285 F.3d 962 (11th Cir. 2002), 00-16086, Cuesta v. School Bd. of Miami-Dade County, Fla.

Docket Nº:00-16086.
Citation:285 F.3d 962
Party Name:Liliana CUESTA, Plaintiff-Appellant, v. SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA, Michael Alexander, Miami-Dade County, Defendants-Appellees.
Case Date:March 14, 2002
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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285 F.3d 962 (11th Cir. 2002)

Liliana CUESTA, Plaintiff-Appellant,

v.

SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA, Michael Alexander, Miami-Dade County, Defendants-Appellees.

No. 00-16086.

United States Court of Appeals, Eleventh Circuit

March 14, 2002

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[Copyrighted Material Omitted]

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Steven Wisotsky, Coconut Grove, FL, for Plaintiff-Appellant.

Ana Isabel Segura, James J. Allen, Miami, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES, BARKETT and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

In this appeal, we consider two issues: whether a school board is liable for an allegedly unlawful arrest stemming from a "zero tolerance" policy towards school related violent crime and whether a county is liable for an allegedly unconstitutional strip search of the arrestee. With respect to the first issue, we conclude that a school board cannot be held liable for allegedly unlawful arrests that result from a policy that merely calls on school officials to report criminal behavior. With respect to the second issue, we conclude that there was reasonable suspicion to strip search the arrestee, and therefore the search was constitutional. Accordingly, we affirm the district court's grant of summary judgment to both defendants.

I. BACKGROUND

On the morning of February 20, 1998, Liliana Cuesta and eight other students at Killian Senior High School distributed an

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anonymous pamphlet, entitled "First Amendment," on school grounds. The pamphlet's cover featured a graphic of Timothy Dawson, the school's principal, with a dart through his head. The pamphlet included several poems, cartoons and essays. Among the essays was one in which the author "wondered what would happen" if he shot the principal, the school's teachers, or other students. 1 The same essay made reference to "an African disease" and "immigrants who can't talk a fucking word of English." Cartoons in the pamphlet depicted violent and sexual activity.

The following Monday, Principal Dawson discovered the identities of the nine students who created and distributed the pamphlet and called them to his office. Because he feared for his safety, Dawson requested that both Miami-Dade Police Officer John Galardi and Division of School Police Officer Michael Alexander assist with the questioning of the students. Each of the students admitted having been involved in the production and distribution of the pamphlet. Dawson told the police officers that if any crime had been committed, he wished to prosecute as far as the law would allow. After examining a book of Florida statutes, Officer Alexander concluded that the students had violated Fla. Stat. § 836.11, a misdemeanor that criminalizes the anonymous distribution of publications that "expose any individual or any religious group to hatred, contempt, ridicule or obloquy." 2 He also believed that, given the racially motivated content of the pamphlet, the crime could be enhanced to a felony under Fla. Stat. § 775.085, a law that allows the enhancement of a crime that "evidences prejudice." 3 Alexander spoke with an Assistant State Attorney on the telephone, who conferred with colleagues and agreed that there was probable cause to arrest under § 836.11 and that the crime could be enhanced to a felony under § 775.085. The students were arrested and transported to either the Juvenile Assessment Center or the Turner Guilford Knight Correctional Facility ("TGK"), depending on whether they were over eighteen years old.

Cuesta, who was over eighteen years old, was taken to TGK. Cuesta was booked and strip searched pursuant to a Metro-Dade County policy requiring the strip

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search of all newly arrested felons. The strip search, conducted by a female corrections officer in a closed room, required Cuesta to completely disrobe; to lift her breasts exposing the area underneath; and to squat down and cough while exposing her buttocks. After the strip search was completed, Cuesta was placed in a holding cell with several other women until she was released on bond.

Four days after the arrests, the State Attorney's Office decided not to prosecute any of the students who had participated in creating and distributing the pamphlet. The State Attorney issued a press release indicating that the decision not to file criminal charges was made because "recent decisions of the United States Supreme Court ... render the statute in question unconstitutional and unenforceable." In an unrelated case, the Florida Fourth District Court of Appeal later declared § 836.11 to be an unconstitutional infringement of the First Amendment. Florida v. Shank, 795 So.2d 1067 (Fla.Dist.Ct.App.2001).

Cuesta subsequently filed this action under 42 U.S.C. § 1983 against: (1) The Dade County School Board and Police Officer Michael Alexander, for violating her First and Fourth Amendment rights by unlawfully arresting her; and (2) Miami-Dade County, for violating her Fourth Amendment rights by subjecting her to an unconstitutional strip search. The district court granted a motion to dismiss by Officer Alexander based on qualified immunity; that decision has not been appealed. The district court then granted summary judgment for both the County and the School Board. Cuesta appeals those grants of summary judgment.

II. DISCUSSION

Summary judgment is granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This court reviews the grant of summary judgment de novo, applying the same legal standards as the district court. Wolf v. Coca-Cola Co., 200 F.3d 1337, 1339 (11th Cir. 2000). We construe the facts and draw all reasonable inferences in the light most favorable to the non-moving party. Arrington v. Cobb County, 139 F.3d 865, 871 (11th Cir. 1998).

A. The Arrest

A local government body, such as the School Board in this case, is liable under § 1983 "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...." Monell v. Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A plaintiff can establish § 1983 liability by identifying that she has been deprived of constitutional rights by either an express policy or a "widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom and usage with the force of law." Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991) (internal quotes omitted) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). Cuesta asserts that both the express policy and the custom of the County were responsible for her alleged constitutional deprivations. 4

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It is not sufficient for a government body's policy to be tangentially related to a constitutional deprivation. The "official policy or custom must be the moving force of the constitutional violation in order to establish liability of a government body under § 1983." Gilmere v. City of Atlanta, Ga., 737 F.2d 894, 901 (11th Cir. 1984) (internal quotes omitted). A plaintiff "must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Cuesta asserts that the "zero tolerance" policy of the School Board was the "moving force" behind her allegedly unconstitutional arrest. A fair reading of the School Board Rules ("the Rules"), however, reveals that they were not the "moving force" behind her arrest. 5

The zero tolerance policy is made up of three provisions of the School Board Rules ("the Rules") and is supplemented by the Code of Student Conduct. Under the Rules, School Police are responsible for "providing assistance" in "[t]he prevention and detection of crime and the enforcement of the penal laws of this state as the violation occurs on or to the properties of the Dade County Public Schools." School Board Rule 6Gx13-4A-1.09 (Division of School Police-Organization and Responsibilities). The Rules also state that "[a]ll employees are under an affirmative duty to report any criminal act, and/or disruptive, and/or inappropriate behavior.... All violations of law and incidents of disruptive and/or inappropriate behavior are to be reported in accordance with administrative procedures established by the Superintendent of Schools." School Board Rule 6Gx13-4A-1.21.III, IV (Responsibilities and Duties). Finally, the Rules state that "[t]he Board endorses a zero tolerance policy toward school related violent crime." School Board Rule 6Gx13-5D-1.08 (Maintenance of Appropriate Student Behavior). The rule endorsing the zero tolerance policy incorporates the Code of Student Conduct by reference. The Code of Student Conduct describes the zero tolerance policy as requiring "school districts to invoke the most severe consequences provided for in the Code of Student Conduct in dealing with students who engage in violent criminal acts ..." Code of Student Conduct Secondary i (1997). The consequences provided for in the Code of Student Conduct direct individuals to "[r]efer criminal acts to the Miami-Dade County Public Schools Police and the local police agency for appropriate legal action." Id. at 10-13. We do not construe these Rules to be the "moving force" behind Cuesta's arrest; rather, the Rules merely

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call on school officials to report criminal behavior.

We also...

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