Thornburg v. Gingles Joint Appendix Exhibits Vol. 1

    No. 21-12424

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

T.R., a minor, by and through her mother, Porsha Brock, 
Plaintiff-Appellant,

v.

The Lamar County Board of Education, et al., 
Defendants-Appellees.

On Appeal from the United States District Court for the 
Northern District of Alabama, Case No. 6:19-cv-01101-LSC

REPLY BRIEF OF PLAINTIFF-APPELLANT

SHERRILYN A. IFILL 
Director-Counsel 

JanaiS. Nelson 
Samuel Spital 
Ashok Chandran 
NAACP Legal Defense & 
Educational Fund, Inc.
40 Rector Street, 5th Floor 
New York, NY 10006 
(212) 965-2200

Christopher E. Kemmitt 
Georgina C. Yeomans 
NAACP Legal Defense & 
Educational Fund, Inc.
700 14th Street NW, Suite 600 
Washington, D.C. 20005 
(202) 682-1300

Leroy Maxwell Jr.
Austin Russell
Maxwell & Tillman Law Firm
2326 2nd Ave N.
Birmingham, AL 35203 
(205)216-3304

Counsel for Plaintiff-Appellant



T.R. v. Lamar Cnty Bd. of Educ., No. 21-12424

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit 

Rule 26.1-1, the NAACP Legal Defense and Educational Fund, Inc. and Maxwell & 

Tillman Law Firm state that they have no parent corporations, nor have they issued 

shares or debt securities to the public. The organizations are not subsidiaries or af­

filiates of any publicly owned corporation, and no publicly held corporation holds 

ten percent of their stock. They hereby certify that the following is a complete list of 

interested persons:

1. Boardman, Carr, Petelos, Watkins, and Ogle P.C., Attorneys for De­

fendants/Appellees

2. Boardman, Mark S., Attorney for Defendants/Appellees

3. Brock, Porsha, Plaintiff/Appellant

4. Chandran, Ashok, Attorney for Plaintiff/Appellant

5. Coogler, L. Scott, District Court Judge

6. Dean, Kathy, Defendant/Appellee

7. Herron, Vance, Defendant

8. Ifill, Sherrilyn A., Attorney for Plaintiff/Appellant

9. Kemmitt, Christopher E., Attorney for Plaintiff/Appellant

C-l o f2



T.R. v. Lamar Cnty Bd. of Educ., No. 21-12424

10. Lamar County Board of Education, Defendant

11. Maxwell Jr., Leroy, Attorney for Plaintiff/Appellant

12. Maxwell & Tillman Law Firm, Attorneys for Plaintiff/Appellant

13. NAACP Legal Defense and Educational Fund, Inc., Attorneys for  

Plaintiff/Appellant

14. Nelson, Janai S., Attorney for Plaintiff/Appellant

15. T.R., Plaintiff/Appellant

16. Russell, Austin, Attorney for Plaintiff/Appellant

17. Spital, Samuel, Attorney for Plaintiff/Appellant

18. Stamps, Lisa, Defendant/Appellee

19. Watkins, Katherine, Attorney for Defendants/Appellees

20. Yeomans, Georgina C., Attorney for Plaintiff/Appellant

C-2 of 2



TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE
DISCLOSURE STATEMENT................................................................................C-l

TABLE OF AUTHORITIES...................................................................................... ii

INTRODUCTION......................................................................................................... 1

ARGUMENT................................................................................................................. 3

I. Defendants ignore and mischaracterize the record, asking this Court to reject 
proper inferences.....................................................................................................3

II. Defendants acted outside their discretionary authority because they violated
school board policy by strip-searching T.R. without the superintendent’s 
permission............................................................................................................... 6

III. Even if Defendants could invoke the qualified immunity defense, it does not
protect them here.................................................................................................... 9

A. Defendants rely on a legal standard for qualified immunity that has been
rejected for decades.......................................................................................... 9

B. Defendants violated clearly established law by conducting a second strip
search after the first strip search revealed no contraband............................ 10

C. Defendants are not entitled to qualified immunity because both searches
were excessive in scope..................................................................................15

D. Defendants violated clearly established Fourth Amendment law when they 
initially strip-searched T.R. without possessing a reasonable suspicion that
she had hidden contraband in her underwear................................................19

IV. Defendants are not entitled to state-agent immunity......................................... 23

V. The record supports T.R.’s outrage claim.......................................................... 25

CONCLUSION............................................................................................................27

CERTIFICATE OF COMPLIANCE......................................................................... 29

l



TABLE OF AUTHORITIES

Page(s)

Cases

Bayles v. Marriott,
816 So. 2d 38 (Ala. Civ. App. 2001)....................................................................24

Brent v. Ashley,
247 F.3d 1294 (11th Cir. 2001)............................................................................ 10

Burton v. Tampa Hous. Auth.,
271 F.3d 1274 (11th Cir. 2001).......................................................................... 3, 5

D.H. by Dawson v. Clayton Cnty. Sch. Dist.,
830 F.3d 1306 (11th Cir. 2016).....................................................................passim

Daniels v. Twin Oaks Nursing Home,
692 F.2d 1321 (11th Cir. 1982).............................................................................. 3

Davis v. White,
No. 7:17-cv-01533-LSC, 2020 WL 4732073 (N.D. Ala. Aug. 14,
2020) (Coogler, J .)..................................................................................................26

Evans v. Stephens,
407 F.3d 1272 (11 th Cir. 2005) (en banc)..................................................... 11,12

Fuqua v. Turner,
996 F.3d 1140 (11th Cir. 2021)............................................................................ 13

Holloman ex rel. Holloman v. Harland,
370 F.3d 1252 (11th Cir. 2004)................................................................6, 7, 9, 10

Hope v. Pelzer,
536 U.S. 730(2002)..................................................................................................9

Jones v. Fransen,
857 F.3d 843 (11th Cir. 2017).............................................................................. 10

Gill ex rel. K.C.R. v. Judd,
941 F.3d 504 (11th Cir. 2019).............................................................................. 13

ii



Ex parte Kennedy,
992 So. 2d 1276 (Ala. 2008)................................................................................. 23

Moore v. Pederson,
806 F.3d 1036 (11th Cir. 2015)............................................................................14

New Jersey v. T.L. O.,
469 U.S. 325 (1985)...............................................................................................13

Patel v. Lanier Cnty. Ga.,
969 F.3d 1173 (11th Cir. 2020)............................................................................10

Safford Unified Sch. Dist. No. 1 v. Redding,
557 U.S. 364 (2009)...................................................................................... .passim

United States v. Piatt,
576 F.2d 659 (5th Cir. 1978)................................................................................ 10

Wilson v. Unix, o f Ala. Health Servs. Found., P.C.,
266 So. 3d 674 (Ala. 2017)................................................................................... 26



INTRODUCTION

Although Defendants had no evidence that T.R. hid marijuana in her bra or 

underwear, and Lamar County Board of Education (“LCBE”) policy forbade them 

from conducting strip searches without the superintendent’s express approval, De­

fendants strip-searched T.R. twice without permission. Doc. 43-1 -  Pg 130; Doc. 43- 

4 -  Pg 2, 4; Doc. 46-5 -  Pg 5. Defendants conducted the strip searches in Ms. Dean’s 

office, into which individuals in the cafeteria or hallway could see through a window 

in the office door. Doc. 43-1 -  Pg 130-31; Doc. 43-4 -  Pg 4. Students were still in 

the cafeteria when Defendants conducted the searches, yet neither Defendant 

deigned to close the window’s shade. See Doc. 43-1 -  Pg 119-20, 130-31; Doc. 43- 

4 -  Pg 4.

During the first search, Defendants required T.R. to “remove all [her 

clothes],” lift her breasts, and bend over with her arms raised. Doc. 43-1 -  Pg 126- 

27; Doc. 43-2 -  Pg 85. Defendants then allowed T.R. to don only her boxer shorts 

and bra and had her sit in the room—feeling “disgusted and ... humiliated and em­

barrassed and gross”—with the window still uncovered. Doc. 43-1 -  Pg 128-31.

Following the first search, T.R.’s mother and sister entered the office. Id. at 

128. But before T.R. and her family were allowed to leave, Dr. Stamps announced 

that she “ha[d] to strip search [T.R.] again.” Id. at 129. Defendants knew that T.R. 

did not possess marijuana at this point because they had already strip-searched her,



T.R. never left the office or Defendants’ presence between searches, and she was 

wearing only boxer shorts and a bra. Id. at 126-29. Nonetheless, over T.R.’s sister’s 

objections, Dr. Stamps said that school protocol required T.R. to once more strip 

naked, lift her breasts, and bend over with her arms raised. Doc. 43-1 -  Pg 128-31; 

Doc. 43-2 -  Pg 85-86; Doc 46-1 -  Pg 1. T.R. did so, and the office window remained 

uncovered until her sister covered it mid-search. Doc. 43-1 -  Pg 129-31.

For several independent reasons, the District Court erred by granting Defend­

ants summary judgment on these facts: Defendants were ineligible for qualified im­

munity because they acted outside their discretionary authority. Clearly established 

law barred Defendants from strip-searching T.R. a second time when the first search 

proved she had no contraband. Clearly established law barred both searches as un­

constitutionally excessive because Defendants could have effectively searched T.R. 

without twice forcing her to strip naked, lift her breasts, and bend over where other 

students could potentially see her. Clearly established law barred Defendants from 

strip-searching T.R. the first time because they lacked reasonable suspicion that she 

had contraband in her underwear. Defendants are ineligible for state-agent immunity 

because they violated a clear, detailed written policy by strip-searching T.R. without 

the superintendent’s approval. And Alabama law permits T.R. to sue Defendants for 

outrage when the record suggests that they knew she did not possess contraband yet 

humiliated her by conducting a second strip search anyway.

2



As explained below, Defendants’ responses to these arguments are unavailing, 

and the judgment below should be reversed.

ARGUMENT

I. Defendants ignore and mischaracterize the record, asking this Court to
reject proper inferences.

In arguing that that Plaintiff misstates important facts and ignores others, 

Resp. Br. 4, Defendants misunderstand what constitutes a permissible inference on 

summary judgment, ignore compelling evidence that does not suit their narrative, 

and misrepresent the record on important points.

The Court must view all evidence and draw all permissible inferences in favor 

of the non-moving party on summary judgment. See Burton v. Tampa Hons. Auth., 

271 F.3d 1274, 1277 (11th Cir. 2001). An inference is permissible when it is “one 

that ‘reasonable and fair-minded men in the exercise of impartial judgment’ might 

draw from the evidence.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1326 

(11th Cir. 1982) (citation omitted). By definition, inferences rest “in part on conjec­

ture,” crossing the line to unreasonable only when they constitute guesses or specu­

lation “not based on the evidence.” Id.

Despite this Court’s clear duty to draw inferences in T.R.’s favor at summary 

judgment, Defendants ask this Court to reject several inferences drawn by Plaintiffs 

brief. For instance, Defendants claim that it is pure speculation that Defendants did 

not search the Agriculture classroom for the missing marijuana cigarette before

3



twice strip-searching T.R. Resp. Br. 5. To the contrary, this inference is well sup­

ported by record evidence. All record testimony is clear that Dr. Stamps and Coach 

Byars arrived at the classroom and searched the students’ backpacks. See Doc. 43-3 

-  Pg 2 (Dr. Stamps); Doc. 43-6 -  Pg 2 (Coach Byars); Doc. 43-8 -  Pg 2 (Mr. Fowler); 

Doc. 43-1 -  Pg 45-46 (T.R.). By contrast, no declarant mentioned searching the room 

itself. That silence, coupled with the fact that the missing cigarette was found on the 

floor the next day, Doc. 43-8 -  Pg 2, amply supports the inference that Defendants 

did not search the classroom before strip-searching T.R.

Defendants also argue that Plaintiff “did not develop the record to establish 

T.R.’s location in Ms. Dean’s office” and therefore cannot assert that she stood na­

ked in front of the office window, or that she was ‘“ potentially visible to others.’” 

Resp. Br. 5. But again, the record shows that Ms. Dean’s office door has a window, 

that one can see through it from the lunchroom, that school was still in session when 

T.R. entered Ms. Dean’s office, and that T.R.’s sister felt the need to cover the win­

dow during the second search. Doc. 43-1 -  Pg 130-31; Doc. 43-3 -  Pg 3. The record 

also shows that, even though school was over during the second search, students 

were still in the building, including the lunchroom, for after-school activities. Doc. 

43-1 -  Pg 119-20. This information easily permits an inference that T.R. was poten­

tially visible to others while naked.

4



Defendants next dispute that a jury could infer that Dr. Stamps spoke with the 

two student informants after the first search. But as explained in Plaintiffs opening 

brief, Op. Br. 9 n.2, the record shows that Nurse Moore was not present for either 

search, Doc. 43-1 -  Pg 106, that Dr. Stamps called Nurse Moore to Ms. Dean’s office 

before speaking with the student informants, Doc. 43-3 -  Pg 3, that Nurse Moore 

remained in Ms. Dean’s office until T.R.’s mother and sister arrived, Doc. 43-4 -  Pg 

2-3; Doc. 43-7 -  Pg 2, and that T.R.’s mother and sister were present only for the 

second search, Doc. 43-2 -  Pg 84-85, Doc. 43-1 -  Pg 126-30. A jury could—and 

thus this Court must—infer from these facts that Dr. Stamps spoke with the inform­

ants after first searching T.R. Burton, 271 F.3d at 1277.

Defendants also ignore relevant evidence that contradicts their narrative. For 

instance, Defendants object to Plaintiffs characterization of the searches, complain­

ing that “Plaintiff did not testify that she was asked to bend over ‘with her arms 

raised over her head for inspection’ during either alleged search.” Resp. Br. 7. But 

T.R.’s mother testified that for the second search, Defendants told T.R. “to repeat 

the steps that she had did before and same thing, lift her boobs up, kind of bend over 

and hold her arms up.” Doc. 43-2 -  Pg 85. And T.R. testified that the first time 

Defendants ordered her to strip naked, she was asked “[t]o bend over.” Doc. 43-1 -  

Pg 127.

5



Additionally, Defendants sometimes substitute their own narrative for record 

evidence, claiming for instance that “T.R. smoked in the classroom on the day of 

their investigation,” Resp. Br. 8, even though T.R. has consistently denied this ac­

cusation, Doc. 43-1 -  Pg 42, 116.

Finally, Defendants characterize as “undisputed facts” several disputed legal 

conclusions, claiming that “Dr. Stamps had a reasonable suspicion that T.R. pos­

sessed additional marijuana” on her person; that Defendants “complied with Board 

policy” when strip-searching T.R.; and that Dr. Stamps “used her discretion” in de­

ciding to twice strip-search T.R. Resp. Br. 9-10. Plaintiff disputes these legal con­

clusions in her opening brief and herein. See Op. Br. Sections I.A.2(a)-(b), I.B.l; 

infra Sections II, I1I.B., D.

II. Defendants acted outside their discretionary authority because they vio­
lated school board policy by strip-searching T.R. without the superinten­
dent’s permission.

As Plaintiff explained in her opening brief, qualified immunity does not pro­

tect state officials who act outside of their discretionary authority. Thus, Defendants 

are not entitled to qualified immunity unless they can show that strip-searching T.R. 

involved “performing a legitimate job-related function ... through means that were 

within [their] power to utilize,” Holloman ex rel. Holloman v. Harland, 370 F.3d 

1252, 1265 (11th Cir. 2004) (“Holloman”). Defendants can make no such showing 

here because Board policy § 6.17(c) specifically prohibits school administrators

6



from strip-searching students unless they receive “specific approval of the superin­

tendent”—which Defendants admit they never received. Doc. 46-5 -  Pg 5.

Defendants do not dispute these legal principles, take no issue with Plaintiffs 

discussion of the case law, and present no contrary cases. Instead, they try to meet 

the force of Plaintiff s argument with a pair of unavailing assertions.

First, Defendants assert that they acted within their discretionary authority be­

cause supervising students was a legitimate job-related goal for both Defendants, 

Resp. Br. 19, and confiscating drugs was a legitimate job-related goal for Dr. 

Stamps, id. at 20. But these assertions miss the point. That Defendants may have 

pursued a legitimate job-related goal is insignificant unless they pursued that goal 

“through means that were within [their] power to utilize.” Holloman, 370 F.3d at 

1265. Here, they did not.

Second, Defendants assert that the strip searches they conducted complied 

with Board policy, arguing that “Board policy allowed a more intrusive search than 

alleged by the Plaintiff here” and that Defendants possessed the authority to “per- 

form[] a body cavity search.” Resp. Br. 19-20.

These contentions cannot be reconciled with the record. Board policy 

§ 6.17(c) states: “Student searches ... may include a private pat down of the student, 

a search of personal items and clothing, or a more thorough search upon specific 

approval of the Superintendent.” Doc. 46-5 -  Pg 5. Requiring T.R. to strip naked,

7



lift her breasts, and bend over with her arms raised for Defendants’ inspection does 

not qualify as “a private pat down of the student,” a search of “personal items,” or a 

search of “clothing”—a point Defendants do not dispute. And a strip search, which 

this Court and the Supreme Court have described as a “‘quantum leap from outer 

clothes and backpacks,’” D.H. by Dawson v. Clayton Cnty. Sch. Dist., 830 F.3d 

1306, 1314 (11th Cir. 2016) (“D.//.”) (quoting Safford Unified Sch. Dist. No. 1 v. 

Redding, 557 U.S. 364, 377 (2009)), is plainly “a more thorough search” than a pat 

down or a search of clothing or personal items—a point Defendants also do not dis­

pute. Thus, Defendants’ search required “specific approval of the superintendent.” 

They obtained no such approval.

Although Defendants claim that they complied with Board policy, they do not 

grapple with the actual language of the policy. See Resp. Br. 19-20. Instead, Defend­

ants’ claim that they acted consistent with Board policy relies only on Defendants’ 

own declarations asserting they acted consistent with Board policy. In sum, Defend­

ants have provided neither evidence nor argument that Board policy permitted them 

to strip-search T.R. Defendants’ own say-so cannot satisfy their burden at summary 

judgment.

Because Defendants did not have the discretionary authority to strip-search 

T.R., they are ineligible for qualified immunity, and the District Court’s order grant­

ing them qualified immunity should be reversed.

8



III. Even if Defendants could invoke the qualified immunity defense, it does
not protect them here.

In arguing for qualified immunity, Defendants rely on both an outdated legal 

standard and mischaracterizations of substantive Fourth Amendment law.

A. Defendants rely on a legal standard for qualified immunity that has 
been rejected for decades.

Defendants rely on a qualified-immunity standard that the Supreme Court re­

jected as “rigid” and inconsistent with its precedent almost twenty years ago. Citing 

Lassiter v. Ala. A&MUniv., 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc), Defend­

ants claim that qualified immunity is the “usual rule,” giving way only for acts “so 

obviously wrong, in light of pre-existing law, that only a plainly incompetent officer 

or one who was knowingly violating the law would have done such a thing.” Resp. 

Br. 21. But in Hope v. Pelzer, the Supreme Court rejected that standard, naming 

Lassiter. 536 U.S. 730, 739 & n.9 (2002). And in Holloman, this Court recognized 

that Hope repudiated the Lassiter standard as “unwarrantedly narrow.” 370 F.3d at 

1277. As Holloman explained, the “requirement that a particular conclusion must be 

‘dictated, that is, truly compelled’ intimates a level of absolute crystal-clear certainty 

about precedent that forms no part of Hope's requirements.” Id. at 1278 (cleaned 

up).

The correct standard for qualified immunity is not whether case law “truly 

compelled” a conclusion, Resp. Br. 21, but whether “‘the state of the law [at the time

9



of the events in question] gave respondents fair warning that their alleged treatment 

of [the plaintiff] was unconstitutional,’” Holloman, 370 F.3d at 1278 (quoting Hope, 

536 U.S. at 741); accord Patel v. Lanier Cnty. Ga., 969 F.3d 1173, 1186 (11th Cir. 

2020). As stated in Plaintiffs opening brief, fair warning can be established in one 

of three ways: (1) through materially similar binding precedent, Jones v. Fransen, 

857 F.3d 843, 851-52 (11th Cir. 2017); (2) through ‘“ a broad statement of principle 

within the Constitution, statute, or case law that clearly establishes a constitutional 

right; or (3) [because] conduct [was] so egregious that a constitutional right was 

clearly violated, even in the total absence of case law.’” D.H., 830 F.3d at 1318 

(citation omitted). Here, both D.H. and Safford clearly establish that twice strip­

searching T.R. violated the law.

B. Defendants violated clearly established law by conducting a second 
strip search after the first strip search revealed no contraband.

As explained in Plaintiffs opening brief, the District Court erred by failing to 

separately analyze the reasonableness of each search. Because the record supports 

the finding that “two separate searches were conducted[,] each search must have 

[had] an independent justification.” United States v. Piatt, 576 F.2d 659, 660 (5th 

Cir. 1978). And before conducting the second search, Defendants needed to “reeval­

uate whether reasonable suspicion to justify the [second strip search] exist[ed] in 

light of the information gained during the encounter.” Brent v. Ashley, 247 F.3d 

1294, 1300 (11th Cir. 2001).

10



Defendants’ first strip search of T.R. revealed no drugs, and T.R. remained in 

their uninterrupted custody until the second search. Thus, the “lack of revealed evi­

dence [from the first search] undermine[d] the reasonableness of [Defendants’] be­

lief that Plaintiff[] possessed drugs,” Evans v. Stephens, 407 F.3d 1272, 1280 (11th 

Cir. 2005) (en banc), and foreclosed a second search. Nonetheless, Defendants sub­

jected T.R. to a second strip search citing a purported school policy. See 43-2 at 85- 

86. Because there was no suspicion—let alone a reasonable one—that T.R. had 

drugs inside her underwear when Defendants decided to conduct the second strip 

search, that search violated clearly established Fourth Amendment law.

Defendants do not dispute that the Fourth Amendment required the second 

search to be independently justified. Rather, they raise a series of undeveloped as­

sertions—some just one sentence long—to avoid this clear obligation.

First, Defendants seek to escape this Court’s precedent by noting inconse­

quential factual distinctions from Brent and simply ignoring Evans altogether. For 

example, Defendants assert that Brent involved more invasive searches, which is 

irrelevant. See Resp. Br. 36. The invasiveness of the methods employed by officials 

bears only on the second prong of the Fourth Amendment analysis—whether the 

search exceeded its permissible scope. By contrast, both Brent and Evans discussed 

the reevaluation requirement while analyzing the first prong of the Fourth Amend­

ment inquiry—whether the search was justified at its inception. See, e.g. , Evans, 407

11



F.3d at 1280 (analyzing invasiveness of search separately from whether the search 

was justified at inception). That Brent involved a strip search conducted by a cus­

toms agent does not limit its import; the Fourth Amendment’s requirement that a 

search be supported by suspicion does not turn on the type of official conducting the 

search. And this Court has applied Brent's reassessment rule to deny qualified im­

munity to other types of public officials in Evans. Id.

Defendants next suggest that their second strip search of T.R. was justified 

because “T.R. had the opportunity to move drugs from a hidden location to under 

her clothing ... after the first search, thus leaving open the possibility that the drugs 

were hidden on her body.” Resp. Br. 14. But Defendants cite no record evidence in 

support of this contention, and rely instead on inferences that are both implausible 

and inappropriate given the posture of this appeal. First, T.R. was only allowed to 

don her bra and a pair of boxer shorts—not any external clothing—between the two 

searches. Doc. 43-1 -  Pg 128. Second, T.R. remained in Ms. Dean’s office and under 

Defendants’ uninterrupted supervision for the entire period following the first 

search, rendering it implausible—particularly on a motion for summary judgment— 

that T.R. could have smuggled contraband into her underwear after the first search 

without Defendants noticing.

Defendants also defend the reasonableness of the second search by arguing 

that, as school officials, they were acting “in loco parentis.” Resp. Br. 28. But the

12



Supreme Court has explicitly rejected the argument that school authorities “should 

be deemed to be exercising parental rather than public authority when conducting 

searches of their students.” New Jersey v. T.L.O., 469 U.S. 325, 336-37 (1985). Fol­

lowing T.L.O., there can be no dispute “that the Fourth Amendment applies to 

searches conducted by school authorities.” Id. at 337.

Defendants further claim that the second search was permissible despite a lack 

of reasonable suspicion because “T.R.’s mother was present and approved of the 

alleged second search.” Resp. Br. 14. This suggestion ignores both the law of con­

sent and the record evidence. This Circuit has squarely held that “consent must be 

the product of a free and voluntary choice rather than the result of mere ‘acquies­

cence to a claim of lawful authority.’” Fuqua v. Turner, 996 F.3d 1140, 1151 (11th 

Cir. 2021) (quoting United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989)). 

Consent is thus invalid where officials suggest that the search is being conducted 

under legal authority; where an official ‘“ claims authority to search ... [s]he an­

nounces in effect that the [subject] has no right to resist the search,’ leaving no way 

to consent to it.” Gill ex rel. K.C.R. v. Judd, 941 F.3d 504, 524 (11th Cir. 2019) 

(quoting Bumper v. North Carolina, 391 U.S. 543, 550 (1968)).

Defendants do not claim that they sought or received affirmative consent from 

Ms. Brock. Rather, they claim that Ms. Brock’s silence implied consent. But the 

record shows that Defendants told Ms. Brock that they “ha[d] to strip search [T.R.]

13



again” pursuant to official “protocol.” Doc. 43-1 -  Pg 128-29. They made these 

statements as T.R. and her family were preparing to leave Ms. Dean’s office, show­

ing that they could not leave the office before the second search. Id. T.R.’s sister 

objected to the search, but was told that it had to be done. Doc. 46-1 -  Pg 1-2. Both 

T.R. and Ms. Brock testified that these statements made them feel they could not 

leave or otherwise stop the search. Doc. 43-2 -  Pg 65; Doc. 43-1 -  Pg 103-04, 129. 

Under these circumstances, Ms. Brock’s silence cannot be viewed as consent. See, 

e.g., Moore v. Pederson, 806 F.3d 1036, 1046 (11th Cir. 2015) (finding no consent 

when subject “simply followed the commands” of a police officer). At a minimum, 

resolution of this dispute is for a jury.

Finally, Defendants defend the District Court’s failure to analyze the second 

search on the basis that it was preserving scarce judicial resources by ruling on qual­

ified immunity, rather than the Fourth Amendment. Resp. Br. 29. But the District 

Court did not fully analyze whether Defendants were entitled to qualified immunity 

on the second search. The District Court’s analysis of the second search was that, 

even if the second search were unreasonable, the fact that it involved marijuana dif­

ferentiated the search from Thomas ex rel. Thomas v. Roberts, 261 F.3d 1160 (11th 

Cir. 2001), a case involving a search for missing money. Doc. 65 -  Pg 12. Given that 

D.H., Safford, and the Constitution put the unlawfulness of the second search beyond

14



debate, it was not enough to properly dispose of the second search by distinguishing 

it from Thomas.

C. Defendants are not entitled to qualified immunity because both 
searches were excessive in scope.

In two separate respects, preexisting law clearly established that both strip 

searches were unconstitutionally excessive in scope. First, the Supreme Court and 

this Court have articulated ‘“ a broad statement of principle ... that clearly estab­

lishes’” their excessive scope. D.H., 830 F.3d at 1318 (quoting Hill v. Cundiff 797 

F.3d 948, 979 (11th Cir. 2015)). In Safford, the Supreme Court held that school 

searches must be ‘“ reasonably related to the objectives of the search and not exces­

sively intrusive in light of the age and sex of the student and the nature of the infrac­

tion.’” 557 U.S. at 387 (quoting T.L.O., 469 U.S. at 342). D.H. held that this “state­

ment of principle” created governing, clearly established law. See D.H., 830 F.3d at 

1318-19. And D.H. provided school officials with even more concrete guidance, an­

nouncing: “[W]e can think of no circumstance where it would be permissible for a 

school administrator to escalate a strip search of a student by forcing him to remove 

his underwear when—as here—due to the design of the underwear, an exhaustive 

search could be performed through ‘flanking.’” Id. at 1318 n.8.

Under Safford and D.H., the two strip searches here were excessively intrusive 

because school administrators did not need to conduct the searches in a place where 

other students could watch, and did not—as Defendants effectively concede in their

15



declarations, see Doc. 43-3 -  Pg 4; Doc. 43-4 -  Pg 4—need T.R. to remove any 

clothing, much less remove all her clothing and then manipulate her body while De­

fendants inspected it.

In response, Defendants claim that these principles are inapplicable because 

“the circumstances alleged here necessitated a search of T.R.’s body without three 

layers of clothing to hide the marijuana joint.” Resp. Br. 25. This was so, Defendants 

assert, because T.R.’s layered clothing made it impossible “to pull out the band of 

her shorts to check (a/k/a/ ‘flanking’) for the marijuana joint.” Id.

Defendants’ argument fails multiple times over. To start, Defendants’ claim 

is a non sequitur. T.R. was wearing just one more layer of clothing than the student 

in D.H. This fact bears some relation to whether Defendants may have had to remove 

that extra layer. It bears no relation to whether Defendants had to make T.R. remove 

her bra and underwear, lift her breasts, raise her arms, and bend over. Defendants’ 

“flanking” argument fails for essentially the same reason. The fact that T.R. wore 

one extra layer of clothing would mean only that T.R. needed to remove one extra 

layer of clothing before flanking was possible.

Finally, Defendants’ argument that the two unusually intrusive searches here 

were necessary conflicts with their own declarations, in which they claimed their 

objectives could be accomplished without any strip searches at all. Ms. Stamps, for 

instance, stated that she had received “training on conducting investigations into

16



student misconduct,” and based on her “training, experience, and judgment,” she 

determined that the only investigative step needed was to request that T.R. “pull[] 

up her shirt, but not remov[e] it.” Doc. 43-3 -  Pg 4-5. According to Dr. Stamps, T.R. 

was searched only once and was “never forced, instructed or asked ... to take off her 

clothing. T.R. never fully removed any piece of clothing.” Id. at 4. Ms. Dean said 

the same. Doc. 43-4 -  Pg 4.

Defendants cannot plausibly claim that their training and judgment indicated 

that they could meet their investigatory goals by simply asking T.R. to lift her shirt 

one time, and also contend that the two, exponentially-more-intrusive searches al­

leged by T.R., her mother, and her sister were necessary for Defendants’ investiga­

tion. The two strip searches were unconstitutionally excessive in scope, and the fac­

tual dispute over what happened should be resolved by a jury.

The unconstitutionality of these searches was also “clearly established for 

qualified immunity purposes,” D.H., 830 F.3d at 1318, in another respect: D.H. 

turned on facts that are materially similar to those here. In D.H., as here, school 

officials unnecessarily required a young student to strip naked and did so in a setting 

that “potentially” exposed him to the view of other students. Id. at 1315, 1318. Be­

cause D.H. clearly established that unnecessarily requiring a student to remove their 

underwear one time when classmates could potentially see them violated the Fourth 

Amendment, “a reasonable official in [Defendants’] position would not have

17



believed that requiring [T.R. to twice remove all of her clothes, lift her breasts, and 

bend over in potential view of her classmates] was lawful.” Id. at 1318.

Defendants respond by pointing to nonexistent, immaterial, or irrelevant dif­

ferences between this case and D.H. For instance, Defendants argue that this case 

“can be further distinguished” from D.H. because Plaintiffs mother and sister were 

present. Resp. Br. 26. Yet Defendants fail to explain how this difference could have 

any constitutional significance, much less where Plaintiffs mother and sister were 

present only for the second strip search. Defendants also try to distinguish D.H. by 

pointing out that “the students in the two cases were two different sexes,” that D.H. 

“would not be wearing a bra,” and that D.H. “was not wearing three layers of cloth­

ing.” Id. But none of these differences obscures D.H. ’s prohibition on unnecessarily 

stripping children because these differences are immaterial. The only differences 

that are material—the fact that Defendants strip-searched T.R. twice and ordered her 

to lift her breasts and bend over while naked—make this an easier case than D.H.

Defendants also complain that T.R. “presented no evidence that any student 

saw [her] in any state of undress.” Id. at 25. It is true that T.R. did not monitor which 

of the students in the cafeteria may have seen her while complying with the Defend­

ants’ orders to strip naked. But that is beside the point. D.H. did not either. To the 

contrary, that case found only that D.H. “potentially” “expos[ed] his genitals to” 

“other students in the room.” D.H., 830 F.3d at 1315. As in D.H., T.R. “potentially”

18



exposed her genitals (and breasts) to other students—in this case, to students who 

were in the cafeteria or hallway at the time of the searches.

Defendants try to minimize the fact that other students could have seen T.R. 

by stating that school had dismissed for the day and that T.R. failed to allege that 

she stood right in front of the window while naked, Resp. Br. 33-34. These quibbles 

ignore that, at summary judgment, all reasonable inferences are drawn in T.R.’s fa­

vor. They also disregard T.R.’s testimony that students were “in the lunchroom” 

when Defendants strip-searched her, Doc. 43-1 -  Pg 120, and that people in the 

lunchroom “can see through the window” into Ms. Dean’s office, id. at 131. Defend­

ants also ignore that T.R. was exposed for a much longer duration than D.H. because 

she was searched twice and more extensively, and because Defendants had her sit in 

the office in her boxers and bra between searches. Id. at 120.

The only material differences between this case and D.H. are that Defendants 

searched T.R. more times and more intrusively than the official searched D.H. No 

reasonable official could fail to understand that D.H. prohibited the searches here.

D. Defendants violated clearly established Fourth Amendment law when 
they initially strip-searched T.R. without possessing a reasonable sus­
picion that she had hidden contraband in her underwear.

As Plaintiffs explained in their opening brief, Defendants also violated clearly 

established law the first time they strip-searched T.R. without reasonable suspicion 

that she “resortfed] to underwear for hiding evidence of wrongdoing.” Safford, 557

19



U.S. at 377. Without that suspicion, Defendants could not “reasonably make the 

quantum leap from outer clothes and backpacks to exposure of intimate parts” and 

conduct a type of search that “can ‘result in serious emotional damage.”’ Safford, 

557 U.S. at 375, 377 (citation omitted).

Defendants do not point to any evidence supporting a reasonable suspicion 

T.R. had hidden marijuana in her underwear. Instead, Defendants contend that their 

strip search was permissible because Safford allowed school officials to conduct 

strip searches if they had a reasonable suspicion of “resort to underwear” or a rea­

sonable suspicion of danger. Resp. Br. 22-24, 30-31. Defendants claim that they had 

a reasonable suspicion that T.R. possessed marijuana and thus a reasonable suspicion 

of danger because marijuana “poses significant danger,” id. at 31.

Defendants’ argument fails in two respects. First, Defendants overstate the 

evidence of drug possession they had when they opted to strip search T.R. They 

contend that before the search, two students reported seeing T.R. smoking mariju­

ana, but the record supports a reasonable inference that Defendants only obtained 

this information after they first strip-searched T.R. See supra Section I. When De­

fendants conducted the first strip search, they knew only that someone had smoked 

marijuana in class and that T.R. had marijuana paraphernalia in her backpack. They 

had not searched the classroom where the teacher smelled marijuana, had no reason 

to think T.R. was hiding a marijuana cigarette in her underwear or bra, and had good

20



reason to doubt that T.R. would hide a recently-burning cigarette against her skin 

inside her underwear.

Second, Defendants are mistaken when they contend that they could strip- 

search T.R. absent reasonable suspicion of “resort to underwear for hiding evidence 

of wrongdoing.” Safford, 557 U.S. at 377.

In D.H., this Court considered a strip search that, like the search here, involved 

a school official searching a student for marijuana. But unlike this case, the school 

official in D.H. had specific reason to believe D.H. possessed marijuana in his un­

derwear: other students told the official that D.H. possessed marijuana, the official 

had just discovered marijuana in the underwear of another student linked to D.H., 

and he reasonably believed that marijuana had been discovered in the underwear of 

a second student. 830 F.3d at 1315-16. If Defendants were correct that suspicion of 

marijuana possession alone justifies strip searches, D.H. would have turned on 

whether the school official had a reasonable suspicion that D.H. possessed marijuana 

(and, by extension, a reasonable suspicion of danger). Evidence that students had 

hidden marijuana in their underwear would have been immaterial. Instead, D.Hds 

holding about the inception of the search turned on the presence of specific evidence 

that D.H. had hidden marijuana in his underwear. See id. at 1317 (holding that the 

search was justified at its inception because o f ‘“ reasonable suspicion ... of resort to

21



underwear for hiding evidence of wrongdoing’”) (quoting Safford, 557 U.S. at 377). 

The same suspicion was required here.

Defendants’ position also deviates from Safford, in which the Supreme Court 

held that school officials lacked both specific evidence of a resort to underwear and 

“any indication of danger to the students” before they strip searched Ms. Redding. 

557 U.S. at 376. Although the prescription pills at issue in Safford might be less 

dangerous on their own than the marijuana here, the Safford officials had much more 

cause for concern about danger to students than the officials here. In Safford, school 

officials had evidence that Ms. Redding was distributing pills to other students, that 

one student had gotten sick from those pills, and that other “students were planning 

to take the pills at lunch” that same day. Id. at 368-74. Here, school officials did not 

believe that T.R. was distributing contraband, and the school day was over. Defend­

ants’ sole concern was that T.R. might possess a half-smoked marijuana cigarette. 

The danger posed to T.R. by a partial marijuana cigarette is no higher than the danger 

in Safford. The teaching of Safford is that this kind of “limited threat” cannot justify 

“the categorically extreme intrusiveness of a search down to the body of an adoles­

cent.” 557 U.S. at 376.

In sum, both D.H. and Safford clearly establish that Defendants’ strip search 

of T.R. was unjustified at its inception, and the District Court erred in concluding 

otherwise.

22



IV. Defendants are not entitled to state-agent immunity.

State-agent immunity is unavailable when a plaintiff “proffer[s] evidence that

the State agent failed ‘to discharge duties pursuant to detailed rules or regulations, 

such as those stated on a checklist.’” Ex parte Kennedy, 992 So. 2d 1276, 1282-83 

(Ala. 2008) (citation omitted). Section 6.17(c) of the LCBE policy manual, effective 

July 1, 2016, unambiguously required that an administrator seek “specific approval 

of the Superintendent” before conducting any search more thorough than “a private 

pat down of the student, [or] a search of items or clothing.” Doc. 46-5 -  Pg 5. As 

discussed above, see supra Section II, § 6.17(c) unambiguously prohibited Defend­

ants from conducting the strip searches here. Because Defendants disregarded these 

detailed rules and procedures during both unlawful strip searches, they are not enti­

tled to state-agent immunity.

Defendants assert that “Board policy did not require Dr. Stamps to seek per­

mission from Superintendent Herron before she began the search described by Plain­

tiffs.” Resp. Br. 34. But the only page of the LCBE policy manual that Defendants 

cite for this proposition applies to searches by “law enforcement agencies,” not ed­

ucators. See id. (citing Doc. 43-5 -  Pg 5).

Defendants also join the District Court in opining that § 6.17(c) provides 

“broad guidelines” instead of detailed regulations. Doc. 65 -  Pg 26, Resp. Br. 42- 

43). But this section goes into great detail about when a student may be searched,

23



who may conduct the searches, who must approve the searches, and how the search 

should be implemented. More importantly, it speaks with unmistakable clarity to the 

question at hand: whether Defendants were permitted to strip-search T.R. twice 

without the superintendent’s permission.

Defendants mainly rely on Bayles v. Marriott, 816 So. 2d 38 (Ala. Civ. App. 

2001), claiming that Bayles granted a defendant state-agent immunity even in the 

face of a policy “similar to the one here.” Resp. Br. 34-35. But the policy at issue in 

Bayles, which involved a principal’s general responsibility for inspecting school 

grounds and correcting “safety related deficiencies,” 816 So. 2d at 40-41, is entirely 

unlike the policy here. It neither mandated nor prohibited any specific course of ac­

tion and spoke only in general terms about the principal’s responsibility. Nor did 

that policy create a specific procedure for conducting inspections or remedying de­

ficiencies. If anything, the policy in Bayles illustrates the distinction between a 

“broadly phrased” policy that merely “advise[s] the principal of his or her responsi­

bility for the overall safe condition of the school,” and the detailed policy here that 

plainly forbade Defendants from strip-searching students without the superinten­

dent’s permission. Id.

Finally, Defendants spend significant effort distinguishing the facts of United 

States v. Puglisi, 723 F.2d 779, 784-85 (11th Cir. 1984), and Brent v. Ashley, 247 

F.3d 1294, 1300 (11th Cir. 2001), from the facts here. In so doing, they miss the

24



point of Plaintiffs argument. Plaintiff cited these cases solely for the well-estab­

lished proposition that a pat down is far less intrusive than a strip search. This prin­

ciple does not depend on the facts of either case and, regardless, is also established 

by Saffordand D.H. See 557 U.S. at 374 (describing a strip search in which officials 

directed a student to remove her clothing as “categorically distinct” from other types 

of searches); 830 F.3d at 1314 (describing the “quantum leap” from outer clothing 

pat downs to strip searches).

Finally, Defendants contend that the question “whether a strip search is more 

intrusive than a ‘frisk’ is irrelevant” because “Policy § 6.17(c) allows educators to 

use their discretion to search students ‘whenever reasonable suspicion exists.’” Resp. 

Br. 37. But Plaintiff does not dispute that reasonable suspicion would give Defend­

ants the right to conduct some search—only that Defendants required specific ap­

proval for the type of search they conducted. The very next sentence in the policy 

speaks to that issue, and forbids officials from strip-searching students without the 

superintendent’s permission.

Because Defendants acted beyond their authority, the District Court’s grant of 

state-agent immunity should be reversed.

V. The record supports T.R.’s outrage claim.

Defendants acknowledge that under Alabama law the tort of outrage is not

limited to the three circumstances the District Court recited. Resp. Br. 40; Doc. 65 -

25



Pg 28. Yet they appear to argue that outrage claims must fail unless the specific 

conduct at issue “has ... been previously recognized by the Alabama Supreme Court 

as sufficient to establish that tort.” Resp. Br. 41. This crabbed reading of the tort of 

outrage was rejected by the Alabama Supreme Court in Wilson v. Univ. o f Ala. 

Health Servs. Found., P.C., 266 So. 3d 674, 677 (Ala. 2017). And federal courts 

have heeded Wilson’s directives, finding the tort of outrage established by conduct 

previously not considered by Alabama courts. See, e.g., Davis v. White, No. 7:17- 

cv-01533-LSC, 2020 WL 4732073, at *20-*21 (N.D. Ala. Aug. 14, 2020) (Coogler, 

J.) (menacing debt collection practices). As discussed in Plaintiffs opening brief, 

the conduct here is far more outrageous than the conduct in Davis. See Op. Br. 48- 

49.

Defendants also assert that because Porsha Brock did not stop the search, and 

hugged Defendants after they strip-searched T.R., Plaintiff cannot make out an out­

rage claim. Resp. Br. 39, 43. But Defendants fail to explain this claim, and it cannot 

survive even cursory examination. All these facts show is that Ms. Brock believed 

Defendants when they told her they had to strip T.R. a second time under school 

“protocol.” Doc. 43-2 -  Pg 86-87. As detailed above, T.R.’s sister objected to the 

second search and Defendants said it was required, leaving Plaintiff and Ms. Brock 

with the impression that they could not leave or otherwise stop the search. Doc. 43- 

2 -  Pg 65; Doc. 43-1 -  Pg 103-04, 129; Doc. 46-1 -  Pg 1-2. And the fact that Ms.

26



Brock struck a conciliatory posture towards people who could influence whether her 

daughter was expelled from school, Doc. 43-1 -  Pg 76-77, is both irrelevant to the 

legal questions here and does not support the inference—especially at summary 

judgment—that Defendants wish to draw from it.

Finally, Defendants seek to neutralize their conduct by parsing discrete mo­

ments of the encounter to avoid confronting their overwhelmingly cruel treatment of 

T.R. See Resp. Br. 41-43. But countless courts have affirmed that strip searches of 

children are degrading, traumatizing, and inhumane. See Op. Br. 48-49 (collecting 

cases). Defendants subjected T.R. to this humiliating practice twice, both times with­

out sufficient justification, and the second time with full knowledge that the search 

would yield no contraband. See supra Section III. And T.R. continues to live with 

the trauma of the experience. Doc. 43-1 -  Pg 133.

CONCLUSION

For all of the aforementioned reasons, this Court should reverse the District 

Court’s decision.

27



Respectfully submitted,

Sherrilyn A. Ifill 
Director-Counsel 

Janai S. Nelson 
Samuel Spital 
Ashok Chandran 
NAACP Legal Defense & 
Educational Fund, Inc. 
40 Rector Street, 5th Floor 
New York, NY 10006 
(212)965-2200

s/ Christopher E. Kemmitt 
Christopher E. Kemmitt 
Georgina C. Yeomans 
NAACP Legal Defense & 
Educational Fund, Inc.
700 14th Street NW, Suite 600 
Washington, D.C. 20005 
(202) 682-1300 
ckemmitt@naacpldf.org

Leroy Maxwell
Austin Russell
Maxwell & Tillman Law Firm
2326 2nd AveN.
Birmingham, AL 35203 
(205) 216-3304

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mailto:ckemmitt@naacpldf.org


CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitations of Fed. R. App. P. 

32(a)(7)(B), as the brief contains 6,466 words, excluding those parts exempted by 

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s/ Christopher E. Kemmitt 
Christopher E. Kemmitt

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