Campbell, James v. Miller, Frank ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3018
JAMES CAMPBELL,
Plaintiff-Appellant,
v.
FRANK MILLER, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 01:03-CV-0180-SEB-VSS—Sarah Evans Barker, Judge.
____________
ARGUED FEBRUARY 11, 2004—DECIDED JUNE 28, 2004
____________
Before EASTERBROOK, KANNE, and WILLIAMS, Circuit
Judges.
EASTERBROOK, Circuit Judge. Police in Indianapolis
arrested James Campbell for possessing marijuana. Be-
cause the local jail is crowded, Indianapolis does not make
a full custodial arrest of each person arrested for a misde-
meanor; instead it issues a summons and citation. Before
releasing Campbell, however, the police conducted a
body-cavity search for drugs. Nothing was found, and no
criminal prosecution ensued. Campbell then sued ten
officers, the Chief of Police, and the City of Indianapolis,
under 42 U.S.C. §1983, contending that the search violated
the fourth amendment. He seeks not only damages but also
2 No. 03-3018
an injunction against this practice. The district court denied
Campbell’s request for a preliminary injunction, concluding
that he has an adequate remedy at law. He immediately
appealed under 28 U.S.C. §1292(a)(1).
Campbell supposes that money never is an adequate
remedy for a constitutional wrong. That belief is incorrect.
See Sampson v. Murray, 415 U.S. 61, 89-92 (1974); Second
City Music, Inc. v. Chicago, 333 F.3d 846 (7th Cir. 2003);
Webb v. Ball State University, 167 F.3d 1146 (7th Cir.
1999). Damages are a normal, and adequate, response to an
improper search or seizure, which as a constitutional tort
often is analogized to (other) personal-injury litigation. See,
e.g., Wilson v. Garcia, 471 U.S. 261 (1985). Erroneous
grants of injunctive relief that hamper enforcement of the
criminal law have the potential to cause havoc, while
erroneous awards (or denials) of damages to a single person
have more limited ability to injure the general public.
Judges are fallible, so the costs of false positives always
must be considered when choosing among remedies. When
the costs of false negatives are low—and this is what it
means to say that the remedy at law is adequate—there is
correspondingly slight reason to incur the risk of premature
or overbroad injunctive relief. Campbell’s suit is just getting
under way, and the City has not had a full opportunity to
explain and justify its practices. Once this litigation has run
its course, the decision will have precedential effect even if
the only remedy is monetary. If this court decides that the
City’s practice is unconstitutional then it must cease
whether or not a formal injunction issues (for the prospect
of damages paid to thousands of suspects would bring the
City into line). If, however, the City prevails in the end, or
suffers only a partial defeat, then avoiding premature
injunctive relief will prove to have been a wise exercise of
restraint.
What is more, it is difficult to see how a court could issue
an injunction at Campbell’s behest. Unless the same events
No. 03-3018 3
are likely to happen again to him there is no controversy
between him and the City about the City’s future handling
of other arrests. See Weinstein v. Bradford, 423 U.S. 147
(1975). Campbell has sought to represent all persons
arrested for misdemeanors, but the district court has not
certified that class and may never do so. Thus Campbell
cannot rely on the prospect that other arrested persons may
be subjected to body-cavity searches. Cf. Los Angeles v.
Lyons, 461 U.S. 95 (1983). He represents his own interests,
not those of third parties. Only if he is apt to be arrested
and searched again would prospective relief be apt, and
nothing in this record suggests that Campbell is a repeat
offender. He alleges, to the contrary, that he does not use
drugs and has never been arrested before. These allegations
mean that he is not the right party to pursue injunctive
relief.
AFFIRMED
WILLIAMS, Circuit Judge, dissenting. The majority
opinion fails to address key testimony in this case—factual
allegations which not only require this court to evaluate
Campbell’s claim in more detail than the majority opinion
provides, but also suggest a different result. While I regard
the question of whether Campbell has standing for a pre-
liminary injunction as close, I ultimately conclude that he
has satisfied that constitutional requirement and has also
demonstrated the inadequacy of money damages. For these
reasons, I dissent.
4 No. 03-3018
I. Additional Background1
1
Because the district court made limited findings of fact, my
summary is taken from testimony presented in the preliminary
injunction hearing and the parties’ briefs. While the factual al-
legations discussed in the body of my dissent are those that are
most germane to this case’s analysis, I offer this brief summary to
put Campbell’s encounter with the police in context:
Campbell, employed as the School Transportation and Security
Supervisor for Perry Township, testified that on June 14, 2002 at
about 8 p.m., he parked his car and began walking towards the
house of his friend, Kimo Parham, an insurance product analyst.
According to defendant Officer Frank Miller, it was still light
outside. Officer Miller recounted that he saw Campbell walking
towards Parham’s home and told Campbell to stop. Unsure of the
officer’s motives, Campbell stated that he continued to walk
towards Parham’s residence, hoping to get close enough so that,
in Campbell’s words, “somebody inside would hear what was going
on and come outside to observe what was going on.” Officer Miller
testified that he then drew his weapon, told Campbell to drop to
the ground, and then handcuffed him. Parham, who testified that
he was expecting Campbell, stated that he saw Campbell being
handcuffed, asked what was happening, and heard Officer Miller
comment that Campbell fit the description of a fleeing suspect.
Campbell testified that once Officer Miller said that the suspect
fled on foot, he asked Officer Miller whether he had seen Camp-
bell exit his car in front of Parham’s house. Campbell and Parham
testified that there was no mention of drugs made at that time.
Shortly thereafter, defendants Officers Andrew Lamle and Scott
Wolfe arrived. Officer Miller conducted a pat-down search of
Campbell and found nothing. Officer Miller told Wolfe that
Campbell had dropped something by a car in the driveway (al-
though Campbell disputes that he dropped anything). Wolfe then
picked up a plastic baggie containing marijuana from the ground.
Defendant Officer Kevin Duley, the officer who had been pursuing
the fleeing suspect, testified that about ten minutes after the pat-
down, he arrived and stated that he did not want to arrest
Campbell because he had not seen the face of the suspect who fled
from him.
(continued...)
No. 03-3018 5
The majority correctly notes that Indianapolis police of-
ficers subjected Campbell to a body cavity search; however,
the majority does not mention that the police conducted
their inspection of Campbell’s genitalia and anal area in
public, namely in the backyard, allegedly visible from the
driveway of the home of Campbell’s friend, Kimo Parham,
and within eye-shot of Parham (who observed the search)
and his young children. In fact, Parham testified that he
observed the search from a window of his home and actually
saw Campbell’s genitals exposed.
Not only was the body cavity search done in public, but it
was done pursuant to Indianapolis Police Department
(“IPD”) policy.2 This policy authorizes such “thorough body
(...continued)
Campbell contends that Officer Miller then told Campbell that
due to jail overcrowding, he had to strip search him at that time
to determine if he had drugs on him. Campbell testified that while
in Parham’s backyard and while still handcuffed, Officer Miller
(donning latex gloves) unbuckled Campbell’s pants and pulled
down his underpants, exposing his genitalia, had him bend over
slightly, and examined his buttocks and anal area. Campbell also
testified that Officer Miller felt under Campbell’s groin area.
Officer Miller contends that he only spread Campbell’s buttocks.
Nothing was found as a result of the search. Officer Miller
testified he then pulled up Campbell’s pants, gave him a summons
to appear for possession of marijuana, and released him. Campbell
testified no charges were ever filed.
2
While the district court made no findings of fact as to whether
defendants conduct public strip and body cavity searches pursuant
to a blanket police policy, both parties point to, and the district
court noted, the provisions of the Executive Committee of the
Marion County Superior Court Order of April 18, 2002 and the
IPD General Order 18.02 as authorizing such public searches.
The Executive Committee of the Marion County Superior Court
Order of April 18, 2002 states “It is therefore the Order of the
(continued...)
6 No. 03-3018
searches” of persons charged with nonviolent misdemeanors
including driving without a license and driving with a
suspended license. See sources cited supra note 2. Moreover,
Indianapolis Police Chief Jerry Barker’s testimony indicates
that IPD officers are provided with little guidance on and
wide discretion to conduct “thorough body search[es]” under
this policy. In Chief Barker’s words, application of the
policy is dependent on “[r]easonableness and discretion of
the officer, based on the totality of the circumstances and
[sic] officer faces,” or, as stated in the defendants’ brief, “if
the officer feels it is necessary.”
2
(...continued)
Marion Superior Court, by and through its Executive Committee
that
A. The Marion County Sheriff no longer accept
arrestees into the Marion county Lock-up who are
only charged with the following misdemeanor
crimes:
1.) Possession of Marijuana
2.) Possession of Paraphernalia
3.) Driving with a suspended license
4.) Operating a vehicle; never having re-
ceived a license
5.) Prostitution
6.) Patronizing a prostitute
7.) Conversion
....
C. The Marion County Sheriff advise all Law
Enforcement agencies within Marion County to issue
summons in lieu of arrest for the above referenced
crimes if charges are to be filed with the Marion
County Prosecutors’ Office.”
IPD General Order 18.02 provides, in pertinent part, “Any officer
making an arrest or otherwise coming into control of a prisoner
must make an immediate and thorough body search of the
prisoner. . . .” (emphasis added).
No. 03-3018 7
II. Inadequacy of Money Damages
The existence of these factual allegations, absent from the
majority opinion, compels a closer look at Campbell’s claims
and, in the end, different legal conclusions than those
drawn by the majority. Several courts have recognized that,
at the very minimum, strip and body cavity searches “give[
] us the most pause,” Bell v. Wolfish, 441 U.S. 520, 558
(1979), as the invasive searches “implicate fundamental
Fourth Amendment rights,” Roe v. Texas Dep’t of Protective
and Regulatory Services, 299 F.3d 395, 404 (5th Cir. 2002).
As the Supreme Court noted in Illinois v. Lafayette, 462
U.S. 640, 645 (1983) in its discussion of lawful inventory
searches incident to booking and jailing,
Police conduct that would be impractical or un-
reasonable—or embarrassingly intrusive—on the
street can more readily—and privately—be per-
formed at the station. For example, the interests
supporting a search incident to arrest would hardly
justify disrobing an arrestee on the street, but the
practical necessities of routine jail administration
may even justify taking a prisoner’s clothes before
confining him, although that step would be rare.
Moreover, this court has characterized strip and body cavity
searches as “demeaning, dehumanizing, undignified,
humiliating, terrifying, unpleasant, embarrassing, repul-
sive, signifying degradation and submission . . . .” Mary
Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir.
1983) (quoting Tinetti v. Wittke, 479 F. Supp. 486, 491 (E.D.
Wis. 1979), aff’d, 620 F.2d 160 (7th Cir. 1980)). Finally, this
court has stated that “we can think of few exercises of
authority by the state that intrude on the citizen’s privacy
and dignity as severely as the visual anal and genital
searches practiced here.” Mary Beth G., 723 F.2d at 1272
(finding unconstitutional searches of women briefly de-
tained for misdemeanor offenses, including driving without
8 No. 03-3018
a driver’s license, in city lockup while awaiting bail money).
So at the very least, Campbell’s case warrants a closer look.
Close consideration of the case at hand also compels dif-
ferent legal conclusions. Reviewing the district court’s legal
conclusions in its preliminary injunction ruling de novo, as
we must, Kiel v. City of Kenosha, 236 F.3d 814, 815 (7th Cir.
2000), this court may properly conclude Campbell lacks an
adequate remedy at law for being subjected to a body cavity
search in public pursuant to police policy. In Bell, the
Supreme Court described the balancing test we are to use
to determine whether a particular search is reasonable
under the Fourth Amendment. 441 U.S. at 559. That test
weighs the magnitude of the invasion of personal privacy
against the governmental interest in conducting the
particular searches in question. 441 U.S. at 559-60. More-
over, “[o]ne of the critical, and certainly most obvious,
elements in the Bell v. Wolfish balancing inquiry into the
reasonableness of the strip search is ‘the place in which it
is conducted.’ ” Logan v. Shealy, 660 F.2d 1007, 1014 (4th
Cir. 1981) (quoting Bell, 441 U.S. at 559).
This court in Mary Beth G. found that strip searches of
women arrested for misdemeanor offenses conducted at
the city lockup while they awaited bond were unreason-
able under the Bell balancing test and thereby violated
the Fourth Amendment. Mary Beth G., 723 F.2d at 1273.
Citing, inter alia, this court’s decision in Tinetti, the Mary
Beth G. court found the magnitude of the state’s intrusion
into the plaintiffs’ privacy was extremely high. Id. at 1272
(“we can think of few exercises of authority by the state that
intrude on the citizen’s privacy and dignity as severely as
the visual anal and genital searches practiced here” where
detainees were made to squat and bend over to permit
inspection of their vaginal and anal areas). The privacy con-
cerns triggered by the particular searches under scrutiny
were found to outweigh the City of Chicago’s proffered need
to conduct the searches (to prevent misdemeanor offenders
No. 03-3018 9
from bringing in weapons or contraband into the City
lockups), as the perceived security risks of not doing the
searches was not borne out by the evidence in the record.
Id. at 1272-73. The searches in Mary Beth G. were con-
ducted without even reasonable suspicion that the plaintiffs
posed security risks to the lockup by possibly concealing
weapons or contraband and were thereby found unconstitu-
tional. Id. at 1273. If the searches in Mary Beth G. were
unreasonable when they were conducted on misdemeanor
offenders during a brief time of detention in a City lockup
without reasonable suspicion that they posed a security
threat to the lockup, then it is hard to see how conducting
a body cavity search, also during a brief period of detention,
but in public, of a suspected misdemeanor offender, who
incontrovertibly posed no threat to the arresting officers’
security, could be constitutionally sound. See, e.g., Amaechi
v. West, 237 F.3d 356, 364 (4th Cir. 2001) (noting that “we
have repeatedly emphasized the necessity of conducting a
strip search in private” and concluding “[t]he fact that,
absent clear justification or exigent circumstances, an
officer is not allowed to strip an arrestee on a public street
pursuant to a search incident to an arrest necessarily
means that an officer cannot go even further than simply
disrobing the arrestee by actually touching and penetrating
the arrestee’s exposed genitalia on the public street.”);
United States v. Ford, 232 F. Supp. 2d 625, 630 (E.D. Va.
2002) (granting a motion to suppress, stating “[t]aking the
Bell factors into account, the Court concludes that the police
officer engaged in a highly invasive search by exposing the
defendant’s buttocks on the side of a public highway in
broad daylight, and that the search violated the defendant’s
Fourth Amendment protection”).
That the search of Campbell was conducted in public
significantly increases the severity of the governmental
intrusion involved here. The defendants’ professed reasons
for the policy in all likelihood cannot justify such extreme
10 No. 03-3018
incursions in a person’s privacy under the Fourth
Amendment. That the policy confers unbridled discretion on
the officers and does not even require reasonable suspicion
for an officer to conduct a strip and body cavity search
(recall, the defendants write in their brief that an officer
can submit a citizen to such a search “if the officer feels it
is necessary”) makes the likelihood of the IPD policy’s
unconstitutionality only greater. The Constitution clearly
requires at least reasonable suspicion for a law enforcement
officer to subject a person to such a search. See Mary Beth
G., 723 F.2d at 1273; Swain v. Spinney, 117 F.3d 1, 7 (1st
Cir. 1997) (citing cases holding the same in the Fifth, Sixth,
and Eleventh Circuits). See also Fuller v. M.G. Jewelry, 950
F.2d 1437, 1446-47 (9th Cir. 1991) (holding that strip and
body cavity searches conducted incident to arrest but
without reasonable suspicion violated the Fourth Amend-
ment; also, searches conducted with reasonable suspicion
that arrestee is carrying weapons or dangerous contraband
is constitutional, while conducting such invasive searches
“in order to discover and seize the fruits or evidence of crime”
is not constitutional (emphasis added)). Finally, the defen-
dants “cannot reasonably assert that [they are] harmed in
any legally cognizable sense by being enjoined from consti-
tutional violations.” Zepeda v. INS, 753 F.2d 719, 727 (9th
Cir. 1985).
Moreover, “[w]hen an alleged deprivation of a consti-
tutional right is involved, most courts hold that no further
showing of irreparable injury is necessary.” Mitchell v.
Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (citing 11 C.
Wright & A. Miller, Federal Practice and Procedure
§ 2948.1 (1973)). See also 11A Wright, Miller & Kane,
Federal Practice and Procedure: Civil 2d § 2948.1 (2d ed.
1995) (same); Henry v. Greenville Airport Comm’n, 284 F.2d
631, 633 (4th Cir. 1960) (“The District Court has no dis-
cretion to deny relief by preliminary injunction to a person
who clearly establishes by undisputed evidence that he is
being denied a constitutional right” (citing cases)). Cf.
No. 03-3018 11
National People’s Action v. Village of Wilmette, 914 F.2d
1008, 1013 (7th Cir. 1990) (“Even a temporary deprivation
of first amendment freedom of expression rights is generally
sufficient to prove irreparable harm.”). In other words,
Campbell can establish the irreparable harm element by
demonstrating a violation of his constitutional rights.
Furthermore, showing irreparable harm is “[p]robably the
most common method of demonstrating that there is no
adequate legal remedy.” 11A Wright, Miller & Kane,
Federal Practice and Procedure § 2944. See also Fleet
Wholesale Supply Co. v. Remington Arms Co., 846 F.2d
1095, 1098 (7th Cir. 1988) (“To say that the injury is irrep-
arable means that the methods of repair (remedies at law)
are inadequate.” (emphasis in original)).3
Furthermore, contrary to the majority’s suggestion that
“[i]f this court decides that the City’s practice is uncon-
stitutional then it must cease . . . (for the prospect of
damages paid to thousands of suspects would bring the City
into line),” supra p. 2, courts have recognized that the
possibility of money damages engenders only meager if
any deterrent effect against police incursions on Fourth
Amendment rights. See, e.g., Lankford v. Gelston, 364 F.2d
3
Other cases involving significant intrusions of privacy repre-
senting unreasonable searches under the Fourth Amendment also
suggest that there is no adequate remedy at law for Campbell.
See, e.g., Bannister v. Bd. of County Comm’rs of Leavenworth
County, Kan., 829 F. Supp. 1249, 1252 (D. Kan. 1993) (“Because
the injury inflicted by an unconstitutional drug test cannot be
remedied by a damage award, the court concludes that plaintiff
has established that she will be irreparably harmed if an injunc-
tion does not issue.”); Am. Fed’n of Gov’t Employees, Local 1857 v.
Wilson, No. Civ. S-89-1274 LKK, 1990 WL 208749 at *14 (E.D.
Cal. July 9, 1990) (granting an injunction, stating “Urinalysis
drug testing is an invasive, degrading and humiliating procedure
and the injury inflicted by a constitutional violation of this
character cannot be remedied by a damage award.”).
12 No. 03-3018
197, 202 (4th Cir. 1966) (granting a preliminary injunction
to protect against police violations of plaintiffs’ Fourth
Amendment rights when, inter alia, “the lesson of experi-
ence is that the remote possibility of money damages serves
no deterrent to future police invasions” (citing Mapp v.
Ohio, 367 U.S. 643, 651-52 (1961) (where the Supreme
Court recognized “[t]he obvious futility of relegating the
Fourth Amendment of the protection of other remedies
[such as criminal or civil sanctions]”)). See also Elkins v.
United States, 364 U.S. 206, 220 (1960) (citing with ap-
proval the California Supreme Court which held “exper-
ience has demonstrated, however, that neither administra-
tive, criminal nor civil remedies are effective in suppressing
lawless searches and seizures.”). In sum, Campbell has
sufficiently alleged an injury of a type for this court to
properly conclude that Campbell lacks an adequate remedy
at law.
Moreover, the cases the majority cites to support its
conclusion that money damages are an adequate remedy for
an unconstitutional search are readily distinguishable from
the case at bar. Sampson v. Murray, 415 U.S. 61 (1974)
dealt with the extent of federal courts’ power to issue
injunctions upon claims by federal government employees
that their civil service rights have been violated. Sampson
involved a probationary government employee’s wrongful
discharge which the Supreme Court construed as a “routine
case” lacking the extraordinary circumstances which would
warrant a finding of irreparable injury. Id. at 92 n.68. The
plaintiff in Sampson alleged embarrassment and damage to
her reputation when her employer discharged her in a
manner inconsistent with administrative procedural rules.
Not only does Campbell’s case not involve federal govern-
ment personnel actions, but the harm the Sampson plaintiff
complained of is hardly comparable to the harm, described
at length by this court in Mary Beth G., that one experi-
ences as a result of having one’s most private parts fondled
No. 03-3018 13
by a law enforcement officer. This point is at least doubly
true for Campbell who was subjected to such an intrusive
search in public.
Second City Music, Inc. v. Chicago, 333 F.3d 846 (7th Cir.
2003) is also distinguishable from Campbell’s case. Second
City involved a city ordinance which required dealers of
used audio and video equipment to obtain licenses in order
to sell such merchandise, a measure aimed at preventing
the dealers from becoming “fences for thieves.” 333 F.3d at
847. In response to the plaintiff’s request for an injunction
preventing the city from applying the ordinance to estab-
lished businesses, we found that requiring the plaintiff to
apply for a license to continue to operate its business would
incur “no detriment.” Id. at 849. Any analogy between
requiring a used CD shop to obtain a license and a person
to submit to an exceedingly invasive search in public is
strained at best. The harms involved in Second City and the
case at bar are not comparable— neither in degree nor in
sort.
The same can be said for Webb v. Board of Trustees of
Ball State University, 167 F.3d 1146 (7th Cir. 1999). In that
case, no irreparable harm warranting a preliminary
injunction was found when plaintiffs, state university em-
ployees, alleged university retaliation against them for
protected speech.4 Again, a “brouhaha” within a university
department leading to a replacement of plaintiff professor
as department chair does not rise to the level of harm
involved, acknowledged by the Supreme Court and several
circuits, when police conduct a body cavity search, never
mind when it is done in public.
Finally, the majority cites Wilson v. Garcia, 471 U.S. 261
(1985). That case dealt with how to construe actions for
damages brought under 42 U.S.C. § 1983 for statute of lim-
4
No First Amendment violation was found in this case.
14 No. 03-3018
itation purposes. Not only did that case involve a request
for damages only and not injunctive relief, but to the extent
that Wilson analogizes a constitutional wrong to a personal-
injury tort, it does so for statute of limitation purposes. The
case in and of itself provides no comment to support the
majority’s broader claim that damages are a normal and
adequate response to an improper search or seizure.
III. Standing
In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the
Supreme Court set forth a two-part test that plaintiffs must
satisfy in order to demonstrate standing for a preliminary
injunction: a plaintiff must “allege that he would have
another encounter with the police” and, in pertinent part,
“that the City ordered or authorized police officers to act” in
the manner about which the plaintiff complains. Id. at 105-
06. Campbell has satisfied the second part of that test as he
has sufficiently alleged, and the defendants admitted,5 that
the IPD officers subjected Campbell to a body cavity search
in public pursuant to IPD policy.6 In other words, IPD
General Order 18.02 and Executive Committee of the
Marion County Superior Court Order of April 18, 2002
together authorize such searches and the police officer
5
Compare Pl.’s Am. Compl. ¶ 56 (“The search performed on
Plaintiff James Campbell was performed pursuant to a practice or
policy of the Indianapolis Police Department.”) with Defs.’ Answer
to Am. Compl. ¶ 42 (“Defendants admit the material allegations
in paragraph 56.”).
6
While this court must review the district court’s findings of fact
for clear error, Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d
470, 474 (7th Cir. 2001), the district court in this case made no
findings of fact on this issue. However, the defendants admit that
the search at issue in this case was done pursuant to IPD policy
or practice.
No. 03-3018 15
defendants were within their (apparently unbridled)
discretion, as interpreted by IPD Chief Barker, when they
conducted the invasive search in public of Campbell’s pri-
vate parts.
As for the first part of the Lyons standing test, requiring
a plaintiff seeking a preliminary injunction to show that he
faces a real threat of another encounter with the police
of the type alleged in his complaint, there are several fac-
tual allegations present in Campbell’s case on which basis
courts have found standing for a preliminary injunction,
even when presented with somewhat speculative claims of
future harm. Courts have paid judicial notice to the follow-
ing facts, alleged in Campbell’s case, in finding a party had
standing for a preliminary injunction: (1) the police acts to
which the plaintiff was subjected and about which he
complains were authorized by police policy; or (2) the police
policy did not clearly limit the occasions in which the police
activity could take place.
As my research to date has not yielded a Seventh Circuit
case directly on point, I look to outside authority. Case law
from our sister circuits suggests that Campbell has stand-
ing for a preliminary injunction to enjoin defendants from
conducting body cavity searches against him. For example,
in Deshawn E. v. Safir, 156 F.3d 340, 345 (2d Cir. 1998), the
Second Circuit distinguished Lyons and found standing for
injunctive relief in large part because the challenged police
activities were “officially endorsed policies.” It found that
“there is a likelihood of recurring injury because the [police]
Squad’s activities are authorized by a written memorandum
of understanding between the Corporation Counsel and the
Police Commissioner.” Id. In other words, the existence of
a written policy authorizing the complained-of police
conduct, present in Campbell’s case, bolsters a claim of
future harm.
The Ninth Circuit’s decision in Thomas v. County of Los
Angeles, 978 F.2d 504 (9th Cir. 1993) reached a similar
16 No. 03-3018
conclusion. It found standing for a preliminary injunction
when plaintiffs alleged, inter alia, that the challenged police
conduct was “condoned and tacitly authorized by [sheriff]
department policy makers.” Id. at 508. As in Thomas,
Campbell has alleged, and the defendants have admitted,
that the police officers subjected Campbell to a body cavity
search in public, consistent with IPD policy or practice.
Addressing whether “the same events are likely to happen
again to [Campbell]”, supra p. 2, Campbell contends that
these invasive public searches are done with some degree of
frequency. Defendant Officer Miller testified that he alone
has conducted twenty to thirty such searches. He also
testified that he has observed other officers performing the
invasive searches. Defendant Andrew Lamle, another
Indianapolis police officer, testified that he too has con-
ducted “similar searches.” While there is insufficient
evidence in the record to determine what percentage of total
summons arrests involved public strip and/or body cavity
searches (nor is it clear whether the IPD even keeps such
records),7 there is enough evidence in the record to show
that what Campbell was subjected to was not aberrational.
And as noted in National Congress for Puerto Rican Rights
v. City of New York, 75 F. Supp. 2d 154, 161 (S.D.N.Y.
1999), “[c]ourts have not been hesitant to grant standing to
sue for injunctive relief where numerous constitutional
violations have resulted from a policy of unconstitutional
practices by law enforcement officers” (citing Allee v.
Medrano, 416 U.S. 802, 815 (1974) and Thomas, 978 F.2d at
508).
7
Here, for instance, although it is undisputed that Officer Miller
performed a public strip search of Campbell, the official case
report narrated by Officer Miller states that Campbell was issued
a summons for possession of marijuana but makes no mention
whatsoever of the strip search.
No. 03-3018 17
Lastly, the fact that the IPD policy, pursuant to which the
police officer defendants acted when they conducted a body
cavity search of Campbell in public, places no limit on when
an officer may submit a summons arrestee to such searches
supports Campbell’s standing claim. In Lyons, the Supreme
Court took judicial notice of the limitations the Los Angeles
police policy placed on police use of chokeholds which were
challenged in that case. In the context of assessing whether
Lyons would be subjected to an illegal chokehold again in
the future, the Court stated, “police officers were instructed
to use chokeholds only when lesser degrees of force do not
suffice and then only ‘to gain control of a suspect who is
violently resisting the officer or trying to escape.’ ” Lyons,
461 U.S. at 110 (quoting the record). In the Court’s judg-
ment, the fact that there was a constraint on police use of
the stranglehold weakened the plaintiff Lyons’s claim of
standing. Id.
However, there is no comparable constraint on IPD of-
ficers in the case at bar. The defendants state in their
appellate brief that an IPD officer may conduct such an
invasive search in public “if the officer feels it is necessary.”
Moreover, IPD Chief Barker testified that the application of
the search policy is dependent on “[r]easonableness and
discretion of the officer, based on the totality of the circum-
stances” an officer faces. However, Fourth Amendment
jurisprudence discussed above indicates that the search
challenged here is in all likelihood never reasonable, given
the severity of the intrusion and the fact that it is con-
ducted in public. So allowing an officer to conduct such a
search whenever he “feels it is necessary” in his discretion
functionally places no limit on the application of the policy.
The defendants’ citation to United States v. Robinson, 414
U.S. 218 (1973) on the issue of officer discretion does not
undermine Campbell’s claim, because as we stated in Mary
Beth G., “[t]he Court [in Robinson] did not suggest that a
person validly arrested may be subject to any search the
arresting officer feels is necessary.” 723 F.2d at 1269
18 No. 03-3018
(emphasis in original). Such broad discretion conferred
upon IPD officers, combined with the fact that the body
cavity search is consistent with IPD policy, only increase
the likelihood that Campbell will be subjected to the public
body cavity search again in the future.
Further, the list of misdemeanors for which a person may
be subjected to a body cavity search in public, see sources
cited supra note 2, not only underscores the policy’s unrea-
sonableness, but also multiplies the likelihood that Camp-
bell will be subjected to such a search in the future.
I respectfully dissent.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-28-04