||EIGHTH CIRCUIT DENIES QUALIFIED IMMUNITY IN STRIP SEARCH

EIGHTH CIRCUIT DENIES QUALIFIED IMMUNITY IN STRIP SEARCH

On September 5, 2019, the Eighth Circuit Court of Appeals decided Robinson v. Hawkins et al.[i], in which the court examined whether an officer was entitled to qualified immunity in an incident that involved a strip search.  The relevant facts of Robinson, taken directly from the case, are as follows:

On October 19, 2012, St. Louis Metropolitan Police Department (SLMPD) Officers Angela Hawkins and Joseph Speiss were among a group of officers conducting a police checkpoint. At approximately 10:30 p.m., Robinson’s boyfriend—who was driving Robinson’s car while she sat in the front passenger seat—made an illegal U-turn, apparently to avoid the checkpoint. Officers from the checkpoint then conducted a traffic stop on Robinson’s car.

As Officer Hawkins approached the stopped car she saw Robinson’s boyfriend hand something to Robinson, and Robinson “taking her hands out of the front of her waistband.” Robinson v. City of St. Louis, Mo., No. 4:17-CV-156-PLC, 2018 WL 1695534, at *3 (E.D. Mo. Apr. 6, 2018). Officer Hawkins suspected that Robinson and her boyfriend had exchanged drugs or a weapon. Once she reached the car, Officer Hawkins asked Robinson to show her hands and step outside. Robinson complied. Officer Hawkins then handcuffed Robinson and performed a pat-down search which failed to reveal the presence of any contraband. Officer Hawkins then asked Robinson what she had placed in her waistband, and Robinson admitted to having attempted to hide some marijuana. Officer Hawkins told Robinson to retrieve the marijuana, but Robinson asked to be brought to the police station to retrieve the marijuana there. Officer Hawkins refused, citing officer safety concerns.

Officer Hawkins moved Robinson to a nearby parking lot behind a tractor-trailer, intending to complete the search for the drugs that Robinson had admitted were in her possession. While being moved, Robinson continued to object to the search in the parking lot and asked to be taken to the station. According to Robinson Officer Hawkins said, “Bitch, no, we’re doing this right now” and yelled at her repeatedly in response to her desire to be taken to the station, calling her a “f*cking dope fiend.” Hawkins requested rubber glovers over the radio. Sgt. Mark McMurry, another SLMPD officer, drove up “alongside the trailer” and delivered a pair of gloves. Once in location Robinson retrieved the marijuana. Officer Hawkins remained convinced that Robinson was likely hiding other contraband. While there is some dispute as to what was said and done, Robinson asserts Officer Hawkins grabbed her by the arms and pushed her face-first into the trailer yelling, “Bitch, this isn’t all that you have. You’re not freaking out over a bag of marijuana.”

Officer Hawkins turned Robinson around and pushed her back against the trailer. Pictures of Robinson’s clothes from that evening show some staining, reportedly caused by the encounter. Robinson claims Officer Hawkins then unfastened her pants, pulled down her underwear, and “touched . . . Robinson’s vagina, anus, and inside her vagina lips.” Robinson claims that shortly thereafter, Officer Hawkins planted a baggie containing drugs on the ground in front of Robinson.

Robinson also claims she “could still see the man [i.e., the male officer] that was watching” during the search. Security footage confirmed the presence of a male officer in the lot during at least a portion of the search. Officer Hawkins did not dispute Robinson’s assertion “that there were at least two male officers in the parking lot while [Officer Hawkins] searched [Robinson].” Robinson described the experience as feeling “like [she] was being raped in public.”

Officer Hawkins walked Robinson back to the patrol car and shortly thereafter Officer Swinton arrived at the scene of the stop. Officer Swinton observed that Robinson was “hysterical.” According to Officer Swinton it appeared that Robinson was “having a panic attack.”

Robinson was transported to the police station, where she attempted to write a statement describing Officer Hawkins’s behavior. While Robinson was writing her statement, Officer Swinton allegedly attempted to pressure her into claiming the “dope” belonged to her boyfriend. Robinson asked for a lawyer and Officer Swinton cursed at her in reply. Robinson claims Officer Swinton then read her statement, laughed, balled it up, and did not include the statement in the final incident report. At her deposition, Officer Swinton explained she did not include the statement in Robinson’s incident report because it was unsigned. There is, however, no SLMPD policy requiring statements to be signed. Officer Swinton also described Officer Hawkins as a “mentor.”

The day after her encounter with police, Robinson visited an emergency room and was treated for shoulder pain, neck pain, and cuts and bruising on her wrists, all of which she attributed to her encounter with the officers. Following treatment, she was prescribed an anti-inflammatory drug, a pain-killer, and a muscle relaxant.

Officer Swinton later drafted her own incident report for the evening, even though she had not been at the scene during most of the relevant events. The officers concede that Officer Swinton’s report is riddled with inaccuracies and omissions. For example, the report did not mention the presence of Officers Spiess and McMurry, the pat-down search in the street, Robinson’s request to be searched at the station, Officer Hawkins’s request for gloves, the strip-search in the parking lot, the unfastening and lowering of Robinson’s pants, or Robinson’s distress.

No charges were brought against Robinson.[ii]

Robinson subsequently filed suit in federal district court and alleged that Officer’s Swinton and Hawkins conspired to deprive her of constitutional rights, and that Officer Hawkins violated her Fourth Amendment right to be free from excessive force and an unreasonable strip search.  The district court denied the officer’s motions for qualified immunity and, the officers appealed to the Eighth Circuit Court of Appeals.

Issue One:  Whether the officers were entitled to summary judgment on the allegation of conspiracy to deprive Robinson of access to the courts?

Regarding the conspiracy issue, the court stated

In order to prove a conspiracy under § 1983, the plaintiff must show for a particular defendant: (1) a conspiracy between the defendant and at least one other person; (2) an overt act in furtherance of the conspiracy; (3) a resulting injury to the plaintiff; and (4) the deprivation of a constitutional right or privilege. Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999) (internal citations omitted).[iii]

The plaintiff argued that a conspiracy could be proven because (1) Officer Swinton described Officer Hawkins as a “mentor,” (2) Officer Swinton allegedly wrote an inaccurate report, (3) Officer Swinton was allegedly rude and cursed at Robinson, and (4) Officer Swinton wrote the incident report although she was not on the scene of the incident.  The court of appeals stated that this was insufficient to prove a conspiracy, even if they assume, for the sake of argument, all the facts alleged were true.

Therefore, the court of appeals held that the district court erred by not granting the officers summary judgment on this allegation.

Issue Two:  Whether Officer Hawkins used excessive force when she handcuffed Robinson?

The court first noted that

The obvious function of the qualified immunity rule is to excuse an officer who makes a reasonable mistake in the exercise of his official duties.” Edwards v. Baer, 863 F.2d 606, 607 (8th Cir. 1988). Therefore, the “clearly established” analysis “focus[es] . . . on whether the officer had fair notice that her conduct was unlawful . . . at the time of the conduct.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam). Though “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right . . . [t]his is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.” Koehler, 616 F.3d at 864 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).[iv]

Additionally, it is important to note that at this stage of the litigation, a motion or appeal for qualified immunity, the court is required to view the facts in a light most favorable to the plaintiff, unless there is clear evidence, such as video, that contradicts the plaintiff’s version of events.  As such, the court examined this issue by viewing the facts as the plaintiff alleged.

The plaintiff alleged that Officer Hawkins grabbed her by her arms, pushed her face first into the side of a trailer, cursed at her, and subsequently handcuffed her.

The court then examined the legal principles that control this issue.  The court stated

The right to be free from excessive force in the context of an arrest is clearly established under the Fourth Amendment.” McCrystal, 708 F.3d at 1005. However, “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Graham v. Connor, 490 U.S. 386, 396 (1989)) (citation omitted). “Police officers undoubtedly have a right to use some degree of physical force, or threat thereof, to effect a lawful seizure, and reasonable applications of force may well cause pain or minor injuries with some frequency.” Chambers, 641 F.3d at 907 (citation omitted). “A de minimis use of force is insufficient to support a claim, and it may well be that most plaintiffs showing only de minimis injury can show only a corresponding de minimis use of force.” Id. at 906.[v]

The court of appeals then discussed the Eighth Circuit case of Crumley v. City of St. Paul[vi] in which they held that a police officer did not violate a suspect’s clearly established rights when he “struck or pushed the suspect approximately five times and then spun her around and handcuffed her…where the suspect suffered bleeding wrists” from being handcuffed.[vii]    The court then compared the facts of that case to the facts of Robinson’s case.  Robinson alleged she was pushed into the side of a trailer, and handcuffed, which caused bleeding on her wrists and pain.  These two cases are similar.  The court of appeals then held

Given the general rule that “[n]ot every push or shove . . . violates the Fourth Amendment” and in the absence of a case clearly holding that shoving a suspect against a vehicle and tightening their handcuffs in circumstances like this amounts to more than de minimis force, we conclude that Officer Hawkins’s use of force did not violate a “clearly established” right.[viii]

As such, the court held that Officer Hawkins was entitled to qualified immunity to on the excessive force allegation.

Issue Three:  Whether Officer Hawkins is entitled to qualified immunity regarding the strip search of Robinson?

The court of appeals first discussed the legal principles relevant to this issue and stated

The Fourth Amendment protects against unreasonable searches and seizures. Strip searches raise special considerations, as “the need for the particular search [must be balanced] against the invasion of personal rights that the search entails.” Franklin v. Lockhart, 769 F.2d 509, 510-11 (8th Cir. 1985) (alteration in original) (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)). Such a search must be “reasonable in its scope, manner, and location.” United States v. Williams, 477 F.3d 974, 975 (8th Cir. 2007). In regards to scope and manner, “evidence [of] . . . touch[ing,] . . . prodd[ing,] . . . or [the use of] physical force . . . . are important considerations in weighing the level of insult to personal privacy visited upon the victim of a search.United States v. Oyekan, 786 F.2d 832, 838 (8th Cir. 1986) (internal quotation omitted). Accordingly, searches involving “penetration or public exposure of genitals” are considered more intrusive than those not involving such means. Williams, 477 F.3d at 976.[ix]

Next, the court examined the Eighth Circuit case of the United States v. Williams[x] in which the police transported a suspect to the police station parking lot, which was enclosed by a brick building and chain-link fence, where an officer used a gloved hand to reach in the suspect’s underwear to retrieve a large quantity of drugs next to the suspects genitals.  The court held that it was not unreasonable to conduct that search outdoors since the area was partially secluded and the suspect’s genitals were not observable by passers-by.  The court stated

[O]fficers had not acted unreasonably in searching the suspect outdoors, declining “to adopt a bright-line rule that when a detainee has been secured, and travel to a station-house is possible, an on-street intimate inspection is an unconstitutional, unreasonable search.” Id. at 977[xi]

In the case at hand, Robinson alleged that the search was conducted within view of at least one male officer.  She also alleged that Officer Hawkins touched the inside and outside of her vagina and her anus.  Further, she alleged this occurred in an unsanitary environment, next to an “oily” tractor-trailer as the officer yelled insults.  As such, if there is a question regarding facts that would be material to whether or not the search was reasonable, those facts are to be decided by a jury.

Lastly, the court of appeals held that the law was clearly established regarding strip searches.  The court stated that the “law was sufficiently clear to inform Officer Hawkins her search of Robinson was unlawful in both scope and manner.”[xii]

As such, Officer Hawkins was not entitled to qualified immunity regarding the strip search.

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Citations

[i] No. 18-1823 (8th Cir. Decided September 5, 2019)

[ii] Id. at 2-5

[iii] Id. at 6 (emphasis added)

[iv] Id. at 8 (emphasis added)

[v] Id.

[vi] 324 F.3d 1003, 1006-1008 (8th Cir. 2003)

[vii] Id.

[viii] Robinson at 9-10 (emphasis added)

[ix] Id. at 10 (emphasis added)

[x] 477 F.3d 974 (8th Cir. 2007)

[xi] Id. at 977

[xii] Robinson at 13

By |2020-06-29T18:22:33+00:00June 29th, 2020|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.