Anonymous tip of student with a gun did not support suspicionless frisk of plaintiff, but officer gets qualified immunity

Judge Thompson of the M.D. Alabama holds that a student frisk on an anonymous tip that one student would have a gun on school premises violated the Fourth Amendment and there was no reasonable suspicion as to the plaintiff. The officer, however, did not have fair notice of this reading under T.L.O., and he was entitled to qualified immunity. M.D. v. Smith, 504 F. Supp. 2d 1238 (M.D. Ala. 2007):

The opposite conclusion would give police nearly unbridled authority in situations involving uncorroborated anonymous tips that “someone” has a firearm: an officer could search anyone who fails to comply with an officer’s order, even if the officer’s order is impossible to comply with, as was the case here. It would be but a small step to allow officers to search anyone they encounter while investigating the anonymous tip because that person might be the armed suspect. Such a result is insupportable because the Supreme Court has expressly rejected the notion that the Fourth Amendment’s requirement of reasonableness and individualized suspicion is suspended when officers respond to allegations of an armed person, J.L., 529 U.S. at 272. Accordingly, the court concludes that the frisk violated M.D.’s Fourth Amendment right to be free from unreasonable searches and seizures.

ii. Clearly established law

In determining whether a right was clearly established, courts may examine whether case law existing at the time of the violation would put a reasonable officer on notice that the officer’s conduct violates constitutional rights. See Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002). The Eleventh Circuit frames this inquiry as whether the officer had “arguable reasonable suspicion” for the search or seizure. Brent v. Ashley, 247 F.3d 1294, 1303 (11th Cir. 2001).

As already noted, neither the Supreme Court nor the Eleventh Circuit has considered a case where an anonymous tip of an armed person on school grounds converged with a student’s failure to obey a police officer’s orders. Because this case presents an uncharted question of Fourth Amendment jurisprudence, a reasonable officer in Deputy Sheriff Smith’s position could believe that M.D.’s failure to obey Smith provided reasonable suspicion that M.D. was armed, even without any evidence linking the anonymous tip to M.D. Moreover, in T.L.O., the Supreme Court left open, and the Eleventh Circuit has yet to consider, whether searches conducted by police officers on school grounds that are not requested by school officials are governed by Terry. Finally, this court appears to be the first to consider whether the Supreme Court’s recent decision in Devenpeck undermines the holding in Knowles that an officer cannot conduct a search incident to arrest absent a full custodial detention.

Because the law is unsettled in several areas relevant to this case, Deputy Sheriff Smith did not have “fair notice,” Vinyard, 311 F.3d at 1350, that his actions violated M.D.’s Fourth Amendment right. He therefore possessed arguable reasonable suspicion to conduct the frisk and is entitled to qualified immunity on the unreasonable search-and-seizure claim.