MEMORANDUM OPINION AND ORDER1

JAMES O. BROWNING, District Judge.

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

FACTUAL BACKGROUND

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

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

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

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

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

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

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

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

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

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

"SFPS and its administrative personnel determined what security services were needed at SFPS school locations and school-sponsored events and SFPS administrative personnel instructed ASI security officers regarding expected conduct in day-to-day operations"; despite this general instruction, no one at CHS supervised ASI New Mexico officers on a day-to-day basis. MSJ ¶ 16, at 5 (setting forth unmodified version of this fact). See ASI New Mexico's Gutierrez Depo. at 74:12-75:16; id. at 86:15-87:16; ASI New Mexico's Romero Depo. at 25:1-14; id. at 26:12-25; id. at 37:19-38:5; id. at 43:25-45:20; id. at 48:3-11; id. at 68:19-69:7; SFPS-ASI New Mexico Proposal at 2; Vol. I ASI New Mexico's Johnson Depo. at 71:2-11; Deposition of Michael Hagele at 13:24-14:4 (taken May 7, 2012), filed March 3, 2014 (Doc. 182-5)("ASI New Mexico's Hagele Depo."); id. at 21:16-22:5; id. at 23:9-18; id. at 25:4-26:2; id. at 56:11-57:11; Plaintiffs' Romero Depo. at 68:13-69:1218 See also Response ¶ 18, at 11 ("SFPS did not supervise the day-to-day activities of the ASI guards." (citing Plaintiffs' Romero Depo. at 68:13-69:12)).19 "At Capital High School, the primary direction SFPS gives to ASI occurs at a meeting at the beginning of the year and during quarterly meetings with ASI's supervisory personnel and does not occur on a daily basis." Response ¶ 19, at 11-12 (setting forth this fact). See Plaintiffs' Romero Depo. at 42:13-18; id. at 44:4-45:8.20

"SFPS set qualifications that ASI security officers had to meet before they could be assigned to work at the schools"; Santa Fe Schools did not, however, independently verify whether the guards were trained in accordance with contractual requirements. MSJ ¶ 17, at 10 (setting forth unmodified version of this fact). See SFPS-ASI New Mexico Proposal at 3; Vol. I Plaintiffs' Gutierrez Depo. at 97:7-17.21 "On more than one occasion, SFPS administrators required that ASI reassign a specific security officer and not use that security officer to provide any services to SFPS and its schools." MSJ ¶ 18, at 6; Johnson Aff. ¶ 7, at 2. See ASI New Mexico's Gutierrez Depo. at 61:17-63:12; ASI New Mexico's Hagele Depo. at 39:10-40:11.22 "In providing security services under its contract with SFPS, ASI was required to enforce SFPS's official Code of Conduct for its high schools and follow post orders for each high school as established or approved by SFPS administrative personnel." MSJ ¶ 19, at 6 (setting forth this fact). See ASI New Mexico's Romero Depo. at 48:3-15; ASI New Mexico's Archuleta Depo. at 54:16-58:5; id. at 176:23-177:9; Santa Fe High School Post Orders passim (no date provided), filed March 3, 2014 (Doc. 182-4); Deposition of Daniel Aguilar at 50:1-15 (taken March 8, 2012), filed March 3, 2014 (Doc. 182-7)("ASI New Mexico's Aguilar Depo."); Response ¶ 19, at 3 (not disputing this fact).23 ASI New Mexico also maintained its own policies and procedures for providing security for Santa Fe Schools that reflected Santa Fe Schools' expectations. See Response ¶ 19, at 3 (setting forth unmodified version of this fact); Pat-Down Guidelines passim; Standard Operating Procedures passim (undated), filed March 20, 2014 (Doc. 193-21); SOP for Pat Downs passim (undated), filed March 20, 2014 (Doc. 193-22); SOP for Conducting a Search (undated), filed March 20, 2014 (Doc. 193-23).24

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

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

"Before ASI began providing security services for SFPS, Susan Lujan was instructed on how to perform pat-down searches on students while she was working at Capshaw Middle School and performed pat-down searches on students while she was an assistant principal or principal at Capshaw Middle School." MSJ ¶ 24, at 7 (setting forth this fact). See Deposition of Susan Lujan at 14:1-15:25 (taken April 20, 2012), filed March 4, 2014 (Doc. 182-10)("ASI New Mexico's Lujan Depo."); id. at 72:22-74:3; id. at 190:7-194:5; Response ¶ 24, at 4.28 "At least as of 2003, and before ASI began providing security services for SFPS in 2004, SFPS had required that all students attending the annual proms at its high schools undergo pat-down searches by security officers." MSJ ¶ 25, at 7 (setting forth this fact). See ASI New Mexico's Romero Depo. at 10:3-22; id. at 53:9-54:2; id. at 107:1-12; id. at 138:19-139:8; ASI New Mexico's Archuleta Depo. at 133:2-3; id. at 134:7-11; Johnson Aff. ¶ 8, at 2; Vol. I ASI New Mexico's Johnson Depo. at 20:14-18; id. at 124:20-25; Deposition of Rose Lucero at 28:19-29:24 (taken May 15, 2012), filed March 3, 2014 (Doc. 182-11)("ASI New Mexico's Lucero Depo."); id. at 43:12-44:4; Response ¶ 25, at 4 (not disputing this fact).

"SFPS administration established the practice of performing pat-down searches on all students attending prom or other afterschool events at Santa Fe High School or Capital High." MSJ ¶ 26, at 8 (setting forth this fact). See ASI New Mexico's Gutierrez Depo. at 123:4-9; ASI New Mexico's Romero Depo. at 52:16-54:2; Johnson Aff. ¶ 8, at 2; Vol. I ASI New Mexico's Johnson Depo. at 84:10-22; id. at 89:14-22; id. at 124:20-25.29 "At the beginning of its contract with ASI, SFPS and then-Superintendent Rendon instructed ASI that pat-down searches were to be conducted of all students entering SFPS dances." Response ¶ 26, at 12 (setting forth this fact). See Vol. II Plaintiffs' Archuleta Depo. at 168:2-169:8; id. at 182:2-11; Vol. I Plaintiffs' Johnson Depo. at 84:10-85:12; id. at 89:12-22; Reply at 24-25 (not disputing this fact).30

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

"ASI trained its employees to follow the written `Pat-Down Guidelines' when performing searches at SFPS events." Response ¶ 29, at 13 (setting forth this fact). See Vol. I Plaintiffs' Johnson Depo. at 73:18-25; Reply at 24-25 (not disputing this fact).34 "The Pat Down Guidelines were created by ASI for the school setting, but not necessarily for SFPS." Response ¶ 30, at 13. See Vol. II Plaintiffs' Gutierrez Depo. at 214:24-215:4.35 "The Pat Down Guidelines require bra searches of female subjects in which the front of the bra is pulled away from the body." Response ¶ 31, at 13. See Pat-Down Guidelines at 1; Reply ¶¶ 31-33, 42, & 52, at 25-26 (not disputing this fact).36 "The ASI guard who conducted the pat-downs on Plaintiffs, Rebecca Reyes, interpreted the bra pulling instruction in the Pat Down Guidelines as requiring her to have students `grab their front bra and shake the bra.'" Response ¶ 32, at 13 (citing Statement of Cpl. Rebecca Reyes at 1 (no date provided), filed March 20, 2014 (Doc. 193-26)); Reply ¶¶ 31-33, 42, & 52, at 25-26 (not disputing this fact).37 "The Pat Down Guidelines indicate that it is `important to be vigilant' and state that students have hidden contraband on `the inside of their legs.'" Response ¶ 33, at 13 (quoting Pat-Down Guidelines at 1). See Reply ¶¶ 31-33, 42, & 52, at 25-26 (not disputing this fact).38

"The principals of Capital High School and Santa Fe High School reviewed the written Pat Down Guidelines." Response ¶ 34, at 13 (setting forth this fact). See Vol. II Plaintiffs' Gutierrez Depo. at 213:13-214:11; id. at 215:5-9; Reply at 24-25 (not disputing this fact).39 "The Pat Down Guidelines are consistent with the training SFPS administrators received regarding SFPS's pat-down procedure." Response ¶ 35, at 13 (setting forth this fact). See Vol. II Plaintiffs' Gutierrez Depo. at 216:16-217:4; Reply at 24-25 (not disputing this fact).40 "Superintendent Gutierrez has no objection to any aspect of the Pat Down Guidelines." Response ¶ 36, at 13 (setting forth this fact). See Vol. II Plaintiffs' Gutierrez Depo. at 217:5-14; Reply at 24-25 (not disputing this fact).41 "SFPS officials reviewed and were familiar with ASI's pat-down methods." Response ¶ 37, at 13 (setting forth this fact). See Plaintiffs' Romero Depo. at 48:16-49:19; Reply at 24-25 (not disputing this fact).42 "ASI trained SFPS officials on providing security in the school setting, including how to conduct pat-downs." Response ¶ 38, at 13 (setting forth this fact). See Plaintiffs' Romero Depo. at 50:2-9; id. at 128:19-129:15; id. at 166:12-18.43 "ASI educated SFPS officials on necessary security measures and procedures." Response ¶ 39, at 13. See Vol. II Plaintiffs' Gutierrez Depo. at 225:11-226:9.44 "ASI participated in a collaborative manner in the amending of post orders that defined the methods of providing security at the various school sites." Response ¶ 40, at 14 (setting forth this fact). See Vol. I Plaintiffs' Archuleta Depo. at 55:20-56:22.45 "The same search procedures, which included pat-downs of all students, were followed at Santa Fe High School and Capital High School proms every year for at least sixteen consecutive proms." Response ¶ 41, at 14 (setting forth this fact). See Vol. II Plaintiffs' Archuleta Depo. at 168:2-169:8; id. at 244:2-20; Plaintiffs' Romero Depo. at 53:9-54:2; id. at 138:19-139:8; Deposition of Michael Hagele at 75:5-12 (taken May 17, 2012), filed March 20, 2014 (Doc. 193-7)("Plaintiffs' Hagele Depo."); id. at 77:6-16; id. at 78:6-16; id. at 86:22-87:5; Reply at 24-25 (not disputing this fact).46 "Bra searches of female students were part of the SFPS school dance standard pat-down search practice." Response ¶ 42, at 14 (setting forth this fact). See Plaintiffs' Lucero Depo. at 28:19-25; id. at 35:6-12; Vol. I Plaintiffs' Reyes Depo. at 60:6-61:22; id. at 62:1-13; Reply ¶¶ 31-33, 42, & 52, at 25 (not disputing this fact).47

3. The Searches Conducted at the 2011 CHS Prom.

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

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

"Principal Romero directed ASI to perform standard pat-down searches of all attendees of the Capital High prom on April 16, 2011," MSJ ¶ 28, at 8 (setting forth this fact); that is, "the same pat-downs, wanding, and possession searches that were part of SFPS's customary practice," Response ¶ 45, at 14 (setting forth this fact). See ASI New Mexico's Romero Depo. at 130:17-132:20; id. at 137:18-139:24; Affidavit of Melanie Romero ¶ 3, at 1 (executed November 12, 2012), filed November 13, 2012; Response ¶ 28, at 4 (not disputing this fact).51 "Principal Romero directed that the pat-down searches for the 2011 Capital High prom be performed in the lobby area of the Santa Fe Convention Center with separate lines for males and females and" played a role in assigning certain responsibilities. MSJ ¶ 33, at 5 (setting forth this fact). See ASI New Mexico's Gutierrez Depo. at 227:2-17; ASI New Mexico's Romero Depo. at 130:17-132:24; id. at 139:9-140:8; id. at 165:13-24; ASI New Mexico's Lucero Depo. at 47:25-48:9; ASI New Mexico's Clarke Depo. at 81:14-25.52 "Principal Romero directed that ASI perform the pat-down searches at the 2011 Capital High prom on all attendees in a manner consistent with established SFPS past practices." MSJ ¶ 34, at 10 (setting forth this fact). See ASI New Mexico's Romero Depo. at 137:18-139:24; Johnson Aff. ¶ 8, at 2; Vol. I Johnson Depo. at 106:6-15; Romero Aff. ¶¶ 2-4, at 1-2; id. ¶ 8, at 2; Response ¶ 34, at 5 (not disputing this fact). "Principal Romero was responsible for ensuring that both school personnel and ASI security officers at the 2011 Capital High prom followed proper search protocols." MSJ ¶ 35, at 10 (setting forth this fact). See ASI New Mexico's Romero Depo. at 139:9-24; Romero Aff. ¶ 8, at 2; id. ¶ 11, at 3; id. ¶ 14, at 3.53 "Principal Romero had the power to intervene and stop ASI security officers from performing pat-down searches at the 2011 Capital High prom in a manner that was inconsistent with SFPS protocol, past practices, or otherwise improper in her judgment." MSJ ¶ 36, at 10 (setting forth this fact). See ASI New Mexico's Romero Depo. at 236:16-240:5; Romero Aff. ¶ 11, at 3; Response ¶ 36, at 5 (not disputing this fact).54 "At the Capital High School prom, the highest ranking ASI official, who was present, understood that it was his and ASI's lead guard's responsibility for ensuring that all of the ASI staff were meeting their expectations and fulfilling their job responsibilities." Response ¶ 46, at 14 (setting forth this fact). See Vol. II Archuleta Depo. at 173:21-174:3; Plaintiffs' Aguilar Depo. at 104:12-105:14; Reply ¶ 46, at 25 (not disputing this fact).55 "ASI performed pat-down searches on all attendees of the 2011 Capital High prom because Principal Romero directed it to do so." MSJ ¶ 37, at 10 (setting forth this fact). See ASI New Mexico's Romero Depo. at 132:7-20; Vol. I ASI New Mexico's Johnson Depo. at 84:10-85:15; id. at 89:14-22; id. at 106:6-15; Romero Aff. ¶ 2, at 1; id. ¶ 6, at 2; id. ¶ 8, at 2.56 "Principal Romero asked ASI to perform pat-down searches of each of the attendees of the 2011 Capital High prom for the health, safety, and welfare of all attendees at the prom, and ASI believed the searches helped promote a safe prom experience for attendees." MSJ ¶ 45, at 12 (setting forth this fact). See ASI New Mexico's Archuleta Depo. at 112:3-23; id. 117:9-19; id. 126:14-127:8; Romero Aff. ¶ 3, at 2.57

"Female ASI security officers, Rebecca Reyes and Sandra Vigil, performed the pat-down searches on female attendees of the 2011 Capital High prom after the attendees entered the Santa Fe Convention Center." MSJ ¶ 29, at 8 (setting forth this fact). See Complaint ¶ 27, at 8; id. ¶ 40, at 9; Romero Aff. ¶ 12, at 3; Deposition of Candice Herrera at 114:16-115:14 (taken July 27, 2012), filed March 3, 2014 (Doc. 182-13)("ASI New Mexico's C. Herrera Depo."); Videotaped Deposition of Tiffany Herrera at 58:16-23 (taken August 12, 2012), filed March 3, 2014 (Doc. 182-14)("ASI New Mexico's T. Herrera Depo."); Deposition of Ashley Hurtado at 115:23-116:9 (taken August 13, 2012), filed March 3, 2014 (Doc. 182-14)("ASI New Mexico's Hurtado Depo."); Deposition of Arianna London at 118:11-22 (taken August 24, 2012), filed March 3, 2014 (Doc. 182-16)("ASI New Mexico's London Depo."); id. at 119:22-120:19; Vol. I Deposition of Rebecca Reyes at 85:19-21 (taken May 8, 2012), filed March 3, 2014 (Doc. 182-17)("Vol. I ASI New Mexico's Reyes Depo."); Deposition of Sandra Vigil at 46:21-47:2 (taken July 24, 2012), filed March 3, 2014 (Doc. 182-18)("ASI New Mexico's Vigil Depo."); Response ¶ 29, at 8 (stating that this fact is "[u]ndisputed").58 Reyes and "Vigil also performed wand searches." Response ¶ 30, at 4 (citing Plaintiffs' Aguilar Depo. at 136:1-7).59 "Reyes was instructed by the lead guard at the 2011 Capital High School prom to conduct pat-downs on students entering the prom." Response ¶ 55, at 15 (setting forth this fact). See Vol. I Plaintiffs' Reyes Depo. at 62:25-64:9; Reply passim (not responding to this fact). "At the time of the Capital prom, Rebecca Reyes was on-duty and had been assigned to conduct security at the 2011 Capital High School prom along with a host of other ASI security personnel." Response ¶ 56, at 16 (setting forth this fact). See Plaintiffs' Aguilar Depo. at 175:14-176:9; Reply at 24-25 (not disputing this fact).60 "Rebecca Reyes knew it was inappropriate to touch students in the breast area." Response ¶ 58, at 16 (setting forth this fact). See Vol. I Plaintiffs' Reyes Depo. at 108:5-15; Reply ¶ 58, at 30 (not disputing this fact).61 "Reyes admits she patted down bare arms, had students pull their bras away from their bodies and shake them, and conducted the pat-downs with her palms open facing toward the student." Response ¶ 59, at 16 (setting forth this fact). See Vol. I Plaintiffs' Reyes Depo. at 59:5-25; id. at 60:14-61:7; id. at 73:14-21; Reyes Statement at 1.62 "Reyes acknowledged that conducting a pat-down of bare arms in search of contraband was `stupid, because, you know, you can see their bare skin. There's nothing there.'" Response ¶ 60, at 17 (setting forth this fact)(quoting Vol. I Plaintiffs' Reyes Depo. at 71:24-72:8).63

"SFPS personnel, including Principal Romero, worked alongside ASI security officers in performing searches at the 2011 Capital High prom. Rose Lucero, the athletic department secretary at Capital High, wanded the female attendees. Other Capital High and/or SFPS personnel, along with Principal Romero, searched female attendees' bags and purses." MSJ ¶ 30, at 9 (setting forth these facts). See ASI New Mexico's Romero Depo. at 134:23-135:1; id. at 139:18-141:23; id. at 142:19-22; id. at 145:14-20; id. at 146:24-147:3; id. at 149:16-21; id. at 151:3-11; Electronic Mail Transmission from Melanie Romero to Bobbie Gutierrez (dated May 23, 2011), filed March 3, 2014 (Doc. 182-2); ASI New Mexico's Lucero Depo. at 9:1-12; id. at 54:7-10; id. at 54:22-25; ASI New Mexico's C. Herrera Depo. at 148:6-19.64 "Female students' bras were pulled and shaken or otherwise searched at the 2011 Capital High School prom as part of the pat-down search." Response ¶ 52, at 15 (setting forth this fact). See Vol. I Plaintiffs' Reyes Depo. at 60:6-61:22; id. at 62:1-13; id. at 114:24-115:9; Plaintiffs' Lucero Depo. at 28:19-25; id. at 58:16-19; id. at 59:3-9; id. at 64:22-24; id. at 130:8-23; id. at 131:6-12; Vol. II Plaintiffs' Gutierrez Depo. at 246:14-21; Plaintiffs' Aguilar Depo. at 167:11-16; Reply ¶ 52, at 25 (not disputing this fact).65

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

"ASI's Policy Manual contained no policy establishing or requiring that, as a matter of standard ASI procedures, ASI security officers perform pat-down searches on all attendees of school events at which ASI provided security services." MSJ ¶ 38, at 10 (setting forth this fact). See ASI New Mexico's Archuleta Depo. at 64:25-65:13; ASI New Mexico's Aguilar Depo. at 44:10-16; Policy Manual for Associated Security Industries (no date provided), filed March 3, 2014 (Doc. 181-1)("ASI Policy Manual"); Response ¶ 38, at 5 (not disputing this fact). "ASI had no policy or pat-down guideline of its own that directed ASI security officers to touch the breasts or breast area, touch bare or exposed skin, or directly touch middle, upper or inner thighs as part of a standard pat-down search." MSJ ¶ 39, at 10 (setting forth this fact). See Archuleta Depo. at 138:2-139:8; Standard Opporating [sic] Procedures at 1 (no date provided), filed March 3, 2014 (Doc. 1825-4); SOP for Pat Downs at 1 (no date provided), filed March 3, 2014 (Doc. 182-4); SOP for Conducting a Search at 1 (undated), filed March 3, 23014 (Doc. 182-4); Pat-Down Guidelines at 1.66

"ASI neither received, nor followed, any policy or guideline from SFPS that directed ASI security officers to touch the breasts or breast area, touch bare or exposed skin, or directly touch middle, upper or inner thighs as part of a standard pat-down search." MSJ ¶ 40, at 10-11 (setting forth this fact). See ASI New Mexico's Archuleta Depo. at Depo. at 138:2-139:8; id. at 142:18-143:7; id. at 144:6-145:14; ASI New Mexico Policy Manual passim; Response ¶ 40, at 5 (not disputing this fact). "ASI security officers, like school employees, performed searches on students only when specifically authorized or requested to do so by SFPS administrative personnel and sometimes SFPS administrative personnel performed the pat-down searches on students at the schools." MSJ ¶ 41, at 11. See ASI New Mexico's Romero Depo. at 55:21-56:22; ASI New Mexico's Archuleta Depo. at 64:25-66:3; Vol. I ASI New Mexico's Johnson Depo. at 114:3-12; id. at 119:7-14;67 ASI New Mexico's Hagele Depo. at 43:18-44:3; id. at 45:7-46:3; ASI New Mexico's Aguilar Depo. at 44:10-16; id. at 45:23-46:3; ASI New Mexico's Lujan Depo. at 14:1-15:2; id. at 72:22-74:3; id. at 75:4-12; ASI New Mexico's Padilla Depo. at 22:11-20.68

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

MSJ ¶ 43, at 11 (setting forth unmodified version of this fact). See ASI New Mexico's Romero Depo. at 101:10-102:5; id. at 102:18-104:14; id. at 105:3-106:6; ASI New Mexico's Archuleta Depo. at 112:3-23; id. at 115:18-116:19; id. at 126:14-127:8; id. at 130:11-15; id. at 130:24-132:3; Romero Aff. ¶¶ 3-4, at 1-2.70 "Principal Romero and others believed it was reasonable and necessary to perform pat-down searches of all prom attendees because there is a history of students and event attendees hiding banned items to take those items into events." MSJ ¶ 44, at 11 (setting forth this fact). See ASI New Mexico's Romero Depo. at 101:10-104:1; id. at 168:18-169:8;71 Archuleta Depo. at 112:3-23; id. at 113:7-21; id. at 115:14-116:19; Clarke Depo. at 33:5-25; id. at 68:13-69:24; id. at 80:9-20; id. at 106:17-108:16; Romero Aff. ¶ 3, at 1.72

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

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

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

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

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

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

MSJ ¶ 48, at 12 (setting forth unmodified version of this fact). See ASI New Mexico's C. Herrera Depo. at 198:4-200:9; id. at 201-4-15; id. at 204:5-20; Videotaped Deposition of Candice Herrera at 201:4-9 (taken July 27, 2012), filed March 20, 2014 (Doc. 193-8)("Plaintiffs' C. Herrera Depo."); id. at 203:17-204:4.78

The security guard

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

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

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

MSJ ¶ 53, at 14 (setting forth this fact). See ASI New Mexico's C. Herrera Depo. at 205:2-207:9; id. at 233:21-234:24; Response ¶ 53, at 7 (not disputing this fact).84 C. "Herrera felt exposed and uncomfortable with her dress pulled up." Response ¶ 2, at 10 (citing Plaintiffs' C. Herrera Depo. at 177:15-178:3).85 She "did not know how to react when her breasts were touched during her pat-down search, especially because of the guard's position of authority." Response ¶ 4, at 9 (citing Plaintiffs' C. Herrera Depo. at 130:3-11). See Reply at 24 (not disputing this fact).86 "The experience of being searched left Candice Herrera feeling ... violated and exposed." Response ¶ 11, at 11 (setting forth unmodified version of this fact). See Plaintiffs' C. Herrera Depo. at 180:11-181:11; Reply at 24 (not disputing this fact).87 "The presence" and evident approval of school administrators made the situation "that much more uncomfortable." Plaintiffs' C. Herrera Depo. at 180:11-181:11.88 She "continues to worry about the possibility of people touching her." Response ¶ 13, at 11. See Plaintiffs' C. Herrera Depo. at 204:25-207:9; Reply at 24 (not disputing this fact).89

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

b. T. Herrera's Awareness of SFPS' Search Policy; Her Search; Its Effects.

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

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

The security guard

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

MSJ ¶ 59, at 15-16 (setting forth these facts) (citations omitted). See ASI New Mexico's T. Herrera Depo. at 60:24-61:19; id. at 62:8-19; id. at 63:15-64:3; id. at 65:11-67:7; id. at 69:5-11; id. at 121:24-122:4; id. at 125:4-17; Response ¶ 59, at 15-16 (stating that this fact is "[u]ndisputed"). "Plaintiff T. Herrera did not object to undergoing a pat-down search at the 2011 Capital High prom, or complain regarding its scope, at the time of the search." MSJ ¶ 58, at 15 (setting forth this fact). See ASI New Mexico's Romero Depo. at 241:13-242:2; ASI New Mexico's Lucero Depo. at 60:15-25; id. at 84:14-21; id. at 143:16-19; id. at 148:18-149:1; Romero Aff. at ¶ 14; ASI New Mexico's T. Herrera Depo. at 67:4-10; id. at 183:17-184:7.93

"T. Herrera describes the pat-down search that allegedly included the security officer touching T. Herrera's breast area and touching her bare skin as improper[,] because," among other reasons, "`they shouldn't have done such an invasive search.'" MSJ ¶ 57, at 15 (setting forth unmodified version of this fact)(quoting ASI New Mexico's T. Herrera Depo. at 74:13-17). See ASI New Mexico's T. Herrera Depo. at 62:5-64:24; id. at 74:13-17; Plaintiffs' T. Herrera Depo. 183:7-16; id. at 190:13-191:6.94 She "described her search as `extremely uncomfortable' and indicated that she `felt violated, disrespected.'" Response ¶ 4, at 10 (quoting Plaintiffs' T. Herrera Depo. at 86:19-25). See Reply at 24 (not disputing this fact).95

MSJ ¶ 60, at 16-17 (setting forth these facts) (citations omitted). See ASI New Mexico's T. Herrera Depo. at 6:5-14; id. at 8:23-12:7; id. at 13:5-20; id. at 13:21-14:13; id. at 101:16-103:18; id. at 152:17-153:7; id. at 159:11-160:6; id. at 161:1-16; id. at 160:9-25; ASI New Mexico's Gurule-Leyba Depo. at 82:23-25.96

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

c. Hurtado's Knowledge of SFPS' Search Policy; Her Search; Its Effects.

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

MSJ ¶ 65, at 18 (setting forth this fact). See ASI New Mexico's Hurtado Depo. at 117:25-118:24; id. at 134:14-23; Response ¶ 65, at 8 (stating that this fact is "[u]ndisputed").101 "Hurtado did not object to undergoing a pat-down search at the 2011 Capital High prom, or complain regarding its scope" to Romero or to the guards "at the time of the search." MSJ ¶ 66, at 18 (setting forth this fact). See ASI New Mexico's Romero Depo. at 241:13-242:2; ASI New Mexico's Lucero Depo. at 60:15-25; id. at 84:14-21; id. at 143:16-19; id. at 148:18-149:1; Romero Aff. ¶ 14, at 3; ASI New Mexico's Hurtado Depo. at 135:9-21; id. at 145:19-25.102

The security guard

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

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

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

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

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

d. London's Knowledge of SFPS' Search Policy; Her Search; Its Effects.

"London was pat-down searched her sophomore year in attending homecoming at Rio Grande High School in Albuquerque, and in attending concerts, and had no objection to the pat-down searches performed at those venues." MSJ ¶ 71, at 19-20 (setting forth this fact). See ASI New Mexico's London Depo. at 181:14-185:11; id. at 186:10-18; Response ¶ 71, at 8 (not disputing this fact).111 "London did not object to undergoing a pat-down search at the 2011 Capital High prom, or complain regarding its scope, at the time of the search." MSJ ¶ 72, at 20 (setting forth this fact). See ASI New Mexico's Romero Depo. at 241:13-242:2; ASI New Mexico's Lucero Depo. at 60:15-25; id. at 84:14-21; id. at 143:16-19; id. at 148:18-149:1; Romero Aff. ¶ 14, at 3; London Depo. at 134:25-135:24.112

The security guard

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

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

MSJ ¶ 74, at 21 (citations omitted)(setting forth these facts). See ASI New Mexico's London Depo. 11:9-14:9; id. at 18:3-20:12; id. at 135:10-137:17; id. at 140:2-10; id. at 150:18-152:6; id. at 156:13-157:22; id. at 160:10-161:17; id. at 162:9-12; id. at 171:7-19; id. at 172:4-175:2; id. at 176:11-177:8.114

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

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

Ms. Reyes does not know the Plaintiffs. See Plaintiffs' Reyes Depo. Vol. II at 47:15-20.118

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

MSJ ¶ 81, at 24 (setting forth this fact). See ASI New Mexico's Archuleta Depo. at 138:2-139:8; Standard Opporating [sic] Procedures at 1; SOP for Pat Downs at 1; SOP for Conducting a Search; Pat-Down Guidelines; Policy Manual for Associated Security Industries passim; ASI New Mexico's Johnson Depo. at 73:18-23.119

PROCEDURAL BACKGROUND

Plaintiffs allege that:

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

MSJ ¶ 79 at 24 (setting forth this fact)(citing Complaint passim).121 "Plaintiffs' prima facie tort claim rests on the same allegations that form the bases for their other claims against ASI in the Second Amended Complaint." MSJ ¶ 80, at 24.122

1. The Complaint; Previous Memorandum Opinions.

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

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

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

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

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

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

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

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

MSJ at 28-29.

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

MSJ at 31.

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

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

ASI New Mexico also asserts that it "cannot be held vicariously liable for unconstitutional searches that were allegedly performed negligently in providing requested contractual services." MSJ at 35 (bold and capitalization altered for readability). It expands:

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

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

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

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

MSJ at 38-41 (record citations omitted).

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

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

MSJ at 44-46 (record citations omitted).

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

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

MSJ at 48-51 (record citations omitted).

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

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

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

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

MSJ at 55-57 (record citations omitted).

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

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

MSJ at 58 (record citations omitted).

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

Response at 19.

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

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

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

The Plaintiffs first distinguish Montoya v. Board of Education:

Response at 24-25.

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

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

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

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

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

Response at 28.

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

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

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

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

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

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

Response at 40 (record citations omitted).

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

Response at 41-42 (selected record citations omitted).

The Plaintiffs also argue that, because Johnson ratified Reyes' conduct, ASI New Mexico is liable under Monell:

Response at 43.

The Plaintiffs then turn to the NMTCA argument, and contend that it has "four fatal flaws": (i) it contradicts ASI New Mexico's state-action argument; (ii) "because ASI is a corporation and not an individual, the appropriate analysis under the NMTCA is whether ASI is an instrumentality of the state, which it is not, rather than whether ASI is a public employee"; (iii) even under the public-employee standard, ASI New Mexico is liable, because it is an independent contractor and not a public employee; (iv) "even if ASI were a public employee, it would be liable under the NMTCA waiver of immunity for public employees operating a building." Response at 43. As for the first argument, the Plaintiffs note the arguable inconsistency in ASI New Mexico's argument; they also point out that their own argument is internally consistent: all public employees are state actors, but not all individuals possibly liable under § 1983 are public employees. See Response at 44-45. For the second argument, the Plaintiffs contest ASI New Mexico's analytical framework:

Response at 45-46.

Further, in the Plaintiffs' view, even if it is appropriate to analyze Santa Fe Public Schools' and ASI New Mexico's relationship under the NMTCA's public-employee provision, ASI New Mexico is an independent contractor and not a public employee. See Response at 46. The Plaintiffs point out that: (i) the contract expressly states that ASI New Mexico employees are not independent contractors; (ii) the contract states that NMTCA limits Santa Fe Schools' liability, but says nothing about the NMTCA's application to ASI New Mexico; (iii) Gutierrez identified ASI New Mexico's guards as ASI New Mexico employees and not Santa Fe Schools employees; and (iv) the SFPS Defendants have stated in this litigation that ASI New Mexico is an independent contractor. See Response at 46-47. The Plaintiffs also point out that other factors beyond the parties' understanding of their relationship — most significantly, the degree of control that Santa Fe Schools exercised over ASI New Mexico's actions — support a conclusion that ASI New Mexico is an independent contractor. See Response at 47. They elaborate:

Response at 47-48.

The Plaintiffs also assert that they did not consent to the pat-down searches. See Response at 48. First, they note that ASI New Mexico did not plead consent as a defense in Defendant ASI New Mexico, LLC's Answer to First Amended Complaint, filed November 28, 2011 (Doc. 67)("ASI New Mexico's Answer"); accordingly, in their view, ASI New Mexico has waived this defense. See Response at 49. Second, the Plaintiffs argue that ASI New Mexico's consent argument is artificially narrow: even if the Plaintiffs consented to a standard pat-down search by getting in line, they argue, they did not consent to the invasive searches they say occurred. See Response at 49-50. Third, they argue that they did not consent to the pat-down by attending past dances:

Response at 50-52.

The Plaintiffs also take issue with ASI New Mexico's view that its employees were not acting within the course and scope of their employment. See Response at 52. In their view, this issue generally is a question of fact, see Response at 52 (citing, e.g., Pena v. Greffet, 922 F.Supp.2d 1187 (D.N.M.2013)(Browning, J.)), and all four factors that New Mexico courts use to decide whether an employee committed a tort within the scope of his employment point in favor or the conclusion that Reyes acted within the scope of her employment:

Response at 53-55 (emphasis in original).

The Plaintiffs assert that they have produced sufficient evidence to satisfy the elements of the IIED claim. See Response at 55. As to the extreme-and-outrageous-conduct factor, the Plaintiffs note that the Court must take as true their account of the facts, see Response at 56, and assert that the conduct they allege,

Response at 56. The Plaintiffs also note that the special relationship between the parties gives rise to an abuse-of-power dynamic — that is, the teachers and the security guards who work for the school "have an affirmative duty to protect students," and "[t]hat relationship magnifies the out-rageous nature of the pat-down searches." Response at 57. As for the emotional-distress issue, the Plaintiffs assert as follows:

Response at 58 (record citations omitted).

The Plaintiffs also assert that the Court should allow the prima facie tort claim to proceed. See Response at 58. In their view, New Mexico permits them to plead prima facie tort in the alternative to their other claims, and, "[u]ntil the close of the evidence at trial, dismissal on the grounds that Plaintiffs' prima facie tort claim overlaps with other tort claims is premature." Response at 59. Second, citing the liberal standards governing construal of pleadings, they note that the Complaint's inclusion of "unlawful" instead of "lawful" was inadvertent, and that ASI New Mexico has been on notice that they asserted a prima facie tort claim from the start of the case. See Response at 59-60. As for the intent element, the Plaintiffs in essence assert that the issue is generally a fact issue, and that this evidence supports its case:

Response at 60-61 (record citations omitted).

Finally, with respect to punitive damages, the Plaintiffs argue that,

Response at 61-62 (selected record citations omitted). Accordingly, the Plaintiffs ask the Court to deny the MSJ. See Response at 62.

ASI New Mexico disagrees, stating:

Reply at 1.125 It substantially reiterates the arguments that it made in its MSJ. First, as to the state-action issue, ASI New Mexico underscores that Santa Fe Schools, and not ASI New Mexico, authorized the pat-down searches — indeed, in their view, only Santa Fe Schools had the authority to require such searches. See Reply at 31. It notes that it had no policies requiring those searches and that it "would not have conducted pat-down searches at SFPS proms, in general, absent specific requests for such services by SFPS administrators." Reply at 31. Particularly, it states that it would not have conducted pat-downs at the prom had Romero not directed it to conduct the pat-downs. See Reply at 31, They expand:

Reply at 33 (emphasis in original).126 ASI New Mexico also argues that the Plaintiffs' attempts to distinguish Montoya v. Board of Education and Sigmon v. CommunityCare HMO, Inc.,

Reply at 33 at n. 25.

ASI New Mexico then argues that Tenth Circuit law forecloses the Plaintiffs' contention that it is not entitled to qualified immunity. See Reply at 34. It argues:

Reply at 34-35 (record citations omitted). ASI New Mexico also contends that the

Reply at 35-36 n. 26 (record citations omitted).

ASI New Mexico also contends that the Plaintiffs' argument under Monell is incorrect, because

Reply at 36 (emphasis in original). As for the foreseeability argument, ASI New Mexico replies:

Reply at 36-37 (record citations omitted).

ASI New Mexico also asserts that it is entitled to immunity under the NMTCA and under State v. Johnson, 2009-NMSC-049, 147 N.M. 177, 218 P.3d 863, and that the

Reply at 37-38.

As for the consent argument, ASI New Mexico's reply is three sentences long: "Plaintiffs evinced consent to a standard pat-down search by entering the search line at prom. In claiming battery, Plaintiffs alleged they were `physically contacted and searched without their consent' and ASI denied that allegation. ASI's denial adequately placed Plaintiffs on notice of ASI's consent defense to Plaintiffs' battery claim." Reply at 38 (record citations omitted). ASI New Mexico's scope-of-employment argument is similarly brief:

Reply at 38-39. As for the IIED claim, ASI New Mexico reasserts, without substantial argument, that the "Plaintiffs' evidence falls far short of that required for proving an IIED claim" — that is, that their emotional distress is severe and extreme. Reply at 39.

ASI New Mexico also asserts that, because the Plaintiffs' allegations are all of unlawful conduct, the Plaintiffs' prima facie tort claim should fail. See Reply at 39. They expand:

Reply at 39-40.

Finally, ASI New Mexico underscores its view that there is no basis to award punitive damages. See Reply at 40. In its view, the Plaintiffs' assertions regarding what Reyes' conduct says about her mental state are irrelevant, because whatever Reyes' mental state may have been, "no evidence exists that ASI possessed the required culpable mental state to support awarding punitive damages as against ASI, and it cannot be held vicariously liable for punitive damages based on Reyes' alleged culpable mental state." Reply at 40 (citing UJI 13-1827 NMRA).

At the hearing, the Court began by stating its early thoughts: (i) Focus on the Family v. Pinellas Suncoast Transit Authority strongly suggested state action;127 (ii) Montoya v. Board of Education is factually distinct from this case; and (iii) ASI New Mexico does not have the benefit of qualified immunity on the § 1983 claim, meaning that claim would survive. See Transcript of Hearing at 3:5-25 (Court), taken April 22, 2014 ("Tr.").128 As for the state claims, the Court, noting that ASI New Mexico probably was an independent contractor subject to general tort principles, was inclined to dismiss Count II and leave only battery; was inclined to grant summary judgment as to the IIED claim; and did not see conclusive evidence of consent as to either battery or prima facie tort. See Tr. at 4:1-23 (Court).

ASI New Mexico stated that, in its view, Focus on the Family v. Pinellas Suncoast Transit Authority was distinguishable, because the case's focus was on whether the private party was a necessary party, and the analysis hinged on whether the government entity directed a private party to do something, thereby engaging in state action. See Tr. at 5:2-6:2 (Goble). In its view, the other cases that it cited in its MSJ and Reply demonstrate that there must be something more than a private party's mere compliance, but, instead, there must be joint direction to a common goal — that is, "there has to be some sort of decision making going on in the mind of the private party in order to direct itself toward the same objective that [the governmental entity] is directing itself towards." Tr. at 6:3-21 (Goble). Relying particularly on Anaya v. Crossroads Managed Care Sys., Inc., and Gallagher v. Neil Young Freedom Concert, ASI New Mexico stated that the law "require[s] something more than simply following a directive." Tr. at 6:22-7:4 (Goble). ASI New Mexico stated that, if that distinction is incorrect, "state action becomes a lot simpler doctrine. And there [are] a lot more ... private party state actors out there[] than I would understand to exist under the doctrine." Tr. at 7:5-14 (Goble). ASI New Mexico returned to its argument that it did not exercise any decision-making authority, but instead reacted to Romero's directive. See Tr. at 7:15-8:9 (Goble). As for the nexus test, ASI New Mexico reasserted that, because the record demonstrates only that ASI New Mexico reacted to a directive — and did not participate in formulating the directive — it is not a state actor. See Tr. at 8:10-17 (Goble).

After the SFPS Defendants declined to speak, see Tr. at 9:2-4 (Court, Coppler), the Court brought the parties' attention to its decision in Tapia v. City of Albuquerque, No. CIV 13-0206 JB/ACT, 10 F.Supp.3d 1323, 2014 WL 1285680 (D.N.M. Mar. 31, 2014), in which the Court laid out its view of state action principles, see Tr. at 9:5-19 (Court).

The Plaintiffs confirmed that they argued that ASI New Mexico was a state actor only under the nexus test and the joint action test, and not under the public-function test or the symbiotic-relationship test. See Tr. at 9:20-10:12 (Court, Colfax). The Plaintiffs first responded to ASI New Mexico's argument that, because it was not involved in the decisions to conduct the pat-down searches, it could not be held liable; in the Plaintiffs' view, no case law supports that view, and

Tr. at 10:22-11:24 (Colfax). In the Plaintiffs' view, the private actors in Coleman v. Turpen and Focus on the Family v. Pinellas Suncoast Transit Authority were not involved in the decisions to engage in unconstitutional conduct, but were still liable. See Tr. at 11:25-13:6 (Colfax). The Plaintiffs also contended that Gallagher v. Neil Young Freedom Concert supports their position, because the Tenth Circuit noted that the plaintiffs in that case did not show that the pat-downs directly resulted from a university policy. See Tr. at 13:11-14:7 (Colfax). After summarizing the cases that the Response discusses, the Plaintiffs stated that ASI New Mexico rests its argument on two principal sources of authority: Montoya v. Board of Education and Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). See Tr. at 14:8-15:9 (Colfax). In their view, Lugar v. Edmondson Oil Co. does not stand for the proposition that there must be "something more than just following the directive of the state actor," but instead for the notion that merely using a mechanism laid out in a state statute does not create state action — but the four tests that the Court discussed at the opening of the Plaintiffs' argument would establish that "something more." Tr. at 15:10-16:4 (Colfax).

The Plaintiffs also reiterated substantially their Response's argument on state action: ASI New Mexico has, in essence, admitted the elements of the nexus test, and ASI New Mexico willfully participated in the state's conduct, which satisfies the joint-action test. See Tr. at 16:8-17:18 (Colfax). They concluded:

Tr. at 17:19-18:8 (Colfax).

ASI New Mexico identified what it understood to be a "philosophical difference between [its] position and" the Plaintiffs': "this concept of `something more.'" Tr. at 18:16-19. In essence, in ASI New Mexico's view, the Plaintiffs' thinking on the issue suffers from a flaw: "they take principles out of the case where the factual circumstances are so very different, and where the focus is on trying to see whether there is state action by the government in order to find it responsible." Tr. at 18:19-19:3 (Goble). The Court asked ASI New Mexico to explain that statement, particularly with an eye to Focus on the Family v. Pinellas Suncoast Transit Authority; ASI New Mexico stated that, in its view, this case was not about whether the private entity could be held liable, but about whether the governmental entity was liable:

Tr. at 19:4-25:12 (Court, Goble)(underlining added for clarity). The Court asked why ASI New Mexico's conduct did not satisfy this section from Tapia v. City of Albuquerque:

Tapia v. City of Albuquerque, 10 F.Supp.3d 1323, 1359, 2014 WL 1285680, at *25. See Tr. at 25:16-26:8 (Court). ASI New Mexico replied:

Tr. at 26:9-27:6 (Goble)(underlining added for clarity). The Court also pointed to this explanation of the joint-action test from Tapia v. City of Albuquerque and asked ASI New Mexico to explain how its conduct did not satisfy it: "State action exists under the joint-action test if the private party is a `willful participant in joint action with the State or its agents.'" Tapia v. City of Albuquerque, 10 F.Supp.3d at 1359, 2014 WL 1285680, at *25 (quoting Dennis v. Sparks, 449 U.S at 27, 101 S.Ct. 183). See Tr. at 27:7-18 (Court). ASI New Mexico then responded as follows; its response closed the parties' arguments on state action:

Tr. at 27:19-31:11 (Goble, Court, Colfax).

The Court then turned the parties' attention to the qualified-immunity issue, stating that, although it was unfamiliar with the area, it seemed that qualified immunity probably would not be available. See Tr. at 31:12-32:6 (Court). ASI New Mexico substantially reiterated its briefs' arguments: that Richardson v. McKnight is limited to its facts, and that Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc. and Filarsky v. Delia indicate that where a court is

Tr. at 32:7-36:11 (underlining added for clarity).

The Plaintiffs began their argument by pointing to Richardson v. McKnight. See Tr. at 36:15-19 (Colfax). The Court asked if, in their view, the Supreme Court had shifted its view of qualified immunity in recent years; the Plaintiffs stated that the Supreme Court would probably come to the same ruling in Richardson v. McKnight. See Tr. at 36:20-37:8 (Court, Colfax). The Plaintiffs stated that Filarsky v. Delia differs Richardson v. McKnight:

Tr. at 37:5-42:21 (Colfax, Court).

ASI New Mexico began its reply by suggesting that the Plaintiffs' "theories are an evershifting target":

Tr. at 43:3-49:9 (Goble, Court).

After noting that the Plaintiffs abandoned Count 2, see Tr. at 49:12-15 (Goble, Court), ASI New Mexico turned to the NMTCA argument, see Tr. at 49:21-24 (Goble). After a brief digression regarding agency law, see Tr. at 49:25-52:22 (Goble, Court), the Court pointed out that the contract with Santa Fe Public Schools stated that ASI New Mexico was not a public employee; although it acknowledged that the label the parties put on the relationship is not controlling, the Court asked if the label complicated ASI New Mexico's attempt to evade liability, see Tr. at 53:2-54:2 (Court, Goble). ASI New Mexico substantially reiterated its briefs' arguments regarding State v. Johnson, Celaya v. Hall, Blea v. Fields, and administrative regulations; its theme was that the substance of the parties' relationship — and not its form — controls the analysis. See Tr. at 55:3-57:15 (Goble).

The Plaintiffs noted that ASI New Mexico's positions are inconsistent and contended that their position is consistent: ASI New Mexico is not a state employee, but an independent contract, and ASI New Mexico is a state actor. See Tr. at 57:19-59:13 (Court, Colfax). The Plaintiffs reiterated their arguments on the NMTCA issue from their Response: (i) the proper standard is whether the corporation is an instrumentality of the state; and (ii) even under the public-employee standard, ASI New Mexico is an independent contractor, because ASI New Mexico supervised most of the day-to-day work. See Tr. at 57:14-61:3 (Colfax). In their view, State v. Johnson ultimately stands for the same proposition that Celaya v. Hall does — that the relevant consideration is who controls the guards' conduct. See Tr. at 61:4-17 (Court, Colfax).129

ASI New Mexico noted that it carefully tethers its arguments to the claims pleaded in the Complaint: that is, "that there was inappropriate touching that the guard engaged in upon the persons of the plaintiffs; not that there was an unconstitutional violation of a policy that existed that required the plaintiffs to do something themselves as part of the pat-down searches." Tr. at 63:10-22 (Goble). Accordingly, in its view, the discussion about the Plaintiffs snapping their own bras is a red herring. See Tr. at 64:16-25 (Goble). ASI New Mexico reiterated its point that, in its view, that Santa Fe Schools directed the guards makes the guards' actions not state action. See Tr. at 64:9-18 (Court, Goble). As for the instrumentality argument under the NMTCA, ASI New Mexico stated, without elaboration, that it "has not asserted that it is a local public body, as that is defined by the" NMTCA. Tr. at 64:19-65:3 (Goble). ASI New Mexico continued:

Tr. at 65:4-68:15 (Goble). ASI New Mexico briefly summarized the remaining points in its briefing relating to consent, IIED, prima facie tort, and punitive damages. See Tr. at 68:19-72:4 (Goble).

The Plaintiffs closed by responding to each of ASI New Mexico's points on the tort claims. See Tr. at 72:15-18 (Colfax). As to the consent issue on the battery claim, the Plaintiffs contended that they were basing it not on a non-intrusive pat-down search, but on the intrusive searches that they have described. See Tr. at 72:19-73:2 (Colfax). On the IIED issue and on the punitive-damages issue, the Plaintiffs contended that the questions whether this conduct was extreme and out-rageous, and whether this conduct justifies punitive damages, should go to the jury. See Tr. at 73:3-18 (Colfax). The Plaintiffs then turned to the prima-facie tort issue, explaining:

Tr. at 73:19-76:8 (Colfax, Court).

Finally, as to the scope-of-employment issue, the Plaintiffs substantially reiterated their arguments from the briefing: principally, that Reyes' decisions represented an escalation of authorized conduct and not a complete departure from authorized conduct. See Tr. at 76:9-77:10 (Colfax). They elaborated:

Tr. at 78:11-79:15 (Colfax).

The Court gave ASI New Mexico "the last word on [its] motion," which it focused on the common-law claims:

Tr. at 78:23-83:3 (Goble).

The Court then stated its inclinations. See Tr. at 83:6-11 (Court). It noted that it was inclined to conclude that the facts would satisfy the tests for state action. See Tr. at 83:8-13 (Court). It stated that it was uncertain as to qualified immunity; noting that it had reviewed the language that limited Richardson v. McKnight, and cautioning that this area was new to the Court, it stated that "it concerns me that maybe qualified immunity does apply here. And if it does, then we may be where we were with the Romero decision." Tr. at 83:14-21 (Court). It stated that it did not have any inclinations as to the Monell issue, but would study the issue. See Tr. at 83:22-24 (Court). On the NMTCA issue, the Court was inclined to conclude that ASI New Mexico is an independent contractor, so the NMTCA would not immunize ASI New Mexico from liability. See Tr. at 83:25-84:3 (Court). On the battery claim, the Court stated that, under the Plaintiffs' facts, consent was not present, so the battery claim might go to the jury. See Tr. at 84:4-7 (Court). The Court stated that it was likely to dismiss the IIED claim, because the facts do not rise to the shocking level one expects in such cases. See Tr. at 84:8-13 (Court). The Court further stated:

Tr. at 84:14-84:6 (Court).

In the Electronic Mail Transmission from Reed Colfax to the Court (dated April 14, 2014), filed April 14, 2014 (Doc. 207)("Plaintiffs' Letter"), the Plaintiffs provide additional argument on certain points raised in the MSJ and in other motions — as relevant here, the applicability of State v. Johnson. The Plaintiffs note that their counsel had misunderstood the Court's question regarding the case during the hearing and wrote to clarify their view of the case:

Plaintiffs' Letter at 4-5.

The SFPS Defendants' counsel responds:

Electronic Mail Transmission from Gerald Coppler to Reed Colfax at 1, dated April 14, 2014, filed April 14, 2014 (Doc. 208). The SFPS Defendants did not provide additional briefing or evidence.

ASI New Mexico responds:

Judge Browning and counsel:

Electronic Mail Transmission from Matt T. Tucker to the Court, dated April 14, 2014, filed April 14, 2014 (Doc. 209). ASI New Mexico did not provide further briefing or evidence.

The Court will consider this additional material. The Court is sensitive to the Defendants' objections to these arguments' timeliness, but, in the interest of deciding the MSJ and other motions correctly on the merits, the Court concludes that it serves the interests of justice to consider the evidence and argument that the Plaintiffs have cited. ASI New Mexico has not disputed the evidence, offered any contrary evidence, or disputed what the Plaintiffs contend. ASI New Mexico has had ample opportunity to make its case, and it has declined to put forth further evidence or argument. Nothing in the rules requires that the Court ignore apparently good evidence because of when it was presented in the summary judgment process. Moreover, to the extent that anything in the rules would prevent the Court from considering this material, the Court concludes that it is in the interest of justice to consider this material, and, therefore, waives any such prohibition in the local rules. See D.N.M.LR-Civ. 1.7 ("These rules may be waived by a Judge to avoid injustice.").

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 `show[ing] that there is an absence of evidence to support the non-moving party's case.'" Herrera v. Santa Fe Pub. Schs., 956 F.Supp.2d 1191, 1221 (D.N.M.2013) (Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence — using any of the materials specified in Rule 56(c) — that would entitle it to a directed verdict if not controverted at trial." Celotex Corp. v. Catrett, 477 U.S. at 331, 106 S.Ct. 2548 (Brennan, J., dissenting)(emphasis in original).130 Once the movant meets this burden, rule 56 requires the nonmoving 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 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 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 supported 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 nonmoving 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 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 nonmoving party, and construe all evidence in the light most favorable to the nonmoving 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.

There are, however, limited circumstances in which the Court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified-immunity arena. In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Supreme Court concluded that summary judgment was appropriate where video evidence "quite clearly contradicted" the plaintiff's version of the facts. 550 U.S. at 378-81, 127 S.Ct. 1769. The Supreme Court explained:

550 U.S. at 380-81, 127 S.Ct. 1769 (emphasis in original).

The Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir.2009), and explained:

Thomson v. Salt Lake Cnty., 584 F.3d at 1312. "The Tenth Circuit, in Rhoads v. Miller, [352 Fed.Appx. 289 (10th Cir.2009) (Tymkovich, J.)(unpublished)],[131] explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]" Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010) (Browning, J.) (citation omitted).

Rhoads v. Miller, 352 Fed.Appx. at 291-92 (internal quotation marks omitted). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and "determine whether plaintiff's factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court" before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J. concurring)(citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988)(Johnson, J., dissenting))(observing that, even if factual disputes exist, "these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs' facts"). See Robles v. Schultz, No. CIV 08-0438 JB/KBM, 2010 WL 1441287, at *14 (D.N.M. March 15, 2010)(Browning, J.)("Robles has successfully established the violation of a clearly established right and therefore qualified immunity is not appropriate. The burden then shifts to McElroy and Compton to prove that no genuine issue of material fact exists." (citing Thomson v. Salt Lake County, 584 F.3d at 1326-27 (Holmes, J., concurring))).

LAW REGARDING LIABILITY FOR CONSTITUTIONAL VIOLATIONS UNDER 42 U.S.C. § 1983

Section 1983 of Title 42 of the United States Code provides:

42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Individual, non-supervisory defendants may be liable if they knew or reasonably should have known that their conduct would lead to the deprivation of a plaintiff's constitutional rights by others, and an unforeseeable intervening act has not terminated their liability. See Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir.2012) ("The requisite causal connection is satisfied if [the defendant] set[s] in motion a series of events that [the defendant] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [his or her] constitutional rights.")(quoting Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir. 2006)). 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. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("Because vicarious liability is inapplicable to Bivens [v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ("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 relationship with an alleged tortfeasor." Garcia v. Casuas, No. CIV 11-0011 JB/RHS, 2011 WL 7444745, at *25 (D.N.M. Dec. 8, 2011) (Browning, J.)(citing Monell v. Dep't 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).

1. Color of State Law.

"Under Section 1983, liability attaches only to conduct occurring `under color of law.'" Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1447. The under-color-of-state-law requirement is a "jurisdictional requisite for a § 1983 action, which ... furthers the fundamental goals of preserving an area of individual freedom by limiting the reach of federal law ... and avoiding imposing on the state, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Jojola v. Chavez, 55 F.3d 488, 492 (10th Cir.1995). "The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power `possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West v. Atkins, 487 U.S. at 49, 108 S.Ct. 2250 (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)). "The authority with which the defendant is allegedly `clothed' may be either actual or apparent." Jojola v. Chavez, 55 F.3d at 493. Accordingly, at a base level, to find that an action was taken under color of state law, the court must find that "`the conduct allegedly causing the deprivation of a federal right' must be `fairly attributable to the State.'" Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1447 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)).

In the context of a public employee, the Tenth Circuit has directed that, while "`state employment is generally sufficient to render the defendant a state actor.... [,]' at the same time, it is `well settled that an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state.'" Jojola v. Chavez, 55 F.3d at 493 (quoting Lugar v. Edmondson Oil Co., 457 U.S. at 935-36 n. 18, 102 S.Ct. 2744; Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir.1995)). Thus, "before conduct may be fairly attributed to the state because it constitutes action `under color of state law,' there must be `a real nexus' between the employee's use or misuse of their authority as a public employee, and the violation allegedly committed by the defendant." Jojola v. Chavez, 55 F.3d at 493. What constitutes the required real nexus, however, is not completely clear. As the Tenth Circuit has stated, whether there is a real nexus in a particular case depends on the circumstances:

David v. City & Cnty. of Denver, 101 F.3d 1344, 1353 (10th Cir.1996)(internal citations omitted)(quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.1995)).

2. Individual Liability.

Under § 1983, "Defendants are liable for the harm proximately caused by their conduct." Martinez v. Carson, 697 F.3d at 1255. Thus, government actors may be liable for the constitutional violations that another committed, if the actors "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 plaintiff's constitutional deprivations. Trask v. Franco, 446 F.3d 1036, 1046 (10th Cir.2006). Accord Pena v. Greffet, 922 F.Supp.2d at 1219. 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.'" Martinez 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), overruled in part by Monell v. Dep't of Soc. Servs., 436 U.S. at 663, 98 S.Ct. 2018). "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). As the Court has previously concluded: "[A] plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations. The recovery should be guided by common-law tort principles — including principles of causation...." Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1251 (D.N.M.2009)(Browning, J.).

The Tenth Circuit has found liability for those defendants who proximately caused an injury complained-of under § 1983 and stated that the fact that the "conduct of other people may have concurrently caused the harm does not change the outcome as to [the defendant]," so long as there was not a superseding-intervening cause of a plaintiff's harm. Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir.2006).

Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment, the Tenth Circuit has held 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 superseding intervening cause, quoting the Honorable Samuel J. Alito, then-Circuit Judge for the Third Circuit, now-associate Justice for the Supreme Court:

Trask v. Franco, 446 F.3d at 1046 (quoting Bodine v. Warwick, 72 F.3d at 400). Additionally, "[f]oreseeable 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

Trask v. Franco, 446 F.3d at 1047 (citing Restatement (Second) of Torts § 453 cmt. b (1965)).

3. Supervisory Liability.

The Tenth Circuit has held that supervisors are not liable under 42 U.S.C. § 1983 unless there is "`an affirmative link... between the constitutional deprivation and either the supervisor's personal participation, [] exercise of control or direction, or [] failure to supervise.'" Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (quoting Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997))(internal alterations omitted). Because supervisors can be held liable only for their own constitutional or illegal policies, and not for the torts that their employees commit, supervisory liability requires a showing that such policies were a "deliberate or conscious choice." Barney v. Pulsipher, 143 F.3d at 1307-08 (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 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, 2011 WL 7444745, at *25-*26 (citing Dodds v. Richardson, 614 F.3d 1185 (10th Cir.2010)). 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:

614 F.3d at 1199. The Tenth Circuit noted that Ashcroft v. Iqbal "does not purport to overrule existing Supreme Court precedent," but stated 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." Dodds v. Richardson, 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. The Tenth Circuit, based on this conclusion, set forth a test for supervisory liability under § 1983 after Ashcroft v. Iqbal:

Dodds v. Richardson, 614 F.3d at 1199-1200 (citing Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir.2002)). The Tenth Circuit noted, however: "We do not mean to imply that these are distinct analytical prongs, never to be intertwined." 614 F.3d at 1200 n. 8. Relying on the Supreme Court's opinion in Bd. of Cnty. Comm'rs v. Brown, the Tenth Circuit reasoned that two of the prongs often, if not always, are sufficient proof that the third prong has been met also:

Dodds v. Richardson, 614 F.3d at 1200 n. 8 (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S. at 404-05, 117 S.Ct. 1382) (internal quotation marks omitted). The Tenth Circuit noted that "[w]e think the same logic applies when the plaintiff sues a defendant-supervisor who promulgated, created, implemented or possessed responsibility for the continued operation of a policy that itself violates federal law." Dodds v. Richardson, 614 F.3d at 1200 n. 8. Thus, the Tenth Circuit reduced the test to what can be seen as a two-part test for supervisor liability, requiring the plaintiff to prove "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.'" Dodds v. Richardson, 614 F.3d at 1200-01 (quoting Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)).

4. Municipal Liability.

A municipality will not be held liable under § 1983 solely because its officers inflicted injury. See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir.2006). Rather, to establish municipal liability under § 1983, a plaintiff must demonstrate: (i) that an officer committed an underlying constitutional violation; (ii) that a municipal policy or custom exists; and (iii) that there is a direct causal link between the policy or custom and the injury alleged. See Graves v. Thomas, 450 F.3d at 1218. When a claim is brought against a municipality for failing to train its officers adequately, the plaintiff must show that the municipality's inaction was the result of deliberate indifference to the rights of its inhabitants. See Graves v. Thomas, 450 F.3d at 1218.

LAW REGARDING STATE ACTION AND CIVIL-RIGHTS CLAIMS

The Supreme Court has stated that it is a judicial obligation to not only

Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (internal quotations and citations omitted). The Fifth and Fourteenth Amendment rights at issue secure protection only against infringement through state action. See, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) ("[M]ost rights secured by the Constitution are protected only against infringement by governments."). Under some circumstances, however, the conduct of private parties may be deemed to be state action when the "conduct allegedly causing the deprivation of a federal right may be fairly attributable to the State." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Whether the conduct may in fact be "fairly attributed" to the state requires a two-part inquiry. "First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible." Lugar v. Edmondson Oil Co., Inc., 457 U.S. at 937, 102 S.Ct. 2744. "Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., Inc., 457 U.S. at 937, 102 S.Ct. 2744. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (explaining that, to state a claim under § 1983, the plaintiff must show: (i) deprivation of a right that the federal constitution or federal laws secure; and (ii) that a person acting under color of state law caused the deprivation).

The Supreme Court in Lugar v. Edmondson Oil Co., Inc. explained that the two prongs merge when the claim is "directed against a party whose official character is such as to lend the weight of the State to his decisions," whereas they remain distinct when analyzing the conduct of private parties. 457 U.S. at 937, 102 S.Ct. 2744. The first prong of the Lugar v. Edmondson Oil Co., Inc. test — that the deprivation of a right is attributable to the state — is satisfied when "the authority of state officials ... put the weight of the State behind [the d]efendant's private decision[.]" 457 U.S. at 940, 102 S.Ct. 2744. The Supreme Court in Lugar v. Edmondson Oil Co., Inc. further instructed that the second prong, identification of a defendant as a state actor, may arise "because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the state." 457 U.S. at 937, 102 S.Ct. 2744.

In Lugar v. Edmondson Oil Co., Inc., the Supreme Court determined that the plaintiff's allegation that private conduct unlawful under state law deprived the plaintiff of his property without due process failed to state a claim under § 1983. See 457 U.S. at 940, 102 S.Ct. 2744. The Supreme Court also held that the plaintiff's claim alleging that the private parties had invoked a state statute maliciously or without valid grounds did not give rise to state action. See 457 U.S. at 940, 102 S.Ct. 2744. Instead, that claim amounted to nothing more than the private misuse or abuse of a state statute. See 457 U.S. at 940-41, 102 S.Ct. 2744.

For a private individual to be acting under color of state law, the deprivation of a federal right "must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible," and "the party charged with the deprivation must be a person who may fairly be said to be a state actor ... because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State." Lugar v. Edmondson Oil Co., 457 U.S. at 937, 102 S.Ct. 2744.

How v. City of Baxter Springs, 217 Fed. Appx. 787, 793 (10th Cir.2007)(unpublished).

1. Whether There is State Action by Private Actors is a Legal Determination That the Court Makes.

The Tenth Circuit has described the determination of state action as "particularly fact-sensitive, so the circumstances must be examined in their totality." Marcus v. McCollum, 394 F.3d 813, 819 (10th Cir. 2004). According to the Tenth Circuit, "[t]he Supreme Court has counseled us that the state action inquiry, although a legal determination to be made by the court, [see Gilmore v. City of Montgomery, 417 U.S. 556, 570, 94 S.Ct. 2416, 41 L.Ed.2d 304 (1974),] requires the `sifting [of] facts and weighing [of] evidence.'" Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1271 (10th Cir.1989) (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961)). In Gilmore v. City of Montgomery, 417 U.S. 556, 94 S.Ct. 2416, 41 L.Ed.2d 304 (1974), the Supreme Court found that, although it was the Court's role to determine whether the use of zoos, museums, parks, and other recreational facilities by private school groups and private non-school organizations "involved government so directly in the actions of those users as to warrant court intervention on constitutional grounds[,]" the factual record before the Supreme Court "[did] not contain sufficient facts upon which to predicate legal judgments of this kind." 417 U.S. at 570, 94 S.Ct. 2416.

On the other hand, leaving the determination of state action to the jury has shown to be ill-advised. The cases in which the acts of private entities have been held to constitute state action or to be under color of law, and cases in which they have not, tend to be distinguished "by fine shadings in the sometimes complex interrelationships that develop between the state and private bodies." Adams v. Vandemark, 787 F.2d 588, 1986 WL 16606, at *2 (6th Cir.1986)(unpublished). In Adams v. Vandemark, the United States Court of Appeals for the Sixth Circuit reviewed a jury instruction from the United States District Court for the Eastern District of Michigan, instructing the jury on when to find state action. The Sixth Circuit found that the few words that were given to the jury on when to find state action "gave the jury little to guide it in making its determination on this crucial element of the claim for relief." 1986 WL 16606, at *2. The Sixth Circuit noted that the application of the symbiotic-relationship test and the joint-relationship test are "very difficult and complex questions," and, "[t]o the extent a jury is to decide upon the proper factual predicates for this essentially legal determination, it must be given instructions that are clear, precise and informative as to the factors involved and the factual issues to be determined." 1986 WL 16606, at *2. The Sixth Circuit found that the defendants were entitled to a new trial, because the jury was given no direction that could have enabled it to make the necessary underlying factual determination regarding state action. 1986 WL 16606, at *2-*3.

2. Tests for Determining State Action by a Private Party.

The Supreme Court has articulated four different tests for courts to use in determining whether conduct by an otherwise private party is state action: (i) the public-function test; (ii) the nexus test; (iii) the symbiotic-relationship test; and (iv) the joint-action test. See Johnson v. Rodrigues (Orozco), 293 F.3d at 1202-1203 (reviewing the various tests); Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.1995)(noting that "[a]pplication of the state action doctrine has been characterized as one of the more slippery and troublesome areas of civil rights litigation." (internal quotation marks omitted)).

a. Public-Function Test.

Under the public-function test, a court determines whether a private party has exercised "powers traditionally exclusively reserved to the State." Jackson v. Metro. Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). The public-function test is difficult to satisfy, because while many functions may be traditionally governmental, few are "exclusively" governmental functions, as the test requires. Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1456. The courts have found exclusive government functions to include holding elections, performing necessary municipal functions, and running a nursing facility. See Johnson v. Rodrigues (Orozco), 293 F.3d at 1203.

b. Nexus Test.

Under the nexus test, state action is present if the state has ordered the private conduct, or "exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky, 457 U.S. 991, 993, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). A court determines under the nexus test whether there is a sufficiently close nexus between the state and the challenged conduct, such that the conduct "may be fairly treated as that of the state itself." Jackson v. Metro. Edison Co., 419 U.S. at 351, 95 S.Ct. 449. "Private use of state-sanctioned private remedies or procedures does not rise to the level of state action.... But when private parties make use of state procedures with the overt, significant assistance of state officials, state action may be found." Tulsa Professional Collection Servs., Inc. v. Pope, 485 U.S. 478, 486, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (internal citations omitted).

c. Symbiotic-Relationship Test.

Under the symbiotic-relationship test, state action is present if the state "has so far insinuated itself into a position of interdependence" with a private party that "it must be recognized as a joint participant in the challenged activity." Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). "[E]xtensive regulation, receipt of substantial state funds, and the performance of important public functions do not necessarily establish the kind of symbiotic relationship between the [state] and a private [party] that is required for state action." Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1451.

Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1452.

d. Joint-Action Test.

State action exists under the joint-action test if the private party is a "willful participant in joint action with the State or its agents." Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). Courts look to "whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights." Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1453. "[I]f there is a substantial degree of cooperative action between state and private officials ... or if there is overt and significant state participation, in carrying out the deprivation of the plaintiff's constitutional rights, state action is present." Gallagher v. Neil Young Freedom Concert, 49 F.3d at 1454 (internal quotation marks and citations omitted). Joint participation can also take the form of a conspiracy between public and private actors; in such cases, the plaintiff must show that the public and private actors shared a common, unconstitutional goal. See Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1126 (10th Cir.2000). Even a conspiracy claim requires a sufficient level of state involvement to constitute joint participation in the unconstitutional actions. See Soldal v. Cook County, 506 U.S. 56, 60 n. 6, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). The Tenth Circuit has previously dismissed constitutional claims against a private individual where the plaintiff did not give specific facts showing a conspiracy evidencing state action. See Martinez v. Winner, 771 F.2d 424, 445 (10th Cir.1985) ("Beyond the bare conclusory allegation that [the defendant], a private citizen, conspired with the other defendants to deprive plaintiff of his constitutional and civil rights, no facts are stated indicating that [the defendant] did anything ...").

In Gallagher v. Neil Young Freedom Concert, the Tenth Circuit surveyed several instances in which courts have found action "under color of state law" where governmental and private parties have acted together in joint-action:

49 F.3d at 1453-56. The Tenth Circuit noted that, "just as with the other tests for state action, the mere acquiescence of a state official in the actions of a private party is not sufficient." 49 F.3d at 1453. The Tenth Circuit found that the joint-action test can be satisfied where police are involved in cooperative action with a private party when "the police have substantially assisted in the allegedly wrongful conduct." 49 F.3d at 1455. Joint participation typically arises when the authorities agree to facilitate unconstitutional acts by a private party through affirmative action. See Soldal v. Cook County, 506 U.S. at 60 n. 4, 113 S.Ct. 538.

3. The Influence of Police Involvement on Private Action as State Action.

The Tenth Circuit has found that the involvement of the police does not necessarily convert a defendant's abuse of state law into conduct attributable to the state for purposes of § 1983 liability. See Yanaki v. Iomed, Inc., 415 F.3d 1204, 1210 (10th Cir.2005) (citing Winterland Concessions Co. v. Trela, 735 F.2d 257, 262 (7th Cir.1984); Taylor v. Gilmartin, 686 F.2d 1346, 1348-49, 1355 n. 3 (10th Cir.1982); Torres v. First State Bank of Sierra County, 588 F.2d 1322, 1327 (10th Cir.1978)). In Yanaki v. Iomed, Inc., the plaintiffs argued that the involvement of the police acting in concert with the defendants in the search of the plaintiffs' residence converted the defendants' actions into conduct attributable to the state for the purposes of § 1983 liability. See 415 F.3d at 1209-10. The Tenth Circuit held that the plaintiffs "fail[ed] to satisfy the first part of the [Lugar v. Edmondson Oil Co., Inc.] color of law test because the conduct that Plaintiffs complain[ed] deprived them of their constitutional rights was caused by and [could] only be attributed to the private Defendants." 415 F.3d at 1210. The Tenth Circuit, therefore, found it unnecessary to address whether the private defendants were state actors. See 415 F.3d at 1210. Additionally, merely following a procedure established by state law does not transform a private party's activity into state action. See Scott v. Hern, 216 F.3d 897, 906-07 (10th Cir.2000); Kirksey v. Theilig, 351 F.Supp. 727, 733 (D.Colo. 1972) (holding that self-help repossession of an automobile by a private party is not action under color of state law).

RELEVANT FOURTH AMENDMENT LAW

The Fourth Amendment 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 extends the prohibition against unreasonable search and seizures to state officers, including 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 1174, 1184 (D.N.M.2011) (quoting Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 828, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002)). 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:

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 quotation marks 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 quotation marks 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. 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. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995); 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 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:

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).

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, "[p]articularly 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.

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.

515 U.S. at 657, 115 S.Ct. 2386.132

Turning to the degree of intrusion, the Supreme Court in Vernonia School District 47J v. Acton stated that the degree of 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 schoolchildren use daily. Under such conditions, the privacy interests compromised by the process of obtaining the urine sample are in our view negligible." 515 U.S. at 658, 115 S.Ct. 2386. The Supreme Court also considered the other privacy-invasive aspect of urinalysis — the information it discloses concerning a person's body, and the materials he or she has ingested. See 515 U.S. at 658, 115 S.Ct. 2386. The Supreme Court noted that the tests looked only for standard drugs, that the test results were disclosed only to a limited class of school personnel who "have a need to know," that they were not turned over to the law enforcement authorities, and that they were not used for any internal disciplinary function. 515 U.S. at 658, 115 S.Ct. 2386. Turning to the governmental interest, the Supreme Court found that the concern of deterring drug use was important, that there was an immediate crisis of drug use, and that "a drug problem largely fueled by the `role model' effect of athletes' drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs." 515 U.S. at 661-64, 115 S.Ct. 2386. Taking into account "the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search," the Supreme Court concluded that the policy was reasonable and thus constitutional. 515 U.S. at 664-65, 115 S.Ct. 2386.

In Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, the Supreme Court considered whether a student activities drug testing policy, which required all students who participated in competitive extracurricular activities to submit to drug testing, was constitutional, because it reasonably served the school district's important interest in detecting and preventing drug use among its students. See 536 U.S. at 825, 122 S.Ct. 2559. The Supreme Court noted that a "student's privacy interest is limited in a public school environment where the State is responsible for maintaining discipline, health, and safety." 536 U.S. at 830, 122 S.Ct. 2559. The Supreme Court concluded that the students affected by the policy had a limited expectation of privacy, because the students who participated in the competitive extracurricular activities voluntarily subjected themselves to many of the same intrusions of their privacy as do student athletes. See 536 U.S. at 831, 122 S.Ct. 2559. The Supreme Court stated:

536 U.S. at 832, 122 S.Ct. 2559. The Supreme Court also found that, given the "minimally intrusive nature of the sample collection and the limited uses to which the test results are put, we conclude that the invasion of students' privacy is not significant." 536 U.S. at 833, 122 S.Ct. 2559. The policy required a faculty monitor to wait outside the closed restroom stall, listening for normal sounds of urination to guard against tampered samples, while the student produced a sample. See 536 U.S. at 832-33, 122 S.Ct. 2559. The policy also required test results to be kept in confidential files separate from the student's other educational records and that the results be released to school personnel only on a need-to-know basis. See 536 U.S. at 833, 122 S.Ct. 2559. The Supreme Court analogized this policy to the policy in Vernonia School District 47J v. Acton and found that, as the policy in Vernonia School District 47J v. Acton, it was minimally intrusive. See 536 U.S. at 833-34, 122 S.Ct. 2559. The Supreme Court further noted that governmental concern in preventing drug use by schoolchildren is an important concern, and that "the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction." 536 U.S. at 834, 122 S.Ct. 2559. The Supreme Court also noted that the school district presented specific evidence of drug use in the schools. See 536 U.S. at 835, 122 S.Ct. 2559. The Supreme Court found that, given the nationwide epidemic of drug use, and the evidence of increased drug use in the district's schools, it was reasonable for the school district to enact the drug testing policy. See 536 U.S. at 836, 122 S.Ct. 2559.

In Safford Unified School District No. 1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009), the Supreme Court held that a strip search, based upon individualized suspicion, in which school employees required a student suspected of dealing pharmaceutical drugs at school to "remove her clothes down to her underwear, and then `pull out' her bra and the elastic band on her underpants," was an unreasonable search in violation of the student's Fourth Amendment rights. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. at 374, 129 S.Ct. 2633. The week before the search, another student told the assistant principal, Kerry Wilson, that students were bringing drugs and weapons on campus, and that he had been sick after taking pills that a classmate gave him. See 557 U.S. at 371-72, 129 S.Ct. 2633. That student then handed a pill to Wilson and identified another student, Marissa Glines, as having given him the pill. Wilson called Glines out of class and found a day planner with various contraband items, and required Glines to turn out her pockets and open her wallet, in which Wilson found a blue pill, several white pills, and a razor blade. When Wilson asked where Glines obtained the blue pill, Glines indicated that another student, Savana Redding, gave the pill to her, and denied knowing about the day planner and the contraband items found within the planner. See 557 U.S. at 372, 129 S.Ct. 2633. "Wilson did not ask [Glines] any followup questions to determine whether there was any likelihood that [Redding] presently had pills: neither asking when [Glines] received the pills from [Redding] nor where [Redding] might be hiding them." 557 U.S. at 372, 129 S.Ct. 2633. Wilson, and the school's administrative assistant, Helen Romero, required Glines to undergo a search of her bra and underpants by the administrative assistant and the school nurse, which did not turn up any additional pills. See 557 U.S. at 373, 129 S.Ct. 2633. Wilson then called Redding to his office and showed her the day planner. "[W]hile she denied knowledge of the contraband, [Redding] admitted that the planner was hers and that she had lent it to [Glines]." 557 U.S. at 373, 129 S.Ct. 2633. In relation to Redding, the Supreme Court noted:

557 U.S. at 373, 129 S.Ct. 2633. Wilson next showed Redding the blue pill and the white pills, and asked her whether she knew anything about them. See id. at 368, 129 S.Ct. 2633. Redding said that she did not. When Wilson told Redding that it had been reported to him that she was distributing the pills, she denied doing so and granted Wilson permission to "search her belongings." 557 U.S. at 368, 129 S.Ct. 2633. Romero came into the office and helped Wilson search through Redding's backpack, which did not turn up any contraband or pills. Wilson then told Romero to take Redding to the nurse's office to search her clothes for pills.

557 U.S. at 369, 129 S.Ct. 2633. Redding's mother filed suit against the school district, Wilson, Romero, and Schwallier. See 557 U.S. at 369, 129 S.Ct. 2633. The United States Court of Appeals for the Ninth Circuit, sitting en banc, held that the strip search violated Redding's Fourth Amendment rights, but concluded that Schwallier and Romero were not liable "since they had not acted as independent decisionmakers." 557 U.S. at 369-70, 129 S.Ct. 2633 (citing Redding v. Safford Unified Sch. Dist. No. 1, 531 F.3d 1071, 1089 (9th Cir. 2008)(en banc)). The Ninth Circuit held that Redding's Fourth Amendment rights were, however, clearly established at the time of the search and that Wilson was thus not protected by qualified immunity, because "these notions of personal privacy are `clearly established' in that they inhere in all of us, particularly middle school teenagers, and are inherent in the privacy component of the Fourth Amendment's proscriptions against unreasonable searches." Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. at 369, 129 S.Ct. 2633 (quoting Redding v. Safford Unified Sch. Dist. No. 1, 531 F.3d at 1089).

In relation to whether the search was unreasonable, and thus violated Redding's constitutional rights, the Supreme Court first concluded that the New Jersey v. T.L.O. reasonable-suspicion standard applied to Wilson's search of Redding's backpack:

Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. at 373 n. 3, 129 S.Ct. 2633. The Supreme Court nonetheless held that Wilson's suspicion up to the time that he searched Redding's backpack and Romero searched her "outer clothing" was sufficient to make that extent of the search reasonable:

557 U.S. at 373-74, 129 S.Ct. 2633. The Supreme Court agreed with the Ninth Circuit, concluding that Wilson's direction to extend the search and require Redding to "pull her underwear away from her body in the presence of the two officials who were able to see her necessarily exposed her breasts and pelvic area to some degree," and overstepped the intrusion which Wilson's suspicions permitted and constituted an unreasonable search. 557 U.S. at 374, 129 S.Ct. 2633. The Honorable David Souter, former Associate Justice for the Supreme Court, who penned the majority opinion, pointed out that there is "obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as ... degrading." 557 U.S. at 375, 129 S.Ct. 2633. Justice Souter noted that "[t]he indignity of the search does not, of course, outlaw it," but concluded that "the content of the suspicion failed to match the degree of intrusion." 557 U.S. at 375, 129 S.Ct. 2633. Justice Souter reasoned:

557 U.S. at 375-77, 129 S.Ct. 2633.

Justice Souter, with whom Chief Justice Roberts, Justices Scalia, Kennedy, Breyer, Alito, and Thomas joined, disagreed, however, with the Ninth Circuit's conclusion that Redding's right was clearly established, and held that Wilson was entitled to qualified immunity. See 557 U.S. at 377-79, 129 S.Ct. 2633. Justice Souter noted that "there is no need that the very action in question have previously been held unlawful" and that "officials can still be on notice that their conduct violates established law in novel factual circumstances." 557 U.S. at 377-78, 129 S.Ct. 2633 (quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002))(internal quotation marks omitted). Justice Souter nevertheless concluded that, because "the number of cases viewing school strip searches differently from the way we see them are numerous enough, with well-reasoned majority and dissenting opinions, [there existed] doubt that we were sufficiently clear in the prior statement of the law." Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. at 378-79, 129 S.Ct. 2633. The Supreme Court accordingly held that the circumstances "warranted" granting Wilson qualified immunity. 557 U.S. at 379, 129 S.Ct. 2633. In reaching this conclusion, the Supreme Court's decision was informed by the fact that

557 U.S. at 378, 129 S.Ct. 2633 (alterations in original)(quoting Jenkins v. Talladega City Bd. of Ed., 115 F.3d 821, 828 (11th Cir.1997)(en banc)).

3. School-Related Search Precedent.

In Doe ex rel. Doe v. Little Rock School District, 380 F.3d 349 (8th Cir.2004), the United States Court of Appeals for the Eighth Circuit found that the practice of the Little Rock School District, which subjected students to random, suspicionless searches of their persons and belongings by school officials was unconstitutional, because the searches unreasonably invaded the students' legitimate expectations of privacy. 380 F.3d at 351. The Eighth Circuit noted that public school students have lesser expectations of privacy, owing, in large part, to the government's responsibilities as guardian and tutor of the children entrusted to its care. See 380 F.3d at 353. The Eighth Circuit stated that "[p]ublic school students' privacy interests, however, are not nonexistent." 380 F.3d at 353.

380 F.3d at 353-54. The Eighth Circuit then inquired into the intrusiveness of the search. See 380 F.3d at 354. The Eighth Circuit concluded that the search invaded the students' privacy interests in a major way, stating that "[a] search of a child's person or of a closed purse or other bag carried on her person, no less than a similar search carried out on an adult, is undoubtedly a severe violation of subjective expectations of privacy." 380 F.3d at 354 (citation omitted). "Students often carry items of a personal or private nature in their pockets and bags, and many students (whether or not they are carrying contraband) must surely feel uncomfortable or embarrassed when officials decide to rifle through their personal belongings." 380 F.3d at 354-55.

380 F.3d at 355. The Eighth Circuit also noted that the character of the intrusions were qualitatively more severe than that in Vernonia School District 47J v. Acton and Board of Education of Independent Sch. Dist. No. 92 of Pottawatomie County v. Earls, because, in the case before it, the searches could lead directly to the imposition of criminal sanctions. See 380 F.3d at 355. The Eighth Circuit further found that the Littler Rock Schools failed to demonstrate the existence of a need sufficient to justify the substantial intrusion. See 380 F.3d at 356.

380 F.3d at 356. The Eighth Circuit determined that the Littler Rock Schools' search practice was unreasonable, because the Littler Rock Schools' search practice effectively reduced expectations of privacy to nothing, and there was no evidence of unique circumstances that would justify significant intrusions. See 380 F.3d at 356.

In B.C. v. Plumas Unified School District, 192 F.3d 1260 (9th Cir.1999), the Ninth Circuit concluded that the "random and suspicionless dog sniff search" of a high school student "was unreasonable in the circumstances."133 192 F.3d at 1267. The Ninth Circuit found that the students' privacy interests were not minimal, although they have a lesser expectation of privacy than members of the population generally. See 192 F.3d at 1267. The Ninth Circuit stated that deterring student drug use is an important — if not compelling — government interest, but noted that the record did not disclose that there was a drug crisis or a drug problem at the high school. See 192 F.3d at 1268. "In the absence of a drug problem or crisis at Quincy High, the government's important interest in deterring student drug use would not have been placed in jeopardy by a requirement of individualized suspicion." 192 F.3d at 1268 (internal quotation marks and citation omitted).

In Hough v. Shakopee Public Schools, 608 F.Supp.2d 1087 (D.Minn.2009), the United States District Court for the District of Minnesota found that a policy of daily, suspicionless searches was not reasonable and thus was unconstitutional. See 608 F.Supp.2d at 1108. The district court recognized that any student's expectation of privacy is limited in a public school environment. See 608 F.Supp.2d at 1100-01. The defendant argued that students waived their right to privacy when they chose to accept special education services from the school district. See 608 F.Supp.2d at 1101. The district court rejected this argument, stating that

608 F.Supp.2d at 1101. The district court found that the special-education students' legitimate expectation of privacy fell below the "already limited baseline level of privacy afforded to public school students generally," because they sacrifice the privacy of medical and other information about their disabilities, but stated that the students "nevertheless retain some legitimate expectation of privacy in their bodies, clothing, and personal possessions." 608 F.Supp.2d at 1103. The district court found that the searches were intrusive. See 608 F.Supp.2d at 1103. Generally, students were asked to remove their shoes and socks, turn down the waistband of their pants, empty their pockets, search their backpacks and purses, and, at times, submit to a pat down. See 608 F.Supp.2d at 1103. The district court stated:

608 F.Supp.2d at 1105. The district court found that the evidence regarding the purpose of the policy, which was to remove distractions and dangerous items, and to create a calm and focused environment where students feel safe, was insufficient to justify an intrusive search of every student every day. See 608 F.Supp.2d at 1106. The district court stated:

608 F.Supp.2d at 1106-07. Balancing these factors, the district court thus concluded that the policy of daily, suspicionless searches was not reasonable. See 608 F.Supp.2d at 1109.

In United States v. Hartwell, 436 F.3d 174 (3d Cir.2006), the United States Court of Appeals for the Third Circuit addressed a similar issue but in a non-school setting — whether a search that a Transportation Security Administration ("TSA") agent conducted offended the Fourth Amendment. 436 F.3d at 175. On May 17, 2003, Hartwell arrived at the Philadelphia International Airport. See 436 F.3d at 175. "He reached the security checkpoint, placed his hand luggage on a conveyor belt to be x-rayed, and approached the metal detector. Hartwell's luggage was scanned without incident, but he set off the magnetometer when he walked through." 436 F.3d at 175. Hartwell removed all items from his pockets and passed through the metal detector again. See 436 F.3d at 175. A TSA agent took Hartwell aside after he passed through the metal detector and used a handheld "wand-like magnetometer to discover what set off the metal detector." 436 F.3d at 175. The wand revealed a solid object in Hartwell's cargo pants pocket. See 436 F.3d at 175-76. The agent asked what the object was, but Hartwell did not respond. See id. at 176.

436 F.3d at 176. The Third Circuit found that the administrative-search doctrine justified the search at the airport checkpoint. See 436 F.3d at 178. The Third Circuit noted that "[s]uspicionless checkpoint searches are permissible under the Fourth Amendment when a court finds a favorable balance between the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." 436 F.3d at 178-79 (quoting Illinois v. Lidster, 540 U.S. 419, 427, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004); Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979))(internal quotation marks omitted). The Third Circuit found that the airport checkpoint passed the test set forth in Brown v. Texas.

436 F.3d at 179-81 (internal citations and footnotes omitted).

LAW REGARDING QUALIFIED IMMUNITY

Qualified immunity recognizes the "need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Qualified immunity protects federal and state officials from liability for discretionary functions, and from `the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.'" Roybal v. City of Albuquerque, No. CIV 08-0181, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009) (Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). The Supreme Court deems it "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials." Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). "The qualified immunity analysis is the same whether the claims are brought under Bivens or pursuant to the post-Civil War Civil Rights Acts." Breidenbach v. Bolish, 126 F.3d 1288, 1291 (10th Cir.1997), overruled on other grounds as recognized in Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).

Camreta v. Greene, ___ U.S. ___, 131 S.Ct. 2020, 2030-31, 179 L.Ed.2d 1118 (2011).

Issues of qualified immunity are best resolved at the "earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)(quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)(per curiam)). "If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit." Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir.2010).

Qualified immunity shields government officials from liability where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. at 231, 129 S.Ct. 808 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. 2727). Qualified immunity also shields officers who have "reasonable, but mistaken beliefs," and operates to protect officers from the sometimes "hazy border[s]" of the law. Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). When a defendant asserts qualified immunity, the plaintiff must demonstrate: (i) that the defendant's actions violated his or her constitutional or statutory rights; and (ii) that the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir.2009).

1. Procedural Approach to Qualified Immunity.

The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz — by which a court first decides if the defendant's actions violated the constitution, and then the court determines if the right violated was clearly established — will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808. In rejecting the prior mandatory approach, the Supreme Court recognized that "[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right," and that such an approach burdens district courts and courts of appeals with "what may seem to be an essentially academic exercise." 555 U.S. at 237, 129 S.Ct. 808. The Supreme Court also recognized that the prior mandatory approach "departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable." 555 U.S. at 241, 129 S.Ct. 808 (alterations omitted)(internal quotation marks omitted). See Reichle v. Howards, ___ U.S. ___, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012)(affirming Pearson v. Callahan's procedure and noting that deciding qualified immunity issues on the basis of a right being not "clearly established" by prior case law "comports with our usual reluctance to decide constitutional questions unnecessarily"). Once the plaintiff establishes an inference that the defendant's conduct violated a clearly established constitutional right, a qualified immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d 867, 870-71 (10th Cir.1993).

The Supreme Court has recognized seven circumstances where district courts should proceed directly to and "should address only" the clearly established prong of the qualified immunity analysis: when (i) the constitutional violation question "is so factbound that the decision provides little guidance for future cases"; (ii) "it appears that the question will soon be decided by a higher court"; (iii) deciding the constitutional question requires "an uncertain interpretation of state law"; (iv) "qualified immunity is asserted at the pleading stage," and "the precise factual basis for the ... claim ... may be hard to identify"; (v) tackling the violation question "may create a risk of bad decisionmaking" because of inadequate briefing; (vi) discussing both elements risks "bad decisionmaking," because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought to the existence of the constitutional right; or (vii) the doctrine of "constitutional avoidance" suggests the wisdom of passing on the first constitutional question when "it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right." Kerns v. Bader, 663 F.3d 1173, 1180-81 (10th Cir.2011) (quoting Pearson v. Callahan, 555 U.S. at 236-42, 129 S.Ct. 808). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may "avoid avoidance" and address the first prong before the second prong in cases involving a recurring fact pattern, where guidance on the constitutionality of the challenged conduct is necessary, and the conduct is likely only to face challenges in the qualified immunity context. Camreta v. Greene, 131 S.Ct. at 2031-32. See Kerns v. Bader, 663 F.3d at 1181.134 "Courts should think carefully before expending `scarce judicial resources' to resolve difficult and novel questions of constitutional or statutory interpretation that will `have no effect on the outcome of the case.'" Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (quoting Pearson v. Callahan, 555 U.S. 223, 236-37, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). See Camreta v. Greene, 131 S.Ct. at 2032 ("In general, courts should think hard, and then think hard again, before turning small cases into large ones.").135 The Tenth Circuit will remand a case to the district court for further consideration when the district court has given cursory treatment to the clearly established prong of the qualified immunity analysis. See Kerns v. Bader, 663 F.3d at 1182.

2. Clearly Established Rights in the Qualified Immunity Analysis.

In evaluating whether the right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant's shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). "A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be `indisputable' and `unquestioned.'" Lobozzo v. Colo. Dep't of Corr., 429 Fed.Appx. 707, 710 (10th Cir.2011) (unpublished)(quoting Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir.1983)).

"Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the "very action in question ... unlawful." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "In determining whether the right was `clearly established,' the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether `the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.2001) (alteration in original)(quoting Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. 2151). A court should inquire "whether the law put officials on fair notice that the described conduct was unconstitutional" rather than engage in "a scavenger hunt for cases with precisely the same facts." Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004).

The Supreme Court has clarified that the clearly established prong of the qualified immunity test is a very high burden for the plaintiff: "A Government official's conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S.Ct. at 2083. "In other words, `existing precedent must have placed the statutory or constitutional question beyond debate.'" Reichle v. Howards, 132 S.Ct. at 2093 (quoting Ashcroft v. al-Kidd, 131 S.Ct. at 2083). While a case directly on point is not required, the Supreme Court has held that "existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 131 S.Ct. at 2083. "The operation of this standard, however, depends substantially upon the level of generality at which the relevant `legal rule' is to be identified." Anderson v. Creighton, 483 U.S. at 639, 107 S.Ct. 3034. "The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established." Ashcroft v. al-Kidd, 131 S.Ct. at 2084. The level of generality at which the legal rule is defined is important, because qualified immunity shields officers who have "reasonable, but mistaken beliefs" as to the application of law to facts and operates to protect officers from the sometimes "hazy border[s]" of the law. Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151.

The Tenth Circuit held in Kerns v. Bader that, although "a case on point isn't required if the impropriety of the defendant's conduct is clear from existing case law," the law is not clearly established where "a distinction might make a constitutional difference." 663 F.3d at 1188 (emphasis in original). In Kerns v. Bader, dealing with the search of a home, the Tenth Circuit explained that the relevant question "wasn't whether we all have some general privacy interest in our home," but "whether it was beyond debate in 2005 that the officers' entry and search lacked legal justification." 663 F.3d at 1183 (emphasis added). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. See Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir.2007) ("The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation."). "[W]hen an officer's violation ... is particularly clear ..., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law." Casey v. City of Fed. Heights, 509 F.3d at 1284. Furthermore, "general statements of the law are not inherently incapable of giving fair and clear warning...." Hope v. Pelzer, 536 U.S. at 741, 122 S.Ct. 2508.

ANALYSIS

The Court will grant the MSJ as to the federal claims in part and deny it in part. The Court concludes that the Plaintiffs' claims against ASI New Mexico include claims for the possession searches and the confiscation of personal property at the prom, and ASI New Mexico has not carried its summary judgment burden as to those claims. As for the claim arising out of the searches of the Plaintiffs' persons, the Court concludes that summary judgment is appropriate. ASI New Mexico is entitled both to Monell's rule against vicarious liability and to raise qualified immunity. As a result, ASI New Mexico can be held liable only if it had a policy or practice that directly caused a violation of the Plaintiffs' clearly established constitutional rights. ASI New Mexico had no such policy or practice. As a result, summary judgment as to the claim arising out of the searches of the Plaintiffs' persons is appropriate.

I. THE PLAINTIFFS' CLAIMS AGAINST ASI NEW MEXICO INCLUDE CLAIMS FOR THE POSSESSION SEARCHES AND THE CONFISCATION OF PERSONAL PROPERTY AT THE PROM, AND ASI NEW MEXICO HAS NOT CARRIED ITS SUMMARY JUDGMENT BURDEN AS TO THOSE CLAIMS.

At the outset, it is important to clarify what claims the Plaintiffs assert against ASI New Mexico. ASI New Mexico drafted its MSJ on the apparent belief that the Plaintiffs' claims against it arise only from the searches of the Plaintiffs' persons, and not from the searches and confiscations of the Plaintiffs' possessions. See MSJ ¶ 1, at 3 ("Plaintiffs' claims against ASI arise from pat-down searches that occurred at the April 16, 2011, Capital High School (`Capital High') prom."). It is, undoubtedly, true that the gravamen of the Complaint is about the invasive manner of the Plaintiffs' searches. Equally undoubtedly, however, the Complaint asserts claims against ASI New Mexico related to possession searches and confiscation. The Complaint mentions ASI New Mexico several times in connection with possession searches. For example:

Complaint ¶ 10, at 4; id. ¶¶ 48-53, at 11; id. ¶ 62, at 13 (paragraph numbers omitted from all). The Plaintiffs cite Aguilar's testimony to support one of these allegations:

Plaintiffs' Aguilar Depo. at 91:15-24. The Plaintiffs characterize this statement as "describing being instructed by ASI Commander Archuleta to discard Plaintiff Candice Herrera's prescription medicine." Response ¶ 1, at 2. The Plaintiffs do not cite other testimony — presumably because, although this testimony would be insufficient to withstand a motion for summary judgment had ASI New Mexico met its prima facie summary judgment burden as to any of the possession-search or confiscation claims, the testimony is sufficient to deny the asserted fact, which is that the Plaintiffs' claims against ASI New Mexico arise only from pat-down searches.

ASI New Mexico's response to this dispute is unsatisfactory. It asserts:

Reply ¶ 1, at 15 (citations omitted). To support this narrative, ASI New Mexico attaches this portion of Archuleta's deposition — to which the Court has added the final two questions and answers, for context:

Deposition of Martin "Mark" Archuleta Volume 2 at 191:24-197:2 (taken January 30, 2014), filed April 4, 2014 (Doc. 200-2)(emphasis in original). ASI New Mexico stuck to this theory throughout the Reply, never substantively arguing anything with respect to the possession-search/confiscation claims. See Reply at 12 n. 15 ("In responding to Plaintiffs' motion for partial summary judgment, ASI disputed that ... any ASI security officers searched Plaintiffs' possessions because evidence establishes that those searches were conducted by SFPS personnel.... [P]ossession searches are immaterial to Plaintiffs' unconstitutional search claim against ASI."); Reply at 13 n. 16 ("Plaintiffs' references to... possession searches in [a proposed undisputed fact] are immaterial to their 1983 claim against ASI.").

The troubles with this response are simple and several. First, and most fundamentally, the Complaint says what it says; it is ASI New Mexico's burden at summary judgment to, taking the Plaintiffs' claims as pled, "show that there is an absence of evidence to support the non-moving party's case.'" Herrera v. Santa Fe Pub. Schs., 956 F.Supp.2d at 1221 (quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d at 891). See Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. 2548. ASI New Mexico, evidently believing that the Plaintiffs had not asserted any possession-search or confiscation claims against it, did not attempt to meet this burden in its MSJ. Its attempt to salvage its summary judgment efforts in its Reply by arguing about one slice of testimony largely misses the point: given the claims the Plaintiffs have pleaded, ASI New Mexico bears the affirmative burden to demonstrate that no evidence supports the Plaintiffs' claims, and, having misapprehended the Complaint's claims, ASI New Mexico failed to carry that burden.

Even if the Court were to find that ASI New Mexico had carried its prima facie burden, its response to the Plaintiffs' evidence is inadequate. The Plaintiffs did not, as ASI New Mexico states, "assert[] that ASI Commander Archuleta decided to discard a pill confiscated from C. Herrera." Reply ¶ 1, at 15. The Plaintiffs assert, instead, that Archuleta instructed Aguilar to discard a bag containing that pill. See Response ¶ 1, at 2. Stating, as ASI New Mexico does, that Aguilar may have been mistaken is no answer. Indeed, its answer expressly rests on Archuleta's disagreement with Aguilar's account of the event. The Court must, at the summary judgment stage, view the facts in the light most favorable to the nonmovant, and Aguilar's narrative suggests that Archuleta — even at Lujan's direction — directed him to dispose of the bag containing the pill.

None of this is to say that ASI New Mexico is, in fact, liable for the possession searches or the confiscation. ASI New Mexico could have raised much the same defenses to those claims. Having misapprehended the Complaint, however, ASI New Mexico did not meet its prima facie burden as to those claims that it overlooked. Accordingly, the Court will deny the MSJ to the extent that it addresses the possession-search and confiscation dimensions of the Plaintiffs' § 1983 claim against ASI New Mexico.

II. THE COURT WILL GRANT SUMMARY JUDGMENT AS TO THE CONSTITUTIONAL CLAIMS FOR SEARCHES OF THE PLAINTIFFS' PERSONS, BECAUSE ASI NEW MEXICO ENJOYS QUALIFIED IMMUNITY FOR THAT PORTION OF THE SEARCHES FOR WHICH IT IS RESPONSIBLE — THE SUSPICIONLESS NATURE.

The Court will grant the MSJ as to the constitutional claims for searches of the Plaintiffs' persons. Under binding Tenth Circuit precedent, ASI New Mexico is entitled to both Monell's rule against vicarious liability and to the qualified-immunity defense. Under Monell, ASI New Mexico is not responsible for the invasive nature of the searches, because no policy or practice that ASI New Mexico had foreseeably led to those searches. Qualified immunity immunizes ASI New Mexico for the suspicionless nature of the searches, because, although the searches violated the Plaintiffs' constitutional rights, those rights were not clearly established at the time of the search. Accordingly, summary judgment is appropriate.

A. ASI NEW MEXICO IS A STATE ACTOR.

The Court concludes that ASI New Mexico is a state actor. The substance of ASI New Mexico's argument is not so much that ASI New Mexico is not a state actor; it is, instead, that ASI New Mexico is not responsible for the decision-making phase of the state action that harmed the Plaintiffs. That argument is, however, misplaced: whether ASI New Mexico was responsible for the decision-making phase of the state action that harmed the plaintiffs, although a factor in the analysis, does not change that ASI New Mexico freely engaged in this conduct, acting as Santa Fe Schools' right hand in conducting these searches, over a period of many years. Accordingly, although the Court grants the MSJ as to the constitutional claims, it does not grant the MSJ on the basis that ASI New Mexico is not a state actor.

ASI New Mexico's relationship with Santa Fe Public Schools satisfies the joint-action test. The Tenth Circuit has explained the test as follows:

Anaya v. Crossroads Managed Care Systems, Inc., 195 F.3d at 596. The case satisfies this standard. ASI New Mexico's agents both figuratively and literally stood side-by-side Santa Fe Schools officials conducting searches like those at issue in this case for years. ASI New Mexico's agents conducted these searches pursuant to Santa Fe Schools' directives. Moreover, ASI New Mexico trained and educated school officials on various security measures. ASI New Mexico was, in essence, Santa Fe Schools' right hand in conducting searches before proms. Accordingly, Santa Fe Schools and ASI New Mexico "acted in concert in effecting a particular deprivation of constitutional rights." Dennis v. Sparks, 449 U.S. at 27, 101 S.Ct. 183.

ASI New Mexico's relationship with Santa Fe Public Schools also satisfies the nexus test. That test asks whether the Santa Fe Public Schools "has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky, 457 U.S. at 993, 102 S.Ct. 2777. Again, Santa Fe Schools gave sufficient overt encouragement and engaged ASI New Mexico in a contract to carry out the service.136

ASI New Mexico's contrary argument that it was not involved in deciding whether to search all students at school dances is, although not irrelevant, only one factor in the state-action analysis — a factor that two other factors outweigh: (i) the longstanding nature of its relationship with Santa Fe Schools, by which ASI New Mexico was intimately involved with Santa Fe Schools' security procedures, and (ii) that ASI New Mexico's agents carried out the pat-downs at issue. That ASI New Mexico did not influence the initial decision to pat-down search all prom attendees, although persuasive as a causation argument, does not change the Court's state-action conclusion. Accordingly, the Court concludes that ASI New Mexico was a state actor.

B. ASI NEW MEXICO IS ENTITLED BOTH TO MONELL'S RULE AGAINST VICARIOUS LIABILITY AND TO QUALIFIED IMMUNITY.

Under binding Tenth Circuit precedent, ASI New Mexico is entitled both to Monell's rule against vicarious liability and to the qualified-immunity defense. As the Plaintiffs point out, this regime doubly insulates private corporations from liability, in a manner other defendants do not enjoy. That said, cases from the Supreme Court and the Tenth Circuit mandate this result. Moreover, on close examination of the logic behind Monell and qualified immunity, the initial instinct that this regime unfairly burdens plaintiffs is unfounded.

First, it is important to iron out the appropriate nomenclature in this area: properly understood, Monell is not a "defense," but an element of the Plaintiffs' claims. As the Honorable Frank Easterbrook, Judge for the United States Court of Appeals for the Seventh Circuit, has explained,

Smith v. Chicago School Reform Bd. of Trustees, 165 F.3d 1142, 1149 (7th Cir. 1999). To put an even finer point on the issue, the Monell standard springs from the Supreme Court's reading of § 1983's causation standard:

We begin with the language of § 1983 as originally passed:

17 Stat. 13. (emphasis added).

Monell, 436 U.S. at 691-92, 98 S.Ct. 2018. It is true that the Tenth Circuit has — once, in a footnote — referred to Monell as a defense:

Flanagan v. Munger, 890 F.2d 1557, 1572 n. 20 (10th Cir.1989). One cannot, however, square this single offhand reference to Monell as a defense with the Supreme Court's later guidance that, "in Monell and subsequent cases, we have required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal `policy' or `custom' that caused the plaintiff's injury." Board of County Commissioners v. Brown, 520 U.S. at 403, 117 S.Ct. 1382 (emphasis added). Properly understood, then, Monell's rule against vicarious liability is not a "defense", but the standard a plaintiff must meet to prove that a municipality subjected him or her to a deprivation of federal legal rights or caused such a deprivation. In other words, Monell explains the causation standard that a plaintiff suing a municipality must prove as part of his or her case-in-chief.137

That clarification deflates the argument that, by applying both Monell and qualified immunity to a private corporation, that private corporation enjoys more "defenses" than other defendants enjoy. Monell and qualified immunity occupy different analytical space: Monell is a fact-based causation standard, and qualified immunity is a legal defense. It is true, in a practical sense, that these two doctrines make recovery in § 1983 suits against private corporations difficult. That difficulty is not, however, a reason not to apply both standards. Monell simply articulates the burden of proof that a plaintiff must satisfy: before a plaintiff may take money from an entity's pockets — rather than, for example, from that entity's individual employee — the plaintiff must hurdle both Monell's factual barrier, by proving that the entity caused the deprivation of his or her federal rights, and qualified immunity's legal barrier, by proving that the entity thereby violated clearly established law. See DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 844 F.2d at 722-23 (allowing a private corporation to rely on both Monell and qualified immunity).

Having clarified the applicable language, the Court turns first to the point no party disputes: Monell applies to corporations, including ASI New Mexico. Despite the Court's initial puzzlement in the hearing, it is clear under Tenth Circuit law, and has been for decades, that Monell's rule against vicarious liability applies to private corporations:

Dubbs v. Head Start, Inc., 336 F.3d at 1216 (footnote omitted). The Plaintiffs evidently concede as much, both in the briefing and during the hearing:

Response at 48. See Tr. at 52:13-18 (Colfax)("[A Monell] defense makes sense, because a private corporation is acting — when it's acting as a state actor, it's acting very much like a governmental entity that can raise a custom and practice policy defense under [Monell]".).

There is a fair question whether this is a wise rule. The Honorable David Frank Hamilton, Circuit Judge for the United States Court of Appeals for the Seventh Circuit, in an opinion which the Honorable Richard A. Posner, Circuit Judge for the United States Court of Appeals for the Seventh Circuit, joined, criticized this rule at length, noting that, in his view, Monell's rule against vicarious liability incorrectly reads history, and stating that, in his view, the consensus among the federal courts of appeals extending Monell's rule to private corporations was an error. See Shields v. Illinois Dep't of Corrections, 746 F.3d 782, 790-92 (7th Cir.2014)("Congress ... enacted § 1983 against the backdrop of respondeat superior liability and presumably assumed that courts would apply it in claims against corporations under § 1983."). The Court agrees. Whatever the merits of this argument, however, Tenth Circuit precedent binds the Court on this point.

The central dispute in deciding this MSJ is whether ASI New Mexico, may also assert a qualified immunity defense. ASI New Mexico cites multiple published Tenth Circuit cases that suggest as much. See MSJ at 31 (citing, e.g., DeVargas v. Mason & Hanger-Silas Mason Co., 844 F.2d 714; Warner v. Grand Cnty., 57 F.3d 962). The Plaintiffs do not attempt to distinguish these cases, instead raising essentially three arguments against allowing ASI New Mexico to raise a qualified immunity defense: (i) Richardson v. McKnight and Filarsky v. Delia, which the Supreme Court "decided after the Tenth Circuit decided Warner v. Grand County and DeVargas v. Mason & Hanger-Silas Mason Co., compel[] the conclusion that a private corporation like ASI, which has a contract to perform a major, lengthy task for a government agency, should not be entitled to raise qualified immunity," Response at 32; (ii) "the particular circumstances presented in this case," Response at 32 — presumably, perceived similarities between this case and Richardson v. McKnight — and (iii) "the incoherence of applying Monell and qualified immunity protections to a corporation like ASI," Response at 32.

For substantially the reasons that ASI New Mexico raises in its Reply, see Reply at 34-35, the Court disagrees with each argument. Neither Richardson v. McKnight nor Filarsky v. Delia vitiates on-point Tenth Circuit precedent. Although the facts of this case are logically intermediate between Richardson v. McKnight and DeVargas v. Mason & Hanger-Silas Mason Co., given what the Supreme Court and the Tenth Circuit have recognized as the limited reach of Richardson v. McKnight, qualified immunity is appropriate. Finally, as the Court has explained, there is nothing incoherent about applying both Monell's causation standard and qualified immunity's legal defense to a corporation like ASI New Mexico.

First: before Richardson v. McKnight, it would have been relatively clear under Tenth Circuit law that ASI New Mexico was entitled to raise qualified immunity. The Tenth Circuit held "that a private individual who performs a government function pursuant to a state order or request is entitled to qualified immunity if a state official would have been entitled to such immunity had he performed the function himself." Warner v. Grand Cnty., 57 F.3d at 967. Moreover, the mere fact that ASI New Mexico is a corporation does not prevent it from asserting qualified immunity. See Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d at 1166 ("Under DeVargas, then, the fact that Sunflower is a corporation does not preclude it from arguing that it is entitled to assert qualified immunity. We therefore hold that there is no bar against a private corporation claiming qualified immunity."). The Plaintiffs, implicitly recognizing the difficulties that DeVargas v. Mason & Hanger-Silas Mason Co. and Warner v. Grand County present to their claims, argue that, after Richardson v. McKnight, those cases are no longer good law.

Tenth Circuit's reading of Richardson v. McKnight in Rosewood Services, Inc. v. Sunflower Diversified Services, Inc., substantially weakens the Plaintiffs' argument. The Tenth Circuit in Rosewood Services, Inc. v. Sunflower Diversified Services, Inc. describes Richardson v. McKnight's facts and the limits of its holding:

Rosewood Services, Inc. v. Sunflower Diversified Services, Inc., 413 F.3d at 1166-67. In light of this waiver, the Tenth Circuit went on to hold that, because Sunflower Diversified was subject to competitive market pressures, it was not entitled to qualified immunity. See 413 F.3d at 1168-69.

In Filarsky v. Delia, the Supreme Court recognized Richardson v. McKnight's limited reach. In that case, a subject of a workplace investigation sued an attorney whom a city had hired to represent it in that workplace investigation. See 132 S.Ct. at 1660. The attorney raised qualified immunity. The United States Court of Appeals for the Ninth Circuit held that he was not entitled to qualified immunity, "because he was a private attorney and not a City employee." 132 S.Ct. at 1661. Because this decision conflicted with a decision from the United States Court of Appeals for the Sixth Circuit, the Supreme Court granted a petition for certiorari. See 132 S.Ct. at 1661. Chief Justice John G. Roberts, Jr., writing for a unanimous Court, discussed at some length the history of private individuals' involvement in carrying out government functions, concluding that "the common law did not draw a distinction between public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities." 132 S.Ct. at 1661-64. Further, after reviewing history related to individuals "engaged in public service on a temporary or occasional basis," Chief Justice Roberts concluded that "immunity under § 1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis." 132 S.Ct. at 1665.

Chief Justice Roberts then explained why the purposes of government immunity did not require a different result:

132 S.Ct. at 1665-66.

Chief Justice Roberts also explained that neither Wyatt v. Cole nor Richardson v. McKnight mandated a different result. See Filarsky v. Delia, 132 S.Ct. at 1666.

Filarsky v. Delia, 132 S.Ct. at 1666-67.

The Honorable Sonia M. Sotomayor, Associate Justice of the Supreme Court, concurred in the Court's opinion, and added as follows:

Filarsky v. Delia, 132 S.Ct. at 1669-70 (Sotomayor, J., concurring)(emphasis in original).138

Particularly in light of Filarsky v. Delia and Rosewood Services, Inc. v. Sunflower Diversified Services, Inc., Richardson v. McKnight's rule applies only where all of the following circumstances are present: "private firm [is] systematically organized to assume a major lengthy administrative task ... with limited direct supervision by the government, undertak[ing] that task for profit and potentially in competition with other firms." Filarsky v. Delia, 132 S.Ct. at 1667 (quoting Richardson v. McKnight, 521 U.S. at 413, 117 S.Ct. 2100). Moreover, it expressly left open the question whether immunity is appropriate for a private individual — or, it would seem, an entity — acting under close official supervision. See 521 U.S. at 413, 117 S.Ct. 2100. In practice, Richardson v. McKnight may be limited to situations where the government privatizes an entire function — as Tennessee did with its prison system in Richardson v. McKnight.139

This case does not present those anything of that scale. ASI New Mexico was not systematically organized140 to assume the task of providing security for Santa Fe Public Schools — it, instead, was hired to provide security subject to Santa Fe Public Schools' direction and alongside its personnel. Richardson v. McKnight does not, accordingly, eliminate ASI New Mexico's entitlement to raise qualified immunity.

The Plaintiffs' policy arguments also fail. The Plaintiffs' contention that competitive market pressures will be sufficient to prevent ASI New Mexico from being too timid fails: given that ASI New Mexico works closely alongside immune government employees — like Romero — the notion that it alone will bear full liability for conduct that both government employees and ASI New Mexico employees jointly cause risks intimidating ASI New Mexico from performing its functions to the full extent. Given the importance of ensuring that children are safe at school events, that risk is unacceptably high. See Filarsky v. Delia, 132 S.Ct. at 1670 (Sotomayor, J., concurring)("When a private individual works closely with immune government employees, there is a real risk that the individual will be intimidated from performing his duties fully if he, and he alone, may bear the price of liability for collective conduct."). The second factor, ensuring that the threat of damages suits does not deter talented candidates from entering public service, also cuts in ASI New Mexico's favor. It is true that the parties' contract required that ASI New Mexico maintain general liability insurance. That factor is persuasive in the full-privatization context:

Richardson v. McKnight, 521 U.S. at 411, 117 S.Ct. 2100 (selected citations omitted). Here, however, the dynamics of the market differ: as in Filarsky v. Delia, there is no evidence that Santa Fe Schools had any permanent employee with ASI New Mexico's qualifications and resources in security. Because ASI New Mexico does not appear to depend on the government for its economic livelihood — as a company running one fully privatized government function does — it has the freedom to select work that will not expose it to liability for government actions, which makes more likely that it "will decline public engagements if [its employees] do not receive the same immunity enjoyed by their public employee counterparts." Filarsky v. Delia, 132 S.Ct. at 1666.

Extending qualified immunity to ASI New Mexico also serves the third and final justification for immunity — "[t]he public interest in ensuring performance of government duties free from the distractions that can accompany even routine lawsuits." 132 S.Ct. at 1666. It is quite clear that threats of lawsuits like this one distract ASI New Mexico from its main duties. This third factor also cuts in favor of extending qualified immunity to ASI New Mexico.

Accordingly, because ASI New Mexico acted under close official supervision, thereby distinguishing it from the defendant in Richardson v. McKnight, the Court will permit ASI New Mexico to assert a qualified immunity defense.

C. ASI NEW MEXICO IS ENTITLED TO QUALIFIED IMMUNITY, BECAUSE THE ONLY CONDUCT FOR WHICH IT MAY BE HELD ACCOUNTABLE — THE SUSPICIONLESS NATURE OF THE SEARCHES — DID NOT VIOLATE CLEARLY ESTABLISHED LAW.

The Court will grant the MSJ as to the constitutional claims. Taking together the operation of Monell and qualified immunity, ASI New Mexico is accountable under § 1983 only for the searches' suspicionless nature, and not for the invasive nature of the searches. Accordingly, ASI New Mexico enjoys qualified immunity.

It is important first to identify the conduct for which ASI New Mexico may fairly be held liable. It is not the case, as the Plaintiffs suggest, that ASI New Mexico is on the hook for every action by its employees. Rather, because ASI New Mexico is entitled to Monell's rule against vicarious liability, it is on the hook for its employees' actions only if they foreseeably flowed from a company policy or procedure.

For substantially the reasons the Court more fully explained in its previous Sealed Memorandum Opinion and Order dealing with the SFPS Defendants, no official ASI New Mexico policy that existed foreseeably caused the invasive searches of which the Plaintiffs complain. The best that the Plaintiffs can do to identify a policy is to point to the Pat-Down Guidelines and to the fact that Johnson did not discipline Reyes. Even assuming, without deciding, that these actions are sufficient to create a policy for Monell purposes, the most of which ASI New Mexico could be accused is having a policy of suspicionless searches and a policy of having students manipulate their bras. It is a considerable leap, however, from such facts to the notion that an ASI New Mexico officer should themselves touch the Plaintiffs' breasts or their inner thighs — and an even greater leap to contend that ASI New Mexico should have foreseen that its alleged practices would lead to ASI New Mexico officers touching the Plaintiffs' breasts or inner thighs.

Moreover, for the reasons that the Court more fully explained in Romero MOO, which disposed of the claims against Romero, the suspicionless-search practice, standing alone, did not violate clearly established law. The Court will not rehash its analysis here, but will point the parties to its Memorandum Opinion and Order and incorporate its reasoning on this issue by reference. See Romero MOO at 1194 ("The Court concludes ... that the Plaintiffs' right to be free from these suspicionless pat-down searches was not clearly established at the time of the Prom in April, 2011.").

In sum, the suspicionless search practice did not violate clearly established law, and the bra-pulling practice, although it violated clearly established law, did not foreseeably lead to the harm that the Plaintiffs endured. In other words, (i) although the suspicionless-search practice caused the Plaintiffs some injuries, it did not violate clearly established law, so ASI New Mexico is immune from liability from those injuries; and (ii) although ASI New Mexico's bra-pulling practice violated clearly established law, it did not, under Monell, cause the injuries that the Plaintiffs endured. Accordingly, summary judgment is appropriate.

IT IS ORDERED that the requests in Defendant ASI New Mexico, LLC's Motion for Summary Judgment on Plaintiffs' Second Amended Complaint [Doc. 100] and Supporting Memorandum, filed March 3, 2014 (Doc. 182), are granted in part and denied in part as to the federal claims. The motion is granted as it relates to the searches of the Plaintiffs' persons. The motion is denied as it relates to the searches and seizures of the Plaintiffs' possessions. The Court will, in a subsequent Memorandum Opinion and Order, dispose of the Plaintiffs' state-law claims.