CA9 (en banc): School strip search for ibuprofen clearly violated the Fourth Amendment so no qualified immunity

School strip search for ibuprofen clearly violated the Fourth Amendment. Therefore, there was no qualified immunity. Redding v. Safford Unified School District, 531 F.3d 1071 (9th Cir. 2008) (en banc, 6-5):

On the basis of an uncorroborated tip from the culpable eighth grader, public middle school officials searched futilely for prescription-strength ibuprofen by strip-searching thirteen-year-old honor student Savana Redding. We conclude that the school officials violated Savana’s Fourth Amendment right to be free from unreasonable search and seizure. The strip search of Savana was neither “justified at its inception,” New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985), nor, as a grossly intrusive search of a middle school girl to locate pills with the potency of two over-the-counter Advil capsules, “reasonably related in scope to the circumstances” giving rise to its initiation. Id. Because these constitutional principles were clearly established at the time that middle school officials directed and conducted the search, the school official in charge is not entitled to qualified immunity from suit for the unconstitutional strip search of Savana.

. . .

Nowhere does the T.L.O. Court tell us to accord school officials’ judgments unblinking deference. Nor does T.L.O. provide blanket approval of strip searches of thirteen-year olds remotely rumored to have had Advil merely because of a generalized drug problem. Rather, the Court made it clear that while it did not require school officials to apply a probable cause standard to a purse search, it plainly required them to act “according to the dictates of reason and common sense.” Id. As discussed below, the public school officials who strip searched Savana acted contrary to all reason and common sense as they trampled over her legitimate and substantial interests in privacy and security of her person.

. . .

Nor was the strip search “reasonably related in scope to the circumstances which justified the interference in the first place.” T.L.O., 469 U.S. at 341 (internal quotation mark and citation omitted). The scope of a search is permissible only if “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.” Id. at 342 (emphasis added). Here, the public school authorities adopted a disproportionately extreme measure to search a thirteen-year-old girl for violating a school rule prohibiting possession of prescription and over-the-counter drugs. We conclude the strip search was not reasonably related to the search for ibuprofen, as the most logical places where the pills might have been found had already been searched to no avail, and no information pointed to the conclusion that the pills were hidden under her panties or bra (or that Savana’s classmates would be willing to ingest pills previously stored in her underwear). Common sense informs us that directing a thirteen-year-old girl to remove her clothes, partially revealing her breasts and pelvic area, for allegedly possessing ibuprofen, an infraction that poses an imminent danger to no one, and which could be handled by keeping her in the principal’s office until a parent arrived or simply sending her home, was excessively intrusive.

Along with our sister circuits, we have long recognized the psychological trauma intrinsic to a strip search. “The 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) (challenging a strip search of an adult after arrest for grand-theft auto). As the Tenth Circuit has explained, “[t]he experience of disrobing and exposing one’s self for visual inspection by a stranger clothed with the uniform and authority of the state … can only be seen as thoroughly degrading and frightening.” Chapman v. Nichols, 989 F.2d 393, 396 (10th Cir. 1993) (challenging strip search policy of Oklahoma jail). That Savana’s search took place in a nurse’s office in front of two women does not remove the sting of the procedure. See Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982) (“Indeed, a strip search, regardless how professionally and courteously conducted, is an embarrassing and humiliating experience.”).

These concerns, pressing and legitimate when strip searches are conducted on adults in prison, are magnified when strip searches are performed on schoolchildren.

See ABAJournal.com: En Banc 9th Circuit Strikes Girl’s Strip Search.