T.R. v. The Lamar County Board of Education Brief of Plaintiff-Appellant

    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

BRIEF OF PLAINTIFF-APPELLANT

Sherrilyn A. Ifill 
Director-Counsel 

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

Christopher 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 fo r  Plaintiff-Appellant



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 

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

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

interested persons:

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

Defendants/Appellees

2. Boardman, Mark S., Attorney fo r  Defendants/Appellees

3. Brock, Porsha, Plaintiff Appellant

4. Chandran, Ashok, Attorney fo r Plaintiff/Appellant

5. Coogler, L. Scott, District Court Judge

6. Dean, Kathy, Defendant/Appellee

7. Herron, Vance, Defendant

8. Ifill, Sherrilyn A., Attorney fo r  Plaintiff/Appellant

9. Kemmitt, Christopher, Attorney fo r Plaintiff/Appellant

10. Lamar County Board of Education, Defendant

C-l of 2



11. Maxwell Jr., Leroy, Attorney fo r Plaintiff/Appellant

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

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

Plaintiff/Appellant

14. Nelson, Janai S., Attorney fo r Plaintiff/Appellant

15. T.R., Plaintiff/Appellant

16. Russell, Austin, Attorney for Plaintiff/Appellant

17. Spital, Samuel, Attorney fo r Plaintiff/Appellant

18. Stamps, Lisa, Defendant/Appellee

19. Watkins, Katherine, Attorney fo r Defendants/Appellees

20. Yeomans, Georgina C., Attorney fo r  Plaintiff/Appellant

C-2 of 2



STATEMENT REGARDING ORAL ARGUMENT

Plaintiff-Appellant respectfully requests that the Court hear oral argument in 

this case. The case implicates important questions regarding the protection of federal 

Constitutional rights as well as state causes of action and warrants oral argument to 

ensure their full and fair resolution.

1



TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE 
DISCLOSURE STATEMENT.................................................................................... Cl

STATEMENT REGARDING ORAL ARGUMENT...................................................i

TABLE OF AUTHORITIES......................................................................................... iv

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

STATEMENT OF JURISDICTION...............................................................................4

STATEMENT OF ISSUES PRESENTED....................................................................4

STATEMENT OF THE CASE....................................................................................... 6

I. Factual Background..................................................................................................... 6

II. Procedural History...................................................................................................... 11

STANDARD OF REVIEW........................................................................................... 12

SUMMARY OF THE ARGUMENT...........................................................................13

ARGUMENT...................................................................................................................16

I. THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS QUALIFIED 
IMMUNITY ON T.R.’S FOURTH AMENDMENT CLAIM.............................. 16

A. Defendants Violated T.R.’s Fourth Amendment Rights Each Time They 
Forced Her to Remove Her Clothing, Lift Her Breasts, and Bend Over....... 17

1 . The District Court erred by failing to separately analyze the two strip
searches T.R. endured........................................................................................ 17

2. Neither search was justified at its inception................................................... 20

a. The first search was premised entirely on an inadequate, general
suspicion......................................................................................................... 20

b. Because the first strip search conclusively determined that T.R. did not
possess drugs, the second search had no justification...............................24

ii



3. The scope of each search was impermissible .27

B. The District Court Improperly Granted Defendants Qualified Immunity..... 30

1. Because Defendants acted outside the scope of their discretionary authority,
they are not entitled to qualified immunity.................................................... 31

2. Defendants are not entitled to qualified immunity for the first strip search
because the right they violated was clearly established................................34

3. Any reasonable school official would know that strip-searching a student 
without any basis to suspect contraband violates the Fourth Amendment. 41

a. It has been clear for decades that a fruitless strip search of a student
eliminates any basis to conduct a subsequent strip search.......................41

b. The unconstitutionality of the second strip search should have been 
obvious even absent specific precedent..................................................... 43

II.THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS’ MOTION 
FOR SUMMARY JUDGMENT ON PLAINTIFF’S STATE LAW CLAIMS..44

A. Defendants Are Not Entitled to State-Agent Immunity...................................45

B. The Record Supports T.R.’s Claim for Outrage................................................47

CONCLUSION...............................................................................................................50

CERTIFICATE OF COMPLIANCE............................................................................51

iii



TABLE OF AUTHORITIES

Cases Page(s)

Bonner v. City o f  Prichard,
661 F.2d 1206 (11th Cir. 1981) (en banc)............................................................. 18

Brent v. Ashley,
247 F.3d 1294 (11th Cir. 2001)................................................................. 24, 41,46

Burton v. Tampa Hous. Auth.,
271 F.3d 1274 (11th Cir. 2001).............................................................................. 15

Clark v. City o f  Atlanta,
544 F. App’x 848 (11th Cir. 2013).........................................................................24

Coolidge v. New Hampshire,
403 U.S. 443 (1971)...................................................................................................18

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

Davis v. White,
No. 7:17-cv-01533-LSC, 2020 WL 4732073 (N.D. Ala. Aug. 14,
2020) (Coogler, J .) .................................................................................................... 48

Denson v. United States,
574 F.3d 1318 (11th Cir. 2009) (Carnes, J., concurring).................................... 25

District o f  Columbia v. Wesby,
138 S. Ct. 577 (2018)..... ..........................................................................................16

Doe v. Renfrow,
631 F.2d 91 (7th Cir. 1980)..................................................................................... 48

Est. o f  Cummings v. Davenport,
906 F.3d 934 (11th Cir. 2018)................................................................................ 32

Evans v. Stephens,
351 F.3d 485 (11th Cir. 2003), rev’d on other grounds en banc,
407 F.3d 1272 (11th Cir. 2005).............................................................................. 24

IV



Evans v. Stephens,
407 F.3d 1272 (11th Cir. 2005)................................................................. 25, 42, 43

Hodges v. Stanley,
712 F.2d 34 (2d Cir. 1983)......................................................................................26

Holloman ex rel. Holloman v. Harland,
370 F.3d 1252 (11th Cir. 2004)...........................................................14, 16,31,32

Hope v. Pelzer,
536 U.S. 730 (2002)..................................................................................................43

Jenkins by Hall v. Talladega City Bd. ofEduc.,
115 F.3d 821 (11th Cir. 1997)................................................................................ 41

Jones v. Fransen,
857 F.3d 843 (11th Cir. 2017)................................................................................ 34

Ex parte Kennedy,
992 So. 2d 1276 (Ala. 2008)....................................................................................45

Lenz v. Winburn,
51 F.3d 1540 (11th Cir. 1995)................................................................................ 32

Littell v. Houston Indep. Sch. Dist.,
894 F.3d 616 (5th Cir. 2018).................................................................................. 48

Little v. Robinson,
72 So. 3d 1168 (Ala. 2011)......................................................................................47

Ex parte Lumbermen’s Underwriting All.,
662 So. 2d 1133 (Ala. 1995)................................................................................... 48

N.G. v. Connecticut,
382 F.3d 225 (2d Cir. 2004)................................................................................... 18

New Jersey v. T. L. O.,
469 U.S. 325 (1985).....................................................................................18, 19, 20

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

v



Taylor v. Riojas,
141 S. Ct. 52 (2020) (per curiam).....................................................................43, 44

Terry v. Ohio,
392 U.S. 1 (1968)......................................................................................................17

United States v. Franklin,
323 F.3d 1298 (11th Cir. 2003).............................................................................. 24

United States v. Piatt,
576 F.2d 659 (5th Cir. 1978)............................................................................ 17,18

United States v. Puglisi,
723 F.2d 779 (11th Cir. 1984)................................................................................ 46

United States v. Ross,
964 F.3d 1034 (11 th Cir. 2020) (en banc)............................................................. 18

Vinyard v. Wilson,
311 F.3d 1340 (11th Cir. 2002).............................................................................. 33

Wilson v. Univ. o f  Ala. Health Servs. Found., P.C.,
266 So. 3d 674 (Ala. 2017)......................................................................................47

Statutes

28 U.S.C. § 1291...............................................................................................................4

28U.S.C. § 1331.............................................................................................................. 4

28 U.S.C. § 1367...............................................................................................................4

42 U.S.C. § 1983...............................................................................................................4

vi



INTRODUCTION

Fourteen-year-old T.R. was nearing the end of her school day at Sulligent 

High School on August 28, 2017, when she was removed from agriculture class, 

taken to another part of campus, and forced— twice—by Defendants Dr. Lisa Stamps 

and Kathy Dean to strip naked, bend over, and lift her breasts in front of a window 

open to public corridors. T.R. was subjected to this search to dispel a generalized 

suspicion held by the principal and counselor of her school that she might have drugs 

somewhere on her person, which she did not. Humiliated and traumatized by this 

experience, T.R. has grown depressed and anxious, and regularly experiences 

flashbacks to these strip searches.

T.R., through her mother Porsha Brock, sued Defendants Dean and Stamps 

for the violation of her Fourth Amendment rights, intentional infliction of emotional 

distress, and invasion of privacy. The District Court granted summary judgment to 

Defendants. In so doing, it misapplied the summary judgment standard, the rules 

regarding qualified immunity, clearly established Fourth Amendment law, and 

Alabama state law. Although the District Court nominally acknowledged that the 

record, viewed most favorably to T.R., shows Defendants conducted two separate 

strip searches at two separate times, the District Court failed to analyze the facts 

known to Defendants at the moment of each strip search, as precedent from this 

Court and the Supreme Court plainly requires. This led the District Court to hold

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that the first strip search was justified based on a universe of facts that included 

information Defendants were not aware of until after that search took place, and to 

ignore the information Defendants learned from the first search when analyzing the 

constitutionality of the second search.

Properly analyzed, the record establishes that Defendants first strip-searched1 

T.R. based solely on an odor of marijuana in the agriculture classroom and their 

discovery of drug paraphernalia in T.R.’s backpack. But these two facts did not give 

rise to a specific suspicion that T.R. had drugs hidden inside her underwear, which 

clear Supreme Court precedent requires before a school official may conduct a strip 

search of a student. Furthermore, once the first strip search revealed no drugs 

anywhere on T.R.’s body, any suspicion that she possessed drugs was eliminated. 

T.R. remained in Defendants’ custody, under the watch of school officials, for the 

entire period between the two searches, and thus had no opportunity to hide any 

drugs in her underwear. Nonetheless, Defendants subjected her to another strip 

search before she was allowed to leave, based solely on a school “protocol” that they 

claimed required them to “double check” her body but that is nowhere in the record.

1 For purposes of this brief, the term “strip search” refers to searches that 
include searching inside a person’s underwear. See, e.g., Safford Unified Sch. Dist. 
No. 1 v. Redding, 557 U.S. 364, 368 (2009) (discussing scenario in which student’s 
bra and underpants were searched); D.H. by Dawson v. Clayton Cnty. Sch. Dist., 830 
F.3d 1306, 1311 (11th Cir. 2016) (discussing search requiring student to remove his 
outer clothing and underwear).

2



That strip search lacked any justification, and thus violated clear Fourth Amendment 

law.

Compounding these errors, the District Court ignored that Lamar County 

Board of Education (“LCBE”) policy explicitly forbade Defendants from conducting 

a strip search without the express permission of the superintendent—permission they 

did not receive. Consequently, Defendants acted outside of their discretionary 

authority and were categorically ineligible for the protections of either qualified 

immunity on T.R.’s Fourth Amendment claim or state-agent immunity for T.R.’s 

invasion of privacy claim.

Finally, the District Court took an unduly narrow view of the tort of outrage 

under Alabama law, treating three examples provided by the Alabama Supreme 

Court as an exhaustive list of situations where the tort may lie. But taken in the light 

most favorable to T.R., the record here establishes precisely the sort of extreme and 

outrageous conduct that should be submitted to a jury: Defendants subjected a 

fourteen-year-old girl to a public strip search twice, forcing her to contort her body 

and lift her breasts, with no justification whatsoever, and in clear violation of their 

own policy.

The District Court’s grant of summary judgment should be reversed, and this 

case remanded for trial.

3



ST AT EMENT OF JURISDICTION

The District Court properly exercised jurisdiction over Plaintiffs federal 

claim pursuant to 28 U.S.C. § 1331, as that claim arises under 42 U.S.C. § 1983 and 

the Fourth Amendment to the United States Constitution. The District Court also 

properly exercised supplemental jurisdiction over Plaintiffs state law claims for 

invasion of privacy and intentional infliction of emotional distress pursuant to 28 

U.S.C. § 1367, as all claims hinge on the same set of facts such that they form part 

of the same case or controversy.

The District Court entered summary judgment in favor of Defendants on all 

claims in an opinion and order dated June 22, 2021. That order constituted a final 

order over which this Court has jurisdiction pursuant to 28 U.S.C. § 1291. Plaintiff 

timely filed a notice of appeal as to her federal Fourth Amendment claim and her 

state law intentional infliction of emotional distress claim on July 19, 2021, properly 

invoking this Court’s jurisdiction.

STATEMENT OF ISSUES PRESENTED

1. Did the District Court err in refusing to separately consider the basis for 

each of the two strip searches of Plaintiff?

2. Did the District Court err in holding that a reasonable school official could 

believe that, as of August 28, 2017, the Constitution permitted them to strip-search 

a teenage girl and force her to lift her breasts and bend in front of an open window

4



where the search was based on a generalized suspicion that the student possessed 

drugs, rather than any specific suspicion that drugs were hidden inside her clothing, 

and where the search could have been accomplished through less intrusive means?

3. Would a reasonable school official believe that, as of August 28, 2017, the 

Constitution permitted them to ignore the results of a strip search revealing no drugs 

or contraband of any kind on a teenage student’s body and force the student to once 

again completely disrobe, lift her breasts, and bend over?

4. Did the District Court err in determining that Defendants were entitled to 

qualified immunity for twice strip-searching T.R. where qualified immunity can be 

granted solely to officials who act within the scope of their discretionary authority; 

LCBE policy states that only the superintendent may give approval for a strip search; 

and the Defendants neither sought nor received permission from the Superintendent 

to conduct the two strip searches at issue here?

5. Did the District Court err in holding that Defendants were entitled to state- 

agent immunity for Plaintiffs invasion of privacy claim, despite the fact that such 

immunity is only available to state actors who act within the bounds of their 

authority, and Defendants ignored express restrictions on their ability to conduct 

strip searches when they forced T.R. to disrobe without seeking or receiving 

permission from the Superintendent?

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6. Did the District Court err in holding that it was not “extreme and 

outrageous” for Defendants to make a fourteen-year-old child remove all her 

clothing, lift her breasts, and bend over with arms raised in front of an uncovered 

window despite knowing that she had no contraband hidden inside her clothing, in 

light of Alabama precedent sustaining claims for outrage premised on less egregious 

conduct?

STATEMENT OF THE CASE

I. FACTUAL BACKGROUND

On August 27, 2017, T.R., a fourteen-year-old eighth grade special education 

student at Sulligent High School in Lamar County, Alabama, spent the night at a 

friend’s house before going to school the next morning. Doc 43-1 - Pg 34; Doc 46- 

6 - Pg 1. She had with her two plastic bags containing prescription medication that 

she was supposed to take at night and then in the morning. Doc. 43-1 - Pg 35-36. 

While at her friend’s house on the evening of August 27, T.R. and her friend smoked 

marijuana. Id. at 38.

The next day, T.R. went to school. She had forgotten to take her prescription 

medications both at night and in the morning, so she had those pills in her backpack. 

Id. at 37. T.R. also had with her AZO and Niacin, two over-the-counter supplements. 

And she had marijuana debris (stems and seeds), rolling papers, and two lighters—

6



but no actual marijuana— left over in her backpack from smoking the night before. 

Id. at 38.

Toward the end of the school day, when T.R. was in agriculture class, her 

teacher Joseph Fowler detected the smell of marijuana. Doc 43-8 - Pg 2. T.R. smelled 

it as well. Doc 43-1 - Pg 38-39, 42-43. The smell was so strong that T.R. sprayed 

some cologne to try to counteract it. Id. at 43. T.R. did not light a marijuana cigarette 

in class and has no knowledge of who did. Id. at 42, 45.

Mr. Fowler called the school’s principal, Dr. Lisa Stamps, and its assistant 

principal, Matthew Byars, to investigate the marijuana smell. Id. at 45-46; Doc 43- 

6 - Pg 2; Doc 43-3 - Pg 2; Doc 43-8 - Pg 2. Dr. Stamps and Mr. Byars took every 

student’s backpack from the agriculture classroom into a smaller room in the 

agriculture building and searched the students’ backpacks for marijuana. Doc 43-1 - 

Pg 45-46. After finding the medicine, supplements, marijuana debris, rolling papers, 

and lighters in T.R.’s backpack, Dr. Stamps and Mr. Byars called T.R.’s mother, 

called law enforcement, and took T.R. to see the school counselor, Kathy Dean, in 

her office in the main school building. Id. at 46; Doc 43-6 - Pg 2; Doc 43-3 - Pg 2 - 

3. Dr. Stamps, Mr. Byars, and Mr. Fowler did not conduct any search of the 

agriculture classroom before taking T.R. to Ms. Dean’s office. Had they done so, the 

record suggests they would have found a marijuana cigarette about half the size of a 

pen in plain view under a table. Doc 43-6 - Pg 3^1, 8; Doc 43-8 - Pg 2.

7



Before they got to Ms. Dean’s office, Mr. Byars told Dr. Stamps to “ensure 

that T.R. did not have any marijuana hidden on her because the remnants of the joint 

that were smoked in the Ag classroom had not yet been found.” Doc 43-6 - Pg 2. 

Once in Ms. Dean’s office, Dr. Stamps told T.R. to remove all her clothes, including 

her undergarments, in front of Dr. Stamps and Ms. Dean, to make sure T.R. did not 

have marijuana hidden on her person. The LCBE Policy Manual requires “specific 

approval of the Superintendent” before school administrators may conduct any 

search more thorough than a private pat-down or “search of personal items and 

clothing.” Doc 46-5 - Pg 5. Neither Dr. Stamps nor Ms. Dean requested the 

Superintendent’s approval before conducting a strip search. See Doc 43-5 - Pg 2; 

Doc 46-5 - Pg 5. Nor did Dr. Stamps or Ms. Dean attempt a pocket search or a pat- 

down prior to ordering T.R. to strip naked.

Once T.R. was completely naked, Dr. Stamps told her to lift her breasts, then 

bend over with her arms raised over her head for inspection. Doc 43-2 - Pg 85; Doc 

43-1 - Pg 127-128. The search revealed nothing; T.R. had no drugs inside her 

clothing or anywhere on her body. Dr. Stamps then allowed T.R. to put her 

undergarments and a pair of boxer shorts back on. Doc 43-1 - Pg 126-128. For the 

entire duration of this strip search, the window in Ms. Dean’s office—which looked 

out into a public corridor by the school cafeteria—was uncovered, meaning that T.R. 

was potentially visible to others in the school throughout the search. Id. at 130-131.

8



After this first strip search, the school nurse, B.J. Moore, came to speak with 

T.R. According to Dr. Stamps, while Nurse Moore and T.R. were speaking, Dr. 

Stamps spoke with two students who told her that they had seen T.R. light a 

marijuana cigarette in class and then spray perfume to mask the scent. Doc 43-3 - Pg 

3.2 At some point thereafter, T.R.’s mother, Porsha Brock, and T.R.’s older sister, 

Alexus Real (“Alexus”), came into Ms. Dean’s office. Doc 43-1 - Pg 128; Doc 43-2 

- Pg 45-46, 68; Doc 46-1 - Pg 1; Doc 43-7 - Pg 2; Doc 43-3 - Pg 3; Doc 43-4 - Pg 

3. At that time, T.R. remained mostly unclothed from the first strip search, sitting in 

only her undergarments and boxer shorts.

While in Ms. Dean’s office, T.R. denied lighting a marijuana cigarette in 

agriculture class. Doc 43-1 - Pg 42. She did, however, admit that she had smoked 

marijuana the night before, that she had first smoked marijuana at age 11, and that 

she had once used her snack money to buy marijuana approximately two weeks 

earlier. Id. at 50-51, 56-57; Doc 43-2 - Pg 46-51; Doc 43-3 - Pg 3-4; Doc 46-6.

Following this conversation, Dr. Stamps, Ms. Dean, T.R., Ms. Brock, and 

Alexus called T.R.’s therapist, Penny Mitchell, to discuss a possible rehabilitation

2 Dr. Stamps’s declaration does not make clear when exactly this conversation 
took place, but appears to place it after Nurse Moore entered Ms. Dean’s office and 
before Ms. Brock and Alexus arrived, meaning it happened after the first strip search, 
but before the second. See Doc 43-3 - Pg 3 (discussing calling Nurse Moore into Ms. 
Dean’s office, then learning “two students wished to speak with” her, then discussing 
Ms. Brock’s and Alexus’s arrival to the school).

9



plan for T.R. Doc 43-2 - Pg 53-58; Doc 43-4 - Pg 3. Dr. Stamps then explained to 

T.R., Ms. Brock, and Alexus that T.R. was subject to either alternative school or 

expulsion based on the items found in her backpack that day. Doc 43-2 - Pg 60-61; 

Doc 43-3 - Pg 4.

At the end of this meeting, before allowing T.R. and her family to leave Ms. 

Dean’s office, Dr. Stamps once again told T.R. to take all her clothes off to make 

sure that T.R. did not have any drugs on her person, claiming that it was “protocol.” 

Doc 43-1 - Pg 128-129; Doc 43-2 - Pg 63-66; Doc 46-1 - Pg 1-2. Alexus objected 

to the second search, asking why it needed to be done after the first search revealed 

nothing. Doc 46-1 - Pg 1; Doc 43-2 - Pg 64. Dr. Stamps and Ms. Dean provided no 

explanation, and simply “insisted it be done again.” Doc 46-1 - Pg 2. T.R. undressed 

until she was completely naked. Doc 43-1 - Pg 129-130. After T.R. had already 

started to remove her clothes, T.R.’s sister Alexus took a board and covered the 

window in Ms. Dean’s office to prevent others in the school from watching T.R. 

disrobe. Id. at 131; Doc 43-2 - Pg 82-85. Dr. Stamps again asked T.R. to lift her 

breasts, then bend over with her arms raised. Doc 43-2 - Pg 85. Once again, this 

search revealed no contraband anywhere on T.R.’s person. Finally, T.R., Ms. Brock, 

and Alexus were permitted to leave. Id. at 71-72; Doc 43-1 - Pg 132.

10



The next morning, as Mr. Fowler was sweeping his classroom, he found a 

partially burned marijuana cigarette roughly half the length of a pen on the floor of 

his classroom. Doc 43-6 - Pg 3-4, 8; Doc 43-8 - Pg 2.

T.R. was expelled after this incident and never returned to school. Doc 43-1 - 

Pg 134, 10. She has suffered depression, panic attacks, and flashbacks regarding the 

strip searches. Id. at 109; Doc 43-2 - Pg 89-91.

II. PROCEDURAL HISTORY

T.R. commenced the instant action on July 15,2019, alleging that Defendants’ 

conduct violated the Fourth Amendment and constituted an invasion of privacy and 

intentional infliction of emotional distress under Alabama law.3 On September 28, 

2020, Defendants moved for summary judgment on all three claims, which the 

District Court granted on June 22,2021. In its decision, the District Court determined 

that Defendants were entitled to qualified immunity on T.R.’s Fourth Amendment 

claim; Defendants were entitled to state-agent immunity on Plaintiff s invasion of 

privacy claim; and Defendants’ conduct was not one of the three enumerated classes 

of cases in which Alabama has recognized the tort of intentional infliction of 

emotional distress.

3 T.R. initially brought certain additional claims and named additional parties 
as defendants; those claims and parties are not before this Court.

11



In its opinion, the District Court set forth a factual narrative that was 

materially different from the facts set forth above. First, the District Court described 

the first strip search as taking place after T.R. spoke with Nurse Moore about her 

prior drug use and about the pills that were found in her backpack, see Doc 65 - Pg 

3, despite evidence in the record suggesting that it took place before T.R. spoke with 

Nurse Moore. Second, the District Court reasoned that Defendants had 

individualized suspicion linking T.R. to “the missing marijuana” based on two 

student reports that T.R. was smoking marijuana in class, id. at 12 n.3, despite the 

reasonable inference drawn from Dr. Stamps’s declaration that the student reports 

came after the initial strip search. See Doc 43-3 - Pg 2-3. Finally, the District Court 

did not reference the fact that T.R. remained in the Defendants’ custody for the entire 

period between the first strip search and the second, leaving T.R. no opportunity to 

obtain and hide drugs after the first search conclusively determined she had no 

contraband.

STANDARD OF REVIEW

This Court reviews the District Court’s grant of summary judgment de novo, 

viewing the evidence and drawing all reasonable inferences in the light most 

favorable to the non-movant. See Burton v. Tampa Hons. Auth., 271 F.3d 1274, 

1276-77 (11th Cir. 2001).

12



SUMM ARY OF THE ARGUMENT

The District Court’s grant of summary judgment to Defendants was error for 

several reasons.

First, Defendants violated the Fourth Amendment in conducting both 

searches, as neither search was justified at its inception or reasonable in scope. A 

strip search that involves the removal of underwear cannot be justified at its 

inception based solely on a general suspicion—no matter how well-founded—that a 

student is in possession of drugs. Rather, such an intrusive search is permissible only 

if officials identify specific evidence that drugs are hidden inside the student’s 

underwear. No such evidence existed at the moment officials decided to strip-search 

T.R. the first time. Thus, Defendants’ decision to make T.R. remove all her clothing, 

bend over, and lift her breasts in front of an uncovered window violated the Fourth 

Amendment.

Furthermore, there is no justification for the Defendants’ second strip search. 

The District Court was required to analyze each individual search separately, paying 

due attention to the facts uncovered during the first search. Here, Defendants’ first 

strip search conclusively demonstrated that T.R. had no drugs inside her clothing— 

eliminating any justification for the second strip search. The District Court ignored 

this fact, and thus failed to properly apply this Court’s clear directives.

13



Defendants’ strip searches of T.R. were also unconstitutionally excessive in 

scope. In the context of a strip search, officials cannot “escalate a strip search of a 

student by forcing [her] to remove [her] underwear”—much less remove her 

underwear, raise her breasts, and bend over— when the search could be conducted 

by less intrusive means like pulling her waistband or bra away from her body. D.H. 

by Dawson, 830 F.3d at 1312, 1318 n.8. Viewing the facts in the light most favorable 

to T.R., Defendants were “no more likely to find marijuana on [T.R.] by performing 

a fully nude strip search of [T.R.] in front of [an open window]” and then forcing 

her to lift her breasts and bend over “than [they] would have had [they] employed 

substantially less invasive means.” Id. at 1317.

Second, the District Court erroneously held that Defendants were entitled to 

qualified immunity by ignoring the antecedent question of whether Defendants were 

acting within the scope of their authority and by misinterpreting controlling 

precedent from the Supreme Court and this Court. Qualified immunity protects 

government officials from suit “only when exercising powers that legitimately form 

a part of their jobs.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266— 

67 (11th Cir. 2004). LCBE’s written policy states that school officials may not 

conduct a strip search without the “specific approval of the Superintendent.” Doc 43 

- Pg 25. And it is undisputed that neither Defendant sought—let alone received—

14



the superintendent’s approval to conduct a strip search. Because Defendants acted 

outside of their discretionary authority, qualified immunity is unavailable to them.

Additionally, Defendants ignored decades of precedent by first strip-searching 

T.R. without any specific basis to believe they would find drugs inside her 

underwear, and then ignoring the results of that search to force her to strip naked 

once more before allowing her to leave. Defendants also ignored clearly established 

case law holding that school officials cannot force a student to strip entirely naked 

where, as here, the search could be accomplished through less intrusive means. Each 

of these misapplications of qualified immunity independently warrants reversal.

Third, the District Court’s analysis of state-agent immunity ignored that 

Defendants acted beyond the express bounds on their authority to conduct strip 

searches set by official LCBE policy. Under these circumstances, no state-agent 

immunity is available.

Fourth, and finally, the District Court took an inappropriately narrow view of 

what may constitute intentional infliction of emotional distress under Alabama law. 

Defendants’ conduct here shocks the conscience and should be permitted to go to a 

jury.

15



ARGUM ENT

I. THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS 
QUALIFIED IMMUNITY ON T.R.’S FOURTH AMENDMENT 
CLAIM.

Defendants are not entitled to qualified immunity when they have “violated a 

federal statutory or constitutional right” that was “clearly established” at the time of 

the violation. District o f  Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). Moreover, 

qualified immunity is available only when officials are accused of a rights-violation 

that occurred while they were “exercising powers that legitimately form a part of 

their jobs.” Holloman ex rel. Holloman, 370 F.3d at 1266-67. Officials do not enjoy 

the doctrine’s protections when they act outside their authority.

Defendants violated T.R.’s Fourth Amendment rights each time they strip- 

searched her. At no point did Defendants learn of or obtain any evidence suggesting 

that T.R. had drugs hidden inside her clothing or underwear, leaving only their 

inchoate and general suspicion that she possessed drugs. This was squarely 

insufficient under settled Supreme Court precedent. Nor did Defendants attempt less 

intrusive methods of checking T.R. for drugs, such as conducting a pat-down of her 

clothing or having T.R. stretch and shake the elastic of her bra and underwear, before 

forcing her to strip naked, lift her breasts, and bend over in front of an uncovered 

window.

16



Moreover, Defendants are not entitled to qualified immunity for two 

independent reasons. First, the District Court ignored undisputed evidence that 

Defendants disregarded express LCBE policy by strip-searching T.R. without 

seeking or receiving permission from the superintendent. Because Defendants were 

not acting within their authority in strip-searching T.R., qualified immunity cannot 

shield their conduct regardless of whether the law was clearly established. Second, 

even if Defendants acted within the scope of their authority, both searches violated 

clearly established law. It has long been clear that strip searches for contraband may 

only be justified where officials have a specific basis to believe that the contraband 

is stored inside a student’s underwear, and where less intrusive searches are either 

ineffective or infeasible.

A. Defendants Violated T.R.’s Fourth Amendment Rights Each Time 
They Forced Her to Remove Her Clothing, Lift Her Breasts, and 
Bend Over.

1. The District Court erred by failing to separately analyze the 
two strip searches T.R. endured.

The District Court first erred when it failed to separately analyze the two strip 

searches to determine whether each search was supported by the requisite level of 

suspicion. Despite recognizing that the summary judgment record set forth two 

distinct strip searches, Doc 65 - Pg 4, 12, 20, the District Court did not analyze each 

search individually to determine whether each search was reasonable. That error of 

law infected the District Court’s entire analysis.

17



The Fourth Amendment requires that any search be justified at its inception. 

See Terry v. Ohio, 392 U.S. 1, 19-20 (1968). When “two separate searches [are] 

conducted[,] each search must have an independent justification.” United States v. 

Piatt, 576 F.2d 659, 660 (5th Cir. 1978)4; accord Coolidge v. New Hampshire, 403 

U.S. 443, 467 (1971) (“ [A]ny intrusion in the way of search or seizure is an evil, so 

that no intrusion at all is justified without a careful prior determination of 

necessity.”); N.G. v. Connecticut, 382 F.3d 225, 233-34 (2d Cir. 2004) (separately 

analyzing justification for two strip searches of juvenile detainees between which 

detainees were under continuous supervision). That is the case even when multiple 

searches occur within the context of one encounter between a state actor and a 

private individual. See Piatt, 576 F.2d at 660-61 (treating two entries into 

defendant’s automobile in the course of one arrest as two separate searches); see also 

United States v. Ross, 964 F.3d 1034, 1040 (11th Cir. 2020) (en banc) (considering 

“in turn” the constitutionality of two separate searches of defendant’s motel room, 

conducted within two hours of each other).

The Supreme Court applied this fundamental Fourth Amendment requirement 

in New Jersey v. T.L.O., 469 U.S. 325 (1985). In that case, the respondent T.L.O. 

was found smoking cigarettes in her high school bathroom. The school’s Assistant

4 Fifth Circuit precedent predating September 30, 1981, is binding in the 
Eleventh Circuit. Bonner v. City o f  Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) 
(en banc).

18



Vice Principal demanded to see T.L.O.’s purse and, upon opening it, saw a pack of 

cigarettes which he then removed. When he removed the cigarettes, he saw cigarette 

rolling papers, which he associated with marijuana use. He then “proceeded to search 

the purse thoroughly,” finding a small amount of marijuana, drug paraphernalia, and 

other items suggesting T.L.O. was selling marijuana. Id. at 328.

The Supreme Court characterized this sequence of events as “two separate 

searches,” the first being the search for cigarettes and the second being the search 

for marijuana. Id. at 343-44. Each search required separate justification under the 

Fourth Amendment, and because the justification for the second search arose when 

the Assistant Vice Principle saw cigarette rolling papers during the first search, if 

the first search lacked reasonableness, then the second search was also unreasonable. 

Id.

Here, the summary judgment record establishes that school officials 

conducted two separate strip searches of T.R. See supra at 9-10. The District Court 

was thus obligated to separately consider the reasonableness of each search at its 

inception. The District Court declined to do so, instead disposing of T.R.’s Fourth 

Amendment claim in part by concluding that Defendants had individualized 

suspicion to search T.R. the first time. Doc 65 - Pg 12 (“The defendants here had 

individualized suspicion linking T.R. to the missing marijuana, at least for the first 

search.”). The District Court then stated, in a footnote, that it did not need to answer

19



the question whether the “defendants lacked reasonable, individualized suspicion for 

the second search.” Id. at 12 n.3. The District Court cited no authority in support of 

this assertion, and there is no basis in law or reason for its failure to assess whether 

the second search was reasonable.

That failure had a material impact on the outcome of the case. By conflating 

the two searches into one analysis, the District Court misidentified the universe of 

facts known to Defendants before each search and failed to draw inferences in T.R.’s 

favor, as it was required to do. Specifically, the District Court erroneously relied on 

the reports Dr. Stamps received from two student-witnesses in finding reasonable 

suspicion for the first strip search despite the fact that, in the light most favorable to 

T.R., those reports were received after the first strip search occurred. See Doc 65 - 

Pg3 ; see also supra at 9. Similarly, the District Court failed to acknowledge that the 

first search revealed no drugs, and that T.R. remained in Defendants’ custody 

between the two searches; as discussed further infra, Section 1(A)(2)(b)), those facts 

vitiated any suspicion that could have justified the second strip search.

2. Neither search was justified at its inception.

a. The first search was premised entirely on an inadequate, 
general suspicion.

In the school context, “[determining the reasonableness of any search” 

requires one to first “consider ‘whether the . . .  action was justified at its inception.’” 

T.L.O., 469 U.S. at 341 (quoting Terry, 392 U.S. at 20). Because “a strip search is a

20



‘categorically distinct’ type of search, [it] require[es] distinct elements of 

justification . . D.H. by Dawson, 830 F.3d at 1314 (quoting Safford, 557 U.S. at 

374).5 Consequently, school officials may not conduct a strip search unless they hold 

“‘a reasonable suspicion . . .  of resort to underwear for hiding evidence’” of 

contraband.’” Id. (quoting Safford, 557 U.S. at 377). And their suspicion must be 

justified by “‘suspected facts.’” Id. (quoting Safford, 557 U.S. at 376). ‘“ [G]eneral 

background possibilities fall short.’” Id. Such “suspected facts” must include 

evidence that would provide school officials reason to believe that they would find 

contraband in a student’s underwear—not merely reason to suspect that the student 

might possess contraband generally.

Examples of such evidence include (1) evidence of a general practice among 

students at the particular school of hiding contraband in their underwear; (2) a 

specific report from a witness that the student had hidden contraband in her 

underwear; or (3) finding contraband hidden in the underwear of someone 

collaborating with the student. Safford, 557 U.S. at 376, 378. Thus, this Court has 

found a strip search of a student was justified at its inception where officials had 

discovered “well-hidden marijuana on three students” that same day; one of those 

other students told school officials that the student also had marijuana; and school

5 The School District acknowledges that strip searches are uniquely invasive 
by requiring express permission from the Superintendent before they can be 
performed. See Doc 46-5 - Pg 5.

21



officials understood that marijuana had been discovered in the underpants of 

multiple students that day. D.H. by Dawson, 830 F.3d at 1316. “[V]iewed together,” 

these facts went “beyond the ‘general background possibilities’ proscribed by the 

Supreme Court,’ and provided school officials with the requisite “‘reasonable 

suspicion . . .  of resort to underwear for hiding evidence of wrongdoing.’” Id. at 

1316, 1317 (quoting Safford, 557 U.S. at 376, 377).

No such suspicion existed here. At the time that Defendants decided to strip- 

search T.R., they knew only the following facts: 1) someone had smoked a marijuana 

cigarette in T.R.’s class; 2) T.R.’s backpack contained marijuana seeds and stems 

and rolling papers; and 3) T.R. denied that she had smoked marijuana.6 At most, 

these facts created precisely the kind of “background possibility]” that is wholly 

insufficient to conduct a strip search.

The Supreme Court’s decision in Safford Unified School District No. 1 is 

instructive. There, school officials strip-searched April Redding, a middle-school 

student, after learning that certain students were bringing pills and weapons to 

campus and that one student had gotten sick from taking the pills; discovering a

6 The District Court’s decision states that two students told Dr. Stamps that 
they had seen T.R. smoke a marijuana cigarette in class before the strip search, and 
the District Court relied on that fact in its analysis. See Doc 65 -  Pg 12 n.3. The 
summary judgment record does not support this assertion, however. Dr. Stamps 
heard these rumors after the first strip search. See supra at 9.

22



binder owned by Ms. Redding and possessed by Ms. Redding’s friend that contained 

weapons and prescription-strength ibuprofen and naproxen; and receiving a report 

that Ms. Redding “was giving these pills to fellow students.” Safford, 557 U.S. at 

368-73. The Supreme Court held that this evidence supported a search of Ms. 

Redding’s backpack and outer clothing but provided only a “general background 

possibility]” of finding contraband in her underwear, rendering the decision to strip 

search her a violation of the Fourth Amendment. Id. at 374, 376, 379.

Given the paucity of information at hand here, Defendants had even less basis 

to suspect T.R. was hiding drugs in her underwear than the officials in Safford. At 

the time of the first strip search, nobody had told Defendants that T.R. smoked 

marijuana in class or that she had hidden marijuana on her person. And Defendants 

had done nothing to eliminate the many other potential locations of the marijuana 

cigarette. They had not conducted even a cursory search of the classroom to see 

whether someone had discarded the marijuana cigarette on the floor (they had), or 

in a trash can. Defendants had not questioned or searched the person of any of the 

other students in class. And common sense indicates that a student would be unlikely 

to hide a marijuana cigarette that was burning mere moments earlier inside her 

underwear pressed against her skin. As the Supreme Court held in Safford, that 

absence of evidence that T.R. had hidden contraband in her underwear meant that

23



Defendants lacked reasonable suspicion to support “the categorically extreme 

intrusiveness of a search down to [her] body.” Id. at 376.

b. Because the first strip search conclusively determined
that T.R. did not possess drugs, the second search had no 
justification.

Even if Defendants had been justified in stripping T.R. fully naked the first 

time—which they were not—their decision to subject T.R. to a second strip search 

without a scintilla of evidence that T.R. had obtained drugs after the first search 

violated the Fourth Amendment.

It is well-settled that “[t]o determine whether reasonable suspicion exists, [this 

Court] look[s] to see whether the facts available to the officer at the moment o f. . . 

the search warrant a man of reasonable caution in the belief that the action taken 

was appropriate.” United States v. Franklin, 323 F.3d 1298, 1301 (11th Cir. 2003) 

(emphasis added) (internal quotation marks omitted); accord Clark v. City o f  

Atlanta, 544 F. App’x 848, 853 (11th Cir. 2013) (applying rule in civil case). This 

temporal focus requires officials to take into account new information that develops 

over the course of an encounter with an individual; “as a search progresses . . .  an 

agent must reevaluate whether reasonable suspicion to justify the next level of 

intrusion exists in light of the information gained during the encounter.” Brent v. 

Ashley, 247 F.3d 1294, 1300 (11th Cir. 2001). Put another way, “increasingly 

thorough searches that fail to reveal contraband or incriminating evidence tend to

24



dispel reasonable suspicions, not heighten them.” Evans v. Stephens, 351 F.3d 485, 

491-92 (11th Cir. 2003), rev’d  on other grounds en banc, 407 F.3d 1272 (11th Cir. 

2005).

Importantly, the en banc court in Evans reached the same conclusion on this 

issue: that fruitless initial searches undermine—and can completely vitiate— 

reasonable suspicion to conduct a strip search. See Evans v. Stephens, 407 F.3d 1272, 

1280 (11th Cir. 2005) (“Furthermore, Plaintiffs testified that Stephens had checked 

their pockets and twice patted down each of them before he strip-searched them in 

the jail. These searches also revealed nothing. This lack of revealed evidence 

undermines the reasonableness of Officer Stephens’s belief that Plaintiffs possessed 

drugs.”). The en banc court then went on to reverse the panel’s grant of qualified 

immunity to the officers, explaining that any reasonable officer would know that this 

conduct violates the Fourth Amendment. Id. at 1283.

Rather than engaging with this clear precedent, the District Court stated in a 

footnote that whether reasonable suspicion existed for the second search was “a 

question this Court needn’t answer.” Doc 65 - Pg 12 n.3. This was error.

Viewed in the light most favorable to T.R., the first search revealed that T.R. 

had no drugs inside her clothing or underwear, nor did she have any drugs taped 

under her breasts or between her legs. “The earlier search[] revealed no drugs, and . 

.. removed any suspicion that [T.R.] was carrying drugs in the specific area or cavity

25



of the body where no drugs were found.” Denson v. United States, 574 F.3d 1318, 

1352 (11th Cir. 2009) (Carnes, J., concurring). Moreover, T.R. remained in the 

custody of school officials, in her underwear, for the entire time between the two 

searches, see Doc 46 - Pg 15, and thus could not have hidden any new drugs inside 

her clothing after the first search. The only inference to be drawn from these two 

facts—and certainly the one that must be made at this stage— is that Defendants 

knew T.R. could not have obtained any contraband between the first search and the 

second search. Indeed, Defendants did not suggest otherwise; their only justification 

for the second search was a purported protocol.7 Doc 43-1 - Pg 120; Doc 43-2 - Pg 

66.

Simply put, Defendants had no basis to believe that T.R. had drugs anywhere 

on her person after they forced her to strip completely naked the first time and found 

nothing. See Hodges v. Stanley, 712 F.2d 34, 35 (2d Cir. 1983) (“The second search 

took place shortly after the first, and Hodges had been under continuous escort. 

Under these circumstances it seems clear that there was no possibility that Hodges 

could have obtained and concealed contraband. Thus the second search appears to

7 Defendant Stamps did state that, after the first strip search, she received two 
students’ reports that T.R. was the student who lit a marijuana cigarette in the 
agriculture class. But even if  true, this fact was irrelevant given the conclusive 
findings of the first strip search: that T.R. did not have any drugs inside her clothing.

26



have been unnecessary.”). Defendants’ decision to strip-search her anyway violated 

T.R.’s Fourth Amendment rights.

3. The scope o f  each search was impermissible.

For the reasons set forth above, Defendants lacked adequate justification for

either strip search of T.R. But even if Defendants had been initially justified in 

searching T.R., the scope of each search would still violate the Fourth Amendment.

The Fourth Amendment requires more than simply an adequate justification 

at the inception of a search. “Even where a student strip search is justified at its 

inception, the Fourth Amendment still requires the execution of the search to be 

reasonable in scope.” D.H. by Dawson, 830 F.3d at 1317. That means that “the 

‘measures adopted’ must be ‘reasonably related to the objectives of the search and 

not excessively intrusive in light of the age and sex of the student and the nature of 

the infraction.’” Id. (quoting T.L.O., 469 U.S. at 342). Thus, even if school officials 

have a basis to believe a student has drugs inside her clothing, they cannot “escalate 

a strip search of a student by forcing [her] to remove [her] underwear”— much less 

remove her underwear, raise her breasts, and bend over—when the search could be 

conducted by less intrusive means like asking her to pull her waistband or bra away 

from her body. See D.H. by Dawson, 830 F.3d at 1312, 1318 n.8.

D.H. by Dawson is controlling and establishes the unlawfulness of 

Defendants’ conduct. There, as here, school officials strip-searched a student to

27



determine whether he had marijuana hidden in his underwear. Officials ordered the 

student to fully remove his clothing in a room with other students who could 

“potentially” see him naked. 830 F.3d at 1315. Although this Court determined that 

officials had the requisite suspicion to strip-search D.H., it found that the “measures 

adopted” to perform that search were unconstitutionally intrusive. See id. at 1317. 

As this Court explained, the “decision to have D.H. fully remove all of his 

underclothing in front of D.H.’s peers bore no rational relationship to the purpose of 

the search itself. That is, [the official] was no more likely to find marijuana on D.H. 

by performing a fully nude strip search of D.H. in front of his peers than he would 

have had he employed substantially less invasive means.” Id. For example, the 

school official “could have simply required D.H. to pull the waistband of his 

underpants away from his body rather than fully remove his underpants.” Id. This 

Court also observed that the official could have taken steps to ensure that other 

students would not see D.H. naked, such as conducting the search in a nearby 

bathroom or removing other students from the classroom. Id. By choosing to conduct 

the strip search in the manner that he did, the school official “unnecessarily subjected 

D.H. to a significantly higher level of intrusion” and “rendered the search excessive 

in scope and, therefore, unconstitutional.” Id. at 1317, 1318.

Defendants’ strip searches of T.R. were even more excessive than the 

unconstitutional strip search in D.H. by Dawson. As in D.H. by Dawson, Defendants

28



chose to conduct the searches in a location where T.R.’s schoolmates could

potentially see her naked— an office with an unobstructed window that looked out 

on a public corridor near the cafeteria.8 Like D.H. by Dawson, the Defendants 

required T.R. to remove all of her clothing. But unlike D.H. by Dawson, Defendants 

did not stop there. After T.R. was already fully naked, Defendants ordered her to lift 

up her breasts and then raise her arms over her head and bend over so that they could 

inspect her. See infra at 42.

Viewing the facts in the light most favorable to T.R., Defendants were “no 

more likely to find marijuana on [T.R.] by performing a fully nude strip search of 

[T.R.] in front of [an open window]” and then forcing her to lift her breasts and bend 

over “than [they] would have had [they] employed substantially less invasive 

means.” D.H. by Dawson, 830 F.3d at 1317. Defendants “could have simply required 

[T.R.] to pull the waistband of [her] under [wear and bra] away from [her] body rather 

than fully remove [them],” id., and then lift her breasts and bend over with her arms 

raised over her head. Furthermore, D.H. by Dawson made clear that a fully nude 

strip search would essentially never be constitutional under these facts: “we can 

think of no circumstance where it would be permissible for a school administrator

8 That T.R. did not observe any students watching the strip search is of no 
moment; the uncovered office window made T.R. “potentially” visible to anyone in 
the public corridor, just as in D.H. by Dawson. There too, there was no evidence that 
the student was actually seen by his peers; the potential for exposure was sufficient.

29



to escalate a strip search of a student by forcing [her] to remove [her] underwear 

when— as here—due to the design of the underwear, an exhaustive search could be 

performed through ‘flanking,’” i.e., pulling the waistband away from the student’s 

body. See id. at 1318 n.8. Thus, Defendants’ actions each time they strip-searched 

her violated T.R.’s Fourth Amendment rights.

B. The District Court Improperly Granted Defendants Qualified 
Immunity.

Qualified immunity protects government officials from liability only when the 

officials perform duties within the scope and authority of their job. Because LCBE 

policy bars school officials from conducting strip searches without receiving the 

express approval of the superintendent, and because Defendants neither sought nor 

received such approval, Defendants acted beyond the scope of their authority in 

conducting the strip searches and are not entitled to qualified immunity.

Even if Defendants had adequately invoked the defense, however, they would 

still not be entitled to qualified immunity because Defendants violated clearly 

established precedent in strip-searching T.R. twice, first on a generalized suspicion 

of drug possession, and then on no suspicion at all. They further violated clearly 

established precedent by forcing T.R. to strip fully naked, lift her breasts, and bend 

over in front of an open window when a less intrusive search could have 

accomplished the same goal.

30



1. Because Defendants acted outside the scope o f  their 
discretionary authority, they are not entitled to qualified 
immunity.

Qualified immunity protects government officials from suit “only when 

exercising powers that legitimately form a part of their jobs.” Holloman ex rel. 

Holloman, 370 F.3d at 1266-67. In order to prove that challenged conduct 

“legitimately form[s] a part of their jobs,” Defendants must show that they were “(a) 

performing a legitimate job-related function (that is, pursuing a job-related goal), (b) 

through means that were within [their] power to utilize.” Id. at 1265, 1267. Thus, 

Defendants bore the burden of showing both that strip-searching T.R. involved a 

job-related goal and that it was within their power to do so without approval from 

the superintendent. Defendants fell short of this burden because strip-searching T.R. 

without the Superintendent’s authorization was outside their power.

This Court has consistently refused to grant qualified immunity to officials 

who have pursued legitimate job-related goals through means that fell outside their 

authority. For instance, this Court has denied qualified immunity to a teacher that 

pursued “the legitimate job-related function of fostering her students’ character 

education” by means of classroom prayer because prayer “is not within the range of 

tools among which teachers are empowered to select in furtherance of their 

pedagogical duties.” Id. at 1283. Similarly, it has held that a guardian ad litem is not 

entitled to qualified immunity where she pursued the legitimate job-related goal of

31



acting in her assigned child’s best interest by providing care directly to the child 

because acting “as the child’s caretaker or guardian” fell “outside the scope of her 

authority.” Lenz v. Winburn, 51 F.3d 1540, 1547 (11th Cir. 1995). And this Court 

has denied qualified immunity to a prison warden pursuing the legitimate job-related 

goal of “decision-making related to the provision of medical care of inmates” by 

entering a do-not-resuscitate order for an inmate, which he lacked authority to do 

under Alabama law. Est. o f  Cummings v. Davenport, 906 F.3d 934, 941 —42 (11th 

Cir. 2018).

The District Court did not analyze whether Defendants acted within their 

authority here.9 And Defendants simply asserted that “[supervising SHS faculty and 

students were [sic] within [their] official duties and the scope of [their] authority.” 

Doc 43 - Pg 17. This bare assertion cannot satisfy Defendants’ burden of proving 

that they acted within their discretionary authority. Although supervising students is 

surely a legitimate job-related goal of school administrators, the discretionary 

authority inquiry does not stop there. Defendants must also prove that they pursued 

that goal “through means that were within [their] power to utilize.” Holloman ex rel. 

Holloman, 370 F.3d at 1265.

9 The District Court did separately analyze whether Defendants acted “beyond 
authority” for purposes of state-agent immunity. Doc 65 - Pg 23-27. But that state- 
law question turns on a separate and unrelated legal inquiry, see id. at 25 (assessing 
whether LCBE policy constitutes a “guideline” or “detailed rule”), and the District 
Court’s analysis was legally erroneous. See infra at Section 11(A).

32



Defendants cannot meet this burden because Lamar County Board of 

Education policy specifically forbade them from conducting a strip search without 

approval of the superintendent. The policy states: “Student searches must be 

conducted by a school administrator in the presence of another certified school 

employee and may include a private pat down of the student, a search of personal 

items and clothing, or a more thorough search upon specific approval o f  the 

Superintendent.” Doc 43 - Pg 25 (emphasis added). Requiring a student to strip 

naked, lift her breasts, raise her arms above her head, and bend over for inspection 

plainly constitutes “a more thorough search” than “a private pat down of the student” 

or “a search of personal items and clothing.” See id. Thus, school policy required 

“specific approval of the Superintendent.” Id. And it is undisputed that Defendants 

neither sought nor received the superintendent’s specific approval for either search. 

See id. at 26; Doc 43-5 - Pg 2. In sum, the Lamar County Board of Education 

expressly removed unapproved strip searches from the arsenal of tools that 

Defendants could use in carrying out their duties, and Defendants nonetheless chose 

to conduct one. Because they acted outside the scope of their granted authority, 

Defendants are not entitled to qualified immunity here.

33



2. Defendants are not entitled to qualified immunity fo r the first 
strip search because the right they violated was clearly 
established.

For qualified immunity, “‘the salient question . . .  is whether the state of the 

law . . . gave [the officers] fair warning that their alleged treatment of [the plaintiff] 

was unconstitutional.’” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) 

(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). A plaintiff may satisfy their 

burden in one of three ways: they may identify (1) “binding precedent that is 

materially similar,” Jones v. Fransen, 857 F.3d 843, 851-52 (11th Cir. 2017); (2) 

“ ‘a broad statement of principle within the Constitution, statute, or case law that 

clearly establishes a constitutional right; or (3) conduct so egregious that a 

constitutional right was clearly violated, even in the total absence of case law.’” D.H. 

by Dawson, 830 F.3d at 1318 (citation omitted). A principle may be clearly 

established, and thus control in a particular case, so long as “‘the reasoning, though 

not the holding”’ of prior decisions provides state officials with the requisite fair 

warning. Jones, 857 F.3d at 852 (citation omitted).

Even if Defendants could properly invoke the qualified immunity defense, 

their conduct violated T.R.’s clearly established Fourth Amendment rights in two 

separate respects. First, Defendants’ strip search was not justified at its inception 

under clearly established law because Defendants did not possess a “reasonable 

suspicion . . .  of resort to underwear for hiding evidence of wrongdoing.” D.H. by

34



Dawson, 831 F.3d at 1317 (quoting Safford, 557 U.S. at 377). Second, Defendants’ 

strip search unconstitutionally exceeded its permissible scope under clearly 

established law because Defendants “escalate[d] a strip search of a student by 

forcing h[er] to remove h[er] underwear when— as here—due to the design of the 

underwear, an exhaustive search could be performed through [less intrusive 

means].” Id. at 1318 n.8. Each violation of clearly established law is independent 

cause for reversal.

The reasoning of Safford and D.H. by Dawson clearly establish both principles 

of law. First, Safford and D.H. by Dawson clearly establish that Defendants could 

not search T.R. without “a ‘reasonable suspicion . . .  of resort to underwear for hiding 

evidence of wrongdoing.”’ D.H. by Dawson, 830 F.3d at 1317 (quoting Safford, 557 

U.S. at 377). To make this showing, Defendants could not just point to facts 

indicating that T.R. might possess contraband somewhere. See Safford, 557 U.S. at 

373-74, 376 (finding reports that student was distributing pills to other students, 

without specific evidence that she had hidden pills in her underwear, insufficient to 

justify strip search). That sort of “general background possibility] fall[s] short.” Id. 

at 376. Instead, Defendants needed to provide a “‘justification in suspected facts’” 

that T.R. had hidden drugs in her underwear “before a search c[ould] reasonably 

make the quantum leap from outer clothes and backpacks to exposure of intimate 

partsS” D.H. by Dawson, 830 F.3d at 1314 (quoting Safford, 557 U.S. at 376, 377).

35



The District Court did not dispute the existence of this clearly established 

principle. Doc 65 - Pg 10 (restating Safford’s holding that “without some 

circumstantial evidence linking the missing drugs to the student’s private areas, 

administrators had no cause to ‘make the quantum leap from outer clothes and 

backpacks to exposure of intimate parts’”) (quoting Safford, 557 U.S. at 377). 

Rather, the District Court simply asserted that Defendants did have “reason to 

suspect TR had illegal drugs hidden on her person” because of the close temporal 

proximity to the policy violation and because Defendants did not find a marijuana 

cigarette in T.R.’s belongings. See id. at 11. Based on these two facts, the District 

Court concluded that “administrators might have reasonably concluded she hid the 

missing cigarette in or under her clothing.” Id.

The District Court’s decision erred in multiple respects. First, the District 

Court simply presumed that T.R. did, in fact, smoke the marijuana cigarette in class. 

This presumption is based upon a piece of evidence— a report made by two students 

to Dr. Stamps—that Defendants learned only after the first strip search. Second, the 

two facts cited by the District Court to justify the search—temporal proximity and 

the unsuccessful search of T.R.’s backpack—provide no specific basis to think that 

T.R. “‘resort[ed] to underwear for hiding evidence of wrongdoing,”’ D.H. by 

Dawson, 830 F.3d at 1314 (quoting Safford, 557 U.S. at 377). Assuming that T.R. 

may have hidden drugs in her underwear based solely on the possibility that she may

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possess drugs somewhere is exactly the sort of “general background possibility]” 

that the Supreme Court ruled inadequate for such a search.

The language used by the District Court further confirms that it misunderstood 

the proscription on making the “quantum leap from outer clothes and backpacks to 

exposure of intimate parts” without evidence that the student “resort[ed] to 

underwear for hiding evidence of wrongdoing.” Safford, 557 U.S. at 377. Rather 

than state that the Defendants had reason to suspect that T.R. hid drugs in her 

underwear, the District Court ruled that Defendants had “reason to suspect TR had 

hidden illegal drugs on her person.” Doc 65 - Pg 11 (emphasis added). In the very 

next sentence, the District Court stated that “administrators might have reasonably 

concluded that T.R. “hid the missing cigarette in or under her clothing.” Id. 

(emphasis added). But Safford and D.H. by Dawson expressly note that such 

concerns could be addressed through a pat-down, flanking, or other less intrusive 

searches expressly mentioned in both cases. Indeed, the central point of Safford and 

D.H. by Dawson is that the “exposure of [a schoolchild’s] intimate parts” is 

categorically distinct and requires suspicion that the child “resort[ed] to underwear 

for hiding evidence of wrongdoing.” D.H. by Dawson, 830 F.3d at 1316-17 (quoting 

Safford, 557 U.S. at 377). The District Court’s analysis conflated the suspicion 

necessary for any search with the “‘categorically distinct’” requirements necessary 

for an “inherently embarrassing, frightening, and humiliating” strip search. Id. at

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1314 (citing Safford, 557 U.S. at 374-75). That was error, and the District Court’s 

decision must be reversed on this basis.

Second, D.H. by Dawson clearly established that Defendants’ strip search of 

T.R. was unconstitutionally excessive in scope. According to the District Court, 

D.H. by Dawson could not provide fair warning to Defendants because it “held 

unreasonable only one type of search: one where an official requires a student ‘to 

strip down to his full naked body in front of several of his peers.’” See Doc 65 - Pg 

13. In the District Court’s mind, this set of circumstances was “inapposite” because 

D.H. was strip-searched in a room with some of his peers while T.R. was merely 

strip-searched in a room where “peers and unnecessary school officials ‘could have’ 

peered in and ‘could have’ seen T.R.’s nakedness.” Id. at 14. The District Court 

deemed this risk “remote” and held, “without some evidence that peers witnessed 

the search, the Court lacks a factual basis to say TR faced the level of humiliation 

and intrusiveness at issue in D.H." Id. at 14-15. And based on this single factual 

difference, the District Court decided that Defendants “were not obligated to 

extrapolate D.Hds reasoning and apply it to an inapposite set of circumstances.” Id. 

at 14.

The District Court’s decision is incorrect. First, D.H. by Dawson took pains 

to ensure that future officials were given fair warning about the permissible scope of 

strip searches and would not be “obligated to extrapolate” from its reasoning.

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Although the decision did turn on both the presence of D.H.’s peers and the intrusive 

character of the search, this Court provided explicit warning to future school 

administrators that the search was constitutionally problematic separate and apart 

from the presence of D.H.’s peers. To that end, the panel wrote: “we 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.’” 10 D.H. by Dawson, 830 F.3d at 1318 n.8 (emphasis added); see also id. 

at 1317 (explaining that search was excessive because officials “could have simply 

required D.H. to pull the waistband of his underpants away from his body rather than 

fully remove his underpants,” which “is no doubt far less invasive . . . and would 

still achieve the purposes of the search in the circumstances here”). Here, Defendants 

could have attempted a pat-down, or performed an exhaustive search through 

flanking, as in D.H. by Dawson and Safford. It takes no “extrapolation” by 

Defendants to understand that D.H. by Dawson did not permit them to make T.R. 

remove her underwear, lift her breasts, and bend over with her arms raised over her 

head when they could have conducted a less intrusive search.

10 The panel’s reference to “flanking” denotes a search performed by 
requesting the student “to pull the waistband of his underpants away from his body” 
without entirely removing the underwear. D.H. by Dawson, 830 F.3d at 1319.

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Third, the District Court’s efforts to factually distinguish D.H. by Dawson 

rested on drawing impermissible inferences in favor of Defendants. To start, the 

District Court asserted—without any support in the record—that T.R. faced only the 

“remote” possibility that a classmate could have seen officials strip her naked and 

inspect her body. That inference is inconsistent with the evidence, which showed 

that the window looked out on a public corridor near the cafeteria, not tucked away 

in some rarely trafficked nook, and is certainly inappropriate at this stage. T.R. was 

entitled to the reasonable inference that the presence of the uncovered window facing 

into a public corridor of the school, right by the school’s cafeteria, created the 

potential for her to be seen—just as the student in D.H. by Dawson. 830 F.3d at 

1315. And just as in D.H. by Dawson, officials had no legitimate reason to strip- 

search T.R. where her peers could “potentially” watch. Id. at 1317.

Finally, the District Court’s analysis entirely omits the myriad ways in which 

Defendants’ strip search of T.R. was far more intrusive than the strip search of D.H. 

In D.H. by Dawson, D.H. was only required to “pull[] his underwear down to his 

ankles.” 830 F.3d at 1312. He was not required to touch himself or contort his body; 

T.R., by contrast, was forced to lift her breasts and bend over with arms raised over 

her head. The fact that the much less intrusive search in D.H. by Dawson was 

unconstitutionally excessive provided fair warning to Defendants that the more 

intrusive search here was too.

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3. Any reasonable school official would know that strip-searching 
a student without any basis to suspect contraband violates the 
Fourth Amendment.

Nor are Defendants entitled to qualified immunity for their decision to strip- 

search T.R. after eliminating any suspicion that she had hidden marijuana inside her 

clothing. The law has long been clear that separate strip searches require separate 

justification, and that the fruitlessness of earlier searches must inform— and will 

nearly always undermine—the existence of reasonable suspicion for subsequent 

intrusive searches.

a. It has been clear for decades that a fruitless strip search 
of a student eliminates any basis to conduct a subsequent 
strip search.

As early as 1997, this Court has recognized that the results of prior searches 

must inform the assessment of whether an official has reasonable suspicion to 

conduct further intrusive searches. Jenkins by Flail v. Talladega City Bd. o f  Educ., 

115 F.3d 821, 825 (11th Cir. 1997) (interpreting T.L.O. as “grounded solely in the 

notion that each successive discovery of items in [the student’s] purse by the vice 

principal provided reasonable suspicion and thereby legitimated further 

searching.”). Applying this rule in 2001, this Court held that border agents violated 

the Fourth Amendment by conducting a strip search of a detainee on suspicion of 

smuggling after searches of the detainee’s bags and outer clothing revealed nothing. 

Brent, 247 F.3d at 1301. Thus, by no later than 2001, it was clear that prior searches

41



that reveal nothing limit the ability of officials to conduct intrusive searches like a 

strip search.

Since 2001, both this Court and the Supreme Court have repeatedly applied 

this principle to find that officials violate the Fourth Amendment when they fail to 

consider prior fruitless searches before conducting strip searches, both in the context 

of school officials and otherwise. In 2005, this Court, sitting en banc, denied 

qualified immunity to an officer who conducted a strip search of two motorists after 

pat-downs and a pocket check revealed no contraband—reversing a panel opinion 

that found the law was not clearly established. Evans, 407 F.3d at 1280. In the school 

strip search context, in 2009, the Supreme Court in Safford ruled the strip search of 

a student constitutionally impermissible in part because “the preceding search of [a 

different student] . . . yielded nothing.” Safford, 557 U.S. at 376. Defendants here 

were presented with a much stronger basis to reconsider whether a subsequent search 

was appropriate than in Safford or Evans. The fruitless search in Safford was of 

another student—thus leaving open the possibility that the plaintiff student 

possessed drugs. The fruitless search in Evans was a pat-down—thus leaving open 

the possibility that a more intrusive search could turn up evidence. But here, the 

Defendants conducted two searches of T.R. that were identical in scope. Both times, 

T.R. was forced to strip completely naked, lift her breasts, then raise her hands over

42



her head and bend over. Nothing about the second search could have even 

theoretically revealed evidence that the first search had missed.

In short, the law has been clear for decades that school officials may not 

disregard the results of prior searches in determining whether reasonable suspicion 

exists to strip search a student. Yet that is precisely what Defendants did. The District 

Court’s grant of qualified immunity to the Defendants was thus erroneous and should 

be reversed.

b. The unconstitutionalitv of the second strip search should 
have been obvious even absent specific precedent.

Even if this Court and the Supreme Court had not specifically and repeatedly 

held that the fruitlessness of prior searches vitiates suspicion to conduct subsequent 

strip searches, qualified immunity would still be inappropriate. “The 

unconstitutionality of outrageous conduct obviously will be unconstitutional.” Id. at 

377. It is well-settled that qualified immunity may not shield officials from liability 

where “a general constitutional rule already identified in the decisional law . . . 

applies] with obvious clarity to the specific conduct in question, even though the 

very action in question has not previously been held unlawful.” Hope v. Pelzer, 536 

U.S. 730, 741 (2002) (internal quotation marks in original). The more egregious an 

official’s conduct, therefore, the more likely it is that general constitutional 

principles will suffice to defeat qualified immunity. See, e.g., Taylor v. Riojas, 141 

S. Ct. 52, 53-54 (2020) (per curiam).

43



Defendants’ decision to conduct a second strip search after a full-body strip 

search completed shortly prior left no suspicion that T.R. was hiding drugs under her 

clothing “made this violation—on the day of the search— clear from the terms of the 

Constitution itself.” Evans, 407 F.3d at 1283. As Safford itself noted, the Fourth 

Amendment requires reasonable suspicion before any body search— and such 

suspicion must be specifically about the prospect of hidden contraband inside a 

student’s clothing when asking a student to submit to the “embarrassing, frightening, 

and humiliating” experience of a strip search. Safford, 557 U.S. at 374-75. But 

Defendants introduced literally “no evidence that [the second strip search] w[as] 

compelled by necessity or exigency.” Taylor, 141 S. Ct. at 54.

No reasonable official could have believed that, in 2017, the Constitution 

permitted them to force a fourteen-year-old girl to strip naked, lift her breasts, and 

bend over despite knowing that she was not carrying contraband inside her 

clothing—even absent precedent directly on point. Defendants are not entitled to 

qualified immunity, and the District Court’s erroneous entry of summary judgment 

must be reversed.

II. THE DISTRICT COURT ERRED IN GRANTING DEFENDANTS’ 
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S STATE 
LAW CLAIMS.

Defendants are not entitled to summary judgment on their state law claims. 

State-agent immunity is unavailable to state officials who exceed the bounds of their

44



authority—which, under the plain text of LCBE policy, Defendants did here. And 

the tort of outrage is available for conduct that shocks the conscience, including 

forcing a fourteen-year-old girl to strip naked, lift her breasts, and bend over for 

inspection for no reason whatsoever.

A. Defendants Are Not Entitled to State-Agent Immunity.

The District Court granted summary judgment on Plaintiffs invasion of

privacy claim by holding that Defendants were entitled to state-agent immunity. Doc 

65 - Pg 27. State-agent immunity safeguards state employees ‘“ in the exercise of 

their judgment in executing their work responsibilities.’” Ex parte Kennedy, 992 So. 

2d 1276, 1280 (Ala. 2008) (quoting Ex parte Hayles, 852 So. 2d 117, 122 (Ala. 

2002)). It provides no shield, however, “ ‘when the State agent acts . . . beyond his 

or her authority, or under a mistaken interpretation of the law.’” Id. at 1281 (quoting 

Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000)). Thus, state-agent immunity is 

not available where a plaintiff “profferfs] evidence that the State agent failed to 

discharge duties pursuant to detailed rules or regulations, such as those stated on a 

checklist.” Id. at 1282-83 (internal quotations omitted) (quoting Giambrone v. 

Douglas, 874 So. 2d 1046, 1052 (Ala. 2003)).

The record here demonstrates precisely such a failure to comply with detailed 

rules and regulations. As set forth supra, Section 1(B)(1), LCBE policy 

unequivocally states that any search that is “more thorough” than “a private pat down

45



of the student” requires “specific approval of the Superintendent.” Doc 46-5 - Pg 5. 

The District Court concluded that this bright-line rule “leaves much to discretion.” 

Doc 65 - Pg 26. In so finding, the District Court read ambiguity into how to 

determine the “thoroughness” of a search; in its view, a private pat-down search is 

somehow more thorough than requiring a student strip completely naked, lift her 

breasts, and bend over. See id.

That conclusion is unsupported by logic or case law. This Court has described 

the intrusiveness of a brief pat-down as “minimal.” United States v. Pnglisi, 723 F.2d 

779, 784-85 (11th Cir. 1984). It has thus characterized strip searches as categorically 

more intrusive and thorough than pat-downs, requiring additional justification before 

they may be undertaken. See Brent, 247 F.3d at 1300 (describing an increasingly 

invasive search as “progressing] from a stop, to a pat-down search, to a strip search” 

and characterizing each search as “the next level of intrusion”). That characterization 

is the only reasonable one; no reasonable person would conclude that a strip search 

is somehow less invasive than any of the thousands of pat-downs conducted across 

the country. Furthermore, the District Court’s strained interpretation of the LCBE 

policy language is particularly inappropriate at summary judgment, where the 

evidence must be viewed in the light most favorable to Plaintiffs.

Even if this Court declines to treat strip searches as categorically more invasive 

than pat-downs, however, there is little question that the particular strip searches

46



here— involving the complete removal of all clothing and underwear, a lifting of 

T.R.’s breasts, and a bending over with arms raised to reveal the most intimate parts 

of her body—were far more intrusive than a simple frisk. The District Court’s grant 

of state-agent immunity to Defendants on T.R.’s claim for invasion of privacy should 

be reversed.

B. The Record Supports T.R.’s Claim for Outrage.

To recover under the tort of outrage, a plaintiff must demonstrate that “the

defendant’s conduct ‘1) was intentional or reckless; 2) was extreme and outrageous; 

and 3) caused emotional distress so severe that no reasonable person could be 

expected to endure itW  Little v. Robinson, 72 So. 3d 1168,1172 (Ala. 2011) (quoting 

Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38, 44 (Ala. 1990). The 

District Court relied on the list articulated in Little to note that “the Supreme Court 

of Alabama has found sufficiently extreme conduct in on [sic] only three instances: 

‘(1) wrongful conduct in the family-burial context; (2) barbaric methods employed 

to coerce an insurance settlement; and (3) egregious sexual harassment.” Doc 65 - 

Pg 28 (quoting Wilson v. Univ. o f  Ala. Health Servs. Found., P.C., 266 So. 3d 674, 

677 (Ala. 2017)). But Little disclaimed such a limited universe, immediately 

qualifying the above-quoted list by saying, “That is not to say, however, that the tort 

of outrage is viable in only the three circumstances.. . ” Little v. Robinson, 72 So. 3d 

at 1172-1173. Indeed, the Supreme Court of Alabama has expressly cautioned that

47



its statements in Little were not meant to create an exhaustive list— a warning the 

District Court failed to heed here. Wilson, 266 So. 3d at 677 (“The trial court’s 

holding that the tort of outrage ‘is limited to three situations’ is an incorrect statement 

of the law. As noted in Little, the tort can be viable outside the context of the above- 

identified circumstances and has previously been held to be so viable.”). And courts 

have recognized outrage claims in other contexts far less egregious than the case 

here. See, e.g., Ex parte Lumbermen’s Underwriting All., 662 So. 2d 1133, 1136 

(Ala. 1995) (sustaining outrage claim premised on insurer’s decision to halt worker’s 

compensation payments pending appeals); Davis v. White, No. 7:17-cv-01533-LSC, 

2020 WL 4732073, at *20-*21 (N.D. Ala. Aug. 14, 2020) (Coogler, J.) (finding that 

plaintiffs who were charged ballooning debt by sewer service company stated claim 

for outrage).

Defendants’ conduct here was far more egregious than suspending worker’s 

compensation payments while the award of payments was appealed, or charging 

unreasonable interest on debt for sewer services. Courts have uniformly recognized 

the degradation, embarrassment, and humiliation that can accompany any strip 

search—particularly for a minor. Safford, 557 U.S. at 374-75 (noting that strip 

searches are “embarrassing, frightening, and humiliating,” and “fairly understood as 

so degrading that a number of communities have decided that strip searches in 

schools are never reasonable”); Littell v. Houston Indep. Sch. Dist., 894 F.3d 616,

48



623 (5th Cir. 2018) (“Underwear searches are embarrassing, frightening, and 

humiliating.. .”) (citation and internal quotations omitted); Doe v. Renfrow, 631 F.2d 

91, 92-93 (7th Cir. 1980) (“It does not require a constitutional scholar to conclude 

that a nude search of a thirteen-year-old child is an invasion of constitutional rights 

of some magnitude. More than that: it is a violation of any known principle of human 

decency.”)

Indeed, T.R. herself continues to live with the trauma of this embarrassment. 

Defendants’ conduct resulted in T.R. growing depressed and anxious, giving up on 

school, losing confidence in herself, and giving up on her hopes and dreams. Doc 

43-1 -P g  133.

Furthermore, the District Court dramatically understates the severity of the 

facts at issue here, describing T.R.’s outrage claim as merely alleging that 

“defendants unreasonably searched her after finding evidence of a Schedule-1 Drug 

in her backpack.” Doc 65 - Pg 28. But T.R. did not merely allege that Defendants 

unreasonably searched her. She alleged that Defendants made her entirely disrobe, 

lift her breasts, and bend over in front of a window open to a public corridor. And 

then she alleged that Defendants did so again knowing for a fact that she did not 

have drugs and that the search would yield nothing. On top of that, Defendants told 

T.R. that the second search was required by protocol—a protocol that does not, in 

fact, exist. Requiring a fourteen-year-old child to submit to this kind of search when

49



school officials know in advance that the only possible result is her needless 

humiliation “go[es] beyond all possible bounds of decency,” see Doc 65 - Pg 28, and 

states a cognizable claim of outrage.

CONCLUSION

The District Court’s decision granting Defendants Dr. Lisa Stamps and Kathy 

Dean summary judgment on T.R.’s claims for unreasonable searches under the 

Fourth Amendment, invasion of privacy under Alabama law, and outrage under

Alabama law should be reversed.

SHERRILYN A. IFILL 
Direct or-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

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

Respectfully submitted,

s / Christopher Kemmitt______
Christopher 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

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mailto:ckemmitt@naacpldf.org


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

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s/  Christopher Kemmitt 
Christopher Kemmitt

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