterated, "[t]he law is clearly established such that an
officer's conduct transgresses a bright line when the law has been
authoritatively decided by the Supreme Court, the appropriate United
States Court of Appeals, or the highest court of the state." Wilson v.
Layne, 1998 WL 159673, *2 (4th Cir. Apr. 8, 1998) (en banc) (inter-
nal quotation marks omitted).
In analyzing an appeal from the rejection of a qualified immunity
defense, the first task of the court is to identify the specific right that
the plaintiff asserts was infringed by the challenged conduct. See
Taylor v. Waters, 81 F.3d 429, 433 (4th Cir. 1996). The court then
must consider whether, at the time of the claimed violation, that right
37
was clearly established and "`whether a reasonable person in the offi-
cial's position would have known that his conduct would violate that
right.'" Id. (quoting Gordon v. Kidd , 971 F.2d 1087, 1093 (4th Cir.
1992)). Review by this court of the denial of summary judgment
based on qualified immunity is de novo. See Pritchett, 973 F.2d at
313.
The constitutional right that Plaintiffs claim was violated, defined
at the appropriate level of specificity, is their Fourth Amendment
right to avoid unreasonable searches or seizures resulting from the
individualized checkpoint search of their unworn clothing and motor-
cycle saddlebags for the purpose of detecting weapons when reliable
information indicated that a real danger existed that armed members
of warring motorcycle gangs planned to attend the rally. The qualified
immunity question presented, then, is whether in September 1994 this
right was clearly established and whether a reasonable officer would
have understood that the conduct at issue violated it.
As the majority recognizes, when this incident took place, there
was no clear law from the Supreme Court, this court, or the South
Carolina Supreme Court addressing whether officers violate the
Fourth Amendment by conducting an individualized search at a
checkpoint--without individualized suspicion or a warrant--when a
grave matter of public interest is at stake, an effective means of pre-
venting that harm is available, and the searching technique employed
is no more intrusive than necessary to prevent the harm feared. The
Supreme Court had announced, however, that this balancing test was
the appropriate one to assess the reasonableness of a search conducted
without individualized suspicion or a warrant. Under this authority, a
reasonable law enforcement officer may well have concluded that this
type of search was constitutional as analogous to administrative
searches at airports or courthouses. In my opinion, at most the ques-
tion of whether the constitution was violated by the officers' conduct
was a matter over which reasonable jurists arguably could disagree.
And, if the answer to this question was not clearly established, a rea-
sonable officer in Bain's position could not have known what it was.
See Wilkinson, 832 F.2d at 1342 (holding officers were entitled to
qualified immunity on similar facts).
38
III.
In sum, I would hold that neither portion of the checkpoint search
--the videotaping of the individuals who entered the fairgrounds by
motorcycle and their driver's licenses nor the individualized search of
Plaintiffs' unworn clothing and motorcycle saddlebags--violated the
Fourth Amendment. In addition, even if the majority were correct that
the individualized search violated constitutional bounds, Bain would
be entitled to qualified immunity.
39