RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0137p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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MISTY KNISLEY, BETTY HALL, PATRICIA
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SCHIESER, TERESA BRYANT, ANGELA KAY
SOWERS, SANDRA STEVENS, ANGELA -
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No. 08-3082
GILBERT, JAMES ALEXANDER, FREDA CAROL
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SNIVELY, BARBARA HOFFER, and HEATHER
Plaintiffs-Appellees, -
M. MCCLOUD,
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v.
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DISTRICT, VERN RIFFE CAREER TECHNOLOGY -
PIKE COUNTY JOINT VOCATIONAL SCHOOL
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CENTER, TONI FOUT, WENDY HARPER, -
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Defendants-Appellants. -
CHERYL SHAW, and LORNA MUSIC,
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On Remand from the United States Supreme Court.
No. 06-00097—Michael H. Watson, District Judge.
Argued: April 29, 2010
Decided and Filed: May 14, 2010
Before: MARTIN, CLAY, and KETHLEDGE, Circuit Judges.
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COUNSEL
ARGUED: John C. Albert, CRABBE BROWN & JAMES, LLP, Columbus, Ohio, for
Appellants. Michael S. Miller, VOLKEMA, THOMAS, MILLER, BURKETT, SCOTT &
MERRY, Columbus, Ohio, for Appellees. ON BRIEF: John C. Albert, CRABBE BROWN
& JAMES, LLP, Columbus, Ohio, for Appellants. Michael S. Miller, Daniel R. Volkema,
VOLKEMA, THOMAS, MILLER, BURKETT, SCOTT & MERRY, Columbus, Ohio,
Robert R. Dever, BANNON, HOWLAND & DEVER, Portsmouth, Ohio, for Appellees.
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No. 08-3082 Knisley, et al. v. Pike County Joint Vocational Page 2
School District, et al.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. On June 29, 2009, the United States
Supreme Court vacated this Court’s prior judgment in Knisley v. Pike County Joint
Vocational School District (Knisley I), No. 08-3082 (6th Cir. Dec. 8, 2008), and remanded
the case to this Court for further consideration in light of Safford Unified School District #1
v. Redding, 557 U.S. —, 129 S. Ct. 2633 (2009). Knisley v. Pike County Joint Vocational
Sch. Dist., 129 S. Ct. 2893 (2009).
Our previously unpublished order, affirming the district court’s denial of qualified
immunity in light of Beard v. Whitmore Lake School District, 402 F.3d 598 (6th Cir. 2005),
is reproduced below:
The eleven plaintiffs alleged that they and every other student in
their high school nursing class were subjected to unconstitutional strip
searches after students in the class reported that a credit card and other items
were missing. Seeking monetary, injunctive, and declaratory relief, the
plaintiffs named as defendants the Pike County Joint Vocational School
District, Vern Riffe Career Technology Center, and the administrators and
instructors who were involved in the searches, in their individual and official
capacities.
The defendants moved for summary judgment, asserting in part that
they are entitled to qualified immunity. The district court denied the
defendants’ motion, concluding that the defendants are not entitled to
qualified immunity in light of Beard v. Whitmore Lake School District, 402
F.3d 598 (6th Cir. 2005). This timely interlocutory appeal followed.
We have jurisdiction to hear an interlocutory appeal of the denial of
qualified immunity to the extent that the denial turns on an issue of law. See
v. City of Elyria, 502 F.3d 484, 489 (6th Cir. 2007). In determining whether
a defendant is entitled to qualified immunity, this court uses a two-part test:
“(1) whether, considering the allegations in a light most favorable to the
party injured, a constitutional right has been violated, and (2) whether that
right was clearly established.” Dorsey v. Barber, 517 F.3d 389, 394 (6th
Cir. 2008). The plaintiffs argue that we lack jurisdiction over the first issue
because the district court held that there was an issue of fact as to whether
a constitutional right was violated. The district court did not so hold.
Regardless, whether a constitutional right was violated is a mixed issue of
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law and fact, which we treat as an issue of law, not as an issue of fact. See
City of Elyria, 502 F.3d at 490.
The district court’s denial of summary judgment on qualified
immunity grounds is reviewed de novo. Meals v. City of Memphis, 493 F.3d
720, 728 (6th Cir. 2007). To the extent that there is a disagreement about
the facts, we must review the evidence in the light most favorable to the
plaintiffs and make all inferences in their favor. Champion v. Outlook
Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004).
The legality of a search of a student under the Fourth Amendment
depends on the reasonableness of the search under all the circumstances.
New Jersey v. T.L.O., 469 U.S. 325, 341 (1985). Determining the
reasonableness of a school search involves a two-part inquiry: (1) was the
search justified at its inception, and (2) was the search reasonably related in
scope to the circumstances justifying the search. Beard, 402 F.3d at 603-04.
The Supreme Court has held that:
Under ordinary circumstances, a search of a student by a
teacher or other school official will be “justified at its
inception” when there are reasonable grounds for suspecting
that the search will turn up evidence that the student has
violated or is violating either the law or the rules of the
school. Such a search will be permissible in its scope when
the measures adopted are reasonably related to the
objectives of the search and not excessively intrusive in
light of the age and sex of the student and the nature of the
infraction.
T.L.O., 469 U.S. at 341-42 (footnotes omitted).
In Beard, this court found that searches of students under
circumstances similar to the instant case were unreasonable and therefore
violated the Fourth Amendment. A student in a gym class reported to her
teacher that her prom money had been stolen during the class. Beard, 402
F.3d at 601. A search of the gymnasium and the students’ backpacks failed
to locate the money. Two male teachers then searched about twenty male
students individually in the boys’ shower room, with the male students
lowering their pants and underwear and removing their shirts. Two female
teachers took approximately five female students into the girls’ locker room
where the female students pulled up their shirts and pulled down their pants,
without removing their underwear, while standing in a circle. Id.
This court assumed, without holding, that the searches of the
students were justified at their inception: “That is, some search of the
persons and effects of students may be warranted when substantial property
has been reported recently stolen.” Id. at 604. In considering the scope of
the searches, the court looked to the three factors used by the Supreme Court
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in Vernonia School District 47J v. Acton, 515 U.S. 646, 654-63 (1995), to
evaluate searches performed in the absence of individual suspicion: “(1) the
student’s legitimate expectation of privacy, (2) the intrusiveness of the
search, and (3) the severity of the school system’s needs that were met by
the search.” Beard, 402 F.3d at 604. The court held that the searches were
not reasonable and violated the Fourth Amendment based on the following
facts: the nature of the searches was highly intrusive, the searches were
undertaken to find missing money, the searches were performed on a
substantial number of students, the searches were performed in the absence
of individualized suspicion, the students did not consent, and, in the case of
the female students, the searches occurred in the presence of other students.
Id. at 603-06.
In the [present] case, two students in a nursing class reported to their
instructor, Wendy Harper, that cash, a credit card, and two gift cards were
missing from their purses. After this report, the fifteen or sixteen students
in the nursing class were directed to sit down with their hands in sight.
The students were then taken one by one into the first aid room,
where Director Keith Smith dumped out their purses and flipped through
their books and another staff member, initially Lorna Music and later Cheryl
Shaw, checked their shoes, socks, and pockets. After this initial search of
each student was complete, each student’s locker was searched.
Early on during the searches in the first aid room, a student told
Smith and Shaw that an unidentified student was hiding the missing items
in her bra. Smith then directed Toni Fout, a female instructor, to take the
students into the restroom one at a time and have them unhook and shake
their bras underneath their tops and take their pants halfway down their
thighs. The plaintiffs challenge these searches in the restroom.
Assuming, as in Beard, that the searches were justified at the
inception, the controlling issue is the reasonableness of the scope of the
searches. With respect to the first factor, a legitimate expectation of
privacy, the Supreme Court has held that “[a] search of a child’s person . . .
is undoubtedly a severe violation of subjective expectations of privacy.”
T.L.O., 469 U.S. at 337-38. Students have a significant privacy interest in
their unclothed bodies. Beard, 402 F.3d at 604.
The defendants argue that the plaintiffs consented to the searches
based on their training and testing on the student handbook’s search policy.
Given the lack of mutual consent, the student handbook’s search policy
does not effect a waiver of the plaintiffs’ privacy expectations. See Doe ex
rel. Doe v. Little Rock Sch. Dist., 380 F.3d 349, 354 (8th Cir. 2004). In any
event, some of the plaintiffs testified that they were not aware of the search
policy or that they did not understand its terms to allow the searches
conducted here. The defendants also argue that the plaintiffs’ failure to
object to the searches or to request calls to their parents demonstrates
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consent. However, the record supports that at least one plaintiff objected
and was told that she had to comply, and that another asked to call her
mother after being searched, and her request was denied.
As for the intrusiveness of the searches, the defendants argue that
the plaintiffs did not expose any skin, were not required to remove their
underwear, and were not touched. The students wore nursing scrubs with
the top falling below the waist but not covering the rear. Some students
exposed their stomachs while reaching under their tops to unhook and
shake their bras. Fout allowed some students to lower their pants to
mid-thigh level but required others to drop their pants down further to their
knees or ankles. One student was not wearing underwear, while others
wore thongs or “booty shorts” exposing their butt cheeks. Fout snapped
one student’s bra and lifted up another’s top to see the student’s underwear.
The intrusiveness of the searches was similar to the search of the female
students in Beard, except that the plaintiffs were not required to lift their
tops all the way up and were searched individually in the presence of a
single staff member rather than in front of one another. See Beard, 402
F.3d at 606.
Under the particular circumstances of this case, the severity of the
school system’s needs was slight. As this court noted in Beard, “a search
undertaken to find money serves a less weighty governmental interest than
a search undertaken for items that pose a threat to the health or safety of
students, such as drugs or weapons.” Id. at 605. The lack of individualized
suspicion and the search of the entire class further diminish the defendants’
interest:
The government may have a comparatively strong interest
in searching a particular student reasonably suspected of
theft because of the likelihood that the search will be
successful. Such interest is diluted considerably when,
instead of one, two, or three students, the school officials
search over twenty students, without reason to suspect that
any particular student was responsible for the alleged theft.
In that case the intrusive search of each individual is that
much less likely to be successful.
Id.
The defendants argue that they had individualized suspicion of the
entire group of students because everyone was sure that the theft occurred
during the class and none of the students left the room. This argument is
undercut by the fact that other students entered the room during the class
to take photos for the yearbook. Furthermore, an “individualized
suspicion” denotes that a particular person is suspected of wrongdoing
rather than a group of persons who happen to be in the same place. See
Ybarra v. Illinois, 444 U.S. 85, 91 (1979). In the Beard case, as in this
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case, the money was reportedly stolen during the class, and the court noted
that the defendants lacked individualized suspicion because they did not
have “reason to suspect that any particular student was responsible for the
alleged theft.” 402 F.3d at 605. Director Smith admitted that he did not
have any reason to suspect one student over another. Therefore, the
defendants lacked individualized suspicion.
The cases cited by the defendants in support of the constitutionality
of the searches are distinguishable. While the searches in those cases were
at least as intrusive as the searches conducted here, those cases all involved
two factors not present here—(1) individualized suspicion of (2) possession
of drugs or weapons—that weighed in the government’s favor. Jenkins ex
rel. Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 823-27 (11th Cir.
1997) (drugs); Cornfield ex rel. Lewis v. Consol. High Sch. Dist. No. 230,
991 F.2d 1316, 1320-24 (7th Cir. 1993) (drugs); Williams ex rel. Williams
v. Ellington, 936 F.2d 881, 885-89 (6th Cir. 1991) (drugs); Tarter v.
Raybuck, 742 F.2d 977, 981-83 (6th Cir. 1984) (drugs); Richardson v. Bd.
of Educ. of Jefferson County, Ky., No. 3:04-CV-386R, 2006 WL 2726777,
at *3-*5 (W.D. Ky. Sept. 22, 2006) (explosive device); Widener v. Frye,
809 F. Supp. 35, 37-38 (S.D. Ohio 1992) (drugs).
In light of Beard, the following facts lead to the conclusion that the
scope of the searches of the plaintiffs was not reasonable: the plaintiffs had
a legitimate expectation of privacy in their bodies, the plaintiffs did not
consent, the searches were highly intrusive, the searches were undertaken
to find monetary items, the defendants searched an entire class of students,
and the defendants lacked individualized suspicion. Accordingly,
considering the allegations in a light most favorable to the plaintiffs, the
searches violated the plaintiffs’ constitutional rights under the Fourth
Amendment.
The defendants may still be entitled to qualified immunity if their
actions did not “violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). For a constitutional right to be clearly
established, “[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that
right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). To determine
whether a constitutional right is “clearly established,” the court looks to
decisions of the Supreme Court, then to decisions of this court and courts
within this circuit, and last to decisions of other circuits. Ciminillo v.
Streicher, 434 F.3d 461, 468 (6th Cir. 2006).
The defendants argue that the Beard case did not place them on
notice that the searches were unconstitutional, attempting to distinguish
Beard based on the number of students involved in the searches, the
location of the searches, the extent of undress required in the searches, and
the presence of individualized suspicion in the instant case. As discussed
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above, the defendants in this case, as in Beard, lacked individualized
suspicion. With the exception of the extent of undress, the defendants focus
on minor details. “In order for a constitutional right to be clearly
established, there need not be a case with the exact same fact pattern, or
even ‘fundamentally similar’ or ‘materially similar’ facts; rather, the
question is whether the defendants had ‘fair warning’ that their actions were
unconstitutional.” Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir.
2005). Given that the Beard case held that searches under materially
similar facts violated the Fourth Amendment, the defendants had fair
warning that their actions were unconstitutional. The district court properly
held that the defendants are not entitled to qualified immunity.
For the foregoing reasons, we affirm the district court’s order
denying the defendants qualified immunity.
Knisley I, No. 08-3082 (6th Cir. Dec. 8, 2008).
The United States Supreme Court has asked us to reconsider this case in light of
Redding, in which the Court invalidated a strip search of a female student when looking for
ibuprofen tablets. Redding, 129 S. Ct. at 2642-43. The Court, however, found that the
officials at issue were nevertheless protected by qualified immunity because (1) there was
no clearly established law finding unconstitutional the strip searching of students under
materially similar circumstances from the Supreme Court and (2) the appellate courts who
had ruled in factually similar circumstances were not in concert. Id. at 2643-44.
Essentially, the Redding defendants were entitled to qualified immunity because neither the
1
Supreme Court nor the Ninth Circuit had clearly established case law on point and there
was no national consensus on this issue among the Circuits at the time of the Redding
search. Id.
However, this Circuit’s law on student strip searches was clearly established as
early as 2005, when we published our opinion in Beard. We read Redding to affirm our
constitutional holding in Beard. Thus, because Beard remains good constitutional law
and because that law was clearly established at the time of the strip search in this case,
1
Indeed, while the Ninth Circuit found no qualified immunity, it acknowledged that there was
no pre-existing precedent directly on point. Redding v. Safford Unified Sch. Dist. No. 1, 531 F.3d 1071,
1087 (9th Cir. 2008) (en banc) (“That there is no case precisely on all fours does not preclude the
conclusion that the Fourth Amendment right at issue was clearly established when the school officials
stripped and searched [the plaintiff].”).
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Redding does not require a result contrary to that reached in Knisley I. Cf. Foster v.
Raspberry, 652 F. Supp. 2d 1342, 1352 (M.D. Ga. 2009). Our Circuit’s clearly
established case law on this issue put the school and its employees on notice that this
search was unconstitutional, so defendants are not entitled to qualified immunity
protection.
We therefore AFFIRM the district court’s denial of qualified immunity for
defendants.