True v. State Of Neb.

• Decision Date: 09 July 2010
• Docket Number: No. 09-1788.,09-1788.
• Citation: 612 F.3d 676
• Parties: Brian TRUE, Appellant,v.State of NEBRASKA; Robert Houston, Director, Department of Correctional Services, an Agency of the State of Nebraska; Diane Sabatka-Rine, Warden, Lincoln Correctional Center; Robert Madsen, Deputy Warden, Lincoln Correctional Center; Darlene Percival, Lincoln Correctional Center, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

612 F.3d 676

Brian TRUE, Appellant,v.State of NEBRASKA; Robert Houston, Director, Department of Correctional Services, an Agency of the State of Nebraska; Diane Sabatka-Rine, Warden, Lincoln Correctional Center; Robert Madsen, Deputy Warden, Lincoln Correctional Center; Darlene Percival, Lincoln Correctional Center, Appellees.

No. 09-1788.

United States Court of Appeals,

Eighth Circuit.

Submitted: Feb. 9, 2010.

Filed: July 9, 2010.

COPYRIGHT MATERIAL OMITTED

Calvin Hansen, argued, Lincoln, NE, for Appellant.

Ryan C. Gilbride, AAG, argued, Lincoln, NE, for Appellee.

Before LOKEN,¹ Chief Judge, GRUENDER and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Brian L. True's employment at a Nebraska correctional facility was terminated because he refused to allow a random, suspicionless search of his vehicle. He sued under 42 U.S.C. § 1983, claiming a violation of his constitutional rights under the First, Fourth, and Fourteenth amendments. The district court granted summary judgment to the defendant State and its correctional officials. True appeals the Fourth and Fourteenth amendment rulings. Having jurisdiction under 28 U.S.C. § 1291, this court reverses in part, affirms in part, and remands.

I.

The Department of Correctional Services (DCS) employed True at the Lincoln Correction Center (LCC) from January 3, 1995, until June 28, 2007. In order to prevent contraband from entering the prison, DCS conducts unannounced searches of employees' vehicles in its lots, by selecting five stalls randomly from a diagram of the parking lot. The LCC lot is outside the prison's confines. Most of the prisoners do not have access to it, but “community custody” inmates apparently do.

When hired, True received a copy of (and pledged to read) the DCS employee handbook, which says that “vehicles parked on state property are subject to search at any time,” and that refusal “to submit to a search may constitute grounds for disciplinary action and/or suspension.” On April 7, 2007, stall 7 on the south row was selected for a search to occur the next week. On April 13, True was informed that his car, parked in stall 7, had been selected for a random search. True refused to allow a search of his car; none occurred. A superior informed him he would be disciplined for refusing to consent to the search.

On May 31, DCS held a disciplinary hearing. True said that he would not comply with any future random searches of his vehicle if he returned to work. After the hearing, he was terminated.

II.

“We review a grant of summary judgment de novo and apply the same standards as the district court.” Cordry v. Vanderbilt Mortgage & Fin., Inc., 445 F.3d 1106, 1109 (8th Cir.2006). “Summary judgment is warranted if the evidence, viewed in the light most favorable to the nonmoving party, shows that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.” Id. at 1109-10. “If ‘opposing parties tell two different stories,’ the court must review the record, determine which facts are material and genuinely disputed, and then view those facts in a light most favorable to the non-moving party, as long as those facts are not so ‘blatantly contradicted by the record ... that no reasonable jury could believe’ them.” Reed v. City of St. Charles, 561 F.3d 788, 790 (8th Cir.2009) quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

A.

True argues that the district court erred in granting the defendants' motion for summary judgment on his Fourth Amendment claim. Defendants respond that True has no standing to assert Fourth Amendment rights, as no search took place. In order to have standing, there must be (1) an injury in fact, (2) a causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury is redressable by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Here, True lost his job, an injury-in-fact. As to the second element, the conduct-complained-of is the defendants' enforcement of a policy of randomly searching employee vehicles, which led to True's termination. Defendants assert that because no search occurred, his injury was not caused by a Fourth Amendment violation. However, this court has held: “If a search is unreasonable, a government employer cannot require that its employees consent to that search as a condition of employment.” McDonell v. Hunter, 809 F.2d 1302, 1310 (8th Cir.1987) (citing Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)); see also City of Ontario v. Quon, --- U.S. ----, ---- - ----, 130 S.Ct. 2619, 2627-28, 177 L.Ed.2d 216 (2010) (“[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer,” quoting O'Connor v. Ortega, 480 U.S. 709, 717, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (plurality opinion)). Finally, the injury here would be redressable; True asks for reinstatement, lost pay, other damages, and injunctive relief against enforcement of the random vehicle search policy. True has standing to assert a violation of his Fourth Amendment rights.

Defendants next contend that True impliedly consented to any search of his vehicle, and thus waived his Fourth Amendment claim, because signs at the entrance to the LCC parking lot tell employees that if they park there, their vehicles are subject to search. “Whether consent was given is a determination to be made from the totality of the circumstances.” United States v. Oyekan, 786 F.2d 832, 838 (8th Cir.1986) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). A valid consent to a search waives all Fourth Amendment claims. See, e.g., Schneckloth, 412 U.S. at 219, 93 S.Ct. 2041. And, an employer cannot require consent to an unreasonable search as a condition of employment. See, e.g., McDonell, 809 F.2d at 1310. While it is unclear whether an employer can require consent to an unreasonable search as a condition to use a parking lot,² it is unnecessary to address that question because from the totality of the circumstances, True did not consent to any search of his vehicle. When asked for consent to search his car, he explicitly refused (to the point of being fired).

The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures....” “ ‘The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government,’ without regard to whether the government actor is investigating crime or performing another function.” Quon, 130 S.Ct. at 2627-28 quoting Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 613-14, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). “The Fourth Amendment applies as well when the Government acts in its capacity as an employer.” Id.

The Supreme Court recently held that a city did not violate the Fourth Amendment rights of an employee police officer by reviewing his text messages sent and received by city-issued pagers. Quon, 130 S.Ct. at 2633. The Court applied the approaches of both the four-Justice plurality and Justice Scalia's concurrence in O'Connor v. Ortega. Id. 130 S.Ct. at 2628-33. “A four-Justice plurality concluded that the correct analysis has two steps,” first whether the employee had a reasonable expectation of privacy, considering the “operational realities of the workplace.” Quon, 130 S.Ct. at 2628 (citing O'Connor, 480 U.S. at 717, 107 S.Ct. 1492 (plurality opinion)). “On this view ‘the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.’ ” Id., quoting O'Connor, 480 U.S. at 718, 107 S.Ct. 1492 (plurality opinion). “Next, where an employee has a legitimate privacy expectation, an employer's intrusion on that expectation ‘for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.’ ” Id., quoting O'Connor, 480 U.S. at 725-26, 107 S.Ct. 1492 (plurality opinion).

Justice Scalia, concurring in the judgment in O'Connor, would have held at step one “that the offices of government employees ... are covered by Fourth Amendment protections as a general matter.” O'Connor, 480 U.S. at 731, 107 S.Ct. 1492 (concurring in judgment). At the second step, Justice Scalia would have held that “government searches to retrieve work-related materials or to investigate violations of workplace rules-searches of the sort that are regarded as reasonable and normal in the private-employer context-do not violate the Fourth Amendment.” Id. at 732, 107 S.Ct. 1492 (concurring in judgment).

Under the plurality's step one, Fourth Amendment rights are implicated only if the conduct of government officials infringes “an expectation of privacy that society is prepared to consider as reasonable.” O'Connor, 480 U.S. at 715, 107 S.Ct. 1492 (plurality opinion), ( quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). “Because the reasonableness of an expectation of privacy, as well as the appropriate standard for a search, is understood to differ according to context, it is essential first to delineate the boundaries of the workplace context. The workplace includes those areas and items that are related to work and are generally within the employer's control.” Id. “Individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer. The operational realities of the workplace, however, may make some employees' expectations of privacy unreasonable when an intrusion is by a supervisor rather than a law enforcement official.” Id. at 717, 107 S.Ct. 1492 (emphasis in original). “The employee's expectation of privacy must be assessed...