Norwood v. Bain

WILKINS, Circuit Judge,

concurring in part and dissenting in part:

The majority correctly recognizes that, based on the information available to law enforcement, the checkpoint stop and videotaping of Plaintiffs and their, drivers licenses by Spartanburg, South Carolina police officers 1 as Plaintiffs entered a fairgrounds for a charity motorcycle rally to benefit the Red Cross was not violative of the Fourth Amendment. However, the majority erroneously determines that the physical search of Plaintiffs’ unworn clothing and motorcycle saddlebags violated their rights under the Fourth Amendment. To the contrary, Spar-tanburg’s interest in protecting public safety by preventing members of warring rival motorcycle gangs from carrying concealed weapons into a crowded public event, the extent to which the search reasonably was thought to advance that interest, and the modest degree of intrusion upon those individuals who were subject to the search clearly weigh in favor of a conclusion that the search was reasonable. Accordingly, I would hold that the search did not transgress constitutional bounds. Furthermore, even if the majority were correct that a portion of the search was unconstitutional, Chief of Police Bain nevertheless would be entitled to qualified immunity because it was not clearly established in September' 1994, when the rally took place, that this search was unreasonable.

I.

The guarantee of privacy and security from unreasonable governmental intrusion provided by the Fourth Amendment long has been recognized as fundamental to the maintenance of a free society. See Camara v. Municipal Ct. of the City & County of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730-31, 18 L.Ed.2d 930 (1967). The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const, amend. IV.2 Simply put, this amendment guarantees that governmental intrusions into privacy by means of searches or seizures will be reasonable. Typically, this reasonableness requirement acts as a constraint on governmental authority to undertake a search or seizure in the absence of individualized suspicion. See Chandler v. Miller, 520 U.S. 305, -, 117 S.Ct. 1295, 1298, 137 L.Ed.2d 513 (1997). In addition, a search performed without a warrant is unreasonable per se unless it fits within a narrowly defined exception to the warrant requirement. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973); United States v. Lattimore, 87 F.3d 647, 650 (4th Cir.1996) (en banp). Nevertheless, “neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.” National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 1390, 103 *860L.Ed.2d 685 (1989). Instead, a determination of reasonableness compels a weighing of the governmental interest prompting the invasion; the effectiveness of the intrusion, ie., the degree to which the intrusion reasonably is thought to advance the governmental interest; and the magnitude of the intrusion upon the individuals affected, from both a subjective and objective standpoint. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 455, 110 S.Ct. 2481, 2487-88, 110 L.Ed.2d 412 (1990); id. at 451-55, 110 S.Ct. at 2485-88 (applying test); Von Raab, 489 U.S. at 665, 109 S.Ct. at 1390-91 (explaining that when “a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context”). Compare United States v. Davis, 482 F.2d 893, 908-12 (9th Cir.1973) (explaining that an entry search at an airport was not unconstitutional despite a'lack of individualized suspicion or warrant, because a very real chance of danger to the public existed -from allowing concealed weapons or explosives onto a commercial airliner, the search method was effective, the degree of intrusion was the least possible to accomplish the goal, and all those entering were subjected to the same treatment), with Wheaton v. Hagan, 435 F.Supp.1134, 1145-46 (M.D.N.C.1977) (holding pat-down searches and searches of purses and clothing for drugs and alcohol by officers stationed at the door of a coliseum were not constitutional because there was little public necessity and the degree of intrusion was high and was exacerbated by the fact that officials exercised discretion concerning whom to search). Here, the question is whether consideration of Spartanburg’s interest in public safety, the effectiveness of the search, and the intrusion experienced by the individuals who entered the rally on motorcycles and whose unworn clothing and motorcycle saddlebags were searched weighs in favor of a conclusion that the search was violative of the Fourth Amendment.

A.

The first factor to be considered is the governmental need. “[T]he proffered special need ... must be substantial — important enough to override the individual’s acknowledged privacy interest, [and] sufficiently vital to suppress the Fourth Amendment’s normal requirement of individualized suspicion.” Chandler, 520 U.S. at ——, 117 S.Ct. at 1303. The hazard giving rise to the alleged special need must be a concrete danger, not merely a hypothetical one. See id. Although evidence that the problem has manifested itself previously is not always necessary to demonstrate the concreteness of the potential harm, such evidence bolsters an argument that a harm is sufficiently tangible to give rise to a special need. See id. Compare Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 606-08, 109 S.Ct. 1402, 1407-08, 103 L.Ed.2d 639 (1989) (holding that a concrete special need existed for random drug testing in part because of evidence of drug and alcohol abuse by railroad employees), and Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654-65, 115 S.Ct. 2386, 2391-97, 132 L.Ed.2d 564 (1995) (explaining that a sharp rise in drug use by student athletes supported school officials’ assertion that random drug testing without individualized suspicion was warranted), with Chandler, 520 U.S. at -, 117 S.Ct. at 1303 (noting that Georgia failed to demonstrate concrete harm to support drug testing of candidates for public office in absence of evidence that Georgia had a particular problem with state officeholders abusing drugs).

Although the majority attempts to downplay the amount and reliability of the information Spartanburg possessed, a significant quantity of information indicated a very real possibility of an extremely dangerous situation — an armed confrontation between large numbers of violent, rival motorcycle gang members at a public event. First, reserve officer Carl McKinney learned from a coworker who had been involved with a motorcycle gang that a confrontation between the Hell’s Angels and Pagans was planned during the rally and that because the gang *861members intended to “drop their colors,”3 law enforcement officers would not be able to identify them. McKinney passed this information along to his superiors. Second, Lieutenant Ron Cook, an expert on motorcycle gangs employed by the South Carolina Law Enforcement Division (SLED), advised Spar-tanburg that the Hell’s Angels and Pagans were engaged in an ongoing conflict for territorial control of South Carolina. He further advised that this turf struggle had led to at least two violent public altercations among gang members during the past several months, one in South Carolina and one in New Jersey. According to Cook, the Pagans had threatened retribution following these incidents. Cook further informed Spartan-burg that motorcycle gang members often carry weapons concealed in their motorcycle saddlebags.4 Third, one of the chairpersons of the event requested that Spartanburg officers investigate an individual whom the chair had learned was planning to attend the event. This investigation disclosed that the individual was a known member and organizer of the Hell’s Angels. The chairperson later informed Spartanburg that this individual had expressed an interest in the rally, but would not commit concerning whether the Hell’s Angels would attend. Fourth, in the weeks prior to the rally, Cook learned from a Virginia State Police intelligence report that the Pagans had been directed by their leadership to make a mandatory ride to an undisclosed location on the day prior to the Spartanburg rally. Further, Cook received information that the Hell’s Angels would be attending a rally in Cherokee, North Carolina scheduled for the same weekend as the Spartanburg rally and that the group planned to attend the Spartanburg rally after leaving North Carolina. Finally, on the evening before the event, one of the chairpersons of the rally telephoned a Spar-tanburg official to advise him that as many as 3,000 to 4,000 bikers from the Cherokee rally were going to converge on the South Carolina event and to express concerns regarding security. Under these circumstances, it cannot be seriously disputed that the governmental interest at stake was an extremely grave and genuine matter of public safety.

The majority argues that because the nature of the harm was local and episodic, public interest in the searches was far less than that supporting blanket searches at airports and courthouses pursuant,to nationwide regulations. Of course the majority is correct that the type of harm presented here was different in scope from that justifying searches at airports and courthouses, but so was the scope of the search. I do not suggest that the danger faced by Spartanburg would warrant checkpoint searches at all motorcycle rallies nationwide or at all large public events conducted in Spartanburg. Because there was no attempt to justify a search of nationwide scope, it is mystifying why the majority believes it necessary to focus on whether a special need that was national in extent was present. Cf. Vernonia, Sch. Dist. 47J, 515 U.S. at 648-50, 654-65, 115 S.Ct. at 2388-89, 2391-97 (applying balancing test to hold that a local drug testing program for student athletes was constitutional despite lack of warrant or individualized suspicion).

The majority also faults Spartanburg for implementing the checkpoint search based on information supplied to law enforcement officers rather than evidence presented to a legislative or administrative body and memorialized in public records. But, a rule that a special need cannot support a search absent a harm established in public records is artificial and unworkable. Undoubtedly, a war-rantless search designed to avert great harm, which could be avoided only by an extremely unintrusive type of search applied in a very evenhanded manner would be reasonable and thus would not violate the Fourth Amendment simply because it was not authorized by legislation or a regulatory scheme. For example, suppose law enforcement officials received reliable information that two individu*862als were transporting a large quantity of explosives by vehicle into a specified city by a specified route in order to blow up a museum where a popular, but controversial, exhibit was on public display. Obviously, under these facts a massive danger to public safety exists that could be averted only by intercepting the would-be bombers. Balancing the severity of the harm, the effectiveness of the proposed response, and the minimal intrusion to the individuals subjected to a search leads to one conclusion. Law enforcement officials could properly stop all motorists traveling into- the area on the identified route and conduct a cursory search of the interior and trunk of the vehicles. Such action would be reasonable and within constitutional bounds.

Under the circumstances presented here, a special governmental interest existed in protecting the public. Spartanburg possessed concrete information that armed, rival motorcycle gangs, the members of which could not be identified, planned to attend the rally. And, the potential for a violent eruption appeared real in light of past altercations between the two groups. Given the large number of participants expected for the rally and the potential for a massive, violent confrontation, Spartanburg clearly possessed a genuine and substantial need to safeguard the public.

B.

The second factor, the effectiveness of the search, focuses on “the degree to which [it] advances the public interest.” Sitz, 496 U.S. at 453, 110 S.Ct. at 2487 (internal quotation marks omitted)'. Compare Chandler, 520 U.S. at-, 117 S.Ct. at 1304 (noting that “Georgia’s certification requirement [was] not well designed to identify candidates who violate antidrug laws” because the testing date was' known in advance so that abusers could refrain from using drugs prior to the test), with Vernonia Sch. Dist. 47J, 515 U.S. at 663, 115 S.Ct. at 2395-96 (explaining that random drug testing of student athletes was an effective means of addressing a drug abuse problem in the student body as a whole because the problem was caused at least in part by students’ imitation of the student athletes’ drug use). In analyzing this factor, however, we recognize that our review must leave “the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger” to “the governmental officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers.” Sitz, 496 U.S. at 453-54, 110 S.Ct. at 2487.

There can be little question that searching Plaintiffs’ unworn clothing and motorcycle saddlebags was an effective means of preventing the type of weapons motorcycle gang members were purportedly carrying from finding their way into the public fairgrounds. Indeed, no other law enforcement effort would have worked as well. Because the metal detectors the officers first attempted to employ in order to avoid individualized searches were ineffective, an effective method of search less intrusive than the one employed was not possible. And, without the checkpoint search, Spartanburg would not have obtained individualized suspicion that specified individuals possessed weapons until the gang members already had entered into the fairgrounds, become a part of the large crowd, and brandished or used their weapons. By that time, the threat of a violent confrontation would have been fully realized. See Davis, 482 F.2d at 910 (noting in support of a conclusion that airport checkpoint searches are constitutional that “[l]ittle can be done to balk the malefactor after [weapons or explosives are] successfully smuggled aboard[ a commercial aircraft], and as yet there is no foolproof method of confining the search to the few who are potential hijackers”).

Furthermore, the fact that individuals were permitted to walk into the fairgrounds without being searched provided that they parked their motorcycles outside the fairgrounds does not mean that the search method employed was ineffective.5 Cf. McMorris v. Alioto, 567 F.2d 897, 899 (9th Cir.1978) *863(search must be no more intrusive than necessary to be reasonably effective). The information available to Spartanburg indicated that motorcycle gang members not infrequently carried weapons in their motorcycle saddlebags. Thus, it was reasonable for Spartanburg to conclude that the likelihood for the transportation of weapons into the fairgrounds was less for individuals who parked their motorcycles outside and walked to the rally. And, it is important to realize that these weapons could not have been concealed easily in the tight T-shirts and blue jeans — or less — worn by the majority of the bikers on that very hot September afternoon. Additionally, even if reasonable law enforcement officials could have concluded that a search of the individuals entering the fairground on foot would have been more thorough, it is not within our province to question the decisions of officials concerning a choice of law enforcement techniques among reasonable alternatives.

C.

Finally, the degree of intrusion, both objective and subjective, suffered by individuals submitting to the search indicates that the checkpoint search of Plaintiffs’ unworn clothing and motorcycle saddlebags was constitutional. The objective intrusion suffered by an individual is “measured by the duration of the seizure and the intensity of the investigation.” Sitz, 496 U.S. at 452, 110 S.Ct. at 2486. The subjective level of intrusion measures how the method chosen minimizes or enhances fear and surprise on the part of those searched or detained. See id. Here, the objective intrusion experienced by Plaintiffs was certainly more than minimal. While the searches were very brief, the intensity of a visual search of the interior of private belongings undoubtedly was objectively intrusive. However, the intrusiveness of the search was lessened by the fact that the entrants to the fairgrounds were informed that they would be subjected to the search only if they wished to enter on motorcycle and would be permitted to enter without a search if they chose to park their motorcycles and enter as pedestrians. All of those who entered the fairgrounds on motorcycles with unworn clothing or saddlebags were subjected to the search. See id. (explaining that a checkpoint search where all entrants are searched is considerably less intrusive than a search by roving patrols that exercise discretion over whom to stop and search); see also Turner v. Dammon, 848 F.2d 440, 446-47 (4th Cir.1988) (explaining that “[t]he cases upholding warrantless administrative searches clearly establish that these rules require certainty, regularity, and neutrality in the conduct of the searches”). Accordingly, the search was no more intrusive than that required to protect against the harm Spartanburg sought to avoid. See McMorris, 567 F.2d at 899; see also Wilkinson v. Forst, 832 F.2d 1330, 1340-41 (2d Cir.1987) (holding that pat-down searches for weapons of all entrants into a Ku Klux Klan rally were excessive, that future searches by magnetometer were permissible, and “that more intrusive measures might be justified by future events”).

D.

In sum, a genuine and substantial threat to public safety existed that created a special need beyond that of the traditional law enforcement goals of apprehension and detection of criminal conduct; the method chosen to address that need effectively advanced the public interest in a manner that could not have been equaled by a scheme requiring individualized suspicion or a warrant; and the intrusion suffered by those individuals who submitted to the search, while not insignificant, was no greater than necessary to achieve the desired goal. Therefore, a balancing of these factors clearly demonstrates that the search conducted was reasonable and thus not violative of the Fourth Amendment.6

*864II.

Even if the majority were correct that Spartanburg deprived Plaintiffs of their Fourth Amendment rights by searching their unworn clothing and motorcycle saddlebags at the entrance checkpoint, the question remains whether Chief of Police Bain should be held personally liable for damages. Government officials performing discretionary functions are entitled to qualified immunity from liability for civil damages to the extent that “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” E.g., Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). It protects law enforcement officers' from “bad guesses in gray areas” and ensures that they are liable only “for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992): Thus, although the exact conduct at issue need not have been held to be unlawful in order for the law governing an officer’s actions to be clearly established, the existing authority must be such that the unlawfulness of the conduct is manifest. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987); Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.1992) (explaining that “[t]he fact that an exact right allegedly violated has not earlier been specifically recognized by any court does not prevent a determination that it was nevertheless ‘clearly established’ for .qualified immunity purposes” and that “ ‘[cjlearly established’ in this context includes not only already specifically adjudicated rights, but those manifestly included within more general applications of the core constitutional principle invoked”). As we recently reiterated, “[t]he law is clearly established such that an officer’s conduct transgresses a bright line when the law has been authoritatively decided by the Supreme Court, the appropriate United States Court of Appeals, or the highest court of the state.” Wilson v. Layne, 141 F.3d 111, 114 (4th Cir.1998) (en banc) (internal quotation marks omitted).

In analyzing an appeal from the rejection of a qualified immunity defense, the first task of the court is to identify the specific right that the plaintiff asserts was infringed by the challenged conduct. See Taylor v. Waters, 81 F.3d 429, 433 (4th Cir.1996). The court then must consider whether, at the time of the claimed violation, that right was clearly established and “ “whether a reasonable person in the official’s position would have known that his conduct would violate that right.’ ” Id. (quoting Gordon v. Kidd, 971 F.2d 1087, 1093 (4th Cir.1992)). Review by this court of the denial of summary judgment based on qualified immunity is de novo. See Pritchett, 973 F.2d at 313.

The constitutional right that Plaintiffs claim was violated, defined at the appropriate level of specificity, is their Fourth Amendment right to avoid unreasonable searches or seizures resulting from the individualized checkpoint search of their unworn clothing *865and motorcycle saddlebags for the purpose of detecting weapons when reliable information indicated that a real danger existed that armed members of warring motorcycle gangs planned to attend the rally. The qualified immunity question presented, then, is whether in September 1994 this right was clearly established and whether a reasonable officer would have understood that the conduct at issue violated it.

As the majority recognizes, when this incident took place, there was no clear law from the Supreme Court, this court, or the South Carolina Supreme Court addressing whether officers violate the Fourth Amendment by conducting an individualized search at a checkpoint — without individualized suspicion or a warrant — when a grave matter of public interest is at stake, an effective means of preventing that harm is available, and the searching technique employed is no more intrusive than necessary to prevent the harm feared. The Supreme Court had announced, however, that this balancing test was the appropriate one to assess the reasonableness of a search conducted without individualized suspicion or a warrant. Under this authority, a reasonable law enforcement officer may well have concluded that this type of search was constitutional as analogous to administrative searches at airports or courthouses. In my opinion, at most the question of whether the constitution was violated by the officers’ conduct was a matter over which reasonable jurists arguably could disagree. And, if the answer to this question was not clearly established, a reasonable officer in Bain’s position could not have known what it was. See Wilkinson, 832 F.2d at 1342 (holding officers were entitled to qualified immunity on similar facts).

III.

In sum, I would hold that neither portion of the checkpoint search — the videotaping of the individuals who entered the fairgrounds by motorcycle and their driver’s licenses nor the individualized search of Plaintiffs’ unworn clothing and motorcycle saddlebags — violated the Fourth Amendment. In addition, even if the majority were correct that the individualized search violated constitutional bounds, Bain would be entitled to qualified immunity.

. The Fourth Amendment is enforceable against the states through the Fourteenth Amendment. See Ker v. California, 374 U.S. 23, 30, 83 S.Ct. 1623, 1628, 10 L.Ed.2d 726 (1963).

. "Colors” are insignia worn to identify membership in a particular motorcycle gang. When members of a motorcycle gang "drop their colors,” these insignia are not worn so that identification of the gang member is more difficult.

. Cook indicated that the weapons likely to be carried were ball peen hammers with leather straps, large wrenches, and guns.

. It is worth noting that Cook was stationed outside the pedestrian entrance gate to attempt to identify any notorious gang members entering on foot.

. The decision of the Supreme Court in United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975), and the decision of this court in United States v. Gallagher, 557 F.2d 1041 (4th Cir.1977) (per curiam), are not to the contrary. In Ortiz, in addressing whether a checkpoint search of vehicles for illegal aliens that was not conducted at the border or its functional equivalent was constitutional, the Supreme Court remarked that "at traffic checkpoints removed from the border and its functional equivalents, officers may not search private *864vehicles without consent or probable cause." Ortiz, 422 U.S. at 896-97, 95 S.Ct. at 2589. In Gallagher, we echoed this concern stating:

[There is a] long-recognized distinction between border searches and those taking place in interior locations. "Travellers may be ... stopped in crossing an international boundary because of national self protection...." "(S]earches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well." At points other than the border or its functional equivalent, however, officers may not search private vehicles absent consent or probable cause.

Gallagher, 557 F.2d at 1043 (citations omitted) (second & fourth alterations in original).

Despite their broad language, Ortiz and Gallagher can be distinguished. First, the Ortiz Court did not apply the Sitz balancing test. Second, an application of that test to the facts of Ortiz leads to the conclusion that the searches at issue there were violative of the Constitution. Finally, and most importantly, Ortiz addressed the situation presented when law enforcement officers attempt to justify a traffic checkpoint search by reference to illegal alien interdiction efforts. Because Ortiz was addressing only a checkpoint to prevent illegal immigration, it does not address whether there could be other potential harms that might justify checkpoint searches of automobiles for other reasons. Additionally, in Gallagher, this court held that the search at issue was a border search, so its statement concerning searches away from the border was dictum.