JAMES O. BROWNING, District Judge.
The Court will first provide those facts that it deems undisputed for purposes of this motion as they are found in the MSJ and in the Plaintiffs' Opposition to Defendant Santa Fe Public Schools Board of Education's Motion for Summary Judgment on Count I of Plaintiffs' Second Amended Complaint, filed March 20, 2014 (Doc. 192) ("Response"). It will discuss, where appropriate, the SFPS Defendants' factual arguments in their Reply.
The Court will discuss the undisputed facts in several parts. The Court will first discuss the organization of Capital High School ("CHS") and the Santa Fe public school board, its arrangement with ASI New Mexico, and these organizations' knowledge of search procedure. It will then discuss the searches of the Plaintiffs, the Plaintiffs' mindset, and the searches' effects on the Plaintiffs. Finally, the Court will discuss parental complaints about the CHS Prom.
"Capital High School (`CHS') is a secondary school located in Santa Fe, New Mexico and is in the Santa Fe Public School District." MSJ ¶ 2, at 4 (setting forth this fact); Response ¶ 2, at 2 (not disputing this fact). See Second Amended Complaint ¶¶ 18-20, at 5-6, filed September 18, 2012 (Doc. 100) ("Complaint"). "Defendant School Board is the governing body of SFPS with sole, statutory, policy-making authority for SFPS." MSJ ¶ 3, at 4 (setting forth this fact). See N.M. Stat. Ann. § 22-5-4.
"ASI trained its employees" in a manner consistent with certain "written Pat Down Guidelines when performing searches at SFPS events." Response ¶ 18, at 10 (setting forth unmodified version of this fact).
"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 ¶ 25, at 11 (setting forth this fact).
"Wand searches were added to [the schools'] search protocol during ASI's tenure, resulting in students entering an SFPS prom being subjected to three searches: a pat-down, a wand search, and a possession search." Response ¶ 31, at 12 (setting forth unmodified version of this fact). See Archuleta Depo. Vol. II at 183:8-11; id. at 188:4-15.
MSJ ¶ 9, at 5-6 (emphasis in original) (correction added) (setting forth this fact); Response ¶ 9, at 3 (stating that this fact is "[u]ndisputed").
"Prior to the [CHS Prom], Principal Romero directed ASI to carry out the same pat-downs, wanding, and possession searches that were part of [the] customary practice." Response ¶ 33, at 12 (setting forth unmodified version of the fact).
"All students attending the [CHS Prom] were subjected to a pat-down search, a wand search, and a search of any bags or jackets they had in their possession." Response ¶ 35, at 12 (setting forth this fact).
"Each of the four individual Plaintiffs" — Candice Herrera, Tiffany Herrera, Ashley Hurtado, and Arianna London — underwent a pat-down search at the CHS Prom. Response ¶ 1 (setting forth this fact); C. Herrera Depo. at 127:16-128:9; Deposition of Tiffany Herrera at 58:20-23 (taken August 13, 2012), filed March 20, 2014 (Doc. 192-9) ("T. Herrera Depo."); id. at 59:9-14; Videotaped Deposition of Ashley Hurtado. at 109:23-110:4 (taken July 30, 2012), filed March 20, 2014 (Doc. 192-10) ("Hurtado Depo."); London Depo. at 120:9-17.
C. Herrera Depo. at 127:16-128:9. See Response ¶ 1(a), at 7 (setting forth this fact).
T. Herrera Depo. at 58:20-23; id. at 59:9-14. See Response ¶ 1(b), at 7-8 (setting forth this fact).
Hurtado Depo. at 109:23-110:4. See Response ¶ 1(c), at 8 (setting forth this fact).
The security guard
London Depo. at 120:9-17. See Response ¶ 1(d), at 8 (setting forth this fact).
The "Plaintiffs Candice Herrera, Tiffany Herrera and Ashley Hurtado had prior notice and knowledge that they would undergo pat-down and possession searches at the prom." MSJ ¶ 14, at 7 (setting forth this fact). See Response ¶ 14, at 5 (not controverting this fact).
C. Herrera underwent pat-down searches by ASI New Mexico guards at the 2010 Capital High prom and homecoming dances, and, therefore, she knew she would be subject to a patdown search when she arrived at the prom; despite this knowledge, she attended the 2011 CHS Prom, although she did not know that the search would be as intrusive as it was. See Deposition of Candice Herrera at 198:22-200:9 (taken July 27, 2012), filed November 13, 2012 (Doc. 113-4); id. at 201:4-202:15; id. at 203:11-204:24.
"Plaintiff T. Herrera did not object to undergoing a pat-down search at the [CHS] Prom, or complain regarding its scope, at the time of the search." MSJ ¶ 17, at 8 (setting forth this fact). See Deposition of Tiffany Herrera at 67:8-10 (taken August 13, 2012), filed March 3, 2014 (Doc. 182-14).
"Shortly after the [CHS Prom], both Plaintiff Candice Herrera and Vincent Herrera expressed concern to Principal Romero about the searches that had been conducted." Response ¶ 41, at 13 (setting forth this fact).
"This case arises from searches that occurred at the" CHS Prom. MSJ ¶ 1, at 4 (setting forth this fact); Response ¶ 1, at 2 (not disputing this fact). See Complaint ¶¶ 3-4, at 2-3. The "Plaintiffs allege ... that the Code of Conduct requires individualized reasonable suspicion before pat-down or possession searches can properly be pursued and ... that `[t]he searches of students, including Plaintiffs, and their personal property on April 16, 2011, occurred in violation of the code of conduct....'" MSJ ¶ 5, at 5 (quoting Complaint ¶¶ 111-13, at 20-21) (setting forth these facts). See Response ¶ 5, at 2 (stating that this fact is "[u]ndisputed"); Complaint ¶¶ 111-13, at 20-21.
"The Court issued a Temporary Restraining Order requiring SFPS to only conduct pat-down searches of students entering the 2011 Santa Fe High School prom upon individualized reasonable suspicion." Response ¶ 44, at 14 (setting forth this fact).
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. 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, Barbara Gudwin, Glenn Winkle, Linda Trujillo, Frank Montano, and Steven J. Carillo, in their official capacity as SFPS Board of Education members, Bobbie J. Gutierrez, in her official capacity as SFPS Superintendent, Romero, in her official capacity as Capital High Principal, and Leslie Kilmer, in her official capacity as Santa Fe High School Principal (collectively "School Defendants") that the Plaintiffs would concede the motion and file a rule 41 dismissal of Counts II-V of the Second Amended Complaint against all School Defendants, which the Plaintiffs filed on November 13, 2012. See Plaintiffs' Unopposed Motion to Voluntarily Dismiss Counts II-V Against 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 the Romero MOO, the Court granted the Romero MSJ, eliminating the individual-capacity claim against Romero. See Romero MSJ passim.
The SFPS Defendants move for summary judgment on Count I of the Complaint, because "the facts in the record herein do not support any claim made by Plaintiffs against the School Board or its employees in their official capacities." MSJ at 1. The SFPS Defendants note that "the individual school defendants sued only in their official capacities moved for dismissal or summary judgment on Count I."
MSJ at 2-3. In the SFPS Defendants' view, the Plaintiffs have not alleged or proved that the SFPS Defendants made "a deliberate or conscious decision ... that was the moving force in causing any constitutional injury to any Plaintiff." MSJ at 3. They contend that, if the Court disagrees, and holds that the SFPS Defendants may be liable
MSJ at 3. In the SFPS Defendants' view, the Plaintiffs have not developed "evidence that the policies and practices of the School Board caused any harm to Plaintiffs or their rights and the School Board and individual official capacity school defendants should be dismissed from this matter with prejudice." MSJ at 3.
After reviewing the familiar standards for summary judgment, see MSJ at 10-11, the SFPS Defendants note that the only remaining claim against the SFPS Defendants is a claim that they violated the Plaintiffs' Fourth-Amendment rights, see MSJ at 12. In their view, "[n]o conduct that is properly attributable to the School Board evidences a deliberate or conscious choice of the School Board that was the moving force causing Melanie Romero to request patdown searches without individualized reasonable suspicion." MSJ at 12. Citing the familiar standards for municipal liability under 42 U.S.C. § 1983, see MSJ at 12-13, the SFPS Defendants argue that,
MSJ at 13. The SFPS Defendants then put the facts in context, noting that, because the School Board governs the Santa Fe Public School district and has "sole, statutory, policy-making authority for SFPS, ... in effect, the School Board is SFPS." MSJ ¶ 13. At the same time, it notes that Romero did not have authority to make policies within SFPS — indeed, she "lacked authority to adopt even CHS policies that were not consistent with School Board policies." MSJ ¶ 13. They note that the Code of Conduct "allows only that `[e]ach school may adopt additional policies and regulations that are consistent with school district standards of behavior.'" MSJ at 13-14 (quoting Code of Conduct at 10).
It also notes that, as part of its authority under state law, the School Board is responsible for the Code of Conduct's content. See MSJ at 14. After reviewing the history of the Code of Conduct that the Court laid out in the factual background, it argues:
MSJ at 14-15 (emphasis in original).
The SFPS Defendants contend that, if the Court finds that they are liable for
MSJ at 14-15. In the SFPS Defendants' view, the Plaintiffs have not shown that they were injured by undergoing "a normal administrative pat-down search that did not include improper touching." MSJ at 15. Accordingly, the SFPS Defendants ask the Court to limit the Plaintiffs' recovery to nominal damages on any claim that the School Board is liable for Romero's actions. See MSJ at 16.
The SFPS Defendants finally argue that no evidence tends
MSJ at 17. They also contend that no evidence shows that the School Board should have expected that ASI New Mexico guards "would touch the breasts or bare legs, or pull female attendees' bras, as the searches at earlier CHS dances and similar off-campus events did not involve such conduct." MSJ at 17. They contend that the Code of Conduct does not authorize pat-down searches of the sort of which the Plaintiffs complain, and that the evidence does not show "that groping, if it did occur, was caused by any policy or practice of the School Board." MSJ at 17. In its view, "[t]here is not sufficient evidence to send the School Board to trial and expose it to liability for alleged groping during the pat-down searches and such claims should be dismissed with prejudice." MSJ at 17. It notes that, under Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982), "[a] state, its agencies or officials may not be assessed liability for the acts of a private individual, except by a `fair attribution' of those actions to the State." MSJ at 17 (quoting 457 U.S. at 936-37, 102 S.Ct. 2744). In sum, in its view, the Court should grant summary judgment on Count I as against the SFPS Defendants. See MSJ at 17-18.
After reviewing the summary judgment standards, see Response at 14-15, the Plaintiffs recast the SFPS Defendants' position as follows:
MSJ at 15-16 (citations removed). After reviewing the Court's decision "that the suspicionless pat-downs at prom violated Plaintiffs' Fourth Amendment rights" and the basic case law undergirding that decision, see Response at 16-20 (citing Romero MOO passim),
In the Plaintiffs' view, two assumptions that undergird the SFPS Defendants' argument are faulty:
Response at 21. As to the first assumption, the Plaintiffs contend that the SFPS Defendants are liable for their "informal, longstanding practice of conducting suspicionless pat-downs of all students entering prom regardless of whether that practice was documented in its Code of Conduct or whether the Board ever made an identifiable `deliberate choice' to formally adopt that practice." Response at 21. They resist the SFPS Defendants' conflation of "the requirement that SFPS's custom or practice be the cause or `moving force' behind the violation with a requirement that the searches be the result of a specific or formal policy or `choice' of the School Board." Response at 22. In their view, they need not show such an affirmative choice; "[t]o the contrary, when a challenged action is taken pursuant to a `custom or usage' a § 1983 plaintiff can establish liability `without adducing evidence of an affirmative decision by policymakers.'" Response at 22 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 502 n. 10, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). They note that Monell v. N.Y.C. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), itself "provid[es] for § 1983 liability for an established custom `even though such a custom has not received formal approval through
Response at 22-23 (quoting Romero MSJ). They note that the blanket pat-down policy "was applied at every prom from at least 2004 through the 2011 Capital High School prom — an uninterrupted practice of suspicionless pat-downs carried through at least sixteen SFPS proms." Response at 23 (citing, e.g., Archuleta Depo. Vol. II at 168:2-169:8). In their view, "[t]he only alteration made to this search protocol between 2004 and 2011 was the introduction of wand searches, such that all students would be subjected to three searches (pat-down, wand, and possession) instead of only pat-downs and bag searches." Response at 23 n. 1 (citing Archuleta Depo. Vol. II at 183:8-12). They note that, "[y]ears before the 2011 prom, SFPS officials (including then-Superintendent Rendon) in a meeting with ASI officials established that patdown searches were to be conducted of all students at prom as part of SFPS's standard search protocol." Response at 23 (citing, e.g., Archuleta Depo. Vol. II at 168:2-169:8; id. at 182:2-11). In their view, "[b]ased on SFPS's directive, it was clear to ASI that such searches had `always' been conducted and would `continue to be' part of SFPS's customary practice." Response at 24 (citing, e.g., Johnson Depo. at 84:10-16; id. at 85:16-21; id. at 124:20-25; id. at 130:21-131:8). The Plaintiffs submit that "SFPS's customary search practice includes bra searches of female students," that "written Pat Down Guidelines applicable to student searches specifically required bra searches, and both SFPS administrators and ASI security guards were trained that pat-down searches were to be conducted in a manner consistent with the Guidelines," and that "[t]he principals of Capital High School and Santa Fe High School reviewed the written Pat Down Guidelines." Response at 24.
The Plaintiffs note that, in their view, "Romero implemented SFPS's established custom and practice of suspicionless patdown searches at the 2011 Capital High School prom by instructing ASI and SFPS personnel to conduct pat-downs, wandings, and possession searches of all students." Response at 24. They state that, "[c]onsistent with SFPS's customary practice and Romero's directive, ASI employees patted down all students entering the prom, including Plaintiffs," and that, "[f]ollowing SFPS's standard search procedure, the pat-down searches conducted at the 2011 Capital High School prom also included searches of the bra area." Response at 24-25. They note that, after the Plaintiffs expressed their concerns about the searches conducted at the 2011 CHS prom, the "Executive Team" considered changing search policies, but decided to keep them in place. See Response at 25. Moreover, they note that "Superintendent Gutierrez indicated she had no objection to any aspect of the Pat Down Guidelines (which included bra searches)." Response at 25.
In the Plaintiffs' view, this "persistence in maintaining its blanket pat-down protocol further confirms that suspicionless patdowns were a custom and practice of SFPS." Response at 25-26. They characterize Connick v. Thompson, ___ U.S. ___, 131 S.Ct. 1350, 179 L.Ed.2d 417
The Plaintiffs next attack "[t]he second assumption underlying Defendant's argument — that SFPS is somehow only liable for `normal administrative pat-down search[es].'" Response at 27 (quoting MSJ at 16-17) (alterations in Response). In their view,
Response at 27. They contend that "`[t]ort defendants, including those sued under § 1983, are responsible for the natural consequences of their actions,' and may be `held liable for those consequences attributable to reasonably foreseeable intervening forces, including the acts of third parties.'" Response at 27 (citing Kerman v. City of New York, 374 F.3d 93, 126 (2d Cir.2004)) (internal punctuation and quotations omitted from Response). They argue that, "[e]ven where a third party (here, the ASI guards performing searches) exercises `independent judgment in determining whether to follow a course of action recommended by the defendant[,]' that does not absolve the defendant [of] liability for the consequences of that course of action." Response at 28 (quoting Kerman v. City of New York, 374 F.3d at 127).
With these standards in mind, the Plaintiffs argue that they have set forth "sufficient evidence to support a finding that SFPS's established pat-down search practice included the pulling and shaking of students' bras, and that the bra areas of Plaintiffs were searched as a result of that established practice." Response at 28. The Plaintiffs assert that "[t]he parties agree that bras were pulled and bras and/or breasts were shaken at the 2011 prom, they merely disagree as to the way in which the bra searches were conducted." Response at 28-29. In their view, "[r]egardless of how these factual disputes are resolved, SFPS is liable for the intrusive bra searches of Plaintiffs because they foreseeably flowed from SPFS's search practices." Response at 29. The Plaintiffs contend that, "[b]ecause the evidence
The Plaintiffs assert that "[t]he manner in which ASI guards were instructed to carry out SFPS's search protocol invited the additional type of invasive elements of the pat-downs Plaintiffs experienced." Response at 29. They elaborate:
Response at 29 (citations omitted). Moreover, they contend that, because the "Pat Down" Guidelines warned guards that students may conceal contraband in their inner thighs, it was "likely that guards would check students' inner thighs for contraband (which is most easily accomplished by lifting the student's dress and/or feeling with one's hand)." Response at 30. They submit that "[t]he more intrusive aspects of Plaintiffs' searches, including the guard cupping breasts, putting fingers into cleavage, and rubbing inner thighs thus foreseeably flow from SFPS's search protocol." Response at 30.
The Plaintiffs point to the Court's decision in Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1253-55 (D.N.M.2009) (Browning, J.), for the proposition that where evidence supports a finding of foreseeability, whether a result is foreseeable is a fact question for the jury:
Response at 30.
The Plaintiffs then turn to the SFPS Defendants' argument that their actions were not the moving force behind the Plaintiffs' constitutional injuries:
Response at 31. They contend that, regardless that ASI New Mexico searched the Plaintiffs, "[t]he fact that the pat-down searches were physically performed by ASI personnel does not break the causal chain or absolve SFPS from liability for the searches." Response at 31. In their view,
Response at 32 (selected citations omitted).
They note that, to the extent that the SFPS Defendants suggest that the Plaintiffs'
With respect to the damages argument, the Plaintiffs contend that
Response at 33-34. The Plaintiffs argue that the Court should not restrict their recovery to nominal damages, because compensatory damages are the appropriate way to redress the emotional and dignitary harms that they have suffered. See Response at 34. They contend that "[a] plaintiff's testimony is sufficient to establish her emotional injuries; no medical testimony or treatment is required." Response at 34 (citing, e.g., Forsyth v. City of Dallas, Tex., 91 F.3d 769 (5th Cir.1996)). They contend that "[t]he determination of damages for non-pecuniary injuries such as emotional distress, humiliation, and harm to personal dignity and security is a quintessential factual question for the jury to resolve." Response at 35. In their view,
Response at 35. The Plaintiffs argue that the SFPS Defendants are liable for their damages, because the searches that they underwent "foreseeably flowed from SFPS's custom and practice." Response at 35-36. Accordingly, in their view, "limiting Plaintiffs to nominal damages would only be appropriate if there were no evidence that Plaintiffs suffered any injuries from any aspect of the searches. There is ample evidence of the injuries Plaintiffs suffered." Response at 36. The Plaintiffs point to their testimony about their substantial emotional injuries and contend that "[t]he scarring experience of being unlawfully searched left plaintiffs with ongoing anxiety, worry, and fear about being subjected to unlawful searches again in the
They also resist the SFPS Defendants' "repeated suggestion that Plaintiffs did not suffer injury because they purportedly had no objection to the searches at the time they were being conducted." Response at 37. They explain:
Response at 36-37 (citations omitted).
The Plaintiffs contend that the Court should not limit the SFPS Defendants' liability to damages associated only with a normal pat-down, because the SFPS Defendants and ASI New Mexico are jointly and severally liable for the Plaintiffs' injuries. See Response at 38-39. They note that, under Tenth Circuit law, multiple defendants — including § 1983 defendants — who concurrently cause a single, indivisible injury are jointly and severally liable for the entire injury. See Response at 39 (citing Northington v. Marin, 102 F.3d 1564 (10th Cir.1996)). They contend that the SFPS Defendants and ASI New Mexico
Response at 39-40 (citations omitted).
The Plaintiffs also note that the SFPS Defendants do not argue that the Court should enter summary judgment on their claims "based on SFPS's suspicionless searches of possessions and seizure of personal items." Response at 40. They contend that the Court's TRO MOO indicated that the searches and seizures were probably unreasonable, see Response at 40 (citing MOO at 31, 35-37), and submit that
Response at 40-41. They contend that the SFPS Defendants are liable for this conduct: "Because the possession searches and confiscation of personal property at the 2011 Capital High School Prom were carried out pursuant to [its] established practice, SFPS' custom is the moving force behind the unlawful searches and seizures." Response at 41. They assert that, "[f]ar from demonstrating the absence of any dispute of material fact entitling it to summary judgment on the issue, SFPS hardly makes any mention of the possession searches and seizures claims," but "instead focuses on the pat-down searches with only passing reference to the fact possession searches were performed." Response at 41. They contend that
Response at 41-42. Accordingly, the Plaintiffs ask the Court to deny the MSJ. See Response at 42.
In their Reply, the SFPS Defendants reiterate their request that the Court grant them summary judgment as to the Plaintiffs' Fourth-Amendment claim. See Response at 2. After recounting the
Response at 3-5 (citation and footnote omitted).
The SFPS Defendants review their view of the law — most significantly, the "moving force" requirement. Reply at 24-25. They note that, in Brammer-Hoelter v. Twin Peaks Charter Academy, 602 F.3d 1175 (10th Cir.2010), the United States Court of Appeals for the Tenth Circuit held that, because it
Brammer-Hoelter v. Twin Peaks Charter Academy, 602 F.3d at 1188-89 (emphasis In original). See Response at 25-26. In that case, the SFPS Defendants point out, the Tenth Circuit
Reply at 26 (bolded citations altered). The SFPS Defendants assert that the Plaintiffs' argument that they need show only that a policy, custom, or practice exists, and that it is causally connected to the constitutional violation, is incorrect. See Reply at 27. They note that the Plaintiffs have conceded that the School Board's policies, as the Code of Conduct expresses them, "disallow searches of persons and possessions without individualized reasonable suspicion." Reply at 27. They contend that the Plaintiffs' custom-or-practice argument — that is, that School District employees have testified to a history of searches like those that occurred at the Capital High School Prom — "misconstrue[s] the School Board's position and the controlling law." Reply at 27-28. The SFPS Defendants state:
Reply at 27. The SFPS Defendants concede that the Plaintiffs could satisfy this requirement by pointing to a custom and not only to a policy, but assert that they still "`must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.'" Reply at 27-28 (quoting Goff v. City of Tulsa, 202 F.3d 282, 1999 WL 1246914 at *2 (10th Cir.1999) (unpublished table disposition)
Goff v. City of Tulsa, 202 F.3d 282, 1999 WL 1246914 at *2.
528 Fed.Appx. at 932 (citations, internal quotation marks, and alterations omitted). See Reply at 28. They also note that the Tenth Circuit has "warn[ed] in Cacioppo [v. Town of Vail] that, `where a court fails to adhere to rigorous requirements of culpability and causation, municipal liability collapses into respondeat superior liability.'" Response at 29 (quoting Cacioppo v. Town of Vail, 528 Fed.Appx. at 931).
The SFPS Defendants then turn to New Mexico school districts' statutory structure:
Reply at 29-30 (bolded citation altered). The SFPS Defendants note that the enabling statutes constrain a school district's operations, and that the School Board could not ignore this statutory framework and restructure a school district and "redistribut[e] legislatively specified powers and duties. Similarly, a school principal is not empowered to ignore or violate policies
The SFPS Defendants explain what they understand to be a key problem with the Plaintiffs' argument:
Reply at 31.
The SFPS Defendants note that the Plaintiffs "spend time arguing that the Court was correct" in its ruling that "Romero violated Plaintiffs' Fourth Amendment rights by calling for a pat-down search of all attendees at the Prom without individualized reasonable suspicion." Reply at 32.
Reply at 32.
Reply at 32. In the SFPS Defendants' views, those minutes "and the allegations in Plaintiffs' initial and Second Amended
The SFPS Defendants assert that
Reply at 35. The SFPS Defendants assert that no evidence supports a showing "that the School Board adopted or knew of any search protocol that permitted or required `bra searches' of any kind or searches of bare limbs." Reply at 35. Moreover, the SFPS Defendants assert that "the School Board does not admit `to having a suspicionless pat-down search practice at high school proms.'" Reply at 35. The SFPS Defendants elaborate:
Reply at 35-36.
The SFPS Defendants conclude as follows:
Reply at 37.
The bulk of the discussion at the hearing concerned the Plaintiffs' motion on the same subject, and the parties discussed the MSJ with that backdrop in mind. Accordingly, the Court will not rehearse the arguments here. The Court stated, however, that it was inclined to deny the MSJ as to damages, because, although the damages case did not seem robust, the Court could not, as a matter of law, limit the damages to a dollar. See Transcript of Hearing at 202:8-16 (taken April 8, 2014) (Court).
After the hearing, the Plaintiffs sent the Court a letter. See Electronic Mail Transmission from Reed Colfax to the Court (dated April 14, 2014), filed April 14, 2014 (Doc. 207) ("Plaintiffs' Letter"). The Plaintiffs' Letter covers a variety of topics, some of which are irrelevant to the MSJ. Related to the MSJ, the Plaintiffs noted that, as they argued in their briefing, the SFPS Defendants need not have known of the suspicionless-search practice, and stated "that the Board had been aware of the search policy and the executive team's interpretation of the search policy through the comments of Board member Gonzales and Deputy Superintendent Morgan during Board meetings that pre-dated the 2011 Capital High School Prom." Plaintiffs' Letter at 1.
Gutierrez Depo. Vol. I at 131:8-25. See Plaintiffs' Letter at 2. They note that, because "SFPS has consistently conducted pat-down searches as part of the search process at dances for at least seven years," "[t]he searches the Board members observed, therefore, necessarily included pat-downs." Plaintiffs' Letter at 2.
The Plaintiffs further note that, during the hearing, the Court asked the SFPS Defendants' counsel "whether Ms. Gutierrez was aware of pat-downs being part of the search practice. Ms. Gutierrez testified before this Court at the hearing on Plaintiffs' Motion for Temporary Restraining Order that pat-downs were part of the `standard procedure' for conducting searches of students entering proms." Plaintiffs' Letter at 2 (citing Transcript of Temporary Restraining Order Hearing at 56:9-58:23 (taken May 19, 2012), filed April 15, 2014 (Doc. 207)).
Finally, the Plaintiffs note
Plaintiffs' Letter at 2 (quoting School District Defendants' Response in Opposition to Plaintiffs' Motion for Temporary Restraining Order at 12, filed May 19, 2011 (Doc. 28) ("SFPS Defendants' TRO Opp.") (emphasis added in Plaintiffs' Letter)). The Plaintiffs assert that
Plaintiffs' Letter at 2 (quoting SFPS Defendants' TRO Opp. at 3.) (emphasis added in Plaintiffs' Letter). The Plaintiffs state that the evidence which they have cited "should help resolve the questions the Court raised at the hearing about Plaintiffs' ability to prove, if the Court deems such proof is necessary, that the Board had knowledge of the nature of the SFPS
The SFPS Defendants' counsel responds:
Electronic Mail Transmission from Gerald Coppler to Reed Colfax, et al., dated April 14, 2014, filed April 14, 2014 (Doc. 208). The SFPS Defendants did not provide additional briefing or evidence.
ASI New Mexico responds:
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 that the Plaintiffs have cited. The SFPS Defendants have not disputed the evidence, offered any contrary evidence, or disputed what the Plaintiffs contend.
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).
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,
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.
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),
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").
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 defendants] set in motion a series of events that [the defendants] knew or reasonably should have known would cause others to deprive [the plaintiffs] of [their] 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).
"Under Section 1983, liability attaches only to conduct occurring `under color of law." Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir.1995). 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
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)).
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). 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.).
Trask v. Franco, 446 F.3d at 1046. Thus, in the context of a claim under the Fourth Amendment to the Constitution of the United States of America, 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)).
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
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)).
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.
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
Maryland v. King, 133 S.Ct. at 1970 (citations omitted).
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
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); Skinner, at 624, 109 S.Ct. 1402). 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).
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.
Turning to the degree of intrusion, the Supreme Court stated that the degree of
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
In Safford Unified School District No. 1 v. Redding, 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. 364, 374, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009). 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 in and helped
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 and 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 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,"
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,
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)).
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 ("LRSD"), 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 however, that "[p]ublic school students' privacy interests, however, are not nonexistent." 380 F.3d at 353.
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 LRSD 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 LRSD's search practice was unreasonable, because LRSD's 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
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 the expectation of privacy of any student 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 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).
The Court will grant the MSJ in part and deny it in part. There is sufficient evidence in the record from which a reasonable jury could find that the SFPS Defendants had a custom or practice of conducting suspicionless pat-down searches before school events; that this policy caused the Plaintiffs' injuries, insofar as they relate to the suspicionless nature of the searches; and that the SFPS Defendants acted with the requisite state
There is sufficient evidence on which a reasonable jury could find that the SFPS Defendants had a custom or practice of conducting suspicionless searches before school events. The evidence is primarily circumstantial, but there is enough of it that a reasonable jury could conclude that the SFPS Defendants trained its agents in search policy with deliberate indifference: that is, there is enough evidence from which a jury could infer that the suspicionless-search practice was widespread, that the SFPS Defendants were on notice of the practice, and that they were deliberately indifferent to this pattern of constitutional violations. The jury also could reasonably conclude that this deliberate indifference was the moving force behind the Plaintiffs' constitutional injuries, and that the SFPS Defendants acted with a culpable state of mind. Accordingly, summary judgment as to that portion of the Plaintiffs' claims that relates to the suspicionless nature of the searches conducted is inappropriate.
The Tenth Circuit, in an opinion that Judge Scott M. Matheson, Jr. authored, and Judges Paul Kelly, Jr. and William J. Holloway, Jr. joined, has recently succinctly laid out municipal-liability law:
Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769-771 (10th Cir.2013). The issues, then, are whether there is enough evidence that a reasonable jury could conclude that: (i) the SFPS Defendants had a well-settled custom or practice, or deliberately indifferent training or supervision; (ii) the SFPS Defendants' well-settled custom or practice is closely related to the violation of the Plaintiffs' Fourth Amendment rights — that is, it is the moving force behind the injury alleged — and (iii) whether the SFPS Defendants adopted this practice with deliberate indifference to its known or obvious consequences. The Court concludes that there is enough evidence that a reasonable jury could find for the Plaintiffs on each point. Accordingly, summary judgment is inappropriate.
There is enough evidence that a reasonable jury could deem the practice of suspicionless pat-down searches to arise from the SFPS Defendants' deliberately indifferent training or supervision.
As all parties agree, no formal policy of the SFPS Defendants caused the Plaintiffs' constitutional injuries. The parties have agreed, and the Court has found undisputed, that
MSJ ¶ 9, at 5-6 (emphasis in original) (correction added) (setting forth this fact); Response ¶ 9, at 3 (stating that this fact is "[u]ndisputed").
That there was no formal policy is not, however, the end of the inquiry. As the parties substantially agree, the MSJ focuses on whether, despite the paper policy, the SFPS Defendants had a de facto custom or practice that caused the Plaintiffs' injuries. In other words, there remains the question whether the SFPS Defendants had a well-settled custom or practice, or trained or supervised its agents with deliberate indifference to their acts' known or obvious constitutional consequences. See Schneider v. City of Grand Junction Police Dep't, 717 F.3d at 770.
At the outset, it is important to clarify something that the Plaintiffs' briefing obscures: the fact that individual public-school employees engaged in a custom or practice does not, of its own force, mean that the SFPS Defendants are responsible for that custom or practice. Much of the Plaintiffs' briefing rests on a fallacy of equivocation: the Plaintiffs litter their Response with references to SFPS's employees' acts as "SFPS's" customs or practices. For purposes of Monell v. N.Y.C. Department of Social Services liability, individual public-school employees' acts differ from the SFPS Defendants' acts. As the Court explained in its legal section, a municipal entity can be held liable only for its own unconstitutional or illegal policies, and not for the tortious acts of its employees. See Monell v. N.Y.C. Dep't of Soc. Servs., 436 U.S. at 689, 98 S.Ct. 2018. The Court must, therefore, distinguish individual employees' acts from acts fairly attributable to the SFPS Defendants. The Plaintiffs' nomenclature impermissibly blurs that distinction and the related distinction between municipal liability and respondeat superior liability. The Court does not, therefore, rest its reasoning on the notion that, because individual public-school employees conducted suspicionless pat-down searches, the SFPS Defendants are liable under Monell v. N.Y.C. Department of Social Services.
Connick v. Thompson, 131 S.Ct. at 1360 (emphasis in original). Viewing the evidence in the light most favorable to the Plaintiffs, a reasonable jury could conclude that this standard is satisfied. The jury could conclude that, for sixteen consecutive proms, every student at Santa Fe High School and Capital High School was searched with a pat-down prior to prom. See Archuleta Depo. Vol. II at 168:2-169:8; id. at 244:2-20; Romero Depo. at 53:9-54:2; id. at 138:19-139:8; Hagele Depo. at 75:5-12; id. at 77:6-16; id. at 78:6-16; 86:22-87:5. The jury also could conclude that School Board members had attended these proms. See Gutierrez Depo. Vol. I at 131:13-25 ("I mean, we've even had Board members that come and help chaperone and assist in the past and have observed the procedures that we use for checking students before permitting them into the dance."). Nonetheless, the jury could conclude that the SFPS Defendants did not intervene and adopt a different training and supervision regimen. From this evidence, a reasonable jury could conclude that the SFPS Defendants knew of the widespread practice and the consequent widespread constitutional violations, and chose to adopt a "policy of inaction in light of notice that [their] program [would]
In the same vein, there is enough evidence from which a jury could conclude that the SFPS Defendants' failure to train or supervise the officers that searched their students with respect to their constitutional rights caused the deprivation of their right not to be searched absent individualized suspicion. The Court is sensitive to the fact that where, as here,
Schneider v. City of Grand Junction Police Dep't, 717 F.3d at 770. Viewing the evidence in the light most favorable to the Plaintiffs, however, a reasonable jury could conclude that the SFPS Defendants' inaction in the face of a pervasive pattern of unconstitutional searches was the moving force behind that portion of the Plaintiffs' injuries that flows from the searches' suspicionless nature. That is, considering the longstanding, widespread pattern of suspicionless pat-down searches at past proms and the evidence that School Board members had attended those proms, there is sufficient evidence from which a reasonable jury could infer that the SFPS Defendants' deliberately indifferent training and supervision of ASI New Mexico officers vis-àvis suspicionless pat-down searches caused that portion of the Plaintiffs' injuries that flows from the searches' suspicionless nature.
Finally, there is enough evidence from which a jury could conclude that the SFPS Defendants had the requisite state of mind. As the Court has explained, "a plaintiff seeking to establish municipal liability on the theory that a facially lawful municipal action has led an employee to violate a plaintiff's rights must demonstrate
The Court acknowledges that the evidence on which the jury would base its conclusions is largely circumstantial. The jury is being asked to infer the SFPS Defendants' liability from two principal sets of facts: (i) the pervasiveness, duration, and persistence of the suspicionless-search practice; and (ii) that individual School Board members attended proms and observed the search procedures. The SFPS Defendants are entitled to attack the inferences that the Plaintiffs ask the jury to draw. Taking all of those inferences in the Plaintiffs' favor, however, there is sufficient evidence from which the jury could conclude that the SFPS Defendants acted with deliberate indifference in training or supervising ASI New Mexico with respect to the widespread violation of the paper policy, that the deliberate indifference caused some percentage of the Plaintiffs' damages, and that the SFPS Defendants acted with deliberate indifference to the known or obvious consequences. Accordingly, to the extent that the Plaintiffs seek to hold the SFPS Defendants accountable for that portion of their damages that flows from the searches' suspicionless nature, summary judgment is inappropriate. The Court will, therefore, deny the MSJ in relevant part.
The Court will grant the MSJ to the extent that the Plaintiffs blame the SFPS Defendants for the invasive manner in which ASI New Mexico officers allegedly searched the Plaintiffs. Even treating as binding the Plaintiffs' expansive understanding of causation — which the Court doubts the Tenth Circuit would be inclined to adopt — there is not enough evidence on which a reasonable jury could find that the SFPS Defendants' actions were the moving force behind all of the ASI New Mexico officers' actions. Accordingly, the Court will grant summary judgment as to this dimension of the claim.
The upshot of the Plaintiffs' argument is that the SFPS Defendants are liable for the foreseeable consequences of their search practices, and the invasive manner in which the ASI New Mexico officers searched the Plaintiffs was foreseeable in light of the SFPS Defendants' search practices. This argument fails. First, even if it were binding precedent — and it is not — the Second Circuit case on which the Plaintiffs principally base their argument, Kerman v. City of New York, 374 F.3d 93 (2d Cir.2004), is not a municipal liability case. Neither is the Court's decision in Train v. City of Albuquerque. This distinction makes a key difference: the causation standard for municipal liability cases is unclear in the Tenth Circuit. See Schneider v. City of Grand Junction Police Dep't, 717 F.3d at 769-71.
Schwartz, supra, at § 7.12 (footnotes omitted).
The Tenth Circuit appears to have addressed this issue only in a cursory fashion. In Schneider v. City of Grand Junction Police Department — a published opinion from June, 2013 — the Tenth Circuit quoted extensively from this section of Professor Schwartz' treatise, including the "direct causal link" test, but did not join those circuits that have endorsed the traditional proximate cause standard. Instead, it discussed the issue as follows:
717 F.3d at 780 (footnotes omitted). In a footnote appended to the end of the paragraph, the Tenth Circuit continued:
Schwartz further notes:
717 F.3d at 780 n. 11. It may be that the Tenth Circuit has quietly endorsed Professor Schwartz' view that, with respect to training claims, the causation requirement is more rigorous than common-law proximate cause. The Tenth Circuit did not, however, identify the quantum of additional rigor that courts should apply.
Forgotten underneath the mountain of accreted case law lies the following statutory language:
42 U.S.C. § 1983 (emphasis added). Nothing obvious in the language requires any unique causation standard. Indeed, reading the emphasized language in a plain-meaning sense, one would be forgiven for thinking that the statute imports traditional causation categories.
Board of County Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. at 404, 117 S.Ct. 1382 (emphasis in original). What is more, Justice Brennan indicated in a concurrence that "[o]rdinary principles of causation used throughout the law of torts" apply in § 1983 cases, City of Oklahoma City v. Tuttle, 471 U.S. at 833 n. 9, 105 S.Ct. 2427 (Brennan, J., concurring), and the plurality did not engage that statement. The Supreme Court has, therefore, repeatedly avoided using the common-law tort vocabulary with which most lawyers are familiar and has, instead, used idiosyncratic vocabulary. One can, therefore, understand why the Tenth Circuit would be reluctant to use traditional causation categories.
The Tenth Circuit appears to be in the minority. Many circuits that have squarely addressed the issue have endorsed common law proximate causation standards in the municipal liability context. See Cash v. County of Erie, 654 F.3d 324, 341-42 (2d Cir.2011) (Raggi, J.) ("`[P]roximate cause,'
Doe v. Rains Cnty. Indep. Sch. Dist., 66 F.3d 1402, 1415-16 (5th Cir.1995) (Higginbotham, J.).
Martinez v. California, 444 U.S. at 284-85, 100 S.Ct. 553 (emphasis in original) (footnotes omitted). The Fifth Circuit's reading of the Supreme Court's rather cryptic aside about proximate causation, while plausible, is not the only possible reading. First, in context, it appears that the thrust of the passage focuses on state action and not on the appropriate standard for causation under § 1983. It seems better to understand the Supreme Court's aside about "whether, as a matter of state tort law, the parole board could be said ... to have proximately caused [the parolee's victim's] death," 444 U.S. at 285, 100 S.Ct. 553 (emphasis added), as saying that one cannot reverse-engineer state action under § 1983 from state-law causation standards: that is, state action requires something more than that, under state law, a defendant has breached a common-law duty and that the breach proximately caused the plaintiff's harm. That reading may better reconcile the Supreme Court's language with the Fifth Circuit's insight that a finding "that the challenged conduct was indeed action under color of state law — that a separate nexus existed between the alleged inaction and an exercise of state authority — is implicit in a finding that such a causal connection existed for purposes of § 1983 liability." Doe v. Rains Cnty. Indep. Sch. Dist., 66 F.3d at 1415-16. Second, the statement may stand for an even less noteworthy proposition: that state tort law may provide remedies even where § 1983 does not. In any event, the language from Martinez v. California does
Whatever one makes of the enigmatic language in Martinez v. California, the Fifth Circuit's discussion suffers from a second problem: the "ultimate inquiry" that the Fifth Circuit identified is unhelpful. It seems strange to, in one paragraph, suggest that a § 1983 plaintiff must satisfy "a heightened standard of proximate cause," 66 F.3d at 1415, and in the next paragraph apparently endorse "a stricter test of factual causation," 66 F.3d at 1415 — and a "nuanced" one at that, 66 F.3d at 1415 — and then immediately state that "the ultimate inquiry is whether there is a connection between action taken under color of state law and the constitutional harm," 66 F.3d at 1415 (emphasis added). Even events related through a mere but-for relationship have "a connection."
The Court suspects that the Supreme Court's, the Fifth Circuit's, and the Tenth Circuit's unfamiliar causation vocabulary stems from the intuitive sense that § 1983 actions are, in some sense, sui generis: that is, although one might characterize them as tort claims, they do not fit cleanly into established tort categories. For example, the question is whether the Court should think of deliberate indifference claims as negligence claims, or whether they are more like intentional torts. After all, "deliberate indifference" sounds somewhat more like the classic formulation of recklessness — conscious disregard of a substantial and unjustifiable risk — than it sounds like classic negligent acts or classic intentional acts. The Supreme Court's and the Tenth Circuit's reluctance to import traditional causation categories into § 1983 may, therefore, reflect a sense that § 1983 actions resist categorization in traditional tort law categories.
Although one can understand that § 1983 actions are, in one sense, unique, none of the many formulations that the Supreme Court and the Tenth Circuit have invented separates the wheat from the chaff any better than the traditional notion of proximate causation would. One searches the Supreme Court's and the Tenth Circuit's precedent in vain for an administrable causation test other than proximate causation. The courts have cycled through a multiplicity of different formulations — whether the Supreme Court's "affirmative link," "direct cause," and "moving force," language, the Fifth Circuit's "a connection" language, or, maybe most enigmatically, the Tenth Circuit's undefined "more rigorous than common law proximate cause" phrase — none of which has any obvious legal content that would meaningfully distinguish it from proximate cause.
Indeed, the search for a talismanic causation catchphrase is probably futile. The notion of proximate causation works relatively well in tort law, principally because the phrase "proximate causation" is not what does the work; instead, a large body of case law informs judicial intuition about what results are sufficiently related to a defendant's breach of x duty that the defendant should be called to answer for them. Given the Supreme Court's docket limitations, it seems unlikely that the Supreme Court ever could decide enough cases in this area to similarly fill out any one of its several causation catchphrases enough to meaningfully distinguish that phrase from proximate causation. It is, therefore, understandable that, faced with the prospect of such uncertainty, other circuits continue to apply traditional notions of proximate causation.
Not only is the search likely futile, but it seems unnecessary. General tort law principles give federal courts the tools they need to appropriately limit the scope of municipal liability under § 1983. The
In sum, then, it might be wise for the Supreme Court and the Tenth Circuit to abandon their decades-long effort to fashion a causation lexicon that functions only within municipal liability cases. The project has shown itself to be ineffective: the various catchphrases that the Tenth Circuit and other courts have tried to lay on top of proximate causation are poorly developed, to the point that they are devoid of distinctive legal content and, therefore, inadministrable. Aside from merely stating that the Court has applied "proximate causation plus x," the Court knows of no way to meaningfully distinguish those tests from traditional proximate causation.
Having said as much, the Court nonetheless concludes that the Plaintiffs' argument that the SFPS Defendants are responsible for ASI New Mexico's alleged invasive searches fails the traditional proximate cause analysis — and certainly does not survive any undefined greater causation requirement. It is true enough that ASI New Mexico's "Pat Down" Guidelines ask searching officers to "be vigilant" and remind its officers that female students may hide contraband in their bras. "Pat Down" Guidelines at 1. It is also true that, viewing the evidence in the light most favorable to the Plaintiffs, it had been the practice within some schools to conduct pat-down searches that required female subjects to pull their bras away from their body, allowing contraband to fall. See, e.g., Romero Depo. at 53:9-54:2; id. at 138:19-139:8; Reyes Depo. at 60:6-61:22; id. at 63:17-64:9; id. at 114:24-115:9; Deposition of Michael Hagele (taken May 7, 2012), filed March 20, 2014 (Doc. 192-7); Videotaped Deposition of Bobbie Gutierrez at 215:5-217:4 (taken April 3, 2012), filed March 20, 2014 (Doc. 192-6); "Pat Down" Guidelines at 1. It is a massive 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 the SFPS Defendants should have foreseen that their alleged suspicionless-search practice would lead to ASI New Mexico officers touching the Plaintiffs' breasts or inner thighs.
The Plaintiffs' contrary argument lacks a sound basis, because it characterizes the constitutional violations at too high a level of abstraction. In essence, the Plaintiffs want to argue that the SFPS Defendants were deliberately indifferent to the Plaintiffs' Fourth Amendment rights, and, therefore, hold the SFPS Defendants accountable for all nearby Fourth Amendment violations. That view of causation would, in cases like this one, eliminate municipal liability's limits. Viewing the evidence in the light most favorable to the Plaintiffs, the SFPS Defendants' suspicionless-search practice reflects a deliberately indifferent approach to training and supervision vis-à-vis whom they may search with a pat down — every student coming to prom — and what level of suspicion they must possess to justify that search — no suspicion. No evidence before the Court would, however, allow a reasonable jury to conclude that the SFPS Defendants' suspicionless-search
The Eleventh Circuit's decision in Focus on the Family v. Pinellas Suncoast Transit Authority is inapposite. The Plaintiffs are correct that, in that case,
Response at 38. The Plaintiffs' description of Focus on the Family v. Pinellas Suncoast Transit Authority is correct, as far as it goes. The trouble is that the municipal liability portion of that decision had nothing to do with causation — or, more specifically, with foreseeability. The Eleventh Circuit's holding entirely turns on state action: the Eleventh Circuit concluded that the religious organization had "presented sufficient evidence that, if credited, would satisfy § 1983's state action requirement under the nexus/joint action test. This evidence fairly creates a triable issue of material fact and precludes the entry of final summary judgment against appellant. The district court erred in concluding otherwise." 344 F.3d at 1279. In fact, Focus on the Family v. Pinellas Suncoast Transit Authority does not so much as cite Monell v. N.Y.C. Department of Social Services, and it never uses the word "foreseeable" or its derivatives. The SFPS Defendants do not dispute that they are state actors. Accordingly, Focus on the Family v. Pinellas Suncoast Transit Authority is irrelevant.
The Court will, therefore, grant the MSJ as to that portion of the Plaintiffs' claims against the SFPS Defendants that relates to the invasive nature of the searches.
The Court will deny the MSJ insofar as it asks the Court to restrict the Plaintiffs'
The Tenth Circuit has explained the nature of joint and several liability in the § 1983 context as follows:
Northington v. Marin, 102 F.3d at 1569.
There is something mysterious about the Plaintiffs' treatment of Northington v. Marin: they quote the case as follows: "Multiple defendants `who concurrently cause an indivisible injury are jointly and severally liable; each can be held liable for the entire injury.' This rule applies equally in § 1983 cases, where multiple actors `concurrently violate others' civil rights.'" Response at 45 (quoting Northington v. Marin, 102 F.3d at 1569). The Plaintiffs do not, however, quote the last sentence in the Court's block quotation — that is, that "the burden of proof also shifts to the defendant under those circumstances, whether or not all wrongdoers are before the court." Northington v. Marin, 102 F.3d at 1569.
Although the Court is reluctant to advance a damages theory that the Plaintiffs did not raise, it would seem that the facts would satisfy the Tenth Circuit's standards. Here, multiple defendants — the SFPS Defendants and ASI New Mexico — allegedly concurrently violated the Plaintiffs' civil right to be free from searches absent individualized suspicion. The Plaintiffs have suffered indivisible injuries: the Plaintiffs have suffered only
Regardless whether the Plaintiffs ultimately bear the burden of proof on this issue, summary judgment is not appropriate. Each Plaintiff has testified that the SFPS Defendants caused injuries beyond the mere abstract constitutional violation. The Court will not exhaustively catalog each Plaintiff's testimony as to her search's effects on her, but the following selection is enough to show that there is sufficient evidence to go to the jury. Testifying about a pat-down search conducted before a different event, C. Herrera testified as follows: "Any pat-down search without probable cause would technically be invasive. If they have no reason or suspicion to be checking you physically, then why would they need to be touching every single student walking in the door." C. Herrera Depo. at 203:18-22. She elaborated: "[A]nything touching you without your permission — it's not like they're walking up to you and asking, `Okay, can we pat you down?' It's more like, `okay, we're going to pat you down. Now spread your arms and legs.'" C. Herrera Depo. at 203:25-204:4. Although C. Herrera spoke about a search that she endured on a different occasion, taking all inferences in her favor, she found suspicionless searches invasive. Moreover, C. Herrera testified that, after the searches she endured, she worries about going to a school event, because she now "know[s] that every single time I try and walk in a door somebody is going to possibly be touching me." C. Herrera Depo. at 205:5-7. She explained that having been searched at the CHS Prom "makes you worry about anywhere that you go whether you're going to have to be pat down because somebody thinks that it's appropriate." C. Herrera Depo. at 205:10-15.
T. Herrera also testified about her search's effects on her, describing the pat-down
Hurtado's and London's testimony is also sufficient to defeat summary judgment. Hurtado testified that, as a result of the pat-down searches, she is "worried about going to other places that might search me because I don't want that to happen again." Hurtado Depo. at 186:25-187:2. She described her emotional injuries as follows: "My humiliation being one of the emotional and my fear of going anywhere else is another emotional." Hurtado Depo. at 188:12-14. She stated that she is anxious about possibly being searched at other events, see Hurtado Depo. at 233:21-24, and that she has chosen not to attend certain events, evidently as a result of her fear, see Hurtado Depo. at 233:25-17. She testified that the knowledge that, generally, concert organizers tend to search concert attendees causes her anxiety. See Hurtado Depo. at 236:6-10. As for London, she testified that the events at the CHS Prom ruined the memory of the Prom for her, that it made her feel bad about herself, and that she did not go to other proms as a result. See London Depo. at 212:20-25. Although some of her damages most likely stemmed from the search's invasive nature, her testimony does not finely separate those damages from the damages resulting from the fact of undergoing a suspicionless pat-down search in a way that would allow the Court to rule as a matter of law that she suffered only nominal damages.
In sum, then, viewing the evidence in the light most favorable to the Plaintiffs, the suspicionless pat-down searches on this occasion, together with the invasive nature with which ASI New Mexico officers carried them out, caused each Plaintiff to suffer injuries, and the Court cannot, as a matter of law, apportion those damages as between the SFPS Defendants and ASI New Mexico. It is up to the jury to decide whether to credit the Plaintiffs' testimony and, if necessary, to apportion the damages among the Defendants. The Court need only determine that a reasonable jury could consider this testimony and determine that the Plaintiffs have suffered injuries that would justify an award of damages other than nominal damages, and that the jury could attribute some amount of those damages to the SFPS Defendants. The amount may be only ten dollars rather than one dollar, but the Court cannot, at this stage, say as a matter of law that the SFPS Defendants caused no damages other than the constitutional violation itself and, therefore, limit the Plaintiffs' recovery from the SFPS Defendants to nominal damages.
The Court will deny the MSJ to the extent that it asks the Court to dismiss the claims against them related to possession searches and seizures. The Plaintiffs pointed out that, aside from a few glancing references, the SFPS Defendants do not address their MSJ to the possession
There is sufficient evidence in the record on which the jury could find that the SFPS Defendants have a custom and practice of conducting suspicionless possession searches and confiscating certain items found during those searches. That school officials had conducted these searches for years before the CHS Prom would allow a reasonable jury to conclude that the SFPS Defendants trained and supervised its agents with deliberate indifference to their actions' constitutional implications. Viewing the evidence in the light most favorable to the Plaintiffs, a jury could conclude that these searches and seizures were conducted for years before proms — proms that School Board members attended. See Gutierrez Depo. Vol. I at 131:13-25 ("I mean, we've even had Board members that come and help chaperone and assist in the past and have observed the procedures that we use for checking students before permitting them into the dance."). School Board member Gonzales saw widespread possession searches occurring before a 2010 Santa Fe High School prom and brought the issue to the School Board's attention. Although the School Board revised its code of conduct, the practice continued. See Gonzales Affidavit ¶¶ 1-12, at 1-4. From this evidence, a reasonable jury could conclude that the SFPS Defendants were deliberately indifferent to a widespread, entrenched practice of constitutional violations.
In the same vein, there is enough evidence from which a jury could conclude that the SFPS Defendants' failure to train the officers that searched their students with respect to their constitutional rights caused the deprivation of their right not to have their possessions searched or seized absent individualized suspicion. Viewing the evidence in the light most favorable to the Plaintiffs, a jury could conclude that the SFPS Defendants' inaction in the face of a pervasive pattern of unconstitutional searches could serve as the moving force behind the Plaintiffs' suspicionless searches.
Finally, there is enough evidence from which a jury could conclude that the SFPS Defendants had the requisite state of mind. Again, viewing the evidence in the light most favorable to the Plaintiffs, the jury could reasonably conclude that there is a widespread, years-long pattern of constitutional violations, and that only deliberate indifference to the consequences of conducting a suspicionless pat-down search of every prom attendee could explain how the SFPS Defendants could allow this widespread practice to go on for years. The evidence is largely circumstantial, and the SFPS Defendants are entitled to attack the inferences that the Plaintiffs ask the jury to draw. Taking all of those inferences in the Plaintiffs' favor, however, there is sufficient evidence from which the jury could conclude that the SFPS Defendants had the requisite culpable state of mind.
With this backdrop in mind, the Court underscores something that seems to have been lost on the SFPS Defendants in their Reply: because the Plaintiffs are the non-movants, it is not their burden, in responding to the MSJ, to show that the facts on which they rely are undisputed. It is, instead, the Plaintiffs' burden to show that there is a genuine issue for trial, see Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. 2548, and, in making that determination, it is the Court's obligation to view the facts in the light most favorable to the Plaintiff, see Hunt v. Cromartie, 526 U.S. at 550-55, 119 S.Ct. 1545. Accordingly, the theme shot throughout the Reply that the SFPS Defendants dispute certain facts is largely inapposite: where there is a disputed fact, the Court is obligated to view the fact in the light most favorable to the Plaintiffs.
Reply at 6. The Court concludes that the SFPS Defendants' proposed undisputed fact is correct, so far as it goes: although the School Board has delegated some authority to others, it remains undisputed that the School Board alone is vested with a statutory basis for its policy-making authority.
Gutierrez Depo. Vol. I at 121:5-12. The SFPS Defendants reply:
Reply at 6. The Court concludes that its formulation more fairly reflects the cited evidence and reconciles it into a single undisputed fact than the SFPS Defendants' proposed fact does: Romero lacked formal statutory policymaking authority, but, by virtue of her position, she retained some de facto authority to make certain decisions about her students' safety.
The Plaintiffs also assert that this proposed fact is immaterial. See Response ¶ 4, at 2. The Court will decide materiality in its analysis.
Reply ¶ 13, at 16. Because the SFPS Defendants did not specifically controvert this fact, the Court deems it undisputed for purposes of this opinion. As for the SFPS Defendants' assertion that the fact is immaterial, the Court will decide materiality in its analysis.
The Plaintiffs first cite sections of the Archuleta Depo. Vol. II that, in the Court's view, do not support the Plaintiffs' proposed fact. First, they cite this section:
Archuleta Depo. Vol. II at 168:2-169:10. That ASI New Mexico staff met with "Public Schools staff" to discuss the setup of security does not mean that the School Board, acting as an entity, instructed ASI New Mexico to conduct pat-down searches of students entering dances. Moreover, that Bill Belzner — identified in the briefing only as "Chief Operating Officer" of an unidentified entity, see Response at 29 — and the school superintendent discussed how to set up security also does not mean that the School Board acted as an entity to instruct ASI New Mexico to conduct pat-down searches. Accordingly, this section does not support the portion of the Plaintiffs' proposed fact that speaks to the School Board's conduct.
The Plaintiffs also point to this section of the Archuleta Depo. Vol. II:
Archuleta Depo. Vol. II at 182:2-11. Although this section supports that Rendon instructed ASI New Mexico how it should conduct the searches, it does not support that the School Board made that instruction. Accordingly, this section does not support the portion of the Plaintiffs' proposed fact that speaks to the School Board's conduct.
Johnson Depo. at 84:10-85:21 (capitalization altered for legibility).
Johnson Depo. at 89:13-22 (capitalization altered for legibility). Reading the evidence together and taking all inferences in the Plaintiffs' favor, although Johnson contends that school administrators directed ASI New Mexico's conduct of the search, there is no evidence that the School Board as an entity directed ASI New Mexico to conduct pat-down searches. Accordingly, the Court has altered the Plaintiffs' proposed fact to more closely reflect the evidence.
In addition to the testimony that the Court has already discussed, the Plaintiffs cite the following testimony:
Deposition of Martin "Mark" Archuleta, Vol. I at 118:21-25 (taken March 9, 2012), filed March 20, 2014 (Doc. 192-2) ("Archuleta Depo. Vol. I"); id. at 121:5-14. Nothing in the cited testimony suggests that the School Board, as an entity, directed ASI New Mexico to continue the pat-down searches.
Johnson Depo. at 124:20-25; id. at 130:21-131:8 (capitalization altered for readability). The SFPS Defendants are correct that this statement does not indicate that the School Board directed ASI New Mexico to conduct these pat-down searches. Accordingly, the Court has adjusted the proposed fact.
The Plaintiffs ask the Court to find undisputed that, "[f]or years, SFPS maintained a practice of conducting pat-down searches of all students entering the Santa Fe High School and Capital High School proms." Response ¶ 17, at 10. In support, they cite a portion of Individual School Defendant Melanie Romero's Motion for Summary Judgment on Count I of the Second Amended Complaint Based Upon Qualified Immunity, filed November 13, 2012 (Doc. 113) ("Romero MSJ"). See Response ¶ 17, at 10 (citing Romero MSJ at 7). First, this basis is not an appropriate one on which the Court can base a finding of undisputed fact, because Romero spoke in her individual capacity and the Court should not attribute her individual statement to the SFPS Defendants. Moreover, as the SFPS Defendants point out in their Reply, the cited statement in the other motion does not show that the School Board formally maintained this practice, but that particular schools within the Santa Fe Public School District had such a practice. See Reply ¶ 17, at 17. Accordingly, the Court will not find this fact undisputed.
Reply ¶ 18, at 17. Given the absence of further argument, the word "[f]irst" is confusing. In any event, the Court will decide materiality in the analysis. The Court has, however, modified the fact to more closely reflect Johnson's testimony that the training was "consistent with" the "Pat Down" Guidelines — not that ASI New Mexico trained its guards using the "Pat Down" Guidelines.
Reply ¶ 19, at 17-20. This argument does not specifically controvert the fact, but instead asks the Court to read it in a particular light. The Court will decide such issues in its analysis.
Reply ¶ 21, at 18. The bulk of this argument does not specifically controvert the fact, but instead asks the Court to read it in a particular light. The Court, therefore, substantially deems this fact undisputed. The Court will decide the fact's import in its analysis.
Reply ¶ 22, at 18. This argument does not specifically controvert the fact, but instead asks the Court to read it in a particular light. The Court, therefore, deems this fact undisputed. The Court will decide the fact's import in its analysis.
Reply ¶ 23, at 19. This argument does not specifically controvert the fact, but instead asks the Court to read it in a particular light. The Court, therefore, deems this fact undisputed. The Court will decide the fact's import in its analysis. The Court has, however, clarified its finding of an undisputed fact to clarify that Gutierrez voiced her lack of objections to the "Pat Down" Guidelines after the fact.
Reply ¶ 24, at 19. This argument does not specifically controvert the fact, but instead asks the Court to read it in a particular light. The Court, therefore, deems this fact undisputed. The Court will decide the fact's import in its analysis.
Reply ¶ 25, at 19. This argument does not specifically controvert the fact, but instead asks the Court to read it in a particular light. The Court, therefore, deems this fact undisputed. The Court will decide the fact's import in its analysis.
Reply ¶ 26, at 20. The Court substantially concludes the SFPS Defendants to be correct: the evidence does not provide a sound basis to attribute these searches to a formal School Board act. The Court has, therefore, modified the proposed fact.
MSJ ¶ 13, at 6. The Plaintiffs respond:
Response ¶ 13, at 4-5 (citations omitted). The SFPS Defendants reply:
Reply at 8 (emphasis in original).
The Court concludes that the proposed fact is not undisputed. Reading together the evidence that the Plaintiffs have cited — and taking, as it must, all inferences in their favor — shows that search protocols at the Capitol High School prom reflected long-standing practice, and that that practice included manipulation of bras. See, e.g., Romero Depo. at 53:9-54:2; id. at 138:19-139:8; Reyes Depo. at 60:6-61:22; id. at 63:17-64:9; id. at 114:24-115:9; Deposition of Michael Hagele, taken May 7, 2012, filed March 20, 2014 (Doc. 192-7). Moreover, the evidence — particularly the "Pat Down" Guidelines — demonstrates that ASI trained its officers to instruct female subjects to, "using their own hands[,] pull the front of the bra at the underwire slightly away from the skin to allow any contraband to fall." "Pat Down" Guidelines at 1. Accordingly, the Court concludes that there is enough evidence from which a jury could find that there was a long-standing practice of conducting those searches, and that the School Board was, therefore, probably aware of that practice.
There is not, however, any evidence to suggest that the School Board would have known that ASI New Mexico officers would touch the breasts or bare legs of the search's subjects. Although the evidence to which the Plaintiffs have pointed tends to show that the ASI New Mexico instructed its officers to pull their bras away from their bodies to allow contraband to fall, no evidence tends to show that the School Board knew that ASI New Mexico officers would touch the subjects' breasts or bare legs. Indeed, the exhibit that the Plaintiffs cite for the proposition that "[t]he Pat Down Guidelines' directive to be `vigilant' and specific indication of the bra area and inner legs as locations where contraband may be concealed further rendered the invasive searches experienced by Plaintiffs foreseeable" points the other direction: it instructs that "[n]o pat downs are to be done on the bare skin" and that "[n]o pat downs are to be done on the groin area (males), groin and breast area (females)," and defines "[t]he breast area ... as area [sic] from the front bra line (typically [sic] where the underwire is) to approximately 1 [inch] below the collar bone." "Pat Down" Guidelines at 1. Accordingly, the Court finds undisputed, for purposes of this motion, that the searches of which the School Board was aware did not include touching of the breasts or bare legs.
Clarke Depo. at 71:16-72:13. Reading this evidence in the light most favorable to the Plaintiff — as it must, because the Plaintiff is the non-movant — the Court concludes that Clarke testified about emptying the contents of bags publicly. Accordingly, the Court will deem the fact undisputed for purposes of this opinion.
The Court also notes that, although the cited testimony does not specifically mention lotion, it does mention that any liquids were confiscated, and the Court reads "liquids" sufficiently broadly to include lotion. Romero Depo. at 155:1-7.
Reply ¶ 31, at 21. The Court substantially agrees with the SFPS Defendants that this testimony does not provide a basis to attribute the search protocol to the School Board. The Court has, therefore, modified the proposed fact. As to the second argument — that searches of other attendees were reasonable — the argument does not specifically controvert the fact, but instead asks the Court to read it in a particular light. The Court, therefore, deems this fact undisputed, as modified. The Court will decide the fact's import in its analysis.
Reply ¶ 32, at 21. The Court substantially agrees with the SFPS Defendants that the cited testimony does not provide a basis to attribute a "customary search practice" to the School Board. The Court has, therefore, modified the proposed fact. Otherwise, because the argument does not specifically controvert the fact, but instead asks the Court to read it in a particular light, the Court deems this fact undisputed, as modified. The Court will decide the fact's import in its analysis.
The SFPS Defendants ask the Court to conclude that "the Prom held on April 16, 2011 was the first high school Prom held under the newly revised Code." MSJ ¶ 7, at 5 (setting forth this fact). The Plaintiffs correctly point out that the SFPS Defendants do not cite evidence for this assertion. See Response ¶ 7, at 2-3. Accordingly, the Court will not find this proposed fact to be an undisputed fact.
The Plaintiffs also assert that "whether the April 2011 prom was the first held under the revised Code of Conduct is immaterial because the policies regarding searches of students or their possessions was not amended." Response ¶ 7, at 3. The Court will decide materiality in its analysis.
The Plaintiffs assert that this undisputed fact is immaterial. The Court will decide materiality in its analysis.
MSJ ¶ 10, at 6. The Plaintiffs respond that this fact is
Response ¶ 10, at 3. The Plaintiffs are correct that the Code of Conduct's relevant provisions authorize searches under the quoted standards, and that nothing in it indicates that school officials should treat differently the pat-down searches of female attendees that the MSJ describes in this paragraph. Accordingly, the Court will not treat the proposed fact as undisputed.
The SFPS Defendants ask the Court to conclude that "[t]here is no evidence in the record of this matter that any deliberate conduct of the School Board was the moving force causing Melanie Romero to require searches at the Prom that violated the School Board's Code of Conduct or that caused the allegedly unprofessional searches of the ASI guards." MSJ ¶ 11, at 6. The Plaintiffs respond:
Response ¶ 11, at 3. The Plaintiffs are correct that this proposed fact is a legal conclusion and not a fact. Accordingly, the Court will not treat it as a fact.
Plaintiffs' Additional Fact No. 34 is disputed by the School Board in that, though school principals are granted executive authority to operate their schools by the New Mexico Legislature, as a matter of law and School Board policy, no principal of a school in the School District has authority to do anything contrary to School Board official policies. Moreover, there is no evidence in this case that the School Board knew or approved of a high school principal issuing instructions to ASI or anyone else to perform suspicionless pat-down searches of all attendees at a school prom.
Reply ¶ 34, at 21. To hedge against the risk that one might understand the proposed fact to refer to legal authority, the Court has modified the proposed fact to reflect that, by "authority," the Court is not referring to legal authority under state law. As to the second argument, because the argument does not specifically controvert the fact, but instead asks the Court to read it in a particular light, the Court deems this fact undisputed, as modified.
Reply ¶ 35, at 22. The Court will decide materiality in its analysis.
Reply ¶ 36, at 22 (emphasis in original). The Court will decide materiality in its analysis.
Reply ¶ 37, at 22. Insofar as this argument implicitly attacks the Plaintiffs' testimony, for the reasons the Court will explain more fully, see infra note 36, that argument is not appropriate for the summary judgment stage. Moreover, setting aside the Plaintiffs' testimony, the cited testimony demonstrates that bra-pulling and-shaking were part of the normal search practice, see, e.g., Reyes Depo. Vol. I at 60:6-61:22, and that this manner of searching would apply at the prom, see, e.g., Reyes Depo. Vol. I 64:6-9. Although it may be true that no witnesses other than the Plaintiffs have testified with respect to bra-pulling or shaking at the prom, that situation is a quintessential fact dispute for the jury to decide. Accordingly, the Court deems this fact undisputed for purposes of this motion.
Reply ¶ 38, at 22. The Court substantially agrees with the SFPS Defendants that it is inappropriate to attribute the "customary search practice" to the School Board. The Court has, therefore, modified the proposed fact. As to the second argument, the argument does not controvert the proposed fact. Accordingly, the Court deems the fact, as modified, undisputed for purposes of this motion.
Reply ¶ 39, at 22-23. This argument does not controvert the proposed fact, but instead asks the Court to read it in a particular light. The Court will, therefore, deem this fact undisputed for purposes of this opinion. The Court will consider the fact's import in its analysis.
Reply ¶ 1, at 11-14 (citations omitted) (emphasis in original).
With the backdrop that the Court laid out in note 1 in mind, the SFPS Defendants' argument is curious in multiple respects. First, the Court is not sure what to make of the SFPS Defendants' assertion that the Plaintiffs need not demonstrate that they underwent pat-down searches; the searches are, after all, the central events in the Plaintiffs' case. The SFPS Defendants appear to mean that all agree that pat-down searches occurred, but that they disagree about how one should characterize the searches: that is, on whether searches constituted "groping." Reply at 11. In the interest of describing the facts as even-handedly as possible, the Court has removed the Response's characterization of the searches as "intrusive" and, instead, characterizes the facts in a more neutral way. Still, the SFPS Defendants' fixation on the word "groped" largely misses the point. Nothing of significance to the Court's disposition of the MSJ turns on whether the Plaintiffs were "groped," insofar as that word connotes that the searching officers had prurient intentions, or merely searched the Plaintiffs in an invasive but non-sexual way.
The thrust of the SFPS Defendants' purported basis for disputing this fact is that the Plaintiffs are not credible. Black-letter law bars this argument. "It is axiomatic that a judge may not evaluate the credibility of witnesses in deciding a motion for summary judgment." Seamons v. Snow, 206 F.3d 1021, 1026 (10th Cir.2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). See also MSJ at 11 ("[T]he court cannot decide any issues of credibility.") (quoting Herrera v. Santa Fe Pub. Schs., 956 F.Supp.2d 1191, 1223 (D.N.M.2013) (Browning, J.)). Accordingly, this argument is misplaced.
The SFPS Defendants also suggest that certain of the Plaintiffs' contentions are immaterial. Contending that a fact is immaterial is not disputing a fact, nor is it specifically controverting a fact by directing the Court with particularity to the record. See D.N.M.LR-Civ. 56.1(b). The Court has previously noted that arguing a proposed fact at summary judgment is immaterial to the Court's disposition of the summary judgment motion is not effective to contest a fact: "Materiality is not proper grist for the statement of facts and is considered properly in the Court's legal analysis." Lowery v. City of Albuquerque, No. CIV 09-0457 JB/WDS, 2011 WL 1336670, at *4 n. 8 (D.N.M. Mar. 31, 2011) (Browning, J.). Accordingly, the Court will return to materiality in its analysis.
The Court suspects that the SFPS Defendants' principal objection to the Plaintiffs' proposed fact is more thematic than legal: in their view, the key issue is not whether the searches occurred or how one characterizes the searches, but whether the School Board is legally accountable for those searches, whatever their character. Even if that issue is, in the SFPS Defendants' view, the principal issue in the MSJ, the Plaintiffs need not accept the SFPS Defendants' framing of the case; they may include in their Response such facts as are necessary to put the other acts in context. And, as the Court has explained, it must indulge all reasonable inferences in the Plaintiffs' favor.
Accordingly, the SFPS Defendants have not provided sound reasons for rejecting the Plaintiffs' proposed fact.
C. Herrera Depo. at 180:11-181:11. The Court believes that its description of the testimony, with the word "extremely" excised, fairly represents the testimony.
D.N.M.LR-Civ. 56.1(b). The local rules regarding summary judgment thus require the responding party to "specifically controvert[]" the movant's fact or else the fact is deemed admitted. D.N.M.LR-Civ. 56.1(b). Because the Plaintiffs have not specifically controverted this fact, the Court deems the fact undisputed for purposes of this opinion.
The Court has, however, modified the SFPS Defendants' proposed fact to eliminate the characterization of Herrera's testimony and replace it with a fact.
The SFPS Defendants ask the Court to find undisputed that "Plaintiff C. Herrera did not object to undergoing a pat-down search at the Prom, or complain regarding its scope, at the time of the search." MSJ ¶ 16, at 8. The Plaintiffs respond: "Disputed. Plaintiff Candice Herrera objected by attempting to stop the guard from raising her dress higher up her legs during the conduct of the patdown search but was ordered by the guard to remove her hands and allow the search to proceed." MSJ ¶ 16, at 5. Specifically, C. Herrera testified:
C. Herrera Depo. at 129:10-18; id. at 130:2-25.
The SFPS Defendants reply:
MSJ ¶ 16, at 9. The Court concludes that, taking all inferences in the Plaintiffs' favor, this proposed fact is not undisputed. One could characterize C. Herrera's act of physically resisting the search to be an objection or a complaint about the search's scope at the time of the search. Accordingly, the Court will not deem this fact undisputed.
Response ¶ 18, at 6 (quoting T. Herrera Depo. at 190:21). The SFPS Defendants reply:
Reply at 9-10. The Court concludes that its modified fact better reflects the evidence: it is true that T. Herrera believed that the search was improper because it was invasive, but is also true that she characterized the touch as "molestation," T. Herrera Depo. at 190:17-19 ("[Q:] Would you characterize [being touched by the guard] as your sister did, as molestation? A[:] Yes"), as an "unwanted touch," T. Herrera Depo. at 190:21, as embarrassing, see T. Herrera Depo. at 183:7-12, and as confusing, because she did not understand why she was being searched, see T. Herrera Depo. at 183:13-16. Accordingly, the Court has qualified the proposed fact to clarify that T. Herrera objected to the search for reasons other than to its invasiveness.
The Court has, however, modified the fact proposed slightly: although the testimony reflects that Hurtado did not complain or object to Romero or to the guards, it does not demonstrate that Hurtado did not complain to anyone. Accordingly, the Court has qualified the proposed fact to reflect this limitation.
The Court has, however, modified the fact proposed slightly: although the testimony reflects that London did not complain or object to Romero or to the guard, it does not demonstrate that London did not complain to anyone. Accordingly, the Court has qualified the fact to reflect this limitation.
The SFPS Defendants ask the Court to find undisputed that "Plaintiffs Candice Herrera, Ashley Hurtado and Arianna London admit they would not have thought that a pat-down search without groping was offensive," citing portions of their depositions. MSJ ¶ 15, at 7-8 (emphasis in original). The Plaintiffs respond only that C. "Herrera indicated that any pat-down not based on reasonable suspicion is invasive," citing her deposition. Response ¶ 15, at 5. The SFPS Defendants reply that, "[a]ccording to Plaintiffs, this is disputed because though she did admit to as much, after a break immediately requested by her attorney, she then thought better of her position and stated the legal premise, as stated by the Plaintiffs, `that any pat-down not based on reasonable suspicion is invasive.'" Reply at 9 (citing Deposition of Candice Herrera (taken on July 27, 2012), filed on November 13, 2012 (Doc. 113-4); id. at 201:4-15; id. at 202:5-15; id. at 203:6-204:24).
The Court concludes that the proposed fact is not undisputed. Although the Court recognizes that the SFPS Defendants may find C. Herrera's arguable inconsistency on this topic useful grist for cross-examination, taking all inferences in the Plaintiffs' favor, the Court will not conclude that C. Herrera found that all pat-down searches without groping were inoffensive. As for London and Hurtado, although the Plaintiffs did not specifically controvert this proposed fact, the Court concludes that the evidence that the SFPS Defendants cite does not support the proposed fact. The testimony indicates that Hurtado did not have a problem with a pat-down search that she underwent at a previous prom, see Deposition of Ashley Hurtado at 153:23-154:12 (taken July 30, 2012), filed November 13, 2012 (Doc. 113-5), and that London did not have a problem with pat-down searches that she underwent before a previous dance and before certain concerts, see Deposition of Arianna London (taken August 24, 2012), filed November 13, 2012 (Doc. 113-6). Taking every inference in the Plaintiffs' favor, as the Court must, the evidence that Hurtado and London did not object to pat-down searches on other specific occasions does not support the general proposition that Hurtado and London categorically "would not have thought that a pat-down search without groping was offensive," MSJ ¶ 15, at 7 (emphasis in original). Although that inference is defensible, it is not the only plausible inference, because certain factors could have distinguished the searches on other occasions from the searches before the CHS Prom: what the young woman was wearing, with whom she attended the event, who searched her, and who watched the students while they were searched all could conceivably distinguish a pat-down before another event from the pat-down before the CHS Prom.
The SFPS Defendants' use of this proposed fact in the MSJ supports the Court's conclusion. The SFPS Defendants' reading of the testimony would infer from the specific fact to a general proposition, and then would deduce a different specific fact from the inferred general proposition: in other words, it would infer from the Plaintiffs' testimony about pat-down searches before certain individual past events a general proposition about their reaction to undergoing pat-down searches, and would then deduce from the inferred general proposition that the only thing about the searches before the CHS Prom that harmed them was the invasive nature of the search and not fact of the pat-down search or its suspicionless nature. Effectively, the SFPS Defendants want the Court to infer the answer to a question they did not ask: whether the only thing that offended the Plaintiffs about the searches was the invasive manner in which ASI New Mexico guards carried it out. In other words, the SFPS Defendants want the Court to read the Plaintiffs' testimony about other specific events as effectively conceding that certain events underlying this lawsuit did not damage them. If the SFPS Defendants wanted the Plaintiffs to concede their damages case against them, the SFPS Defendants should have asked such a question. As the record stands, the Court cannot definitively say that Hurtado and London would not have thought that a pat-down search without groping was offensive — and the Court also cannot, as the SFPS Defendants ask, read the Plaintiffs as having effectively conceded their damages case against them. Accordingly, the Court will not treat the fact as undisputed.
MSJ ¶ 21, at 9. The Plaintiffs respond:
Response ¶ 21, at 6 (citations omitted). In their Reply, the SFPS Defendants refer the Court to this discussion of an earlier fact:
First, for substantially the reasons that the Plaintiff outlines, the Court has not concluded that it is undisputed that C. Herrera raised no complaints: one could interpret her physical resistance as a complaint or objection to the search. Accordingly, it will not adopt the first clause of the proposed fact as undisputed. Second, and the Court agrees with the Plaintiffs that, insofar as the proposed fact suggests that C. Herrera became upset for the first time after she discovered that her medication would not be returned to her, the fact is not undisputed: the evidence shows that the facts that C. Herrera's medication had been confiscated, see C. Herrera Depo. at 154:25-155:16, and that she had been searched, see C. Herrera Depo. at 177:15-178:3; id. at 180:11-181:11, upset C. Herrera. Accordingly, the Court has modified the proposed fact to eliminate the implication that she became upset for the first time after she discovered that her medication would not be returned to her and does not read its undisputed fact to suggest that nothing else that evening upset C. Herrera.
The SFPS Defendants ask the Court to find undisputed that
MSJ ¶ 22, at 9. The Plaintiffs respond:
Response ¶ 22, at 6-7 (citations omitted). The SFPS Defendants reply:
Reply at 10 (emphasis in original). The Court substantially agrees with the Plaintiffs that the proposed "fact" is not a fact, but is, in substance, a legal conclusion drawn from applying the law to the facts. Accordingly, the Court will not find this proposed fact to be an undisputed fact.
Response ¶ 41, at 23. Nothing in the proposed fact defines "shortly" to mean any particular timespan. Accordingly, the Court will treat this fact as undisputed for purposes of this opinion. As for the materiality objection, the Court will discuss materiality in its analysis.
MSJ ¶ 6, at 5 (citations omitted). First, this characterization of testimony is not properly considered an undisputed fact so much as part of the case's procedural history. Second, the cited pages of Keylon's deposition demonstrate that the SFPS Defendants' characterization of his testimony is incorrect: for example, he testified "that the searches went above reasonable searches for entering a prom and that they didn't have any reasonable suspicion or probable cause." Deposition of David Keylon at 101:23-102:1, taken December 19, 2013, filed March 3, 2014 (Doc. 187-4). Accordingly, the Court will not deem this proposed fact an undisputed fact for purposes of this motion.
The Plaintiffs' Response to this asserted fact is inadequate. They state that the proposed fact is "Disputed. Plaintiffs' expert, David Keylon, testified to more than two opinions." Response ¶ 6, at 2. In support, the Plaintiffs cite what they call Keylon's expert report, contained in a letter from David Keylon to Daniel J. O'Friel, dated February 16, 2012, filed March 20, 2014 (Doc. 192-21). The proposed fact was not, however, that Keylon never endorsed more than one opinion; the proposed fact was that Keylon testified to only two opinions "at his deposition on December 19, 2013." MSJ ¶ 6, at 5. Accordingly, the Plaintiffs did not specifically controvert this proposed fact and support their disagreement with evidence. The issue is however, largely beside the point, because the evidence that the SFPS Defendants cite does not support their proposed fact.
Response ¶ 12, at 4. Although the Court's disposition of the MSJ does not turn on whether the guards "groped" the Plaintiffs, the Court agrees that the word "groped" may connote, at least to some readers, that the ASI guards performed the allegedly invasive searches with a prurient intent, and that the Plaintiffs do not allege that intent. Accordingly, the Court has not used the word "groped" in describing the Plaintiffs' claims.
A close reading of the Complaint reveals that the Plaintiffs' characterization of their claims in the Response is imprecise. One Plaintiff, London, does not allege that her "bra[] and/or breasts were pulled, touched, and/or shaken," Response ¶ 12, at 4. Her allegation instead focuses on an invasive search of her legs; she does not mention anything about her bra or her breasts. See Complaint ¶¶ 65-67, at 13. The Court has, therefore, altered the Plaintiffs' characterization of their allegations.
Reply ¶ 46, at 14. The SFPS Defendants are correct that the cited testimony can reflect only the limits of the witnesses' knowledge. Accordingly, the Court has qualified the proposed fact with the phrase "observed or reported." The Court otherwise deems the fact undisputed for purposes of this opinion.
Reply ¶ 47. Because this argument does not specifically controvert the proposed fact, the Court will deem it undisputed for purposes of this opinion. The Court will discuss any other pertinent arguments about this testimony's significance in its analysis.
Reply at 3 n. 2 (emphasis in original). Although the Court will relate the SFPS Defendants' arguments in the vocabulary that they have selected, it does not agree that the gravamen of the Plaintiffs' claims is sexual. In the Court's view, the upshot of the Plaintiffs' claims is that the searches were invasive. Statements at a press conference and stray deposition testimony to the effect that the Plaintiffs were "molested" or "raped" probably reflects the fact that the searches' effects on the Plaintiffs were deeply invasive and not that the ASI New Mexico officer searched the Plaintiffs for their sexual gratification. In any event, as the Court has explained, the Court's disposition of the MSJ does not turn on this semantic dispute.
The SFPS Defendants state as follows:
Reply at 34-35. The SFPS Defendants also state: "At this point, the School Board incorporates by reference pursuant to D.N.M.LR-Civ. 7.1(a) its Santa Fe Public Schools Board of Education's Response to Plaintiffs' Motion for Partial Summary Judgment and its associated Exhibit "A," filed on March 20, 2014 [Docs. 195 and 195-1]." Reply at 34 n. 4.
This purported incorporation by reference of additional facts in a reply is inappropriate for at least three reasons. First, the local rule to which the SFPS Defendants point provides that "[a] party may adopt by reference another party's motion or other paper by making specific reference to the filing date and docket number of such motion or other paper." D.N.M.LR-Civ. 7.1(a) (emphasis added). The SFPS Defendants have not here adopted by reference another party's motion or other paper; they instead purport to incorporate its response to a separate motion. Such a maneuver is not proper incorporation by reference, but is, in effect, an end run around page limits.
Second, this purported incorporation by reference violates the local rules for summary judgment briefing. The local rules provide that "[t]he Memorandum must set out a concise statement of all of the material facts as to which the movant contends no genuine issue exists." D.N.M.LR-Civ. 56.1(b) (emphasis added). The local rules regarding a reply do not provide for additional facts. See D.N.M. LR-Civ. 56.1(b). That rule exists for a reason: the logic of summary judgment depends on the non-movant's ability to see the entire field of facts on which the movant depends and to argue about their legal import. To allow a reply to incorporate wholesale new facts from separate briefing would sandbag the non-movant, leaving them with no opportunity to respond.
Third, and perhaps most significantly, this purported incorporation by reference makes no sense given the different inferences the Court must draw in the summary judgment context. In deciding the MSJ, the Court must indulge all reasonable inferences and doubts in the Plaintiffs' favor, and must construe all evidence in the light most favorable to them. See Hunt v. Cromartie, 526 U.S. at 550-55, 119 S.Ct. 1545. In deciding the Plaintiffs' Motion for and Memorandum in Support of Partial Summary Judgment, filed March 3, 2014 (Doc. 185), the Court must make the opposite inferences — that is, it must indulge all reasonable inferences and doubts in the SFPS Defendants' favor, and must construe all evidence in the light most favorable to them. Accordingly, it would be impossible to draft an intelligible decision if parties could incorporate by reference facts drafted with the backdrop of opposite inferences in mind.
Moreover, even if the Court were to consider the facts that the SFPS Defendants have put forth in a separate motion, those facts would not change the result. In the end, even taking into account the SFPS Defendants' other briefing, the two sets of facts on which the Court principally bases its decision would remain intact: (i) a widespread, years-long pattern of suspicionless searches at proms existed; and (ii) School Board members attended and chaperoned those proms.
Board of Education Minutes of a Study Session at 3-4. The Plaintiffs suggest that this evidence tends to show that the School Board knew of the search policy and the executive team's interpretation of the search policy. See Plaintiffs' Letter at 1. The Court has substantially found the fact that the Plaintiffs ask the Court to find, but not on this basis: the statement correctly relates the law, in the sense that the Constitution does not hold public schools to the same standards that police must follow. As for the second clause — "can search" — the statement is inconclusive about the basis for that search. The Court rests its fact on more sound bases — principally, that School Board members had attended proms in the past and observed the search procedures that were in place.
The Plaintiffs also raise arguments that relate exclusively to ASI New Mexico's motion. See Plaintiffs' Letter at 4-5. The Court will not rehearse those arguments in this memorandum opinion.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir.2005) (citations omitted). The Court finds that Rhoads v. Miller has persuasive value with respect to material issues, and will assist the Court in its preparation of this Memorandum Opinion and Order.
Maryland v. King, 133 S.Ct. at 1982 (Scalia, J., dissenting) (emphasis in original). Justice Scalia also suggested that the Founders would have shared these privacy-related concerns:
Maryland v. King, 133 S.Ct. at 1989 (Scalia, J., dissenting) (emphasis added). The Court therefore concludes that Justice Scalia, and the Supreme Court, still rely on a person's privacy expectation as one side of the reasonableness balancing equation when determining whether a search is reasonable for Fourth Amendment purposes.
69 F.3d at 448 (quoting City of St. Louis v. Praprotnik, 485 U.S. at 127, 108 S.Ct. 915). The School Board's policies constrain Gutierrez; the School Board employs the superintendent and can, evidently, fire Gutierrez, see N.M. Stat. Ann. § 22-5-4(B); and Gutierrez' statutory grant of authority is to carry out the School Board's policies, not to contradict them, see N.M. Stat. Ann. § 22-5-14(1). Moreover, New Mexico law defines "local school board" as "the policy-setting body of a school district," N.M. Stat. Ann. § 22-1-2(H), and imposes on it the duty to "develop educational policies for the school district," N.M. Stat. Ann. § 22-5-4(A). In short, although Gutierrez undoubtedly had a close relationship with the School Board, Gutierrez is not a "final policymaker" for municipal liability purposes.
The Court also notes that it does not base its decision on the Plaintiffs' observation about the SFPS Defendants' briefing on the TRO — that is, that the SFPS Defendants spoke of "the School District's practice of searching students at extracurricular functions." Memorandum In Opposition at 3 (emphasis added). In context, "practice" does not refer to a "practice" in the municipal liability sense of the term; in fact, the brief does not cite Monell v. New York City Department of Social Services. The Plaintiffs seem to recognize their observation's weakness, as the Plaintiffs' Letter makes no legal argument from the fact. See Plaintiffs' Letter at 2-3 (noting the phrases in the Memorandum In Opposition, but not explaining their legal significance).
The soundest way to understand this issue may lie in the distinction between interpretation and construction. Professor Randy E. Barnett of the Georgetown University Law Center helpfully defines and explains the terms in the constitutional context:
Randy E. Barnett, Interpretation and Construction, 34 Harv. J.L. & Pub. Pol'y 65, 66 (2011) (emphasis in original). Applying this dichotomy to § 1983, the Court should interpret the semantic meaning of "causes" in the light of its public meaning in 1871. The concepts that guide courts in applying that definition to differing factual circumstances are, however, subject to judicial development. The line between interpretation and construction is hazy and disputed, see Barnett, supra, at 70 ("Originalists will not all agree about how to engage in constitutional construction."), but the distinction usefully explains that textualist interpretation does not require, or even entail, fossilized construction.
This distinction justifies applying after-developed causation principles to § 1983. The Court is committed to interpret the semantic content of "causes" in the light of its public meaning in 1871. That courts later refined — perhaps "constructed" — more sophisticated ways to determine which real-world phenomena fall within that semantic content does not contradict that commitment.
Schwartz, supra, § 16.5(B) (footnotes omitted). There is, in the Court's view, enough of a basis to distinguish the portion of the Plaintiffs' damages that relates to the searches' invasive nature — which the SFPS Defendants did not, as a matter of law, cause — from the portion of the Plaintiffs' damages that relates to the searches' suspicionless nature, which ASI New Mexico and the SFPS Defendants allegedly concurrently caused. The Court's indivisible-injury analysis, therefore, applies only to the injuries that ASI New Mexico and the SFPS Defendants allegedly concurrently caused: that portion of the injuries that flows from the searches' suspicionless nature. While this may make evidence presentation difficult and jury instructions a challenge, to hold the SFPS Defendants jointly and severally liable for damages resulting from constitutional violations for which they cannot be held liable under Monell v. N.Y.C. Department of Social Services would end run Monell v. N.Y.C. Department of Social Services' limitations.
