Section 1983-Qualified Immunity - Ninth Circuit Holds That School's Strip Search of a Student Violated the Fourth Amendment under Clearly Established Law. - Redding V. Safford Unified School District No. 1

Article excerpt

Qualified immunity allows public officials to carry on their duties without the fear of liability or the burdens of litigation. (1) The Supreme Court's modern qualified immunity test asks whether a constitutional right was "clearly established" at the time of its violation by a public official such that no reasonable official could have believed his actions were lawful. (2) The Court has described this standard as giving "ample room for mistaken judgments" (3) by protecting "all but the plainly incompetent or those who knowingly violate the law." (4) Recently, in Redding v. Safford Unified School District No. 1, (5) the Ninth Circuit, sitting en banc, denied qualified immunity to a middle school assistant principal after finding that the assistant principal violated the Fourth Amendment by mandating an unreasonable strip search of a student. (6) A bare majority concluded the law was clearly established without weighing the fact that the district court, two judges on the Ninth Circuit panel, and three dissenting judges en banc thought the search was constitutional. (7) Ignoring judicial disagreement about constitutionality in the "clearly established" analysis effectively holds laypeople to a higher standard of predicting reasonableness than judges. This refusal to acknowledge dissent is thus inimical to the purposes of the doctrine, particularly in the school setting, where flexibility is highly valued. In Redding, appropriate consideration of disagreement would have led to a grant of qualified immunity--a grant in line with both the purposes of qualified immunity and other cases addressing disagreement about clearly established law.

The morning of October 8, 2003, Jordan, a student, approached Assistant Principal Wilson and alerted him that a group of students were planning to take pills during lunch. (8) Jordan produced a white pill, identified as a 400-milligram tablet of ibuprofen that is available only by prescription. (9) He stated that he had received the pill from Marissa, a fellow student. (10) Wilson brought Marissa into his office and searched her belongings. (11) The search revealed additional pills and a planner, borrowed from a student named Savana Redding, and containing knives, a cigarette, and a lighter. (12) Upon questioning, Marissa stated she had received the pills from Savana. (13) Savana was called to the principal's office, and when she arrived she saw her planner, the other items, and the pills on the principal's desk. (14) Savana explained that the items were not hers and she had never brought pills to school. (15) After futilely searching Savana's belongings for prescription drugs, Wilson instructed his secretary and the school nurse, both females, to conduct a more thorough search. (16) In the nurse's office, Savana was asked to remove her shirt and pants. (17) She was then asked to pull her bra out to the side and shake it, and to do the same with her underwear. (18) After the search failed to reveal pills, Savana dressed and returned to the office. (19)

Savana's mother filed a [section] 1983 (20) claim in the District of Arizona against the school, Wilson, his secretary, and the nurse. (21) Under Saucier v. Katz, (22) holding a state officer civilly responsible for constitutional violations requires a two-step inquiry. (23) First, the court must decide if there was a violation of a right on the facts alleged. (24) Second, the court must determine if the right was clearly established. (25) The Reddings argued that the strip search violated Savana's Fourth Amendment privacy rights against unreasonable searches and that such a right was clearly established. (26) The defendants moved for summary judgment, arguing the search was reasonable, particularly in light of the school's history of drug-related problems. (27) The district court applied the two-prong constitutionality test required by New Jersey v. T.L.O., (28) finding the search both justified at its inception and reasonable in scope. …


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