Unreasonable Search Under the 4th and 14th Amendments

904 F.Supp.2d 1301 (2012)

"School District Liability for Illegal Strip Searches"

By Jennifer A. Sughrue & Kenneth E. Lane

Southeastern Louisiana University, Hammond, LA

The federal district court refused to grant the defendants' motion to dismiss this case. Defendants argued that the plaintiff did not provide a sufficient factual basis on which to assert that the school district and police chief are liable (a) for failing to promulgate new policies and procedures and to train school officials and School Resource Officers (SROs) on the constitutional requirements for conducting student searches and (b) based on a final decision-maker analysis. CCSD did not seek to have the claims against McDowell and Redding in their individual capacities dismissed, with no reason provided.


In 2011, school officials conducted strip searches on three seventh grade boys (R.C., D.V., and T.D.) when they suspected them of having marijuana at school. Although they found no evidence of marijuana, School Resource Officer (SRO) Redding was told by one of the boys, R.C., that another seventh grader, D.H., had marijuana. D.H. was called to Vice Principal McDowell's office, where the three original suspects were present. The vice principal and SRO conducted a search of D.H.'s backpack and pockets, but found nothing. At this point, R.C. told the vice principal and SRO that he had lied about D.H. having marijuana.

However, McDowell and Redding continued with their search of D.H. When they began their strip search of D.H., he asked if the search could be conducted in private in the bathroom. They refused and required D.H. to strip completely down, until he was standing nude in front of the other three boys and the two adults. They found no marijuana. They also had not notified D.H.'s mother prior to conducting the search. COURT DECISION The court declined the defendants' motions to dismiss and granted plaintiff's motion to amend his complaint to include claims against the district with regard to Chief Kimbrough's role as a final decision-maker and to clarify claims against Kimbrough in his capacity as Redding's supervisor. In reaching its decision, the court conducted a multi-faceted analysis of the major points of law under scrutiny.

The first part of the analysis related to CCSD's motion to dismiss and covered: (a) theory of liability for failure to train; (b) theory of liability under violation by final decision-maker; and (c) supplemental jurisdiction over state law claims. The second part of the analysis focused on Chief Kimbrough's motion to dismiss, which covered: (a) supervisory liability under § 1983; (b) qualified immunity analysis; and (c) official immunity and state law claims. With regard to CCSD's motion to dismiss, the court determined that the plaintiff had provided sufficient facts that CCSD was on notice that it needed to train its employees with respect to conducting constitutionally valid strip searches and deliberately chose not to do so. Therefore, the court ruled that the plaintiff had viable Fourth and Fourteenth Amendment claims against CCSD. With regard to liability as the final decision-maker, the district was not actually the final decision-maker under § 1983 judicial principles and it had a policy that mandated employees obey the law. However, that does not relieve the district from liability for failure to train or supervise its employees on the lawful conduct of a search.

On the final issue of jurisdiction over state claims, the court indicated that since it had determined that federal claims exist, then it could exercise jurisdiction over the state claims, as well, since they relate to the federal claims under scrutiny. It further noted that the plaintiff had stated sufficient facts that his right to privacy under the Georgia constitution had been violated. It cited a 1905 Georgia case in which the state supreme court determined that the state constitutional right to privacy included the prohibition that "the body of a person cannot be put on exhibition at any time or at any place without his consent" (citation omitted).

In reviewing Police Chief Kimbrough's motion to dismiss, it first addressed the Complaint's claim that Kimbrough had supervisory liability under § 1983. The court determined that the Complaint did not contain sufficient details to support this claim, but ruled that it had given leave to the plaintiff to amend his Complaint on this point. If the amended Complaint does not meet the requisite factual basis for the claim, then it may be dismissed at a later date. The Chief also argued that he is eligible for qualified immunity. The court decided that is was too soon to determine if the facts regarding his liability are sufficient and if the right was clearly established when the violation occurred. As for Kimbrough's assertion that he was entitled to official immunity against the state claims, again the court concluded it was premature to make that determination.

School District and Supervisor Liability Under § 1983 of the Civil Rights Act of 1964

This search and seizure case focuses on issues of district and supervisor liability under § 1983 for the actions of a vice principal and SRO in conducting an alleged unconstitutional strip search of a seventh grade boy. It provides an opportunity to understand the judicial principles that are applied to determine if school boards and supervisors are deliberately indifferent to notice that existing policies and practices are unconstitutional and are thereby perpetuated through inaction. The discussion below examines three categories of liability: (1) Theory of Liability for Failure to Train, (2) Theory of Liability for Violation by Final Decision-Maker, and (3) Supervisory Liability.

(1) Theory of Liability for Failure to Train

The U.S. Supreme Court has determined that a governmental entity, such as a school district, may be held liable for civil rights violations under 42 U.S.C. § 1983 for failure to train its staff if the failure is equivalent to "deliberate indifference to the constitutional rights of person with whom the untrained employees come into contact." Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011). The Court, however, qualified its remarks by noting that the government's "culpability for a deprivation of rights is at its most tenuous where a claim turns on failure to train." Id. In its effort to determine if the plaintiff had presented sufficient facts to support a § 1983 claim for failure to train, the federal district court applied the Eleventh Circuit's tripartite test. The framework requires the plaintiff to address all three prongs: "(1) the government inadequately trained or supervised its employees; (2) the failure to train is an official policy; and (3) the policy caused the employees to violate the plaintiff's rights." Thomas v. Robert, 261 F.3d1160, 1173 (2001). The last two elements hinge on whether the school district had notice that its policies and practices were unconstitutional yet it deliberately failed to take corrective action, including properly training its employees.

In Dawson, the plaintiff was able to demonstrate that CCSD knew its employees' practices related to searches in its schools were unconstitutional. CCSD had been a defendant in an earlier Eleventh Circuit case, Thomas v. Robert, 261 F.3d1160, 1173 (2001), in which 13 elementary children sued the school district and other actors for a mass strip search for a missing envelope containing $26. The Eleventh Circuit upheld the district court's ruling that the searches were unconstitutional, but granted qualified immunity to the individuals who conducted the searches and summary judgment to the district. The court reasoned that the law governing mass strip searches was not well established, so district employees would not have known that the search was unconstitutional. The district was not liable for the actions of the named defendants because its policy only authorized searches based on reasonable suspicion.

Although the plaintiffs raised the same legal theories in Thomas as were raised in Dawson, no evidence was brought forth in Thomas to suggest the school district employees were often confronted with situations similar to the mass strip search that would illustrate that there was an unequivocal need for training. Likewise, the plaintiffs did not present facts that substantiated an argument that there was a pattern of unconstitutional behavior that would have indicated that training was needed. For these reasons, the CCSD survived the claims against it in Thomas, but the ruling put it on notice that there were unconstitutional searches being conducted in the schools. The Dawson court was satisfied that the plaintiff had provided sufficient evidence that all three prongs of the Thomas tripartite test were met. In the several years following Thomas, CCSD students' Fourth Amendment rights were still being violated and CCSD had not acted to remedy the situation.

Likewise, there had been no meaningful modification in the district's search policy beyond what had been in the policy at the time of Thomas. The policy continued to rely primarily on the reasonable suspicion standard, but little in the way of instruction beyond that. For instance, it did not educate employees to only use "intrusive bodily searches" for items that are considered a danger to the wellbeing of the student or to others, or when a situation poses "an extreme threat to school discipline or safety." Thomas, at 1169. Collectively, these inactions were deemed by the Dawson court to be deliberate indifference to the unconstitutional behavior of its employees.

The district court also relied on the U.S. Supreme Court decision in Safford Unified School District No. 1 v. Redding, 557 U.S. 364, 129 S. Ct. 2633 (2009), which was issued nearly 19 months prior to the strip search in Dawson. Citing the Supreme Court, the district court emphasized that the The "categorically extreme intrusiveness of a search down to the body of an adolescent' requires an exacting level of individualized suspicion tied to hard evidence of contraband possession and knowledge that an intrusive search of the intimate parts of the body will actually 'pay off." The mere spectre of a student's possession of contraband is insufficient to justify such an intrusive search. Dawson, at 1307 (internal citations omitted). This provided additional weight to the court's conclusion that CCSD was on notice that its policy and practices regarding searches were violative of the students' rights under the Fourth and Fourteenth Amendments and that the plaintiff was likely to succeed on the merits of his claims.

(2) Theory of Liability Under Violation by Final Decision-Maker

This argument is rooted in the Supreme Court decision, Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018 (1978), in which the Court determined that government entities could be sued under § 1983 for monetary, declaratory, or injunctive relief "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Id., at 694. The Eleventh Circuit, in Thomas, further indicated that "Liability may be imposed for a single decision made by a government official, provided that the official 'possesses final authority to establish . . . policy with respect to the action ordered.'" Thomas, at 1172. (internal citations omitted). With this in mind, the plaintiff argued that the district, Chief Kimbrough, and Vice Principal McDowell were all final decision-makers.

The district court rejected the premise that McDowell was a final decision-maker "since school administrators lacked the authority to change the policy, and the search in question was in violation of the policy's requirement that the search comply with 'applicable authority.'" Dawson, at 1309. (internal citations omitted) The district court also concluded that the plaintiff failed to make the case that Chief Kimbrough was a final decision-maker or exercised authority over CCSD policies. The plaintiff argued that Kimbrough "was in a position to promulgate policy for the training and supervision of staff members such as School Resource Officer Redding, who would predictably implement student searches." Id. This did not suffice to hold CCSD accountable at this point in the proceedings, but the court granted the plaintiff the opportunity to amend his complaint on this point.

Lastly, the court reviewed the claim that CCSD was a final decision-maker "over the policies, customs, and procedures which were a moving force for the suspicionless strip search of plaintiff and others." Id. Citing a 1997 Eleventh Circuit decision, Scala v. Winter Park, 116 F.3d 1396, the district court explained that The final decision-maker theory of liability provides a method for establishing local governmental liability where a final policy-maker vested with the ultimate decision making authority for the challenged action or policy has approved or implemented the unconstitutional action at issue. Id. The court qualified the statement by noting that the district itself "was not technically the final decision-maker under § 1983 jurisprudence," Id., at 1309-1310, but that the district could conceivably be held accountable for decisions made by school officials "on behalf of the district." Id., at 1309. But, the court also noted that school board policy required employees to follow the law and, therefore, could not be liable for actions by employees who had no authority to modify board policy. However, the district knew the search policy was inadequate and it had done nothing to properly train or supervise employees regarding constitutional searches and, therefore, this claim may survive at trial.

(3) Supervisory Liability under § 1983

The court presented two situations in which supervisory officials can be held liable under § 1983: "(1) The supervisor personally participates in the alleged constitutional violation, or (2) there is a causal connection between the actions of the supervisor and the alleged constitutional violation." Gray v. Bostic, 458 F.3d 1295, 1308 (11th Cir. 2006). Inasmuch as Kimbrough did not participate in the search, only the second circumstance - a causal connection between Kimbrough's actions and the alleged constitutional violation - might be applicable. To establish a causal connection, the plaintiff must present evidence that supports one of two possibilities: (1) [there was] a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he or she fails to do so or (2) when a supervisor's improper custom or policy results in deliberate indifference to constitutional rights. Doe v. School Bd. of Broward Cty. Fla., 604 F.3d 1248, 1266 (11th Cir. 2011).

In the first instance, the "the abuse must be obvious, flagrant, rampant and of continued duration, rather than isolated occurrences." Id., in order that there be sufficient notice to the supervisor that there was a need to train and supervise employees who are tasked with conducting searches. The plaintiff's complaint provided no evidence that there was widespread abuse of Fourth Amendment rights by the SRO. There were no allegations that Chief Kimbrough received reports regarding suspect strip searches of students in any CCSD school during his employment as chief with the police department. As a result, the plaintiff did not meet the burden of proof needed to establish a causal connection under the "history of widespread abuse" route.

As for the second way in which to establish a casual connect - through improper custom or policy that results in deliberate indifference to constitutional violations - the plaintiff would have to link the roles and responsibilities of SROs under Kimbrough's supervision to the plaintiff's allegations against the district and against SRO Redding.The court opined that the plaintiff failed on this point, but again noted that the plaintiff would be able to amend his complaint if he believed he had a sufficient factual basis for sustaining the allegation.


Three lessons on § 1983 liability are presented here.

First, this case cautions educational leaders on potential § 1983 liability claims against school districts in situations in which district officials were on notice that specific policies and practices are resulting in constitutional violations yet they failed to take corrective action.

Second, there is potential for liability under the "final decision-maker" theory when an employee implements a district policy that results in a constitutional tort.

Third, liability may accrue to a supervisor if s/he participates in the activity that results in a constitutional violation or if a causal link can be established between the supervisor's actions and the constitutional violation.

In the first instance, failing to take corrective action after receiving clear notice that existing policies or practices are resulting in constitutional violations is considered deliberate indifference to the constitutional rights of the individuals who are subject to school board policies. As illustrated in this case, CCSD knew its search policy was inadequate because it had faced allegations of civil rights abuses when 13 elementary children were subject to a mass strip search for an envelope containing $26, yet in the intervening years until the Dawson complaint was filed, the board had done nothing substantial to amend search policies and practices. Corrective action may require modifying policies so that employees know the limits of their authority when restricting or infringing on the individual rights of students. Search policies should provide clear guidance on the relationship between the nature and scope of a search and the suspected violation.

Furthermore, in light of Safford Unified School District No. 1 v. Redding (2009), policies should indicate that intrusive strip searches should be restricted to situations in which there is a reasonable but well founded suspicion that a particular student is in possession of something that presents a threat to himself or to others. Another form of corrective action is proper training and supervision of employees. If there is evidence that school-based practices are violating the rights of those under their supervision, then district officials are compelled to provide adequate training in order to ameliorate the situation. This is particularly evident when the board has also had to modify a policy in order to direct needed changes in school-based practices.

Second, school districts can be subject to final decision-maker liability under § 1983 for violations committed by employees when it is the policy that is the source of the violation. In other words, if the policy is not constitutionally sound and an employee violates a student's rights as a matter of implementing the policy, then the district may be held liable under this theory. Likewise, the district may be held liable when someone with the authority to make decisions on the behalf of the district acts in such a way as to infringe on the constitutional rights of students. The court in Dawson made it clear that the district itself is not considered a final decision-maker under § 1983 jurisprudence. Nor do school employees have the authority to enact or modify board policy. At best, some school personnel have decision-making discretion whether to apply a policy or not.

That means that an administrator may choose or not choose to perform a strip search, if strip searches are authorized under policy. But the administrator may not change the policy in order to prohibit or permit strip searches. While the facts of the Dawson case did not adequately support either of the two conditions discussed above, the court did suggest that the district may still face liability here because it failed to properly train its employees on what constitutes a legal search. Apparently, Vice Principal McDowell thought he was well within his authority, according to his understanding of board policy, to conduct a strip search of D.H.

Third, supervisor liability exists under § 1983 if either of two situations arise. The first would be if a plaintiff could prove that the supervisor took part in the unconstitutional activity. In the Dawson case, it was clear that Chief Kimbrough did not participate in the strip search, so this pathway to liability was closed. The second possibility is if a plaintiff can establish a causal link between the actions of the supervisor and the alleged violations. In other words, the plaintiff has to demonstrate that the supervisor (a) knew there were widespread and on-going civil rights abuses and did nothing to stop them or (b) the supervisor's "improper custom or policy results in deliberate indifference to constitutional rights." Id., at 1311. The first option illustrates deliberate indifference to knowledge of "obvious, flagrant, rampant and . . . continued [abuse]." Id. In order to survive a claim of deliberate indifference, the supervisor would have to take corrective action, such as training and supervising those who mistakenly committed the constitutional violations so that they do not happen again.

The second option requires that the supervisor has some responsibility in policy making that would result in a constitutional violation or that s/he allows a practice that results in a constitutional violation. If there is an implicit understanding that an unconstitutional policy or practice is tolerated by the supervisor, then that supervisor may be liable under § 1983. Ultimately, what this case illustrates is that school boards and officials have a duty to promulgate legal policies and practices and to ensure those who are responsible for implementing policies and practices are properly trained to do so. Once a school district is aware that a policy or practice is violative of the constitutional rights of those who are subject to them, it is imperative to take corrective action. To ignore notice is deliberate indifference to those rights. To be deliberately indifferent can lead to liability under § 1983.