Lenora Daugherty v. Donal Campbell, Alton R. Hesson, Robert W. Starbuck, Funderburk, Rita A. Starbuck, Kevin W. Daniels, Bobby L. Chessor

DAVID A. NELSON, Circuit Judge,

dissenting.

This is a close case, but I would resolve it in favor of Warden Campbell. To do otherwise, it seems to me, is to attribute greater legal acumen to Hickman County, Tennessee, officialdom than is realistic.

The question we are required to decide is whether in January of 1988 the proposition that the United States Constitution requires a finding of reasonable suspicion before prison visits can be conditioned on the visitors’ agreeing to visual body cavity searches was a proposition so clearly established that any reasonable prison warden within the Sixth Circuit must have presumed to have known of it.

The proposition had never been endorsed by the United States Supreme Court. It had never been endorsed by our Sixth Circuit Court of Appeals. It had never been endorsed by the United States District Court for the Middle District of Tennessee, the district that includes the county (Hickman) where Warden Campbell’s prison facility is located. And, as far as I am aware, the proposition had never been en *788 dorsed by the Supreme Court of Tennessee or any lower court of that state.

The proposition had, however, been endorsed in recent years by federal courts of appeals sitting in St. Louis, Boston and New Orleans. In two of these cases the courts refused to allow the defendant prison officials to be subjected to any significant monetary liability, 1 but none of the three circuits in question had rejected the underlying proposition that prison visitors may not be asked to submit to searches comparable to that at issue in the case at bar without reasonable and particularized suspicion.

I have little doubt that most legal scholars, if asked in January of 1988 to predict whether the Sixth Circuit would take the same view, would have answered in the affirmative. 2 But ordinarily, at least, prison wardens are not legal scholars. Like many other officials charged with responsibility for the difficult nuts-and-bolts work of preserving domestic tranquility, prison wardens do not normally enjoy the advantages of a law school education and the leisure to ponder the advance sheets and speculate on how the law may or may not develop in the different circuits. As the Fifth Circuit put it in Saldana v. Garza, 684 F.2d 1159, 1165 (5th Cir.1982), cert. denied, 460 U.S. 1012 , 103 S.Ct. 1253 , 75 L.Ed.2d 481 (1983),

“[I]f we are to measure official action against an objective standard, it must be a standard which speaks to what a reasonable officer should or should not know about the law he is enforcing and the methodology of effecting its enforcement. Certainly we cannot expect our police officers to carry surveying equipment and a Decennial Digest on patrol; they cannot be held to a title-searcher’s knowledge of metes and bounds or a legal scholar’s expertise in constitutional law.” (Emphasis supplied.)

The relevant question in these qualified immunity cases is not whether a reasonable circuit judge (Bailey Aldrich, e.g.) or law professor could have believed the challenged conduct to be lawful; the question is whether a reasonable official in the position of the defendant could have believed it lawful. See Anderson v. Creighton, 483 U.S. 635, 641 , 107 S.Ct. 3034, 3039 , 97 L.Ed.2d 523 (1987), where the Court declared that “[t]he relevant question in this case ... is ... whether a reasonable officer could have believed [the conduct in question] to be lawful....” (Emphasis supplied.) See also Dominque v. Telb, 831 F.2d 673, 676 (6th Cir.1987), as quoted in Ohio Civil Service Employees Ass’n. v. Seiter, 858 F.2d 1171, 1174 (6th Cir.1988), where we suggested that the issue was whether the plaintiff’s rights “were so clearly established when the acts were committed that any officer in the defendant’s position, measured objectively, would have clearly understood that he was under an affirmative duty to have refrained from such conduct.” (Emphasis supplied.) Absent a Supreme Court or Sixth Circuit decision on point, Seiter teaches, the officer is entitled to qualified immunity unless the general ease law is so overwhelming as to “leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional *789 grounds, would be found wanting.” 858 F.2d at 1177 . I do not read the general case law in this area as having that powerful an effect.

In Bell v. Wolfish, 441 U.S. 520 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979), as the Supreme Court noted in Block v. Rutherford, 468 U.S. 576, 587-88 , 104 S.Ct. 3227, 3233 , 82 L.Ed.2d 438 (1984), the Court, dealing with a prison policy that required body cavity searches of all prisoners after contact with visitors,

“sustained against a Fourth Amendment challenge the practice of conducting routine body cavity searches following contact visits, even though there had been only one reported attempt to smuggle contraband into the facility in a body cavity. 441 U.S. at 558-560 [ 99 S.Ct. at 1884-1885 ]. The purpose of the cavity searches in Wolfish was to discover and deter smuggling of weapons and contraband, which was found to be a by-product of contact visits. Given the security demands and the need to protect not only other inmates but also the facility’s personnel, we did not regard full body cavity searches [without particularized suspicion] as excessive.” (Emphasis supplied.)

Wolfish reminds us that “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” 441 U.S. at 559 , 99 S.Ct. at 1884 . The particular search with which we are concerned here, according to the plaintiffs own complaint, was ordered by Warden Campbell to determine whether the plaintiff was in possession of narcotics. There is no allegation in the complaint that the warden acted out of personal animosity or any other ulterior motive; as far as the complaint discloses, he simply wanted to make sure that the plaintiff did not bring narcotics into the prison. “We can take judicial notice that the unauthorized use of narcotics is a problem that plagues virtually every penal and detention center in the country.” Block v. Rutherford, 468 U.S. at 588-89 , 104 S.Ct. at 3233-34 . The Supreme Court has repeatedly reaffirmed, moreover, “the very limited role that courts should play in the administration of detention facilities.” Id. at 584 , 104 S.Ct. at 3231-32 .

If Warden Campbell did not, in fact, have reasonable grounds to suspect the plaintiff of trying to conceal narcotics on her person — and it remains to be seen, of course, whether he actually had such grounds or whether probable cause for the search actually existed — the warden obviously made a mistake in ordering that the plaintiff be subjected to a body cavity search. It would have been a mistake regardless of any constitutional considerations, because the applicable regulations permitted such searches only in cases of probable cause. But a mistake in applying the regulations is not ipso facto a violation of the Constitution — and absent a definitive pronouncement on the constitutional question by the Supreme Court or the Sixth Circuit, I am not satisfied that the warden’s mistake should subject him to personal liability for damages. “In an extraordinary case,” Seiter teaches, it may be possible for the decisions of other courts to provide the clearly established law that is necessary to overcome the defense of qualified immunity. 858 F.2d at 1177 . In today’s world, unfortunately, the circumstances that led Warden Campbell to order the search at issue here can hardly be considered “extraordinary.” I would therefore reverse the order of the district court and direct the entry of summary judgment for Warden Campbell on the ground of qualified immunity.

. In Hunter v. Auger, 672 F.2d 668 (8th Cir.1982), which was decided before the Supreme Court's enunciation of the qualified immunity doctrine in Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), the Eighth Circuit declared that it would not allow an award of more than nominal damages. A subsequent Eighth Circuit decision, Smothers v. Gibson, 778 F.2d 470 (8th Cir.1985), reversed a summary judgment for the defendants without imposing any such restriction. In Thorne v. Jones, 765 F.2d 1270 (5th Cir.1985), cert. denied, 475 U.S. 1016 , 106 S.Ct. 1198 , 1199, 89 L.Ed.2d 313 (1986), where the Fifth Circuit held that the defendant officials were entitled to prevail on qualified immunity grounds, the court noted that "in our Circuit portions of [the law in this area] become 'clearly established’ only today.” Id. at 1277. Blackburn v. Snow, Til F.2d 556 (1st Cir.1985), upheld an award of substantial damages against the defendant officials, but Judge Bailey Aldrich, who dissented, maintained that his two colleagues on the First Circuit were committing "deep and conclusive error” in rejecting the claim of qualified immunity. Id. at 575.

. Dicta in Long v. Norris, 929 F.2d 1111, 1116 (6th Cir.1991), a case decided more than three years later, support this conclusion.