Jenkins v. Talladega City Bd. of Ed ( 1996 )


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  • KRAVITCH, Senior Circuit Judge, dissenting, in which HATCHETT,
    Chief Judge, and BARKETT, Circuit Judge, join:
    I fully agree that government officials acting within their
    discretionary authority should be shielded from liability for
    violating rights of which a reasonable person would not have
    known.   The majority and I differ only as to whether the
    schoolhouse Fourth Amendment standard announced by the Supreme
    Court in New Jersey v. T.L.O., 
    469 U.S. 325
     (1985), would lead a
    reasonable person to understand that the conduct in this case was
    prohibited.   The majority finds qualified immunity by
    characterizing the Supreme Court's test as too general to guide
    any teacher, unless subsequent controlling precedent has applied
    it to virtually identical facts.       In my view, stating that a
    constitutional test is general or that factually similar
    precedent is lacking bypasses the fundamental inquiry set out by
    the Supreme Court: determining whether the governing
    constitutional standard provides sufficient guidance, given the
    facts of the case, “that a reasonable official would understand
    that what he is doing violates [a constitutional] right.”
    Anderson v. Creighton, 
    483 U.S. 635
    , 640 (1987).       Because I
    believe that T.L.O. sufficiently forewarns teachers that strip
    searching eight-year-olds in pursuit of a few dollars violates
    the Fourth Amendment, I respectfully dissent.
    Qualified immunity balances the competing concerns present
    in civil rights suits.   Immunity serves the public “'need to
    protect officials who are required to exercise their discretion
    and the related public interest in encouraging the vigorous
    1
    exercise of official authority.'”    Harlow v. Fitzgerald, 
    457 U.S. 800
    , 807 (1982) (quoting Butz v. Economou, 
    438 U.S. 478
    , 506
    (1978)).   Taken too far, however, immunity can undermine the
    purpose of section 1983 altogether, giving officials license to
    violate the most basic and longstanding constitutional rights.
    Qualified immunity accommodates these interests by protecting
    those who act in reasonable reliance upon established legal
    principles but permitting liability for clearly unconstitutional
    conduct.   Thus, immunity attaches only when official “conduct
    does not violate clearly established statutory or constitutional
    rights of which a reasonable person would have known.”   Harlow,
    
    457 U.S. at 818
    .
    Interpreting the term “clearly established,” the Supreme
    Court has warned courts not to base liability upon expansive
    legal truisms or to ignore material factual differences between
    present cases and precedent establishing the asserted
    constitutional right.   In Anderson, the Court emphasized that a
    right is not clearly established unless “[t]he contours of the
    right [are] sufficiently clear that a reasonable official would
    understand that what he is doing violates that right.”   
    483 U.S. at 640
    .1   We since have stated that “[g]eneral propositions have
    little to do with . . . qualified immunity.”   Muhammad v.
    1
    We have explained that “the law must have earlier been
    developed in such a concrete and factually defined context to
    make it obvious to all reasonable government actors, in the
    defendant's place, that 'what he is doing' violates federal law.”
    Lassiter v. Alabama A&M Univ., Bd. of Trustees, 
    28 F.3d 1146
    ,
    1149 (11th Cir. 1994) (en banc).
    2
    Wainwright, 
    839 F.2d 1422
    , 1424 (11th Cir. 1987).   Thus,
    qualified immunity applies where the plaintiff can identify only
    unworkable abstractions from prior case law and cannot show how
    those principles would be applied later to different facts.2
    Neither the Supreme Court nor this court, however, require
    factual identity between prior and subsequent cases, for that
    would create absolute immunity.3
    I review these principles because the majority has taken a
    rigid approach to their application in the present case.     Our
    various formulations of the “clearly established” test -- that
    prior cases must be factually similar to the case at bar, that
    general abstractions are unhelpful -- represent a shorthand way
    of saying that the clarity of a constitutional right (and,
    therefore, official liability) depends upon the interplay of the
    legal standard and the factual context to which the plaintiff
    2
    For example, if the present case had arisen prior to
    T.L.O., a teacher would have had no reasonable way of knowing
    when she could search a given student, because the Fourth
    Amendment had been haphazardly applied to schools. Some courts
    had held that it permitted searches only upon probable cause, see
    State v. Mora, 
    330 So.2d 900
     (La.), cert. denied, 
    429 U.S. 1004
    (1976); others had held that school children enjoyed no Fourth
    Amendment protection, as school officials acted in loco parentis.
    See In re Donaldson, 
    75 Cal. Rptr. 220
     (Dist. Ct. App. 1969).
    3
    See Anderson, 
    483 U.S. at 640
     (“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, but it
    is to say that in the light of pre-existing law the unlawfulness
    must be apparent.”) (citations omitted); Adams v. St. Lucie
    County Sheriff's Dept., 
    962 F.2d 1563
    , 1575 (11th Cir. 1992)
    (Edmondson, J., dissenting), approved en banc, 
    998 F.2d 923
     (11th
    Cir. 1993) (“The facts [of prior precedent] need not be the same
    as the facts of the immediate case. But they do need to be
    materially similar.”).
    3
    alleges it applies.   But it is not enough simply to label pre-
    existing law “general,” or to identify factual distinctions in
    relevant precedent.   Instead, a court must determine whether the
    generality of a rule casts doubt on its application to the
    present case or whether factual distinctions from prior precedent
    are “material,” that is, they make the legal rule inapplicable in
    the later case or suggest that the present conduct is
    permissible.4   By contrast, the majority today, declaring T.L.O.
    both general and factually distinguishable, abandons further
    analysis.   This, I believe, is error.
    As the Supreme Court recently reaffirmed, the search for
    specific rules in factually concrete cases should not overshadow
    the purpose of such a search -- determining whether the
    government actor had fair warning that his/her conduct was
    unconstitutional.   In United States v. Lanier, 
    117 S. Ct. 1219
    (1997), the Court unanimously held that: (1) civil rights
    liability requires only “fair warning” of constitutional rights,
    
    117 S. Ct. at 1224-27
    ; and (2) neither prior Supreme Court
    precedent nor factually similar precedent is necessary to provide
    such warning.   The Court confirmed that decisional law generally,
    not only from the Supreme Court, can establish a right.   
    Id.
     at
    4
    For example, in Hartsfield v. Lemacks, 
    50 F.3d 950
     (11th
    Cir. 1995), we rejected a qualified immunity defense in the face
    of a broad constitutional test. On the facts of that case, we
    held the police clearly failed to make “reasonable efforts” to
    avoid erroneous execution of a search warrant, thereby violating
    the Fourth Amendment.
    4
    1226-27.5   More importantly for present purposes, the Court
    stressed that rights founded on general statements of law may be
    enforced against government actors.    It observed that “notable
    factual distinctions” between prior cases and later ones did not
    require automatic immunity:
    [G]eneral statements of the law are not inherently
    incapable of giving fair and clear warning, and . . . 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”. . . .
    Id. at 1227 (quoting Anderson, 
    483 U.S. at 640
    ).    The purpose of
    factual specificity is to warn government officials when a
    constitutional test does not, by its own terms, apply to present
    actions.    Thus, it is necessary only when “an earlier case
    expressly leaves open whether a general rule applies to the
    5
    I note the tension between the Court's reasoning and the
    majority's suggestion, ante at 13 n.2, that only the Supreme
    Court, Eleventh Circuit, or the highest court of the state can
    “clearly establish” the law. Compare Courson v. McMillan, 
    939 F.2d 1479
    , 1497-98 (11th Cir. 1991) (only in-circuit precedent
    relevant) and Hansen v. Soldenwagner, 
    19 F.3d 573
    , 578 n.6 (11th
    Cir. 1994) (same) with Lanier, 
    117 S. Ct. at 1226-27
     (“Although
    the Sixth Circuit was concerned . . . that disparate decisions in
    various Circuits might leave the law insufficiently certain even
    on a point widely considered, such a circumstance may be taken
    into account in deciding whether the warning is fair enough,
    without any need for a categorical rule that decisions of the
    Courts of Appeals and other courts are inadequate as a matter of
    law to provide it.”); Elder v. Holloway, 
    114 S. Ct. 1019
    , 1023
    (1994) (“A court engaging in review of a qualified immunity
    judgment should . . . use its full knowledge of its own and other
    relevant precedents.”) (internal alterations and quotations
    omitted) and Greason v. Kemp, 
    891 F.2d 829
    , 833 (11th Cir. 1990)
    ("we look to the law established by the Supreme Court, the courts
    of appeals, and the district courts.").
    5
    particular type of conduct at issue. . . .”     Id.6
    Lanier is consistent both with prior Supreme Court precedent
    and the policy underlying qualified immunity.     The Court has
    always required only that the “unlawfulness must be apparent,”
    Anderson, 
    483 U.S. at 640
    , so actors “reasonably can anticipate
    when their conduct may give rise to liability. . . .”     Davis v.
    Scherer, 
    468 U.S. 183
    , 195 (1984).   Further, excepting all
    unconstitutional conduct governed by “general” constitutional
    standards would vitiate the balance struck by qualified immunity,
    as officials in clear violation of broad rules would escape
    liability.
    Thus, we cannot dismiss T.L.O. by attaching the appellation
    “general” to the test it announces or by pointing to the absence
    of prior factually similar cases.    In T.L.O., the Supreme Court
    noted lower courts' conflicting views regarding the application
    of the Fourth Amendment to schools, 
    469 U.S. at
    332 n.2, and
    squarely addressed the issues before us today: when a search by a
    school official is authorized, and how intrusive a search the
    6
    The majority dismisses Lanier as irrelevant to the instant
    case. I cannot agree. Although it concedes that "general
    principles of law can provide clear warning," ante at 16 n.3
    (emphasis omitted), the majority is unwilling to accept T.L.O.'s
    guidance in the absence of its application to "facts materially
    similar to those of this school search." Id. at 17. Likewise, it
    reasons that "school officials cannot be required to construe
    general legal formulations that have not once been applied to a
    specific set of facts by any binding judicial authority." Id. at
    18-19. I believe this analysis ignores Lanier's intent and,
    indeed, the Court's intent throughout its qualified immunity
    jurisprudence. Lanier and its precursors make liable those who
    violate established constitutional norms, even ones with a short
    pedigree in the decisional law.
    6
    Fourth Amendment tolerates.   As the majority recounts, the Court
    adopted a test born of the Terry v. Ohio, 
    392 U.S. 1
     (1968),
    “reasonableness” standard, but did not leave us with
    reasonableness alone.   It announced a two-pronged test: first,
    the search must be justified at its inception, that is, “there
    are reasonable grounds for suspecting that the search will turn
    up evidence that the student has violated or is violating either
    the law or the rules of the school,” 
    469 U.S. at 342
    ; and second,
    the search must be permissible in scope, that is, “the measures
    adopted are reasonably related to the objectives of the search
    and not excessively intrusive in light of the age and sex of the
    student and the nature of the infraction.”   Id.7
    This standard obviously can establish the law for certain
    factual situations.   For example, if school rules disallow
    chewing gum on campus, would the Fourth Amendment permit a strip
    search by a male teacher of a young girl reasonably suspected of
    bubblegum possession?   Plainly not.   See, e.g., Cornfield v.
    Consolidated High Sch. Dist. No. 230, 
    991 F.2d 1316
    , 1320 (7th
    Cir. 1993) (“A nude search of a student by an administrator or
    teacher of the opposite sex would obviously violate [the T.L.O.]
    standard.   Moreover, a highly intrusive search in response to a
    minor infraction would similarly not comport with . . . T.L.O.”).
    Indeed, as the teachers' counsel conceded at oral argument,
    7
    Given the case's history and its comprehensive test, I
    disagree with the conclusion, ante at 22, “that T.L.O. did not
    attempt to establish clearly the contours of a Fourth Amendment
    right as applied to the wide variety of school settings different
    from those involved in T.L.O.”
    7
    certain schoolhouse searches violate the Fourth Amendment as a
    matter of common sense.   Thus, the question before our court, and
    incompletely answered by the majority, is whether the T.L.O.
    standard suggests “with obvious clarity,” Lanier, 
    117 S. Ct. at 1227
    , that a strip search of schoolchildren for seven dollars is
    unconstitutional.
    T.L.O., although not crystalline, is -- simply on the facts
    of the case before us -- a bright line.   Herring and Sirmon
    lacked even arguable reasonable suspicion to strip search Jenkins
    and McKenzie.8   The teachers offer the following evidence as
    creating reasonable suspicion to search: (1) several students
    implicated the plaintiffs and they accused one another; (2)
    McKenzie earlier had gone to the restroom; (3) the money was not
    found in the backpack or the students' shoes and socks; and (4)
    historically, other children had been caught with money in their
    apparel.   All of these justifications are specious.   First,
    8
    My discussion is confined to the strip searches. I concede
    that the initial search of McKenzie's backpack was justified at
    its inception and reasonable in scope. Ashley Estell's report
    that Jenkins put the money in McKenzie's backpack gave reasonable
    suspicion to suspect that searching the backpack would turn up
    evidence of the theft. See C.B. By and Through Breeding v.
    Driscoll, 
    82 F.3d 383
    , 388 (11th Cir. 1996). Moreover, the
    backpack search, performed by the teacher and confined to the
    place identified as containing the contraband, was not excessive.
    Further, although the search of the students' shoes and socks may
    have been questionable, qualified immunity is appropriate,
    because T.L.O. does not clearly prohibit such a search. See Wynn
    v. Board of Educ. of Vestavia Hills, 
    508 So.2d 1170
     (Ala. 1987)
    (search of shoes and socks for $6 justified at inception where
    two students searched were only ones in room when theft occurred;
    concluding, without discussion, that search “was not excessively
    intrusive”).
    8
    Herring and Sirmon knew only of Ashley Estell's accusation9 and
    the mutual finger-pointing by Jenkins, McKenzie, and Jamerson.
    Estell's testimony proved untrustworthy when the backpack search
    revealed nothing, leaving only the students' completely
    contradictory allegations.     This testimony might be at the outer
    bounds of reasonable suspicion for one search, but it is not so
    for two.10   Second, McKenzie's trip to the bathroom, although
    relevant to suspicion, was not communicated to Herring or Sirmon
    prior to the strip search.11    Third, appellees' suggestion that
    the lack of evidence in the backpack or the students' shoes and
    9
    The majority's statement, ante at 3, that “[s]everal
    students subsequently implicated” the girls is misleading because
    it does not speak to Herring and Sirmon's knowledge. Fannin
    testified that two other students, Micquael Scales and Jennifer
    Simmons, accused Jenkins, but only after Fannin left Herring and
    Sirmon in the hall with the girls and Jamerson. Fannin did not
    relate this information until Sirmon returned to the classroom
    while Herring conducted the first strip search.
    10
    Even though Jamerson had implicated himself as the thief
    (by stating that he hid the money behind a filing cabinet), the
    teachers conducted a second strip search of the two girls. This
    was wholly unreasonable, especially in view of the fact that
    Jenkins stated that she saw Jamerson open the victim's purse, the
    girls had never stolen anything before, and Jamerson had a
    history of theft.
    11
    There is a conflict in the record on this point, so I
    presume in favor of the plaintiffs. Herring claimed that Fannin
    told her of McKenzie's trip and suggested to Herring that money
    might be hidden in McKenzie's clothes. Herring then allegedly
    replied that she would take the girls to the bathroom and have
    them check their clothes. Fannin contradicts this account.
    Herring claimed the interchange occurred while the girls were
    putting their shoes and socks back on, but Fannin said she left
    the hall at that point. Fannin also had no knowledge that
    Herring might take the girls to the bathroom, but presumed they
    would go to the office, in accordance with policy. Further,
    Herring's testimony is unreliable because she changed her story,
    telling Principal Nelson that Jamerson, not Fannin, informed her
    that McKenzie went to the bathroom.
    9
    socks permitted the strip search is dubious, as it rests on the
    questionable premise that more intrusive searches can be
    predicated upon prior unrevealing searches. T.L.O. makes clear
    that such bootstrapping is impermissible; there, the Court
    validated the escalating search only because additional evidence
    continued to emerge.   See 
    469 U.S. at 347
     (discovery of rolling
    papers "justified further exploration of T.L.O.'s purse”;
    evidence of drug dealing justified expansion of search to
    separate zippered compartment; discovery of "list of people who
    owe me money" justified reading letters found in zippered
    compartment).   Finally, there is no evidence that Herring or
    Sirmon knew about prior instances of other students concealing
    money in their clothing.12   Thus, because arguable reasonable
    suspicion was missing, qualified immunity is inappropriate.13
    12
    Appellees point to clothing searches in other schools, and
    to searches of shoes and socks allegedly conducted by Nelson, but
    Herring and Sirmon were unaware of these incidents when they
    conducted the strip search. Further, it is not clear that, on
    summary judgment, we can assume that Nelson's searches ever
    occurred, as the Department of Education's Incident Report found
    that, in prior school theft incidents, no one had ever been
    required to remove any article of clothing.
    13
    I believe that the majority errs by failing to consider
    whether there was reasonable suspicion to initiate each of the
    bathroom searches and by treating the searches as a single search
    justified at its inception. Ante at 19 n.4. Each search was
    separate in time and place and several different people conducted
    them. For instance, the backpack search was performed solely by
    Fannin in her classroom, and was not revealed to Herring or
    Sirmon, who conducted the later bathroom searches.
    Further, I differ with the majority's apparent contention
    that T.L.O. requires only a one-time assessment of reasonable
    suspicion where searches are escalating in nature. 
    Id.
     T.L.O. in
    fact commands a contrary conclusion -- it condoned an escalating
    search only where discovered evidence created suspicion to look
    elsewhere.
    10
    In addition, the scope of the strip search far exceeded what
    T.L.O. allows.    To evaluate the scope of a search, T.L.O. directs
    us to consider several factors: whether there was a reasonable
    relationship between the means by which a student is searched and
    the objectives for that search; the intrusiveness of the search
    in light of the student's age and sex; and the intrusiveness of
    the search in light of the nature of the alleged infraction.
    Admittedly, age and sex are not particularly instructive in the
    present case.14   Nevertheless, this does not render T.L.O.
    unclear for qualified immunity purposes.   Our cases confirm that
    a balancing test may establish the law for a specific set of
    14
    Sex is irrelevant because the students were of the same
    gender as their searchers; however, the suggestion that T.L.O. is
    unclear because it does not explain “whether the search of a boy
    or girl is more or less reasonable,” ante at 16, only confuses
    the issue. Gender is a concern, obviously, when searches are
    conducted by members of the opposite sex. As for age, the T.L.O.
    Court did not explain whether older or younger students can be
    searched more freely. See Cornfield, 
    991 F.2d at 1321
    (discussing issue).
    I cannot subscribe to the majority's view, ante at 19 n.4,
    that this search was reasonable in scope because eight-year-olds
    are prepubescent and frequently require assistance in the
    bathroom. Physical maturity is an elusive and, in my view,
    unworkable constitutional standard and is by no means the only
    consideration relevant to intrusiveness. See generally Steven F.
    Shatz et al., The Strip Search of Children and the Fourth
    Amendment, 26 U.S.F.L. REV. 1 (1991) (child's ability to consent,
    propensity to commit crime, and degree of body autonomy determine
    intrusiveness). Moreover, there is nothing in this record to
    support the majority's factual premises, and pediatric literature
    suggests that they are questionable. See Marcia E. Herman-
    Giddens et al., Secondary Sexual Characteristics and Menses in
    Young Girls Seen in Office Practice: A Study from the Pediatric
    Research Office Settings Network, 99 PEDIATRICS 505 (1997) (noting
    that girls often develop pubertal characteristics by age 8,
    depending on racial and ethnic background); Sally Squires, Bed-
    Wetting a Common Inconvenience, WASH. POST, Apr. 8, 1997, at Z17
    ("Most children are toilet-trained sufficiently to stay dry
    during the day by age 3 or 4. . . .").
    11
    facts when the “balancing would lead to the inevitable conclusion
    that the [particular conduct] was unlawful.”   Dartland v.
    Metropolitan Dade County, 
    866 F.2d 1321
    , 1323 (11th Cir. 1989).
    Because the type of search employed here was not reasonably
    related to its objectives and was excessive in light of the
    nature of the infraction, the T.L.O. balance inevitably marks
    Herring and Sirmon's conduct as unconstitutional, thereby clearly
    establishing the law.15
    The strip searches were not reasonably related to their
    objectives because they were excessively intrusive and unlikely
    to turn up evidence, and because other reasonable, minimally
    intrusive options were available.
    It is axiomatic that a strip search represents a
    serious intrusion upon personal rights. In Mary Beth
    G. [v. City of Chicago, 
    723 F.2d 1263
    , 1272 (7th Cir.
    1983)], the court referred to strip searches as
    “demeaning, dehumanizing, undignified, humiliating,
    terrifying, unpleasant, embarrassing, repulsive,
    signifying degradation and submission.”
    Justice v. City of Peachtree City, 
    961 F.2d 188
    , 192 (11th Cir.
    1992).16   Thus, for a strip search to be reasonably related in
    15
    The majority notes that Justice Stevens objected to
    T.L.O.'s lack of clarity, ante at 20 n.5; he also realized,
    however, that its test would lead to some inescapable
    conclusions: “One thing is clear under any standard--the shocking
    strip searches that are described in some cases have no place in
    the schoolhouse. To the extent that deeply intrusive searches are
    ever reasonable outside the custodial context, it surely must
    only be to prevent imminent, and serious harm.” 
    469 U.S. at
    382
    n.25 (Stevens, J., concurring in part and dissenting in part)
    (emphasis added) (citations omitted).
    16
    Although decided after the events at issue in the present
    case, Justice's treatment of strip searches merely confirms their
    self-evidently intrusive character.
    12
    scope to the objectives for which it was undertaken, the
    objectives must be weighty,17 and the search must be necessary to
    locate the suspected evidence.    See Terry, 
    392 U.S. at 29-30
    (search must be “confined in scope to an intrusion reasonably
    designed to discover” items sought and “confined . . . strictly
    to what was minimally necessary” to locate those items).     Here,
    acting only on the discredited testimony of one student and the
    contradictory allegations of the three suspects (exacerbated by
    threats that the police would be called to investigate), the
    teachers launched a full-scale strip search of two eight-year-
    olds, foregoing several reasonable, yet minimally intrusive,
    intermediate steps.
    Fannin never questioned whether the money was truly stolen.
    She did not inquire whether the money might have been spent or
    misplaced, nor did she ask how Estell knew that Jenkins took the
    money.    Fannin also did not search Jenkins's bag.   Further,
    Herring took over the situation without asking any questions, and
    promptly ordered a search of the students' shoes and socks,
    followed by a strip search, even though there was absolutely no
    17
    See Cornfield, 
    991 F.2d at 1321
     ("[A]s the intrusiveness
    of the search of a student intensifies, so too does the standard
    of Fourth Amendment reasonableness. What may constitute
    reasonable suspicion for a search of a locker or even a pocket or
    pocketbook may fall well short of reasonableness for a nude
    search."). A sliding scale of reasonableness is inherent in the
    Fourth Amendment. Terry, for example, teaches that "[t]he scope
    of the search must be 'strictly tied to and justified by' the
    circumstances which rendered its initiation permissible." 
    392 U.S. at 19
    . See also, e.g., United States v. McMurray, 
    747 F.2d 1417
    , 1420 (11th Cir. 1984) (in customs context, as intrusiveness
    increases, suspicion necessary to justify search must increase).
    13
    evidence that the girls might have the money in their
    underclothing.    Thus, because there was not even reasonable
    suspicion to believe that the girls possessed contraband, because
    the teachers ignored less intrusive means, and because the
    personal invasion was extreme, the first strip search was
    necessarily disproportionate to its justification.    The second
    strip search was even more blatantly unconstitutional, as no one
    could reasonably argue that it was necessary after the fruitless
    prior search.
    Finally, the nature of the infraction here -- a small theft
    -- is insufficient as a matter of law to permit a strip search.
    T.L.O. directs us to consider the nature of the infraction
    because, although keeping order in the school is important, it is
    not determinative.    Students' privacy rights must be weighed in
    the balance.    Strip searching a student is permissible only in
    extraordinary cases, and only to prevent imminent harm.18    For
    example, if school administrators have reasonable suspicion that
    a student is carrying a gun on his/her person and a “pat-down”
    confirms this suspicion, a strip search by an administrator of
    the same sex, strictly limited to finding the weapon, would be
    permissible.    The theft of $7, although morally reprehensible,
    poses no threat of physical danger to other students and cannot,
    18
    See Justice, 
    961 F.2d at 193
     (collecting cases; noting
    that threat of harm was only permissible reason in case law for
    strip search of arrestee).
    14
    therefore, serve as the basis for a search of this magnitude.19
    As the Seventh Circuit, faced with a qualified immunity
    defense following a school strip search, explained:
    It does not require a constitutional scholar to
    conclude that a nude search of a thirteen-year-old
    child is an invasion of constitutional rights of some
    magnitude. More than that: it is a violation of any
    known principle of human decency. Apart from any
    constitutional readings and rulings, simple common
    sense would indicate that the conduct of the school
    officials in permitting such a nude search was not only
    unlawful but outrageous under “settled indisputable
    principles of law.”
    Doe v. Renfrow, 
    631 F.2d 91
    , 92-93 (7th Cir. 1980) (citation
    omitted), cert. denied, 
    451 U.S. 1022
     (1981).   Because Herring
    and Sirmon flagrantly ignored common sense and, crucially, the
    Constitution, I would reverse the district court's order granting
    qualified immunity.
    19
    See, e.g., Oliver by Hines v. McClung, 
    919 F. Supp. 1206
    ,
    1216-19 (N.D. Ind. 1995) (strip search of seventh graders for
    $4.50 unconstitutionally unreasonable); State ex rel. Galford v.
    Mark Anthony B., 
    433 S.E.2d 41
    , 49 (W. Va. 1993) (strip search
    for $100 unconstitutionally unreasonable in scope because no
    threat of danger); Bellnier v. Lund, 
    438 F. Supp. 47
    , 53-54
    (N.D.N.Y. 1977) (strip search for stolen $3 unconstitutionally
    unreasonable, given unparticularized suspicion and “relatively
    slight danger of the conduct involved”).
    15
    

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Docket Number: 95-6243

Filed Date: 9/23/1996

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (27)

Wynn v. Board of Educ. of Vestavia Hills , 508 So. 2d 1170 ( 1987 )

robert-jeff-adams-sr-personal-representative-for-the-estate-of-donald , 962 F.2d 1563 ( 1992 )

albert-e-lassiter-v-alabama-a-m-university-board-of-trustees-douglas , 28 F.3d 1146 ( 1994 )

robert-jeff-adams-sr-personal-representative-for-the-estate-of-donald , 998 F.2d 923 ( 1993 )

Brent K. Hansen v. John Soldenwagner Raymond Malecki John ... , 19 F.3d 573 ( 1994 )

C. B. v. Driscoll , 82 F.3d 383 ( 1996 )

United States v. Thomas Eddy McMurray , 747 F.2d 1417 ( 1984 )

Diane Doe, Etc. v. Omer Renfrow, Etc. , 631 F.2d 91 ( 1980 )

Askari Abdullah Muhammad, 017434 v. Louie L. Wainwright, ... , 839 F.2d 1422 ( 1987 )

charles-justice-as-next-friend-of-james-justice-keith-simon-as-next , 961 F.2d 188 ( 1992 )

Walter Dartland v. Metropolitan Dade County, a Political ... , 866 F.2d 1321 ( 1989 )

Sharon Courson v. Quinn A. McMillian Individually and as ... , 939 F.2d 1479 ( 1991 )

Marilyn Greason v. Ralph Kemp , 891 F.2d 829 ( 1990 )

leonard-hartsfield-sr-mattie-hartsfield-v-dg-lemacks-individually , 50 F.3d 950 ( 1995 )

United States v. Lanier , 117 S. Ct. 1219 ( 1997 )

Diane Doe, Etc. v. Omer Renfrow, Individually and as ... , 451 U.S. 1022 ( 1981 )

Brian Cornfield, a Minor, by His Mother and Next Friend, ... , 991 F.2d 1316 ( 1993 )

New Jersey v. T. L. O. , 105 S. Ct. 733 ( 1985 )

Bellnier v. Lund , 438 F. Supp. 47 ( 1977 )

OLIVER BY HINES v. McClung , 919 F. Supp. 1206 ( 1995 )

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