CA11: RS required for a prison visitor’s strip search; out of circuit authority can be considered in whether the law is clearly established

Reasonable suspicion is required for a prison visitor’s strip search. Out of circuit authority can be considered in whether the law is clearly established. Here it essentially was. Gilmore v. Ga. Dept. of Corr., 2025 U.S. App. LEXIS 17209 (11th Cir. July 11, 2025), panel opinion Gilmore v. Ga. Dept. of Corr., 111 F.4th 1118 (11th Cir. 2024):

We voted to rehear the case as a full court, see Gilmore v. Ga. Dept. of Corr., 119 F.4th 839 (11th Cir. 2024) (en banc), and asked the parties to brief two issues:

1. Whether Marsh v. Butler County, 268 F.3d 1014, 1032 n.10 (11th Cir. 2001) (en banc), and Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 955 (11th Cir. 2003), should be overruled to the extent that they hold or state that no amount of out-of-circuit authority can clearly establish the law for purposes of qualified immunity.
2. If so, whether a “robust consensus of persuasive authority” clearly established that the strip search violated Ms. Gilmore’s Fourth Amendment rights.

After hearing oral argument, we asked the parties to brief two additional issues:

3. Whether a jury could find that the strip search violated the Fourth Amendment if it credits Ms. Gilmore’s version of events.
4. If so, whether the Fourth Amendment violation was one of “obvious clarity” such that the officers are not entitled to qualified immunity.

We now answer the last two questions affirmatively.

First, if it credits the version of events presented by Ms. Gilmore, a jury could find under the totality of the circumstances that the officers who conducted the strip search violated her Fourth Amendment rights. The strip search was not justified at its inception because the officers (1) lacked even reasonable suspicion that Ms. Gilmore was involved in any illegal activity, (2) coerced her consent through a threat of detention, and (3) failed to give her the option to forgo her visit and leave the facility. The search was also unreasonable in scope because it involved the physical touching of intimate body parts and a visual body-cavity inspection.

Second, for all of the reasons summarized above, the Fourth Amendment violation was one of “obvious clarity.” As a result, the officers who conducted the strip search are not entitled to qualified immunity at this stage of the litigation.

As for the first two questions, Marsh and Thomas do not hold that cases from our sister circuits cannot be considered in determining whether a constitutional violation was one of “obvious clarity” for purposes of qualified immunity. To the extent that language in Marsh, Thomas, and other Eleventh Circuit cases can be read to suggest that out-of-circuit authority is irrelevant in determining whether the law was clearly established, we now clarify that such authority may indeed be considered in an “obvious clarity” scenario.

We leave for another day the broader questions of what constitutes a “robust consensus of persuasive authority” and whether such a consensus can alone constitute clearly established law in the absence of Supreme Court or Eleventh Circuit precedent.