Milligan v. City of Slidell

REVISED, OCTOBER 5, 2000

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-31335

DIANE MILLIGAN, Individually and on Behalf of her Minor Son, Eric

Milligan; WAYNE WALKER, Individually and on Behalf of his Minor

Son, Logan Walker; JOHN LAURENSON, Individually and on Behalf of

his Minor Son, Nathan Laurenson; RICARDO S. CRUZ, SR.,

Individually and on Behalf of his Minor Son, Chance Cruz; DENNIS

KAHOE, Individually and on Behalf of his Minor Son, Rocky Kahoe,

Plaintiffs-Appellees-Cross-Appellants,

v.

THE CITY OF SLIDELL, through the Slidell Police Department,

Defendant-Cross-Appellee,

JOHN EMERY, Sergeant, and LOUIS THOMPSON, Reserve Officer

Defendants-Appellants-Cross-Appellees

Appeals from the United States District Court for the

Eastern District of Louisiana

September 27, 2000

Before REYNALDO G. GARZA, JONES and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge:

In this civil rights case, the district court held that

police officers nominally invaded the rights of high school students

by having them called out of class for questioning about a rumored

after-school fight. We reverse. Even assuming that the students

had some kind of right to avoid detention at school for disciplinary

questioning, the “seizure” effected here was reasonable because

students’ Fourth Amendment rights are evaluated according to the

“special needs” of the public school environment. See Vernovia

School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132

L.Ed.2d 564 (1995).

FACTS AND PROCEDURAL HISTORY

On January 26, 1997 a fight occurred involving several of

the plaintiffs, who attended Salmen High, and Louis Thompson’s two

high school-aged sons, who attended Slidell High in Slidell,

Louisiana. Two days later, a Salmen High student named David Gelis

contacted Thompson and informed him that a retaliatory fight,

possibly involving weapons, was to occur at Slidell. According to

Gelis, he had heard some people were “going to jump” Thompson’s

sons. Thompson contacted Emery the next morning about the possible

fight, and, after discussing the issue with Salmen’s football coach,

the three men went to Salmen High to defuse the situation.

Thompson had compiled a list of students, with the help

of his sons and perhaps also Mr. Gelis, who were alleged or known

to have been involved in the previous altercation or were believed

to be enemies of the Thompson boys. At the high school, Emery and

Thompson requested that Vice Principal Smith call certain students

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from class for questioning. Vice Principal Smith did so. The

officers first met with the coach and several football players, who

confirmed that a fight involving baseball bats was going to occur

later that day at Slidell High. The officers next met with the

plaintiffs. The meeting lasted ten to fifteen minutes, as the

officers questioned the students about the fight and warned them

that their parents would be called if a fight should occur and an

investigation connected them to it. Vice Principal Smith testified

that the officers had no physical contact with the students and that

the students appeared to want to tell their side of the story. Eric

Milligan, the only plaintiff to testify, asserted that he felt

physically intimidated and that he did not feel free to leave the

meeting, as the assistant principal had called him into her office.

The officers’ intervention succeeded in warding off any show-down.

Through their parents, the plaintiffs filed suit against

Thompson, Emery and the City of Slidell. After a bench trial, the

district court dismissed the claim against the city but held that

the two officers had violated the plaintiffs’ Fourth Amendment

rights and were not entitled to qualified immunity. Although the

plaintiffs had not proven compensatory damages, the court awarded

nominal damages. That finding deprived them of “prevailing party”

status, and the court accordingly refused to award attorneys’ fees.

Both sides appealed.

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DISCUSSION

Qualified immunity shields public officials, like the

officers here, from damages actions unless their conduct was

unreasonable in light of clearly established law. See Elder v.

Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 1123, 127 L.Ed.2d 344

(1994). In a qualified immunity case, a court often initially

decides whether the facts establish a violation of a constitutional

right at all. See Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct.

1692, 1697, 143 L.Ed.2d 818 (1999). Whether a constitutional right

has been violated is a question of law that this court reviews de

novo. See United States v. Hernandez-Zuniga, 2000 WL 767381 (5th

Cir. 2000). If the facts establish a constitutional violation,

courts then consider whether that right was clearly established.

See Wilson, 526 U.S. at 609.

The district court held that officers Emery and Thompson

violated the students’ clearly established Fourth Amendment rights

by detaining them in the Vice-Principal’s office without

particularized suspicion that any of them had engaged in or was

about to engage in criminal misconduct. The district court, unsure

how to characterize what happened, settled on the Terry case1 as the

closest Fourth Amendment analogy -- hence, he concluded, the

officers conducted an “investigative detention,” which under Terry

1

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

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requires reasonable suspicion of past or incipient criminal

activity. Even if this analysis were generally correct for

investigative activities of the sort the officers performed -- a

proposition we do not comment on -- it fails in this case because

it neglects the all-important school context.

Some elementary principles: The Fourth Amendment protects

the “right of the people to be secure in their persons, houses,

papers and effects, against unreasonable searches and seizures.”

See Terry, 392 U.S. at 8 (citing U.S. Const., amend. IV). The

central inquiry under the Fourth Amendment is whether a search or

seizure is reasonable under all the circumstances of a particular

governmental invasion of a person’s personal security. See Terry,

392 U.S. at 19. To assess the reasonableness of a search or

seizure, courts balance the governmental interest against the

invasion which the search or seizure entails. See id. at 20 - 21.

Balancing renders essential a consideration of the context

in which a Fourth Amendment right is asserted. Because this case

involves the rights of students in a public school, a full bore

Terry analysis is inappropriate.2 Rather, our inquiry is directed

by Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct.

2386, 132 L.Ed.2d 564 (1995), where the Supreme Court considered the

2

Terry pertains to investigation of suspected criminal activity. The

officers’ purpose in this case was to deter a fight, secure discipline in the

schools, and thus to avoid criminal sanctions.

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role of the Fourth Amendment in the school context. The Court

indicated that although the Fourth Amendment applies in schools, the

nature of those rights is what is appropriate for children in

school. See id. at 655 - 56. The reasonableness inquiry must take

into account the schools’ “custodial and tutelary responsibility for

children.” See id. at 656. Furthermore, students in the school

environment have a “lesser expectation of privacy than members of

the population generally.” Vernonia, 515 U.S. at 657 (quoting New

Jersey v. T.L.O., 469 U.S. 325, 348, 105 S.Ct. 733, 746, 83 L.Ed.2d

720 (1985)).

Turning to the students’ interests, it is not at all clear

that they have some privacy right not to be summoned to and detained

in a school official’s office for questioning on matters of school

discipline. The Fourth Amendment does not protect all subjective

expectations of privacy, but only those recognized by society as

legitimate. The “right” advocated by these students -- to remain

in class unhindered during the school day -- if a right at all --

is surely of less intrinsic importance than the rights not to have

one’s property searched or to avoid random drug testing for

athletics. Yet the Supreme Court held that such invasions may occur

in schools. See TLO,769 U.S. at347; Veronia, 515 U.S. at 664-65.

Indeed, any such right of unhindered attendance is logically

inconsistent with the mandate of compulsory attendance and a

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structured curriculum, and it hardly squares with the schools’

obligation to “inculcate the habits and manners of civility. . . .”

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681, 106 S.Ct.

3159, 3163 (1986). Out of caution, however, we assume that some

such right exists at a low level.

Consideration is next given to the nature and immediacy

of the governmental concern as well as the efficacy of the means

used to address it. In this case, the school sought to protect its

students, to foster self-discipline and to deter possibly violent

misconduct. These are compelling governmental interests. And the

immediacy of the concerns is obvious, since the retaliatory fight

was due to happen that day.

Furthermore, the means the officers chose to address the

potential problem was effective. They enlisted the aid of Salmen’s

football coach after learning that football players might be

involved. The coach, who was in a position to exert direct

authority and maintain discipline over his players, found out which

players to question. The officers proceeded through school channels

by using the Vice-Principal’s power to summon the plaintiffs (and

others) for interrogation and admonishment. Nothing was done that

school officials could not have done themselves. Conversely, no

more was done than necessary to discourage the fight.

The students assert that the officers’ visit may not have

been the least intrusive way to protect the school’s interests.

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However, the Supreme Court has refused to impose any least

restrictive means test upon searches under the Fourth Amendment.3

See Vernonia, 515 U.S. at 663. The district court suggested that

the officers should have just gone over to Slidell High after school

and waited to see if anything happened. This course of action

hardly seems as efficacious as the one chosen; it might well have

simply prompted a relocation or postponement of the fight. Nor

would talking to the parents have availed, for the fight was

scheduled to occur too soon for the parents to intervene.

From what has been said, it should be clear that the

privacy right asserted does not outweigh the school’s interests.

Students in the school environment have a lesser expectation of

privacy than the general population. Teachers and administrators

control their movements from the moment they arrive at school; for

example, students cannot simply walk out of a classroom. Nor can

they walk out of a principal’s or vice-principal’s office in the

middle of any official conference.4 Students at school thus have a

3

The district court stated that part of the reason it found a Fourth

Amendment violation was that there were “lot[s] of things they [Emery and

Thompson] could have done [to address the problem] without detaining these

students in the office the way they did.” To the extent that the district court

implied that only the least intrusive method is lawful, it was in error. The

reasonableness of a search or seizure is evaluated on its own merits, not by

engaging in a series of ‘what ifs.’

4

In fact, Mr. Milligan, when asked why he had not felt free to leave

the room, responded: “What you mean? The assistant principal calls you in the

office, you can’t just walk out of a meeting.” His statement indicates that his

not feeling free to leave owed more to the custodial role of the school than it

did to the coercive authority of the officers.

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significantly lesser expectation of privacy in regard to the

temporary “seizure” of their persons than does the general

population. That lesser expectation of privacy was in full force

here, where the Vice-Principal had called the students into her

office and attended the entire meeting.

Considering the weakness of the claimed privacy right and

the significance of the governmental concern, the officers’ actions

were reasonable and therefore constitutional. Because the district

court erred in finding a constitutional violation, we reverse the

district court and render judgment for the defendants.

REVERSED and RENDERED.

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