Mellony Burlison, et al v. Springfield Public Schools, et al

Filing

OPINION FILED - THE COURT: James B. Loken, Diana E. Murphy and Steven M. Colloton. --AUTHORING JUDGE:Diana E. Murphy-- (PUBLISHED), SEPARATE CONCURRENCES BY: James B. Loken and Steven M. Colloton [4010591] [12-1382]

United States Court of Appeals
For the Eighth Circuit
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No. 12-1382
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Mellony Burlison, as parent and next friend of CM and HM, minors; Douglas
Burlison, as parent and next friend of CM and HM, minors
lllllllllllllllllllll Plaintiffs - Appellants
v.
Springfield Public Schools; Norm Ridder; Ron Snodgrass; James Arnott
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: January 15, 2013
Filed: March 4, 2013
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Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
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MURPHY, Circuit Judge.
Mellony and Douglas Burlison brought this action on behalf of their son C.M.
under 42 U.S.C. § 1983 and the Missouri Constitution, alleging that Springfield
Public Schools (the district), superintendent Norm Ridder, principal Ron Snodgrass,
and sheriff James Arnott violated C.M.'s constitutional rights by briefly separating
him from his backpack during a drug dog exercise in his high school classroom. The

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district court1 granted summary judgment to the district, its officials, and the sheriff
after concluding that the policies used during the drug dog visit "appear[ed] to be
reasonable and not in any way a deprivation of a federal right." The Burlisons appeal,
and we affirm.
I.
C.M. was a freshman at the district's Central High School during the 2009 to
2010 school year. In April 2010 two deputies from the Greene County sheriff's
department arrived at the school with two drug dogs to conduct a brief survey of
randomly selected areas in the building. The survey was conducted in accordance
with school police services's standard operating procedure number 3.4.1. On the day
of the drug detection activity, C.M. was informed that his science classroom had been
chosen to be sniffed by a drug dog. The dog was held by a deputy sheriff thirty to
fifty feet from C.M.'s classroom while a school police officer instructed the students
and teacher to leave the room. All backpacks, purses, and other personal items were
to be left behind. C.M. left his backpack and books in the room and went into the
hallway where he could no longer see his belongings. He alleges that his backpack
was fully zipped when he left the room.
Once the room was cleared of students, a deputy sheriff took the drug dog into
C.M.'s classroom. Video footage shows that the deputy sheriff and drug dog left the
classroom after approximately five minutes. During that time the drug dog did not
alert to anything. Although district personnel and the deputy sheriff who handled the
drug dog testified that no student possessions were searched in this classroom, C.M.
stated that after he went back inside he "felt like the pockets [of his backpack] had
been unzipped and stuff."

1

The Honorable Richard E. Dorr, United States District Court for the Western
District of Missouri.
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The director of the school police services department testified that he had
contacted the Greene County Sheriff's Department in October 2009 to request that
drug detection dogs visit each of the district's high schools during the 2009 to 2010
school year. Sheriff department policy 5-50-5 authorizes the use of canines for the
"[r]andom exploratory sniffing of luggage, packages or other inanimate objects . . .
in public facilities." After sheriff Arnott received the initial request from the director,
he assigned a captain to coordinate the use of drug dogs in the district high schools.
That was sheriff Arnott's sole contact with the drug detection procedure, and he was
not present at C.M.'s school during the visit of the drug dogs in April 2010.
The drug dog visit to C.M.'s high school was done in accordance with Board
of Education policy JFG and school police services's standard operating procedure
3.4.1. Policy JFG was enacted to "balance each student's right to privacy" with "the
need to maintain an appropriate learning environment." It permits student property
to be "screened in conjunction with law enforcement by using animals trained to
locate and/or detect weapons and prohibited drugs." The school police services's
procedure allows drug dogs to be used at the district's secondary school buildings "to
protect the safety and health of the [d]istrict's faculty, staff and students." It permits
dogs to sniff student lockers, desks, backpacks, and similar items when they are not
in the possession of students. The procedure states that "once a drug detection dog
has completed sniffing an area, the dog handler and drug detection dog will retire
from the area." The director of school police services has further clarified that a
student's possessions will only be searched if a drug dog has twice alerted on the
same property.
District personnel created procedures for drug detection surveys like the April
2010 visit to C.M.'s classroom in order to address a known drug problem in the
district. C.M. testified that he knew a lot of high school students were using drugs.
District records show that the number of drug incidents in the district from 2000 to
2011 ranged from 89 to 205 per year. A school police officer from C.M.'s high
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school testified that he "frequently received reports from students, parents, and
teachers about the use of illegal and prescription drugs in the school." He handled
drug related incidents on average three or more times per week, leading him to
believe that "there was and is a drug problem" at the high school.
The Burlisons filed this action against the district on behalf of their son C.M.2
under 42 U.S.C. § 1983 and article I, section 15 of the Missouri Constitution.
Superintendent Norm Ridder, principal Ron Snodgrass, and sheriff James Arnott were
also named as defendants in their individual and official capacities. The Burlisons
sought a declaration that C.M.'s constitutional rights had been violated by the search
and seizure of his property, a permanent injunction, actual and nominal damages,
attorney fees, and other appropriate relief.
On cross motions for summary judgment, the district court granted it to the
district and the officials, concluding that the "written policies and procedures . . .
appear to be reasonable and not in any way a deprivation of a federal right." While
there "may [have been] an issue as to whether C.M.'s belongings were searched"
because C.M. had alleged that his backpack had been unzipped when he returned to
the classroom, none of the named defendants could be liable because they had not
performed the alleged search and neither C.M. nor his backpack had been seized.
Ridder, Snodgrass, and Arnott were not individually liable because they had not
participated in any alleged constitutional violation or failed to properly supervise
subordinates. The claims against Ridder and Snodgrass in their official capacities
were dismissed as "redundant to the claims against the [d]istrict," and Arnott was not
liable in his official capacity because nothing suggested that he had notice of an
unconstitutional policy.
2

The Burlisons also filed on behalf of their daughter H.M., but they state that
her claims are moot "because she is no longer a student and . . . [her] only claims were
for declaratory and injunctive relief." A suit by another parent was dismissed for
failure to prosecute.
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The Burlisons appeal, arguing that the district court erred in concluding that
C.M.'s belongings had not been seized, that superintendent Ridder and principal
Snodgrass were not liable in their official capacities, and that sheriff Arnott was not
liable in his individual or official capacities. The Burlisons point out however that
they "have not pursued a claim that an unconstitutional search of C.M.'s belongings"
occurred since "the proper parties are not in this action." They also do not appeal the
district court's determination that Snodgrass and Ridder are not liable in their
individual capacities. See Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th Cir.
2007).
II.
The Burlisons first argue that the district court erred in granting summary
judgment to the district as well as to Ridder and Snodgrass in their official capacities.
They contend that C.M.'s property was seized in violation of the Fourth Amendment
and article I, section 15 of the Missouri Constitution, regardless of whether the
seizure was completed in accordance with school police services procedure 3.4.1.
The district court's grant of summary judgment to the district and the officials is
reviewed de novo. AvidAir Helicopter Supply, Inc. v. Rolls-Royce Corp., 663 F.3d
966, 971 (8th Cir. 2011). Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.
Id.
The Burlisons' claims against Ridder and Snodgrass in their official capacities
are in reality claims against the district. See Johnson v. Outboard Marine Corp., 172
F.3d 531, 535 (8th Cir. 1999). To succeed on their § 1983 claim against the district
the Burlisons must prove that the district acted under color of state law in a manner
that deprived C.M. of a constitutionally protected federal right. Van Zee v. Hanson,
630 F.3d 1126, 1128 (8th Cir. 2011). The Burlisons also raise a state constitutional
claim under article I, section 15 of the Missouri Constitution which "is parallel to and
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co-extensive with the Fourth Amendment." State v. Johnson, 316 S.W.3d 390, 395
(Mo. Ct. App. 2010).
The Fourth Amendment protects the "right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures." The
Fourteenth Amendment extends this constitutional guarantee to searches and seizures
by state officers, Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995),
including public school officials, Doe v. Little Rock Sch. Dist., 380 F.3d 349, 352
(8th Cir. 2004). A seizure of property under the Fourth Amendment occurs when
there is "some meaningful interference with an individual's possessory interests in
that property." Dixon v. Lowery, 302 F.3d 857, 862 (8th Cir. 2002) (quotation marks
and citation omitted). Not "every governmental interference with a person's property
constitutes a seizure of that property under the Constitution." United States v. Va
Lerie, 424 F.3d 694, 702 (8th Cir. 2005) (en banc). We concluded, for example, in
Va Lerie that the removal of checked luggage from a bus by a government agent was
not a seizure because it did not delay the person's travel or impact his freedom of
movement, affect the timely delivery of luggage, or deprive the carrier of custody of
the checked bag. Id. at 708.
The Fourth Amendment demands that seizure of property be reasonable, but
"what is reasonable depends on the context." New Jersey v. T.L.O., 469 U.S. 325,
337 (1985). A student's privacy interest "is limited in a public school environment
where the State is responsible for maintaining discipline, health, and safety." Bd. of
Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 830
(2002). Students do retain Fourth Amendment rights at school, T.L.O., 469 U.S. at
338, but those rights "are different in public schools than elsewhere," Acton, 515 U.S.
at 656. That is because schools have a "legitimate need to maintain an environment
in which learning can take place." T.L.O., 469 U.S. at 340. Thus, a reasonableness
inquiry must consider schools' "custodial and tutelary responsibility for children" and

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the fact that students have a "lesser expectation of privacy than members of the
population generally." Acton, 515 U.S. at 656–57 (citation omitted).
To determine whether a school's actions violated the Fourth Amendment, the
Supreme Court has "conducted a fact-specific balancing of the intrusion on the
children's Fourth Amendment rights against the promotion of legitimate governmental
interests." Earls, 536 U.S. at 830. In considering the constitutionality of a school
policy requiring suspicionless drug testing of students who participate in
extracurricular activities, the Supreme Court considered "the nature of the privacy
interest allegedly compromised," "the character of the intrusion imposed," and "the
nature and immediacy of the government's concerns and the efficacy of the Policy in
meeting them." Id. at 830, 832, 834. In Earls, the Court concluded that the school's
policy was "a reasonable means of furthering . . . important interest[s] in preventing
and deterring drug use among its schoolchildren." Id. at 838.
Assuming that C.M.'s belongings were seized in this case when the school
police officer directed that they be left in the classroom for approximately five
minutes while the drug dog survey occurred, we conclude that the seizure was part
of a reasonable procedure to maintain the safety and security of students at the school.
See T.L.O., 469 U.S. at 339. Since C.M. is a high school student, he has a "lesser
expectation of privacy" than the general public. Acton, 515 U.S. at 657 (citation
omitted). He was only separated from his belongings for a short period of time while
the deputy sheriff safely and efficiently completed the drug dog walkabout.
Requiring students to be separated from their property during such a reasonable
procedure avoids potential embarrassment to students, ensures that students are not
targeted by dogs, and decreases the possibility of dangerous interactions between
dogs and children. See Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 479
(5th Cir. 1982).

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C.M.'s freedoms were not unreasonably curtailed by his brief separation from
his possessions because he normally would not have been able to access or move his
backpack during class time without permission. In Little Rock, 380 F.3d at 351, we
concluded that a school's search policy was unconstitutional where it required all
students to leave their belongings in a classroom and allowed school personnel to
search each student's property. We noted that a drug dog procedure like the one
completed in C.M.'s school in April 2010 would not raise the same type of
constitutional issues. Id. at 355. That is because such a drug dog survey is
"minimally intrusive, and provide[s] an effective means for adducing the requisite
degree of individualized suspicion to conduct further, more intrusive searches." Id.
The drug dog procedure at C.M.'s school was the type of minimally intrusive activity
which we referenced in Little Rock. C.M. was separated from his backpack only for
a short period of time and school personnel were only to search a student's belongings
if a drug dog alerted twice on the same property.
The district and its officials have shown an immediate need for a drug dog
procedure because there is substantial evidence showing there was a drug problem
in district buildings. The Supreme Court has repeatedly emphasized the strong
government interest in preventing drug use by students. See, e.g., Earls, 536 U.S. at
834. Drug problems in schools are "serious in terms of size, the kinds of drugs being
used, and the consequences of that use both for our children and the rest of us." Id. at
839 (Breyer, J., concurring). That is because "drug use carries a variety of health
risks for children, including death from overdose." Id. at 836–37 (majority opinion).
C.M. testified that he knew students at his school who used drugs and a school police
officer stated that he believed there "was and is a drug problem" at C.M.'s high
school. The district also provided records substantiating the number of drug incidents
from 2000 to 2011. According to those records the district had 154 drug related
incidents during C.M.'s freshman year. The procedures used by district personnel and
the deputy sheriff at C.M.'s school in April 2010 reasonably addressed concerns over

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drug usage in school in a manner that was minimally intrusive to students and their
belongings.
The district court noted that a genuine issue of material fact might exist
whether C.M.'s belongings were searched because he testified that his backpack was
zipped when he left the room and when "[he] came back . . . [he] felt like the pockets
had been unzipped and stuff." The district court concluded however that the
Burlisons could not challenge any alleged search because there was no evidence that
the named county or school personnel had searched C.M.'s belongings. C.M. could
not see inside the room, but his possessions were in the location where he had left
them when he returned to class. School and county personnel testified that they did
not search C.M.'s belongings, and the record does not reveal who may have touched
the zipper on C.M.'s backpack. The Burlisons concede on appeal that they are not
pursuing the alleged search because the "proper parties [are] not in this action." That
is significant because the "Search Clause [of the Fourth Amendment] is wholly
distinct from the Seizure Clause, such that courts applying these clauses must
understand they provide different protections against government conduct." Va
Lerie, 424 F.3d at 701 (citing Segura v. United States, 468 U.S. 796, 806 (1984)).
The Burlisons also argue that the seizure of C.M.'s belongings was "plainly
illegal" because it was not undertaken pursuant to judicial authority and was not
supported by individualized suspicion. The Supreme Court has specifically rejected
the need to obtain a warrant in a school setting, however, and instead has stated that
the legality of Fourth Amendment searches and seizures in school "should depend
simply on the reasonableness, under all the circumstances" of the activities. T.L.O.,
469 U.S. at 341. The Supreme Court has also rejected the idea that all searches or
seizures in a school must be supported by individualized suspicion. See Acton, 515
U.S. at 653. Also, in Earls, 536 U.S. at 837, the Court declined to require a school
to find individualized suspicion before drug testing students participating in

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extracurricular activities because the school was "attempting to prevent and detect
drug use by students."
We conclude that the brief separation of C.M. and his belongings was
reasonable and did not deprive him of a constitutionally protected right. The district
court therefore properly granted summary judgement to the district and to Ridder and
Snodgrass in their official capacities.
III.
The Burlisons next argue that the district court erred in granting summary
judgment to sheriff Arnott in his individual and official capacities. A government
official can be liable in his individual capacity if "a causal link to, and direct
responsibility for, the deprivation of rights" is shown. Mayorga v. Missouri, 442 F.3d
1128, 1132 (8th Cir. 2006) (citation omitted). A supervising officer "can be liable for
an inferior officer's constitutional violation only if he directly participated in the
constitutional violation, or if his failure to train or supervise the offending actor
caused the deprivation." Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010)
(quotation marks and citations omitted). To succeed on a claim against Arnott in his
official capacity the Burlisons must show that "a constitutional violation was
committed pursuant to an official 'policy or custom' and that such 'policy [or] custom'
was the moving force behind plaintiff's injury." M.Y. v. Special Sch. Dist. No. 1, 544
F.3d 885, 890 (8th Cir. 2008) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658,
694–95) (1978)).
The district court correctly concluded that Arnott is not liable under § 1983 in
his individual or official capacity. Arnott did not participate in the drug dog
procedure at C.M.'s school and he was not at the school for the drug detection
walkabout. See Parrish, 594 F.3d at 1001. He had received a request from the
director of school police services in 2009 to have drug dogs visit each of the district's
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high schools and assigned the matter to a captain. The resulting drug dog survey at
C.M.'s school was conducted pursuant to procedures established by the school's
police services and the sheriff's office, and there was no resulting constitutional
deprivation. See id. There is also no evidence that Arnott failed to train or supervise
the deputies who conducted the drug dog procedure at C.M.'s school. There had been
no complaints related to the drug dog surveys before April 2010, and there is no
evidence that the sheriff's office should have believed that its procedures or actions
were likely to result in a constitutional violation. M.Y., 544 F.3d at 890.
IV.
For these reasons we affirm the judgment of the district court.
LOKEN, Circuit Judge, concurring.
I agree that, if separating C.M. from his backpack for five minutes was a
seizure, it was objectively reasonable and thus did not violate C.M.’s Fourth
Amendment rights. I therefore join the opinion of the court. I write separately to
explain why I also agree with the district court that there was no seizure of C.M.’s
personal belongings within the meaning of the Fourth Amendment. Accord Doran
v. Contoocook Valley Sch. Dist., 616 F. Supp. 2d 184, 193-94 (D.N.H. 2009).
A Fourth Amendment seizure of property occurs “when there is some
meaningful interference with an individual’s possessory interests in that property.”
Jacobsen v. United States, 466 U.S. 109, 113 (1984). “By requiring some meaningful
interference with an individual’s possessory interests in property, the Supreme Court
inevitably contemplated excluding inconsequential interference with an individual’s
possessory interests.” United States v. Va Lerie, 424 F.3d 694, 706 (8th Cir. 2005)
(en banc), (emphasis in original), cert. denied, 548 U.S. 903 (2006). In my view,

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instructing C.M. to leave his backpack and wait in the hall while a drug dog briefly
sniffed the classroom was, at most, an inconsequential interference.
In Va Lerie, we concluded that moving a bus passenger’s checked luggage
before seeking consent to search was not a meaningful interference because it did not
delay the passenger’s travel plans or freedom of movement, delay delivery of the
luggage, or deprive the bus company of its custody of the luggage. Id. at 707-08. In
United States v. Clutter, 674 F.3d 980, 984 (8th Cir.), cert. denied, 133 S. Ct. 272
(2012), we concluded that temporary seizure of the defendant’s computers while
officers applied for a search warrant did not meaningfully interfere with his
possessory interests because he was in jail and his father consented to the seizure.
Here, the interference with C.M.’s backpack was far less consequential. No
defendant physically moved or even touched the backpack, nor did the Burlisons
identify any other interference with C.M.’s possessory interests during the five
minutes he was separated from the backpack while on school premises.
In considering the objective reasonableness that governs Fourth Amendment
issues, it is essential to consider the public school context in which this issue arose.
Fourth Amendment protections extend to searches and seizures of students and their
belongings by public school officials. New Jersey v. T.L.O., 469 U.S. 325, 336-37
(1985). But because context matters, Fourth Amendment protections “are different
in public schools than elsewhere; the ‘reasonableness’ inquiry cannot disregard the
schools’ custodial and tutelary responsibility for children.” Vernonia Sch. Dist. 47J
v. Acton, 515 U.S. 646, 656 (1995). “To qualify as a seizure in the school context,
the limitation on the student’s freedom of movement must significantly exceed that
inherent in everyday, compulsory attendance.” Couture v. Bd. of Educ. of
Albuquerque Pub. Sch., 535 F.3d 1243, 1251 (10th Cir. 2008).
C.M. retained some possessory and privacy interests in his backpack when he
brought it to school, like the purse at issue in T.L.O., but his freedom to take his
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personal belongings with him wherever he went on school grounds was necessarily
limited by the school’s “legitimate need to maintain an environment in which learning
can take place.” 469 U.S. at 340. For example, students may be required to leave
personal belongings in lockers to reduce clutter in classrooms and hallways. And, for
reasons such as safety or an improved learning environment, students may be told to
leave their belongings in the classroom while they temporarily leave the building for
a fire drill, or proceed to a science lab or athletic facility in another part of the
building. Here, acting on established Board of Education and Sheriff’s Department
policies, defendants briefly separated a classroom of students from their personal
belongings to permit a drug dog to safely sniff the classroom for the presence of
illegal drugs. As the court thoroughly explains, the Supreme Court has repeatedly
emphasized the importance of dealing with the drug problem in our Nation’s schools.
In these circumstances, I would affirm because no seizure of C.M.’s backpack
occurred. Of course, if the drug dog had alerted and the backpack then been
searched, additional Fourth Amendment issues would be presented.
COLLOTON, Circuit Judge, concurring.
I concur in Judge Murphy’s opinion for the court. It is unnecessary to decide
whether school officials effected a seizure of C.M.’s belongings, because any such
seizure was reasonable under the Fourth Amendment. As Judge Loken has chosen
to opine that C.M.’s belongings were not seized, however, it is worth noting that there
is a substantial argument on the other side.
In United States v. Jacobsen, 466 U.S. 109 (1984), the Supreme Court said that
“[a] ‘seizure’ of property occurs when there is some meaningful interference with an
individual’s possessory interests in that property.” Id. at 113. The Court held that the
standard of “meaningful interference” was satisfied when federal agents took
temporary custody of a package from Federal Express at an airport office for
investigative purposes, id. at 120, even before they conducted their investigation, id.
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at 124-25, because “the decision by governmental authorities to exert dominion and
control over the package for their own purposes clearly constituted a ‘seizure,’ though
not necessarily an unreasonable one.” Id. at 121 n.18. Similarly, the authorities here
separated C.M. from his property, thus depriving him of custody of the backpack, see
United States v. Alvarez-Manzo, 570 F.3d 1070, 1076 (8th Cir. 2009); cf. United
States v. Va Lerie, 424 F.3d 694, 702, 708 & n.9 (8th Cir. 2005) (en banc) (no
deprivation of custody), and the authorities did so “for their own purposes” of
investigating the presence of contraband in the property, as in Jacobsen, not to
facilitate a fire drill or school assembly unrelated to the property.
Presumably because the “seizure” issue is not an easy one, the Texas Court of
Appeals bypassed the issue en route to concluding that a comparable school
procedure was constitutionally reasonable. In re D.H., 306 S.W.3d 955, 958 (Tex.
App. 2010). The district court in Doran v. Contoocook Valley School District, 616
F. Supp. 2d 184 (D.N.H. 2009), although cited above as holding that the procedure
at issue effects no seizure of property, addressed only whether children (not their
belongings) were seized in the course of a school’s drug dog operation. Id. at 193-94.
Insofar as the Doran court touched on the separation of children from their personal
belongings, the court addressed only whether there was an “improper seizure,” i.e.,
an unreasonable one, id. at 194 (emphasis added), and relied on the Supreme Court’s
discussion in Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), which
emphasized that “the ‘reasonableness’ inquiry cannot disregard the schools’ custodial
and tutelary responsibility for children.” Id. at 656 (emphasis added).
Given the difficulty of the “seizure” question, it is prudent to resolve this
appeal based on the reasonableness of the school’s procedure under the
circumstances. With these observations, I concur in the opinion of the court.
______________________________

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