Jenkins v. Talladega City Bd. of Ed

KRAVITCH, Senior Circuit Judge, dissenting, in which HATCHETT,

Chief Judge, and BARKETT, Circuit Judge, join:

I fully agree that government officials acting within their

discretionary authority should be shielded from liability for

violating rights of which a reasonable person would not have

known. The majority and I differ only as to whether the

schoolhouse Fourth Amendment standard announced by the Supreme

Court in New Jersey v. T.L.O., 469 U.S. 325 (1985), would lead a

reasonable person to understand that the conduct in this case was

prohibited. The majority finds qualified immunity by

characterizing the Supreme Court's test as too general to guide

any teacher, unless subsequent controlling precedent has applied

it to virtually identical facts. In my view, stating that a

constitutional test is general or that factually similar

precedent is lacking bypasses the fundamental inquiry set out by

the Supreme Court: determining whether the governing

constitutional standard provides sufficient guidance, given the

facts of the case, “that a reasonable official would understand

that what he is doing violates [a constitutional] right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). Because I

believe that T.L.O. sufficiently forewarns teachers that strip

searching eight-year-olds in pursuit of a few dollars violates

the Fourth Amendment, I respectfully dissent.

Qualified immunity balances the competing concerns present

in civil rights suits. Immunity serves the public “'need to

protect officials who are required to exercise their discretion

and the related public interest in encouraging the vigorous

1

exercise of official authority.'” Harlow v. Fitzgerald, 457 U.S.

800, 807 (1982) (quoting Butz v. Economou, 438 U.S. 478, 506

(1978)). Taken too far, however, immunity can undermine the

purpose of section 1983 altogether, giving officials license to

violate the most basic and longstanding constitutional rights.

Qualified immunity accommodates these interests by protecting

those who act in reasonable reliance upon established legal

principles but permitting liability for clearly unconstitutional

conduct. Thus, immunity attaches only when official “conduct

does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow,

457 U.S. at 818.

Interpreting the term “clearly established,” the Supreme

Court has warned courts not to base liability upon expansive

legal truisms or to ignore material factual differences between

present cases and precedent establishing the asserted

constitutional right. In Anderson, the Court emphasized that a

right is not clearly established unless “[t]he contours of the

right [are] sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” 483 U.S.

at 640.1 We since have stated that “[g]eneral propositions have

little to do with . . . qualified immunity.” Muhammad v.

1

We have explained that “the law must have earlier been

developed in such a concrete and factually defined context to

make it obvious to all reasonable government actors, in the

defendant's place, that 'what he is doing' violates federal law.”

Lassiter v. Alabama A&M Univ., Bd. of Trustees, 28 F.3d 1146,

1149 (11th Cir. 1994) (en banc).

2

Wainwright, 839 F.2d 1422, 1424 (11th Cir. 1987). Thus,

qualified immunity applies where the plaintiff can identify only

unworkable abstractions from prior case law and cannot show how

those principles would be applied later to different facts.2

Neither the Supreme Court nor this court, however, require

factual identity between prior and subsequent cases, for that

would create absolute immunity.3

I review these principles because the majority has taken a

rigid approach to their application in the present case. Our

various formulations of the “clearly established” test -- that

prior cases must be factually similar to the case at bar, that

general abstractions are unhelpful -- represent a shorthand way

of saying that the clarity of a constitutional right (and,

therefore, official liability) depends upon the interplay of the

legal standard and the factual context to which the plaintiff

2

For example, if the present case had arisen prior to

T.L.O., a teacher would have had no reasonable way of knowing

when she could search a given student, because the Fourth

Amendment had been haphazardly applied to schools. Some courts

had held that it permitted searches only upon probable cause, see

State v. Mora, 330 So.2d 900 (La.), cert. denied, 429 U.S. 1004

(1976); others had held that school children enjoyed no Fourth

Amendment protection, as school officials acted in loco parentis.

See In re Donaldson, 75 Cal. Rptr. 220 (Dist. Ct. App. 1969).

3

See Anderson, 483 U.S. at 640 (“This is not to say that an

official action is protected by qualified immunity unless the

very action in question has previously been held unlawful, but it

is to say that in the light of pre-existing law the unlawfulness

must be apparent.”) (citations omitted); Adams v. St. Lucie

County Sheriff's Dept., 962 F.2d 1563, 1575 (11th Cir. 1992)

(Edmondson, J., dissenting), approved en banc, 998 F.2d 923 (11th

Cir. 1993) (“The facts [of prior precedent] need not be the same

as the facts of the immediate case. But they do need to be

materially similar.”).

3

alleges it applies. But it is not enough simply to label pre-

existing law “general,” or to identify factual distinctions in

relevant precedent. Instead, a court must determine whether the

generality of a rule casts doubt on its application to the

present case or whether factual distinctions from prior precedent

are “material,” that is, they make the legal rule inapplicable in

the later case or suggest that the present conduct is

permissible.4 By contrast, the majority today, declaring T.L.O.

both general and factually distinguishable, abandons further

analysis. This, I believe, is error.

As the Supreme Court recently reaffirmed, the search for

specific rules in factually concrete cases should not overshadow

the purpose of such a search -- determining whether the

government actor had fair warning that his/her conduct was

unconstitutional. In United States v. Lanier, 117 S. Ct. 1219

(1997), the Court unanimously held that: (1) civil rights

liability requires only “fair warning” of constitutional rights,

117 S. Ct. at 1224-27; and (2) neither prior Supreme Court

precedent nor factually similar precedent is necessary to provide

such warning. The Court confirmed that decisional law generally,

not only from the Supreme Court, can establish a right. Id. at

4

For example, in Hartsfield v. Lemacks, 50 F.3d 950 (11th

Cir. 1995), we rejected a qualified immunity defense in the face

of a broad constitutional test. On the facts of that case, we

held the police clearly failed to make “reasonable efforts” to

avoid erroneous execution of a search warrant, thereby violating

the Fourth Amendment.

4

1226-27.5 More importantly for present purposes, the Court

stressed that rights founded on general statements of law may be

enforced against government actors. It observed that “notable

factual distinctions” between prior cases and later ones did not

require automatic immunity:

[G]eneral statements of the law are not inherently

incapable of giving fair and clear warning, and . . . a

general constitutional rule already identified in the

decisional law may apply with obvious clarity to the

specific conduct in question, even though “the very

action in question has [not] previously been held

unlawful”. . . .

Id. at 1227 (quoting Anderson, 483 U.S. at 640). The purpose of

factual specificity is to warn government officials when a

constitutional test does not, by its own terms, apply to present

actions. Thus, it is necessary only when “an earlier case

expressly leaves open whether a general rule applies to the

5

I note the tension between the Court's reasoning and the

majority's suggestion, ante at 13 n.2, that only the Supreme

Court, Eleventh Circuit, or the highest court of the state can

“clearly establish” the law. Compare Courson v. McMillan, 939

F.2d 1479, 1497-98 (11th Cir. 1991) (only in-circuit precedent

relevant) and Hansen v. Soldenwagner, 19 F.3d 573, 578 n.6 (11th

Cir. 1994) (same) with Lanier, 117 S. Ct. at 1226-27 (“Although

the Sixth Circuit was concerned . . . that disparate decisions in

various Circuits might leave the law insufficiently certain even

on a point widely considered, such a circumstance may be taken

into account in deciding whether the warning is fair enough,

without any need for a categorical rule that decisions of the

Courts of Appeals and other courts are inadequate as a matter of

law to provide it.”); Elder v. Holloway, 114 S. Ct. 1019, 1023

(1994) (“A court engaging in review of a qualified immunity

judgment should . . . use its full knowledge of its own and other

relevant precedents.”) (internal alterations and quotations

omitted) and Greason v. Kemp, 891 F.2d 829, 833 (11th Cir. 1990)

("we look to the law established by the Supreme Court, the courts

of appeals, and the district courts.").

5

particular type of conduct at issue. . . .” Id.6

Lanier is consistent both with prior Supreme Court precedent

and the policy underlying qualified immunity. The Court has

always required only that the “unlawfulness must be apparent,”

Anderson, 483 U.S. at 640, so actors “reasonably can anticipate

when their conduct may give rise to liability. . . .” Davis v.

Scherer, 468 U.S. 183, 195 (1984). Further, excepting all

unconstitutional conduct governed by “general” constitutional

standards would vitiate the balance struck by qualified immunity,

as officials in clear violation of broad rules would escape

liability.

Thus, we cannot dismiss T.L.O. by attaching the appellation

“general” to the test it announces or by pointing to the absence

of prior factually similar cases. In T.L.O., the Supreme Court

noted lower courts' conflicting views regarding the application

of the Fourth Amendment to schools, 469 U.S. at 332 n.2, and

squarely addressed the issues before us today: when a search by a

school official is authorized, and how intrusive a search the

6

The majority dismisses Lanier as irrelevant to the instant

case. I cannot agree. Although it concedes that "general

principles of law can provide clear warning," ante at 16 n.3

(emphasis omitted), the majority is unwilling to accept T.L.O.'s

guidance in the absence of its application to "facts materially

similar to those of this school search." Id. at 17. Likewise, it

reasons that "school officials cannot be required to construe

general legal formulations that have not once been applied to a

specific set of facts by any binding judicial authority." Id. at

18-19. I believe this analysis ignores Lanier's intent and,

indeed, the Court's intent throughout its qualified immunity

jurisprudence. Lanier and its precursors make liable those who

violate established constitutional norms, even ones with a short

pedigree in the decisional law.

6

Fourth Amendment tolerates. As the majority recounts, the Court

adopted a test born of the Terry v. Ohio, 392 U.S. 1 (1968),

“reasonableness” standard, but did not leave us with

reasonableness alone. It announced a two-pronged test: first,

the search must be justified at its inception, that is, “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,” 469 U.S. at 342; and second,

the search must be permissible in scope, that is, “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.” Id.7

This standard obviously can establish the law for certain

factual situations. For example, if school rules disallow

chewing gum on campus, would the Fourth Amendment permit a strip

search by a male teacher of a young girl reasonably suspected of

bubblegum possession? Plainly not. See, e.g., Cornfield v.

Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1320 (7th

Cir. 1993) (“A nude search of a student by an administrator or

teacher of the opposite sex would obviously violate [the T.L.O.]

standard. Moreover, a highly intrusive search in response to a

minor infraction would similarly not comport with . . . T.L.O.”).

Indeed, as the teachers' counsel conceded at oral argument,

7

Given the case's history and its comprehensive test, I

disagree with the conclusion, ante at 22, “that T.L.O. did not

attempt to establish clearly the contours of a Fourth Amendment

right as applied to the wide variety of school settings different

from those involved in T.L.O.”

7

certain schoolhouse searches violate the Fourth Amendment as a

matter of common sense. Thus, the question before our court, and

incompletely answered by the majority, is whether the T.L.O.

standard suggests “with obvious clarity,” Lanier, 117 S. Ct. at

1227, that a strip search of schoolchildren for seven dollars is

unconstitutional.

T.L.O., although not crystalline, is -- simply on the facts

of the case before us -- a bright line. Herring and Sirmon

lacked even arguable reasonable suspicion to strip search Jenkins

and McKenzie.8 The teachers offer the following evidence as

creating reasonable suspicion to search: (1) several students

implicated the plaintiffs and they accused one another; (2)

McKenzie earlier had gone to the restroom; (3) the money was not

found in the backpack or the students' shoes and socks; and (4)

historically, other children had been caught with money in their

apparel. All of these justifications are specious. First,

8

My discussion is confined to the strip searches. I concede

that the initial search of McKenzie's backpack was justified at

its inception and reasonable in scope. Ashley Estell's report

that Jenkins put the money in McKenzie's backpack gave reasonable

suspicion to suspect that searching the backpack would turn up

evidence of the theft. See C.B. By and Through Breeding v.

Driscoll, 82 F.3d 383, 388 (11th Cir. 1996). Moreover, the

backpack search, performed by the teacher and confined to the

place identified as containing the contraband, was not excessive.

Further, although the search of the students' shoes and socks may

have been questionable, qualified immunity is appropriate,

because T.L.O. does not clearly prohibit such a search. See Wynn

v. Board of Educ. of Vestavia Hills, 508 So.2d 1170 (Ala. 1987)

(search of shoes and socks for $6 justified at inception where

two students searched were only ones in room when theft occurred;

concluding, without discussion, that search “was not excessively

intrusive”).

8

Herring and Sirmon knew only of Ashley Estell's accusation9 and

the mutual finger-pointing by Jenkins, McKenzie, and Jamerson.

Estell's testimony proved untrustworthy when the backpack search

revealed nothing, leaving only the students' completely

contradictory allegations. This testimony might be at the outer

bounds of reasonable suspicion for one search, but it is not so

for two.10 Second, McKenzie's trip to the bathroom, although

relevant to suspicion, was not communicated to Herring or Sirmon

prior to the strip search.11 Third, appellees' suggestion that

the lack of evidence in the backpack or the students' shoes and

9

The majority's statement, ante at 3, that “[s]everal

students subsequently implicated” the girls is misleading because

it does not speak to Herring and Sirmon's knowledge. Fannin

testified that two other students, Micquael Scales and Jennifer

Simmons, accused Jenkins, but only after Fannin left Herring and

Sirmon in the hall with the girls and Jamerson. Fannin did not

relate this information until Sirmon returned to the classroom

while Herring conducted the first strip search.

10

Even though Jamerson had implicated himself as the thief

(by stating that he hid the money behind a filing cabinet), the

teachers conducted a second strip search of the two girls. This

was wholly unreasonable, especially in view of the fact that

Jenkins stated that she saw Jamerson open the victim's purse, the

girls had never stolen anything before, and Jamerson had a

history of theft.

11

There is a conflict in the record on this point, so I

presume in favor of the plaintiffs. Herring claimed that Fannin

told her of McKenzie's trip and suggested to Herring that money

might be hidden in McKenzie's clothes. Herring then allegedly

replied that she would take the girls to the bathroom and have

them check their clothes. Fannin contradicts this account.

Herring claimed the interchange occurred while the girls were

putting their shoes and socks back on, but Fannin said she left

the hall at that point. Fannin also had no knowledge that

Herring might take the girls to the bathroom, but presumed they

would go to the office, in accordance with policy. Further,

Herring's testimony is unreliable because she changed her story,

telling Principal Nelson that Jamerson, not Fannin, informed her

that McKenzie went to the bathroom.

9

socks permitted the strip search is dubious, as it rests on the

questionable premise that more intrusive searches can be

predicated upon prior unrevealing searches. T.L.O. makes clear

that such bootstrapping is impermissible; there, the Court

validated the escalating search only because additional evidence

continued to emerge. See 469 U.S. at 347 (discovery of rolling

papers "justified further exploration of T.L.O.'s purse”;

evidence of drug dealing justified expansion of search to

separate zippered compartment; discovery of "list of people who

owe me money" justified reading letters found in zippered

compartment). Finally, there is no evidence that Herring or

Sirmon knew about prior instances of other students concealing

money in their clothing.12 Thus, because arguable reasonable

suspicion was missing, qualified immunity is inappropriate.13

12

Appellees point to clothing searches in other schools, and

to searches of shoes and socks allegedly conducted by Nelson, but

Herring and Sirmon were unaware of these incidents when they

conducted the strip search. Further, it is not clear that, on

summary judgment, we can assume that Nelson's searches ever

occurred, as the Department of Education's Incident Report found

that, in prior school theft incidents, no one had ever been

required to remove any article of clothing.

13

I believe that the majority errs by failing to consider

whether there was reasonable suspicion to initiate each of the

bathroom searches and by treating the searches as a single search

justified at its inception. Ante at 19 n.4. Each search was

separate in time and place and several different people conducted

them. For instance, the backpack search was performed solely by

Fannin in her classroom, and was not revealed to Herring or

Sirmon, who conducted the later bathroom searches.

Further, I differ with the majority's apparent contention

that T.L.O. requires only a one-time assessment of reasonable

suspicion where searches are escalating in nature. Id. T.L.O. in

fact commands a contrary conclusion -- it condoned an escalating

search only where discovered evidence created suspicion to look

elsewhere.

10

In addition, the scope of the strip search far exceeded what

T.L.O. allows. To evaluate the scope of a search, T.L.O. directs

us to consider several factors: whether there was a reasonable

relationship between the means by which a student is searched and

the objectives for that search; the intrusiveness of the search

in light of the student's age and sex; and the intrusiveness of

the search in light of the nature of the alleged infraction.

Admittedly, age and sex are not particularly instructive in the

present case.14 Nevertheless, this does not render T.L.O.

unclear for qualified immunity purposes. Our cases confirm that

a balancing test may establish the law for a specific set of

14

Sex is irrelevant because the students were of the same

gender as their searchers; however, the suggestion that T.L.O. is

unclear because it does not explain “whether the search of a boy

or girl is more or less reasonable,” ante at 16, only confuses

the issue. Gender is a concern, obviously, when searches are

conducted by members of the opposite sex. As for age, the T.L.O.

Court did not explain whether older or younger students can be

searched more freely. See Cornfield, 991 F.2d at 1321

(discussing issue).

I cannot subscribe to the majority's view, ante at 19 n.4,

that this search was reasonable in scope because eight-year-olds

are prepubescent and frequently require assistance in the

bathroom. Physical maturity is an elusive and, in my view,

unworkable constitutional standard and is by no means the only

consideration relevant to intrusiveness. See generally Steven F.

Shatz et al., The Strip Search of Children and the Fourth

Amendment, 26 U.S.F.L. REV. 1 (1991) (child's ability to consent,

propensity to commit crime, and degree of body autonomy determine

intrusiveness). Moreover, there is nothing in this record to

support the majority's factual premises, and pediatric literature

suggests that they are questionable. See Marcia E. Herman-

Giddens et al., Secondary Sexual Characteristics and Menses in

Young Girls Seen in Office Practice: A Study from the Pediatric

Research Office Settings Network, 99 PEDIATRICS 505 (1997) (noting

that girls often develop pubertal characteristics by age 8,

depending on racial and ethnic background); Sally Squires, Bed-

Wetting a Common Inconvenience, WASH. POST, Apr. 8, 1997, at Z17

("Most children are toilet-trained sufficiently to stay dry

during the day by age 3 or 4. . . .").

11

facts when the “balancing would lead to the inevitable conclusion

that the [particular conduct] was unlawful.” Dartland v.

Metropolitan Dade County, 866 F.2d 1321, 1323 (11th Cir. 1989).

Because the type of search employed here was not reasonably

related to its objectives and was excessive in light of the

nature of the infraction, the T.L.O. balance inevitably marks

Herring and Sirmon's conduct as unconstitutional, thereby clearly

establishing the law.15

The strip searches were not reasonably related to their

objectives because they were excessively intrusive and unlikely

to turn up evidence, and because other reasonable, minimally

intrusive options were available.

It is axiomatic that a strip search represents a

serious intrusion upon personal rights. In Mary Beth

G. [v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir.

1983)], the court referred to strip searches as

“demeaning, dehumanizing, undignified, humiliating,

terrifying, unpleasant, embarrassing, repulsive,

signifying degradation and submission.”

Justice v. City of Peachtree City, 961 F.2d 188, 192 (11th Cir.

1992).16 Thus, for a strip search to be reasonably related in

15

The majority notes that Justice Stevens objected to

T.L.O.'s lack of clarity, ante at 20 n.5; he also realized,

however, that its test would lead to some inescapable

conclusions: “One thing is clear under any standard--the shocking

strip searches that are described in some cases have no place in

the schoolhouse. To the extent that deeply intrusive searches are

ever reasonable outside the custodial context, it surely must

only be to prevent imminent, and serious harm.” 469 U.S. at 382

n.25 (Stevens, J., concurring in part and dissenting in part)

(emphasis added) (citations omitted).

16

Although decided after the events at issue in the present

case, Justice's treatment of strip searches merely confirms their

self-evidently intrusive character.

12

scope to the objectives for which it was undertaken, the

objectives must be weighty,17 and the search must be necessary to

locate the suspected evidence. See Terry, 392 U.S. at 29-30

(search must be “confined in scope to an intrusion reasonably

designed to discover” items sought and “confined . . . strictly

to what was minimally necessary” to locate those items). Here,

acting only on the discredited testimony of one student and the

contradictory allegations of the three suspects (exacerbated by

threats that the police would be called to investigate), the

teachers launched a full-scale strip search of two eight-year-

olds, foregoing several reasonable, yet minimally intrusive,

intermediate steps.

Fannin never questioned whether the money was truly stolen.

She did not inquire whether the money might have been spent or

misplaced, nor did she ask how Estell knew that Jenkins took the

money. Fannin also did not search Jenkins's bag. Further,

Herring took over the situation without asking any questions, and

promptly ordered a search of the students' shoes and socks,

followed by a strip search, even though there was absolutely no

17

See Cornfield, 991 F.2d at 1321 ("[A]s the intrusiveness

of the search of a student intensifies, so too does the standard

of Fourth Amendment reasonableness. What may constitute

reasonable suspicion for a search of a locker or even a pocket or

pocketbook may fall well short of reasonableness for a nude

search."). A sliding scale of reasonableness is inherent in the

Fourth Amendment. Terry, for example, teaches that "[t]he scope

of the search must be 'strictly tied to and justified by' the

circumstances which rendered its initiation permissible." 392

U.S. at 19. See also, e.g., United States v. McMurray, 747 F.2d

1417, 1420 (11th Cir. 1984) (in customs context, as intrusiveness

increases, suspicion necessary to justify search must increase).

13

evidence that the girls might have the money in their

underclothing. Thus, because there was not even reasonable

suspicion to believe that the girls possessed contraband, because

the teachers ignored less intrusive means, and because the

personal invasion was extreme, the first strip search was

necessarily disproportionate to its justification. The second

strip search was even more blatantly unconstitutional, as no one

could reasonably argue that it was necessary after the fruitless

prior search.

Finally, the nature of the infraction here -- a small theft

-- is insufficient as a matter of law to permit a strip search.

T.L.O. directs us to consider the nature of the infraction

because, although keeping order in the school is important, it is

not determinative. Students' privacy rights must be weighed in

the balance. Strip searching a student is permissible only in

extraordinary cases, and only to prevent imminent harm.18 For

example, if school administrators have reasonable suspicion that

a student is carrying a gun on his/her person and a “pat-down”

confirms this suspicion, a strip search by an administrator of

the same sex, strictly limited to finding the weapon, would be

permissible. The theft of $7, although morally reprehensible,

poses no threat of physical danger to other students and cannot,

18

See Justice, 961 F.2d at 193 (collecting cases; noting

that threat of harm was only permissible reason in case law for

strip search of arrestee).

14

therefore, serve as the basis for a search of this magnitude.19

As the Seventh Circuit, faced with a qualified immunity

defense following a school strip search, explained:

It does not require a constitutional scholar to

conclude that a nude search of a thirteen-year-old

child is an invasion of constitutional rights of some

magnitude. More than that: it is a violation of any

known principle of human decency. Apart from any

constitutional readings and rulings, simple common

sense would indicate that the conduct of the school

officials in permitting such a nude search was not only

unlawful but outrageous under “settled indisputable

principles of law.”

Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir. 1980) (citation

omitted), cert. denied, 451 U.S. 1022 (1981). Because Herring

and Sirmon flagrantly ignored common sense and, crucially, the

Constitution, I would reverse the district court's order granting

qualified immunity.

19

See, e.g., Oliver by Hines v. McClung, 919 F. Supp. 1206,

1216-19 (N.D. Ind. 1995) (strip search of seventh graders for

$4.50 unconstitutionally unreasonable); State ex rel. Galford v.

Mark Anthony B., 433 S.E.2d 41, 49 (W. Va. 1993) (strip search

for $100 unconstitutionally unreasonable in scope because no

threat of danger); Bellnier v. Lund, 438 F. Supp. 47, 53-54

(N.D.N.Y. 1977) (strip search for stolen $3 unconstitutionally

unreasonable, given unparticularized suspicion and “relatively

slight danger of the conduct involved”).

15