Thomas v. Roberts

• Decision Date: 10 March 2003
• Docket Number: No. 00-11361.,00-11361.
• Citation: 323 F.3d 950
• Parties: Tiffany THOMAS, a minor by her father Gregory THOMAS, Carl G. Casey, a minor by his mother Virgil M. Casey, et al., Plaintiffs-Appellants, v. R.G. ROBERTS, individually and in her official capacity as Assistant Principal, West Clayton Elementary School, Zannie Billingslea, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

323 F.3d 950

Tiffany THOMAS, a minor by her father Gregory THOMAS, Carl G. Casey, a minor by his mother Virgil M. Casey, et al., Plaintiffs-Appellants, v. R.G. ROBERTS, individually and in her official capacity as Assistant Principal, West Clayton Elementary School, Zannie Billingslea, et al., Defendants-Appellees.

No. 00-11361.

United States Court of Appeals, Eleventh Circuit.

March 10, 2003.

Gerald R. Weber, American Civil Liberties Union Foundation, Michael R. Hauptman, Atlanta, GA, Torin D. Togut, Vermont Protection & Advocacy, Barre, VT, Robert Lo-Pci Tsai, ACLU, University of Oregon School of Law, Eugene, OR, for Plaintiffs-Appellants.

Debra A. Golymbieski, Decatur, GA, Jack Reynolds Hancock, Brian Richard Dempsey, Hancock, Story & Dempsey, LLC, Forest Park, GA, Don R. Foster, Foster & Foster, P.C., Jonesboro, GA, J. Stanley Hawkins, Gary M. Sams, Weekes & Candler, Decatur, GA, Roger Scott Sumrall, Beth W. Kanik, Hall, Booth, Smith & Slover, P.C., Laura Louise Lones, Staff Attorney's Office, Atlanta, GA, Robert E. Wilson, Wilson, Morton & Downs, L.L.C., Decatur, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before BLACK, RONEY and COX, Circuit Judges.

COX, Circuit Judge:

This case is before us on remand from the Supreme Court for reconsideration in light of the Court's decision in Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). This case involves a 42 U.S.C. § 1983 action brought by thirteen elementary school students ("Plaintiffs") against Tracey Morgan, their teacher; Assistant Principal R.G. Roberts; Zannie Billingslea, a police officer assigned to the school; Clayton County, Georgia; and the Clayton County School District. The students contend that Roberts, Morgan, and Billingslea ("Defendants") subjected them to "strip searches," thereby violating their Fourth Amendment rights. The district court found the searches unconstitutional, but granted summary judgment in favor of all of the defendants on all claims. On appeal, we held that this mass search, without individualized suspicion, was unreasonable and thus a violation of the Fourth Amendment.¹ Thomas v. Roberts, 261 F.3d 1160, 1177 (11th Cir. 2001). However, we affirmed the district court's grant of qualified immunity to the individual defendants on the children's claims. Id. We also affirmed the district court's grant of summary judgment in favor of the school district and the county and the district court's denial of declaratory and injunctive relief. Id. The Supreme Court vacated our prior judgment and remanded the case, instructing us to reconsider the judgment in light of the Court's decision in Hope v. Peltzer. Thomas v. Roberts, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 829 (2002).

We asked the parties to file supplemental briefs addressing the issue on remand. All parties have done so. Having considered both the briefs and Hope, we conclude that Hope does not dictate a change in the outcome of this case. We reinstate our prior decision in its entirety and supplement, by this opinion, our previous discussion of qualified immunity.

This case involved the mass "strip search"² of a class of fifth grade students in October 1996.³ An envelope containing $26 disappeared from Morgan's desk after Morgan saw a student place it on the desk. Morgan went to Roberts and requested permission to search the children for the money. Roberts assented to the search, although she did not participate in the search. The boys were taken into the boys' bathroom in groups of four or five at a time and asked to drop their pants. Id. at 1164. Some of the boys dropped both their pants and their underwear. Officer Billingslea, a male, searched the boys: as each boy dropped his pants, Billingslea visually inspected the boys' underwear to ensure that the money was not inside. Id. The girls were taken into the girls' bathroom in groups of four or five at a time. Their female teacher, Morgan, then asked the girls to lower their pants and lift their dresses or shirts. Id. Most of the girls were asked to lift their bras and expose their breasts to ensure that the money was not hidden under their bras. Id.⁴

Thirteen of the students sued Morgan, Billingslea, Vice Principal Roberts, the school district, and the county alleging, among other things, that the search was a violation of their Fourth Amendment rights and a violation of the Georgia constitution and Georgia statutes. The district court found that the searches were unconstitutional but that defendants Morgan, Roberts, and Billingslea were entitled to qualified immunity. The district court granted summary judgment in favor of the school district and the county, finding that neither entity was responsible for the conduct of Morgan, Roberts and Billingslea. The district court then dismissed the state law claims without prejudice. An appeal followed, and we affirmed.

We consider the Plaintiffs arguments on remand in turn. First, Plaintiffs argue that New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), clearly establishes that exceptions to the requirement of individualized suspicion are appropriate only when the privacy interests involved are minimal and when other safeguards ensure personal privacy. Plaintiffs insist that the only "very limited context" in which the Supreme Court has allowed suspicionless searches of students is in the "minimally" intrusive setting of drug testing of voluntary student athletes. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). Finally, Plaintiffs direct us to Eleventh Circuit caselaw upholding student searches when the school officials had individualized suspicion. Based on these cases, Plaintiffs contend that Defendants had fair warning that particularized suspicion is necessary before the school can "strip search" a student.

Plaintiffs also assert that the Supreme Court reversed this panel's determination that municipal liability did not attach to the Clayton County School District. Because the only issue that Hope addresses is the issue of qualified immunity, Hope has no bearing on our previous decision concerning the school district's or county's liability. Accordingly, we need not reconsider our conclusion that summary judgment was properly granted in favor of the school district and the county.

Defendants argue that, given the fact that the "contours of the right [violated] must be sufficiently clear that a reasonable official would understand that what he is doing violates that right," Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987), there is no caselaw prior to October 1996 that would have fairly and clearly warned Defendants that a mass "strip search" of elementary school students under these circumstances was unconstitutional. At the time the searches took place, Defendants contend, only a very general "reasonableness" standard had been applied to school searches and cases applying the reasonableness standard were too factually distinct from the circumstances presented in this case to give guidance. Finally, Defendants argue that their actions were not such egregious and obvious violations of the law as to fall within the slender category of cases in which the unlawfulness of the conduct is so obviously at the core of what the Fourth Amendment prohibits that clarifying caselaw is unnecessary. See, United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997); Smith v. Mattox, 127 F.3d 1416 (11th Cir.1997).

Hope tells us that the "salient question" in this qualified immunity inquiry is "whether the state of the law [at the time of the action in question] gave [Roberts, Morgan, and Billingslea] fair warning that their alleged [actions were] unconstitutional." 122 S.Ct. at 2516. Hope also tells us that the notice to officials must be a "fair and clear" warning. See id. at 2518, quoting Lanier, 520 U.S. at 271, 117 S.Ct. at 1227 (emphasis added). The "clear" requirement stems from the fact that the purpose of qualified immunity is to protect government officials performing discretionary functions from civil liability when their actions violate no "clearly established statutory or constitutional rights of which a reasonable person would have known." Hope, 122 S.Ct. at 2515 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). In this circuit, rights are "clearly established" by decisions of the Supreme Court, this court, or the highest court of the state in which the case arose. Hamilton v. Cannon, 80 F.3d 1525, 1532 n. 7 (11th Cir.1996). Thus, we turn to the Supreme Court and Eleventh Circuit cases which Plaintiffs have cited.

First, Plaintiffs cite New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720, arguing that T.L.O.'s citations to similar cases from other circuits made it clear that school officials may not search students absent particularized suspicion. Contrary to Plaintiffs' argument, the T.L.O. Court refrained from addressing the issue of whether individualized suspicion is required for a school search to be reasonable, and instead adopted a general, two-prong, multi-factor "reasonableness" test which calls for a balancing of students' interests against those of school officials. Id. at 341-43, 105 S.Ct. at 742-43. As we have noted, the T.L.O. Court made no "attempt to establish clearly the contours of a Fourth Amendment right as applied to the wide variety of possible school settings different" from those presented by the facts of the T.L.O. case. Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 828 (11th Cir.1997) (en banc). T.L.O. made clear only that a search of a high school student's purse for cigarettes is reasonable if the student was accused of smoking and then denied the allegation.⁵ T.L.O., 469 U.S. at 347, 105 S.Ct. at 745-46...