Jackson v. Wheatley School District No. 28 Appendix

    No. 97-381

In The

j3S>upreme Court of tljt Puttri* Stairs
October T erm, 1997

Cassandra Jenkins, a minor, by her mother, Sandra Hall, and 
Oneika McKenzie, a minor, by her mother, Elizabeth M cKenzie,

Petitioners,

vs.

Susannah Herring and M elba Sirmon,
Respondents.

On Petition for a W rit of C ertiorari to the 
United States Court o f Appeals for the Eleventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION 
TO PETITION FOR WRIT OF CERTIORARI

*Counsel o f  Record

Valerie T. Kisor 
Donald B. Sweeney*
R ives & Peterson 
1700 Financial C enter 
505 North 20th Street 
Birm ingham , A labam a 35203 
(205) 328-8141

Counsel fo r  Respondents

St. Louis Law Printing, Inc. 14239 Manchester Rd. Manchester, MO 63011 314-231-4477



QUESTIONS PRESENTED

1. Whether the standard employed by the Eleventh Circuit 
Court of Appeals in determining whether the law is clearly 
established for qualified immunity purposes conflicts with deci­
sions of this Court and other courts of appeals?

2. Whether the circuit court’s holding that New Jersey v. 
T.L.O., 469 U.S. 325,105 S.Ct. 733, 83 L.Ed.2d 720 (1985), did 
not clearly proscribe the actions of Herring and Sirmon such that 
they should be stripped of qualified immunity conflicts with 
decisions of this Court and other courts of appeals?



— Ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED....................... ..................  i

TABLE OF CONTENTS ................................................  iii

TABLE OF AUTHORITIES.........................................  vi

RESPONDENTS’ BRIEF IN OPPOSITION TO PETI­
TION FOR A WRIT OF CERTIORARI ..............  1

CONSTITUTIONAL AND STATUTORY PROVI­
SIONS INVOLVED...............................................  1

STATEMENT OF THE CASE..............................    1

I. The Alleged Search...................................   l

II. Board Findings and Findings of the Office for
Civil R ights.....................................................  3

III. Procedural History..........................................  3

REASONS FOR DENYING THE PETITION FOR
WRIT OF CERTIORARI.......................................  7

I. THE ELEVENTH CIRCUIT COURT OF 
APPEALS’ STANDARD FOR DETERMIN­
ING WHETHER THE LAW IS CLEARLY 
ESTABLISHED FOR QUALIFIED IMMU­
NITY PURPOSES DOES NOT CONFLICT 
WITH DECISIONS OF THIS COURT. FUR­
THER, THOUGH THERE IS SOME CON­
FLICT AMONG THE CIRCUITS AS TO 
THE RELEVANCE OF NON-BINDING 
PRECEDENT IN DETERMINING 
WHETHER THE LAW WAS CLEARLY ES­
TABLISHED, THE ELEVENTH CIRCUIT’S



HOLDING IS NOT IN CONFLICT WITH 
THAT OF SEVEN OTHER CIRCUITS.......

A. The Eleventh Circuit Court of Appeals’
standard for determining whether the law 
is clearly established for qualified immu­
nity purposes does not conflict with this 
Court’s decision in U.S. v. Lanier.........

B. The Eleventh Circuit Court of Appeals’
standard for determining whether the law 
is clearly established comports with this 
Court’s decisions concerning qualified 
immunity................................................. .

C. Though there is some conflict among the
circuits as to the relevance of NON-BIND­
ING precedent in determining whether 
the law was clearly established, the Elev­
enth Circuit’s holding is not in conflict 
with that of seven other circuits.............

D. To the extent the petitioners seek to have 
this Court speak to the merits of this case, 
such is not properly before this Court...

II. THE COURT OF APPEALS’ HOLDING 
THAT NEW JERSEY V. T.L.O. DID NOT 
CLEARLY PROSCRIBE THE ACTIONS OF 
HERRING AND SIRMON SUCH THAT 
THEY SHOULD BE STRIPPED OF QUALI­
FIED IMMUNITY DOES NOT CONFLICT 
WITH DECISIONS OF THIS COURT AND 
OTHER COURTS OF APPEALS.................



V---

A. The decision of the Eleventh Circuit Court
of Appeals does not conflict with New 
Jersey v. T.L.0......................................... 18

B. The Eleventh Circuit’s decision does not
conflict with decisions of the Sixth and 
Seventh Circuits or the Supreme Court of 
West Virginia..........................................  22

CONCLUSION................................................................  25



---VI

TABLE OF AUTHORITIES

Page(s)

Cases:

Adams v. St. Lucie County Sheriffs Dept., 962 F.2d 
1563 (11th Cir. 1992) (Edmondson, J. dissenting)
(adopted en banc 998 F.2d 923 (11th Cir. 1993) .. 14

Anderson v. Creighton, 483 U.S. 635 (1987)...............passim

Bonitz v. Fair, 804 F.2d 164 (1st Cir. 1986), overruled 
in part on other grounds, Unwin v. Campbell, 863 
F.2d 124 (1988).......... ............................................ 16

Cornfield v. Consolidated School District No. 230, 991
F.2d 1316 (7th Cir. 1993)........................................ passim

Courson v. McMillan, 939 F.2d 1479 (11th Cir.
1991).........................................................................  11,15

Doe v. Renfrew, 631 F.2d 91 (7th Cir. 1980) (per
curiam), cert, denied, 451 U.S. 1022 (1981)..........passim

Hamilton v. Cannon, 80 F.3d 1525 (11th Cir. 1996)... 11

Harlow v. Fitzgerald, 457 U.S. 800 (1982)...................7,11,12

Lassiter v. Alabama A&M Univ., 28 F.3d 1146 (11th
Cir. 1994) (en banc) ..............................................  10,14

Mitchell v. Forsyth, 472 U.S. 511 (1985)..................... passim

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

Procunier v. Navarette, 434 U.S. 555 (1978)...............  11

State exrel. Galfardv. Mark Anthony B., 433 S.E.2d41
(W.Va. 1993)...........................................................  23,24

United States v. Lanier, 117 S.Ct. 1219 (1997)...............passim



VernoniaSchoolDistrict47Jv. Acton, 515 U.S.___, 115
S.Ct. 2386(1995)....................................................  21

W illiams v. Ellington, 936 F.2d 881 (6th Cir.
1991)........................................................................21,23,24

Statutory Provisions:

17U.S.C. § 2 4 2 ............      8,11

42 U.S.C. § 1983................................................   passim



RESPONDENTS’ BRIEF IN OPPOSITION 
TO PETITION FOR A WRIT OF CERTIORARI

Respondents Susannah Herring and Melba Sirmon respect­
fully request that the Petition for a Writ of Certiorari to review 
the judgment and opinion of the United States Court of Appeals 
for the Eleventh Circuit be denied.

CONSTITUTIONAL AND 
STATUTORY PROVISIONS INVOLVED

The questions raised by the Petition for Writ of Certiorari 
involve qualified immunity under 42 U.S.C. § 1983. The 
underlying claims asserted in the complaint are based on the 
Fourth Amendment.

STATEMENT OF THE CASE 

I. The Alleged Search

In 1992, petitioners Cassandra Jenkins and Oneika McKenzie 
were second grade students in the Talladega City School Dis­
trict. (Pet. App. 3A) Near the end of the school day on May 1, 
1992, a classmate of Jenkins and McKenzie informed their 
teacher, Hilda Fannin, that seven dollars was missing from her 
purse. (Id.) Fannin asked her class if anyone knew where the 
money might be found. Another of Jenkins’ and McKenzie’s 
classmates told Fannin that Jenkins had taken the money and 
placed it in McKenzie’s backpack. (Pet. App. 3A) Fannin 
searched McKenzie’s backpack, but did not find the money. 
(Pet. App. 3A)

Two more students accused Jenkins and McKenzie of the 
theft. (Id.) While Fannin was questioning McKenzie and Jenkins 
in the hallway, each accused the other of taking the money. (Id.) 
Jenkins and McKenzie then jointly accused another student, 
Anthony Jamerson, of the theft. (Pet. App. 40A)



2

While Fannin was questioning the students in the hallway, 
respondent Susannah Herring approached. (Pet. App. 40A) 
Herring told Fannin that the students might have hidden the 
money in their socks or their shoes and instructed them to remove 
their shoes and socks. (Pet. App. 3A) When no money was 
found, Fannin informed Pierring that McKenzie had repeatedly 
asked and had been given permission to go to the restroom after 
the regular restroom break. (Pet. App. 63 A)

Respondent Melba Sirmon, the guidance counselor, entered 
the hallway and accompanied Herring, Jenkins and McKenzie to 
the girls’ restroom. (Pet. App. 3 A) In the restroom, Herring told 
Jenkins and McKenzie that they needed to check their clothes. 
(Pet. App. 40A) Jenkins and McKenzie entered separate stalls 
and locked the doors behind them. (Pet. App. 41 A) Jenkins and 
McKenzie offered conflicting testimony as to the actions taken 
in the restroom. (Pet. App. 41A) Jenkins testified that Herring 
asked her and McKenzie to go into separate stalls and come out 
with their panties down. (Pet. App. 3A) Jenkins testified that 
she and McKenzie came out of the stalls with their panties 
around their ankles, then returned to the stalls and pulled their 
panties up.1 McKenzie testified that neither she nor Jenkins ever 
exited the stalls with their panties down.1 2 (Pet. App. 3 A)

Herring and Sirmon took Jenkins, McKenzie and Jamerson to 
the office of the principal, Crawford Nelson.3 (Pet. App. 4A) 
When Nelson asked the students to reveal the location of the 
money, Jamerson told Nelson that the money was located behind 
a file cabinet in their classroom. (Id.) A search behind the file 
cabinet failed to uncover the money. (Id.)

1 On one occasion, Jenkins testified that she was required to remove her 
dress in Sirmon’s office.

2 Both Jenkins and McKenzie kept their dresses on while they were in the 
restroom.

3 Herring and Sirmon assert that this was the only visit to Nelson’s office 
on May 1, 1992.



3

Jenkins and McKenzie allege that Herring and Sirmon took 
them back to the girls’ restroom a second time. (Id.) A parent of 
another student testified that she stepped into the restroom and 
saw the girls, one in her panties and the other wearing a slip. 
Testimony offered by Jenkins and McKenzie is inconsistent with 
that of the parent who alleges she saw the girls in the restroom. 
Jenkins testified in her deposition that no one came into the 
restroom while she was in there with her dress off. (R3-74-Exl- 
77) McKenzie testified that she did not see anyone walk by the 
restroom while she was in there. (R3-74-Ex2-57)

II. Board Findings and Findings of the Office for Civil 
Rights

After an investigation, the Talladega City Board of Education 
resolved to consider the cancellation of Herring’s employment 
contract and suspended her pending action on the recommended 
termination. (Pet. App. 42A) After considering evidence sub­
mitted at Herring’s termination hearing, the Board concluded 
that Jenkins and McKenzie had not been strip searched, but that 
Herring and Sirmon had exercised questionable judgment in 
handling the investigation. (Pet’r. C.A. App. 44-47, 55-58)

In September of 1992, the Office for Civil Rights investigated 
Jenkins’ and McKenzie’s allegations that they had been strip 
searched. In its Letter of Findings, OCR concluded that the 
evidence did not substantiate that Jenkins and McKenzie had 
been strip searched. (Pet’r C.A. App. 138-145) First Brief in 
Support of Motion for Summary Judgment, Evidentiary Attach­
ments, pp.30- 37)

III. Procedural History

The parents of Jenkins and McKenzie filed a complaint on 
their behalf against the Talladega City Board of Education and 
nine individual defendants, including Herring and Sirmon. The 
complaint alleged that Jenkins and McKenzie had been strip



—  4 —

searched in violation of their Fourth and Fourteenth Amendment 
Rights and sought damages pursuant to 42 U.S.C. § 1983.4

Herring and Sirmon moved for summary judgment on the 
basis of qualified immunity. Though the district court initially 
denied Herring and Sirmon qualified immunity (R2-27), the 
court subsequently reconsidered its decision. (R2-39) Accord­
ing to the district court:

The law was not clearly established in the Eleventh Circuit 
with regard to the conduct at issue. There is no “bright line.” 
There is no reasonable inference that these defendants were 
plainly incompetent or that they knowingly violated clearly 
established law. This court concludes that it over credited 
Doev. Renfrow, 631 F.2d91 (7th Cir. 1980), and a Supreme 
Court footnote.5

(R2-39) The district court granted summary judgment in favor 
of Herring and Sirmon on the basis of qualified immunity (R2- 
40).

A panel of the Eleventh Circuit Court of Appeals, over Judge 
Birch’s strong dissent, reversed the district court and held that 
Fourth Amendment law was sufficiently clear in 1992 to put 
Herring and Sirmon on notice that their actions were unconsti­
tutional. (Pet. App. 45A)

In his dissent, Judge Birch stressed his belief that, on May 1, 
1992, “there was no binding, clearly established law that these 
school teachers violated in conducting the challenged strip

4 The district court’s dismissal of Jenkins’ and McKenzie’s several other 
claims was upheld by the court of appeals. (Pet. App. 4A) Jenkins and 
McKenzie do not seek review of those claims in this Court. (Pet. App. 4, n.3)

5 The district court, in its reference to Cornfield, v. Consolidated High 
School Distr. #230, 991 F.2d 1316 (7th Cir. 1993), suggested that Doe v. 
Renfrow had not clearly established the law at the time of the events giving 
rise to this action.



—  5 —

searches.” (Pet. App. 73A) Judge Birch disagreed with the 
majority’s reliance on New Jersey v. T.L.O., 469 U.S. 325, 105
S.Ct. 733, 83 L.Ed.2d 720 (1985), “because T.L.O. is not 
factually similar to the strip searches that we review and cannot 
be clearly established law to resolve this case....” (Pet. App. 75 A)

The Eleventh Circuit Court of Appeals decided to rehear the 
case en banc and vacated the previous panel’s opinion. (Pet. App. 
84A-85A) The en banc court held that Herring and Sirmon are 
entitled to qualified immunity because on May 1, 1992:

[T]he law pertaining to the application of the Fourth Amend­
ment to the search of students at school had not been 
developed in a concrete, factually similar context to the 
extent that educators were on notice that their conduct was 
constitutionally impermissible.

(Pet. App. 21 A) The en banc court of appeals rejected the 
argument advanced by Jenkins and McKenzie that, on May 1, 
1992, New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733,’ 83 
L.Ed.2d 720 (1985), so clearly defined the law regarding the 
constitutionally permissible scope of a search of students that 
Herring and Sirmon were on notice that their conduct violated 
Jenkins’ and McKenzie’s rights under the Fourth Amendment. 
(Pet. App. 5A-6A) The court noted that Jenkins and McKenzie 
did not contest that “under the facts of this case, T.L. O. is the sole 
precedent that potentially could have clearly established the law 
for purposes of qualified immunity analysis.” (Pet. App. 6A, n. 1)

In concluding that T.L.O. did not clearly establish the law on 
student searches such that Herring and Sirmon were on notice 
that their conduct was constitutionally impermissible, the en 
banc court emphasized the general nature of the “reasonableness 
under all the circumstances” standard set forth in T.L.O. (Pet. 
App. 16A) The court noted that, although T.L.O. identifies 
factors to consider in defining the permissible scope of a school 
search, “there is no illustration, indication, or hint as to how the



6

enumerated factors might come into play when other concrete 
circumstances are faced by school personnel.” (Pet. App. 9A- 
10A) The enbanc court also noted the absence of “practical, fact 
based application” of the T.L.O. standard to facts materially 
similar to those of the search in this case: “School officials 
cannot be required to construe general, legal formulations that 
have not once been applied to a specific set of facts by any 
binding judicial authority.” (Pet. App. 14A-16A) (Emphasis 
added.)

Finally, the en banc court opined that the absence from T.L. O. 
of a narrowly defined reasonableness test appears deliberate and 
“further suggests that T.L.O, did not attempt to establish clearly 
the contours of a Fourth Amendment right as applied to the wide 
variety of possible school settings different from those involved 
in T.L.O." (Pet. App. 20A) The court held that T.L.O. did not 
clearly establish the law on student searches:

Faced with a series of abstractions, on the one hand, and a 
declaration of seeming deference to the judgments of school 
officials, on the other, it is difficult to discern how T.L.O. 
could be interpreted to compel the conclusion that these 
defendants — or, more accurately, all reasonable educators 
standing in defendants’ place — should have known that 
their conduct violated a clearly established constitutional 
right.

(Pet. App. 20A)

Judge Kravitch, joined by Chief Judge Flatchett and Judge 
Barkett, dissented. The dissent concluded that, despite T.L.O.' s 
general test, and in the absence of prior, factually similar cases,
T.L.O. nonetheless would have made it obvious to Herring and 
Sirmon that their actions were unconstitutional. (Pet. App. 21 A)



—  7

REASONS FOR DENYING 
THE PETITION FOR WRIT OF CERTIORARI

I. THE ELEVENTH CIRCUIT COURT OF APPEALS ’ 
STANDARD FOR DETERMINING WHETHER THE 
LAW IS CLEARLY ESTABLISHED FOR QUALI­
FIED IMMUNITY PURPOSES DOES NOT CON­
FLICT WITH DECISIONS OF THIS COURT. FUR­
THER, THOUGH THERE IS SOME CONFLICT 
AMONG THE CIRCUITS AS TO THE RELEVANCE 
OF NON-BINDING PRECEDENT IN DETERMIN­
ING WHETHER THE LAW WAS CLEARLY ES­
TABLISHED, THE ELEVENTH CIRCUIT’S HOLD­
ING IS NOT IN CONFLICT WITH THAT OF SEVEN 
OTHER CIRCUITS.

A. The Eleventh Circuit Court of Appeals’ standard 
for determining whether the law is clearly estab­
lished for qualified immunity purposes does not 
conflict with this Court’s decision in U.S. v. Lanier.

The petitioners assert that the court of appeals employed “an 
overly expansive interpretation of qualified immunity” in con­
cluding that the law pertaining to student searches had not been 
developed in a concrete, factually similar context so as to put 
educators on notice that their conduct was constitutionally im­
permissible. (Pet. App. 12) The petitioners argue that the level 
of factual specificity required by the Eleventh Circuit in deter­
mining whether the law was clearly established was rejected by 
this Court in United States v. Lanier, 117 S.Ct. 1219 (1997).6

6 The petitioners also assert that the level of factual specificity required by 
the Eleventh Circuit is inconsistent with this Court’s holding in Anderson v. 
Creighton, 483 U.S. 635 (1987). (Pet. App. 12) The respondents submit that 
the Eleventh Circuit’s principles of qualified immunity fully comport with, 
and are based on, those set forth by this Court in Harlow v. Fitzgerald, 457 
U.S. 800 (1982); Mitchell v. Forsyth, 472 U.S. 511 (1985); and Anderson v. 
Creighton, 483 U.S. 635 (1987). See infra Point I.B.



Lanier involved a challenge to a criminal conviction under 18
U.S.C. §242, the criminal law counterpart to 42 U.S.C. §1983. 
73F.3d 1380. In Lanier, ajudge’s conduct in sexually assaulting 
several women was alleged to give rise to a criminal civil rights 
violation. (Id.) In an en banc decision, the Sixth Circuit reversed 
the judge’s criminal conviction, concluding that 18 U.S.C. §242 
did not provide adequate notice that sexual assault by a state 
actor fell within the scope of constitutionally prohibited conduct. 
Lanier, 73 F.3d 1380,1384 (6th Cir. 1996) (en banc). The Sixth 
Circuit held that “a generally phrased constitutional right” has 
been “made specific” only if a prior decision of the Supreme 
Court has declared the right, and then only when the Supreme 
Court has applied its ruling in a case with facts “fundamentally 
similar to those being prosecuted.” 73 F.3d at 1393.

This Court granted certiorari “to review the standard for 
determining whether particular conduct falls within the range of
criminal liability under §242.” Lanier,___U.S.____ ,____ , 117
S.Ct. 1219,1224. In Lanier, the Court rejected the glosses added 
by the Sixth Circuit, specifically, that a prior decision of the 
Supreme Court must have declared a right and that the Supreme 
Court must have applied its ruling declaring such right in a case 
with facts fundamentally similar to the case at issue. The Court 
also concluded that the “made specific” standard is essentially 
the same as the clearly established standard employed in quali­
fied immunity cases rather than the heightened standard set forth
by the court of appeals.. Lanier, ___ U.S. a t____ , 117 S.Ct. at
1227-28.

The petitioners assert that the standard employed by the 
Eleventh Circuit Court of Appeals in determining whether the 
law was clearly established for qualified immunity purposes is 
“essentially identical” to the “made specific” standard set forth 
by the Sixth Circuit Court of Appeals in Lanier. This assertion 
is plainly false. The Eleventh Circuit does not require, in order 
that the law be clearly established, that a prior decision of the



9

Supreme Court have declared the right at issue and that the 
Supreme Court have applied its ruling on such right in a case with 
facts fundamentally similar to the case before the court. The 
Eleventh Circuit simply does not employ this heightened stan­
dard. Because the Eleventh Circuit does not employ the standard 
rejected by this Court in Lanier, there can be no conflict between 
the Eleventh Circuit and Lanier in this regard.

The petitioners also argue that the Eleventh Circuit’s require­
ment that, for the law to be clearly established, prior law must 
have been developed in a concrete and factually defined context, 
conflicts with this Court’s holding in Lanier. (Pet. App. 13) 
Lanier, in equating the “made specific” standard and the “clearly 
established” standard, stated that criminal liability may be im­
posed for deprivation of a constitutional right “if, but only if, in 
light of preexisting law, the unlawfulness under the Constitution
is apparent.” Lanier,___U.S. a t____ , 117 S.Ct. at 1227-28.
This statement is consistent with this Court’s decisions in the 
qualified immunity context. See Anderson v. Creighton, 483 
U.S. 635,97 L.Ed.2d 523,107 S.Ct. 3034 (1987). The Eleventh 
Circuit’s standard for determining whether the law is clearly 
established for qualified immunity purposes, based on this 
Court’s qualified immunity decisions, in no way differs from the 
standard set forth in Lanier. As such, there is no conflict.

To the extent the petitioners argue that this Court’s commen­
tary in Lanier regarding general propositions of law displaces 
this Court’s rulings in its qualified immunity decisions, such 
argument also fails. In Lanier, the Court stated:

General statements of the law are not inherently incapable 
of giving fair and clear warning, and, in other instances, a 
general constitutional rule already identified in the deci­
sional law may apply with obvious clarity to the specific 
conduct in question, even though ‘the very action in ques­
tion has [not] previously been held unlawful.’



—  10

Lanier,___U.S. at _____, 117 S.Ct. at 1227. The Eleventh
Circuit Court of Appeals’ standard for determining whether the 
law is clearly established for qualified immunity purposes is not 
inconsistent with these comments.

The Eleventh Circuit’s standard for determining whether the 
law is clearly established, based on this Court’s decisions in the 
qualified immunity context, does not require that the very action 
in question previously have been held unlawful. Lanier, 117 
S.Ct. 1219, 1227. The Eleventh Circuit’s standard is commen­
surate with this Court’s holding in Anderson v. Creighton, which 
requires:

The right the official is alleged to have violated must have 
been “clearly established” in a more particularized, and 
hence more relevant, sense: the contours of the right must 
be sufficiently clear that a reasonable official would under­
stand that what he was doing violates the right. This is not 
to say that an official action is protected by qualified 
immunity unless the very action in question has previously 
been held unlawful . . . but it is to say that in light of 
preexisting law, the unlawfulness must be apparent.

Anderson v. Creighton, 483 U.S. 635, 640. See Lassiter v. 
Alabama A&M Univ., 28 F.3d 1146 (11th Cir. 1994) (enbanc).

The Eleventh Circuit’s requirement that prior case law must 
be “particularized” and must make the unlawfulness of the 
conduct at issue apparent fully comports with this Court’s 
decision in Anderson. The principles set forth in Anderson are 
the very principles addressed in Lanier. As such, it cannot be said 
that the en banc court’s qualified immunity standard is contrary 
to the spirit or the letter of Lanier.”1

1 As this Court noted in Lanier, “In some circumstances, as when an earlier 
case expressly leaves open whether a general rule applies to the particular 
type of conduct at issue, a very high degree of prior factual particularity may

(Footnote 7 continued on next page)



— 11

The petitioners also attempt to fashion a conflict with this 
Court ’ s decision in Lanier by asserting that the Eleventh Circuit ’ s 
approach to assessing whether the law is clearly established is 
“in tension” with this Court’s approach as set forth in Lanier. 
(Pet. App. 15) Contrary to the argument advanced by petitioners, 
the Eleventh Circuit’s holding that “the law can be ‘clearly 
established’ for qualified immunity purposes only by decisions 
of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, 
or the highest court of the state” (Pet. App. 14A, n,4) (citing 
Hamilton v. Cannon, 80 F.3d 1525, 1532, n .7 (llthC ir. 1996); 
Coursonv. McMillan, 939 F.2d 1479,1497-1498, n.32(l 1th Cir. 
1991) does not conflict with this Court’s holding in Lanier.

The petitioners argue that Lanier rejects a rule, such as that 
employed by the Eleventh Circuit, prohibiting consideration of 
decisions of other courts of appeals or other courts in determin­
ing whether the law has been clearly established. In Lanier, this 
Court specifically rejected the Sixth Circuit’s holding that only 
Supreme Court precedent could “make specific” the law for 
purposes of 18 U.S.C. §242 and that no other decisions could be 
considered. Lanier did not address the extent to which decisions 
of other courts must, should, or may be considered in determin­
ing whether the law has been clearly established.* 8 (Pet. App. n.4)

(Footnote 7 continued)

be necessary.” Lanier,___U.S. a t____ , 117 S.Ct. at 1227 (citing Mitchell v.
Forsyth, 472 U.S. 411 (1985)). Such is precisely the case the en banc court 
was confronted with in considering the permissible scope of student searches 
under New Jersey v. T.L.O. The “reasonableness under the circumstances” 
standard set forth in T.L.O. expressly left open the question whether a search 
of a student accused of stealing money would violate the Constitution. As 
such, the Eleventh Circuit sought a higher degree of prior factual particularity.

8 In Harlow, this court did not address “the circumstances under which ‘the 
state of the law’ should be ‘evaluated’ by reference to the opinions of this 
Court, of the Courts of Appeals, or of the local District Court.” Harlow v. 
Fitzgerald, 457 U.S. 818, n.32 (quotingProcunierv. Navarette, 434 U.S. 565, 
55 L.Ed.2d 24, 98 S.Ct. 855 (1978))



12

Further, the Lanier Court did not conclude that there was any 
impropriety in considering only the decisions of the circuit or the 
highest court of the state in which the relevant events took place. 
(Pet. App. n.4) As such, there is no tension between the en banc 
court’s holding as to the precedent it will consider and the 
precedent addressed in Lanier.

Because the Eleventh Circuit Court of Appeals’ en banc 
holding does not conflict with Lanier, there is no basis for the 
granting of certiorari on this issue.

B. The Eleventh Circuit Court of Appeals’ standard 
for determining whether the law is clearly estab­
lished comports with this Court’s decisions con­
cerning qualified immunity.

The petitioners assert that the Eleventh Circuit’s standard for 
determining whether the law is clearly established in the quali­
fied immunity context “seriously misconstrues this Court’s 
qualified immunity decisions.” (Pet. App. 11) The petitioners 
submit that the Eleventh Circuit requirement that case law 
“establish the right in concrete, factually defined circumstances 
that are materially similar to the case at hand” is improper. (Pet. 
App. 11) The en banc court’s holding fully comports with this 
Court’s qualified immunity decisions.

In Harlow v. Fitzgerald, this Court held:

[I]f the law at the time was not clearly established, an 
official could not reasonably be expected to anticipate 
subsequent legal developments, nor could he fairly be said 
to “know” that the law forbade conduct not previously 
identified as unlawful.

475 U.S. 800, 818 (1982) (Emphasis added.)

In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 
L.Ed.2d 411 (1985), this Court emphasized that the Harlow 
court “refashioned” the doctrine of qualified immunity such that



13

immunity would be an entitlement to government officials 
“where the legal norms the officials are alleged to have violated 
were not clearly established at the time.” 472 U.S. 526 Accord­
ing to this Court, the question of qualified immunity is a truly 
legal one: whether the legal norms allegedly violated were 
clearly established at the time of the challenged actions or 
whether the law clearly proscribed the actions at issue. 472 U.S. 
528 (Emphasis added.)

This Court, in Anderson v. Creighton, addressed the degree of 
factual specificity necessary to clearly establish the law:

The operation of this standard, however, depends substan­
tially upon the level of generality at which the relevant 
“legal rule” is to be identified. For example, the right to due 
process of law is quite clearly established by the Due 
Process Clause, and thus there is a sense in which any action 
that violates the Clause (no matter how unclear it may be 
that the particular action is a violation) violates a clearly 
established right. Much the same could be said of any other 
constitutional or statutory violation. But if the test of 
“clearly established law” were to be applied at this level of 
generality, it would bear no relationship to the “objective 
legal reasonableness” that is the touchstone of Harlow. 
Plaintiffs would be able to convert the rule of qualified 
immunity that our cases plainly establish into a rule of 
virtually unqualified liability simply by alleging violation 
of extremely abstract rights. Harlow would be transformed 
from a guarantee of immunity into a rule of pleading.

Anderson at 639. Anderson made clear that “the right the official 
is alleged to have violated must have been “clearly established” 
in a more particularized, and hence more relevant, sense.” 483 
U.S. at 640. (Emphasis added.) As this Court stated in Anderson, 
“[T]he contours of the right must be sufficiently clear that a 
reasonable official would understand that what he was doing 
violates the right.” Id. While Anderson does not require that “the



14

very action in question” be previously held unlawful, “in the 
light of pre-existing law, the unlawfulness must be apparent.” Id.

The principles of qualified immunity set forth by the Eleventh 
Circuit Court of Appeals in Lassiter v. A&M Univ., 28 F.3d 1146 
(11th Cir. 1994) (en banc) and Adams v. St. Lucie County 
Sheriff’s Dept., 962 F.2d 1563 (11th Cir. 1992) (Edmondson, J. 
dissenting) (adopted en banc 998 F.2d 923 (11 th Cir. 1993)) (per 
curium) fully comport with and are based on those principles 
espoused by this Court. In Lassiter, the Eleventh Circuit, citing 
Anderson v. Creighton, stated:

For the law to be clearly established to the point that 
qualified immunity does not apply, the law must have 
earlier been developed in such a concrete and factually 
defined context to make it obvious to all reasonable govern­
ment actors, in the defendant’s place, that ‘what he is doing 
violates federal law.

Lassiter v. Alabama A&M Univ., at 3116 (citing Anderson v. 
Creighton, 483 U.S. 635,640,107 S.Ct. 3034,3039,97 L.Ed.2d 
523 (1987). The court of appeals in Lassiter emphasized that, 
“[W]hen considering whether the law applicable to certain facts 
is clearly established, the facts of the cases relied upon as 
precedent are important.” Lassiter at 3116. Though the 
Eleventh Circuit does not require the facts to be identical to the 
facts of the case before it, the Court does require that the facts be 
“materially similar.” Id.

The principles employed by the Eleventh Circuit Court of 
Appeals in determining the availability of qualified immunity 
fully comport with this Court’s decisions in the qualified immu­
nity context. The Eleventh Circuit’s qualified immunity stan­
dard does not require “a level of factual specificity in the 
articulation of a constitutional right that this Court has rejected.” 
Based on the foregoing, it is evident that the Eleventh Circuit 
Court of Appeals’ standard for determining whether the law is 
clearly established fully comports with this Court’s decisions



—  15

concerning qualified immunity. As such, there is no basis for the 
granting of certiorari on this issue.

C. Though there is some conflict among the circuits as 
to the relevance of NON-BINDING precedent in 
determining whether the law was clearly estab­
lished, the Eleventh Circuit’s holding is not in 
conflict with that of seven other circuits.

The petitioners argue that the Eleventh Circuit’s holding with 
regard to the relevance of non-bmding authority in determining 
whether the law is clearly established conflicts with decisions of 
seven other circuits in that the Eleventh Circuit precludes the 
consideration of NON-BINDING precedent as relevant author­
ity. According to the petitioners, the Second, Fifth and Eleventh 
Circuits hold that only binding precedent should be consulted. 
(Pet. App. 16) This argument necessarily fails because the 
Eleventh Circuit does consult non-binding precedent in the 
qualified immunity context. Except in matters concerning state 
law, decisions of the highest court of the state where a case arises 
are not binding on the Eleventh Circuit Court of Appeals. 
Nonetheless, in Courson v. McMillan, 939 F.2d 1479,1497-98, 
n.32 (11th Cir. 1991), the Eleventh Circuit included these state 
court decisions among those decisions relevant to its clearly 
established law analysis. As such, the Eleventh Circuit’s hold­
ing does not conflict with the decisions of seven other circuits.9

9 There is a question as to whether petitioners’ arguments in this respect are 
properly raised here. As the en banc court concluded,

The parties agree that, at the time the events giving rise to this action 
occurred, T.L.O. was the only case that had addressed with any 
specificity the Fourth Amendment implications of school searches. As 
a result, it is uncontested that, under the facts of this case, T.L. O. is the 
sole precedent that potentially could have clearly established the law 
for purposes of qualified immunity analysis.

(Pet. App. 6A, n .l)



16

Though the petitioners argue that there is a “sharp and genuine 
circuit conflict” on the issue of relevant decisions, they fail to 
establish that the application of different standards among the 
circuits has made any significant difference in the outcome of 
relevant decisions. The petitioners assert that, as of May 1992, 
the decisions from other jurisdictions concerning school searches, 
taken together, made clear the petitioners’ rights in this case. 
(Pet. App. 18) According to the petitioners, “Under the standard 
of virtually any other Circuit but the Eleventh, Second, and Fifth, 
respondents in this case would not have been entitled to qualified 
immunity.” Id. This assertion is both speculative and un­
founded.

The petitioners argue that had the Eleventh Circuit considered 
non-binding precedent as relevant, respondents in this case 
would not have been granted qualified immunity. Id. As stated 
above, the Eleventh Circuit does consider NON-BINDING 
precedent as relevant in the qualified immunity context. None­
theless, the Eleventh Circuit’s consideration of non-binding 
precedent would not necessarily result in a denial of qualified 
immunity to the respondents. Further, the same might be true of 
the First Circuit. In Bonitz v. Fair. 804 F.2d 164 (1st Cir. 1986), 
the First Circuit held that it was not limited to Supreme Court 
cases in determining whether the law was clearly established. 
Bonitz at 171, n.8. The Court noted that it can consider opinions 
of the courts of appeals and of the local District Court. Id. Given 
the First Circuit’s preclusion of certain non-binding precedent, 
namely, state law, it does not follow that under this Court of 
Appeals’ standard “respondents in this case would not have been 
entitled to qualified immunity.” Further, while a decision might 
be relevant to a court’s qualified immunity analysis, such deci­
sion will not necessarily clearly establish the law.10 Because the 
petitioners are unable to establish that the Eleventh Circuit is in

10 For example, a non-binding decision might not be factually similar to the 
case before a court.



—  17 —

conflict with seven others, and because they are unable to show 
that the application of different standards among the circuits has 
had a si gnificant impact on resultant cases, the issuance of a writ 
of certiorari is not warranted.

D. To the extent the petitioners seek to have this Court 
speak to the merits of this case, such is not properly 
before this Court.

The petitioners submit that clarification of the qualified im­
munity standards at issue is “of substantial importance to the 
enforceability of constitutional rights.” (Pet. App. 19) The 
respondents submit that such argument is not appropriately 
before this Court.

Qualified immunity is “conceptually distinct” from the merits 
of the petitioners’ claims that their rights have been violated. 
Mitchell v. Forsyth, A ll  U.S. 511,86 L.Ed. 411,105 S.Ct. 2806. 
Because the only question before the Eleventh Circuit was the 
qualified immunity issue, not the merits of the case, presentation 
of an argument on the merits is improper.11 11

11 Even if this argument were properly before the Court (that courts will 
seldom reach the question of whether conduct was unconstitutional), the 
respondents submit that the petitioners’ assertion is not persuasive. Public 
officials sued in their individual capacities may fail to raise the defense of 
qualified immunity, a board of education might be named the sole defendant 
in a lawsuit, school personnel might be sued in their official capacities only, 
and trial judges might refuse to certify qualified immunity questions for 
immediate appeal.



18 —

II. THE EN BANC COURT OF APPEALS’ HOLDING 
THAT NEW JERSEY V. T.L.O. DID NOT CLEARLY 
PROSCRIBE THE ACTIONS OF HERRING AND 
SIRMON SUCH THAT THEY SHOULD BE 
STRIPPED OF QUALIFIED IMMUNITY DOES NOT 
CONFLICT WITH DECISIONS OF THIS COURT 
AND OTHER COURTS OF APPEALS.

A. The en banc decision of the Eleventh Circuit Court 
of Appeals does not conflict with New Jersey v. 
T.L.O.

The en banc court of appeals held that on May 1, 1992, “The 
law pertaining to the application of the Fourth Amendment to the 
search of students at school had not been developed in a concrete, 
factually similar context to the extent that educators were on 
notice that their conduct was constitutionally impermissible.” 
(Pet. App. 21 A) The en banc court rejected the argument, raised 
here by petitioners, that New Jersey v. T.L. O. clearly defined the 
law regarding the constitutionally permissible scope of student 
searches such that the respondents were on notice that their 
conduct violated petitioners’ rights. (Pet. App. 5A-6A)12

It is important to note at the outset that the facts in T.L.O. are 
not remotely factually similar to those faced by the en banc court. 
T.L. O. involved juvenile proceedings relating to evidence gleaned 
on a search of T.L.O. ’s purse by school officials. T.L.O., a high 
school student, was accused of violating a school rule prohibit­
ing smoking in the restroom. The case at hand involves the 
alleged strip search of two elementary school students accused 
of stealing seven dollars. The facts of T.L.O. are too different 
from the case at hand to have put the respondents on notice that 
their actions were unlawful.

12 The Eleventh Circuit noted in its opinion that petitioners did not contest 
that “under the facts of this case, T.L.O. is the sole precedent that potentially 
could have clearly established the law for purposes of qualified immunity 
analysis.” (Pet. App. 6A, n.l)



19 -

In T.L.O., this Court held that the Fourth Amendment’s 
prohibition on unreasonable searches and seizures applies to 
searches conducted by school officials. 469 U.S. 325 at 333. 
This Court made clear, however, that its application was some­
what diluted in that certain of the restrictions usually applicable 
to searches conducted by public officials would be eased. Spe­
cifically, the Court ruled that school officials would not be 
required to obtain warrants in order to search students, nor would 
they be required to base searches on probable cause. Id. at 340- 
341. This Court reasoned that the legality of the student search 
should depend on the “reasonableness under all the circum­
stances” of the search. Id. at 341.

The T.L.O. court set forth a test for determining the reason­
ableness of a search:

[F]irst, one must consider whether the . . . action was 
justified at its inception; second, one must determine whether 
the search as actually conducted was reasonably related in 
scope to the circumstances which justified the interference 
in the first place.

Id. at 341. A search is “justified at its inception” where a school 
official has reasonable grounds for suspecting that the search 
will turn up evidence that the student has violated or is violating 
the law or school rules. Id. at 341-42. A search is permissible 
in scope where the measures adopted are reasonably related to 
the objectives of the search and are not too intrusive in light of 
the age and sex of the student and the nature of the infraction. Id. 
at 342.

In concluding that T.L.O. did not clearly establish the law on 
student searches such that Herring and Sirmon were on notice 
that their conduct was constitutionally impermissible, the en 
banc court emphasized the general nature of the “reasonableness 
under all the circumstances” standard set forth in T.L.O. (Pet. 
App. 16A) Although T.L.O. identifies factors to consider in



20

defining the permissible scope of a school search, “there is no 
illustration, indication, or hint as to how the enumerated factors 
might come into play when other concrete circumstances are 
faced by school personnel.” (Pet. App. 9A-10A) The en banc 
court also noted the absence of “practical, fact based applica­
tion” of the T.L. O. standard to facts materially similar to those of 
the search in the present case.

The absence from T.L.O. of a narrowly defined reasonable­
ness test appears deliberate and “further suggests that T.L. O. did 
not attempt to establish clearly the contours of a Fourth Amend­
ment right as applied to the wide variety of possible school 
settings different from those involved in T.L. O.” (Pet. App. 20A) 
T.L.O. did not clearly establish the law on student searches:

Faced with a series of abstractions, on the one hand, and a 
declaration of seeming deference to the judgments of school 
officials, on the other, it is difficult to discern how T.L.O. 
could be interpreted to compel the conclusion that these 
defendants — or, more accurately, all reasonable educators 
standing in defendants’ place — should have known that 
their conduct violated a clearly established constitutional 
right.

(Pet. App. 20A) Justice Stevens speaks to this in his dissent in 
T.L.O.'.

The court’s effort to establish a standard that is, at once, 
clear enough to allow searches to be upheld in nearly every 
case, and flexible enough to prohibit obviously unreason­
able intrusions of young adults privacy, only creates uncer­
tainty in the extent of its resolve to prohibit the latter.

469 U.S. 325 at 381. Stevens, J. concurring in part and dissenting 
in part. Justice Brennan also referred to the reasonableness 
standard as “unclear” and “unguided balancing test” and “amor­
phous balancing test” and a “cursory and short sighted test.”



—  21

T.L.O. at 363-370 (Brennan, J. concurring in part and dissenting 
in part.) Justice Brennan predicted that “the reasonableness 
under all the circumstances test will leave teachers and admin­
istrators uncertain as to their authority and will encourage 
excessive fact-based litigation.” Id. at 367.

The reasonableness under all the circumstances test set forth 
in T.L.O. is nothing more than an abstract, general proposition 
which provides absolutely no instruction to school officials as to 
the permissible scope of student searches. T.L.O.'s application 
of this standard does nothing more than given an example of 
what might constitute a reasonable search in the school setting.

Finally, it is relevant that other circuits have also concluded 
that T.L.O. did not clearly establish Fourth Amendment law on 
student searches. In Williams v. Ellington, 936 F.2d 881 (6th Cir. 
1991), the Sixth Circuit commented that “the reasonableness 
standard articulated in New Jersey v. T.L.O. has left courts later 
confronted with the issue either reluctant or unable to define 
what type of official conduct would be subject to a 42 U.S.C. 
§1983 cause of action.” In 1993, the Seventh Circuit— the same 
court that decided Doe v. Renfrow, 631 F.2d 991 (7th Cir. 1980), 
cert, denied, 451U.S. 1022 (1981), commented on “the nebulous 
standards governing student searches.” Cornfield by Lewis v. 
Consolidated School District No. 230, 991 F.2d 1316,1327 (7th 
Cir. 1993). Further, if T.L.O. had clearly established the law on 
all student searches, there would have been no need for the 
Supreme Court to decide in 1995, in Vemonia School District 
47J v.. Acton, 515 U.S. . 115 S.Ct. 2386 (1995) that a school 
district’s policy authorizing urinalysis drug testing of student 
athletes did not violate the Fourth Amendment.

In its en banc decision, the Eleventh Circuit, pursuant to the 
qualified immunity principles espoused by this Court, con­
cluded that T.L.O. did not clearly establish the law on student 
searches such that the respondents should be stripped of quali­



22 —

fied immunity. The court’s finding that the law was not clearly 
established does not conflict with T.L. O. because the facts in the 
cases are completely different. Further, the general nature of the 
reasonableness under all the circumstances standard set forth in 
T.L.O., coupled with a complete lack of factual similarity, 
precludes a finding of clearly established law. While T.L.O. 
identifies factors an official is to consider in defining the scope 
of a student search, T.L. O. does not demonstrate how said factors 
might come into play in different circumstances. Because the 
Eleventh Circuit was appropriate in its determination that T.L. O. 
did not clearly establish the law, and because this determination 
cannot be said to constitute a conflict, none can be said to exist 
between the Eleventh Circuit and this Court. It follows that there 
is no basis for the granting of certiorari on this issue.

B. The Eleventh Circuit’s decision does not conflict 
with decisions of the Sixth and Seventh Circuits or 
the Supreme Court of West Virginia.

The petitioners argue that decisions from the Sixth and Sev­
enth Circuits and the Supreme Court of West Virginia conflict 
with the en banc decision in that decisions of these courts 
recognize a clearly established right of students not to be strip 
searched for minor infractions. (Pet. App. 27-28) This argument 
fails for several reasons.

First, none of the decisions cited by the petitioners are even 
remotely factually similar to the present case. In Doe v. Renfrew" 
after the entire student body was subjected to drug detecting 
canines and a dog alerted to her, one of the plaintiffs was 
searched by school officials. 631 F.2d 91-92 (7th Cir. 1980). In 
Cornfield v. Consolidated High School Distr. No. 230., a sixteen 13

13 Doe v. Renfrow, a 1980 case, cannot be said to have clearly established 
the law on student searches. This case was decided five years before T.L.O., 
at which time there was a question as to whether the Fourth Amendment 
applied to student searches at all.



23

year old student was suspected of crotching drugs. Despite the 
refusal of the student’s parent to consent to a strip search, two 
male school officials conducted the search. 991 F.2d 1316,1319 
(7th Cir. 1993) In Williams v. Ellington, a female high school 
student suspected of using drugs was subjected to a strip search 
by a female school official. 936 F.2d 881, 883 (6th Cir. 1991) 
Finally, in State ex rel. Galford v. Mark Anthony B.. a fourteen 
year old male accused of theft was subjected to a search. 433 
S.E.2d 41, 42-43 (W.Va. 1993) In Galford, no one implicated 
the student in the theft — the school social worker happened 
upon information that the student had been in the classroom 
where the money was stolen. Id. at 42.

While the petitioners assert that these decisions recognize a 
clearly established right of students not to be strip searched for 
minor infractions, such is not the case. The strip search in Doe 
was struck down because it was executed without any individu­
alized suspicion and without reasonable cause. Doe at 92. See 
Cornfield v. Consolidated at 1324. (“Our sharp condemnation of 
the conduct of the school officials in [Doe] stems from the fact 
that the strip search of Doe was executed without any individu­
alized suspicion and without reasonable cause.”) The strip 
search in Cornfield was deemed reasonable in that it was justi­
fied at its inception because there were enough personal obser­
vations to create a reasonable suspicion that the student was 
crotching drugs. The search was permissible in scope because, 
although the student was sixteen and more self-conscious, two 
males performed the search, and the search was conducted in the 
boy’s locker room where no one saw him and there was no 
touching.14 Cornfield at 1323. The search of the high school

14 The court in Cornfield commented that a school board would not be held 
accountable for a failure to train its employees with respect to student 
searches. According to the court, “Given the nebulous standards governing 
student searches, school districts and school district administrators cannot be 
held accountable on this ground because the particular constitutional duty at 
issue is not clear.” Cornfield at 1327.



24

female suspected of using drugs by a female school official at 
issue in Williams was upheld as reasonable. In Williams, the 
court looked to the school’s search policy, which provided:

[A] pupil’s person will not be searched unless there is a 
reasonable suspicion that the pupil is concealing evi­
dence of an illegal ac t . . .  . When a pupil’s person is 
searched, the person conducting the search shall be the 
same sex as the pupil; and a witness of the same sex 
shall be present during the search.

Id.15 In Galford, the search of a fourteen year old male suspected 
of theft, where no one implicated the student, was deemed 
unreasonable.16

The above cases cannot be said to have put the respondents on 
notice that their actions on May 1, 1992, violated the Constitu­
tion. Only Doe and Williams had been decided in May 1992, and 
neither involved a search of an elementary school student sus­
pected of theft. To the extent the petitioners argue the above 
cases should have compelled the Eleventh Circuit to conclude 
the respondents’ actions were unconstitutional, such argument

15 The Williams court noted:

[A] diligent but unsuccessful search for additional guidance from the 
designated jurisdictional pool leads us to a troubling conclusion: the 
reasonableness standard articulated in New Jersey v. T.L.O. has left 
courts later confronted with the issue either reluctant or unable to define 
what type of official conduct would be subject to a 42 U.S.C. §1983 
cause of action.

Williams at 886. The Williams court also emphasized the T.L.O. court’s 
attention to protecting the right of school officials to make discretionary 
decisions. Id.

16 In Galford, the Supreme Court of West Virginia commented that “the 
United States Supreme Court has never decided a case which involved a strip 
search of students, nor did the T.L.O. court indicate whether its reasonable­
ness standard would apply to strip searches of students.” Galford at 45.



25

necessarily fails because not one of the above cases is even 
remotely factually similar to the present case. The Eleventh 
Circuit reached a conclusion based on the facts before it and the 
law in existence in May of 1992. Such does not represent a 
conflict with the Sixth and Seventh Circuits or the Supreme 
Court of West Virginia. As such, there is no basis for the granting 
of certiorari on this issue.

CONCLUSION

Based upon the foregoing, respondents Susannah Herring and 
Melba Sirmon respectfully request that the Petition for a Writ of 
Certiorari be denied.

Respectfully submitted,

VALERIE T. KISOR 
DONALD B. SWEENEY*
RIVES & PETERSON 
1700 Financial Center 
505 North 20th Street 
Birmingham, AL 35203 
(205) 328-8141

Counsel fo r Respondents
* Counsel o f Record 

Dated: October 6, 1997