# Herrera v. Santa Fe Public Schools

> District Court, D. New Mexico · June 28, 2013 · 956 F. Supp. 2d 1191

URL: https://www.frixlaw.com/law-library/cases/8709856

## Case

- **Full name:** Candice HERRERA, Arianna London, Ashley Hurtado, and T.H., a minor by and through her father and guardian Vincent Herrera, and all others similarly situated v. SANTA FE PUBLIC SCHOOLS, Santa Fe Public Schools Board of Education, Barbara Gudwin, Glenn Wikle, Linda Trujillo, Frank Montano, Steven J. Carrillo, in their official capacities as members of the Santa Fe Public Schools Board of Education, Bobbie J. Gutierrez, in her official capacity as Superintendent of Santa Fe Public Schools, Melanie Romero, individually and in her official capacity as Principal of Capital High School, Robert Stephens, in his official capacity as Principal of Santa Fe High School as a necessary party for complete relief, Asi New Mexico, LLC, John/Jane Doe Nos. 1-8
- **Court:** District Court, D. New Mexico
- **Decided:** June 28, 2013
- **Citations:** 956 F. Supp. 2d 1191; 2013 U.S. Dist. LEXIS 96171; 2013 WL 3462484
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Browning
- **Judges:** Browning
- **Cited by:** 36 later opinions in the Frix Law Library

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## Opinion text

MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on the Individual School Defendant Melanie Romero’s Motion for Summary Judgment on Count I of the Second Amended Complaint Based Upon Qualified Immunity, filed Nov. 13, 2012 (Doc. 113)(“Motion for Summary Judgment”). The Court held a hearing on December 20, 2012. The primary issues are: (i) whether the personal involvement of Defendant Melanie Romero, the principal of Capital High School in Santa Fe, New Mexico, in the *1194 Plaintiffs’ pat-down searches, to which they were subjected for admittance to the Capital High School prom, violated the Plaintiffs’ rights guaranteed under the Fourth and Fourteenth Amendments to the United States Constitution; and (ii) whether the Plaintiffs’ constitutional rights that Romero violated, if any, were clearly established at the time of the prom in April, 2011. The Court will grant the Motion for Summary Judgment, because Romero is entitled to qualified immunity. The Court concludes that, by requesting that guards from Defendant ASI, New Mexico, LLC perform pat-down searches of all Prom attendees, Romero violated the Plaintiffs’ constitutional rights. The Court further concludes, however, that the Plaintiffs’ right to be free from these suspicion-less pat-down searches was not clearly established at the time of the Prom in April, 2011. Additionally, with respect to Plaintiff Candice Herrera’s 42 U.S.C. § 1983 claim, the Plaintiffs establish a genuine issue of fact whether Romero saw the ASI New Mexico guard require C. Herrera to lift her dress, and expose her bare leg above her knee. Romero is entitled to qualified immunity, however, even if Romero saw that conduct, because it was not clearly established in April, 2011, that a search requiring female students to lift their dresses up above their knees was an unreasonable, and thus unconstitutional, search in the public school context.
FACTUAL BACKGROUND
This case arises from searches that occurred at the April 16, 2011, Capital High prom. See Second Amended Complaint ¶¶3-4, at 2-3, filed September 18, 2012 (Doc. 100); Motion for Summary Judgment ¶ 1, at 6 (setting forth this fact); Plaintiffs’ Opposition to Defendant Romero’s Motion for Summary Judgment Based On Qualified Immunity ¶ 1, at 8, filed November 30, 2012 (Doc. 126)(“MSJ Response”)(not controverting this fact). Capital High is a high school located in Santa Fe, New Mexico, and is in the Santa Fe Public School District. See Second Amended Complaint ¶¶ 18-20, at 5-6; Motion for Summary Judgment ¶ 2, at 6 (setting forth this fact); MSJ Response ¶ 2, at 8 (not controverting this fact). Each of the four individual Plaintiffs were subject to pat-down searches when they entered the prom. C. Herrera, in her deposition, testified:
[The ASI New Mexico security guard] had me spread my arms and legs out, and she patted along my arms, touched along the waist. And then she grabbed the outer part of my bra and moved it here. And then she grabbed the inner part of my bra and moved it here. And then she cupped my breasts and shook them.... [T]hen afterwards she moved down to my waist and then she went all the way down my leg. And then she felt over my dress and then she pulled the dress up to about mid-thigh and she felt up the bare leg, as well.
Deposition of Candice Herrera at 198:17-199:3, 199:18-200:9 (taken July 27, 2012), filed November 13, 2012(Doc. 113-4)(“C. Herrera Depo.”); MSJ Response ¶ 1A, at 3 (setting forth this fact); MSJ Reply at 4 (not controverting this fact). 1 Plaintiff T.H. testified in her deposition:
She asked me to spread my arms out and she ran her hands along my arms *1195 which she could clearly see. And then she continued down to pat down my waist and my hips.... And then she— and then she went back up and cupped both my breasts and shook them. And then she continued down to pat down the sides of my dress. And then she lifted up my dress and with her bare hands she ran her hands down along the inside of my legs.
Deposition of T.H. at 58:20-23, 59:9-14 (taken August 13, 2012), filed November 13, 2012 (Doc. 113-7)(“T.H. Depo.”). See MSJ Response ¶ IB, at 3-4 (setting forth this fact); MSJ Reply at 4 (not controverting this fact). Plaintiff Ashley Hurtado testified about the ASI New Mexico guard’s pat-down search:
She went down the side of my body and then she went with her hands with her palms facing in and went around my breasts and went inside with her thumb to check if I had anything in my cleavage. Went down — again down my body. Went down both my thighs. My inner included.
Deposition of Ashley Hurtado at 109:23-110:4 (taken July 30, 2012), filed November 13, 2012 (Doc. 113-5)(“Hurtado Depo.”). See MSJ Response ¶ 1C, at 4 (setting forth this fact); MSJ Reply at 4 (not controverting this fact). Plaintiff Arianna London also testified about the ASI New Mexico employee’s pat-down search:
So she told me to spread my legs and then she patted my legs down. And then she went all the way up and then she did the other leg and then she lifted my skirt a little bit and she patted my legs even more. And then she patted the front of me, so she did my stomach and my sides and then she did my chest. And then she put her hands underneath the seams of my dress and on the sides and on the back. And then she patted my back side down.
See Deposition of Arianna London 181:22-185:14, 186:14-21 (taken August 24, 2012), filed November 13, 2012 (Doc. 113— 6)(“London Depo.”). See MSJ Response ¶ ID, at 4 (setting forth this fact); MSJ Reply at 4 (not controverting this fact).
The governing and policy-making body for the Santa Fe Public School District (“SFPS”) is the Board of Education of SFPS (“Board of Education”). N.M.S.A. 1978, § 22-5-4; Second Amended Complaint ¶¶ 17-18, at 5; Motion for Summary Judgment ¶ 3, at 6 (setting forth this fact). 2 Romero had no authority to make policies *1196 within SFPS. Compare N.M.S.A.1978, § 22-10A-18 (providing powers and duties and duties of school principal), with N.M.S.A.1978, § 22-5-4 (Providing the powers and duties of a Board of Education); Motion for Summary Judgment ¶ 7, at 7 (setting forth this fact). 3 Romero maintained authority, however, to set policies and procedures related to Capital High and Capital High events. See, e.g., Transcript of the Videotaped Deposition of Bobbie J. Gutierrez, Vol. I at 123:4-9 (taken March 22, 2012), filed November 30, 2012 (Doc. 126-9)(“Gutierrez Depo. Vol. I”); Deposition of Melanie Romero at 132:7-24 (taken March 19, 2012), filed November 30, 2012 (Doc. 126-5)(“Romero Depo.”); Deposition of Martin “Mark” Archuleta, Vol. I at 122:17-123:6 (taken March 9, 2012)(“Archuleta Depo.”); MSJ Response ¶ 3, at 8 (setting forth this fact); Individual School Defendant Melanie Romero’s Reply to Plaintiffs’ Opposition to Defendant Romero’s Motion for Summary Judgment Based Upon Qualified Immunity [Doc. 126] at 2, 5, filed December 17, 2012 (Doc. 130)(“MSJ Reply”)(not controverting this fact).
At the time of the prom, Romero was the Capital High principal. See Second Amended Complaint ¶ 20, at 6; Motion for Summary Judgment ¶ 4, at 7 (setting forth this fact); MSJ Response ¶4, at 8 (not controverting this fact). The prom was held off Capital High promises at the Santa Fe Convention Center located in Santa Fe. See Second Amended Complaint ¶ 3, at 2; id. ¶ 27, at 8; Motion for Summary Judgment ¶ 5, at 7 (setting forth this fact); MSJ Response ¶ 5, at 8 (not controverting this fact). The prom was a school-sponsored event. See Second Amended Complaint ¶¶ 27-28, at 8; Motion for Summary Judgment ¶ 6, at 7 (setting forth this fact); MSJ Response ¶ 6, at 8 (not controverting this fact). ASI New Mexico provided school security services generally to SFPS and specifically for the prom based on a publicly bid and awarded contract pursuant to the New Mexico Procurement Code. See Second Amended Complaint ¶¶ 24-26, at 7; Proposal No. 1, General 2008-09 School Security Services at 11-15 (dated May 1, 2008), filed October 2, 2012 (Doc. 102-3)(“ASI New Mexico Proposal”); Motion for Summary Judgment ¶ 8, at 7 (setting forth this fact); MSJ Response ¶ 8, at 8 (not controverting this fact).
At the time of the prom, and for a number of years before the prom, the two *1197 high schools in the SFPS, Capital High and Santa Fe High School, had a practice of having guards provided by ASI New Mexico perform pat-down searches of all attendees at proms and similar events, such as homecoming or other dances. See Romero Depo. at 53:5-54:22, 138:19-139:8, 235:15-22; Deposition of Cynthia Clarke, Ph.D. at 34:1-16, 37:20-38:5 (taken May 14, 2012), filed November 13, 2012 (Doc. 113-9)(“Clarke Depo.”); C. Herrera Depo. at 198:17-199:3, 199:18-200:9; Affidavit of Candice Herrera ¶ 26, at 5 (dated May 16, 2011), filed November 13, 2012 (Doc. 113— 10)(“C. Herrera Affidavit”); Archuleta Depo. at 45:6-7, 133:2-16, 134:7-11; Motion for Summary Judgment ¶ 9, at 7 (setting forth this fact); MSJ Response ¶ 9, at 8 (not controverting this fact). 4
Both SFPS administration and ASI New Mexico supervisory employees believe that the searches at such school events, in general, and at the prom, in particular, were reasonably required to exclude drugs, alcohol, weapons, and tobacco from, the prom and to dissuade attendees from taking such things to the prom. See Archuleta Depo. at 115:18-116:19, 126:14-127:8, 112:3-23, 130:11-15, 131:2-132:3; Romero Depo. at 101:10-102:5, 102:18-104:7, 105: 3-106: 6; Affidavit of Melanie Romero ¶ 4, at 2 (dated November 12, 2012), filed November 13, 2012 (Doc. 113-14)(“Romero Affidavit”); Motion for Summary Judgment ¶ 10, at 8 (setting forth this fact). 5 *1198 Romero and ASI New Mexico supervising employee Rebecca Reyes acknowledge that the search protocols do not prevent students from bringing prohibited items into proms. See Romero Depo. at 102:19-104:1; Deposition of Rebecca Reyes at 97:10-24 (taken May 8, 2012), filed November 30, 2012 (Doc. 126-6)(“Reyes Depo.”); MSJ Response ¶¶ 10 & 11, at 8 (setting forth this fact); MSJ Reply at 2. Romero and others believed it was reasonable and necessary to perform pat-down and possession searches of the prom attendees, because there is a history of students and event attendees hiding banned items to take those items into events. See Romero Depo. at 101:0-104:1, 168:18-169:8; Archuleta Depo. at 112:3-23, 113:7-25, 115:14-116:19, 117:9-19; Clarke Depo. at 33:5-25, 68:13-69:24; 80:9-20; 106:17-108:16; Romero Affidavit ¶ 3, at 1; Motion for Summary Judgment ¶ 11, at 8 (setting forth this fact).
C. Herrera underwent pat-down searches by ASI New Mexico guards at the 2010 Capital High prom and homecoming dances and, therefore, she knew she would be subject to a pat-down search when she arrived at the prom. See C. Herrera Depo. at 198:17-200:9, 201:4-202:15, 203:11-204:24; Motion for Summary Judgment ¶ 12, at 8 (setting forth this fact). 6 C. Herrera’s sister, T.H., attended homecoming dances in 2010 and *1199 2011 with C. Herrera before the prom. See T.H. Depo. at 128:8-129:8; Motion for Summary Judgment ¶ 14, at 9 (setting forth this fact); MSJ Response ¶ 14, at 9 (not controverting this fact). There were pat-down searches at the 2010 and 2011 Capital High homecoming dances, which both C. Herrera and T.H. attended. C. Herrera Depo. at 202:5-8, 203:11-22; Motion for Summary Judgment ¶ 15, at 9 (setting forth this fact); MSJ Response ¶ 15, at 9 (not controverting this fact). In addition, pat-down searches were conducted at the 2010 Capital High prom, which C. Herrera attended. See C. Herrera Depo. 198:17-20; Motion for Summary Judgment ¶ 15, at 9 (setting forth this fact); MSJ Response ¶ 15, at 9 (not controverting this fact). Hurtado underwent a pat-down search without groping at the 2009 Capital High prom and did not have a problem with the basic pat-down searches. See Hurtado Depo. at 153:23-154:12; Motion for Summary Judgment ¶ 16, at 9 (setting forth this fact). 7 Plaintiff Arianna London underwent pat-down searches at Rio Grande High School, in Albuquerque, New Mexico, as well as at certain concert venues, without objection. See London Depo. at 181:22-185:14, 186:14-21; Motion for Summary Judgment ¶ 17, at 9 (setting forth this fact); MSJ Response ¶ 17, at 9 (not controverting this fact).
Consistent with past Capital High practice, Romero asked the ASI New Mexico personnel providing security services at the pr.om to perform pat-down searches on attendees entering the Santa Fe Convention Center. See Romero Depo. at 130:16—132:20, 137:18-139:24; Deposition of Daniel Aguilar 237:3-21 (taken March 8, 2012), filed November 13, 2012 (Doc. 113-12)(“Aguilar Depo.”); Romero Affidavit ¶¶ 3, 4, at 1, 2; Motion for Summary Judgment ¶ 18, at 9 (setting forth this fact); MSJ Response ¶ 18, at 9 (not controverting this fact). Romero did not pat down or physically assist in patting down the Plaintiffs at the prom. Female ASI New Mexico employees performed the pat-down searches on female attendees at the prom after the attendees entered the Santa Fe Convention Center. See Second Amended Complaint, ¶¶ 42, 43, 56, 61, 62, 65, 66 and 67, at 10, 12-13; C. Herrera Depo. at 114:16-115:4; T. Herrera Depo. at 58:16-23; Hurtado Depo. at 115:23-116:9; London Depo. at 118:11-13, 119:18-21; Romero Affidavit ¶ 12, at 3; Motion for Summary Judgment ¶ 19, at 9-10 (setting forth this fact); MSJ Response ¶ 19, at 9 (not controverting this fact). 8 Romero participated in the searches of students’ bags and purses. See Romero Depo. at 151:3—11; C. Herrera Depo. at 148:6-19; MSJ Response ¶ 6, at 5 (setting forth this fact); MSJ Reply at 4 (not controverting this fact). ASI New Mexico, an independent contractor, employed the ASI New Mexico guards at the prom, and ASI New Mexi *1200 co’s chain of command supervised these guards. See Second Amended Complaint ¶ 26, at 7; ASI New Mexico Proposal at 11-15; Motion for Summary Judgment ¶ 20, at 10 (setting forth this fact); MSJ Response ¶ 20 (not controverting this fact). 9 Romero had the responsibility to ensure that both school officials and ASI *1201 New Mexico guards at the prom followed search “protocols.” Romero Depo. at 139:9-24. See MSJ Response ¶ 10, at 5 (setting forth this fact); MSJ Reply at 5 (not controverting this fact). Romero instructed Mark Archuleta, an ASI New Mexico supervisor, that she wanted pat-down searches conducted at the prom, but did not specify, nor did she give any direction, how the pat-down searches would be conducted. See Romero Depo. at 132:7-24; Romero Affidavit ¶¶ 3, 5, 6, 7, 8 and 10, at 1-3; Motion for Summary Judgment ¶21, at 10 (setting forth this fact); MSJ Response ¶ 21, at 10 (not controverting this fact).
The pat-down searches of the Plaintiffs were performed “in public view in the lobby of the Santa Fe Convention Center.” Complaint ¶¶ 54, 59, 64 and 69, at 11, 12, 13, and 14. See Motion for Summary Judgment ¶ 22, at 10 (setting forth this fact); MSJ Response ¶ 22, at 10 (not controverting this fact). ASI New Mexico employees Rebecca Reyes and Sandra Vigil conducted pat-down searches of female students at the 2011 Capital High prom. See Reyes Depo. at 85:19-21; Deposition of Sandra Vigil at 46:21-47:2 (taken July 24, 2012), filed November 30, 2012 (Doc. 126-12); MSJ Response ¶ 18, at 6 (setting forth this fact); MSJ Reply at 6 (not controverting this fact). The pat-down searches of the Plaintiffs were performed within a few feet of at least four SFPS employees, including Romero. See Complaint, ¶¶ 7 and 44, at 3 and 10; Motion for Summary Judgment ¶ 23, at 10 (setting forth this fact); MSJ Response ¶ 23, at 10 (not controverting this fact). At least eighteen SFPS employees were present at the prom. See Electronic Mail Transmission from Melanie Romero to Bobbie Gutierrez at 1 (dated May 23, 2011), filed November 30, 2011 (Doc. 126-11); Romero Depo. at 140:10-20 (identifying the e-mail to Gutierrez); MSJ Response ¶ 23, at 10 (setting forth this fact); MSJ Reply at 3 (not controverting this fact). Romero observed the pat-down searches of some of the female students entering the prom. See Romero Depo. at 161:16-23; MSJ Response ¶ 3, at 4 (setting forth this fact); MSJ Reply at 4 (not controverting this fact). Romero did not see any search that included touching the attendees’ breasts or pulling their bras. See Romero Depo. at 236:16-238:6, 238:20-240:22, 244:10-16; Clarke Depo. at 74:25-75:25; Deposition of Susan Lujan at 112:9-16 (taken April 20, 2012), filed November 13, 2012 (Doc. 113—13)(“Lujan Depo.”); Lucero Depo. at 148:6-149:1; 54:7-10; 60:15-25; Romero Affidavit ¶ 13, at 3; Motion for Summary Judgment ¶24, at 10 (setting forth this fact). 10 Romero did not have any individu *1202 alized suspicion of any student entering the Prom. See Romero Depo. at 168:23-170:21; MSJ Response ¶ 25, at 7 (setting forth this fact); MSJ Reply at 6 (not controverting this fact).
ASI New Mexico had a contract with the SFPS to provide security services for schools in the Santa Fe Public School District. ASI New Mexico was hired based in part upon its experience and training in *1203 security services, including how a standard school-appropriate pat down should be conducted. See Romero Affidavit ¶ 6, at 2; Motion for Summary Judgment ¶ 25, at 10 (setting forth this fact); MSJ Response ¶ 25, at 10 (not controverting this fact). There is no evidence that Romero should have expected at any time before the prom that ASI New Mexico personnel performing pat-down searches at the prom would touch the breasts or bare legs, or pull female attendees’ bras, as the searches at earlier Capital High dances and similar off-campus events did not involve touching the breasts or bare legs, or pulling bras. See Romero Depo. at 218:9-20, 221:20-222:20; C. Herrera Depo. 198:17-200:9, 201:4-202:15, 203:11-204:24; Hurtado Depo. at 153:23-154:12; Motion for Summary Judgment ¶26, at 11 (setting forth this fact); MSJ Response ¶ 26, at 10 (not controverting this fact). 11 Romero did not observe ASI New Mexico personnel touching the Plaintiffs’ or any other female attendees’ breasts or pulling their bras, while performing pat-down searches at the prom, and did not observe ASI New Mexico personnel touching London’s, Hurtado’s, or T.H.’s bare legs. See Romero Depo. 236:16-20; 237:7-21; 239:16-23; 240:6-22; 244:10-23; Romero Affidavit ¶ 13. 12 Romero acknowledges that she had the power to stop the pat-down searches, as she testified that, if she had seen an ASI New Mexico security guard place her hands on a student’s breasts and shake them, or grab a student’s bra, she “would have immediately stopped it.” Romero Depo. at 236:21-240:5; Romero Affidavit ¶ 14, at 3; Motion for Summary Judgment ¶ 32, at 12 (setting forth this fact); MSJ Response ¶ 15, at 6 (setting forth the same fact).
No one attending the prom, including the Plaintiffs, informed Romero that ASI New Mexico personnel performing pat-down searches at the prom touched any prom attendees’ breasts or bare legs, or pulled any attendees’ bras, until several days after the prom, when nothing could be done to stop any such behavior. See Romero Affidavit ¶¶ 13 and 14, at 3; T. Herrera Depo. at 75:17-76:15; Hurtado Depo. at 134:3-10, 135:9-24; London Depo. at 135:13-24, 139:15-140:10; C. Herrera Depo. at 183:20-184:22; Motion for Summary Judgment ¶ 28, at 11 (setting forth this fact); MSJ Response ¶ 28, at 10 (not controverting this fact). 13 Vince *1204 Herrera, C. Herrera’s and T. H.’s father, left a telephone message for Romero on April 19, 2011, three days after the prom, informing her about an alleged problem at the prom. See Romero Depo. at 188:2-25, 241:19-242:2; Deposition of Vincent Herrera at 114:1-15 (taken July 12, 2012), filed November 30, 2012 (Doc. 126-14)(‘V. Herrera Depo.”). Twelve days after the prom, on April 28, 2011, Romero learned that C. Herrera was alleging that a female, ASI New Mexico-employed security guard grabbed her breasts and stroked her bare legs. See Romero Depo. at 190:4-193:3; Motion for Summary Judgment ¶ 29, at 11-12 (setting forth this fact). 14 Hurtado and London never informed Romero of alleged problems with the searches at the prom until they sued her on November 16, 2011, with the filing of the First Amended Complaint. See Doc. 64; Hurtado Depo. at 134:3-10, 135:9-24; London Depo. at 135:13-24, 139:15-140:10; Motion for Summary Judgment ¶ 30, at 12 (setting forth this fact); MSJ Response ¶ 30, at 11 (not controverting this fact). 15 During the time that Romero was a Capital High co-principal or principal, she was not aware that anyone had complained of being inappropriately touched during a pat-down search conducted at Capital High or at any off-campus, Capital High-sponsored event before she learned of C. Herrera’s allegations. See Romero Depo. at 218:9-20, 240:23-242:2; Motion for Summary Judgment ¶ 31, at 12 (setting forth this fact); MSJ Response ¶ 31, at 11 (not disputing this fact). 16
*1205
PROCEDURAL BACKGROUND
On May 17, 2011, C. Herrera and T.H. filed their Complaint, asking for, among the requested relief, a declaratory judgment finding that the Defendants violated their civil rights and for a preliminary and permanent injunction:
[PJrohibiting all Defendants, except Santa Fe Public Schools and Santa Fe Public Schools Board of Education, from engaging in such conduct and directing [the same] Defendants ... to take all affirmative steps necessary to remedy the effects of the illegal conduct described herein and to prevent similar occurrences in the future.
Complaint at 28, filed May 17, 2011 (Doc. 1) . On that same day, C. Herrera filed Plaintiff Candice Herrera’s Motion for Temporary Restraining Order (Doc. 2) (“TRO Motion”), asking the Court to temporarily restrain “Defendants Bobbie Gutierrez, Principal Melanie Romero, Principal Robert Stephens, and the individual members of the Santa Fe Public Schools Board of Education to refrain from conducting searches at the 2011 Santa Fe High School Prom or the 2011 Capital High School Graduation.” TRO Motion at 1. On May 19, 2011, the Court held a hearing on the TRO Motion. On May 20, 2011, the Court issued a Memorandum Opinion and Order granting in part and denying in part the TRO Motion. See Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d 1174 (D.N.M.2011)(Browning, J.)(“TRO Opinion”). The Court concluded that the pat-down searches to which C. Herrera and T.H. were allegedly subjected before entering the Capital High prom were likely unconstitutional, and that the factors weighed in favor of granting C. Herrera’s request for a temporary restraining order. See 792 F.Supp.2d at 1178 . The Court thus ordered Capital High and Santa Fe High to cease suspicionless pat-down searches, as the schools had done them in the past, at their dances and precluding them from performing the searches at the schools’ graduation ceremonies, but allowing less invasive visual searches and searches with a magnetic wand, and also ordering ASI New Mexico guards to undergo instruction from Transportation Safety Administration officials on performing searches:
The Court orders Defendant Santa Fe Public Schools (“SFPS”) to send students who may attend the 2011 Santa Fe High School prom a notice stating that they may be subject to a search, describing what the search may be, and informing the students what items they may not bring into the prom and that those items may be confiscated. The Court also orders SFPS to send students who may attend the 2011 Capital High School Graduation a notice stating that they may be subject to a search, describing what the search may be, and informing the students what items they may not bring into the graduation and that those items may be confiscated. The Court directs the Defendants to refrain from conducting patdown searches of every student as a first approach. The security officers must conduct graduated searches. The security officers may conduct a visual inspection, order students to unzip or to remove their graduation gowns to show their clothes, order students to spread their legs, and screen students with a magnetometric wand. The officers may, as part of the visual *1206 observation, ask the students to remove jackets and shoes. If the security officers detect something on a student’s person with a wand, they must first ask the student to remove the object. If they have reasonable grounds, based on personal observation or other sources, 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, the security officers may conduct a pat-down search of the student. The officers or agents should use a graduated approach to the pat-down searches similar to that TSA uses and, where appropriate, with open hand out. The security officers may look in the students’ possessions, but they may not dump out the students’ possessions on a public table. The officer may remove objects in an orderly way, at a table removed from the public view, but not from the student’s vision, to see all contents. The officers may inspect telephones and cameras, and ask students to open them if necessary. The officers may confiscate alcohol, drugs, weapons, and other items that SFPS has notified the students may be confiscated, at least for some items, for the duration of the event; the officer may not, at the prom, confiscate hand lotion, and, at both events, the quantity of prescription medication that the student can show he or she needs to take during the event. The Court orders the SFPS to require Defendant ASI New Mexico, LLC (“ASI”) to provide at least one Transportation Security Administration (“TSA”) certified person at the 2011 Santa Fe High School and at the 2011 Capital High School Graduation prom to supervise the searches. The Court also orders SFPS to require ASI to train its employees working these events about TSA procedures. The Plaintiffs may have a third-party observer selected by the Plaintiffs at both events to observe the searches conducted at the events to ensure compliance with the Court’s order. The observer will be a witness only, however, and shall not interfere with the school’s compliance with the order. The Court anticipates the School’s good-faith compliance with its order.
Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d at 1200-01 .
The Plaintiffs filed their Second Amended Complaint on September 18, 2012. See Doc. 100. Like the two previous versions, the Second Amended Complaint includes a claim against Romero in her individual capacity. Count I alleges a claim under 42 U.S.C. § 1983 for violation of the Plaintiffs’ Fourth Amendment rights to “be secure in their persons and effects against unreasonable searches and seizures.” Second Amended Complaint ¶ 135, at 24. On October 24, 2012, Romero and the other School 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, Barbara Gudwin, Glenn Winkle, Linda Trujillo, Frank Montano, and Steven J. Carrillo, in their official capacity as SFPS Board of Education members, Bobbie J. Gutierrez, in her official capacity as SFPS Superintendent, Romero, in her official capacity as Capital High Principal, and Leslie Kilmer, in her official capacity as Santa Fe High School Principal (collectively “School Defendants”) 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 *1207 the Schools [sic] Defendants (Doc. 114). On November 15, 2012, the Court entered an Order granting the Plaintiffs’ motion, and dismissing Counts II, III, IV, 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).
Romero filed her Motion for Summary Judgment on November 13, 2012, moving the Court, pursuant to rule 56 of the Federal Rules of Civil Procedure, to enter judgment in her favor on Count I based upon qualified immunity. See Motion for Summary Judgment at 1. Romero asserts that “the facts adduced in discovery are very different than those based almost solely upon Plaintiff Candice Herrera’s unopposed testimony at the TRO hearing.” Motion for Summary Judgment at 13. Romero argues that she is entitled to qualified immunity, because it was not clearly established in the United States Court of Appeals for the Tenth Circuit on April 16, 2011, “that requesting ASI New Mexico to perform a limited, school appropriate pat-down and possession search (that does not include groping or inappropriate touching) of all attendees to an off-campus high school prom, for the protection and safety of the attendees and the public, violated the Fourth Amendment.” Motion for Summary Judgment at 14. Regarding her conduct, Romero notes that she asked ASI New Mexico to have its employees perform pat-down searches of the prom attendees, because
[h]er experience as an administrator in SFPS high schools, and the experiences, which she had heard from other SFPS employees and ASI supervisors and employees, led her to reasonably believe that standard pat-down searches were reasonably necessary at the Prom to exclude contraband from the event and to dissuade attendees from bringing contraband to the event.
Motion for Summary Judgment at 15. According to Romero, SFPS principals “have shared that belief back to at least 2004.” Motion for Summary Judgment at 15. She asserts that “[t]here is no evidence suggesting that Principal Romero knew the request violated the attendees’ rights or that she had any intent to violate anyone’s constitutional rights,” and that “[s]he was just trying to protect her students from themselves at an event well-known to be characterized by attendees making bad decisions before, during and after such events.” Motion for Summary Judgment at 15.
In relation to these facts, Romero argues:
The issue for the “clearly established” prong of the qualified immunity test is whether it was clearly established on April 16, 2011 that a limited, school-appropriate, pat-down and possession search of all attendees to an off-campus high school prom, pursued for the protection and safety of the attendees, violated the attendees’ constitutional rights.
Motion for Summary Judgment at 15-16 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982)). Romero approaches the question by examining the authorities that the Court cited in its TRO Opinion, granting the Plaintiffs’ request for a temporary restraining order: Herrera v. Santa Fe Pub. Sch., 792 *1208 F.Supp.2d at 1174 . See Motion for Summary Judgment at 16. Addressing those authorities, Romero contends that it is clearly established “[sjearches in the school context are granted more leeway than the usual law enforcement searches because of the special needs inherent in dealing with students.” Motion for Summary Judgment at 16. Romero points out that no Tenth Circuit or Supreme Court opinion of which she knows has declared that pat-down searches of attendees at a school-sponsored prom are “per se, unreasonable and unconstitutional,” and asserts that “the rules established are that a school search (at least in the context of searching a student believed to have violated the law or school rules) is reasonable if it was justified at its inception and the search was reasonably related in scope to the circumstances justifying the search.” Motion for Summary Judgment at 17 (citing New Jersey v. T.L.O., 469 U.S. 325, 341-42 , 105 S.Ct. 733 , 83 L.Ed.2d 720 (1985)). Romero asserts that a search’s scope is reasonable “when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and nature of the infraction.” Motion for Summary Judgment at 18 (quoting New Jersey v. T.L.O., 469 U.S. at 342 , 105 S.Ct. 733 ). She also asserts that “the T. L.O. standards are broad ones and do not provide public school employees much detail regarding the contours of the rules and the rights they protect .... [and] courts, including the Supreme Court, have struggled to apply the T.L.O. standards in different circumstances.” Motion for Summary Judgment at 18.
Romero discusses the Supreme Court’s application of the search rule it announced in New Jersey v. T.L.O. and in its more recent cases of Vernonia School District 47J v. Acton, 515 U.S. 646 , 115 S.Ct. 2386 , 132 L.Ed.2d 564 (1995), and Board of Education of Independent School District No. 92 v. Earls, 536 U.S. 822 , 122 S.Ct. 2559 , 153 L.Edüd 735 (2002). See Motion for Summary Judgment at 18. Romero asserts that, in relation to the urinalysis testing in Board of Education of Independent School District No. 92 v. Earls particularly, the high school students going to prom here are analogous to the athletes participating in sports in that case, and the searches without suspicion are justified based on the students’ limited privacy expectations. See Motion for Summary Judgment at 18-19. She contends, however, that outside of providing the general proposition about the reduced privacy expectation, because the search was for safety purposes rather than for purposes of finding criminal activity, “Vernonia and Earls provide little guidance to a high school principal trying to keep her students and their guests safe by excluding weapons, drugs, alcohol and tobacco from being taken to the Prom.” Motion for Summary Judgment at 19.
As to whether the violated right was clearly established at the time of the alleged violation, Romero asserts that there is no Tenth Circuit opinion on point. See Motion for Summary Judgment at 19. She asserts that there is no Tenth Circuit or Supreme Court authority
which would have clearly informed Principal Romero that a limited pat-down search (without untoward groping) for the purpose of excluding, or dissuading attendees from bringing weapons, drugs, alcohol, or tobacco to the Prom, undertaken for the protection and safety of the attendees from themselves and each other, violates the Fourth Amendment. Indeed, the TRO Opinion cites no Tenth Circuit authority to support the conclusion that Candice Herrera was likely to succeed on her Fourth Amendment claim, let alone a case that would clearly establish such a standard.
*1209 Motion for Summary Judgment at 19-20. Romero also contends that there is also no clearly established precedent outside of the Tenth Circuit. She argues that the other three cases to which the Court cited in the TRO Opinion “present very different circumstances from searches occurring only at a school-sponsored party and possibly the most dangerous school-sponsored event of the year when considering the health of the attendees.” Motion to Dismiss at 20. Romero asserts that the Court’s statement in the TRO Opinion—that “[g]overnment may not condition the receipt of a benefit or privilege on the relinquishment of a constitutional right” Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d at 1183—“cannot be applied in the context of public schools consistent with controlling Supreme Court law.” Motion for Summary Judgment at 21. She argues that there is no reasonable basis on which to distinguish students’ limited waiver of their Fourth Amendment rights when they decide to participate in extracurricular sports activities, as the Supreme Court found in Board of Education of Independent School District No. 92 v. Earls, and finding that students waived their rights when they decided to participate in the off-campus prom. See Motion for Summary Judgment at 21. Romero thus asserts: “It was not clearly established law in the Tenth Circuit on April 16, 2011 that a limited, school-appropriate, pat-down and possession search of all attendees to an off-campus high school prom, pursued for the protection and safety of the attendees, violated the attendees’ Fourth Amendment rights.” Motion to Dismiss at 21.
Romero recognizes that the “Plaintiffs will claim that these were not limited, school-appropriate pat-down searches” and that, because the Plaintiffs testified on the record that “inappropriate things were done to them,” even “though the self-serving testimony of each Plaintiff may be incredible,” she concedes that “it may be enough to create justiciable fact issues.” Motion for Summary Judgment at 22. She responds, however, that “the facts are undisputed that Melanie Romero, the only Defendant sued in her individual capacity, had no part in any searches beyond asking ASI to perform limited (non-groping) pat-down searches,” and was not aware of the alleged scope of the searches until after the prom. Motion for Summary Judgment at 22.
Romero argues that this case is not about limited school-related pat-down searches, but about searches which allegedly included groping and molestation. See Motion for Summary Judgment at 23. She contends that, because she “did not order, perform, assist, observe, or have reported to her searches that included touching breasts or bare legs or pulling bras at the Prom,” and because Ashcroft v. Iqbal, 556 U.S. 662 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009), imposes liability on individuals only for their participation in a constitutional violation, the Court should dismiss her from the case. Motion for Summary Judgment at 24. Romero also argues that, even if the limited searches which she instructed ASI New Mexico to conduct at the Prom were unreasonable searches, there still cannot be any Fourth Amendment violation, as the students consented to the searches. See Motion for Summary Judgment at 25. Romero refers the Court to Johnston v. Tampa Sports Auth., 530 F.3d 1320 (11th Cir.2008), where the United States Court of Appeals for the Eleventh Circuit held that, where a patron objected to the search a stadium required him to undergo for admittance, because he nevertheless underwent the pat-down search to proceed into the stadium, there was no constitutional violation because patron consented. See Motion for Summary Judgment at 25. Romero argues that, viewed against that background, *1210 because the Plaintiffs testified that they had all undergone pat-down searches at previous school dances, expected to undergo pat-down searches at this dance, and did not refuse to undergo the pat-down searches at the prom, they consented, or Romero’s belief they consented is reasonable. She asserts that the Plaintiffs could have refused to consent to the searches by not entering the prom, but chose to consent to the searches and continue into the Prom. See Motion for Summary Judgment at 26-27. Romero asserts that, because there is no evidence that she participated in the alleged unlawful searches in any way, and because of her reasonable belief that the students consented to the search, the Court should grant summary judgment in her favor and dismiss her from the case.
On November 30, 2012, the Plaintiffs filed their MSJ Response, asserting that the Court should deny Romero’s request for summary judgment for two primary reasons. First, her motion is premised on assuming her account of the facts, which contradict the Plaintiffs’ descriptions and which is not appropriate at the summary judgment stage. Second, her motion is premised “on the assumption that if the searches did occur as Plaintiffs describe, Defendant Romero did not see them,” which the Plaintiffs assert is disputed, and thus also improper as a summary judgment basis. MSJ Response at 1-2.
The Plaintiffs assert that, at the summary-judgment stage, a court analyzing whether a defendant is entitled to qualified immunity “must construe the facts in the light most favorable to the plaintiff.” MSJ Response at 12 (citing Scott v. Harris, 550 U.S. 372, 378-80 , 127 S.Ct. 1769 , 167 L.Ed.2d 686 (2007); Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009)). The Plaintiffs assert:
It is beyond cavil that the pat-down searches described by the four Plaintiffs (with the cupping of the breasts, the feeling of bare legs and arms, the lifting of dresses to mid-thigh and the putting of fingers inside of a dress to check a student’s cleavage), which the Court must accept as true descriptions of the searches, violate the Fourth Amendment to the Constitution.
MSJ Response at 13. They assert that under the Fourth Amendment, “[a]s a general rule, in the school or school-activity context, officials must have ‘reasonable, individualized suspicion’ before conducting a search of a student.” MSJ Response at 13 (quoting New Jersey v. T.L.O., 469 U.S. at 341-42 , 105 S.Ct. 733 ). The Plaintiffs concede, however, that the Supreme Court in Vernonia School District 47J v. Acton recognized that a school search “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.’ ” MSJ Response at 14 (quoting Vernonia Sch. Dist., 515 U.S at 674, 115 S.Ct. 2386 ). They assert that the prom search is unconstitutional under this standard, as the means used to search in pursuit of the government’s interest to keep drugs, alcohol, weapons, and tobacco out of the Prom — the searches which included cupping the students’ breasts, feeling bare legs and arms, placing fingers inside of a dress to check cleavage, and lifting dresses to mid-thigh—are not reasonably related to that interest. See MSJ Response at 14-15.
As evidence that the scope of the searches at the prom was not reasonably related to the school’s objectives, the Plaintiffs point to Reyes’ testimony that touching students’ bare legs and arms, in plain view, would not help in accomplishing the school’s objective. See MSJ Response at 15 (citing Reyes Depo. at 73:14-21). The Plaintiffs assert that the searches *1211 were also “excessively intrusive in light of the age and sex of the students.” MSJ Response at 15. They contend further that the searches were unreasonable, as 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,” which is a threshold requirement for a reasonable school search. MSJ Response at 15-16.
As to whether Romero violated the Plaintiffs’ clearly established rights, the Plaintiffs assert that Romero misstates the issue in her Motion for Summary Judgment, and contend that the proper issue is “whether it was clearly established in 2011 that a search as described by Plaintiffs, which involves the touching of breasts, bare legs, and bra pulling, violates the Constitution.” MSJ Response at 17. They assert that the Defendants must concede that the answer to this proper question is yes, as Romero “agrees that the searches as described by Plaintiffs, or as described by ASI guard Rebecca Reyes and Capital High School employee Rose Lucero, were not appropriate.” MSJ Response at 17 (citing Romero Depo. at 211:2-10, 236:16-238:6; 238:20-240:5). According to the Plaintiffs,
Defendant Romero’s understanding that the searches as described by Plaintiffs were improper is confirmed by the precedent, as set forth above, that Plaintiffs and the Court rely on to show that the highly intrusive, suspicionless pat-down searches are not reasonably related to abstract concerns regarding drugs and alcohol at a high school dance. That precedent was issued by the Supreme Court long before the 2011 Capital High School Prom.
MSJ Response at 17.
The Plaintiffs argue that the Capital High search policies in its code of conduct “inform[s]” whether “it was clearly established that a principal like Defendant Romero could not institute a policy of blanket pat-down searches.” MSJ Response at 17. They point out that Capital High’s policies relating to school searches provide that searches “such as pat-downs may be conducted only on the basis of reasonable suspicion of the individual student to be searched,” that Capital High will make efforts to contact the parent and allow their presence during the search, and that the students’ personal effects, such as cellular telephones or purses, “may be searched when school officials have individual reasonable suspicion that such property” contains contraband. MSJ Response at 18 (quoting SFPS Code of Conduct at 57-58, filed November 30, 2013 (Doc. 126-13)). They assert that these policies “parrot” the school search requirements that the Supreme Court articulated in New Jersey v. T.L.O. and is “undoubtedly the product of the Schools’ legal counsel’s attempt to be consistent with existing precedent.” MSJ Response at 18. The Plaintiffs contend:
Romero stretches the bounds of credulity when she suggests that Supreme Court cases such' as Vernonia and Earls created a complex analysis that confused her regarding what suspicionless searches were permitted when her own Code of Conduct committee and the Schools’ legal counsel set forth a written policy that school officials such as herself were to follow related to student searches.
MSJ Response at 19.
In response to Romero’s contention that she was not personally involved in any alleged violation of the Plaintiffs’ Fourth Amendment rights, the Plaintiffs dispute that “she did not ‘order, perform, assist, observe, or have reported to her’ the intrusive searches,” and further assert that “the analysis of Defendant Romero’s personal involvement begins with an understanding *1212 of the nature of the relationship between her and the ASI personnel who conducted the searches.” MSJ Response at 19 (quoting Motion for Summary Judgment at 24). The Plaintiffs point out that Romero “does not dispute that she was present at the prom and observed pat-down searches,” but contends that those “searches that she observed necessarily included (for purposes of this Motion) the pulling and shaking of bras, which the searching guard describes she did for every student,” and that “two students describe seeing Ms. Romero looking right at them as the security guard lifted their dresses and patted down their bare legs.” MSJ Response at 20 (citing Reyes Statement at 1, filed November 30, 2012 (Doc. 126-7); C. Herrera Depo. at 130:12-131:2; A. London Depo. at 129:23-131:4, 132:18-133:1). They contend that Romero’s observation of the searches is sufficient to establish her personal involvement, as she failed to “intercede” when she was constitutionally required to do so. MSJ Response at 20 (citing Tanner v. San Juan Cnty. Sheriffs Office, 864 F.Supp.2d 1090 (D.N.M.2012) (Browning, J.); Dodds v. Richardson, 614 F.3d 1185, 1200-01 (10th Cir.2010)).
The Plaintiffs also argue that Romero’s suggestion that the students waived their Fourth Amendment rights in deciding to undergo the search and enter the prom fails, because the government cannot condition receipt of a privilege on an agreement to a rights waiver, and because there is no evidence that the Plaintiffs were aware they would be subjected to an intrusive pat-down search at the prom. See MSJ Response at 21-22. The Plaintiffs assert that Romero’s citation to the Eleventh Circuit’s decision in Johnston v. Tampa Sports Authority for the proposition that the “ ‘unconstitutional conditions’ doctrine”—the proposition that “ ‘government may not condition access to even a gratuitous benefit or privilege it bestows upon the sacrifice of a constitutional right.’ ” MSJ Response at 22 (quoting Blackburn v. Snow, 771 F.2d 556, 568 (1st Cir.1985))does not always apply is inapposite to this case, because the Eleventh Circuit pointed out that “ ‘the condition for entry was imposed by the NFL and the Buccaneers, both private entities, and not the government.’ ” MSJ Response at 22 (quoting Johnston v. Tampa Sports Auth., 530 F.3d at 1329 )(emphasis added by the Plaintiffs). The Plaintiffs also take issue with Romero’s reading of Vernonia School District 47J v. Acton and Board of Education of Independent School District No. 92 v. Earls:
The Supreme Court did not find in those cases, as Defendant argues, that schools can condition participation in particular activities on a waiver of Fourth Amendment rights. Instead, the Supreme Court found that given all of the facts surrounding the challenged searches, they were reasonable and did not violate the Fourth Amendment.... Neither Vernonia nor Earls involved the conditioning of a benefit on the relinquishment of a constitutional right. Instead, they involved searches that the Court found were constitutional.
MSJ Response at 23.
The Plaintiffs also assert that there is no evidence that any of the Plaintiffs had “any inkling” that the prom searches would be as highly intrusive as they were. MSJ Response at 23. They contend that the fact that the evidence shows that the Plaintiffs appreciated that they were going to be subjected to pat-down searches does not mean that they anticipated searches to the same extent as they proved to be at the prom. See MSJ Response at 23-24. According to the Plaintiffs, along the same lines, their consent does not meet the “strict burden” on Romero to prove that they “impliedly waived” their Fourth Amendment rights by undergoing the *1213 searches to enter the prom. MSJ Response at 24 (citing Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973); United States v. Har rison, 639 F.3d 1273, 1278 (10th Cir.2011)). The Plaintiffs contend that they thus did not waive their rights and that the Court should therefore deny Romero’s Motion for Summary Judgment.
On December 17, 2012, Romero filed her MSJ Reply, arguing that the Court should enter summary judgment in her favor, because it remains undisputed that she was not personally involved in the pat-down searches, and because she is entitled to qualified immunity. Romero contends that, in relation to her factual defense that she did not in any way participate in the pat-down searches at the prom, the Plaintiffs have not disputed Romero’s asserted facts that she did not request or order ASI New Mexico or ASI New Mexico employees to perform pat-down searches with groping at the prom, and that she was not the supervisor of the ASI New Mexico employees. See MSJ Reply at 8. Romero contends that the Plaintiffs point only to testimony in which Romero explains she requested the security services she needed from ASI New Mexico and requested pat-down searches generally. She asserts that the Plaintiffs have not cited any evidence that she directed the ASI New Mexico or its employees how to conduct the pat-down searches, and that there is undisputed evidence that “she did not specify the techniques ASI New Mexico employees use to perform pat-down searches.” MSJ Reply at 8. Romero also contends that the Plaintiffs have not shown a genuine issue whether Romero was informed that searches with groping were occurring during the prom, as “there is no evidence any one at the Prom informed Principal Romero of groping during pat-down searches.” MSJ Reply at 8. Romero points out that the Plaintiffs “attempt to show a dispute ... that Melanie Romero did not see any search with groping,” but that they do not support this dispute. MSJ Reply at 8. According to Romero, “in her deposition, Candice Herrera plainly admitted that she could not testify that Melanie Romero actually observed her search.” MSJ Reply at 9 (citing C. Herrera Depo. 62:6-11). Romero contends that the portions of the record upon which the Plaintiffs rely in an attempt to dispute that Romero did not observe C. Herrera’s search are insufficient, because C. Herrera testifies only that Romero smiled at her, not that Romero saw the search:
In Plaintiffs’ first citation to Candice Herrera’s deposition, at page 130, line 12 to page 131, line 2, Candice testified only that at a single point during her pat-down search, about the time the guard allegedly lifted her dress, Principal Romero looked at her (apparently in the face) and smiled. However, moments before, in testimony not cited by the Plaintiffs, Candice was somewhat clearer when asked, “Okay. And what was Melanie doing when you looked up at Melanie?” Candice answered, “She looked over and smiled at me and turned back around.” That is the extent of Candice Herrera’s testimony regarding Defendant Romero watching her alleged groping.
The second citation to Candice Herrera’s testimony (page 180, lines 1 through 9) provides no more probative evidence. The cited passage begins with a question to Ms. Herrera concerning the sworn affidavit that she provided the Court as evidence for the TRO hearing which stated, “[I] saw Principal Romero look at me while my body was being searched.” However, just a few lines later, Candice was asked: “Can you describe for me what you mean by ‘severely violated and exposed?’ ” C. Herrera Depo., Exhibit 2, P. 180, lines 15 to 16. Candice answered: “If you’re pulling *1214 up — the security guard is pulling up my dress, exposing my legs, which I’m uncomfortable with ...” and continued regarding her allegations and her view of the school’s alleged duty to protect her. Id., P. 180, line 18 to P. 181, line 11. The very next exchange provided:
Q Well, you’ve already testified that you don’t know if Melanie Romero saw any of that, right?
A Yes, sir.
Id., P. 181, lines 12 to 14.
MSJ Reply at 9-10. In relation to London’s testimony about Romero watching her pat-down search, Romero argues that London testified that London watched Romero search the purse and not that Romero watched London while ASI New Mexico performed the pat-down search. See MSJ Reply at 10. Romero thus argues that, because the Plaintiffs do not show a genuine issue of fact exists whether Romero “orderfed], perform[ed], assisted], observe[d] or [knew] of any pat-down searches with groping at the Prom,” there is no genuine issue whether she personally participated in the alleged unconstitutional pat-down searches, and the Court should, under Ashcroft v. Iqbal, grant summary judgment in her favor. MSJ Reply at 10-11.
Romero also argues that, given that any alleged constitutional violation must be based on her requesting ASI New Mexico to provide pat-down searches of students entering the prom to search for weapons, drugs, alcohol and tobacco, and given that there is no Tenth Circuit opinion on point to show any clearly established law, the Court must then look to the Supreme Court, which has not clearly established this conduct to violate the Fourth Amendment, or to the SFPS’ Code of Conduct. See MSJ Reply at 11. Romero asserts that “even a cursory examination of the Supreme Court’s opinions in T.L.O., Earls and Vernonia ... shows that the policies expressed in the Code of Conduct do not express the permissible scope of Fourth Amendment searches in the context of public schools as established in those three cases.” MSJ Reply at 11. She contends: “Surely, Plaintiffs cannot then contend that a violation of the Code of Conduct by a school official creates a federal constitutional claim for violating the Fourth Amendment.” MSJ Reply at 12. According to Romero, both Vernonia School District 47J v. Acton and Board of Education of Independent School District No. 92 v. Earls stand for the proposition that school searches do not require individualized suspicion and that Plaintiffs’ assertion to the opposite is “simply wrong.” MSJ Reply at 12. She asserts, however, that the Plaintiffs’ error is not pertinent, because these cases “did not involve pat-down searches” and therefore cannot clearly establish any constitutional violation for purposes of Romero’s conduct here. MSJ Reply at 12-13.
Finally, Romero contends that Vernonia School District 47J v. Acton and Board of Education of Independent School District No. 92 v. Earls do not support that public school students cannot be forced to surrender constitutional protections in exchange for certain voluntary activities. See MSJ Reply at 13. She contends that these cases “clearly establish that a school can not subject its entire student body to drug testing through urinalysis, but may do so, without constitutional violation, to certain groups based upon the circumstances.” MSJ Reply at 13. Romero asserts that, if subjecting student athletes to urinalysis was constitutionally permissible, subjecting students to limited pat-down searches for their protection from drugs, alcohol, firearms, and tobacco is also reasonable— and is certainly not clearly established as unreasonable. See MSJ Reply at 13-14.
*1215 Romero reiterates her argument that “it is not clearly established that a pat-down search at a prom during which a contract security guard, without any school involvement, gropes a student being searched violates the Fourth Amendment.” MSJ Reply at 14. She points out that the Plaintiffs, in their response, provide no authority to the contrary, and she “suggests that a reasonable search plus abuse by another party does not result in an unconstitutional search any more than justifiably barring speech lacking First Amendment protection plus sex abuse results in a First Amendment violation.” MSJ Reply at 14. She asserts that her conduct is easily separated from any ASI New Mexico contract-employee’s alleged unconstitutional conduct. See MSJ Reply at 14. She argues that, because the Plaintiffs cannot show any dispute that she did not in any way participate in a violation of any of the Plaintiffs’ clearly established constitutional rights, the Court should grant summary judgment in her favor. See MSJ Reply at 15.
On December 20, 2012, the Court held a hearing on Romero’s Motion for Summary Judgment. Romero asserted that her Motion for Summary Judgment is very fact specific, and that the Plaintiffs’ blanket statement that C. Herrera and London saw Romero watching their patdown searches does not find support in the record. See Tr. at 5:14-22; 6:11-18 (Coppler). The Romero referred the Court to C. Herrera’s testimony, pointing out that she “testified that during a single point in her pat-down search at about the time the guard was lifting up her dress, principal Romero looked over at her and smiled. That was it.” Tr. at 6:22-25 (Coppler). She stated: “At best,” C. Herrera “can say that Melanie Romero saw the guard lift up Candice’s dress, because Candice said she looked over at me and smiled at me and then turned back around.” Tr. at 7:1-3 (Coppler). She points out that none of the Plaintiffs, or anyone else, testified that Romero observed any groping or anyone touch C. Herrera’s bare skin. See Tr. at 7:3-10 (Coppler). As to London’s testimony about Romero’s observation of London’s pat-down search, Romero asserts that London testified she was watching Romero search London’s purse and not that Romero watched any part of the pat-down search of London. See Tr. at 7: lb-23 (Coppler). She argued: “The other two plaintiffs ..., neither one of them testified at all that Melanie saw any portion of their search, and all four plaintiffs have admitted that they do not know if Melanie Romero saw any portion of their search.” Tr. at 8:2-6 (Coppler).
The Court asked the Plaintiffs if they agree that the Court should grant summary judgment in Romero’s favor with respect to the other two Plaintiffs: T.H. and A. Hurtado. See Tr. at 10:4-11 (Court). The Plaintiffs responded that they do not agree that the Court should grant Romero summary judgment, contending that they “are not limited solely to introducing evidence that they observed Ms. Romero observing them as they were being searched,” but rather they “can draw from any aspect of the factual record that presents sufficient evidence for a jury to infer from the circumstances that Ms. Romero observed these searches as described both by the plaintiffs and other witnesses ... at the prom.” Tr. at 10:12-20 (Colfax). They asserted that the facts that Romero was standing feet away from the ASI New Mexico officers performing these pat-down searches and that she observed students as they were coming through the line, paired with the Plaintiffs’ descriptions about how the searches proceeded, is sufficient circumstantial evidence from which a jury could infer that Romero observed the searches, and thus establishes a genuine issue whether Romero observed the searches. See Tr. at *1216 10:21-11:18 (Colfax). The Plaintiffs contended that, given that there is sufficient evidence to dispute whether Romero observed the searches, and given that there is no dispute Romero had authority to stop the searches during the prom, there is sufficient evidence that she was personally involved in the alleged violation of the Plaintiffs’ rights and that Ashcroft v. Iqbal does not therefore insulate her from individual liability. See Tr. at 12:17-13:5 (Colfax).
The Court asked the Plaintiffs where in the record London states that Romero observed London’s pat-down search. See Tr. at 13:15-18 (Court). The Plaintiffs responded that the support is present, because “the implication of what she said is that there was a clear line of sight between her and Ms. Romero as ... London’s going through this search by the ASI security guard.” Tr. at 13:19-23 (Colfax). The Court then inquired whether the only information in the record about Romero’s observation of the ASI New Mexico guard’s search of C. Herrera that the Plaintiffs have is her testimony that Romero looked at her and smiled while her dressed was raised. See Tr. at 15:6-11 (Court). The Plaintiffs responded that “the answer is yes. The strongest statement that Ms. Herrera makes is that she was looking at me during the course of the dress being lifted up by the ASI guard.” Tr. at 15:14-17 (Colfax). The Plaintiffs also pointed out that, “in her affidavit, and I believe also in her testimony before the Court during the TRO hearing, she stated more generally that Ms. Romero observed me while my body was being searched.” Tr. at 15:17-21 (Colfax). The Court responded by asking the Plaintiffs, because there appears to be some tension in the TRO testimony and the deposition testimony, whether the Court must rely on the more specific deposition testimony. See Tr. at 15:24-16:3 (Court). The Plaintiffs agreed that the Court should rely on the deposition testimony, because “the deposition testimony is more specific in terms of precisely when ... she observed Ms. Romero look up and see the lifting of the dress.” Tr. 16:8-11 (Colfax). In response to the Court’s inquiry whether the Plaintiffs want to add any facts that the Court should consider in deciding the Motion for Summary Judgment, the Plaintiffs asserted that whether C. Herrera or London observed Romero watch the ASI New Mexico guards search them are “in a sense bonus facts for the plaintiff,” because there is sufficient circumstantial evidence without that testimony on which they can survive summary judgment in relation to Romero’s personal involvement. Tr. at 16:12-25 (Court, Colfax).
Romero responded that “we can agree that the only facts produced in 19 depositions, written discovery, affidavits, and TRO testimony is that a single point during Candice’s search she ... makes eye contact with Melanie Romero who then smiles and turns her attention away from her.” Tr. at 18:1-6 (Coppler). She added that, while she was in proximity to the searches, she was at the table where the school employees searched personal effects and purses, and testified that, although she saw the ASI searches, she did not see the searches as the Plaintiffs described them. See Tr. at 18:12-21 (Coppler). She stated: “I can accept for purposes of this motion, Your Honor, that if the searches were unconstitutional, that maybe the school board is going to have to answer for that. But right now we are talking about what Melanie Romero did on the night of the prom,” and the Plaintiffs do not have evidence that she witnessed any groping. Tr. at 19:20-20:10 (Coppler). The Court noted that there does not appear to be a factual issue whether T.H. and Hurtado can hold Romero individually liable for Romero’s failure to intervene, and that it also appears unlikely that there will be any factu *1217 al issue in relation to London. See Tr. at 22:8-17 (Court). The Court noted that there appears to be a genuine issue of fact, however, whether Romero observed the ASI New Mexico guard lift C. Herrera’s dress.
Moving to whether Romero’s actions constituted a constitutional violation, the Court asked Romero whether she would make any concessions about the extent to which the searches would have been unconstitutional if they occurred as the Plaintiffs allege. See Tr. at 24:5-17 (Court). Romero responded that she is not willing to concede that the searches were unconstitutional at all, because she believes that the Fourth Amendment inquiry is limited to whether Romero could have ordered pat-down searches, without individualized suspicion, at an off-campus school-related activity. See Tr. at 26:4-13 (Coppler). She asserted that any constitutional argument about the ASI New Mexico-guards’ alleged unconstitutional groping needs to be addressed under Fifth Amendment substantive due process analysis. See Tr. at 26:13-16 (Coppler). Romero asserted that, regardless whether the alleged searches fit under the Fourth or Fifth Amendments, Romero’s conduct here, asking for a search at an extra-curricular school event, and asking for that search to include student pat downs, did not violate clearly established Fourth Amendment law. See Tr. at 29:1-11 (Coppler).
The Court asked whether Romero and SFPS concede that a search which included a security guard reaching inside the students’ bras would be unconstitutional. See Tr. at 29:15-17 (Court). Romero replied that such a search would “probably” violate the students’ substantive due-process rights. See Tr. at 29:18-22 (Coppler). In response to the Court’s question whether she or the School District concede that conduct would violate the Fourth Amendment, she stated that they “have never seen case law where pat down somehow moves into a sexual assault.” Tr. at 30:1-4 (Coppler). The Court then noted that, if Romero is not going to concede that a search in which the guard reached inside a student’s bra violates the Fourth Amendment, the Court need not continue the inquiry into concessions about unconstitutional conduct any further. See Tr. 30:5-9 (Court).
The Court asked whether Romero would agree that the search at the prom did not conform to the SFPS’ Code of Conduct. See Tr. at 31:9-13 (Court). She responded that “the school district did not believe that school policy on student and locker searches applies to searches at off campus, after-hours events like the prom.” Tr. at 31:14-17 (Court). The Court asked what in the Code of Conduct would provide any support for these policies not applying at off-campus or after-hours events. See 32:25-33:8 (Court). Romero responded that, regardless whether the Code of Conduct applies to off-campus events, “[f]or this motion we’re dealing with what Melanie Romero’s good-faith belief was in trying to apply the code,” and she acted in good faith, and pursuant to Capital High’s and the SFPS’ practices in pursuing the pat-down searches at the prom. Tr. at 33:10-17 (Coppler). In response to the Court’s inquiry whether a layperson or an attorney drafted the Code of Conduct, Romero responded that she does not know whether an attorney was involved in the drafting, but she agreed with the Court that it does not appear that a layperson drafted the policies. See Tr. at 34:3-17 (Court, Coppler).
The Court asked two additional questions about Romero’s legal grounds for her request for summary judgment on the qualified immunity basis. First, it asked Romero whether she agreed with the Court’s distinguishing in its TRO Opinion *1218 between extra-curricular activities, such as participating in a football team, and a prom, which is more analogous to a commencement ceremony. See Tr. at 35:11-21 (Court). The Court’s second question was whether Romero’s request for ASI New Mexico guards to perform pat-down searches of the students included lifting the female students’ skirts. See Tr. at 35:13-36:9 (Court). Romero agreed with the Court that drug testing athletes is distinguishable from searching all students who choose to attend a prom. See Tr. at 36:12-20 (Coppler). She asserted that distinction, however, evinces that the law was not clearly established at the time of the prom search. See Tr. at 36:18-20 (Court). She also asserted that she disagrees with the Court that pulling up female attendees’ skirts makes the pat-down searches at all constitutionally questionable, because, according to her, the Fourth Amendment school-related search law is expanding to the point where these searches at the prom are constitutional. See Tr. at 37:5-11 (Coppler).
The Court asked whether Romero agrees that extra-curricular activities provides a poor point of reference, because the Prom is more analogous to graduation or commencement. See Tr. at 37:19-24 (Court). Romero said that she reaches the opposite conclusion and that the prom “absolutely is an extracurricular activity.” Tr. at 37:24-25 (Coppler). She asserted:
Only 150 students attended the Capital High school prom, out of a much larger school population. It’s a voluntary event, it’s a party, it’s off campus, it is school sponsored. Kids choose to go if they want. There’s no compulsory attendance. I don’t think you can characterize it as anything but an extracurricular activity. It’s not like graduation.
Tr. at 37:25-38:9 (Coppler). Romero also asserted that, “when you state it plainly the fact is that graduation’s probably an[ ] extra activity as well. They’re both voluntary activities. You don’t have to go through graduation to get your diploma.” Tr. at 40:23-41:1 (Coppler). The Court clarified that the Defendants’ position is that the school cannot just impose these pat-down searches as a matter of course at the school, but, other than that, they are constitutional. See Tr. at 41:6-10 (Court). Romero clarified that the Defendants’ position does not go that far, but only goes as far as to assert that the pat-down searches, to the extent Romero asked for them, were not unconstitutional given the Supreme Court’s case law regarding school-related searches. See Tr. at 41:11-23 (Coppler).
As to whether Romero’s request for pat-down searches at the prom included asking for the ASI New Mexico guards to lift the female students’ skirts, Romero asserted that there is no evidence that Romero instructed ASI New Mexico as to any details about how to perform the searches. See Tr. at 43:1-5 (Coppler). She asserted: “What she did was simply asked for a pat down. She left the manner in which the pat down was to occur to ASI based on their experience, their training, their expertise, and their past practices at the prior proms.” Tr. at 43:11-14 (Coppler). The Court asked whether it is a fair assessment of the record to say that “[w]e just don’t know her views at all about the lifting of the dresses,” to which Romero replied that the Court’s assessment is “fair from the evidence.” Tr. at 44:6-12 (Court, Coppler).
The Court asked the Plaintiffs how they respond to Romero’s contention that the Fifth Amendment, rather than the Fourth Amendment, redresses a search which includes cupping or touching the female students’ breasts. See Tr. at 45:17-23 (Court). The Plaintiffs responded that they see no basis for that proposition and *1219 that “the mere fact that the nature of the search here touched some sex-related areas during the course of the searches as described by the plaintiff,” does not somehow take the unconstitutional search out of the Fourth Amendment’s purview. Tr. at 45:24-46:3 (Colfax). They stated that the nature of the search weighs into the Fourth Amendment’s reasonableness analysis to determine whether the scope of the government’s search goes beyond the government’s legitimate interest in performing the search. See Tr. at 46:11-23 (Colfax). In response to the Court’s question whether they are asserting a substantive due-process violation, the Plaintiffs responded that they are not, because their claim is that the search was an unreasonable government search, which violated the Plaintiffs’ Fourth Amendment rights. See Tr. at 48:4-8 (Colfax).
The Court asked the Plaintiffs whether they distinguish between extracurricular activities along the lines of sports and a prom. See Tr. at 48:9-18 (Court). The Plaintiffs responded that they agree with the Court, and would classify school-related events as extracurricular, such as sports, and as school activities, such as graduation and prom. See Tr. at 48:19-25 (Colfax). They asserted that, whereas a person necessarily loses a certain amount of privacy by participating in extracurricular sports activities, such as football players in the shower after a game, there is no similar diminished expectation of privacy for merely attending a prom. See Tr. at 50:10-14 (Colfax). Additionally, according to the Plaintiffs, simply because the activity is voluntary does not dimmish the students’ reasonable privacy expectation, because the Supreme Court has reiterated that a student need not check their rights at the door. See Tr. at 51:9-24 (Colfax). The Court asked whether the Supreme Court’s school search cases have modified that statement to now mean that if you choose to go beyond the regular schoolhouse doors — to participate in events outside of the regular school schedule — the school can require you to jump through constitutional hoops to participate in those activities outside of the regular school day. See Tr. at 52:4-13 (Court). The Plaintiffs conceded that, while the Supreme Court has modified that standard to allow for some searches as a condition for participation in activities outside of the schoolhouse, it has, in every case, balanced the government’s legitimate interest against the privacy intrusion of the search, and the Prom search here, viewed against Supreme Court precedent, unconstitutionally intruded on the Plaintiffs’ privacy interests. See Tr. at 52:14-53:22 (Colfax).
The Court asked how the Plaintiffs respond to Romero’s contention that Supreme Court precedent is expanding only the permissible bounds of school-related searches. See Tr. at 53:23-54:1 (Court). The Plaintiffs disagreed with Romero’s position and stated that the Supreme Court has consistently used its balancing test for determining whether a particular school search is reasonable under the circumstances, and, given the extent of the offensive conduct, none of those cases support finding that the searches in this case were constitutional. See Tr. at 54:7-55:5 (Colfax). In response to the Court’s question whether there is any particular part of the Court’s TRO Opinion with which the Plaintiffs disagree, the Plaintiffs responded that they disagree with the Court’s acceptance of the Santa Fe School Board’s position why they performed the searches and of the SFPS’s position that the Code of Conduct somehow did not apply to off-school student searches. See Tr. at 56:7-58:13 (Colfax). The Court asked whether the SFPS Code of Conduct accurately reflects constitutional law, and whether the Plaintiffs believe that, if the patdown searches had complied, with the Code of Conduct, they would have been constitutional. See *1220 Tr. at 58:14-22 (Court). The Plaintiffs replied that they believe the Code of Conduct accurately reflects constitutional law and that the way that the language tracks the law appears purposeful. See Tr. at 58:23-59:15 (Colfax).
The Court asked the Plaintiffs whether they can hold Romero individually responsible for a constitutional violation if the facts only go as far as to support that she saw an ASI New Mexico guard lift C. Herrera’s skirt. See Tr. at 60:19-25 (Court). The Plaintiffs asserted that, as Romero conceded in her testimony, a pat-down search that included lifting female students’ skirts “clearly rises to a level that not only does it violate clearly established law but that she knew that it violated the law and was inappropriate given the nature of the event and what they were looking for through the searches.” Tr. at 62:1-5 (Colfax).
Romero responded that it is her position that the Supreme Court, in Vernonia School District 47J v. Acton and Board of Education of Independent School District No. 92 v. Earls, held that suspicionless searches are permissible for extracurricular activities and that the prom has nothing to do with the school’s curriculum. See Tr. at 68:4-20 (Coppler). She asserted that, regardless whether the constitutional law allowing suspicionless searches in relation to schools is expanding, Romero’s qualified immunity turns on whether the law was clearly established, and it is obvious from both Tenth Circuit and Supreme Court precedent that it was not clear in April, 2011, that directing pat-down searches for students entering a prom violated those students’ constitutional rights. See Tr. at 68:19-69:16 (Coppler). Romero stated that, because Romero is the only defendant before the Court on this Motion for Summary Judgment, and because she is raising the qualified immunity defense, “[w]hether [the searches] included groping or not is not the issue that’s going to be decided certainly in this hearing, but what Melanie knew about that is what’s going to be decided in this hearing and she didn’t know about” the alleged extent of the searches. Tr. at 73:21-24 (Coppler). In response to the Court’s question whether Romero agrees with the Court’s TRO Opinion, she stated that
I think the law that’s cited in the TRO hearing is the law that was established at the time, but I don’t think that the law that you cited in the memorandum opinion clearly establishes that Melanie Romero, in asking for a school-appropriate pat-down search of the plaintiffs violated the constitution. I also disagree with the idea that somehow Melanie Romero could not condition entrance into the prom on having a school-appropriate pat-down.
Tr. at 74:17-25 (Coppler). In relation to the Plaintiffs’ contention that a pat-down search is unreasonable, Romero pointed out that, beyond the prom’s status as an extracurricular activity, “[t]his is an event that is attended by both adults and children ..., it’s attended by people who don’t even go to the school, it’s attended by people who are invited there. The school has to do something to make sure that these kids are safe.” Tr. at 75:8-12 (Coppler).
The Court asked the Plaintiffs whether, if the Court finds there a genuine issue about the pat-down searches including pulling on the students’ bras, given that none of the Plaintiffs allege that they were required to pull on their bras, the Plaintiffs have standing to challenge that conduct. See Tr. at 76:4-11 (Court). The Plaintiffs asserted that they believe there is adequate circumstantial evidence about the bra pulling, given the totality of the evidence, to allow a jury to find that conduct was included in the searches. See Tr. *1221 at 76:12-77:22 (Colfax). Romero replied that, in relation to her, there is no evidence she in any way participated, observed, or even knew about the alleged bra pulling. See Tr. at 78:1-25 (Coppler).
As to whether the law was clearly established, Romero asserted that, whereas she agrees with the Court’s statement of the law at the time of the incident that it set forth in the TRO Opinion, she disagrees that the law indicates Romero violated any clearly established right of the Plaintiffs. She also disagreed with “the Court’s statement that she supervised pat-downs. What she did was she asked for the pat-downs and then----[s]he was not standing there supervising these searches.” Tr. at 82:4-23 (Coppler). She asserted that the Plaintiffs have failed to meet their burden here to refer the Court to Supreme Court or Tenth Circuit opinions showing that any right Romero violated was clearly established. See Tr. at 82:24-83:11 (Coppler).
The Plaintiffs responded that the Supreme Court’s three leading opinions in this area —New Jersey v. T.L.O., Vernonia School District 47J v. Acton, and Board of Education of Independent School District No. 92 v. Earls —together establish the balancing test and that it applies for extracurricular activities. See Tr. at 84:7-25 (Colfax). They asserted that Romero violated that clearly established law by contravening the Code of Conduct’s requirements for student searches when she did not even consider whether the pat-down searches were appropriate under the reasonableness test. See Tr. at 85:3-19 (Colfax). Romero responded by conceding that she “didn’t do the analysis in her head in words as spoken by” the Plaintiffs, but asserted:
She did what any reasonable school principal, who’s not an attorney or a judge would do and say: “How am I going to keep the kids safe? What am I worried about? And here’s what I’m going to do.” That’s the balancing that she engaged in. And that is what she testified to.
Tr. at 86:17-24 (Coppler). She asserted that what she did was therefore consistent with clearly established law and that any conduct in which she was personally involved did not violate clearly established law. See Tr. at 87:2-24 (Coppler).
LAW REGARDING SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of “showing] that there is an absence of evidence to support the non-moving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)(internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56 requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324 , 106 S.Ct. 2548 ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986).
The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238 , 1241 (10th Cir.1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993)(“However, the nonmoving party may not rest on its pleadings but must *1222 set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal quotation marks omitted)). Rule 56(c)(1) provides: “A party asserting that a fact ... is genuinely disputed must support the assertion by .... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his [or her] pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505 . See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980)(“However, ‘once a properly sup ported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ” (citation omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005 , at *1 (D.Kan. June 2, 2008)(citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006); Fed.R.Civ.P. 56(e)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005 , at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).
To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505 . A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505 ). Rather, there must be sufficient evidence on which the factfinder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 , 14 Wall. 442 , 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539 . “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986).
When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 . Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and *1223 quality of proof necessary to support liability.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 254, 106 S.Ct. 2505 . Third, the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55 , 119 S.Ct. 1545 , 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Fourth, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 .
LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS
The Supreme Court has made clear that there is no respondeat superior liability under 42 U.S.C. § 1983 . See Ashcroft v. Iqbal, 556 U.S. at 675 , 129 S.Ct. 1937 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”); Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 , 117 S.Ct. 1382 , 137 L.Ed.2d 626 (1997). An entity cannot be held liable solely on the basis of the existence of an employer-employee relation ship with an alleged tortfeasor. See Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 689 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978). Supervisors can be held liable only for their own unconstitutional or illegal policies, and not for the employees’ tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir.1998). The Tenth Circuit has recognized that non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiffs constitutional rights by others, and a unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir.2012)(quoting 42 U.S.C. § 1983 ; Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006)(internal quotation marks omitted)).
1. Supervisory Liability.
The Tenth Circuit has held that supervisors may be liable under 42 U.S.C. § 1983 when a plaintiff can establish the “defendant-supervisor’s personal involvement by demonstrating [the supervisor’s] ‘personal participation, ... exercise of control or direction, ... failure to supervise,’ or ... ‘knowledge of the violation and acquiescence in its continuance.’ ” Dodds v. Richardson, 614 F.3d at 1195 (quoting Poolaw v. Marcantel, 565 F.3d 721, 732 (10th Cir.2009); Jenkins v. Wood, 81 F.3d 988 , 995 (10th Cir.1996)). See Mocek v. City of Albuquerque, No. CIV 11-1009 JB/KBM, 2013 WL 312881 (D.N.M. Jan. 14, 2013)(Browning, J.)(noting that supervi sors are not liable under § 1983 “ ‘unless there is an affirmative link between the constitutional deprivation and the supervisor’s exercise of control or direction, his personal participation, or his failure to su pervise’ ”)(quoting Kiesling v. Troughton, 107 F.3d 880 , 1997 WL 111256, at *2 (10th Cir.1997)(unpublished table opinion)). Because a plaintiff can hold supervisors liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires showing that the supervisor “deliberately] or consciously] cho[se],” the policies. Barney v. Pulsipher, 143 F.3d 1299, 1307-08 (10th Cir.1998) (citations omitted)(internal quotation marks omitted). Cf. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. at 404 , 117 S.Ct. 1382 (“[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also *1224 demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” (emphasis in original)).
The Tenth Circuit has recognized that Ashcroft v. Iqbal limited, but did not eliminate, supervisory liability for government officials based on an employee’s or subordinate’s constitutional violations. See Garcia v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745 , at **25-26 (D.N.M. Dec. 8, 2011)(Browning, J.)(citing Dodds v. Richardson, 614 F.3d at 1185 ). The language that may have altered the landscape for supervisory liability in Ashcroft v. Iqbal is as follows: “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” 556 U.S. at 676 , 129 S.Ct. 1937 . The Tenth Circuit in Dodds v. Richardson held:
Whatever else can be said about Iqbal , and certainly much can be said, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which “subjects, or causes to be subjected” that plaintiff “to the deprivation of any rights ... secured by the Constitution.... ”
Dodds v. Richardson, 614 F.3d at 1199 . The Tenth Circuit noted, however, that “Iqbal may very well have abrogated § 1983 supervisory liability as we previously understood it in this circuit in ways we do not need to address to resolve this case.” 614 F.3d at 1200 . It concluded that Ashcroft v. Iqbal did not alter “the Supreme Court’s previously enunciated § 1983 causation and personal involvement analysis.” Dodds v. Richardson, 614 F.3d at 1200 . More specifically, the Tenth Circuit recognized that there must be “an ‘affirmative’ link ... between the unconstitutional acts by their subordinates and their ‘adoption of any plan or policy ...—express or otherwise—showing their authorization or approval of such misconduct.’ ” 614 F.3d at 1200-01 . The specific example that the Tenth Circuit gave to illustrate this principle was Rizzo v. Goode, 423 U.S. 362 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976), where the plaintiff sought to hold a mayor, police commissioner, and other city officials liable under 42 U.S.C. § 1983 for constitutional violations that unnamed individual police officers committed. See Dodds v. Richardson, 614 F.3d at 1200 (quoting Rizzo v. Goode, 423 U.S. at 371 , 96 S.Ct. 598 ). The Tenth Circuit noted that the Supreme Court in that case found a sufficient link between the police misconduct and the city officials’ conduct, because there was a deliberate plan by some of the named defendants to “crush the nascent labor organizations.” Dodds v. Richardson, 614 F.3d at 1200 (quoting Rizzo v. Goode, 423 U.S. at 371 , 96 S.Ct. 598 ).
2. Non-Supervisory Liability.
A government actor may be liable for the constitutional violations that another committed, if the actor “set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights,” thus establishing the “requisite causal connection” between the government actor’s conduct and a plaintiffs constitutional deprivations. Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006). The Tenth Circuit has explained that § 1983 liability should be “ ‘read against the background of tort liability that makes a man responsible for the natural consequences of his actions.’ ” Mar *1225 tinez v. Carson, 697 F.3d at 1255 (quoting Monroe v. Pape, 365 U.S. 167, 187 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961)). “Thus, Defendants are liable for the harm proximately caused by their conduct.” Martinez v. Carson, 697 F.3d at 1255 (citing Trask v. Franco, 446 F.3d at 1046 ). The Tenth Circuit has found liability for those defendants who proximately caused an injury complained-of under § 1983, and that even when the “conduct of other people may have concurrently caused the harm does not change the outcome as to [Defendants],” so long as there was not a superseding, intervening cause of a plaintiffs harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir.2006).
Even if a factfinder concludes that the residential search was unlawful, the officers only “would be liable for the harm ‘proximately’ or ‘legally’ caused by their tortious conduct.” Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir.1995). “They would not, however, necessarily be liable for all of the harm caused in the ‘philosophic’ or but-for sense by the illegal entry.” Id. In civil rights cases, a superseding cause, as we traditionally understand it in tort law, relieves a defendant of liability. See, e.g., Warner v. Orange County Dep’t of Prob., 115 F.3d 1068, 1071 (2d Cir.1997); Springer v. Seaman, 821 F.2d 871, 877 (1st Cir.1987), abrogated on other grounds by Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 , 109 S.Ct. 2702 , 105 L.Ed.2d 598 (1989).
Trask v. Franco, 446 F.3d at 1046 . Additionally, “[foreseeable intervening forces are within the scope of the original risk, and ... will not supersede the defendant’s responsibility.” Trask v. Franco, 446 F.3d at 1047 (quoting William Lloyd Prosser et al., Prosser and Keeton on Torts § 44, at 303-04 (5th ed.1984)). If
the reasonable foreseeability of an intervening act’s occurrence is a factor in determining whether the intervening act relieves the actor from liability for his antecedent wrongful act, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was wrongful or foreseeable, the question should be left for the jury.
Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt. b (1965)).
For example, in the excessive force and unlawful arrest context, the Tenth Circuit has stated that government actors “may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability.” Martinez v. Carson, 697 F.3d at 1255 . The Tenth Circuit gave an example of a criminal suspect’s criminal acts superseding officers’ unlawful acts, quoting the Honorable Samuel J. Alito, Associate Justice for the Supreme Court of the United States, while he was sitting on the United States Court of Appeals for the Third Circuit:
Suppose that three police officers go to a suspect’s house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is “no.” The suspect’s conduct would constitute a “superseding” cause, see Restatement *1226 (Second) of Torts § 442 (1965), that would limit the officer’s liability. See id. § 440.
Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir.1995)).
The Tenth Circuit has found that probation officers, who summoned New Mexico State Police (“NMSP”) officers to a home, were not entitled to summary judgment absolving the probation officers for the Fourth Amendment violations the NMSP officers committed. Trask v. Franco, 446 F.3d at 1045-1047 . The Honorable W. Daniel Schneider, United States Magistrate Judge for the District of New Mexico, had found that there was “no affirmative link between Mr. Trask’s [the plaintiffs] alleged constitutional deprivations and the probation officers’ exercise of control or failure to supervise.” 446 F.3d at 1041 (internal quotations omitted). Trask alleged that the probation officers were “responsible for his detention and arrest because ... they called NMSP Officer Smith to the residence, [and] ... they falsely represented that they had lawful authority to search the residence.” 446 F.3d at 1041 . The probation officers maintained that they could not be liable for Trask’s alleged constitutional deprivations, because they “did not personally participate in Mr. Trask’s detention or arrest,” and the NMSP officers “decided to detain Mr. Trask for officer safety,” and later “arrested him for obstructing an officer,” after the NMSP officers discovered that Trask had lied to them during their search of his residence. 446 F.3d at 1041 .
The Tenth Circuit first determined that Trask’s alleged unlawful detention and arrest would not have occurred but for the probation officers’ conduct. The Tenth Circuit then explained that Trask’s “appearance at the door with knives, which required NMSP Officer Smith to handcuff him for officer safety,” was another cause of Trask’s detention and arrest. 446 F.3d at 1046-47 . The Tenth Circuit declined to find, however, that Trask’s armed appearance at the door was a “superseding act that limited the probation officer’s liability,” because the probation officers might have “reasonably foresaw when they first called for police backup” that Trask would be armed when the NMSP Officers arrived. 446 F.3d at 1047 . Thus, Trask’s appearance could have superseded the probation officer’s responsibility for his unlawful detention only “if the officers, when they called for assistance, did not reasonably foresee detention of Mr. Trask during the search.” 446 F.3d at 1047 .
Regarding Trask’s alleged unlawful arrest, the Tenth Circuit noted that Trask lying to the NMSP officers during their search was an additional cause for his arrest. The Tenth Circuit once again found, however, that the probation officers would still be liable if “it was reasonably foreseeable to the probation officers that Mr. Trask would lie or warrant arrest.” 446 F.3d at 1047 . The Tenth Circuit noted that the criminality of Trask’s lie did not preclude the probation officers from liability, as even “an intervening criminal act is not a superseding act to limit the probation officer’s liability if the criminal act was foreseeable.” 446 F.3d at 1047 . Thus, the Tenth Circuit reversed Judge Schneider’s grant of summary judgment in favor of the probation officers, and remanded for the district court to determine whether reasonable minds could differ whether the probation officer’s conduct was the proximate cause of Trask’s alleged unlawful detention and arrest. See 446 F.3d at 1047 .
Similarly, the Tenth Circuit recently held, in Martinez v. Carson, that New Mexico Department of Corrections (“NMDC”) employees, while on patrol of a high-crime neighborhood as part of a task force with Rio Rancho, New Mexico, police *1227 officers, could be liable for the Rio Rancho police’s unlawful seizure of two plaintiffs, whom the NMDC employees transferred to the custody of the Rio Rancho police officers after the NMDC employees detained the plaintiffs for only a few minutes. 697 F.3d at 1253, 1256-57 . While detaining the plaintiffs, the NMDC employees forced the plaintiffs to the ground, “handcuffed them, drew weapons, and conducted a pat-down search,” and then handed the plaintiffs over to the custody of Rio Rancho police officers, who held one plaintiff for twelve hours and the other for five hours before release. 697 F.3d at 1254 . The Honorable William P. Johnson, United States District Judge for the District of New Mexico, held that the NMDC employees were liable only for the first few minutes of the plaintiffs’ unlawful search and seizure, on the grounds that they had not “promoted, suggested, or indirectly caused or conspired with any Rio Rancho DPS personnel to violate Plaintiffs’ rights,” and did not know, and reasonably should not have known, that the plaintiffs would be deprived of a constitutional right. 697 F.3d at 1255 . The Tenth Circuit, citing Trask v. Franco, reversed Judge Johnson’s judgment, and stated that the NMSP employees “may be held liable if the further unlawful detention and arrest would not have occurred but for their conduct and if there were no unforeseeable intervening acts superseding their liability.” Martinez v. Carson, 697 F.3d at 1255 . The Tenth Circuit concluded that a reasonable jury could find that the NMSP employees’ conduct was the proximate cause “of at least some portion of Plaintiffs’ prolonged detention following Defendant’s transfer of custody to the Rio Rancho officers.” 697 F.3d at 1255 . The Tenth Circuit noted that a jury had found that the NMSP employees lacked reasonable suspicion when they detained the plaintiffs and transferred them to the Rio Rancho officers, and concluded that a reasonable jury could find that the NMSP officers “knew or should have known their illegal seizure and transfer of custody would result in Plaintiffs’ prolonged detention after the transfer of custody.” 697 F.3d at 1256 .
LAW REGARDING DUTY TO INTERVENE TO STOP A CONSTITUTIONAL VIOLATION
“An officer who fails to perform a duty may be liable under § 1983 if that failure causes deprivation of protected rights.” Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1433 (10th Cir.1984), judgment vacated on other grounds by City of Lawton v. Lusby, 474 U.S. 805 , 106 S.Ct. 40 , 88 L.Ed.2d 33 (1985). In Hall v. Burke, the Tenth Circuit made clear that an officer’s duty to intervene applies to instances involving excessive force and illegal arrests. See 12 Fed.Appx. at 861 (10th Cir.2001)(unpublished). 17 The Tenth Circuit in Hall v. Burke stated:
[WJe agree ... that it is clearly established that all law enforcement officials *1228 have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence. An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know: (1) that excessive force is being used, (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official. In order for liability to attach, there must have been a realistic opportunity to intervene to prevent the harm from occurring. Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.
12 Fed.Appx. at 861 (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994)). Accord Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir.2008)(quoting almost identical language from a decision from the United States Court of Appeals for the Second Circuit); Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir.1996)(“[A] law enforcement official who fails to intervene to prevent another law enforcement official’s use of excessive force may be liable under § 1983.”); Lusby v. T.G. & Y. Stores, Inc., 749 F.2d at 1433 (ruling that officer who did not prevent fellow officer’s use of allegedly excessive force against an arrestee “may be liable [under § 1983] if he had the opportunity to intervene but failed to do so”). An officer thus may be liable if he had the opportunity to prevent or stop a constitutional violation but failed to do so. See Lusby v. T.G. & Y. Stores, Inc., 749 F.2d at 1433 . Accord Mata v. City of Farmington, 791 F.Supp.2d 1118, 1156 (D.N.M.2011)(Browning, J.).
In Tanner v. San Juan County Sheriff’s Office, the Court held that a defendant police officer, assisting a second officer who used excessive force on the plaintiff by striking him multiple times with a flashlight, did not have a duty to intervene when she was assisting with controlling the scene and detaining the plaintiffs brother. See 864 F.Supp.2d at 1145-46 . The plaintiff alleged that, regardless whether the defendant police officer had a duty to intervene when the second officer was holding the plaintiff on a police cruiser’s hood by holding a flashlight against the plaintiffs neck, the defendant police officer had a duty to intervene once the first officer pushed the plaintiff to the ground and struck the plaintiff while he was on the ground. See 864 F.Supp.2d at 1145-46 . The Court reasoned, because she was engaged in assisting the second officer by securing others on the scene, because the first officer on had the plaintiff on the ground for about twenty seconds before arresting the plaintiff, and because the plaintiff did not show that an officer “has a ‘duty to abandon [an] attempt to arrest one potentially dangerous suspect in order to protect another potentially dangerous suspect against whom the other officers may be using excessive force,’ ” the defendant officer did not violate the plaintiffs constitutional rights. 864 F.Supp.2d at 1146 (quoting Ensley v. Soper, 142 F.3d 1402 , 1407 (11th Cir.1998))(original alterations omitted).
RELEVANT FOURTH AMENDMENT LAW
The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. The Fourteenth Amendment to the United States Constitution extends the prohibition against unreasonable search and seizures to state officers, including *1229 school officials. See New Jersey v. T.L.O., 469 U.S. 325, 334-37 , 105 S.Ct. 733 , 83 L.Ed.2d 720 (1985). “The touchstone for determining the constitutionality of a governmental search is the ‘reasonableness’ of the search.” Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d at 1184 (quoting Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. at 828 , 122 S.Ct. 2559 ). See Maryland v. King, — U.S. -, 133 S.Ct. 1958, 1969 , 186 L.Ed.2d 1 (2013)(“ ‘The Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.’ ”)(quoting Schmerber v. California, 384 U.S. 757, 768 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966)). The Supreme Court has reiterated that a warrantless search must be reasonable in its manner and scope, and that the search’s reasonableness depends on balancing legitimate governmental interests against the intrusion upon individual’s privacy:
Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution. Urgent government interests are not a license for indiscriminate police behavior. To say that no warrant is required is merely to acknowledge that “rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.” This application of “traditional standards of reasonableness” requires a court to weigh “the promotion of legitimate governmental interests” against “the degree to which [the search] intrudes upon an individual’s privacy.”
Maryland v. King, 133 S.Ct. at 1970 (citations omitted).
1. The Special-Needs Doctrine.
While “[i]n the criminal context, reasonableness usually requires a showing of probable cause,” Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. at 828 , 122 S.Ct. 2559 (citing Skinner v. Ry. Labor Execs. ’ Ass’n, 489 U.S. 602, 619 , 109 S.Ct. 1402 , 103 L.Ed.2d 639 (1989)), “in the context of safety and administrative regulations, a search unsupported by probable cause may be reasonable when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable,” Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. at 828-29 , 122 S.Ct. 2559 (internal quotation marks and citation omitted). The Supreme Court refers to this “exception[ ] to the warrant and probable-cause requirements for a search when special needs beyond the normal law enforcement make those requirements impracticable” as the “special needs doctrine.” Illinois v. Caballes, 543 U.S. 405, 425 , 125 S.Ct. 834 , 160 L.Ed.2d 842 (2005)(Ginsburg, J., dissenting)(quoting Griffin v. Wisconsin, 483 U.S. 868, 873 , 107 S.Ct. 3164 , 97 L.Ed.2d 709 (1987))(internal quotations omitted). See Kerns v. Bd. of Comm’rs of Bernalillo Cnty., 707 F.Supp.2d 1190 , 1241 n. 36 (D.N.M.2010)(Browning, J.)(“The ‘special needs’ doctrine, which has been used to uphold certain suspicionless searches performed for reasons unrelated to law enforcement, is an exception to the general rule that a search must be based on individualized suspicion of wrongdoing.”)(quoting Ferguson v. City of Charleston, 532 U.S. 67 , 79 n. 15, 121 S.Ct. 1281 , 149 L.Ed.2d 205 (2001))(internal quotations omitted), rev’d in part, vacated in part sub nom., Kerns v. Bader, 663 F.3d 1173 (10th Cir.2011).
Special needs “inhere in the public school context.” Bd. of Educ. of Indep. *1230 Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. at 828-29 , 122 S.Ct. 2559 (stating “that a warrant and finding of probable cause are unnecessary in the public school context because such requirements would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed,” and that strict adherence to the probable-cause requirement would undercut the substantial need for teachers and administrators to maintain order in the schools)(quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. at 653 , 115 S.Ct. 2386 ; New Jersey v. T.L.O., 469 U.S. at 340-41 , 105 S.Ct. 733 ). Thus, although it is well-settled that 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), “Fourth Amendment rights ... are different in public schools than elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children,” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. at 656 , 115 S.Ct. 2386 .
The Supreme Court has recognized that a search in the school context may still be reasonable without individualized 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.’ ” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. at 674 , 115 S.Ct. 2386 (O’Connor, J., dissenting)(quoting United States v. Martinez-Fuerte, 428 U.S. 543, 560 , 96 S.Ct. 3074 , 49 L.Ed.2d 1116 (1976)). See Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. at 830 , 122 S.Ct. 2559 (stating that “a finding of individualized suspicion may not be necessary when a school conducts drug testing”). The Supreme Court in New Jersey v. T.L.O. stated that the legality of a student search depends on the search’s reasonableness. See New Jersey v. T.L.O., 469 U.S. at 341-42 , 105 S.Ct. 733 . To determine a search’s reasonableness, a court must consider: (i) whether the action was justified at its inception; and (ii) whether the search was reasonably related in scope to the circumstances which justified the interference. See New Jersey v. T.L.O., 469 U.S. at 341-42 , 105 S.Ct. 733 . A student search will be justified at its inception when “there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” New Jersey v. T.L.O., 469 U.S. at 341-42 , 105 S.Ct. 733 . The search will be reasonable in scope when “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” New Jersey v. T.L.O., 469 U.S. at 342 , 105 S.Ct. 733 .
The Court has recognized that, ultimately, determining whether a student search is reasonable requires balancing the students’ privacy interest with the government’s interest in performing the search, and then determining whether the scope of the search is reasonably related to that government interest:
To determine whether a particular “type of school search is constitutionally reasonable,” a reviewing court must consider the “scope of the legitimate expectation of privacy at issue,” the “character of the intrusion that is complained of,” and the “nature and immediacy of the governmental concern at issue” and the efficacy of the means employed for dealing with it.
Herrera v. Santa Fe Pub. Sch., 792 F.Supp.2d at 1193 (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. at 654-66 , 115 S.Ct. 2386 ).
*1231 2. Controlling Supreme Court Precedent on School-Related Searches.
In Vernonia School District 47J v. Acton, the Supreme Court found that the school district’s student athlete drug policy, which authorized random urinalysis testing of students who participated in the district’s school athletics program, was reasonable and thus constitutional. See 515 U.S. at 646, 665 , 115 S.Ct. 2386 . In reaching this conclusion, the Honorable Antonin G. Scalia, Associate Justice of the Supreme Court, writing for the majority, considered the nature of the privacy interest upon which the search intruded, the intrusiveness of the search, and the nature and immediacy of the governmental concern at issue and the efficacy of the search’s means for meeting it. See 515 U.S. at 665 , 115 S.Ct. 2386 . The Supreme Court noted that, “[particularly with regard to medical examinations and procedures, therefore, ‘students within the school environment have a lesser expectation of privacy than members of the population generally.’ ” 515 U.S. at 656-57 , 115 S.Ct. 2386 (citation omitted). “Legitimate privacy expectations are even less with regard to student athletes.” 515 U.S. at 656 , 115 S.Ct. 2386 .
They require “suiting up” before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford. The locker rooms in Vernonia are typical: No individual dressing rooms are provided; shower heads are lined up along a wall, unseparated by any sort of partition or curtain; not even all the toilet stalls have doors. As the United States Court of Appeals for the Seventh Circuit has noted, there is “an element of ‘communal undress’ inherent in athletic participation,” Schaill by Kross v. Tippecanoe Cnty. Sch. Corp., 864 F.2d 1309, 1318 (1988).
515 U.S. at 657 , 115 S.Ct. 2386 . The Supreme Court also noted that there was “an additional respect in which school athletes have a reduced expectation of privacy.” 515 U.S. at 657 , 115 S.Ct. 2386 . The Supreme Court stated that, by choosing to go out for a team, students “voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally.” 515 U.S. at 657 , 115 S.Ct. 2386 .
In Vernonia’s public schools, they must submit to a preseason physical exam (James testified that his included the giving of a urine sample, App. 17), they must acquire adequate insurance coverage or sign an insurance waiver, maintain a minimum grade point average, and comply with any “rules of conduct, dress, training hours and related matters as may be established for each sport by the head coach and athletic director with the principal’s approval.” Record, Exh. 2, p. 30, ¶ 8. Somewhat like adults who choose to participate in a “closely regulated industry,” students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy.
515 U.S. at 657 , 115 S.Ct. 2386 . 18
Turning to the degree of intrusion, the Supreme Court stated that the degree of *1232 intrusion depended upon the manner in which production of the urine sample was monitored. See 515 U.S. at 658 , 115 S.Ct. 2386 . Under the district’s policy, the male students produced samples at a urinal along a wall and remained fully clothed, and were observed only from behind, if at all, and the female students produced samples in an enclosed stall, with a female monitor standing outside listening for sounds of tampering. See 515 U.S. at 658 , 115 S.Ct. 2386 . The Supreme Court stated: “These conditions are nearly identical to those typically encountered in public restrooms, which men, women, and especially school-children use daily. Under such condition

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8709856. Public record. Not legal advice.