Smothers v. Gibson, 85-1745

• Decision Date: 27 November 1985
• Docket Number: No. 85-1745,85-1745
• Parties: Burlis SMOTHERS, Appellant, v. Lt. J. GIBSON; Off. J. Stephens; Warden Willis Sargent, Warden of the Cummins Unit of the Arkansas Department of Correction; A.L. Lockhart, Director of the Arkansas Department of Correction; Off. Outlaw; Major Young; Warden Terry; Warden Larry Norris; Jane Doe; Mary Doe, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 470

778 F.2d 470

Burlis SMOTHERS, Appellant, v. Lt. J. GIBSON; Off. J. Stephens; Warden Willis Sargent,

Warden of the Cummins Unit of the Arkansas Department of

Correction; A.L. Lockhart, Director of the Arkansas

Department of Correction; Off. Outlaw; Major Young;

Warden Terry; Warden Larry Norris; Jane Doe; Mary Doe, Appellees.

No. 85-1745.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 19, 1985.

Decided Nov. 27, 1985.

John Wesley Hall, Jr., Little Rock, Ark., for appellant.

Randal Miller, Asst. Atty. Gen., Little Rock, Ark., for appellees.

Before HEANEY, Circuit Judge, BRIGHT, Senior Circuit Judge, and BOWMAN, Circuit Judge.

HEANEY, Circuit Judge.

Burlis Smothers, a seventy-two year old woman, appeals from the district court's order granting the defendant's motion for summary judgment and dismissing her claim for damages under 42 U.S.C. Sec. 1983 for alleged civil rights violations arising out of a strip search. Smothers was searched by personnel of the Cummins Unit of the Arkansas Department of Correction while she was visiting her son who is confined at that institution. The district court determined that the Cummins Unit was entitled to qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), because the law on when a strip search is constitutionally permissible was not clearly established at the time of the search. We hold that summary judgment was inappropriate and reverse and remand.

FACTS

In December of 1981 or January of 1982, Burlis Smothers visited the Cummins Unit of the Arkansas Department of Correction where her son was incarcerated. After visiting for approximately one hour, Smothers went to the restroom. As she was returning, she was intercepted by Lt. Steve Outlaw and, without being told why, she was ordered to follow him. She was taken to a room and was strip searched by a female officer. The body search revealed no drugs or other contraband.

Smothers had been visiting her son every other week for the preceding eight years. She had been strip searched at least seven times in that eight years. None of those searches had proved fruitful. Moreover, the prison authorities had never discovered any drugs in her son's possession.

Assistant Warden of Security Larry Norris ordered the strip search, allegedly because of an informant's tip that she allegedly would be bringing drugs into the prison. At the time of this search, Arkansas law ¹ as well as a policy of the Arkansas Department of Correction ² specifically authorized searches of any visitors to the institution. (While neither the statute nor the prison rule specifically authorized strip searches, the prison officials construed them to permit such searches.)

On March 11, 1982, the Eighth Circuit determined the level of suspicion necessary to justify a strip search of a prison visitor. In Hunter v. Auger, 672 F.2d 668, 675 (8th Cir.1982), this Court announced that to be constitutionally sound, a strip search of a prison visitor must be based on "reasonable suspicion," something more than an informant's tip. Id., at 675.

On January 4, 1983, Smothers commenced this action alleging violation of her civil rights. The Cummins Unit moved for summary judgment, contending that it was entitled to qualified immunity under Harlow, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396, because the law as to when a prison visitor could be justifiably strip searched was sufficiently unsettled at the time of the search. The district court agreed and granted the motion stating: "[D]efendant's reliance on state law and department policy was not unreasonable in

                light of the uncertainty in the existing law."    Smothers appeals
                

ANALYSIS

Whether an official may prevail in his qualified immunity defense depends upon the "objective unreasonableness of [his] conduct as measured by reference to clearly established law." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Thus, the question before us is whether strip searching a sixty eight year old prison visitor, upon an informant's tip that she would be carrying drugs, was reasonable in light of the state of the law in 1981.

Smothers contends that the law prohibiting this search was clearly established prior to its occurrence. The Cummins Unit argues that it should be accorded qualified immunity from liability for damages because the law of prison visitor strip searches was not clearly established in 1981. It claims that this strip search was authorized under state law pursuant to Ark.Stat.Ann. Sec. 41-2852 (Repl.1977), and under prison Visitation Rule N. It also claims that it could not have been expected to predict future legal developments. We reject the prison's argument. The fourth amendment rights prohibiting this search were "clearly established" in 1981, and thus the search was unreasonable.

It cannot be denied that Smothers had, in 1981, a "clearly established" fourth amendment right to be free of unreasonable searches. To determine the reasonableness of any...