Knisley v. PIKE CTY. JOINT VOCATIONAL SCHOOL DIST.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0137p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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MISTY KNISLEY, BETTY HALL, PATRICIA

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SCHIESER, TERESA BRYANT, ANGELA KAY

SOWERS, SANDRA STEVENS, ANGELA -

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No. 08-3082

GILBERT, JAMES ALEXANDER, FREDA CAROL

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SNIVELY, BARBARA HOFFER, and HEATHER

Plaintiffs-Appellees, -

M. MCCLOUD,

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v.

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DISTRICT, VERN RIFFE CAREER TECHNOLOGY -

PIKE COUNTY JOINT VOCATIONAL SCHOOL

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CENTER, TONI FOUT, WENDY HARPER, -

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Defendants-Appellants. -

CHERYL SHAW, and LORNA MUSIC,

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On Remand from the United States Supreme Court.

No. 06-00097—Michael H. Watson, District Judge.

Argued: April 29, 2010

Decided and Filed: May 14, 2010

Before: MARTIN, CLAY, and KETHLEDGE, Circuit Judges.

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COUNSEL

ARGUED: John C. Albert, CRABBE BROWN & JAMES, LLP, Columbus, Ohio, for

Appellants. Michael S. Miller, VOLKEMA, THOMAS, MILLER, BURKETT, SCOTT &

MERRY, Columbus, Ohio, for Appellees. ON BRIEF: John C. Albert, CRABBE BROWN

& JAMES, LLP, Columbus, Ohio, for Appellants. Michael S. Miller, Daniel R. Volkema,

VOLKEMA, THOMAS, MILLER, BURKETT, SCOTT & MERRY, Columbus, Ohio,

Robert R. Dever, BANNON, HOWLAND & DEVER, Portsmouth, Ohio, for Appellees.

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School District, et al.

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OPINION

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BOYCE F. MARTIN, JR., Circuit Judge. On June 29, 2009, the United States

Supreme Court vacated this Court’s prior judgment in Knisley v. Pike County Joint

Vocational School District (Knisley I), No. 08-3082 (6th Cir. Dec. 8, 2008), and remanded

the case to this Court for further consideration in light of Safford Unified School District #1

v. Redding, 557 U.S. —, 129 S. Ct. 2633 (2009). Knisley v. Pike County Joint Vocational

Sch. Dist., 129 S. Ct. 2893 (2009).

Our previously unpublished order, affirming the district court’s denial of qualified

immunity in light of Beard v. Whitmore Lake School District, 402 F.3d 598 (6th Cir. 2005),

is reproduced below:

The eleven plaintiffs alleged that they and every other student in

their high school nursing class were subjected to unconstitutional strip

searches after students in the class reported that a credit card and other items

were missing. Seeking monetary, injunctive, and declaratory relief, the

plaintiffs named as defendants the Pike County Joint Vocational School

District, Vern Riffe Career Technology Center, and the administrators and

instructors who were involved in the searches, in their individual and official

capacities.

The defendants moved for summary judgment, asserting in part that

they are entitled to qualified immunity. The district court denied the

defendants’ motion, concluding that the defendants are not entitled to

qualified immunity in light of Beard v. Whitmore Lake School District, 402

F.3d 598 (6th Cir. 2005). This timely interlocutory appeal followed.

We have jurisdiction to hear an interlocutory appeal of the denial of

qualified immunity to the extent that the denial turns on an issue of law. See

v. City of Elyria, 502 F.3d 484, 489 (6th Cir. 2007). In determining whether

a defendant is entitled to qualified immunity, this court uses a two-part test:

“(1) whether, considering the allegations in a light most favorable to the

party injured, a constitutional right has been violated, and (2) whether that

right was clearly established.” Dorsey v. Barber, 517 F.3d 389, 394 (6th

Cir. 2008). The plaintiffs argue that we lack jurisdiction over the first issue

because the district court held that there was an issue of fact as to whether

a constitutional right was violated. The district court did not so hold.

Regardless, whether a constitutional right was violated is a mixed issue of

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law and fact, which we treat as an issue of law, not as an issue of fact. See

City of Elyria, 502 F.3d at 490.

The district court’s denial of summary judgment on qualified

immunity grounds is reviewed de novo. Meals v. City of Memphis, 493 F.3d

720, 728 (6th Cir. 2007). To the extent that there is a disagreement about

the facts, we must review the evidence in the light most favorable to the

plaintiffs and make all inferences in their favor. Champion v. Outlook

Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004).

The legality of a search of a student under the Fourth Amendment

depends on the reasonableness of the search under all the circumstances.

New Jersey v. T.L.O., 469 U.S. 325, 341 (1985). Determining the

reasonableness of a school search involves a two-part inquiry: (1) was the

search justified at its inception, and (2) was the search reasonably related in

scope to the circumstances justifying the search. Beard, 402 F.3d at 603-04.

The Supreme Court has held that:

Under ordinary circumstances, a search of a student by a

teacher or other school official will be “justified at its

inception” when there are reasonable grounds for suspecting

that the search will turn up evidence that the student has

violated or is violating either the law or the rules of the

school. Such a search will be permissible in its scope when

the measures adopted are reasonably related to the

objectives of the search and not excessively intrusive in

light of the age and sex of the student and the nature of the

infraction.

T.L.O., 469 U.S. at 341-42 (footnotes omitted).

In Beard, this court found that searches of students under

circumstances similar to the instant case were unreasonable and therefore

violated the Fourth Amendment. A student in a gym class reported to her

teacher that her prom money had been stolen during the class. Beard, 402

F.3d at 601. A search of the gymnasium and the students’ backpacks failed

to locate the money. Two male teachers then searched about twenty male

students individually in the boys’ shower room, with the male students

lowering their pants and underwear and removing their shirts. Two female

teachers took approximately five female students into the girls’ locker room

where the female students pulled up their shirts and pulled down their pants,

without removing their underwear, while standing in a circle. Id.

This court assumed, without holding, that the searches of the

students were justified at their inception: “That is, some search of the

persons and effects of students may be warranted when substantial property

has been reported recently stolen.” Id. at 604. In considering the scope of

the searches, the court looked to the three factors used by the Supreme Court

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in Vernonia School District 47J v. Acton, 515 U.S. 646, 654-63 (1995), to

evaluate searches performed in the absence of individual suspicion: “(1) the

student’s legitimate expectation of privacy, (2) the intrusiveness of the

search, and (3) the severity of the school system’s needs that were met by

the search.” Beard, 402 F.3d at 604. The court held that the searches were

not reasonable and violated the Fourth Amendment based on the following

facts: the nature of the searches was highly intrusive, the searches were

undertaken to find missing money, the searches were performed on a

substantial number of students, the searches were performed in the absence

of individualized suspicion, the students did not consent, and, in the case of

the female students, the searches occurred in the presence of other students.

Id. at 603-06.

In the [present] case, two students in a nursing class reported to their

instructor, Wendy Harper, that cash, a credit card, and two gift cards were

missing from their purses. After this report, the fifteen or sixteen students

in the nursing class were directed to sit down with their hands in sight.

The students were then taken one by one into the first aid room,

where Director Keith Smith dumped out their purses and flipped through

their books and another staff member, initially Lorna Music and later Cheryl

Shaw, checked their shoes, socks, and pockets. After this initial search of

each student was complete, each student’s locker was searched.

Early on during the searches in the first aid room, a student told

Smith and Shaw that an unidentified student was hiding the missing items

in her bra. Smith then directed Toni Fout, a female instructor, to take the

students into the restroom one at a time and have them unhook and shake

their bras underneath their tops and take their pants halfway down their

thighs. The plaintiffs challenge these searches in the restroom.

Assuming, as in Beard, that the searches were justified at the

inception, the controlling issue is the reasonableness of the scope of the

searches. With respect to the first factor, a legitimate expectation of

privacy, the Supreme Court has held that “[a] search of a child’s person . . .

is undoubtedly a severe violation of subjective expectations of privacy.”

T.L.O., 469 U.S. at 337-38. Students have a significant privacy interest in

their unclothed bodies. Beard, 402 F.3d at 604.

The defendants argue that the plaintiffs consented to the searches

based on their training and testing on the student handbook’s search policy.

Given the lack of mutual consent, the student handbook’s search policy

does not effect a waiver of the plaintiffs’ privacy expectations. See Doe ex

rel. Doe v. Little Rock Sch. Dist., 380 F.3d 349, 354 (8th Cir. 2004). In any

event, some of the plaintiffs testified that they were not aware of the search

policy or that they did not understand its terms to allow the searches

conducted here. The defendants also argue that the plaintiffs’ failure to

object to the searches or to request calls to their parents demonstrates

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consent. However, the record supports that at least one plaintiff objected

and was told that she had to comply, and that another asked to call her

mother after being searched, and her request was denied.

As for the intrusiveness of the searches, the defendants argue that

the plaintiffs did not expose any skin, were not required to remove their

underwear, and were not touched. The students wore nursing scrubs with

the top falling below the waist but not covering the rear. Some students

exposed their stomachs while reaching under their tops to unhook and

shake their bras. Fout allowed some students to lower their pants to

mid-thigh level but required others to drop their pants down further to their

knees or ankles. One student was not wearing underwear, while others

wore thongs or “booty shorts” exposing their butt cheeks. Fout snapped

one student’s bra and lifted up another’s top to see the student’s underwear.

The intrusiveness of the searches was similar to the search of the female

students in Beard, except that the plaintiffs were not required to lift their

tops all the way up and were searched individually in the presence of a

single staff member rather than in front of one another. See Beard, 402

F.3d at 606.

Under the particular circumstances of this case, the severity of the

school system’s needs was slight. As this court noted in Beard, “a search

undertaken to find money serves a less weighty governmental interest than

a search undertaken for items that pose a threat to the health or safety of

students, such as drugs or weapons.” Id. at 605. The lack of individualized

suspicion and the search of the entire class further diminish the defendants’

interest:

The government may have a comparatively strong interest

in searching a particular student reasonably suspected of

theft because of the likelihood that the search will be

successful. Such interest is diluted considerably when,

instead of one, two, or three students, the school officials

search over twenty students, without reason to suspect that

any particular student was responsible for the alleged theft.

In that case the intrusive search of each individual is that

much less likely to be successful.

Id.

The defendants argue that they had individualized suspicion of the

entire group of students because everyone was sure that the theft occurred

during the class and none of the students left the room. This argument is

undercut by the fact that other students entered the room during the class

to take photos for the yearbook. Furthermore, an “individualized

suspicion” denotes that a particular person is suspected of wrongdoing

rather than a group of persons who happen to be in the same place. See

Ybarra v. Illinois, 444 U.S. 85, 91 (1979). In the Beard case, as in this

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case, the money was reportedly stolen during the class, and the court noted

that the defendants lacked individualized suspicion because they did not

have “reason to suspect that any particular student was responsible for the

alleged theft.” 402 F.3d at 605. Director Smith admitted that he did not

have any reason to suspect one student over another. Therefore, the

defendants lacked individualized suspicion.

The cases cited by the defendants in support of the constitutionality

of the searches are distinguishable. While the searches in those cases were

at least as intrusive as the searches conducted here, those cases all involved

two factors not present here—(1) individualized suspicion of (2) possession

of drugs or weapons—that weighed in the government’s favor. Jenkins ex

rel. Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 823-27 (11th Cir.

1997) (drugs); Cornfield ex rel. Lewis v. Consol. High Sch. Dist. No. 230,

991 F.2d 1316, 1320-24 (7th Cir. 1993) (drugs); Williams ex rel. Williams

v. Ellington, 936 F.2d 881, 885-89 (6th Cir. 1991) (drugs); Tarter v.

Raybuck, 742 F.2d 977, 981-83 (6th Cir. 1984) (drugs); Richardson v. Bd.

of Educ. of Jefferson County, Ky., No. 3:04-CV-386R, 2006 WL 2726777,

at *3-*5 (W.D. Ky. Sept. 22, 2006) (explosive device); Widener v. Frye,

809 F. Supp. 35, 37-38 (S.D. Ohio 1992) (drugs).

In light of Beard, the following facts lead to the conclusion that the

scope of the searches of the plaintiffs was not reasonable: the plaintiffs had

a legitimate expectation of privacy in their bodies, the plaintiffs did not

consent, the searches were highly intrusive, the searches were undertaken

to find monetary items, the defendants searched an entire class of students,

and the defendants lacked individualized suspicion. Accordingly,

considering the allegations in a light most favorable to the plaintiffs, the

searches violated the plaintiffs’ constitutional rights under the Fourth

Amendment.

The defendants may still be entitled to qualified immunity if their

actions 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 (1982). For a constitutional right to be clearly

established, “[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). To determine

whether a constitutional right is “clearly established,” the court looks to

decisions of the Supreme Court, then to decisions of this court and courts

within this circuit, and last to decisions of other circuits. Ciminillo v.

Streicher, 434 F.3d 461, 468 (6th Cir. 2006).

The defendants argue that the Beard case did not place them on

notice that the searches were unconstitutional, attempting to distinguish

Beard based on the number of students involved in the searches, the

location of the searches, the extent of undress required in the searches, and

the presence of individualized suspicion in the instant case. As discussed

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above, the defendants in this case, as in Beard, lacked individualized

suspicion. With the exception of the extent of undress, the defendants focus

on minor details. “In order for a constitutional right to be clearly

established, there need not be a case with the exact same fact pattern, or

even ‘fundamentally similar’ or ‘materially similar’ facts; rather, the

question is whether the defendants had ‘fair warning’ that their actions were

unconstitutional.” Cummings v. City of Akron, 418 F.3d 676, 687 (6th Cir.

2005). Given that the Beard case held that searches under materially

similar facts violated the Fourth Amendment, the defendants had fair

warning that their actions were unconstitutional. The district court properly

held that the defendants are not entitled to qualified immunity.

For the foregoing reasons, we affirm the district court’s order

denying the defendants qualified immunity.

Knisley I, No. 08-3082 (6th Cir. Dec. 8, 2008).

The United States Supreme Court has asked us to reconsider this case in light of

Redding, in which the Court invalidated a strip search of a female student when looking for

ibuprofen tablets. Redding, 129 S. Ct. at 2642-43. The Court, however, found that the

officials at issue were nevertheless protected by qualified immunity because (1) there was

no clearly established law finding unconstitutional the strip searching of students under

materially similar circumstances from the Supreme Court and (2) the appellate courts who

had ruled in factually similar circumstances were not in concert. Id. at 2643-44.

Essentially, the Redding defendants were entitled to qualified immunity because neither the

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Supreme Court nor the Ninth Circuit had clearly established case law on point and there

was no national consensus on this issue among the Circuits at the time of the Redding

search. Id.

However, this Circuit’s law on student strip searches was clearly established as

early as 2005, when we published our opinion in Beard. We read Redding to affirm our

constitutional holding in Beard. Thus, because Beard remains good constitutional law

and because that law was clearly established at the time of the strip search in this case,

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Indeed, while the Ninth Circuit found no qualified immunity, it acknowledged that there was

no pre-existing precedent directly on point. Redding v. Safford Unified Sch. Dist. No. 1, 531 F.3d 1071,

1087 (9th Cir. 2008) (en banc) (“That there is no case precisely on all fours does not preclude the

conclusion that the Fourth Amendment right at issue was clearly established when the school officials

stripped and searched [the plaintiff].”).

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Redding does not require a result contrary to that reached in Knisley I. Cf. Foster v.

Raspberry, 652 F. Supp. 2d 1342, 1352 (M.D. Ga. 2009). Our Circuit’s clearly

established case law on this issue put the school and its employees on notice that this

search was unconstitutional, so defendants are not entitled to qualified immunity

protection.

We therefore AFFIRM the district court’s denial of qualified immunity for

defendants.