CA6: School officials had no justification for searching student’s cell phone’s text messages and voicemail

The plaintiff was caught texting on his cell phone in class and disciplined for it. School officials unreasonably searched the phone’s text messages and voicemail because there was no justification. This was the Sixth Circuit’s first foray into T.L.O. and school searches. G.C. v. Owensboro Pub. Sch., No. 11-6476 (6th Cir. March 28, 2013):

We disagree, though, that general background knowledge of drug abuse or depressive tendencies, without more, enables a school official to search a student’s cell phone when a search would otherwise be unwarranted. The defendants do not argue, and there is no evidence in the record to support the conclusion, that the school officials had any specific reason at the inception of the September 2009 search to believe that G.C. then was engaging in any unlawful activity or that he was contemplating injuring himself or another student. Rather, the evidence in the record demonstrates that G.C. was sitting in class when his teacher caught him sending two text messages on his phone. R. 69-4 (Brown Aff. at ¶ 4) (Page ID #384). When his phone was confiscated by his teacher pursuant to school policy, G.C. became upset. Id. ¶ 3. The defendants have failed to demonstrate how anything in this sequence of events indicated to them that a search of the phone would reveal evidence of criminal activity, impending contravention of additional school rules, or potential harm to anyone in the school. On these facts, the defendants did not have a reasonable suspicion to justify the search at its inception.

The defendants further argue that G.C.’s claim must fail because he did not suffer any harm as a result of the search; specifically, they point to the fact that he “was not disciplined based on the contents of his phone.” Appellees Br. at 28. However, the issue of injury and compensable damages has not been developed before us. Even if G.C. cannot establish compensable damages, he may be entitled to nominal damages. See Carey v. Piphus, 435 U.S. 247, 266 (1978) (“[W]e believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury.”); Slicker v. Jackson, 215 F.3d 1225, 1231 (11th Cir. 2000) (“We have held unambiguously that a plaintiff whose constitutional rights are violated is entitled to nominal damages even if he suffered no compensable injury.”); Briggs v. Marshall, 93 F.3d 355, 360 (7th Cir. 1996) (recognizing that nominal damages are available for Fourth Amendment claims). Moreover, punitive damages sometimes attach to an award comprised solely of nominal damages. See Romanski v. Detroit Entm’t, L.L.C., 428 F.3d 629, 645 (6th Cir. 2005) (“But this is a § 1983 case in which the basis for the punitive damages award was the plaintiff’s unlawful arrest and the plaintiff’s economic injury was so minimal as to be essentially nominal.”). Therefore, we remand to the district court to address the issue of injury and damages in the first instance.