Warner v. Grand County

• Decision Date: 13 June 1995
• Docket Number: No. 94-4094,94-4094
• Citation: 57 F.3d 962
• Parties: Rebecca WARNER and Pamela Ann Laxton, Plaintiffs-Appellants, v. GRAND COUNTY, Ron Richmond, James B. Nyland and Robin A. Parker, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 962

57 F.3d 962

Rebecca WARNER and Pamela Ann Laxton, Plaintiffs-Appellants, v. GRAND COUNTY, Ron Richmond, James B. Nyland and Robin A Parker, Defendants-Appellees.

No. 94-4094.

United States Court of Appeals Tenth Circuit.

June 13, 1995.

Eric P. Swenson, Monticello, UT (Paul G. Amann and Michael H. Wray of Amann & Wray, L.C., Salt Lake City, UT, with him on the briefs), for plaintiffs-appellants.

Karra J. Porter (Dale J. Lambert with her on the brief) of Christensen, Jensen & Powell, P.C., Salt Lake City, UT, for defendants-appellees.

Before SEYMOUR, Chief Judge, ALDISERT ^* and BALDOCK, Circuit Judges.

SEYMOUR, Chief Judge.

Pamela Laxton and Rebecca Warner filed this 42 U.S.C. Sec. 1983 suit challenging the constitutionality of strip searches. The district court granted summary judgment in favor of all defendants. Ms. Laxton and Ms. Warner appeal, and we affirm.

I.

On January 24, 1991, Officer Ron Richmond and three other officers were instructed to locate Terry Todd for purposes of a probation check. Officer Richmond sighted Mr. Todd entering a grocery store. Mr. Todd emerged accompanied by Ms. Laxton and Ms. Warner; all three then entered Ms. Warner's car. Officer Richmond observed Ms. Laxton, Ms. Warner, and Mr. Todd light and relight what appeared to be a marijuana pipe. When Ms. Warner started the engine, the officers ordered the three occupants out of the car and told them to lean across the vehicle. Ms. Laxton placed the pipe between her body and the car as she bent over the hood, and when she straightened, the pipe fell out. An officer then pat searched Ms. Laxton. Upon request, Ms. Warner produced marijuana from her coat pocket. The officers arrested and handcuffed Ms. Laxton and Ms. Warner and then took them to the Grand County Sheriff's Office.

En route, Officer Richmond requested that female personnel be available to conduct strip searches. Robin Parker, a director of a local crisis center who assisted male officers in transporting female detainees, was present at the Grand County Sheriff's Office when Officer Richmond called for assistance. Upon Officer Richmond's request, Ms. Parker remained at the sheriff's office to assist in the strip searches.

When plaintiffs arrived, Ms. Parker and Roxie Mallen, a dispatcher, performed the strip searches in a private room with no men present. The searches did not uncover any contraband. Grand County then charged Ms. Laxton and Ms. Warner with possession of marijuana, a misdemeanor, and released them.

Ms. Laxton and Ms. Warner sued Officer Richmond, Sheriff Nyland, Ms. Parker and Grand County for damages under 42 U.S.C. Sec. 1983, alleging that the strip searches violated their First, Fourth, Fifth, Ninth, and Fourteenth Amendment rights. In response to the defendants' motion for summary judgment, the district court granted summary judgment in favor of (1) Officer Richmond on the basis of qualified immunity; (2) Ms. Parker on the basis of common law immunity; and (3) Sheriff Nyland and Grand County because their failure to train officers in strip searches did not amount to deliberate indifference to plaintiffs' constitutional rights. Ms. Laxton and Ms. Warner appeal these three rulings. We affirm for the reasons set forth below.

II. Immunity of Officer Richmond and Robin Parker

We review de novo the district court's grant of summary judgment in favor of Officer Richmond on the basis of qualified immunity and Ms. Parker on the basis of common law immunity. See Powell v. Gallentine, 992 F.2d 1088, 1090 (10th Cir.1993).

A. Officer Richmond

Government officials performing discretionary functions enjoy qualified immunity from civil damage suits if their conduct did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). We have held that "in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as plaintiff maintains." Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). Furthermore, the law must be clearly established at the time the alleged illegal conduct occurred. Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738. Therefore, in order for plaintiffs to prevail, the law regarding the constitutionality of the strip searches in the instant case must have been clearly established on or before January 24, 1991.

On that date, it was clearly established in this circuit that a brief intermingling with the general jail population does not justify a strip search absent reasonable suspicion of drugs or contraband. Hill v. Bogans, 735 F.2d 391, 394 (10th Cir.1984). It was also clearly established that a strip search is justified if the suspect is to be "placed in the general jail population and has been charged with a drug offense such as possession of marijuana." Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1434 (10th Cir.1984), cert. denied, 474 U.S. 818, 106 S.Ct. 65, 88 L.Ed.2d 53 (1985). On one end of the spectrum, Hill instructs that brief intermingling with the general jail population is insufficient to support a strip search; on the other end, Lusby holds that a drug offense charge plus intermingling is sufficient.

The facts in the instant case present a situation somewhere in the middle of this continuum. The evidence shows that Grand County had no intention of intermingling Ms. Laxton or Ms. Warner with its jail population. In fact, on the date in question, Grand County only temporarily detained female arrestees. Given the nature of the offense for which Ms. Laxton and Ms. Warner were arrested, however, Officer Richmond had reasonable suspicion that they possessed additional drugs. We cannot find any Tenth Circuit or Supreme Court authority which determines the constitutionality of a strip search under such circumstances. Without addressing the merits of the constitutional issue, we hold that it was not clearly established on the date in question that a strip search following an arrest for possession of marijuana, a misdemeanor for which there was no risk that the suspects would be intermingled with the general jail population, was unconstitutional. Accordingly, we conclude that Officer Richmond is entitled to qualified immunity.

B. Robin Parker

The district court granted summary judgment in favor of Ms. Parker based on a common law rule shielding private citizens from liability for "good faith" attempts to assist law enforcement officers. The district court noted that the Supreme Court's recent decision in Wyatt v. Cole, 504 U.S. 158, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992), did not necessarily preclude qualified immunity, but chose instead to grant summary judgment on the basis of the common law defense. Plaintiffs argue that Ms. Parker should not benefit from qualified immunity or any common law defense. We affirm, but on the basis of qualified immunity rather than the common law.

Only a defendant acting "under color of state law" may violate section 1983. A private individual may act "under color of state law" if exercising powers "traditionally exclusively reserved to the state." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 454, 42 L.Ed.2d 477 (1974). Ms. Parker, a private individual, acted under color of state law in conducting a strip search for contraband at the request of Officer Richmond. As an "auxiliary" to police search procedures, Ms. Parker exercised a search power which has traditionally been reserved for the states. See Rodriques v. Furtado, 950 F.2d 805, 814 (1st Cir.1991) (private physician who conducted vaginal search of drug suspect pursuant to search warrant was a state actor for purposes of section 1983 claim). We therefore conclude that Ms. Parker acted under color of state law in assisting Officer Richmond with the strip searches.

Because Ms. Parker assumed the role of a state actor when conducting the searches, she may be entitled to qualified immunity. In addressing this issue, we confront the following narrow question: does a private individual who performs a unique government function at the request of a state official who enjoys qualified immunity also enjoy qualified immunity? We hold that she does.

Rodriques, 950 F.2d 805, is analogous to the instant case. There, Dr. Falkoff, a private doctor acting under color of state law, performed a vaginal cavity search pursuant to a search warrant. The court held that Dr. Falkoff was entitled to the qualified immunity that police would have enjoyed if they had conducted the search:

Where a private physician agrees to assist police in search procedures which police cannot reasonably, hygienically or safely perform, the physician is entitled to no less protection than the police would be if they could reasonably perform the search.

Id. at 815. Ms. Parker, like Dr. Falkoff, was called upon by the state to perform an investigatory function. In Rodriques, Dr. Falkoff's medical training qualified him, as opposed to various state officials, to execute the search warrant and conduct the vaginal cavity search. Likewise, Ms. Parker, a female, could conduct the strip searches of two female detainees less intrusively than the male officials present at the Grand County Sheriff's Office. While the court in Rodriques emphasized that Dr. Falkoff acted pursuant to a facially valid search warrant, we believe there is no functional difference between a doctor executing a search warrant and Ms. Parker executing an officer's ostensibly pressing request to conduct a strip search. In both cases, the state "requested" that a private citizen serve as its agent to carry out a task it was underqualified to perform itself. We therefore adopt the reasoning of Rodriques and hold that Ms. Parker is entitled to qualified immunity.

Plaintiffs...