Ohio Civil Service Employees Ass'n v. Seiter

• Citation: 858 F.2d 1171
• Decision Date: 04 October 1988
• Docket Number: Nos. 85-3836,87-3040,s. 85-3836
• Parties: OHIO CIVIL SERVICE EMPLOYEES ASSOCIATION, et al., Plaintiffs-Appellees, v. Richard P. SEITER, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1171

858 F.2d 1171

3 Indiv.Empl.Rts.Cas. 1623

OHIO CIVIL SERVICE EMPLOYEES ASSOCIATION, et al., Plaintiffs-Appellees, v. Richard P. SEITER, et al., Defendants-Appellants.

Nos. 85-3836, 87-3040.

United States Court of Appeals Sixth Circuit.

Argued Jan. 12, 1988.

Decided Oct. 4, 1988.

Gene W. Hollicker, Chief, Federal Litigation Sec., Columbus, Ohio, William J. Edwards, Asst. Atty. Gen., William J. Steele, argued, for defendants-appellants.

Dennis R. Morgan, Columbus, Ohio, for Intervenor.

Craig Becker, Lead Counsel, argued, Kirschner, Weinberg, Dempsey, Washington, D.C., Marc Mezibov, Furer, Moskowitz & Mezibov, Cincinnati, Ohio, for plaintiffs-appellees.

Before ENGEL, Chief Judge ^*, and KENNEDY and KRUPANSKY, Circuit Judges.

ENGEL, Chief Judge.

The single issue in this appeal is whether Ohio prison officials are entitled to qualified immunity from a suit arising from their decision to authorize strip and body cavity searches of prison employees. Since we conclude that the Fourth Amendment right to be free of such searches was not clearly established at the time of their implementation, we hold that the Ohio officials were indeed immune from personal liability.

Plaintiffs, nine present and former prison guards employed by the Ohio Department of Rehabilitation and Correction and their labor union, initiated this action against defendants, the director of the department and eleven present and former superintendents, on February 22, 1985, alleging that defendants had conducted strip searches and body cavity searches on them without probable cause or search warrants from 1979 until the date the complaint was filed. Plaintiffs further allege that some of the searches were motivated by race, some were in retaliation for plaintiffs' exercise of their First Amendment rights and some were intended as a means of discipline. Plaintiffs claim that these actions constitute violations of 42 U.S.C. Sec. 1983 and 42 U.S.C. Sec. 1985.

The defendants moved for judgment on the pleadings, alleging that they were entitled to a defense of qualified good faith immunity from suit because the acts that plaintiffs alleged did not violate clearly established statutory or constitutional rights. The district court, in an order of October 1, 1985, denied defendants' motion, finding that their use of consent forms was evidence that they should have hesitated before conducting warrantless searches.

Defendants appealed this ruling to our court. On January 24, 1986, 785 F.2d 309, we remanded the case to the district court, noting that it had failed to make explicit findings that defendants' alleged acts had violated clearly established law when they were allegedly committed. The district court issued an opinion on December 23, 1986, reaffirming its previous opinion that the defendants could not assert good faith immunity.

In denying the defense of qualified, good faith immunity, the district court relied on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), stating: "Katz sets forth a per se rule of the unlawfulness of any warrantless search not falling within an articulated exception, and recognizes a basic constitutional right to be free from unreasonable searches, unless the conduct alleged falls within an exception to the per se rule." The court held that given the per se rule, a Fourth Amendment violation had been clearly established, even though neither this circuit nor the Supreme Court had ever confronted the specific issue of strip and body cavity searches of prison employees. The court further relied on Security & Law Enforcement Employees, District Council 82 v. Carey, 737 F.2d 187 (2d Cir.1984), which held that strip and body cavity searches of prison employees could not be conducted without at least a reasonable suspicion of wrongdoing. The court stated that this decision added to the evidence that clearly established the protected right in this case.

Until recently, the controlling Supreme Court case on qualified immunity, Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), had set out a two part standard for determining whether immunity applied to a particular situation. Under Strickland an official:

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....

Id. at 322, 95 S.Ct. at 1001. The first standard is known as the objective test while the second is referred to as the subjective test.

The law of qualified immunity was dramatically changed by the Court in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). First, the Court stated the reasons for cloaking public officials with qualified immunity:

In situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees.... At the same time, however, it cannot be disputed seriously that claims frequently run against the innocent as well as the guilty--at a cost not only to the defendant officials, but to society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will "dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties." Gregoire v. Biddle, 177 F.2d 579, 581 (CA2 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950).

Id. at 816-17, 102 S.Ct. at 2737-38. The Court held that bare allegations of malice are insufficient to defeat a claim of qualified immunity if a government official's conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. at 2738. Thus, the Harlow opinion virtually eliminated the subjective test.

Decisions rendered after Harlow have reaffirmed the Court's commitment to an objective test. In Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984), the Court stated that:

Harlow v. Fitzgerald rejected the inquiry into state of mind in favor of a wholly objective standard.... Whether an official may prevail in his qualified immunity defense depends upon the "objective reasonableness of [his] conduct as measured by reference to clearly established law." No other "circumstances" are relevant to the issue of qualified immunity.

Id. at 191, 104 S.Ct. at 3017 (citations omitted). Recently, in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Court again upheld the objective test, stating that a government official "is immune unless his actions violated clearly established law." Id. at 530, 105 S.Ct. at 2817. Thus, it is now plain that we must confine ourselves on this appeal to a determination of whether the Fourth Amendment encompasses the right of prison employees to be free from warrantless strip and body cavity searches and, if so, whether that right was clearly established at the time the searches took place.

The district court did not discuss which party must plead or prove which aspects of the qualified immunity issue. However, in Dominique v. Telb, 831 F.2d 673 (6th Cir.1987), we held that if a defendant raises a qualified immunity defense, a plaintiff must plead that any constitutional violation alleged has been clearly established:

[W]here as here plaintiff seeks damages from the defendant in his individual capacity for an act committed under color of law, we believe that he should normally include in the original complaint all of the factual allegations necessary to sustain a conclusion that defendant violated clearly established law. If he does not, however, and if a qualified immunity challenge is made to the complaint, then, we believe, the court must accord the plaintiff an opportunity to come forward with such additional facts or allegations that show not only violations of his constitutional rights, but also that these rights were so clearly established when the acts were committed that any officer in the defendant's position, measured objectively, would have clearly understood that he was under an affirmative duty to have refrained from such conduct. Anderson v. Creighton, [--- U.S. ----] 107 S.Ct. at 3039 [97 L.Ed.2d 523 (1987) ].

Id. at 676. On the issue of the burden of proof, we stated:

Even though qualified immunity is an affirmative defense, the district court should not require the defendant to prove, upon penalty of denial of his motion, that the conduct plaintiff alleged did not violate clearly established law. Nor does any dispute regarding whether defendant should have known such conduct violated clearly established law create "a genuine issue of material fact" so as to preclude summary judgment. Rather, under these circumstances, the district court must decide the purely legal question of whether the law at the time of the alleged action was clearly established in favor of the plaintiff.

Id. Since Harlow v. Fitzgerald eliminated the subjective test, the court is left with a pure question of law: Did the conduct complained of constitute a clearly established violation of statutory or constitutional law at the time that it occurred?

The district court erred in holding that Katz, supra, coupled with the absence of precedent exempting searches of prison employees from the "per se" rule of Katz was sufficient to defeat a finding of qualified immunity. The specific issue in Katz was addressed not to body cavity searches but to whether electronic surveillance of calls placed from a public telephone booth constituted a Fourth Amendment violation. Prior to Katz, ...