T.S.H. v. Green ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-3280
___________________________
T.S.H.; M.J., Next friend of H.R.J., a minor,
lllllllllllllllllllllPlaintiffs - Appellees,
v.
Clarence Green; Anthony Williams,
lllllllllllllllllllllDefendants - Appellants.
____________
Appeal from United States District Court
for the Western District of Missouri - St. Joseph
____________
Submitted: November 19, 2020
Filed: May 11, 2021
____________
Before COLLOTON, MELLOY, and KELLY, Circuit Judges.
____________
COLLOTON, Circuit Judge.
Clarence Green and Anthony Williams, police officers at Northwest Missouri
State University, investigated a report of misconduct by high school students
attending a summer camp on the university campus. Green was the chief of police;
Williams was an officer in the department. The students sued the officers for
allegedly violating certain statutory and constitutional rights during the investigation.
The officers moved to dismiss the claims against them, arguing that they were entitled
to qualified immunity. The district court denied the motion, but we come to a
different conclusion and therefore reverse.
I.
In June 2016, two high school students who are identified by their initials,
T.S.H. and H.R.J., attended a high school football camp at the University. They
stayed in a dormitory and received instruction from university coaches, but were
supervised by their high school coach. At the time same, the University also hosted
a high school cheerleading camp, and participants resided in a neighboring dormitory.
In reciting what transpired, we assume for analysis that the facts alleged in the
complaint are true.
During the camps, a female cheerleading coach reported to residence assistants
that she had seen people in a nearby window observing her, and possibly
photographing her, while she undressed in a dormitory room. The residence
assistants contacted Officers Green and Williams with the University Police. The
officers investigated and inferred that the window in question belonged to one of two
dormitory rooms that were assigned to seven football camp participants. According
to the students, the officers created an “offense report” that included the students’
names.
The students allege that Officer Williams directed their high school coach to
gather the seven players in a room and hold them there “for interrogation” about the
incident. Acting at the officers’ direction, “and in submission to their perceived
authority as law enforcement officers,” the coach assembled the players and told them
they were being investigated. The coach allegedly kept the players in the room “for
a period of hours,” questioned them, and asked to see photographs on their cell
-2-
phones. The players revealed this information “[i]n submission to the perceived
authority” of the officers. When no one confessed, the players were expelled from
the camp.
T.S.H. and H.R.J. sued Green and Williams under 42 U.S.C. § 1983. The
students claim that the officers violated their rights against unreasonable seizures
under the Fourth and Fourteenth Amendments. Specifically, the students assert that
they were subjected to an unlawful seizure, because their coach “confined” them at
the officers’ direction. The students also allege that the officers denied them certain
statutory rights to due process and privacy that are accorded to juveniles in federal
delinquency proceedings. See 18 U.S.C. §§ 5033, 5038. Finally, the students claim
that the officers conspired to violate their civil rights.
The officers moved to dismiss the complaint based on qualified immunity. The
district court concluded, however, that the students adequately alleged violations of
clearly established constitutional and statutory rights. Reasoning that qualified
immunity could not be established “on the face of the complaint,” Bradford v.
Huckabee, 330 F.3d 1038, 1041 (8th Cir. 2003), the court denied the motion to
dismiss. The officers appeal, and we have jurisdiction to consider their interlocutory
appeal addressing purely legal issues. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
II.
State actors are entitled to qualified immunity from suits under 42 U.S.C.
§ 1983 “unless (1) they violated a federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was ‘clearly established at the time.’” District of
Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566
U.S. 658, 664 (2012)). A right is “clearly established” if “every reasonable official”
would have known the conduct was unlawful at the time of the alleged violation. Id.
at 589-90. A reviewing court must not define clearly established law at a “high level
-3-
of generality,” because that approach “avoids the crucial question whether the official
acted reasonably in the particular circumstances that he or she faced.” Id. at 590
(quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)). “[S]pecificity of the rule
is especially important in the Fourth Amendment context.” Id. (internal quotation
omitted).
We review de novo the denial of a motion to dismiss based on qualified
immunity. Because the appeal arises from a ruling on a motion to dismiss, we accept
as true all of the complaint’s factual allegations and view them in the light most
favorable to the plaintiffs. Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 476 (8th
Cir. 2008).
A.
The officers first argue they are entitled to qualified immunity on the Fourth
Amendment claim. The Fourth Amendment protects citizens from “unreasonable
searches and seizures.” U.S. Const. amend. IV. The appeal presents two issues
through the lens of qualified immunity: whether the officers seized the students and,
if so, whether the seizure was reasonable.
On the question of seizure, the students allege that the officers “instructed”
their coach to confine the students to a room and question them about the incident.
“Consistent with the instructions of Green and Williams, and in submission to their
perceived authority,” the coach then confined the students to a dorm room. The
students claim that their coach “was acting at the behest of” and “following the
instructions of” the officers throughout the confinement. And the students allege that
they, too, acted “[i]n submission to the perceived authority” of the officers.
Because the officers allegedly knew that the coach carried out the seizure at
their direction, and because the coach allegedly intended to assist the officers, we will
-4-
assume for the sake of analysis that the coach was acting as an agent of the officers.
See United States v. Ringland, 966 F.3d 731, 735 (8th Cir. 2020). Because the
students claim that they submitted to the officers’ authority, we will also assume that
they were seized within meaning of the Fourth Amendment.
Even so, the officers argue, any seizure was reasonable, or at least they
reasonably believed that was the case. They contend that the students, on these
alleged facts, had no clearly established right to be free from seizure by school
officials acting at the behest of university police. As this court has observed, “in the
public school context, children have a diminished expectation of privacy, and this
expectation becomes even more diminished for school children engaged in
extracurricular activities and athletics.” Barrett v. Claycomb, 705 F.3d 315, 323 (8th
Cir. 2013).
A school official need not have probable cause to search a student in a school;
“[r]ather, the legality of a search of a student should depend simply on the
reasonableness, under all the circumstances, of the search.” New Jersey v. T.L.O.,
469 U.S. 325, 341 (1985). A student search is reasonable if it is “justified at its
inception,” and “reasonably related in scope to the circumstances which justified the
interference in the first place.” T.L.O., 469 U.S. at 341 (quoting Terry v. Ohio, 392
U.S. 1, 20 (1968)).
The law is not settled on whether the same reasonableness inquiry applies to
student seizures, see K.W.P. v. Kan. City Pub. Schs., 931 F.3d 813, 822 (8th Cir.
2019), but there is no clearly established law to the contrary. At least one circuit has
concluded that the reasonableness standard from T.L.O. applies to student seizures.
Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1304 (11th Cir. 2006). This court
and the Ninth Circuit have reserved judgment on whether to apply T.L.O. or the
objective reasonableness standard from Graham v. Connor, 490 U.S. 386 (1989).
K.W.P., 931 F.3d at 926; C.B. v. City of Sonora, 769 F.3d 1005, 1029-30 (9th Cir.
-5-
2014) (en banc). Given the state of the law, a reasonable officer could have
proceeded on the understanding that a student seizure is permissible if it is reasonable
under the standard of T.L.O.
Although the alleged seizure in this case did not occur at the high school and
was initiated by law enforcement, reasonable officers could have believed that
probable cause was not required. We have applied the reasonableness standard to
searches of high school students outside of “traditional school grounds,” because the
“nature of administrators’ . . . responsibilities for the students entrusted to their care,
not school boundary lines, renders the Fourth Amendment standard in the public-
school context less onerous.” Shade v. City of Farmington, 309 F.3d 1054, 1061 (8th
Cir. 2002).
T.L.O. left open whether the reasonableness test should apply to actions
“conducted by school officials in conjunction with or at the behest of law
enforcement agencies,” 469 U.S. at 341 n.7, but our decision in Shade applied the
reasonableness standard where both school officials and law enforcement officers
were involved. 309 F.3d at 1060. Although school officials initiated the search in
Shade, other courts have applied the reasonableness standard to student seizures
effected at the behest of police. An example is Milligan v. City of Slidell, 226 F.3d
652 (5th Cir. 2000), where police officers had students called out of class for
questioning about a rumored fight, and the court measured the reasonableness of the
“seizure” in light of the “lesser expectation of privacy” enjoyed by students in the
school environment. Id. at 655-56.
Given that Green and Williams were employed by the University Police, it is
also noteworthy that searches conducted by school police or school liaison officers
have been evaluated under a reasonableness standard. See People v. Dilworth, 661
N.E.2d 310, 317 (Ill. 1996); Commonwealth v. J.B., 719 A.2d 1058, 1060, 1062 (Pa.
Super. Ct. 1998). We recently rejected an argument that clearly established law
-6-
required “probable cause” before a school resource officer could summon a high
school student to the school office for interrogation about an alleged sexual assault.
L.G. v. Columbia Pub. Schs., No. 20-2161, 2021 WL 1030977, at *2-3 (8th Cir. Mar.
18, 2021). In light of these decisions, the students had no clearly established right to
be free from a seizure instigated by Green and Williams if it passed muster under a
standard of reasonableness.
Under the facts alleged here, we further conclude that a reasonable officer
could have believed that the seizure was reasonable. When the principles of T.L.O.
are applied to this context, a seizure is “justified at its inception” if there are
reasonable grounds to believe that “the student has violated or is violating either the
law or the rules of the school.” 469 U.S. at 342. A seizure is reasonable in scope if
it is “reasonably related to the objectives” of the investigation and not excessive in
light of the student’s characteristics and the nature of the alleged infraction. Id.
There were sufficient grounds on these facts to place the officers’ action at least
within the gray area for which qualified immunity is available.
On justification for the seizure, the students allege that the officers described
the cheerleading coach’s allegation as a “possible Title IX incident.” Title IX is a
federal statute that prohibits discrimination on the basis of sex in “any education
program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). But
the students contend that because the cheerleading coach was neither a student nor
an employee of the University, there was thus no reasonable justification under Title
IX for the seizure. They argue that the officers were attempting instead to “prove the
commission of a crime,” such as invasion of privacy under Missouri law. See Mo.
Rev. Stat. § 565.252.1(1).
We think a reasonable officer could have believed that either basis justified an
investigatory seizure. Under then-applicable Title IX guidance, a school with
knowledge of “student-on-student harassment that creates a hostile environment” was
-7-
required “to take immediate action to eliminate the harassment, prevent its recurrence,
and address its effects.” Dep’t of Educ., Off. for C.R., Dear Colleague Letter (Apr.
4, 2011), at 4. The same guidance said that “Title IX also protects third parties from
sexual harassment . . . in a school’s education programs and activities,” and included
the example of “a visitor in a school’s on-campus residence hall.” Id. at 4 n.11.
Based on the report of the cheerleading coach who was housed in the University’s
dormitory, the officers reasonably could have believed that they were authorized to
investigate the incident to comply with the prevailing Title IX guidance.
So too with a possible violation of Missouri law. A person commits the
offense of invasion of privacy if he photographs another person, without her consent,
while she is in a state of full or partial nudity and is in a place where one would have
a reasonable expectation of privacy. Mo. Rev. Stat. § 565.252.1(1). Reasonable
officers could have believed that the cheerleading coach’s report gave reasonable
grounds to suspect that questioning the students would turn up evidence about
invading the privacy of the cheerleading coach.
Finally, the seizure must have been reasonable in scope. The students claim
that they were “not free to leave for a period of hours.” Other courts, however, have
found student seizures of similar durations to be reasonable. In Shuman ex rel.
Shertzer v. Penn Manor School District, 422 F.3d 141 (3d Cir. 2005), the court held
that a student seizure lasting around four hours was reasonable for an investigation
of possible sexual misconduct. Id. at 149. In Stockton v. City of Freeport, 37 F.
App’x 712 (5th Cir. 2002), police detained students for “several hours” at a municipal
building after a threatening letter was found in a computer room at their high school.
The students here identify no authority placing a more precise limitation on the
duration of a seizure for questioning in a school-related environment. In light of this
authority, we conclude that the students had no clearly established right to be free
from a seizure that extended for a period of hours.
-8-
In sum, it was reasonable for Officers Green and Williams to believe that a
seizure of high school students by a high school coach acting at the behest of the
officers was permissible if reasonable. It was also reasonable for the officers to
believe that the seizure was justified under that standard. The officers thus did not
violate the students’ clearly established rights under the Fourth Amendment, so they
are entitled to qualified immunity on this claim.
B.
The officers argue that they are also entitled to qualified immunity on the
statutory claims brought by the students. The students maintain that 18 U.S.C. § 5033
“provides specific due process rights for juveniles who have been ‘seized’ in
connection with a criminal investigation.” They also contend that the officers
violated their “right to privacy” by disclosing certain information in violation of 18
U.S.C. § 5038.
The two statutes at issue concern juvenile delinquency proceedings under
federal law. “Juvenile delinquency” is a violation of federal law committed by a
person under the age of eighteen “which would have been a crime if committed by an
adult.” 18 U.S.C. § 5031. If a juvenile arrestee is not surrendered to state authorities,
then the Attorney General must certify “that there is a substantial Federal interest in
the case” before “any proceedings against” the juvenile may occur in federal court.
Id. § 5032.
Federal law provides additional protections for defendants in juvenile
delinquency proceedings. Before a juvenile who is “taken into custody for an alleged
act of juvenile delinquency” may appear before a federal magistrate judge, officers
must “advise such juvenile of his legal rights” and notify both the juvenile’s parents
and the Attorney General of the arrest. Id. § 5033. The name of the arrested juvenile
-9-
must not “be made public in connection with a juvenile delinquency proceeding”
unless he is prosecuted as an adult. Id. § 5038(e).
The statutes cited by the students are not applicable here. The students were
not charged with a federal crime. There was no appearance before a magistrate judge
and no juvenile delinquency proceeding that triggered the statutory protections or
procedures. The officers are thus entitled to dismissal on these claims.
C.
The officers also contend that the district court should have dismissed the
students’ claim alleging a conspiracy to violate civil rights. To prove a civil rights
conspiracy, a plaintiff must show that a defendant conspired with others to deprive
him of a constitutional right. Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999).
If a reasonable officer could believe he was acting lawfully as an individual, then he
also could believe that he was acting lawfully by working with a colleague toward the
same end. See Hale v. Townley, 45 F.3d 914, 920-21 (5th Cir. 1995); cf. Ziglar v.
Abbasi, 137 S. Ct. 1843, 1868-69 (2017). Because Green and Williams reasonably
believed that they were acting lawfully, they violated no clearly established
constitutional right by acting in concert on their investigation. The officers are thus
entitled to qualified immunity on the conspiracy claim.
* * *
For the foregoing reasons, we reverse the district court’s order denying
qualified immunity and remand with directions to dismiss the claims against Green
and Williams.
-10-
KELLY, Circuit Judge, concurring in part and dissenting in part.
Because I believe T.S.H. and H.R.J. have stated a plausible claim for violation
of their Fourth Amendment rights, I respectfully dissent. See Hafley v. Lohman, 90
F.3d 264, 266 (8th Cir. 1996) (“Dismissal is inappropriate unless it appears beyond
doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which
would entitle [them] to relief.” (cleaned up)). Assuming the standard articulated in
New Jersey v. T.L.O., 469 U.S. 325 (1985), applies to a seizure of high school
students carried out by their football coach at the behest of law enforcement and away
from traditional school grounds,1 I disagree with the court’s conclusion that the
seizure at issue here was reasonable.
Under the T.L.O. standard, we must evaluate both whether the seizure was
“justified at its inception” and whether it “was reasonably related in scope to the
circumstances which justified [it] in the first place.” 469 U.S. at 341 (cleaned up)
(quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)). As an initial matter, it bears
emphasizing that “T.L.O.’s two-part test in the school setting operates as a limited
‘special needs’ exception to the warrant and probable cause requirements of the
Fourth Amendment.” Scott v. County of San Bernardino, 903 F.3d 943, 949 (9th Cir.
2018) (citing Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)); see also
Schulkers v. Kammer, 955 F.3d 520, 537 (6th Cir. 2020) (describing the special needs
doctrine). That is, it is based on the principle that “[a] search unsupported by
probable cause can be constitutional . . . ‘when special needs, beyond the normal need
1
Though I am not necessarily convinced that the T.L.O. standard applies under
these circumstances, it was clearly established in 2016 that reasonableness is the
minimum standard governing the officers’ conduct. Cf. Reynolds v. City of
Anchorage, 379 F.3d 358, 372-73 (6th Cir. 2004) (Moore, J., dissenting) (explaining
that “when confronted with a search . . . initiated by law enforcement officers not
under the supervisory control of school authorities, courts have uniformly held that
probable cause is required,” and collecting cases to that effect).
-11-
for law enforcement, make the warrant and probable-cause requirement
impracticable.’” Acton, 515 U.S. at 653 (quoting Griffin v. Wisconsin, 483 U.S. 868,
873 (1987)). As pertinent here, courts have recognized that students’ “Fourth
Amendment rights . . . are different in public schools than elsewhere. . . . because
schools have a legitimate need to maintain an environment in which learning can take
place.” Burlison v. Springfield Pub. Schs., 708 F.3d 1034, 1039 (8th Cir. 2013)
(cleaned up); see also Acton, 515 U.S. at 653 (explaining that the reasonableness
standard applies in public schools because traditional Fourth Amendment
requirements “would unduly interfere with the maintenance of . . . swift and informal
disciplinary procedures” and “would undercut the substantial need of teachers and
administrators for freedom to maintain order in the schools” (cleaned up)).
Turning to the first part of the T.L.O. test, “a search of a student by a teacher
or other school official will” generally “be justified at its inception when there are
reasonable grounds for suspecting that the search will turn up evidence that the
student has violated or is violating either the law or the rules of the school.” 469 U.S.
at 341-42 (cleaned up). In concluding that the seizure here was justified as part of a
possible Title IX investigation, the court—in my view—fails to construe the
Amended Complaint in the light most favorable to T.S.H. and H.R.J. The students
allege that “at no time during [their] confinement and interrogation was the NWMSU
Title IX investigation officer informed of this matter.” This allegation suggests that
the university employed a “Title IX investigation officer” to initiate and oversee such
investigations during the relevant period. See 34 C.F.R. § 106.8(a) (“Each recipient
[of federal funds] must designate and authorize at least one employee to coordinate
its efforts to comply with its responsibilities under [Title IX], which employee must
be referred to as the ‘Title IX Coordinator.’”). The failure to notify the university’s
Title IX officer of the incident, together with the fact that the officers described the
cheerleading coach’s allegation as only a “possible Title IX incident,” implies that the
cheerleading coach did not file a formal Title IX complaint and thus, that the officers
-12-
knew no formal investigation or grievance process had been triggered. See id.
§§ 106.8(c), .45(b).
Although a university may still initiate “an informal resolution process” absent
a formal complaint, the regulations make clear that this informal process requires,
among other things, “the parties’ voluntary, written consent.” Id. § 106.45(b)(9).
Here, the students adequately allege that they never consented to the seizure. And
because the Amended Complaint suggests the officers made no effort to coordinate
with the university’s Title IX officer or to comply with Title IX regulations, there is
no basis to conclude that they reasonably believed they had authority under Title IX
to independently initiate an investigation and to seize and interrogate high school
students. Cf. Dep’t of Educ., Off. for C.R., Dear Colleague Letter (Apr. 4, 2011), at
4 (“[A] school’s Title IX investigation is different from any law enforcement
investigation, and a law enforcement investigation does not relieve the school of its
independent Title IX obligation to investigate the conduct.”); Plamp v. Mitchell Sch.
Dist. No. 17-2, 565 F.3d 450, 459 (8th Cir. 2009) (explaining that although school
staff have “the authority, if not the duty, to report” potential Title IX violations to “the
school administration or school board,” such “authority does not amount to an
authority to take a corrective measure or institute remedial action” under the statute).
Nor was the seizure here justified by any “reasonable grounds” to suspect that
T.S.H. and H.R.J. had violated Missouri law. See T.L.O., 469 U.S. at 342. As the
court notes, the students contend that the “purpose of the officers’ investigation was
to prove” that the students had invaded the cheerleading coach’s privacy. See Mo.
Rev. Stat. § 565.252.1(1) (2017). According to the Amended Complaint, the
cheerleading coach wrote in an incident report that (1) she saw “several figures in a
couple different windows” who seemed to be “looking straight at her” and (2) she
thought she saw a phone “to take pictures.” Aside from this, the officers knew only
that T.S.H. and H.R.J. were among seven students assigned to rooms in Tower Suites
West—a building the students allege to be “quite some distance away” from the
-13-
cheerleading coach’s dormitory—which could have been the rooms in which the
cheerleading coach saw the “figures.” With no other evidence linking T.S.H. and
H.R.J. to the incident, it was unreasonable for the officers to suspect that they were
the people the cheerleading coach saw in the dormitory windows, that they were
holding the phone she thought she saw, or that they actually took any photo at all.
Finally, the Amended Complaint suggests that T.S.H. and H.R.J. were seized,
questioned, and searched in furtherance of an ordinary criminal investigation, rather
than a “special need” to maintain an appropriate learning environment, facilitate the
imposition of informal school discipline, or maintain order and safety in a school
setting. See, e.g., Am. Compl. ¶¶ 51-53 (describing how the officers—and not the
students’ coach—initiated the investigation); id. ¶ 55 (alleging that the football coach
was acting pursuant to the officers’ instructions when he told the students they were
being investigated for committing a crime); id. ¶ 64 (alleging that one of the officers
prepared an Offense Report based on the investigation that ultimately concluded that
no one would face criminal charges). According to the Amended Complaint, the
cheerleading coach did not report the incident—which had occurred the previous
evening—until she checked out of her dormitory room. From this, it is reasonable to
infer that the cheer camp had ended, that there was no risk of students engaging in
future similar conduct, and thus, that there was no special need to restore order or
safety. At base, an officer’s seizure of a student is not reasonable “‘where the
officer’s purpose is not to attend to the special need’ in question.” Scott, 903 F.3d at
950 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 737 (2011)).
Moving to the second prong of the T.L.O. test, even if the seizure was justified
at its inception, it was not “reasonably related in scope to the circumstances which
justified the interference in the first place.” T.L.O., 469 U.S. at 341. A seizure “will
be permissible in its scope when the measures adopted are reasonably related to the
objectives of the [seizure] and not excessively intrusive in light of the age and sex of
the student and the nature of the infraction.” Id. at 342. In response to the students’
-14-
claim that they were detained for “a period of hours,” the court today reasons that
“student seizures of similar durations” have been found permissible in the past. In
my view, this approach fails to balance the duration of this particular seizure with the
nature of the infraction. This is evidenced by the examples the court cites: one case
involving forced sexual contact, Shuman ex rel. Shertzer v. Penn Manor Sch. Dist.,
422 F.3d 141 (3d Cir. 2005), and another involving a threatening letter found in a
high school three days after the high school shooting in Columbine, Stockton v. City
of Freeport, 37 Fed. App’x 712 (5th Cir. 2002). In both, the perpetrators were easily
and readily identified. And in both, the nature of the alleged conduct warranted an
immediate response to avoid disruption in the school or harm to other students. Here,
by contrast, there was no imminent risk of harm or disruption. The officers merely
suspected that one or more students among a group of seven, standing in a completely
different building, might have watched the cheerleading coach undress and might
have taken a picture. The invasion of the coach’s privacy is, of course, concerning
if true, but it is not sufficiently comparable to the alleged misconduct in Shuman and
Stockton.
Considering the absence of a security threat and the lack of any apparent
disruption to the camps or to the students’ learning environment, it was unreasonable
for the officers to believe that the hours-long detention and interrogation of T.S.H.
and H.R.J. were warranted. Compare Doe ex rel. Doe v. Little Rock Sch. Dist., 380
F.3d 349, 355 (8th Cir. 2004) (concluding that “highly intrusive” searches of
students’ persons and belongings violated the Fourth Amendment where “government
officials conducting the searches [were] in large part playing a law enforcement role
with the goal of ferreting out crime and collecting evidence”), with Burlison, 708
F.3d at 1036, 1040-41 (concluding that the “brief separation” of the student and his
belongings during a drug dog exercise was reasonable, especially in light of
“substantial evidence showing there was a drug problem in district buildings”).
-15-
For these reasons, I would affirm the district court’s denial of the motion to
dismiss the students’ Fourth Amendment claims and, consequently, their civil rights
conspiracy claim as well. Otherwise, I concur in the court’s opinion with respect to
the students’ claims brought under 18 U.S.C. §§ 5033 and 5038(c).
______________________________
-16-