Bilbrey by Bilbrey v. Brown

• Decision Date: 02 August 1984
• Docket Number: No. 81-3008,81-3008
• Citation: 738 F.2d 1462
• Parties: 19 Ed. Law Rep. 26 Joseph C. BILBREY, a minor by his parents and next friends, Gerald W. and Virginia C. BILBREY, Anthony E. Gartner, a minor by his parents and next friends, Gary W. and Linda M. Gartner, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Garland BROWN, Ben Gano, Robert Hansen, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1462

738 F.2d 1462

19 Ed. Law Rep. 26

Joseph C. BILBREY, a minor by his parents and next friends Gerald W. and Virginia C. BILBREY, Anthony E. Gartner, a minor by his parents and next friends, Gary W. and Linda M Gartner, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Garland BROWN, Ben Gano, Robert Hansen, et al., Defendants-Appellees.

No. 81-3008.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 4, 1982.

Decided Aug. 2, 1984.

Simon J. ffitch, St. Helens, Or., for plaintiffs-appellants.

Michael A. Lehner, Hershiser, Mitchell & Warren, Portland, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before KILKENNY, GOODWIN and POOLE, Circuit Judges.

POOLE, Circuit Judge:

Anthony Gartner and Joseph Bilbrey, minors, appeal from a judgment which denied them relief in their civil rights action arising from an alleged unlawful search by appellees, Joseph Taylor and Gary Robinson. Gartner and Bilbrey were fifth grade students at a public school in Columbia County, Oregon. They were searched by Taylor, the school principal, and Robinson, a teacher, looking for drugs. The parents sued on behalf of the minors.

After the evidence was completed, the district court ruled that the search violated appellants' constitutional rights, but allowed the jury to decide whether appellees had immunity from monetary damages. The jury found immunity. On appeal appellants argue that, as a matter of law, appellees were not entitled to immunity, or alternatively, that the evidence was insufficient to support the jury verdict. Appellants also contend that the court erred in denying them declaratory relief, and that it

abused its discretion in refusing to grant a new trial because of prejudicial misconduct of appellees' attorney and in denying attorney's fees.

FACTS

On the morning of September 3, 1978, a school bus driver, Roberta Cunningham, observed Bilbrey and Gartner exchanging something on the school playground. ¹ Although she could not identify the contents of the exchange, Cunningham suspected drugs and reported the incident to Taylor. When classes had begun, Bilbrey, and then Gartner were removed from class and taken to the locker room by Robinson, where Taylor was waiting. Taylor informed Bilbrey that they were going to search him for drugs and Robinson then patted him down. Taylor then had Bilbrey remove all clothing except his underwear, and the appellees searched his garments. When Gartner arrived appellees patted him down and searched through his pockets but did not require him to remove his clothing. Neither search produced drugs or evidence of drug use. The parties disputed whether appellants' permission to be searched had been sought. Appellees testified that they asked permission to search; the boys stated that they were simply told they were going to be searched.

Appellants, through their parents, brought this action under 42 U.S.C. Sec. 1983 against the members of the Columbia County School Board, the Superintendent of Schools, appellees Taylor and Robinson, bus driver Cunningham, and another teacher associated with the search. Appellants sought damages and declaratory and injunctive relief for the illegal search. In addition they sought a specific declaration that the School Board guidelines, "Minimum Standards of Conduct and Discipline" (hereafter Minimum Standards), were unconstitutional on the grounds that they authorized warrantless searches of students and were unconstitutionally vague.

On cross motions for partial summary judgment the district court held that the Minimum Standards met constitutional standards. ² 481 F.Supp. 26 (D.Ore.1979). The court concluded that while students are entitled to the protection of the Fourth Amendment, and school administrators must have at least "reasonable cause" to search, they do not need a warrant "so long as [the] school is pursuing its legitimate interest in maintaining the order, discipline, safety, supervision, and education of students." Id. at 28. The court also held that the term, "school violation," was sufficiently defined in other portions of the "Minimum Standards" to survive a vagueness challenge. Id. at 29. Appellants do not appeal this ruling. ³

After a three-day jury trial the district court stated that (1) as a matter of law, appellants Taylor and Robinson, had had neither "reasonable cause" nor "probable cause" to believe that Bilbrey or Gartner had drugs in their possession ⁴ and (2) that even if the minors were held to have agreed to the searches, "under the coercive circumstances shown" the consent was invalid as a matter of law. The court then submitted to the jury whether appellees qualified for good faith immunity under Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). It also submitted the damage issue to the jury, advising them that the court had already found the searches to be unconstitutional under the Fourth Amendment and had ruled that there was no valid consent. The jury's verdict held that Taylor and Robinson were entitled to immunity and not subject to monetary liability for the searches of the We reverse.

boys. Subsequently, the court denied appellants' motion for declaratory relief and their request for attorney's fees as "prevailing parties" under 42 U.S.C. Sec. 1988.

DISCUSSION

I. Good Faith Immunity

A. Lack of Immunity as a Matter of Law

Appellants contend that, as a matter of law, Taylor and Robinson were not entitled to immunity. They argue that since the permissible scope of school searches had already been settled at the time the searches were conducted, appellees should have known that "the action [they] took ... would violate the constitutional rights" of appellants, Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975), and therefore appellees were not immune even if subjectively they actually believed they could make the searches.

In Wood due process violations by school administrators were at issue. The Supreme Court outlined the requirements of the qualified immunity defense which it had previously recognized in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The Court said that the immunity doctrine contained both subjective and objective elements. The official must have a sincere good faith belief that he is doing the right thing. ⁵ But a school official is also charged with "knowledge of the basic, unquestioned constitutional rights of his charges," and therefore is immune only if he reasonably believed he had a lawful right to take the action in question. Wood, 420 U.S. at 322, 95 S.Ct. at 1001. The Court concluded:

[W]e hold that a school board member is not immune from liability for damages under Sec. 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student. That is not to say that school board members are "charged with predicting the future course of constitutional law." Pierson v. Ray, 386 U.S. , at 557 [87 S.Ct. 1213 at 1219, 18 L.Ed.2d 288]. A compensatory award will be appropriate only if the school board member has acted with such an impermissible motivation or with such disregard of the student's clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.

Id.

Subsequently, in Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), the Court explained that the objective element of the good faith defense is not available to state officials:

[I]f the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right, and if they knew or should have known that their conduct violated the constitutional norm.

Id. at 562, 98 S.Ct. at 860. In Procunier, prison officials who stopped outgoing prison In this case, although at the time of the search there were no explicit rulings of the Supreme Court or of this circuit concerning school searches, the basic Fourth Amendment rights of students had been sufficiently well-established that appellees were adequately on notice. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969) and Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), the Supreme Court warned that in writing and enforcing standards of conduct that school administrators "must [act] consistently with constitutional safeguards." 419 U.S. at 574, 95 S.Ct. at 736. In Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967), the Court held that the Fourth Amendment protection applies even where the results of a search will not be used in a criminal prosecution.

                mail were held entitled to immunity as a matter of law since the constitutional rights of prisoners to correspond with persons outside the prison had then not yet been established.  Therefore, the officials "could not reasonably have been ... aware of a constitutional right that had not yet been declared."    Id. at 565, 98 S.Ct. at 861;  see Midwest Growers Co-op. v. Kirkemo, 533 F.2d 455 (9th Cir.1976);  see also Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2739, 73 L.Ed.2d 396 (1982) (If law at the time was not clearly established an official "could not be expected to anticipate subsequent legal developments.")
                

Before this case arose, many courts, including the Oregon Court of Appeals, had generally held that student searches are subject to Fourth Amendment standards. See e.g., Piazzola v. Watkins, 442 F.2d 284, 287 (5th Cir.1971); Bellnier v. Lund, 438 F.Supp. 47, 53 (N.D.N.Y.1977); M. v. Board of...