Norwood v. Bain, s. 96-2164

• Citation: 143 F.3d 843
• Decision Date: 13 May 1998
• Docket Number: 96-2184,Nos. 96-2164,s. 96-2164
• Parties: Joseph H. NORWOOD, individually and as representative of a class of citizens, Plaintiff-Appellant, v. W.C. BAIN, Jr., individually and in his official capacity as Director of Public Safety for the City of Spartanburg Police Department; City of Spartanburg, Defendants-Appellees. Joseph H. NORWOOD, individually and as representative of a class of citizens, Plaintiff-Appellee, v. W.C. BAIN, Jr., individually and in his official capacity as Director of Public Safety for the City of Spartanburg Police Department; City of Spartanburg, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 843

143 F.3d 843

Joseph H. NORWOOD, individually and as representative of a class of citizens, Plaintiff-Appellant, v. W.C. BAIN, Jr., individually and in his official capacity as

Director of Public Safety for the City of

Spartanburg Police Department; City of

Spartanburg, Defendants-Appellees.

Joseph H. NORWOOD, individually and as representative of a class of citizens, Plaintiff-Appellee, v. W.C. BAIN, Jr., individually and in his official capacity as

Director of Public Safety for the City of

Spartanburg Police Department; City of

Spartanburg, Defendants-Appellants.

Nos. 96-2164, 96-2184.

United States Court of Appeals Fourth Circuit.

Argued June 5, 1997.

Decided May 13, 1998.

Rehearing En Banc Granted; Opinion Vacated July 9, 1998.

ARGUED: W. Gaston Fairey, Fairey, Parise & Mills, P.A., Columbia, SC, for Appellant. Andrew Frederick Lindemann, Ellis, Lawhorne, Davidson & Sims, P.A., Columbia, SC, for Appellees. ON BRIEF: Rochelle R. McKim, Fairey, Parise & Mills, P.A., Columbia, SC, for Appellant. William H. Davidson, II, James M. Davis, Jr., Ellis, Lawhorne, Davidson & Sims, P.A., Columbia, SC; H. Spencer King, III, Cathy Hoefer Dunn, Leatherwood, Walker, Todd & Mann, P.C., Spartanburg, SC, for Appellees.

Before WILKINS and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed in part, vacated and remanded in part by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Judge MICHAEL joined. Judge WILKINS wrote an opinion concurring in part and dissenting in part.

OPINION

PHILLIPS, Senior Circuit Judge:

Joseph H. Norwood, individually and as representative of a class, brought this § 1983 action challenging police conduct at a stop and search checkpoint set up at the entry to a charity motorcycle rally. The district court granted declaratory relief but declined to award damages on Norwood's Fourth Amendment claim stemming from the physical search of motorcycle riders' clothing and containers and upheld the temporary seizure of the riders at the stationary checkpoint. On the parties' cross-appeals, we affirm, except to the extent the district court failed to enter an award of nominal damages on the class members' unlawful search claim. As to that, we vacate and remand with instructions to award nominal damages on that claim.

I.

The events giving rise to this action involve a charity motorcycle rally held for the benefit of the American Red Cross ("Red Cross") on September 11, 1994, at the Spartanburg, South Carolina fairgrounds. Sometime in May 1994, as the event's organizers were beginning plans for the motorcycle rally, representatives of the Red Cross and motorcycle clubs from various areas of northwestern South Carolina requested assistance from the Spartanburg Department of Public Safety ("SDPS") in maintaining order at the event. At a planning meeting, Captain Doug Horton of the SDPS was informed that organizers expected up to 3500 participants, possibly including members of two rival motorcycle gangs, the "Hell's Angels" and the "Pagans." After considering the matter, Horton believed that security for the event (which included a motorcycle ride to the fairgrounds followed by a motorcycle show and country music concert) could be provided by twelve to fifteen off-duty officers.

Following up, in July, Horton held a meeting of members of the SDPS's "reserve officers" force who on occasions provided off-duty security service for events. At the meeting, he told them of the possibility that motorcycle gang members might be attending the Rally and asked them to listen out for any information as to possible "problems." Following the meeting, one of the reserve force members, Carl McKinney, sought Horton out and advised him that an unidentified friend at work had told McKinney that an unidentified person had reported to McKinney's friend that a confrontation at the Rally between the Hell's Angel and Pagan gangs was planned. Horton was further advised that gang members could not be visually identified because it was planned that they would "drop their colors"--not wear identifying insignia.

Horton then sought specific advice on motorcycle gang behavior from others. A former police instructor on gang tactics referred him to Lt. Ron Cook of the South Carolina Law Enforcement Division (SLED), who was an expert on motorcycle gangs. Cook responded with information respecting the Hell's Angels and Pagans. Specifically, he advised that they were in an ongoing territorial struggle for "control" of South Carolina gang operations which was then claimed by the Hell's Angels but challenged by the Pagans. As a result, there had been two violent altercations between the groups in recent months, one in Myrtle Beach and one in New Jersey, both of which resulted in physical injuries. Lt. Cook also advised Horton that there were several local area motorcycle gangs affiliated with the Hell's Angels who might be inclined to intervene.

Armed with this information, Horton went in early August to SDPS Chief W.C. Bain and told him for the first time about the upcoming Rally and of the feared potential for trouble. Bain then called a general meeting of the Rally organizers for August 24 to consider the matter of security. Before the general meeting, Bain conferred with Horton and Cook and received from them an update on the situation as they understood it. At the general meeting, Cook repeated the information he had given Horton. Also, at the meeting, Chief Bain announced that the SDPS would take over and be responsible for security at the Rally and that the security measures would include some form of screening for weapons at the entrance to the Rally area.

To this end, Bain had a training session on motorcycle gang behavior patterns conducted for Department officers on September 1. At it, they were instructed on gang identifying marks and insignia and "weapons of choice." These weapons consisted, per the instruction given, of guns and a variety of blunt instruments such as heavy wrenches which were reportedly often carried in motorcycle "saddlebags." Following this session, Cook reported to Bain and Horton on September 6 that he had received information that members of the Hell's Angels would be attending the Rally and that the Pagans had been ordered to join in a ride to an undisclosed location on the day before the scheduled Rally.

Based on the information received, Chief Bain on September 6 directed that all available officers in his department be required to work on the day of the Rally and ultimately assigned 75 for specific security duty at the site. He also requested assistance from other law enforcement agencies, including members of SLED. SLED, on Lt. Cook's recommendation, approved use of one of its helicopters to aid in surveillance, but declined any further participation. According to the testimony of SLED officials, they declined participation because of a determination that the potential for violence, according to their intelligence assessment, did not support a need for the size force otherwise assembled by Bain. Tr. Vol. 1, pp. 188-91. And, they specifically determined not to participate in the entry search procedure directed by Chief Bain, because of general doubts, based on their experience, of its need, and specifically because "due to the information that there would be a large number of family groups and regular civilians at this function, we just felt that our agency would not be involved in screening." Tr. Vol. 1, p. 139.

On the day of the rally, a single checkpoint was established on a public street outside the "cattle gate" entrance to the fairgrounds. The checkpoint was visible from a distance and persons on motorcycles were told that they could enter the fairgrounds on foot without passing through the checkpoint if they parked their motorcycles in the parking lot. Officers were instructed to allow anyone to walk freely through the gates.

Persons on motorcycles, however, were stopped, and had their licenses examined, their licenses and persons videotaped, and some had their motorcycle "saddlebags," or integral motorcycle compartments, or unworn clothing searched for weapons. The original plan had envisioned that physical searches of particular persons and their effects were to be conducted only after a hand-held metal detector (magnetometer) suggested the presence of a weapon in their clothing or on their motorcycles. The proximity of the metal on the motorcycles, however, soon made it apparent that the use of these devices was ineffectual for the purpose and they were abandoned in favor of physical searches of the interiors of saddlebags and unworn clothing. No consent to any of these searches was sought or given. Of the 107 members of the class, 74 had their motorcycle saddlebags, or integral compartments, or unworn clothing searched in this manner. ¹ So far as the record reveals, no weapons were detected at the checkpoint, nor was any member of either of the rival motorcycle gangs identified as such.

Norwood's class action complaint alleged that this conduct violated in various ways the Fourteenth and Fourth Amendment rights of class members and it sought injunctive and monetary relief against the City of Spartanburg and compensatory and punitive damages against Bain in his individual capacity. Specifically, the claim was that stopping the class members at the checkpoint and subjecting them there to extensive videotaping of their persons and licenses was an unreasonable seizure of their persons and that the ensuing physical inspection of the interiors of motorcycle saddlebags and integral compartments and the unworn clothing of members of the class was an unreasonable search of their property that violated their Fourth and Fourteenth Amendment rights. ² Following discovery, the district court denied cross-motions for summary judgment. In doing so, the court rejected Bain's motion for summary judgment on grounds of qualified immunity and concluded...