United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 9, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 02-10500
__________________________
OSCAR D. WILLIAMS, JR; ET AL,
Plaintiffs,
THOMAS GENE BROWN, CECIL JACKSON; L.B. BRUMLEY
Plaintiffs-Appellants-Cross-Appellees,
versus
KAUFMAN COUNTY; ROBERT HARRIS, Kaufman County Sheriff,
Defendants-Appellees-Cross-Appellants.
___________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
___________________________________________________
Before WIENER and BARKSDALE, Circuit Judges, and FURGESON, District
Judge.*
WIENER, Circuit Judge:**
Plaintiff-Appellants Thomas Gene Brown, Cecil Jackson and L.B.
Brumley (collectively “plaintiffs”) appeal the district court’s
denial of their unlawful detention, invasion of privacy, and oral
harassment claims in their § 1983 suit against Sheriff Robert
*
United States District Judge for the Western District of
Texas, sitting by designation.
**
This opinion replaces the August 19, 2003 opinion in this
case, 343 F.3d 689 (5th Cir. 2003), which is hereby withdrawn.
Harris (“Harris”) and Kaufman County, Texas (“the County”),
(collectively, “defendants”). Defendants cross-appeal the district
court’s judgment in favor of plaintiffs on their claims for illegal
strip search, municipal liability against the county, nominal and
punitive damages against Harris in his personal capacity, and state
constitutional declarative relief. For the following reasons, we
affirm.
I. FACTS AND PROCEEDINGS
In April of 1995, Sheriff Harris obtained a search warrant,
based on information he received from a confidential informant, for
a night club called the “Classic Club” in Terrell, Texas (the
“Club”). The affidavit used to secure the warrant identified five
individuals suspected of dealing crack cocaine, none of whom are
the plaintiffs here, and included as suspects “all other person or
persons whose names, identities, and descriptions are unknown to
the affiant.” The warrant itself, however, only authorized the
police to “enter the suspected place described in [the affidavit]
and to there search for the personal property described...and to
seize same and to arrest and bring before [the magistrate] each
suspected party named in [the affidavit].”
At about 9:45 p.m. the same day, Harris led a contingent of
approximately forty (40) officers to the Club to execute the
“hazardous” warrant.1 Although some individuals were able to run
1
According to the district court, the Kaufman County
Sheriff’s department considers the execution of a narcotics
2
away, and others outside the premises allegedly hurled bottles and
rocks at the officers, the law enforcement personnel were able to
secure the outer perimeter of the search area, which included the
Club’s building and parking lot, and the entire city block up to
the roadway. On entering the Club, the officers noticed drugs on
the floors and tables.
Plaintiffs Cecil Jackson and L.B. Brumley were inside the
Club; plaintiff Thomas Gene Brown was outside, but when he
repeatedly attempted to gain admittance, an officer arrested him
and took him inside to be searched. The police detained
approximately 100 people, including plaintiffs, inside the Club for
about three hours. During that time, officers conducted a pat-down
search, strip search, and warrants check on each individual there.
Although strip searches were not part of any written policy
concerning the execution of hazardous warrants, Harris testified
that it was his standard policy to conduct a strip search on each
person within the search area, with or without individualized
probable cause. Also, pursuant to this “policy,” the officers
rehandcuffed plaintiffs (and all other detainees) and continued to
detain them after the strip searches until the entire search of the
warrant a “hazardous entry,” where weapons are likely to be
present. Additionally, in a March 1994 search of the Club,
police found drugs, drug paraphernalia, and a concealed .25
caliber pistol. After this search, Harris apparently received an
anonymous telephone call threatening to kill him if he returned
to the Club. Harris also testified that an officer had been shot
at previously while attempting to execute a warrant at the Club.
3
Club and all occupants had been completed. Brumley got
obstreperous after he was strip searched and was arrested for
disorderly conduct.
Three years later, 17 individuals brought suit under § 1983,
claiming that Harris and the County violated their Fourth Amendment
rights by engaging in an illegal strip search, unlawful detention
and oral harassment.2 Four plaintiffs were dismissed, and 10
others settled their claims. The three remaining plaintiffs
(plaintiffs-appellants herein) unsuccessfully attempted to amend
their complaint, in part to include an invasion-of-privacy claim.
At the summary judgment stage, the district court granted
summary judgment in favor of defendants on (1) the unlawful
detention claims of those plaintiffs inside the Club when the
premises were secured; (2) plaintiffs’ invasion of privacy claims;
and (3) plaintiffs’ verbal harassment claims. The court denied
defendants’ summary judgment motion on (1) plaintiffs’ illegal
strip search claim; (2) the unlawful detention claims of plaintiffs
who were not originally in the Club, but were brought in only after
the premises were secured; and (3) plaintiffs’ policy claims
against Kaufman County.
After conducting a bench trial, the district court concluded
that (1) Harris had conducted an unconstitutional strip search of
2
Plaintiff brought a variety of other claims, such as
excessive force, civil conspiracy, assault and battery, and
intentional infliction of emotional distress, but all were
rejected on summary judgment and have not been appealed to us.
4
plaintiffs, and he is not entitled to qualified immunity because
the rule of law prohibiting these searches was clearly established
at the time, making Harris’s conduct objectively unreasonable; (2)
Harris is entitled to qualified immunity on Brown’s illegal
detention claim, the only detention claim surviving summary
judgment;3 and (3) Kaufman County is liable for Harris’s conduct
because Harris is a policymaker whose actions (specifically, his
orally established policy of conducting strip searches irrespective
of the absence of reasonable suspicion) had been the moving force
behind the violation of plaintiffs’ constitutional rights.
Based on these rulings, the court awarded each plaintiff
“nominal damages” of $100, and punitive damages of $15,000 against
Harris in his individual capacity. The court also awarded
plaintiffs declaratory relief, decreeing that Harris and the County
had violated plaintiffs’ rights under Article I, section 9 of the
Texas Constitution. The court rejected plaintiffs’ claim for
3
The district court dismissed the unlawful detention claims
of all of the Group 1 plaintiffs, who consisted of those inside
the Club when the premises were secured by police, but allowed to
go to trial the detention claims of the Group 2 plaintiffs, who
consisted of those outside of the Club when the premises were
secured. Plaintiff Thomas Gene Brown was outside the Club when
the premises were secured, and therefore should have been named
in Group 2. When the court described the different groups of
plaintiffs, however, it placed Brown in Group 1. As the court
subsequently addressed Brown’s unlawful detention claim at trial,
the implied inclusion of his name in Group 1 at the summary
judgment stage appears to have been an inadvertent and harmless
mistake.
5
injunctive relief.4 Both plaintiffs and defendants timely filed
notices of appeal.
II. ANALYSIS
A. Standard of Review
We review the district court’s summary judgment decision de
novo.5 Summary judgment is only proper if there is no genuine
issue of material fact and the moving party is entitled to a
judgment as a matter of law.6 To determine whether there are any
material factual issues, we consult the applicable substantive law
to define which issues are material, and then consider the evidence
relevant to those issues in the light most favorable to the non-
moving party.7
We review the district court’s bench trial conclusions of law
de novo, and findings of fact for clear error. Finally, we review
the district court’s decision to award punitive damages for abuse
of discretion,8 and examine the constitutionality of the amount of
such an award de novo.9
4
The court also directed the parties to attempt to resolve
the attorneys’ fees issues themselves.
5
Harper v. Harris County, 21 F.3d 597, 600 (5th Cir. 1994).
6
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).
7
Harper, 21 F.3d at 600.
8
Sockwell v. Phelps, 20 F.3d 187, 192 (5th Cir. 1994).
9
Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532
U.S. 424, 436 (2001).
6
B. Parties’ Contentions
Because the district court addressed plaintiffs’ claims at
both the summary judgment and trial stages of the litigation, and
because the parties appeal different aspects of the judgments
rendered, we briefly summarize the parties’ contentions on appeal
in the interest of clarity.
Plaintiffs make four claims (1) Harris supervised an unlawful
detention, which was objectively unreasonable, pretermitting
qualified immunity; (2) Harris’s search method amounted to an
invasion of plaintiffs’ privacy; (3) the officers’ use of racial
epithets violated plaintiffs’ Fourth Amendment rights; and (4) the
County is liable for the constitutional violations caused by
Harris’s conduct. In short, plaintiffs contest essentially all of
the district court’s summary judgment holdings adverse to them.
For their part, defendants argue that (1) within the context
of executing a hazardous search warrant, it was proper for the
officers under Harris’s command to conduct strip searches; but even
if plaintiffs’ rights were violated, Harris deserves qualified
immunity; (2) Harris acted reasonably in detaining plaintiffs until
the completion of the entire search of the Club; but even if Harris
acted unlawfully, he is entitled to qualified immunity; (3) the
district court properly dismissed plaintiffs’ claims of invasion of
privacy for their failure to plead such claims; (4) the district
court properly denied plaintiffs’ claims of oral harassment because
7
plaintiffs failed to plead an equal protection claim under the
Fourteenth Amendment; (5) the district court erred in assessing
nominal (insisting that $100 per plaintiff is not nominal) and
punitive damages; (6) the district court erred in finding that
defendants violated the Texas Constitution; and (7) the County is
not liable for conduct that does not amount to a constitutional
violation.
C. Qualified Immunity Standard
To prevail in a § 1983 suit, a plaintiff must overcome an
officer’s defense of qualified immunity. Last term, in Hope v.
Pelzer, the Supreme Court rendered its most recent articulation of
this standard,10 which we subsequently adopted.11 To determine
whether relief is appropriate, the court must undertake a two-step
analysis.12 First, the court must evaluate whether a “plaintiff’s
allegations, if true, establish a constitutional violation.”13 We
10
536 U.S. 730 (2002).
11
Roe v. Texas Dep’t of Protective and Regulatory Serv.,
299 F.3d 395, 408-09 (5th Cir. 2002).
12
The district court outlined a three step inquiry,
examining (1) whether a constitutional right was violated, (2)
whether that right was clearly established, and (3) whether the
officers engaged in objectively unreasonable conduct. The
district court, however, unnecessarily decoupled the clearly
established/objective unreasonableness test of the Supreme Court.
That is, if a right is clearly established enough to impart fair
warning to officers, then their conduct in violating that right
cannot be objectively reasonable.
13
Hope, 536 U.S. at 736 (citing Saucier v. Katz, 533 U.S.
194, 201 (2001).
8
address this inquiry in greater detail in connection with each of
the contested constitutional claims.
Second, if a constitutional violation is found to have
occurred, the court must determine whether the defendant’s actions
violated “clearly established statutory or constitutional rights of
which a reasonable person would have known.”14 The Hope Court
reiterated the standard for a constitutional right to be clearly
established:
[I]ts contours “must be sufficiently clear that a
reasonable official would understand that what he is
doing violates that right. This is not to say that an
official action is protected by qualified immunity unless
the very action in question has previously been held
unlawful....but it is to say that in the light of pre-
existing law the unlawfulness must be apparent.”15
In Hope, the Court clarified that the factual situation from which
the pre-existing constitutional right developed does not have to be
“fundamentally similar” to the one before a court when addressing
qualified immunity.16 Rather, qualified immunity can be overcome
as long as “‘prior decisions gave reasonable warning that the
conduct then at issue violated constitutional rights.’”17 The Court
14
Id. at 739 (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)).
15
Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)).
16
Id. at 740 (relying on its reasoning and holding in
United States v. Lanier, 520 U.S. 259 (1997)).
17
Id. (quoting Lanier, 520 U.S. at 269). According to the
Hope court, Lanier explained “that the ‘fair warning’ requirement
is identical under § 242 and the qualified immunity standard.”
9
concluded that “officials can still be on notice that their conduct
violates established law even in novel factual circumstances.”18
The appropriate inquiry, therefore, is “whether the state of
the law [at the time of the violation] gave [defendants] fair
warning that their alleged treatment of [plaintiffs] was
unconstitutional.”19
D. Unlawful Strip Search
1. Whether Harris’s conduct violated the Fourth Amendment
On appeal, defendants argue that, within the context of
executing a hazardous search warrant, it was proper for Harris to
conduct strip searches of plaintiffs. In Ybarra v. Illinois, the
Supreme Court addressed the search of a bar patron, which occurred
during the execution of a search warrant that authorized police to
search the Aurora Tavern and a bartender named “Greg” for heroin
and other contraband.20 The Court accepted that police had a valid
warrant to search the premises, but concluded that “it gave them no
Hope, 536 U.S. at 740.
18
Id. at 741.
19
Id. The Hope Court addressed Alabama’s practice of
handcuffing inmates to a “hitching post” as a disciplinary
remedy. The Court concluded that prior precedent, an Alabama
regulation and a DOJ warning all sufficed to give prison
officials fair warning that their hitching post practice violated
the Eighth Amendment. Id. at 741-46. In particular, the
precedent it relied on already prohibited (1) handcuffing inmates
to fences for long periods of time, and (2) physical punishment
that occurred after a prisoner had terminated his resistance to
authority. Id. at 742-43.
20
444 U.S. 85, 88 (1979).
10
authority whatever to invade the constitutional protections
possessed individually by the tavern’s customers.”21 Reasoning
further, the Court stated:
“[A] person’s mere propinquity to others independently
suspected of criminal activity does not, without more,
give rise to probable cause to search that
person....Where the standard is probable cause, a search
or seizure of a person must be supported by probable
cause particularized with respect to that person. This
requirement cannot be undercut or avoided by simply
pointing to the fact that coincidentally there exists
probable cause to search or seize another or to search
the premises where the person may happen to be.22
The Court also concluded that even the initial frisk of the
patron, Ybarra, much less his subsequent search, was unjustified.23
Although Terry v. Ohio created an exception to the probable cause
requirement, allowing police officers to protect themselves by
conducting a patdown of a suspect, the Ybarra court held that
“[t]he ‘narrow scope’ of the Terry exception does not permit a
frisk for weapons on less than reasonable belief or suspicion
directed at the person to be frisked, even though that person
happens to be on premises where an authorized narcotics search is
taking place.”24
Here, the district court concluded, relying primarily on
Ybarra, that Harris’s strip search of plaintiffs violated their
21
Id. at 92.
22
Id. at 91 (emphasis added).
23
Id. at 92-93.
24
Id. at 94 (emphasis added).
11
Fourth Amendment rights. On appeal, Harris and the County contend
that the violent history of the Club created exigent circumstances,
which threatened officer safety and thus justified the strip search
of the plaintiffs. In contrast to Ybarra, they argue, the exigent
circumstances in this case presented a situation in which there was
“more” than plaintiffs’ “mere propinquity to others independently
suspected of criminal activity.”
Although the discrete facts of this case differ from Ybarra,
those differences are not sufficient to create a meaningful
distinction. Ybarra squarely held that in premises searches like
this one, police must have either articulable reasonable suspicion
to frisk an individual or probable cause to search him. The record
evidence, in particular Harris’s own testimony, reflects that, vis-
à-vis the plaintiffs, the police lacked even reasonable suspicion.
None of the plaintiffs was named in the warrant, and Harris offered
no reasonable belief that the plaintiffs in particular were armed
or engaged in criminal activity. Even if, based solely on the
Club’s history, it had been reasonable for Harris to suspect that
plaintiffs were armed or carrying drugs, searching them would still
have been unlawful: Ybarra reiterated that the Terry-style search
is limited to a frisk for weapons.25 Harris’s officers frisked the
25
As Ybarra held, “[n]othing in Terry can be understood to
allow...any search whatever for anything but weapons.” 444 U.S.
at 93-94. The Court also stated that “a law enforcement officer,
for his own protection and safety, may conduct a patdown to find
weapons that he reasonably believes or suspects are then in the
possession of the person he has accosted.” Id. at 93.
12
plaintiffs, but found no evidence of weapons, drugs or contraband
to ripen into the probable cause required for a full-blown search.
Harris testified that the officers conducting the search had no
individualized probable cause as to any of the plaintiffs.
Instead, he stated only that there was “probable cause to believe
that everyone in there may have had drugs on them.” Finally, as
the district court reasonably explained, the intrusiveness of the
search outweighed the legitimate law enforcement interests in
protection and safety, because the officers had already handcuffed
and patted down the plaintiffs before forcing them to undergo strip
searches.26
Neither of the other two potential justifications for the
strip search —— arrest or identity in a warrant —— mitigate the
unlawfulness of the search. First, although two of the plaintiffs,
Brumley and Brown, were arrested that evening, neither of the
arrests justified strip searches under the applicable law. Brumley
was arrested for disorderly conduct after he was strip searched;
thus his post hoc arrest could not have justified the search.
Brown was arrested before the search, but for attempting to enter
26
The district court also found that Bell v. Wolfish, 441
U.S. 520 (1979) justifies strip searches on the reasonable
suspicion that an individual is concealing weapons or contraband.
Bell, however, dealt with pre-trial detainees who were awaiting
trial on serious federal charges. Stewart v. Lubbock County, 767
F.2d 153, 156 (5th Cir. 1985) (explaining Bell’s holding). Thus,
the intrusiveness/law enforcement interests balance was more
heavily in favor of law enforcement than the one conducted here,
in which the police lacked both articulable reasonable suspicion
and probable cause of wrong-doing to conduct any type of search.
13
the Club (claiming he owned it) in spite of an officer’s order to
leave the area.
We have allowed strip searches in custodial situations but,
consistently, not when the suspect has committed only a minor
offense and there exists no reasonable suspicion that he might
possess weapons or contraband.27 Although Brown was attempting to
enter a Club in which drugs were found, defendants offer no
evidence for suspecting that he possessed weapons or contraband.
Indeed, Harris admitted that he had no probable cause toward Brown;
the arresting officer testified that he had no suspicion that Brown
was carrying weapons; and prior to the strip search the officers
took everything out of Brown’s pockets, revealing no weapons or
drugs, and thereby dispelling any suspicion of illegal activity.
As a result, the subsequent strip search, after reasonable
suspicion had failed to mature into probable cause, was
unreasonably intrusive.
Second, the affidavit that Harris filed to obtain the warrant
was insufficient to justify a strip search of plaintiffs. The
affidavit submitted for the warrant included as suspects “all other
person or persons whose names, identities, and descriptions are
unknown to the affiant.” The warrant itself only authorized the
police to “enter the suspected place described in [the affidavit]
and to there search for the personal property described...and to
27
Watt v. Richardson Police Dep’t, 849 F.2d 195, 199 (5th
Cir. 1988) Stewart, 767 F.2d at 156-57.
14
seize same and to arrest and bring before [the magistrate] each
suspected party named in [the affidavit]” (emphasis added). None
of the plaintiffs was named as a suspect in the affidavit.
Furthermore, as Ybarra confirmed, because the Fourth Amendment
requires particularity, “‘open-ended’ or ‘general’ warrants are
constitutionally prohibited.”28 To construe this warrant as
authorizing a general search of any person found in the Club would
sanction exactly the type of general warrant that the Constitution
forbids.
In sum, the strip search of the plaintiffs was unlawful
because Harris lacked probable cause toward each of them.
2. Whether the law was “clearly established”
The district court concluded that “no reasonable officer could
have believed that conducting a strip search in these
circumstances, without probable cause or reasonable suspicion, was
objectively reasonable.” The court noted that both Ybarra and Watt
v. Richardson Police Department29 clearly established that strip
searches conducted without individualized reasonable suspicion or
probable cause are unlawful. On appeal, Harris contends that
reasonable officers could have disagreed about the legality of the
strip search because of the hazardous conditions surrounding the
28
444 U.S. at 92, n.4.
29
849 F.2d 195 (5th Cir. 1988).
15
execution of the search warrant.30
Hope instructs that once it is clear that a constitutional
violation has occurred, courts must examine whether the state of
the law at the time gave the defendants fair warning that their
behavior toward the plaintiffs was unlawful. In this case, we
agree with the district court that Ybarra and our case law on strip
searches provided fair warning to Harris that his conduct was
unlawful. Ybarra addressed a situation substantially similar to
the one here, and explicitly held that officers must have
reasonable suspicion to conduct a frisk or individualized probable
cause to conduct a lawful search. Even accepting that there were
aspects of this warrant’s search that made it more hazardous than
the one conducted in Ybarra, or made it more likely that multiple
persons would be in possession of drugs, none of these extenuating
circumstances created probable cause or reasonable suspicion
“particularized with respect to [plaintiffs].”31 And even if
hazardous circumstances had given rise to reasonable suspicion that
plaintiffs, by being present, might have possessed weapons or
contraband, Harris should have known that his officers were limited
to a patdown of each plaintiff. Thus, to the extent this case
differs factually from Ybarra, it still fits comfortably under the
general rule promulgated by the Supreme Court in that case.
30
Kaufman only argues on appeal that the strip search was
constitutional, and does not raise the qualified immunity issue.
31
Ybarra, 444 U.S. at 91.
16
Indeed, Harris’s declaration that “we did have probable cause to
believe that everyone in [the Club] may have had drugs on them”
demonstrates his unjustified disregard or deliberate ignorance of
the rule articulated by the Ybarra court.
In addition, our prohibition of strip searches in other
contexts presented more than fair warning at the time that the
strip searches at issue here were illegal. In Stewart v. Lubbock
County, we employed the test articulated in Bell v. Wolfish,
balancing law enforcement interests in the search against the level
of invasion of personal rights caused by the search.32 We concluded
that the strip search policy at issue there violated the Fourth
Amendment because it applied to minor offenders about whom the
police had no reasonable suspicion of possessing weapons or
contraband.33 Similarly, in Watt v. Richardson Police Department,
we recognized that even though strip searches of inmates were often
allowed to maintain institutional security, when an arrestee’s
offense is minor, his criminal history innocuous or ancient, and
his personal characteristics at odds with reasonable fears about
prison security, the strip search is illegal.34
Unlike both Stewart and Watt, this case concerns individuals
outside the prison context, thus individuals toward whom the police
32
767 F.2d at 156 (citing Bell v. Wolfish, 441 U.S. 520,
559 (1979)).
33
Id. at 156-57 (emphasis added).
34
849 F.2d at 197, 199.
17
had even less individualized reasonable suspicion or probable cause
—— none, to be precise. Thus, if any law enforcement interest
existed at all, it concerned only officer safety, not prison
security. After handcuffing and patting down the plaintiffs here,
however, even this law enforcement interest ceased to exist. On
appeal, Harris and the County repeatedly encant the hazardous
conditions of the search, yet Harris admits that he had no
individualized probable cause that any of the plaintiffs had
weapons, drugs or contraband. Furthermore, even though Brown was
arrested before he was strip searched, he was arrested because he
interfered with the duties of a public servant, not because of any
probable cause or reasonable suspicion related to drugs or weapons.
To the extent the police were legitimately worried about their
safety in regard to Brown or any other individuals before or during
the searches, those concerns surely evanesced once the officers
handcuffed and patted down the plaintiffs. At that point, the law
enforcement interests were substantially less significant than
those in either Stewart or Watt. Finally, weighed against this
interest, the invasion of personal rights caused by the strip
searches here are at least if not more intrusive than in either
Stewart or Watt.35 In short, Stewart and Watt also provided fair
35
In both of those cases, there was no allegation that the
privacy of the suspect was compromised. Here, however,
plaintiffs alleged that they were not afforded the requisite
privacy, and the district court found that the searches were
conducted “in an atmosphere of questionable privacy.”
18
warning to Harris that law enforcement interests in safety did not
justify the extreme intrusiveness of strip searches especially once
the plaintiffs were handcuffed and patted down.
In sum, Ybarra, Stewart and Watt dispel any doubt that the law
was clearly established by the night of the raid in April, 1995,
that strip searching individuals, about whom the police had no
individualized probable cause of weapon or drug possession, was
unlawful. This in turn precludes Harris’s entitlement to qualified
immunity.
E. Unlawful Detention
1. Whether Harris’s conduct violated the Fourth Amendment
The district court rejected Brumley’s and Jackson’s unlawful
detention claims at summary judgment and rejected Brown’s claim
after the bench trial, all on qualified immunity grounds. The
court concluded that despite its reservations about the length of
detention, under Michigan v. Summers it was not objectively
unreasonable for the officers to detain all those present in the
Club, including plaintiffs, until completion of the search.
Although Brown was not on the premises when the search began, the
court nonetheless also concluded that his detention was not
objectively unreasonable, inasmuch as Brown had voluntarily come
within the search perimeter by insisting on entering the Club,
despite warnings to leave the area.
On appeal, plaintiffs claim that the court erred in granting
19
summary judgment against Brumley and Jackson, and judgment against
Brown, on their detention claims. Plaintiffs contend that there
was no justifiable reason to detain plaintiffs after they were
strip searched and cleared of outstanding warrants. Their
continued, re-handcuffed detention, they argue, was not the least
intrusive method available to the police, and thus constituted
unlawful detention.36
In Michigan v. Summers, the Supreme Court reiterated the
approach by which a seizure must be analyzed.37 There is a “general
rule that every arrest, and every seizure having the essential
attributes of a formal arrest, is unreasonable unless it is
supported by probable cause.”38 This rule is tempered, however, by
the “ultimate standard of reasonableness embodied in the Fourth
Amendment.”39 Thus, some seizures, even though longer than
momentary, “constitute such limited intrusions on the personal
security of those detained and are justified by such substantial
law enforcement interests that they may be made on less than
probable cause, so long as police have an articulable basis for
36
Plaintiffs also assert that they were detained for three
hours after completion of the strip search. This assertion is
contradicted by the district court’s factual finding and record
testimony that they entire search of the Club lasted only about
three hours.
37
452 U.S. 692, 699-701 (1981).
38
Id. at 700.
39
Id. at 699-700.
20
suspecting criminal activity.”40 Such intrusions are “not confined
to the momentary, on-the-street detention accompanied by a frisk
for weapons,” as was involved in Terry v. Ohio.41
For determining whether a seizure falls into this exception
to the general rule, the Court set out a familiar balancing test,
which weighed the character of the intrusion against the character
of the justification.42 In Summers, the Court addressed whether
police who were about to execute a warrant to search a house acted
permissibly when they detained an individual who was emerging from
the house and who turned out to be the owner, while they conducted
the search. The Court found the intrusion substantially less
invasive than an arrest because (1) the police conducted the search
pursuant to a valid warrant, which already authorized a
substantial, and arguably more intrusive, invasion of privacy of
the detainee’s home; (2) the officers were unlikely to prolong the
detention to gain more information because they were primarily
seeking information from the search itself; and (3) the detention
was inside the detainee’s home instead of the police station,
thereby minimizing the public stigma associated with the event.43
In comparison, the character of the justification is measured
40
Id. at 699.
41
Id. at 700.
42
Id. at 700-01.
43
Id. at 701-02.
21
by both law enforcement interests and the nature of the articulable
facts supporting the detention.44 The Court identified three law
enforcement interests, all of which supported the detention at
issue: (1) preventing the flight of the suspect; (2) minimizing the
risk of harm to the police; and (3) facilitating the orderly
completion of the search by having the occupant of the premises
present.45 Furthermore, the existence of the valid search warrant,
issued by a neutral magistrate to search a home for criminal
activity, established probable cause that someone in the home was
committing a crime, which in turn provided justification for
detaining the home’s occupant.46 The Court concluded:
If the evidence that a citizen’s residence is harboring
contraband is sufficient to persuade a judicial officer
that an invasion of the citizen’s privacy is justified,
it is constitutionally reasonable to require that citizen
to remain while officers of the law execute a valid
warrant to search his home. Thus, for Fourth Amendment
purposes, we hold that a warrant to search for contraband
founded on probable cause implicitly carries with it the
limited authority to detain the occupants of the premises
while a proper search is conducted.47
In Heitschmidt v. City of Houston, we limited Summers to its
facts. We concluded that Summers only holds that “police have
limited authority to detain the occupant of a house without
probable cause while the premises is searched, when the detention
44
Id. at 702.
45
Id. at 702-03.
46
Id. at 703-04.
47
Id. at 704-05.
22
is neither prolonged nor unduly intrusive, and when police are
executing a validly executed search warrant for contraband.”48
Heitschmidt involved a police search of a house in which the
occupant, Heitschmidt, had little known connection at the time of
the search to the criminal activity for which the search warrant
was procured.49 Although the police had a warrant to search the
house, we reasoned that the intrusiveness of the detention was
substantial because Heitschmidt was allegedly handcuffed on the
street, pushed into the trunk of a car, and then detained for over
four hours without a bathroom break.50 In comparison, we found the
justifications for detention unpersuasive, because there was little
evidence Heitschmidt would flee, or that such restraint was
required for police protection.51 We reasoned further that a search
warrant is a weaker basis for detention when police know the
occupant’s identity and have no reasonable basis for suspecting
that that person is engaged in criminal activity.52 Finally, in
48
161 F.3d 834, 838 (5th Cir. 1998).
49
Id. at 838. Heitschmidt was living with Anne Fucaluro,
who operated a prostitution ring. Fucaluro was arrested and
police obtained a warrant to search the house, but Heitschmidt
was not a target of the investigation, nor did police have
suspicion before the search that he was involved in any wrong-
doing. Id. at 835.
50
Id. at 838.
51
Id. In particular, we noted that there was no evidence
that Heitschmidt was involved in the prostitution ring they were
investigating, or that he would use a weapon. Id.
52
Id. at 838-39.
23
contrast to Summers, we noted that the search warrant was for
evidence of the other house occupant’s prostitution ring, not
specifically for contraband.53 On the basis of this analysis, we
concluded that Heitschmidt had adequately alleged a violation of
his Fourth Amendment rights, and that the right alleged was clearly
established. We therefore held the officers’ conduct to be
objectively unreasonable.54
In this case, Harris and the County argue that the detention
was reasonable. The County avers that the plaintiffs were allowed
to move around and use the bathroom after their individual
searches, and that the three hour detention was reasonable because
there were 100 people on the premises. Defendants also argue that
the violent history of the Club, and Harris’s fear that those
released early would return with firearms to harm the officers,
justified the lengthy detention.
There is no question that the seizure of plaintiffs had many
of the essential attributes of an arrest. We therefore must
determine whether the law enforcement interests outweighed
plaintiffs’ interest against intrusion as articulated in Summers
and Heitschmidt. We begin by noting that some factual details of
this case distinguish it from our narrow interpretation of Summers
53
Id. The Summers Court had specifically stated that it
did “not decide whether the same result [i.e. permissible
detention] would be justified if the search warrant merely
authorized a search for evidence.” 452 U.S. at 705, n.20.
54
Heitschmidt, 161 F.3d at 839.
24
(1) Plaintiffs were customers at a public commercial establishment,
not occupants of a residence; and (2) plaintiffs were subjected to
unlawful, unduly intrusive strip searches during the warrant-
authorized search of the premises.55
Furthermore, when we apply the full Summers balancing test, we
confirm that the extended detention of plaintiffs was indeed
unlawful. The intrusiveness of the detention was much greater than
in Summers. Although Harris had a valid warrant to search the
Club, he went well beyond the limits of that warrant, conducting
highly intrusive strip searches of plaintiffs, about whom he had
neither individualized reasonable suspicion nor probable cause.
After failing to uncover contraband or weapons on the person of
plaintiffs, Harris nevertheless detained them and kept them
handcuffed for the remainder of the three-hour search. Because
this was a public establishment and not a private residence,
moreover, plaintiffs had no reason to remain at the Club during the
search.56 The illegal strip searches of plaintiffs and all other
55
Summers ultimately held that the authority to detain
occupants of premises was only permissible “while a proper search
is conducted.” 452 U.S. at 705 (emphasis added). Although Harris
had a valid warrant to search the premises, we have already
concluded that the strip search of plaintiffs was both improper
and illegal, and exceeded the scope of that warrant.
56
Because Brown’s nephew owned the Club, he apparently had
an interest in finding out what was happening at the Club. But
this interest did not necessarily include remaining at the Club
while the search was conducted. He had not been at the Club that
evening, and was brought inside after the police had begun the
raid. Thus, his possible reasons for being there are not the
same as the house owner in Summers or Heitschmidt.
25
occupants added to the prolongation of the detention and
demonstrated Harris’s intent to gain more information than he was
authorized to retrieve. Last, the public stigma associated with the
detention was greater than in either Summers or Heitschmidt,
because the detention lasted three hours in a public venue, not in
the obscurity of a residence.
On the opposite side of the scale are the law enforcement
interests and articulable facts supporting plaintiffs’ detention.
The proffered law enforcement interests in preventing flight and
maintaining safety here are questionable. Once the premises had
been secured and the officers had strip-searched and warrant-
checked the plaintiffs, uncovering no evidence to create probable
cause, there was no need to prevent their flight and no
identifiable fear that, if released, plaintiffs would return to
inflict harm.
In addition, there are no articulable facts that provide valid
support for the extended detention of plaintiffs. Although Harris
had a warrant to search the Club, and on that basis, had general,
non-specific probable cause that persons known or unknown might be
committing crimes in the Club, the warrant only permitted the
search of the premises and the five individuals named in the
affidavit. Because the warrant named specific individuals and did
not explicitly allow the more general search requested in Harris’s
affidavit, the judicially-prescribed justification for the extended
detention of plaintiffs was far less substantial than in Summers.
26
Once the police had patted down, strip searched, and conducted a
warrants check, moreover, the police surely had no articulable and
individualized suspicion to justify further detention of the
plaintiffs.
Neither Brumley’s arrest for disorderly conduct during the
period of the detention nor Brown’s arrest for interfering with the
duties of a public servant alters our conclusion that the extended
detention was unlawful. Brumley’s arrest for disorderly conduct
occurred after the search and after a period, subsequent to the
search, during which Brumley was handcuffed and forced to lie face-
down on the ground outside the Club. We cannot conclude that his
further detention was permissible on the basis of the arrest,
because such a conclusion would effectively allow the police to
create a potential threat to their safety through unconstitutional,
provocative conduct, and then rely on that manufactured threat to
perpetrate additional constitutional violations. Furthermore,
although Brown had shown a willingness to ignore police orders, he
had only sought admittance because of his family relationship to
the Club’s owner. Thus, his arrest had nothing to do with the
search of the Club. He was not present at the Club when the raid
began, and the officer who arrested him testified that he had no
probable cause to believe that Brown was carrying a weapon. In
fact, his “arrest” lasted only for the duration of the search and
he was never booked or incarcerated.
Harris and the County nevertheless persist in urging that the
27
detention of plaintiffs was necessary for an orderly completion of
the search of the Club, and was reasonable both because of the
number of persons present at the Club and because of Harris’s fear
that those released would return armed. We are aware of the
circumstances that the police believed they were actually facing
when they executed their search warrant. The history of violence
and drug use certainly gave Harris reason to worry about the safety
of his officers. The nature of the search and the number of
persons present also made the search of the Club factually distinct
from the average search of small groups or a single person in a
less volatile venue. Given the number of persons inside the Club,
detention of plaintiffs for as long as reasonably required for the
police to search the premises and to search and arrest the
individuals named in the warrant may have been permissible.57 What
occurred, however, was a detention that lasted much longer than
necessary specifically because of the pervasive and protracted
57
The ultimate standard of reasonableness in the Fourth
Amendment and the fact-specific character of these cases dissuade
us from attempting to decide exactly what would have been a
permissible period of detention had the police conducted a lawful
search. In other contexts, we have held that when an officer
pats down a person whom he reasonably suspects is carrying a
weapon, and finds nothing, the officer may not further detain the
individual, because his suspicion “has evaporated and no longer
justifies further detention.” United States v. Shabazz, 993 F.2d
431, 436 (5th Cir. 1993). Similarly, it is well-established in
this Circuit that a detention should end as soon as the
underlying justification for the stop is served, for instance by
running a computer check that comes back negative; any further
detention becomes an unreasonable seizure because it is
unsupported by probable cause. United States v. Dortch, 199
F.3d 193, 199 (5th Cir. 1999).
28
illegal strip searching that occurred. We cannot credit an
argument that such a lengthy detention, including the time that
elapsed both before and after plaintiffs were strip searched, was
justifiable simply because the police elected to strip search
scores of other Club customers.
In sum, the exception carved out in Summers, and shaped in
Heitschmidt, is inapplicable here. Because the law enforcement
interest proffered does not justify such lengthy, public intrusions
on plaintiffs, we hold the prolonged detention of plaintiffs to be
unlawful.
2. Whether the law was “clearly established”
Although we hold today that the prolonged detention of
plaintiffs was unlawful, we nonetheless agree with the district
court that qualified immunity shields Harris from liability. Even
though Summers does not sanction Harris’s conduct, neither did it
establish a clear rule warning defendants that such conduct was
illegal. The Court only hinted that “[a]lthough special
circumstances, or possibly a prolonged detention, might lead to a
different conclusion in an unusual case, we are persuaded that this
routine detention of residents of a house while it was being
searched for contraband pursuant to a valid warrant is not such a
case.”58 Furthermore, Heitschmidt, which clarifies our views
regarding these types of detentions, was not decided until after
58
Summers, 452 U.S. at 705, n.21.
29
Harris’s search of the Club.
In the instant case, there is no doubt that the illegal strip
search of plaintiffs corrupted the legality of their detention by
extending it unnecessarily. Still, the objective unreasonableness
of Harris’s conduct in ordering a strip search of plaintiffs does
not automatically make his conduct in unduly detaining plaintiffs
for the duration of the search objectively unreasonable in and of
itself. Whereas Ybarra established the clear rule that any full
search of plaintiffs required individualized probable cause,
Summers allows a seizure without probable cause when the proper
balance is struck between law enforcement and personal security
interests. Thus, Summers left the state of the law more ambiguous
as to what constituted an unlawful detention in a premises search
like the one here. In other words, under the law as it existed in
April, 1995, Harris had fair warning that his generalized law
enforcement safety interests did not justify strip searching
plaintiffs; the law was less clear about whether these same
interests were sufficient to permit detention of plaintiffs until
the completion of the otherwise unlawful search. We agree with the
district court’s grant of qualified immunity on plaintiffs’
unlawful detention claims.
F. Invasion of Privacy
The district court rejected plaintiffs’ invasion of privacy
claim on summary judgment because the then-current pleading before
30
the court, the original complaint, did not state this claim. The
magistrate judge had —— in his words —— “unfiled” plaintiffs’
amended complaint (which included the privacy claim) for failure to
follow procedural rules, and then rejected plaintiffs’ second
attempt to amend the complaint. Plaintiffs never objected to or
sought review of these rulings. On appeal, plaintiffs still do not
contest the magistrate judge’s decision to reject their amended
complaints, and instead argue that the Fourth Amendment claim
pleaded in the original complaint includes the claim against
invasion of privacy.
To the extent that plaintiffs’ claim of invasion of privacy
rests on the Fourth Amendment, it fails because it is redundant to
their illegal strip search claim. Even assuming that the
plaintiffs could establish that strip searches were not conducted
in the privacy normally required (now a contested issue of fact),
this transgression is inseparable from the illegal strip search
violation itself. By finding the strip searches themselves
unlawful, there is no need to address a particular aspect of
searches that is potentially unlawful as well.59 If, perhaps,
defendants were within their constitutional authority to strip
search plaintiffs to begin with, but impermissibly conducted the
59
See Moore v. Cornwell, 168 F.3d 234, 236-37 (5th Cir.
1999)(holding that a strip search of a male prisoner by a female
officer in the absence of emergency circumstances constitutes a
claim that “could entitle [plaintiff] to relief for a Fourth
Amendment violation.”).
31
strip search in a public area, then plaintiffs may have had a
privacy-oriented Fourth Amendment claim. But those are not the
facts before us today. To the extent plaintiffs purport to make a
separate invasion of privacy claim, it was not included in their
original complaint, and they do not appeal the rejection of their
attempts to amend that complaint. Thus, it is unnecessary for us
to address such a claim.
G. Use of Racial Epithets
The district court held that plaintiffs’ oral harassment claim
was insufficient because plaintiffs failed to make an equal
protection claim or even refer to the Fourteenth Amendment in their
pleadings. The court also concluded that even if plaintiffs had
adequately pleaded an equal protection claim, the law was not
clearly established that, in the instant context, racial slurs
alone are actionable under the Fourteenth Amendment. On appeal,
plaintiffs argue that the racial slurs allegedly used by the police
violate the Fourth Amendment, because the Fourth Amendment embraces
all elements of a search and seizure. To support their assertion
that oral racial harassment violates the Fourth Amendment, however,
plaintiffs rely on precedent prohibiting racial insults and
discrimination under the Fourteenth Amendment.60 Plaintiffs attempt
60
They cite Johnson v. Morel, which describes plaintiff’s
claim of oral racial harassment as an equal protection claim
under the Fourteenth Amendment. 876 F.2d 477, 478 (5th Cir.
1989).
32
to explain, with little justification, that although the
prohibition against oral harassment based on race occurred in the
context of the Equal Protection clause, the same prohibition is
part of the Fourth Amendment and thus applies to police conduct.
We agree with the district court that use of racial epithets
deserves our strongest condemnation. None would dispute that this
form of harassment is highly reprehensible, even more so if it
occurred in conjunction with the already invasive and humiliating
strip searches.
Nevertheless, as appalling as such behavior would be, here it
would only aggravate a seizure that we have already concluded was
unlawful. Thus, whether the use of racial epithets alone amounts
to a separate and independent constitutional violation under the
Fourth Amendment is a question we need not reach because it is not
before us today. We have impliedly held that racial epithets that
accompany harassment or a violation of established rights may
amount to a separate equal protection violation.61 In this case,
however, for whatever reason, plaintiffs chose not to make an equal
protection claim.
H. Municipal Liability
At the summary judgment stage, the district court concluded
61
See Williams v. Bramer, 180 F.3d 699, 706 (5th Cir. 1999)
(holding that “an officer’s use of a racial epithet, without
harassment or some other conduct that deprives the victim of
established rights, does not amount to an equal protection
violation”).
33
that Harris’s strip search and detention of plaintiffs was the
official policy, practice and custom of the County because Harris
was the final policymaker in law enforcement. After trial, the
court also concluded that (1) plaintiffs suffered an injury as a
result of this policy, and (2) the policy was adopted with “callous
and deliberate indifference to the constitutional rights of those
affected.” On appeal, plaintiffs maintain that, as Harris was the
official policymaker for the County, his role makes the County
liable for the strip search and detention that Harris initiated and
pursued with respect to plaintiffs.
The law is well-established that a municipality such as the
County can be held liable for its policies and customs that
engender constitutional deprivation, but that it cannot be held
liable for the actions of its non-policy-making employees under a
theory of respondeat superior.62 In Webster v. City of Houston, we
concluded that an official policy consists of, among other things,
“[a] policy statement, ordinance, regulation, or decision that is
officially adopted and promulgated by the municipality’s lawmaking
officers or by an official to whom the lawmakers have delegated
policy-making authority.”63 We have also held that sheriffs in
62
Colle v. Brazos County, 981 F.2d 237, 244 (5th Cir. 1993)
(citing Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658
(1978) and Oklahoma City v. Tuttle, 471 U.S. 808, 817-18 (1985)).
63
735 F.2d 838, 841 (5th Cir. 1984) (en banc).
34
64
Texas are final policymakers in the area of law enforcement.
Therefore, it is clear that the County can be held liable for
Harris’s intentional conduct, to the extent it constitutes the
“moving force” behind the alleged injury.65
Harris testified that he is the final policymaker for law
enforcement matters in the County. Harris and others have
testified as well that both the strip search and lengthy detention
of the plaintiffs were conducted according to the Sheriff
Department’s unwritten policy for executing “hazardous” warrants.
As a result, Harris’s actions as policymaker were undeniably the
moving force behind, and the direct cause of, the violation of
plaintiffs’ constitutional rights, thereby establishing the
County’s municipal liability.66 Finally, we note that the County
64
Colle, 981 F.2d at 244 (citing Turner v. Upton County,
915 F.2d 133, 136 (5th Cir. 1990)).
65
See Bryan County v. Brown, 520 U.S. 397, 404 (1997).
66
See id. 404-05 (1997) (“the conclusion that the action
taken or directed by the municipality or its authorized
decisionmaker itself violates federal law will also determine
that the municipal action was the moving force behind the injury
of which the plaintiff complains”). The district court did not
need to determine whether Harris’s conduct also amounted to
deliberate indifference, because that element must be shown only
when there is a claim that the municipality’s facially lawful
action caused an employee to inflict the injury, not when the
municipality (through its policymaker) has directly caused the
injury, as has occurred here. Thus, it is unnecessary to examine
the deliberate indifference issue to establish liability in this
instance. See id. at 406-07 (reiterating that a “plaintiff
seeking to establish municipal liability on the theory that a
facially lawful municipal action has led an employee to violate a
plaintiff’s rights must demonstrate that the municipal action was
taken with ‘deliberate indifference’ as to its known or obvious
35
has not expressly contested its municipal liability, but rather
argued only that it is not liable for actions that do not amount to
constitutional violations, a truism that none contests.
I. Damages
The district court rejected plaintiffs’ request for
compensatory damages because it found that plaintiffs had failed to
prove a specific and discernable injury to their respective
emotional states. Nevertheless, the court awarded plaintiffs
nominal damages of $100 per plaintiff, and punitive damages of
$15,000 per plaintiff against Harris in his individual capacity.
Finding that Harris’s conduct “simply cannot be tolerated in a
civilized society,” the court concluded that punitive damages were
an appropriate punishment.
On appeal, Harris argues that: (1) nominal damages should have
been one dollar; (2) punitive damages were inappropriate because
Harris lacked evil intent or reckless and callous indifference when
carrying out the strip search and detention; and (3) even if
punitive damages were permissible, the district court’s award was
excessive. Plaintiffs do not contest the rejection of their
compensatory damages claim.
1. Nominal Damages
The law is well-established in this Circuit that plaintiffs
may recover nominal damages when their constitutional rights have
consequences”) (citation omitted).
36
been violated but they are unable to prove actual injury.67 The
district court relied on the definition of nominal damages from
Black’s Law Dictionary which equates such damages with a “trifling
sum.”68 The court stated that it considered $100 to be nominal
“[g]iven the value of today’s dollar.”
In Cary v. Piphus, the Supreme Court recognized the ability of
courts to award “a nominal sum of money” when a violation of one’s
rights does not result in actual injury, and awarded nominal
damages of one dollar.69 The Court did not indicate, however, that
in 1978 one dollar was the outer limit of such damages. Although
$100 is obviously greater than one dollar, this amount is certainly
not out of line with nominal damages that we have awarded in the
commercial state law context.70 We agree with the district court
(and regret), moreover, that today $100 is an insignificant sum,
and thus see no need to disturb that court’s conclusion. Further,
the court’s assessment of the situation is not clearly erroneous,
much less an abuse of discretion.
67
Louisiana Acorn Fair Housing v. LeBlanc, 211 F.3d 298,
302 (5th Cir. 2000) (citing Ryland v. Shapiro, 708 F.2d 967, 976
(5th Cir. 1983)).
68
Black’s Law Dictionary, 396 (7th ed. 1999).
69
435 U.S. 247, 266-67 (1978).
70
In the commercial context, we have awarded $2000 in
nominal damages and cited as guidance state courts that have
awarded between $500 and $5000 in nominal damages for commercial
disputes. See Taquino v. Teledyne Monarch Rubber, 893 F.2d
1488, 1491 (5th Cir. 1990).
37
2. Punitive Damages
Just as nominal damages are allowed without proof of injury,
“a punitive award may stand in the absence of actual damages where
there has been a constitutional violation.”71 But punitive damages
may be awarded only when the defendant’s conduct “is ‘motivated by
evil intent’ or demonstrates ‘reckless or callous indifference’ to
a person’s constitutional rights.”72 The latter standard requires
“recklessness in its subjective form,” i.e. “a ‘subjective
consciousness’ of a risk of injury or illegality and a ‘criminal
indifference to civil obligations.’”73 The district court held that
Harris demonstrated a reckless indifference; Harris insists that he
acted in good faith.
The record provides more than enough evidence from which to
conclude that Harris acted with reckless indifference toward the
constitutional rights of plaintiffs. Although Harris told the
court that he believed that he had probable cause to suspect that
everyone in the Club had some connection to drugs, it was well-
established at the time of this search that Harris needed
individualized probable cause to search each of the plaintiffs and
the ninety-plus other individuals at the Club who were not named in
71
LeBlanc, 211 F.3d at 303.
72
Sockwell v. Phelps, 20 F.3d 187, 192 (5th Cir. 1994)
(citing Smith v. Wade, 461 U.S. 30, 56 (1983)) (emphasis added).
73
Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 536 (1999)
(citing Smith, 461 U.S. at 37, n.6, 41).
38
the warrant. Not only did Harris lack particularized probable
cause when entering the Club, none materialized vis-à-vis the
plaintiffs after a patdown. Without any probable cause or
articulable reasonable suspicion after a patdown, Harris simply had
no legal authority to conduct a strip search. Moreover, the
magistrate who issued the search warrant gave Harris only enough
authority to search the premises and the five individuals named in
the warrant, not all others in the Club as requested in Harris’s
affidavit. We conclude that ignoring the limited scope of search
authorized by the warrant, and disregarding the Fourth Amendment
rights of plaintiffs as long-established by the Supreme Court and
recognized by this Court,74 constitutes reckless indifference to
such rights. In addition, in light of the testimony detailing the
atmosphere of questionable privacy during the strip searches and
the use of racial slurs, we cannot fault the district court’s
ruling that Harris was not acting in legal good faith. Even though
Harris is no longer Sheriff, punitive damages not only punish him
for his conduct; they serve as instructive warnings to his
successors.
Harris nevertheless contends that, even if punitive damages
are appropriate, the damages awarded by the district court were
excessive. To determine whether punitive damages are excessive,
74
See United States v. Harvey, 897 F.2d 1300, 1304 (5th
Cir. 1990)(recognizing and applying Ybarra, but distinguishing
the facts of the case from its holding).
39
the Supreme Court requires consideration of three factors (1) the
degree of reprehensibility of the defendant’s conduct, which
receives the heaviest weight; (2) the disparity between the harm
suffered (compensatory damages) and the punitive damages award; and
(3) the possible criminal and civil sanctions for comparable
misconduct.75
As outlined above, the degree of reprehensibility of Harris’s
conduct is high because he perpetrated extremely invasive searches
on innocent individuals without specific probable cause or
reasonable suspicion, in contravention of the warrant itself and
clear precedent. Second, we agree with the district court that any
punitive damages-to-compensatory damages “ratio analysis” cannot be
applied effectively in cases where only nominal damages have been
awarded, such as the § 1983 suit before us. The Supreme Court has
counseled that this factor does not impose a mathematical formula
for constitutional proportionality, but instead only embodies “a
general concern of reasonableness.”76 Because actions seeking
75
BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575, 580, 583
(1996).
76
Id. at 582-83 (citation and internal quotation marked
omitted). The Supreme Court’s recent revisit of the Gore factors
in State Farm Mutual Automobile Insurance Company v. Campbell
does not alter our conclusion here. __ U.S. __, 123 S.Ct. 1513
(2003). Campbell reviewed jury-awarded compensatory damages of
$1 million and punitive damages of $145 million; and although the
Court stated that extreme ratios should be presumptively invalid,
it discussed the constitutionality of punitive damages vis-a-vis
compensatory damages awarded by juries. See id. at 1521, 1524.
As the instant case concerns the ratio between punitive and
nominal damages, Campbell’s discussion of the proper ratio
40
vindication of constitutional rights are more likely to result only
in nominal damages, strict proportionality would defeat the ability
to award punitive damages at all.77 Based on our review of the case
law and our consideration of the evidence weighed by the district
court, we conclude that $15,000 per plaintiff is not unreasonable
in light of the violations that took place.78
J. Declaratory Relief
Finally, Harris and the County contend that they did not
violate Article I, section 9 of the Texas Constitution, which
between punitive and compensatory damages is inapposite to our
consideration today.
77
The third factor, what comparable criminal and civil
sanctions would have been for Harris, is not easily applicable to
this type of constitutional violation, because there is no
readily identifiable law imposing civil or criminal penalties on
law enforcement officers for such violations.
78
Our research has revealed relatively few other cases
addressing the amount of punitive damages awarded in the context
of civil rights actions. The Second Circuit concluded that
$10,000 in punitive damages when only nominal damages were
awarded “approaches the limits of what we would deem consistent
with constitutional constraints.” Provost v. City of Newburgh,
262 F.3d 146, 164 (2nd Cir. 2001). In a case concerning the
illegal strip search of a prisoner, the Seventh Circuit reduced a
jury-decided punitive damages award of $15,000 to $6,000.
McKinley v. Trattles, 732 F.2d 1320, 1327-28 (7th Cir. 1984).
For the illegal strip search of high school students, the New
Mexico Supreme Court approved punitive damages awards of $62,500
to one plaintiff and $37,500 to the other plaintiff, but also
awarded compensatory damages of $50,000 to each. Kennedy v.
Dexter Consol. Sch., 10 P.3d 115, 118, 125-126 (N.M. 2000).
Although $15,000 may be slightly higher in this case than in
cases decided by other circuits, two factors convince us that the
amount is nonetheless reasonable: (1) our review of the evidence
before the district court regarding the type of conduct that
occurred, and (2) our necessarily unscientific balancing of the
factors laid out in Gore.
41
mirrors the language of the Fourth Amendment. Both parties
acknowledge that this constitutional provision is interpreted as
congruent with Fourth Amendment jurisprudence. Indeed, the Texas
Court of Appeals has held that “our article I, section 9 provides
at least as much protection as the Fourth Amendment of the United
States Constitution.”79 Thus, based on our earlier conclusions that
Harris and the County violated the Fourth Amendment, we also
conclude that the declaratory relief granted to plaintiffs is
appropriate.
III. CONCLUSION
For the foregoing reasons, the judgments of the district court
are, in all respects,
AFFIRMED.
79
State v. Wagner, 821 S.W.2d 288, 291 (Tex. Crim. App.
1991).
42