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Cuesta (Killian 9) Brief to the U.S. Court of Appeals
- Certificate of Interested Persons
- Statement Regarding Oral Arguments
- Table of Citations
- Statement of Jurisdiction
- Statement of the Issues
- Statement of the Case and Facts
- Summary of the Argument
- Argument
- Conclusion and Relief Argument
- Certificate of Service
CASE NO. 00-16086-HH
IN THE UNITED STATES CIRCUIT COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
LILIANA CUESTA,
Appellant,
vs.
THE MIAMI-DADE COUNTY SCHOOL
BOARD and MIAMI-DADE COUNTY,
Appellees
ON APPEAL FROM THE UNITED STATES DISTRICT COURT SOUTHERN
DISTRICT OF FLORIDA
(MIAMI DIVISION)
Certificate of Interested Persons
I HEREBY CERTIFY that the following listed persons have an interest in the outcome of this appeal:
James Allen, Attorney for Appellee Miami Dade County
The American Civil Liberties Union of Florida
iliana Cuesta, Appellant
Andrew Kayton, Of Counsel to Plaintiff
The Commission of Miami Dade County
The School Board of Miami Dade County
Ana Segura, Attorney for Appellee School Board of Miami
Dade County
The Hon. Ursula Ungaro-Benages, District Judge
Steven Wisotsky, Attorney for Appellant
STEVEN WISOTSKY, ESQ.
Statement Regarding Oral Argument
Appellant believes that the strip search claim against the County represents a straightforward application of this court's ruling in Skurstenis v. Jones, 236 F.3d 678 (11th Cir. 2000), and that oral argument is not essential to the disposition of that claim.
The unconstitutional arrest claim against the School Board presents a closer question as to the usefulness of oral argument, but on balance Appellant believes that the issue of section 1983 policy or custom is capable of resolution on the briefs.
Table of Citations
Cases
Bell v. Wolfish, 441 U.S. 520 (1979). 16
Board of County Comm'rs v. Brown, 520 U.S. 397 (1997). 11, 29
Burns v. City of Galveston, 905 F.2d 100 (5th Cir. 1990). 11, 27
Chapman v. Nichols, 989 F.2d 393 (10th Cir. 1993). 13
Cuesta v. School Board , 2000 WL 33174398 (S.D. Fla. 2000).
passim
Fuller v. M.G. Jewelry, 950 F.2d 1437 (9th Cir. 1991). 15
Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984). 12, 19
Gilmere v. City of Atlanta, 737 F.2d 894 (11th Cir. 1984). 20
Gooding v. Wilson, 405 U.S. 518 (1972). 25
Houston v. Hill, 482 U.S. 451 (1987). 25
Justice v. City of Peachtree, 961 F.2d 188 (11th Cir. 1992). 12
Kennedy v. Los Angeles Police Department, 901 F.2d 702 (9th Cir. 1990). 15, 17
Lafayette v. Illinois , 463 U.S. 640 (1983). 18
Lewis v. City of New Orleans, 415 U.S.130 (1974). 25
Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983). 12
Monell v. Dept. of Social Services, 436 U.S. 658 (1978).
passim
Parker v. District of Columbia, 850 F.2d 708 (D.C. Cir. 1988). 28
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). 25
Searcy v. City of Dayton, 38 F.3d 282 (6th Cir. 1994). 27
Skurstenis v. Jones, 236 F.3d 678 (11th Cir. 2000). 9, 13
Talley v. California, 362 U.S. 60 (1960). 24
Tennessee v. Garner, 471 U.S. 1 (1985). 14
Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989). 12
Trezevant v. City of Tampa, 741 F.2d 336 (11th Cir. 1984). 10, 20
United States v. Thomas, 242 F.3d 1028 (11th Cir. 2001). 29
Wolf v. Coca-Cola Co., 200 F.3d 1337 (11th Cir.2000). 8
Statutes
U.S. Const. Amend. IV. . passim
42 U.S.C. § 1983 (1994). passim
Fla. Stat. § 24.118 (1997). 15
Fla. Stat. § 212.15 (1999). 15
Fla. Stat. § 231.0861 (Supp. 2000). 22
Fla. Stat. § 319.35 (1990 & Supp. 2000). 15
Fla. Stat. § 409.920 (1998 & Supp. 2000). 15
Fla. Stat. §§ 501.601-501.626 (1997). 15
Fla. Stat. § 517 (1997). 15
Fla. Stat. § 775.085 (2000). 8
Fla. Stat. § 784.011 (2000). 16
Fla. Stat. § 784.081 (2000). 16
Fla. Stat. § 790.01 (2000). 16
Fla. Stat. § 812.15 (2000). 16
Fla. Stat. § 836.11 (2000). passim
Fla. Stat. § 893.147 (2000 & Supp. 2001). 16
Fla. Stat. § 921.0012 (1996 & Supp. 2001). 16
Other Authorities
Restatement (Second) of Torts § 442A (1965). 21
Metro-Dade Department of Corrections and Rehabilitation, Volume No. 11, D.S.O.P. No. 11-022. passim
Dade County School Board Rules, 6Gx13-5D-1.08. 21
Dade County School Board Rules, 6Gx13-4A-1.21. 21
Dade County School Board Rules, 6Gx13-4A-1.09. 22
A. The basis for the district court's jurisdiction was 28 U.S.C. § 1331 for federal questions and § 1343 for civil rights claims.
B. The basis for appellate jurisdiction is 28 U.S.C. § 1291 conferring jurisdiction over appeals from final judgments.
C. Final judgment was entered on the docket October 18, 2000, and notice of appeal was docketed on November 15, 2000.
D. This appeal is from a final judgment disposing of the claims of all parties to the lawsuit below.
I. Whether the district's ruling for the County should be reversed because the County's policy to strip search all felony arrestees is unreasonable under the Fourth Amendment.
II. Whether the district court's Ruling for the School Board should be reversed because the School Board's Zero Tolerance policy was the moving force behind the illegal arrest of Plaintiff.
Statement of the Case and Facts
A. Course of Proceedings and Disposition Below
Plaintiff Liliana Cuesta filed a civil rights lawsuit, R1-1, under 42 U.S.C. § 1983 against three defendants: (1) Miami Dade Schools Police Officer Alexander, who arrested her under Fla Stat. § 836.11, prohibiting anonymous pamphleteering that "tends to expose to ridicule" any person or organization; (2) Miami Dade County ["the County"], for its written policy that mandated a strip search of her nude person, including a visual inspection of her bodily orifices; and (3) the Miami Dade School Board ["the Board" or "School Board"] for its written policy and/or customary practice that was a substantial factor in Officer Alexander's arrest of her.
The district judge granted Officer Alexander's motion to dismiss based on qualified immunity; that decision has not been appealed. The district court granted summary judgment for Dade County on the strip search claim in an Omnibus order filed April 17, 2000. R2-84. The court ruled that the mandatory strip search of a person accused of a felony was constitutionally reasonable without any requirement of individualized suspicion. In a second Omnibus Order filed October 18, 2000, the district court granted summary judgment to the School Board on the ground that Plaintiff's arrest was not the product of School Board policy. Cuesta v. Sch. Bd., 2000 WL 33174398 (S.D. Fla. 2000).
Both summary judgments were entered as part of a final judgment dated Oct 18, 2000. R3-111. Plaintiff timely appealed the final judgments in favor of the County and that in favor of the School Board. R3-113.
B. Statement of Facts
On Friday February 20, 1998, at about 7:00 a.m., Liliana Cuesta and eight of her classmates distributed the pamphlet "First Amendment" at Killian High School. R2-72-56. The cover of the pamphlet portrayed an image of Timothy Dawson, Principal of Killian High School, against a target background with a dart in his head. Cuesta , 2000 WL 33174398 at *1.
By 8:30 that morning, Mr. Dawson had learned of the distribution of the "First Amendment" when "someone brought it to Mr. Dawson's attention." Miami Killian Senior High School Incident Report, R2-65 [Exhibit 2]. "Mr. Dawson left the school, at 9:15 a.m. and returned at 2:15 p.m. When he returned, he found on his desk a list of which contained the names of students who were allegedly responsible for the publication and distribution of this pamphlet." R2-65 [Exhibits 2, 2A].
The following Monday, February 23rd, Mr. Dawson, Vice principal Algaze and Officer Alexander continued their investigation by calling the students on the list down to the principal's office for interrogation one by one. Officer Alexander is a Police Officer employed by Miami Dade County Public Schools; he is stationed at Killian High School, where he has an office. R1-40-3,5. He attended the Police Officer Academy for six months with other trainees from other departments. R1-40-6. Officer Alexander is authorized to carry a firearm and does carry one on school grounds. R1-40-8. He is a sworn Police Officer and enforces the laws against violations that occur on school grounds. R1-40-5,8.
Alexander and Dawson asked questions about where the pamphlet was created, who participated, and why it was done. Alexander thought that the investigation "might be potentially criminal" and not solely a school disciplinary matter based in part on Mr. Dawson's fear for his safety. R1-40-38. Each student was mirandized and questioned. R2-65 [Exhibit 2]. The interrogations began at around 7:30 a.m.
At approximately 11:15 a.m., Liliana Cuesta was ordered from class to the office of the Principal, Dawson. Mr. Dawson and Officer Alexander were there when she arrived. She received Miranda warnings. Cuesta, 2000 WL 33174398 at *1. Mr. Dawson asked why she had participated in the pamphlet. She said that the students were frustrated by the school administration's emphasis on athletics and lack of art supplies. R2-72-40.
She admitted her role--drawing the caption "First Amendment" on the cover, making copies at Office Depot and distributing the pamphlet. R2-72-55,56. She also included the anti-censorship articles on the first inside page and two sentences on the last page, "remember to fight racism, sexism and other forms of oppression," and "read the banned books"; she did not write any of the other articles. R2-72-55. One of the articles titled "One Student's Complaint," signed and created solely by another student, David Morales, had racial overtones referring to an African disease and a three-toed-sloth. R2-72-53,54. In the same article signed by Mr. Morales, he "wondered what would happen if I shot Dawson in the head and other teachers who have pissed me off." R2-72-47,49,50.
The School Board has a "Zero Tolerance" policy toward on-campus crimes. Cuesta, 2000 WL 33174398 at *4 n.5. Throughout the Miami Dade County School District, 886 arrests at senior high schools were made by the Division of Schools Police in school year 1997-98. R2-65-2 [Exhibit 8]. At Killian Senior High School, during school year 1997-98, arrests totaled 67. R2-65-2 [Exhibit 7].
With respect to Plaintiff, Officer Alexander concluded that he had no basis to arrest her for assault, battery or any other crime of violence. R1-40-40. Mr. Dawson wanted an arrest to be made if it could be done. R1-40-41. Officer Alexander searched a volume of the Florida Statutes looking for an offense that might apply to her conduct. R1-40-42,43. He found § 836.11. He then called the juvenile court and spoke to an assistant state attorney who concurred in Officer Alexander's judgment that § 836.11 could be applied. R1-40-44. Alexander arrested Plaintiff under § 836.11 at 12:30 p.m. R2-65-1 [Exhibit 5].
Plaintiff was handcuffed, transported to a Miami Dade police substation, and then transferred by Officer Galardi to Turner Guilford Knight [TGK] Detention Center and booked into that facility. R1-39-40,41,42,43. From time of arrest to booking into TGK, she was in continuous police custody. R1-39-50 Officer Galardi described Ms. Cuesta as well behaved while in his custody en route to TGK. He did not perceive any security threat from her. R1-39-50.
At TGK, during the booking process, a female officer commanded Liliana Cuesta to strip naked, to expose her mouth and tongue, to cough, to lift her breasts, to squat, to bend over and expose her buttocks and genitalia. R2-84-3. She attested in her affidavit that "I felt embarrassed and humiliated by being forced to strip and display myself . . . ." R1-28-2 [¶8]. After the strip search, she was placed in a holding cell. R2-84-3. In the holding cell were other persons, some of whom had been arrested on felony charges. R2-84-3. She was strip searched pursuant to the County's written policy, which provides in pertinent part:
Newly arrested felons and all newly transported felons will be completely strip searched by a correctional officer as part of the intake procedures . . . .
Metro Dade Department of Corrections and Rehabilitation, Volume No. 11, D.S.O.P. No. 11-022, ¶IV. D.5a., at p. 11-022.8. This policy goes on to specify the procedures to be used in strip searching female inmates. See IV.D.2., sub-paragraphs a.-m. ¶ sub-f: "Still facing the officer, the inmate will squat with her legs spread apart so that the officer can visually check the area for any contraband that the inmate may have attempted to conceal there." ¶sub-h: "The inmate will be instructed to squat again with the legs spread apart. . . . When returning to the standing position, the inmate will be asked to bend forward at the waist as far as she can without falling over, reach behind herself with both hands and separate her buttocks for the purpose of exposing any items that she may have placed there with the intent to conceal." The purpose of the strip searches is the security of staff and inmates. Drugs and contraband have on occasion been found as a result of the strip searches. R1-38-2 [Beyer Aff. ¶ 7].
County procedure is to hold arrestees at TGK temporarily, pending bus transportation to a general population cell at another facility such as the Women's Detention Center. R1-52 [Zappia Aff. ¶ 4] A second strip search is administered to inmates before they are placed on the bus out of TGK. R1-52 [Zappia Aff. ¶ 6]. Plaintiff was not transported from TGK to a general population cell. Her father came and secured her release on bond. R1-44 [Cuesta Supp. Aff. ¶ 5].
By its terms, the policy does not apply to persons arrested for a misdemeanor offense. The basic charge against Liliana Cuesta, violation of Fla Stat. § 836.11 is a misdemeanor; Officer Alexander invoked Fla. Stat. § 775.085 in his arrest report to enhance her offense to a felony for "evincing racial prejudice."
The Dade State Attorney's office determined not to prosecute Plaintiff (or any of the other eight students who had been arrested) and filed a nolle prosse in her case, No. M98-8800. R2-65-2 [Exhibit 9]. The basis of that decision was that Fla. Stat. § 836.11 was "unconstitutional and unenforceable," as stated in a press release issued by the State Attorney's Office. R2-65-2 [Exhibit 10].
The Miami Dade School Board punished Liliana Cuesta administratively. She was suspended from Killian High School and expelled, forced to transfer to another high school. R2-72-127, 139. The next academic year, she was allowed to return to Killian. She did not challenge the suspension, expulsion or transfer in the litigation below. As to the School Board, only the validity of the arrest is in issue.
C. Standard of Review
Each issue raised on appeal is a question of law subject to de novo review. The district court's grant of summary judgment to each defendant therefore carries no presumption of correctness on appeal. A district court's grant or denial of summary judgment is subject to de novo review. Wolf v. Coca-Cola Co., 200 F.3d 1337, 1339 (11th Cir.2000).
Summary of the Argument
I. THE STRIP SEARCH CLAIM AGAINST THE COUNTY
The County's policy of strip searching all felony arrestees is unreasonable under the Fourth Amendment. There must be individualized suspicion to justify such a serious intrusion upon the personal dignity of an arrestee under this court's ruling in Skurstenis v. Jones, 236 F.3d 678, 682 (11th Cir. 2000). There was none in this case.
The sole basis for the strip search was the enhancement of a misdemeanor charge, anonymous pamphleteering tending to expose another to ridicule, to a putative felony because of racial remarks written by another person. The reasonableness of a search is measured in part by the particular goal(s) it is intended to accomplish. Given that the purpose of strip searches is to uncover weapons and contraband for the safety of jailers and inmates, the felony-misdemeanor distinction is simply irrational. Many drug offenses and some violent crimes such as assault and battery may be charged as misdemeanors, while a variety of frauds and other nonviolent crimes are chargeable as felonies.
II. THE CLAIM AGAINST THE SCHOOL BOARD FOR UNLAWFUL ARREST.
Plaintiff was arrested by a School Board Police Officer, in a Dade School campus principal's office, with the "adamant" encouragement of a Dade High School Principal, pursuant to the Board's "Zero Tolerance" policy toward offenses committed on school grounds. Applying the wrong legal standard, the district judge concluded that the School Board was not responsible for the arrest because it had no policy of making illegal arrests.
First, the Board's Zero Tolerance Policy obviously encouraged an arrest for a non-offense in direct contrast to the independent police officer who thought it best not to arrest for this event or incident. Second, the correct legal standard for section 1983 requires only that the policy play a substantial role in bringing about the violation, not that the policy itself be unlawful. "Local governing bodies, therefore, can be sued directly under §§ 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement . . . ." Monell v. Dept. of Social Services, 436 U.S. 658, 690 (1978). Thus, it is sufficient if the official policy or custom is the "moving force of the constitutional violation." Trezevant v. City of Tampa, 741 F.2d 336, 340 (11th Cir. 1984) There is no requirement that the policy itself be unlawful.
The district judge's further dictum or alternative ruling that the School Board had no arrest policy at all is contrary to the record showing a written Zero Tolerance Policy of invoking "the most severe consequences" for on-campus crimes, including mandatory referral to an in-house police force coupled with a customary practice of frequently arresting students for on-campus crimes. Plaintiff's non-offense was viewed through the magnifying glass of Zero tolerance and deemed serious enough to warrant an arrest because of the Principal's "adamant" pressure to make arrests if there was a criminal charge that could be found. As the chief executive officer on the campus, his or pressure on Alexander put School Board 's Zero Tolerance policy into action. It is an unreasonable reading of the Board's policies and practices to conclude that Officer Alexander's arrest was an action completely untethered to Board Policy.
The record here demonstrates a sufficient culpability on the part of the School Board to satisfy Monell's requirement that respondeat superior liability not be imposed. There is much more here than an arrest committed by an officer merely in the scope and course of his employment; the Zero Tolerance policy effectively controlled the decision to arrest.
If this court should disagree with Appellant's analysis, the court is asked to consider the fact that Justices Breyer, Souter, Ginsburg and Stevens have issued a call to reexamine Monell's rejection of respondeat superior. ". . . Monell is hardly settled. . . ." Board of County Comm'rs v. Brown, 520 U.S. 397, 430, (Souter, J., dissenting, joined by Stevens and Breyer, J.J.). A separate opinion by Justice Breyer, joined by Justices Stevens and Ginsburg, does the same. Id. at 431.
Argument
I. THE DISTRICT'S ORDER SHOULD BE REVERSED BECAUSE THE COUNTY'S POLICY TO STRIP SEARCH ALL FELONY ARRESTEES IS UNREASONABLE UNDER THE FOURTH AMENDMENT.
A. Automatic Strip Searches Upon Arrest are Invalid -- There Must be Individualized Suspicion.
"It is axiomatic that a strip search represents a serious intrusion upon personal rights." Justice v. City of Peachtree, 961 F.2d 188, 192 (11th Cir. 1992). Strip searches are "demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission." Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983). "[T]he feelings of humiliation and degradation associated with forcibly exposing one's nude body to strangers for visual inspection is beyond dispute." Thompson v. City of Los Angeles, 885 F.2d 1439, 1446 (9th Cir. 1989).
There must be "reasonable individualized suspicion that an arrestee is carrying or concealing contraband" to justify a strip search. Thompson, 885 F.2d at 1446. Automatically strip searching every arrestee upon booking into the jail is unnecessary and unlawful. Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984). The constitutional standard is one of reasonableness. Applying that test, the courts of appeal are virtually unanimous in holding that routine or S.O.P. will not justify a strip search where the rationally appraised security risk is slight or nonexistent. Thus, where plaintiffs had been arrested and were awaiting bail, and jail officials had no reasonable suspicion that they were likely to be carrying or concealing weapons or drugs, it was unlawful to strip search them because of a routine or blanket policy. Chapman v. Nichols, 989 F.2d 393, 397 (10th Cir.1993).
B. This Circuit Has Joined All Others in Concluding That A Policy Which Does Not Require A Finding of Reasonable Suspicion to Conduct a Strip Search is Unconstitutional.
In Skurstenis, 236 F.3d at 682, this court held that automatic strip searching was unconstitutional:
This policy, which does not require any reasonable suspicion, does not comport with the requirements of the Fourth Amendment. This court thus joins every other circuit which has had occasion to review a similar policy and holds such policy to be unconstitutional.
Skurstenis struck down a county jail policy which required that "each inmate be strip searched by a same sex jail staff member before being placed in a cell or detention room." Shelby County Jail Policy No. B-103, 236 F.3d at 682. The Miami-Dade County policy challenged here, DSOP 11-022(D)(5)(a), is almost identical. Like the Shelby County policy, the Dade County policy is devoid of any reasonable suspicion requirement and thus violates the Fourth Amendment.
Although the court in Skurstenis held the particular search to be constitutional, it did so because the defendant was arrested with a .38 special handgun in her possession. Id. The court held that "possession of [the] weapon provided 'reasonable suspicion' necessary to authorize a strip search." Id. In this case there was no weapon found and no reasonable suspicion was articulated for the search. The search, therefore, violated the plaintiff's Fourth Amendment rights.
C. The Felony/Misdemeanor Distinction Relied Upon by the District Judge is Not Supported by Case Law and is Irrational as to The Goal of Securing Safety of Jailers and Inmates.
The district judge's April 17th Omnibus Order attempts to justify the strip search below on the ground that Ms. Cuesta was charged with a felony. The argument is that jails or detention centers have a greater need to search felony arrestees than those arrested for misdemeanors. R2-84-11.
While at English common law the felony/misdemeanor distinction had great power, given that nearly all felonies were hanging offenses, the distinction no longer makes sense in most contexts. In Tennessee v. Garner, 471 U.S. 1, 14 (1985), the Supreme Court said "while in earlier times 'the gulf between the felonies and the minor offenses was broad and deep' . . . today the distinction is minor and often arbitrary." The Court went on to say that "[m]any crimes classified as misdemeanors[] or nonexistent[] at common law[,] are now felonies." Id. Directly pertinent to the strip search issue, the Supreme Court also rejected the "assumption that a 'felon' is more dangerous than a misdemeanant [as] untenable. Indeed, numerous misdemeanors involve conduct more dangerous than many felonies." Id.
Following the logic of Garner, Kennedy v. Los Angeles Police Department, 901 F.2d 702 (9th Cir. 1990), specifically rejected the felony justification for a strip search. The court held that the mere classification of a crime as a felony cannot justify having a "blanket policy that subjects all felony arrestees to a visual body cavity search." Id. at 710. In striking down the policy, the court held that the felony/misdemeanor "classification is not reasonably related" to jail security; because "a crime's classification as a felony . . . cannot reasonably forecast an arrestee's stealthful proclivities." Id. at 713. Accord, Fuller v. M.G. Jewelry, 950 F.2d 1437 (9th Cir. 1991).
What the Kennedy court said of the California laws there in question applies with equal force to Florida. In Florida, felonies include: presenting a counterfeit or altered lottery ticket, § 24.118(3)(a); failure to remit sales taxes, § 212.15(2)(b); tampering, adjusting, changing, etc, an odometer, § 319.35(1)(a); committing medicaid provider fraud, § 409.920(2)(f); violation of part IV of the Florida Telemarketing Act, §§ 501.601-501.626; any violation of the Florida Securities and Investor Protection Act under § 517; unauthorized reception of cable television under § 812.15.
None of these crimes create any reason to believe that a person charged thereunder would be inclined to smuggle a weapon or contraband into a penal institution. Yet, under the District Court's decision, it is lawful to strip search an arrestee for a counterfeit lottery ticket, without any reason to suspect the arrestee of harboring weapons or contraband.
In stark and irrational contrast, battery under § 784.081, assault under § 784.011, carrying a concealed weapon under § 790.01, possession of drug paraphernalia under § 893.147, drug possession under § 893.13(1)(a)(5), and drug distribution under § 893.13(b)(3), are all misdemeanors under Florida law.
The reasonableness of a search is measured in part by the particular goal(s) it is intended to accomplish. Bell v. Wolfish, 441 U.S. 520, 559 (1979). Drugs and weapons are in particular the objects of strip searches by jail personnel. By the nature of the Florida misdemeanors described in the preceding paragraph, an arrestee might reasonably be assumed to have some tendency to bring weapons or contraband into a penal institution, whereas there is no such reason to strip search a person charged with theft of cable services. Yet because CCW and drug paraphernalia possession are misdemeanors, arrestees for the very offenses that should logically be targeted by strip search policy are not strip searched automatically under DSOP 11-022(D)(5)(a).
The District Court stated in its order "[a]s other courts have reasoned, allowing correctional personnel to strip search based on the class of offense, specifically felonies, obviates the hundreds of individualized determinations that would be necessary absent such a bright line rule." R2-84-15. Without a bright line rule, personnel would have to "ponder the niceties of Fourth Amendment law every time they admit a potentially dangerous inmate into their facility." R2-84-15.
But the District Court failed to consider that jail management can draw up a classification system that reasonably relates to the goal of securing the safety of jailers and inmates. The nature of the charge can and should be taken into consideration; in some cases, the charge itself may give rise to reasonable suspicion." Kennedy, 901 F.2d at 704. Further, jailers may employ a skin search without a more intrusive cavity search. Cf. Id. at 711. However, the constitutional dividing line is not between misdemeanors and felonies but between crimes involving contraband, weapons or violence and those that do not.
D. The County Has Not Shown Any Individualized Suspicion To Justify A Strip Search of Liliana Cuesta.
In the case at bar, Plaintiff had been arrested in the school principal's office, not off the street in a high-crime area or a drug den; she had been in the continuous custody of the police for hours before being booked into TGK, R1-39-50; standard arrest procedure calls for a pat down of the body of the arrestee at the time of arrest, R1-40-66-68. It is standard practice to search the arrestee again upon booking into jail. Officer Galardi felt that she represented to threat no him. R1-39-50. The crime she was charged with did not relate in any way to drugs or weapons.
For these reasons, the opportunities, "rationally appraised," for Plaintiff to acquire weapons or contraband between arrest in the principals's office and booking into TGK were virtually nonexistent. Indeed, the arresting officer who wrote the "A" forms admitted that he had no grounds to charge her with an assault, battery or any other crime of violence against Mr. Dawson. R1-40-40. Finally, there was no showing by the County that the TGK officer who conducted the strip search had any particular reason to strip search Plaintiff, except the fact that she was charged with a nominal felony. In short, there was no individualized suspicion that Plaintiff had drugs or weapons in her bodily orifices. The only justification for the strip search was Miami-Dade County's blanket policy, DSOP 11-022, requiring a strip search of all felony arrestees. Such a policy violates the Fourth Amendment prohibition against unreasonable searches of the person.
II. THE DISTRICT COURT'S RULING FOR THE SCHOOL BOARD SHOULD BE REVERSED BECAUSE THE SCHOOL BOARD'S ZERO TOLERANCE POLICY WAS THE MOVING FORCE BEHIND THE ILLEGAL ARREST OF PLAINTIFF.
A. The District Judge Applied an Incorrect Legal Standard in Ruling that the School Board's Zero Tolerance Policy Was Not Culpable Under Section 1983 Because it Did Not Require or Encourage Illegal Arrests.
Plaintiff was arrested by a Miami-Dade School Police Officer stationed on the school campus in a Miami-Dade School principal's office pursuant to the Board's "Zero Tolerance" policy to arrest all persons committing serious offenses on school grounds. Plaintiff's "offense" was treated as serious because of the principal's fear. He provided the arresting officer with "adamant" encouragement to arrest. Arrests are common in high schools generally and at Killian.
Nonetheless, the district judge concluded that the School Board was not responsible for the arrest because it had no policy of making illegal arrests:
the Court finds that contrary to Plaintiff's argument, the relevant showing for establishing the instant claims is a School Board policy or custom that required unlawful arrests of students or otherwise required violations" of their constitutional rights.
Cuesta, 2000 WL 33174398 at *4. This is an incorrect legal standard. Although many § 1983 cases do in fact involve invalid policies, no case requires that the policy itself be unconstitutional. It is sufficient if the policy causes the constitutional violation. "Local governing bodies . . . can be sued directly under §§ 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement . . . ." Monell, 436 U.S. at 690. This court followed that principle in Trezevant, 741 F.2d at 340, imposing municipal liability under 42 U.S.C. § 1983 where "unconstitutional action is taken to implement or execute a policy statement . . . ." Thus, it is sufficient if the "official policy or custom . . . [is] the moving force of the constitutional violation." Id. (citing, Gilmere v. City of Atlanta, 737 F.2d 894, 901 (11th Cir. 1984)).
There is no requirement that the policy itself be unlawful. A policy to arrest students who commit on-campus crimes is not necessarily unlawful--so long as there is probable cause to believe that the arrestee has committed a valid crime within constitutional limits. But if the policy to arrest results in an invalid arrest for a nonexistent crime, or a simple false arrest, the arrest is no less the result of the policy to arrest under conventional principles of causation and responsibility. Cf. Restatement (Second) of Torts § 442A (1965). The district judge should be reversed on that ground.
B. The District Judge's Alternative Ruling that the Zero Tolerance Policy Was Not A Substantial Factor in Causing Plaintiff's Arrest Incorrectly Interprets the Policy.
The court below went one step further and rendered either a dictum or an alternative ruling that there was no School Board policy to arrest students at all. Cuesta, 2000 WL 33174398 at *4. The crux of the judge's ruling in that regard is that the on-campus arrest by a schools police officer for on-campus conduct did not represent school policy because "the Rules are not reasonably susceptible of being construed to mandate arrests of students who commit on-campus crimes, much less unlawful arrests." Cuesta, 2000 WL 33174398, *4 [emphasis original.]
Appellant contends that the court's construction on this point is also incorrect. As the court itself pointed out, the Board has a "zero tolerance policy toward school related violent crime . . . Rule 6Gx13-5D-1.08." Cuesta, 2000 WL 33174398 at *4 n.5. "All violations of law . . . are to be reported . . . Rule 6Gx13-4A-1.21 III, IV," to School Board police and other police. Id . School Board police are authorized to assist in the "prevention and detection of crime and the enforcement of the penal laws of this state as the violation occurs on or to the properties of the Dade County Public Schools . . . Rule 6Gx13-4A-1.09." Id.
Although the forgoing was cited by the court, 2000 WL 33174398 at *4 n.5, an ultra-technical conclusion emerged from the court's analysis: the policy does not quite say that School Board police must arrest whenever they can. This is an excessive literalism where the School Board has clearly communicated its "endorsement" of the policy that on-campus crimes--and Appellant's pamphleteering was treated as a serious transgression by the Principal and by the arresting officer because of Mr. Dawson's fear--should bring about an arrest. What does the Board convey by the words on the very first page of the Dade County Public Schools Code of Student Conduct (Secondary): "This policy requires school districts to invoke the most severe consequences provided for in the Code of Student Conduct in dealing with those who engage in violent criminal acts . . . ."
But assuming arguendo that the forgoing rules do not quite add up to a mandate to arrest, the "missing link" is supplied by two other factors: a common practice to arrest for serious on-campus crimes and a school principal, "the administrative and instructional leader of a public school" under Fla. Stat. 231.0861 (1), egging on his school police officer in an "adamant" way to bring about the arrest of Plaintiff, against a background of 67 arrests at Killian Senior High School, during the school year in question, 1997-98. This was in line with School Board policy: throughout the Miami Dade County School District, 886 arrests at senior high schools were made by the Division of Schools Police in school year 1997-98. R2-65-2 [Exhibit 8].
It bears emphasis that the school principal was required by Board policy to report the putative offense and more specifically, to refer Plaintiff to police. The Board has also chosen to create an internal, proprietary police force. This obviously facilitates a principal's duty to "refer" crimes to police and makes it much quicker and easier to effectuate an on-the-spot arrest (rather than having to wait for a patrol car to answer a telephone request to county or city police for assistance on school grounds).
The captive nature of the Division of Schools Police also is a significant part of School Board customary practice to arrest. It is to be expected that a police officer who is paid by the School Board, who is stationed at a school for several years and sees the principal routinely at school, will form an allegiance to "his" principal that an independent county or city officer would not have. Thus, in striking contrast to School's Police Officer Alexander, Metro-Dade Officer Galardi testified on deposition that both as a parent and as a police officer, he thought the "First Amendment" incident could have and should have been handled administratively, without an arrest. R1-39-38.
But a School Board police officer was ready, willing and able to treat the bad taste and misconduct of the students as a criminal offense, as a virtual assault on the Principal, based on the later's fear. R1-40-40. From that premise, the decision to arrest naturally followed from both written policy and widespread customary practice to arrest for on-campus felonies and other serious crimes.
The arrest was unlawful because Fla. Stat. § 836.11 was, as stated by the Miami-Dade State Attorney in announcing her decision to file a nolle prosse, "unconstitutional and unenforceable," R2-65-2 [Exhibit 9]. The statute was and is so obviously unconstitutional on its face that it is unsurprising that it has been a dead letter in Florida law. First, in Talley v. California, 362 U.S. 60, 64 (1960), the Court struck down a law that prohibited all anonymous pamphleteering, recognizing that anonymity is a core value protected by the First Amendment.
Second, § 836.11 is void on its face for viewpoint discrimination. It selectively prohibits only critical speech, speech that "tends to expose" any person or religious organization "to ridicule." Positive or "nice" anonymous speech is not punished. This is a discrimination that the state may not make. It may not permit only praise to be uttered anonymously while criminalizing the anonymous satirist, however crude or offensive the written message may seem to some. This discrimination in viewpoint violates the First Amendment.
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (unanimously holding a St. Paul hate crimes ordinance unconstitutional because of its viewpoint bias).
Yet a third, independent ground for invalidity of the statute is its vagueness and overbreadth. By their very nature, laws prohibiting abusive or contemptuous speech sweep within their wide ambit a vast range of legitimate satire, high and low, whether it be Saturday Night Live or Jonathan Swift's infamous "Modest Proposal" to use the surplus impoverished children of Ireland as food for table. Such laws also confer unlimited discretion on police officers because what is abusive to one person or ethnic group may be acceptable "roasting" to another. Such laws are necessarily vague and overbroad, and thereby are facially invalid.
The district court held that despite these constitutional principles, Officer Alexander should be protected by qualified immunity because § 836.11 was "presumptively valid" so long as it was on the books. R2-83. That ruling is not on appeal. Nonetheless, the Officer's conduct is before this court insofar as it reflects the School Board's policy of Zero Tolerance tilting in favor of arrests, even for non-crimes.
The long and short of it is that Plaintiff's conduct was probably sufficient to trigger her expulsion from Killian, an expulsion which she did not challenge in the court below. But her conduct did not constitute a violation of law. The zeal to arrest her and the others for a non-crime arose out of the Board's Zero Tolerance policy, which was embodied by the looming presence of the school principal. An independent Metro-Dade police officer, John Galardi, did not see grounds to arrest; the captive School Board police officer did. The difference is clear: the Board's Zero Tolerance policy played a significant role in the decision to arrest on contrived and unsustainable grounds that were promptly rejected by the State Attorney.
Thus, the requirements of section 1983 have been satisfied by Plaintiff. She did "identify the policy, connect the policy to the [Board] itself, and show that the particular injury was incurred because of the execution of that policy." Searcy v. City of Dayton, 38 F.3d 282, 287 (6th Cir. 1994). The School Board should be challenged to answer this question: If the arrest by School Board Police Officer Alexander did not represent official custom or policy, what did it represent? Was it a lark and frolic of his own? Plaintiff submits that this arrest represented implementation of customary practice as well as official written policy.
C. Monell's Prohibition On Respondeat Superior Liability Under Section 1983 Should Be Reconsidered, As Four Supreme Court Justices Have Stated.
The concern of the Supreme Court in Monell was that persons injured in their constitutional rights have recourse against municipal entities based on some showing of culpability by that entity. Monell holds that a municipal entity "cannot be held liable solely because it employs a tortfeasor ... on a respondeat superior theory." Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). The crucial legal question is whether the arrest of Plaintiff is fairly attributable to the School Board because its policies and practices were the "moving force" behind the arrest. Id. at 695. In determining whether official policy or customary practice is the moving force behind an act, it is sufficient that the policy or practice constitute "a significant contributing factor ... ." Burns v. City of Galveston, 905 F.2d 100, 102 (5th Cir. 1990). "A municipal policy is deemed to be the moving force of a constitutional injury if the conduct is a substantial factor in bringing about the harm . . . ." Parker v. District of Columbia, 850 F.2d 708, 713 (D.C. Cir. 1988).
That standard is met on this record. This is not a case of an officer acting in a purely discretionary way "without any control or direction having been exercised . . . ." Monell, 436 U.S. at 694. On the contrary, Alexander, a school cop, stationed on school grounds, conducting an investigation at the behest of the school principal, in the principal's office, in an environment where arresting is strongly encouraged, sat down with a copy of the Florida Statutes and searched through them in an effort to come up with a charge to cover the non-criminal conduct of Plaintiff. There is much more here than an arrest committed by an officer merely in the scope and course of his employment; the Zero Tolerance policy played a substantial role in the arrest.
But if the court rejects the argument that the arrest was policy, it should take cognizance of the fact that Monell also states that it does "not address the full contours of municipal liability under § 1983 . . . and leave[s] further development of this action to another day." Id. at 695. That day may be near at hand. Four Justices of the Supreme Court have called for re-examination of Monell. "[W]e should reexamine . . . the continued viability of Monell's distinction between vicarious municipal liability and municipal liability based upon policy and custom." Board of County Comm'rs v. Brown, 520 U.S. 397, 431 (1997) (Breyer, J., dissenting, joined by Stevens and Ginsburg, JJ.). ". . . Monell is hardly settled. . . . [R]eexamin[ation of] § 1983 municipal liability afresh finds support in the Court's own readiness to rethink the matter." Brown, 520 U.S. at 430 (Souter, J., dissenting, joined by Stevens and Breyer, JJ.). Appellant respectfully requests this court to reverse the judgment of the district insofar as it finds no policy or custom under § 1983. The Board's "policy statement" and customary practice demonstrates a sufficient culpability on the part of the School Board to satisfy Monell's requirement that respondeat superior liability not be imposed. But if this court disagrees with the forgoing arguments, Plaintiff's fall-back position is that the Board should be held liable under section 1983 on the basis of respondeat superior.
For that reason, Appellant requests the court to enter a published opinion that analyzes the record issues concerning respondeat superior liability compared to satisfying Monell's policy or custom standards of liability, so as to allow for further review of the issue in the Supreme Court.
Conclusion and Relief Requested
Based on the foregoing points and authorities, the district court erred in granting summary judgment as to each defendant. Accordingly, Appellant requests the following relief:
1. As to Miami-Dade County on the strip search claim, an order reversing the district court's grant of summary judgment and remanding to the district court with directions to enter a summary judgment on liability for Plaintiff/Appellant and to conduct further proceedings to determine damages; and
2. As to the Miami-Dade School Board on the unlawful arrest claim, an order reversing the district court's grant of summary judgment on liability for Plaintiff/Appellant and to conduct further proceedings to determine damages. In the alternative, if the judgment as to the School Board be affirmed, to issue an opinion explaining that Monell's standards of [policy or custom are not met and that to impose liability on the School Board would require application of respondeat superior.
Respectfully submitted,
STEVEN WISOTSKY, P.A.
3050 Jefferson Street
Miami, FL 33133
Tel: 305-858-2436
By: STEVEN WISOTSKY, ESQ.
Florida Bar No. 130838
I hereby certify that a true copy of the forgoing was mailed this 9th day of April, 2001 to counsel for the School Board, Ana Segura, 1450 N.E. Second Ave, Suite 400, Miami Fl 33132 and to James Allen, Assistant County Attorney, counsel for Miami Dade County, Metro Center, 111 N.W. 1st St, Miami Fl. 33128.
