Diane Doe, Etc. v. Omer Renfrow, Etc.

631 F.2d 91

• Court: Court of Appeals for the Seventh Circuit
• Decided: November 3, 1980
• Docket: 79-2116
• Status: Published

Opinions

PER CURIAM.

In May 1979, plaintiff Diane Doe, a student at Highland Junior High School in Highland, Indiana, and four other students ¹ filed a civil rights complaint under 28 U.S.C. §§ 1343(3) and 1343(4). The defendants were Omer Renfrow, Superintendent of the Highland, Indiana, Town School District; George Kurteff, Principal of the Highland Junior High School; five members of the Highland Town School District Court; Al Prendergast, Highland Police Chief; and Patricia Little, a trainer of drug-detecting canines.² Plaintiff requested a class certification of other students at Highland High School and Highland Junior High School. The gravamen of the complaint was that plaintiff and others were illegally sniffed by police dogs during school hours and pocket-searched if a dog alerted to them in order to determine whether they possessed controlled substances and contraband. As part of the drug investigation, plaintiff alleged that she and three other students “were compelled to remove their clothing and submit to visual inspection by defendants’ agents” (Par. 17 of complaint).

The complaint also charged that 2,780 students at Highland High School were subject to the canine sniffing and that 17 of them thereafter “were summarily suspended,.expelled, or compelled to withdraw from attendance at school” (Par. 16). According to plaintiff, defendants’ practice was “unsupported by particularized facts, reasonable suspicion or probable cause to believe that any of the persons” subject to the canine drug investigation would possess controlled substances (Par: 28). Alleging that defendants’ acts violated the Fourth and Fourteenth Amendments in particular, Diane Doe sought $50,000 in actual damages and an equal amount in punitive damages, as well as declaratory and injunctive relief.

A hearing was held on June 7, 1979, with respect to various motions of the parties. On August 30, 1979, Judge Sharp dismissed the action on the merits as to the Highland police chief and dog trainer Patricia Little because they did not participate in the strip search. He granted defendant school officials summary judgment on the issue of monetary damages for the body search of Diane Doe.³ However, he held that she was entitled to declaratory relief upon the court’s finding that the nude body search was made without a finding of reasonable cause and in violation of her Fourth Amendment' rights. The judgment denied all other aspects of her prayer for declaratory relief, denied her motion for a permanent injunction and denied class certification. The judgment was supported by a lengthy, thoughtful opinion reported in 475 F.Supp. 1012.⁴

Defendants have not appealed from the trial court’s ruling that the nude search of Diane Doe was without reasonable cause to believe she possessed contraband. Because this ruling was not appealed, we will not consider the argument contained in Part V of the brief of amicus curiae Indiana School Boards Association.

For the reasons given in Judge Sharp’s scholarly opinion, which we adopt as our own, the judgment is affirmed except with respect to the portion of the decision that the defendant school officials are immune from liability arising out of the nude search because they had a “good faith” defense as ¿rticulated in Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214. The Wood case found that school officials who act “in good-faith fulfillment of their responsibilities and within the bounds of reason under all the circumstances” and “not in ignorance or disregard of settled indisputable principles of law” are immune from liability. The district court in the instant case added that it “will not charge school officials with ‘predicting the future course of constitutional law.’ ” 475 F.Supp. at 1028. No one can quarrel with these propositions but we do take exception to the application of these sterling principles to the facts of this case.

It does not require a constitutional scholar to conclude that a nude search of a thirteen-year-old child is an invasion of constitutional rights of some magnitude. More than that: it is a violation of any known principle of human decency. Apart from any constitutional readings and rulings, simple common sense would indicate that the conduct of the school officials in permitting such a nude search was not only unlawful but outrageous under “settled indisputable principles of law” (420 U.S. at 321, 95 S.Ct. at 1000).

Wood v. Strickland, supra, accords immunity to school officials who act in good faith and within the bounds of reason. We suggest as strongly as possible that the conduct herein described exceeded the “bounds of reason” by two and a half country miles. It is not enough for us to declare that the little girl involved was indeed deprived of her constitutional and basic human rights. We must also permit her to seek damages from those who caused this humiliation and did indeed act as though students “shed at the schoolhouse door rights guaranteed by * * * any * * * constitutional provision” (475 F.Supp. at 1023).

We return the matter to the trial court for a determination of damages stemming from the body search. The decision is otherwise affirmed, costs to be borne equally by the respective parties.

1 . The four other plaintiff students were dismissed without prejudice to become members of the proposed plaintiff class (but with prejudice with respect to damages) by the district judge on motion of plaintiffs counsel on June 7, 1979.

2 . Fourteen other named defendants were dismissed without prejudice by the district court on June 7, 1979. Several hundred parents or patrons of the Highland School District were simultaneously permitted to intervene as party-defendants.

3 . The only defendants who decided upon the nude search of Diane Doe were school officials who possess a qualified immunity. They were held not liable for damages because no malice was shown and their subjective and objective good faith was not challenged by the complaint nor was the law in the area supposedly settled in plaintiffs favor. Wood v. Strickland, 420 U.S. 308, 321-322, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214, Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288.

4 . The result reached by the district court is seemingly condoned in an unnamed student’s article entitled “The Constitutionality of Canine Searches in the Classroom,” 71 The Journal of Criminal Law & Criminology 39 (1980), although the author disagrees with some of the reasoning in the opinion.

See also United States v. Klein, 626 F.2d 22 (7th Cir. 1980), Part II of op. dealing with canine sniffing of luggage (at 26-27) and People v. Lester, 101 Cal.App.3d 613 (1980), certiorari denied sub nom. Lester v. California, - U.S. -, 101 S.Ct. 316, - L.Ed.2d - (1980).