166 F.3d 243 (4th Cir. 1999), 96-2164, Norwood v. Bain

Docket Nº:96-2164, 96-2184.
Citation:166 F.3d 243
Party Name: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 cit
Case Date:January 08, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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166 F.3d 243 (4th Cir. 1999)

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

January 8, 1999

Argued Oct. 27, 1998.

ARGUED: W. Gaston Fairey, Fairey, Parise & Mills, P.A., Columbia, South Carolina,

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

Before WILKINSON, Chief Judge, WIDENER, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, and KING, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed in part; reversed and remanded in part by published per curiam opinion. Judge WILKINS wrote a separate opinion, in which Judge WILLIAMS and Judge TRAXLER joined in its entirety, and in which Judge NIEMEYER joined in Parts I, II, and III. Judge NIEMEYER wrote a separate opinion in which Chief Judge WILKINSON, Judge WIDENER, and Judge LUTTIG joined.

OPINION

PER CURIAM:

This is a class action brought under 42 U.S.C. § 1983 in which it was claimed that the Fourth and Fourteenth Amendment rights of class members were violated when they were subjected to warrantless stops and physical searches at a police checkpoint set up to prevent the suspected introduction of weapons into a charity motorcycle rally in Spartanburg, South Carolina, by motorcycle gang members. The class, consisting of motorcycle riders stopped and searched at the checkpoint, sued W.C. Bain, Director of Public Safety for the City of Spartanburg, who ordered and directed the checkpoint operation, in his individual and official capacities, and the City of Spartanburg. The class members sought a declaration of constitutional violations in both the stops and searches to which they were subjected, and compensatory and punitive damages for the constitutional injuries allegedly suffered. Bain and the City denied any constitutional violation and Bain also raised the defense of qualified immunity.

Before trial, the district court, denying cross-motions for summary judgment, rejected Bain's qualified immunity defense and ruled that in setting up and directing the checkpoint, Bain was acting as the City's policy-maker so as to subject it to liability for any constitutional violation found. Following trial on the issues of liability and damages, the district court, to whom the issues were submitted for decision when the jury was unable to reach a verdict, concluded that (1) no constitutional violation occurred by reason of the temporary stops and videotaping at the checkpoint; (2) the warrantless physical searches of class members' property at the checkpoint violated their Fourth and Fourteenth Amendment rights; (3) the class members searched had proved no entitlement to compensatory or punitive damages resulting from the constitutional violation; (4) neither were they entitled under Fourth Circuit precedent to any award of nominal damages.

The class appealed, challenging the district court's ruling that the checkpoint stops and videotaping did not violate their constitutional rights and the court's ruling that they were entitled to no actual or nominal damage award for the unconstitutional searches declared by the court. The City and Bain cross-appealed, challenging the court's finding of constitutional violation by the checkpoint searches, and Bain also challenged the court's rejection of his qualified immunity defense. The City did not challenge the court's ruling that because Bain was its policy-maker in setting up and directing the checkpoint, it was liable for any resulting constitutional violation found.

On the parties' cross-appeals, a panel of this court: (1) unanimously affirmed the district court's determination that the checkpoint stops and videotaping did not violate the class members' Fourth Amendment rights; (2) by a split decision, affirmed the court's determination that the checkpoint searches did violate the Fourth Amendment

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rights of those class members whose property was subjected to searches; (3) by a split decision, affirmed the district court's rejection of Bain's qualified immunity defense; (4) affirmed, by majority vote, the district court's determination that the class members subjected to unconstitutional searches had proved no entitlement to compensatory or punitive damages for the violations; and (5) by majority vote, reversed the district court's ruling that those class members were not entitled to any award of nominal damages and remanded for an award not to exceed $1.00. See Norwood v. Bain, 143 F.3d 843 (4th Cir.1998). By majority vote of the active circuit judges of the court, the panel decision was later vacated, and the appeal ordered to be reheard en banc. See id. at 843.

Having now reheard the appeal en banc, the judgment of the en banc court is as follows:

Checkpoint Stop and Videotaping: Affirmed by unanimous vote of the court for reasons given in the vacated panel decision. See id. at 848-50.

Search of Saddlebags and Unworn Clothing: Affirmed by an equally divided vote of the court. Judges Murnaghan, Ervin, Hamilton, Michael, Motz, King, and Phillips voted to affirm. Chief Judge Wilkinson and Judges Widener, Wilkins, Niemeyer, Luttig, Williams, and Traxler voted to reverse.

Qualified Immunity: Affirmed by an equally divided vote of the court. Judges Murnaghan, Ervin, Hamilton, Michael, Motz, King, and Phillips voted to affirm. Chief Judge Wilkinson and Judges Widener, Wilkins, Niemeyer, Luttig, Williams, and Traxler voted to reverse.

Compensatory and Punitive Damages: Affirmed by a unanimous vote of the court.

Nominal Damages: Reversed by majority vote of the court for reasons given in the vacated panel decision. See id. at 856. Judges Murnaghan, Ervin, Wilkins, Hamilton, Williams, Michael, Motz, Traxler, King, and Phillips voted to reverse. Chief Judge Wilkinson and Judges Widener, Niemeyer, and Luttig voted to affirm.

Accordingly, the judgment of the district court is affirmed in part and reversed in part, and the case is remanded to the district court for entry of a judgment in accordance with this opinion that includes an award of nominal damages to the plaintiff class against Bain and the City not exceeding $1.00 for the constitutional violation found by the district court.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

WILKINS, Circuit Judge, writing separately:

A conclusion that law enforcement officers cannot, consistent with the Fourth Amendment, attempt to avert a concrete threat of great public harm with a relatively unobtrusive and appropriately effective warrantless search not supported by individualized suspicion and not undertaken for law enforcement purposes creates an unnecessary risk to public safety and is directly contrary to Supreme Court precedent. I write separately to explain why the district court and seven members of this court erred in concluding that Spartanburg, South Carolina police officers 1 violated the Fourth Amendment rights of Plaintiffs by searching their motorcycle saddlebags and unworn clothing as they entered a fairgrounds for a charity motorcycle rally: Spartanburg's interest in protecting public safety by preventing members of warring 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 plainly support a conclusion that the search was reasonable. Furthermore, because it was not clearly established in September 1994, when the rally took place, that this search was unreasonable--indeed, circuit authority indicated that the search was constitutional--Chief Bain is entitled to qualified immunity.

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I. Facts

In May 1994, organizers began planning a motorcycle rally to benefit the American Red Cross to be held in September 1994 at a fairgrounds in Spartanburg. Organizers requested that Spartanburg provide assistance with security for the event. Although Spartanburg officials initially believed that off-duty officers would be adequate to maintain order at the rally, as the event neared, information came to light indicating that thousands of members of two rival motorcycle gangs with a past history of violent confrontations--the Hell's Angels and the Pagans--were planning to attend. Based on this information, Chief Bain directed all available officers in his department to work on the day of the rally and ultimately assigned 75 officers to the event.

On the day of the rally, a checkpoint was established on a public street outside an entrance to the fairgrounds. The checkpoint was visible to those approaching the fairgrounds, and persons on motorcycles were informed that they could enter the fairgrounds on foot without passing through the checkpoint if they parked...

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