concurring in part and dissenting in part:
I concur with the majority view that plaintiff LeRoy does not establish any “substantive due process” violation. I also concur that the penalties imposed upon LeRoy by defendant Board for threats and profanity have not been shown to violate constitutional equal protection requirements.
Respectfully, I cannot agree and, therefore, dissent to the qualified immunity issue with regard to the search at issue.
On April 27, 1987, Steven Leroy, plaintiff, drove a pick-up truck on the grounds of the Maywood Park Racetrack. Plaintiffs truck was searched pursuant to Illinois Racing Board (“IRB”) Rule 25.19.1 A syringe and a needle were found in the plaintiffs truck. The syringe was “clogged,” and defendants admit there was no evidence that the needle was capable of being used for injection of any chemical substance into any horse. In addition, defendants admit that plaintiffs horses were tested and found not to have been administered with any prohibited substance or medication. Nevertheless, plaintiff and his horses were excluded by defendant Stewards.2 The Stewards also suspended plaintiff for ninety days from all racing tracks licensed by the IRB.
A federal district court in July, 1985, considered the constitutionality of the IRB Rule 25.19 in a case dealing with residential quarters at Arlington Park Racetrack in Illinois. Serpas v. Schmidt, 621 F.Supp. 734 (E.D.Ill.1985). The district court entered a broad injunction, after a hearing, permanently enjoining the IRB and its members, among other things, from “conducting or authorizing searches and seizures of ... plaintiffs and the class they represent without warrants and probable cause.” Id. at 744. In addition, the district court similarly enjoined “conducting or authorizing investigatory stops of plaintiffs and the class they represent without at least a reasonable suspicion, based on specific, articulable facts, that the person stopped is engaged in criminal activity.” Id. Finally, this injunction enjoined “conditioning the issuance of occupational licenses upon applicants’ forfeiture of their constitutional rights.... ” Id.
On appeal, a panel of this court affirmed the decision of the district court. Serpas v. Schmidt, 808 F.2d 601 (7th Cir.1986). This decision was issued only a few months before the episode in question, holding:
The district court also enjoined the Board and IDLE’s practice of conducting war-rantless stops and searches of the back-stretchers’ persons within the race track enclosure. Appellants have not suggested that we should analyze the personal searches any differently from the residential searches, and we, too, think that the same rules apply. Like searches of property, searches of the person are generally impermissible absent a warrant issued upon a determination of a probable cause. New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768 (1981); Mary Beth G. v. City of Chicago, 723 F.2d 1263,1268 (7th Cir.1983). The deficiencies we have noted in the statute and regulatory scheme apply equally to these personal searches.. . .
During the plaintiff’s suspension period after the personal search without warrant and, allegedly, without reasonable suspicion or probable cause, this court denied rehearing and reissued a similar opinion regarding personal searches on IRB track enclosures. Serpas v. Schmidt, 827 F.2d 23 (7th Cir.1987).
Serpas, 808 F.2d at 607 (emphasis added).
Based on these facts alone, defendants cannot claim qualified immunity for the *717April, 1987 search, seizure and suspension. (The judges who comprise the majority on this panel, however, vigorously dissented from denial of an en banc hearing, 827 F.2d at 34). Presumably, the injunction remained in effect.
An Illinois appellate court, in the meantime, on December 31, 1986, issued an opinion on the constitutional validity of Rule 25.19, People v. Strauss, 151 Ill.App.3d 191, 104 Ill.Dec. 627, 502 N.E.2d 1287 (1986), based upon a very different set of facts from Serpas and the instant case. Track authorities had detected a “suspicious betting pattern” which involved jockey Strauss’ horse. Upon a subsequent pat-down search of Strauss, an illegal device was found. Upon Strauss’ challenge to the search under Rule 25.19, the Illinois trial court declared this rule unconstitutional. The Illinois Court of Appeals, without any reference to Serpas or its injunction, held the rule to be constitutional in the face of Strauss’ particular challenge. The holding was based upon the unusual betting pattern centered upon Strauss and because “the pat-down search is considered the least intrusive type.” Id. at 198, 104 Ill.Dec. at 631, 502 N.E.2d at 1291.
Strauss held that under the circumstances, defendant’s “justifiable privacy expectation is minimal,” and that only “ ‘a minimal showing of suspicions’ be present to justify a pat-down search,” which was “not considered an extensively intrusive search.” The holding was expressly limited to “the warrantless search ..., based on the facts of this case.” Id. at 198, 104 Ill.Dec. at 632, 502 N.E.2d at 1292 (emphasis added).
In this ease, the district court’s decision concluded that “the Illinois Appellate Court declined to follow the Serpas decision.” This may be so, but Strauss made no mention of Serpas or its injunction; in addition and most important, there was a reasonable suspicion in Strauss, on the basis of which track authorities made a minimally intrusive search. The Strauss court also may not have been aware of Serpas, but, in any event, Strauss limited the effect of its decision to the distinctive facts of that ease. Serpas, on the other hand, was a broad class action type of case, involving track employees’ challenge to “investigatory stops and searches of [their] persons within the race track enclosure.” Serpas, 808 F.2d at 602.
Furthermore, in Hansen v. Illinois Racing Board, 179 Ill.App.3d 353, 128 Ill.Dec. 476, 534 N.E.2d 658 (1989), a person in a similar position to LeRoy challenged a proposed search of a pickup truck at a racetrack under Rule 25.19 and was successful in establishing the Rule’s unconstitutionality once again. In Hansen, the track stewards, based upon the party’s refusal to permit a search of the vehicle in May of 1987, decided that “the proper procedure was not to search the truck,” but to suspend Hansen’s license. 128 Ill.Dec. at 478, 534 N.E.2d Id. at 660.3 Neither the Illinois trial court nor the Illinois appellate court felt bound by Strauss and its particular fact ruling. Instead, these Illinois courts deemed Serpas to be “instructive and in accord with constitutional requirements.” Id. 128 Ill.Dec. at 480-81, 534 N.E.2d at 662-63.
In testing defendants’ claim of qualified immunity, we look to see if “constitutional standards [were] clearly established at the time in question.” Rakovich v. Wade, 850 F.2d 118Ó, 1210 (7th Cir.), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 534 (1988). Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), discussed qualified immunity in the context of whether the state official involved “could be fairly said to ‘know’ that the law forbade conduct not previously identified as unlawful.” (emphasis added). In April of 1987, I believe that defendants reasonably might be said to have known or deemed to have realized that the conduct involved in an arbitrary search of LeRoy was unlawful or unconstitutional. Defendants were charged with knowledge that a federal district court had enjoined them from engaging in this kind of conduct as unlawful and that this *718court had affirmed that decision, and that, again, ratified those decisions before the suspension of LeRoy had expired. They knew, or should have known,, the Illinois state trial judge had agreed with that rationale in Strauss, but this decision had been reversed on and limited to the particular (and dissimilar) facts in that case. They may have been aware that another Illinois state judge in Hansen had found Rule 25.19 unconstitutional on its face before the suspension was lifted.
Based on these facts and the state of the law in 1987, I would find it error for the district judge to have granted a Fed.R.Civ.P. 12(b)(6) motion in favor of defendants on the basis of qualified immunity. It may be that defendants will ultimately prevail on this defense, but the dismissal was premature, I believe, under the circumstances.
I am mindful that much later, in 1991, a divided en banc court in Dimeo v. Griffin, 943 F.2d 679 (7th Cir.1991), held “that racing officials [in Illinois] do not need person-specific cause, or warrants before they may conduct drug tests of persons associated with the sport.” I do not agree that Dimeo (decided in 1991) may be retroactively applied in this case to consideration of a claim of qualified immunity to a 1987 episode, which claim must take into account the state of the law as to asserted violation of constitutional rights in 1987. While Serpas, 827 F.2d at 23, may be deemed “no longer authoritative” by the majority (as of 1991), for the reasons I have stated, I believe it was sufficiently authoritative (and its injunction binding) to preclude a Rule 12(b)(6) motion in this case.
I, therefore, dissent from the Rule 25.19 holding only and the grant of qualified immunity under the circumstances.
. Rule 25.19 requires consent to search as a condition to the obtainment and maintenance of a racing license.
. The defendant Stewards included Richard E. Garret, Robert D. Ward, Timothy Schmidtz, Frank Deglamine, and Robert Milbum.
. As to the issue of LeRoy’s consent to the search in this case, this court held in McGann v. Northeast Ill. Regional Commuter R.R. Corp., 8 F.3d 1174, 1184 (7th Cir.1993), that “if there was an unlawful seizure, [the issue was whether] plaintiff's conduct was ‘sufficiently an act of free will to purge the primary taint' of the unlawfulness.”