Clarissa Gilmore just wanted to visit her husband, Mulik Sheets, at the Smith State Prison in Georgia, as she had many times before. It started with nothing beyond the usual entrance searches.
Twice a month, Ms. Gilmore visited her then-husband, Mulik Sheets, at Smith State Prison in Georgia. On February 26, 2017, she arrived, as she had roughly fifty times before, and successfully proceeded through the initial security screening. That meant undergoing three different types of searches: a pat-down search, a metal-detector wand search, and an electromagnetic-radiation/body-scan search.
Bringing contraband into a prison is a problem, even if the biggest violators tend to be guards rather than visitors. And it’s not as if visitors aren’t warned that there will be searches, but within the normal parameters. Gilmore went through the normal searches and began her visit with her husband. Then she got the eye from Lieutenant Alberta Milton, and Gilmore stared back. From there, things got weird.
When Lieutenant Milton returned with Officer Christina Irizarry, she told Ms. Gilmore to go with her. Lieutenant Milton and Officer Irizarry took Ms. Gilmore into the hallway and handed her a strip-search approval form. That form was blank and lacked approval signatures from prison officials. Ms. Gilmore asked why the officers were going to strip search her, but Lieutenant Milton refused to tell her. Ms. Gilmore also asked Lieutenant Milton if she could speak to her supervisor, but Lieutenant Milton responded that she was the officer in charge that day.
Lieutenant Milton and Officer Irizarry insisted that Ms. Gilmore sign the strip-search approval form. If she didn’t, they said, she would be sent to jail and would be unable to visit her husband again. Not only that, Lieutenant Milton told Ms. Gilmore that the officers would “search [her] anyway.” Ms. Gilmore “didn’t feel like [she] had an option,” so she signed the form.
And then she was searched, complete naked and about as intrusively as possible.
Officer Irizarry first manipulated Ms. Gilmore’s breasts, lifting each breast and looking underneath it. Lieutenant Milton then ordered Ms. Gilmore to “[t]urn around,” “bend over,” and “open [her] butt cheeks.” Ms. Gilmore did as instructed, and Officer Irizarry “felt in between” Ms. Gilmore’s buttocks with her gloved hand.
Lieutenant Milton and Officer Irizarry next instructed Ms. Gilmore to spread her vagina, which they visually inspected. Finding no contraband, they told Ms. Gilmore to put her clothes back on and allowed her to resume her visit.
Gilmore sued, and it did not go well for her.
The district court granted summary judgment to the officers on qualified immunity grounds, and a panel of this court affirmed. The panel, viewing the evidence in the light most favorable to Ms. Gilmore, concluded that the officers violated the Fourth Amendment because they lacked reasonable suspicion for the strip search but agreed with the district court that the officers were entitled to qualified immunity because Supreme Court and Eleventh Circuit precedent did not clearly establish at the time of the strip search that reasonable suspicion was required.
The appellate panel’s problem was that there was no circuit precedent addressing the need for reasonable suspicion before the screws got to force a visitor to “spread her butt cheeks” and then her vagina. Who knew they couldn’t just do such a thing for kicks? But two members of the panel urged that the case be heard en banc to address some questions that needed answering.
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.
The en banc panel held that a jury (bear in mind that the QI decision was issued at the summary judgment stage) could well conclude that Gilmore’s Fourth Amendment rights had been violated, as if there was any serious doubt about it.
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.
But far worse, and more fundamental, was the question of whether this was so utterly, mind-numbingly obvious that the guards couldn’t do this without reasonable suspicion as to satisfy the “obvious clarity” exception to the prong of qualified immunity requiring that the law be “clearly established.”
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.
To satisfy “obvious clarity,” the court held that it must be “so clearly prohibited that a reasonable officer would have known of its unconstitutionality.” In other words, it’s so obvious that not even a Georgia prison guard could believe they could do this without any cause whatsoever without violating the Constitution. And indeed, what Lieutenant Milton and Officer Irizarry did to Clarissa Gilmore satisfied this exception beyond any doubt. That a district judge and circuit panel didn’t recognize that the “obvious clarity” exception applied is incomprehensible.
H/T Skink
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“That a district judge and circuit panel didn’t recognize that the “obvious clarity” exception applied is incomprehensible.”
It’s not that the district and panel got it wrong: they were stuck with precedent that required on-four decisions from specific courts to show the law was clearly established:
In Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005), a Fourth Amendment excessive force case, we indicated that under each of the three methods of determining whether a right was clearly established, out-of-circuit cases cannot be considered: Mercado can demonstrate that his right was clearly established in a number of ways. First, he can show that a materially similar case has already been decided, giving notice to the police. He could also show that a broader, clearly established principle should control the novel facts in this situation. Finally, he could show that this case fits within the exception of conduct which so obviously violates [the] constitution that prior case law is unnecessary. To make this showing, Mercado must point to law as interpreted by the Supreme Court, the Eleventh Circuit, or the Supreme Court of Florida.
Id. at 1158–59 (citations omitted and emphasis added).
There were no decisions from the three courts that were on all fours. That other circuits issued on-point decisions couldn’t be considered. The district and panel were stuck with it, and it requires an en banc review to overturn precedent. there was never a question about the violation. Judge Tjoflat, in his usual direct manner:
First, the Court’s conclusion that the law was clearly established rests entirely on the obviousness of the constitutional violation. No precedent was necessary to reach that conclusion, and the Court does not rely on any. The facts speak for themselves. The Court cites out-of-circuit cases only to show that the rule here is broadly accepted. But it could have reached the same conclusion without citing a single one. The officers needed no judicial roadmap; the Fourth Amendment already drew the line.
The original precedent had nothing to do with obvious violations, but only if the law was clearly established through prior decisions. As too often happens, the original precedent got eroded, mangled, and flat-out disassembled in subsequent decisions until it applied to clear violations. This is part of a string of cases where this court pulls the reigns by pointing out that “we never said that.”
Good for them.
The “obvious violation” exception comes from SCOTUS (see Taylor v. Riojas (2020) for example) . Even the 11th should consider that precedent. They had no excuse for ignoring the obvious and granting QI because there was no clearly established circuit precedent. Not even in the 11th.