Burgess v. Lowery

• Decision Date: 24 February 2000
• Docket Number: DEFENDANTS-APPELLANTS,PLAINTIFFS-APPELLEES,No. 98-3567,98-3567
• Citation: 201 F.3d 942
• Parties: (7th Cir. 2000) JESS BURGESS AND MARILYN THOMPKINS,, v. LOUIS LOWERY, ET AL.,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 942

201 F.3d 942 (7th Cir. 2000)

JESS BURGESS AND MARILYN THOMPKINS, PLAINTIFFS-APPELLEES, v. LOUIS LOWERY, ET AL., DEFENDANTS-APPELLANTS.

No. 98-3567

U.S. Court of Appeals, Seventh Circuit

Argued September 13, 1999

Decided January 18, 2000

Rehearing and Rehearing En Banc

Denied Feb. 24, 2000.

Appeal from the United States District Court for the Central District of Illinois. No. 97-1244--Joe Billy McDade, Chief Judge.

Janine L. Hoft (argued), Janis M. Susler, People's Law Office, Chicago, IL, Plaintiffs-Appellees.

Mark W. Marlott, Office of the Attorney General, Criminal Appeals Division, Springfield, IL, Deborah L. Ahlstrand, Michael P. Doyle (argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellants.

Before Posner, Chief Judge, and Cudahy and Kanne, Circuit Judges.

Posner, Chief Judge.

The plaintiffs, respectively the father and wife of inmates on death row in an Illinois prison, brought suit in federal district court against prison officials who forced each of the plaintiffs to submit to a strip search as a condition of being permitted to visit the inmate. Illinois prison regulations authorize strip searches of visitors only if the visitor consents and there is reasonable suspicion that he is carrying contraband. 20 Ill. Adm. Code sec. 501.220(a)(3). The regulations apply indifferently to visitors to death-row inmates and to visitors to other inmates. The plaintiffs signed the consent form but claim that the defendants had no reasonable basis for suspicion that they were carrying contraband and that consequently the searches violated the Fourth Amendment, which has of course been held applicable to state action by virtue of the Fourteenth Amendment. They seek both damages and injunctive relief.

The defendants moved to dismiss, initially complaining that they did have a reasonable suspicion that the plaintiffs were carrying contraband (although the searches did not turn up any); but this was contested and the contest remains unresolved, and so the motion was denied. The defendants appeal the denial on the distinct ground that they have a qualified immunity from a suit for damages because when they conducted the strip searches of the plaintiffs (between 1995 and 1997) the right of a prison visitor to be free from such searches unless the visitor was reasonably suspected of carrying contraband was not yet clearly established. Indeed they claim that it is not clearly established today and that, on the contrary, so long as they have the plaintiffs' consent to the search they are free to conduct it without having any basis at all for suspecting that the search will turn up contraband.

The denial of the motion to dismiss was of course not a final order; but insofar as it subjected the defendants to the threat of damages liability, they were entitled to appeal immediately for the purpose of showing, if they could, that the uncontested facts (namely that the plaintiffs were prison visitors who signed a consent form for a strip search) established immunity from damages. Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985); Zorzi v. County of Putnam, 30 F.3d 885, 891 (7th Cir. 1994). It is irrelevant that the suit also seeks injunctive relief. There is no immunity from a suit for such relief, but a plaintiff cannot block a defendant's right to take an immediate appeal from a ruling that the defendant lacks immunity from a damages judgment merely by asking for injunctive relief as well as damages. E.g., Scott v. Lacy, 811 F.2d 1153 (7th Cir. 1987) (per curiam); DiMartini v. Ferrin, 889 F.2d 922, 924-25 (1989), amended on other grounds, 906 F.2d 465 (9th Cir. 1990); Acierno v. Cloutier, 40 F.3d 597, 608-09 (3d Cir. 1994) (en banc); see also Behrens v. Pelletier, 516 U.S. 299, 306, 312-13 (1996).

The defendants cannot argue on this appeal that the challenged searches were in compliance with the regulations because based on reasonable suspicion; that argument would involve a factual contest and we have no jurisdiction to consider a basis for immunity that depends on an unresolved factual dispute. Johnson v. Jones, 515 U.S. 304, 313-18 (1995); Merritt v. Shuttle, Inc., 187 F.3d 263, 267 n. 3 (2d Cir. 1999). But the suit is not for violation of the regulations (there would in any event be no basis for federal jurisdiction of such a suit); it is for violation of the Constitution; and the defendants are free to argue that reasonable suspicion is not (or was not when the searches were conducted, but in fact there have been no pertinent changes in the law since then) a constitutional prerequisite to a strip search of a prison visitor.

Neither the Supreme Court nor this court has decided the question, and while the defendants concede that a decision by the Supreme Court, or by this court in the absence of an intercircuit conflict, would sufficiently establish the impropriety of such searches to defeat a defense of immunity, they intimate that without such a decision the defense must be sustained. Neither the concession, except insofar as the reference to a decision by the Supreme Court is concerned, nor the qualification is sound. Even if our court had decided that strip searches of prison visitors were unconstitutional in the absence of reasonable suspicion, there might be enough doubt about the soundness of the decision, whether in light of decisions by other circuits before or after our decision or of intimations in Supreme Court decisions not squarely on point that our view might be erroneous, to justify the state in believing that the plaintiff's right was not yet "clearly established" within the meaning of the cases on immunity. Santamorena v. Georgia Military College, 147 F.3d 1337, 1341 n. 11 (11th Cir. 1998). The Fifth Circuit has held the contrary, Brady v. Fort Bend County, 58 F.3d 173, 175 (5th Cir. 1995); Boddie v. City of Columbus, 989 F.2d 745, 748 (5th Cir. 1993), but with all respect we cannot believe that its view is correct. Suppose the only relevant case the Fifth Circuit had decided was very old, and every other circuit since had rejected the position taken in the Fifth Circuit's decision. It would be odd in such circumstances to suppose that right clearly established even in the Fifth Circuit, given that courts can and not infrequently do overrule decisions that seem clearly out of step with the rest of the legal universe.

Equally, however, the absence of a decision by the Supreme Court or this court cannot be conclusive on the issue whether a right is clearly established in this circuit. There might be no decision in either court simply because the existence of the right was so clear, as a matter of the wording of a constitutional or statutory provision or decisions in other circuits or in the state courts, that no one thought it worthwhile to litigate the issue. E.g., Anderson v. Romero, 72 F.3d 518, 526-27 (7th Cir. 1995); Buonocore v. Harris, 65 F.3d 347, 356-57 (4th Cir. 1995); cf. Key v. Grayson, 179 F.3d 996, 999-1000 (6th Cir. 1999). To rule that until the Supreme Court has spoken, no right of litigants in this circuit can be deemed established before we have decided the issue would discourage anyone from being the first to bring a damages suit in this court; he would be certain to be unable to obtain any damages.

In a long and unbroken series of decisions by our sister circuits stretching back to the early 1980s, it had become well established long before these defendants subjected these plaintiffs to strip searches that strip searches of prison visitors were unconstitutional in the absence of reasonable suspicion that the visitor was carrying contraband. E.g., Spear v. Sowders, 71 F.3d 626, 630 (6th Cir. 1995) (en banc); Daugherty v. Campbell, 935 F.2d 780, 787 (6th Cir. 1991); Cochrane v. Quattrocchi, 949 F.2d 11 (1st Cir. 1991); Smothers v. Gibson, 778 F.2d 470, 473 (8th Cir. 1985); Thorne v. Jones, 765 F.2d 1270, 1276-77 (5th Cir. 1985); see also Varrone v. Bilotti, 123 F.3d 75, 78-79 (2d Cir. 1997). The defendants seek to distinguish these cases by pointing out that the plaintiffs in them, unlike the plaintiffs in this case, had not signed forms consenting to be strip searched. The defendants are inaccurate. In some cases the plaintiffs had signed consent forms, e.g., Cochrane v. Quattrochi, supra, 949 F.2d at 14; Thorne v. Jones, supra, 765 F.2d at 1276, while in others consent was implicit. It was implicit because, if a visitor showed up at the gates of the prison and was told that anyone who visits an inmate has to submit to a strip search, and replied that in that event she would not visit him, the guards would not seize her and subject her to the strip search anyway--or if they did, they would be violating the Fourth Amendment, as Spear makes clear, 71 F.3d at 632, since a mere refusal to consent would not establish probable cause to believe that the visitor was carrying contraband. The visitor thus always had the legal option of avoiding the strip search by forgoing the visit. And she always knew that if she did not forgo the visit, she would have to submit to the search. Hence, if she went ahead and made the visit, she was implicitly consenting to be searched. Formalizing these options by furnishing the visitor with a consent form does not alter the constitutional issue.

But in addition the defendants point us to two cases by the Supreme Court of Hawaii, decided in 1978 and 1980, that upheld, against federal constitutional challenges similar to the one mounted by the plaintiffs in this case, strip searches of prison visitors without reasonable suspicion. State v. Martinez, 580 P.2d 1282 (Haw. 1978); State v. Custodio, 607 P.2d 1048 (Haw. 1980). The plaintiffs riposte that a state supreme court's view of a federal constitutional question should not be given the same weight as a federal court of appeals' view, but this is wrong. State judges like federal judges take an oath to uphold the Constitution of the United...