Herrera v. Santa Fe Public Schools

MEMORANDUM OPINION AND ORDER

1

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on Defendant ASI New Mexico, LLC’s Motion for Summary Judgment on Plaintiffs’ Second Amended Complaint [Doc. 100] and Supporting Memorandum, filed March 3, 2014 (Doc. 182)(“MSJ”). The Court held a hearing on April 22, 2014. The primary issue is whether Defendant ASI New Mexico, LLC can properly be held liable for violations of Plaintiffs Candice Herrera’s, T.H.’s, Ashley Hurtado’s, and Arianna London’s rights under the Fourth Amendment to the Constitution of the United States of America that occurred when the Plaintiffs were subjected to searches before a school dance. The Court will grant the MSJ in part and deny it in part. The Court will grant the MSJ as it relates to the searches of the Plaintiffs’ persons, because ASI New Mexico did not have a policy or practice that caused a violation of the Plaintiffs’ clearly established constitutional rights. The Court will deny the MSJ as it relates to the searches and seizures of the Plaintiffs’ possessions, because ASI New Mexico did not meet its prima facie burden as to those claims. The Court will, in a subsequent Memorandum Opinion and Order, dispose of the Plaintiffs’ state-law claims.

*1032

FACTUAL BACKGROUND

The Court will discuss the factual background in multiple parts. First, the Court will discuss Santa Fe Public Schools and ASI New Mexico, their contractual relationship, and their respective responsibilities vis-a-vis security at school events in general. The Court will then discuss the genesis of Santa Fe Public Schools’ search practice and the Pah-Down Guidelines (undated), filed March 20, 2014 (Doc. 193-21), that ASI New Mexico created to reflect its understanding of that practice. Third, the Court will discuss the searches that occurred at the April 16, 2011, Capital High School (“CHS”) prom. Fourth, the Court will discuss each Plaintiffs awareness of Santa Fe Public Schools’ search practice; her search; and her search’s effects on her.

For clarity, the Court must point out a few nomenclature notes. Throughout its discussion of the facts, the Court will use “Santa Fe Schools” to refer to Santa Fe Schools in the colloquial sense of the term — that is, to the school district and to its employees, and not only to Defendants Santa Fe Public Schools Board of Education, Santa Fe Public Schools, Barbara Gudwin, Glenn Wikle, Linda Trujillo, Frank Montano, Steven J. Carillo, Bobbie J. Gutierrez, Melanie Romero, and Robert Stephens (collectively, “the “SFPS Defendants”). Similarly, when the Court describes what Santa Fe Schools and its employees typically did before school dances, the Court will use the terms “policy” and “practice” in their colloquial sense. The Court does not, by these words, implicitly conclude that Santa Fe Schools had a “policy” or a “practice” within the municipal-liability meaning of those terms.” The Court disposed of these issues in its Sealed Memorandum Opinion and Order, filed May 27, 2014 (Doc. 219)(“SFPS Defendants’ MOO”), and does not reopen them in this Sealed Memorandum Opinion and Order. The Court instead uses those words as the parties use them throughout their briefs: to signify that Santa Fe Schools had frequently arranged for particular searches before dances.

1. Santa Fe Schools and ASI New Mexico; Their Contractual Relationship; and Their Respective Responsibilities vis-a-vis Security at School Events in General.

The Plaintiffs’ claims against ASI New Mexico arise from pat-down searches, possession searches, and possession seizures that occurred at the April 16, 2011, CHS prom. 2 See Second Amended Complaint *1033 ¶ 135, at 24, filed September 18, 2012 (Doe. 100)(“Complaint”). “Santa Fe High School and Capital High are located in Santa Fe, New Mexico and are in the Santa Fe Public School District (‘SFPS’).” MSJ ¶ 2, at 3 (setting forth this fact). See Complaint ¶¶ 18-20, at 5-6; Response ¶ 2, at 3 (not disputing this fact). “At all times material to Plaintiffs’ claims, ASI was a limited liability company organized under the laws of New Mexico and provided security services to public schools, private companies, and state and local governments.” MSJ ¶ 14, at 5 (setting forth this fact). See Complaint ¶24, at 7 (setting forth this fact); Response ¶ 14, at 3 (not disputing this fact). 3

“The governing and policy-making body for SFPS is the Board of Education of SFPS (‘Board of Education’).” MSJ ¶ 3, at 4 (setting forth this fact). See N.M. Stat. Ann. § 22-5-4 ; Complaint ¶¶ 17-18. at 5; Response ¶ 3, at 2 (not disputing this fact). “SFPS is responsible for providing a safe school environment for its school activities as a regular part of its business.” MSJ ¶ 4, at 4 (setting forth this fact). See Deposition of Bobbie J. Gutierrez at 117:25-119:13 (taken March 22, 2012, and April 3, 2012), filed March 3, 2014 (Doc. 182-1)(“ASI New Mexico’s Gutierrez Depo.”); 4 id. at 117:25-119:13 ; id. at 121:5-12 ; id. at 227:2-24 ; id. at 229:6-22 ; id. at 273:18-274:16 ; id. at 279:18-280:12 ; Deposition of Melanie Romero at 100:11-20 (taken March 19, 2012), filed March 3, 2014 (Doc. 182-2)(“ASI New Mexico’s Romero Depo.”); Response ¶ 4, at 2 (not disputing this fact). “At the time of the 2011 Prom, Melanie Romero was the CHS principal.” MSJ ¶ 5, at 4 (setting forth this fact). See Complaint ¶ 20, at 6; ASI New Mexico’s Romero Depo. at 10:6-24; Response ¶ 5, at 2 (not disputing this fact). “Principal Romero had authority to set policies and procedures related to Capital High and Capital High events.” MSJ ¶ 6, at 4 (setting forth this fact). See ASI New Mexico’s Gutierrez Depo. at 123:4-9; id. at 227:2-228:2 ; ASI New Mexico’s Romero Depo. at 132:7-24; Deposition of Martin “Mark” Archuleta at 122:17-123:6 (taken March 9, 2012, and January 30, 2014), filed March 3, 2014 (Doc. 182-3)(“ASI New Mexico’s Archuleta Depo.”); 5 Response ¶ 6, at 2 (not disputing this fact).

“Before ASI began providing contractual security services to SFPS in 2004, SFPS had its own directly employed security officers and used those security officers to *1034 conduct searches of students and provide day-to-day security services.” MSJ ¶ 22, at 7 (setting forth this fact). See ASI New Mexico’s Gutierrez Depo. at 80:22-81:11; id. at 132:1-134:15 ; Deposition of Stephanie Gurule-Lebya at 7:14-20 (taken December 10, 2014), filed March 3, 2014 (Doc. 182-8)(“ASI New Mexico’s Gurule-Leyba Depo.”); id. at 19:9-25 ; Response ¶ 22, at 4 (not disputing this fact). 6 “Since 1995, the SFPS Code of Conduct has provided that students can be searched at school or at any school event.” MSJ ¶ 23, at 7 (setting forth this fact). See Volume I of Videotaped Deposition of Bobbie J. Gutierrez at 54:24-55:7 (taken March 22, 2012), filed April 4, 2014 (Doc. 200-1); 7 Deposition of Jennifer Garcia at 8:3-22 (taken May 14, 2012), filed March 3, 2014 (Doc. 182-9)(“ASI New Mexico’s Garcia Depo.”); id. at 25:25-26:13 ; Response ¶ 23, at 4 (not disputing this fact). 8

“ASI began providing services for SFPS, including Capital High, in 2004.” MSJ ¶ 15, at 5 (setting forth this fact). See Archuleta Depo. at 133:2-3; id. 134:7-11 ; Volume I of Deposition of Micah Johnson at 20:14-18 (taken January 16, 2014), filed March 3, 2014 (Doc. 182-5)(“Vol. I ASI New Mexico’s Johnson Depo.”); Response ¶ 15, at 3 (not disputing this fact). See also Response ¶ 15, at 11 (setting forth a similar fact)(citing Vol. I Videotaped Deposition of Bobbie J. Gutierrez at 80:22-24 (taken March 22, 2012), filed March 20, 2014 (Doc. 193-5)(“Vol. I Plaintiffs’ Gutierrez Depo.”)). “ASI provided school security services generally to SFPS, and specifically for the 2011 Capital High prom, based on a publicly bid and awarded contract pursuant to the New Mexico Procurement Code.” MSJ ¶ 9, at 4 (setting forth this fact). See Complaint ¶¶ 24-26, at 7; Affidavit of Micah Johnson ¶¶ 3-4, at 1-2, filed March 3, 2014 (Doc. 181)(“John-son Aff.”); Proposal No. 1-General 2008-09 School Security Services passim (no date provided), filed March 3, 2014 (Doc. 181-1)(“SFPS-ASI New Mexico Propos *1035 al”); Santa Fe Public Schools Services Contract passim, (dated August 18, 2010), filed May 3, 2014 (Doc. 181-1); Response ¶ 9, at 2 (not disputing this fact). 9 “SFPS was free to terminate the contract with ASI by providing 30 days written notice prior to the intended date of termination.” MSJ ¶ 10, at 4 (setting forth this fact). See Johnson Aff. ¶4, at 1-2; Santa Fe Public Schools Services Contract at 1; Response ¶ 10, at 3 (not disputing this fact). 10

ASI’s contract with SFPS for the 2010-2011 school year provided: “This agreement is entered into for the purpose of Contractor providing security services for Santa Fe Public Schools’] two comprehensive high schools This is too include on-site coverage on ... prom____Refer to Proposal No. 1-General 2008-09 Social Security Services for complete details.’ ”

MSJ ¶ 11, at 5 (setting forth this fact)(alterations in original). See Johnson Aff. ¶ 4, at 1-2; Santa Fe Public Schools Services Contract at 1; Response ¶ 11, at 3 (not disputing this fact). 11

“ASI’s contract with SFPS stated that ‘[t]he Contractor and its directors, officers, agents, and employees are not employees of the District ... as a result of this Agreement.’ ” MSJ ¶ 12, at 5. See Santa Fe Public Schools Services Contract KL, at 2; Response ¶ 12, at 3 (not disputing the fact). See also Response ¶ 16, at 11 (setting forth similar fact). “Bobbie Gutierrez acknowledged that ASI ‘security officers are [ASI New Mexico’s] employees’ [and] not SFPS employees.” Response ¶ 25, at 12 (Vol. I Plaintiffs’ Gutierrez Depo. at 65:25-66:13). See Reply at 25 (not disputing this fact). 12

*1036 “ASI guards could refuse directions of SFPS officials and [e]ould report circumstances of disagreement with SFPS officials’ actions or instructions to ASI management;” it is, however, unclear whether ASI New Mexico guards ever exercised this right to refuse. Response ¶ 17, at 11 (setting forth unmodified version of this fact). See Deposition of Martin “Mark” Archuleta at 86:11-88:3 (dated March 9, 2012), filed March 20, 2014 (Doc. 193-2)(“Vol. I Plaintiffs’ Archuleta Depo.”). 13 ASI New Mexico “maintained the responsibility to investigate ASI security officers’ misconduct and to discipline the officers as appropriate.” Response ¶ 20, at 12. See Yol. I Plaintiffs’ Gutierrez Depo. at 65:25-66:13; id. at 95:23-96:11 ; Reply at 25 (not disputing this fact). 14 “When a principal had a true concern about a guard she would discuss it with the lead guard and higher ASI officials.” Response ¶ 21, at 12 (setting forth this fact). See Deposition of Melanie Romero at 44:4-45:8 (taken March 19, 2012), filed March 20, 2014 (Doc. 193-17)(“Plaintiffs’ Romero Depo.”); Reply at 25 (not disputing this fact). 15 ‘When the Capital High School principal raised concerns about a guard with ASI management, she would not even necessarily be informed of the specifics of any action ASI would take in response.” Response ¶22, at 12. See Plaintiffs’ Romero Depo. at 61:22-62:2; Reply at 25 (not disputing this fact). 16 “SFPS did not conduct performance reviews of ASI employees.” Response ¶ 25, at 12 (setting forth this fact). See Plaintiffs’ Romero Depo. at 64:19-65:5; Reply at 25 (not disputing this fact). 17

*1037 “SFPS and its administrative personnel determined what security services were needed at SFPS school locations and school-sponsored events and SFPS administrative personnel instructed ASI security officers regarding expected conduct in day-to-day operations”; despite this general instruction, no one at CHS supervised ASI New Mexico officers on a day-to-day basis. MSJ ¶ 16, at 5 (setting forth unmodified version of this fact). See ASI New Mexico’s Gutierrez Depo. at 74:12-75:16; id. at 86:15-87:16 ; ASI New Mexico’s Romero Depo. at 25:1-14; id. at 26:12-25 ; id. at 37:19-38:5 ; id. at 43:25-45:20 ; id. at 48:3-11 ; id. at 68:19-69:7 ; SFPS-ASI New Mexico Proposal at 2; Vol. I ASI New Mexico’s Johnson Depo. at 71:2-11; Deposition of Michael Hagele at 13:24-14:4 (taken May 7, 2012), filed March 3, 2014 (Doc. 182-5)(“ASI New Mexico’s Hagele Depo.”); id. at 2-1:16-22:5; id. at 23:9-18 ; id. at 25:4-26:2 ; id. at 56:11-57:11 ; Plaintiffs’ Romero Depo. at 68:13-69:12 18 See also Response ¶ 18, at 11 (“SFPS did not supervise the day-to *1038 day activities of the ASI guards.” (citing Plaintiffs’ Romero Depo. at 68:13-69:12)). 19 “At Capital High School, the primary direction SFPS gives to ASI occurs at a meeting at the beginning of the year and during quarterly meetings with ASI’s supervisory personnel and does not occur on a daily basis.” Response ¶ 19, at 11-12 (setting forth this fact). See Plaintiffs’ Romero Depo. at 42:13-18; id. at 44:4-45:8 . 20

“SFPS set qualifications that ASI security officers had to meet before they could be assigned to work at the schools”; Santa Fe Schools did not, however, independently verify whether the guards were trained in accordance with contractual requirements. MSJ ¶ 17, at 10 (setting forth unmodified version of this fact). See SFPS-ASI New Mexico Proposal at 3; Vol. I Plaintiffs’ Gutierrez Depo. at 97:7-17. 21 “On more than one occasion, SFPS administrators required that ASI reassign a specific security officer and not use that security officer to provide any services to SFPS and its schools.” MSJ ¶ 18, at 6; Johnson Aff. ¶ 7, at 2. See ASI New Mexico’s Gutierrez Depo. at 61:17-63:12; ASI New Mexico’s Hagele Depo. at 39:10-40:11. 22 “In providing security services *1040 under its contract with SFPS, ASI was required to enforce SFPS’s official Code of Conduct for its high schools and follow post orders for each high school as established or approved by SFPS administrative personnel.” MSJ ¶ 19, at 6 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 48:3-15; ASI New Mexico’s Archuleta Depo. at 54:16-58:5; id. at 176:23-177:9 ; Santa Fe High School Post Orders passim (no date provided), filed March 3, 2014 (Doc. 182-4); Deposition of Daniel Aguilar at 50:1-15 (taken March 8, 2012), filed March 3, 2014 (Doc. 182-7)(“ASI New Mexico’s Aguilar Depo.”); Response ¶ 19, at 3 (not disputing this fact). 23 ASI New Mexico also maintained its own policies and procedures for providing security for Santa Fe Schools that reflected Santa Fe Schools’ expectations. See Response ¶ 19, at 3 (setting forth unmodified version of this fact); Pah-Down Guidelines passim; Standard Operating Procedures passim (undated), filed March 20, 2014 (Doc. 193— 21); SOP for Pat Downs passim (undated), filed March 20, 2014 (Doc. 193-22); SOP for Conducting a Search (undated), filed March 20, 2014 (Doc. 193-23). 24

*1041 SFPS administration established performance criteria regarding security officer interactions with students, including criteria for when pat-down searches could be performed, provided a room to be used as a security office at Capital High, and designated instrumentalities that ASI security officers could not use at the schools by prohibiting the use of weapons of any sort, including hand-

cuffs, repelling liquid sprays, or batons. MSJ ¶20, at 6 (setting forth this fact). See ASI New Mexico’s Gutierrez Depo. at 89:16-90:20; ASI New Mexico’s Romero Depo. at 43:20-45:12; id. at 52:16:54:2; id. at 234:15-235:4 ; ASI New Mexico’s Archuleta Depo. at 64:25-66:3; SFPS-ASI New Mexico Proposal at 3; Vol. I ASI New Mexico’s Johnson Depo. at 114:3-12; ASI New Mexico’s Hagele Depo. at 24:19-24; id. at 42:19-43:17 ; Response ¶ 20, at 4 (not disputing this fact). 25 “In providing security services under its contract with SFPS, the role of ASI security officers was to be a presence, to observe and report occurrences to school administration, and to provide services or assistance as determined appropriate, and as requested by, SFPS and its administrative personnel.” MSJ ¶ 21, at 6-7 (setting forth this fact). See ASI New Mexico’s Gutierrez Depo. at 86:15-89:10; id. at 95:7-22 ; ASI New Mexico’s Romero Depo. at 68:13-69:7; ASI New Mexico’s Archuleta Depo. at 51:20-52:2; id. at 54:20-55:19 ; Vol. I ASI New Mexico’s Johnson Depo. at 71:2-11; id. at 119:7-14 ; 26 ASI New Mexico’s Aguilar Depo. at 40:22-25; id. at 50:9-25 ; Response ¶ 21, at 4 (not disputing this fact). 27

*1042 2. The Genesis of the Pat-Down Practice; ASI New Mexico’s Pat-Down Guidelines.

“Before ASI began providing security services for SFPS, Susan Lujan was instructed on how to perform pat-down searches on students while she was working at Capshaw Middle School and performed pat-down searches on students while she was an assistant principal or principal at Capshaw Middle School.” MSJ ¶24, at 7 (setting forth this fact). See Deposition of Susan Lujan at 14:1— 15:25 (taken April 20, 2012), filed March 4, 2014 (Doc. 182-10)(“ASI New Mexico’s Lujan Depo.”); id. at 72:22-74:3 ; id. at 190:7-194:5 ; Response ¶24, at 4. 28 “At least as of 2003, and before ASI began providing security services for SFPS in 2004, SFPS had required that all students attending the annual proms at its high schools undergo pat-down searches by security officers.” MSJ ¶25, at 7 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 10:3-22; id. at 53:9-54:2 ; id. at 107:1-12 ; id. at 138:19-139:8 ; ASI New Mexico’s Archuleta Depo. at 133:2-3; id. at 134:7-11 ; Johnson Aff. ¶ 8, at 2; Vol. I ASI New Mexico’s Johnson Depo. at 20:14-18; id. at 124:20-25 ; Deposition of Rose Lucero at 28:19-29:24 (taken May 15, 2012), filed March 3, 2014 (Doc. 182-11)(“ASI New Mexico’s Lucero Depo.”); id. at 43:12-44:4 ; Response ¶ 25, at 4 (not disputing this fact).

“SFPS administration established the practice of performing pat-down searches on all students attending prom or other afterschool events at Santa Fe High School or Capital High.” MSJ ¶26, at 8 (setting forth this fact). See ASI New Mexico’s Gutierrez Depo. at 123:4-9; ASI New Mexico’s Romero Depo. at 52:16-54:2; Johnson Aff. ¶8, at 2; Vol. I ASI New Mexico’s Johnson Depo. at 84:10-22; id. at 89:14-22 ; id. at 124:20-25 . 29 “At the begin *1044 ning of its contract with ASI, SFPS and then-Superintendent Rendon instructed ASI that pat-down searches were to be conducted of all students entering SFPS dances.” Response ¶26, at 12 (setting forth this fact). See Vol. II Plaintiffs’ Archuleta Depo. at 168:2-169:8; id. at 182:2-11 ; Vol. I Plaintiffs’ Johnson Depo. at 84:10-85:12; id. at 89:12-22 ; Reply at 24-25 (not disputing this fact). 30

*1045 “Based on SFPS’s directive, ASI representatives understood that pat-down searches had long been part of SFPS’s standard search practices and that ASI was expected to continue those practices.” Response ¶27, at 12 (setting forth this fact). See Vol. I Plaintiffs’ Johnson Depo. at 84:10-16; id. at 124:20-25 ; id. at 130:21-131:8 ; Vol. I Plaintiffs’ Archuleta Depo. at 118:21-25; Vol. II Plaintiffs’ Archuleta Depo. at 169:3-8; 31 Reply at 24-25 (not disputing this fact). 32 “ASI officials agreed that SFPS’s blanket pat-down rule should be applied at SFPS proms.” Response ¶ 28, at 12 (setting forth this fact). See Vol. I Plaintiffs’ Archuleta Depo. at 118:6-20; Reply at 24-25 (not disputing this fact). 33

“ASI trained its employees to follow the written ‘Pat-Down Guidelines’ when performing searches at SFPS events.” Response ¶ 29, at 13 (setting forth this fact). See Vol. I Plaintiffs’ Johnson Depo. at 73:18-25; Reply at 24-25 .(not disputing this fact). 34 “The Pat Down Guidelines were created by ASI for the school setting, but not necessarily for SFPS.” Response ¶ 30, at 13. See Vol. II Plaintiffs’ Gutierrez Depo. at 214:24-215:4. 35 “The Pat *1046 Down Guidelines require bra searches of female subjects in which the front of the bra is pulled away from the body.” Response ¶ 31, at 13. See Pat-Down Guidelines at 1; Reply ¶¶ 31-33, 42, & 52, at 25-26 (not disputing this fact). 36 “The ASI guard who conducted the pat-downs on Plaintiffs, Rebecca Reyes, interpreted the bra pulling instruction in the Pat Down Guidelines as requiring her to have students ‘grab their front bra and shake the bra.’ ” Response ¶ 32, at 13 (citing Statement of Cpl. Rebecca Reyes at 1 (no date provided), filed March 20, 2014 (Doc. 193-26)); Reply ¶¶ 31-33, 42, & 52, at 25-26 (not disputing this fact). 37 “The Pat Down Guidelines indicate that it is ‘important to be vigilant’ and state that students have hidden contraband on ‘the inside of their legs.’ ” Response ¶ 33, at 13 (quoting Pat-Down Guidelines at 1). See Reply ¶¶ 31-33, 42, & 52, at 25-26 (not disputing this fact). 38

“The principals of Capital High School and Santa Fe High School reviewed the written Pat Down Guidelines.” Response ¶ 34, at 13 (setting forth this fact). See Vol. II Plaintiffs’ Gutierrez Depo. at 213:13-214:11; id. at 215:5-9 ; Reply at 24-25 (not disputing this fact). 39 “The Pat Down Guidelines are consistent with the training SFPS administrators received re *1047 garding SFPS’s pat-down procedure.” Response ¶ 35, at 13 (setting forth this fact). See Vol. II Plaintiffs’ Gutierrez Depo. at 216:16-217:4; Reply at 24-25 (not disputing this fact). 40 “Superintendent Gutierrez has no objection to any aspect of the Pat Down Guidelines.” Response ¶ 36, at 13 (setting forth this fact). See Vol. II Plaintiffs’ Gutierrez Depo. at 217:5-14; Reply at 24-25 (not disputing this fact). 41 “SFPS officials reviewed and were familiar with ASI’s pat-down methods.” Response ¶ 37, at 13 (setting forth this fact). See Plaintiffs’ Romero Depo. at 48:16-49:19; Reply at 24-25 (not disputing this fact). 42 “ASI trained SFPS officials on providing security in the school setting, including how to conduct pat-downs.” Response ¶ 38, at 13 (setting forth this fact). See Plaintiffs’ Romero Depo. at 50:2-9; id. at 128:19-129:15 ; id. at 166:12-18 . 43 “ASI *1048 educated SFPS officials on necessary security measures and procedures.” Response ¶ 39, at 13. See Vol. II Plaintiffs’ Gutierrez Depo. at 225:11-226:9. 44 “ASI partici *1049 pated in a collaborative manner in the amending of post orders that defined the methods of providing security at the various school sites.” Response ¶40, at 14 (setting forth this fact). See Vol. I Plaintiffs’ Archuleta Depo. at ' 55:20-56:22. 45 “The same search procedures, which included pat-downs of all students, were followed at Santa Fe High School and Capital High School proms every year for at least sixteen consecutive proms.” Response ¶41, at 14 (setting forth this fact). See Vol. II Plaintiffs’ Archuleta Depo. at 168:2-169:8; id. at 244:2-20 ; Plaintiffs’ Romero Depo. at 53:9-54:2; id. at 138:19-139:8 ; Deposition of Michael Hagele at 75:5-12 (taken May 17, 2012), filed March 20, 2014 (Doc. 193-7)(“Plaintiffs’ Hagele Depo.”); id. at 77:6-16 ; id. at 78:6-16 ; id. at 86:22-87:5 ; Reply at 24-25 (not disputing this fact) 46 “Bra searches of female students were part of the SFPS school dance standard pat-down search practice.” Response ¶ 42, at 14 (setting forth this fact). See Plaintiffs’ Lucero Depo. at 28:19-25; id. at 35:6-12 ; Vol. I Plaintiffs’ Reyes Depo. at 60:6-61:22; id. at 62:1-13 ; Reply ¶¶ 31-33, 42, & 52, at 25 (not disputing this fact). 47

3. The Searches Conducted at the 2011 CHS Prom.

At the time of the 2011 prom, and during prior years when ASI was contracted to provide security services for SFPS, the two high schools in SFPSCapital High and Santa Fe High School-had ASI security guards perform pat-down searches of all attendees at proms and similar events, such as homecoming or other dances.

MSJ ¶ 27, at 8 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 53:5-54:23; id. at 138:19-139:8 ; id. at 235:16-22 ; ASI New Mexico’s Archuleta Depo. at 45:6-7; id. at 133:2-16 ; id. at 134:7-11 ; Vol. I ASI New Mexico’s Johnson Depo. at 130:21-131:2; Deposition of Cynthia Clarke, Ph.D. at 34:1-16 (taken May 13, 2012), filed March 3, 2014 (Doc. 182-12)(“ASI New Mexico’s Clarke Depo.”); id. at 37:20-38:5 . Response ¶ 27, *1050 at 4 (stating that this fact is undisputed). “ASI and SFPS worked cooperatively to complete the searches of students with ASI guards and school officials both being actively engaged in conducting various elements of the searches.” Response ¶ 47, at 14-15. See Plaintiffs’ Aguilar Depo. at 120:21-121:7; id. at 136:1-7 ; Reply at 24-25 (not disputing this fact). 48

“The 2011 Capital High prom was a school-sponsored event.” MSJ ¶ 7, at 4 (setting forth this fact). See Complaint ¶¶ 27-28, at 8; Response ¶ 7, at 2 (not disputing this fact). “The 2011 prom was held off Capital High premises at the Santa Fe Convention Center.” MSJ ¶ 8, at 4. See Complaint ¶ 3, at 2; id. ¶ 27 , at 8; Response ¶ 8, at 2 (not disputing this fact). “ASI directly employed the security officers who provided security services at the 2011 Capital High prom.” MSJ ¶ 13, at 5 (setting forth this fact). See Santa Fe Public Schools Services Contract ¶ L, at 2; Response ¶ 13, at 3 (not disputing this fact). 49 “In preparation for a school-sponsored special event, the principal of the high school sponsoring the event would typically instruct ASI regarding the implementation of SFPS’s customary search practices at the event.” Response ¶ 43, at 14 (setting forth this fact). See Yol. II Plaintiffs’ Archuleta Depo. at 168:11-14; Plaintiffs’ Romero Depo. at 94:6-95:8; id. at 96:7-21 ; id. at 97:9-17 ; Reply at 24-25 (not disputing this fact). 50

“Principal Romero directed ASI to perform standard pat-down searches of all attendees of the Capital High prom on April 16, 2011,” MSJ ¶28, at 8 (setting forth this fact); that is, “the same pat-downs, wanding, and possession searches that were part of SFPS’s customary practice,” Response ¶ 45, at 14 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 130:17-132:20; id. at 137:18-139:24 ; Affidavit of Melanie Romero ¶ 3, at 1 (executed November 12, 2012), filed November 13, 2012; Response ¶28, at 4 (not disputing this fact). 51 “Principal *1051 Romero directed that the pat-down searches for the 2011 Capital High prom be performed in the lobby area of the Santa Fe Convention Center with separate lines for males and females and” played a role in assigning certain responsibilities. MSJ ¶ 33, at 5 (setting forth this fact). See ASI New Mexico’s Gutierrez Depo. at 227:2-17; ASI New Mexico’s Romero Depo. at 130:17-132:24; id. at 139:9-140:8 ; id. at 165:13-24 ; -ASI New Mexico’s Lucero Depo. at 47:25-48:9; ASI New Mexico’s Clarke Depo. at 81:14-25. 52 “Principal *1052 Romero directed that ASI perform the pat-down searches at the 2011 Capital High prom on all attendees in a manner consistent with established SFPS past practices.” MSJ ¶ 34, at 10 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 137:18-139:24; Johnson Aff. ¶ 8, at 2; Vol. I Johnson Depo. at 106:6-15; Romero Aff. ¶¶ 2-4, at 1-2; id. ¶ 8 , at 2; Response ¶ 34, • at 5 (not disputing this fact). “Principal Romero was responsible for ensuring that both school personnel and ASI security officers at the 2011 Capital High prom followed proper search protocols.” MSJ ¶ 35, at 10 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 139:9-24; Romero Aff. ¶ 8, at 2; id. ¶ 11 , at 3; id. ¶ 14 , at 3. 53 “Principal Romero had the power to intervene and stop ASI security officers from performing pat-down searches at the 2011 Capital High prom in a manner that was inconsistent with SFPS protocol, past practices, or otherwise improper in her judgment.” MSJ ¶36, at 10 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 236:16-240:5; Romero Aff. ¶ 11, at 3; Response ¶ 36, at 5 (not disputing this fact). 54 “At the Capital High School prom, the highest ranking ASI official, who was present, understood that it was his and ASI’s lead guard’s responsibility for ensuring that all of the ASI staff were meeting then-expectations and fulfilling their job responsibilities.” Response ¶46, at 14 (setting forth this fact). See Vol. II Archuleta Depo. at 173:21-174:3; Plaintiffs’ Aguilar Depo. at 104:12-105:14; Reply ¶ 46, at 25 (not disputing this fact). 55 “ASI per *1053 formed pat-down searches on all attendees of the 2011 Capital High prom because Principal Romero directed it to do so.” MSJ ¶ 37, at 10 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 132:7-20; Vol. I ASI New Mexico’s Johnson Depo. at 84:10-85:15; id. at 89:14-22 ; id. at 106:6-15 ; Romero Aff. ¶ 2, at 1; id. ¶ 6 , at 2; id. ¶ 8 , at 2. 56 “Principal Romero asked ASI to perform pat-down searches of each of the attendees of the 2011 Capital High prom for the health, safety, and welfare of all attendees at the prom, and ASI believed the searches helped promote a safe prom experience for attendees.” MSJ ¶ 45, at 12 (setting forth this fact). See ASI New Mexico’s Archuleta Depo. at 112:3-23; id. 117:9-19 ; id. 126:14-127:8 ; Romero Aff. ¶ 3, at 2. 57

“Female ASI security officers, Rebecca Reyes and Sandra Vigil, performed the pat-down searches on female attendees of the 2011 Capital High prom after the attendees entered the Santa Fe Convention Center.” MSJ ¶ 29, at 8 (setting forth'this fact). See Complaint ¶ 27, at 8; id. ¶ 40 , at 9; Romero Aff. ¶ 12, at 3; Deposition of Candice Herrera at 114:16-115:14 (taken July 27, 2012), filed March 3, 2014 (Doc. 182-13)(“ASI New Mexico’s C. Herrera Depo.”); Videotaped Deposition of Tiffany Herrera at 58:16-23 (taken August 12, 2012), filed March 3, 2014 (Doc. 182-14)(“ASI New Mexico’s T. -Herrera *1054 Depo.”); Deposition of Ashley Hurtado at 115:23-116:9 (taken August 13, 2012), filed March 3, 2014 (Doc. 182-14)(“ASI New Mexico’s Hurtado Depo.”); Deposition of Arianna London at 118:11-22 (taken August 24, 2012), filed March 3, 2014 (Doc. 182-16)(“ASI New Mexico’s London Depo.”); id. at 119:22-120:19 ; Vol. I Deposition of Rebecca Reyes at 85:19-21 (taken May 8, 2012), filed March 3, 2014 (Doc. 182-17)(‘Vol. I ASI New Mexico’s Reyes Depo.”); Deposition of Sandra Vigil at 46:21-47:2 (taken July 24, 2012), filed March 3, 2014 (Doc. 182-18)(“ASI New Mexico’s Vigil Depo.”); Response ¶ 29, at 8 (stating that this fact is “[ujndisputed”). 58 Reyes and “Vigil also performed wand searches.” Response ¶ 30, at 4 (citing Plaintiffs’ Aguilar Depo. at 136:l-7). 59 “Reyes was instructed by the lead guard at the 2011 Capital High School prom to conduct pat-downs on students entering the prom.” Response ¶55, at 15 (setting forth this fact). See Vol. I Plaintiffs’ Reyes Depo. at 62:25-64:9; Reply passim (not responding to this fact). “At the time of the Capital prom, Rebecca Reyes was on-duty and had been assigned to conduct security at the 2011 Capital High School prom along with a host of other ASI security personnel.” Response ¶ 56, at 16 (setting forth this fact). See Plaintiffs’ Aguilar Depo. at 175:14-176:9; Reply at 24-25 (not disputing this fact). 60 “Rebecca Reyes *1055 knew it was inappropriate to touch students in the breast area.”. Response ¶ 58, at 16 (setting forth this fact). See Vol. I Plaintiffs’ Reyes Depo. at 108:5-15; Reply ¶ 58, at 30 (not disputing this fact). 61 “Reyes admits she patted down bare arms, had students pull their bras away from their bodies and shake them, and conducted the pat-downs with her palms open facing toward the student.” Response ¶ 59, at 16 (setting forth this fact). See Vol. I Plaintiffs’ Reyes Depo. at 59:5-25; id. at 60:14-61:7 ; id. at 73:14-21 ; Reyes Statement at l. 62 “Reyes acknowledged *1056 that conducting a pat-down of bare arms in search of contraband was ‘stupid, because, you know, you can see their bare skin. There’s nothing there.’ ” Response ¶ 60, at 17 (setting forth this fact)(quoting Vol. I Plaintiffs’ Reyes Depo. at 71:24-72:8). 63

“SFPS personnel, including Principal Romero, worked alongside ASI security officers in performing searches at the 2011 Capital High.prom. Rose Lucero, the athletic department secretary at Capital High, wanded the female attendees. Other Capital High and/or SFPS personnel, along with Principal Romero, searched female attendees’ bags and purses.” MSJ ¶ 30, at 9 (setting forth these facts). See ASI New Mexico’s Romero Depo. at 134:23-135:1; id. at 139:18-141:23 ; id. at 142:19-22 ; id. at 145:14-20 ; id. at 146:24-147:3 ; id. at 149:16-21 ; id. at 151:3-11 ; Electronic Mail Transmission from Melanie Romero to Bobbie Gutierrez (dated May 23, 2011), filed March 3, 2014 (Doc. 182-2); ASI New Mexico’s Lucero Depo. at 9:1-12; id. at 54:7-10 ; id. at 54:22-25 ; ASI New Mexico’s C. Herrera Depo. at 148:6-19. 64 “Female students’ bras were .pulled and shaken or otherwise searched at the 2011 Capital High School prom as part of the pat-down search.” Response ¶ 52, at 15 (setting forth this fact). See Vol. I Plaintiffs’ Reyes Depo. at 60:6-61:22; id. at 62:L-13; id. at 114:24-115:9 ; Plaintiffs’ Lucero Depo. at 28:19-25; id. at 58:16-19 ; id. at 59:3-9 ; id. at 64:22-24 ; id. at 130:8-23 ; id. at 131:6-12 ; Vol. II Plaintiffs’ Gutierrez Depo. at 246:14-21; Plaintiffs’ Aguilar Depo. at 167:11-16; Reply ¶ 52, at 25 (not disputing this fact). 65

The process to be followed by SFPS personnel or ASI security officers who found drugs, alcohol, or contraband in an attendee’s possession while conducting searches at the 2011 Capital High prom was to notify Principal Romero or, if she was not nearby, to notify the nearest SFPS administrator and provide further assistance if, and as, requested.

MSJ ¶ 31, at 9 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 104:2-14; ASI New Mexico’s Archuleta Depo. at 199:9-17; ASI New Mexico’s Aguilar Depo. at 146:18-147:5; Deposition of Richard Padilla at 25:6-26:6 (taken May 15, 2012), filed March 3, 2014 (Doc. 182-19)(“ASI New Mexico’s Padilla Depo.”); Response ¶ 31, at 4 (not disputing this fact). “The process to be followed by ASI security officers in the event that any attendee refused to undergo a pat-down *1057 search was to escort that individual to a school official who would then take care of the situation.” MSJ ¶ 32, at 9 (setting forth this fact). See ASI New Mexico’s Archuleta Depo. at 187:4-188:3; Response ¶ 32, at 5 (stating that this fact is “[u]ndisputed”).

“ASI’s Policy Manual contained no policy establishing or requiring that, as a matter of standard ASI procedures, ASI security officers perform pat-down searches on all attendees of school events at which ASI provided security services.” MSJ ¶ 38, at 10 (setting forth this fact). See ASI New Mexico’s Archuleta Depo. at 64:25-65:13; ASI New Mexico’s Aguilar Depo. at 44:10-16; Policy Manual for Associated Security Industries (no date provided), filed March 3, 2014 (Doc. 181-1)(“ASI Policy Manual”); Response ¶ 38, at 5 (not disputing this fact). “ASI had no policy or pat-down guideline of its own that directed ASI security officers to touch the breasts or breast area, touch bare or exposed skin, or directly touch middle, upper or inner thighs as part of a standard pat-down search.” MSJ ¶ 39, at 10 (setting forth this fact). See Archuleta Depo. at 138:2-139:8; Standard Opporating [sic] Procedures at 1 (no date provided), filed March 3, 2014 (Doc. 1825-4); SOP for Pat Downs at 1 (no date provided), filed March 3, 2014 (Doc. 182-4); SOP for Conducting a Search at 1 (undated), filed March 3, 23014 (Doc. 182-4); Pah-Down Guidelines at l. 66

“ASI neither received, nor followed, any policy or guideline from SFPS that directed ASI security officers to touch the breasts or breast area, touch bare or exposed skin, or directly touch middle, upper or inner thighs as part of a standard pat-down search.” MSJ ¶ 40, at 10-11 (setting forth this fact). See ASI New Mexico’s Archuleta Depo. at Depo. at 138:2-139:8; id. at 142:18-143:7 ; id. at 144:6-145:14 ; ASI New Mexico Policy Manual passim; Response ¶40, at 5 (not disputing this fact). “ASI security officers, like school employees, performed searches on students only when specifically authorized or requested to do so by SFPS administrative personnel and sometimes SFPS administrative personnel performed the pat-down searches on students at the schools.” MSJ *1058 ¶ 41, at 11. See ASI New Mexico’s Romero Depo. at 55:21-56:22; ASI New Mexico’s Archuleta Depo. at 64:25-66:3; Vol. I ASI New Mexico’s Johnson Depo. at 114:3-12; id. at 119:7-14 ; 67 ASI New Mexico’s Hagele Depo. at 43:18-44:3; id. at 45:7-46:3 ; ASI New Mexico’s Aguilar Depo. at 44:10-16; id. at 45:23-46:3 ; ASI New Mexico’s Lujan Depo. at 14:1-15:2; id. at 72:22-74:3 ; id. at 75:4-12 ; ASI New Mexico’s Padilla Depo. at 22:ll-20. 68

The standard pat-down procedure ASI security officers were to follow in performing pat-down searches at the 2011 Capital High prom instructed ASI security officers not to pat-down on bare skin, to keep their palms flat, to not “cup” their hands, to use the back of their hands in a light patting motion, and that no pat-downs should ever be done in the groin and breast areas.

MSJ ¶ 42, at 11 (setting forth this fact). See Pat-Down Guidelines passim. 69

Both SFPS administration and ASI supervisory employees believe that pat- *1059 down searches of all attendees of school dances, homecoming and similar school events, in general, and at the prom, in particular, were reasonably required to exclude drugs, alcohol, [and] weapons ... from the prom and to dissuade attendees from taking such things to the prom.

MSJ ¶43, at 11. (setting forth unmodified version of this fact). See ASI New Mexico’s Romero Depo. at 101:10-102:5; id. at 102:18-104:14 ; id. at 105:3-106:6 ; ASI New Mexico’s Archuleta Depo. at 112:3— 23; id. at 115:18-116:19 ; id. at 126:14-127:8 ; id. at 130:11-15 ; id. at 130:24-132:3 ; Romero Aff. ¶¶ 3-4, at 1-2. 70 “Principal Romero and others believed it was reasonable and necessary to perform pat-down searches of all prom attendees because there is a history of students and event attendees hiding banned items to take those items into events.” MSJ ¶ 44, at 11 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 101:10-104:1; id. at 168:18-169:8 ; 71 Archuleta Depo. at 112:3-23; id. at 113:7-21 ; id. at 115:14-116:19 ; Clarke Depo. at 33:5-25; id. at 68:13-69:24 ; id. at 80:9-20 ; id. at 106:17-108:16 ; Romero Aff. ¶ 3, at l. 72

*1060 “The Superintendent of SFPS did not believe it was necessary to pat-down every student entering prom.” Response ¶ 49, at 15 (setting forth this fact). See Vol. II Plaintiffs’ Gutierrez Depo. at 275:11-278:11; Reply ¶¶ 49-51, at 26 (not disputing this fact). 73 “The Superintendent of SFPS admitted that conducting pat-down searches of students only after a wand alerted would be a sufficient and effective procedure for SFPS proms.” Response ¶ 50, at 15 (setting forth this fact). See Vol. I Plaintiffs’ Gutierrez Depo. at 195:13-196:1; Reply ¶¶ 49-51, at 26 (not disputing this fact). 74 “Principal Romero acknowledged that SFPS search protocol of pat-downs, wanding, and bag searches was not always effective in excluding drugs and alcohol from the dances.” Response ¶ 51, at 15 (setting forth this fact). See Plaintiffs’ Romero Depo. at 102:19-24; Reply ¶¶ 49-51, at 26 (not disputing this fact). 75

4. The Plaintiffs’ Knowledge of Santa Fe Schools’ Search Policy; Their Searches; The Searches’ Effects.

“Students entering the 2011 Capital High School prona were subjected to pat-down searches without any individualized suspicion.” Response ¶48, at 15 (setting forth this fact). See Vol. II Plaintiffs’ Reyes Depo. at 48:9-21; Response passim (not responding to this fact). “Each of the four individual Plaintiffs was subjected to an intrusive pat-down search at the Capital High School prom.” Response ¶ 1, at 9 (setting forth this fact). See Reply at 24 (not disputing this fact). 76 “Principal Romero did not have individualized reasonable suspicion to search Plaintiffs at the 2011 Capital High School Prom.” Response ¶ 14, at 11 (setting forth this fact). See Plaintiffs’ Romero Depo. at 168:23-170:21; id. at 172:4-11 ; id. at 176:12-13 ; id. at 177:24-178:4 ; id. at 181:7-10 ; id. at 184:3-9 ; id. at 184:25-185:9 ; Reply at 24-25 (not disputing this fact). 77 The Court *1061 will discuss each Plaintiffs search in turn,

a. C. Herrera’s Awareness of SFPS’ Search Policy; Her Search; Its Effects.

“Plaintiff C. Herrera underwent pat-down searches by ASI security officers at the 2010 Capital High prom and at homecoming dances and, therefore, knew she would be subject to a pat-down search when she arrived at the 2011 Capital High prom.” MSJ ¶ 47, at 12 (setting forth this fact). See ASI New Mexico’s C. Herrera Depo. at 35:14-36:11; id. at 198:17-200:9 ; id. at 201:4-202:15 ; id. at 203:11-204:24 ; Response ¶ 47, at 6 (stating only “Court previously deemed undisputed” and, not, therefore, disputing the fact).

Although C. Herrera finds any search without probable cause invasive, at the time she was searched,

Plaintiff C. Herrera had no objection to the pat-down searches she experienced in

attending the 2010 Capital High prom and homecoming dances, which were like the pat-down search at the 2011 Capital High prom but for the alleged improper groping and touching of bare skin during the 2011 Capital High prom pat-down.

MSJ ¶ 48, at 12 (setting forth unmodified version of this fact). See ASI New Mexico’s C. Herrera Depo. at 198:4-200:9; id. at 201-4-15; id. at 204:5-20 ; Videotaped Deposition of Candice Herrera at 201:4-9 (taken July 27, 2012), filed March 20, 2014 (Doc. 193-8)(“Plaintiffs’ C. Herrera Depo.”); id. at 203:17-204:4 . 78

The security guard

*1062 had [C. Herrera] spread [her] arms and legs out, and she patted along [C. Herrera’s] arms, touched along the waist. And then she grabbed the outer part of [C. Herrera’s] bra and moved it here. And then she grabbed the inner part of [C. Herrera’s] bra and moved it here. And then she cupped [C. Herrera’s] breasts and shook them.

‡ ‡ ‡

[A]fterwards she moved down to [C. Herrera’s] waist and then she went all the way down [C. Herrera’s] dress and then she pulled the dress up to about mid-thigh and she felt up the bare leg, as well.

Plaintiffs’ C. Herrera Depo. at 127:16-128:9. See Response ¶ 1(a), at 9 (setting forth this fact’s substance); Reply at 24-25 (not disputing this fact). 79

a.[D]uring [C. Herrera’s] pat-down search, the security officer patted C. Herrera’s arms and waist, and grabbed the inner part of her bra, cupped her breasts, and felt up C. Herrera’s bare leg after pulling her dress up to mid-thigh;

b. she was looking at the security officer performing the pat-down search on her when the security officer touched C. Herrera’s breasts and bra clasp;

c. after the security officer touched C. Herrera’s breasts, the security officer then picked up C. Herrera’s dress to mid-thigh at which point C. Herrera tried to push her dress back down and the security officer told her to put her hands back up so she could finish; and

d. when C. Herrera put her hands back up, she looked up at Principal Romero, who smiléd at C. Herrera and turned back around.

MSJ ¶ 50, at 13 (setting forth this fact) (citations omitted). See ASI New Mexico’s C. Herrera Depo. at 127:16-128:9; id. at 129:10-18 ; id. at 129:16-131:2 ; id. at 135:16-136:2 ; Response ¶ 50, at 6 (stating that this fact is “[u]ndisputed”). 80 She tried “to stop the guard from lifting her dress by holding it down with her hands *1063 but the guard demanded that she remove her hands to allow the search to continue.” Response ¶ 3, at 8 (setting forth this fact). See Plaintiffs’ C. Herrera Depo. at 129:10— 130:25; Reply at 24-25 (not disputing this fact). 81

After her pat-down search at the 2011 Capital High prom, Plaintiff C. Herrera:

a. attended the prom, had fun at the prom, and enjoyed spending time with her friends there from approximately 8:00 p.m. until around 11:00 p.m.;

b. went for ice cream afterwards with friends, ate ice cream with her friends in the Albertson’s' parking lot while sitting on or in their cars talking and listening to music;

c. went to a park and spent time hanging out with her friends for a couple of hours where they played on the playground equipment;

d. graduated from high school in 2011 and attended college; and

e. was successfully employed during the summer after graduating from high school in 2011.

MSJ ¶ 51, at 14 (setting forth, these facts) (citations omitted). See ASI New Mexico’s C. Herrera Depo. at 6:20-11:18; id. at 38:18-40:5 ; id. at 100:4-101:5 ; id. at 101:18-102:20 ; id. at 103:20-104:16 ; id. at 221:12-17 ; id. at 224:2-10 ; id. at 267:9-269:4 ; id. at 279:10-280:15, 282:14-21 ; Response ¶ 51, at 7 (stating that these facts are “[ujndisputed”). 82 C. Herrera discovered, when she left the CHS Prom, that prescription medication that had been confiscated during her search was thrown away; this discovery upset her. 83

*1064 Plaintiff C. Herrera describes the emotional distress she claims to have experienced, because of the pat-down search performed on her at the 2011 Capital High prom, as worrying about whether she might be subjected to pat-down searches at other events she attends, especially school events. She was angered and embarrassed by the pat-down search.

MSJ ¶53, at 14 (setting forth this fact). See ASI New Mexico’s C. Herrera Depo. at 205:2-207:9; id. at 233:21-234:24 ; Response ¶ 53, at 7 (not disputing this fact). 84 C. “Herrera felt exposed and uncomfortable with her dress pulled up.” Response ¶ 2, at 10 (citing Plaintiffs’ C. Herrera Depo. at 177:15-178:3). 85 She “did not know how to react when her breasts were touched during her pat-down search, especially because of the guard’s position of authority.” Response ¶ 4, at 9 (citing Plaintiffs’ C. Herrera Depo. at 130:3-11). See Reply at 24 (not disputing this fact). 86 “The experience of being searched left Candice Herrera feeling ... violated and exposed.” Response ¶ 11, at 11 (setting forth unmodified version of this fact). See Plaintiffs’ C. Herrera Depo. at 180:11-181:11; Reply at 24 (not disputing this fact). 87 “The presence” and evident ap *1065 proval of school administrators made the situation “that much more uncomfortable.” Plaintiffs’ C. Herrera Depo. at 180:11-181:11. 88 She “continues to worry about the possibility of people touching her.” Response ¶ 13, at 11. See Plaintiffs’ C. Herrera Depo. at 204:25-207:9; Reply at 24 (not disputing this fact). 89

“Plaintiff C. Herrera never sought or received any medical treatment or counseling for injuries she claims to have experienced because of the pat-down search at the 2011 Capital High prom.” MSJ ¶ 54, at 14 (setting forth this fact). See ASI New Mexico’s C. Herrera Depo. at 233:6-20; Response ¶ 54, at 7 (stating that this fact is “[ujndisputed”). 90

*1066 b. T. Herrera’s Awareness of SFPS’ Search Policy; Her Search; Its Effects.

“Plaintiff T. Herrera attended homecoming dances in 2010 and. 2011 at Capital High with her sister, Plaintiff C. Herrera, and pat-down searches of all students were conducted at those homecoming dances.” MSJ ¶ 55, at 14 (setting forth this fact). See ASI New Mexico’s C. Herrera Depo. at 202:5-8; id. at 203:11-22 ; Videotape Deposition of Tiffany Herrera at 128:8-129:3 (taken August 13, 2012), filed March 3, 2014 (Doc. 182-14)(“ASI New Mexico’s T. Herrera Depo.”); Response ¶ 55, at 7 (stating that the fact is “[u]ndisputed”). 91

“Plaintiff T. Herrera proceeded to the search line after arriving for the Capital High prom, waited to be pat-down searched after her sister and one or two other female students ahead of Plaintiff C. Herrera, and observed portions of her sister’s pat-down search before being pat-down searched herself.” MSJ ¶ 56, at 15 (setting forth this fact). See ASI New Mexico’s T. Herrera Depo. at 51:4-52:23; id. at 54:11-16 ; id. at 119:15-120:11 ; id. at 129:20-130:3 ; Response ¶ 56, at 7 (stating that this fact is “[u]ndisputed”).

The security guard

asked [T. Herrera] to spread [her] arms out and she ran her hands along [T. Herrera’s] arms which she could clearly see. And then she continued down to pat down [T. Herrera’s] waist and hips.

And then she — and then she went back up and cupped both [T. Herrera’s] breasts and shook them. And then she continued down to pat down the sides of [T. Herrera’s] dress. And then she lifted up [T. Herrera’s] dress and with her bare hands she ran her hands down along the inside of [T. Herrera’s] legs.

Plaintiffs’ T. Herrera Depo. at 58:20-23; id. at 59:9-14 . See Response ¶ 1(b), at 9 (setting forth substantially this fact); Response at 24 (not disputing this fact). 92

a. [T. Herrera] was standing face-to-face with the security officer and was looking at the security officer during T. Herrera’s pat-down search;

b. the pat-down search included the security officer patting T. Herrera’s arms, behind her shoulder, her sides, grabbing and shaking T. Herrera’s breasts, and picking up T. Herrera’s dress and running her hands along the inside and outside of T. Herrera’s legs up to mid-thigh and that, while this whole pat-down search was going on, T. Herrera was looking at the security officer’s face but not in her eyes;

*1067 c. she has never spoken to anyone who ever said that they saw her pat-down search;

d. she does not know if Melanie Romero or any other Capital High School staff saw her pat-down search even though they were only a few feet away from her; and

e. she does not know if anybody saw her body exposed during the pat-down search.

MSJ ¶ 59, at 15-16 (setting forth these facts) (citations omitted). See ASI New Mexico’s T. Herrera Depo. at 60:24-61:19; id. at 62:8-19 ; id. at 63:15-64:3 ; id. at 65:11-67:7 ; id. at 69:5-11 ; id. at 121:24-122:4 ; id. at 125:4-17 ; Response ¶ 59, at 15-16 (stating that this fact is “[ujndisputed”). “Plaintiff T. Herrera did not object to undergoing a pat-down search at the 2011 Capital High prom, or complain regarding its scope, at the time of the search.” MSJ ¶ 58, at 15 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 241:13-242:2; ASI New Mexico’s Lucero Depo. at 60:15-25; id. at 84:14-21 ; id. at 143:16-19 ; id. at 148:18-149:1 ; Romero Aff. at ¶ 14; ASI, New Mexico’s T. Herrera Depo. at 67:4 — 10; id. at 183:17-184:7 . 93

“T. Herrera describes the pat-down search that allegedly included the security officer touching T. Herrera’s breast area and touching her bare skin as improper[,] because,” among other reasons, “ ‘they shouldn’t have done such an invasive search.’ ” MSJ ¶ 57, at 15 (setting forth unmodified version of this fact)(quoting ASI New Mexico’s T. Herrera Depo. at 74:13-17). See ASI New Mexico’s T. Herrera Depo. at 62:5-64:24; id. at 74:13-17 ; Plaintiffs’ T. Herrera Depo. 183:7-16; id. at 190:13-191:6 . 94 She “described her *1068 search as ‘extremely uncomfortable’ and indicated that she ‘felt violated, disrespected.’ ” Response ¶ 4, at 10 (quoting Plaintiffs’ T. Herrera Depo. at 86:19-25). See Reply at 24 (not disputing this fact). 95

After her pat-down search at the 2011 Capital High prom, Plaintiff T. Herrera:

a. focused on having a good time at the prom, attended the prom until almost the end, sat at the table having a good time talking with friends, danced, and the mood was “happy”;

b. went to Albertson’s with friends and bought ice cream and ate it in the parking lot;

c. met up with Mends at a park for about an hour before going home;

d. raised no complaint regarding the pat-down search with any SFPS employee while at the prom because she did not think it was necessary because she was focused on having a good time at the prom;

e. successfully continued attending high school and increased her class load to include taking community college classes to help further her career interests in being a paramedic firefighter;

f. planned to attend college to seek a Bachelor’s Degree in Emergency Medicine;

g. became involved in a volunteer firefighting department;

h. participated in track and field and was a cheerleader at Capital High during her junior year of high school;

i. considered participating in track and field her senior year at Capital High if not too busy with community college classes; and

j. graduated from high school.

MSJ ¶ 60, at 16-17 (setting forth these facts) (citations omitted). See ASI New Mexico’s T. Herrera Depo. at 6:5-14; id. at 8:23-12:7 ; id. at 13:5-20 ; id. at 13:21-14:13 ; id. at 101:16-103:18 ; id. at 152:17-153:7 ; id. at 159:11-160:6 ; id. at 161:1-16 ; id. at 160:9-25 ; ASI New Mexico’s Gurule-Leyba Depo. at 82:23-25. 96

“Plaintiff T. Herrera describes the emotional distress she claims to have experienced, because of the pat-down search performed on her at the 2011 Capital High prom, as feeling awkward, extremely uncomfortable, humiliated, violated, disrespected, and embarrassed.” MSJ ¶ 61, at *1069 17. See ASI New Mexico’s T. Herrera Depo. at 68:19-25; id. at 182:16-183:12 ; Response ¶ 61, at 8 (not disputing this fact). 97 “Plaintiff T. Herrera never sought or received any medical treatment or counseling for injuries she claims to have experienced because of the pat-down search at the 2011 Capital High prom.” MSJ ¶ 62, at 17 (setting forth this fact). See ASI New Mexico’s T. Herrera Depo. at 173:21-174:5; Response ¶ 62, at 7 (stating that this fact is “[ujndisputed”). 98

c. Hurtado’s Knowledge of SFPS’ Search Policy; Her Search;

Its Effects.

“Hurtado was pat-down searched by an ASI security officer without any groping when she attended the 2009 Capital High prom and had no problems with the standard pat-down search that occurred at that prom.” MSJ ¶ 63, at 17. See ASI New Mexico’s Hurtado Depo. at 153:23-154:12; id. at 155:15-21 ; Response ¶ 63, at 8 (not disputing this fact). 99 “Hurtado observed other students being searched when she arrived for the 2011 Capital High prom before getting into the search line herself. She saw pat-down searches of two females in the search line, and her fiance’s pat-down search, before being searched herself.” MSJ ¶ 64, at 17 (setting forth these facts). See ASI New Mexico’s Hurtado Depo. at 97:19-98:2; id. at 99:1-100:19 ; id. at 101:21-108:18 ; Response ¶ 64, at 8 (stating that this fact is “[ujndisputed”). 100

Plaintiff Hurtado could not see the fronts of the female 'students ahead of her in line during their pat-down searches, but the portions of their pat-down searches that she could see were basically the same as the pat-down search that she experienced except that neither of those students had the inside of their thigh patted like she states hers was.

MSJ ¶ 65, at 18 (setting forth this fact). See ASI New Mexico’s Hurtado Depo. at 117:25-118:24; id. at 134:14-23 ; Response ¶ 65, at 8 (stating that this fact is “[ujndisputed”). 101 “Hurtado did not object to un *1070 dergoing a pat-down search at the 2011 Capital High prom, or complain regarding its scope” to Romero or to the guards “at the time of the search.” MSJ ¶ 66, at 18 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 241:13-242:2; ASI New Mexico’s Lucero Depo. at 60:15-25; id. at 84:14-21 ; id. at 143:16-19 ; id. at 148:18-149:1 ; Romero Aff. ¶ 14, at 3; ASI New Mexico’s Hurtado Depo. at 135:9-21; id. at 145:19-25 . 102

The security guard

went down the side of [Hurtado’s] body and then she went with her hands with her palms facing in and went around [Hurtado’s] breasts and went inside with her thumb to check if [Hurtado] had anything in [her] cleavage. Went down — again down [her] body. Went down both [her] thighs. [Her] inner included.

Hurtado Depo. at 109:23-110:4. See Response ¶ 1(c), at 9 (setting forth substantially this fact); Reply at 24 (not disputing this fact). 103

a.[T]he security officer was facing Hurtado while performing the pat-down search;

b. during Hurtado’s pat-down search, the security officer patted Hurtado down the sides of her body, touched Hurtado’s breasts and in her cleavage, touched her inner thigh, and removed Hurtado’s shoes and banged them on the table and then had Hurtado step back into her shoes;

c. while the security officer was performing the pat-down search, Hurtado was looking straight forward down the hallway at the entrance to the bathrooms;

d. Hurtado looked straight forward during her pat-down search because she felt uncomfortable and did not want to pay much attention or make eye contact with the security officer; and

e. Hurtado could not see anybody as she was looking straight forward down the hallway towards the bathrooms during her pat-down search.

MSJ ¶ 67, at 19 (setting forth this fact) (citations omitted). See ASI New Mexico’s Hurtado Depo. 109:20-110:8; id. at 111:22-112:9 ; id. at 113:1-114:13 ; Response ¶ 67, at 8 (stating that this fact is “[u]ndisputed”). “Hurtado’s conduct during the search indicated her discomfort *1071 with the search.” Reply ¶ 6, at 10 (setting forth this fact). See Plaintiffs’ Hurtado Depo. at 114:2-10; Reply at 24 (not disputing this fact). 104

After her pat-down search at the 2011 Capital High prom, Plaintiff Hurtado:

a. attended the prom for approximately two hours, spent time there with Plaintiff London at a reserved table, ate snacks at their table, danced a little bit with her boyfriend, took some pictures, and laughed with her Mends;

b. took a picture of herself and Plaintiff London while attending the prom;

c. went to get something to eat with her boyMend after leaving the prom and then went for a drive with him half-way up to Hyde Park before going home;

d. graduated from high school in 2011 and attended college; and

e. was successfully employed.

MSJ ¶ 68, at 18 (setting forth this fact) (citations omitted). See ASI New Mexico’s Hurtado Depo. at 20:11-22; id. at 23:7-27:9 ; 28:9-30:2; id. at 30:12-31:12 ; id. at 79:2-80:4 ; id. at 80:19-81:3 at 136:3-137:8; id. at 139:8-140:15 ; id. at 140:20-142:15 ; id. at 222:19-23 ; Unidentified Photograph (undated), filed March 3, 2014 (Doc. 182-15); Response ¶ 69, at 8 (stating that this fact is “[ujndisputed”). 105

“Hurtado describes the emotional distress she claims to have experienced, because of the pat-down search performed on her at the 2011 Capital High prom, as being worried about going to other places, like concerts, where she might be searched, and feeling humiliation and embarrassment because of the pat-down search.” MSJ ¶ 69, at 19 (setting forth this fact). See ASI New Mexico’s Hurtado Depo. at 185:15-25; id. at 186:23-187:4 ; id. at 188:3-14 ; Response ¶ 69, at 8 (stating that this fact is “[ujndisputed”). 106 She “worries every day about .being subjected to search.” Response ¶ 8, at 10 (setting forth this fact). See Hurtado Depo. at 187:20-188:2; Reply at 24 (not disputing this fact). 107 She “felt humiliated and embarrassed about being touched inappropriately by a stranger in public and in front of classmates.” Response ¶ 7, at 10. See Plaintiffs’ Hurtado Depo. at 185:15-25; Reply at 24 (not disputing this fact). 108 *1072 “The searches at prom made [her] emotionally distressed and afraid to go to events where there might be similar searches.” Response ¶ 9, at 10. See Hurtado Depo. at 186:23-187:11; id. at 233:21-234:17 ; Reply at 24 (not disputing this fact). 109

“Hurtado never sought or received any medical treatment or counseling for injuries she claims to have experienced because of the pat-down search at the 2011 Capital High prom.” MSJ ¶ 70, at 19 (setting forth this fact). See ASI New Mexico’s Hurtado Depo. at 188:15-18; id. at 190:7-10 ; Response ¶ 70, at 8 (stating that this fact is “[u]ndisputed”). 110

d. London’s Knowledge of SFPS’ Search Policy; Her Search;

Its Effects.

“London was pat-down searched her sophomore year in attending homecoming at Rio Grande High School in Albuquerque, and in attending concerts, and had no objection to the pat-down searches performed at those venues.” MSJ ¶ 71, at 19-20 (setting forth this fact). See ASI New Mexico’s London Depo. at 181:14-185:11; id. at 186:10-18 ; Response ¶ 71, at 8 (not disputing this fact). 111 “London did not object to undergoing a pat-down search at the 2011 Capital High prom, or complain regarding its scope, at the time of the search.” MSJ ¶ 72, at 20 (setting forth this fact). See ASI New Mexico’s Romero Depo. at 241:13-242:2; ASI New Mexico’s Lucero Depo. at 60:15-25; id. at 84:14-21 ; id. at 143:16-19 ; id. at 148:18-149:1 ; Romero Aff. ¶ 14, at 3; London Depo. at 134:25-135:24. 112

The security guard

told [London] to spread [her] legs and then she patted [London’s] legs down. And then she went all the way up and then she did the other leg and then she lifted [London’s] skirt a little bit and she patted [London’s] legs even more. And then she patted the front of [London], so she did [London’s] stomach and [her] sides and then she did [London’s] chest. And then she put her hands underneath the seams of [London’s] dress and on the sides and on the back. And then she patted [London’s] back side down.

London Depo. at 120:9-17. See Response ¶ 1(d), at 9 (setting forth this fact). 113

*1073 a. [W]hile performing the pat-down search, the security officer faced London, patted London’s front, stomach and sides, cupped London’s breasts, lifted her dress up to midthigh level and put her hands on both sides of London!s legs;

b. while the security officer was performing the pat-down search on her legs, London was looking at Principal Romero who was going through London’s purse;

c. the other female security officer was never involved at any time during London’s pat-down search; and

d. she remembered Stephanie Leyba in the lobby area taking her ticket upon London’s arrival to the prom, and Principal Romero taking her purse to search when London entered the search line, but she was not really paying attention to other people around in the lobby area.

MSJ ¶ 73, at 20 (citations omitted)(setting forth these facts). See ASI New Mexico’s London Depo. at 20:8-17; id. at 113:20-114:11 ; id. at 116:6-117:17 ; id. at 122:25-123:3 ; id. at 124:12-125:6 ; id. at 129:23-130:12 ; id. at 130:19-131:4 ; id. at 132:24-133:14 ; id. at 137:18-25 ; id. at 138:20-23 ; Response ¶ 73, at 8 (stating that these facts are “[ujndisputed”).

After her pat-down search at the 2011 Capital High prom, Plaintiff London:

a.attended the prom for two to three hours until about fifteen minutes before it ended, sat at her table with friends and talked and ate and drank, danced with her friends, and had fun at the prom;

b. raised no complaint with ASI security officers or SFPS personnel about the pat-down search even though, before entering the prom ballroom, she spoke with Principal Romero and Capital High teacher, Ms. Tilp, about London’s perfume and foundation having been confiscated;

c. raised no complaint about the pat-down search with Capital High teacher Ms. Leyba even though London spoke with her for about ten minutes before leaving the prom about various matters, including the fact that London’s perfume and foundation were missing from the box where she was supposed to be able to pick them up before leaving. During this conversation, Ms. Leyba offered a cupcake to London, which she accepted;

d. hosted her friend Angelica for a sleepover at London’s house that night;

e. graduated from high school in 2011 and attended college; and

f. was successfully employed.

MSJ ¶ 74, at 21 (citations omitted)(setting forth these facts). See ASI New Mexico’s London Depo. 11:9-14:9; id. at 18:3-20:12 ; id. at 135:10-137:17 ; id. at 140:2-10 ; id. at 150:18-152:6 ; id. at 156:13-157:22 ; id. at 160:10-161:17 ; id. at 162:9-12 ; id. at 171:7-19 ; id. at 172:4-175:2 ; id. at 176:11-177:8 . 114

*1074 [T]he emotional distress she ... experienced, because of the pat-down search performed on her at the 2011 Capital High prom, [is] the memory of prom being ruined for her, feeling bad about herself, and feeling disrespected and taken advantage of because of the way she was searched.

MSJ ¶75, at 21 (setting forth this fact). See ASI New Mexico’s London Depo. at 212:17-213:17; Response ¶ 75, at 8 (stating that this fact is “[u]ndisputed”). 115 Her “prom search ruined the memory of prom for her and made her feel disrespected and bad about herself.” Response ¶ 10, at 11 (setting forth this fact). See Plaintiffs’ London Depo. at 212:17-213:7; Reply at 24 (not disputing this fact). 116

“London never sought or received any medical treatment or counseling for injuries she claims to have experienced because of the pat-down search at the 2011 Capital High prom.” MSJ ¶ 76, at 22 (setting forth this fact). See ASI New Mexico’s London Depo. at 211:15-23; Plaintiff Arianna London’s Responses to Santa Fe Public Schools’ Second Interrogatories and Requests for Production of Documents at 9 (undated), filed March 3, 2014 (Doc. 182-16); Response ¶ 76, at 9 (stating that this fact is “[u]ndisputed”). 117

Ms. Reyes does not know the Plaintiffs. See Plaintiffs’ Reyes Depo. Vol. II at 47:15-20. 118

*1075 “No one attending the prom, including the Plaintiffs, stated to Principal Romero at any time during the prom that an ASI security officer touched any prom attendee’s breasts or bare legs, pulled any attendee’s bra, or otherwise touched them inappropriately while conducting pat-down searches at the prom.” MSJ ¶ 77, at 22. See ASI New Mexico’s Romero Depo. at 241:13-242:2; Romero Aff. ¶ 14, at 3; ASI New Mexico’s C. Herrera Depo. at 183:20-184:22; ASI New Mexico’s T. Herrera Depo. at 75:17-76:15; ASI New Mexico’s Hurtado Depo. at 134:3-10; id. at 135:9-24 ; ASI New Mexico’s London Depo. at 135:13-24; id. at 139:15-140:10 ; Response ¶ 77, at 9 (stating that this fact is “Undisputed”).

No evidence exists establishing that ASI trained, instructed, condoned, or supported having its security officers grab, cup their hands on, shake or otherwise touch an individual’s breasts or front of their bra, or grope, stroke or directly touch an individual’s bare skin or middle, upper or inner thighs as part of performing pat-down search security services at the 2011 Capital High prom.

MSJ ¶ 81, at 24 (setting forth this fact). See ASI New Mexico’s Archuleta Depo. at 138:2-139:8; Standard Opporating [sic] Procedures at 1; SOP for Pat Downs at 1; SOP for Conducting a Search; Pah-Down Guidelines; Policy Manual for Associated Security Industries passim; ASI New Mexico’s Johnson Depo. at 73:18-23. 119

*1076

PROCEDURAL BACKGROUND

Plaintiffs allege that:

a. ASI acted in concert with and at the direction of SFPS in performing pat-down searches of all students attending the 2011 Capital High prom;

b. “ASI acted as a state actor under color of law in working jointly with Capital High School personnel in searching students at the Capital High Prom, including Plaintiffs. ASI and Santa Fe Public Schools acted with a shared purpose in searching students at the Capital High School Prom.”;

c. in performing pat-down searches of all attendees at the 2011 Capital High prom, ASI employees acted “in accordance with instructions from Santa Fe Public Schools” and “pursuant to Santa Fe Public Schools’ policy, custom, and/or practice of searching students without reasonable suspicion” at SFPS events;

d. at all relevant times, SFPS “maintained authority to control and supervise ASI’s conduct” at SFPS events;

e. ASI employees’ “unlawful searches” of 2011 Capital High attendees “occurred as a result of Principal Romero’s exercise of policy-making authority,” and that SFPS “employees and agents,” “acting within the scope of their employment as employees [and] agents,” conducted unlawful searches without reasonable suspicion;

f. the “Santa Fe Public School Defendants” are liable for and proximately caused injuries to Plaintiffs by violating Art. 2, § 10, and that timely notice, pur *1077 suant to the New Mexico Tort Claims Act, was given to the Superintendent of SFPS[;]

g. “Santa Fe Public Schools employees and agents acted negligently ... by unreasonably and unlawfully subjecting students’ persons and property to search without reasonable suspicion;” that “Defendants and Santa Fe Public Schools employees and agents ... we’re acting within the scope of their employment as employees, agents, and/or representatives of Santa Fe Public Schools,” and that such negligence by “Santa Fe Public Schools employees and agents acting within the scope of their duties” created a dangerous condition for students attending the 2011 Capital High prom;

h. for their IIED claim, “Defendants engaged in extreme and outrageous conduct in subjecting Plaintiffs to unconstitutional searches” in violation of Plaintiffs’ rights under the federal and state Constitutions;

i. for their prima facie tort claim, Defendants “engaged in intentional unlawful conduct in searching Plaintiffs on April 16, 2011,” “acted with intent to injure Plaintiffs’ legally protected interests,” “violated Plaintiffs’ legally protected rights,” and that Defendants’ conduct “was not justified.”

MSJ ¶ 78, at 22 (setting forth this factXquoting scattered sections of Complaint). 120

No allegation in Count II specifically identifies ASI or any of its employees as being liable for proximately causing injuries to Plaintiffs by violating Art. 2, § 10 of the New Mexico Constitution, and no allegation in the Second Amended Complaint identifies ASI as being one of the “Santa Fe Public School Defendants.”

MSJ ¶ 79 at 24 (setting forth this fact)(citing Complaint passim, ). 121 “Plaintiffs’ prima facie tort claim rests on the same allegations that form the bases for their, other claims against ASI in the Second Amended Complaint.” MSJ ¶ 80, at 24. 122

1. The Complaint; Previous Memorandum Opinions.

The Plaintiffs filed their Complaint on September 18, 2012. See Doc. 100. Count I alleges a claim under 42 U.S.C. § 1983 for violation of the Plaintiffs’ rights under the Fourth Amendment to the Constitution of the United States of America to “be secure in their persons and effects against unreasonable searches and seizures.” Complaint ¶ 135, at 24. Count II alleges a claim for violation of the New Mexico Constitution. See Complaint ¶¶ 138-148, at 24-26. Count III alleges a claim for battery. See Complaint ¶¶ 149-152, at 26. Count IV alleges a claim for intentional infliction of emotional distress. See Complaint ¶¶ 153-157, at 26-27. Count V al *1078 leges a claim for prima facie tort. See Complaint ¶¶ 158-162, at 27.

On October 24, 2012, Romero and the SFPS Defendants moved to dismiss the remaining counts — II through V — of the Second Amended Complaint. See School Defendants’ Motion for Summary Judgment on Counts II, III, IV, and V of the Second Amended Complaint [Doc. 100] under the Tort Claims Act and Memorandum in Support (Doc. 108). On November 9, 2012, the Plaintiffs’ counsel informed Defendants SFPS Board of Education, Gudwin, Winkle, Trujillo, Montano, and J. Carillo, in their official capacities as SFPS Board of Education members, in her official capacity as SFPS Superintendent, Romero, in her official capacity as Capital High Principal, and Kilmer, in her official capacity as Santa Fe High School Principal that the Plaintiffs would concede the motion and file a rule 41 dismissal of Counts II-V of the Second Amended Complaint against all School Defendants, which the Plaintiffs filed on November 13, 2012. See Plaintiffs’ Unopposed Motion to Voluntarily Dismiss Counts II-V Against the Schools [sic] Defendants (Doc. 114). On November 15, 2012, the Court entered an Order granting the Plaintiffs’ motion, and dismissing Counts II, III, TV, and V against Defendants SFPS Board of Education; Barbara Gudwin, Glenn Wikle, Linda Trujillo, Frank Montano, and Steven J. Carrillo, in their official capacities as members of the SFPS Board of Education; Bobbie J. Gutierrez, in her official capacity as Superintendent of SFPS; Melanie Romero, in her official capacity as Principal of Capital High School; and Leslie Kilmer, in her official capacity as Principal of Santa Fe High School; and dismissing as moot the School Defendants’ Motion for Summary Judgment on Counts II, III, IV, and V of the Second Amended Complaint [Doc. 100] under the Tort Claims Act and Memorandum in Support. See Order at 1 (Doc. 118).

In its Memorandum Opinion and Order, filed Jun 28, 2013 (Doc. 142), 956 F.Supp.2d 1191 (“Romero MOO”), the Court granted summary judgment as to the individual-capacity claim against Romero. See Romero MSJ passim.

In the SFPS Defendants’ MOO, the Court granted summary judgment as to the Plaintiffs’ claims against the SFPS Defendants that arise out of the searches’ invasive nature, but not as to the Plaintiffs’ claims against the SFPS Defendants that arise out of the searches’ invasive nature. See SFPS Defendants’ MOO passim.

2. The MSJ; the Response; and the Reply.

ASI New Mexico asserts that it cannot be held liable for the Plaintiffs’ claims, because it is not a state actor, and because it is entitled to qualified immunity. See MSJ at 24-25. ASI New Mexico first reviews basic principles of state action law, noting that private actors are not usually state actors. See MSJ at 25-26. ASI New Mexico reviews the standards from the joint-action test, arguing that,

[u]nder the joint action test, state action exists if a private party is a “willful participant in joint action with the State or its agents.” Johnson v. Rodrigues, 293 F.3d 1196, 1205 (10th Cir.2002) (quoted authority omitted). “In considering the joint action test, courts examine whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights.” Montoya v. Española Pub. Sch. Dist. Bd. of Edu., No. 10cv00651 WPJ/LFG (DOC 324), at p. 14 (D.N.M. filed Aug. 23, 2012) (citing Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1453 (10th Cir.1995)). In analyzing potential joint action, some courts *1079 look to whether a conspiracy existed between the state officials and a private actor. See Gallagher, 49 F.3d at 1454 . Under a conspiracy approach, a private party may be found to be a state actor if it exerted influence over the challenged decision or action. See id. Other courts have focused on the manner in which the alleged constitutional deprivation is effected. Id. If state officials and private parties engaged in a substantial degree of cooperative action, or if state participation is overt and significant in carrying out the deprivation of a constitutional right, state action will usually be found to exist. Id.

MSJ 26-27. It states that, although the area is unclear, “one principle can be gleaned from the criteria used for determining ‘joint action’ — something more than a private contractor’s cooperation with, or acquiescence in, the challenged decision or action is required for that party to be a ‘state actor.’ ” MSJ at 27. It notes that “state action may exist where a private party actively participates in, and meaningfully influences, the final decision or policy that caused deprivation of a constitutional right.” MSJ at 27 (citing, e.g., Malak v. Associated Physicians, Inc., 784 F.2d 277 (7th Cir.1986)). In its view, “[t]o be acting ‘in concert’ requires that the private party do more than simply cooperate with state officials or engage in conduct incidental to performing contractual services.” MSJ at 28 (citing, e.g., Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1126-27 (10th Cir.2000)).

ASI New Mexico analogizes this case to Montoya v. Española Public School District Board of Education, No. CIV 10-0651 WJ/LFG, in which the Honorable William P. Johnson, United States District Judge of the United States District Court for the District of New Mexico, did not find state action with respect to a private school security officer:

Under circumstances similar to the present case, “joint action” was found not to exist where a school security officer, pursuant to contract, provided assistance in conducting the search of a student. In Montoya, the school counselor’s secretary and a security officer entered S.M.’s math class and removed her from class. Montoya, No. 10cv00651 WPJ/LFG (DOC 324) at p. 3. They escorted her to a bathroom where she was told to remove her bra and shirt. Id. S.M. took off her sweater but refused to remove more clothing. Id. The secretary and security officer requested that she take off her shirt four more times, but she refused. Id. When they threatened her with a strip search if she did not turn over her cell phone, S.M. gave them her phone. Id.

S.M. asserted § 1983 claims for violation of her substantive due process rights and for unlawful search and seizure against the security officer. Id. at p. 4. The security officer worked for a private company that had contracted with the school board to provide security services for students and faculty at the school. Id. at pp. 2, 5. The bid proposal submitted by the school board stated that the contractor’s employees were not considered employees of the school district and were not covered by the Workmen’s Compensation of the school board. Id. at p. 5.

Noting that mere acquiescence of a state official in the actions of a private party is not sufficient to establish “joint action,” the Montoya court found that the security officer’s involvement in S.M.’s removal from the classroom and subsequent search was similarly insufficient for the security officer to become a “state actor.” Id. at p. 14. The court reasoned that the security officer’s conduct was incidental to performing her *1080 security officer job duties. Id. The court noted that no facts alleged suggested that the security officer’s presence was more than “mere acquiescence” in the actions taken by the school counselor’s secretary and, instead, were done with the willful purpose of depriving S.M. of her constitutional rights. Id.

The principles evinced by these authorities establish that ASI was not a “state actor” subject to personal liability for purposes of Plaintiffs’ § 1983 claim.

MSJ at 28-29.

In ASI New Mexico’s view, because it did not influence Santa Fe Public Schools’ and/or Romero’s decision to pat-down search all attendees at the prom — that is, because Santa Fe Public Schools and ASI New Mexico did not conspire or agree to search every attendee — “[n]o ‘joint action’ existed for ASI to be a state actor because it was not an active participant in making the challenged decision — ASI was simply carrying out orders in performing contractual services.” MSJ at 29-30. Drawing on Montoya v. Board of Education, ASI New Mexico asserts that it “was merely performing services incidental to its contract with SFPS in following Principal Romero’s authorized directive to pat-down search all 2011 Capital High prom attendees.” MSJ at 30. It elaborates:

Plaintiffs stretch “state action” doctrine too far by attempting to hold ASI personally liable for unconstitutional conduct simply because a governmental entity acted through ASI. Certainly, a governmental entity cannot avoid its own “state actor” status by directing a private party to perform the challenged conduct. But the existence of “state action” as against the governmental defendant does not automatically transform the private actor into a “state actor” for personal liability purposes. ASI was not a decision maker acting “in concert” with SFPS and'Principal Romero or with a “shared purpose” in requiring pat-down searches of all 2011 Capital High prom attendees for ASI to be a “state actor” and individually liable for Plaintiffs’ § 1983 claim. ASI was a private contractor providing services as requested by its client. If “state actor” status reaches so broadly as to include ASI under these circumstances, then every private party who contracts to provide services to any governmental entity will be a “state actor” simply because it performs its contractual obligations. Such an approach conflicts with the principle that “state actor” status for a private party is the exception rather than the rule.

MSJ at 31.

ASI New Mexico also argues that, if it is a state actor, it is entitled to qualified immunity. See MSJ at 31. It notes that, under law from the United States Court of Appeals for the Tenth Circuit,

•[pjrivate party corporate defendants “acting in accord with duties imposed by a contract with a governmental body are entitled to raise the defense of qualified immunity.” DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714, 723 (10th Cir.1988). A private party defendant “who performs a government function pursuant to a state order or request is entitled to qualified immunity if a state official would have been entitled to such immunity had he performed the function himself.” Warner v. Grand Cnty., 57 F.3d 962, 967 (10th Cir.1995); Eagon v. City of Elk City, Okla., 72 F.3d 1480, 1489 (10th Cir.1996)(same); see also Frazier v. Bailey, 957 F.2d 920, 928-29 (1st Cir.l992)(holding that employees of a private agency under contract to perform duties statutorily required of the state were entitled to assert a qualified immunity defense because they were the functional equivalent of public officials).

*1081 SFPS had in-house security personnel who provided security services for the schools, including pat-down searches at school-sponsored events, before contracting with ASI to fulfill that role. ASI acted pursuant to its contractual obligations when, in compliance with SFPS’s historical practice and Principal Romero’s specific authorized directive, ASI conducted pat-down searches of all 2011 Capital High prom attendees. In other words, ASI and its security officers performed the pat-down searches only because “the government made them do it.” See DeVargas, 844 F.2d at 717 . Had in-house SFPS security personnel, teachers, administrators or other school district employees performed the pat-down searches rather than ASI, they — like Principal Romero — would have qualified immunity against Plaintiffs’ § 1983 claim. Therefore, so does ASI.

MSJ at 31-32 (record citations omitted). 123

ASI New Mexico also asserts that it

“cannot be held vicariously liable for unconstitutional searches that were allegedly performed negligently in providing requested contractual services.” MSJ at 35 (bold and capitalization altered for readability). It expands:

Even if ASI were considered to be a “state actor,” Plaintiffs do not allege, and cannot prove, that ASI had an'internal policy — independent from its contractual duties to SFPS — which required that its security officers conduct suspicionless pat-down searches of all students attending school events at which ASI provided security services. Indeed, Plaintiffs allege that ASI employees acted “in accordance with instructions from Santa Fe Public Schools,” and “pursuant to Santa Fe Public Schools’ policy, custom, and/or practice of searching students without reasonable suspicion” at SFPS events in pat-down searching all 2011 Capital High prom attendees. Plaintiffs also describe the conduct in this regard as “negligent.” Summary judgment on Count II is proper because no respondeat superior liability exists' *1082 for negligent violation of constitutional rights against unlawful searches.

It is firmly established that an employer cannot be held vicariously liable on a respondeat superior theory for an employee’s violation of another’s constitutional rights. See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 [ 98 S.Ct. 2018 , 56 L.Ed.2d 611 ] (1978) (holding that Congress did not intend municipalities to be liable unless action pursuant to an official municipal policy of some kind caused the constitutional tort); see also Dickerson v. Leavitt Rentals, 995 F.Supp. 1242, 1247 (D.Kan.1998), aff'd., 153 F.3d 726 (10th Cir.[1998]), cert. denied, 525 U.S. 1110 [ 119 S.Ct. 882 , 142 L.Ed.2d 781 ] (1999) (holding that a corporate defendant cannot be held vicariously liable for the unconstitutional acts of their servants under § 1983). Plaintiffs have no evidence that ASI caused the constitutional violation by instituting an official policy of some nature that was the direct cause or moving force behind the claimed unlawful conduct. See Smedley v. Corrections Corp. of Am., 175 Fed.Appx. 943, 946 (10th Cir.2005) (unpublished). In conducting the pat-down searches, ASI had its security officers provide requested services pursuant to a contractual obligation.

Moreover, Plaintiffs cannot pursue claims for unconstitutional searches based on ASI’s purported negligence for simply performing under its contract. “The Fourth Amendment’s ‘reasonableness’ standard is not the same as the standard of ‘reasonable care’ under tort law, and negligent acts do not incur constitutional liability.” Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir.2002); see also Madiwale v. Savaiko, 117 F.3d 1321, 1326 (11th Cir.1997) (“Negligent or innocent mistakes do not violate the Fourth Amendment.”); Franks v. Delaware, 438 U.S. 154, 171 [ 98 S.Ct. 2674 , 57 L.Ed.2d 667 ] (1978) (noting that allegations of negligence are insufficient to state a claim under the Fourth Amendment).

SFPS and its authorized administrative personnel established the practice of conducting pat-down searches on all Capital High . prom attendees. SFPS used in-house security officers to conduct student searches before contracting with ASI. ASI conducted the pat-down searches of all 2011 Capital High prom attendees only because Principal Romero instructed it to do so and because of ASI’s contractual obligation to provide security services as requested. If ASI was negligent by virtue of simply performing under the contract — which is denied — any such negligence is legally insufficient to support Plaintiffs’ claims against ASI for purported violation of Plaintiffs’ constitutional rights against unreasonable searches.

MSJ at 35-36 (record citations omitted). ASI New Mexico also states:

Plaintiffs’ § 1983 claim in Count I rested on conclusory allegations that “Defendants” deprived Plaintiffs of their Fourth Amendment right against unreasonable searches and contained no allegations of related negligent conduct similar to that alleged in Count II. However, any purported negligence by ASI in performing contractual services for SFPS would be legally insufficient to support Plaintiffs’ claims against ASI in Count I as well.

MSJ at 36 n. 1 (record citations omitted).

ASI New Mexico then turns to the claims under state law, arguing that, under the NMTCA, it is immune from suit. See MSJ at 37. After reviewing general principles of NMTCA law, see MSJ at 37, ASI *1083 New Mexico discusses the provisions most relevant to the Plaintiffs’ claims against it:

The NMTCA generally excludes “independent contractors” from its definition of covered public employees except for independent contractors acting in certain specified capacities. See NMSA 1978, § 41-4-3(F) (2013). However, the NMTCA includes within the definition of “public employee” anyone “acting on behalf of or in service of a governmental entity in any official capacity, whether with or without compensation.” NMSA 1978, § 41-1-3(F)(3); see also Chavez [v. City of Albuquerque], 1998-NMCA-004, ¶ 11 , 124 N.M. 479 , 952 P.2d 474 (noting that a “public employee” covered by the NMTCA includes a person acting on behalf of or in service of a governmental entity).

Although ASI’s contract with SFPS states that “[t]he Contractor and its directors, officers, agents, and employees are not employees of the District ... as a result of this Agreement”, it is well-settled that the parties’ conduct and other considerations, rather than any written description, determine the legal nature of their relationship. “[T]he manner in which the parties designate a relationship is not controlling, and if an act done by one person on behalf of another is in its essential nature one of agency, the one is the agent of the other, notwithstanding he is not so called.” Chevron Oil Co. v. Sutton, 1973-NMSC-111 , ¶ 4, 85 N.M. 679 , 515 P.2d 1283 ; see also Blea v. Fields, 2005-NMSC-029, ¶ 12 , 138 N.M. 348 , 120 P.3d 430 (noting that how a contract defines the status of an individual does not answer whether that person is a public employee or an independent contractor).

MSJ at 37-38 (record citations omitted). It continues:

For determining employee status, New Mexico courts sometimes consider the extent to which the employer has, in the broadest sense, the right to control the individual. Blea, 2005-NMSC-029, ¶ 12 , 138 N.M. 348 , 120 P.3d 430 . The following factors govern the analysis: (1) whether the employer is entitled to control the manner and means of the individual’s performance; (2) the method of compensating the individual; (3) whether the employer has furnished equipment for the individual; (4) whether the employer has the power to terminate the individual without cause; (5) the type of occupation involved and whether it is generally performed without supervision; (6) the skill required for the job; (7) whether the employer furnishes the tools or instrumentalities for the job; (8) how long the individual has been employed; (9) whether the work is part of the employer’s regular business; and (10) whether the employer is engaged in business activities. Id. The Blea factors support “public employee” status for ASI and its security officers.

SFPS and Principal Romero exercised control in all material respects over the pat-down searches at the prom. Before contracting with ASI, SFPS had conducted pat-down searches on all prom attendees using in-house security personnel. ASI’s contract required that it provide security services at prom as requested by SFPS and SFPS administrative personnel. Principal Romero specifically instructed ASI to conduct pat-down searches of all prom attendees in providing security services at the 2011 Capital High prom. ASI had no internal policy or practice of its own to conduct pat-down searches of all attendees of school events at which it provided security services, and conducted the pat-down searches at the prom only because *1084 it was specifically directed by Principal Romero to do so.

Principal Romero also designated the lobby area where the searches would be performed, designed the physical layout for the separate security search lines, and gave assignments as to who was to do what. SFPS personnel and ASI security officers worked together performing security searches that evening. If SFPS personnel or ASI security officers discovered contraband during the searches, they were to bring the matter to the attention of Principal Romero or other readily available SFPS administrators. If an attendee refused to be pat-down searched, ASI security officers were to escort that person to a school official who would decide what should be done. Principal Romero was responsible for ensuring that SFPS personnel and ASI security officers followed proper search protocols at the prom and she had the power to intervene and stop ASI security officers from conducting pat-down searches in any manner deemed inappropriate according to her judgment. These facts establish that, although ASI provided security officers to perform the requested pat-down searches, the decision to have the searches performed and the plan for the search protocol for that evening were controlled by SFPS and Principal Romero.

SFPS administrative control over the 2011 Capital High prom security services was consistent with the extensive control that SFPS and its administrative personnel exercised over ASI’s security services for the school system in general. SFPS administrative personnel determined what security services were needed at their locations and ASI was required to enforce the school system’s official Code of Conduct in providing those services. SFPS set qualifications and standards that ASI security officers had to meet before they could be assigned to work at the schools. SFPS administration established performance criteria regarding security officer interactions with students — including criteria for when pat-down searches could be performed — instructed or oversaw ASI personnel' in the performance of any searches of students, and prohibited ASI security officers' from using weapons of any kind. Capital High devoted a room at the school for ASI’s use as a security office.

ASI’s role was to observe and report occurrences to school administration and to thereafter provide further services or assistance as determined appropriate, and as requested, by the administrative personnel. Providing security services for students and staff was a function of SFPS’s daily business of operating public schools and was a function it had previously accomplished via in-house security personnel. SFPS could freely terminate its relationship with ASI by providing 30 days written notice prior to the date of termination or terminate a particular security officer from providing services to SFPS under the contract with ASI.

Thus, SPFS closely supervised and controlled ASI’s provision of security services at SFPS schools and school events. SFPS did not simply contract with ASI and then leave it up to ASI to independently develop, staff, and implement security services for the school system and school-sponsored events as ASI deemed best. NMTCA immunity has been found to exist for a private party under similar circumstances. See Celaya v. Hall, 2004-NMSC-005 , 135 N.M. 115 , 85 P.3d 239 (finding that NMTCA immunity existed for volunteer chaplain for county sheriffs department *1085 who had served for eight years, where he was not “self-directed” but was assigned particular duties by the department to be performed at both specific, pre-arranged times and on an as-needed basis, and was provided instrumentalities to carry out the department’s regular business).

MSJ at 38-41 (record citations omitted).

Having made this extended argument under Blea v. Fields, ASI New Mexico argues that, under a recent Supreme Court of New Mexico case, the Blea v. Fields factors are outdated. See MSJ at 41. It expands:

The New Mexico Supreme Court recently determined that a different approach than the Blea factors was more appropriate in holding that security officers employed by a private security company that contracted with the Gallup-McKinley County Board of Education were school employees for purposes of NMSA 1978, § 30-3-9 (1989). In State v. Johnson, 2009-NMSC-049, ¶11 , 147 N.M. 177 , 218 P.3d 863 , a criminal statute made unlawful any battery upon a “school employee,” which included “a member of a local public school board and public school administrators, teachers and other employees of that board.” The statute contained no definition for “other employees of [the] board.” Id.

In construing “other employees of [the] board” to include the private company security officers, the New Mexico Supreme Court was guided by the ordinary meaning of “employee” and the purposes served by § 30-3-9. The court noted an “employee” is “[a] person who works for another in return for financial or other compensation,” “one employed by another ... usu[ually] for wages,” and. that “to employ” means generally “to use or engage the services of [another].” Id. at ¶ 12 (quoted authorities omitted). Johnson stated that, “[u]nder the ordinary meaning of the term, an ‘employee’ is one who provides services to another in exchange for compensation.” Id. The court also relied on state administrative code provisions as indicating that security officers are traditionally viewed as school employees. Id. at ¶ 16.

Noting that NMSA 1978, § 30-3-9 furthers the interests of maintaining a safe school environment, the Johnson court found that those interests were served by recognizing the private security officers as “employees” under the statute. In doing so, the court observed that the school board has a duty to provide a safe environment for school activities and that administrative codes contemplated school administrators, teachers, and security officers as being integral to the board fulfilling its responsibilities in that regard. Id. at ¶ 20 (citing 6.11.2.6 NMAC). Based on the common meaning of “employee,” the regulatory scheme treating school security officers as “school personnel,” and the rationale that including security officers within § 30-3-9’s protection against criminal battery furthered school safety interests, the New Mexico Supreme Court found that the private company’s security officers were “school employees” covered by the statute. Id. at ¶¶ 12,15-17, 21.

ASI also meets the Johnson court’s “school employee” criteria to qualify for NMTCA immunity as an employee or agent of SFPS. SFPS contracted with ASI to provide security services for its schools and thereby “employed” ASI. ASI security officers are “school personnel” under the same administrative codes that supported finding “employee” status for the security officers in John *1086 son. See 6.11.2.7(T) NMAC (defining “school personnel” as “all members of the staff, faculty and administration employed by the local school board,” including “school security officers, school bus drivers and their aides, and also authorized agents of the schools, such as volunteers or chaperones, whose responsibilities include supervision of students”).

Other regulations further recognize security officers as an integral part of SFPS’s overall mission of promoting a safe environment for schools and school-related events. See 6.11.2.7(A) NMAC (providing that “administrative authority” to act officially in a disciplinary matter or for maintaining order may include school security officers to the extent of their authority as established under written local school board policies); 6.11.2.10(B)(2) NMAC (listing school security officers among the “authorized persons” to conduct searches of students); 6.11.2.7(0) NMAC (defining “public school” to include, for purposes of student discipline, any non-school premises being used for school-sponsored activities).

A “General Provision” of the administrative code describing the interrelationship between security officers and other school officials in fostering.a productive and safely managed public school environment also supports “public employee” status for ASI under the NMTCA:

A. Jurisdiction over students. All officials, employees and authorized agents of the public schools whose responsibilities include supervision of students shall have comprehensive authority within constitutional bounds to maintain order and discipline in school. In exercising this authority, such officials, employees and authorized agents of the public schools may exercise such powers of control, supervision, and correction over students as may be reasonably necessary to enable them to properly perform their duties and accomplish the purposes of education. This authority applies whenever students are lawfully' subject to the schools’ control, regardless of place. During such periods, public school authorities shall have the right to supervise and control the conduct of students, and students shall have the duty to submit to the schools’ authority.' The foregoing is intended to reflect the common law regarding the rights, duties and liabilities of public school authorities in supervising, controlling and disciplining students. Nothing herein shall be construed as enlarging the liability of public school authorities beyond that imposed by statute, common law or public education department rule.

6.11.2.8(A) NMAC. SFPS integrated ASI security officers into the school system’s daily operations in alignment'with the public employee/school personnel dynamic established by these administrative codes.

MSJ at 41-44. According to ASI New Mexico, the facts demonstrate that SFPS controlled ASI New Mexico’s officers:

SFPS administrators determined what security services were needed at their schools and at school-sponsored events and instructed ASI security officers regarding expected conduct in day-to-day school operations. SFPS personnel established performance criteria for ASI security officers’ interactions with students and devoted a room at Capital High to be used as a security office. ASI security officers were directed to enforce SFPS’s official Code of Conduct and to follow post orders for each high school as established by SFPS administrative personnel.

*1087 ASI security officers were expected to be a presence in the school environment, to observe and report incidences to school administrators, and to provide services or assistance as SFPS administrative personnel determined to be appropriate at any given time. Just like other school personnel, ASI security officers performed searches on students only when specifically authorized or requested to do so by SFPS administrators, and sometimes SFPS administrators chose to conduct the student searches themselves. At the 2011 Capital High prom, SFPS personnel and ASI security officers worked together in carrying out searches that evening pursuant to a plan designed by Principal Romero and under her direction and supervision. In all practical respects, the ASI security officers functioned within the SFPS system the same as SFPS’s previous in-house security personnel.

Consistent with the undisputed material facts and relevant law, Plaintiffs allege that SFPS “maintained authority to control and supervise ASI’s conduct” at SFPS events, and that ASI performed the pat-down searches “in accordance with instructions from Santa Fe Public Schools” and pursuant to an SFPS policy, custom or practice of conducting suspicionless pat-down searches on all prom attendees. Plaintiffs also allege that ASI employees’ “unlawful searches” of 2011 Capital High attendees “occurred as a result of Principal Romero’s exercise of policy-making authority,” that SFPS “employees and agents” were “acting within the scope of their employment” and “duties” while conducting the unlawful suspicionless searches, and that timely NMTCA notice was given for claims based on this conduct.

The facts and New Mexico administrative codes establish that ASI’s security services were an interwoven component of SFPS’s responsibility for promoting safe educational experiences and environments for school activities. Affording NMTCA protection for the security companies and their officers who work alongside school authorities in this general mission furthers NMTCA policies providing protection for all persons “acting on behalf of or in service of a governmental entity in [an] official capacity” in the interests of promoting efficiently operated and safe public school environments. Without such protection, contracted security companies and their officers risk liability for engaging in conduct requested and needed by school officials, for which those school officials would unquestionably have NMTCA immunity. Creating such a dynamic conflicts with the cooperative and interconnected relationship between school administration and security services that is contemplated and established by the administrative code. School administrators and the security personnel they hire need to be able to work together seamlessly without concern that security assistance requested or needed in any given moment will expose one— but not the other — to potential civil liability.

The undisputed material facts, the Blea factors, applicable administrative codes, and the New Mexico Supreme Court’s reasoning and holding in Johnson all establish that ASI was a “public employee” or agent of SFPS under the NMTCA while conducting the pat-down searches at the 2011 Capital High prom. Summary judgment should be granted in ASI’s favor on Plaintiffs’ claims in Counts II-V because no NMTCA waiver of immunity exists for those claims. See NMSA 1978, 41-4-4(A) (providing a gov *1088 ernmental entity and any “public employee” immunity from liability for any tort except as waived by the New Mexico Religious Freedom Restoration Act and Sections 41-4-5 through 41-4-15); Edwards-Flynn[ v. Yara, No. CIV 08-0186 JB/ACT, 2010 WL 597067 at **12-13 (D.N.M. Feb. 1, 2010) ] (the NMTCA is the exclusive remedy for negligent and intentional torts).

MSJ at 44-46 (record citations omitted).

ASI New Mexico then turns to the intentional tort claims and argues that, even if NMTCA immunity does not bar them, the Court should grant summary judgment. See MSJ at 46. First, ASI New Mexico argues that consent is a defense and that the facts show consent:

Consent is a defense for intentional torts. Yount v. Johnson, 1996-NMCA-046 , ¶ 17, 121 N.M. 585 , 915 P.2d 341 ; see also Frye v. IBP, Inc., 15 F.Supp.2d 1032, 1041 (D.Kan.1998) (noting that, “[a]s with any intentional tort, consent is an absolute defense, even if improperly induced”)(quoted authority omitted). “Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.... If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.” Re statement (Second) of Torts § 892 at 362 (1979). Consent can also be implied by “custom.” Id. at § 892(2), cmt. d.

Plaintiffs voluntarily entered the search lines expecting to undergo pat-down searches similar in scope to those they had experienced at previous school events. None of them raised any objection to having standard pat-down searches performed at the time. Conducting pat-down searches of all Capital High prom attendees was an established practice for a number of years before 2011. Under the circumstances, ASI and its personnel reasonably understood that attendees, in general, and Plaintiffs in particular, had consented to undergoing stahdard and customary pat-down searches as part of attending the 2011 Capital High prom. Plaintiffs cannot pursue intentional tort claims in Counts III-V for pat-down searches falling within the scope of that consent.

MSJ at 47 (record citations omitted). As for the invasive nature of the searches, ASI New Mexico notes that the Plaintiffs have not sued individual employees, but, instead, sued only ASI New Mexico. See MSJ at 48. In its view, there are no allegations that ASI New Mexico intended what it calls “inappropriate” or “improper” touching, and no evidence would support such allegations. MSJ at 48. It argues that it is not vicariously liable for any such touching, because it lies outside the course and scope of employment, and because ASI New Mexico did not ratify it:

An employee’s intentional tortious conduct may fall within the course and scope of employment if the action “(1) is the kind the employee is employed to perform; (2) occurs during a period reasonably connected to the authorized employment period; (3) occurs in an area reasonably close to the authorized area; and (4) is actuated, at least in part, by a purpose to serve the employer.” Lessard v. Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, ¶12 , 142 N.M. 583 , 168 P.3d 155 (quoted authority omitted); see also UJI 13-407 NMRA (providing that an act of an employee is within the scope of employment if “it was something fairly and naturally incidental to the employer’s business assigned to the employee” and “was done while the employee was engaged in the employer’s business with the view of *1089 furthering the employer’s interest and did not arise entirely from some external, independent and personal motive on the part of the employee”).

Even though the alleged inappropriate touching occurred while ASI security officers were assigned to conduct pat-down searches at the 2011 Capital High prom, that circumstance is insufficient to bring the conduct within the course and scope of their employment. “Committing an intentional tort on company time, from one’s seat on company premises, does not necessarily mean the tort was committed within the course and scope of employment.” Bradley v. Lovelace Sandia Health Sys., No. 27,936, 2009 WL 6667452 , *6 (N.M.Ct.App. Nov. 13, 2009) (unpublished); see also Los Ranchitos v. Tierra Grande, Inc., 1993-NMCA-107 , ¶¶ 9, 12, 17, 116 N.M. 222 , 861 P.2d 263 (granting summary judgment for the employer of an employee who.embezzled funds while providing accounting services to a client even though the embezzlement occurred during the employee’s regular work hours at the employer’s office).

Moreover, the undisputed material facts make clear that the security officers were not employed by ASI to perform pat-down searches that included the alleged inappropriate touching. The inappropriate touching that Plaintiffs claim occurred could not have been done with the view of furthering any business interests of ASI given that such conduct would have violated and exceeded the scope of the standard pat-down search services that Principal Romero had requested and which ASI had agreed to provide. ' The alleged acts of touching or shaking Plaintiffs’ breasts, grabbing their bras, stroking their bare skin, middle, upper or inner thighs, or other inappropriate touching that deviated from the standard and customary pat-down search procedure would have been activated by a security officer’s personal prurient motives. See Los Ranchitos, 1993-NMCA-107 , ¶17, 116 N.M. 222 , 861 P.2d 263 (holding trial court correctly determined that, as a matter of law, the employee’s conduct of embezzling from the plaintiff while providing accounting services was activated by the employee’s personal motives and, as such, could not reasonably be found to serve or advance her employer’s interests).

Not only would the alleged inappropriate touching fall outside the course and scope of an ASI security officer’s employment, but no evidence establishes that ASI condoned such conduct by any of its security officers at the 2011 Capital High prom. “The intentional act of the employee does not become the act of the employer unless the employer expressly authorized, commanded, or committed the act itself.” Martin-Martinez v. 6001, Inc., 1998-NMCA-179, ¶ 13 , 126 N.M. 319 , 968 P.2d 1182 ; see also Bradley, 2009 WL 6667452 at *7 (an employer may be held liable for an employee’s conduct that is outside the course and scope of employment only where the employer assents to or ratifies the conduct); Los Ranchitos, 1993-NMCA-107 , ¶ 12, 116 N.M. 222 , 861 P.2d 263 (noting that the employer could not be held liable for conduct outside the course and scope of the employee’s employment given the absence of evidence establishing that the employer authorized or ratified the conduct).

ASI neither had, nor followed, any pat-down policies or practices that expressly authorized, commanded, or directed the kind of inappropriate touching that Plaintiffs claim occurred. To the contrary, ASI pat-down search guidelines instructed its security officers *1090 against performing pat-down searches in a manner that included the alleged inappropriate touching. No evidence establishes that ASI endorsed, supported, or otherwise ratified inappropriate touching of prom attendees during pat-down searches at the 2011 Capital High prom of the kind that Plaintiffs claim to have experienced. ASI cannot be held vicariously liable for the alleged intentional conduct that fell outside the course and scope of employment and is entitled to summary judgment on Plaintiffs’ intentional tort claims based on purported inappropriate touching by ASI security officers.

MSJ at 48-51 (record citations omitted).

ASI New Mexico also states that the Plaintiffs’ claim for intentional infliction of emotional distress should fail. See MSJ at 51-54. First, it argues, its conduct does not satisfy the extreme-and-outrageous-conduct prong. See MSJ at 51-53. Second, it argues, the Plaintiffs have not suffered, the extreme and severe distress that the law requires. See MSJ at 53-54.

ASI New Mexico then turns to the Plaintiffs’ prima facie tort claim, and argues that the Plaintiffs have not pled and cannot prove such a claim. See MSJ at 54. First, it reviews basic principles of prima facie tort law:

“Prima facie tort is intended to provide a remedy for persons harmed by acts that are intentional and malicious, but otherwise lawful, which ‘fall outside of the rigid traditional intentional tort categories.’ ” Bogle v. Summit Inv. Co., L.L.C., 2005-NMCA-024, ¶22 , 137 N.M. 80 , 107 P.3d 520 (cited and quoted authority omitted). Plaintiffs may not use prima facie tort to evade the stringent requirements of other established doctrines of law. Stock v. Grantham, 1998-NMCA-081, ¶ 38 , 125 N.M. 564 , 964 P.2d 125 . For these reasons, dismissal of a prima facie tort claim is required “when the pleaded factual basis is within the scope of an established tort.” Healthsource, Inc. v. X-Ray Assocs. of N.M., P.C., 2005-NMCA-097, ¶ 35 , 138 N.M. 70 , 116 P.3d 861 (dismissing a prima facie tort claim which “merely reallege[d] the facts in support of the other causes of action, adding only a bare recital of the elements of prima facie tort relating to intent and justification”)(citing Hill v. Cray Research, 864 F.Supp. 1070, 1080 (D.N.M.1991)).

MSJ at 54-55. ASI New Mexico then turns to what it contends is a flaw in the Plaintiffs’ pleading:

In pleading prima facie tort, Plaintiffs incorporate all the proceeding allegations in their Second Amended Complaint that formed the bases for their other claims against ASI. Then Plaintiffs simply state conclusory allegations that Defendants “engaged in intentional unlawful conduct in searching Plaintiffs on April 16, 2011,” “acted with intent to injure Plaintiffs’ legally protected interests,” “violated Plaintiffs’ legally protected rights,” and that Defendants’ conduct “was not justified.”

These allegations fail to state a claim for prima facie tort, which is based on lawful conduct by a party specifically undertaken with intent to injure and without sufficient justification. See Bogle, 2005-NMCA-024, ¶22 , 137 N.M. 80 , 107 P.3d 520 . Where the alleged conduct itself is unlawful under existing doctrines of law, prima facie tort does not apply. Id. Plaintiffs’ prima facie tort count also lacks any factual allegations independent from those pleaded to support Plaintiffs’ other claims. Summary judgment is proper because Plaintiffs’ prima facie tort claim is merely duplicative to their other claims, and/or because application of the doctrine in *1091 these circumstances would constitute an improper mean's for Plaintiffs evading their burden of proof on essential, and appropriate, elements of their other claims. See Stock, 1998-NMCA-081, ¶¶ 38-39 , 125 N.M. 564 , 964 P.2d 125 (holding that prima facie tort claim was properly dismissed because it was based on same factual allegations as plaintiffs other intentional tort theories); Health-source, Inc., 2005-NMCA-097, ¶35 , 138 N.M. 70 , 116 P.3d 861 (prima facie tort claim must be dismissed when the pleaded factual basis falls within the scope of an established tort) (citing Hill, 864 F.Supp. at 1080 ).

MSJ at 55. ASI New Mexico also asserts that the Plaintiffs have failed to produce evidence of the tort:

The elements of prima facie tort are: (1) the commission of an intentional, lawful act by the defendant, (2) done with intent to injure the plaintiff, (3) causing injury to the plaintiff, and (4) the lack of, or insufficient, social or economic justification for the act. Gioia [v. Pinkerton’s Inc.], 194 F.Supp.2d [1207] at 1222 [ (D.N.M.2002) ]; see also Bogle, 2005-NMCA-024, ¶ 22 , 137 N.M. 80 , 107 P.3d 520 . The act complained of must be committed with the intent to harm. Schmitz v. Smentowski, 1990-NMSC-002 , ¶ 45, 109 N.M. 386 , 785 P.2d 726 . This means that there must be an “actual intention to injure, not merely an intent to do the act which may result in the claim to injury.” Lexington Ins. Co. v. Rummel, 1997-NMSC-043, ¶ 14 , 123 N.M. 774 , 945 P.2d 992 (cited authority and quotation marks omitted).

“Intent to injure” is more than mere insensitivity and is used synonymously with “malice” within New Mexico’s prima facie tort jurisprudence. Lexington Ins. Co., 1997-NMSC-043, ¶¶ 10, 14 , 123 N.M. 774 , 945 P.2d 992 . Malice is the intentional doing of a wrongful act without just cause or excuse. Kitchell v. Pub. Serv. Co. of N.M., 1998-NMSC-051, ¶ 17 , 126 N.M. 525 , 973 P.2d 344 . Moreover, not only must the act be intentional, but the defendant must know that the act was wrong when he did it. Id. The plaintiffs burden in proving that a defendant acted with the intent to injure is a “heavy” one. Lexington Ins. Co., 1997-NMSC-043, ¶ 12 , 123 N.M. 774 , 945 P.2d 992 . Once intent to injure is established, a balancing test compares the defendant’s malicious intent against the defendant’s justifications for the injurious conduct and the severity of the plaintiffs injury. Id. at ¶ 11. However, where a plaintiff cannot establish evidence of intent to injure, no need exists for conducting the justification balancing test. Id. Plaintiffs’ prima facie tort claim fails these standards.

Plaintiffs have no evidence that, in complying with Principal Romero’s directive to perform pat-down searches on all prom attendees, ASI did so with specific intent to injure Plaintiffs. Rather, the undisputed material facts establish that ASI performed the pat-down searches pursuant to Principal Romero’s request and ASI’s contractual obligations to provide requested security services at prom. Moreover, pat-down searches of all prom attendees were customarily performed in prior years, and Plaintiffs raised no objections regarding the 2011 Capital High prom pat-down searches before or while they occurred. Similar searches of prom attendees had yielded contraband in the past and ASI believed that detecting and confiscating banned items — such as weapons, drugs, or alcohol — protected the students by promoting a safe and successful prom experience for all attendees.

These same undisputed material facts also establish that ASI was motivated by *1092 legitimate business reasons and had justifiable grounds for complying with Principal Romero’s directive to perform pat-down searches on all students attending the prom. ASI’s interests in fulfilling its contractual obligations and its desire to protect attendees against harmful contraband were sufficient justifications for performing the requested pat-down searches — particularly given that Plaintiffs had no clearly established constitutional right to be free from these suspicionless searches at the time. Summary judgment should be granted because Plaintiffs cannot prove that ASI acted with malicious intent to injure them, and without justification, as required for prima facie tort.

MSJ at 55-57 (record citations omitted).

Finally, ASI New Mexico turns to the punitive-damages issue, and argues that any demand for punitive damages fails both because the Court should grant summary judgment as to each claim against it and because there is no evidence of the culpable mental state. See MSJ at 57-58. It notes that the standard for awarding punitive damages is high:

Punitive damages may be awarded only where a plaintiff establishes that the defendant’s conduct was willful, wanton, malicious, oppressive, fraudulent and in bad faith, or committed recklessly with wanton disregard for the plaintiff’s rights. Bogle, 2005-NMCA-024, ¶ 28 , 137 N.M. 80 , 107 P.3d 520 ; see also Youren v. Tintic Sch. Dist., 343 F.3d. 1296, 1308 (10th Cir.2003) (punitive damages may be awarded in § 1983 actions only when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others).

MSJ at 58. It argues that the evidence does not satisfy this standard:

ASI was simply following Principal Romero’s directive, SFPS established practice, and providing requested contractual security services by performing the pat-down searches at the 2011 Capital High prom. ASI believed that the searches furthered the overall purpose of protecting the prom attendees from dangerous banned items and promoted a safe and successful prom experience for all concerned. ASI security officers did not forcibly perform pat-down searches on Plaintiffs over their objections at the prom. Moreover, Plaintiffs had no clearly established right to be free from the suspicionless pat-down searches at the time of the 2011 Capital High prom. Under such circumstances, ASI did not act with evil motive or reckless indifference toward violating Plaintiffs’ rights by performing the pat-down searches. These undisputed material facts establish the absence of any culpable mental state sufficient to support awarding punitive damages for Plaintiffs’ constitutional rights and state law claims. ASI is entitled to summary judgment in its favor on Plaintiffs’ punitive damages claim as a matter of law.

MSJ at 58 (record citations omitted).

The Plaintiffs oppose the MSJ. They assert that ASI New Mexico’s argument that, because it did not influence SFPS, it is not a state actor, “is legally and factually flawed.” Response at 18. They elaborate: “Legally, courts regularly find state action where a state actor directs a private actor to engage in the unconstitutional conduct. Factually, the evidence supports a finding that ASI did in fact participate in the decisions to pat-down all students entering SFPS dances.” Response at 18. Noting that state action is a legal issue for the Court, see Response at 18, the Plaintiffs argue that the facts satisfy two of the four tests recognized in the Tenth Circuit:

*1093 Courts have recognized a variety of circumstances where conduct by private actors is properly considered state action and that can result in liability under § 1983 for both the private actors and associated state actors. See, e.g., Dennis v. Sparks, 449 U.S. 24, 27 [ 101 S.Ct. 183 , 66 L.Ed.2d 185 ] (1980). The Tenth Circuit has described four separate tests to determine whether a private party has acted under color of law in causing a deprivation of federal rights, which would allow the injured party to bring claims under § 1983 against all entities and individuals who participated in the deprivation of rights: (1) the nexus test; (2) the symbiotic relation test; (3) the joint action test; and (4) the traditional public powers test or public functions test. See Gallagher v. “Neil Young Freedom, Concert,” 49 F.3d [at 1447].

Although ÁSI only addresses the joint action test, ASI’s admissions and the evidence establish that ASI’s conduct is state action under either the joint action or nexus tests.

Response at 19.

The Plaintiffs begin with the joint action test. They note that the “conspiracy” line of cases on which ASI New Mexico relies is not the exclusive method for finding joint action; in their view, “the alternative ‘cooperation/partieipation’ method for establishing joint action is more apt in these factual circumstances.” Response at 20 n. 2. They state that, under Tenth Circuit law, “courts examine whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights.” Response at 20 (internal quotation marks omitted). They point to Coleman v. Turpen, 697 F.2d 1341 (10th Cir.1982), Lusby v. T.G. & Y Stores, Inc., 749 F.2d 1423 (10th Cir.1984), vacated sub nom. on other grounds, City of Lawton v. Lusby, 474 U.S. 805 , 106 S.Ct. 40 , 88 L.Ed.2d 33 (1985), and Anaya v. Crossroads Managed Care Sys., Inc., 195 F.3d 584 (10th Cir.1999), as exemplifying the Tenth Circuit’s application of the principle that joint or cooperative activity between state actors and private actors can give rise to state action. See Response at 20-21. They then argue that this case satisfies the Tenth Circuit’s standards:

The cooperative activity between the state and private actors in Coleman and Lusby are even less than the level of cooperation between SFPS and ASI in this case. ASI was undoubtedly a willful participant in the pat-down searches with SFPS. ASI had been conducting, without objection, pat-down searches at the direction of SFPS for seven years. ASI officials agreed with SFPS’s directive that pat-down searches should be conducted at prom events. ASI and SFPS discussed the nature of the searches, including the decision to conduct pat-down searches before each event. ASI and SFPS worked cooperatively to complete the searches of students with ASI guards and school officials both being actively engaged in conducting various elements of the searches. ASI guards and SFPS officials even alternated who carried out various aspects of the searches for different students. ASI guards and SFPS officials’ roles in the searches were virtually indistinguishable and it would be difficult to imagine a scenario where a" state actor and a private actor had a more cooperative relationship related to the conduct that formed the basis for a § 1983 claim.

The evidence readily establishes that the level of cooperation between SFPS and ASI and ASI’s willful participation in the pat-down searches make ASI a state actor under the joint action test.

*1094 Response at 21 (internal citations omitted). In their view, ASI New Mexico misapplies the joint action test. See Response at 22. According to them, it is not true that, as ASI New Mexico suggests, “private actors can be viewed as state actors only where they exert some influence over a state actor’s decision to engaged in the challenged unconstitutional act.” Response at 22 (emphasis in original). They note that “[j]oint action can also exist where a state actor influences or directs a private actor to engage in unconstitutional conduct.” Response at 22 (citing, e.g., Blum v. Yaretsky, 457 U.S. 991 , 102 S.Ct. 2777 , 73 L.Ed.2d 534 (1982)). They elaborate:

Having misunderstood that state action can be found under the joint action test when the influence is flowing either way, from private actor to state actor or from state actor to private actor, ASI admits all the predicate facts necessary for finding state action here and in particular that SFPS (a state actor) directed ASI (a private actor) to conduct the unconstitutional pat-down searches. At the same time, ASI’s assertion that it did not participate at all in the development of search practices and procedures for SFPS schools and events is not supported by the evidence. For example, ASI trained SFPS officials on providing security in the school setting, including how to conduct pat-downs.

ASI also educated SFPS officials on necessary security measures and procedures. ASI also participated in a collaborative manner in the amending of post orders that defined the methods of providing security at the various school sites. In support of its state action argument, ASI relies heavily on two cases where courts declined to find state ac tion — Montoya v. Española Pub. Sch. Dist. Bd. of Educ., Case No. 10-cv-00651 WPJ/LFG (D.N.M. Aug. 23, 2012) (attached as Exhibit 25) and Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121 (10th Cir.2000) — neither case is applicable here. Montoya, an unpublished Judge Johnson case, involved facts where there was either no or minimal involvement by state officials in the challenged conduct, and Sigmon addressed a different legal basis for finding joint action (conspiracy rather than cooperation and participation) and a distinct factual scenario where the plaintiff alleged that the private actor influenced the state actor to engage in unconstitutional conduct rather than the reverse as occurred here.

Response at 22-23 (emphasis in original)(record citations omitted).

The Plaintiffs first distinguish Montoya v. Board of Education:

In Montoya, three students alleged a violation of their constitutional rights by Española school officials and ProSec, the private company that provided security for the schools. Montoya, 10-cv-00651 at 1-2. The allegations involved three separate incidents: (1) a student who was taken to a bathroom by a school administrator and a ProSec guard and directed to remove her bra and shirt, but only took off her sweater and had her phone confiscated; (2) a student who was lured from school by a ProSec guard, who took her to a remote location and raped her; and (3) a student who was separated by a ProSec guard from another student with whom she was fighting and had her arm injured by the guard. Id. at 3-4. The plaintiffs argued “that the ProSec guards are state actors because they are paid out public funds by the school, and because the guards gained access to Plaintiffs only by virtue of their status as school security guards.” Id. at 4. When the facts in Montoya relevant to determining whether joint action existed are examined, it is *1095 clear that the case is distinct from the circumstances presented here.

Two of the Montoya plaintiffs did' not present any evidence of school officials directing, influencing, or participating in the challenged conduct. Id. at 14. No school official was involved in any way in the rape of the one student or in the injuring of the arm of the other student. Id. (“There is no suggestion that anyone at the school knew that Defendant Archuleta was luring Plaintiff E.S. from her in-school suspension classroom into his car at the time the assault occurred. Similarly, there is no allegation that a school official aided Defendant John Doe in separating Plaintiff G.T. from another girl with whom she had been fighting.”). The best state participation argument the students could assert was that the guards got access to the students through their company’s contract with the school. Id. at 11. Judge Johnson appropriately found that this fact, standing alone, was not sufficient to establish joint action. Id. at 12; see Gallagher, 49 F.3d at 1448 (noting that the tests for state action ensure that “the state will be held hable for constitutional violations only if it is responsible for the specific conduct of which the plaintiff complains.”). The third Montoya plaintiff was able to identify at least some participation by a school employee because as articulated by Judge Johnson:

Admittedly, there was some school official involvement when Defendant Martinez accompanied the school counselor’s secretary into Plaintiff S.M.’s classroom. However, Defendant Doe’s [sic][ 124 ] presence when Plaintiff was removed from the classroom could be seen as incidental to performing his job duties as security guard, rather than done with willful purpose of depriving Plaintiff S.M. of her constitutional rights. There are no facts alleged which suggest that Defendant Doe’s presence was more than “mere acquiescence” of the actions taken by the school counselor’s secretary.

Montoya, 10-cv-00651 at 14. Judge Johnson does not address in any detail the roles the security guard and the school administrator played in asking the student to take off her sweater, threatening a strip search, or confiscating the phone. Instead, he merely suggests that, based on the facts presented, the security guard was a mere bystander. Id. It is clear that the level of direction, influence, and joint action in this case — a seven year joint custom and practice of conducting pat-down searches — was not present in Montoya. In addition, no argument can be made that the ASI security guards were mere bystanders because it is undisputed that they actually carried out the pat-down searches.

Response at 24-25.

The Plaintiffs also distinguish Sigmon v. CommunityCare HMO, Inc., because of both factual and legal differences. See Response at 26. In their view, the plaintiff in that case relied only on the conspiracy line of cases, and not on the substantial-degree-of-cooperative-action cases, as they do. See Response at 26. Further, they distinguish the case’s facts:

*1096 Factually, Sigmon is distinct because the state actor rather than the private actor actually carried out the allegedly unconstitutional act. Tulsa made the decision to terminate plaintiff and actually carried out the termination. Accordingly, in that case, the plaintiff was required to show that the private actor somehow influenced the challenged conduct, but failed to do so because there was no evidence that any Community-Care action caused Tulsa’s determination to terminate. Here, of course, the private actor (ASI) carried out the unconstitutional pat-downs and, as a result, to show state action Plaintiff need only show that the state actor (SFPS) directed or influenced the decision to conduct the pat-downs, which is undisputed.

Response at 26. In their view, ASI New Mexico’s “admissions combined with the undisputed facts establish that under the joint action test, ASI was engaged in state action when conducting the searches at the 2011 Capital High School prom. ASI has presented no persuasive factual or legal basis for reaching any other conclusion.” Response at 26.

The Plaintiffs also argue that ASI New Mexico was a state actor under a second test-the nexus test. See Response at 26. In support, it principally relies on Gallagher v. Neil Young Freedom Concert:

The Tenth Circuit has clearly stated that where a state actor directs a private security contractor to perform unconstitutional pat-down searches on people attending an event, state action is present. Gallagher, 49 F.3d at 1450 . “To be sure, if the appellants could demonstrate that the pat-down searches directly resulted from the [state actor’s] policies then the required nexus would be established” for the purpose of finding state action. Id. In Gallagher , individuals who attended a concert at a state university in Utah brought an action under § 1983 against the university, the concert promoter, and the firm providing security for the concert, asserting that the pat-down searches of concert attendees violated the Fourth Amendment. Id. at 1446. The district court granted summary judgment in favor of the defendants, concluding that because the searches were conducted by employees of a private security company, the searches did not constitute state action under § 1983. Id. The Tenth Circuit affirmed the district court, but on the grounds that the challenged searches were conducted pursuant to a policy formulated solely by the private security company and that there was “no evidence in the record indicating that the University’s rules and policies influenced the formulation or execution of [the pat-down] policy.” Id. at 1450; see also Blum, 457 U.S. at 1008 , 102 S.Ct. 2777 .

Response at 27 (emphasis in original). The Plaintiffs also point to Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263 (11th Cir.2003), in which the United States Court of Appeals for the Eleventh Circuit held that

“where the state contractually requires the private actor to take particular actions — e.g., to reject proposed advertisements under certain specifically delineated circumstances — then it can be said ... that in acting in accordance with the governmental directive the private actor is merely a surrogate for the state, and the tie between them is sufficiently strong for the nexus/joint action test to be satisfied.”

Response at 2 (quoting 344 F.3d at 1278-79 ). They also note that,

[h]aving particular relevance to the circumstances presented here, the Eleventh Circuit continued in Focus on the Family by noting that the state action *1097 “conclusion is strengthened when there is record evidence that the state itself unmistakably directed the private actor to take particular actions.” Focus on the Family, 344 F.3d at 1279 (emphasis added).

The unmistakable principle established in these cases is that where a state actor directs or influences the challenged conduct of the private actor, state action is present.

In its brief, ASI not only acknowledges, .but emphasizes the fact that SFPS directed and influenced the decision to pat-down students at the 2011 Capital High prom. [MSJ] at 8, ¶28 (“Principal Romero directed ASI to perform standard pat-downs”); id. at 30 (“ASI conducted pat-down searches ... because it was directed to do so by Principal Romero”)[;] id. (“SFPS had ASI continue that practice [of pat-downs] after ASI’s contract with SFPS began”).

ASI’s admissions that SFPS and Principal Romero directed the company to perform pat-down searches demands a finding of state action under the nexus test.

Response at 28.

The Plaintiffs next turn to the qualified immunity issue. See Response at 28. Because this case’s outcome largely hinges on whether ASI New Mexico is entitled to qualified immunity, it is worth quoting the Plaintiffs’ argument in full. First, the Plaintiffs argue that “qualified immunity is not available to ASI as a corporate entity with a long-term, renewable contract with a state actor.” Response at 29 (capitalization and bold altered for readability). In so concluding, the Plaintiffs construe qualified immunity jurisprudence differently from ASI New Mexico:

The Supreme Court has held that government officials performing discretionary functions are shielded from “liability for civil damages insofar as their conduct does 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 , 73 L.Ed.2d 396 ] (1982). On- its face, qualified immunity only protects government officials and not governmental bodies or private actors. In Wyatt v. Cole, the Supreme Court considered whether qualified immunity “is available for private defendants faced with § 1983 liability for invoking a state replevin, garnishment, or attachment statute.” Wyatt v. Cole, 504 U.S. 158, 168-69 [ 112 S.Ct. 1827 , 118 L.Ed.2d 504 ] (1992). The Court concluded that qualified immunity is not available in that context. Id.

The Supreme Court subsequently found that the particular circumstances and the identity of the actors is critical to determining whether qualified immunity should be available to a. private entity engaged in state action. See Richardson v. McKnight, 521 U.S. 399, 401 [ 117 S.Ct. 2100 , 138 L.Ed.2d 540 ] (1997) (holding that that “prison guards who are employees of a private prison management firm are [not] entitled to a qualified immunity from suit by prisoners charging a violation of 42 U.S.C. § 1983”); Filarsky v. Delia, - U.S. -, 132 S.Ct. 1657 [ 182 L.Ed.2d 662 ] (2012) (holding that a private attorney, who had been retained by a city to assist in an investigation of suspected wrongdoing by a city employee, could raise a qualified immunity defense). The rationale the Court applied in Richardson and Filarsky establishes that qualified immunity is not appropriate here.

In Richardson , a prisoner brought a federal constitutional tort action against two prison guards, who he alleged in *1098 jured him by placing him in extremely tight physical restraints. Richardson, 521 U.S. at 401 [ 117 S.Ct. 2100 ]. The two prison guards were employees of a private prison management company that managed a privatized Tennessee correctional facility for the state. Id. at 401-02 [ 117 S.Ct. 2100 ]. The Supreme Court concluded that the prison guards were not entitled to raise qualified immunity. Id. at 411 [ 117 S.Ct. 2100 ]. The factors the Court considered regarding the purpose of qualified immunity apply analogously here and support a similar finding that qualified immunity should not be afforded to ASI, a private corporation providing security services to a school district under a renewable long-term contract.

The Court first noted that “the most important” concern addressed by qualified immunity is what earlier precedent described “as protecting the public from unwarranted timidity on the part of public officials by, for example, ‘encouraging the vigorous exercise of official authority.’” Id. at 408-09 [ 117 S.Ct. 2100 ] (quoting Butz v. Economou, 438 U.S. 478, 506 [ 98 S.Ct. 2894 , 57 L.Ed.2d 895 ] (1978)). The Supreme Court found that in the context of a private company that has to bid for a long-term contract to provide regular seiwices for a government, the fear of timid employees is not present. Id. at 409 [ 117 S.Ct. 2100 ]. The competitive market pressures created by the bidding process “mean not only that a firm whose guards are too aggressive will face damages that raise costs, thereby threatening its replacement, but also that a firm whose guards are too timid will face threats of replacement by other firms with records that demonstrate their ability to do both a safer and a more effective job.” Id. at 409 [ 117 S.Ct. 2100 ].

Like ASI, the prison management firm in Richardson was engaged to perform a major administrative task for a profit. See id. The fact that the prison management firm’s contract had to be renewed, like the ASI contract, supported the Court’s finding that liability foj damages would not affect the firm’s performance because “its performance is disciplined, not only by state review but also by pressure from competing firms who can try to take its place.” Richardson, 521 U.S. at 410 [ 117 S.Ct. 2100 ] (internal citations omitted). As the Supreme Court concluded, “in other words, marketplace pressures provide the private firm with strong incentives to avoid overly timid, insufficiently vigorous, unduly fearful, or ‘nonarduous’ employee job performance.” Id. Like the employees of the private prison management firm, ASI’s employees “resemble those of other private firms and differ from government employees.” See id.

The Supreme Court next found that the privatization of Tennessee prisons, like the privatization of security for Santa Fe schools, helps resolve a second reason for qualified immunity, which is ensuring that talented candidates are “not deterred by the threat of damages suits from entering public service.” Id. at 411 [ 117 S.Ct. 2100 ] (quoting Wyatt, 504 U.S. at 167 [ 112 S.Ct. 1827 ]). The Court noted that the comprehensive insurance requirements of the private prison management contract “increases the likelihood of employee indemnification and to that extent reduces the employment-discouraging fear of unwarranted liability potential applicants face.” Richardson, 521 U.S. at 411 [ 117 S.Ct. 2100 ], In the context of the ASI and SFPS contract, insurance coverage was a requirement.

Richardson finally considered the third purpose of the qualified immunity *1099 doctrine, which is that it addresses the fact that lawsuits may distract employees from their duties. Richardson, 521 U.S. at 411 [ 117 S.Ct. 2100 ]. The Court concluded that in the context of a private corporation that “the risk of ‘distraction’ alone cannot be sufficient grounds for an immunity.” Id. That principle applies equally here where ASI, a sizeable company with over $2 million in annual revenue and over fifty clients, could absorb the distraction of some employees as a result of the company being a party to a lawsuit.

The Supreme Court subsequently decided Filarsky , which involved a onetime retention of a private individual to perform a specific task for the City because it did not have a qualified employee to perform the task. Filarsky, 132 S.Ct. at 1660 . Filarsky did not involve a long-term contract that was subject to a bidding process or a corporation seeking qualified immunity. Indeed, Filarsky acknowledged that it was not faced with circumstances where “the various incentives characteristic of the private market in [Richardson ] ensured that the guards would not perform their public duties with unwarranted timidity or be deterred from entering that fine of work.” Filarsky, 132 S.Ct. at 1667 .

The Supreme Court’s rationale in Richardson and Filarsky , which were decided after the Tenth Circuit decided Warner v. Grand County, 57 F.3d 962 (10th Cir.1995) and DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714 (10th Cir.1988), compels the conclusion that a private corporation like ASI, which has a contract to perform a major, lengthy task for a government agency, should not be entitled to raise qualified immunity. Furthermore, the Richardson and Filarsky Courts were not presented with a corporation seeking qualified immunity and there are several factors beyond the general purposes of qualified immunity addressed in Richardson that compel a finding that a corporation in this context should not be permitted to raise a defense of qualified immunity. See, e.g., Sallie v. Tax Sale Investors, Inc., 998 F.Supp. 612, 621 (D.Md.1998) (concluding that in light of Richardson and Wyatt “it cannot be expected that the Supreme Court will allow a private business corporation, as distinct from its officers and employees, to claim .the benefits of qualified immunity”)(emphasis omitted).

Permitting corporations to raise a qualified immunity defense also leads to the anomalous result where corporations performing functions for governments will have more protection from suit than the governments, government officials, or private individuals engaged in the same unconstitutional conduct. ASI argues in its motion that it is entitled to protection under the Monell standard for local governmental liability and it is entitled to protection under the qualified immunity doctrine. Of course, government officials and private áctors deemed to be engaged in state action are not entitled to the protections of Monell and local governments are not entitled to qualified immunity. See Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 165-67 [ 113 S.Ct. 1160 , 122 L.Ed.2d 517 ] (1993); Monell v. Dep’t of Social Servs. of N.Y.C., 436 U.S. 658, 690-91 [ 98 S.Ct. 2018 , 56 L.Ed.2d 611 ] (1978).

For the rationale articulated in Richardson and Filarsky , the particular circumstances presented in this case, and the incoherence of applying Monell and qualified immunity protections to a corporation like ASI, the company should not be permitted to raise the defense of qualified immunity.

*1100 Response at 29-31 (emphasis in original)(record citations omitted).

The Plaintiffs also contend that ASI New Mexico is not entitled to qualified immunity:

ASI bases its qualified immunity argument on the assertion that if “in-house SFPS security personnel, teachers, administrators or other school district employees performed the pat-down searches rather than ASI, they — like Principal Romero — would have qualified immunity against Plaintiffs’ § 1983 claim.” That is incorrect. The Court’s decision on Ms. Romero’s qualified immunity was based on the threshold findings “that Romero did not participate in the pat-down searches, and that she did not observe T.H.’s, London’s, or Hurtado’s pat-down searches” and only a portion of Candice Herrera’s pat-down. If Romero had conducted the pat-downs as described by Plaintiffs, she would not have been entitled to qualified immunity. See, e.g., Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir.2010) (noting that the touchstone for determining the liability of a government official for the unconstitutional conduct of another is that official’s “personal involvement” in the conduct). In contrast to Ms. Romero, the undisputed evidence establishes that Rebecca Reyes, an ASI employee and the lead guard for Santa Fe High School, actually performed the pat-down searches on the Plaintiffs.

Response at 33 (record citations omitted). Noting that the Court has found that less-intrusive pat-down searches violated the constitution, the Plaintiffs argue that the intrusive searches that the Plaintiffs underwent must also violate the Constitution. See Response at 33-34.

The “clearly established” prong must also be resolved in favor of Plaintiffs. In the schools-search context, the reasonableness of a search under the Fourth Amendment varies based on the context and nature of the search. The general rule is that in the school or school-activity context, officials must have reasonable, individualized suspicion before conducting a search of a student. New Jersey v. T.L.O., 469 U.S. 325, 341 [ 105 S.Ct. 733 , 83 L.Ed.2d 720 ] (1985). In other words, the search of a student by or at the direction of a school official is permissible only if “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.” T.L.O., 469 U.S. at 342 [ 105 S.Ct. 733 ],

Despite the reasonable suspicion requirement, the Supreme Court has found that a search in the school context may still be reasonable without such suspicion in “limited circumstances[ ] where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion.” See Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 624 [ 109 S.Ct. 1402 , 103 L.Ed.2d 639 ] (1989) (emphasis added); Vernonia Sch. Dist. 147 v. Acton, 515 U.S. 646, 674 [ 115 S.Ct. 2386 , 132 L.Ed.2d 564 ] (1995) (O’Connor, J., dissenting). When considering whether a particular search fits within this limited exception, courts must weigh, on one side, the scope of the privacy interest at issue and the character of the intrusion on that interest against, on the other side, the “nature and immediacy” of the governmental interest at issue and the efficacy of the means used to address the threat to that interest. See Vernonia, 515 U.S. at 654-66 [ 115 S.Ct. 2386 ].

*1101 Relying on Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364 [ 129 S.Ct. 2633 , 174 L.Ed.2d 354 ] (2009), this Court has found that a search that required female prom attendees to lift their skirts to mid-thigh (the part of the search the Court concluded that Ms. Romero was potentially responsible for) was not clearly established as unconstitutional in 2011. The searches that Ms. Reyes and ASI are potentially responsible for as described by Plaintiffs (which must be accepted as true in the context of this Motion) are much more intrusive than the lifting of dresses search that was considered in the context of Ms. Romero’s motion. The searches for which ASI and Ms. Reyes may be responsible included, among other things, the cupping of breasts, the feeling of bare legs and arms, the lifting of dresses to midthigh, and the putting of fingers inside of a dress to check a student’s cleavage.

As this Court has already indicated, it was clearly established under the standard set forth in T.L.O., Earls, Vemonia, and Stafford [Safford ] that a suspicionless search of this intrusiveness was unconstitutional. (Doc. 142, Mem. Op. re: Qualified Immunity at 121)(suggest-ing that Principal Romero would not have been entitled to qualified immunity if she had seen the “ASI New Mexico guards touch the female attendees’ breasts or require the female attendees’ to pull out their bra straps.”).

Balancing the searches’ “intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests” as instructed in Vemonia and Earls, the suspicionless searches of Plaintiffs were plainly unconstitutional. See Vernonia, 515 U.S. at 652-53 [ 115 S.Ct. 2386 ]; Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822 [ 122 S.Ct. 2559 , 153 L.Ed.2d 735 ] (2002).

On the one hand, the searches were excessively intrusive in light of the age and sex of the students. Touching a female high school student’s bare skin, cupping her breasts, putting fingers around her cleavage, and pulling her bra from her skin are extraordinarily intrusive. See Safford, 557 U.S. at 374 [ 129 S.Ct. 2633 ]. As students do not “shed their constitutional rights ... at the schoolhouse gate,” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 [ 89 S.Ct. 733 , 21 L.Ed.2d 731 ] (1969), and thus retain some reasonable expectations of privacy in the school context, the exceptionally invasive searches performed constitute a substantial invasion of Plaintiffs’ Fourth Amendment interests.

On the other hand, the searches as described by Plaintiffs were not related to the objective of the search, which was, according to SFPS, to keep banned items out of the dances. As the searching guard acknowledged, touching a students’ bare legs and arms, which were in plain view, is not necessary or helpful in accomplishing the Schools’ stated objective. As the ASI guard considered the purpose of the bare arm searches, she thought to herself, “ ‘[n]o, that’s stupid, because, you know, you can see their bare skin. There’s nothing there.” In addition, Principal Romero acknowledges that the searches were not effective in excluding drugs and alcohol from the dances. Indeed, the Superintendent of schools did not believe it was necessary to pat-down every student entering prom.

Nor were the searches related to any infraction. To the contrary, the students were searched because school officials believed that they have the basis to *1102 be suspicious of any student attending a dance. Such a blanket assumption is directly contrary to the individualized reasonable suspicion requirement. See e.g., T.L.O., 469 U.S. at 341 [ 105 S.Ct. 733 ]. There was no basis to believe that any of the four Plaintiffs had broken any school rule or were in any way likely to break a school rule. (Ex. 17, Romero Dep. at 168:23-170:21 (Principal Romero acknowledging that she did not have individual suspicion regarding any students arriving at prom (except perhaps a group of students who arrived on a “party bus”)); id. at 172:4-11 (describing Candice Herrera as a student about whom Principal Romero had no concerns), id. at 176:12-13, 177:24-178:4, 181:7-10 (Principal Romero describing Tiffany Herrera); id." 184:3-9 (Principal Romero describing that she had no concerns, disciplinary or otherwise, regarding Ashley Hurtado); id. at 184:25-185:9 (Principal Romero stating that she was not aware of any disciplinary issues related to Arianna London).)

Accordingly, it was clearly established that a suspicionless search of every student entering prom that included the cupping of breasts, the pulling of bra straps, and the touching of bare skin violated the students’ Fourth Amendment rights to be free from an unreasonable search.

Even if the searches were viewed from the perspective of ASI’s own acknowledged policy for conducting pat-downs (rather than from the perspective of how the students described the pat-downs), the searches would still violate clearly established law.

ASI maintained a set of Pat Down Guidelines for conducting pat-downs on SFPS students. The Guidelines include an instruction that ASI officers should “[h]ave the subject (female only) using their own hands pull the front of the bra at the underwire slightly way from the skin to allow any contraband to fall.” (Ex. 20, Pat Down Guidelines.) These Guidelines were created by ASI for the school setting, but not necessarily for SFPS. (Ex. 6, Gutierrez Dep. Vol. II at 214:24-215:4.) The ASI guard who conducted the pat-downs on Plaintiffs interpreted the bra pulling instruction as requiring her to have students “grab their front bra and shake the bra.” (Ex. 26, Reyes Statement.)

As this Court has previously discussed, a pat-down procedure that “require[s] the female attendees’ to pull out their bra straps” stands in violation of the scope of rights established by the Supreme Court in Safford. See (Doc. 142, Mem. Op. re: Qualified Immunity at 121.) In Safford , a Safford Middle School assistant principal directed, an administrative assistant and school nurse to search a thirteen-year-old female student’s clothes for pills he suspected she had on her person. Safford, 557 U.S. at 369 [ 129 S.Ct. 2633 ].. The two school employees had the student “remove her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she was then asked to remove.” Id. The student was then “told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree.” Id. Importantly, thé Supreme Court concluded that the assistant principal had reasonable suspicion to believe that the student was distributing prohibited prescription-strength pain relievers. Id. at 373-74 [ 129 S.Ct. 2633 ]. Nonetheless, that reasonable suspicion, which may have justified a search of outer clothing and backpacks did not justify the “quantum leap” to a search of undergarments that in- *1103 eluded pulling the bra and underwear away from the skin. Id. at 377 [ 129 S.Ct. 2633 ].

Here, of course, there was no reasonable suspicion that any particular student was hiding anything in her bra as she entered prom. Nonetheless, Reyes testified that, in compliance with ASI’s policy, she had all female students grab their bras, pull it away from their skin, and shake it. The Supreme Court’s condemnation of pulling bras- and underwear away from the skin of a student and creating the possibility of exposing breasts or the pelvic area to some degree, even with reasonable suspicion, put ASI on notice that its policy of having students pull and shake their bras was unconstitutional. As the Supreme Court has described, a right can be clearly established without a controlling decision declaring the “very action in question ... unlawful.” Anderson v. Creighton, 483 U.S. 635, 640 [ 107 S.Ct. 3034 , 97 L.Ed.2d 523 ] (1987). Courts should inquire into “whether the law put officials on fair notice that the described conduct was unconstitutional” and not engage in “a scavenger hunt for prior cases with precisely the same facts.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004).

Rebecca Reyes’s conduct in patting down students by cupping their breasts, grabbing and moving their bras, feeling their bare legs and arms, lifting their dresses and putting her fingers into students’ cleavage violated clearly established Fourth Amendment law. Similarly, ASI’s policy of having students pull their bras away from their skin (and as interpreted by Ms. Reyes as requiring students to shake their bras) violated the clearly established law as set forth in Safford . Accordingly, even if ASI could raise qualified immunity as a corporation with a multi-year, renewable contract to provide a broad range of security services for SFPS, the facts demonstrate that it should not be granted summary judgment on qualified immunity grounds.

Response at 34-38 (selected record citations omitted).

The Plaintiffs also clarify their liability theory as against ASI New Mexico. See Response at 38-39. They state that their theory is not a vicarious-liability theory, but a direct-liability theory under Monell. See Response at 39. The first step in their theory is to identify ASI New Mexico’s policy or practice; in their view, ASI New Mexico

undoubtedly had a custom and practice of conducting pat-downs of all students at SFPS proms. ASI acknowledges that in conjunction with and at the direction of SFPS, ASI conducted pat-down searches of all students attending SFPS dances for at least seven years, including at sixteen proms. This longstanding, consistent practice certainly qualifies as a custom or usage. ASI emphasizes that there is some evidence suggesting that the pat-down practice began before ASI started providing security services to SFPS. There is no basis, however, for concluding that ASI’s adopting an existing practice as its own makes its potential liability any different under Monell than if it had created the practice.

In addition, it is undisputed that ASI maintained a policy regarding how pat-downs of SFPS students should be conducted by ASI guards. This ASI pat-down policy, which was developed and approved by ASI, included having female students pull their bras away from their skin. The policy also directs guards to be vigilant and keenly aware of the fact that “[s]tudents have hidden *1104 contraband in not so obvious places such as taped bottles to the inside of their legs, hidden pills between their toes, ect (sic).”

Response at 40 (record citations omitted).

Having so identified ASI New Mexico’s policy, the Plaintiffs contend that ASI New Mexico is responsible for its policies’ foreseeable results and contend that the invasiveness of the Plaintiffs’ searches was such a result. See Response at 40. They expand:

ASI’s established policy for conducting pat-down searches at school dances included the pulling and shaking of stu

This text is long and has been trimmed here. Open the source document for the complete record.