531 F.3d 1071 (9th Cir. 2008), 05-15759, Redding v. Safford Unified School Dist. No.1

Docket Nº:05-15759.
Citation:531 F.3d 1071
Party Name:April REDDING, legal guardian of minor child, Plaintiff-Appellant, v. SAFFORD UNIFIED SCHOOL DISTRICT # 1; Kerry Wilson, husband; Jane Doe Wilson, wife; Helen Romero, wife; John Doe Romero, husband; Peggy Schwallier, wife; John Doe Schwallier, husband, Defendants-Appellees.
Case Date:July 11, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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531 F.3d 1071 (9th Cir. 2008)

April REDDING, legal guardian of minor child, Plaintiff-Appellant,

v.

SAFFORD UNIFIED SCHOOL DISTRICT # 1; Kerry Wilson, husband; Jane Doe Wilson, wife; Helen Romero, wife; John Doe Romero, husband; Peggy Schwallier, wife; John Doe Schwallier, husband, Defendants-Appellees.

No. 05-15759.

United States Court of Appeals, Ninth Circuit.

July 11, 2008

          Argued and Submitted March 26, 2008.

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[Copyrighted Material Omitted]

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          Graham A. Boyd , M. Allen Hopper , Adam B. Wolf , ACLU Foundation, Santa Cruz, CA; Andrew J. Petersen (argued), Humphrey & Peterson, P.C., Tucson, AZ; Bruce G. MacDonald , McNamara, Goldsmith, Jackson & MacDonald, Tucson, AZ; Daniel Joseph Pochoda , ACLU of Arizona, Phoenix, AZ, for the plaintiff-appellant.

          Matthew W. Wright (argued), David K. Pauole , Holm Wright Hyde & Hays PLC, Phoenix, AZ, for the defendants-appellees.

          Carolyn I. Polowy , Sherri Morgan, National Association of Social Workers, Washington, D.C.; David A. Honzo, Julie M. Carpenter , Michael A. Hoffman , Jenner & Block LLP, Washington, D.C., for amici curiae The National Association of Social

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Workers and the National Association of Social Workers, Arizona Chapter.

          Clint Bolick, The Rose Law Group, Scottsdale, AZ; John W. Whitehead , Douglas R. McKusick, The Rutherford Institute, Charlottesville, VA, for amicus curiae The Rutherford Institute.

          Appeal from the United States District Court for the District of Arizona; Honorable Nancy Fiora , Magistrate Judge, Presiding. D.C. No. CV-04-00265-NFF.

          Before: ALEX KOZINSKI , Chief Judge, HARRY PREGERSON , MICHAEL DALY HAWKINS , BARRY G. SILVERMAN , KIM McLANE WARDLAW , RAYMOND C. FISHER , RONALD M. GOULD , RICHARD A. PAEZ , CARLOS T. BEA , MILAN D. SMITH, JR. , N. RANDY SMITH , Circuit Judges.

          Opinion by Judge Wardlaw : Dissents by Judges Gould and Hawkins

          WARDLAW , Circuit Judge, with whom Judges PREGERSON , FISHER , PAEZ , MILAN D. SMITH, JR. , and N.R. SMITH join:

          On the basis of an uncorroborated tip from the culpable eighth grader, public middle school officials searched futilely for prescription-strength ibuprofen by strip-searching thirteen-year-old honor student Savana Redding. We conclude that the school officials violated Savana's Fourth Amendment right to be free from unreasonable search and seizure. The strip search of Savana was neither “justified at its inception," New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) , nor, as a grossly intrusive search of a middle school girl to locate pills with the potency of two over-the-counter Advil capsules, “reasonably related in scope to the circumstances" giving rise to its initiation. Id. Because these constitutional principles were clearly established at the time that middle school officials directed and conducted the search, the school official in charge is not entitled to qualified immunity from suit for the unconstitutional strip search of Savana.

          I. BACKGROUND

          Nestled next to the Pinaleno Mountains in southeastern Arizona, Safford is a small community of slightly under 10,000 residents. With a modest population, Safford maintains a single middle school that draws additional students from other neighboring small towns. In the late summer of 2003, Savana began a new school year as an eighth grader at Safford Middle School along with approximately 200 other thirteen and fourteen-year-old classmates.1

          On October 8, Savana was attending math class when Assistant Principal Kerry Wilson opened the classroom door and instructed her to pack up her belongings and accompany him to his office. Savana complied, gathered her things and followed Wilson down the hallway. Upon arriving at Wilson's office, Savana noticed a planner that she had lent a few days earlier to her classmate, Marissa, sitting open on the assistant principal's desk. While Savana immediately recognized the planner, she had not previously seen the objects contained in the planner, including knives, a lighter and a cigarette. None of the objects belonged to Savana.

          Wilson then began interrogating Savana. Wilson first reminded her of the importance

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of truth and asked her who owned the planner. Savana admitted that she owned the planner and had lent it to Marissa.2 Upon further questioning, Savana insisted that none of the objects contained in the planner belonged to her.

          Wilson then directed Savana's attention to a few small white ibuprofen pills sitting on his desk. Possession of these pills violated school rule J-3050's prohibition against bringing any prescription or over-the-counter drug onto campus without prior permission. He asked Savana if she had anything to do with the pills. Savana replied that she had never seen those pills before entering Wilson's office. Further, she assured Wilson that she had never brought any prescription pills into the middle school or provided any students with ibuprofen .

          Dissatisfied with the results of his questioning, Wilson asked Savana whether he could search her belongings. Savana agreed to this search. Along with his administrative assistant, Helen Romero, Wilson rummaged through Savana's backpack and found nothing. Even though this first search of Savana's backpack supported her statement that she had not brought pills onto campus, and despite Savana's discipline-free history at the school, Wilson asked Romero to take Savana to the nurse's office for a second, more thorough search.

          There, at Wilson's behest, Romero and the school nurse, Peggy Schwallier, conducted a strip search of Savana. The officials had Savana peel off each layer of clothing in turn. First, Savana removed her socks, shoes and jacket for inspection for ibuprofen. The officials found nothing. Then, Romero asked Savana to remove her T-shirt and stretch pants. Embarrassed and scared, Savana complied and sat in her bra and underwear while the two adults examined her clothes. Again, the officials found nothing. Still progressing with the search, despite receiving only corroboration of Savana's pleas that she did not have any ibuprofen , Romero instructed Savana to pull her bra out to the side and shake it. Savana followed the instructions, exposing her naked breasts in the process. The shaking failed to dislodge any pills. Romero next requested that Savana pull out her underwear at the crotch and shake it. Hiding her head so that the adults could not see that she was about to cry, Savana complied and pulled out her underwear, revealing her pelvic area. No ibuprofen was found. The school officials finally stopped and told Savana to put her clothes back on and accompany Romero back to Wilson's office. Savana did not freely agree to this search. She was “embarrassed and scared, but felt [she] would be in more trouble if [she] did not do what they asked." In her affidavit, Savana described the experience as “the most humiliating experience" of her short life, and felt “violated by the strip search."

          The long and attenuated route to Savana began at the school dance held to celebrate the beginning of the new academic year. There, school officials detected the smell of alcohol around a small group of students, including Savana and her classmate Marissa, and became concerned that they may have drunk alcohol either before or during the school function. Increasing their suspicion of alcohol use that night, school officials found a bottle of alcohol, along with a pack of cigarettes, in the girls' bathroom. Nothing, however, specifically linked Savana or any other individual student to the empty bottle. Nevertheless, school officials remained wary that students were violating school rule J-3050,

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which prohibits the possession of alcohol and the non-medical use, possession, or sale of a drug, among other school rules. Enforcement of these school regulations drove the public school officials' increased efforts toward rooting out the ibuprofen.

          On October 1, nearly a month and a half after the dance, and a week before the search of Savana, Jordan, a student at Safford Middle School, and his mother requested a meeting with Principal Robert Beeman and Wilson. During the meeting, Jordan's mother recounted how her son had become violent and gotten sick to his stomach a few nights earlier. Jordan had confessed to his mother that he became sick after ingesting pills he received from some unspecified classmate. More generally, Jordan advised the school administrators that “certain students" brought drugs and weapons on campus. Nothing in the record indicates that Jordan suggested Savana was among the students bringing drugs into the middle school. To the contrary, Jordan brought up Savana's name only to accuse her family of providing alcohol to other students before the opening dance, an allegation the Reddings deny.3

          Before the opening bell on the day of the strip search, Jordan approached Assistant Principal Wilson with a small white pill. Jordan explained that Marissa-he did not mention Savana's name-had just given him the pill, and that a group of students planned to take the pills at lunchtime. Consistent with events he recounted during his meeting with Wilson the previous week, Jordan did not link Savana with possession of any pills or the plan for their distribution that day. Wilson then walked down the hall to ask Nurse Schwallier if she could identify the pill. Schwallier recognized it as 400 mg ibuprofen , obtainable only by prescription. Ibuprofen is most commonly found in over-the-counter Advil or Motrin in 200 mg pills to treat headaches, muscle-aches, or, for many young women, menstrual cramps . See PDR for NONPRESCRIPTIONDRUGS, DIETARY SUPPLEMENTS, ANDHERBS 725-26 (29th ed.2008).

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